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07/01/97 COMMONWEALTH PENNSYLVANIA v. KELLY JO HOCK

July 1, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
KELLY JO HOCK, APPELLEE



Appeal from the ORDER October 23, 1995, in the Court of Common Pleas of LEBANON County, CRIMINAL, No. 95-10404. Before EBY, J.

Before: Cavanaugh, Popovich, and Olszewski, JJ. Opinion BY Olszewski, J. Popovich, J., Concurs in the Result.

The opinion of the court was delivered by: Olszewski

Filed July 1, 1997

OPINION BY OLSZEWSKI, J.:

The Commonwealth appeals the trial court's order which found appellee Kelly Jo Hock's arrest to be unconstitutional and dismissed the charges against her. We reverse.

The record reveals the following facts: On the morning of April 13, 1995, Palmyra Police Officer Kenneth Shank observed appellee Kelly Jo Hock driving her vehicle on Arch Street in Palmyra Borough. N.T., 10/23/95 at 5. Officer Shank drove around the block and watched as Hock pulled her car into a parking place in front of her apartment building. Id. Believing Hock's license to be suspended "until sometime in the year 2000," the lawman pulled next to the parked vehicle. *fn1 Id. at 6. Officer Shank then asked Hock, who was still seated in the front seat of her car, "if she had her license back and if [he] could see it." Id. Hock responded that she had not been driving the vehicle. Id. Hock then exited her car and asked the lawman "why the police keep on harassing her." Id. at 7. Officer Shank replied that "after [he] checked her driver's record, she would be receiving a citation in the mail if her privileges were in fact still under suspension." Id. at 8. At this point, the situation grew ugly.

Hock walked away from the officer and towards her apartment building. Id. On the way she stated, "Fuck you, asshole." Id. Hock didn't shout or scream the profanity and there was nobody else in the area. Id. at 19, 21. Upon hearing this profanity, the lawman informed appellee that he was placing her under arrest for disorderly conduct. Id. Hock quickened her pace and continued to walk away from the lawman. Id. at 9. Officer Shank pursued appellee to the second floor of the apartment building and, as she reached the door of her apartment, he grabbed her right arm. Id. at 10. Hock pulled away from the officer and kicked him several times. Id. at 14. Then she curled her body into a ball with her arms and legs tight against her torso. Id. The officer's attempts to handcuff appellee were met with more kicks. Id. at 14-15. Finally, the officer was able to handcuff appellee, but not before receiving a cut finger and an injury to his wrist. Id. at 15-16.

Ultimately, Hock was charged with disorderly conduct, 18 Pa.C.S.A. § 5503(a)(4), and resisting arrest, 18 Pa.C.S.A. § 5104, for the April 13th episode. On October 20, 1995, she filed a pre-trial motion alleging that her arrest was unlawful and that all evidence obtained pursuant to the arrest should be suppressed and "all subsequent criminal charges filed after the arrest [should] be dismissed with prejudice." Pre-trial omnibus motion, 10/20/95 at 1. After presiding over a hearing on the matter, which was conducted on October 23, 1995, the trial court found in Hock's favor and ordered that the criminal counts against her be dismissed. This appeal by the Commonwealth follows.

At the outset, we note that Officer Shank clearly had the right to demand that Hock produce her license. 75 Pa.C.S.A. § 1511(a). *fn2 Hock was also obligated to display her vehicle license to the lawman. 75 Pa.C.S.A. § 6308(a). *fn3 Moreover, since Officer Shank clearly had reasonable suspicion that Hock had violated the law, he would have been authorized to use reasonable force to detain his suspect. See 75 Pa.C.S.A. § 6308(b)("Whenever a police officer . . . has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, . . . or the diver's license, or to secure other information as the officer may reasonably believe to be necessary to enforce the provisions of this title."); Commonwealth v. Diaz, 442 Pa. Super. 238, , 659 A.2d 563, 570 (1995)("A non-custodial detention or forcible stop occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes.").

Thus, it is clear that the lawman would have been authorized to forcibly detain Hock for an investigatory detention when she started to walk away. Nevertheless, as noted above, Officer Shank immediately informed the suspect that she was under arrest. This Court has stated that "traffic 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." Commonwealth v. Douglass, 372 Pa. Super. 227, 244, 539 A.2d 412, 421 (1988). Moreover, "whether an arrest has occurred depends upon the impression conveyed to the person detained, not upon the officers' subjective intentions." Commonwealth v. Allen, 452 Pa. Super. 200, , 681 A.2d 778, 782 (1996). Instantly, Officer Shank unequivocally informed Hock that "she was under arrest for Disorderly Conduct." N.T. 10/23/95, at 8. As such, there is no question that the lawman's encounter with the suspect had become custodial. See Allen, (supra) . Accordingly, the Commonwealth's attempt to characterize Hock's subsequent actions as having occurred while resisting a non-custodial detention must fail. *fn4

Our question next becomes whether Officer Shank possessed the requisite probable cause to arrest Hock after she had disobeyed his command to produce her license and cursed at him. Section 5503 defines the crime of disorderly conduct as follows:

(a) Offense defined. - A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creates a risk thereof, he:

(1) engages in fighting or threatening, or in violent or ...


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