Com. v. Hamrick, A. ( 2015 )

J-A34029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ARTHUR KENT HAMRICK, :
:
Appellant : No. 2087 MDA 2013
Appeal from the Judgment of Sentence Entered November 14, 2013,
In the Court of Common Pleas of Adams County,
Criminal Division, at No. CP-01-CR-0000949-2012.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STABILE, J.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 17, 2015
Appellant, Arthur Kent Hamrick, appeals from the judgment of
sentence entered November 14, 2013, following his conviction at a bench
trial of driving under the influence of alcohol (“DUI”), general impairment
and DUI, highest rate of alcohol. We affirm.
The trial court summarized the facts of the case as follows:
Appellant’s August 19, 2013 non-jury trial, which
incorporated testimony from his March 25, 2013 suppression
hearing, revealed the following facts. On May 31, 2012 at
approximately 9:20 p.m., Officer Juanita Larmer of the
Hamiltonban Township Police Department received a telephone
call from Jesse Sanders on her work cell phone. Officer Larmer’s
shift had ended at 9:00 p.m., but she remained in her patrol car
and in full uniform. Mr. Sanders, a friend of Officer Larmer and
a firefighter and EMS technician with the Fairfield Fire Company,
had been picking up pizza at Ventura’s, a restaurant and bar in
Fairfield, Adams County, Pennsylvania, with his friend Bradley
Hartdagen. Mr. Sanders called Officer Larmer after Mr.
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Hartdagen saw a gentleman leave Ventura’s looking confused
and observed him attempting to enter a couple of different cars
before he was able to locate his green Ford station wagon and
drive away.
Mr. Sanders and Mr. Hartdagen began following the
gentleman and observed his vehicle weaving and crossing the
center line on several occasions. Mr. Sanders notified Officer
Larmer of the gentleman’s behavior and provided her with a
description of the vehicle and its license plate number. After
receiving this information, Officer Larmer placed a phone call to
Adams County Control, alerting them to the presence of a
potentially intoxicated driver in Fairfield Borough and providing
the identifying information she had received. County Control
then notified Officer Dustin Miller of the Carroll Valley Borough
Police that there was a possible intoxicated driver and gave him
the license plate number of the vehicle and the address where it
was registered.
Soon after getting off the phone with County Control,
Officer Larmer made a phone call to Officer Miller, further
describing the situation as related to her by Mr. Sanders. Officer
Larmer and Officer Miller, in separate cars, proceeded to
Appellant’s residence at 351 Fairfield Station Road and located
the green Ford station wagon with the license plate number
which Mr. Sanders had described to Officer Larmer. Once they
arrived at the residence, Officer Miller knocked on Appellant’s
back door. Appellant answered the door after a minute or two
and remained “half in and half out of the threshold.” Upon the
officers’ encouragement, Appellant stepped onto his porch to
speak with Officer Miller. The officers noted that Appellant’s
breath smelled strongly of alcohol and he exhibited signs of
intoxication in that he was “not steady on his feet,” his speech
was slurred, his eyes were bloodshot, his face was flushed red,
and his movements were slow and lethargic.
During their conversation outside of Appellant’s house,
Appellant admitted that he had been driving approximately 10-
15 minutes before the officers arrived and that he was returning
home from Ventura’s Restaurant. Appellant stated that he drank
one beer there. Officer Miller then asked Appellant whether he
would be willing to come to Officer Miller’s car to speak further
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with him. At that point, Appellant became irate and attempted
to go back into his house—Officer Miller prevented Appellant
from retreating by grabbing his wrists. The officers then walked
Appellant to Officer Miller’s car, performed a pat down search of
Appellant for weapons, and removed a knife from Appellant’s
pocket. Eventually, the officers were able to have Appellant
perform field sobriety tests. The tests revealed indications that
Appellant was intoxicated. Appellant then stated that he had
consumed two beers at Ventura’s. Officer Miller placed Appellant
under arrest for DUI and transported him to Gettysburg Hospital
for a blood test. Appellant’s blood sample was sent to NMS labs
where Appellant’s blood alcohol content was determined to be
.184 percent.
Trial Court Opinion, 1/6/14, at 1–3.
Appellant filed a suppression motion on December 17, 2012. The trial
court held a hearing on March 25, 2013, and denied the motion on April 17,
2013. Following a bench trial on June 3, 2013, the trial court found
Appellant guilty of DUI, general impairment and DUI, highest rate of alcohol.
The trial court determined that Appellant’s convictions merged for purposes
of sentencing and held that his convictions were second offenses for
sentencing purposes. The trial court sentenced Appellant on November 14,
2013, commensurate with the “Commonwealth’s recommendation and the
defense’s agreement with that recommendation,” Trial Court Opinion,
1/6/14, at 3, to thirty-six months in the County Intermediate Punishment
Program (“IPP”) with forty-five days in Phase I (re-entry), forty-five days in
Phase II (house arrest), and the remainder in Phases III through V
(restorative sanctions). Id.
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Appellant filed a notice of appeal on November 21, 2013. Both the
trial court and Appellant complied with Pa.R.A.P. 1925.
Appellant raises the following issue for our review:
A. Whether the Commonwealth presented sufficient evidence to
substantiate a finding of guilt beyond a reasonable doubt on the
charges, Did the police have sufficient justification to order the
defendant out of his house, and forcibly escort him to their
patrol cars, Did the police subject the defendant to custodial
interrogations without the benefit of Miranda warnings.
Appellant’s Brief at 6 (verbatim) (full capitalization omitted).
While Appellant presents this claim as a single issue in his Statement
of Questions Involved, he breaks it down in the argument section of his brief
into headings labeled A, B, and C. Appellant’s Brief at 8. Heading “A”
purports to assail the sufficiency of the evidence; however, Appellant fails to
assert any argument in his brief, thus, this issue has been abandoned.
Therefore, any claim regarding the sufficiency of the evidence is waived.
Bolick v. Commonwealth, 69 A.3d 1267, 1269 (Pa. Super. 2013) (holding
that failure to present an argument in support of issue results in waiver)
(citing Pa.R.A.P. 2119(a) and Commonwealth v. Spotz, 18 A.3d 244, 282
(Pa. 2011)). See also Commonwealth v. Samuel, 102 A.3d 1001, 1003–
1004 (Pa. Super. 2014) (“In order to develop a claim challenging the
sufficiency of the evidence properly, an appellant must specifically discuss
the elements of the crime and identify those which he alleges the
Commonwealth failed to prove” and failure to do so results in waiver.).
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Heading “C” purports to raise an issue regarding Miranda1 warnings.
Appellant fails to include a section identified as heading “C” in his brief. In
his argument under heading “B,” Appellant includes three conclusory
sentences referencing Miranda, one of which is repeated twice. Appellant’s
Brief at 9 and 12. In Commonwealth v. Harris, 979 A.2d 387 (Pa. Super.
2009), we stated as follows:
When an allegation is unsupported [by] any citation to the
record, such that this Court is prevented from assessing this
issue and determining whether error exists, the allegation is
waived for purposes of appeal. . . . Commonwealth v.
Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006) (“An appellate
brief must provide citations to the record and to any relevant
supporting authority. This Court will not become the counsel for
an appellant, ‘and will not, therefore, consider issues ... which
are not fully developed in the brief.’”). See also
Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super.
2007); Commonwealth v. Judd, 897 A.2d 1224, 1233 (Pa.
Super. 2006).
Id. at 393 (some internal citations omitted). Thus, this issue is also waived.
The only issue preserved for review is the claim identified in Appellant’s brief
as issue “B.”2
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
It is important to keep in mind that we are not now evaluating the
sufficiency of the evidence, as we have held that issue waived. Thus, we are
not evaluating whether the Commonwealth had to prove that Appellant was
in actual physical control of his vehicle during the time when he was
rendered incapable of safely doing so due to the consumption of alcohol.
Accord Commonwealth v. Segida, 985 A.2d 871, 879 n.6 (Pa. 2009)
(Commonwealth need not prove accused did not drink alcohol after accident
because DUI statute does not contain this element).
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Appellant’s three-page argument under heading “B” consists of two
pages of references to case law setting forth standards regarding probable
cause and the existence of exigent circumstances under which police may
arrest without a warrant when a defendant is in his home. The extent of
Appellant’s argument is as follows:
In the present case, Officer Miller received a dispatch of a
possible intoxicated driver and a registration plate number.
There was no information as to the source of the information or
the alleged observations that were made.
When reviewing the audio/video recording from the patrol
unit, and the audio recording of the County Dispatch Center, it
was clear that no other information was conveyed to Officer
Miller at the time of the arrest. It should be noted that [O]fficer
Lamer [sic] testified that she made a cellphone call to Officer
Miller informing him of a possible DUI and where it was heading,
but that phone call is not on the audio/visual recording of Miller’s
car which occurs the time of the initial call to Officer Miller until
the time of arrest. Also, there is no mention of the alleged
phone call in any police report or prior testimony.
Therefore, when Officer Miller ordered [Appellant] to come
out of the house he simply had the equivalent of an anonymous
uncooberated [sic] tip. He then removed [Appellant] from his
house and conducted a pat-down search. During the incident,
[Appellant] started bleeding. He was clearly under arrest (i.e. “if
you don’t take the tests we’re going to the hospital”).
Once he was removed from the house, and subjected to
physical restraint by two uniformed officers, [Appellant] was
clearly in custody.
Appellant’s Brief at 10–11. Appellant does not cite case law supporting his
position, other than heretofore described references to standards, and he
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fails to include any citations to the record in this case. He baldly asserts that
all evidence “must be suppressed.”
We consider this argument mindful of the following standard of review:
In addressing a challenge to a trial court’s denial of a
suppression motion we are 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
Commonwealth prevailed in the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted when
read in the context of the record as a whole. Where the 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. Brown, 64 A.3d 1101, 1104–1105 (Pa. Super. 2013)
(quoting Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa. Super. 2010)).
This Court recently explained the three types of interactions between
citizens and police, as follows:
Interactions with police are classified as mere encounters,
investigative detentions, or formal arrests. Commonwealth v.
Ellis, 379 Pa.Super. 337, 549 A.2d 1323, 1331 (1988).
Police may engage in a mere encounter absent any
suspicion of criminal activity, and the citizen is not
required to stop or to respond. If the police action
becomes too intrusive, a mere encounter may
escalate into an investigatory stop or a seizure. If
the interaction rises to the level of an investigative
detention, the police must possess reasonable
suspicion that criminal activity is afoot, and the
citizen is subjected to a stop and a period of
detention. Probable cause must support a custodial
interrogation or an arrest.
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Commonwealth v. Boswell, 554 Pa. 275, 721 A.2d 336, 341
(1998) (citations omitted).
Commonwealth v. Thompson, 93 A.3d 478, 485 (Pa. Super. 2014).
Whether the instant matter began as a mere encounter or an
investigative detention, the record is clear that police had reasonable
suspicion throughout the encounter. While it is true that Appellant was in
his home when the police officer came to his back door, the United States
Supreme Court has stated, when discussing police approach to a front door,
that “a police officer not armed with a warrant may approach a home and
knock, precisely because that is ‘no more than any private citizen might do.’
Kentucky v. King, 563 U.S. ___, ___, 131 S.Ct. 1849, 1862, 179 L.Ed.2d
865 (2011).” Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409, 1416
(2013). Herein, when police prevented Appellant from retreating into his
own house, the encounter clearly must be characterized as an investigative
detention. N.T. (Suppression), 3/25/13, at 25; Commonwealth v. Smith,
904 A.2d 30, 35 (Pa. Super. 2006) (“An investigative detention occurs when
a police officer temporarily detains an individual by means of physical force
or a show of authority for investigative purposes.”).
“An investigatory detention triggers the constitutional protection of the
Fourth Amendment to the United States Constitution, Article I, Section 8 of
the Pennsylvania Constitution, and the prerequisites for such a detention as
set forth in Terry [v. Ohio, 392 U.S. 1, 23–26 (1968)].” Cauley, 10 A.3d
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at 325–326 (footnote and citations omitted). The Cauley Court further
stated:
An investigative detention is lawful if supported by
reasonable suspicion. [Commonwealth v.] Sands, 887 A.2d
[261] at 269 [(Pa. Super. 2005)] (quoting [Commonwealth v.]
Hill, 874 A.2d [1214,] 1217 [(Pa. Super. 2005]). “To meet the
standard of reasonable suspicion, the officer must point to
specific and articulable facts which, together with the rational
inferences therefrom, reasonably warrant the intrusion.” Smith,
904 A.2d at 35 (quotation omitted). In addition, “we must look
to the totality of the circumstances to determine whether the
officer had reasonable suspicion that criminal activity was afoot.”
Id. at 35–36 (quoting Barber, 889 A.2d at 593). An
investigative detention may last “as is necessary to confirm or
dispel such suspicion.” Commonwealth v. LaMonte, 859 A.2d
495, 500 (Pa. Super. 2004) (quoting Commonwealth v.
Strickler, 563 Pa. 47, 58, 757 A.2d 884, 889 (2000)). Because
the level of intrusion may change during the course of the
encounter, the record must be carefully scrutinized for any
evidence of such changes. Commonwealth v. Blair, 860 A.2d
567, 572 (Pa. Super. 2004) (citing Strickler, 563 Pa. at 58–60,
72–73, 757 A.2d at 889–91, 897–98).
Cauley, 10 A.3d at 326.
The trial court, in its April 17, 2013 opinion denying Appellant’s motion
to suppress, concluded that all three types of interactions were present in
this case. The court opined that Officer Miller’s act of knocking on
Appellant’s door was “nothing more than a mere encounter.” Trial Court
Opinion (Suppression), 4/17/13, at 5 (citing Commonwealth v. Gonzalez,
979 A.2d 879, 884–885 (Pa. Super. 2009)). Alternatively, the court stated
that even if the initial interaction is considered an investigatory detention,
information provided by informants—here, Jesse Sanders—may provide
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police with reasonable suspicion to conduct an investigatory stop. The
suppression court stated:
Instantly, Officer Larmer received a tip from a named
informant that a possible DUI was in progress. The informant
[Jesse Sanders] was well known to Officer Larmer. The
information presented was specific and reliable as the informant
made personal observations of [Appellant’s] condition then
followed [Appellant] as he drove. The information provided by
Mr. Sanders gave Officers reasonable suspicion that [Appellant]
was driving under the influence.
This suspicion was heightened and corroborated during the
encounter on [Appellant’s] porch when Officer Miller learned
from [Appellant] that he had recently driven and when he
noticed signs of alcohol intoxication including a strong smell of
alcohol coming from [Appellant’s] breath, bloodshot eyes, slow
lethargic movements, unsteadiness and a flushed face.
After Officers had all of that information [Appellant] asked
the Officers to leave his property and attempted to go back into
his house. At that time he was detained by the Officers with
minimal compulsion. Clearly, by then the Officers possessed
reasonable suspicion that [Appellant] was driving under the
influence. Without doubt there was then an investigatory
detention. Based on the totality of the circumstances Officers
possessed reasonable suspicion that [Appellant] was driving
under the influence of alcohol sufficient to subject him to field
sobriety testing.
Trial Court Opinion (Suppression), 4/17/13, at 5–6. We agree with the trial
court’s alternative conclusion.
As the trial court noted, “Even if this initial interaction is considered an
investigatory detention, information provided by informants may provide
Police with reasonable suspicion to conduct an investigatory stop.
Commonwealth v. Griffin, 954 A.2d 648, 651 (Pa. Super. 2008).” Trial
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Court Opinion (Suppression), 4/17/13, at 11. Although the instant scenario
was not a traffic stop, because we have concluded that the subsequent
encounter between police and Appellant was an investigative detention, the
requirement of reasonable suspicion herein is akin to that required to
conduct an investigatory stop, and we draw guidance from case law
expounding on that concept. This Court recently emphasized:
To have reasonable suspicion, police officers need not personally
observe the illegal or suspicious conduct, but may rely upon the
information of third parties, including “tips” from citizens.
Naturally, if a tip has a relatively low degree of reliability, more
information will be required to establish the requisite quantum of
suspicion than would be required if the tip were more reliable.
This Court has examined the requirements surrounding
reasonable suspicion for automobile stops emanating from
information provided by a tipster and has explained:
Reasonable suspicion, like probable cause, is
dependent upon both the content of information
possessed by police and its degree of reliability.
Both factors—quantity and quality—are considered in
the “totality of the circumstances—the whole
picture,” that must be taken into account when
evaluating whether there is reasonable suspicion.
Thus, if a tip has a relatively low degree of reliability,
more information will be required to establish the
requisite quantum of suspicion than would be
required if the tip were reliable.
When the underlying source of the officer’s
information is an anonymous call, the tip should be
treated with particular suspicion. However, a tip
from an informer known to the police may carry
enough indicia or reliability for the police to conduct
an investigatory stop, even though the same tip from
an anonymous informant would likely not have done
so.
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Indeed, identified citizens who report their observations of
criminal activity to police are assumed to be trustworthy, in the
absence of special circumstances, since a known informant
places himself at risk of prosecution for filing a false claim if the
tip is untrue, whereas an unknown informant faces no such risk.
When an identified third party provides information to the police,
we must examine the specificity and reliability of the information
provided. The information supplied by the informant must be
specific enough to support reasonable suspicion that criminal
activity is occurring. To determine whether the information
provided is sufficient, we assess the information under the
totality of the circumstances. The informer’s reliability, veracity,
and basis of knowledge are all relevant factors in this analysis.
Commonwealth v. Washington, 63 A.3d 797, 803 (Pa. Super. 2013)
(quoting Commonwealth v. Barber, 889 A.2d 587, 593–594 (Pa. Super.
2005) (quotations, quotation marks, and citations omitted)).
Upon review and in consideration of the circumstances of this case, we
conclude the trial court did not err in determining that the officers had
reasonable suspicion to detain Appellant and submit him to field-sobriety
tests. Officer Larmer, a thirteen-year veteran in the Hamiltonban Township
Police Department, received the equivalent of a reliable tip on her work
cellular telephone indicating that Appellant appeared “confused and possibly
intoxicated” and had “crossed over the center line several times.” N.T.
(Suppression), 3/25/13, at 5. The detailed information provided by Mr.
Sanders, who was known to Officer Larmer as reliable, provided Officer
Larmer with reasonable suspicion that Appellant was driving under the
influence. Id. at 5–6. Officer Larmer testified that she contacted Adams
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County Control and alerted them to the presence of a potentially intoxicated
driver in Fairfield Borough and further, provided the identifying information
she had received from Mr. Sanders. Id. at 6. County Control then notified
Officer Dustin Miller of the Carroll Valley Borough Police Department that
there was a possible intoxicated driver and gave him the license plate
number of the vehicle and the address where it was registered. Id. at 19.
Officer Larmer and Officer Miller spoke on the telephone at that point. Id. at
7, 20. Officer Larmer and Officer Miller each proceeded to Appellant’s
residence, arriving within “a few minutes,” id. at 8, and located the green
Ford station wagon with the license plate number that Mr. Sanders had
described to Officer Larmer. Id. at 21.
Officer Miller knocked on Appellant’s back door. N.T. (Suppression),
3/25/13, at 21. When Appellant opened the door, Officer Miller noticed a
“strong” odor of alcohol emanating from Appellant and asked him to step
onto the porch. Id. at 22. Appellant exhibited signs of intoxication
including being “unsteady,” with “slurred” speech, his eyes “were bloodshot
red,” his face “was flushed red,” and his movements were “slow” and
“lethargic.” Id. at 22–23. During the conversation outside of Appellant’s
house, Appellant admitted that he had been driving approximately ten to
fifteen minutes before the officers arrived and that he was returning home
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from Ventura’s Restaurant. Id. at 24. Thus, prior to the sobriety tests,
Officer Miller noticed indicia of intoxication.
Officer Miller’s police vehicle was equipped with an in-car camera
system, it was recording the events described, and copies of the recording
were admitted without objection. N.T. (Suppression), 3/25/13, at 27–28.
Appellant exhibited indicia of intoxication when performing the field sobriety
tests. Id. at 26. Officer Miller testified that Appellant admitted to drinking
beer at Ventura’s Restaurant and did not indicate he had anything to drink
after returning to his home. Id.
Based on the foregoing, we conclude that the officers possessed
requisite reasonable suspicion and were able to point to articulable and
specific facts that gave rise to the probability that Appellant had been driving
under the influence. Cauley, 10 A.3d at 327. The officers reasonably drew
the inference that Appellant “having driven to the scene and immediately
exhibited signs of intoxication, drove to the scene while intoxicated.” Id. As
a result of the field sobriety tests, police had probable cause to arrest
Appellant. Appellant has offered no substantial argument to the contrary in
his brief. Appellant’s Brief at 11. As such, we further conclude the trial
court properly denied Appellant’s suppression motion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2015
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