J-A23008-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIK BURNELL WILLIAMS : : Appellant : No. 1533 MDA 2021
Appeal from the Judgment of Sentence Entered November 10, 2021 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000851-2020
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: MARCH 21, 2023
Erik Burnell Williams appeals from the judgment of sentence of two
years of probation, which was imposed after the trial court convicted him of
driving under the influence (“DUI”) of a schedule I controlled substance and
DUI of a metabolite of a schedule I controlled substance. We affirm.
At approximately two a.m. on February 3, 2020, Pennsylvania State
Police (“PSP”) Troopers Matthew Kile and Justin Horan were patrolling in a
marked SUV in Adams County, Pennsylvania, when they observed a Chevrolet
Avalanche vehicle traveling approximately one-half mile ahead of them. See
N.T. Suppression Hearing, 3/18/21, at 7. The troopers increased their speed
to ten miles per hour above the posted speed limit until they reduced the
distance between their vehicle and the Avalanche to approximately two or
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* Former Justice specially assigned to the Superior Court. J-A23008-22
three car lengths, allowing them to read the other automobile’s license plate.
The officers continued to follow the Avalanche while they submitted the tag to
their database to ensure the vehicle was properly registered and that there
were no outstanding warrants or other issues with the owner. Once the
Avalanche came into view, what happened subsequent was captured by the
mobile vehicle recorder (“MVR”) on the PSP vehicle. See Commonwealth
Exhibit 1 (capturing the initial driving portion of the interaction); see also
Commonwealth Exhibit 2 (audio and video recording containing sound and
video of the remainder of the encounter between the troopers and Appellant).
Approximately one-tenth of a mile later, the Avalanche signaled and
pulled over to the side of the road. The troopers continued driving a short
distance before stopping their vehicle to await completion of their database
search. Seconds later, the troopers observed the Avalanche proceed past
them. Since their inquiry was still in progress, the troopers reentered the
highway and continued to follow the Avalanche, though this time at a greater
distance. Almost immediately, the vehicle signaled and pulled into the parking
lot of the Oxford Township municipal building. Finding it “highly unusual” that
a vehicle would pull over twice in such a short period of time without being
directed to do so, the officers also entered the parking lot. N.T. Suppression
Hearing, 3/18/21, at 11. The troopers parked their SUV to the left rear of the
Avalanche without activating their lights or sirens. This positioning allowed
the Avalanche multiple points of egress from the parking lot.
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The troopers approached the vehicle in a marked uniform with a
flashlight. Id. at 13. Upon reaching the driver’s side window, the troopers
observed Appellant yelling into his cellular telephone that he had pulled into
the municipal parking lot of his own volition because the police were
“harassing” him. See Commonwealth Exhibit 2 (“So I pulled over and then
they pulled over and then I pulled into the municipal building . . . well they
didn’t pull me over. They don’t have their lights on. They are just fucking
here harassing me pretty much.”). Noticing that Appellant’s speech was
slurred, Trooper Kile asked Appellant if he had his license on him and if
“everything was alright.” Id. Appellant confirmed that he had his license and
explained that he had pulled over because the officers were “flying up on
[him.]” Id. Recognizing Appellant’s constricted pupils, Trooper Kile asked
whether Appellant had recently imbibed any drugs or alcohol. Appellant
denied ingesting any such substances and, again, accused the troopers of
harassing him. The troopers briefly returned to their vehicle with Appellant’s
license.
When Trooper Kile reapproached the Avalanche, he observed Appellant
still on his cellular phone reiterating that the police had not pulled him over.
Id. Realizing that Trooper Kile was standing next to him, Appellant stated,
for the first time, that he would like to go home. Trooper Kile responded that
he would need to check Appellant’s pupils before he could allow him to leave,
since his speech was slurred. After unsuccessfully attempting to complete
field sobriety testing with Appellant still seated in the vehicle, Trooper Kile
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asked Appellant to exit the vehicle. Appellant asked the person on the other
end of the phone to come to the municipal building immediately because he
was being harassed. Appellant then exited the vehicle and engaged in a brief
scuffle with the troopers. Afterwards, Appellant remained agitated but
complied with their requests to complete multiple field sobriety tests. The
scene further devolved when Appellant’s brother appeared. Once additional
troopers arrived on scene, Appellant was placed under arrest and transported
to Hanover Hospital where he consented to a blood draw. The results revealed
that Appellant’s blood contained the active component and the metabolites of
marijuana, a schedule I substance. Appellant produced a valid Pennsylvania
medical marijuana card. Based on the foregoing, Appellant was charged with
DUI of a schedule I controlled substance and DUI of the metabolites of a
controlled substance.
On October 16, 2020, Appellant filed an omnibus pretrial motion seeking
suppression of the evidence. Appellant argued that the initial parking lot
interaction was not a mere encounter because the troopers initiated the stop
by following Appellant’s vehicle at a high rate of speed. See Omnibus Pretrial
Motion, 10/16/20, at ¶ 37. Since the police had forced him off the road,
Appellant contended that he did not feel free to leave the parking lot or decline
their requests for his identification. Id. at ¶¶ 38-39. Accordingly, Appellant
averred that he was subjected to an investigatory detention without the
requisite reasonable suspicion and all evidence derived from the stop should
be suppressed. Id.
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On March 18, 2021, the suppression court held a hearing on the
suppression motion. After confirming that Appellant only wished to challenge
the legality of the initial encounter in the municipal building parking lot, the
court allowed the Commonwealth to present the testimony of the troopers,
who detailed their interaction with Appellant as described above. See N.T.
Suppression Hearing, 3/18/21, at 4. The Commonwealth also submitted the
MVR recordings which captured the entire event. Appellant testified in
contrast to the troopers, claiming that he was forced to pull over the first time
because the officers were travelling at a high rate of speed and had nearly
collided with his rear bumper. Id. at 34-35. While Appellant conceded that
the police never employed their lights or sirens to initiate a stop, he contended
that his second roadway exit was, again, due to the police “forc[ing] me off
the road because they were driving too fast.” Id. at 41. At the conclusion of
the hearing, the suppression court took the matter under advisement so that
it could review the MVR recordings and the parties could provide memoranda
of law supporting their positions.
After receiving post-hearing briefs from Appellant and the
Commonwealth, the suppression court issued an order denying the motion
and authored an opinion in which it rendered the necessary findings of fact
and conclusions of law. Specifically, the suppression court credited the
troopers’ testimony, while rejecting Appellant’s claims that the officers
initiated a de facto traffic stop by forcing him off the road. The suppression
court reasoned that Appellant’s testimony was not corroborated by the MVR
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recordings, which demonstrated that the officers never came within two car
lengths of Appellant’s vehicle and had not attempted to initiate a traffic stop
of Appellant. See Suppression Court Opinion, 3/30/21, at 4. Since the
troopers did not activate emergency lights to stop the vehicle, position their
vehicle in a manner that blocked Appellant’s exit, brandish weapons, display
a show of force, or make any threats or commands, the court concluded that
the troopers’ initial interaction with Appellant was a mere encounter which did
not implicate any federal or state constitutional consequences. Id. at 5-6.
Relying on the testimony from the suppression hearing, Appellant
proceeded to a stipulated non-jury trial before a different judge. Appellant
sought dismissal of both DUI charges due to his possession of a valid
prescription for a medical marijuana card. See N.T. Non-Jury Trial, 4/26/21,
at 2. The court denied the motion, explaining that having a medical marijuana
card is not a valid defense to metabolite DUI since the subsections charged
prohibited operating a vehicle with any amount of a schedule I controlled
substance in the driver’s blood and marijuana was listed as a schedule I
controlled substance. Id. at 3. Afterwards, the court found Appellant guilty
of both DUI charges.
On February 26, 2021, Appellant proceeded to sentencing. The trial
court sentenced Appellant for DUI of a schedule I controlled substance to
twenty-four months of probation with one hundred eight days of restrictive
DUI conditions. The court also ordered Appellant to pay a $1,500 mandatory
fine and court costs. Finally, Appellant received a mandatory license
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suspension of sixty days. The DUI charge pertaining to the marijuana
metabolites merged for sentencing purposes. Appellant did not pursue post-
sentence motions. Instead, this timely appeal followed. Both Appellant and
the trial court complied with the mandates of Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Whether the [suppression] court erred in its order of March 30, 2021 denying Appellant’s pretrial motion to suppress evidence due to lack of reasonable suspicion to effectuate a stop of Appellant’s vehicle?
2. Whether the evidence was insufficient to support a conviction under 75 [Pa.C.S.] § 3802 §§ D1 DUI: Controlled Substance – Schedule I when Appellant is a lawful user of medical marijuana, no marijuana was found on Appellant’s person or vehicle and there was no evidence presented at trial that Appellant was impaired?
Appellant’s brief at 4 (cleaned up).
In his first claim, Appellant argues that the court erred when it denied
his suppression motion due to a lack of reasonable suspicion to effectuate a
stop of his vehicle. See Appellant’s brief at 7. Preliminarily, we note that,
[a]n appellate court’s standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, the appellate court is bound by those findings and may reverse only if the court’s legal conclusions are erroneous. Where the appeal of the determination of the suppression court turns on allegations of legal error, the
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suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to plenary review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (cleaned
up).
Both the United States and Pennsylvania Constitutions provide
coterminous protections against “unreasonable searches and seizures.” See
Interest of T.W., 261 A.3d 409, 418 (Pa. 2021). The law recognizes three
distinct levels of interaction between police officers and citizens: (1) a mere
encounter, (2) an investigative detention, and (3) a custodial detention. See
Commonwealth v. Mackey, 177 A.3d 221, 227 (Pa.Super. 2017). Our
Supreme Court has reiterated the requirements that distinguish the
classifications of contacts between the police and the citizenry as follows:
The first is a mere encounter, sometimes referred to as a consensual encounter, which does not require the officer to have any suspicion that the citizen is or has been engaged in criminal activity. This interaction also does not compel the citizen to stop or respond to the officer. A mere encounter does not constitute a seizure, as the citizen is free to choose whether to engage with the officer and comply with any requests made or, conversely, to ignore the officer and continue on his or her way. The second type of interaction, an investigative detention, is a temporary detention of a citizen. This interaction constitutes a seizure of a person, and to be constitutionally valid police must have a reasonable suspicion that criminal activity is afoot. The third, a custodial detention, is the functional equivalent of an arrest and must be supported by probable cause. A custodial detention also constitutes a seizure.
No bright lines separate these types of [interactions], but the United States Supreme Court has established an objective test by which courts may ascertain whether a seizure has occurred to
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elevate the interaction beyond a mere encounter. The test, often referred to as 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. [W]henever a police officer accosts an individual and restrains his freedom to walk away, [the officer] has “seized” that person.
Commonwealth v. Adams, 205 A.3d 1195, 1199-1200 (Pa. 2019). Whether
a seizure has occurred is a question of law involving a plenary scope of review.
See Commonwealth v. Au, 42 A.3d 1002, 1006 (Pa. 2012).
When initially evaluating the level of interaction between law
enforcement and a citizen to determine whether, and at what point, a seizure
may have occurred, “courts conduct an objective examination of the totality
of the surrounding circumstances.” Commonwealth v. Lyles, 97 A.3d 298,
302 (Pa. 2014). Relevant factors of that analysis include, but are not limited
to: “the number of officers present during the interaction; whether the officer
informs the citizen they are suspected of criminal activity; the officer’s
demeanor and tone of voice; the location and timing of the interaction; the
visible presence of weapons on the officer; and the questions asked.”
Commonwealth v. Luczki, 212 A.3d 530, 543 (Pa.Super. 2019) (internal
quotation marks omitted). Importantly, a seizure does not occur when officers
“merely approach a person in public and question the individual or request to
see identification” so long as the officer does not imply that the citizen is
required to comply with their request. See Lyles, supra at 303.
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Appellant contends that the troopers had no legal authority to approach
his parked vehicle and ask for identification because there was no evidence
that he needed assistance or had violated any traffic laws. See Appellant’s
brief at 9. In his view, the troopers forced a traffic stop when they twice
approached his vehicle at a high rate of speed. Thus, the troopers needed
reasonable suspicion that criminal activity was afoot before approaching the
vehicle and requesting his identification. Id. at 9-10. We disagree.
We find our Supreme Court’s decision in Au, supra instructive. In Au,
a police officer was conducting a routine patrol in the early morning hours
when he observed a vehicle parked at a closed business establishment. Id.
at 1003. Finding this occurrence unusual, the officer pulled into the parking
lot and positioned his vehicle at an angle relative to the parked vehicle to
illuminate the passenger side without blocking the vehicle’s ability to exit or
activating his emergency lights. Id. The officer approached on foot with a
flashlight, observed six occupants, and watched the defendant roll down his
window. The officer asked the defendant “what’s going on[?]” and the
defendant responded we are just “hanging out.” Id. After asking whether
the occupants were eighteen years of age and receiving a negative response,
the officer asked the defendant for his identification. The defendant opened
the glove compartment, revealing two baggies of marijuana. There was no
evidence of any criminal activity or a violation of the Motor Vehicle Code prior
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to the defendant opening the glove compartment. A subsequent search of the
vehicle uncovered additional illegal drugs.
Following the defendant’s arrest, he sought to suppress the drug
evidence, alleging that the interaction amounted to an investigative detention
unsupported by reasonable suspicion. The trial court suppressed the evidence
and an en banc panel of this Court affirmed that ruling. See Commonwealth
v. Au, 986 A.2d 864 (Pa.Super. 2009) (en banc). However, our Supreme
Court reversed, holding that the police officer’s interaction with the defendant
amounted to a mere encounter, explaining as follows:
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 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.
Id. at 1008-09.
Our own review of the MVR recordings reveals the similarities between
Au and this case. Herein, the troopers did not travel at an extraordinary
speed, tailgate Appellant, activate their emergency lights and sirens, or make
any other show of force that would convey to a reasonable person in
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Appellant’s position that he needed to exit the roadway. Instead, the troopers
maintained a safe distance during the short time that they were behind
Appellant’s vehicle on a public roadway. See also Suppression Court Opinion,
3/30/21, at 2-4. Since Appellant exited and parked in the municipal building
lot of his own volition, his decision to do so did not create a traffic stop that
required reasonable suspicion. Critically, as in Au, the troopers parked their
vehicle perpendicular to Appellant’s vehicle without blocking his ability to exit
the lot and approached to ask questions targeting Appellant’s well-being and
identification. Although Appellant repeatedly accused the troopers of
harassing him, he acknowledged that he pulled over without being stopped
and provided his license without evincing a desire to terminate the interaction.
Given the totality of the circumstances in this case, Appellant’s initial
interaction with the troopers constituted a mere encounter. We cannot
conclude that a reasonable person would have thought they were being
restrained when a police vehicle drove behind them on a roadway or when
two officers approached that vehicle, which was parked at a closed
establishment, to inquire about the operator’s well-being. Thus, consistent
with Au, Appellant was not seized within the meaning of the Fourth
Amendment to the United States Constitution or Article 1, Section 8 of the
Pennsylvania Constitution when he pulled into the municipal parking lot or
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during the initial interaction that occurred there. Therefore, Appellant is not
entitled to any relief on his first issue.1
In his second claim, Appellant contends that the Commonwealth
presented insufficient evidence to establish that he had a Schedule I substance
or the metabolite of Schedule I substance in his blood, because “medical
marijuana” is not a Schedule I controlled substance in Pennsylvania. See
Appellant’s brief at 10-14.
Our scope and standard of review when considering challenges to the
sufficiency of the evidence are well settled:
1 To the extent Appellant’s argument that he “did not engage in any conduct that would suggest to the police that he needed assistance” can be construed as an assertion that the community caretaking exception to the warrant requirement does not apply, we note that this claim is waived due to Appellant’s failure to raise it before the suppression court. See Appellant’s brief at 9; see also Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.”). However, even if properly preserved, Appellant would not be entitled to relief. The community caretaking exception applies only where a seizure has occurred, providing police with the necessary reasonable suspicion to justify an investigative detention. See, e.g. Commonwealth v. Schneider, 239 A.3d 161, 170-71 (Pa.Super. 2020) (finding the community caretaking exception did not allow the police to enter a home without a warrant to further investigate whether assistance was required where nothing in the defendant’s demeanor, statements, outward appearance, or condition indicated that he needed police assistance); see also, e.g. Commonwealth v. Livingstone, 174 A.3d 609, 637 (Pa. 2017) (finding that the trooper’s warrantless seizure of the defendant to ascertain if she needed help was not permitted under the community caretaking doctrine because the facts did not establish that the defendant actually needed assistance). Herein, the only portion of the interaction that Appellant challenged amounted to a mere encounter. Thus, the troopers did not need to possess reasonable suspicion and the community caretaking exception is inapplicable.
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Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. [T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. It is within the province of the fact-finder to determine the weight to be accorded to each witness’s testimony and to believe all, part, or none of the evidence. The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact- finder.
Commonwealth v. Williams, 176 A.3d 298, 305–06 (Pa.Super. 2017)
(citations and quotation marks omitted).
The Medical Marijuana Act (“MMA”) permits qualifying individuals to
lawfully consume marijuana. See 35 P.S. §§ 10231.101–10231.2110.
Notwithstanding this, the list of Schedule I controlled substances set forth in
the Controlled Substances Act (“CSA”) currently includes marijuana. See 35
P.S. § 780-104(1)(iv). Critically, the applicable portion of the DUI statute
states:
(d) Controlled Substances. – An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:
(1) there is in the individual’s blood any amount of a:
(i) Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as the [CSA].
...
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(iii) metabolite of a substance under subparagraph (i) or (ii).
75 Pa.C.S. § 3802(d)(1)(i), (iii). Thus, § 3802(d)(1) does not require that a
driver be impaired; rather, it prohibits the operation of a motor vehicle by any
driver who has any amount of a Schedule I controlled substance in his blood.
See Commonwealth v. Etchison, 916 A.2d 1169, 1174 (Pa.Super. 2007);
see also 75 Pa.C.S. § 3810 (stating that “[t]he fact that a person charged
with violating this chapter is or has been legally entitled to use alcohol or
controlled substances is not a defense to a charge of violating his chapter.”).
With regard to the significance of Appellant’s medical marijuana card, during
the pendency of this appeal, this Court found that the Schedule I designation
for marijuana pertinent to § 3802(d)(1) includes medical marijuana. See
Commonwealth v. Stone, 273 A.3d 1163, 1174 (Pa.Super. 2022) (en banc);
see also Commonwealth v. Dabney, 274 A.3d 1283, 1291 (Pa.Super.
2022) (“[M]edical marijuana remains a Schedule I controlled substance for
purposes of Section 3802(d)(1).”) In so holding, we noted that while “[t]he
[MMA] anticipates the removal of marijuana from Schedule I. . ., the General
Assembly has not enacted legislation amending the MMA, CSA, or the DUI
statutes to remove marijuana from its Schedule I designation under state
law.” Stone, supra at 1172. Since the issuance of Stone, neither 75 Pa.C.S.
§ 3802(d)(1) nor 35 P.S. § 780-104(1)(iv) have been amended to distinguish
between medical and non-medical marijuana. Accordingly, pursuant to our
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holding in Stone, § 3802(d)(1)(i) specifically prohibits driving with any
amount of medical or non-medical marijuana in the driver’s blood.
Herein, it is undisputed that Appellant was driving a motor vehicle at a
time when detectable amounts of marijuana and its metabolites were
discovered in his blood stream. Accordingly, the Commonwealth presented
sufficient evidence to support Appellant’s DUI conviction for imbibing a
Schedule I controlled substance and its metabolites pursuant to 75 Pa.C.S.
§ 3802(d)(1)(i) and (iii).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/21/2023
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