Com. v. Kesler, D.

J. A03031/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID CARL KESLER, :
:
Appellant : No. 1027 MDA 2014
Appeal from the Judgment of Sentence June 5, 2014
In the Court of Common Pleas of Perry County
Criminal Division No(s).: CP-50-CR-0000148-2013
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 09, 2015
Appellant, David Carl Kesler, appeals from the judgment of sentence
entered in the Perry County Court of Common Pleas following his conviction
for driving under the influence of alcohol (DUI)—high rate of alcohol.1
Appellant claims the trial court erred in concluding the initial traffic stop was
justified by reasonable suspicion. We affirm.
The trial court set forth the background to this appeal.
[Pennsylvania State Trooper Scott A. Roussell] testified
that he was called to the scene of a bar fight at White
Oaks Bar. Upon arrival, the Trooper was informed that
there was a fight involving a group of people on
motorcycles. Some had fled prior to the Trooper’s arrival
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 3802(b).
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however, eyewitnesses described the motorcycles and the
individuals driving them. The Trooper met with the victim
in this incident and he stepped outside to show the
Trooper damage to his motorcycle seat from a cigarette
burn. At that point, the Trooper stated that people [o]n
motorcycles began leaving the area.
Trial Court Op., 8/28/14, at 2.
Our review of the suppression record reveals the following details
relevant to this appeal. While Trooper Roussell was outside the bar with the
victim, he observed three motorcycles leaving the area. N.T., 10/23/13, at
8, 17. According to the Trooper, the victim “pointed out that looks like some
of the guys that were involved in the fight.” Id. at 18. The Trooper yelled
and attempted to stop the drivers by waving his flashlight. Id. at 8, 17-18.
One of the three motorcyclists stopped. Id. at 17. The other two
motorcyclists made a left turn, went across the grass of a yard of a nearby
trailer to the roadway, and “didn’t stop to yield to any possible traffic on the
road.” Id. at 11, 17.
The Trooper pursued the two motorcycles in a marked vehicle and
activated the emergency lights and sirens. Id. at 8, 18. One of the
motorcyclists, later identified as Appellant, pulled over to the side of the
road. The Trooper drove by him to pursue the other motorcycle, which fit
the description of an individual or vehicle he obtained during his
investigation of the bar fight. Id. at 8. The Trooper stopped the other
motorcyclist at the intersection of Routes 34 and 274, approximately one-
half mile from where Appellant initially stopped. Id. The Trooper testified
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he did not observe Appellant commit moving violations while pursuing the
two motorcycles.
According to the Trooper, Appellant then drove his motorcycle to the
intersection and stopped. Id. at 8. The Trooper testified, “So at that point I
[waved] him over, because I wanted to see, you know, who was at the bar.”
Id. at 9. He then told Appellant to “stay there” because he was talking to
the other motorcyclist. Id. at 10. He positioned the two close to each other
so he “could keep an eye on them” while waiting for his backup. Id. at 21.
The Trooper went back and forth between Appellant and the driver of
the other motorcycle. Id. at 10. During these interactions, he noticed the
other motorcyclist had a five-to-six inch long laceration on his forehead and
Appellant “had a strong odor of alcohol coming from him[,]” “[h]is speech
was slurred[,]” “he was actually staggering when he got off his
motorcycle[,]” and “[h]e was acting very slow and sluggish.” Id. at 10, 12.
The Trooper checked Appellant’s driver’s license and registration, and the
latter was expired. Id. at 21, 24.
When backup arrived, another trooper drove Appellant back to the bar,
where it was determined that he was not involved in the fight. At some
point, Trooper Roussell administered a horizontal gaze nystagmus test on
Appellant, which “showed six out of six indicators[,]” and took a preliminary
breathalyzer test, which indicated Appellant had a blood alcohol content of
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0.138%.2 Id. at 13. The Trooper arrested Appellant for DUI. Appellant was
transported to a police station, and a blood test was performed. The blood
test returned with a blood alcohol content reading of 0.144%.
Appellant was charged with several counts of DUI, registration and
certificate of title required, and several traffic violations. Appellant filed an
omnibus pretrial motion on September 10, 2013, asserting, inter alia, that
he was stopped without reasonable suspicion and requesting the suppression
of all evidence. The trial court held a hearing on October 23, 2013, and
denied Appellant’s suppression motion.
Appellant proceeded to a nonjury trial on April 15, 2014, at which he
was found guilty of DUI—high rate. The court, on June 5, 2014, sentenced
Appellant to serve thirty days to six months’ imprisonment and pay a
mandatory fine of $750. Appellant filed a timely appeal and complied with
the court’s order to file a Pa.R.A.P. 1925(b) statement.3
Appellant, in the brief filed in support of this appeal, asserts the trial
court erred in denying his suppression motion.4 He claims the Trooper
2
The Trooper’s testimony did not indicate whether he conducted the field
tests at the intersection where he stopped the two motorcycles or the
parking lot of the bar. However, the Trooper stated he did not administer
certain tests due, in part, to the gravel in a parking lot. N.T. at 13.
3
The Honorable Keith B. Quigley presided at the suppression hearing.
President Judge Kathy A. Morrow presided at trial and sentencing. Judge
Morrow authored the court’s Pa.R.A.P. 1925(a) opinion.
4
Appellant presented the following three questions for review:
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lacked reasonable suspicion to conduct a traffic stop.5 In support, he argues
Trooper Roussell (1) pursued him and the other motorcyclist on a “hunch”
that they were involved in the fight at the bar, (2) did not observe him
commit a moving violation when following him, and (3) initially drove past
Did the officer have the requisite reasonable articulable
suspicion upon which to base the traffic stop of Appellant’s
motorcycle?
Did the police have sufficient reasonable articulable
suspicion to justify [Appellant’s] detention, and conduct a
D.U.I. investigation?
Did the officer possess valid probable cause to arrest
[Appellant]?
Appellant’s Brief at 6. However, Appellant set forth only one argument that
the trial court erred in finding reasonable suspicion to stop him and all
evidence should have been suppressed as “fruits of a poisoned tree.” Id. at
10-13. Therefore, we address Appellant’s first question presented, but not
the last two questions, which have been abandoned in this appeal. See
Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008).
5
We note the Commonwealth asserts the interaction between Appellant and
the Trooper was a “mere encounter” because Appellant voluntarily came to
stop at the intersection and the Trooper merely waved him over to where he
had stopped the other motorcycle. Commonwealth’s Brief at 5-6. However,
the Trooper had a marked police vehicle with its emergency lights activated.
Additionally, the Trooper commanded Appellant to “stay there” because he
was talking to the other motorcyclist, and positioned the two motorcycles so
he “could keep an eye on them.” N.T. at 10. There was no indication the
Trooper made his observations regarding Appellant’s odor or demeanor
before ordering him to remain at the scene of the stop and positioning his
vehicle. Therefore, we disagree with the Commonwealth’s characterization
of the underlying interaction as a mere encounter. See generally
Commonwealth v. Hill, 874 A.2d 1214, 1217, 1219 (Pa. Super. 2005)
(discussing mere encounter versus traffic stop requiring reasonable
suspicion).
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him and stopped the other motorcycle. Appellant’s Brief at 11. No relief is
due.
Our standard of review and the legal principles relevant to this appeal
are as follows:
[I]n addressing a challenge to a trial court’s denial of a
suppression motion [we are] limited to determining
whether the factual findings are supported by the record
and whether the legal conclusions drawn from those facts
are correct. Since the [Commonwealth] prevailed in the
suppression court, we may consider only the evidence of
the [Commonwealth] and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the record
supports the factual findings of the trial court, we are
bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
[Initially, we] observe that the forcible stop of a vehicle
constitutes an investigative detention such that there must
be reasonable suspicion that illegal activity is occurring. . .
.
Reasonable suspicion is a less stringent standard than
probable cause necessary to effectuate a warrantless
arrest, and depends on the information possessed by
police and its degree of reliability in the totality of the
circumstances. In order to justify the seizure, a police
officer must be able to point to specific and articulable
facts leading him to suspect criminal activity is afoot. In
assessing the totality of the circumstances, courts must
also afford due weight to the specific reasonable inferences
drawn from the facts in light of the officer’s experience and
acknowledge that innocent facts, when considered
collectively, may permit the investigative detention.
To have reasonable suspicion, police officers need not
personally observe the illegal or suspicious conduct, but
may rely upon the information of third parties, including
‘tips’ from citizens. Naturally, if a tip has a relatively low
degree of reliability, more information will be required to
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establish the requisite quantum of suspicion than would be
required if the tip were more reliable. This Court has
examined the requirements surrounding reasonable
suspicion for automobile stops emanating from information
provided by a tipster and has explained:
Reasonable suspicion, like probable cause, is
dependent upon both the content of information
possessed by police and its degree of reliability.
Both factors—quantity and quality—are considered in
the ‘totality of the circumstances—the whole picture,’
that must be taken into account when evaluating
whether there is reasonable suspicion. Thus, if a tip
has a relatively low degree of reliability, more
information will be required to establish the requisite
quantum of suspicion than would be required if the
tip were reliable.
* * *
Indeed, identified citizens who report their observations
of criminal activity to police are assumed to be
trustworthy, in the absence of special circumstances, since
a known informant places himself at risk of prosecution for
filing a false claim if the tip is untrue, whereas an unknown
informant faces no such risk. When an identified third
party provides information to the police, we must examine
the specificity and reliability of the information provided.
The information supplied by the informant must be specific
enough to support reasonable suspicion that criminal
activity is occurring. To determine whether the
information provided is sufficient, we assess the
information under the totality of the circumstances. The
informer’s reliability, veracity, and basis of knowledge are
all relevant factors in this analysis.
Commonwealth v. Washington, 63 A.3d 797, 802-03 (Pa. Super. 2013).
Instantly, the victim, while in the presence of Trooper Roussell,
identified the three motorcycles as being suspects in the underlying fight.
See id. Additionally, Appellant’s failure to stop when the Trooper signaled
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him at the bar and the manner in which he drove away from the bar
bolstered the Trooper’s belief that the two drivers were involved in the fight.
In light of these circumstances, we agree with the trial court that the
Trooper had adequate reasonable suspicion to stop Appellant’s motorcycle.
Accordingly, Appellant’s claim warrants no appellate relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2015
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