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Troopers Violate Constitution by Detaining Alleged Underage Drinker on Nothing More Than Her Youthful Appearance

Commonwealth v. Wood

Well reasoned Pa Superior Court decision holding that troopers lack reasonable suspicion to detain alleged underage drinker for investigation when they proceeded on nothing more than her appearance as appearing to be under twenty-one years of age.

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2003 PA Super 358

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

Appellee    :  PENNSYLVANIA

:

v.    :

:

COLLEEN WOOD,     : No. 2216 EDA  2001

Appellant    :

Appeal from the Judgment of Sentence June 20, 2001,

Court of Common Pleas of Philadelphia County,

Criminal Division at No.  MR 01-005036, SU 01-03-007738-01.

BEFORE:  JOHNSON, FORD ELLIOTT, JOYCE, STEVENS, ORIE MELVIN,

LALLY-GREEN, BENDER, BOWES, and GRACI, JJ.

OPINION BY JOHNSON, J.:   Filed:  September 23, 2003

¶ 1 Colleen Wood appeals the judgment of sentence imposed following her

conviction of underage drinking.  Ms. Wood contends that police stopped her

illegally, without reasonable suspicion that she was engaged in criminal

activity.  The District Attorney for Philadelphia County asks this Court to

conclude that it was reasonable for a Pennsylvania State Trooper, assigned

as a liquor enforcement officer, to suspect that a seventeen-year old sitting

in a bar was engaged in criminal activity where the only observation put

forth by the Commonwealth to support such suspicion was that, from the

arresting officer’s experience, the minor “looked to be under the age of 21.”

For an investigative detention to comport with constitutional minimums, the

law requires that the suspected criminal activity must be linked with the

officer’s observation of suspicious or irregular behavior of the particular

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individual involved.  Here, the enforcement officers possessed absolutely no

evidence, nor had they observed any culpable conduct involving Colleen

Wood, prior to her alleged inculpatory declaration overheard by one of the

officers.  We believe that the detention of Ms. Wood was not justified by

reasonable suspicion and that, accordingly, her alleged confession of

underage drinking is not admissible at trial.  Accordingly, we vacate the

judgment of sentence, reverse the conviction and remand.

¶ 2 Ms. Wood presents this matter framing the statement of the question

as follows:

Where it is not a crime for minors to be present in a bar and

where no law requires persons inside a bar to have or show

identification, do the federal and state constitutions require that

the police have probable cause to believe that a person has

committed a crime before arresting her for underage drinking, or

can they conduct mass arrests first and then release those who

can prove they are not violating the law?

Brief for Appellant at 2.  While the statement as phrased might reasonably

be seen by some as hyperbolic, it captures the issue this Court must resolve

on this appeal: when viewing all of the surrounding circumstances, did the

liquor enforcement officers have reasonable suspicion that Ms. Wood was

engaged in criminal activity prior to subjecting her to the investigative

detention that gave rise to her confession?  We conclude that the officers did

not possess reasonable suspicion that criminal activity by Ms. Wood was

afoot.

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¶ 3 Our Supreme Court has recently re-stated the standard by which we

review a trial court order denying a motion to suppress:

Our standard of review in addressing a challenge to a trial

court’s denial of a suppression motion is limited to determining

whether the factual findings are supported by the record and

whether the legal conclusions drawn from those facts are

correct.  Since the prosecution prevailed in the suppression

court, we may consider only the evidence of the prosecution and

so much of the evidence for the defense as remains un-

contradicted when read in the context of the record as a whole.

Where the record supports the factual findings of the trial court,

we are bound by those facts and may reverse only if the legal

conclusions drawn therefrom are in error.

Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003) (citations

omitted).  “When ruling on suppression motions, the suppression court is

required to make findings of fact and conclusions of law as to whether

evidence was obtained in violation of the defendant’s constitutional rights.”

Commonwealth v. Haynes, 577 A.2d 564, 570 (Pa. Super. 1990); see

Pa.R.Crim.P. 581(I).  Here, the suppression court did not make findings of

fact on the record at the time of the hearing, although it did discuss the

suppression issue in its opinion filed 11/5/01 pursuant to Pa.R.A.P. 1925(b).

Because the only witness at the suppression hearing was Liquor Enforcement

Officer Cynthia A. Taylor, we will consult the record directly to ascertain the

facts surrounding Ms. Wood’s detention and subsequent arrest.  See

Haynes, 577 A.2d at 570.

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¶ 4 The Suppression Hearing Transcript (S.H.T.), 6/20/01, establishes the

following facts.  Pennsylvania State Trooper Taylor was assigned as a liquor

enforcement officer and had been in that assignment for approximately a

year and a half at the time of the incident here under review.  S.H.T. at 4-5,

R.R. 7a-8a.  She had been with the Philadelphia enforcement unit for six

months.  Id. at 5, R.R. 8a.  On February 27, 2001, Trooper Taylor, along

with other officers, was working an assigned detail for the Mardi Gras

celebration on South Street in Philadelphia.  Id. at 6, R.R. 9a.  The officers

were on South Street as a result of their sergeant having received reports

from the Philadelphia Police Department Vice Unit that “there was a good

chance [the officers] would be finding a lot of underage drinking because it’s

a well-known party on South Street during Mardi Gras.”  Id.

¶ 5 At the suppression hearing, when the assistant district attorney

questioned Trooper Taylor as to what the officers would look for while on

patrol, the transcript includes this exchange:

Q. [ADA Joseph Doyle]:  And tell us what you looked for?

A. [Trooper Taylor]: Usually [,] what we do is just go in in

undercover status in street clothes, walk around and we’re

assigned to go into bars, take a look around, see if we see

anyone youthful appearing drinking beer or alcoholic beverages.

If we do, then we radio to the entire detail to come down and do

a routine inspection of the premises.

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Q.  What happens if you think you go into a bar and you see

someone youthful in appearance, do you mean under the age of

21?

A.  Yes.

Q.  And why is that?

A.  Because it is illegal in the city of Pennsylvania [sic] to be

drinking alcoholic beverages under the age of 21.

S.H.T., 6/20/01, at 6-7, R.R. 9a-10a (emphasis added).

¶ 6 Along with several other officers from the State Liquor Control

Department, Trooper Taylor entered the “Name That Bar” on South Street.

Id. at 8, R.R. 11a.  Trooper Taylor testified that, from the officers’

“experience,” and based solely on whether a bar patron “looked to be under

the age of 21,” the officers would ask the bar patron for identification, a

process known as carding.  Id. at 9, R.R. 12a.  When the officers have found

“four, five, six” underage patrons, they separate all the patrons under 21 in

a separate area of the bar.  Id. at 10, R.R. 13a.  Any patron over the age of

21 is ordered to leave the bar.  Trooper Taylor acknowledged that, on this

occasion, patrons over 21 were “free to leave” the bar.  Id.  The conclusion

is inescapable that persons in the bar who were carded and could not prove

they were over 21 were not “free to leave.”  As to the sequence by which

the officers proceeded with their investigation, Trooper Taylor testified that

first, the officers would determine age, and then, and only then, were the

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officers “going to determine whether or not they had been drinking alcohol.”

Id.

¶ 7 On cross-examination, Trooper Taylor again confirmed that it was only

after the “over 21’s” had been separated from the “under 21’s” that the

officers proceeded to determine whether or not the “under 21’s” had been

drinking.  Id. at 15, R.R. 18a.  During the raid, either state or city police

officers blocked the doorway and all exits until identification could be

established.  Id. at 13-14, R.R. 16a-17a.  The identity of the officers

blocking egress was clear to all in the bar.  Id. at 14, R.R. 17a.  Taylor

testified that any patron “youthful in appearance” would have been

prevented from leaving, even if the patron expressed a desire to leave the

bar.  Id.

¶ 8 After the officers identified Ms. Wood as being seventeen years of age,

and only after she was segregated along with the other patrons who were

“youthful in appearance,” Trooper Taylor overheard Ms. Wood declare that

“she was drinking not in that bar but .  .  . she had been drinking that

evening.”  Id. at 11, R.R. 14a.  It was based upon this declaration alone that

Ms. Wood was “set aside” to “get in line and be cited for [18 Pa.C.S. §] 6308

[underage drinking].”  Id. at 12, R.R. 15a.  Officer Manning, a Philadelphia

police officer who did not testify at the suppression hearing, wrote the

Section 6308 citation underlying Ms. Wood’s prosecution and conviction.  Id.

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¶ 9 Trooper Taylor, the only Commonwealth witness, offered no testimony

that she or anybody else observed Ms. Wood purchasing, attempting to

purchase, consuming or possessing any alcoholic beverages in the “Name

That Bar” or anywhere else in Philadelphia.  In fact, the suppression hearing

transcript is devoid of any testimony that any officer had observed anybody

who may have “looked to be under the age of 21” purchasing, consuming or

possessing any alcoholic beverages prior to the segregation of those patrons

thought to be minors.  The officers segregated Ms. Wood and others such

that she reasonably could understand she was not free to leave.  Ms. Wood’s

confession of prior consumption of alcohol arose only after she had been

detained for investigation, without any observed suspicious or criminal

conduct on her part.  Ms. Wood’s detention was based solely on her

appearance.  The summary citation issued to Ms. Wood was based solely on

Ms. Wood’s admission, after being detained, that she had consumed alcohol

earlier in the evening at a location away from “Name That Bar.”  We

conclude that Ms. Wood’s statement was acquired while she was unlawfully

detained.  Her admission, therefore, is inadmissible.

¶ 10 On this appeal, this Court need not decide whether the police practice

of detaining en masse all those in a bar who “appear to be under twenty-one

years of age” regardless of their individualized conduct, comports with the

Fourth Amendment or Article I, Section 8 of the Pennsylvania Constitution.

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We need here consider only whether the attachment, arrest and conviction

of Ms. Wood meets constitutional requirements.  We believe that the

troopers’ lack of reasonable suspicion is sufficient to mandate reversal of this

conviction.

¶ 11 The Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers

and possessions from unreasonable searches and seizures, and

no warrant to search any place or to seize any person or things

shall issue without describing them as nearly as may be, nor

without probable cause, supported by oath or affirmation

subscribed to by the affiant.

Pa. Const. art. I, § 8.  Similarly, the Fourth Amendment to the Constitution

of the United States provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons

or things to be seized.

U.S. Const. amend. IV.  Thus, under both federal and state provisions,

people are to be secure in their persons against unreasonable searches and

seizures.  We now examine whether Ms. Wood was detained unreasonably,

thereby tainting any evidence seized as a result of that detention, including

Ms. Wood’s admission that she previously had consumed alcohol at a

different location that evening.

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¶ 12 It is well established that contacts between the police and the citizenry

fall within three general categories: mere encounter, investigative detention

and custodial detention or arrest.  See Commonwealth v. Strickler, 757

A.2d 884, 889 (Pa. 2000).  Our Supreme Court has defined these

interactions as follows:

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.  The second, an “investigative detention” must be

supported by 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. McClease, 750 A.2d 320, 324 (Pa. Super. 2000)

(citations omitted) (quoting Commonwealth v. Ellis, 662 A.2d 1043, 1047-

48 (Pa. 1995)).

¶ 13 Pennsylvania courts recognize that under limited circumstances police

are justified in investigating a situation, so long as the police officers

reasonably believe that criminal activity is afoot.  See Commonwealth v.

Rodriguez, 614 A.2d 1378, 1383 (Pa. 1992).  In order to demonstrate a

reasonable suspicion, the police officer must be able to point to “specific,

articulable facts and reasonable inferences drawn from those facts in the

light of the officer’s experience.”  Commonwealth v. Jackson, 698 A.2d

571, 573 (Pa. 1997).

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¶ 14 In determining whether a mere encounter has risen to the level of an

investigative detention, the primary inquiry must be whether a seizure of the

person has occurred.  See Commonwealth v. Mendenhall, 715 A.2d

1117, 1120 (Pa. 1998). Our Supreme Court has held that “[t]o maintain

constitutional validity, an investigative detention must be supported by a

reasonable and articulable suspicion that the person seized is engaged in

criminal activity and may continue only so long as is necessary to confirm or

dispel such suspicion. . . .”  Strickler, 757 A.2d at 889.  Within this context,

it is axiomatic that our courts discern whether a person has been seized by

determining “whether, under all the circumstances surrounding the incident

at issue, a reasonable person would believe he was free to leave.”

Commonwealth v. Smith, 732 A.2d 1226, 1232 (Pa. Super. 1999).

¶ 15 In the case before us, Trooper Taylor admitted that police conducted

the bar raid first by carding those who appeared to be younger than 21

years of age, and then detained those who in fact were younger than 21 in a

designated section of the bar, regardless of whether they had been observed

consuming alcohol.   Although the initial action taken by police in carding Ms.

Wood among other youthful patrons arguably could have been characterized

as a “mere encounter,” there is no question that after Ms. Wood was carded,

the mere encounter rose to the level of an investigative detention, for by

Trooper Taylor’s own admission, all persons in the bar determined by police

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to be under 21 years of age, whether consuming alcohol or not, were

detained in a designated section of the bar while those who were at least 21

years old were free to leave.

¶ 16 It was then that in order to continue to detain Ms. Wood, police

needed to have formed a reasonable, articulable suspicion that she was

engaged in, or was about to engage in, criminal activity.  Though it is

against the laws of this Commonwealth to consume alcohol while under the

age of 21, there is no statute making it a crime for persons under 21 simply

to be present in a bar on one isolated occasion.  It is undisputed that Ms.

Wood was not observed to be consuming alcohol prior to being carded and

then detained by police.  The only “evidence” that the officers possessed

that could have supported a reasonable suspicion of criminal activity was the

second-hand report from the Philadelphia Police Department Vice Unit that

there was a “good chance” that the officers would be finding “a lot of

underage drinking” because of a “well-known party on South Street during

Mardi Gras.”  S.H.T., 6/20/01, at 6, R.R. 9a.  There is absolutely no evidence

on the record that any underage patron was observed drinking or purchasing

alcohol at any time prior to the segregation of the patrons.  Only after the

officers had detained Ms. Wood, and at a point where she clearly was not

free to leave, did Ms. Wood admit to having consumed alcohol earlier in the

evening before entering “Name That Bar.”  Thus, her incriminating

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statement was obtained illegally.  See Commonwealth v. Gibson, 638

A.2d 203, 207 (Pa. 1994) (holding convictions for summary offense of

underage drinking reversed where police lacked probable cause to enter

apartment for search that yielded evidence of minors consuming alcohol).

¶ 17  The Commonwealth relies on our decision in Commonwealth v.

Elliott, 546 A.2d 654 (Pa. Super. 1988) to support its contention that the

officers’ suspicion that criminal activity was afoot was reasonable, in spite of

the fact that police did not see Ms. Wood or anyone else consuming alcohol

and in spite of the additional fact that presence within a bar of persons

under age 21 is not illegal.  Brief for Appellant at 9.  In Elliott, this Court

considered whether a police officer who has lawfully stopped a vehicle for a

suspected Motor Vehicle Code violation may, consistent with the Fourth

Amendment, order a passenger to exit the vehicle when the passenger is

suspected of committing a crime.  See id., 546 A.2d at 657.  This Court

concluded that the arresting trooper had reasonable suspicion that criminal

activity was afoot, and that the trooper could reasonably conclude that the

passenger was engaging in underage drinking.  See id. at 660.  In so

concluding, this Court examined a fact situation where the investigating

trooper observed a bag of ice with beer in it located behind the passenger’s

seat, as well as a strong odor of alcohol emanating from the vehicle and

several empty beer bottles strewn throughout the interior of the vehicle.

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See id. at 656, 660.  When the underage passenger opened the car door

and exited the vehicle, “an open bottle of beer, which was apparently

wedged between the door and [the passenger’s] leg, spilled out onto the

road.”  Id. at 656.

¶ 18 The trooper’s observation of the bag of ice with beer in it located

behind the passenger’s seat, and the strong odor of alcohol coming from the

vehicle, coupled with the trooper’s suspicion that the passenger was under

the legal age for consuming alcoholic beverages, supported a reasonable

suspicion that criminal activity was afoot and that the passenger was

violating the law by engaging in underage drinking.  However, that is not the

case here, where the only evidence to support a reasonable suspicion that

Ms. Wood was engaging in criminal activity was the fact that she may have

appeared to be under the age of 21, she was sitting in a bar, and the

Philadelphia police had told the troopers’ supervisor that there was a “good

chance” that the troopers would find “a lot of underage drinking” on South

Street during Mardi Gras.

¶ 19 In this case, the officers did not find any underage drinking in the

“Name That Bar” or, if they did, the Commonwealth did not elect to present

such evidence at the suppression hearing.  Trooper Taylor testified that the

troopers’ standard procedure is to “go into bars, take a look around, [and]

see if we see anyone youthful appearing drinking beer or alcoholic

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beverages.”  S.H.T., 6/20/01, at 7, R.R. 10a.  It is only after the troopers

observe a youthful-appearing patron drinking alcoholic beverages that they

then “radio to the entire detail to come down and do a routine inspection of

the premises.”  Id.  That policy was not followed here.  Trooper Taylor

testified that “initially what we wanted to do is determine age.  And then we

were going to determine whether or not they had been drinking alcohol.”

Id. at 19, R.R. 13a.

¶ 20 Ms. Wood poses the question as whether the police can “conduct mass

arrests first and then release those who can prove they are not violating the

law?”  Brief for Appellant at 2.  We agree with the Commonwealth that we

are not here reviewing the circumstances of Ms. Wood’s arrest.  The

Commonwealth concedes that the police subjected Ms. Wood to an

investigatory detention when they separated her from other bar patrons.

Substituted Brief for Petitioner/Appellee at 5-6.  The Commonwealth

contends, and we agree, that the only issue is whether the police had

reasonable suspicion to justify that investigatory detention.

¶ 21 The courts of this Commonwealth have never determined that the

conduct of a group will support a finding of reasonable suspicion of an

individual, barring some particularized conduct by that individual.  The

surrounding circumstances in Elliott, with beer in the seat behind the

passenger and empty beer bottles strewn throughout the vehicle, coupled

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with a strong odor of alcohol throughout the car in which only two people

were present, supported the officer’s suspicion that the passenger had

indeed engaged in underage drinking.  This Court has most recently again

declared that:

To establish grounds for “reasonable suspicion” sufficient to

justify an investigative detention, the officer must articulate

specific observations which, in conjunction with reasonable

inference derived from these observations, led him reasonably to

conclude, in light of his experience, that criminal activity was

afoot and that the person he stopped was involved in that

activity.  Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673,

676 (1999).  Mere hunches on the part of the officer are

insufficient to meet this burden; however, “…a combination of

innocent facts, when taken together, may warrant further

investigation by the police officer.”  Id.

Commonwealth v. Bennett, 827 A.2d 469, 477 (Pa. Super. 2003)

(emphasis added).  “Our courts have mandated that law enforcement

officers, prior to subjecting a citizen to investigatory detention, must harbor

at least a reasonable suspicion that the person seized is then engaged in

unlawful activity.”  Commonwealth v. Beasley, 761 A.2d 621, 625 (Pa.

Super. 2000).  “[E]ven where the circumstances surrounding an individual’s

conduct suggest ongoing illegality, the individual may not be detained unless

his or her personal conduct substantiates involvement in that activity.”  Id.

at 626.  Our Supreme Court has rejected an attempt by the Commonwealth

to justify the detention and subsequent arrest of three women sitting on the

stoop in front of a multi-family apartment building where a drug raid was in

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progress, finding a complete absence of a link between the women and the

apartment where drugs were allegedly being distributed.  See

Commonwealth v. Rodriquez, 614 A.2d 1378 (Pa. 1992).

¶ 22 Case law requires a particularized connection between the alleged

criminal activity and the conduct of the person sought to be detained.  See

Bennett, Beasley, and Rodriquez.  Here, the alleged criminal activity is

underage drinking.  Ms. Wood’s conduct, from the record, was nothing more

than being present in the “Name That Bar” at a time when the officers

determined to “take a look around” to see if they could observe “anyone

youthful appearing drinking beer or alcoholic beverages.”  They did not

observe Ms. Wood drinking alcoholic beverages.  Nor did they observe her

possessing, purchasing, or attempting to purchase alcoholic beverages.  The

individualized observation of suspicious conduct of the particular person

detained, in this case, Ms. Wood, is totally lacking.  The suspicion is,

therefore, unreasonable and the detention resulting therefrom was unlawful.

Accordingly, the evidence taken during that illegal detention must be

suppressed.  See Beasley, 761 A.2d at 626-28; see also Rodriquez, 614

A.2d  at 1381-84.

¶ 23 Even if it were determined that the troopers possessed reasonable

suspicion that Ms. Wood was, herself, engaged in criminal activity, we would

remain convinced that this conviction cannot stand.  The troopers detained

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her without any evidence linking her to underage drinking.  It was only Ms.

Wood’s admission, made while detained, that supports her conviction.  The

trial court, sitting non-jury, declared: “After hearing the evidence presented

to me[,] the court finds you guilty of underage drinking.”  S.H.T., 6/20/01,

at 21, R.R. 24a.  A careful examination of the record establishes that the

only evidence presented to the court concerning Ms. Wood’s conduct was her

admission, made while under detention, that she had been drinking earlier

that evening someplace away from “Name That Bar.”

¶ 24 In order to preserve an issue for review, a litigant must make timely

and specific objection during trial and raise the issue in post-trial motions.

See Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1124 (Pa. 2000).

Issues not preserved for appellate review should not be considered by an

appellate court even though the error involves a basic or fundamental error.

See Reilly v. Southeastern Pennsylvania Transp. Auth., 489 A.2d 1291,

1296 (Pa. 1985); see also Trach v. Fellin, 817 A.2d 1102, 1107-08, 1119

(Pa. Super. 2003) (en banc) (recognizing that Superior Court, as error-

correcting court, may not purport to reverse an order where only basis for

finding error is claim responsible party never gave trial court opportunity to

consider).

¶ 25 Nevertheless, we feel compelled to observe that, in any criminal case,

a conviction may not be based upon the extra-judicial confession of the

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accused unless it is corroborated by independent evidence establishing the

corpus delicti.  See Commonwealth v. Ahlborn, 657 A.2d 518, 520-21

(Pa. Super. 1995) (citing Commonwealth v. Ware, 329 A.2d 258, 274 (Pa.

1974)).  The law of Pennsylvania requires that the Commonwealth prove the

existence of the corpus delicti beyond a reasonable doubt, that is, prove that

Ms. Wood was, in fact, drinking, before the fact-finder may consider the

defendant’s confession.  See Commonwealth v. Tallon, 387 A.2d 77, 81

(Pa. 1978); see also Ahlborn, 657 A.2d at 521.  Without the confession,

there is nothing on this record to permit the fact-finder to conclude that a

crime had been committed.  It appears undisputed that no corroboration by

independent evidence exists to establish the alleged criminal conduct of

underage drinking.  If this issue were properly before us, the judgment of

sentence would require reversal on this ground alone.

¶ 26 We conclude that the troopers lacked reasonable suspicion to detain

Ms. Wood for investigation when they proceeded on nothing more than her

appearance as appearing to be under twenty-one years of age.  Without the

requisite reasonable suspicion, the admission is rendered inadmissible at any

trial.  Moreover, were the issue before us, we would find that the use of her

admission offends the corpus delicti rule.  Accordingly, we conclude that the

judgment of sentence cannot stand.

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¶ 27 Judgment of sentence VACATED.  Conviction REVERSED.  Case

REMANDED for further proceedings not inconsistent with this Opinion.

¶ 28 Judges Ford Elliott, Joyce, Lally-Green, Bender and Bowes, joined the

Opinion by Johnson, J.

¶ 29 Stevens, J. files a Dissenting Opinion in which Judges Orie Melvin and

Graci, join.

J-E01004-03

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

:  PENNSYLVANIA

Appellee  :

v.    :

:

COLLEEN WOOD,     :

:

Appellant  :       No. 2216 EDA 2001

Appeal from the Judgment of Sentence June 20, 2001

In the Court of Common Pleas of Philadelphia County

Criminal at No.:  MR 01-005036 SU 01-03-007738-01

BEFORE:  JOHNSON, FORD ELLIOTT, JOYCE, STEVENS, ORIE MELVIN,

LALLY-GREEN, BENDER, BOWES and GRACI, JJ.

DISSENTING OPINION BY STEVENS, J.:

¶ 1 I conclude that the Commonwealth proved that the officers in question

had the necessary reasonable suspicion to conduct an investigatory

detention of Appellant, and, therefore, I would affirm the judgment of

sentence.  As such, I respectfully dissent.

¶ 2 My review of the record reveals that on February 27, 2001, Mardi Gras

festivities were taking place on South Street in Philadelphia, Pennsylvania.

Reports from the Philadelphia Police Department suggested that significant

underage drinking was likely to occur in that area during these festivities.

Accordingly, several Pennsylvania liquor control officers were assigned to a

detail to identify patrons in South Street bars who appeared to be under the

age of twenty-one and who were drinking alcoholic beverages.

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¶ 3 The Pennsylvania liquor control officers specifically targeted a bar

called “Name That Bar” on South Street, and officers wearing street clothes

went thereto.  Upon entering the bar, the officers approached patrons who

looked under twenty-one years old and asked them to produce identification.

Those patrons identified as being under the age of twenty-one were

separated from the other patrons.  Appellant, who was in the bar at the

time, revealed that she was seventeen years old, and she was detained

along with the other patrons.  While standing near Appellant, Pennsylvania

Liquor Control Officer Cynthia Taylor saw that Appellant was upset and

Appellant indicated that she had not been drinking alcohol while in “Name

That Bar,” although she had been drinking alcohol earlier in the evening.

Based upon Appellant’s admission, she was charged with underage drinking,

18 Pa.C.S.A. § 6308, and she subsequently filed a motion to suppress.

¶ 4 I conclude that the lower court properly denied Appellant’s motion to

suppress.  Following the dictates of the United States Supreme Court in

Terry v. Ohio, 392 U.S. 1 (1968), Pennsylvania Courts have recognized

that under limited circumstances, police officers are justified in investigating

a situation and may conduct brief, investigatory detentions of individuals, so

long as the police officers reasonably believe that criminal activity may be

afoot. Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673 (1999); In re

C.C.J., 799 A.2d 116 (Pa.Super. 2002).  In determining whether a

reasonable suspicion exists, we must look to the totality of the

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circumstances. Commonwealth v. Riley, 715 A.2d 1131, 1135 (Pa.Super.

1998).  A police officer must demonstrate reasonable suspicion by pointing

to articulable facts and reasonable inferences drawn from those facts in light

of the officer’s experience. Commonwealth v. Jackson, 548 Pa. 484, 698

A.2d 571 (1996).  A law enforcement officer who “lacks the precise level of

information necessary for probable cause to arrest” but possesses

reasonable suspicion of criminal activity, is not required “to simply shrug his

shoulders and allow…a criminal to escape.” Commonwealth v. Lagamba,

613 A.2d 1, 5 (Pa.Super. 1992).  “Merely because a suspect’s activity may

be consistent with innocent behavior does not alone make detention and

limited investigation illegal.” In re C.C.J., 799 A.2d 116, 121 (Pa.Super.

2002).

¶ 5 Under the totality of the circumstances in this case, I conclude that the

officers had a reasonable, articulable suspicion to believe that Appellant was

engaged in criminal activity when she was briefly stopped at “Name That

Bar.”  Here, the police observed Appellant, who appeared to be under the

legal drinking age, in an establishment whose primary purpose is to sell

alcohol, during a time when, based on the officers’ experience, a substantial

amount of underage drinking occurred.  I conclude that the circumstances

justifying the investigative detention in this case are stronger than those in

other cases in which this Court has found sufficient reasonable suspicion to

necessitate an investigative detention.  For example, in In re C.C.J., 799

J-E01004-03

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A.2d 116 (Pa.Super. 2002), a panel of this Court concluded that officers had

a reasonable suspicion to justify a stop when they observed a juvenile, who

appeared to be of a school age youth, on the public street during a time

when school was in session.  We specifically concluded that the apparent age

of the appellant, together with the time of day, was sufficient for the police

to suspect that the appellant was a truant.  While it was not illegal for the

appellant to be present on a public street, in light of other circumstances,

such as the time of day and fact the appellant was a minor, the police were

justified in investigating the matter further.

¶ 6 As in In re C.C.J., the apparent age of Appellant, along with the place,

time, and circumstances surrounding her presence in “Name That Bar” were

sufficient for experienced officers to briefly detain Appellant for investigative

purposes.  In fact, I conclude that it would have been a dereliction of their

duty for Pennsylvania liquor control officers not to further investigate for

underage drinking in circumstances such as those presented here.

¶ 7 Finally, I find the Majority’s comments regarding the corpus delicti rule

unnecessary and inconsistent with this Court’s scope of review.  The Majority

includes comments on an issue which was not properly preserved in the

court below.  My review of the record reveals that Appellant failed to object

under the corpus delicti rule, and, therefore, any challenge thereto has not

been preserved. Pa.R.A.P. 302.

J-E01004-03

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¶ 8 Judges Orie Melvin and Graci joined the Dissenting Opinion by

Stevens, J.