Com. v. Barringer, C.

J-S46012-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CURTIS ANDREW BARRINGER, JR.

Appellant No. 3519 EDA 2013

Appeal from the Judgment of Sentence November 26, 2013

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0003130-2013

BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.: FILED OCTOBER 14, 2015

Appellant, Curtis Andrew Barringer, Jr., appeals from the November

26, 2013 judgment of sentence of three to six months in county prison,

imposed after the trial court found him guilty of driving under the influence

of alcohol (DUI).1 Appellant challenges the trial court’s denial of his pretrial

motion to suppress evidence of his intoxication on the basis that “the motor

vehicle stop and subsequent search of [Appellant] was without probable

cause or reasonable suspicion.” Appellant’s Omnibus Pre-Trial Motion,

8/28/13. After careful review, we affirm.

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1

75 Pa.C.S.A. § 3802(a)(1).

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The trial court made the following factual findings after a hearing on

Appellant’s suppression motion.

On March 19, 2013, Officer Matthew Bellucci of

the Media Borough Police Department was on duty in

a marked patrol vehicle.

While on duty, Officer Bellucci received a dispatch

call from delcom. The dispatch relayed that a 911

call was placed from John’s Bar, located at 116 S.

Monroe Street, Media, PA. The caller was silent but

the receiver could clearly hear one man telling

another to leave the bar.

Officer Bellucci arrived at John’s Bar within a

minute after he received the dispatch.

Upon Officer Bellucci’s arrival, he spoke with the

bartender and was advised that a black male known

as “Curtis” became intoxicated and unruly while in

the bar – yelling at patrons, screaming obscenities

and racial slurs, and refused to leave.

When the bartender told [Appellant] that he was

going to call the police, [Appellant] purchased

another beer and left the bar.

The bartender told Officer Bellucci that he

witnessed [Appellant] drive down Monroe Street in a

maroon Mercedes.

Officer Bellucci relayed this information to the

other responding officers. As they were standing

outside the bar, Officer Bellucci could clearly see a

maroon Mercedes parked approximately 100 yards

away, in the Wawa parking lot.

Based on the call, the information from the

bartender, and seeing a vehicle matching the

description only a few yards away, the officers drove

to the Wawa to investigate.

Officer Bellucci approached the maroon Mercedes

from the driver’s side. He clearly observed

[Appellant] sitting in the driver’s seat of the vehicle,

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with the engine on, staring straight ahead. In order

to get [Appellant’s] attention, Officer Bellucci

knocked on the window.

Officer Bellucci observed that [Appellant] had

bloodshot eyes, slurred speech, and his breath

smelled of alcohol whenever he spoke. [Appellant]

was very standoffish, did not want to answer

questions, and was making statements wholly

unrelated to what Officer Bellucci was asking.

When asked for his driver’s ID, [Appellant]

handed over a veteran’s registration card instead. It

took Officer Bellucci several attempts before

[Appellant] handed over his driver’s license.

Based on Officer Bellucci’s training, education,

and experience as a police officer, it was his opinion

that [Appellant] was under the influence of alcohol.

[Appellant] was asked to step out of his vehicle

and to take a breath test, which registered a .211.

[Appellant] refused to perform any field sobriety

tests, but Officer Bellucci observed that [Appellant]

was unsteady on his feet.

[Appellant] was then arrested for [DUI].

Trial Court Order, 9/19/13, at 1-3 (paragraph numbering and footnotes

omitted).

The trial court summarized the procedural history as follows.

On March 19, 2013, Appellant was arrested

and charged with driving under the influence []. On

August 28, 2013, counsel for [Appellant] filed an

omnibus pre-trial motion to suppress physical

evidence and to reduce bail.

[The trial c]ourt held a hearing on [Appellant’s]

omnibus pre-trial motion on September 1[7], 2013.

At the hearing, the Commonwealth presented

testimony from Officer Matthew Bellucci of the Media

Borough Police Department who was the arresting

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officer. After hearing testimony and argument, this

Court denied Appellant’s bail motion via Order on

September 18, 2013. [The trial c]ourt issued

Findings of Fact and Conclusions of Law on

September 19, 2013, denying Appellant’s motion to

suppress evidence.

On October 8, 2013, counsel for Appellant filed

another motion to reduce bail which [the trial c]ourt

granted on October 21, 2013. On October 21, 2013,

Appellant informed [the trial c]ourt he was no longer

represented by the Office of the Public Defender.

New counsel entered his appearance on behalf of

Appellant.

On November 26, 2013, [the trial c]ourt held a

non-jury [trial] and found Appellant guilty of [DUI].

Appellant was sentenced to … 3-6 months in

Delaware County Prison. [The trial c]ourt also

ordered that Appellant be immediately released from

prison because he had been incarcerated since March

20, 2013, which exceeded the sentence imposed.

On December 5, 2013, Appellant filed a timely

notice of appeal listing his trial counsel as his

appellate counsel. On December 19, 2013, [the trial

c]ourt received the Superior Court’s docketing

statement which also listed Appellant’s trial counsel

as counsel for Appellant. As a result, [the trial c]ourt

sent a request for a 1925(b) statement to trial

counsel on December 20, 2013. After issuing the

Order, trial counsel informed [the trial c]ourt that he

was not representing Appellant on appeal. [The trial

c]ourt advised trial counsel via letter correspondence

that his name was on the Superior Court docket so

he would have to file a motion to withdraw with the

Superior Court so that [the trial c]ourt could appoint

new counsel.

On January 6, 2014, trial counsel filed a

motion to withdraw with the Superior Court stating

that he was never retained to represent Appellant on

appeal and that Appellant was appealing against his

recommendations. A copy of the motion to withdraw

was not sent to [the trial c]ourt until January 24,

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2014. After receiving a copy of trial counsel’s

application to withdraw, [the trial c]ourt advised

Appellant via letter correspondence that he should

attempt to re-qualify for representation with the

Delaware County Office of the Public Defender.

On February 21, 2014, [the trial c]ourt

received an Order from the Superior Court granting

trial counsel’s motion to withdraw. [The trial c]ourt

advised the Superior Court via letter correspondence

that Appellant qualified with the Delaware County

Office of the Public Defender and that this Court

granted new counsel an extension of time to file a

1925(b) statement. Due to a delay in receiving the

notes of testimony, counsel asked for a second

continuance which [the trial c]ourt granted on April

4, 2014.

On June 3, 2014, Appellant filed his 1925(b)

statement raising the sole issue that [the trial c]ourt

erred in denying his motion to suppress. [The trial

c]ourt … adopts its reasoning set forth in its

[September 19, 2013] Findings of Facts and

Conclusions of Law[].

Trial Court Opinion, 6/6/14, at 1-4 (footnotes omitted).

On appeal, Appellant presents a single issue for our review.

Whether [the trial c]ourt erred in refusing to

suppress the fruits of the warrantless vehicle stop

because the seizing officer had no reasonable

suspicion to detain, nor probable cause to arrest

Appellant at the instant when the seizing officer

parked his patrol car behind Appellant’s vehicle. All

of the evidence was tainted by this violation. The

seizure violated Appellant’s United States and

Pennsylvania constitutional, statutory and common

law rights.

Appellant’s Brief at 8.

We are guided by the following principles in conducting our review of

Appellant’s issue.

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Our 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,

we are bound by these 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 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 our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations and

quotation marks omitted), cert. denied, Jones v. Pennsylvania, 131 S.Ct.

110 (2010).

Appellant challenges the legality of his detention by Officer Bellucci.

Resolution of this question is dependent upon the nature of the interaction.

The Fourth Amendment of the U.S.

Constitution and Article I, Section 8 of our state

Constitution protect citizens from unreasonable

searches and seizures. To safeguard this right,

courts require police to articulate the basis for their

interaction with citizens in increasingly intrusive

situations:

The first of these is a “mere encounter”

(or request for information) which need not be

supported by any level of suspicion, but carries

no official compulsion to stop or to respond.

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The second, an “investigative detention” must

be supported by a reasonable suspicion; it

subjects a suspect to a stop and a period of

detention, but does not involve such coercive

conditions as to constitute the functional

equivalent of an arrest. Finally, an arrest or

“custodial detention” must be supported by

probable cause.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa.

Super. 2012) (citation omitted).

Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa. Super. 2012), appeal

denied, 65 A.3d 413 (Pa. 2012). Appellant argues “there is not enough in

the record to establish reasonable suspicion for the investigatory stop.”

Appellant’s Brief at 16. Specifically, Appellant asserts that “the police, who

witnessed no wrongdoing, effected a detention based completely on hearsay,

[and] their suspicion was completely dependent on what the declarant, the

bartender, told them.” Id. at 12. Appellant contends that the bartender

testified that the Appellant did not show signs of intoxication, 2 such that “the

police had no reliable information on intoxication until after they seized upon

Appellant and his vehicle. They acted on a hunch and … hunches are a

credit to law enforcement, but do not equate to reasonable suspicion[.]” Id.

Appellant states, “[t]he police witnessed zero misconduct on the part of

Appellant at the time of the seizure. Here, the officer proceeded to arrest,

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2

Significantly, the bartender did not testify at the September 17, 2013

suppression hearing. There was only one witness at the suppression

hearing, Officer Matthew Bellucci, who was called by the Commonwealth.

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or at a minimum detain, Appellant by driving to his car and blocking

Appellant’s vehicle.” Id. at 15-16.

Our review of both the record and case law belies Appellant’s

argument, and comports with the trial court’s conclusion that Appellant was

subject to an investigative detention, not a custodial detention, based on

reasonable suspicion.

Media Borough Police Officer Matthew Bellucci was the only witness to

testify at the suppression hearing. Bellucci related that he “received a

dispatch from DelCom that they had received a 911 hang up call and open

line from John’s Bar and Grill. The call taker could overhear a subject on the

other end, asking another subject to leave the bar. Upon my arrival, I spoke

with the bartender, who stated he was the one who made the 911 call.”3

N.T., 9/17/13, at 23. Bellucci further testified that the bartender told him a

black male known as Curtis “became disorderly in the bar,” was asked to

leave, and drove off in a maroon Mercedes. Id. at 24-25.4 Bellucci then

saw a maroon Mercedes in the parking lot of a Wawa 100 yards away. Id.

at 26. When Bellucci approached Appellant, Appellant was “standoffish” and

____________________________________________

3

Although at the hearing Appellant’s counsel objected to Bellucci’s testimony

as hearsay, the trial court overruled the objection, stating, “It’s not being

offered for the truth of the matter asserted. It’s being offered to show why

the officer reacted the way he did, so overruled.” Id. at 25.

4

See footnote 2, supra.

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refused to answer questions. Id. at 27. Bellucci described the encounter as

follows.

[Appellant] had extremely red and bloodshot eyes.

When he was answering questions to us, he was

making unrelated statements, such as the white

devils brought down the twin towers. You know, we

had no authority over him. Things to that effect. He

slurred his speech as he spoke with us. So it was

my opinion, he was most likely under the influence

of alcohol, so we asked him to step from the vehicle

and perform some field sobriety tests for us. … He

did step out of the vehicle. He was asked to submit

to a portable breath test, preliminary breath test,

which he agreed to. It showed his BAC to be a .211.

I then asked him to perform two other field sobriety

tests, which he refused to do. As he was standing

there, he swayed as he stood. He was unsteady on

his feet. Again, as he spoke to me, more like yelled

– yelled at me, the odor of alcoholic beverage [was]

on his breath and it was pretty easy to detect the

more he spoke.

Id. at 28-29.

On cross-examination, Bellucci testified that after receiving the

dispatch, and going to the bar, he was “going to I.D. and get that person’s

side of what occurred in that bar.” Id. at 39. Bellucci conceded that

“depending on the information that we obtained once we made contact with

that subject, an arrest was possible.” Id. at 40. He stated that he

explained to Appellant that he had received a report of a disorderly subject

in a bar, and asked Appellant whether he had been at John’s Bar and Grill.

Id. at 48. Bellucci testified as follows.

And just based on reasonable suspicion, if a person

told me that a drunk disorderly subject just left his

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bar in a maroon Mercedes and I see a maroon

Mercedes operated by a black male, I’m going to put

two and two together and figure that this most likely

is the person I’m looking for.

Id. at 52.

Given the foregoing, the trial court denied Appellant’s suppression

motion on the basis that Bellucci possessed reasonable suspicion to detain

Appellant. The trial court concluded, “[a]fter speaking with the bartender,

Officer Bellucci had reason to believe that [Appellant] was driving under the

influence and that [Appellant’s] unruly behavior may still cause harm to the

public. Furthermore, seeing a car that matched the description only a few

yards away was reason to investigate further.” Order, 9/19/13, at 4, ¶ 10.

We agree with the trial court, and are not persuaded by Appellant’s

assertion that “there is not enough in the record to establish reasonable

suspicion for the investigatory stop.” Appellant’s Brief at 16.

Police must have reasonable suspicion that a person seized is

engaged in unlawful activity before subjecting that person to an investigative

detention. Commonwealth v. Cottman, 764 A.2d 595, 598 (Pa. Super.

2000). “Reasonable suspicion must be based on specific and articulable

facts, and it must be assessed based upon the totality of the

circumstances[.]” Commonwealth v. Williams, 980 A.2d 667, 671 (Pa.

Super. 2009) (internal quotation and citation omitted), appeal denied, 990

A.2d 730 (Pa. 2010). In determining whether reasonable suspicion exists,

police officers “need not personally observe the illegal or suspicious conduct,

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but may rely upon the information of third parties, including ‘tips’ from

citizens.” Commonwealth v. Barber, 889 A.2d 587, 593 (Pa. Super.

2005) (citation omitted).

We further note that pursuant to Pa.R.E. 104(a), a trial court, in

making its determination as to the admissibility of evidence in “preliminary

questions,” “is not bound by the rules of evidence except those with respect

to privileges.” See also Commonwealth v. Raab, 934 A.2d 695 (Pa.

2007). Thus, during the suppression hearing, the trial court, even though it

determined that Bellucci’s testimony was not hearsay, would have been

permitted to consider hearsay evidence.

From our review of the evidence presented at the suppression hearing,

we discern no error in the suppression court’s application of the law to the

facts of record. The information possessed by Bellucci was sufficient to

support his reasonable suspicion that Appellant, at the time of the detention,

had been drinking and engaged in unruly behavior. See Commonwealth v.

Anthony, 977 A.2d 1182, 1187 (Pa. Super. 2009) (holding reasonable

suspicion based on reliable information of third parties supplied to the police

justified interrogative detention); Commonwealth v. Korenkiewicz, 743

A.2d 958, 963-964 (Pa. Super. 1999) (holding where stop is based on third

party information, such information must be sufficiently specific and the

reliability of informant is relevant to that inquiry), appeal denied, 759 A.2d

383 (Pa. 2000). Accordingly, we conclude the trial court acted properly and

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within its discretion in denying Appellant’s suppression motion. We

therefore affirm the November 26, 2013 judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/14/2015

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