J-S17019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

SHARON LYNN CORONA,

Appellee No. 661 WDA 2014

Appeal from the Order March 20, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0013881-2013

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 10, 2015

The Commonwealth appeals from the trial court’s order granting the 

motion filed by Appellee, Sharon Lynn Corona, to suppress evidence 

obtained following her interaction with police after she was approached by 

an officer while in her parked automobile. We affirm.1

The suppression court summarized the factual background of this case 

as follows:

On July 3, 2013, Plum Borough Police Officer Daniel Moriarty was 

on routine patrol in uniform in a marked vehicle. (T.T.)1at 4. 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.

1 We note that on February 10, 2015, Appellee filed a motion to suspend 

consideration before the panel and nunc pro tunc request for extension of 

time to file her appellate brief. Appellee filed her appellate brief on March 4, 

2015. Accordingly, said request is denied as moot.
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Officer Moriarty was driving west on Saltzburg Road at 

approximately 2:30 a.m. when he noticed a car with its lights on 

parked in the parking lot of a local business. (T.T.) at 4 and 20. 

The car was completely off the road pulled off into that parking 

lot. (T.T.) at 12 and 20-21. The officer thought it had to be 

investigated because it was odd that a car was stopped at that 

location. (T.T.) at 5. Officer Moriarty passed the vehicle and 

then backed up his vehicle and put his window down to speak 

with the driver and ask what she was doing. (T.T.) at 4, 5. The 

driver, [Appellee], stated she was waiting for someone. (T.T.) at 

5. Officer Moriarty noticed slurred speech on the driver and 

decided to have a conversation with her. (T.T.) at 6. Officer 

Moriarty does not recall which words were slurred in his very 

brief conversation with [Appellee] and based his observation of 

slurred speech on one sentence. (T.T.) at 23. Officer Moriarty

did not observe [Appellee’s] vehicle in operation, nor did he 

observe a motor vehicle code violation. (T.T.) at 24. At that 

point the Officer told [Appellee] to “hang on” and exited his 

vehicle to further investigate. (T.T.) at 6.

1 T.T. refers to the Trial Transcript of March 20, 

2014, followed by the page number.

After the Officer exited his vehicle[, Appellee] once again 

stated she was waiting for someone. (T.T.) at 7. The person 

she was waiting for drove by as they were speaking with each 

other. (T.T.) at 7. Officer Moriarty later noticed glassy eyes and 

an odor of alcohol on [Appellee’s] breath. (T.T.) at 7. Shortly 

after that, a person did call [Appellee] on her cell phone and [the 

call] then came through on [Appellee’s] Blue Tooth in her 

vehicle. (T.T.) at 8. After the phone call, Officer Moriarty asked 

[Appellee] to exit the car and perform field sobriety tests. (T.T.) 

at 9. After administering the field sobriety tests, the officer 

determined [Appellee] was intoxicated. (T.T.) at 12. 

Subsequently, he placed [Appellee] in handcuffs and under 

arrest. (T.T.) at 14.

Trial Court Opinion, 10/6/14, at 1-2.

On December 16, 2013, Appellee was charged with two counts of 

driving under the influence. On February 18, 2014, Appellee filed a motion 

to suppress. The trial court held a suppression hearing on March 20, 2014. 
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At the conclusion of the hearing, the trial court granted Appellee’s motion to 

suppress. The Commonwealth then filed this timely appeal on April 21, 

2014.2, 3

The Commonwealth presents the following issue for our review:

1. Whether the suppression court erred in finding that the police 

officer’s actions and statements rendered the instant 

encounter a seizure that was not supported by either 

reasonable suspicion or probable cause?

Commonwealth’s Brief at 7.

The Commonwealth argues that the trial court erred in granting 

Appellee’s motion to suppress. The Commonwealth contends that the 

interaction between the police officer and Appellee was a mere encounter 

because he did not give any commands or take any action that would have 

indicated to a reasonable person that she was not free to leave. The 

Commonwealth posits that the encounter did not escalate into an 

investigatory detention until after the officer approached Appellee and 

____________________________________________

2 We note that the Commonwealth needed to file its appeal by Monday, April 

21, 2014 because April 19, 2014 was a Saturday. See 1 Pa.C.S. § 1908 

(stating that, for computations of time, whenever the last day of any such 

period shall fall on Saturday or Sunday, or a legal holiday, such day shall be 

omitted from the computation).

3 The Commonwealth has certified, pursuant to Pennsylvania Rule of 

Appellate Procedure 311(d), the trial court’s order prohibiting the 

introduction of evidence substantially handicaps the prosecution of this case. 

Commonwealth’s Brief at 4. Therefore, pursuant to Pa.R.A.P. 311(d), this 

Court has jurisdiction to hear this appeal from the trial court’s interlocutory 

order, even though the order did not terminate the prosecution.
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observed the indicia of intoxication. Upon review of pertinent case law and 

the certified record, we disagree.

The standard of review an appellate court applies when considering an 

order granting a suppression motion is well established and has been 

summarized as follows:

We begin by noting that where a motion to suppress 

has been filed, the burden is on the Commonwealth 

to establish by a preponderance of the evidence that 

the challenged evidence is admissible. In reviewing 

the ruling of a suppression court, our task is to 

determine whether the factual findings are supported 

by the record. If so, we are bound by those findings. 

Where, as here, it is the Commonwealth who is 

appealing the decision of the suppression court, we 

must consider only the evidence of the defendant’s 

witnesses and so much of the evidence for the 

prosecution as read in the context of the record as a 

whole remains uncontradicted.

Moreover, if the evidence when so viewed supports the factual 

findings of the suppression court, this Court will reverse only if 

there is an error in the legal conclusions drawn from those 

findings.

Commonwealth v. Lindblom, 854 A.2d 604, 605 (Pa. Super. 2004) 

(citations omitted).

With respect to factual findings, we are mindful that it is 

the sole province of the suppression court to weigh the credibility 

of the witnesses. Further, the suppression court judge is entitled 

to believe all, part or none of the evidence presented. However, 

where the factual determinations made by the suppression court 

are not supported by the evidence, we may reject those findings. 

Only factual findings which are supported by the record are 

binding upon this court.
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Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995) 

(citations omitted). In addition, questions of the admission and exclusion of 

evidence are within the sound discretion of the trial court and will not be 

reversed on appeal absent an abuse of discretion. Commonwealth v. 

Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).

Further, we are aware that Pennsylvania Rule of Criminal Procedure 

581, which addresses the suppression of evidence provides, in relevant part, 

as follows:

(H) The Commonwealth shall have the burden . . . of 

establishing that the challenged evidence was not obtained in 

violation of the defendant’s rights.

Pa.R.Crim.P. 581(H).

Both the United States and Pennsylvania Constitutions prohibit 

“unreasonable searches and seizures.” U.S. Const. Amendment IV; 

Pennsylvania Const. Art. 1, § 8.

The Fourth Amendment to the United States Constitution 

and Article I, Section 8 of the Pennsylvania Constitution protect 

individuals from unreasonable searches and seizures, thereby 

ensuring the “right of each individual to be let alone.” 

Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d 

854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa. 

Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).

To secure the right of citizens to be free from intrusions by police, 

courts in Pennsylvania require law enforcement officers to demonstrate 

ascending levels of suspicion to justify their interactions with citizens as 
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those interactions become more intrusive. Commonwealth v. Beasley, 

761 A.2d 621, 624 (Pa. Super. 2000).

It is undisputed that:

[s]tate case law recognizes three categories of interaction 

between police officers and citizens, which include: (1) a mere 

encounter, or request for information, which need not be 

supported by any level of suspicion, but which carries no official 

compulsion to stop or to respond; (2) an investigative detention, 

which must be supported by reasonable suspicion as 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; and (3) arrest or custodial detention, 

which must be supported by probable cause.

Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa. Super. 2003) (en 

banc). Thus, as the first level of interaction between police and citizens, a 

mere encounter is itself a “request for information,” which needs no level of 

suspicion. Id.

As we explained in Commonwealth v. Jones, 874 A.2d 108 (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.

Id. at 116 (quoting Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. 

Super. 2000)).

If the police action becomes too intrusive, a mere encounter may 

escalate into an investigatory stop or a seizure. Commonwealth v. 

Boswell, 721 A.2d 336, 340 (Pa. 1998). To effectuate an investigative 
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detention, the officers are required to have reasonable suspicion that 

unlawful activity was in progress. In order to demonstrate reasonable 

suspicion, the police must be able to point to specific facts and reasonable 

inferences drawn from those facts in light of the officer’s experience. 

Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999).

“Because the level of intrusion into a person’s liberty may change 

during the course of the encounter, we must carefully scrutinize the record 

for any evidence of such changes.” Commonwealth v. Blair, 860 A.2d 

567, 572 (Pa. Super. 2004) (citing Commonwealth v. Strickler, 757 A.2d 

884 (Pa. 2000)). In determining whether a mere encounter has risen to the 

level of an investigative detention, our inquiry focuses on whether the 

individual in question has been seized.

To guide the crucial inquiry as to whether or not a seizure has 

been effected, the United States Supreme Court has devised an 

objective test entailing a determination of whether, in the view 

of all surrounding circumstances, a reasonable person would 

believe that he was free to leave. In evaluating the 

circumstances, the focus is directed toward whether, by means 

of physical force or show of authority, the citizen-subject’s 

movement has in some way been restrained.

Strickler, 757 A.2d at 889-890 (citations omitted).

In Commonwealth v. Caban, 60 A.3d 120 (Pa. Super. 2012), this 

Court addressed whether a police officer’s direction to a driver to “hold tight” 

was indicative of an investigatory detention. In Caban, a state trooper cited 

a driver for speeding, returned her license and paperwork, and told her that 

she was free to leave. Id. at 128. When the driver began walking back to 
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her car, the officer asked her if she would answer a few more questions, 

which she did, before then saying she was ready to go. Id. The officer told 

her to “hold tight” while he questioned the passenger, who was Caban. Id. 

In determining that this conduct amounted to an investigatory detention, 

this Court offered the following analysis:

Based upon this factual scenario, we conclude that Caban and 

[the driver] were subjected to an investigatory detention. To the 

extent that [the state trooper’s] renewed questioning of [the 

driver] began as a mere encounter based upon the Strickler

factors, when [the state trooper] told [the driver] to “hold tight” 

he unquestionably made clear to her that she was not free to 

leave the scene. As our Supreme Court emphasized in 

Strickler, the threshold issue in distinguishing between a mere 

encounter and an investigatory detention is whether a 

reasonable person would have believed that she was free to 

leave, and to this end the inquiry must focus on whether the 

police officer, either by physical force or show of authority, has 

restricted the defendant’s movement in some way. Strickler, 

563 Pa. [47,] 58-59, 757 A.2d at 889-[8]90. When [the state 

trooper] informed [the driver] to “hold tight,” he restricted her 

movements and made clear that she was not free to leave the 

scene.

Caban, 60 A.3d at 128. Ultimately in Caban we determined that the facts 

adduced by the state trooper by the time he told the driver to “hold tight” 

provided the state trooper with sufficient reasonable suspicion to justify the 

investigatory detention. Id. at 128-129.

In the instant matter, the suppression court offered the following 

pertinent discussion:

In the case at hand, Officer Moriarty passed a vehicle 

legally parked in a parking lot. The vehicle lights were on and 

the emergency flashers were not on. (T.T.) at 6. Officer 

Moriarty does not recall if he activated his lights or not when he 
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pulled off the road. (T.T) at 23. Further, he testified that he did 

not observe [Appellee] commit any moving or traffic violations. 

(T.T.) at 24. The officer testified that he pulled up alongside 

[Appellee] because it was suspicious in nature for a car to be 

parked at that location. (T.T.) at 25. In fact, on direct 

examination the Officer testified that [Appellee] was pulled over 

on the side of the road and that it was “odd for a vehicle to be 

where it was” and that it definitely needed to be looked into. 

(T.T.) at 5. The Officer later acknowledged that [Appellee] was 

parked in a parking lot. (T.T.) at 12-13. He further testified 

that his stop was investigatory in nature. (T.T.) at 26.

* * *

In this case, [Appellee] was legally parked in a parking lot. 

There was no indication that she was in any distress. The officer 

testified that his intention was to investigate due to the 

suspicious nature of a car being parked in that location2. The 

officer never testified that he was doing any kind of welfare 

check, just that he was suspicious. Asked what she was doing, 

[Appellee] stated that she was waiting for someone. In that 

brief sentence the Officer stated that [Appellee’s] speech was 

slurred but could not recall which words were slurred. At that 

point Officer Moriarity then told [Appellee] to “hang on” and 

decided to exit his vehicle to investigate. At that point no 

reasonable person would believe that they were free to leave. 

After assessing the evidence based on the totality of the 

circumstances, the Motion to Suppress, and the credibility of 

witnesses[,] I found that the Officer lacked reasonable suspicion 

to detain [Appellee] to further investigate.

2

In the Affidavit of Probable Cause the Officer stated 

that [Appellee’s] vehicle was pulled over to the right 

side of the roadway on the berm.

Trial Court Opinion, 10/6/14, at 5-7.

Our review of the certified record reflects that at the suppression 

hearing, Officer Moriarty testified and described what transpired in this 

manner:
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I was driving on Saltzburg Road. I was heading in a west 

direction when I came across a vehicle. It was off onto the right 

side of the roadway. The lights were on.

I didn’t know why the vehicle was stopped at that time of 

night, so I pulled off, next to the vehicle.

* * *

Actually, as I think it went – I think I may have went past that 

vehicle and I kind of noticed it, then I stopped and I backed up 

to the vehicle. I put my window down. [Appellee] put her 

window down.

We had a conversation. I asked her if there was 

something wrong and why she was sitting there.

N.T., 3/20/14, at 4-5. Officer Moriarty explained that Appellee’s vehicle 

lights were on, but her emergency flashers were not on. Id. at 6. Officer 

Moriarty then offered the following testimony:

Q. You asked her was everything okay?

A. I did.

Q. What, if anything, did [Appellee] say to you?

A. She told me that she was waiting for somebody.

Id. at 6. Officer Moriarty then indicated that, due to a slur in Appellee’s 

speech, he thought it necessary to further investigate. Id. at 6-7. He also 

offered the following testimony:

Q. So you backed up, and put yourself in a safe place. And 

what happened after that?

A. Then I got out of the vehicle. I told her to hang on. I got 

out of the vehicle, then I had a conversation with her.

Id. at 6 (emphasis added).
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Upon review of the certified record, we are constrained to conclude 

that although Officer Moriarty’s initial interaction with Appellee when he 

pulled up along the side of her vehicle was a mere encounter, the incident 

then escalated into an investigatory detention. Indeed, when Officer 

Moriarty told Appellee to “hang on,” parked his police vehicle, and then got 

out to talk with Appellee, he unquestionably made clear to her that she was 

not free to leave the scene. Caban, at 128. Hence, the officer subjected 

Appellee to an investigatory detention at that point.

In order to justify the stop of Appellee, we reiterate that Officer 

Moriarty was required to have reasonable suspicion that unlawful activity 

was in progress at the time of the investigatory detention. To demonstrate 

reasonable suspicion, the police must be able to point to specific facts and 

reasonable inferences drawn from those facts in light of the officer’s 

experience. Cook, 735 A.2d at 677.

During cross-examination, Officer Moriarty offered the following 

relevant testimony concerning the incident:

Q. And you came upon a car that was not in motion; correct?

A. That’s correct.

* * *

Q. So it was in a parked position, in – you described it as a 

business. Do you recall what type of business it was?

A. I don’t know. I see that place all the time, I have no idea 

what that is.
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* * *

Q. Where you positioned your vehicle you said you pulled up 

kind-of past it; right, then backed up?

A. Yes.

* * *

Q. You said that you rolled down your window; correct?

A. That is correct.

Q. Did you roll down your window first or did she roll down her 

window?

A. No idea.

Q. And there was a very brief conversation. In fact, you asked 

is everything okay; right?

A. That is correct.

Q. And her answer was yes, I am waiting for someone?

A. Basically, yes.

Q. So in that period of time you say that you noticed slurred 

speech?

A. That is correct.

Q. What exactly was it about the speech, do you recall? I 

mean, those are very few words there?

A. Like which letters were actually slurred?

Q. Yes, do you recall what it was?

A. I don’t recall that. No, it was slurred speech. I don’t 

recall which words.
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Q. Based on basically one sentence you pulled your 

vehicle back, and you activated your emergency lights; 

right?

A. Well, I mean, that’s what I did do. I don’t know if I 

activated emergency lights or not. I don’t know that for a fact.

Q. But you called in a traffic stop?

A. I did, I called in.

N.T., 3/20/14, at 20-23 (emphasis added).

Although Officer Moriarty stated that Appellee’s speech was slurred, 

there is no doubt that Appellee only spoke a few words to the officer. 

Indeed, upon questioning, Officer Moriarty admitted that he could not recall 

which of the few words or letters spoken by Appellee were actually slurred. 

In light of this testimony, we are constrained to agree with the trial court 

that Officer Moriarty failed to articulate specific observations necessary to 

establish reasonable suspicion to effectuate the investigatory detention of 

Appellee.

In summary, when Officer Moriarty told Appellee to “hang on” and 

then parked behind Appellee he subjected her to an investigatory detention. 

Furthermore, Officer Moriarty failed to articulate specific observations 

necessary to establish reasonable suspicion. Therefore, we agree with the 

trial court’s determination that Appellee was subject to an investigatory 

detention and that the police officer lacked the requisite reasonable 

suspicion to effectuate the stop. Accordingly, we affirm the order of the trial 

court granting Appellee’s motion to suppress.
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Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015