Com. v. Brown, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RYAN MICHAEL BROWN :

:

Appellant : No. 369 WDA 2023

Appeal from the Judgment of Sentence Entered March 15, 2023

In the Court of Common Pleas of Clarion County Criminal Division at

No(s): CP-16-CR-0000234-2022

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED: MARCH 5, 2024

Appellant, Ryan Michael Brown, appeals from the judgment of sentence

entered March 15, 2023, as made final by the denial of his post-sentence

motion on March 23, 2023. We affirm.

The trial court summarized the relevant facts adduced during the

September 29, 2022 suppression hearing as follows:

On August 25, 2021, [Appellant] was scheduled to appear at a

[m]agisterial [d]istrict [c]ourt in Clarion County[,

Pennsylvania,] for a hearing at 10[:00] a.m. On that date, at

10:15 a.m., [Appellant] called the district court office and

indicated he would be late for his hearing because his car had

a flat tire. This message was relayed to Trooper Tyler Lauer

(hereinafter “Trooper Lauer”) who was present for the hearing

with [Appellant. Appellant] arrived at the court office at 10:25

a.m. Trooper Lauer [approached Appellant upon his arrival

and] smell[ed] a strong odor of alcohol emitting from

[Appellant] . . . and observed that [Appellant] could not remain

still and had bloodshot eyes that were glassy. Upon

questioning, [Appellant] stated he drank alcohol the night

before [but stopped] around 2:00 a.m. Further, when asked

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how he got to the court office, [Appellant] stated that his

ex-wife was waiting with the car with the flat tire[, which

Appellant claimed was along Route 66 near the court]. Trooper

Lauer contacted [Pennsylvania State Police (“PSP”)]-Clarion to

request that a trooper check for the car and [Appellant’s]

ex-wife[.] PSP Clarion did not find either the car or

[Appellant’s] ex-wife along Route 66 near the court. When

presented with this information, [Appellant] said his ex-wife

must have taken the car to a tire shop. Trooper Lauer asked

[Appellant] to call his ex-wife. [Appellant complied. When

talking with Appellant’s ex-wife,] Trooper Lauer asked [her]

which tire shop she went to, and [Appellant’s] ex-wife stated

she was in Meadville, Pennsylvania, which is approximately one

hour away from the court office where [Appellant] and Trooper

Lauer were located. [After the telephone call with Appellant’s

ex-wife concluded, Appellant admitted that] he had a

suspended license and did not want [to be seen] driving so he

parked the car at Commodore Homes along Route 66 south of

Amsler Avenue. [Appellant] further admitted he was getting his

prescribed [m]ethadone dose in Erie[, Pennsylvania,] at 8:00

a.m. as the reason for being late to court.

Trooper Lauer said he suspected that [Appellant] was under the

influence [of alcohol] so he asked [Appellant] if he was able to

perform field sobriety tests. [Appellant agreed] and Trooper

Lauer administered the [Horizontal Gaze Nystagmus (“HGN”)],

One Leg Turn, and Walk and Stand [tests]. According to

Trooper Lauer, [Appellant] displayed signs of impairment. [In

addition, Trooper Lauer asserted that,] during the tests[,

Appellant] appeared disheveled and hyper [leading Trooper

Lauer to believe that Appellant consumed something other than

alcohol. As such,] Trooper Lauer asked if [Appellant] would

submit to [Advanced Roadside Impairment Driving Enforcement

(“ARIDE”)] tests. [Appellant complied]. Trooper Lauer

indicated that [Appellant] displayed signs of impairment on

these tests as well. [Trooper Lauer then placed Appellant under

arrest].

[Thereafter, Appellant] was transported to Clarion Hospital for

a blood draw. On the way, [] Trooper [Lauer] took [Appellant]

past Commodore Homes [and asked Appellant to identify his

vehicle]. The vehicle was in the parking lot of Commodore

Homes and identified by [Appellant]. It had a suspended

registration for insurance cancellation. [When they arrived at

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Clarion Hospital, Trooper Lauer administered the O’Connell1

warnings to Appellant and Appellant consented to blood

testing]. At 11:24 a.m., [Appellant] submitted to a blood test

and tested positive for amphetamine and methadone. The test

was negative for alcohol. [At 11:27 a.m., Trooper Lauer read

Appellant his Miranda2 rights].

Trial Court Opinion, 10/31/22, at *1-*3 (unpaginated) (footnotes added).

On October 20, 2021, Appellant was charged with driving under the

influence (“DUI”): controlled substance – schedule II or III, careless driving,

driving while operating privilege is suspended or revoked and vehicle

registration suspended. On August 31, 2022, Appellant filed an omnibus

pre-trial motion in which he argued that he was subjected to custodial

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1 The O'Connell warnings were first pronounced in Commonwealth,

Department of Transportation, Bureau of Traffic Safety v. O'Connell,

555 A.2d 873 (Pa. 1989). In a later opinion, our Supreme Court explained

both the O'Connell warnings and the reasoning behind the warnings:

in order to guarantee that a motorist makes a knowing and

conscious decision on whether to submit to testing or refuse

and accept the consequence of losing his driving privileges, the

police must advise the motorist that in making this decision, he

does not have the right to speak with counsel, or anyone else,

before submitting to chemical testing, and further, if the

motorist exercises his right to remain silent as a basis for

refusing to submit to testing, it will be considered a refusal and

he will suffer the loss of his driving privileges[. T]he duty of the

officer to provide the O'Connell warnings as described herein

is triggered by the officer's request that the motorist submit to

chemical sobriety testing, whether or not the motorist has first

been advised of his Miranda rights.

Commonwealth, Dep't of Transp., Bureau of Driver Licensing v. Scott,

684 A.2d 539, 545 (Pa. 1996).

2 Miranda v. Arizona, 384 U.S. 436 (1966).

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interrogation, necessitating the issuance of Miranda warnings from the

inception of his encounter with Trooper Lauer. Hence, Appellant claimed that

Trooper Lauer’s failure to issue Miranda warnings until 11:27 a.m. warranted

suppression of any admissions made by Appellant prior to that time. In

addition, Appellant challenged the Commonwealth’s prima facie case

supporting the charge of DUI – controlled substance – schedule II or III. The

trial court convened a hearing on Appellant’s motion on September 29, 2022,

during which Trooper Lauer testified. On October 31, 2022, the trial court

denied Appellant’s motion.

The matter proceeded to a jury trial on January 30, 2023, after which

the jury convicted Appellant of DUI – controlled substance – schedule II or

III.3 After the jury was dismissed, the Commonwealth nolle prossed

Appellant’s remaining offenses. On March 15, 2023, the trial court sentenced

Appellant to an aggregate term of 12 to 24 months’ incarceration. Appellant

filed a post-sentence motion on March 21, 2023, which the trial court denied

on March 23, 2023. This timely appeal followed.

Appellant raises the following issues on appeal:4

1. Did the trial court err in denying [Appellant’s] pre-trial

suppression motion based on an illegal “search and seizure”

of [Appellant], there being no reasonable suspicion or

probable cause for the same?

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3 75 Pa.C.S.A. §3802(d)(1)(ii).

4 We have re-ordered Appellant’s issues for ease of discussion and disposition.

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2. Did the trial court err in denying [Appellant’s] pre-trial

suppression motion where any alleged statements or

admissions by [Appellant] were obtained illegally, while

under coercion or duress, in violation of his constitutional

rights?

3. [Whether the Commonwealth presented sufficient evidence

to sustain Appellant’s conviction under 75 Pa.C.S.A.

§ 3802?]

4. Did the trial court err in denying [Appellant’s] motion for

judgment of acquittal at the close of the Commonwealth’s

case-in-chief where the Commonwealth failed to meet its

burden of proof under 75 Pa.C.S.A. §3802[(D)(1)(ii)], to[-]

wit, [Appellant] was driving with a [s]chedule II or III

controlled substance in his system, not medically prescribed,

when the Commonwealth offered no evidence to this effect?

See generally Appellant’s Brief at 4-6 (emphasis and superfluous

capitalization omitted).5

In Appellant’s first two issues, he challenges the trial court’s suppression

ruling. Initially, Appellant argues that the trial court erred in denying his

motion to suppress because Trooper Lauer lacked the requisite level of

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5 Appellant presents seven separate questions in his appellate brief. See

Appellant’s Brief at 4-6. Of these seven questions, several challenge the trial

court’s suppression rulings and three relate to Appellant’s claim that the

Commonwealth failed to prove its charge of DUI – controlled substance –

schedule II or III. See id. The four-part argument section of Appellant’s

brief to this Court includes one section that challenges the sufficiency of the

evidence introduced by the Commonwealth to prove the offense of

DUI – controlled substance – schedule II or III. In this section, Appellant

claims that the Commonwealth “did not meet its burden that [he] was

operating or otherwise in control of a motor vehicle at a time when he had a

controlled substance in his system.” Id. at 15. Because Appellant’s claim

challenges the sufficiency of the evidence, we will limit our analysis

accordingly and omit the inclusion of superfluous issues, except that we shall

address Appellant’s challenge to the trial court’s suppression rulings as an

initial matter.

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suspicion to detain him at the magistrate’s office and investigate whether he

committed DUI. Appellant’s Brief at 28. Next, Appellant argues that the trial

court erred in concluding that Trooper Lauer’s detention did not amount to a

custodial interrogation, warranting the issuance of Miranda warnings. Id. at

35. Appellant therefore claims that the trial court erred in failing to suppress

evidence, namely, Appellant’s admission that he drove to the magisterial

district judge’s office on the day in question. Id. at 40. We address

Appellant’s interrelated claims together.

Our standard of review in addressing a challenge to a trial court's denial

of a suppression motion is

limited to determining whether the factual findings are

supported by the record and whether the legal conclusions

drawn from those facts are correct.

We may consider only the evidence of the prosecution 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

record supports the findings of the suppression court, we are

bound by those facts and may reverse only if the court erred in

reaching its legal conclusions based upon the facts.

Moreover, it is within the lower court's province to pass on the

credibility of witnesses and determine the weight to be given to

their testimony.

Furthermore, our Supreme Court [has] clarified that the scope

of review of orders granting or denying motions to suppress is

limited to the evidence presented at the suppression hearing.

Commonwealth v. Williams, 176 A.3d 298, 315–316 (Pa. Super. 2017)

(internal citations and quotations omitted).

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Under Pennsylvania law, there are three categories of police-citizen

interactions. As our Supreme Court has clearly articulated:

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. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(quotation omitted), appeal denied, 48 A.3d 1247 (Pa. 2012).

Further, this Court previously explained:

[t]o determine whether a mere encounter rises to the level of

an investigatory detention, we must discern whether, as a

matter of law, the police conducted a seizure of the person

involved. To decide whether a seizure has occurred, a court

must consider all the circumstances surrounding the encounter

to determine whether the demeanor and conduct of the police

would have communicated to a reasonable person that he or

she was not free to decline the officer's request or otherwise

terminate the encounter. Thus, the focal point of our inquiry

must be whether, considering the circumstances surrounding

the incident, a reasonable person innocent of any crime, would

have thought he was being restrained had he been in the

defendant's shoes.

Commonwealth v. Reppert, 814 A.2d 1196, 1201-1202 (Pa. Super. 2002)

(internal citations omitted).

“It is long-settled that Miranda warnings are only required for the

third-level interaction, i.e., custodial interrogation.” Commonwealth v.

Spence, 2023 WL 2002292 *1, *9 (Pa. Super. Feb. 15, 2023), citing

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Commonwealth v. Smith, 836 A.2d 5 (Pa. 2003). This Court previously

explained:

Statements made during custodial interrogation are

presumptively involuntary, unless the accused is first advised

of her Miranda rights. Commonwealth v. DiStefano, 782

A.2d 574, 579 (Pa. Super. 2001), appeal denied, 806 A.2d 858

(Pa. 2002). Custodial interrogation is “questioning initiated by

law enforcement officers after a person has been taken into

custody or otherwise deprived of [her] freedom of action in any

significant way.” Miranda, supra at 444[. “T]he Miranda

safeguards come into play whenever a person in custody is

subjected to either express questioning or its functional

equivalent.” Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa.

2006), cert. denied, 552 U.S. 939, (2007). Thus,

“[i]nterrogation occurs where the police should know that their

words or actions are reasonably likely to elicit an incriminating

response from the suspect.” Commonwealth v. Ingram, 814

A.2d 264, 271 (Pa. Super. 2002), appeal denied, 821 A.2d 586

(Pa. 2003). “[I]n evaluating whether Miranda warnings were

necessary, a court must consider the totality of the

circumstances. In conducting the inquiry, we must also keep in

mind that not every statement made by an individual during a

police encounter amounts to an interrogation. Volunteered or

spontaneous utterances by an individual are admissible even

without Miranda warnings.” Gaul, supra.

Whether a person is in custody for Miranda purposes

depends on whether the person is physically denied of

[her] freedom of action in any significant way or is placed

in a situation in which [she] reasonably believes that [her]

freedom of action or movement is restricted by the

interrogation. Moreover, the test for custodial

interrogation does not depend upon the subjective intent

of the law enforcement officer interrogator. Rather, the

test focuses on whether the individual being interrogated

reasonably believes [her] freedom of action is being

restricted.

Commonwealth v. Clayton Williams, 650 A.2d 420, 427 (Pa.

1994) (internal citations omitted)[; s]ee also Commonwealth

v. Mannion, 725 A.2d 196, 202 (Pa. Super. 1999) (en banc)

(stating whether person is in custody for Miranda purposes

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must be evaluated on case-by-case basis with due regard for

facts involved); Commonwealth v. Peters, 642 A.2d 1126,

1130 (Pa. Super. 1994) (en banc), appeal denied, 649 A.2d 670

(Pa. 1994) (stating: “Among the factors the court utilizes in

determining, under the totality of the circumstances, whether

the detention became so coercive as to constitute the functional

equivalent of a formal arrest are: the basis for the detention;

the duration; the location; whether the suspect was transferred

against [her] will, how far, and why; whether restraints were

used; the show, threat or use of force; and the methods of

investigation used to confirm or dispel suspicions”; fact that

[the] defendant was [the] focus of investigation is relevant for

determination of whether defendant was in “custody” but does

not require per se Miranda warnings).

Said another way, police detentions become custodial

when, under the totality of the circumstances, the

conditions and/or duration of the detention become so

coercive as to constitute the functional equivalent of arrest.

Mannion, supra at 200. Thus, the ultimate inquiry for

determining whether an individual is in custody for Miranda

purposes is “whether there [was] a ‘formal arrest or restraint

on freedom of movement’ of the degree associated with a

formal arrest.” Commonwealth v. Pakacki, 901 A.2d 983,

988 (Pa. 2006)[, quoting Stansbury v. California, 511 U.S.

318, 322 (1994)[]. Under the totality of the circumstances

approach, the following factors are relevant to whether a

detention has become so coercive as to constitute the functional

equivalent of a formal arrest: “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.

Levanduski, 907 A.2d 3, 24 (Pa. Super. 2006) (en banc),

appeal denied, 919 A.2d 955 (Pa. 2007).

Commonwealth v. Williams, 941 A.2d 14, 30–31 (Pa. Super. 2008)

(parallel citations omitted).

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The testimony at Appellant’s suppression hearing revealed the following.

On August 25, 2021, Appellant was scheduled to appear in magisterial district

court in Clarion County, Pennsylvania, at 10:00 a.m. regarding a separate

matter. Trooper Lauer was also present at the magisterial district judge’s

office that day, in full uniform, as he was the arresting officer in the other

matter. At 10:15 a.m., Appellant called the magisterial district judge’s office

and stated that “he [would] be late for court because he got a flat tire on his

way to the hearing.” N.T. Suppression Hearing, 9/29/22, at 4. This

information was relayed to Trooper Lauer. Appellant eventually arrived at

10:25 a.m. Once Appellant arrived, Trooper Lauer approached Appellant in

the lobby of the magisterial district court office in order “to talk to him about

the [other] court matter.” Id. at 5. Upon approach, Trooper Lauer smelled

alcohol emanating from Appellant’s person and noticed that Appellant

appeared “hyper,” “jittery,” and “could [not] stand still.” Id. at 7. Trooper

Lauer then asked Appellant about his vehicle, specifically, “where the vehicle

was [] that had broke[n] down and had the flat tire.” Id. at 5. Appellant

stated that the vehicle was “along Route 66, Paint Boulevard.” Id. As such,

Trooper Lauer contacted PSP Clarion to “check the area for the vehicle,” but

they were unable to locate the vehicle in that location. Id.

After learning that Appellant’s vehicle was not in the location provided,

Trooper Lauer asked Appellant “how [] he got to [the magisterial district court

office].” Id. at 6. In response, Appellant claimed that “his ex-wife was [with]

the vehicle” and “she must have got it fixed and headed to a tire shop locally.”

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Id. Trooper Lauer then directed Appellant to call his ex-wife and Appellant

obliged. During the call, Appellant’s ex-wife revealed that she was in

Meadville, Pennsylvania, which is approximately one hour away from Clarion

County. Thereafter, Trooper Lauer confronted Appellant, stating that, because

his ex-wife admitted to being in Meadville, “there [was] no possible way his

ex-wife could be [with his] vehicle.” Id. at 10. At that time, Appellant

admitted to driving to the magisterial district court office and informed Trooper

Lauer that he parked the vehicle “at the trailer factory down the road” to avoid

being seen driving due to his suspended license. Id. Upon further questioning

by Trooper Lauer, Appellant also admitted that he drank alcohol that morning,

estimating that “he quit drinking at [2:00 a.m.].” Id. at 11. Based upon all

the foregoing, Trooper Lauer asked Appellant to submit to field testing,

including the HGN, One Leg Turn, Walk and Stand, and ARIDE tests. Appellant

exhibited signs of impairment on the aforementioned tests, prompting Trooper

Lauer to place him under arrest and put him in handcuffs.

Following Appellant’s arrest, Trooper Lauer transported him to Clarion

Hospital for a blood draw. On the way, Trooper asked Appellant to show him

where the vehicle was parked. Appellant complied. Once at the hospital,

Trooper Lauer administered the O’Connell warnings to Appellant and

Appellant consented to a blood draw, which occurred at 11:24 a.m. Then, at

11:27 a.m., after Appellant’s blood draw, Trooper Lauer issued Miranda

warnings to Appellant. Trooper Lauer then subjected Appellant to additional

questioning, after which Appellant informed Trooper Lauer that he received

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his prescribe dose of methadone from New Directions Health Care at 8:00

a.m. Appellant’s blood tests indicated positive for amphetamine and

methadone, but negative for alcohol. Trial Court Opinion, 10/31/22, at *3.

Upon review, we conclude that, when Trooper Lauer initially approached

Appellant at the magisterial district judge’s office, the interaction amounted

to nothing more than a mere encounter. Indeed, Trooper Lauer specifically

stated at the suppression hearing that, once Appellant arrived at the office,

he approached Appellant “to talk to him about the [other] court matter,” for

which he was the arresting officer. N.T. Suppression Hearing, 9/29/22, at 5

and 24. No facts suggest that, upon doing so, Trooper Lauer acted coercively

or spoke to Appellant in a forceful manner. To the contrary, the initial

approach by Trooper Lauer typified a mere encounter, not an investigative

detention. See Commonwealth v. Collins, 950 A.2d 1041, 1047 (Pa. Super.

2008).

“[D]uring the course of the encounter” between Trooper Lauer and

Appellant, however, “the level of intrusion into [Appellant’s] liberty

[changed].” Commonwealth v. Blair, 860 A.2d 567, 572 (Pa. Super. 2004).

Indeed, at the suppression hearing, Trooper Lauer testified that, after initially

approaching Appellant, he detected alcohol emanating from Appellant’s

person and observed that Appellant was “hyper,” “jittery,” and “could [not]

stand still.” N.T. Suppression Hearing, 9/29/22, at 5 and 7. In addition,

Trooper Lauer admitted that the odor caused him “to see if [Appellant] drove

to court that day.” Id. at 5. After Trooper Lauer detected the odor of alcohol,

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and being aware that Appellant telephoned the magisterial district judge’s

office to say that he would be late to the hearing because he had a flat tire,

Trooper Lauer’s interaction with Appellant assumed a more probing posture

and Appellant became the focus of an investigative detention. We must

therefore determine whether, at this time, Trooper Lauer possessed the

requisite justification, i.e., reasonable suspicion that Appellant was engaged

in criminal conduct.

This Court previously explained:

A police officer may detain an individual in order to conduct an

investigation if that officer reasonably suspects that the

individual is engaging in criminal conduct. “This standard, less

stringent than probable cause, is commonly known as

reasonable suspicion.” In order to determine whether the police

officer had reasonable suspicion, the totality of the

circumstances must be considered. In making this

determination, we must give “due weight ... to the specific

reasonable inferences [the police officer] is entitled to draw

from the facts in light of his experience.” Also, the totality of

the circumstances test does not limit our inquiry to an

examination of only those facts that clearly indicate criminal

conduct. Rather, “[e]ven a combination of innocent facts, when

taken together, may warrant further investigation by the police

officer.”

Commonwealth v. Raglin, 178 A.3d 868, 872 (Pa. Super. 2018) (internal

citations omitted), quoting Commonwealth v. Rogers, 849 A.2d 1185, 1189

(Pa. 2004).

We conclude that Trooper Lauer had reasonable suspicion to detain

Appellant once he detected an odor of alcohol about Appellant’s person. In

particular, Trooper Lauer testified that, prior to his initial interaction with

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Appellant, he became aware that Appellant called the magisterial district

judge’s office claiming he would be late for court because he got a flat tire on

his way to the hearing. Based upon this statement, Trooper Lauer reasonably

began to suspect that Appellant, himself, operated a vehicle on the morning

in question. Moreover, after approaching Appellant upon his arrival at the

magisterial district court office, Trooper Lauer detected alcohol emanating

from Appellant’s person and also observed that Appellant was “hyper,”

“jittery” and “could [not] stand still.” N.T. Suppression Hearing, 9/29/22, at

5 and 7. This behavior, coupled with all of the circumstances of which the

trooper was aware, was sufficient to provide Trooper Lauer with reasonable

suspicion that Appellant operated a vehicle under the influence of alcohol or a

controlled substance. As such, Trooper Lauer was justified in detaining

Appellant as long “as [was] necessary to confirm or dispel [his reasonable]

suspicion[s].” Commonwealth v. LeMonte, 859 A.2d 495, 500 (Pa. Super.

2004). Thus, we reject Appellant’s contention that Trooper Lauer detained

him at the magisterial district court office in violation of his constitutional

rights.

Moreover, we reject Appellant’s contention that the initial phases of

Trooper Lauer’s detention constituted a custodial interrogation, warranting the

issuance of Miranda warnings. To support his position, Appellant points to

the fact that he was legally required to appear at the magisterial district court

office for a summary trial involving another matter. Appellant’s Brief at 37.

This, per Appellant, restricted his “freedom of movement,” rendering him in

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custody for Miranda purposes. Id. at 35. We note, however, that the mere

fact that Appellant was legally required to be at the magisterial district court

office did not, in and of itself, elevate the encounter between him and Trooper

Lauer to a custodial interrogation. See Commonwealth v. Lidge, 582 A.2d

383 (Pa. Super. 1990) (holding that the appellant was not seized because she

was not restrained by physical force or a show of authority even though the

encounter with police occurred at an airport). In addition, as noted by the

trial court, there is no evidence that, from the initial phases of Appellant’s

interaction with Trooper Lauer until the point of Appellant’s arrest, “the

conditions and/or duration of the detention became so coercive as to

constitute the functional equivalent of arrest.” Mannion, 725 A.2d at 201;

see also Trial Court Opinion, 10/31/22, at *6-*7 (unpaginated) (finding that

Trooper Lauer did not “restrain[ Appellant] in any way” and “did not show or

threaten the use of force and the investigative methods were to confirm or

dispel suspicions of [Appellant] driving while intoxicated”). Because Appellant

was not in custody at the time he first admitted to driving to the magisterial

district court’s office, Miranda warnings were not required.

We do, however, hold that the nature of the interaction shifted to a

custodial interrogation, warranting the issuance of Miranda warnings, when

Trooper Lauer placed Appellant under arrest at the conclusion of field sobriety

testing. At the suppression hearing, Trooper Lauer testified that, after

inquiring into how Appellant arrived at the magisterial district judge’s office,

Appellant eventually admitted to driving to the office and informed Trooper

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Lauer that he parked the vehicle “at the trailer factory down the road” to avoid

being seen driving because he had a suspended license. N.T. Suppression

Hearing, 9/29/22, at 10. Based upon Appellant’s statement, Trooper Lauer

requested that Appellant submit to field sobriety tests, and Appellant

complied. Appellant exhibited signs of impairment during the tests, and

Trooper Lauer determined that probable cause existed to place Appellant

under arrest for DUI. After the administration of field sobriety tests, but

before Trooper Lauer issued Appellant Miranda warnings, Trooper Lauer

transported Appellant to Clarion Hospital for a blood draw.6 While Appellant

was in the police vehicle, Trooper Lauer drove near the area in which Appellant

admitted to parking the vehicle and asked Appellant to point out his vehicle.

Appellant complied. As the Commonwealth concedes on appeal, after Trooper

Lauer arrested Appellant, but before Appellant’s arrival at the hospital and his

receipt of Miranda warnings, Appellant was subjected to a custodial

interrogation since Trooper Lauer could reasonably anticipate that his inquiries

would elicit incriminating responses from Appellant. See Commonwealth’s

Brief at 12. Because Trooper Lauer did not administer Appellant’s Miranda

warnings until 11:27 a.m., after Appellant’s arrest, interrogation, and

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6 To be clear, we conclude, based upon the totality of circumstances, that

Appellant was subject to a custodial arrest at the moment Trooper Lauer

transported him from the magisterial district court office to the hospital to

conduct a blood draw. We further conclude that Appellant’s arrest was

supported by probable cause, as established by Appellant’s prior admissions,

his observed appearance and odor, and his poor performance on field sobriety

tests.

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transportation to Clarion Hospital, we conclude that Appellant’s identification

of the vehicle’s location was obtained in violation of Miranda and subject to

suppression.

“A suppression court’s error in failing to suppress statements by the

accused, however, will not require reversal if the Commonwealth can establish

beyond a reasonable doubt that the error was harmless.” Commonwealth

v. Frein, 206 A.3d 1049, 1070 (Pa. 2019) (citation omitted). “Miranda

violations are subject to this harmless error rule.” Id. (citation omitted).

Harmless error exists if the Commonwealth proves that (1) the

error did not prejudice the defendant or the prejudice was de

minimis; (2) the erroneously admitted evidence was merely

cumulative of other untainted evidence which was substantially

similar to the erroneously admitted evidence; or (3) the

properly admitted and uncontradicted evidence of guilt was so

overwhelming and the prejudicial effect of the error was so

insignificant by comparison that the error could not have

contributed to the verdict.

Id. (citation omitted).

Upon review of the record of this case, we conclude that Appellant’s

statement in which he identified the location of his parked vehicle was

harmless because it was “merely cumulative of other [substantially similar]

untainted evidence.” Id. In particular, the Commonwealth at trial established

that, prior to Appellant’s arrest, he voluntarily admitted to driving the vehicle

to the magisterial district judge’s office, even though his license was

suspended. See N.T. Trial 1/30/23, at 50-51. Appellant’s specific

identification of the location of his vehicle for Trooper Lauer was therefore

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substantially similar to his own admission which was testified to by Trooper

Lauer during trial. We therefore conclude that the admission of Appellant’s

statement of identification was harmless and Appellant is not entitled to relief.7

Compare Commonwealth v. Rivera, 296 A.3d 1141, 1160-1161 (Pa. 2023)

(holding that the erroneous admission of the appellant’s post-arrest silence

was not harmless because it was not “’merely cumulative’ of other evidence

introduced at trial” and because the “properly admitted and uncontradicted

evidence of guilt” was not “so overwhelming,” rendering “the prejudicial effect

of the error . . . insignificant”) (citation omitted).

In Appellant’s third and fourth issues, he argues that the Commonwealth

failed to present sufficient evidence supporting his conviction for DUI –

controlled substance – schedule II or III. In particular, Appellant claims that

the Commonwealth failed to demonstrate that he “was operating or otherwise

in control of a motor vehicle at a time when he had a controlled substance in

his system.” Appellant’s Brief at 15. Similarly, in his final issue, Appellant

claims that the Commonwealth failed to prove that the amphetamines in his

system were not medically prescribed and, as such, an illegal substance. Id.

at 40. Upon review, we conclude that Appellant’s claims lack merit.

____________________________________________

7 We note that the results of Appellant’s blood draw are not subject to

suppression as a result of a Fifth Amendment violation, even though the blood

draw was completed prior to Trooper Lauer’s administration of Miranda

warnings to Appellant. See Schmerber v. California, 384 U.S. 757, 765

(1966) (holding that “the blood test evidence, although an incriminating

product of compulsion, was neither petitioner's testimony nor evidence

relating to some communicative act or writing by the petitioner, it was not

inadmissible on privilege grounds”).

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This Court previously explained:

Our standard of review in a sufficiency of the evidence challenge

is to determine if the Commonwealth established beyond a

reasonable doubt each of the elements of the offense,

considering all the evidence admitted at trial, and drawing all

reasonable inferences therefrom in favor of the Commonwealth

as the verdict-winner. The trier of fact bears the responsibility

of assessing the credibility of the witnesses and weighing the

evidence presented. In doing so, the trier of fact is free to

believe all, part, or none of the evidence.

Commonwealth v. Newton, 994 A.2d 1127, 1131 (Pa. Super. 2010)

(quotation omitted), appeal denied, 8 A.3d 898 (Pa. 2010).

Section 3802(d)(1) of the Vehicle Code, in relevant part, states:

(d) Controlled substances.--An individual may not drive,

operate or be in actual physical control of the movement of a

vehicle under any of the following circumstances:

(1) There is in the individual's blood any amount of a:

(ii) Schedule II or Schedule III controlled substance,

as defined in The Controlled Substance, Drug, Device

and Cosmetic Act, which has not been medically

prescribed for the individual[.]

75 Pa.C.S.A. § 3802(d)(1)(ii).

Importantly,

“[t]he term ‘operate’ requires evidence of actual physical

control of either the machinery of the motor vehicle or the

management of the vehicle's movement, but not evidence that

the vehicle was in motion.” Commonwealth v. Johnson, 833

A.2d 260, 263 (Pa. Super. 2003). “Our precedent indicates that

a combination of the following factors is required in determining

whether a person had ‘actual physical control’ of an automobile:

the motor running, the location of the vehicle, and additional

evidence showing that the defendant had driven the vehicle.”

Commonwealth v. Woodruff, 668 A.2d 1158, 1161 (1995).

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A determination of actual physical control of a vehicle is based

upon the totality of the circumstances. [Commonwealth v.

Williams, 871 A.2d 254, 259 (Pa. Super. 2005)].

Commonwealth v. Brotherson, 888 A.2d 901, 904-905 (Pa. Super. 2005)

(parallel citations omitted).

Upon review, we conclude that the Commonwealth presented sufficient

evidence to support Appellant’s conviction for DUI - controlled substance –

schedule II or III. Initially, we note that, in contrast to Appellant’s claim, the

Commonwealth’s evidence demonstrated that he, himself, drove to the

magistrate’s office on the day in question. Indeed, at trial, the Commonwealth

presented evidence that Appellant arrived at the magisterial district court

office by himself and that Appellant admitted to driving to the hearing. N.T.

Trial, 1/30/23, at 44-47 and 50-51. Moreover, the Commonwealth presented

evidence that Appellant was under the influence at the time he drove to the

magistrate’s office. First, the Commonwealth introduced evidence of

Appellant’s blood test results taken on August 25, 2021, which revealed the

presence of amphetamines in his system. See N.T Trial, 1/30/23, at 57-60;

see also N.M.S. Labs Toxicology Report (Commonwealth’s Exhibit 1).

Second, Trooper Lauer testified that, after receiving Miranda warnings,

Appellant admitted that he did not ingest any other substance “in between

when he parked [his] car and got to the [magistrate’s office].” N.T. Trial,

1/30/23, at 61. We therefore conclude that the foregoing evidence

demonstrated that Appellant drove his vehicle to the magistrate’s office while

under the influence of amphetamines and, as such, was sufficient to support

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Appellant’s conviction for DUI - controlled substance – schedule II or III. See

Commonwealth v. Fallon, 275 A.3d 1099, 1106-1107 (Pa. Super. 2022)

(holding that the Commonwealth presented sufficient evidence that the

appellant drove, operated or was in actual physical control of the vehicle while

intoxicated when it presented evidence that, inter alia, he admitted to driving

after consuming a six-pack of beer and that the residence was not accessible

by public transportation).

In this same vein, Appellant’s contention that his conviction was not

supported by sufficient evidence because the Commonwealth failed to

demonstrate that the amphetamines found in his system here not medically

prescribed lacks merit. In Commonwealth v. Sojourner, 408 A.2d 1108

(Pa. Super. 1979), this Court addressed a similar claim lodged under the

Controlled Substance, Drug, Device and Cosmetic Act. Importantly, we held

that, before the Commonwealth was required to disprove that a defendant

was authorized to possess narcotics, the defendant needed to come forward

with credible evidence of authorization. Id. at 1114-1115. Importantly, this

very concept was recently upheld by a panel of this Court. See

Commonwealth v. Smith, 2018 WL 3358610, *1, *3 (Pa. Super. July 10,

2018) (unpublished memorandum) (holding that, because the appellant did

not “come forward with evidence that he possessed a prescription for

oxycodone,” the Commonwealth was not required to “disprove his

authorization for the drug”). Thus, contrary to Appellant’s assertion, he was

required to come forward with some proof that he possessed a prescription

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for amphetamines before the Commonwealth was required to disprove his

authorization to possess the drug. Appellant, however, only claimed to have

an authorized prescription for methadone, not amphetamines. N.T. Trial,

1/30/23, at 61. Hence, the Commonwealth was not required to present

evidence to disprove that element of the offense.

Judgment of sentence affirmed.

FILED: 3/5/2024

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