Com. v. Priovolos, E. ( 2020 )

J. A21032/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 884 EDA 2020
:
ERNEST PRIOVOLOS :
Appeal from the Orders Entered February 5, 2020,
and February 26, 2020,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0005571-2018
BEFORE: LAZARUS, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 15, 2020
The Commonwealth appeals1 from the February 5 and February 26,
2020 orders, granting, in part, the omnibus pre-trial suppression motion filed
by appellee, Ernest Priovolos. After careful review, we reverse the
suppression orders and remand for proceedings consistent with this
memorandum.
The suppression court’s extensive findings of fact, in relevant part, are
as follows:
21. On August 2, 2018, at approximately
12:04 a.m. Officer [Ryan] Crescenzo was on
duty in a marked patrol car in the area of Easton
1 The Commonwealth certified, pursuant to Pa.R.A.P. 311(d), that the
suppression court’s February 5 and February 26, 2020 orders will terminate
or substantially handicap the prosecution.
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Road and Bristol Road, Warrington Township,
Bucks County, Pennsylvania.
....
23. At that date and time, Officer Crescenzo
observed a white Ford pickup truck travelling on
Easton Road with an inoperable third brake
light.
24. Officer Crescenzo observed the pickup truck
slowing down at the traffic light at the
intersection and make a legal right hand turn
onto eastbound Bristol Road.
25. There is no shoulder on Bristol Road at that
location.
26. Officer Crescenzo followed the pickup truck, at
which point the pickup truck turned into the
parking lot of a restaurant, Villa Barolo, which
was approximately a couple hundred feet from
the intersection.
27. After the pickup truck began turning into the
parking lot, Officer Crescenzo activated the
overhead emergency lights on his patrol car and
initiated a traffic stop.
28. Officer Crescenzo initiated the vehicle stop
because of the inoperable third brake light.
29. When Officer Crescenzo initiated the vehicle
stop, he had no knowledge that [appellee] had
been previously stopped for the same motor
vehicle code violation.
30. The pickup truck initially pulled into the
Villa Barolo parking lot, but then continued
driving forward in the parking lot as
Officer Crescenzo was placing his patrol car in
park.
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31. Officer Crescenzo then followed the pickup truck
to maintain proper distance, at which point the
pickup truck driver slammed on the brakes and
exited the vehicle and began screaming at
Officer Crescenzo, “Why did you pull me over?”
32. [Appellee] was the driver of the pickup truck.
33. After exiting the pickup truck, [appellee] walked
toward Officer Crescenzo’s vehicle, at which
point Officer Crescenzo exited his patrol car.
34. After repeated requests by Officer Crescenzo for
[appellee] to return to his vehicle, [appellee]
finally complied and got back into his vehicle.
35. Officer Crescenzo observed that [appellee] was
“extremely sweaty [and] dripping sweat,” and
that he exhibited erratic emotions[,] which
fluctuated from being uncooperative, extremely
agitated and angry, to being compliant and
apologetic.
....
39. After [appellee] returned to his vehicle,
Officer Crescenzo approached [appellee] and
asked him to produce his driver’s license and
vehicle registration.
40. [Appellee] was unable to produce his license or
registration, and provided the excuse that his
license was stolen and he had just recently
placed the registration tags on the vehicle.
41. In lieu of his license, [appellee] provided
Officer Crescenzo with a health card containing
his name and date of birth.
42. In response to Officer Crescenzo’s inquiry,
[appellee] stated he was coming from work and
going home.
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43. Officer Crescenzo observed that [appellee’s]
face appeared “droopy” and that [appellee]
began chewing a piece of gum.
44. After obtaining [appellee’s] name and date of
birth, Officer Crescenzo ran that information
through his mobile data terminal, which
revealed that [appellee] had an active arrest
warrant out of Philadelphia.
45. Officer Crescenzo returned to [appellee], at
which time Officer [Aaron] Menzies and two
other police officers, Officer [Jay] Aita, and
Sergeant [Glen] Gothenburg, arrived on the
scene.
46. [Appellee] was asked to exit his vehicle and
Officer Crescenzo asked [appellee] to perform
the walk-and-turn, one-leg stand and the
fingertip-to-nose field sobriety tests.
47. Despite the chewing gum that [appellee] had
recently begun chewing, Officer Crescenzo was
able to smell the odor of alcohol emanating from
[appellee].
48. When Officer Crescenzo asked [appellee] to
remove the chewing gum from his mouth, the
odor of alcohol increased as [appellee] spoke.
49. Officer Crescenzo further observed that
[appellee’s] eyes were extremely glassy and
bloodshot, and [appellee] was “sweating.”
50. From his observations of [appellee],
Officer Crescenzo believed, from his training
and experience, that [appellee] was impaired
and under the influence.
51. Although he was not asked, [appellee] stated to
Officer Crescenzo that he had a preexisting
medical injury consisting of a bad hip and that
he would have difficulty in performing the field
sobriety tests.
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52. Officer Crescenzo asked [appellee] to first
perform the walk-and-turn, or heel-to-toe, field
sobriety test.
53. Officer Crescenzo testified that [appellee]
understood the instructions but then had
difficulty in performing the test in that he failed
to take steps in a heel-to-toe fashion, fell off the
line multiple times, completed the turn
improperly and raised his arms for balance.
54. Officer Crescenzo then asked [appellee] to
perform the one-leg[-]stand field sobriety test
and count to “Thirty Mississippi.”
55. Officer Crescenzo testified that [appellee]
understood the instructions but then frequently
used his arms for balance, placed his leg on the
ground shortly after raising it, and miscounted
throughout the test.
56. Although Officer Crescenzo instructed
[appellee] to count to Thirty Mississippi when he
performed the test, when he demonstrated to
[appellee] how to count during the test,
Officer Crescenzo only counted to Twelve
Mississippi.
57. Officer Crescenzo then asked [appellee] to
perform the fingertip-to-nose field sobriety test.
58. Officer Crescenzo testified that [appellee]
indicated he understood the directions but then
failed to follow those directions by not keeping
his head back, by not closing his eyes during the
test, and then touching the bridge of his nose
instead of the tip of his nose with his pointer
finger.
59. Officer Crescenzo then asked Officer Menzies to
conduct the Horizontal Gaze Nystagmus Test
and the Modified Romaberg Balance Test with
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[appellee], and observed [appellee] perform the
tests.
60. Officer Menzies testified that while he conducted
the tests he observed a “multitude” of indicators
of impairment in [appellee], including
unsteadiness and frequent lifting of his arms for
balance.
61. Officer Menzies testified that while conducting
the Horizontal Gaze Nystagmus Test, [appellee]
had difficulty in keeping still, and
Officer Menzies had to instruct [appellee] to
hold his own chin to keep it steady so he could
focus his attention.
62. Officer Menzies testified that when he conducted
the Modified Romberg Balance Test, [appellee]
exhibited several indicators of impairment,
including eye and body tremors, and [appellee]
finished the test in either eighteen or twenty (18
or 20) seconds, and not the required thirty (30)
seconds as instructed.
63. Although [appellee] told Officer Crescenzo that
he had a hip issue, he did not indicate to
Officer Menzies that he was unable to perform
any of the requested tests or that he had any
pain in his neck or back.
64. Video recordings made by Officer Crescenzo’s
body camera and vehicle dash cam
demonstrating [appellee’s] performance of
those tests were played in court.
65. Officer Menzies testified that he observed that
[appellee] had a very hard time focusing on the
pen while performing the Lack of Convergence
Test, and [appellee] was swaying back and
forth, and exhibited eye and body tremors.
66. Officer Menzies advised Officer Crescenzo of his
observations of impairment but did not inform
him of his own opinion, as it was
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Officer Crescenzo’s responsibility to determine if
[appellee] was impaired.
67. Officer Crescenzo observed that [appellee]
performed the Modified Romberg Test in a
“significantly shorter” time than he was
instructed.
....
71. Based upon his observations of [appellee’s]
attempts to perform those tests, as well as the
totality of circumstances of this vehicle stop,
including [appellee’s] driving behavior of
slowing down, accelerating, jamming on his
brakes, exiting the vehicle, and the fluctuating
emotions he subsequently exhibited,
Officer Crescenzo formed the opinion that
[appellee] was incapable of safe driving. He
therefore placed [appellee] under arrest.
72. [Appellee] was handcuffed upon his arrest, but
he was not advised of his Miranda[2] rights.
73. After [appellee] was placed under arrest, he
asked Officer Crescenzo what the result of his
portable breathalyzer test was, and when he
was advised it was 0.077, [appellee] stated
“that is legal.”
74. After his arrest, [appellee] was placed in
Officer Crescenzo’s patrol car and thereafter
transported to the Police Station in order to
process the warrant issued out of Philadelphia.
75. During his transport to the police station,
[appellee] made statements to
Officer Crescenzo while riding in the backseat of
the patrol car.
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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76. Because it was raining heavily, [appellee] was
transported to the police headquarters in order
to read him the PennDOT Form DL-26B.
Decision and order, 2/5/20 at 4-11, ¶¶ 21, 23-35, 39-67, 71-76 (citations to
notes of testimony omitted).3
The relevant procedural history of this case, as gleaned from the
suppression court’s opinion, is as follows:
Appellee was . . . subsequently charged with various
offenses including, inter alia, [driving under the
influence of alcohol (“DUI”)], 75 Pa.C.S.[A.]
§ 3802(a)(1).[4] Appellee filed a motion to suppress
“the observations of him, his statements, field
3The suppression court set forth the following additional findings of fact in its
supplemental decision and order:
2. Prior to asking [appellee] to perform the field
sobriety tests, Officer Crescenzo asked
[appellee] if he had anything to drink that night,
and [appellee] replied “very . . . nothing,
nothing heavy duty.”
....
4. After [appellee] submitted to the preliminary
breath test, Officer Crescenzo asked [appellee],
“I thought you didn’t have anything to drink?”
to which [appellee] replied “Earlier today.”
Officer Crescenzo then asked [appellee], “When
was your last drink?” and [appellee] replied, “I’d
say about two hours ago.”
Supplemental decision and order, 2/26/20 at 2, ¶¶ 2, 4 (citations omitted).
4Appellant was also charged with the summary offenses of operating a vehicle
without proper rear lighting, operating a vehicle without an official certificate
of inspection, failure to carry vehicle registration, and failure to carry and
exhibit a driver’s license on demand. See 75 Pa.C.S.A. §§ 4303(b), 4703(a),
1311(b), and 1511(a), respectively.
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sobriety testing, and his refusal to submit to blood
testing.” [See “Motion to Suppress Physical Evidence
and Statements,” 1/9/19 at 2.)]
After an evidentiary hearing held on December 11,
2019, and subsequent submission of proposed
Findings of Fact and Conclusions of Law by both
parties, th[e suppression c]ourt entered a Decision
and Order on February 5, 2020, denying [a]ppellee’s
motion “in all respects, with the exception that any
statement(s) [appellee] made in response to any
questioning or inquiry by the police officers after the
vehicle stop is/are suppressed.” [(See decision and
order, 2/5/20.)]
On February 18, 2020, the Commonwealth filed a
Motion to Reconsider Suppression Decision and/or
Motion for Additional Findings of Fact and Conclusions
of Law. The Motion requested that th[e suppression
c]ourt reconsider its decision regarding the
suppression of statements made prior to arrest, and
to place on the record additional findings of fact and
conclusions of law relating to the admissibility of those
statements as Miranda warnings were not required.
In response, th[e suppression c]ourt issued a
Supplemental Decision and Order on February 26,
2020, which included additional findings of fact and
conclusions of law and an Order granting the
Commonwealth’s motion in part, clarifying that any
statements made by [a]ppellee prior to the arrival of
police officers Menzies, Aita and Gothenberg, were not
suppressed, while confirming the suppression of
any statements made by [a]ppellee in response
to police questioning after their arrival, because
we determined that [a]ppellee had been placed
into “functional custody” once four (4) police
officers were on the scene.
Suppression court opinion, 4/23/20 at 2-3 (some internal quotation marks
omitted; emphasis added).
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In reaching this conclusion, the suppression court made the following
pertinent conclusions of law in its supplemental decision and order:
9. However, in accordance with our Conclusion of
Law No. 34 from our February 5, 2020 Decision
and Order, the arrival of Officers Menzies, Aita
and Gothenburg created a “police dominated”
atmosphere which resulted in the potential
appearance of a coercive environment where
[appellee] was confined to his vehicle and not
free to leave, and which therefore resulted in
the functional equivalent of his arrest.
10. Therefore, any statements [appellee] may have
made in response to inquiries by the police
officers after the arrival of Officers Menzies, Aita
and Gothenburg, and in the absence of any
Miranda warnings, are suppressed.
Supplemental decision and order, 2/26/20 at 5, ¶¶ 9-10.
The Commonwealth filed a timely notice of appeal on March 6, 2020.
On March 10, 2020, the suppression court ordered the Commonwealth to file
a concise statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b), within 21 days. The Commonwealth filed its timely
Rule 1925(b) statement on March 23, 2020, and the suppression court filed
its Rule 1925(a) opinion on April 23, 2020.
The Commonwealth raises the following issue for our review:
Did the [suppression] court err in suppressing
statements made by appellee in response to police
inquiry during a traffic stop and subsequent field
sobriety testing based on the erroneous conclusion
that the arrival of three additional officers to the traffic
stop had the effect of placing appellee into “functional
custody,” thereby requiring Miranda warnings prior
to any police questioning, where appellee was in fact
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subject to an investigatory detention and field sobriety
testing on suspicion of [DUI], was not otherwise
placed under arrest at the time he made such
statements, and where, as the record reflects, the
presence of additional officers did not create a
situation that was so coercive as to constitute the
functional equivalent of an arrest?
Commonwealth’s brief at 4 (extraneous capitalization omitted).
Our standard of review in addressing a suppression court’s order
granting a suppression motion is well settled.
When the Commonwealth appeals from a suppression
order, we follow a clearly defined standard of review
and consider only the evidence from the defendant’s
witnesses together with the evidence of the
prosecution that, when read in the context of the
entire record, remains uncontradicted. The
suppression court’s findings of fact bind an appellate
court if the record supports those findings. The
suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to
determine if the suppression court properly applied
the law to the facts.
Our standard of review is restricted to establishing
whether the record supports the suppression court’s
factual findings; however, we maintain de novo
review over the suppression court’s legal conclusions.
Commonwealth v. Korn, 139 A.3d 249, 253-254 (Pa.Super. 2016) (internal
citations and quotation marks omitted), appeal denied, 159 A.3d 933 (Pa.
2016).
The crux of the Commonwealth’s argument is that the suppression court
erred in suppressing incriminating statements appellee made to police
following the arrival of three additional officers at the scene of the lawful traffic
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stop. (Commonwealth’s brief at 12.) Specifically, the Commonwealth avers
that Miranda warnings were not required for Officer Crescenzo to make
general inquiries of appellee during a routine investigatory detention following
a traffic stop, and that the arrival of Officers Menzies, Aita, and
Sergeant Gothenberg did not elevate the encounter into a custodial
interrogation that necessitated Miranda warnings. (Id. at 20-26.) We agree.
This court has long recognized that there are three categories of
interactions between police and citizens:
The first of these is a “mere encounter” (or request
for information) which need not be supported by any
level of suspicion, but carries no official compulsion to
stop or to respond. The second, an “investigative
detention” must be supported by a reasonable
suspicion; it subjects a suspect to a stop and a period
of detention, but does not involve such coercive
conditions as to constitute the functional equivalent of
an arrest. Finally, an arrest or “custodial detention”
must be supported by probable cause.
Commonwealth v. Way, 238 A.3d 515, 518 (Pa.Super. 2020) (citation
omitted).
A custodial interrogation for purposes of Miranda occurs when there is
a “questioning initiated by the police after a person has been taken into
custody or otherwise deprived of his or her freedom of action in any significant
way.” Commonwealth v. Clinton, 905 A.2d 1026, 1032 (Pa.Super. 2006)
(citations and emphasis omitted), appeal denied, 934 A.2d 71 (Pa. 2007).
In determining whether police conduct is the functional equivalent of
interrogation, this court has noted that,
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[t]he police officer’s subjective intent does not govern
the determination but rather the reasonable belief of
the individual being interrogated. . . . The standard
is an objective one, with due consideration given to
the reasonable impression conveyed to the person
being interrogated. A person is considered to be in
custody for the purposes of Miranda when the
officer’s show of authority leads the person to believe
that [he] was not free to decline the officer’s request,
or otherwise terminate the encounter.
Commonwealth v. Harper, 230 A.3d 1231, 1237 (Pa.Super. 2020)
(citations omitted). Thus, “the inquiry must look at the suspect’s perceptions
rather than the intent of the police.” Commonwealth v. Gaul, 912 A.2d 252,
255 (Pa. 2006) (citation omitted), cert. denied, 552 U.S. 939 (2007).
Although we are mindful of the fact that “not every statement made by
an individual during a police encounter constitutes an interrogation,”
Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa.Super. 2013) (citation
omitted), appeal denied, 80 A.3d 776 (Pa. 2013), it is undisputed that “[a]
law enforcement officer must administer Miranda warnings prior to custodial
interrogation.” Commonwealth v. Schwing, 964 A.2d 8, 11 (Pa.Super.
2008) (citation omitted; emphasis added), appeal denied, 989 A.2d 916 (Pa.
2009).
It is a fundamental precept enshrined in the United
States Constitution that a suspect subject to a
custodial interrogation by police must be warned that
he has the right to remain silent, that anything he
says may be used against him in court, and that he is
entitled to the presence of an attorney.
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Commonwealth v. Cruz, 71 A.3d 998, 1003 (Pa.Super. 2013) (citation
omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
It is well settled in this Commonwealth that,
[a] traffic stop constitutes an investigative rather than
a custodial detention, unless, under the totality of the
circumstances, the conditions and duration of the
detention become the functional equivalent of arrest.
Since an ordinary traffic stop is typically brief in
duration and occurs in public view, such a stop is not
custodial for Miranda purposes.
Commonwealth v. Mannion, 725 A.2d 196, 202 (Pa.Super. 1999)
(en banc) (citations omitted).
The factors a court utilizes to determine, under the
totality of the circumstances, whether a detention has
become so coercive as to constitute the functional
equivalent of arrest include: the basis for the
detention; its length; its location; whether the suspect
was transported against his or her will, how far, and
why; whether restraints were used; whether the law
enforcement officer showed, threatened or used
force; and the investigative methods employed to
confirm or dispel suspicions.
Commonwealth v. Baker, 24 A.3d 1006, 1019-1020 (Pa.Super. 2011)
(citations omitted), affirmed, 78 A.3d 1044 (Pa. 2013).
An ordinary traffic stop becomes “custodial” when the
stop involves coercive conditions, including, but not
limited to, the suspect being forced into a patrol car
and transported from the scene or being physically
restrained. Such coercive conditions constitute
“restraints comparable to arrest” so as to transform
the investigative nature of an ordinary traffic stop into
custodial interrogation.
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Mannion, 725 A.2d at 202; see also Commonwealth v. Sullivan, 581 A.2d
956, 957-958 (Pa.Super. 1990) (holding that a defendant-motorist was not in
custody for Miranda purposes when subject to an ordinary traffic stop, and
not placed under arrest, forced to enter a police patrol car, subjected to
coercion, or subject to prolonged questioning).
Thus, “police need only give Miranda warnings while detaining a
suspect by the side of a public highway when the suspect is actually placed
under arrest or when the questioning of the suspect is so prolonged or coercive
as to approximate the atmosphere of a station house interrogation.”
Commonwealth v. Toanone, 553 A.2d 998, 1003 (Pa.Super. 1989)
(citations and footnote omitted).
Instantly, our review of the record in this matter reveals that appellee’s
statements to police prior to his formal arrest were admissible without
Miranda warnings, as they were made during the course of an investigatory
detention, and not a custodial interrogation. The suppression court’s
determination that the arrival of Officers Menzies, Aita, and
Sergeant Gothenburg at the scene of the traffic stop elevated appellee’s
interaction with police to a custodial interrogation is unsupported by the
record. Viewed under a totality of the circumstances, the record establishes
that appellee was subject to an investigatory detention during a routine traffic
stop in a public parking lot, and Officer Crescenzo made reasonable
investigative inquiries after observing several indicators of intoxication. (See
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notes of testimony, 12/11/19 at 13-25.) During the course of this
investigation, appellee was never placed in handcuffs, transported to another
location against his will, or subjected to investigative methods beyond routine
field sobriety testing and questioning by Officers Crescenzo and Menzies. (Id.
at 25-35, 109-119.) The mere arrival of three additional officers to the scene
of the traffic stop, in and of itself, did not create what the suppression court
characterized as a ‘police-dominated atmosphere’ nor subject appellee to
“prolonged or coercive . . . interrogation,” thereby elevating the encounter to
a custodial interrogation. See Toanone, 553 A.2d at 1003. Accordingly,
Miranda warnings were not required.
Based on the foregoing, we find that the suppression court improperly
granted, in part, appellee’s motion to suppress. Accordingly, we reverse the
suppression court’s February 5 and February 26, 2020 orders, and remand
this case for trial.
Order reversed. Case remanded for trial. Jurisdiction relinquished.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 12/15/2020
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