Commonwealth v. Bathurst

288 A.3d 492

COMMONWEALTH of Pennsylvania

v.Gary L BATHURST, Jr., Appellant

No. 821 MDA 2022

Superior Court of Pennsylvania.

Submitted November 28, 2022

Filed January 6, 2023

Marc A. Decker, State College, for appellant.

Bernard F. Cantorna, District Attorney, Bellefonte, for Commonwealth, appellee.

Matthew F. Metzger, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.^*

OPINION BY MURRAY, J.:

Gary L. Bathurst (Appellant) appeals from the judgment of sentence entered after the trial court convicted him of driving under the influence of alcohol (DUI) (incapable of safe driving – first offense), DUI (blood alcohol concentration (BAC) between 0.08% and 0.10%) and DUI (high rate of alcohol – BAC between 0.10% and 0.16%).¹ After careful review, we affirm.

At 1:53 a.m. on October 10, 2020, Pennsylvania State Trooper Shane Eichelberger and Pennsylvania State Trooper Nathan Gordon were on routine patrol in a marked police cruiser in Centre County. While patrolling on North Eagle Valley Road, they observed a truck parked in a vehicle pull-off with its rear lights on. The troopers entered the pull-off and parked about 15 yards behind the truck.

Trooper Eichelberger exited the police cruiser and walked to Appellant's truck. As the trooper approached, Appellant rolled down the driver's side window and lowered the volume on the radio. The trooper immediately noticed the odor of alcohol coming from inside the truck. He further observed that keys were in the ignition and the engine was running. Additionally, Trooper Eichelberger saw an open case of beer in the rear of the truck, but no empty containers. When the trooper asked, Appellant at first denied that he had been drinking, but then admitted he had a couple of drinks at a local bar before driving to the pull-off. Because Appellant showed signs of intoxication, Trooper Eichelberger directed him to exit the truck. The troopers then administered field sobriety tests which Appellant failed. The troopers arrested Appellant for DUI and drove him to the hospital for a BAC test. The test revealed Appellant had a BAC of .114%, plus or minus .014%.

Appellant filed a pre-trial suppression motion. Following a hearing on January 3, 2022, the suppression court denied the motion. The case proceeded to trial, and the trial court convicted Appellant of the above charges. On April 14, 2022, the trial court sentenced Appellant to an aggregate six months of probation.² Appellant timely appealed. Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents two issues for review:

I. Whether the Suppression Court abused its discretion and erred as a matter of law in denying [Appellant's] motion to suppress all evidence and fruit of the poisonous tree, which was obtained as a result of the search and seizure at issue since the arresting officer's initial encounter with [Appellant] was, from its inception, an investigative detention that was not supported by reasonable suspicion?

II. Whether the evidence presented at [Appellant's] nonjury trial was insufficient to support the guilty verdicts for 75 Pa.C.S.A. § 3802(a)(1), 75 Pa. C.S.A. § 3802(a)(2), and 75 Pa. C.S.A. § 3802(b) since the Commonwealth failed to prove, beyond a reasonable doubt, that [Appellant] operated, or was in actual physical control of the movement of his motor vehicle after imbibing a sufficient amount of alcohol to render him incapable of safely driving, operating, or being in actual physical control of his motor vehicle?

Appellant's Brief at 7.

Appellant first argues that the trial court improperly denied his suppression motion. He asserts:

Trooper Eichelberger and Trooper Gordon's interaction with Appellant was, from its inception, an investigative detention unsupported by a reasonable articulable belief that Appellant had violated any provisions of the Motor Vehicle Code or that Appellant was engaged in criminal activity.

Id. at 17. Appellant challenges the court's reasoning based on Trooper Gordon not being in close proximity to Appellant "when analyzing the factor of police presence, which is necessary when evaluating police-citizen interaction." Id. at 24. Appellant claims Trooper Gordon was near him and his truck during Trooper Eichelberger's initial approach. Id. at 24-25. He states that the police cruiser was parked "a short distance" behind his truck. Id. at 25. According to Appellant, he "was surrounded by two uniformed State Troopers, who were shining their flashlights into his vehicle." Id. (footnote omitted). Appellant assails the suppression court's reliance on the troopers’ testimony that there were "no physical impediments that would have prevented Appellant from driving away[.]" Id. at 26. Appellant further challenges the suppression court's emphasis on Appellant rolling down his window without being asked to do so. Id. Appellant relies on Commonwealth v. Powell , 228 A.3d 1 (Pa. Super. 2020), where this Court found an investigative detention under similar circumstances. Id. at 26-27.

Appellant argues:

In the instant matter, the Suppression Court's conclusion ignores the fact that two uniformed state troopers pulled up behind Appellant's lawfully parked vehicle in their marked police units at 1:53 a.m., and proceeded to approach Appellant's vehicle on both sides, all while shining their flashlights in Appellant's vehicle. Under the totality of the circumstances, a reasonable citizen who was approached by multiple state troopers, with their full display of authority, would have felt compelled to believe that they had to roll down their window so that the trooper could engage with them, even without any direct commands to do so.

Id. at 27. Appellant claims the troopers effectuated an investigative detention unsupported by reasonable suspicion. Id. at 28. We disagree.

Our standard of review is well-settled:

When we review the ruling of a suppression court, we must determine whether the factual findings are supported by the record. When it is a defendant who appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.

Commonwealth v. Brame , 239 A.3d 1119, 1126 (Pa. Super. 2020) (citation and brackets omitted). Our scope of review is limited to the record developed at the suppression hearing, considering the evidence presented by the Commonwealth as the prevailing party and any uncontradicted evidence presented by the appellant. Commonwealth v. Fulton , 645 Pa. 296, 179 A.3d 475, 487 (2018).

There are three categories of encounters between citizens and the police:

(1) A mere encounter, (2) an investigative detention, and (3) custodial detentions. The first of these, a "mere encounter" (or request for information), need not be supported by any level of suspicion, but carries no compulsion to stop or respond. Second, an "investigative detention" must be supported by 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. Baldwin , 147 A.3d 1200, 1202 (Pa. Super. 2016) (citation omitted). Mere encounters need not be supported by any level of suspicion of illegality, but an investigative detention must be supported by reasonable suspicion of criminal activity. Commonwealth v. Adams , 651 Pa. 440, 205 A.3d 1195, 1200 (2019).

The line between mere encounters and investigative detentions is demarcated by an objective test known as the "free to leave" test. Id. ; see also Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ("So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ ... the encounter is consensual and no reasonable suspicion is required." (citation omitted)); Terry v. Ohio , 392 U.S. 1, 19, n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred."). The "free to leave" test "requires the court to determine ‘whether, taking into account all of the circumstances surrounding the encounter, the police conduct would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." ’ " Adams , 205 A.3d at 1200 (quoting Bostick , 501 U.S. at 437, 111 S.Ct. 2382 ).

We have explained:

To determine whether a mere encounter rises to the level of an investigatory detention, we must discern whether, as a matter of law, the police conducted a seizure of the person involved. To decide whether a seizure has occurred, a court must consider all the circumstances surrounding the encounter to determine whether the demeanor and conduct of the police would have communicated to a reasonable person that he or she was not free to decline the officer's request or otherwise terminate the encounter. Thus, the focal point of our inquiry must be whether, considering the circumstances surrounding the incident, a reasonable person innocent of any crime, would have thought he was being restrained had he been in the defendant's shoes.

Commonwealth v. Reppert , 814 A.2d 1196, 1201-02 (Pa. Super. 2002) (citations omitted).

In Powell , we concluded that officers had effectuated an investigative detention. Powell , 228 A.3d at 2. While on routine patrol at 11:37 p.m., Edinboro Police Officer William Winkler and a sheriff's deputy observed Ronald Powell's truck parked perpendicular to parking lines in a small public parking lot. Id. at 2. The...