author: MASSIAH-JACKSON, J.,

text:
    Tyler v. Kindred Healthcare Operating, Inc.

      Christopher J. Culleton, for plaintiff.

      William J. Mundy, Sean P. O ’Mahoney and John M. Skrocki, for defendant Kindred Healthcare Operating, Inc.

      Jacquelyn J. Ager, Nicholas M. Centrella and Frank R. Emmrich, Jr., for defendant St. Francis Country House.
    November 20, 2013
   MASSIAH-JACKSON, J.,

I. FACTUAL BACKGROUND and PROCEDURAL HISTORY

Ruth McNear was bom on February 8, 1928. In 2012, Mrs. McNear fractured her right distal femur and was admitted to Mercy Fitzgerald Hospital in Philadelphia. Subsequently, Mrs. McNear was transferred to and was treated at Kindred Hospital South Philadelphia from August 31, 2012 to September 21,2012 and at St. Francis Country House from October 4, 2012 until death on October 29, 2012. See plaintiff’s complaint, paragraphs 51-60.

While Mrs. McNear was under the complete and total control of the two skilled nursing care facilities, she developed at least three necrotic, advanced pressure sores on her right lower extremity and sustained a second fracture to her right femur. Eighty-four year old Mrs. McNear presented to these nursing homes with a history of renal disease, dementia, hypertension, atrial fibrillation, glaucoma and right-eye blindness, according to the medical records. Mrs. McNear died as a result of complications due to the second femur fracture and surgery.

Avenia Tyler, a daughter of Ruth McNear and administratrix of the estate of Ruth McNear, initiated this civil ligation on the basis of the wrongful death act and survival statute. Both defendant-nursing homes have filed preliminary objections challenging, inter alia, jurisdiction of the courts, venue, and punitive damages. For the reasons set forth in this memorandum, all of the preliminary objections are overruled and the parties are directed to move forward to prepare for trial.

II. LEGAL DISCUSSION — Kindred Hospital of South Philadelphia

Appellate cases hold that whether a claim is within the scope of an arbitration provision is a question of law. Because arbitration is a matter of contract, the court must review the construction and interpretation to determine whether there is an express agreement between the parties to arbitrate. The first inquiry, however, is to determine whether there exists a valid agreement to arbitrate. See generally, Elwyn v. DeLuca, 48 A.3d 457 (Pa. Superior Ct. 2012); Midomo Co. v. Presbyterian Housing Development Co., 739 A.2d 180 (Pa. Superior Ct. 1999).

In this case, this court concludes that there is substantial evidence the decedent, Ruth McNear, was confused and not competent at the time she signed the admission agreement and ADR agreement. There is no valid agreement to arbitrate in this situation.

In Weir v. Estate of Ciao, 556 A.2d 819 ((Pa. 1989), the Supreme Court noted the applicable analysis when there exists a challenge to the mental capacity of a person who signs a contract. 556 A.2d at 824:

“Written instruments are not to be set aside except upon convincing testimony that their execution was tainted with fraud, either actual or constructive, or that the person so executing them did not have what the law considers sufficient mental capacity to do so. Union Trust Co. v. Cwynar, 388 Pa. 644, 131 A.2d 133 (1957) (citing, Jones v. Schaefer, 357 Pa. 628, 55 A.2d 387 (1947)). Contracts made with an incompetent before his adjudication as weakminded are voidable and can be avoided only on proper showing that he was incompetent at the time. Hagopian, 396 Pa. at 404, 153 A.2d at 899. When mental competency is at issue the real question is the condition of the person at the veiy time he made the gift or executed the instrument. Sobel v. Sobel, 435 Pa. 80, 254 A.2d 649 (1969); Girsh Trust, 410 Pa. 455, 189 A.2d 852 (1963). Competence is best determined by a person’s words and acts. The testimony of persons who observed the alleged incompetent on the date in question is generally superior to testimony as to observations made prior to and subsequent to that date. Ordinarily, competence is presumed and the burden of proof is upon the person who alleges the incompetence. Girsh C

In the case at bar, documents and hospital chart notations made by medical professionals on September 4,2012, the same date the ADR agreement was signed, compel the conclusion that Mrs. NcNear’s thoughts were disoriented and cloudy at the very time she executed the document.

August 31, 2012 — Mrs. McNear, age 84. Summary from Mercy Fitzgerald Hospital diagnosis includes dementia, glaucoma, right eye blindness, end stage renal disease and multiple coronary ailments.

August 31, 2012 — Admitted to Kindred Hospital South Philadelphia.

September 4, 2012 — Mrs. McNear signed the Admission Agreement and ADR Agreement (exact time not indicated).

September 4, 2012 — Throughout the day:

Nurse wrote: — Hemodialysis Flow Sheet PreTreatment: Patient: “Mild Confusion”

Nurse wrote: — Post-Treatment (6:16 p.m.): Patient’s Level of Consciousness: “Confused”

Nurse wrote: — Neurological Assessment “Confused at times” Fall/risk Assessment

Nurse wrote: — “Confusion/Disorientation/Sedation” Sensory Status

Nurse wrote: — “Impaired vision or hearing”

It is apparent that throughout the day on September 4, 2012, several different nurses observed and recorded that Mrs. McNear was confused and impaired. Kindred Hospital recently submitted a sur-reply memorandum with an undated affidavit which purports to raise discrepancies about whether or not decedent-McNear had sufficient mental capacity and/or lucid intervals to execute the business documents. This new document from the defendant and counsel challenges Kindred Hospital’s own internal, contemporaneously prepared medical records. See, In re Meyers, 189 A.2d 852, 858-860 (Pa. 1963). Certainly, it can not be disputed that in order for an enforceable ADR agreement to exist, there must have been a meeting of the minds. Mountain Properties v. Tyler Hill Realty Corporation, 767 A.2d 1096 (Pa. Superior Ct. 2001) and cases cited at 1101. Accordingly, based on the circumstances presented herein the survival action will not be severed from the wrongful death action and it is not subject to the arbitration agreement. See also, Pisano v. Extendicare Homes, Inc._A.3d_(Pa. Superior Ct. 2013). The defendant’s preliminary objections challenging the arbitration provision, per rule 1028(a)(6) are overruled.

III. LEGAL DISCUSSION — St. Francis Countiy Home

On October 4, 2012, Mrs. McNear, was transferred to St. Francis Country Home in Darby, Pa. Because of her prior medical history, she was designated a “high fall risk.” On October 24, 2012, Mrs. McNear suffered a broken femur while in physical therapy at St. Francis. Ruth McNear died on October 29,2012.

At the time of admission to St. Francis, Mrs. McNear’s daughter, Lynette, signed the admission agreement and the responsible person agreement. The issue here is whether the ADR agreement, included in the admission papers, is enforceable. The answer is dependent upon whether Lynette McNear was acting as Ruth McNear’s agent when she signed the materials. Walton v. Johnson, 66 A.3d 782 (Pa. Superior Ct. 2013).

The Walton Court provided a thorough review of Pennsylvania agency law. The burden of proving an agency relationship falls on St. Francis, the party asserting the existence of the relationship. 66 A.3d at 786:

“An agency relationship may be created by any of the following: (1) express authority, (2) implied authority, (3) apparent authority, and/or (4) authority by estoppel. Express authority exists where the principal deliberately and specifically grants authority to the agent as to certain matters. See Bolus v. United Penn Bank, 363 Pa.Super. 247, 525 A.2d 1215 (1987). Implied authority exists in situations where the agent’s actions are ‘proper, usual and necessary’ to carry out express agency. See Passarelli v. Shields, 191 Pa.Super. 194, 156 A.2d 343 (1959). Apparent agency exists where the principal, by word or conduct, causes people with whom the alleged agent deals to believe that the principal has granted the agent authority to act. See Turner Hydraulics v. Susquehanna Construction Co., 414 Pa.Super. 130, 606 A.2d 532 (1992). Authority by estoppels occurs when the principal fails to take reasonable steps to disavow the third parly of their belief that the purported agent was authorized to act on behalf of the principal. See Turnway Corp. v. Soffer, 461 Pa. 447, 336 A.2d 871 (1975).”

In the case at bar, there is no evidence or documents indicating Ruth McNear gave her daughter power of attorney or authorization to make legal decisions on her behalf. While it appears that Ruth McNear’s capacity and mental state in October, 2012 was less than in August, 2012 (when she was admitted to Kindred Hospital), the record is void of facts relating to the mother’s admission, or, the circumstances of Lynette’s signature on the documents, or, whether Ruth consented to or affirmed Lynette’s actions at a later time. The mere existence of a family relationship does not create an agency relationship “unattended by conditions, acts or conduct clearly implying agency.” Sidle v. Kaufman, 29 A.2d 77, 81 (Pa. 1942). The questions of apparent authority are questions of fact for a jury. Passarelli v. Shields, 156 A.2d 343 (Pa. Superior Ct. 1959).

Finally, to the extent St. Francis asserts that it was defrauded by Lynnette McNear, this court notes that rule 1030 states that all affirmative defenses, including fraud, “shall be” pled in new matter in the response to plaintiff’s complaint.

This court concludes that St. Francis has been unable to establish that Lynette McNear was acting as Ruth McNear’s agent when the ADR document was signed and thus, no valid arbitration agreement exists. The survival action will not be severed from the wrongful death action and it is not subject to the arbitration agreement. See also, Pisano v. Extendicare Homes, Inc., _A.3d _ (Pa. Superior Ct. 2013).

The defendant’s preliminary objections challenging punitive damages and specificity, inter alia, Rule 1019(a), 1028(a)(2), 1028(a)(3) are overruled. The defendant’s preliminary objections challenging venue, inter alia, Rule 1028(a)(1), Rule 1006(a.l) are overruled as per Rule 1006(c)(1).

IV. CONCLUSION

After considering the arguments of all parties, this court concludes that all preliminary objections are overruled and all defendants must answer plaintiff’s complaint within twenty days.

ORDER

And now, this 20th day of November, 2013, after consideration of the preliminary objections filed by defendant Kindred Healthcare Operating, Inc. d/b/a Kindred Hospital South Philadelphia, and plaintiff’s response thereto, and for the reasons set forth in the memorandum filed this date, it is hereby ordered that all of the preliminary objections are overruled.

Defendant shall file an answer to the complaint within twenty (20) days from the date this order is docketed.


source: Caselaw Access Project

license: Public Domain

text:
    Vinciguerra v. Crane Co.

      Benjamin P Shein, for plaintiff.

      G. Daniel Bruch, Jr., for defendant Crane Co.
    November 21, 2013
   BERNSTEIN,«/.,

Two asbestos cases were tried together beginning on January 30, 2013. On February 25, 2013, the jury returned a verdict in favor of plaintiff Charlotte Vinciguerra and against defendants Crane, Co. (“Crane”) and four other tortfeasors in the amount of $2,300,000.00. Defendant Crane filed motions for post-verdict relief on March 7,2013. On May 3,2013, plaintiff filed an answer to Crane’s post-verdict motions. On July 30, 2013, this court entered an order denying Crane’s motions for post verdict relief. Crane timely appeals this decision.

I. Plaintiff’s Case for Causation did not Fail as a Matter of Law.

Defense claims that they are entitled to a new trial because this court permitted plaintiff’s expert witness to testify that “each and every breath” and “every exposure” to asbestos-containing fiber was causative of plaintiff’s decedent’s disease, in violation of the Pennsylvania Supreme Court decision in Betz v. Pneumo Abex, LLC.

None of plaintiff’s experts offered this opinion. Dr. Steven Markowitz, an occupational and environmental medicine expert, testified that in his opinion the occupational exposure to asbestos as experienced by plaintiff’s decedent caused his disease. Dr. Markowitz explained the dose-response relationship and concepts of cumulative exposure. He also testified to the various types of asbestos and their effects in the body. Dr. Markowitz’ testimony was based upon his individual analysis of the specific factors in plaintiff’s decedent’s condition, was offered to a reasonable degree of medical certainty, and was fully subject to cross-examination. His reasoning was fully explained. On cross-examination defense counsel themselves asked:

Q. “Well, let’s take the first one, every breath of asbestos containing air, do you believe that every breath have asbestos containing air increases the risk of developing mesothelima?”

The defense may not appeal on the basis of truthful expert opinion that they solicited. Even with that question, which invited precisely the opinion that the defense sought to preclude, the witness said:

A. “Well, you know, you get into what frankly is kind of a logical problem because a worker works with asbestos for 20 years and took millions of breaths during that 20 years, they were exposed to asbestos during those 20 years, we know that 20 years produced their risk for mesothelioma, their 20 years consisted of consecutive breaths millions of times. So in theory, yes every breath contributes to exposure, to overall exposure which accumulates over time and gives them risk of the disease. And if they developed the disease then it gave them that disease.
Now, you take the individual breath, that’s a very small low level exposure, but it’s really the accumulation of all those breaths overtime that gives the risk.”

In that answer the witness did not opine that every breath causes mesothelioma. Rather the witness clearly explained that it is the cumulative effect which causes the disease.

Undeterred in seeking an inadmissible opinion and soliciting the same, counsel for the defense next asked:

Q. “You mentioned another concept, every product exposure, you believe that every exposure created by a product that contains asbestos in the work place increases the risk of asbestos related diseases?”

Again, expert Markowitz did not offer any impermissible opinion. He said:

A. “...the product has to contain asbestos in more than a trivial amount, that the product has to be used and manipulated in a way that produced air borne dust, and that air borne dust has to be in the breathing zone of the worker, that product has to be used with some frequency and duration to contribute to the overall exposure and thereby to disease.”

Indeed, he rejected the every breath theory as defense counsel persisted in seeking an impermissible opinion. He said:

Q. “If it were a very fleeting exposure, one consisting of, for instance minute over a 20 year career, then I wouldn’t attribute that single trivial exposure to causation of a disease.”

The expert clearly provided the jury with sufficient information from which they could make the factual decision as to whether or not the exposure to asbestos in defendant’s products caused plaintiff’s decedent’s disease.

Crane’s own witness, Mr. Pantelleone, agreed that asbestos is a carcinogen and that any exposure over a very low threshold could qualify as a dangerous and hazardous exposure to asbestos: precisely the testimony adduced from plaintiff’s expert on cross-examination.

II. Crane is not Entitled to Judgment Notwithstanding the Verdict on the Grounds that Plaintiffs have made a Complete Recovery of their Damages.

Defendant claims that plaintiff may not recover more than the full amount awarded and surmises that plaintiff may do so in the future. Crane claims “plaintiffs have submitted claims in the past and likely will submit additional claims to various asbestos bankruptcy trusts.” The speculation that plaintiff will unethically and improperly seek compensation beyond that awarded by the jury is unsupported by any evidence. Additionally, Crane is wrong when they claim that amounts received from settling defendants, whose liability was not presented to the jury because insufficient evidence was presented at trial for any liability to be found, must be included in the total compensation calculation.

Plaintiff is entitled to rely on the releases with settling joint tortfeasors which provided for pro rata as opposed to pro tanto reduction. Crane is entitled to a set-off based on the joint tortfeasor status of settling defendants only to the extent of the pro rata settlements contained in the release language plaintiff signed with the defendants. The court notes Crane had the ability throughout this action to join any other parties into the action or to pursue any cross-claims against parties initially in the action who have subsequently settled with plaintiff. “If the payer is not a tortfeasor, his payment would be that of a volunteer and would not support a claim for contribution.”

III. The Trial Court Properly Refused to Offer the Jury Instructions which are not the Law of Pennsylvania.

A trial court may not make rulings at trial on an assumption of what changes in the law the Supreme Court may make in the future. Defendant claims there was error in charging the jury in accordance with the law of Pennsylvania. Crane claims that because Federal Courts have predicted that the Pennsylvania Supreme Court will adopt section two of the restatement third of torts, this court should have used that prediction as its jury instruction, contrary to the clear law of Pennsylvania at the time of the trial. Crane claims that a new trial must be granted because this court failed to charge the jury in accordance with the law as it is predicted to be changed. It needs no citation of authority for this court to state as a black letter proposition of law that cases are to be tried, and all rulings made, in accordance with the law at the time trial occurred.

IV. The Trial Court Properly Excluded the Testimony of Dr. Charles Weaver.

Defendant claims there was error in precluding a “human memory and cognition expert” from testifying. Crane offered Dr. Weaver as an expert in cognition scientific theories. They offered this expert to “explain” why plaintiff’s decedent’s memory was mistaken. The Pennsylvania Supreme Court has clearly said repeatedly that credibility questions may not be the subject of expert opinion testimony. This testimony is not a proper subject for expert testimony and preclusion was absolutely proper. It is the juiy and the jury alone that decides credibility. There is no distinction between the long-established criminal cases that preclude credibility expert testimony and proper rulings in civil cases.

V. The Trial Court Properly Permitted the Jury to Review an Exhibit During Deliberation.

Allowing the jury to review plaintiff’s exhibit PA-24 during deliberation was not an abuse of discretion or error of any kind. The exhibit had been marked for identification. Defense expert, Donna Ringo, had been extensively examined about it. Specific passages were read to the defense witness and acknowledged by the witness to be accurate. Throughout this examination there was no objection raised. The exhibit was specifically referred to by plaintiff’s counsel in closing. Its contents were repeatedly electronically displayed to the jury on a large screen without objection. Counsel’s minor lapse in not formally moving the exhibit into evidence as part of plaintiff’s list of exhibits does not make it reversible error to permit the jury to review material they had seen at length during the trial and had been extensively referred to in testimony.

VI. The Consolidation of the Amato and Vinciguerra Cases was not “Unduly Prejudicial” to the Defense.

Defense claims that combining the Amato case with the Vinciguerra case was “unduly prejudicial.” The long standing practice in Philadelphia County of consolidating multiple asbestos claimants into a common trial has been approved by the Pennsylvania Appellate Courts for decades. The Philadelphia Court recently administratively reviewed and revised these procedures and imposed significant restrictions on the number and types of cases that may be consolidated into trial groupings. There was no error in following standard practice and procedure in the Philadelphia Courts as modified to reduce the number of plaintiffs presented in one trial.

VII. The Court Properly Excluded Evidence Offered without Proper Authentication.

Defense claims it is entitled to a new trial because this court did not allow them to introduce evidence that was purported to be purchasing records of asbestos-containing materials from DuPont Chambers Works Plant, plaintiff’s decedent’s place of work. Crane failed to establish a proper foundation for admission of this evidence, so it was properly excluded.

Under Pa.R.C.P. 901, proffered exhibits must be preliminarily authenticated before they can be admitted into evidence. The proponent must put forward sufficient proof that the evidence is what the proponent claims it to be. The question of the sufficiency of this preliminary proof “is a question committed to the discretion of the trial judge.” Crane attempted to authenticate the purchasing records through an affidavit of a DuPont employee who did not work for the facility at the time the records were created. Defense put forth no evidence that this employee had any personal knowledge of the documents in question, including who prepared them or under what circumstances they were created. Plaintiff had no opportunity to question this employee about the contents of the affidavit. Defense counsel failed to properly authenticate these documents, and therefore, the court properly excluded them.

VIII. Crane is not Entitled to Remittitur for Damages Awarded to Plaintiff for Loss of Consortium.

Crane argues that it is entitled to remittitur and that the court should reduce the jury’s verdict by $500,000.00, the amount the jury awarded Charlotte Vinciguerra for loss of consortium from the onset of Mr. Viniguerra’s malignant mesothelioma to his death. At trial, Mrs. Vinciguerra brought three separate claims: a wrongful death claim on behalf of Mr. Vinciguerra’s survivors, a survival claim on behalf of Mr. Vinciguerra’s estate, and a consortium claim on her own behalf for the loss Mr. Vinciguerra’s services and companionship from the time of the onset of his illness until his death.

Crane claims Mrs. Vinciguerra cannot recover separately for the wrongful death and loss of consortium claims. Crane argues that Mrs. Vinciguerra’s recovery under the wrongful death act covers all damages for the pre-death loss of consortium claim. Crane’s objection is based on a misunderstanding of the nature of these distinct claims. A claim under the wrongful death act compensates the decedent’s beneficiaries for damages caused by the decedent’s death. These damages run from the decedent’s date of death forward to the decedent’s expected life span if the injury had not occurred. In contrast, Mrs. Vinciguerra’s claim for loss of consortium related to damages she sustained during the decedent’s life. These damages are the loss of services and companionship due to Mr. Vinciguerra’s illness while he was alive.

In Novelli v. Johns-Manville Corporation, the Pennsylvania Superior Court clearly stated that the law of Pennsylvania allows for a loss of consortium claim from the time of injury until the decedent’s death. The question in that case was whether a widow’s loss of consortium claim could extend beyond her late husband’s death. The court stated:

In Pennsylvania, loss of consortium has been recognized as: “[A] right growing out of the marriage relationship which the husband and wife have respectively to the society, companionship and affection of each other in their life together. As thus defined and limited, any interference with this right of consortium by the negligent injury to one spouse, should afford the other spouse a legal cause of action to recover damages for that interference.

The court further explained that most jurisdictions allow loss of consortium damages for the time between the spouse’s injury and death. This is also true under the restatement (second) of torts (1997) which states that:

In the case of death resulting to the impaired spouse, the deprived spouse may recover under the rule stated in this Section only for harm to his or her interests and expenses incurred between injury and death. For any loss sustained as a result of the death of the impaired spouse, the other spouse must recover, if at all, under a wrongful death statute.”

The Superior Court specifically said there is “no persuasive reason for us to depart from the tradition limitation.” The traditional limitation, awarding damages for loss of consortium for the period of injury until the decedent’s death is the law of Pennsylvania. Upon the injured party’s death, the surviving spouse has no further right to recover for loss of services and companionship. All claims after death are compensable only under the wrongful death statute. There are two separate causes of action to compensate a surviving spouse for two separate injuries. In the instant case, the jury properly awarded Mrs. Vinciguerra separate damages for each.

For the reasons set forth above, the jury verdict should be affirmed.

      . Plaintiffs resolved their claims with the other eight tortfeasors before or during trial.

      . 44 A.3d 27 (Pa. 2012).

      . N.T., February 11,2013 p.m., page 13, line 6 through 9.

      . Commonwealth v. Yarris, 549 A.2d 513, 525 (Pa. 1988) (“A party may not object to testimony which he himself elicits.”)

      . N.T., February 11, 2013 p.m., page 13, line 10 through 25.

      . N.T., February 11, 2013 p.m., page 14, line 4 through 8.

      . N.T., February 11, 2013 p.m., page 14, line 10 through 16.

      . N.T., February 11,2013 p.m., page 14, line 20 through 23.

      . Brief in support of defendant Crane’s motion for post-trial relief, p.10.

      . Slaughter v. Pennsylvania X-ray Corporation, 638 F.2d 639 (3rd Circuit 1981, citing 42 Pa. C.S. §8322 and §83249(c)).

      . The Federal Court stands in a different position vis-a-vis appellate decisions in Pennsylvania in that It may predict the future. A trial court must follow the law.

      . Commonwealth v. O’Searo, 352 A.2d 30, 32 (1976); Commonwealth v. Dunkel, 602 A.2d 830 (Pa. 1992); Commonwealth v. Balodis, 747 A.2d 341, cert. denied 531 U.S. 817 (Pa. 2000); Commonwealth v. Crawford, 718 A.2d 768 (Pa. 1998); Commonwealth v. Constant, 925 A.2d 810, 822 (Pa. Super.), app. denied 932 A.2d 1285 (Pa. 2007).

      . See Commonwealth v. O’Searo, 352 A.2d 30 (Pa. 1976); Commonwealth v. Dunkel, 602 A.2d 830 (Pa. 1992); Commonwealth v. Gallagher, 547 A.2d 355 (Pa. 1988); Commonwealth v. Davis, 541 A.2d 315 (Pa. 1988); Commonwealth v. Seese, 517 A.2d 920 (Pa. 1986); Commonwealth v. Balotis 747 A.2d 341, cert. denied 531 U.S. 817 (Pa. 2000); Commonwealth v. Crawford, 718 A.2d 768 (Pa. 1988); Commonwealth v. Robinson, 5 A.3d 339 (Pa. Superior 2010); Commonwealth v. Selenski, 18 A.3d 1229 (Pa. Super. 2011); Commonwealth v. Spense, 627 A.2d 1176 (Pa. 1993).

      . Obici v. Third Nat. Bank & Trust Co. of Scranton, 112 A.2d 94, 95 (Pa. 1955) (“Credibility of witnesses is always for the finders of fact.”)(intemal citations omitted)).

      . Moore v. Ericsson, Inc., 7 A.3d 820, 828 (Pa. Super. 2010)(As-bestos cases often involve common questions of fact and consolidation promotes judicial economy.).

      . Pa.R.C.P. 901(a).

      . Adamczuk v. Holloway, 13 A.2d 2, 4(Pa. 1940).

      . 42 Pa. Const. Stat. Ann. § 8301; Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384, 390 (Pa. Super. 2002) (citing Hodge v. Loveland, 690 A.2d 243, 245-46 (Pa. 1997)).

      . See 42 Pa. Const. Stat. Ann. §8301.

      . 576 A.2d 1085 (Pa. 1990).

      . Id.

      . Id. at 1087 (citing Burns v. Pepsi-Cola Metro. Building Co., 510 A.2d 810 (Pa. Super. 1986)).

      . Id. (citing Nenoff v. Thompson, 480 F.2d 1221 (6th Cir. 1973); Burke v. United States, 605 F.Supp. 981 (D.Md. 1985); Archie v. Hampton, 287 A.2d 622 (N.H. 1972)).

      . Id. (citing restatement (second) of torts (1977)).

      . Id.


author: BUTTS, P.J.,

text:
    Commonwealth v. Erwin

      C.P. of Lycoming County,
    No. CR: 27-2013

      Eileen Dgien, for Commonwealth.

      Pete Campana, for defendant.
    November 25, 2013
   BUTTS, P.J.,

The defendant filed a Motion to Suppress Evidence on March 26, 2013. Following a continuance request by the defendant, the hearing on the motion was held on September 27, 2013.

BACKGROUND

On November 29, 2012 at approximately 5:00 PM, Officer Justin Snyder (Snyder) of the Williamsport Bureau of Police was in uniform and in a marked police vehicle when he observed a green Buick sedan that he was familiar with from prior contacts with police. Snyder followed the vehicle as it drove down Pine Street, turned left onto Little League Boulevard, and then right onto Market Street. When the vehicle turned onto Little League Boulevard it only initiated its turn signal while completing the turn. Snyder conducted a traffic stop of the vehicle on the four hundred block of Market Street.

Snyder requested identification from the driver, Erwin Derrick, Jr. (defendant), and noticed that he would not make eye contact with him. In addition, the defendant appeared to be clenching his mouth while he talked, as if there was something in his mouth. While in possession of the defendant’s documentation and without informing him for the reason of the stop, Snyder requested that the defendant open his mouth and with the assistance of a flashlight observed a dark, leafy-like substance caked on the back molars of his teeth. In Snyder’s experience and training, the substance on the defendant’s teeth was chewed up marijuana and immediately arrested the defendant.

As a result of the traffic stop, the defendant was charged with one count of possession with intent to deliver, an ungraded felony; possession of a controlled substance-small amount, an ungraded misdemeanor; tampering with or fabricating physical evidence, a misdemeanor of the second degree; and turning movements and required signals, a summaiy offense. The defendant challenges whether the traffic stop was done with probable cause and whether Snyder lawfully searched the defendant’s mouth. Additionally, the defendant filed a petition for writ of habeas corpus challenging whether the Commonwealth established a prima facie case for the charges filed against the defendant.

MOTION TO SUPPRESS

The first issue alleged by the defendant is whether Snyder had reasonable suspicion or probable cause to believe that a violation of the motor vehicle code had occurred. The defendant was charged with turning movements and required signals, which states:

At speeds of less than 35 miles per hour, an appropriate signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle during turning. The signal shall be given during not less than the last 300 feet at speeds in excess of 35 miles per hour. The signal shall also be given prior to entry of the vehicle into the traffic stream from a parked position.

75 Pa.C.S. § 3334. Snyder testified that the defendant did not initiate his turn signal until he was completing the turn. Irrespective of the speed the defendant’s vehicle was traveling, Snyder had probable cause to believe a violation of the motor vehicle code had occurred and legally stopped the defendant’s vehicle.

The second issue raised by the defendant is whether the defendant’s consent to search was voluntary. The parties have both agreed that Snyder conducted a search of the defendant. Therefore, the court need not address whether the search was permissible for officer safety. Typically, before an officer can conduct a search on an individual a search warrant by a magistrate must be obtained, which is made upon a showing of probable cause. An exception to the search warrant requirement is if an individual with proper authority “unequivocally and specifically consents to the search.” Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super. 2003). “To establish a voluntary consensual search, the Commonwealth must prove that a consent is the product of an essentially free and unconstrained choice — not the result of duress or coercion, express of implied, or a will overborne —■ under the totality of the circumstances.” Id. A variety of factors are considered when assessing the voluntariness of the consent:

1) length and location of the detention; 2) whether there were any police abuses, physical contact, or use of physical restraints; 3) any aggressive behavior or any use of language or tone by the officer that were not commensurate with the circumstances; 4) whether the questioning was repetitive and prolonged; 5) whether the person was advised that he or she was free to leave; and 6) whether the person was advised of his or her right to refose to consent.

Commonwealth v. Caban, 60 A.3d 120, 131 (Pa. Super. 2012). The Commonwealth must show more than acquiescence to a claim of lawful authority. See Commonwealth v. White, 327 A.2d 40, 41 (Pa. 1974) (citing Bumper v. North Carolina, 391 U.S. 543 (1968)).

Further, the Commonwealth has the burden of persuasion at a suppression hearing. See Commonwealth v. Enimpah, 2013 PA Super 20 (Pa. Super. 2013) (stating that the Commonwealth has the burden at suppression hearings). In this case, however, the Commonwealth has not sufficiently provided the court with evidence to completely assess the merits of the search. Following a review of the transcript of the hearing, the Commonwealth failed to elicit testimony regarding the length of the detention. In addition, there was no testimony on what was said to the defendant prior to the request to open his mouth and whether it was repetitive, prolonged, or aggressive. The Commonwealth has failed to provide this court with evidence to consider at least three (3) of the factors to determine voluntariness.

In addition, the evidence provided by the Commonwealth fails to establish that the consent to search was done voluntarily. The officer’s statement to the defendant to render a voluntary consent of his mouth with a flashlight was solely “would you open your mouth?” The language alone used by the officer leaves much to be desired. The officer did not inform the defendant that he could refuse consent, that consent was needed, or even use the word “consent” (i.e., “would you consent to open your mouth?”). Another glaring omission would be that the word “search” and that there was no mention that a flashlight would be used after the defendant opened his mouth. Based on the statement by Snyder, the court believes that it resembles more of a demand than a request to make a knowing consent to search.

There are additional factors that lead to the conclusion that the defendant involuntarily consented to the search. The defendant’s vehicle had been pulled over after Snyder activated the lights of his marked police vehicle. Snyder testified that he possessed the defendant’s documentation and that the defendant was not free to leave at the time of the request. Further, the officer testified that he could not remember if he informed the defendant why he was stopped:

CAMPANA: And when you stopped him and when you went up to the vehicle what did you say to him?
SNYDER: Something to the effect of I knew who he was so I started collecting all his biographical information.
CAMPANA: Did you tell him why he was stopped?
SNYDER: I don’t remember.
CAMPANA: Did you ask him for his driver’s license and registration and all that?
SNYDER: Yeah. That’s what I mean by collected his biographical information.

N.T., September 27, 2013, p. 17. If the officer requested the defendant to open his mouth during the traffic stop, the defendant would have reasonably believed that the request was part of the initial stop since there was no break in between the two. See Commonwealth v. Moyer, 954 A.2d 659, 665 (Pa. Super. 2008); Commonwealth v. Dales, 820 A.2d 807 (Pa. Super. 2003).

In support of their position that the defendant consented, the Commonwealth only cited to Danforth and argued that the defendant believed that evidence would not have been discovered by the search. Commonwealth v. Danforth, 576 A.2d 1013, 1022 (Pa. Super. 1990). Interestingly, the Superior Court in Danforth actually found that the consent of a defendant was given involuntarily due to a variety of factors, not including the one cited by the Commonwealth. Whether the defendant believed that incriminating evidence would have been discovered, however, is merely a factor and not dispositive of the issue. Snyder also testified that the defendant’s speech was impeded by the object in his mouth and that his mouth was clenched; this testimony suggests that the defendant was aware that incriminating evidence was in his mouth.

Finally, the court is persuaded that the search was not voluntary based on Acosta. Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super. 2003). In Acosta, the defendant was stopped for a traffic violation. The defendant consented to a search after an officer requested permission to do so. The Superior Court of Pennsylvania found that the consent was not voluntary because there was no endpoint from the initial vehicle stop, the defendant’s documentation was being withheld, the defendant was not told he was free not to consent, and there were multiple officers in close proximity with flashing lights. Based on the statement made by Snyder to the defendant, the lack of response by the defendant, and the lack of evidence provided by the Commonwealth at the hearing itself, this court finds that the defendant did not voluntarily consent to a search of his mouth.

In addition, even if the defendant had voluntarily consented to a search of his mouth, the scope of the search performed by the officer is also at issue. In Guerrero, an officer tried to request consent to search the defendant’s camera bag, however, the defendant had little comprehension of English. Commonwealth v. Guerrero, 646 A.2d 585, 586 (Pa. Super. 1994). The defendant emptied the contents of the camera bag of everything except for a paper bag. The officer took the bag out of the camera bag and opened it. The Superior Court stated that “[a] person’s right to delimit the scope of consent to a search is well established.” Id. at 587. Therefore, the Superior Court found that the officer went beyond the scope of consent when he took the paper bag out of the camera bag and searched it without consent.

While there are many distinguishing facts between this case and Guerrero, the officer here did not merely look into the defendant’s mouth. Snyder used a flashlight and searched the interior of the defendant’s mouth. While it is possible that the defendant could have agreed to a search of his mouth with a flashlight, the officer did not clearly inform the defendant of his intentions before he used it. The court acknowledges that the details of the search here challenge the voluntariness of the search itself; however, when officers do not disclose the reason for the search, the object being searched for, or how the search will be performed, officers risk conducting a search outside the scope of consent.

As this court has found that the defendant did not voluntarily consent to a search of his mouth, the court will not address the defendant’s petition for writ of habeas corpus.

ORDER

And now, this 25th day of November, 2013, based upon the foregoing opinion, the defendant’s motion to suppress is hereby granted. The court finds that the defendant did not voluntarily consent to a search of his mouth. Accordingly, it is ordered and directed that evidence seized as a result of the search of the defendant’s mouth and his person incident to arrest is hereby suppressed.

      . Snyder testified that he did not remember the exact statement he made to the Defendant: “The exact quotation I don’t know, but I asked him if he would open his mouth because it’s a search. It’s just like if I would ask him what’s in his pockets and he shows me his pockets. I can’t just go in his pockets. The same thing with his mouth I just can’t go in his’ mouth. He opted, after I asked him, to show me what was in his mouth. He opened his mouth and offered it up. If he would have said nope and kept his mouth shut and just kept ahead with what he was doing we wouldn’t be here right now.”

      . 35P.S. §780-113(a)(30).

      .35P.S. §780-113(a)(31)(i).

      . 18 Pa.C.S. §4910(1).

      . 75 Pa.C.S. §3334(b).

      . The exact language used by Snyder was not clarified during the hearing, however, he testified that he asked the defendant if he would open his mouth.

      . In Gibson, the Pennsylvania Supreme Court stated that “[t]he subject of a search must be made aware of his rights against a warrant-less search for a waiver to be intelligent.” Commonwealth v. Gibson, 638 A.2d 2013 (Pa. 1994). The Supreme Court, however, later found that a person is not entitled to be informed of their right to refuse consent to a warrantless search prior to giving consent. Commonwealth v. Cleckley, 738 A.2d 427 (Pa. 1999).


text:
    Commonwealth v. Feathers

      C.P. of Lycoming County,
    No. CR: 892-2013.

      Eileen Dgien, for Commonwealth.

      Kirsten Gardner, for defendant.
    October 30, 3013
   BUTTS, P.J.,

The defendant filed a motion to suppress evidence on July 18, 2013. A hearing on the motion was held on September 18, 2013.

Background

On March 2, 2013, Officer Gregory F. Drollinger (Drollinger) of the Montgomery Police Department was dispatched to Brooks Street for a report of a burglary in progress. A witness had called police dispatch and reported that an unfamiliar vehicle was parked at a neighbor’s house and that individuals were going to and from the house and the vehicle. Drollinger arrived at the address and knocked on the door. After a delay, Drollinger was about to break the door-in when an individual answered. All the individuals in the house were ordered to the ground, placed in handcuffs, and detained while they were identified. Drollinger and three (3) other officers had their guns drawn during the incident and had detained the individuals for approximately twenty (20) minutes. After the individuals in the house complied with the officers it was confirmed that there was no burglary in progress and all suspicion had ceased.

Each person in the house was individually taken to a separate area, told why the officers had arrived, given their identification, and told they were free to leave. The defendant had been taken to the bottom of a staircase. When Drollinger told the defendant she was free to leave he noticed that she appeared anxious and nervous. Drollinger asked the defendant if a vehicle outside belonged to her because while he was identifying the occupants he saw that the defendant’s driver’s license had been suspended. The defendant initially denied that one of the vehicles belonged to her but eventually said it was hers. Drollinger then asked the defendant if she did drugs and she responded “not anymore.” Drollinger asked the defendant if she would remove items from her pockets and she complied, resulting in the officer finding unopened packets of Suboxone. The suboxone was described as a piece of paper. As a result, the defendant was charged with one count of possession of a controlled substance, an ungraded misdemeanor.

Motion to Suppress

The defendant argues she was being held in an illegal investigative detention and therefore her consensual search should be suppressed under the exclusionary rule. The Commonwealth, however, argues that the interaction was a mere encounter and that even if it was an investigative detention there was reasonable suspicion. The Pennsylvania Courts have defined three forms of police-citizen interaction: (1) mere encounter; (2) investigative detention; and (3) custodial detention. A mere encounter between police and a citizen “need not be supported by any level of suspicion, and carries no official compulsion on the part of the citizen to stop or to respond.” Commonwealth v. Ellis, 541 Pa. 285, 293-94, 662 A.2d 1043, 1047 (Pa. 1995). If a police action becomes too intrusive, a mere encounter may escalate to an investigatoiy detention or seizure. Commonwealth v. Boswell, 554 Pa. 275, 721 A.2d 336, 339-40 (Pa. 1998).

For the determination of whether a mere encounter has risen to an investigatory detention, the court must determine whether police have conducted a seizure of the person involved. Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117, 1119 (Pa. 1998).

To decide whether a seizure has occurred, we apply the following objective test: a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. In applying this test, it is necessary to examine the nature of the encounter. Circumstances to consider include, but are not limited to, the following: 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. Otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Commonwealth v. Beasley, 761 A.2d 621, 625-26 (Pa. Super. 2000). In addition, the court is to consider the nature of any prior seizure, whether there was a clear and expressed endpoint to any such prior detention, and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search. Commonwealth v. Freeman, 757 A.2d 903, 906-07 (Pa. 2000). “[Wjhen an individual has been subjected to a valid detention and the police continue to engage that person in conversation, the citizen, having been in official detention, is less likely to understand that he has the right to refuse to answer questions or a search.” Commonwealth v. Moyer, 954 A.2d 659, 665 (Pa. Super. 2008) (emphasis in original) (citing Commonwealth v. Strickler, 757 A.2d 884 (Pa. 2000)).

In Moyer, two officers in uniform pulled over a defendant for having a hole in the taillight of his vehicle and questioned him about his whereabouts. Moyer, 954 A.2d at 661. The officers initiated a search of the defendant’s criminal history after he appeared nervous and had bloodshot eyes. The defendant’s criminal history revealed a previous arrest for possession of marijuana. Subsequently, the officers ordered the defendant out of the vehicle, showed him the hole in the taillight, and told him to have it repaired. The officers then told the defendant he was free to leave but before he re-entered his vehicle an officer requested to ask a few questions. Following the questioning, the defendant consented to a search of his vehicle and person.

The Superior Court of Pennsylvania, en banc, found that the consent to search occurred during an illegal investigatory detention. The Superior Court stated that the officers created an intimidating atmosphere during the initial stop because they ordered the defendant out of the car to look at the taillight and by asking about his whereabouts. Further, the officer re-questioned the defendant shortly after saying he was free to go and thus “there was no precise end to the traffic stop.” Id. at 667. In addition, there were two armed, uniformed officers standing with the isolated defendant outside his vehicle, the officers had activated their lights, the defendant was not informed that he did not have to answer any further questions, the officer conveyed the results of his criminal history check, and the officers did not inform the defendant that he could decline to consent to the search. In conclusion, the Superior Court stated:

The only factors that would substantiate a finding that a mere encounter occurred herein were that police told Appellee that he was free to leave, did not use a coercive tone, and did not display their guns. However, the record supports the suppression court’s assessment that those elements did not outweigh the overwhelming indicia supporting the reasonableness of appellee’s belief that he could not refuse the officer’s requests for more information and to search his car and person.

Id. at 668.

In addition, in Dales, an officer stopped a vehicle for excessive tint on windows. Commonwealth v. Dales, 820 A.2d 807 (Pa. Super. 2003). The officer observed several air fresheners and a Bactine/medicine type smell. In addition, the defendant acted nervous. After verifying the defendant’s license, the officer requested the defendant out of the vehicle and explained proper tint by comparing the defendant’s vehicle to the officer’s vehicle. The officer then gave the defendant all the documentation taken from him but continued to ask additional questions. The defendant eventually consented to a search of his vehicle, which resulted in contraband being found. The Superior Court found that once the officer gave the defendant his documentation back the initial traffic stop had ended. When the second round of questioning began the Superior Court found that it was an investigative detention based on a hunch and without reasonable suspicion. The Superior Court found that any information found during the investigative detention could not have been used to justify the detention that was already occurring.

In support of the decision in Dales, the Superior Court cited By, which actually found that subsequent questioning of a defendant was a mere encounter. Commonwealth v. By, 812 A.2d 1250 (Pa. Super. 2002). In By, the defendant’s vehicle was pulled over for having excessive tint. Two (2) additional officers arrived on the scene and the identities of the four (4) individuals in the vehicle were obtained. It was further found that one of thé passengers had given false information about his name and birth date. After the officer gave the defendant a warning for the tinted windows and told he could leave, the officer continued to ask questions. The officer asked if he could search the vehicle but again repeated that the defendant could also leave. The Superior Court found that the subsequent questioning after the initial traffic stop was a mere encounter, citing that the officers returned the defendant’s documentation, told the defendant he was free to leave, did not use force/ threats, did not block the defendant’s path, did not remove a weapon from his holster, and reminded the defendant he could leave after requesting consent to search. Id. at 1256-57.

Here, there are many factors that indicate that the questioning by the officers was an investigative detention. First, the nature of the first seizure by the four (4) officers was intimidating as the individuals in the house were forced to the ground by gun point and handcuffed. The defendant was detained for twenty (20) minutes while police investigated whether the individuals in the house were committing a burglary.

Second, each individual was separately taken from the group and talked to about the officers’ presence in the house. The officers did not merely tell everyone in detention at once that they were free to go but separated them and questioned them each individually. Specifically, the officers talked to the defendant in the foyer of the house. While Drollinger testified that he was not blocking the exit out of the house, he isolated the defendant in a smaller room. There was also no indication that the defendant was wearing seasonally appropriate clothing to exit the house for the first week of March.

Third, while Drollinger testified that he told the defendant she was free to leave, there was no endpoint to the previous detention. Immediately after informing the defendant she was free to go he continued to ask questions. Similar to Moyer, the continued questioning after being told she was free to leave did not result in a precise end to the detention based on the suspected burglary.

Fourth, and probably most important, Drollinger told the defendant she was free to leave when he was still located in the house. It is counterintuitive for an officer that entered a house full of individuals to stay in the house he mistakenly entered and tell the occupants that they are free to leave the house. As testified by Drollinger, prior to the additional questioning of the occupants in the house he no longer had any suspicion of a burglary. Without any suspicion or probable cause, the officers not only remained in the house but continued to question the defendant.

Finally, the officers never informed the defendant that she did not have to comply with their requests. There was no testimony that any officer told the defendant that she did not have to answer their questions. Moreover, there was no testimony that any officer told the defendant she did not have to consent to a search of her pockets/person. See By, 812 A.2d at 1256. While there are factors that support that the interaction was a mere encounter, such as the officers no longer had their guns drawn, there was no testimony of force/threats in the second encounter, and Drollinger testified that he told the defendant she was free to leave, the totality of the circumstances clearly weigh in supporting the reasonableness of the defendant’s belief that she could not refuse the officer’s requests for more information and to otherwise terminate the encounter.

Even though this court has found that the defendant was questioned during a custodial interrogation, the Commonwealth contends that there was still reasonable suspicion. Reasonable suspicion is decided by the court after a review of the totality of the circumstances and a finding that the facts support a reasonable belief that the law is being broken. Commonwealth v. Fulton, 921 A.2d 1239, 1243 (Pa. Super. 2007). “In making this determination, we must give ‘due weight...to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.” Id. (citing Commonwealth v. Cook, 735 A.2d 673, 76 (Pa. 1999). To establish reasonable suspicion the officer must be able to articulate specific observations that led him to reasonably conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa. Super. 2006).

The Superior Court has found reasonable suspicion in cases where the officer’s second interaction with the defendant was an investigative detention. In Kemp, an officer pulled over a vehicle for improperly tinted windows. Commonwealth v. Kemp, 961 A.2d 1247, 1250 (Pa. Super. 2008). When the driver rolled down the window the officer smelled a strong odor of masking agents (i.e. air fresheners and dryer sheets) and the passengers acted in an evasive manner. In addition, the officer could detect the faint odor of marijuana emanating from the vehicle and determined that the driver was not licensed to drive. The officer gave the driver a warning and told her “to have a nice day.” After the driver started to walk away the officer requested to ask additional questions. The officer once again told the driver she could leave, however, began to question the passenger in the vehicle. The passenger agreed to a search of the vehicle, which resulted in contraband being found.

The Superior Court found that the interaction with police was an investigative detention and not a mere encounter. The Superior Court, however, found that the officer had reasonable suspicion. “[The officer] had sufficient facts at his disposal to support a reasonable suspicion that appellant was in possession of narcotics, and the investigatory detention occurring after the conclusion of the traffic stop was constitutional.” Id. at 1260.

Similarly, in Caban, an officer pulled over a vehicle for speeding. The officer asked the driver where they were going and the passenger interjected that they were going to a birthday party. Commonwealth v. Caban, 60 A.3d 120 (Pa. Super. 2012). In addition, the officer observed several air fresheners, perfume, and a bottle of Febreze in the back of the vehicle. The officer ordered the driver out of the vehicle, gave her back her licenses, and told her she was free to leave. As the driver returned to the vehicle the officer asked if she would answer a few more questions. Eventually the driver said she was ready to go and proceeded back to her car. The officer told her to hold on and began to question the passenger. The Superior Court found that the driver and passenger were subject to an investigatory detention and that the officer did possess reasonable suspicion. Id. at 128. The Superior Court noted that the vehicle was owned by a third party, the driver acted nervously, the driver and passenger answered questions inconsistently, and there was a presence of various masking agents in the vehicle. Id. at 129.

Here, the Commonwealth argues that information known by police rose to the level of reasonable suspicion since they suspected that the defendant had driven with a suspended license, she acted nervous, and when asked whether she did drugs she responded “not anymore.” Although the behavior described by the police could be characterized as “suspicious,” it does not appear to collectively point to the commission of any crime other than driving on a suspended license.

Drollinger did not testify what about his observations lead him to believe there was reasonable suspicion that criminal activity was occurring. The court fails to see how the defendant stating that she used to use drugs has formed the basis for reasonable suspicion that she currently possesses narcotics or has committed any crime. Further, the officer did not explain why the defendant acting nervously after being forced to the ground by gunpoint was abnormal. The defendant may have merely been confused or concerned when she was told to leave but the officers still remained in the house and continued to question her seemingly without probable cause or exigent circumstances.

Finally, reasonable suspicion must exist prior to an investigatory detention. The officers cannot justify reasonable suspicion based on neutral comments such as those the defendant may have made during the detention, such as she had ‘used to take drugs’ or that the vehicle outside was hers. Similarly, just the defendant’s nervous behavior during the detention cannot be used to support reasonable suspicion. The Commonwealth stated during argument following the hearing that they had a witness to the defendant driving the vehicle. At the suppression hearing, however, there was no testimony about this witness or when the officers may have been given this information from the witness. The only testimony presented was that Drollinger knew the defendant had a suspended license based on an identification check. With only the assurance that the officers knew prior to the investigatory detention that the defendant acted nervous while being told she was free to leave and that she had a suspended license, this court is unable to find sufficient facts to establish that the officer possessed reasonable suspicion to believe a crime had occurred.

ORDER

And now, this 30th day of October, 2013, based upon the foregoing opinion, the defendant’s motion to suppress is hereby granted, che court finds that Montgomery Police Department’s interaction with the defendant was an investigatory detention without reasonable suspicion. Accordingly, it is ordered and directed that any evidence seized as a result of questioning during the custodial detention of the defendant, including the controlled substance Suboxone and any incriminating statements, is hereby suppressed.

      .35P.S. §780-113(a)(16).

      . Typically a warrant is required for police to enter an individual’s house. Exigent circumstances are an exception to this rule. This exception, however, does not give the police unlimited access to a house once the exigent circumstances subside.