Com. v. Houghton, C.

J-S68033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CORY HOUGHTON, :
:
Appellant : No. 569 EDA 2014
Appeal from the Judgment of Sentence entered on February 11, 2014
in the Court of Common Pleas of Chester County,
Criminal Division, No. CP-15-CR-0003830-2012
BEFORE: ALLEN, JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 09, 2014
Cory Houghton (“Houghton”) appeals from the judgment of sentence
imposed after he was convicted of driving under the influence – general
impairment (hereinafter “DUI”), as well as the summary offenses of careless
driving, registration and certificate of title required, and use of multiple-
beam road lighting equipment.1 We affirm.
The trial court set forth the relevant facts underlying this appeal as
follows:
[O]n July 12, 2012, Officer McCarthy of the Schuylkill
Township Police Department was on duty at approximately 2:09
a.m.[,] travelling west on Route 23 (Valley Forge Road). When
he was near the 1100 block of Valley Forge Road, he observed a
green Chrysler 300 sedan travelling east on Route 23 with its
high beams activated. The high beams remained on as the
vehicle passed Officer McCarthy’s car. Officer McCarthy saw the
vehicle turn into the parking lot of Frank’s Sports Bar. [Officer
McCarthy] turned around, activated his emergency lights and
1
See 75 Pa.C.S.A. §§ 3802(a)(1), 3714(a), 1301(a), 4306(a).
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turned into the parking lot. He told [Houghton], who was
already getting out of his vehicle, to get back in the car.
[Houghton] complied and Officer McCarthy approached.
[Houghton’s] speech was normal, but his eyes were bloodshot
and glassy, and Officer McCarthy detected a strong odor of
alcohol. He asked if [Houghton] had been drinking, which
[Houghton] denied. [Houghton] was asked to exit his vehicle in
order to perform field sobriety tests (hereinafter “FSTs”). He
satisfactorily performed the walk and turn test, but he failed the
one-leg stand test and the finger-to-nose test.
After the FSTs were completed, Officer McCarthy removed
a portable breath test device (hereinafter “PBT”) from his
pocket. When [Houghton] saw it, he immediately blurted out,
“Do I have to take that?,” to which Officer McCarthy responded
“no.” [Houghton] then asked “What would happen if I don’t take
it?” Officer McCarthy answered, “I will transport you to the
hospital for a blood test.” After that, [Houghton] said “so then if
I take this, I get to go home?” Officer McCarthy replied “no, you
don’t because you didn’t do well on the other tests.” [Officer]
McCarthy also stated “if you’re being honest with me about not
having anything to drink, everything will go smoothly.”
[Houghton] then stated, “Look, I’m not drunk, okay? But I
haven’t eaten anything all day. I just chugged three beers
before I left. If I take that thing[, i.e., the PBT], I’m not going
to pass it.” Officer McCarthy told him to think about it.
[Houghton] then agreed to take the PBT.[2] [Houghton] was
subsequently taken into custody for DUI[, and placed in
handcuffs,] and put in the rear of the police car. He was
transported to Phoenixville Hospital[,] where he refused the
blood test.
Trial Court Opinion, 6/18/14, at 2-3 (footnote added).
After taking Houghton into custody, Officer McCarthy charged him with
the above-mentioned offenses. Prior to trial, Houghton filed a Motion to
Suppress his inculpatory statements made to Officer McCarthy, asserting
that they were made during a custodial interrogation, and because Officer
2
The record does not disclose the exact result of the PBT. However, Officer
McCarthy’s Affidavit of Probable Cause states that the PBT gave a positive
indication that Houghton had consumed alcohol.
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McCarthy had not read Houghton his Miranda3 rights prior to the
statements, they were therefore inadmissible. The trial court denied the
Motion to Suppress.
The matter proceeded to a bench trial, at the close of which the trial
court convicted Houghton on all counts, and sentenced him to serve fifteen
days in jail, followed by seventy-five days of electronic monitoring, and six
months of probation.4 In response, Houghton timely filed a Notice of
Appeal.
Houghton presents the following issues for our review:
I. Whether the trial court erred in refusing to suppress
[Houghton’s] statements that he chugged three beers
and knew he would fail a breath test where said
statements were elicited after [] Officer [McCarthy]
advised [Houghton] that he was not free to go home
based upon [Houghton’s] performance on [the FSTs]
and that everything would go smoothly so long as
[Houghton] had been honest about not having anything
to drink?
II. Whether there is insufficient evidence against
[Houghton] to support the finding of guilt on the
charge[] of [DUI], specifically when the evidence was
insufficient to show that [Houghton] was rendered
incapable of safe driving as a result of drinking three
beers?
Brief for Appellant at 5 (capitalization and footnote omitted).
Houghton first argues that the trial court erred in denying his Motion to
Suppress his inculpatory statements made to Officer McCarthy because they
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
We observe that this was Houghton’s second conviction for DUI.
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occurred during a custodial interrogation, requiring Miranda warnings.5 Id.
at 12-19.
In reviewing the denial of a suppression motion,
our role is to determine whether the record supports the
suppression court’s factual findings and the legitimacy of the
inferences and legal conclusions drawn from those findings. In
making this determination, we may consider only the evidence of
the prosecution’s witnesses and so much of the defense as, fairly
read in the context of the record as a whole, remains
uncontradicted. When the evidence supports the factual findings
of the suppression court, we may reverse only if there is an error
in the legal conclusions drawn from those factual findings. As a
reviewing court, we are therefore not bound by the legal
conclusions of the suppression court and must reverse that
court’s determination if the conclusions are in error or the law is
misapplied.
Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa. Super. 2013) (brackets
and citation omitted).
This Court has explained that
[t]he legal standard of proof required by a police officer
when engaging or interacting with a citizen varies depending on
whether the citizen has been detained, and if so, the degree of
the detention and the circumstances surrounding the interaction.
There are three basic levels of interaction between citizens and
police officers, and the accompanying standard of proof needed
for each level is firmly established:
The first category, a mere encounter or request for
information, does not need to be supported by any level
of suspicion, and does not carry any official compulsion to
stop or respond. The second category, an investigative
detention, derives from Terry[6] and its progeny: such a
5
Houghton does not challenge the legality of Officer McCarthy’s initial traffic
stop for Houghton’s failure to dim his high-beam headlights. Additionally,
Houghton’s vehicle registration was expired.
6
Terry v. Ohio, 392 U.S. 1 (1968).
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detention is lawful if supported by reasonable suspicion
because, although it subjects a suspect to a stop and a
period of detention, it does not involve such coercive
conditions as to constitute the functional equivalent of an
arrest. The final category, the arrest or custodial
detention, must be supported by probable cause.
Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa. Super. 2010) (footnote
added; citations omitted); see also Commonwealth v. Korenkiewicz,
743 A.2d 958, 963 (Pa. Super. 1999) (stating that “the classification of the
interaction between police and citizen determines the scope of applicable
constitutional protections.”).
In the instant case, it is undisputed that the interaction between
Houghton and Officer McCarthy was not a mere encounter. At issue is
whether the interaction was an investigative detention, which does not
require the provision of Miranda warnings, or a custodial detention, to
which the dictates of Miranda attach. See Commonwealth v. Murray,
936 A.2d 76, 81 (Pa. Super. 2007) (stating that “[i]t is well-established that
the dictates of Miranda do not attach during an investigatory detention.”
(citation and quotation marks omitted)); see also Commonwealth v.
Kunkle, 79 A.3d 1173, 1179 (Pa. Super. 2013) (stating that “[t]he Miranda
safeguards come into play whenever a person in custody is subjected to
either express questioning or its functional equivalent.” (citation omitted)).
Regarding investigative detentions, this Court has explained that
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. In other words, in
view of all the circumstances, if a reasonable person would have
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believed that he was not free to leave, then the interaction
constitutes an investigatory detention. 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, supra.
Cauley, 10 A.3d at 325-26 (footnote, citations and quotation marks
omitted).
Additionally, we have observed that
[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.
Rather, the officer may conduct a brief, investigatory stop to
maintain the status quo temporarily while obtaining more
information. …
The factors considered to determine whether a detention is
investigative or custodial include:
the basis for the detention (the crime suspected and the
grounds for suspicion); the duration of the detention; the
location of the detention (public or private); whether the
suspect was transported against his will (how far, why);
the method of detention; the show, threat or use of
force; and, the investigative methods used to confirm or
dispel suspicions.
Commonwealth v. Pizarro, 723 A.2d 675, 681 (Pa. Super. 1998)
(citations and quotation marks omitted). Moreover, we have held that “[t]he
mere fact that an individual is subjected to a stop and a period of detention
during which the individual is subject to the control of the police and is not
free to leave (a seizure) does not render such detention necessarily
‘custodial’ so as to require Miranda warnings.” Commonwealth v. Ellis,
549 A.2d 1323, 1331-32 (Pa. Super. 1988) (citing Michigan v. Long, 463
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U.S. 1032, 1051 (1984) (stating that “[d]uring any investigative detention,
the suspect is “in the control” of the officers in the sense that he may be
briefly detained against his will[.]”)).
Houghton summarizes his argument in connection with this claim as
follows:
[Houghton’s] statements to Officer McCarthy that he “just
chugged three beers” and “knew he would fail that thing” were
made during custodial interrogation without the provisions of the
Miranda warnings and therefore improperly admitted at trial.
By telling [Houghton] that he would not be free to go home at
the conclusion of the roadside encounter due to [Houghton’s]
performance on [the FSTs] already conducted, [O]fficer
[McCarthy] conveyed to [Houghton] his obvious intent to arrest
[Houghton] for [DUI]. Therefore, [Houghton] was in custody for
Miranda purposes when he subsequently made the statements
at issue.
[Houghton] was subject to interrogation at the time of his
statements because [O]fficer [McCarthy] should have known
that his conduct in presenting [Houghton] with the PBT, telling
him that he would not be free to go home due to his
performance on the [FSTs], and advising him that as long he had
been honest about not having anything to drink, would have
been likely to evoke an effort on the part of [Houghton] to
defend himself. This is especially so since [O]fficer [McCarthy]
did not believe [Houghton] was being honest about not having
anything to drink, and made the decision to arrest before
presenting [Houghton] with the PBT.
Brief for Appellant at 12.
It is undisputed that Officer McCarthy conducted a routine, legal traffic
stop of Houghton’s vehicle for a violation of the Motor Vehicle Code
(hereinafter “the Code”). While speaking with Houghton, Officer McCarthy
detected a strong odor of alcohol coming from Houghton’s person, and
observed that Houghton had glassy, bloodshot eyes. N.T., 4/17/13, at 18.
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At that point, Officer McCarthy had reasonable suspicion that Houghton was
driving under the influence of alcohol,7 and began investigating whether
Houghton was intoxicated to an extent above the legal limit, thus turning the
interaction into an investigative detention. Officer McCarthy asked Houghton
to perform three FSTs, two of which he failed. Id. at 20-24. Officer
McCarthy then withdrew a PBT from his pocket, in response to which
Houghton spontaneously stated, “Do I have to take that?” Id. at 24. Officer
McCarthy responded in the negative, and informed Houghton that if he
refused the PBT, he would be taken to the hospital for a test of his blood
alcohol content (“BAC”). Id. Houghton then asked Officer McCarthy, “so
then if I take [the PBT], I get to go home?[,]” to which Officer McCarthy
replied “that was not the case due to the fact that [Houghton] had not
performed well on … two of the [FSTs].” Id. at 26-27. According to
Houghton, at this point, the interaction changed from an investigative
detention into a custodial detention, requiring Miranda warnings, because
“[O]fficer [McCarthy] conveyed to [Houghton] his obvious intent to arrest
[Houghton] for [DUI,]” and, therefore, Houghton’s subsequent statements
that he had “chugged three beers” and “knew he would fail [the PBT]”
should have been suppressed. Brief for Appellant at 12; see also N.T.,
4/17/13, at 27. We disagree.
7
Houghton does not contest that Officer McCarthy had reasonable suspicion
to investigate whether he was intoxicated.
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The record reveals that Officer McCarthy did not place Houghton under
arrest and take him into custody until he failed the PBT. This was after
Houghton had made his inculpatory statements. From the totality of the
circumstances, we determine that the interaction that occurred before
Officer McCarthy took Houghton into custody was not so coercive as to
constitute the functional equivalent of an arrest. See Cauley, supra.
Specifically, Officer McCarthy (1) detained Houghton for a brief period of
time to investigate a potential DUI; (2) conducted the traffic stop and
investigation in a public parking lot; (3) did not physically restrain Houghton
in any way; (4) never threatened to or used any force during the
interrogation; and (5) used routine FSTs commonly used in such situations
to confirm or dispel his suspicions of DUI. See Pizarro, supra (setting forth
the factors to consider when determining whether a detention is
investigative or custodial). Accordingly, at the time of Houghton’s
inculpatory statements, the interaction was still an investigative detention,
and Officer McCarthy was therefore not required to read Houghton his
Miranda rights at that time.8 See Murray, supra; Ellis, supra. Moreover,
contrary to Houghton’s argument, the fact that Officer McCarthy stated to
Houghton that he would not be permitted to go home if he performed the
8
Since we determine that Houghton was not in custody, it is not necessary
to engage in a discussion of whether Officer McCarthy’s questioning
constituted interrogation.
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PBT did not, in itself, convert the interaction into a custodial detention.9 See
Commonwealth v. Gommer, 665 A.2d 1269, 1274 (Pa. Super. 1995)
(holding that a police interaction with a motorist suspected of DUI
constituted an investigative detention, even though the police officer had
taken possession of the appellant’s car keys following the traffic stop, where
(a) the officer had observed the appellant driving erratically and had
reasonable suspicion that the appellant was under the influence; (b) the
subsequent investigative detention was brief; (c) the officer did not threaten
or use force; and (d) the officer did not interrogate the appellant); see also
Ellis, 549 A.2d at 1331 (stating that “every traffic stop and every Terry
stop involves a stop and a period of time during which the suspect is not free
to go but is subject to the control of the police officer detaining him.”).
Therefore, the trial court properly refused to suppress Houghton’s
inculpatory statements.
Next, Houghton argues that the evidence was insufficient to convict
9
We observe that after Officer McCarthy made this statement, he also
stated to Houghton, regarding taking the PBT, “if he [Houghton] had been
being honest with me about not having anything to drink, then everything
would go smoothly.” N.T., 4/17/13, at 27.
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him of DUI under section 3802(a)(1)10 of the Code because the
Commonwealth failed to prove that his alleged consumption of “three beers”
rendered him incapable of safe driving. See Brief for Appellant at 18-19
(citing, inter alia, Commonwealth v. Rosko, 509 A.2d 1289, 1291 (stating
that “[i]n order to convict [a]ppellant of a violation of [the predecessor
statute to section 3802(a)(1)], the Commonwealth must prove not only that
[a]ppellant had been driving but that he was ‘under the influence of alcohol
to a degree which renders the person incapable of safe driving.’” (emphasis
in original))). According to Houghton, “there was no evidence presented to
establish a nexus between [Houghton’s] consumption of alcohol, and his
ability to safely drive,” in that (1) Officer McCarthy did not observe
Houghton driving erratically; (2) Officer McCarthy testified that Houghton did
not slur his speech or stumble when he got out of the car; (3) Houghton
passed one of the three FSTs; and (4) “the Commonwealth [did not] present
any evidence or testimony that [Houghton’s] inability to perform [the
remaining FSTs was] related to his inability to safely operate a vehicle.”
Brief for Appellant at 20-21.
10
Section 3802(a)(1) provides that “[a]n individual may not drive, operate
or be in actual physical control of the movement of a vehicle after imbibing a
sufficient amount of alcohol such that the individual is rendered incapable of
safely driving, operating or being in actual physical control of the movement
of the vehicle.” 75 Pa.C.S.A. § 3802(a)(1); see also Commonwealth v.
Kerry, 906 A.2d 1237, 1241 (Pa. Super. 2006) (stating that “Section
3802(a)(1) … is a general provision and provides no specific restraint upon
the Commonwealth in the manner in which it may prove that an accused
operated a vehicle under the influence of alcohol to a degree which rendered
him incapable of safe driving.” (citation and quotation marks omitted)).
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We apply the following standard of review when considering a
challenge to the sufficiency of the evidence:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact[,] while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all,
part or none of the evidence.
Commonwealth v. Melvin, 2014 Pa. Super. 181, at *83 (Pa. Super. 2014)
(citation omitted).
The Code provides, regarding a motorist’s refusal to submit to a BAC
test, as follows:
In any summary proceeding or criminal proceeding in which the
defendant is charged with a violation of section 3802 …, the fact
that the defendant refused to submit to chemical testing … may
be introduced in evidence along with other testimony concerning
the circumstances of the refusal. No presumptions shall arise
from this evidence but it may be considered along with other
factors concerning the charge.
75 Pa.C.S.A. § 1547(e).
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Here, the evidence established that (a) Houghton violated the Code by
having his high beams activated when passing Officer McCarthy; (b) Officer
McCarthy detected a strong odor of alcohol emanating from Houghton’s
person, and noticed that he had bloodshot, glassy eyes; (c) Houghton failed
two of the three FSTs; (d) Houghton admitted to having “chugged three
beers” prior to driving; and (e) Houghton refused to submit to a test of his
BAC at the hospital. We conclude that all of this evidence was amply
sufficient to support Houghton’s conviction of DUI, and the trial court
therefore properly rejected Houghton’s sufficiency challenge. See
Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (holding
that the evidence was sufficient to sustain the appellant’s conviction of DUI
where the appellant (a) violated the Code by coasting through a stop sign;
(b) smelled of alcohol; and (c) failed four separate FSTs). Moreover, to the
extent that Houghton points to the lack of evidence of any erratic driving on
his part, this Court has stated that “[e]vidence of erratic driving is not a
necessary precursor to a finding of guilt under [section 3802(a)(1)]. The
Commonwealth may prove that a person is incapable of safe driving through
the failure of a field sobriety test.” Id.
Accordingly, because we conclude that the trial court properly denied
Houghton’s Motion to Suppress, and there was sufficient evidence to support
his DUI conviction, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Allen, J., joins the memorandum.
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Jenkins, J., files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2014
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