Opinion
203 WDA 2024 J-S39009-24
12-20-2024
COMMONWEALTH OF PENNSYLVANIA v. MELISSA LYNN MISHIK Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered February 2, 2024 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001894-2022
Benjamin D. Kohler, Esq.
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM
DUBOW, J.
Melissa Lynn Mishik ("Appellant") appeals from the judgment of sentence of 6 months' probation, with the first 30 days to be served on electronic home monitoring, entered in the Court of Common Pleas of Erie County following her conviction for Driving Under the Influence ("DUI")— General Impairment and DUI—High Rate of Alcohol. She challenges the denial of her suppression motion and the sufficiency of the evidence supporting her convictions. After careful review, we affirm.
75 Pa.C.S. 3802(a)(1) and (b), respectively.
A.
We glean the relevant factual and procedural history from the trial court's opinions. In the early morning hours of April 8, 2022, Troopers Adam Wassell and Nicholas Taylor of the Pennsylvania State Police were patrolling in Harborcreek Township in full uniform and a marked vehicle. At approximately 2:30 AM, they observed a white sedan parked at a McDonald's restaurant on Buffalo Road. The troopers were aware that a suspect who had recently robbed several Dollar General stores in Erie County drove a white sedan. At the time, they did not know the make or model of the suspect's sedan, or whether the suspect was male or female. The troopers informed their supervisor that they had seen a vehicle matching the description of the robbery suspect's vehicle.
The trial court addressed Appellant's sufficiency challenge in its Pa.R.A.P. 1925(a) Opinion and directed this Court to its May 2, 2023 Opinion and Order for an explanation of its reasons for denying Appellant's suppression motion. See Trial Ct. Op., 5/1/24, at 1.
The suppression court noted that "[w]hile the robberies had not occurred in the same township as this McDonalds restaurant, the robberies had occurred in Erie County." Opinion and Order, 5/2/23, at 2.
The troopers entered the parking lot and parked their vehicle approximately 25 feet away from the white sedan, a Buick LaCrosse. They did not activate their lights or sirens. Trooper Taylor exited the vehicle and approached the driver's door of the sedan, which was running and had its lights on. Trooper Wassell stayed near the back of the sedan and had no contact with the driver. Trooper Taylor smiled and waved at the driver, later identified as Appellant, who was eating a sandwich.
Although Trooper Taylor did not knock on her window or order her to open it, Appellant then opened her window. As he spoke to Appellant, Trooper Taylor smelled alcohol and saw that Appellant's eyes were bloodshot. Trooper Taylor asked Appellant for her identification, then returned to the patrol vehicle and activated its dashboard camera.
Trooper Wassell testified on cross-examination at the suppression hearing that he thought Trooper Taylor had either knocked on Appellant's window or told her to open it. N.T. Suppression, 3/28/23, at 14-15. However, the court credited Trooper Taylor's testimony that he merely smiled and waved at Appellant. Opinion and Order at 2.
Based on his observations and the late hour, Trooper Taylor asked Appellant to perform field sobriety tests. Appellant "stumbled" as she exited her vehicle and failed the field sobriety tests. Opinion and Order, 5/2/23, at 2. Trooper Taylor then administered a preliminary breath test, which showed that Appellant's blood alcohol content ("BAC") was greater than 0.08%. Accordingly, the troopers arrested Appellant for DUI.
On November 10, 2022, Appellant filed an omnibus pretrial motion seeking, inter alia, to suppress "any evidence as it relates to statements and/or evidence subsequent to Trooper Taylor approaching her vehicle." Omnibus Motion, 11/10/22, at ¶ 32. The court held a suppression hearing on March 28, 2023, at which both troopers testified in accordance with the above facts, and the Commonwealth played a recording of the troopers' dashboard camera. Trooper Taylor also testified that, although they approached Appellant to investigate whether she was involved in the robberies, he considered their initial interaction to be a mere encounter. Opinion and Order at 1.
On cross-examination of both troopers, Appellant introduced a report written by other troopers approximately two weeks before the stop, which described the robbery suspect as male and his white sedan as an Audi. However, the court credited the troopers' testimony that, at the time they stopped Appellant, they were unaware of this report and thus, did not know the vehicle's make or the suspect's gender. Id. at 2.
Following the hearing and supplemental briefing, the court denied suppression on May 2, 2023. On December 12, 2023, Appellant proceeded to a bench trial. At trial, Trooper Taylor testified that when they first saw Appellant's vehicle, "we could tell that it had headlights on. It appeared the vehicle was running." N.T. Trial, 12/12/23, at 7. Additionally, Trooper Wassell testified that he performed breathalyzer testing on Appellant at the station. Her first breath test sample indicated a BAC of 0.133% at 3:15 AM, and her second test sample indicated a BAC of 0.125% at 3:16 AM. During her closing argument, Appellant contended for the first time that the breath test procedures were "incomplete and insufficient" because Trooper Wassell did not testify that he performed a simulator test following Appellant's testing, and, thus, she "could ask the court not to consider the result[.]" N.T. Trial at 55-56.
The court convicted Appellant of the above charges. On February 2, 2024, the court sentenced Appellant on the DUI-High Rate of Alcohol conviction to 6 months' probation, with the first 30 days to be served on electronic home monitoring.
The DUI-General Impairment conviction merged for sentencing.
B.
Appellant filed a timely notice of appeal. Both she and the trial court complied with Pa.R.A.P. 1925. She raises the following issues for our review:
(1)Whether the [t]rial [c]ourt erred, as a matter of law, when it failed to find that the Pennsylvania State Police Trooper's initial encounter with [A]ppellant rose to the level of an unlawful investigative detention and whether the [t]rial [c]ourt should have suppressed the evidence.
(2)Whether the [t]rial [c]ourt erred, as a matter of law, when it found Appellant guilty of violating 75 Pa.C.S.[ §]3802(a)(1) [and] (b) based on insufficient evidence.Appellant's Br. at 4.
C.
In her first issue, Appellant challenges the denial of her motion to suppress. "Our standard of review in addressing a challenge to the 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." Commonwealth v. Evans, 153 A.3d 323, 327 (Pa. Super. 2016) (citation omitted). "Once a motion to suppress evidence has been filed, it is the Commonwealth's burden to prove, by a preponderance of the evidence, that the challenged evidence was not obtained in violation of the defendant's rights." Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa. 2012). Our scope of review of the suppression court's factual findings is limited to the record from the suppression hearing. Commonwealth v. Barr, 266 A.3d 25, 39 (Pa. 2021). "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. Cephus, 208 A.3d 1096, 1098 (Pa. Super. 2019) (citation omitted). We defer to the suppression court, "as factfinder[,] to pass on the credibility of witnesses and the weight to be given to their testimony." Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003).
The Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution "protect citizens from unreasonable searches and seizures." In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). There are three categories of interactions between police and a citizen: (1) mere encounter, (2) investigative detention, and (3) custodial detention. Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012). "To secure the right of citizens to be free from [unreasonable searches and seizures], courts in Pennsylvania require law enforcement officers to demonstrate ascending levels of suspicion to justify their interactions with citizens as those interactions become more intrusive." Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa. Super. 2000).
A mere encounter between a police officer and a citizen does not need to be supported by any level of suspicion and "carries no official compulsion on the part of the citizen to stop or to respond." Commonwealth v. Fuller, 940 A.2d 476, 479 (Pa. Super. 2007) (citation omitted). Furthermore, there is no constitutional provision that "prohibits police officers from approaching a citizen in public to make inquiries of them." Beasley, 761 A.2d at 624.
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." Commonwealth v. Hampton, 204 A.3d 452, 458 (Pa. Super. 2019) (citation omitted). Courts may consider "the threatening presence of 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. at 457 (citation omitted). The test for determining whether an interaction has escalated beyond a mere encounter is objective. Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa. Super. 2019). The subjective beliefs of the officer regarding whether a seizure has occurred "are immaterial to an objective seizure determination." Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014).
In Commonwealth v. Powell, the appellee was sitting in the driver's seat of his truck eating food from a nearby Taco Bell at approximately 11:30 PM. 228 A.3d 1, 2 (Pa. Super. 2020). Two law enforcement officers parked directly behind the vehicle and approached both sides of the vehicle. Id. at 3. One officer then knocked on the driver's window and ordered the appellee to open the window. Id. at 3, 6. The appellee complied, and the officer noticed he had glassy eyes and smelled strongly of alcohol. Id. at 3. The officer then ordered the appellee out of the truck and, following the appellee's failure of field sobriety tests, arrested him for DUI. Id. Appellee filed a suppression motion, which the trial court granted. Id. This Court affirmed, concluding that, under the circumstances, a reasonable person would not believe that he was not free to leave, and the encounter was, therefore, an investigative detention not supported by reasonable suspicion that criminal activity was afoot. Id. at 7-8.
By contrast, in Commonwealth v. Bathurst, we affirmed the denial of suppression where police officers parked approximately 15 yards behind the appellant's vehicle that was parked on the side of the road at approximately 2:00 AM, only one officer approached his vehicle, and the appellant opened his window with no prompting from police. 288 A.3d 492, 499-500 (Pa. Super. 2023). We concluded that this initial encounter was a mere encounter requiring no level of suspicion because the police officer had credibly testified that he was conducting a welfare check. Id. at 500.
We concluded the encounter became an investigative detention supported by reasonable suspicion after the officer noticed after the appellant rolled down his window that the appellant appeared to be drunk. Bathurst, 288 A.3d at 500.
Here, Appellant argues that the troopers' initial interaction with her was an investigative detention because the troopers' actions indicated that she was not free to leave. Appellant's Br. at 14. Specifically, she asserts that, like in Powell, supra, she was subject to an investigative detention because she was eating in her legally parked vehicle when the troopers, who were in uniform and armed, parked near her vehicle and approached it from both sides. Id. at 18-19. Appellant maintains that the suppression court "erroneously found [both] that Trooper Taylor's actions of waving at Appellant was not a show of authority, and that a reasonable person would have felt free to leave or disregard the Troopers [sic] presence." Id. Finally, she argues that the troopers' uncontradicted testimony that they approached her to investigate should have precluded the court from finding that the interaction was a mere encounter. Id. at 19.
Appellant initially maintains that there was contradictory testimony as to whether Trooper Taylor had knocked on her window or ordered her to open it, but she later concedes that this case is distinguishable from Powell because the troopers did not order her to open her window. Appellant's Br. at 18-19, 24.
The suppression court determined that the troopers' initial interaction with Appellant was a mere encounter that legally developed into an investigative detention. Opinion and Order at 3. In support, the court noted that: (1) the troopers parked 25 feet away from Appellant; (2) they did not activate their lights or sirens; and (3) Trooper Taylor's demeanor was pleasant when he spoke to Appellant. Opinion and Order at 3. Significantly, the court credited Trooper Taylor's testimony that he did not order Appellant to open her window. Id. The court distinguished this case from Powell because the troopers did not park next to Appellant, "block her in[,]" or order her to open her window—rather, Appellant opened the window when Trooper Taylor waved and smiled at her. Id. at 3-4. Accordingly, the court determined that, although the troopers approached Appellant because her vehicle matched the description of the robbery suspect's vehicle, their behavior did not indicate that Appellant was not free to leave, and the interaction did not develop into an investigative detention until Trooper Taylor noticed Appellant's intoxication, which, thus, gave him reasonable suspicion that Appellant had driven while intoxicated. Id. at 4.
The court also noted in support that both troopers described the interaction as a mere encounter. However, as this Court previously noted, the troopers' subjective beliefs about whether Appellant was seized are "immaterial to an objective seizure determination." Lyles, 97 A.3d at 302.
Based on our review, we conclude that the suppression court's findings of fact are supported by the evidence presented at the suppression hearing. The troopers' testimony indicated that they parked their vehicle 25 feet away from Appellant's vehicle, not directly behind it, and they did not order her to open her window. Given these facts, we agree with the suppression court's determination that the troopers' behavior would not have led a reasonable person to believe that they were not free to leave. Accordingly, we conclude that the troopers' initial interaction with Appellant was a mere encounter until after Appellant opened her window, when Trooper Taylor observed signs of intoxication that provided reasonable suspicion that Appellant had engaged in criminal activity, i.e., driving while intoxicated. Finally, contrary to Appellant's argument, the troopers' testimony that they stopped Appellant to investigate whether she was involved in the robberies is irrelevant to whether Appellant was subject to an investigative detention. Lyles, 97 A.3d at 302. The trial court, thus, did not err in denying suppression, and this claim merits no relief.
D.
Appellant next challenges the sufficiency of the evidence supporting her convictions. Appellant's Br. at 30. Our standard of review for challenges to the sufficiency of evidence is well settled. "Viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, and taking all reasonable inferences in favor of the Commonwealth, the reviewing court must determine whether the evidence supports the fact-finder's determination of all of the elements of the crime beyond a reasonable doubt." Commonwealth v. Hall, 830 A.2d 537, 541-42 (Pa. 2003). A conviction may be sustained based wholly on circumstantial evidence, and the trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence. Commonwealth v. Melvin, 103 A.3d 1, 40 (Pa. Super. 2014). In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for that of the fact-finder. Id. at 39-40.
Further, "[t]he facts and circumstances proved must, in order to warrant a conviction, be such as to establish the guilt of the defendant, not necessarily beyond a moral certainty, nor as being absolutely incompatible with his innocence, but at least beyond a reasonable doubt." In Interest of J.B., 189 A.3d 390, 408 (Pa. 2018) (citation omitted).
The court convicted Appellant of DUI pursuant to Section 3802(a)(1) and (b). Section 3802(a)(1), General Impairment, provides:
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.75 Pa.C.S. § 3802(a)(1). Section 3801(b), High Rate of Alcohol, provides:
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.Id. at (b).
Appellant first asserts that the only evidence "relative to whether [she] was in operation or physical control" of the vehicle—Trooper Taylor's testimony that the vehicle's lights were on, it "appeared" to be running, and Appellant was in the driver's seat—was insufficient to establish that she operated or was in actual physical control of the vehicle. Appellant's Br. at 33, 37-38. She maintains that the dash camera footage of her field sobriety tests "clearly depicts a vehicle that is not running" and argues that the record is "devoid of sufficient evidence" of both the location of the keys and "whether Appellant drove her vehicle to the scene, or if she was dropped off by a friend to pick up her vehicle." Id. at 37.
We have previously explained that the Commonwealth may establish actual physical control of a vehicle
based on the totality of the circumstances. But to have such physical control of a vehicle, Pennsylvania law requires that the defendant have real (not hypothetical), bodily restraining or directing influence over, or domination and regulation of, its movements or machinery. It is not necessary that the vehicle itself must be in motion but it is sufficient if the operator is in actual physical control of either the machinery of the motor vehicle or of the management of the movement of the vehicle itself. Courts review a combination of factors to determine whether a person exhibited actual physical control of a vehicle, including, the motor running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle.Commonwealth v. Dourlain, 315 A.3d 868, 874-75 (Pa. Super. 2024) (internal citations, quotation marks, and brackets omitted). See also Commonwealth v. Toland, 995 A.2d 1242, 1246 (Pa. Super. 2010) (holding that sufficient evidence established actual physical control where the appellant was asleep in the driver's seat of the vehicle parked in a store parking lot with the ignition and headlights on.).
After reviewing the record in the light most favorable to the Commonwealth as the verdict winner, we conclude that the evidence was sufficient to establish that Appellant was in actual physical control of the vehicle. Appellant was in her vehicle in a parking lot, and the court credited Trooper Taylor's testimony that the vehicle's lights were on and that it "appeared" to be running. Trial Ct. Op., 5/1/24, at 2. Appellant's argument essentially asks this Court to view the evidence in a light most favorable to her which we cannot do. Accordingly, this claim merits no relief.
Appellant also argues that the Commonwealth failed to establish that her BAC was between 0.10% and 0.16% as required to sustain a conviction under Section 3802(b) because it failed to offer sufficient evidence of compliance with breath test procedures and regulations. Appellant's Br. at 38. Specifically, she argues that "[t]he admissibility of chemical test results depends on strict compliance with the statutory requirements of 75 Pa.C.S.[] § 1547(c) and 67 Pa. Code § 77.24." Id. at 39. She emphasizes that there was no testimony or other evidence submitted indicating that the officers conducted a simulator test immediately after Appellant completed her second breath test, which is "required every time a breath test is utilized pursuant to 67 Pa. Code 77.24, to determine whether the test results were accurate and whether the breath testing device should be removed from service." Id.
The statute and regulation that Appellant cites in support of this sufficiency argument pertain to the admissibility of chemical test results, including breath tests. See 75 Pa.C.S. § 1547(c) (describing requirements for admissibility of chemical test results); 67 Pa. Code § 77.24 (describing breath test procedures). We have recognized that compliance with both Section 1547 and Section 77.24 are "mandatory for admissibility" of chemical test results. Commonwealth v. Thill, 612 A.2d 1043, 1047 (Pa. Super. 1992) (reversing denial of suppression); see also Commonwealth v. Mabrey, 594 A.2d 700, 700, 703 (Pa. Super. 1991) (affirming suppression of breath test results which were obtained in violation of the regulations in 67 Pa. Code §§ 77.21-77.27, and thus, inadmissible).
Based on the above case law, Appellant's argument implicates the underlying admissibility of the results, not the sufficiency of the evidence supporting her conviction. Appellant did not, however, challenge the admissibility of the test results, either in her motion to suppress or at trial when the Commonwealth proffered the test results, and the court admitted them. N.T. Trial at 49-50. Accordingly, any argument concerning their admissibility is waived. 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.").
Appellant's mention of this claim during her closing argument was insufficient to preserve it for appeal; rather, she was required to make a contemporaneous objection when the court admitted the test results. See Commonwealth v. Smith, 213 A.3d 307, 309 (Pa. Super. 2019) (citation omitted) ("The absence of a contemporaneous objection below constitutes a waiver of the claim on appeal.").
Furthermore, once the breath test results were admitted, the court, as factfinder, could properly consider them, along with the other evidence presented at trial. Appellant has failed to inform this Court, or provide any case law establishing, how the evidence presented and admitted at trial was insufficient to sustain her conviction under Section 3802(b). Following our review of the record in the light most favorable to the Commonwealth, we conclude that the evidence was sufficient to establish that Appellant's "alcohol concentration in [her] blood or breath [was] at least 0.10% but less than 0.16%"—the range required to sustain a conviction under Section 3802(b). Accordingly, this sufficiency challenge fails.
E.
Following our review, we conclude that Appellant's claims fail to garner relief. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered,