J-S84041-17

2018 PA Super 106

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN LEE THRAN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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.

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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).
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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.
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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).
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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 

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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.
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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 
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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.

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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.
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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 

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5

It 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).
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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,6the 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 

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6 Additionally, there were no other vehicles. N.T. at 30.
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“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 
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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