Com. v. Foster, S. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SAMUEL CARROLL FOSTER,
Appellant No. 1693 EDA 2014
Appeal from the Judgment of Sentence April 25, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004626-2012
BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 08, 2016
Samuel Carroll Foster (“Appellant”) appeals from the judgment of
sentence imposed in this road-rage incident after the trial court found him
guilty of two counts of driving under the influence (“DUI”).1 On appeal,
Appellant argues that the suppression court erred in admitting statements
he made at the scene, evidence of his blood alcohol content (“BAC”), and
contraband found in his vehicle. We affirm.
The trial judge, who presided over the suppression hearing and the
bench trial, made the following findings of fact:
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1
Appellant was convicted of 75 Pa.C.S. § 3802(d)(1)(i) (any amount of a
schedule I controlled substance), and § 3802(d)(3) (combination of drugs
and alcohol).
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Trooper Gibson has been employed by the Pennsylvania
State Police since February 2009, and was stationed at Troop K
Media barracks.
This Trooper had received education and/or training
regarding Driving Under the Influence (DUI) at the State Police
Academy. And, has on almost a weekly basis observed people
under the influence of alcohol and/or drugs.
This Trooper has been trained at the Academy in
conducting field sobriety tests and has administered hundreds of
such tests in his career.
Trooper Gibson was uniformed and on duty on March 9,
2012 at approximately 10:31 p.m. while operating a marked
State Police vehicle in a southbound direction on the Media by-
pass where it approached the intersection with Baltimore Pike.
At the trooper’s vantage point he observed a white Chevy
minivan proceeding southbound when it drove off the improved
roadway and onto the left hand earthen berm.
Believing the minivan had just crashed, he activated his
vehicle’s overhead emergency lights and siren and drove
southbound on the bypass to where the white vehicle was
located. Upon his arrival he could see the minivan was still in
motion on the left shoulder of the road. And, immediately
behind the minivan was a black truck, also on the left shoulder
of the road.
[Upon] his arrival at the scene the Trooper exited his
vehicle and heard shouting voices as he proceeded around the
back of the black truck. After rounding the truck he saw
[Appellant] exiting his truck shouting at the driver of the
minivan, who was also out of his vehicle.
The driver of the minivan had his hands raised at chest
level and his body squared with [Appellant] while they were
arguing. Simultaneously the Trooper saw [Appellant] reaching
into [Appellant’s] right rear pants pocket with his right hand
while advancing towards the minivan driver[;] the Trooper
believed that if he did not intercede a physical assault was
imminent. All the while the Trooper was repeating orders for the
two [men] to disengage, which went ignored. The Trooper had
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to finally draw his weapon to get the two drivers to comply, and
get down on the ground before the Trooper hand cuffed both
men.
After both drivers were hand cuffed Trooper Gibson found
a knife in [Appellant’s] right rear pants pocket.
Once the scene was secured Trooper Gibson asked
[Appellant] cursory questions of what was going on. While
[Appellant] was informing [the trooper] of how the minivan
driver was driving[, the trooper] noticed a strong odor of alcohol
emanating from [Appellant’s] breath. The Trooper also noticed
that [Appellant’s] speech was slurred, and while standing
(unrestrained) [Appellant] was swaying with unsure footing.
Trooper Gibson entered [Appellant’s] truck and moved it
further off the road for safety reasons.
While moving [Appellant’s] truck [the Trooper] noticed in
plain view a wooden box on the center console which he
recognized as [a] container to conceal a controlled substance.
Once the Trooper ascertained there was no safety threat to
himself, the other responding officers and the general public[,]
the hand cuffs were removed from both drivers.
After [Appellant] was unrestrained Trooper Gibson
informed [Appellant] that he wanted to make sure [Appellant]
could safely operate his vehicle and asked him to perform
several field sobriety tests[,] which [Appellant] failed.
[Appellant] testified that he feared if he failed the field
test(s) he would then be arrested.
After failing the field tests [Appellant] was offered a
portable breath test, which [Appellant] voluntarily consented to
and performed the test as instructed. The test results indicated
he was over the limit.
Thereafter, [Appellant] was placed under arrest and
Trooper Gibson read [Appellant] the DL-26 form.
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[Appellant] informed Trooper Gibson that he understood
the DL-26 form and voluntarily consented to have the blood test
performed.
After [Appellant] was placed under arrest Trooper Gibson
performed the required custodial inventory search of
[Appellant’s] vehicle before it was to be towed.[2] This search
would have inevitably yielded the discovery of [Appellant’s] drug
paraphernalia containing suspected marijuana had it not already
been seen in plain view.
Trial Court Opinion, 12/23/14, at unnumbered 4–6 (internal citation
omitted).
Appellant filed an omnibus pretrial motion on October 25, 2012,
seeking suppression of his statements that he had been drinking at the
Veterans of Foreign War club and that the marijuana was his, as well as
suppression of the contraband and BAC evidence. Following a hearing on
January 11, 2013, the suppression court denied Appellant’s motion. Order,
5/13/13. At a bench trial on December 16, 2013, the following evidence
was admitted as stipulated facts: Affidavit of Probable Cause, Incident
Report, Preliminary Hearing Notes of Testimony, Suppression Notes of
Testimony, PennDoT Form DL-26 signed by Appellant; Drugscan Lab Report,
and the chain of custody of Appellant’s blood and test results. The
documentation indicated that Appellant’s BAC was 0.108% at the time his
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2
At Appellant’s preliminary hearing, defense counsel attempted to cross-
examine Trooper Gibson regarding the presence of a tow truck at the scene.
The Commonwealth objected because the questions were beyond the scope
of direct examination. The magisterial district justice sustained the
Commonwealth’s objection. N.T. (Preliminary Hearing), 7/17/12, at 30.
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blood was collected, and his blood tested positive for marijuana, a Schedule
I controlled substance. After finding Appellant guilty, the trial court imposed
a sentence of six months of intermediate punishment. Order, 1/9/14;
Order, 4/25/14. Appellant filed a timely notice of appeal. Appellant and the
trial court have complied with Pa.R.A.P. 1925.
Appellant presents one question for our consideration, which we
paraphrase as follows: “Did the suppression court err in admitting
Appellant’s statements and contraband evidence?” Appellant’s Brief at 4. In
addressing a challenge to the denial of a suppression motion, our standard
of review:
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.[3] 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. Where . . . the appeal of
the determination of the suppression court turns on allegations
of legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if
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3
Our Supreme Court prospectively applied a new rule regarding the scope
of review in suppression matters in In re L.J., 79 A.3d 1073 (Pa. 2013).
Specifically, the L.J. Court clarified that an appellate court’s scope of review
in suppression matters includes the suppression hearing record and not
evidence elicited at trial. Id. at 1087. Because the suppression hearing in
the case sub judice predates the decision in L.J., that holding has no bearing
on our review. Commonwealth v. Hale, 85 A.3d 570 (Pa. Super. 2014).
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the suppression court properly applied the law to the facts.
Thus, the conclusions of law of the courts below are subject to
our plenary review.
Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations
omitted)).
Arguing for suppression, Appellant describes a very dramatic scene
involving a rookie state trooper, deadly force, no jacket in thirty-nine-degree
weather, asthma, lost police cruiser video footage, an unlawful arrest, and
an illegal vehicle search. Contrarily, the suppression court found Trooper
Gibson’s version of events to be credible. Trial Court Opinion, 12/23/14, at
unnumbered 1, 4, and 6. According to the suppression court:
Trooper Gibson, accordingly, restrained both drivers while
he conducted a temporary investigative detention.
During an investigative detention Trooper Gibson was free
to briefly stop, detain, and question the suspects, as he did with
[Appellant].
Once the scene was secured and the police had
ascertained what had occurred, both drivers were unrestrained.
Due to all the observations by Trooper Gibson, [he] had
reasonable suspicion that [Appellant] was impaired, thus
[Appellant] was subjected to field sobriety tests[,] which he
failed.
Thereafter, [Appellant] was arrested.
[Appellant] voluntarily consented to be subjected to a
blood test to ascertain the level of alcohol in his blood.
Pennsylvania courts have long recognized that police are
justified in investigating a situation, so long as the police
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officer(s) reasonably believe that criminal activity is afoot.
Commonwealth v. Melson, 556 A.2d 836 (Pa. Super. 1989).
Likewise, it is well established that “the dictates of Miranda do
not attach during an investigatory detention.” Commonwealth v.
Kondash, 808 A.2d 943, 948 (Pa. Super. 2002).
In the instant case Trooper Gibson had reasonable
suspicion that criminal activity was afoot; and his original
investigatory detention of [Appellant] was appropriate. Since an
investigatory detention does not trigger Miranda requirements
[Appellant’s] statements made during the investigatory
detention were properly admissible.
When Trooper Gibson smelled a strong odor of alcohol on
[Appellant’s] breath, observed [Appellant’s] slurred speech and
unsure footing[,] there is no question that he had sufficient
probable cause under 75 Pa. C.S.A. 1547 to believe [Appellant]
was operating his vehicle under the influence of alcohol.
Participation in a breathalyzer test (or field sobriety test) is not
the equivalent of an interrogation, nor is it a criminal proceeding.
Commonwealth v. Mordan, 615 A.2d 102 (Pa. Super. 1992).
During an interrogation, the objective is to obtain incriminating
statements. Id. “Requiring a driver to perform physical tests or
to take a breath analysis test does not violate the privilege
against self-incrimination because the evidence procured is of a
physical nature rather than testimonial, and therefore, no
Miranda warnings are required.” Commonwealth v. Benson, 421
A.2d 383, 387 (Pa. Super. 1980).
As a condition of maintaining a driver’s license in
Pennsylvania, all drivers are subject to the implied consent
requirements of the Motor Vehicle Code and must submit to
blood and breath tests under appropriate circumstances.
Commonwealth v. O’Connell, 555 A.2d 873, 877 (Pa. 1989).
Where an officer has reasonable grounds to believe that a
motorist is driving while under the influence of alcohol, the driver
may properly be requested to submit to a chemical test of blood,
breath or urine to determine the alcoholic content of the blood.
Commonwealth v. McFarren, 525 A.2d 1185 (Pa. 1987). Neither
the Fourth Amendment bar against unreasonable searches and
seizures nor Fifth Amendment privilege against self-incrimination
prevents the Commonwealth from requiring a driver to submit to
a breathalyzer test. Commonwealth v. Hipp, 551 A.2d 1086 (Pa.
Super. 1988).
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In the instant case Trooper Gibson had reasonable
suspicion that [Appellant] was operating his vehicle while under
the influence, accordingly, his request for field sobriety tests,
breathalyzer test and blood analysis were appropriate as a
matter of law. Further, in addition to the implied consent to
submit to testing, [Appellant] freely gave actual consent to
submit to the requested tests.
Accordingly, all the test results were properly admissible.
Trial Court Opinion, 12/23/14, at unnumbered 6–8.
In support of his position, Appellant first contends that all of the
evidence should have been suppressed because his arrest was illegal.
Appellant’s Brief at 17. According to Appellant, the trooper lacked
reasonable suspicion when he first arrived at the scene. Id. at 18.
Appellant further argues that Trooper Gibson lacked probable cause to arrest
him because the only evidence of suspected impairment was the odor of
alcohol on Appellant’s breath, which evidence was obtained after the trooper
had placed Appellant in handcuffs. Id. at 18–19.
The Commonwealth responds that Trooper Gibson had reasonable
suspicion to investigate the situation unfolding between Appellant and the
other driver on the side of a busy highway. Commonwealth’s Brief at 10.
The Commonwealth further argues that the initial interaction between
Appellant and Trooper Gibson was a stabilization of the volatile situation and
an investigatory detention. Id. at 10–15. As Trooper Gibson interacted with
Appellant, the Commonwealth asserts, probable cause ripened based on
Appellant’s breath, unstable balance, failure of field sobriety tests, and the
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results of the breathalyzer test. Thus, the Commonwealth concludes,
Appellant’s arrest was lawful. Id. at 16–19.
Upon review, we agree with the Commonwealth. The suppression
court found, and the record confirms, that Trooper Gibson responded to
what he believed was a traffic accident. Criminal Complaint (Affidavit of
Probable Cause), 4/3/12, at 6; N.T. (Preliminary Hearing), 7/17/12, at 5, 9;
N.T. (Suppression), 1/11/13, at 13, 48. Upon arriving at the scene, Trooper
Gibson had reasonable suspicion to believe that criminal activity was afoot
when he observed Appellant reaching for his back pants pocket as he
shouted at and moved toward the other driver. N.T. (Preliminary Hearing),
7/17/12, at 5–8; N.T. (Suppression), 1/11/13, at 18–20, 52–53.
Additionally, as Trooper Gibson interacted with Appellant, the trooper had
probable cause to believe that Appellant was impaired based on his breath,
slurred speech, instability, field sobriety tests, and breathalyzer test. N.T.
(Preliminary Hearing), 7/17/12, at 9–12; N.T. (Suppression), 1/11/13, at
22, 25–31, 32–34. Thus, we conclude that Appellant’s arrest was legal.
Next, Appellant asserts that his statements should have been
suppressed because Trooper Gibson did not administer Miranda4 warnings.
According to Appellant, he was placed under arrest when Trooper Gibson
handcuffed him; therefore, any statements or evidence obtained after that
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4
Miranda v. Arizona, 384 U.S. 436 (1966).
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point were unlawful because the trooper did not advise Appellant of his
constitutional rights. Appellant’s Brief at 20. Contrarily, the Commonwealth
contends that Appellant’s formal arrest did not occur until after the
breathalyzer test; therefore, Appellant’s pre-arrest statements were not
subject to Miranda warnings. Commonwealth’s Brief at 21–24 (citing
Commonwealth v. Pakacki, 901 A.2d 983, 988 (Pa. 2006)).
Again, we agree with the Commonwealth. Our Supreme Court “has
declined to hold that every time an individual is placed in handcuffs that
such individual has been arrested.” Commonwealth v. Guillespie, 745
A.2d 654, 660 (Pa. Super. 2000) (citing Commonwealth v. Carter, 643
A.2d 61, 67 n. 2 (Pa. 1994)). “[F]or their safety, police officers may
handcuff individuals during an investigative detention.” Commonwealth v.
Rosas, 875 A.2d 341, 348 (Pa. Super. 2005). Moreover, an investigatory
detention does not trigger Miranda warnings. Kondash, 808 A.2d at 948;
see also Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007)
(quoting Kondash).
Here, the suppression court found, and the record confirms, that
Appellant and the other driver were placed in handcuffs to maintain the
status quo and to stabilize a volatile situation. N.T. (Preliminary Hearing),
7/17/12, at 9; N.T. (Suppression), 1/11/13, at 20, 23, 58. Additionally,
Appellant was not under arrest until the breathalyzer test results indicated
that his BAC was above the legal limit; at that point, Trooper Gibson read
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Appellant the implied consent warning. Criminal Complaint (Affidavit of
Probable Cause), 4/3/12, at 6–7; N.T. (Preliminary Hearing), 7/17/12, at
11–12; see also N.T. (Suppression), 1/11/13, at 123 (Appellant testified
that he was not under arrest until after the breathalyzer test). As discussed
above, Trooper Gibson’s original investigatory detention of Appellant was
appropriate. Because an investigatory detention does not trigger Miranda
warnings, Appellant’s statements made during the investigatory detention
were admissible. Kondash, 808 A.2d at 948; Murray, 936 A.2d at 81.
Thus, Appellant’s contrary claim lacks merit.
Appellant’s third argument is that the contraband evidence should
have been suppressed because the warrantless search of his vehicle was
illegal. Appellant contends that Trooper Gibson did not conduct an inventory
search and no exigent circumstances existed that would justify the trooper’s
search of Appellant’s truck. Appellant’s Brief at 21. The Commonwealth
points out that Trooper Gibson did not charge Appellant with any drug
offenses; therefore, any argument regarding the wooden box, the trooper’s
subsequent search of the vehicle, and recovery of suspected marijuana is
moot. Commonwealth’s Brief at 19. Alternatively, the Commonwealth
submits that the contraband was in plain view, recovered during a valid
inventory search, and subject to the inevitable discovery doctrine. Id. at
19–21 (citing Commonwealth v. Brown, 368 A.2d 626, 631 (Pa. 1976)).
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Our review of the record confirms that Appellant was not prosecuted
for or convicted of any drug offenses. Criminal Complaint, 4/3/12, at 2–4;
Judgment of Sentence, 4/25/14. Consequently, evidence of the wooden box
and marijuana did not contribute to his convictions, which were based on the
breathalyzer test results and the blood test results. Criminal Complaint
(Affidavit of Probable Cause), 4/3/12, at 6–7; N.T. (Preliminary Hearing),
7/17/12, at 11, 13–16, Exhibit C-1.
Moreover, “evidence that ultimately or inevitably would have been
recovered by lawful means should not be suppressed despite the fact that its
actual recovery was accomplished through illegal actions.” Commonealth
v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009). Here, the suppression
court found and the record confirms that:
the drug paraphernalia was located on [Appellant’s] vehicle’s
[console] between the front seats, in plain view. However, even
if the discovery of this drug paraphernalia was initially “illegal”
the Commonwealth adequately proved it would have been
inevitably discovered in the subsequent legal inventory search
which was performed on [Appellant’s] vehicle subsequent to
[Appellant’s] lawful arrest.
Trial Court Opinion, 12/23/14, at unnumbered 9. Thus, we conclude that
Appellant’s contraband challenge warrants no relief.
Appellant next argues that all of the evidence should have been
suppressed because the trooper obtained it through coercion. Appellant’s
Brief at 25. According to Appellant, “[a]ll acts and behavior by the Trooper
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in the instant case had the primary goal to elicit incriminating responses
from Appellant, while Appellant was not free to go.” Id. at 27.
We consider this argument to be a challenge to the weight of the
Commonwealth’s evidence, an elevation of Appellant’s version of events over
Trooper Gibson’s version. We reiterate, “It is within the suppression court’s
sole province as factfinder to pass on the credibility of witnesses and the
weight to be given their testimony.” Commonwealth v. Gallagher, 896
A.2d 583, 585 (Pa. Super. 2006). As an appellate court, we cannot
substitute our judgment for that of the finder of fact. Commonwealth v.
Champney, 832 A.2d 403, 408 (Pa. 2003). Here, the suppression court
found Trooper Gibson’s testimony to be credible. Trial Court Opinion,
12/23/14, at unnumbered 1, 4, and 6. We shall not re-weigh the evidence
and substitute our judgment for that of the suppression court. Gallagher,
896 A.2d at 585; Champney, 832 A.2d at 408.
Finally, Appellant concludes that all of the evidence should have been
suppressed based on the totality of the circumstances. Appellant’s Brief at
27. According to Appellant, “[t]he record shows that a pattern of
increasingly deficient and illegal methods used by the arresting Trooper
compelled the logical conclusion to suppress the evidence.” Id. at 27–28.
We agree with Appellant that a suppression court is required to “take
into account the totality of the circumstances—the whole picture.”
Navarette v. California, ___ U.S. ___, 134 S.Ct. 1683 (2014). However,
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we disagree that suppression was warranted in light of the totality of the
circumstances at hand. The record supports the suppression court’s
findings, and its legal conclusions are without error. Therefore, Appellant’s
final challenge fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/2016
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