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NON
- PRECEDENTIAL DECISION
- SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENN SYLVANIA, 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 aft er 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.) 1 at 4.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 We note that on February 10, 2015, Appellee filed a motion to suspend
c onsideration 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.J

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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 a nd 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 an d 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.) a t 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.J

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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 Comm onwealth 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 n ot 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 Appelle e and

____________________________________________

2 We note that the Commonwealth needed to file it s 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 omitte d 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.J

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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 bee n

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 suppress ion 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, t his 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 pro vince 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.J

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Commonwealth v. Benton , 655 A.2d 1030, 1032 (Pa. Super. 1995)
(citations omitted). In addition, q uestions o f 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 Consti tution 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 asJ

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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 encounte r 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 C ommonwealth 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 inves tigativeJ

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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 evidenc e 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 sur rounding 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 bee n 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 toJ

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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 foll owing 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 heJ

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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 “od d 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 natur e. (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 location 2 . 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 [Appell ee’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 Aff idavit 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:J

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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 dow n. [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 wer e 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 a fter 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).J

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Upon review of the certified record, we are constrained to conclude
that although Officer Mori arty’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 Appe llee, 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 a nd
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.J

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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 yo u 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.J

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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
ac tivated 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 dou bt 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 constraine d 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 determinatio n 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.J

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Order affi rmed. Case remanded. Jurisdiction relinquished.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/10/2015