J-A16016-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

TRAVIS LEE PLANK

Appellant No. 1409 MDA 2019

Appeal from the Judgment of Sentence Entered July 30, 2019

In the Court of Common Pleas of Adams County

Criminal Division at No.: CP-01-CR-0001013-2018

BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY STABILE, J.: FILED MARCH 26, 2021

Appellant Travis Lee Plank appeals from the July 30, 2019 judgment of 

sentence entered in the Court of Common Pleas of Adams County (“trial 

court”), following his bench convictions for four separate counts of driving 

under the influence (“DUI”) of a controlled substance, and driving under 

suspension.1 Upon review, we affirm.

The facts and procedural history of this case are undisputed. Following 

a late-night interaction with state troopers, Appellant was charged with the 

foregoing crimes. On November 9, 2018, Appellant filed a suppression 

motion, challenging the constitutionality of the interaction. On December 10, 

2018, the trial court conducted a suppression hearing, at which the 

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1 75 Pa.C.S.A. §§ 3802(d)(1)(i), (ii), (iii) and (2), and 1543(b)(1.1), 

respectively. 
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Commonwealth offered only the testimony of Trooper Matthew Hochberg, 

Pennsylvania State Police. N.T. Suppression, 12/10/18, at 4. Appellant did 

not present any witness testimony or evidence. The trial court rendered the 

following findings of fact:

1. Trooper Matthew Hochberg is a Pennsylvania State Police 

Trooper assigned to Troop H, Gettysburg. Trooper Hochberg has 

approximately four years of experience and prior to becoming a 

State Police Trooper he received standard training at the 

Pennsylvania State Police Academy. That training included 

detecting people suspected to be under the influence of controlled 

substances.

2. Over the past four years, Trooper Hochberg has made 

approximately 120 DUI arrests and he estimates that one-half of 

them are based upon use of controlled substances. He also has 

interactions with people who are under the influence of controlled 

substances frequently, estimated to be once every other shift. 

3. On August 6, 2018 at 1:34 a.m., Trooper Hochberg was on duty 

in full uniform working with his partner, Trooper [Matthew] 

Geiman. At that date and time, the troopers were in 

McSherrystown Borough, Adams County.

4. At that date and time, Trooper Hochberg began following a dark 

colored, 2008 Hyundai sedan. Trooper Hochberg’s interest was 

drawn to the vehicle because he saw a large white drawing on the 

rear driver’s side window.

5. Trooper Hochberg followed the vehicle through McSherrystown 

for approximately five minutes and observed that the vehicle was 

driving “evasively.” Trooper Hochberg ran an NCIC search of the 

registration plates which came back to a female [in Hanover]. 

Trooper Hochberg noticed a male was driving the vehicle and was 

travelling away from the direction of the address to which the 

motor vehicle was registered. 

6. As the troopers followed the vehicle, they observed it to make 

three to five turns which the troopers considered to be “odd” at 
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various stop signs. The driver would signal at the sign as if he 

was not sure which way he wanted to travel.[2]

7. Eventually, the operator of the Hyundai sedan stopped on his 

own accord in a driveway off of Sherry Drive in McSherrystown, 

Adams County, Pennsylvania. The driveway was short, 

approximately the length of the motor vehicle and fronted a 

garage.

8. Trooper Hochberg drove toward the motor vehicle and parked 

his patrol car perpendicular to the suspect vehicle without blocking 

the vehicle’s ability to exit the driveway. Trooper Hochberg 

parked along the side of the road. When Trooper Hochberg parked 

and exited his vehicle, he did not utilize any lights or sirens. 

9. Trooper Hochberg exited his patrol vehicle and approached the 

operator of the Hyundai and asked if he could talk to [Appellant] 

and [Appellant] replied, yes. [Appellant] was the driver. 

10. At that time, Trooper Hochberg observed [Appellant] to have 

glassy and bloodshot eyes, and that [Appellant] appeared to be 

nervous. 

11. Trooper Hochberg asked [Appellant] for his driver’s license 

and [Appellant] replied that he did not have his license with him 

but that he had one.[3] [Appellant] provided Trooper Hochberg 

with his name. Trooper Geiman ran the name through NCIC and 

confirmed that the individual identified was [Appellant], but that 

his motor vehicle operator’s license was suspended. Until the 

troopers determined that [Appellant’s] license was suspended, 

[Appellant] was free to leave at any time. After the troopers 

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2 Trooper Hochberg testified:

The vehicle made a number of stops at different stop signs and 

paused for long periods of time and flipped the turn signal the last 

second almost like the individual was deciding which way he was 

gonna [sic] go right when he got to the stop sign. It was almost 

as if he didn’t know where he was going.

N.T. Suppression, 12/10/18, at 7.

3 Trooper Hochberg recalled that he asked Appellant a question about the 

drawing on the window. Id. at 10. Appellant, however, was not charged with 

any violation of Section 4524 of the Vehicle Code, 75 Pa.C.S.A. § 4524, 

relating to windshield obstructions. 
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learned that his driver’s license was suspended, he was no longer 

free to leave. 

12. [Appellant] did not ask the troopers if he could leave or try to 

leave the scene at any time.

13. While the troopers followed the motor vehicle through 

McSherrystown, they did not observe any motor vehicle code 

violations. Upon approaching the driver, Trooper Hochberg never 

told the driver, now identified as [Appellant], that he was not free 

to leave the scene. At the time Trooper Hochberg approached the 

vehicle, he did not have any reports that the motor vehicle was 

stolen or any reports of unauthorized use of that motor vehicle. 

The troopers were unsure who owned the home where the driver 

stopped. While Trooper Hochberg was talking to [Appellant] by 

the driver’s side window, Trooper Geiman also got out of the patrol 

vehicle and at some point was situated to the rear of [Appellant’s] 

vehicle, but not blocking the vehicle’s ability to exit the driveway.

Trial Court Opinion, 12/12/18, at 1-4 (unnecessary capitalizations omitted). 

Based on the above findings, the trial court concluded that Appellant’s initial 

interaction with the troopers constituted a mere encounter and thus did not 

violate the Fourth Amendment to the United States Constitution. Accordingly, 

the trial court denied the suppression motion. 

Appellant waived his right to counsel and proceeded to a bench trial. 

The trial court found him guilty of four separate counts of DUI of a controlled 

substance, and driving under suspension. On July 30, 2019, the trial court 

sentenced Appellant to, inter alia, an aggregate term of 18 to 72 months’ 

imprisonment. Although Appellant did not file any post-sentence motion, he 

timely appealed. Both Appellant and the trial court complied with Pa.R.A.P. 

1925.

On appeal, Appellant raises a single issue for our review. 
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[I.] Did the lower court err in determining that a mere encounter 

and not an investigative detention had occurred where two 

uniformed officers followed Appellant’s vehicle for several minutes 

prior to parking very close to [his] stopped vehicle in an alley, 

encircling the vehicle on foot and immediately questioning [him] 

about an alleged Motor Vehicle Code violation?

Appellant’s Brief at 4. At the core, Appellant argues that his initial interaction 

with the troopers was more than a mere encounter and constituted an 

unlawful investigatory detention.4 In support, he points out that no 

reasonable person in his situation would have felt free to leave under the 

circumstances of this case.

In reviewing appeals from an order denying suppression, our standard 

of review is limited to determining 

whether [the trial court’s] factual findings are supported by the 

record and whether [its] legal conclusions drawn from those facts 

are correct. When reviewing the rulings of a [trial] court, the 

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4 To the extent Appellant’s seeks to raise the issue of community caretaking 

doctrine, such issue is waived. As the trial court aptly notes, Appellant failed 

to assert this issue below and thus may not do so for the first time on appeal. 

See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.”). The community caretaking 

doctrine has been characterized as encompassing three specific exceptions to 

the state and federal constitutional requirements that police obtain a warrant 

prior to conducting an unreasonable search or seizure: the emergency aid 

exception; the automobile impoundment/inventory exception; and the public 

servant exception, also sometimes referred to as the public safety exception. 

Commonwealth v. Livingstone, 174 A.3d 609, 626 (Pa. 2017). Each of the 

exceptions contemplates that the police officer’s actions be motivated by a 

desire to render aid or assistance, rather than the investigation of criminal 

activity. Id. at 627. Consequently, “in order for the public servant exception 

of the community caretaking doctrine to apply, police officers must be able to 

point to specific, objective, and articulable facts that would reasonably suggest 

to an experienced officer that a citizen is in need of assistance.” Id. at 634. 

Regardless, even if this issue was not waived, Appellant still would not obtain 

relief on this basis, because, as we explain below, no seizure occurred here. 
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appellate court considers only the evidence of the prosecution and 

so much of the evidence for the defense as remains 

uncontradicted when read in the context of the record as a whole. 

When the record supports the findings of the [trial] court, we are 

bound by those facts and may reverse only if the legal conclusions 

drawn therefrom are in error.

Commonwealth v. Griffin, 116 A.3d 1139, 1142 (Pa. Super. 2015). Our 

scope of review is limited to the evidence presented at the suppression 

hearing. In re interests of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013). 

Article I, Section 8 of the Pennsylvania Constitution and the Fourth 

Amendment to the United States Constitution protect the people from 

unreasonable searches and seizures. Commonwealth v. Lyles, 97 A.3d 298, 

302 (Pa. 2014) (citation omitted). The Lyles Court explained:

Jurisprudence arising under both charters has led to the 

development of three categories of interactions between citizens 

and police. The first, a “mere encounter,” does not require any 

level of suspicion or carry any official compulsion to stop and 

respond. The second, an “investigatory detention,” permits the 

temporary detention of an individual if supported by reasonable 

suspicion. The third is an arrest or custodial detention, which 

must be supported by probable cause.

In evaluating the level of interaction, courts conduct an 

objective examination of the totality of the surrounding 

circumstances. . . . The totality-of-the-circumstances test is 

ultimately centered on whether the suspect has in some way been 

restrained by physical force or show of coercive authority. Under 

this test, no single factor controls the ultimate conclusion as to 

whether a seizure occurred—to guide the inquiry, the United 

States Supreme Court and [our Supreme] Court have employed 

an objective test entailing a determination of whether a 

reasonable person would have felt free to leave or otherwise 

terminate the encounter. What constitutes a restraint on liberty 

prompting a person to conclude that he is not free to leave will 

vary, not only with the particular police conduct at issue, but also 

with the setting in which the conduct occurs.
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[Our Supreme] Court and the United States Supreme Court 

have repeatedly held a seizure does not occur where officers 

merely approach a person in public and question the individual or 

request to see identification. Officers may request identification 

or question an individual so long as the officers do not convey a 

message that compliance with their requests is required. 

Although police may request a person’s identification, such 

individual still maintains the right to ignore the police and go about 

his business.

Id. at 302-03 (internal citations and quotation marks omitted). Thus, “[a]

mere encounter is characterized by limited police presence, and police conduct 

and questions that are not suggestive of coercion. Such encounters do not 

obligate a citizen to stop or respond and, consequently, need not be supported 

by any level of suspicion.” Commonwealth v. Hampton, 204 A.3d 452, 456 

(Pa. Super. 2019). The hallmark of a mere encounter is that “the subject is 

free to decline to interact with the police or to answer questions, and is also 

free to leave at any time.” Id. 

Relatedly, “[w]e adhere to the view that a person is ‘seized’ only when, 

by means of physical force or a show of authority, his freedom of movement 

is restrained. Only when such restraint is imposed is there any foundation 

whatever for invoking constitutional safeguards.” United States v. 

Mendenhall, 446 U.S. 544, 553 (1980). “To determine whether a citizen’s 

movement has been restrained, court must consider the totality of the 

circumstances, with no single factor dictating the ultimate conclusion as to 

whether seizure has occurred.” Livingstone, 174 A.3d at 621 (citation 

omitted). In this regard, a variety of factors influence our determination of 

whether a seizure has occurred. They include “the threatening presence of 
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several officers, the display of a weapon by an officer, some physical touching 

of the person of the citizen, or the use of language or tone of voice indicating 

that compliance with the officer’s request might be compelled.” Id. (citation 

omitted). An additional factor is whether the police officer physically prevents 

the citizen from leaving. See Commonwealth v. Greber, 385 A.2d 1313, 

1316 (Pa. 1978) (plurality) (holding that detaining appellees by blocking their 

automobile constituted a seizure within the meaning of the Fourth 

Amendment). Thus, when determining whether an individual is subject to a 

mere encounter or an investigative detention, “[t]he pivotal inquiry is 

whether, in light of the facts and circumstances, a reasonable man, innocent 

of any crime, would have thought he was being restrained had he been in the 

defendant’s shoes.” Hampton, 204 at 458 (citation omitted). 

We find highly instructive Commonwealth v. Au, 42 A.3d 1002 (Pa. 

2012). There, a police officer in the early morning hours observed a vehicle 

parked at a closed business establishment. Au, 42 A.3d at 1003. The court 

recounted the additional facts as follows:

According to the officer’s testimony, it was unusual to see a car in 

the location at such time, and he decided to make further inquiry. 

The officer did not activate the emergency lights of his police 

cruiser, but he positioned his vehicle at an angle relative to the 

parked automobile so as to illuminate the passenger side. The 

officer said that he did so without blocking the egress of the

vehicle, he then approached, properly with a flashlight.

Id. As the officer approached the vehicle, the appellant rolled down the 

passenger side window, and the officer asked “what's going on[?]” Id. When 
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the occupants responded that they were just “hanging out,” the officer asked 

if each of the vehicle’s six occupants was over the age of eighteen. Id. After 

receiving a negative response, the officer asked the appellant for his 

identification. When the appellant opened the glove compartment to retrieve 

his identification, the officer observed two baggies of marijuana. 

Subsequently, police back-up arrived and a search of the vehicle uncovered 

more illegal drugs. Following the appellant’s arrest, the trial court suppressed 

the drug evidence. In doing so, the trial court indicated that its decision was 

controlled by Commonwealth v. Mulholland, 794 A.2d 398 (Pa. Super.

2002), a case which holds that the police undertook an investigative detention 

upon confronting an occupant of a parked vehicle. A three-judge panel of this 

Court affirmed the trial court’s grant of suppression in Au, a result that later 

was sustained by an en banc majority of this Court on reargument. See 

Commonwealth v. Au, 986 A.2d 864 (Pa. Super. 2009) (en banc). Our 

Supreme Court, however, granted the Commonwealth’s petition for allowance 

of appeal and reversed, holding that the police officer’s interaction with the 

appellant amounted to no more than a mere encounter. In so holding, the 

Court reasoned:

In the present case, the arresting officer’s unrebutted testimony 

indicates that he did not: activate the emergency lights on his 

vehicle[;] position his vehicle so as to block the car that [the 

defendant] was seated in from exiting the parking lot[;] brandish 

his weapon; make intimidating movement or overwhelming show 

of force; make a threat or a command; or speak in an 

authoritative tone. . . . . In terms of the use of the arresting 

officer’s headlights and flashlight, this was in furtherance of the 
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officer’s safety, and we conclude it was within the ambit of 

acceptable, non-escalatory factors. . . . .

Pursuant to governing Fourth Amendment law, we hold that the 

arresting officer’s request for identification did not transform his 

encounter with [the defendant] into an unconstitutional 

investigatory detention.

Au, 42 A.3d at 1008–09 (citations omitted). 

In Hampton, the defendant drove his vehicle into the field of a privately 

owned church. Id. Without activating the emergency lights or siren, the 

police pulled in behind him, “effectively blocking his exit as his vehicle was 

facing a building, and he could not travel forward.” Id. In ruling that a 

reasonable person in the defendant’s shoes would not have felt free to leave, 

this Court focused on the restriction of the defendant’s freedom of movement 

“by means of physical force” by the police. Id. Specifically, this Court 

concluded that the defendant was subject to an investigative detention when 

the officer parked behind defendant’s vehicle in a way that completely blocked 

defendant’s only means of leaving the area. Id.

In Livingstone, a trooper saw a vehicle pulled over onto the right 

shoulder of a divided highway with the engine running but the hazard lights 

not activated. Id. a t614. The trooper “activated his emergency lights and, 

with his passenger window down, pulled alongside the stopped vehicle.” Id.

(emphasis added). After motioning to the driver to roll down the window, he 

asked her if she was okay. Id. The driver appeared to be staring at him with 

“glossy eyes” but answered affirmatively. Id. Nevertheless, the trooper 

pulled his cruiser in front of the stopped vehicle, exited his vehicle, and
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approached the driver on foot. Id. When the trooper reached the vehicle, he 

asked to see the motorist’s driver’s license and asked whether she had been 

drinking. Id. The motorist denied drinking but made a number of confused 

statements. Id. Based on these statements and the appearance of the 

motorist’s eyes, described as glossy, a preliminary breath test was 

administered, and ultimately the motorist was convicted of DUI. Id. at 614–

15. In light of these facts, our Supreme Court concluded that a seizure had 

occurred as soon as the trooper pulled alongside the stopped vehicle with 

activated emergency lights. Id.

With the foregoing cases in mind, and given the totality of the 

circumstances here, we conclude that the trial court did not err in denying 

Appellant’s suppression motion. The troopers interaction with Appellant was 

a mere encounter. As detailed above, Appellant caught the troopers’ attention 

in the wee hours of the morning when they observed a large white drawing 

on the vehicle’s rear driver’s side window. The troopers decided to follow 

Appellant. During their five-minute pursuit, the troopers observed that 

Appellant was driving evasively and away from the direction of the address to 

which the vehicle was registered. Eventually, Appellant, on his own accord,

pulled the vehicle into a driveway where he stopped.5 Trooper Hochberg 

parked the patrol vehicle perpendicular to Appellant’s vehicle without blocking 

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5 Appellant does not raise any issues with respect to the nature of the driveway 

or to whom it belonged. 
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Appellant’s ability to exit the driveway. The troopers did not activate 

emergency lights or sirens. Upon exiting the patrol vehicle,6 Trooper 

Hochberg approached Appellant,

7 and asked whether he could talk to him. 

See Au, 42 A.3d at 1007, n.3 (stating that when considering whether an 

individual has been “seized,” a “request obviously differs from a demand”). 

Appellant answered in the affirmative.8 At that point, Trooper Hochberg 

observed that Appellant had glassy and bloodshot eyes and appeared nervous. 

Trooper Hochberg then asked Appellant for his driver’s license. Appellant 

replied that he did not have his license with him, but that he possessed one. 

Appellant shared his name with Trooper Hochberg. Trooper Geiman ran the 

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6 The troopers were attired in uniform. However, while a police uniform is a 

symbol of authority, a uniform is not, in and of itself, a sufficient exercise of 

force to render an interaction between an officer and a citizen a “stop”. 

Commonwealth v. Jones, 378 A.2d 835, 839-40 (Pa. 1977) 

7 There is no indication in the record—and Appellant does not allege 

otherwise—that Trooper Hochberg touched Appellant’s vehicle or ordered him 

to lower his window for purposes of communication. Cf. Commonwealth v. 

Powell, 228 A.3d 1, 7 (Pa. Super. 2020) (finding investigatory detention 

where police ordered the defendant to roll down his window); 

Commonwealth v. Adams, 205 A.3d 1195, 1201 (Pa. 2019) (holding 

interaction between police officer and defendant was investigative detention, 

where officer would not allow defendant to leave his vehicle; officer did not 

simply request that defendant stay in his car; instead, officer physically closed 

car door and barred defendant’s exit; officer’s action of physically closing door 

as defendant opened it communicated demand to remain in car at that 

location; officer’s acts constituted type of escalatory factor that signals 

“seizure” by restraint of freedom).

8 The record reveals that Appellant “advised” Trooper Hochberg that he “didn’t 

have a reason to follow him.” N.T. Suppression, 12/10/18, at 13. 
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name through NCIC, confirming Appellant’s identify and ascertaining that his 

driver’s license was suspended.9 At no point did Appellant evince a desire to 

terminate the interaction. 

This case is consistent with Au in that Appellant’s interaction with the 

troopers constituted a mere encounter. As the trial court explained, 

the troopers here did not activate emergency lights on the patrol 

vehicle, did not position the patrol vehicle in a way as to block the 

car that [Appellant] was seated in from exiting the driveway, the 

troopers did not brandish weapons, make intimidating movements 

or an overwhelming show of force, and the troopers did not make 

a threat or a command or speak in an authoritative tone.

Trial Court Opinion, 12/12/18, at 5. Moreover, this case is distinguishable 

from Hampton, and Livingstone because no seizure occurred here. Unlike 

this case, in Hampton the police blocked the defendant’s vehicle from exiting. 

Unlike this case, in Livingstone the trooper activated his emergency lights

when he pulled up alongside the defendant. Here, as the trial court found, 

after Appellant pulled over on his own volition, Trooper Hochberg, 

accompanied by his partner Trooper Geiman, did nothing more than approach 

Appellant and ask him a couple of questions. Critically, the troopers did not 

activate their lights or sirens or block Appellant from exiting the driveway. 

Given the circumstances of this case, and similar to Au, Appellant’s late-night 

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9 This case is dissimilar from Commonwealth v. Cost, 224 A.3d 641, 652 

(Pa. 2020), where the Court determined that the interaction was an 

investigative detention because the officers retained the defendant’s 

identification while they asked him questions. Here, the troopers were not in 

possession of any property belonging to Appellant. 
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interaction with the troopers constituted a mere encounter. We cannot 

conclude that a reasonable person, innocent of any crimes, would have 

thought he was being restrained had he been in Appellant’s shoes. Thus, 

Appellant was not seized within the meaning of the Fourth Amendment or 

Article 1, Section 8 of the Pennsylvania Constitution. The trial court therefore 

did not err in denying his motion to suppress.10 Appellant is not entitled to 

relief. 

Judgment of sentence affirmed. 

President Judge Panella join the memorandum.

Judge Musmanno files a concurring statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/26/21

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10 Even if Appellant’s initial interaction with the troopers exceeded the bounds 

of a mere encounter, he still would not be eligible for relief. As the record 

here illustrates, the white drawing on the rear driver’s side window (of the 

vehicle that Appellant was operating) first attracted the troopers’ attention. 

To investigate and determine the legality of the drawing, the troopers would 

have been permitted to temporarily seize Appellant. See Commonwealth v. 

Salter, 121 A.3d 987, 993 (Pa. Super. 2015) (“Where a violation is suspected, 

but a stop is necessary to further investigate whether a violation has occurred, 

an officer need only possess reasonable suspicion to make a stop.”).