Com. v. Hannon, S. ( 2019 )


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  • J-S59008-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    SEAN HANNON                                :
    :
    Appellant               :   No. 3497 EDA 2018
    Appeal from the Judgment of Sentence Entered October 4, 2018
    In the Court of Common Pleas of Wayne County Criminal Division at
    No(s): CP-64-CR-0000366-2017
    BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
    MEMORANDUM BY LAZARUS, J.:                          FILED DECEMBER 30, 2019
    Sean Hannon appeals from the judgment of sentence, entered in the
    Court of Common Pleas of Wayne County, after being convicted by a jury of
    two counts each of endangering the welfare of children (EWOC),1 driving under
    the influence (DUI),2 and recklessly endangering another person (REAP),3 and
    one count each of the summary offenses of driving while operating privilege
    suspended/revoked4 and permitting unauthorized person to drive.5         After
    careful review, we affirm.
    ____________________________________________
    1   18 Pa.C.S. § 4304(a)(1).
    2 75 Pa.C.S. § 3802(a)(1) (general impairment); 75 Pa.C.S. § 3802(c)
    (highest rate).
    3   18 Pa.C.S. § 2705.
    4   75 Pa.C.S. § 1543(b)(1).
    5   75 Pa.C.S. § 1574(a).
    J-S59008-19
    On November 5, 2017, at approximately 5 p.m., Hannon and his two
    children, an eleven-year-old daughter and eight-year-old son, were traveling
    in his 1999 Dodge Dakota truck.       At some point, Hannon permitted his
    daughter to drive the vehicle.      Ryan Yannone, who was driving behind
    Hannon’s truck, noticed that the vehicle was weaving and traveling very
    slowly. At an intersection, the truck failed to stop at a posted stop sign. At
    another intersection, the truck stopped and sat on the side of the road. Upon
    seeing this, Yannone exited his vehicle and approached Hannon’s truck where
    he observed Hannon’s daughter in the driver’s seat. When Yannone asked
    Hannon why the child had been driving, Hannon yelled at him to “mind [his]
    own f*c*ing business,” and told him that his daughter “was 16 years old.”
    N.T. Jury Trial, 7/9/18, at 53. Yannone testified that Hannon was “[l]oud,
    obnoxious, [and] seemed to [be] under the influence of something.”          
    Id. Yannone offered
    to get help, but the child immediately drove away.
    Yannone continued to follow Hannon’s vehicle as it turned onto Neville
    Road in Wayne County, noting that it was “just all over the road.” 
    Id. at 55.
    Hannon’s truck ultimately “stopped dead in the road . . . turned right . . . and
    ended up under a pine tree . . . totally off the road.”     
    Id. At that
    point,
    Yannone watched Hannon’s two children exit the truck and run up the road.
    
    Id. at 63.
    Yannone approached Hannon’s truck where Hannon had “slid into
    the driver’s seat[,] put [the vehicle] in reverse, and started backing up.” 
    Id. at 56.
      At that point, Yannone “hurried up[, reached through the truck’s
    window,] put [the vehicle] back in park” and removed the keys from the
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    ignition. 
    Id. at 56,
    63. As Yannone called the police to have authorities come
    to the scene, he noticed Hannon exit his truck and slide something under the
    pine tree. Yannone retrieved the object, a bottle of “brandy or whiskey or
    something.” 
    Id. at 56.
    Trooper Jamison Warner arrived on the scene in uniform in his patrol
    car.6 He first spoke with Yannone who told him the above details; Yannone
    surrendered a bottle of Black Velvet whiskey (the item Hannon discarded) and
    Hannon’s keys to the trooper. 
    Id. at 69.
    The trooper obtained information
    that revealed Hannon was driving with a DUI-suspended license. N.T. Motion
    in Limine and Omnibus Hearing, 7/2/18, at 14.          When Trooper Warner
    approached Hannon and spoke with him, Hannon initially denied that his
    daughter had been driving the truck and said that he had been driving. N.T.
    Jury Trial, 7/9/18, at 70. After the trooper told Hannon that he knew Hannon
    had attempted to drive his truck and that Hannon’s license had been
    suspended, Hannon changed his story and said that he never drove the
    vehicle. 
    Id. Trooper Warner’s
    police report from the scene indicated that
    Hannon’s speech was slow and slurred, he had a strong odor of alcohol on his
    breath, had bloodshot eyes, looked disheveled, was uncooperative, and acted
    “slow and sluggish.” 
    Id. at 71.
    The trooper administered several field sobriety
    tests which indicated Hannon was impaired. Trooper Warner testified that in
    his experience as a law enforcement officer, which included more than one
    ____________________________________________
    6 Yannone testified that the Hamlin Fire Department arrived on the scene
    before the police. N.T. Jury Trial, 7/9/18, at 65.
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    hundred prior DUI-related arrests, he believed that Hannon was not capable
    of safe driving. 
    Id. at 72.
    At that point, Trooper Warner arrested Hannon and transported him to
    Wayne Memorial Hospital to have his blood drawn. Blood tests revealed a
    BAC of .228%. Hannon was then taken to PSP Honesdale where he was read
    his Miranda7 warnings before he gave an oral statement to Trooper John
    Decker. N.T. Jury Trial, 7/9/18, at 83. In his statement, Hannon admitted
    that he had been drinking beer since 4 p.m. that day, was drunk, could not
    remember how much alcohol he had consumed, and that he had been driving.
    
    Id. at 86.
        At some point thereafter, Hannon told Trooper Decker that he
    remembered his daughter driving the truck “when some guy came up to the
    truck and yelled at him.” 
    Id. at 87.
    Trooper Decker testified he smelled a
    strong odor of alcohol on Hannon’s breath when he interacted with him at the
    station. 
    Id. Hannon filed
    a pretrial motion in limine to suppress his statements made
    at the accident scene, as well as the statements he made at PSP Honesdale.
    On July 6, 2018, the trial court denied Hannon’s pretrial motion and also
    granted the Commonwealth’s motion in limine to preclude the defense from
    eliciting any evidence regarding Yannone’s 2005 crimen falsi summary
    conviction. After a jury trial held in July 2018, Hannon was found guilty of the
    above-mentioned crimes.          He was sentenced on October 4, 2018, to an
    ____________________________________________
    7   Miranda v. Arizona, 
    384 U.S. 436
    (1966).
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    aggregate term of imprisonment of 84-180 months; the court also imposed
    fines, found him ineligible under the Recidivism Risk Reduction Incentive
    (RRRI) Act, and gave him credit for time served.8 Hannon filed a timely post-
    sentence motion that was denied on October 18, 2018. Counsel filed a notice
    of appeal and motion to withdraw simultaneously on November 15, 2018. The
    trial court stayed the appeal until the status of counsel’s representation was
    clarified.
    On February 7, 2019, this Court entered an order reinstating Hannon’s
    appeal rights and ordered the trial court rule on the motion to withdraw. On
    March 21, 2019, the trial court entered an order granting counsel’s motion to
    withdraw and appointed new appellate counsel. New counsel filed a timely
    Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
    Hannon presents the following issues for our review:
    (1)    Whether the trial court abused its discretion by denying
    [Hannon’s] omnibus pre[]trial motion for suppression of
    [Hannon’s] statements when [Hannon] was not advised of
    his Miranda rights and the questioning officer admitted to
    [Hannon] being questioned in custody.
    (2)    Whether the trial court abused its discretion by granting the
    Commonwealth’s [m]otion in [l]imine and prejudicing
    [Hannon] by not allowing him to discuss the witness[’s]
    prior record at trial.
    Appellant’s Brief, at 5.
    In considering the denial of a suppression motion, the appellate
    standard of review is well-settled. An appellate court must
    determine whether the record supports the suppression court’s
    ____________________________________________
    8The trial court ordered Hannon’s sentence run consecutive to a sentence he
    was currently serving in Lackawanna County.
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    factual findings and the legitimacy of the inferences and legal
    conclusions drawn from these findings. In doing so, the court may
    consider only the prosecution’s evidence and the defendant’s
    evidence to the extent it is not contradictory. If the evidence
    presented at the suppression hearing supports these findings of
    fact, the appellate court may not reverse the [trial] court unless
    its accompanying legal conclusions are in error.
    Commonwealth v. By, 
    812 A.2d 1250
    , 1254 (Pa. Super. 2002).
    Hannon claims that the trial court erred in denying his motion to
    suppress statements9 he made to Trooper Warner at the accident scene where
    he was not first Mirandized. Specifically, Hannon contends that because the
    trooper knew that Hannon’s license had been suspended prior to speaking to
    Hannon and where the trooper testified he would not have let Hannon leave
    the scene, he was effectively in custody.
    In order to determine whether a defendant was subject to a “custodial
    detention,” the United States Supreme Court “had devised an objective test
    entailing a determination of whether, in viewing the totality of the
    circumstances, a reasonable person would have believed he was free to
    leave.” 
    By, 812 A.2d at 1255
    , citing United States v. Mendenhall, 
    446 U.S. 544
    , 554 (1980).         “[T]he test for a custodial interrogation does not
    depend     upon    the   subjective     intent   of   the   law   enforcement   officer
    ____________________________________________
    9  In his suppression motion, Hannon argued that two separate sets of
    statements should not have been admitted at trial. The first set relates to his
    admission to Trooper Warner at the scene that he had been driving the subject
    vehicle at the time of the accident. The second set refers to statements he
    made to Trooper Decker at PSP Honesdale where a “new custodial
    interrogation commenced.” Omnibus Pretrial Motion, 5/15/18, at ¶ 53.
    Hannon has abandoned any argument in his brief with regard to the
    statements made at the police station.
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    interrogator.” Commonwealth v. Williams, 
    650 A.2d 420
    , 427 (Pa. 1994).
    Rather, it focuses on the individual being interrogated and whether he or she
    “reasonably believes [his or her] freedom of action is being restricted.” 
    Id. “[S]tatements of
    an accused arising from a ‘custodial interrogation’ are
    inadmissible unless the prosecution shows that the procedural safeguards
    required by Miranda were afforded the accused.”           Commonwealth v.
    Gonzalez, 
    546 A.2d 26
    , 29 (Pa. 1988). Interrogation occurs when the police
    should know that their words or actions are reasonably likely to elicit an
    incriminating response from the suspect. Commonwealth v. Williams, 
    941 A.2d 14
    , 30 (Pa. Super. 2008) (en banc).           Specifically, “the Miranda
    safeguards come into play whenever a person in custody is subjected to either
    express questioning or its functional equivalent.”    
    Id. However, not
    every
    statement made by an individual during a police encounter amounts to an
    interrogation.   Volunteered or spontaneous utterances are admissible even
    without Miranda warnings. Additionally individuals have a duty under the
    Vehicle Code to stay at the scene of an accident and identify themselves and
    their vehicle, as well as exhibit an operator’s license and proof of insurance;
    these motorist responsibilities do not require Mirandizing.         
    Gonzalez, supra
    .
    In evaluating whether Miranda warnings are necessary, courts must
    consider the totality of the circumstances, which include the basis for the
    detention, the duration of the detention, the location of the detention, whether
    restraints were used, whether law enforcement showed, threatened or used
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    force, and the methods of investigation used to confirm or dispel suspicions.
    
    Williams, 941 A.2d at 31
    . The fact that the defendant was the focus of an
    investigation is relevant in determining whether he or she was in custody, but
    does not per se require Miranda warnings. 
    Id. Here, Trooper
    Warner testified that when he first approached Hannon at
    the accident scene, he asked him what had happened, told him he knew his
    license had been DUI-suspended, informed him that a witness had seen
    Hannon’s daughter driving the vehicle before it ended up under the pine tree,
    and also told him that the witness told the trooper that he had observed
    Hannon try to get into the driver’s seat in an attempt to move the vehicle after
    the accident. N.T. Motion In Limine and Omnibus Hearing, 7/2/18, at 10, 14.
    Trooper Warner testified that Hannon appeared unsteady on his feet during
    their discussion, was sweating a little bit, and had slurred speech and a strong
    odor of alcohol on his breath.    
    Id. at 11.
      Hannon proceeded to fail field
    sobriety tests administered by the trooper and was then taken into custody
    and transported to Wayne Memorial Hospital to have his blood drawn. 
    Id. While Trooper
    Warner’s physical actions were non-confrontational in
    nature (i.e., trooper did not restrict Hannon’s freedom of movement, did not
    use or threaten to use any force, did not remove his weapon from his holster,
    did not place Hannon in handcuffs or otherwise restrain him, and did not block
    Hannon’s path of exit), his verbal communication subjected Hannon to a
    custodial interrogation. Specifically, when Trooper Warner told Hannon that
    the witness informed him that he saw Hannon driving the car and that he
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    knew Hannon had a DUI-suspended license, Hannon was subjected to the
    functional equivalent of a custodial interrogation. Specifically, a reasonable
    person in Hannon’s position would not have believed that he was free to leave
    the scene. See Commonwealth v. Snyder, 
    60 A.3d 165
    (Pa. Super. 2013)
    (where officer’s words and conduct were likely to elicit incriminating response
    after officer explained to defendant warrant for his arrest had been issued and
    that witnesses had made statements against him to police, defendant was
    subjected to interrogation requiring issuance of          Miranda warnings);
    Commonwealth v. DeJesus, 
    787 A.2d 394
    (Pa. 2001)10 (Miranda warnings
    required before detective explained to defendant that he had been implicated
    in shootings and that witnesses had made statements about his involvement
    in shootings; detective should have known that comments and conduct were
    reasonably likely to evoke effort on part of defendant to defend himself and
    give his own version of events).
    Here, Trooper Warner’s statements were more than general comments
    intended to elicit identifying information regarding whether Hannon owned the
    vehicle or had proof of insurance or a license; moreover, they were not an
    inquiry to ascertain whether Hannon was injured or to obtain general
    information about the incident.            Cf. Commonwealth v. Gonzalez, 
    546 A.2d 26
    (Pa. 1988) (where officers ask defendant at accident scene if she was
    hurt and what had happened, defendant not in custody so Miranda warnings
    ____________________________________________
    10This case was abrogated on other grounds.            See Commonwealth v.
    Cousar, 
    928 A.2d 1025
    (Pa. 20017).
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    not required); Commonwealth v. Williams, 
    941 A.2d 14
    (Pa. Super. 2008)
    (where purpose of officer’s questions was to obtain general information and
    where defendant admitted to officer at scene of accident that she was driver
    of vehicle before administered Miranda warning, statement did not need to
    be suppressed). Rather, Trooper Warner’s statements made Hannon aware
    that he was the particular subject of a criminal investigation and that he was
    not free to leave the accident scene because law enforcement knew he had a
    suspended license.
    Under such circumstances, where his statements were likely to elicit an
    incriminating response, Trooper Warner was required to administer Hannon
    his Miranda rights. 
    Williams, supra
    . Accordingly, the prosecution was not
    permitted   to   use   any   statements     stemming      from   Trooper    Warner’s
    interrogation of Hannon where he was not first Mirandized.                 
    Gonzalez, supra
    . However, we conclude that the admission of Hannon’s initial non-
    Mirandized statement was harmless error where Hannon voluntarily
    admitted he had been driving his car when Trooper Warner first came upon
    the accident scene and where witness Yannone testified that he saw both
    Hannon’s minor daughter and Hannon in actual physical control of the vehicle
    during the incident. See Commonwealth v. Fay, 
    344 A.2d 473
    (Pa. 1975)
    (failure to suppress statements not reversible error where Commonwealth can
    establish   beyond     reasonable   doubt   error   was    harmless);      see   also
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    Commonwealth v. Henry, 
    599 A.2d 1321
    (Pa. Super. 1991) (erroneous
    admission of confession can be constitutionally harmless).11
    In his next issue, Hannon contends that the trial court improperly
    granted the Commonwealth’s motion to preclude admission of witness
    Yannone’s 2005 summary conviction for violating 34 Pa.C.S. § 906, making a
    false or fraudulent statement on a report or application to a gaming
    commission representative. Hannon claims that the exclusion of this evidence
    was in error where “Mr. Yannone is the only witness to the alleged crimes”
    and where the probative value of admitting the evidence (as it relates to
    Yannone’s credibility) outweighs its prejudicial effect. Appellant’s Brief, at 14.
    An appellate court’s standard of review is well settled:
    [T]he admissibility of evidence is within the sound discretion of
    the trial court and we will not reverse absent an abuse of
    discretion. . . . An abuse of discretion may not be found merely
    because an appellate court might have reached a different
    conclusion, but requires a result of manifest unreasonableness, or
    partiality, prejudice, bias, or ill-will, or such lack of support so as
    to be clearly erroneous.
    Commonwealth v. Leap, 
    2019 Pa. Super. 323
    , *7 (Pa. Super. filed October
    25, 2019) (citations omitted).
    Pennsylvania Rule of Evidence 609 states, in pertinent part:
    ____________________________________________
    11 We also note that Trooper Warner’s failure to issue Miranda warnings at
    the scene did not invalidate the incriminating oral statements Hannon made
    to Trooper Decker at PSP Honesdale after his subsequent receipt of Miranda
    warnings. See Commonwealth v Charleston, 
    16 A.3d 505
    (Pa. Super.
    2011).
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    Rule 609.       Impeachment             by   Evidence   of   a   Criminal
    Conviction
    (a) In General. For the purpose of attacking the credibility
    of any witness, evidence that the witness has been
    convicted of a crime, whether by verdict or by plea of guilty or
    nolo contendere, must be admitted if it involved dishonesty
    or false statement.
    (b) Limit Evidence on Using the Evidence After 10 Years. This
    subdivision (b) applies if more than 10 years have passed
    since the witness’s conviction or release from confinement for
    it, whichever is later. Evidence of the conviction is admissible
    only if:
    (1) its probative value substantially outweighs its
    prejudicial effect; and
    (2) the proponent gives an adverse party reasonable
    written notice of the intent to use it so that the party has a
    fair opportunity to contest its use.
    Pa.R.E. 609(a), (b) (emphasis added). Here, Yannone’s conviction involved
    giving a false statement to gaming authorities, which is clearly a crime falling
    within the ambit of Rule 609. The conviction, however, was handed down
    more than 10 prior to Hannon’s trial. Thus, pursuant to Rule 609(b), evidence
    of Yannone’s conviction is admissible only if “its probative value substantially
    outweighs its prejudicial effect[.]” Pa.R.A.P. 609(b)(1).12
    Instantly, the trial court found the evidence inadmissible where “there
    was no probative value to outweigh the prejudicial effect [it] would have
    caused[, t]he conviction [wa]s 14 years old[,] and a violation of the Game
    ____________________________________________
    12There is no dispute that Hannon gave the Commonwealth notice of its intent
    to use Yannone’s prior conviction at trial. See Commonwealth’s Motion in
    Limine, 5/9/18, at ¶ 4 (“On May 7, 2018, the Commonwealth received written
    notice from the [d]efense . . . that it intends to seek introduction at trial of
    Mr. Yannone’s prior conviction for a summary violation of the Game Laws in
    2005[.]”).
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    Laws has no relation to the subject matter of [Hannon’s] case.” Trial Court
    Opinion, 5/9/19, at 5.
    The purpose of Rule 609 is to use crimes involving dishonesty or false
    statement to attack the credibility of a witness.      See Commonwealth v.
    Buterbaugh, 
    91 A.3d 1247
    (Pa. Super. 2014) (en banc); see also
    Commonwealth v. Howard, 
    823 A.2d 911
    , 913 (Pa. Super. 2003) (Rule 609
    “contemplate[s] the impeachment of a witness through the use of his or her
    prior convictions.”). Thus, the fact that Yannone’s gaming-related crime had
    no subject matter relationship to the crime at hand is irrelevant. However,
    even though Yannone’s conviction did fit within the ambit of Rule 609 as one
    of dishonesty, we do not find that the trial court abused its discretion in finding
    it inadmissible under Rule 609(b).
    Here, Yannone’s testimony supported the Commonwealth’s prosecution
    of Hannon for his crimes, specifically his EWOC, REAP and DUI convictions.
    Accordingly, it was relevant at trial. Arguably, the evidence of Yannone’s prior
    summary conviction under section 906 was probative of his credibility.
    However, any probative value was substantially outweighed by the potential
    for unfair prejudice as Yannone was the only witness that could testify to
    support the Commonwealth’s case with regard to having personally observed
    Hannon’s eleven-year-old daughter and Hannon drive his truck.            Thus, we
    conclude that the trial court’s decision to exclude the Rule 609 evidence was
    not an abuse of discretion. 
    Leap, supra
    .
    Judgment of sentence affirmed.
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    Judge Nichols concurs in the result of this Memorandum.
    Judge McLaughlin concurs in the result of this Memorandum.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/30/19
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