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06/04/97 COMMONWEALTH PENNSYLVANIA v. KENNETH A.

June 4, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
KENNETH A. KINER, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Perry County, Criminal Division at No. 374 of 1995. Before QUIGLEY, J.

Before: Cirillo, P.j.e., Popovich and Hester, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

Filed June 4, 1997

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Perry County following appellant's conviction on the charge of driving while under the influence of alcohol (DUI). *fn1 Herein, appellant's sole contention is that the trial court erred in failing to suppress the evidence seized incident to his arrest. Specifically, he alleges that he was arrested unlawfully by William Gephart, an off-duty Pennsylvania State Police Trooper who was not in uniform when he arrested appellant. The lower court determined that appellant was not arrested by Trooper Gephart but that he was merely detained until a uniformed officer appeared on the scene. Therefore, the trial court denied appellant's motion to suppress. On appeal, the Commonwealth concedes that appellant was arrested by Trooper Gephart. However, the Commonwealth argues that Trooper Gephart was empowered to arrest appellant even though he was off-duty and not in uniform, or that, in the alternative, if the trooper lacked the authority to arrest appellant, suppression of the evidence was an improper remedy. For the reasons set forth below, we reverse.

Our standard of review in this case is well-settled. Our supreme court has held that:

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal Conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse if there is an error in the legal Conclusions drawn from those factual findings.

Commonwealth v. Lopez, 415 Pa. Super. 252, 609 A.2d 177, 178-179 (1992), alloc. denied, 533 Pa. 598, 617 A.2d 1273 (1992) (citation omitted).

We find that the trial court's factual findings are supported by the record and are as follows: On August 13, 1995, at approximately 10:15 p.m., Trooper William Gephart was travelling south on Routes 11-15 in Penn Township, Pennsylvania. At this time, he was off-duty, not in uniform and driving a private, unmarked automobile. While driving, Trooper Gephart noticed that the vehicle in front of him, appellant's light-colored sedan, was weaving and crossing into the opposite traffic lane. The trooper followed the sedan for approximately three miles. Appellant then drove his vehicle into a parking lot. Trooper Gephart followed appellant's vehicle, and, when given the opportunity, exited his vehicle and approached appellant, who was sitting in the driver's seat of his automobile. As the trooper approached appellant, he exhibited his badge and identified himself as a Pennsylvania State Trooper. Trooper Gephart detected a strong odor of alcohol emanating from appellant's vehicle. He then ordered appellant to exit his vehicle and requested his driver's license. The trooper noticed that appellant was stumbling, that he had "watery eyes" and that he was slurring his speech. Trooper Gephart then placed appellant in handcuffs, took possession of his driver's license, ordered him to stand next to his vehicle and told him that he was "under detention" because the trooper suspected that he was driving while under the influence of alcohol. The trooper informed appellant that he was contacting the state police barracks so that an on-duty, uniformed officer could respond to the scene. He then asked his parents, who had been following behind him in their own vehicle, to telephone the Newport State Police barracks and request the assistance of an on-duty, uniformed trooper. Trooper Gephart's parents so complied, and, approximately twenty minutes later, Trooper Carol Peters arrived at the scene. Upon arrival, Trooper Peters noticed appellant and Trooper Gephart standing next to appellant's vehicle. Trooper Gephart was restricting appellant's movement by holding his right arm. After conferring with Trooper Gephart, Trooper Peters informed appellant that he was under arrest for driving while under the influence of alcohol. Appellant was then transported to the state police barracks where he submitted to a breath test. The test revealed that his alcohol level was .19%. Appellant was later charged with DUI. He filed a motion seeking to suppress all evidence seized as a result of his alleged illegal arrest by Trooper Gephart. The motion was denied. Appellant was then tried and convicted of DUI. This appeal followed.

At the outset, we find that the trial court's Conclusion that appellant was not arrested by Trooper Gephart was erroneous. As the Commonwealth concedes on appeal, appellant was clearly arrested by Trooper Gephart. A police encounter with a suspect may be characterized as a mere encounter, an investigative detention, a custodial detention or a formal arrest. Commonwealth v. Haupt, 389 Pa. Super. 614, 567 A.2d 1074 (1989). An "arrest" includes either a formal arrest or its functional equivalent, a custodial detention. Haupt, (supra) . In determining whether appellant was arrested or detained for investigative purposes by Trooper Gephart, we must consider the following:

Traffic stops, like Terry stops, constitute investigative rather than custodial detentions, unless under the totality of the circumstances the conditions and duration of the detention become the functional equivalent of an arrest. Among the factors generally considered in determining whether a detention is investigative or custodial are: the basis for the detention (the crime suspected and the grounds for suspicion); the duration of the detention; the location of the detention (public or private); whether the suspect was transported against his will (how far, why); the method of detention; the show, threat or use of force; and the investigative methods used to confirm or dispel suspicions.

Commonwealth v. Gommer, 445 Pa. Super. 571, 665 A.2d 1269, 1274 (1995), alloc. denied, 686 A.2d 1308 (1996) (quoting Commonwealth v. Douglass, 372 Pa. Super. 227, 539 A.2d 412, 421 (1988) (Kelly, J., plurality opinion)) (citing Commonwealth v. Ellis, 379 Pa. Super. 337, 549 A.2d 1323 (1988)). "Whether an arrest has been made is viewed in light of the reasonable impression conveyed to the person subjected to the seizure rather than in terms of the subjective views of the police officer making the arrest." Commonwealth v. Carter, 537 Pa. 233, 643 A.2d 61, 67 (1994) (citation omitted).

In Commonwealth v. Gommer, 445 Pa. Super. 571, 665 A.2d 1269 (1995), based on an analysis of the aforementioned factors, we determined that the defendant was not arrested by an off-duty, non-uniformed police officer. Rather, we held that he was detained for investigatory purposes. In Gommer, an off-duty, non-uniformed police officer observed the defendant driving in a reckless and erratic manner. The officer signaled for the defendant to stop his car, approached the defendant after he stopped in a parking lot, identified herself as a police officer, requested that the defendant await the arrival of other troopers, informed the defendant that she believed that he was driving while under the influence of alcohol and took possession of the keys to the defendant's vehicle. The defendant remained seated in his automobile. Two on-duty, uniformed troopers then arrived at the scene, were informed of the defendant's actions and arrested him.

We find that the facts in this case are distinguishable from those in Gommer. Here, Trooper Gephart observed appellant driving in an erratic manner. After appellant stopped his automobile in a parking lot, the trooper decided to approach him. Trooper Gephart then exited his vehicle with his badge, identification card, weapon and handcuffs. As Trooper Gephart approached appellant, he identified himself as a police officer and asked to see appellant's driver's license. The officer took possession of appellant's driver's license, ordered him out of his vehicle, handcuffed him and ordered him to stand next to his vehicle. The trooper informed appellant that he believed that he was driving while under the influence of alcohol, that he was being detained and that he was requesting the assistance of an on-duty, uniformed officer. In approximately twenty minutes, Trooper Peters, who was in uniform and on-duty, arrived at the scene. Upon arrival, she noticed that Trooper Gephart was restricting appellant's ...


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