J-S38033-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellant 

 v.

KATHERINE LEIGH PREUSSER, 

 Appellee 

: IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

: 

: 

: 

: 

: 

: 

: No. 18 EDA 2014 

Appeal from the Order Entered November 27, 2013, 

In the Court of Common Pleas of Delaware County, 

Criminal Division, at No. CP-23-CR-0002915-2013. 

BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ. 

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 23, 2014 

Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”), 

appeals from the order entered on November 27, 2013, that granted the 

suppression motion filed by Appellee, Katherine Leigh Preusser. We affirm. 

 The suppression court made the following findings of fact: 

1. Katherine Preusser, hereinafter “Defendant,” was arrested and 

charged with Possession of a Small Amount of Marijuana for 

Personal Use,1 Possession of Drug Paraphernalia,2 Corruption of 

Minors,3 and Furnishing Liquor to Minors4 relating to an incident 

that occurred on March 23, 2013 at approximately 11 p.m. [The 

arrest was conducted] by Trooper Jerrold Hatfield of the 

Pennsylvania State Police. 

1

 35 [P.S.] §780-113(a)(31). 

2 35 [P.S.] §780-113(a)(32). 

3

 18 Pa.C.S. §6301(a)(1)(i). 
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4

 18 Pa.C.S. §6310.1(A). 

2. On July 2, 2013, Defendant, through counsel, filed a Motion to 

Suppress, seeking to suppress all physical evidence, and 

statements from Defendant’s arrest.

3. On November 1, 2013, a Suppression Hearing was held on 

Defendant’s “Omnibus Pretrial Motion.”

4. Trooper Hatfield, a 51⁄2-year Patrol Trooper for Troop K Media 

Patrol Barracks of the Pennsylvania State Police, testified at the 

Suppression Hearing. (N.T. 11/1/13 p. 8). 

5. Trooper Hatfield testified that at approximately 11:00 p.m. on 

March 23, 2013, a Saturday night, he was on duty, in uniform, 

and operating a marked Pennsylvania State Police patrol vehicle. 

The Trooper was driving eastbound on Baltimore Pike in 

Middletown Township, Delaware County, Pennsylvania 

approaching the area of the Franklin Mint property. 

6. The Trooper observed a vehicle pulling suddenly from the 

right-hand lane of travel onto the shoulder and then into a 

driveway. The driveway leads to a business that has been closed 

“called the Lobster Pot.” The property has been the site of 

numerous break-ins since its closing. (N.T. 11/1/13 p. 9). 

7. Earlier in 2012, Trooper Hatfield handled a break-in at the 

Franklin Mint property which was approximately 75 yards from 

the Lobster Pot property and during that incident, scrap metal 

was stolen from the Franklin Mint Museum. There have been 

numerous incidents in the area, approximately 1-1⁄2 mile stretch 

along Baltimore Pike, wherein the buildings have been stripped 

of all their copper and scrap metal. The area has been posted 

with ‘no trespassing’ signs.5 (N.T, 11/1/13 pp. 8-12). 

5 There was a videotape of the Trooper’s stop of 

Defendant’s vehicle and it was admitted into 

evidence without objection as DS-1, (N.T. 11/1/13 

p.105).[1]

 

1

 The video recording of this incident was not included in the certified record, 

and therefore, we did not consider it in rendering our decision. See 
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8. The Defendant’s vehicle pulled into a driveway that led to a 

building at the end of the driveway. The building was the site of 

a former business called the “Lobster Pot”. The Trooper testified: 

“as soon as I saw the vehicle attempt to go up the driveway, I 

activated the lights and siren of my vehicle and pulled behind it.”

(N.T. 11/1/13 p. 13). As the vehicle attempted to travel down 

the driveway, once the Trooper positioned his vehicle behind it, 

the vehicle attempted to back down the driveway towards the 

shoulder of the highway. Then, Trooper Hatfield stopped his car, 

exited and approached the vehicle. The Trooper made a driverside approach of the vehicle and asked the driver for his license, 

registration and insurance. 

9. The driver was a Minor, who produced a Pennsylvania Junior 

Learner’s Permit. The Permit does not allow the new driver to 

operate a vehicle after 11 p.m. (N.T. 11/1/13 pp. 13-15). The 

Minor-driver told Trooper Hatfield that they pulled over because 

his license had expired and the Defendant was going to begin 

driving. (N.T. 11/1/13 p. 39). Trooper Hatfield questioned the 

Minor about his whereabouts that evening. The Minor replied 

that he was coming from the Granite Run Mall Movie Theater and 

that his home was in Folsom, Pennsylvania. If he had left the 

Movie Theater and headed directly home he was coming from 

the wrong direction. The Trooper asked him what movie he had 

seen and he replied “The Last Oz” (N.T. 11/1/13 pp. 17-18). 

10. At that point, he asked the Defendant, the front-seat 

passenger, to step out of the vehicle. As the Defendant stepped 

out of the vehicle, Trooper Hatfield observed “two open beer 

cans between the passenger seat and the door, so when she

opened the door they were still lying next to the seat.” (N.T. 

11/1/13 p. 16). The Defendant told the Trooper that they had 

seen a romantic comedy movie in Chadds Ford, Pennsylvania, 

but she did not recall the name of the movie. (N.T. 11/1/13 p. 

17). When the Defendant was asked what her relationship was 

to the driver, she replied that she was a friend of the driver’s 

 

Commonwealth v. Edwards, 71 A.3d 323, 324 n.1 (Pa. Super. 2013) 

(stating that an appellate court is limited to considering only those facts 

which have been duly certified in the record on appeal and, for purposes of 

appellate review, what is not of record does not exist). 
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mother through a school connection. (N.T. 11/1/13 p. 18). She 

told the Trooper the vehicle was hers. “She said it was registered 

to her ex and it was in the process of being transferred over to 

her.” (N.T. 11/1/13 p. 19).

11. A third person, a Minor female, was in the rear seat of the 

car. She was asked to exit the vehicle. She provided the Trooper 

with her Ridley High School identification card and told the 

Trooper that she was 17 years old. Trooper Hatfield questioned 

her about her whereabouts that evening. She replied that they 

were coming from the Granite Run AMC Theater and that they 

had just seen the movie “The Last Aw, not the Last Oz.” (N.T. 

11/1/13 p. 19). The Trooper testified that she smelled of alcohol. 

He gave her a PBT, [portable] breath test, and her reading was 

.022, indicating that she tested positively for some consumption 

of alcohol. 

12. At this point, the Defendant was arrested, taken into custody 

and a tow was called for the vehicle. The Defendant was arrested 

for Furnishing Alcohol to Minors. A search of the vehicle located: 

a small amount of marijuana in the glove box, a water bong 

behind the driver’s seat, two cold beer cans located beside the 

passenger seat, and a partially consumed beer that was located 

in the rear seat compartment.6 A search was conducted because 

it was police department policy that when a vehicle was towed it 

must be checked for valuables or contraband. (N.T. 11/1/13 pp. 

22-23). 

6 The Trooper’s search of the vehicle also located 

some unidentified pills in the trunk. However, they 

were sent to the lab, and they came back “as not a 

controlled substance” allergy pills. (N.T. 11/1/13 p. 

45). 

13. Trooper Hatfield testified on cross-examination that he did 

not get any 911 calls, or radio calls about burglaries on 

Baltimore Pike on the evening of March 23, 2013. He did not get 

any radio calls about burglaries at the former Lobster Pot on 

Baltimore Pike that night. (N.T. 11/1/13 p. 25). He did not get 

any calls about a silver, Toyota Corolla (a description of the 

Defendant’s vehicle) on that evening. When Trooper Hatfield first 

observed the Defendant’s vehicle it was approximately 3 to 4 car 
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lengths ahead of his vehicle and it was traveling within the speed 

limit. (N.T. 11/1/13 p. 27). The driveway that the Toyota 

entered contained a brick entrance-way within the first car 

length of the driveway. There was a ‘no trespassing’ sign posted 

on the brick entrance-way for that driveway that may not have 

been visible from Baltimore Pike but would be visible once the 

vehicle was stopped in the driveway. (N.T. 11/1/13 pp.29-30). 

The Trooper testified that this area of Baltimore Pike is not very 

well lit. (N.T, 11/1/13 p. 31). 

14. When Trooper Hatfield first observed the Defendant’s 

Toyota, it made an abrupt lane change from its lane onto the 

shoulder and into the driveway. The vehicle was approximately 

one or two car lengths away, when the Trooper activated his 

spotlight. The Toyota stopped within one car length of the 

driveway. As soon as the vehicle pulled into the driveway, the 

Trooper activated his lights and pulled in behind it. Once the 

Trooper had pulled in behind the Defendant’s vehicle, the vehicle 

was not free to leave. “Q. So at this point do you feel that this 

Corolla is free to leave and just back out away from your car? A. 

No.” (N.T. 11/1/13 p. 33); (N.T. 11/1/13 pp. 25-31). 

15. The Trooper testified that he pointed his flashlight at the 

Minor-driver and asked him to step out of the vehicle. The Minor 

had a Junior Driver’s license, which does not allow the new 

driver to drive after 11 p.m. The Minor told the Trooper that the 

reason they pulled the vehicle over was due to his license 

expiring, the Defendant was going to begin driving. (The 

Defendant had a nonrestricted license). The stop occurred just 

after 11 p.m. The Trooper asked the driver if he had been 

drinking and he replied that he had not. When the Trooper made 

initial contact with the Minor-driver his eyes appeared bloodshot. 

The Trooper administered a PBT, portable breath test, to him 

and it indicated that he had not been drinking that night. (N.T. 

11/1/13 p. 43). 

16. Subsequently, the Trooper walked to the passenger-side 

front door and asked the Defendant to exit the vehicle. She 

complied. “At the moment she opened the door, that’s when I 

was able to observe the beer cans.” (N.T. 11/1/13 p. 37).
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17. The Trooper testified that he was never in fear for his own 

safety during the traffic stop. (N.T. 11/1/13 p.40). The 

Defendant was an adult female and the driver was a male and 

the rear-passenger was a female, both 17-year-old Minors. 

18. The Defendant never gave the Trooper consent to search the 

vehicle or trunk, nor did he ever obtain a warrant to search the 

vehicle or trunk. (N.T. 11/1/13 p.41). 

19. At the Suppression Hearing, as the parties viewed the 

videotape of the incident, the parties agreed that: “...the vehicle 

was about a car length up the driveway prior to the illumination 

of the vehicle.” (N.T. 11/1/13 p.55). As the parties continued to 

view the videotape the Trooper testified as follows: 

Q. You put your lights on, the car begins to back up. 

And you’re telling this Court that at this point with

your lights on with the torch illuminating the interior 

of this vehicle this car is trying to back out and 

you’re directly behind him but this vehicle is free to 

leave? A. It was not free to leave... He physically 

could have... Q. They’re not from a legal standpoint 

free to leave, correct? A. Correct. Q. Even if they 

could physically through some fancy maneuvering 

get around you? A. Correct. Q. At this point you’ve 

observed no violations of the motor vehicle code, 

right? A. Correct. (N.T. 11/1/13 pp. 55-57). 

[20]. The Trooper also testified that he had no radio calls that 

night that this car had committed any crimes. The last incident 

that he had handled with respect to a crime committed in the 

area, which was about 75 yards from the Lobster Pot property, 

was in 2012. (N.T. 11/1/13 p.57). 

Suppression Court Order, 11/27/13, at 1-5.

 Based on these findings the suppression court concluded that Trooper 

Hatfield lacked reasonable suspicion to stop Appellee’s vehicle and conduct 
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an investigatory detention. Suppression Court Order, 11/27/13, at 8. The 

Commonwealth filed a timely appeal.2

 On appeal, the Commonwealth raises the following issues for this 

Court’s consideration:

Did the trial court err by granting [Appellee’s] motion to 

suppress the evidence? 

1. Did the trial court err by concluding as a matter of

law that the police lacked reasonable suspicion to 

believe that criminal activity was afoot? 

2. Did the trial court err by concluding as a matter of

law that the police obtained all evidence as a result 

of the purported unconstitutional investigative 

detention and, pursuant to Wong Sun[3] and the fruit 

of the poisonous tree principle, the evidence should 

be suppressed? 

The Commonwealth’s Brief at 1.4

We begin by setting forth our standard and scope of review: 

When the Commonwealth appeals from a suppression 

order, this Court may consider only the evidence from the 

 

2

 The Commonwealth may appeal from an order that does not end the entire 

case if it certifies in its notice of appeal that the order will terminate or 

substantially handicap the prosecution. Commonwealth v. Lark, 91 A.3d 

165, 166 n.1 (Pa. Super. 2014); Pa.R.A.P. 311(d). The Commonwealth 

included this certification in its notice of appeal. Notice of Appeal, 12/18/13. 

3 Wong Sun v. United States, 371 U.S. 471, 488 (1963) (which stands for 

the proposition that “if evidence is recovered as a result of exploitation of 

primary illegality, evidence must be suppressed as fruit of poisonous tree.”).

4

 The argument portion of the Commonwealth’s brief combines these issues 

into one discussion. Because these issues are interrelated, we shall address 

the Commonwealth’s claims of error concurrently as well.
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defendant’s witnesses together with the evidence of the 

prosecution that, when read in the context of the record as a 

whole, remains uncontradicted. In our review, we are not bound 

by the suppression court’s conclusions of law, and we must 

determine if the suppression court properly applied the law to 

the facts. We defer to the suppression court’s findings of fact 

because, as the finder of fact, it is the suppression court’s 

prerogative to pass on the credibility of the witnesses and the 

weight to be given to their testimony. 

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014) 

(citations omitted). 

 At the outset, we note that there are three distinct levels of interaction 

between law enforcement and the general public. The first level is the mere 

encounter, which need not be supported by any level of suspicion, but which 

carries no official compulsion to stop or respond. Commonwealth v. 

Clinton, 905 A.2d 1026, 1030 (Pa. Super. 2006). The second level is the 

investigative detention, which must be supported by reasonable suspicion. 

Id. Finally, the third level is an arrest or custodial detention, which must be 

supported by probable cause. Id.

At issue in the case at bar is whether there was reasonable suspicion 

to conduct the investigative detention. In defining “reasonable suspicion,” 

this Court has explained: 

Reasonable suspicion requires a finding that based on the

available facts, a person of reasonable caution would believe the 

intrusion was appropriate. 

Reasonable suspicion exists only where the officer is 

able to articulate specific observations which, in 

conjunction with reasonable inferences derived from 
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those observations, led him reasonably to conclude, 

in light of his experience, that criminal activity was

afoot and that the person he stopped was involved in 

that activity. Therefore, the fundamental inquiry of 

a reviewing court must be an objective one, namely, 

whether the facts available to the officer at the 

moment of intrusion warrant a [person] of 

reasonable caution in the belief that the action taken

was appropriate. 

Commonwealth v. Chambers, 55 A.3d 1208, 1215 (Pa. Super. 2012). “If 

either the initial stop or the search is found to be unreasonable, the remedy 

is to exclude the evidence derived from the illegal government activity as 

fruit of the poisonous tree.” Commonwealth v. Simmons, 17 A.3d 399, 

403 (Pa. Super. 2011); Wong Sun, 371 U.S. at 488. 

 Here, the Commonwealth argues that the suppression court applied an 

improper legal analysis to the evidence presented. The Commonwealth’s 

Brief at 19. The Commonwealth claims that the suppression court did not 

properly consider the totality of the circumstances. Id. at 20-22. 

Additionally, the Commonwealth argues that when the evidence is viewed 

through the eyes of an experienced police officer, reasonable suspicion was 

established. Id. We disagree. 

 The suppression court considered the totality of the circumstances and 

correctly applied the proper standard and legal analysis relevant to 

investigative detentions. We reiterate that the record reveals that Trooper 

Hatfield saw a vehicle abruptly leave the roadway on a dimly lit street near 

an area where there had been vandalism the previous year, and the trooper 
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conceded that no motor vehicle violation was observed. While the trooper 

could have approached the vehicle to check on the safety of the occupants, 

or in an attempt to discern the occupants’ intentions, as a mere encounter 

where the occupants of the car would have been free to leave, the trooper 

instead activated his emergency lights and seized the vehicle prior to any 

indication of criminality.5

 There is no support for the Commonwealth’s 

position that the trooper was reasonable in his conclusion that criminal 

activity was afoot. As noted above, this Court is cognizant that the totality 

of the circumstances and the police officer’s experience factor into the 

determination as to when reasonable suspicion exists. Chambers, 55 A.3d 

at 1215. However, the evidence on the record before us reveals only that 

the trooper had a hunch that the occupants of this car may have intended to 

vandalize property in the area. Pursuant to our standard of review, we 

discern no error and conclude that the suppression court was correct in its 

conclusion. 

 Moreover, because we conclude that the suppression court was correct 

in finding that the initial stop of the car was illegal, the subsequently 

discovered evidence was correctly suppressed as fruit of the poisonous tree. 

Simmons, 17 A.3d at 403; Wong Sun, 371 U.S. at 488. Accordingly, we 

 

5

 Trooper Hatfield testified that Appellee and the occupants of the vehicle 

were not free to leave. N.T., 11/1/13, at 33. 
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conclude that the Commonwealth is entitled to no relief on appeal, and we 

affirm the suppression court’s order.

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/23/2014