J-S28015-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID P. BARKER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 717 MDA 2022

Appeal from the Judgment of Sentence Entered May 9, 2022

In the Court of Common Pleas of Adams County Criminal Division at 

No(s): CP-01-CR-0000872-2021

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED: OCTOBER 24, 2022

Appellant, David P. Barker, appeals from the judgment of sentence 

entered on May 9, 2022. We affirm.

The Commonwealth charged Appellant with driving under the influence 

of alcohol (“DUI”). See Criminal Information, 8/31/21; see also 75 Pa.C.S.A. 

§§ 3802(a)(1), (b), and (c). Prior to trial, Appellant filed a suppression 

motion, where he claimed that the arresting officer did not have reasonable 

suspicion to stop his vehicle and that, as a result, the trial court must suppress

all evidence against him, “including any statements made by [Appellant] and 

any blood test results flowing from the illegal detention and arrest of 

[Appellant].” Appellant’s Suppression Motion, 10/25/21, at 10.

On January 11, 2022, the trial court held a hearing on Appellant’s 

suppression motion. During this hearing, the Commonwealth presented the 

testimony of Gettysburg Borough Police Officer Shannon Hilliard. Officer 
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Hilliard testified that, at approximately 11:30 p.m. on March 5, 2021, he was 

on duty and driving a marked patrol car, when he witnessed a vehicle that 

“appeared to be traveling a little fast” on the road. N.T. Suppression Hearing, 

1/11/22, at 7. Officer Hilliard observed the vehicle drive further down the 

road and then turn into the parking lot of a doctor’s office along West High 

Street. Id. at 8. 

As Officer Hilliard testified, “[t]he vehicle backed [into a] parking space

[in the doctor’s office parking lot]. And I pulled in and activated my 

emergency lights and siren and initiated a traffic stop.” Id. Officer Hilliard 

testified that he initiated the vehicle stop because “there could be a possible 

trespass.” Id. at 8 and 11. He further testified that a “three-foot-by-two-foot” 

sign was posted at the entrance to the parking lot, which read:

PATIENT PARKING ONLY

Violators Will Be Fined

By Boro Police and or Towed

75 PA. C. S. A. Section 3353

See id. at 19; see also Commonwealth’s Exhibit 1.

He also testified: 

it was 11:30 [p.m.] at night. I know that [the] office is not 

open. That’s outside the normal business hours. There’s no 

light illuminated indicating the business was open. So, I was 

aware that . . . [t]here would be no patients in that parking 

lot considering the doctor’s office is closed. 

N.T. Suppression Hearing, 1/11/22, at 11.

During cross-examination, Officer Hilliard testified that, at the time he 

activated his lights and siren: he did not know whether “the driver or owner 
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of the vehicle had consent to park in that parking lot;” he did not know 

whether the “driver of the vehicle or owner of the vehicle was a patient at that 

facility;” he did not know whether Appellant’s vehicle “was in drive or in park;” 

and, he “did not know anything about the driver or the vehicle.” Id. at 14-16.

The trial court denied Appellant’s suppression motion and, following a

stipulated bench trial, the court found Appellant guilty of DUI (second offense) 

and DUI (high rate of alcohol).1 On May 9, 2022, the trial court sentenced 

Appellant to serve six months of probation for his convictions. 

Appellant filed a timely notice of appeal. He raises one claim to this 

Court:

Did the suppression court err when it found Officer Hilliard 

had reasonable suspicion to stop/detain Appellant for 

trespassing?

Appellant’s Brief at 4.

Our standard of review for an order denying a motion to suppress is as 

follows.

Our standard of review in addressing a challenge to the denial 

of a suppression motion is limited to determining 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 

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1 75 Pa.C.S.A. §§ 3802(a)(1) and (b), respectively.
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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 [reached by the 

trial court] are subject to our plenary review.

Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019) (quotation 

marks and citations omitted).

When a police officer forcibly stops a motor vehicle, a “seizure” has 

occurred within the meaning of the Fourth Amendment and constitutional 

protections against unreasonable searches and detentions come into play.

Whren v. United States, 517 U.S. 806, 809–810 (1996). 75 Pa.C.S.A. 

§ 6308(b) states:

(b) Authority of police officer.—Whenever a police officer . . . 

has reasonable suspicion that a violation of [the Vehicle 

Code] is occurring or has occurred, he may stop a vehicle, 

upon request or signal, for the purpose of checking the 

vehicle's registration, proof of financial responsibility, vehicle 

identification number or engine number or the driver's 

license, or to secure such other information as the officer may 

reasonably believe to be necessary to enforce the provisions 

of this title.

Commonwealth v Feczko, 10 A.3d 1285, 1287 (Pa. Super. 2010) (en banc) 

(quoting 75 Pa.C.S.A. § 6308(b)), appeal denied, 25 A.3d 327 (Pa. 2011).

Our Supreme Court has explained:

Section 6308(b) allows a police officer to conduct a vehicle 

stop if he has reasonable suspicion to believe that a violation 

of the Motor Vehicle Code is occurring or has occurred. . . . 

Reasonable suspicion [is defined] as follows:

Reasonable suspicion is a less stringent standard than 

probable cause necessary to effectuate a warrantless arrest, 
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and depends on the information possessed by police and its 

degree of reliability in the totality of the circumstances. In 

order to justify the seizure, a police officer must be able to 

point to “specific and articulable facts” leading him to suspect 

criminal activity is afoot. In assessing the totality of the 

circumstances, courts must also afford due weight to the 

specific, reasonable inferences drawn from the facts in light 

of the officer's experience and acknowledge that innocent 

facts, when considered collectively, may permit the 

investigative detention. 

. . .

The determination of whether an officer had reasonable 

suspicion that criminality was afoot so as to justify an 

investigatory detention is an objective one, which must be 

considered in light of the totality of the circumstances. It is 

the duty of the suppression court to independently evaluate 

whether, under the particular facts of a case, an objectively 

reasonable police officer would have reasonably suspected 

criminal activity was afoot. 

Commonwealth v. Holmes, 14 A.3d 89, 95-96 (Pa. 2011) (citations, 

footnotes, and some quotation marks omitted).

In this case, Officer Hilliard stopped Appellant’s vehicle for a suspected 

violation of 75 Pa.C.S.A. § 3353. In relevant part, Section 3353 of the Vehicle 

Code declares:

(b) Unattended vehicle on private property –

(1) No person shall park or leave unattended a vehicle on 

private property without the consent of the owner or other 

person in control or possession of the property except in 

the case of emergency or disablement of the vehicle, in 

which case the operator shall arrange for the removal of 

the vehicle as soon as possible.

(2) The provisions of this subsection shall not apply to 

private parking lots unless such lots are posted to notify 

the public of any parking restrictions and the operator of 
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the vehicle violates such posted restrictions. For the 

purposes of this section “private parking lot” means a 

parking lot open to the public or used for parking without 

charge; or a parking lot used for parking with charge. The 

department shall define by regulation what constitutes 

adequate posting for public notice.

. . .

(e) Penalty.--Any person violating any provision of this 

section is guilty of a summary offense and shall, upon 

conviction, be sentenced to pay a fine of not more than $50.

75 Pa.C.S.A. § 3353.2, 3

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2 As this Court has held:

Traffic stops based on a reasonable suspicion: either of 

criminal activity or a violation of the Motor Vehicle Code 

under the authority of Section 6308(b) must serve a stated 

investigatory purpose. . . . Mere reasonable suspicion will 

not justify a vehicle stop when the driver's detention cannot 

serve an investigatory purpose relevant to the suspected 

violation.

Feczko, 10 A.3d at 1292. 

On appeal, Appellant does not claim the trial court erred when it concluded 

that Officer Hilliard needed reasonable suspicion – and not probable cause –

to initiate the traffic stop. Moreover, we note that reasonable suspicion is the 

proper standard in the case at bar since further investigation was necessary 

to determine whether Appellant was actually in violation of Section 3353(b). 

For example, Appellant would not have been in violation of Section 3353(b) 

if: Appellant were a patient at the office; had the consent of the owner to 

park in the lot; or, was experiencing an “emergency or disablement of the 

vehicle.” See 75 Pa.C.S.A. § 3353(b). However, the only way Officer Hilliard 

would have been able to determine if Appellant were exempted from 

application of Section 3353(b) is by investigating the matter after the stop.

3 Although Section 3353(b) is entitled “[u]nattended vehicle on private 

property,” the statute clearly prohibits the “parking” of a vehicle on private 

property without the consent of the owner; and, under the Vehicle Code, 

(Footnote Continued Next Page)
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During the suppression hearing, Officer Hilliard testified that he 

observed Appellant’s vehicle turn into a doctor’s office parking lot at 11:30 

p.m. At that time, “the doctor’s office [was] closed” and there were no lights 

on the building that would have indicated that the business was open. N.T. 

Suppression Hearing, 1/11/22, at 7-11. Officer Hilliard also testified that a 

“three-foot-by-two-foot” sign was posted at the entrance to the parking lot, 

which read:

PATIENT PARKING ONLY

Violators Will Be Fined

By Boro Police and or Towed

75 PA. C. S. A. Section 3353

See id. at 19; see also Commonwealth’s Exhibit 1.

Officer Hilliard testified that he waited until Appellant “backed in to [a]

parking space” in the lot and, when he “witnessed the vehicle park in the 

parking lot,” Officer Hilliard “pulled in and activated [his] emergency lights 

and siren and initiated a traffic stop.” N.T. Suppression Hearing, 1/11/22, at 

8.

We conclude that, when Officer Hilliard activated his emergency lights 

and seized Appellant, Officer Hilliard possessed the requisite reasonable 

suspicion to believe that Appellant may have been in violation of Section 

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“parking” a vehicle can occur whether the vehicle is “occupied or not.” See

75 Pa.C.S.A. § 102 (defining the term “park” or “parking” as: “(1) When 

permitted, means the temporary storing of a vehicle, whether occupied or not, 

off the roadway. (2) When prohibited, means the halting of a vehicle, whether 

occupied or not, except momentarily for the purpose of and while actually 

engaged in loading or unloading property or passengers.”).
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3353(b) of the Vehicle Code. To be sure, Section 3353(b)(1) provides that, 

with certain exceptions, a person is prohibited from parking a vehicle on 

private property without the consent of the owner. Section 3353(b)(2) further 

declares that the prohibition applies to private parking lots if “such lots are 

posted to notify the public of any parking restrictions and the operator of the 

vehicle violates such posted restrictions.” 75 Pa.C.S.A. § 3353(b).

In this case, the doctor’s office parking lot was posted with a sign that 

declared: “PATIENT PARKING ONLY.” Further, at the time Officer Hilliard 

initiated the traffic stop, Officer Hilliard possessed specific and articulable facts 

that Appellant was violating the posted restriction, since: Appellant “backed 

[his vehicle] in to [a] parking space” in the lot, at 11:30 p.m. at night, when 

the doctor’s office was closed, with “no light illuminated indicating the business 

was open,” and Officer Hilliard was “aware that . . . [t]here would be no 

patients in that parking lot considering the doctor’s office [was] closed.” N.T. 

Suppression Hearing, 1/11/22, at 7-11; Commonwealth’s Exhibit 1; see also

Trial Court Opinion, 1/25/22, at 9. Therefore, at the time of the stop, Officer 

Hilliard possessed reasonable suspicion that Appellant parked his vehicle in 

violation of the posted restrictions in the parking lot and, thus, may have been 

in violation of Section 3353(b).

On appeal, Appellant argues that Officer Hilliard did not have reasonable 

suspicion to initiate the stop since, at the time he initiated the vehicle stop, 

he did not know: “whether the vehicle was in drive or park;” whether “the 

owner had given consent to Appellant . . . to park in the lot;” whether 
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Appellant was a patient; or, whether Appellant was “experiencing an 

emergency or disablement.” See Appellant’s Brief at 20-23.

While Appellant is correct in his observations, the fact that Appellant’s 

actions could have been wholly innocent – and not violative of Section 3353(b) 

– does not override the specific and articulable facts that led Officer Hilliard to 

suspect that criminal activity was afoot. See, e.g., Commonwealth v. 

Jefferson, 256 A.3d 1242, 1251 (Pa. Super. 2021) (“certainty about 

individual factors has never been a prerequisite for reasonable suspicion. It 

is well-settled that to justify their decision to stop and briefly detain an 

individual, the police need not establish their suspicions to a level of certainty, 

a preponderance, or even a fair probability”) (quotation marks, citations, and 

brackets omitted); Commonwealth v. Rogers, 849 A.2d 1185, 1190 (Pa. 

2004) (“reasonable suspicion does not require that the activity in question 

must be unquestionably criminal before an officer may investigate further. 

Rather, the test is what it purports to be – it requires a suspicion of criminal 

conduct that is reasonable based upon the facts of the matter”) (citations 

omitted). Certainly, as the trial court ably summarized, under the totality of 

the circumstances, Officer Hilliard possessed specific and articulable facts 

suggesting that Appellant violated Section 3353(b):

The parking lot of the doctor’s office was closed to 

unauthorized visitor[ parking], as indicated by the “Patient 

Parking Only” sign in the parking lot. Officer Hilliard therefore 

reasonably believed [Appellant] was not authorized to park 

in the parking lot because [Appellant] did not appear to be a 

patient at the doctor’s office. The lateness of the hour made 
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it highly unlikely that the doctor’s office was open for 

business and that [Appellant] was visiting the practice for 

medical treatment.

Trial Court Opinion, 1/25/22, at 9.

We agree with the trial court and conclude that the Appellant’s claim on 

appeal thus fails.4

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/24/2022

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4 Appellant also claims that “the sign provided inadequate notice by failing to 

comply with parking sign regulations.” Appellant’s Brief at 18. Whether the 

sign did or did not “comply with parking sign regulations” is only relevant to 

the issue of whether Appellant, in fact, violated Section 3353(b). It is not 

relevant to the issue of whether Officer Hilliard possessed reasonable suspicion 

to believe that Appellant violated Section 3353(b).