Com. v. Thran, B.

J-S84041-17
2018 PA Super 106COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN LEE THRAN :
:
Appellant : No. 1155 MDA 2017
Appeal from the Judgment of Sentence July 3, 2017
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006925-2016
BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.
OPINION BY OTT, J.: FILED MAY 02, 2018
Brian Lee Thran appeals from the judgment of sentence imposed on July
3, 2017, in the Court of Common Pleas of York County, following his conviction
at a bench trial on four counts of driving under the influence (DUI).1 In this
timely appeal, Thran argues the trial court erred in failing to suppress the
physical evidence. Thran asserts said evidence was improperly obtained after
he was subjected to an investigative detention that was not supported by a
reasonable suspicion of criminal activity. After a thorough review of the
submissions by the parties, relevant law, and the certified record, we affirm.
____________________________________________
1 The main count, Count 4, was DUI: Highest Rate of Alcohol (BAC .16+), 2nd
Offense, 75 Pa.C.S. § 3802(c). All counts were under various subsections of
Section 3802. Thran was sentenced to five years of intermediate punishment,
the first year of which to be served in the York County Prison. We note that in
addition to having a blood alcohol content (BAC) of .184, the chemical analysis
of his blood also indicated Thran had trace amounts of morphine (51 ng/mL)
and oxycodone (34 ng/mL).
J-S84041-17
The underlying facts of this matter are taken from the trial court opinion
dated September 29, 2017 and the notes of testimony of the suppression
hearing held on February 17, 2017.
On September 17, 2016, Northern York County Regional Police Officer
(NYCRP) Patrick McBreen was working the night shift. N.T. at 5-6.
At 2304 hours (11:04 p.m.), a call was made to York County
Control from a named citizen (Justin Baugherman).[2] The call was
dispatched to the Officer and the following information was
obtained from the caller:
 Mr. Baugherman observed a male riding a black Harley
Davidson motorcycle; and
 The male was wearing a black leather jacket; and
 The motorcycle was swerving all over the road and
passing over the white line; and
 The motorcycle was traveling north on Orchard Road,
made a right onto Lincoln Highway, and pulled into
Hartlob’s Garage at the corner of Orchard Road and
Lincoln Highway on Rt. 30; and
 Mr. Baugherman made the call to 911 because he was
concerned for the individual’s safety.
The Officer arrived at the location provided by the caller (Hartlob’s
Garage) only eight (8) minutes after receiving the call. The Officer
observed a black Harley Davidson motorcycle, and a male wearing
a black leather jacket leaning on the motorcycle. Hence, the
location given in the call, the description of the vehicle, and the
description of what the individual was wearing were all
corroborated. The Officer further testified that he had a duty to
____________________________________________
2 The notes of testimony and trial court opinion indicate the witness’s name is
Baugherman. However, the certified record indicates the name is actually
Justin Wagaman. It appears Mr. Wagaman, and his wife, were subpoenaed
to appear at the trial before the District Justice. See NYCRPD Witness List.
-2-
J-S84041-17
investigate and therefore approached [the driver of the vehicle].
Officer McBreen could not recall whether he had activated his
overhead lights, but he indicated they may have been on.
Trial Court Opinion at 2-3 (citations to N.T. omitted).
We further note that Officer McBreen testified the garage was closed
and there were no other cars around at time of his interaction with Thran.
N.T. at 30.
The standard of review for an order denying a suppression motion is as
follows:
In reviewing the denial of a suppression motion, our role is to
determine:
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, as here, 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, 605 Pa. 188, 988 A.2d 649, 654
(2010) (internal quotations and citations omitted). Our scope of
review is limited to the evidence presented at the suppression
hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073, 1080 (2013).
Commonwealth v. Mackey, 177 A.3d 221, 226 (Pa. Super. 2017).
-3-
J-S84041-17
Because this matter also involves a claim of improper search and
seizure, we also consider the factors that delineate the differences
between a mere encounter and an investigative detention.3
The investigation of possible criminal activity invariably brings
police officers in contact with members of the public. Depending
on the circumstances, a police-citizen encounter may implicate the
liberty and privacy interests of the citizen as embodied in both the
federal constitution, see U.S. Const. art. IV, and our state
constitution, see Pa. Const. art. I, § 8. The law recognizes three
distinct levels of interaction between police officers and citizens:
(1) a mere encounter; (2) an investigative detention, often
described as a Terry stop, see Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968); and (3) a custodial detention.
See Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super.
2005).
“A mere encounter can be any formal or informal interaction
between an officer and a citizen, but will normally be an inquiry
by the officer of a citizen. The hallmark of this interaction is that
it carries no official compulsion to stop or respond,”
Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super.
2000)(internal citations and quotations omitted), and therefore
need not be justified by any level of police suspicion.
Commonwealth v. Polo, 563 Pa. 218, 759 A.2d 372, 375
(2000).
“In contrast, an ‘investigative detention’ ... carries an official
compulsion to stop and respond .... Since this interaction has
elements of official compulsion it requires reasonable suspicion of
unlawful activity.” DeHart, 745 A.2d at 636. In addition, while
reasonable suspicion of unlawful activity is sufficient to justify a
forcible stop, it does not necessarily justify a frisk for weapons.
See Commonwealth v. Davis, 102 A.3d 996, 999 (Pa. Super.
2014) (“A Terry frisk is a type of investigative detention requiring
reasonable suspicion that criminal activity is afoot and that the
individual whose suspicious behavior he is investigating at close
____________________________________________
3 The third level of interaction between the police and a citizen, custodial
detention, is not at issue. Therefore, we need not relate the law as it applies
to that interaction.
-4-
J-S84041-17
range is armed and presently dangerous to the officer or to
others.”) (internal quotation marks omitted, emphasis added).
Only when the officer reasonably believes the suspect may be
armed and dangerous is a weapons frisk appropriate. See
Commonwealth v. Pinney, 474 Pa. 210, 378 A.2d 293, 296
(1977)(“[I]n the case of a self-protective search for weapons, a
police officer must be able to point to particular facts from which
he could reasonably infer that the individual was armed and
dangerous.”).
Id. at 226-27 (footnotes omitted) (emphasis in original).
Thran argues that he was subjected to an investigative detention at the
time Officer McBreen turned on his overhead emergency lights. Further, the
tip Officer McBreen responded to was insufficient to support the investigative
detention.
We begin by noting that the trial court did not make a specific factual
finding that Officer McBreen activated his overhead emergency lights. As
quoted above, the trial court noted that Officer McBreen indicated his lights
might have been on. However, we accept that the lights were activated as a
fact because the trial court’s analysis does not address the scenario where the
lights were not activated. All parties agree that if Officer McBreen did not
activate his overhead emergency lights, the encounter between Thran and
Officer McBreen would have been a mere encounter and the suppression of
evidence would not be warranted. If the trial court determined that the
overhead emergency lights had not been activated, the trial court would have
simply resolved the matter on those grounds. Because the trial court did not
-5-
J-S84041-17
do so, and fully analyzed the issue under the premise that the overhead
emergency lights were activated, we accept that as a fact.
Whether the overhead emergency lights were activated is important
because case law on this issue has changed from the time of the suppression
hearing to today.4 In November, 2017, our Supreme Court issued its decision
in Commonwealth v. Livingstone, 174 A.3d 609 (Pa. 2017). In that
decision, the Supreme Court held that when the police activate the overhead
emergency lights, no reasonable person would believe he or she was free to
leave. Accordingly, the person is subject to an investigative detention when
the lights are activated. Specifically, Livingston stated:
It is undeniable that emergency lights on police vehicles in this
Commonwealth serve important safety purposes, including
ensuring that the police vehicle is visible to traffic, and signaling
to a stopped motorist that it is a police officer, as opposed to a
potentially dangerous stranger, who is approaching. See
Johonoson, 844 A.2d at 562. Moreover, we do not doubt that a
reasonable person may recognize that a police officer might
activate his vehicle's emergency lights for safety purposes, as
opposed to a command to stop. Nevertheless, upon consideration
of the realities of everyday life, particularly the relationship
between ordinary citizens and law enforcement, we simply cannot
pretend that a reasonable person, innocent of any crime, would
not interpret the activation of emergency lights on a police vehicle
as a signal that he or she is not free to leave.
Id., 174 A.3d at 621.
____________________________________________
4 The issue of overhead emergency lights was raised at the suppression
hearing and has been preserved throughout the course of this appeal.
Accordingly, Thran is entitled to the application of developing case law on the
issue.
-6-
J-S84041-17
After citing relevant portions of the Pennsylvania Driver’s Manual and
Motor Vehicle Code, our Supreme Court continued:
The fact that motorists risk being charged with violations of the
Motor Vehicle Code if they incorrectly assume they are free to
leave after a patrol car, with its emergency lights activated, has
pulled behind or alongside of them further supports our conclusion
that a reasonable person in Appellant's shoes would not have felt
free to leave.
Id. at 622.5
Accordingly, pursuant to Livingstone, once Officer McBreen activated
his overhead emergency lights, Thran was subjected to an investigatory
detention. We must now examine whether that detention was supported by
a reasonable suspicion of criminal activity. If so, then the detention was
justified and Thran’s argument is unavailing.
Here, the police received a phone tip from an identified caller. The caller
reported that he was witnessing erratic driving that placed, minimally, that
driver in jeopardy. Additionally, the description of the motorcycle’s actions
provided ample suspicion of impaired driving. The caller provided a
description of the driver and specifically identified the type of motorcycle being
operated. Finally, the caller informed the police where this erratic driving was
taking place and where the motorcycle had driven. Upon arriving at the
____________________________________________
5It appears that Livingstone has overruled sub silencio Commonwealth v.
Johonoson, 844 A.2d 556 (Pa. Super. 2004) and subsequent cases such as
Commonwealth v. Conte, 931 A.2d 690 (Pa. Super. 2007) and
Commonwealth v. Kendall, 976 A.2d 503 (Pa. Super. 2009).
-7-
J-S84041-17
location identified by the caller a mere eight minutes following the call, Officer
McBreen witnessed the identified brand of motorcycle and, there being no
other people nearby,6 the presumed driver. The driver was wearing a leather
jacket as described by the caller. The trial court noted that Officer McBreen
corroborated all the information provided by the caller.
The trial court relied upon Commonwealth v. Collazo, 692 A.2d 1116(Pa. Super. 1997), in support of its holding that the tip from the identified
caller provided Officer McBreen with the reasonable suspicion sufficient to
justify the investigative detention. We agree.
The court noted that an officer need not personally observe
suspicious activity in order to conduct an investigatory stop under
Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
“Identified citizens who report their observations of criminal
activity to police are assumed to be trustworthy, in the absence
of special circumstances.” [In the Interest of] S.D., supra [479
Pa. Super. 576] at 580, 633 A.2d [172] at 174. Further, the stop
in S.D. was supported by the relevant factors to be considered in
such cases, namely, the specificity of the description, the
proximity of the crime to the sighting of the suspect, the time and
place of the confrontation and the nature of the offense. Id.Here, Officer LaCombe received a face-to-face citizen's complaint
of a crime in progress. When he promptly arrived at the location,
the officer observed appellant, matching exactly the detailed
description given by the citizen. Officer LaCombe then approached
appellant and began speaking with him about the information he
had received. Under the authority of S.D., the initial stop and
questioning of appellant was proper. See also Commonwealth
v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978) (victim and eyewitness
information regarding the commission of a crime sufficient to
establish probable cause); Commonwealth v. Hamme, 400
Pa.Super. 537, 583 A.2d 1245 (1990)(police can rely on
____________________________________________
6 Additionally, there were no other vehicles. N.T. at 30.
-8-
J-S84041-17
“information from other officers or citizen witnesses;” officer made
valid Terry stop based on other officer's observation of suspect's
erratic driving).
We caution that the authority of a police officer in these
circumstances is limited. He or she is permitted only to “approach
and briefly detain” a potential suspect “for investigatory
purposes.” Commonwealth v. Arch, 439 Pa.Super. 606, 654
A.2d 1141, 1143 (1995). In Arch, this court noted that while an
officer is prohibited from relying on an “unparticularized suspicion”
or a “hunch” as a basis for a Terry stop, he or she may rely on a
police radio broadcast if the suspect matches the specific
description given by the individual who reported the crime. Id. at
612-14, 654 A.2d at 1144 (citing Commonwealth v. Prengle,
293 Pa.Super. 64, 437 A.2d 992 (1981)).
Conversely, a “common report” is insufficient to support an
investigatory stop. In Commonwealth v. Williams, 298
Pa.Super. 466, 444 A.2d 1278 (1982), neighborhood residents
informed a police officer that a particular individual was a known
“bicycle thief” who had in his possession some bicycles he had
stolen. When the officer later saw the individual riding a bike, he
made a Terry stop to investigate the matter. This court held that
the information from the citizens was insufficient to cause the
officer to believe that criminal activity was afoot. The lack of a
specific crime report was fatal in Williams.
A detailed citizen's report of a specific crime in progress is
appropriately addressed by a prompt investigatory stop;
general information to police about a person who has broken the
law in the past is not. Further, the intrusion of which appellant
complains is not overly burdensome since, as in all Terry stops,
the “suspect's expectation of privacy is not sufficiently infringed
by the minimal intrusion attendant to an investigatory stop.”
Commonwealth v. Epps, 415 Pa.Super. 231, 608 A.2d 1995,
1096 (1992).
Commonwealth v. Collazo, 692 A.2d at 1118-19 (emphasis added).
We believe that the instant facts are sufficiently similar to Collazo.
Therefore, we find that Officer McBreen possessed a reasonable suspicion of
criminal activity that supported the investigative detention. Because the
-9-
J-S84041-17
investigative detention was proper, Thran’s argument is unavailing and he is
entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/2/2018
- 10 -