Com. v. Best, M.

J-S50044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
MICHAEL ROBBIE CALVIN BEST, II :
: No. 3557 EDA 2016
Appellant
Appeal from the Judgment of Sentence January 5, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001581-2015
BEFORE: PANELLA, MOULTON, and RANSOM, JJ.
MEMORANDUM BY RANSOM, J.: FILED OCTOBER 30, 2017
Appellant, Michael Best, II, appeals from the judgment of sentence of
ninety days to two years of incarceration followed by one year of probation,
imposed January 5, 2016, following a bench trial resulting in his conviction for
driving under the influence of alcohol or controlled substance (“DUI”)
(generally), DUI - highest tier - second offense, and careless driving.1 We
affirm.
The relevant facts and procedural history are as follows. This appeal
arises out of the denial of Appellant’s motion to suppress blood test results
and statements admitted into evidence. At the suppression hearing, the
Commonwealth presented the testimony of Trooper Thomas Rummerfield,
who testified as follows. It was a clear night with dry conditions around 11
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1 See 75 Pa.C.S. § 3802(a)(1), § 3802(a)(c), and § 3714(a).
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p.m. on November 19, 2014, when the Trooper was dispatched to investigate
a one car accident in Washington Township, Lehigh County. See Notes of
Testimony (N.T.), 5/9/2015, at 8. The Trooper “observed a gray Volkswagen
Jetta in the westbound lane of travel facing east.” Id. at 9. The physical
evidence, tire marks, and debris, indicated that the vehicle “was traveling west
and [,] as the road curved to the left[,] [it] went straight and impacted a tree.”
Id. at 9-10. The Trooper concluded that the driver failed to maneuver the
turn, the car spun around as it impacted a tree, and ended up facing the
opposite direction. Id. at 10.
The vehicle had “[h]eavy front end damage as well as heavy damage to
the windshield” – a hole in the windshield on the driver’s side filled with “blood
and gore.” Id. The driver had already been transported to Cedar Crest
Hospital for treatment of extensive injuries by the time the Trooper had
arrived. Id. at 13. The Chief of the Friedens Fire Department informed the
Trooper that the driver was a younger man. Id. at 12. The Trooper collected
the driver’s insurance and registration information for the crash investigation.
Id. at 11-12. The vehicle’s registered owner was an older man. Id. Thus,
the Trooper conducted a NCIC search of the owner’s last name and found
whom he presumed was the owner’s son, Appellant, whose address matched
the vehicle registration and whose profile fit the age description of the driver
provided by first responders. See id. at 12.
The Trooper proceeded to Cedar Crest Hospital “after midnight, 12:05
[a.m.] or so.” Id. at 15. The Trooper could not speak with Appellant
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immediately because he was being treated for his injuries. Id. at 13. The
Trooper spoke to the emergency medical personnel who transported Appellant
to the hospital. Id. at 13. They described Appellant’s “extensive injuries” and
a “strong odor of alcohol” emanating from Appellant’s person as they
transported him. Id. at 13.
The Trooper requested Appellant’s blood from hospital personnel. Id.
at 13-14. Hospital personnel informed the Trooper that Appellant’s blood had
already been drawn at 11:46 p.m., prior to the Trooper’s arrival at the
hospital. Id. at 15. In fact, the hospital “had the blood waiting for [him].”
Id. at 14, 15. The Trooper proceeded to fill out the hospital’s standard chain
of custody form, which stated:
The undersigned law enforcement officer requests that a person
authorized by the hospital take blood or urine sample from the
above individual and certifies that a determination of probable
cause that the individual was operating a motor vehicle while
under the influence of alcohol or a controlled substance has been
established.
Id. at 16.
After the Trooper requested Appellant’s blood, signed the chain of
custody form, and received Appellant’s blood, he was able to speak with
Appellant in a hospital room. Id. at 17. Appellant was laying on a hospital
bed in a curtained off area of the hospital where he was physically attached
or connected to medical devices monitoring his vital signs. Id. Appellant had
sustained major injuries to his face, which was wrapped in bandages; the
Trooper could only see his left eye, and his right eye was covered in blood.
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Id. The Trooper did not inform Appellant that he was under arrest or
investigation for a crime.
The Trooper testified that Appellant’s visible eye was “glassy,
bloodshot.” Id. The Trooper also “detected the odor of alcoholic beverage
emanating from his breath” and a “slight slur” in Appellant’s speech. Id. The
purpose of the conversation was for the Trooper “to determine why the crash
occurred,” and his first question was “[t]ell me what happened.” Id. at 18.
Appellant stated that he did not know how fast he was driving. Id. at 19. The
Trooper also questioned him about the suspension of his Pennsylvania driver’s
license, and Appellant indicated to him that he had a valid license from South
Carolina. See Trial Ct. Op., 10/15/2015, at 5. After finishing “standardized
crash questions,” the Trooper asked Appellant additional questions, including:
“how much he had had to drink and where he was coming from, where he
drank, and how much he drank.” N.T. at 19. Appellant responded that he
“drank two beers and two rum and cokes at the Old Post Inn.” Id. at 19-20.
After this questioning concluded, the Trooper transported the vial of blood he
had received already to Lehigh Valley Health Network Laboratories for
analysis. Id. at 22, 32. The test results revealed a blood-alcohol content
(BAC) of .22%. See id. at 23. Thereafter, Appellant was arrested and
charged with DUI-related offenses and traffic violations.
On July 15, 2015, Appellant filed a pre-trial motion to suppress the
results of the blood alcohol test and statements he made to the Trooper. In
October 2015, the trial court issued an opinion and order denying Appellant’s
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motion to suppress. With regard to the blood test, the trial court concluded
that because Trooper Rummerfield made the necessary request to the hospital
at a time when he believed he had probable cause to suspect a violation of
Section 3802 (relating to driving under the influence or a controlled
substance), that the warrantless seizure of Appellant’s blood from the hospital
was authorized pursuant to the implied consent statute and 75 Pa.C.S. § 3755.
Trial Ct. Op., 10/15/2015, at 7-8.
With regard to the statements, the trial court reasoned that the
Trooper’s interview of Appellant in the hospital did not constitute a custodial
interrogation because Appellant was “not taken into custody or otherwise
deprived of his freedom of action in any significant way.” Trial Ct. Op.,
10/15/2015, at 9 (citations omitted). The trial court concluded that the
interaction between Appellant and the Trooper was a mere investigative
detention, and thus, the Trooper was not required to read Appellant his
Miranda warnings.2 See id. at 11.
Following a bench trial, where Appellant’s blood test results and
statements were admitted, Appellant was found guilty of the aforementioned
DUI-related charges. On January 5, 2016, Appellant was sentenced to ninety
days to two years of incarceration followed by one year of probation.
Appellant untimely filed a motion for reconsideration of his sentence, which
the trial court denied on January 20, 2016.
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2 See Miranda v. Arizona, 384 U.S. 436 (1966).
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On February 11, 2016, Appellant filed a notice of appeal and Pa.R.A.P.
1925(b) statement. This Court quashed the appeal as untimely from the
judgment of sentence imposed on January 5, 2016. See Order, 581 EDA
2016, 8/17/2016.3
On July 8, 2016, Appellant filed a petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking reinstatement
of his appellate rights. After Appellant’s direct appeal rights were reinstated
on November 1, 2016, he timely filed a notice of appeal and court-ordered
Pa.R.A.P. 1925(b) statement.
On appeal, Appellant raises the following issues:
1. Did the trial court err in denying defendant's pre-trial motions
for the following reasons:
A. The blood drawn at the hospital was utilized in
violation of [Appellant]'s rights under the
Pennsylvania and United States Constitutions;
B. Law enforcement officials violated [Appellant]'s
constitutional rights by failing to advise him of his
Miranda warnings despite the fact that he was in
custody at the hospital.
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3 This Court quashed the appeal sua sponte because Appellant’s post-sentence
motion filed on January 19, 2016 was untimely and Appellant failed to file a
notice of appeal within thirty days from the judgment of sentence. See
Pa.R.Crim.P. 720(A)(1) (“[A] written post-sentence motion shall be filed no
later than 10 days after imposition of sentence”); Pa.R.Crim.P. 720(A)(3) (“If
the defendant does not file a timely post-sentence motion, the defendant's
notice of appeal shall be filed within 30 days of imposition of sentence”);
Pa.R.A.P. 903(c)(3) (“In a criminal case in which no post-sentence motion has
been filed, the notice of appeal shall be filed within 30 days of the imposition
of the judgment of sentence in open court.”).
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Appellant's Br. at 4.
Once a motion to suppress has been filed, the Commonwealth has the
burden to prove at the suppression hearing “by a preponderance of the
evidence, that the challenged evidence was not obtained in violation of the
defendant’s rights.” Commonwealth v. Evans, 153 A.3d 323, 327 (Pa.
Super. 2016) (quoting Commonwealth v. Wallace, 42 A.3d 1040, 1047-
1048 (Pa. 2012) (en banc)); see also Pa.R.Crim.P. 581(H).
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court's factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court's factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court's legal conclusions are erroneous.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citation omitted).
“The Fourth Amendment to the [United States] Constitution and Article
I, Section 8 of [the Pennsylvania] Constitution protect citizens from
unreasonable searches and seizures.” Commonwealth v. McAdoo, 46 A.3d
781, 784 (Pa. Super. 2012).
The administration of a blood test is a search within the meaning
of Article I, section 8 if performed by an agent of, or at the
direction of the government. Generally, a search or seizure is not
reasonable unless it is conducted pursuant to a search warrant
issued by a magistrate upon a showing of probable cause.
Probable cause exists when an officer has knowledge of sufficient
facts and circumstances, gained through trustworthy information,
to warrant a prudent man to believe that the person seized has
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committed a crime.
Commonwealth v. Kohl, 615 A.3d 308, 315 (Pa. 1992) (internal citation
omitted).
In the first argument section of his brief, Appellant presents a short
series of disconnected assertions that do not effectively develop an argument
in support of his contention that testing on blood drawn while he received
medical treatment violated his constitutional rights. He fails to meaningfully
develop any analysis in support of this constitutional claim, or apply the case-
law he cites to the facts of his case. Where an appellant fails to develop his
argument in a meaningful fashion capable of review, the claim is waived. See
Commonwealth v. Woodard, 129 A.3d 480, 502 (Pa. 2015) (“It is not the
obligation of an appellate court to formulate appellant’s arguments for him”)
(quotation omitted); Commonwealth v. Walter, 966 A.2d 560, 566 (Pa.
2009) (appellant’s constitutional claims were “waived for failure to develop
them in any meaningful fashion capable of review”); see also Pa.R.A.P.
2119(a) (providing that appellate briefs must contain “such discussion and
citation of authorities as are deemed pertinent”). Nevertheless, we note the
following.
According to Appellant, his blood was drawn by “an emergency room
technician, based on the mandatory reporting under [S]ection 3755.”
Appellant's Br. at 9; see 75 Pa.C.S. § 3755. In this regard, Appellant appears
to concede that an officer may request, without a warrant, that blood be drawn
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by hospital medical staff, tested for the presence of alcohol, and that the test
results may be provided to the Commonwealth, based upon an assertion that
the officer has probable cause to suspect a driver of DUI. See Appellant’s Br.
at 10 (citing Commonwealth v. Shaffer, 714 A.2d 1035 (Pa. Super. 1998)
(in general terms, recognizing the constitutionality of 75 Pa.C.S. § 3755 and
what it permits)). Despite this, Appellant also suggests that “[t]here was
nothing to prevent the police from obtaining a warrant in order to get a blood
sample to test it for alcohol content.” Id. at 10 (citing in support
Commonwealth v. Myers, 118 A.3d 1122, 1125 (Pa. Super. 2015), aff’d,
164 A.3d 1162 (Pa. 2017)). Further, he maintains that, at the time a blood
sample was requested for testing, the Trooper lacked sufficient probable
cause. See id. at 9-10. According to Appellant, the Trooper’s first-hand
knowledge was limited to his observations at the accident scene. Id. For
example, according to Appellant, the Trooper did not personally observe or
interact with Appellant prior to making the blood request, i.e., he did not
observe characteristics of a drunk-driver, determine if there was an odor of
alcohol, if Appellant had glassy eyes, or control of his balance. Id.
[W]e conclude that Appellant has not effectively challenged the
constitutionality of 75 Pa.C.S. 3755. Rather, Appellant merely asserts that
the Commonwealth did not meet its requirements. See, generally,
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Appellant’s Br. at 9-10. We limit our discussion accordingly.4
Here, the trial court found that the Trooper had developed sufficient
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4 Recent precedent from the United States Supreme Court has precipitated a
seismic shift in our implied consent jurisprudence. In Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016), the United States Supreme Court recognized
that “[t]here must be a limit to the consequences to which motorists may be
deemed to have consented by virtue of a decision to drive on public roads.”
Id. at 2185. Of particular significance, Birchfield held that “motorists cannot
be deemed to have consented to submit to a blood test on pain of committing
a criminal offense.” Id. at 2186. Accordingly, this Court has recognized that
Pennsylvania’s implied consent scheme, as codified at 75 Pa.C.S. § 1547, was
unconstitutional insofar as it threatened to impose enhanced criminal
penalties for the refusal to submit to a blood test. Commonwealth v.
Ennels, 167 A.3d 716, 724 (Pa. Super. 2017), reargument denied (Sept. 19,
2017) (noting that “implied consent to a blood test cannot lawfully be based
on the threat of such enhanced penalties”); Commonwealth v. Evans, 153
A.3d 323, 330-31 (Pa. Super. 2016).
Recently, the Pennsylvania Supreme Court has further examined the statutory
requirements of Section 1547, concluding that a motorist has “an absolute
right to refuse chemical testing.” See Commonwealth v. Myers, 164 A.3d
1162, 1172 (Pa. 2017). Notably, however, the Court was unable to reach a
majority decision on a related, constitutional question, i.e., whether implied
consent may serve as an independent warrant exception. Id. at 1178-79
(recognizing that U.S. Supreme Court has not resolved this question), 1182
(indicating that the constitutional analysis of Justice Wecht did not receive
support from a majority of the Court), 1189 (Mundy, J., dissenting)
(suggesting that the implied consent statute permits chemical testing without
a warrant based on probable cause for DUI).
To be clear, Appellant does not challenge Section 1547. Thus, neither
Birchfield nor the constitutionality of Pennsylvania’s implied consent scheme
are directly before this Court. Further, Appellant does not challenge the
interplay between Section 1547 and Section 3755. See Commonwealth v.
Barton, 690 A.2d 293, 299-300 (Pa. Super. 1997). Thus, the extent to which
Pennsylvania’s implied consent scheme may empower a police officer to
secure blood samples of a suspected drunk driver from hospital personnel
based upon an assertion of probable cause is also not before this Court, and
we decline to address it sua sponte.
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probable cause to request Appellant’s blood sample pursuant to 75 Pa.C.S. §
3755. See Trial Ct. Op., 3/4/2016, at 7-8 (relying on Commonwealth v.
Barton, 690 A.2d 293, 300 (Pa. Super. 1997)). Section 3755 provides, in
relevant part:
General rule. If, as a result of a motor vehicle accident, the person
who drove, operated or was in actual physical control of the
movement of any involved motor vehicle requires medical
treatment in an emergency room of a hospital and if probable
cause exists to believe a violation of section 3802 (relating to
driving under influence of alcohol or controlled substance) was
involved, the emergency room physician or his designee shall
promptly take blood samples from those persons and transmit
them within 24 hours for testing to the Department of Health or a
clinical laboratory licensed and approved by the Department of
Health and specifically designated for this purpose. This section
shall be applicable to all injured occupants who were capable of
motor vehicle operation if the operator or person in actual physical
control of the movement of the motor vehicle cannot be
determined. Test results shall be released upon request of the
person tested, his attorney, his physician or governmental officials
or agencies.
75 Pa.C.S. § 3755(a) (enacted Feb. 1, 2004).
Section 3755 authorizes an officer to request a chemical test if two
requirements are met: (1) a motorist “requires medical treatment in an
emergency room of a hospital,” and (2) “probable cause exists to believe a
violation of section 3802 (relating to driving under influence of alcohol or
controlled substance) was involved[.]” 75 Pa.C.S. § 3755.
Our courts have found that, together, sections 1547 and 3755
comprise a statutory scheme which, under particular
circumstances, not only imply the consent of a driver to undergo
chemical or blood tests, but also require hospital personnel to
withdraw blood from a person, and release the test results, at the
request of a police officer who has probable cause to believe the
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person was operating a vehicle while under the influence.
Barton, 690 A.2d at 299-300 (citing Commonwealth v. Riedel, 539 Pa.
172, 180, 651 A.2d 135, 139–40 (Pa. 1994)).
Contrary to Appellant’s assertion, the timing of the blood draw by a
hospital is irrelevant for the purpose of determining compliance with Section
3755. Commonwealth v. Seibert, 799 A.2d 54, 64 (Pa. Super. 2002). “The
litmus test under section 3755 is probable cause to request a blood test, not
the request itself.” Barton, 690 A.2d at 297 (quoting Riedel, 651 A.2d at
140). If the police officer has probable cause to believe the Appellant was
driving under the influence of alcohol, then “the [Appellant’s] consent to
undergo chemical or blood tests was implied, and hospital personnel were
required to withdraw blood from [Appellant] and release the test results.”
Commonwealth v. Keller, 823 A.2d 1004, 1010 (Pa. Super. 2003). “[T]he
officer is entitled to obtain the results of such tests, regardless of whether the
test was performed for medical purposes or legal purposes.” Barton, 690
A.2d at 299-300.
The existence of probable cause suffices as a constitutional basis for the
release of a blood test administered by the hospital pursuant to Section 3755.
Commonwealth v. Haynos, 525 A.2d 394, 398 (Pa. Super. 1987), alloc.
denied, 525 A.2d 394 (Pa. 1987). “[I]n instances in which probable cause has
been established, the absence of a warrant requirement under the implied
consent provisions does not render the blood, breath, and urine tests
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unreasonable under Article I, § 8 of the Pennsylvania Constitution due to
time's dissipating effect on the evidence.” Kohl, 615 A.2d at 315. The
Supreme Court has reasoned that a request for results of a previously
administered test is far less intrusive than the administration of a non-
consensual blood test. See Riedel, 651 A.2d at 140.
Appellant suggests that the evidence presented at the suppression
hearing was insufficient to establish probable cause to believe a violation
occurred at the time of the Trooper’s request. The evidence included: (1) the
Trooper’s observations that the driving conditions were clear; (2) a car
impacted a tree; (3) the positioning of the wreckage, which led the Trooper
to conclude that the driver failed to maneuver a curve; (4) evidence that
Appellant was the driver; (5) statements of emergency medical personnel who
described a “strong odor of alcohol” emanating from Appellant’s person as
they transported him to the hospital; and (6) evidence that Appellant
sustained extensive injuries. See Trial Ct. Op. (TCO), 10/15/2015, at 4.
In Haynos, this Court determined that probable cause was established
where an officer observed a motor vehicle that had struck a tree and detected
the odor of alcohol on the driver’s breath. Haynos, 525 A.2d at 399. Here,
Trooper Rummerfield also observed the damage caused by a single car
accident and concluded that Appellant had struck a tree. Further, he gained
trustworthy information regarding the odor on Appellant’s breath from medical
personnel. Together, these facts were sufficient to support probable cause to
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suspect that the cause of the accident was Appellant’s violation of section
3802.
We conclude that the facts known to Trooper Rummerfield at the time
of his request were sufficient to establish probable cause to request testing
under Section 3755. See Haynos, supra; see also, e.g., Commonwealth
v. Moore, 635 A.2d 625, 627 (Pa. Super. 1993) (concluding an officer had
probable cause to support a subpoena where police were aware of evidence
surrounding a previous accident and where alcohol had been detected on
driver’s breath). Because the blood test was requested based on probable
cause pursuant to Section 3755, the trial court did not err in admitting the
results of the test into evidence. See Barton, supra.
Appellant’s second issue challenges the denial of his motion to suppress
statements made while in the hospital. Our standard of review is as follows:
The standard of review in a motion to suppress is clear: When
reviewing the suppression court's denial of a motion to suppress,
we must first ascertain whether the record supports the
suppression court's factual findings. We are bound by the
suppression court's findings if they are supported by the record,
and may only reverse the suppression court if the legal
conclusions drawn from the findings are in error.
Commonwealth v. Perry, 710 A.2d 1183, 1184 (Pa. Super. 1998) (internal
citation omitted).
Appellant contends that his statements must be suppressed because he
was subject to a custodial interrogation in the hospital without being read
Miranda warnings. See Appellant's Br. at 11-12 (citing in support
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Commonwealth v. Whitehead, 629 A.2d 142, 143 (Pa. Super. 1993)
(holding that officer was required to provide Miranda warnings to person
while lying on a hospital gurney within the confines of a hospital when he
asked questions designed to obtain incriminating statements).
Appellant’s reliance on Whitehead is inapposite. In Whitehead, we
applied the focus of the investigation analysis which was called into question
by the Supreme Court’s decision in Beckwith v. United States, 425 U.S.
341, 347-348 (1976), and later rejected by this Court. See, e.g.,
Commonwealth v. Ellis, 549 A.2d 1323, 1332 (Pa. Super. 1988) (concluding
that “the only restraints upon [defendant’s] freedom were those caused by his
medical condition, as opposed to any action on the part of the police”); see
also Commonwealth v. Fento, 526 A.2d 784, 788 (Pa. Super. 1987)
(questioning defendant in an open area of hospital not custodial despite the
confinement of suspect to a hospital bed). The mere fact that law enforcement
asked questions designed to obtain incriminating statements is not the focus.
See Perry, 710 A.2d at 1186 (noting that this is a relevant factor, but not the
only factor used to determine whether a suspect is “in custody”). More recent
precedent clarifies:
The overriding concern of this Court is to determine what was the
reasonable belief of the accused during the questioning. Although
a factor, the motive of the trooper, specifically, whether the
accused was the focus of a criminal investigation, is not the central
issue.
Perry, 710 A.2d at 1186.
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The test for determining whether a suspect is subject to a custodial
interrogation so as to necessitate Miranda warnings is whether, under the
totality of the circumstances, “he is physically deprived of his freedom in any
significant way or is placed in a situation in which he reasonably believes that
his freedom of action or movement is restricted by such interrogation.”
Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (citations
omitted). The fact that a suspect was questioned in the confines of a hospital
setting does not necessarily render the interrogation custodial in nature. See
Ellis, 549 A.2d at 1332 (defendant’s restraint of freedom of movement due
to medical condition did not constitute custody under the totality of the
circumstances). “[P]olice detentions only become ‘custodial’ when, under the
totality of circumstances, the conditions and/or duration of the detention
become so coercive as to constitute the functional equivalent of formal arrest.”
Ellis, 549 A.2d at 1332.
In Perry, for example, this Court affirmed the trial court’s denial of a
defendant’s motion to suppress statements made under circumstances similar
to those present here. Perry, 710 A.2d at 1185-86 (describing how trooper
learned from medical personnel that they had noticed the odor of alcohol on
the defendant’s breath and followed up on the automobile investigation by
proceeding to the hospital to question the defendant pursuant to standard
police practice). “In gathering information in regard to the accident the
trooper noticed ‘first hand’ the odor of alcohol on [the defendant’s] breath and
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questioned him in that regard.” Id. at 1187. During questioning, the
defendant “was lying on his back on a gurney, wearing a neck brace, and had
intravenous tubes in his arms.” Id. at 1185. Upon review, this Court held
that the restrictions to the defendant’s physical movement, brought on by his
medical condition, did not render the investigation “custodial” in nature. See
id. at 1186-87 (noting the presence of medical personnel and family
members).
Here, Appellant was laying on a hospital bed, having recently suffered
extensive injuries; he was connected to medical equipment monitoring his
vital signs. Appellant’s father was present at the time of the questioning. N.T.
at 34. The suppression court found that Appellant was not shackled or
tethered, nor under arrest at the time. See TCO at 9. After detecting the
odor of alcohol on Appellant’s breath, the Trooper inquired of Appellant how
much he had been drinking. Id. at 10. Appellant responded that he had
consumed four alcohol beverages. Id. The court concluded that Appellant
was not in custody, as he was free to stop the questioning at any time. Id.
Moreover, there was no evidence that Appellant was deprived of his freedom
of movement, by Trooper Rummerfield, in any significant way. Id. Because
Trooper Rummerfield made no threats and had not determined to place
Appellant in custody, his inquiry was merely investigatory. The court
concluded Appellant was subject to a mere investigative detention and that
Miranda warnings were not required. Id.
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The record supports the suppression court’s findings. As these findings
do not establish that Appellant had a reasonable belief that he was subject to
a custodial interrogation, we discern no error in the court’s decision. See
Perry, 710 A.2d at 1186; Ellis, 549 A.2d at 458.
Judgement of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2017
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