Com. v. Booker, D.

J-A01020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOMINICK BOOKER :
:
Appellant : No. 2700 EDA 2016
Appeal from the Judgment of Sentence July 15, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002555-2014
BEFORE: LAZARUS, J., OTT, J., and PLATT*, J.
CONCURRING STATEMENT BY LAZARUS, J.: FILED JULY 23, 2018
I agree with the Majority’s disposition. I write separately to voice my
concern with the suppression issue in this case. Police questioned Appellant
while he was immobilized due to medical necessity. As the Majority points
out, Appellant argues that “numerous police officers surrounded” him and
questioned him in the back of an ambulance without providing Miranda
warnings. Majority Opinion, at 8. The cases on which the Majority relies
support its determination that since the restraints on Appellant’s freedom were
a result of his medical condition, not police action, there was nothing coercive
about the conversation police had with Appellant while in the ambulance. See
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A01020-18
Johnson, supra;1 Fento, supra. See also Commonwealth v. Perry, 710
A.2d 1183 (Pa. Super. 1998) (defendant not subject to custodial interrogation
requiring Miranda warnings when trooper questioned him in emergency room
following automobile accident, even though defendant was immobilized on
gurney and had intravenous tubes in arms; trooper went to hospital to gather
information about accident pursuant to standard police procedure, questioning
____________________________________________
1 I note that the Majority’s citation to Johnson refers to the statement
Johnson gave while in an ambulance. However, Johnson challenged four
different statements he made to police and, with respect to the statement
made while in the ambulance, the Supreme Court specifically noted that
appellant “does not claim that this questioning amounted to a custodial
interrogation requiring Miranda warning.” Id. (emphasis added). Rather,
Johnson argued that his physical condition was so severe that “any statement
given to police was not given knowingly, voluntarily, and intelligently.” Id.
The Court went on to hold that the totality of the circumstances did not support
a determination “that this noncustodial interrogation resulted in an involuntary
confession [.]” Id. (emphasis added) In that same case, however, the Court
did examine another of Johnson’s statements, this one given to police while
he was in the hospital, which he challenged on the basis of custodial
interrogation given without Miranda warnings. With respect to that
statement, the Court concluded:
[Johnson’s] inability to leave was not the result of any action of
restraint by the police, but was due to his physical condition at the
time. Although the officers displayed their badges, they were not
in uniform and conducted the interview with the hospital door
open and while another patient was in the room with Appellant.
There was no suggestion by Appellant that he wanted police
questioning to cease, or that he objected to the questioning.
Id. at 1100. Similarly, in Fento, supra, this Court held that where a trooper
questioned a driver in the hospital as part of routine accident investigation,
there was no custodial interrogation. The Fento Court stated that the only
restraints placed on the defendant were created by his own medical condition
as the result of the accident rather than any coercive action on the part of
police. Fento, 526 A.2d at 787.
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J-A01020-18
was not lengthy, trooper noticed “first hand” odor of alcohol on defendant’s
breath and questioned him in that regard, defendant’s family and medical staff
were present, and at no point prior to issuance of Miranda warning did
defendant ask for questioning to stop).
I note, however, that the Majority has not examined the “overlying test
to determine whether a person is being subjected to a custodial interrogation
necessitating Miranda warnings[-] whether 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. Turner, 772 A.2d 970, 973 (Pa.
Super. 2001). It is true the police did not “force” Appellant to remain where
he was, although physically he was unable to leave. The case law indicates
that if a person’s confinement or restriction is medically necessary, and not
the result of police action, the inquiry into the reasonable impression conveyed
to the person interrogated is unnecessary. In my view, however, it is equally
likely that a reasonable person in Appellant’s situation would nevertheless
believe he is in custody, particularly here, where Appellant argues police
suspected he was the shooter and their questions were likely to elicit an
incriminating response. Because this Court is bound by prevailing precedent,
I concur.
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