Com. v. Barringer, C.

J-S46012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CURTIS ANDREW BARRINGER, JR.
Appellant No. 3519 EDA 2013
Appeal from the Judgment of Sentence November 26, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003130-2013
BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 14, 2015
Appellant, Curtis Andrew Barringer, Jr., appeals from the November
26, 2013 judgment of sentence of three to six months in county prison,
imposed after the trial court found him guilty of driving under the influence
of alcohol (DUI).1 Appellant challenges the trial court’s denial of his pretrial
motion to suppress evidence of his intoxication on the basis that “the motor
vehicle stop and subsequent search of [Appellant] was without probable
cause or reasonable suspicion.” Appellant’s Omnibus Pre-Trial Motion,
8/28/13. After careful review, we affirm.
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1
75 Pa.C.S.A. § 3802(a)(1).
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The trial court made the following factual findings after a hearing on
Appellant’s suppression motion.
On March 19, 2013, Officer Matthew Bellucci of
the Media Borough Police Department was on duty in
a marked patrol vehicle.
While on duty, Officer Bellucci received a dispatch
call from delcom. The dispatch relayed that a 911
call was placed from John’s Bar, located at 116 S.
Monroe Street, Media, PA. The caller was silent but
the receiver could clearly hear one man telling
another to leave the bar.
Officer Bellucci arrived at John’s Bar within a
minute after he received the dispatch.
Upon Officer Bellucci’s arrival, he spoke with the
bartender and was advised that a black male known
as “Curtis” became intoxicated and unruly while in
the bar – yelling at patrons, screaming obscenities
and racial slurs, and refused to leave.
When the bartender told [Appellant] that he was
going to call the police, [Appellant] purchased
another beer and left the bar.
The bartender told Officer Bellucci that he
witnessed [Appellant] drive down Monroe Street in a
maroon Mercedes.
Officer Bellucci relayed this information to the
other responding officers. As they were standing
outside the bar, Officer Bellucci could clearly see a
maroon Mercedes parked approximately 100 yards
away, in the Wawa parking lot.
Based on the call, the information from the
bartender, and seeing a vehicle matching the
description only a few yards away, the officers drove
to the Wawa to investigate.
Officer Bellucci approached the maroon Mercedes
from the driver’s side. He clearly observed
[Appellant] sitting in the driver’s seat of the vehicle,
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with the engine on, staring straight ahead. In order
to get [Appellant’s] attention, Officer Bellucci
knocked on the window.
Officer Bellucci observed that [Appellant] had
bloodshot eyes, slurred speech, and his breath
smelled of alcohol whenever he spoke. [Appellant]
was very standoffish, did not want to answer
questions, and was making statements wholly
unrelated to what Officer Bellucci was asking.
When asked for his driver’s ID, [Appellant]
handed over a veteran’s registration card instead. It
took Officer Bellucci several attempts before
[Appellant] handed over his driver’s license.
Based on Officer Bellucci’s training, education,
and experience as a police officer, it was his opinion
that [Appellant] was under the influence of alcohol.
[Appellant] was asked to step out of his vehicle
and to take a breath test, which registered a .211.
[Appellant] refused to perform any field sobriety
tests, but Officer Bellucci observed that [Appellant]
was unsteady on his feet.
[Appellant] was then arrested for [DUI].
Trial Court Order, 9/19/13, at 1-3 (paragraph numbering and footnotes
omitted).
The trial court summarized the procedural history as follows.
On March 19, 2013, Appellant was arrested
and charged with driving under the influence []. On
August 28, 2013, counsel for [Appellant] filed an
omnibus pre-trial motion to suppress physical
evidence and to reduce bail.
[The trial c]ourt held a hearing on [Appellant’s]
omnibus pre-trial motion on September 1[7], 2013.
At the hearing, the Commonwealth presented
testimony from Officer Matthew Bellucci of the Media
Borough Police Department who was the arresting
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officer. After hearing testimony and argument, this
Court denied Appellant’s bail motion via Order on
September 18, 2013. [The trial c]ourt issued
Findings of Fact and Conclusions of Law on
September 19, 2013, denying Appellant’s motion to
suppress evidence.
On October 8, 2013, counsel for Appellant filed
another motion to reduce bail which [the trial c]ourt
granted on October 21, 2013. On October 21, 2013,
Appellant informed [the trial c]ourt he was no longer
represented by the Office of the Public Defender.
New counsel entered his appearance on behalf of
Appellant.
On November 26, 2013, [the trial c]ourt held a
non-jury [trial] and found Appellant guilty of [DUI].
Appellant was sentenced to … 3-6 months in
Delaware County Prison. [The trial c]ourt also
ordered that Appellant be immediately released from
prison because he had been incarcerated since March
20, 2013, which exceeded the sentence imposed.
On December 5, 2013, Appellant filed a timely
notice of appeal listing his trial counsel as his
appellate counsel. On December 19, 2013, [the trial
c]ourt received the Superior Court’s docketing
statement which also listed Appellant’s trial counsel
as counsel for Appellant. As a result, [the trial c]ourt
sent a request for a 1925(b) statement to trial
counsel on December 20, 2013. After issuing the
Order, trial counsel informed [the trial c]ourt that he
was not representing Appellant on appeal. [The trial
c]ourt advised trial counsel via letter correspondence
that his name was on the Superior Court docket so
he would have to file a motion to withdraw with the
Superior Court so that [the trial c]ourt could appoint
new counsel.
On January 6, 2014, trial counsel filed a
motion to withdraw with the Superior Court stating
that he was never retained to represent Appellant on
appeal and that Appellant was appealing against his
recommendations. A copy of the motion to withdraw
was not sent to [the trial c]ourt until January 24,
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2014. After receiving a copy of trial counsel’s
application to withdraw, [the trial c]ourt advised
Appellant via letter correspondence that he should
attempt to re-qualify for representation with the
Delaware County Office of the Public Defender.
On February 21, 2014, [the trial c]ourt
received an Order from the Superior Court granting
trial counsel’s motion to withdraw. [The trial c]ourt
advised the Superior Court via letter correspondence
that Appellant qualified with the Delaware County
Office of the Public Defender and that this Court
granted new counsel an extension of time to file a
1925(b) statement. Due to a delay in receiving the
notes of testimony, counsel asked for a second
continuance which [the trial c]ourt granted on April
4, 2014.
On June 3, 2014, Appellant filed his 1925(b)
statement raising the sole issue that [the trial c]ourt
erred in denying his motion to suppress. [The trial
c]ourt … adopts its reasoning set forth in its
[September 19, 2013] Findings of Facts and
Conclusions of Law[].
Trial Court Opinion, 6/6/14, at 1-4 (footnotes omitted).
On appeal, Appellant presents a single issue for our review.
Whether [the trial c]ourt erred in refusing to
suppress the fruits of the warrantless vehicle stop
because the seizing officer had no reasonable
suspicion to detain, nor probable cause to arrest
Appellant at the instant when the seizing officer
parked his patrol car behind Appellant’s vehicle. All
of the evidence was tainted by this violation. The
seizure violated Appellant’s United States and
Pennsylvania constitutional, statutory and common
law rights.
Appellant’s Brief at 8.
We are guided by the following principles in conducting our review of
Appellant’s issue.
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Our standard of review in addressing a
challenge to the denial of a suppression motion is
limited to determining whether the suppression
court’s factual findings are supported by the record
and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth
prevailed before 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 suppression
court’s factual findings are supported by the record,
we are bound by these findings and may reverse
only if the court’s legal conclusions are erroneous.
Where … the appeal of the determination of the
suppression court turns on allegations of legal error,
the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to
determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of
the courts below are subject to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations and
quotation marks omitted), cert. denied, Jones v. Pennsylvania, 131 S.Ct.
110 (2010).
Appellant challenges the legality of his detention by Officer Bellucci.
Resolution of this question is dependent upon the nature of the interaction.
The Fourth Amendment of the U.S.
Constitution and Article I, Section 8 of our state
Constitution protect citizens from unreasonable
searches and seizures. To safeguard this right,
courts require police to articulate the basis for their
interaction with citizens in increasingly intrusive
situations:
The first of these is a “mere encounter”
(or request for information) which need not be
supported by any level of suspicion, but carries
no official compulsion to stop or to respond.
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The second, an “investigative detention” must
be supported by a reasonable suspicion; it
subjects a suspect to a stop and a period of
detention, but does not involve such coercive
conditions as to constitute the functional
equivalent of an arrest. Finally, an arrest or
“custodial detention” must be supported by
probable cause.
Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.
Super. 2012) (citation omitted).
Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012), appeal
denied, 65 A.3d 413 (Pa. 2012). Appellant argues “there is not enough in
the record to establish reasonable suspicion for the investigatory stop.”
Appellant’s Brief at 16. Specifically, Appellant asserts that “the police, who
witnessed no wrongdoing, effected a detention based completely on hearsay,
[and] their suspicion was completely dependent on what the declarant, the
bartender, told them.” Id. at 12. Appellant contends that the bartender
testified that the Appellant did not show signs of intoxication, 2 such that “the
police had no reliable information on intoxication until after they seized upon
Appellant and his vehicle. They acted on a hunch and … hunches are a
credit to law enforcement, but do not equate to reasonable suspicion[.]” Id.
Appellant states, “[t]he police witnessed zero misconduct on the part of
Appellant at the time of the seizure. Here, the officer proceeded to arrest,
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2
Significantly, the bartender did not testify at the September 17, 2013
suppression hearing. There was only one witness at the suppression
hearing, Officer Matthew Bellucci, who was called by the Commonwealth.
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or at a minimum detain, Appellant by driving to his car and blocking
Appellant’s vehicle.” Id. at 15-16.
Our review of both the record and case law belies Appellant’s
argument, and comports with the trial court’s conclusion that Appellant was
subject to an investigative detention, not a custodial detention, based on
reasonable suspicion.
Media Borough Police Officer Matthew Bellucci was the only witness to
testify at the suppression hearing. Bellucci related that he “received a
dispatch from DelCom that they had received a 911 hang up call and open
line from John’s Bar and Grill. The call taker could overhear a subject on the
other end, asking another subject to leave the bar. Upon my arrival, I spoke
with the bartender, who stated he was the one who made the 911 call.”3
N.T., 9/17/13, at 23. Bellucci further testified that the bartender told him a
black male known as Curtis “became disorderly in the bar,” was asked to
leave, and drove off in a maroon Mercedes. Id. at 24-25.4 Bellucci then
saw a maroon Mercedes in the parking lot of a Wawa 100 yards away. Id.
at 26. When Bellucci approached Appellant, Appellant was “standoffish” and
____________________________________________
3
Although at the hearing Appellant’s counsel objected to Bellucci’s testimony
as hearsay, the trial court overruled the objection, stating, “It’s not being
offered for the truth of the matter asserted. It’s being offered to show why
the officer reacted the way he did, so overruled.” Id. at 25.
4
See footnote 2, supra.
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refused to answer questions. Id. at 27. Bellucci described the encounter as
follows.
[Appellant] had extremely red and bloodshot eyes.
When he was answering questions to us, he was
making unrelated statements, such as the white
devils brought down the twin towers. You know, we
had no authority over him. Things to that effect. He
slurred his speech as he spoke with us. So it was
my opinion, he was most likely under the influence
of alcohol, so we asked him to step from the vehicle
and perform some field sobriety tests for us. … He
did step out of the vehicle. He was asked to submit
to a portable breath test, preliminary breath test,
which he agreed to. It showed his BAC to be a .211.
I then asked him to perform two other field sobriety
tests, which he refused to do. As he was standing
there, he swayed as he stood. He was unsteady on
his feet. Again, as he spoke to me, more like yelled
– yelled at me, the odor of alcoholic beverage [was]
on his breath and it was pretty easy to detect the
more he spoke.
Id. at 28-29.
On cross-examination, Bellucci testified that after receiving the
dispatch, and going to the bar, he was “going to I.D. and get that person’s
side of what occurred in that bar.” Id. at 39. Bellucci conceded that
“depending on the information that we obtained once we made contact with
that subject, an arrest was possible.” Id. at 40. He stated that he
explained to Appellant that he had received a report of a disorderly subject
in a bar, and asked Appellant whether he had been at John’s Bar and Grill.
Id. at 48. Bellucci testified as follows.
And just based on reasonable suspicion, if a person
told me that a drunk disorderly subject just left his
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bar in a maroon Mercedes and I see a maroon
Mercedes operated by a black male, I’m going to put
two and two together and figure that this most likely
is the person I’m looking for.
Id. at 52.
Given the foregoing, the trial court denied Appellant’s suppression
motion on the basis that Bellucci possessed reasonable suspicion to detain
Appellant. The trial court concluded, “[a]fter speaking with the bartender,
Officer Bellucci had reason to believe that [Appellant] was driving under the
influence and that [Appellant’s] unruly behavior may still cause harm to the
public. Furthermore, seeing a car that matched the description only a few
yards away was reason to investigate further.” Order, 9/19/13, at 4, ¶ 10.
We agree with the trial court, and are not persuaded by Appellant’s
assertion that “there is not enough in the record to establish reasonable
suspicion for the investigatory stop.” Appellant’s Brief at 16.
Police must have reasonable suspicion that a person seized is
engaged in unlawful activity before subjecting that person to an investigative
detention. Commonwealth v. Cottman, 764 A.2d 595, 598 (Pa. Super.
2000). “Reasonable suspicion must be based on specific and articulable
facts, and it must be assessed based upon the totality of the
circumstances[.]” Commonwealth v. Williams, 980 A.2d 667, 671 (Pa.
Super. 2009) (internal quotation and citation omitted), appeal denied, 990
A.2d 730 (Pa. 2010). In determining whether reasonable suspicion exists,
police officers “need not personally observe the illegal or suspicious conduct,
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but may rely upon the information of third parties, including ‘tips’ from
citizens.” Commonwealth v. Barber, 889 A.2d 587, 593 (Pa. Super.
2005) (citation omitted).
We further note that pursuant to Pa.R.E. 104(a), a trial court, in
making its determination as to the admissibility of evidence in “preliminary
questions,” “is not bound by the rules of evidence except those with respect
to privileges.” See also Commonwealth v. Raab, 934 A.2d 695 (Pa.
2007). Thus, during the suppression hearing, the trial court, even though it
determined that Bellucci’s testimony was not hearsay, would have been
permitted to consider hearsay evidence.
From our review of the evidence presented at the suppression hearing,
we discern no error in the suppression court’s application of the law to the
facts of record. The information possessed by Bellucci was sufficient to
support his reasonable suspicion that Appellant, at the time of the detention,
had been drinking and engaged in unruly behavior. See Commonwealth v.
Anthony, 977 A.2d 1182, 1187 (Pa. Super. 2009) (holding reasonable
suspicion based on reliable information of third parties supplied to the police
justified interrogative detention); Commonwealth v. Korenkiewicz, 743
A.2d 958, 963-964 (Pa. Super. 1999) (holding where stop is based on third
party information, such information must be sufficiently specific and the
reliability of informant is relevant to that inquiry), appeal denied, 759 A.2d
383 (Pa. 2000). Accordingly, we conclude the trial court acted properly and
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within its discretion in denying Appellant’s suppression motion. We
therefore affirm the November 26, 2013 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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