J-S07020-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ZANDER KEITH SHEARER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1183 MDA 2023

Appeal from the Judgment of Sentence Entered July 18, 2023

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

No(s): CP-18-CR-0000169-2022

BEFORE: LAZARUS, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: MARCH 20, 2024

Zander Shearer appeals from the judgment of sentence entered 

following his convictions for driving under the influence (DUI) and possessing 

marijuana.

1

 He challenges the denial of his motion to suppress evidence. We 

affirm.

On December 19, 2021, Trooper Joshua Eichenlaub of the Pennsylvania 

State Police stopped Shearer and searched his car. Trooper Eichenlaub 

charged Shearer with DUI and other crimes; the charges were held for court. 

On August 15, 2022, Shearer filed an omnibus pre-trial motion, including 

motions to suppress the fruits of the stop and the search.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3802(d)(2) (DUI, a combination of controlled substances), 

3802(d)(1)(i) (DUI, marijuana), and 35 P.S. § 780-113(a)(31)(i) (possessing

a small amount of marijuana for personal use).
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The suppression court heard Shearer’s motion on October 4, 2022. The 

Commonwealth presented the testimony of Trooper Eichenlaub and introduced 

a video from his dashboard camera into evidence. Shearer testified on his 

own behalf.

On January 30, 2023, the suppression court entered an opinion and 

order denying Shearer’s motion to suppress. The court made the following 

findings of fact about Trooper Eichenlaub’s observations of Shearer’s vehicle:

Joshua S. Eichenlaub [has been a Pennsylvania State Police 

Trooper since 2017 and has prior police experience as well]. At 

approximately 1:03 a.m. on December 19, 2021, Trooper 

Eichenlaub was operating a marked State Police vehicle working a 

scheduled 10:00 p.m. to 6:00 a.m. shift along with Trooper Brian 

Kitko. At [1:03 a.m.], while traveling south on Coudersport Pike 

in Woodward Township, Trooper Eichenlaub [began following] a 

gray 2019 Honda Accord. Trooper Eichenlaub followed the Honda 

Accord [left onto] West Hillside Drive and then [right] on to North 

Allegheny Street. The vehicle then made a left turn onto 

Woodward Avenue and then a quick [left] turn onto [Richey] 

Street. Trooper Eichenlaub, while traveling behind the Honda 

Accord on [Richey] Street, observed that the vehicle was traveling 

less than 35 miles per hour and failed to signal at a proper 

distance. The Honda Accord then [turned left two more times, 

continuing] to travel in a complete circle around the block for no 

apparent reason. [Trooper Eichenlaub then initiated a traffic stop, 

where Shearer showed signs of marijuana impairment.]

Opinion, 1/30/23, at 2–4 (format altered). With respect to the ensuing 

search, the suppression court found as follows:

[Shearer] told Trooper Eichenlaub on numerous occasions 

that he did not want him to search the vehicle but eventually 

consented. Trooper Eichenlaub had conducted the traffic stop for 

approximately twenty . . . minutes before [Shearer] gave his

consent to the search of his vehicle. [In that time,] Trooper 

Eichenlaub had requested [Shearer’s] consent on multiple 

occasions. Trooper Eichenlaub advised [Shearer] that if he did 
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not give consent that [Shearer’s] vehicle would be towed. . . . At 

the time of the traffic stop it was cold outside. The Troopers 

provided [Shearer] with his coat. During questioning, Trooper 

Eichenlaub was a couple of feet in distance from [Shearer]. 

Trooper Kitko was further away from [Shearer]. [Shearer] was 

not handcuffed during the investigation. Trooper Eichenlaub was 

not shouting at [Shearer]. Trooper Kitko was not shouting at 

[Shearer. Shearer] had sufficient time to consider the request for 

consent to search. After numerous requests, [Shearer] advised 

Trooper Eichenlaub to “go ahead if you want.”[2]

Id. at 6 (reordered, formatting altered).

Using these facts, the suppression court ruled that Trooper Eichenlaub 

had probable cause to stop Shearer for a turn signal violation and that Shearer 

gave valid consent to search his car. Accordingly, the court denied Shearer’s 

motion to suppress. 

Shearer had a non-jury trial on June 9, 2023, and the trial court found 

him guilty of the above crimes. On July 18, 2023, Shearer was sentenced to 

probation with restrictive conditions and a fine. Shearer timely appealed. 

Shearer and the trial court complied with Pennsylvania Rule of Appellate 

Procedure 1925.

Shearer presents two questions in this appeal:

I. Whether the Suppression Court abused its discretion and 

erred as a matter of law in denying [Shearer’s] motion to 

suppress all evidence and fruit of the poisonous tree, which 

was obtained as a result [of] an unlawful search and seizure 

since the traffic stop at issue was conducted without 

reasonable suspicion or probable cause?

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2 The notes of testimony and the dashboard camera video reflect that 26 

minutes into the stop, Shearer said: “Search (it) if you want.” N.T., 10/4/22, 

at 30; Exh. 2 (video), at 0:27:29.
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II. Whether the Suppression Court abused its discretion and 

erred as a matter of law in denying [Shearer’s] motion to 

suppress all evidence and fruit of the poisonous tree, which 

was obtained as a result of an unlawful search and seizure 

since any purported consent to search [Shearer’s] vehicle 

was not knowing, intelligent, or voluntary since [Shearer] 

was continuously and repeatedly badgered into giving 

consent by two state troopers after [Shearer] unequivocally 

denied consent[] to search his vehicle?

Shearer’s Brief at 9.

When this Court reviews the denial of a motion to suppress evidence, 

we follow a well-established standard:

Our standard of review in addressing a challenge to a trial court’s 

denial of a suppression motion is whether the factual findings are 

supported by the record and whether the legal conclusions drawn 

from those facts are correct. When reviewing the ruling of a 

suppression court, we must consider only the evidence of the 

prosecution and so much of the evidence of the defense as 

remains uncontradicted when read in the context of the record. 

Where the record supports the findings of the suppression court, 

we are bound by those facts and may reverse only if the legal 

conclusions drawn therefrom are in error.

Commonwealth v. Brown, 281 A.3d 320, 323–24 (Pa. Super. 2022)

(quoting Commonwealth v. Heidelberg, 267 A.3d 492 (Pa. Super. 2021) 

(en banc)).

Shearer’s first challenge is to the legality of the initial traffic stop. The 

Commonwealth could meet its burden by showing that, when Trooper 

Eichenlaub activated his lights, he had either (1) reasonable suspicion of

criminal activity, requiring further investigation or (2) probable cause to 

believe that the driver had violated the Vehicle Code. The suppression court 

found probable cause that Shearer violated 75 Pa.C.S.A. § 3334(b) by 
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activating his turn signal less than 100 feet before turning. We will address 

reasonable suspicion instead. See Commonwealth v. Ani, 293 A.3d 704, 

729 (Pa. Super. 2023) (“[A]s an appellate court, we may affirm on any legal 

basis supported by the certified record.”).3

A traffic stop is a seizure for constitutional purposes, analogous to an 

investigative detention. See Commonwealth v. Strickler, 757 A.2d 884, 

891 n.10 (Pa. 2000) (citing Berkemer v. McCarty, 468 U.S. 420, 439 

(1984)). To demand such a stop, a police officer must have at least a 

“reasonable suspicion to believe that criminal activity may be afoot.” United 

States v. Arvizu, 534 U.S. 266, 273 (2002) (quotation marks and citation 

omitted). This entails an objective inquiry into “whether the facts available to 

police at the moment of the intrusion warrant a person of reasonable caution 

in the belief that the action taken was appropriate.” Commonwealth v. 

Cunningham, 287 A.3d 1, 8 (Pa. Super. 2022) (brackets and citation 

omitted). Unlike a stop supported by probable cause, a traffic stop based on 

reasonable suspicion of criminal activity “must serve a stated investigatory 

purpose.” Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 

2010) (en banc).

[R]easonable suspicion exists only where the officer is able to 

articulate specific observations which, in conjunction with 

reasonable inferences derived from those observations, led him 

reasonably to conclude, in light of his experience, that criminal 

____________________________________________

3 The Commonwealth has briefed this alternative justification for the stop, as 

it did before the suppression court. Commonwealth’s Brief at 9–11; Brief, 

1/18/23, at 5 (quoting Trooper Eichenlaub’s summary of his suspicions).
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activity was afoot and that the person he stopped was involved in 

that activity.

To demonstrate reasonable suspicion, the detaining officer must 

articulate something more than an inchoate and unparticularized 

suspicion or hunch. To determine whether reasonable suspicion 

exists, we examine the totality of the circumstances through the 

eyes of a trained officer and not an ordinary citizen.

Cunningham, 287 A.3d at 8–9 (brackets, quotation marks, and citations 

omitted).

An attempt to evade police is relevant in analyzing reasonable suspicion. 

Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (en banc)

(citing Illinois v. Wardlow, 528 U.S. 119 (2000), and Commonwealth v. 

Freeman, 757 A.2d 903, 908 (Pa. 2000)). This could include “headlong flight”

from police, Wardlow, 528 U.S. at 124, continually looking at police and 

walking away, Foglia, 979 A.2d at 361, crossing the street away from a police 

vehicle, Cunningham, 287 A.3d at 10, or driving on back roads to avoid 

known police presence, see Arvizu, 534 U.S. at 277. This kind of evasive

behavior “is not necessarily indicative of wrongdoing, but it is certainly 

suggestive of such.” Wardlow, 528 U.S. at 124. Likewise, the time of day 

is relevant in the reasonable suspicion analysis, although time alone is not a 

particularized basis to suspect criminal activity. Commonwealth v. Price, 

225 A.3d 1118, 1122 (Pa. Super. 2019) (citing Commonwealth v. Hicks, 

208 A.3d 916, 951 (Pa. 2019)).

Here, Shearer’s evasive behavior provided Trooper Eichenlaub with

reasonable suspicion to initiate a traffic stop. Shearer turned several times in 

an apparent attempt to elude the marked police vehicle behind him, eventually 
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circling a block to drive down the same street he had just taken. Trooper 

Eichenlaub testified that based on his training and experience, he suspected 

that Shearer was “trying to evade being in front of” him. N.T., 10/4/22, at 

40. Although there could be an innocent explanation for Shearer to circle a 

block at 1:00 a.m., it was reasonable for Trooper Eichenlaub to suspect that

Shearer was trying to conceal criminal activity by evading the police. 

Therefore, Trooper Eichenlaub could lawfully stop Shearer, and the 

suppression court did not err in failing to suppress the stop.

Shearer’s second challenge is to the ensuing search of his car. He 

argues that his consent was invalid, as it was based on pressure from the 

police. The Commonwealth bears the burden of establishing that consent is a 

voluntary product of free will based on the totality of the circumstances. 

Strickler, 757 A.2d at 901. Factors relevant to the consent inquiry include:

1) the presence or absence of police excesses; 2) whether there 

was physical contact; 3) whether police directed the citizen’s 

movements; 4) police demeanor and manner of expression; 5) 

the location and time of the interdiction; 6) the content of the 

questions and statements; 7) the existence and character of the 

initial investigative detention, including its degree of 

coerciveness; 8) the degree to which the transition between the 

traffic stop/investigative detention and the subsequent encounter 

can be viewed as seamless, thus suggesting to a citizen that his 

movements may remain subject to police restraint; and 9) 

whether there was an express admonition to the effect that the 

citizen-subject is free to depart, which is a potent, objective 

factor.

Commonwealth v. Randolph, 151 A.3d 170, 177 (Pa. Super. 2016) (citing 

Strickler, 757 A.2d at 898–99).
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Here, the suppression court concluded that the Commonwealth proved 

Shearer’s consent was valid:

[Shearer’s] consent was not a product of duress. Both 

Trooper Eichenlaub and Trooper Kitko were calm and patient with 

[Shearer]; Trooper Eichenlaub continued to speak with [Shearer] 

trying to keep [Shearer] focused to make sure [Shearer] 

understood what was being asked of him. [Shearer] was not 

restrained. Although [Shearer] was not advised that he was free 

to leave, [Shearer] was aware that he had the right to refuse 

consent. [T]here was nothing inherently coercive about the 

circumstances that evening. Although [Shearer] was outside of 

his vehicle, he was provided with his coat. Trooper Eichenlaub 

always kept a distance from [Shearer] and Trooper Kitko kept an 

even further distance from [Shearer]. . . . While the request for 

consent was repetitive [over approximately 26 minutes], the 

Court does not find it was prolonged under the circumstances.

Opinion, 1/30/23, at 9.

We agree with the suppression court. Shearer showed awareness of his 

right to refuse consent by denying it repeatedly while the officers continued 

to talk with him. The video reflects that Trooper Eichenlaub spoke with 

Shearer in a non-aggressive tone, accurately informing Shearer about the stop

and asking questions relevant to further his investigation. Under these facts, 

the Commonwealth demonstrated that Shearer had given voluntary consent. 

Therefore, the suppression court did not err in denying Shearer’s motion to 

suppress the fruits of the search of his car.
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Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 3/20/2024