J-S41022-22
2023 PA Super 4
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY L BATHURST, JR. :
:
Appellant : No. 821 MDA 2022
Appeal from the Judgment of Sentence Entered April 14, 2022
In the Court of Common Pleas of Centre County
Criminal Division at CP-14-CR-0000401-2021
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY MURRAY, J.: FILED JANUARY 06, 2023
Gary L. Bathurst (Appellant) appeals from the judgment of sentence
entered after the trial court convicted him of driving under the influence of
alcohol (DUI) (incapable of safe driving – first offense), DUI (blood alcohol
concentration (BAC) between 0.08% and 0.10%) and DUI (high rate of alcohol
– BAC between 0.10% and 0.16%).1 After careful review, we affirm.
At 1:53 a.m. on October 10, 2020, Pennsylvania State Trooper Shane
Eichelberger and Pennsylvania State Trooper Nathan Gordon were on routine
patrol in a marked police cruiser in Centre County. While patrolling on North
Eagle Valley Road, they observed a truck parked in a vehicle pull-off with its
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* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(a)(1)-(2), (b).
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rear lights on. The troopers entered the pull-off and parked about 15 yards
behind the truck.
Trooper Eichelberger exited the police cruiser and walked to Appellant’s
truck. As the trooper approached, Appellant rolled down the driver’s side
window and lowered the volume on the radio. The trooper immediately
noticed the odor of alcohol coming from inside the truck. He further observed
that keys were in the ignition and the engine was running. Additionally,
Trooper Eichelberger saw an open case of beer in the rear of the truck, but no
empty containers. When the trooper asked, Appellant at first denied that he
had been drinking, but then admitted he had a couple of drinks at a local bar
before driving to the pull-off. Because Appellant showed signs of intoxication,
Trooper Eichelberger directed him to exit the truck. The troopers then
administered field sobriety tests which Appellant failed. The troopers arrested
Appellant for DUI and drove him to the hospital for a BAC test. The test
revealed Appellant had a BAC of .114%, plus or minus .014%.
Appellant filed a pre-trial suppression motion. Following a hearing on
January 3, 2022, the suppression court denied the motion. The case
proceeded to trial, and the trial court convicted Appellant of the above
charges. On April 14, 2022, the trial court sentenced Appellant to an
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aggregate six months of probation.2 Appellant timely appealed. Appellant
and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents two issues for review:
I. Whether the Suppression Court abused its discretion and erred
as a matter of law in denying [Appellant’s] motion to suppress all
evidence and fruit of the poisonous tree, which was obtained as a
result of the search and seizure at issue since the arresting
officer’s initial encounter with [Appellant] was, from its inception,
an investigative detention that was not supported by reasonable
suspicion?
II. Whether the evidence presented at [Appellant’s] nonjury trial
was insufficient to support the guilty verdicts for 75 Pa.C.S.A.
§ 3802(a)(1), 75 Pa. C.S.A. § 3802(a)(2), and 75 Pa. C.S.A.
§ 3802(b) since the Commonwealth failed to prove, beyond a
reasonable doubt, that [Appellant] operated, or was in actual
physical control of the movement of his motor vehicle after
imbibing a sufficient amount of alcohol to render him incapable of
safely driving, operating, or being in actual physical control of his
motor vehicle?
Appellant’s Brief at 7.
Appellant first argues that the trial court improperly denied his
suppression motion. He asserts:
Trooper Eichelberger and Trooper Gordon’s interaction with
Appellant was, from its inception, an investigative detention
unsupported by a reasonable articulable belief that Appellant had
violated any provisions of the Motor Vehicle Code or that Appellant
was engaged in criminal activity.
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2 Pursuant to this Court’s directive, the trial court amended its docket to
properly reflect the April 14, 2022, judgment of sentence. Commonwealth
v. Bathurst, No. 821 MDA 2022 (Pa. Super. June 24, 2022) (order).
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Id. at 17. Appellant challenges the court’s reasoning based on Trooper
Gordon not being in close proximity to Appellant “when analyzing the factor
of police presence, which is necessary when evaluating police-citizen
interaction.” Id. at 24. Appellant claims Trooper Gordon was near him and
his truck during Trooper Eichelberger’s initial approach. Id. at 24-25. He
states that the police cruiser was parked “a short distance” behind his truck.
Id. at 25. According to Appellant, he “was surrounded by two uniformed State
Troopers, who were shining their flashlights into his vehicle.” Id. (footnote
omitted). Appellant assails the suppression court’s reliance on the troopers’
testimony that there were “no physical impediments that would have
prevented Appellant from driving away[.]” Id. at 26. Appellant further
challenges the suppression court’s emphasis on Appellant rolling down his
window without being asked to do so. Id. Appellant relies on
Commonwealth v. Powell, 228 A.3d 1 (Pa. Super. 2020), where this Court
found an investigative detention under similar circumstances.
Id. at 26-27.
Appellant argues:
In the instant matter, the Suppression Court’s conclusion ignores
the fact that two uniformed state troopers pulled up behind
Appellant’s lawfully parked vehicle in their marked police units at
1:53 a.m., and proceeded to approach Appellant’s vehicle on both
sides, all while shining their flashlights in Appellant’s vehicle.
Under the totality of the circumstances, a reasonable citizen who
was approached by multiple state troopers, with their full display
of authority, would have felt compelled to believe that they had to
roll down their window so that the trooper could engage with
them, even without any direct commands to do so.
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Id. at 27. Appellant claims the troopers effectuated an investigative detention
unsupported by reasonable suspicion.
Id. at 28. We disagree.
Our standard of review is well-settled:
When we review the ruling of a suppression court, we must
determine whether the factual findings are supported by the
record. When it is a defendant who appealed, we must consider
only the evidence of the prosecution and so much of the evidence
for the defense as, fairly read in the context of the record as a
whole, remains uncontradicted. Assuming that there is support in
the record, we are bound by the facts as are found and we may
reverse the suppression court only if the legal conclusions drawn
from those facts are in error.
Commonwealth v. Brame, 239 A.3d 1119, 1126 (Pa. Super. 2020) (citation
and brackets omitted). Our scope of review is limited to the record developed
at the suppression hearing, considering the evidence presented by the
Commonwealth as the prevailing party and any uncontradicted evidence
presented by the appellant. Commonwealth v. Fulton,
179 A.3d 475, 487
(Pa. 2018).
There are three categories of encounters between citizens and the
police:
(1) A mere encounter, (2) an investigative detention, and (3)
custodial detentions. The first of these, a “mere encounter” (or
request for information), need not be supported by any level of
suspicion, but carries no compulsion to stop or respond. Second,
an “investigative detention” must be supported by reasonable
suspicion; 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. Finally, an arrest or “custodial
detention” must be supported by probable cause.
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Commonwealth v. Baldwin, 147 A.3d 1200, 1202 (Pa. Super.
2016) (citation omitted). Mere encounters need not be supported by any level
of suspicion of illegality, but an investigative detention must be supported by
reasonable suspicion of criminal activity. Commonwealth v. Adams,
205
A.3d 1195, 1200 (Pa. 2019).
The line between mere encounters and investigative detentions is
demarcated by an objective test known as the “free to leave” test. Id.; see
also Florida v. Bostick, 501 U.S. 429, 434 (1991) (“So long as a reasonable
person would feel free ‘to disregard the police and go about his business,’ …
the encounter is consensual and no reasonable suspicion is required.” (citation
omitted)); Terry v. Ohio,
392 U.S. 1, 19, n.16 (1968) (“Only when the
officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen may we conclude that a ‘seizure’ has
occurred.”). The “free to leave” test “requires the court to determine
‘whether, taking into account all of the circumstances surrounding the
encounter, the police conduct would ‘have communicated to a reasonable
person that he was not at liberty to ignore the police presence and go about
his business.’” Adams,
205 A.3d at 1200 (quoting Bostick,
501 U.S. at 437).
We have explained:
To determine whether a mere encounter rises to the level of an
investigatory detention, we must discern whether, as a matter of
law, the police conducted a seizure of the person involved. To
decide whether a seizure has occurred, a court must consider all
the circumstances surrounding the encounter to determine
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whether the demeanor and conduct of the police would have
communicated to a reasonable person that he or she was not free
to decline the officer’s request or otherwise terminate the
encounter. Thus, the focal point of our inquiry must be whether,
considering the circumstances surrounding the incident, a
reasonable person innocent of any crime, would have thought he
was being restrained had he been in the defendant’s shoes.
Commonwealth v. Reppert, 814 A.2d 1196, 1201-02 (Pa. Super. 2002)
(citations omitted).
In Powell, we concluded that officers had effectuated an investigative
detention. Powell, 228 A.3d at 2. While on routine patrol at 11:37 p.m.,
Edinboro Police Officer William Winkler and a sheriff’s deputy observed Ronald
Powell’s truck parked perpendicular to parking lines in a small public parking
lot.
Id. at 2. The truck’s engine was running, and no other cars were in the
lot.
Id. Officer Winkler pulled his marked vehicle directly behind the
passenger side of the truck but did not activate his lights.
Id. Officer Winkler
and the deputy exited their vehicle and approached Powell’s driver and
passenger side windows, respectively.
Id. Although the windows were
closed, Officer Winkler could see Powell eating food from Taco Bell.
Id.
Importantly, Officer Winkler ordered Powell to roll down his window. After
Powell complied, Officer Winkler smelled a strong odor of alcohol and saw that
Powell’s eyes were glassy.
Id. at 3. Officer Winkler then administered field
sobriety tests.
Id. When Powell failed the tests, Officer Winkler arrested him
for DUI.
Id. This Court affirmed the suppression court’s determination that
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under such circumstances, a reasonable person would not have believed he
was free to leave. We explained:
… Officer Winkler did not physically restrain Powell’s
movement. However, there were other factors in this case that
convince us that a reasonable person in Powell’s position would
not have felt free to leave. Namely, while Powell sat alone in his
vehicle, parked legally and eating food from a nearby restaurant,
Officer Winkler parked his vehicle “right behind” Powell’s
car. He and the sheriff’s deputy both approached Powell’s
vehicle and positioned themselves on either side of it.
Although Officer Winkler could see that Powell was innocuously
eating food, he knocked on Powell’s window. When Powell
looked at him, Officer Winkler ordered Powell to lower his
window. In light of the totality of these circumstances,
Powell was subjected to an investigative detention at the
point of that command.
Id. at 7-8 (emphasis added).
By contrast, the evidence presented at Appellant’s suppression hearing,
viewed in a light most favorable to the Commonwealth, supports the
suppression court’s denial of suppression. At 1:53 a.m. on October 10, 2020,
Trooper Eichelberger and Trooper Gordon observed taillights in a pull-off. N.T.
(Suppression Hearing), 1/3/22, at 1-2, 6. Trooper Eichelberger testified:
I specifically[] remember my partner, Trooper Gordon, noticing
the taillights because I remember him saying, well, that’s weird,
there’s taillights but there’s no headlights. At least we don’t
remember seeing headlights as we passed.
Id. at 11.3
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3 Trooper Eichelberger testified Appellant’s headlights were not on when the
troopers “were up at” Appellant’s vehicle.
Id. at 11.
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According to Trooper Eichelberger,
we c[a]me in through the second entrance and approach[ed] the
vehicle from the rear. I specifically remember – I didn’t turn on
my [red and blue police] lights at all, just like I normally do. Every
time I see a car parked there, especially at that time of night, I
always want to check on the operator and make sure he’s okay.
So I always like to stop and talk to the operator, if they’re okay,
I’m on my way.
So I pull in, see the vehicle … I park my patrol vehicle, I
would say at least 15 yards away, and I walk from the patrol
vehicle on foot up to the driver’s side of the vehicle.
Id. Notably, Trooper Eichelberger did not activate his red and blue police
lights, and parked “at least 15 yards away” from Appellant’s truck. See
id.
(explaining Appellant could have driven forward without impediment).
Trooper Eichelberger continued:
[A]s I approach[ed] from the driver’s side, [Appellant] rolled down
his window.4 As he rolled down his window, I immediately
detected an odor of alcohol emanating from the vehicle. While
speaking with him, he initially denied drinking alcohol but then he
later admitted that he got in an argument with his girlfriend, that
he was just waiting to go to work. So he was sitting [there]
waiting to go to work, and that he worked in the Bellefonte area
doing construction.
Id. at 8 (footnote added). According to the trooper, Appellant “made it seem
like he just got done at the Linger[-]In” bar.
Id. at 27. Trooper Eichelberger
observed that Appellant had “[s]luggish, glassy, bloodshot eyes,” and saw an
open case of beer on the backseat of the truck.
Id. at 8. During this initial
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4 Trooper Eichelberger later testified he asked Appellant, “Are you okay, sir?”
Id. at 23.
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encounter, which Trooper Eichelberger described as a welfare check, he did
not tell Appellant he was under arrest or could not leave. Id. at 8-9. Likewise,
he did not exercise any force or restrain Appellant.
Id. at 9.
Trooper Gordon also testified that the troopers drove into the pull-off
area after seeing taillights. Id. at 30. Trooper Gordon stated that after the
troopers parked their cruiser, “Nothing was blocking the front of [Appellant’s]
vehicle. He also, facing southbound, could have went out the southern exit of
that pull-off.”
Id. at 31. Trooper Gordon confirmed that Trooper Eichelberger
first approached Appellant’s truck.
Id. Trooper Gordon could not hear the
conversation.
Id. at 40, 41.
The totality of the circumstances in this case are distinguishable from
Powell. As the suppression court explained:
The court did review the case of Commonwealth v[.] Powell ….
The court does make a couple of distinctions from this case.
One, … the court [in Powell] relied on the fact that the
officer ordered the defendant to lower his driver’s side window. In
this case, that was not the testimony that was provided[;] Trooper
Eichelberger testified that [Appellant] voluntarily lowered his
window.
There was also, from the Powell decision, … officers [that]
both approached the driver’s side and the passenger’s side. The
court [in the instant case], based on the testimony that it heard
today, that actually Trooper Eichelberger made the first contact
initially to check … to see if [Appellant] was okay, based on it was
1:53 a.m., obviously this is a rural area, they did not see
headlights, and Trooper Eichelberger testified that he has
check[ed] on the welfare of motorists in that position late at night
on other occasions. So the court will chock that up as a welfare
check by the trooper.
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Based on that, the initial interaction was just a mere
encounter and [Appellant] would have been free to leave, the
reasonable person would have thought they would have been free
to leave, and it did not escalate into an investigative detention
until the trooper smelled alcoholic beverage upon talking to
[Appellant].
N.T., 1/3/22, at 51-52 (some capitalization omitted).
The record supports the suppression court’s rationale. See id.;
see also Commonwealth v. Collins, 950 A.2d 1041, 1047-48 (Pa. Super.
2008) (officer was permitted to check on the welfare of occupants of a legally
parked car at night even with no outward signs of distress, where he did not
observe anything that led him to believe that something illegal was going on).
Our review further discloses that Trooper Eichelberger’s subsequent
investigative detention of Appellant was supported by reasonable suspicion.
Appellant initially denied drinking, but then admitted consuming a couple of
drinks at the Linger-In bar before driving to the pull-off; there were no empty
beer cans or other evidence that Appellant had consumed alcohol while parked
at the pull-off; and Appellant showed multiple signs of alcohol impairment.
Given the totality of circumstances, we discern no error by the suppression
court.
In his second issue, Appellant challenges the sufficiency of the evidence.
Appellant’s Brief at 29. Appellant specifically claims there insufficient evidence
that he was operating or in physical control of his truck. Id. Appellant asserts
there is no
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[legal] authority that would suggest that a citizen could be found
to be in actual, physical control[] of a motor vehicle simply by
being found in the driver’s seat with the motor running. Rather,
there must be additional evidence to suggest that the defendant
had been intoxicated when they started their vehicle and intended
to drive from that area.
Id. at 32. Appellant points out that his headlights were not illuminated, and
he was not wearing his seatbelt. Id. He claims, “the Commonwealth could
not present any evidence as to when Appellant had driven or if he was
intoxicated when he had driven.” Id. at 32-33.
We recognize:
Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary. We review the evidence in the light most
favorable to the verdict winner to determine whether there is
sufficient evidence to allow the [factfinder] to find every element
of a crime beyond a reasonable doubt.
Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super. 2015) (citations
and quotation marks omitted).
In applying the above test, we may not weigh the evidence and
substitute our judgment for [that of] the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
Any doubts regarding a defendant’s guilt may be resolved by the
fact-finder unless the evidence is so weak and inconclusive that
as a matter of law[,] no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
[factfinder,] while passing upon the credibility of the witnesses
and the weight of the evidence produced, is free to believe all,
part] or none of the evidence.
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Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014).
Section 3802 of the Motor Vehicle Code provides:
(a) General impairment.
(1) An individual may not drive, operate or be in actual
physical control of the movement of a vehicle after imbibing a
sufficient amount of alcohol such that the individual is
rendered incapable of safely driving, operating or being in
actual physical control of the movement of the vehicle.
(2) An individual may not drive, operate or be in actual
physical control of the movement of a vehicle after imbibing a
sufficient amount of alcohol such that the alcohol
concentration in the individual’s blood or breath is at least
0.08% but less than 0.10% within two hours after the
individual has driven, operated or been in actual physical
control of the movement of the vehicle.
(b) High rate of alcohol. — An individual may not drive, operate
or be in actual physical control of the movement of a vehicle after
imbibing a sufficient amount of alcohol such that the alcohol
concentration in the individual’s blood or breath is at least 0.10%
but less than 0.16% within two hours after the individual has
driven, operated or been in actual physical control of the
movement of the vehicle.
75 Pa.C.S.A. § 3802(a)(1)-(2), (b).
Appellant challenges the sufficiency of the evidence with respect to his
operation and physical control of his truck. Appellant’s Brief at 33. We have
explained:
“The term ‘operate’ requires evidence of actual physical
control of either the machinery of the motor vehicle or the
management of the vehicle’s movement, but not evidence that
the vehicle was in motion.” Commonwealth v. Toland, 995
A.2d 1242, 1246 (Pa. Super. 2010) (quoting Commonwealth v.
Brotherson, 888 A.2d 901, 904 (Pa. Super. 2005)). “The
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Commonwealth can establish through wholly circumstantial
evidence that a defendant was driving, operating or in actual
physical control of a motor vehicle.” Id. (quoting Brotherson,
888 A.2d at 905). Courts review “a combination of the
following factors” to determine “whether a person had ‘actual
physical control’ of an automobile: the motor running, the location
of the vehicle, and additional evidence showing that the defendant
had driven the vehicle.” Id. (quoting Brotherson,
888 A.2d at
904). “A determination of actual physical control of a vehicle is
based upon the totality of the circumstances.” Id. (quoting
Brotherson, 888 A.2d at 905).
Commonwealth v. Fallon,
275 A.3d 1099, 1105 (Pa. Super. 2022).
Here, the Commonwealth presented evidence that Appellant parked his
truck in the pull-off with its rear lights on. N.T. (Trial), 3/14/22, at 5-6.
Trooper Eichelberger testified, “after my partner stated that he observed
taillights, we pulled in from the northern entrance, approaching the vehicle
from the rear.” Id. at 9. As Trooper Eichelberger walked toward the truck,
Appellant rolled down his window. Id. at 10. The trooper saw keys in the
ignition and the engine was running. Id. at 12. Trooper Eichelberger testified:
[Appellant’s] eyes were bloodshot, he appeared sluggish, had
slurred speech. He indicated that he was sitting there at the pull
off waiting to go to work, which I felt was odd because it was a
Sunday morning, but that’s what he stated. He was just waiting
to go to work. He got in this argument with his girlfriend, and
that he had just came from the Linger-In Tavern where he had
two beers.
…
So initially when I asked him, he stated that he did not drink.
While standing there I also observed an open case of [beer] in the
back seat … behind where [Appellant] was seated. At which point
he’s like, I did have two beers at Linger-In, I came from there.
I’m now sitting here waiting to go to work.
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Id. at 11-12. Appellant told Trooper Eichelberger the case of beer was “old.”
Id. at 13.
On cross-examination, Trooper Eichelberger repeated that Appellant
admitted to drinking two beers at the Linger-In. Id. at 26. Trooper
Eichelberger explained:
[Appellant] said [he] just came from the Linger-In. He never gave
an exact time. He never said – I don’t know if his interpretation
is just coming from the Linger-In is an hour ago or if it’s 15
minutes ago. He never gave that interpretation. That’s just the
words he provided to me.
Id. at 26. After Appellant failed field sobriety tests, his BAC was tested and
“was .114 [percent], plus or minus .014 percent.” Id. at 20.
In deeming the evidence sufficient to demonstrate Appellant operated
or was in physical control of the vehicle, the trial court opined:
Here, testimony was presented at [Appellant’s] Non-Jury Trial which
suggested that [Appellant’s] vehicle’s engine was running and the
stereo was active when responding troopers discovered his vehicle
on a public highway pull-off and approached. The evidence reflected
[Appellant’s] own admission that he had drank two beers shortly
before driving to the location where he was found by the responding
troopers. … This [c]ourt … was satisfied by the Commonwealth’s
showing that [Appellant] exercised actual physical control of his
vehicle after imbibing a sufficient amount of alcohol to render him
unable to safely exercise such control. This evidence, viewed in a
light most favorable to the Commonwealth, established that
Appellant violated 75 Pa.C.S.A. § 3802(a)(1)-(2) and (b)….
Because [Appellant’s BAC] concentration was found to be .114%,
plus or minus .014%, and because [Appellant] was in actual
physical control of his vehicle, the evidence supports this [c]ourt’s
verdict.
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Trial Court Opinion, 6/28/22, at 4-5; see also id. at 6 (evidence sufficient to
sustain Appellant’s conviction under Section 3802(a)(2)); 7 (evidence
sufficient to sustain Appellant’s conviction under Section 3802(b)). As the
record supports the trial court’s findings, we discern no error.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/06/2023
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