Com. v. Ward, J.

2024 Pa. Super. 133, 318 A.3d 410

• Court: Superior Court of Pennsylvania
• Decided: June 28, 2024
• Docket: 1613 EDA 2023
• Status: Published

Opinion

J-S06022-24

2024 PA Super 133

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA W. WARD : : Appellant : No. 1613 EDA 2023

Appeal from the Judgment of Sentence Entered May 23, 2023 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001157-2022

BEFORE: DUBOW, J., McLAUGHLIN, J., and SULLIVAN, J.

OPINION BY McLAUGHLIN, J.: FILED JUNE 28, 2024

Joshua W. Ward appeals from the judgment of sentence entered

following his convictions for three counts of driving under the influence (“DUI”)

and one count each of possession of a small amount of marijuana and

possession of drug paraphernalia. 1 Ward challenges the denial of his motion

to suppress. We affirm.

Ward’s convictions stem from his encounter with two Pennsylvania State

Troopers while his vehicle was stopped on the shoulder of a ramp. Following

this encounter, the troopers arrested Ward for DUI. Ward filed a motion to

suppress, arguing that the encounter with the troopers was illegal because

the troopers did not have a warrant, they lacked reasonable suspicion or

probable cause, and the stop was not justified by the community caretaking

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1 See 75 Pa.C.S.A. §§ 3802(d)(1)(i), (d)(1)(iii), (d)(2), and 35 P.S. §§ 780-

113(a)(31)(ii), (a)(32), respectively. J-S06022-24

doctrine or any other warrant exception. See Motion to Suppress, filed

8/18/22, at ¶ 10. He argued that any evidence recovered from his vehicle

should be suppressed because of the illegal stop. See id. at ¶ 11.

The court held a hearing on the motion where Trooper Colton

Demberger testified. N.T., Suppression Hearing, 8/29/22. He explained that

while on duty with his partner, Trooper Justin Pfeifer, at approximately 10:53

p.m., he observed a vehicle parked on the shoulder “at the top of the ramp.”

Id. at 8, 18. Trooper Demberger observed that “[t]he vehicle was running and

I saw the driver’s side door was ajar.” Id. at 8. Trooper Demberger testified

that he and his partner pulled behind the vehicle and activated the police car’s

lights. Id. at 8, 11. He explained that they “pulled up behind the vehicle to

check on the welfare of the operator, because we believed him to be throwing

up[.]” Id. at 8. He also explained that a welfare check is not a traffic stop but

rather entails “checking on the operator[.]” Id. at 10.

When Trooper Demberger approached the driver of the vehicle, he met

Ward, who was the sole occupant of the vehicle, and asked “if everything was

okay.” Id. at 10, 13. Trooper Demberger testified that Ward “did admit that

he was throwing up and he was sweating profusely.” Id. at 9. He also testified

that when he approached the vehicle, Ward’s “legs were outside the driver’s

side door and he was leaning over,” such that it appeared to the trooper that

Ward “was throwing up[.]” Id. at 11. Trooper Pfeifer, who approached the

passenger side of the vehicle, “observed a pill container in the passenger side

door compartment[.]” Id. at 9. Trooper Demberger noticed a smell of

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marijuana coming from the vehicle and “asked if [Ward] had consumed

marijuana.” Id. at 10. Ward admitted that he had, earlier in the day. Id.

Trooper Pfeifer asked Ward to show the pill container, which he did, and the

troopers observed that it contained marijuana leaves. Id. Trooper Demberger

testified that at the point of smelling the odor of marijuana, the “welfare check

then turned into a DUI investigation.” Id.

On cross-examination, defense counsel introduced the Motor Vehicle

Recording (“MVR”) footage. Id. at 21. Trooper Demberger agreed that based

on the footage, Ward was standing outside of the vehicle and then sat down

in the driver’s seat. Id. at 23. He also agreed that the recording showed that

Ward’s vehicle was “fully off of what would be considered the lane of travel on

the on-ramp[.]” Id.

The trial court denied the motion to suppress. See Order, filed 12/6/22.

It concluded that Ward was seized but the public servant exception of the

community caretaking doctrine applied.2 The court explained that Trooper

Demberger’s “main purpose was to render assistance to [Ward] who appeared

to be sick.” See Opinion, filed 12/6/22, at ¶ 44. It noted that Ward’s vehicle

was on the “ramp with its driver’s door open and its operator, who appeared

to have been vomiting, out of the vehicle.” Id. at ¶ 40. The court also reasoned

that the troopers “spoke to Mr. Ward in an effort to determine whether he in

2 The court stated that the emergency aid exception applied but analyzed the

facts of the case according to the public servant exception of the community caretaking doctrine.

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fact needed assistance.” Id. at ¶ 44. The court also determined that the

troopers had reasonable suspicion that Ward had been driving under the

influence.

Ward proceeded to a jury trial, and the jury found him guilty of the

above-referenced offenses. The court sentenced Ward to an aggregate term

of 20 to 84 months’ incarceration for DUI and a concurrent term of one year

probation for the possession of drug paraphernalia. The court imposed no

further penalty for possession of a small amount of marijuana. This timely

appeal followed.3

Ward raises the following issues:

I. Was the suppression court correct in denying [Ward’s] motion to suppress all evidence recovered from [Ward], following his unlawful detention?

II. Was the suppression court correct in finding that [Ward] was lawfully seized and detained without a warrant?

III. Was the suppression court correct in finding that the stop of [Ward] was lawful and justified by the Community Caretaker Doctrine or one of its recognized exceptions, including the public servant exception?

Ward’s Br. at 4.

When reviewing an order denying a motion to suppress, “we may

consider only the evidence of the Commonwealth and so much of the evidence

for the defense as remains uncontradicted.” Commonwealth v. Yandamuri, ____________________________________________

3 On July 31, 2023, the trial court granted Ward leave to file a nunc pro tunc

direct appeal. See Order, filed 7/31/23.

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159 A.3d 503, 516 (Pa. 2017). “Our scope of review of suppression rulings

includes only the suppression hearing record[.]” Id. We are bound by the

suppression court’s factual findings that are supported by the record. See id.

Where there is a question of law, our standard of review is de novo. See

Commonwealth v. McMahon, 280 A.3d 1069, 1071 (Pa.Super. 2022).

Ward’s issues on appeal ultimately dispute whether he was lawfully

seized and if not, whether the court correctly determined that an exception

applied. Ward claims that he was subjected to an unlawful seizure because

the troopers had no reasonable suspicion of criminal activity. He notes that he

did not feel free to leave after the troopers parked behind his vehicle with their

patrol car lights activated. He further disputes the applicability of “the

commun[i]ty caretaker doctrine or one of its recognized exceptions, including

the public servant exception.” Ward’s Br. at 20. Ward concedes that the

evidence supports the first factor of the public servant exception. See id at

22. He maintains, however, that the second and third factors were not met.

He claims that “[t]he police caretaking action in this instance was not

independent from the detection, investigation, and acquisition of criminal

evidence.” Id. He also notes that Trooper Demberger did not provide him “any

actual aid” and instead “jumped almost immediately to asking” about the pill

bottle in the side passenger door pocket and whether he had smoked

marijuana. Id.

The Commonwealth does not dispute the finding that Ward was seized.

It argues, however, that the public servant exception applied.

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The Fourth Amendment of the United States Constitution and Article 1,

Section 8 of the Pennsylvania Constitution protect against unreasonable

searches and seizures. See Commonwealth v. Garibay, 106 A.3d 136, 139

(Pa.Super. 2014). An individual is seized “only if, in view of all the

circumstances surrounding the incident, a reasonable person would have

believed that he was not free to leave.” Commonwealth v. Livingstone,

174 A.3d 609, 619 (Pa. 2017) (citation omitted) (plurality). 4

One form of seizure is an investigative detention. See Commonwealth

v. Beasley, 761 A.2d 621, 624 (Pa.Super. 2000) (noting there are three types

of encounters citizens may have with police: a mere encounter, an

investigative detention, or a custodial detention). An investigative detention

must be supported by “reasonable suspicion of unlawful activity.”

Commonwealth v. Thran, 185 A.3d 1041, 1044 (Pa.Super. 2018) (citation

omitted). One exception to this requirement is the community caretaking

doctrine. See Livingstone, 174 A.3d at 625-26.

The community caretaking doctrine embodies three exceptions: “the

emergency aid exception; the automobile impoundment/inventory exception;

and the public servant exception, also sometimes referred to as the public

safety exception.” Id. at 626-27. The Livingstone Court explained that “for

a seizure to be justified under the public servant exception,”

[(1)] the officer must point to specific, objective, and articulable facts which would reasonably suggest to an ____________________________________________

4 See also Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000).

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experienced officer that assistance was needed; [(2)] the police action must be independent from the detection, investigation, and acquisition of criminal evidence; and, [(3)] based on a consideration of the surrounding circumstances, the action taken by police must be tailored to rendering assistance or mitigating the peril. Once assistance has been provided or the peril mitigated, further police action will be evaluated under traditional Fourth Amendment jurisprudence.

Id. at 637. The actions by the police should be “motivated by a desire to

render aid or assistance, rather than the investigation of criminal activity” and

“the level of intrusion must be commensurate with the perceived need for

assistance.” Id. at 627, 637. Furthermore, “when the community caretaking

exception is involved to validate a search or seizure, courts must meticulously

consider the facts and carefully apply the exception in a manner that mitigates

the risk of abuse.” Id. at 637 (citation omitted).

Assuming, without deciding, that a seizure occurred here, we examine

whether the public servant exception applies. The trial court and the

Commonwealth maintain that it does. The trial court noted that Trooper

Demberger saw Ward’s vehicle parked on a highway ramp with the driver’s

side door open and testified the driver appeared to be vomiting. It also noted

that Trooper Demberger’s actions “were commensurate with the level of need

. . . perceived in the situation.” Opinion, filed 12/6/22, at ¶ 51. 5 Similarly, the

Commonwealth claims that the trooper articulated specific and objective facts

that would reasonably suggest that Ward needed aid. It notes that Trooper ____________________________________________

5 The trial court relied on its opinion from the denial of the motion to suppress

in lieu of a Pa.R.A.P. 1925(a) opinion. See Opinion Sur Rule 1925(a), filed 8/15/23.

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Demberger asked Ward how he was feeling and implemented the least

intrusive means that was commensurate with Ward’s perceived need for

assistance, by pulling behind the vehicle with emergency lights activated.

We turn our attention to the second and third factors of the public

servant exception, given that Ward conceded the first factor. See Ward’s Br.

at 22. As the trial court concluded, Trooper Demberger’s actions aligned with

his concern that Ward was sick, which was “independent from the detection,

investigation, and acquisition of criminal evidence[.]” Livingstone, 174 A.3d

at 637. Before his partner saw the pill bottle and before Trooper Demberger

noticed the smell of marijuana, Trooper Demberger asked Ward “if everything

was okay.” N.T. at 10. Additionally, based on a consideration of the

surrounding circumstances, Trooper Demberger’s actions were tailored to

render assistance to Ward. Upon approaching Ward, Trooper Demberger

inquired whether he was okay, and Ward “admit[ted] that he was throwing

up, and he was sweating profusely.” Id. at 9. While Ward notes that Trooper

Demberger “offered no actual assistance to [Ward] beyond inquiry,” he fails

to explain how the failure to do so invalidates the applicability of the public

servant exception. Ward’s Br. at 22. We therefore affirm the order denying

Ward’s motion to suppress.

Judgment of sentence affirmed.

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Date: 6/28/2024

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