Petition for Writ of Certiorari — Pennsylvania v. Bruder

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

vs.

THOMAS A. BRUDER, JR.,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

Joseph J. Mittleman

: Assistant District

> Attorney

(Counsel of Record)

Sandra L. Elias

Deputy District Attorney

Chief, Law and Appeals

Unit

’

William H. Ryan, Jr.

District Attorney

Court House

Media, PA 19063

(215) 891-421C

KY

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Fourth, Fifth, Sixth,

and Fourteenth Amendments to the United

States Constitution require that a field

sobriety test consisting of the recitation of

the alphabet be preceded by warnings of the

individual's rights against self-incrimination.

2. Whether the Fourth, Fifth, Sixth,

and Fourteenth Amendments to the United

States Constitution require that brief

questioning at a routine traffic stop be

preceded by warnings of the individual's

rights against self-incrimination.

Page

TABLE OF CONTENTS

) Appendix B: Findings of Fact and

Conclusions of Law of the

Pp Suppression Court of

ae . Delaware County,

Opinions Below 2 Pennsylvania 24a

i edict . Appendix C: Opinion of the Court of

RS ee . . Conmon Pleas of Delaware

) 3la

Constitutional Provisions Involved 4 . County, Pennsylvania

Appendix D: Judgment and Opinion of

Statement of the Case 6 | a Sueecier Court of

; Pennsylvania, dated March

Reasons for Granting the Writ . 30, 1987 46a

" peusneee Pace mg Png | Appendix E: Order of the Superior Court

United States Constitution do ) = ne dated June ete

not require that a field ’

meee piney Sha i ae | Appendix F: Order of the Supreme Court

preceded by warnings of the | re — dated May she

individual's rights against self- .

incrimination. 12-15

B. The Fourth, Fifth, Sixth, and

Fourteen Amendments to the :

United States Constitution i

do not require that brief :

questioning at a routine

traffic stop be preceded by ;

warnings of the individual's :

rights against self-

incrimination. 16-17

Conclusion _ 18

APPENDICES

Appendix A: Judgment and Opinion of

the Superior Court of

Pennsylvania dated July

21, 1987 la

iii

ii

TABLE OF AUTHORITIES

Cases

Berkemer v. McCarty,

468 U.S. 427, 104 S.Ct 3138, 82

L.Ed.2d 317 (1984) e . ° - o ° . .

Butler v. Commissioner of Public

Saftey,

348 N.W.2d. 827 (Minn. App. 1984) .

Commonwealth v. Bruder,

365 Pa.Super.Ct. 106, 110-12, 528

A.2d 1385, 1387-88 (1987) .....

Commonwealth v. Meyer,

488 Pa. 297, 412 A.2d 517 (1980). .

Delaware v. Van Arsdall,

475 U.S 673, 106 S.Ct. 1431, 89

L.Ed.2d 674 (1986). e ° ° ° ° ° ° .

McAvoy v. State,

70 Md.App. 661, 523 A.2da 518 (1987)

Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966) — _ _ 7 . . * *

Montgomery v. State,

174 Ga.App 95, 329 S.E.2da 166

(1985) . . o ° e ° e o ° @ °

Oxholm v. District of Columbia,

464 A.2d 113 (D.C.App.i983)....

People v. Burhans,

421 N.W.2d 285 (Mich.App. 1988) ..

People v. Helm,

633 P.2d 1071 (Colo. 1981) e¢e¢es

iv

Page

16,17

15

10

16

12

15

8,12

15

15

15

15

People v. Saturday,

482 N.E.2d 1124 (111.App.2 Dist.

1985) eo oe @ oe eo e eo eo _* oe _ * 7 . oe

Schmerber v. California,

384 U.S. 757, 86 S.Ct. 1826, 16

8.26. 906 (1066) . - ec ec ee ee

State v. Hartwig,

li2 Idaho 370, 732 P.2da 339 (1978)

State v. Medenbach,

48 Ore.App. 133, 616 P.2d 543

(1980) eo _ e oo @ — — . o J J . . *

State v. Roadifer,

346 N.W.2d. 438 (S.D. 1984) ....

State v. Theriault,

144 Ariz. 166, 696 P.2d 718 (1984).

United States v. Dionisio,

410 U.S. 1, 93 S.Ct. 764, 35

L.Ed.2d 67 (1973) « «© © «© © © #© « «

United States v. Wade,

388 U.S. 218, 87 S.Ct 1926, 18

L.Ed.2d@ 1149 (1967) ~. « « « © © @ «

Constitutional Authorities

United States Constitution,

Amendment Four - « & £.6 ¢ @ €.8

United States Constitution,

Amendment Five ...+«-+«« « «© « « «

United States Constitution,

Amendement Six ..« « « «© «© «© « « «

United States Constitution,

Amendment Fourteen, Section One. .

15

14

15

15

15

15

13

13

4,8,

12,16

4,8,

12,16

4,8,

12,16

5,8,

12,16

ee ae

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1988

NO.

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

VS.

THOMAS A. BRUDER, JR.,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF PENNSYLVANIA

Petitioner, the Commonwealth of

Pennsylvania, respectfully requests that a Writ

of Certiorari issue to review the Judgment

and Opinion of the Superior Court of

Pennsylvania entered in this case.

OPINIONS BELOW

The opinion of the Superior Court of

Pennsylvania has been reported at 365

Pa.Super.Ct. 106, 528 A.2d 1385 (1987) and is

set forth in full in Appendix A of this

Petition.

The opinion of the Court of Common

Pleas of Delaware County is reported at 73

Del.Co.Rptr. 485 (1986), and is set forth in

full in Appendix C of this Petition.

STATEMENT OF JURISDICTION

The judgment of the Pennsylvania

Superior Court was entered on July 21, 1987.

The Pennsylvania Supreme Court refused

review of this matter by an Order dated May

19, 1988. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. 81257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment Four,

which provides:

The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no warrants shail

issue, but upon probable cause, supported by

oath or affirmation, and particularly

describing the place to be searched, and the

persons or things to be seized.

United States Constitution, Amendment Five,

which provides:

No person shall be held to answer for a

Capital, or otherwise infamous crime, unless

on a presentment or indictment of a grand

jury, except in cases arising in the land or

naval forces, or in the militia, when in actual

service in time of war or public danger; nor

shall any person be subject for the same

offense to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be

deprived of life, liberty, or property, without

due process of law; nor shall private property

be taken for public use, without just

compensation.

United States Constitution, Amendment Six,

which provides:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the state and

district wherein the crime shall have been

committed, which district shall have been

4

previously ascertained by law, and to be

informed of the nature and cause of the

accusation; to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his favor,

and to have the assistance of counsel for his

defense.

United States Constitution, Amendment

Fourteen, Section One, which provides:

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the state wherein they reside. No state

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall any

state deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

At approximately 12:50 A.M. on

January 19, 1985, Officer Steve Shallis of the

Newtown Township Police Department

observed Thomas A. Bruder, Jr., driving a

motor vehicle which was stopped at a green

light for ten to fifteen (10-15) seconds. (N.T.

December 17, 1985 p. 8). Bruder's vehicle

then proceeded at approximately tento

twenty (10-20) miles per hour on a four-lane

divided highway where the speed limit was

forty (40) miles per hour, swerving back and

forth across the highway with high beams on,

despite warnings from oncoming traffic.

Bruder drove on and made a right turn at a

red light without coming to a stop, turning so

widely he was travelling eastbound inthe

westbound lane. (Id. at 9-11). Officer

Shallis then stopped Bruder's vehicle. Before

the officer had stopped his police car, Bruder

exited his vehicle and was unsteady on his

feet, having a difficult time keeping his

6

ee) ea ae cae

balance. He also had difficulty removing his

wallet from his pocket, looking for his

driver's license, and finding his registration

and insurance cards in the glove compartment.

(Id. at 1214). He had a strong odor of

alcohol on his breath, his eyes were bloodshot

and his face was flushed. In response to

questioning, Bruder admitted to the officer

that he had had a couple of drinks. Bruder,

a local businessman, then blurted to Officer

Shallis, “You don't knowwholam". (Id. at

16). Officer Shallis administered several field

sobriety tests to Bruder. Officer Shallis first

asked himto recite the alphabet,and then

requested that he walk a straight line, heel-

to-toe. After Bruder performed poorly on

both tests, Officer Shallis placed him under

arrest for Driving Under the2 Influence of

Alcohol. Bruder refused to undergo any

chemical tests to determine his blood alcohol

level, despite being advised of the

consequences of sucha refusal. (Id. at17).

7

Bruder filed Omnibus Pre-trial

Motions seeking the suppression of evidence,

alleging, inter alia, that certain field sobriety

tests were administered without advising him

of his Fifth Amendment rights as provided in

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d. 694 (1966), and that

statements elicited from himwithout first

advising himof his rights against self-

incrimination and to tounsel violated the

Fourth, Fifth, Sixth, and Fourteenth

Amendments to the United States

Constitution. On June 25, 1985 a hearing was

held on the pre-trial motions, at which

Bruder raised the above federal constitutional

Claims. (N.T. June 25, 1985 p. 10-11). On

July 26, 1985 the Court denied the pre-trial

motions and filed Findings of Fact and

Conclusions of Law, which are attached

hereto as Appendix B.

On December 17, 1985, Bruder was found

guilty of Driving Under the Influence of

8

Alcohol following a non-jury trial before the

Honorable Rita E. Prescott. Bruder filed

post-trial motions raising, inter alia, the

federal constitutional claims he raised in his

pre-trial motions. By an Order dated May 9,

1986 the Court dismissed the post-trial

motions, and filed an opinion on May 14,

1986. A copy of that Opinion is attached

hereto as Appendix C. On July 23, 1986, he

was sentenced to aterm of imprisonment of

forty-eight (48) hours to six (6) months.

Bruder took a direct appeal to the Superior

Court of Pennsylvania, which reversed the

judgment of sentence and remanded for a new

trial in an opinion by a divided panel dated

March 30, 1987. A copy of that Opinion is

attached hereto as Appendix D. President

Judge Cirillo, writing for himself and Senior

Judge Hoffman, held (1) the roadside

questioning of Bruder was constitutionally

infirm due to a lack of Miranda warnings,

Appendix at 6a-lla; Sla-56a and

9

Commonwealth v. Bruder, 365 Pa.Super.Ct.

106, 110-12, 528 A.2d 1385, 1387-88 (1987),

and (2) a field sobriety test consisting of the

recitation of the alphabet constituted

testimonial evidence, which also required

Miranda warnings. Appendix at 12a-l4a; 57a-

59a, and Commonwealth v. Bruder, Supra. at

113-14, 528 A.2d at 1388. Judge Rowley filed

a concurring and dissenting opinion, voting to

affirm the Judgment of Sentence. The

Commonwealth filed an Application for

Reargument from this determination. The

Superior Court, by Order dated June 8, 1987,

denied reargument, but took the unusual

action of sua sponte ordering panel

reconsideration limited to the issue of the

sufficiency of the evidence. A copy of that

Order is attached hereto as Appendix E. On

July 21, 1987 the panel found the evidence

presented at trial sufficient to support the

verdict, but again reversed the judgment of

sentence, Judge Rowley again dissenting. A

10

copy of that Opinion is attached hereto as

Appendix A. The Commonwealth filed a

Petition for Allowance of Appeal inthe

Supreme Court of Pennsylvania. By an Order

dated May 19, 1988, the Supreme Court denied

the Commonwealth's Petition. A copy of that

Order is attached hereto as Appendix F. The

Commonwealth now seeks this Court's review

of the Superior Court's Opinion and Order.

11

REASONS FOR GRANTING THE WRIT

A. THE FOURTH, FIFTH, SIXTH, AND

FOURTEENTH AMENDMENTS TO THE

UNITED STATE CONSTITUTION DO NOT

REQUIRE THAT A FIELD SOBRIETY TEST

CONSISTING OF THE RECITATION OF THE

ALPHABET BE PRECEDED BY WARNINGS OF

THE INDIVDUAL'S RIGHTS AGAINST SELF-

INCRIMINATION.

The Pennsylvania Superior Court has

decided a question of federal law! in conflict

with the applicable decisions of this Court by

holding that a field sobriety test consisting of

the recitation of the alphabet must be

preceded by Miranda? warnings. The

1 The Superior Court opinion did not

base its decision upon the Pennsylvania

Constitution, nor did it make a plain

Statement that its decision was based on

independent state grounds. The decision is

thus presumed to be based on federal]

constitutional grounds. Delaware v. Van

Arsdall, 475 U.S. 673, 106 S.ct. 1431, 69

L.Ed.2d. 674 (1986).

2 Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2a 694 (1966).

12

ten le

Superior Court's opinion is based on its

holding that the recitation of the alphabet is

testimonial in nature. This holding is in

direct conflict with the prior decisions of this

Court.

In United States v. Wade, 388 U.S. 218,

87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), this

Court held that requiring a defendant to

participate in a line-up and speak the words

spoken by the perpetrator of the crime did

not violate the defendant's right against self-

incrimination. The Court concluded that

Wade's voice was being used to identify

physical characteristics and that he was not

being compelled to utter statements of a

testimonial nature. In United States v.

Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d

67 (1973), the Court held that compelling

voice exemplars does not violate a defendant's

privilege against self-incrimination since the

voice exemplars were used solely to measure

the physical properties of the witness's voice,

13

not for the testimonial or communicative

content of what was to be said.

The Pennsylvania Superior Court, in

direct conflict with the holdings of this

Court, based its decision solely on the fact

the evidence in question came from the

defendant's mouth. The Superior Court used

an improper analysis. The mere fact that the

evidence originated from the defendant's

mouth is not the end of the analysis. Self-

incrimination protections are only implicated

when the evidence is testimonial or

communicative. Schmerber v. California, 384

U.S. 757, 86 S.Ct 1826, 16 L.Ed.2d. 908 (1966),

and it is the testimonial or communicative

nature of the evidence which is the proper

inquiry. Since the recitation of the alphabet

is designed to test the degree to which a

suspect's faculties are impaired, itisa

physical test. No communicative value exists

at all in the substantive sounds being uttered

by the individual. In view of the applicable

14

a ee

Poe ae vee ere

decisions of this Court, the Pennsylvania

Superior Court erred in concluding otherwise.

The instant matter is an appropriate

case for this Court to review inasmuch as the

precise issue presented has never been

directly addressed by this Court, yet is

important, in view of the large number of

drunk driving cases occurring nationwide.?

3 This issue has not been directly

addressed by most state courts, but all which

have done so have held the recitation of the

alphabet to be non-testimonial and not wi thin

the purview of the constitutional protections

against self-incrimination. State v. Theriault,

144 Ariz. 166, 696 P.2d 718 (1984); Peoplev.

Helm, 633 P.2da 1071 (Colo. 1981); Oxholm v.

District of Columbia, 464 A.2d 113 (D.C.App.

1983); Montgomery v. State, 174 we.Rap. aoe

329 S.E.2d ise LOE State v. Hartwig,

Idaho 370, 732 P.2d 339 (1987); Beopl ev.

Saturda 482 N.E.2d 1124 (111.App.2 Dist.

1985); MCAVo v. State, 70 Md.App. 661, 523

A.2a 618 (1 y; People v. Burhans, 421

N.W.2d 285 (Mich.App. 1968); Butlerv.

Commissioner of Public Safety, 348 N.W.

(Minn. App. l ; State v. Medenbach, 48

Ore. App. 133, 616 P.2d 543 (1980); Statev.

Roadifer, 346 N.W.2d. 438 (S.D. 1984).

15

B. THE FOURTH, FIFTH, SIXTH, AND

FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION DO NOT

REQUIRE THAT BRIEF QUESTIONING AT A

ROUTINE TRAFFIC STOP BE PRECEDED BY

WARNINGS OF THE INDIVIDUAL'S RIGHTS

AGAINST SELF-INCRIMINATION.

The Pennsylvania Superior Court's

holding that brief roadside questioning of a

driver during a routine traffic stop must be

preceded by Miranda warnings is in direct

conflict with this Court's holding in Berkemer

v. McCarty, 468 U.S. 427, 104 S.Ct. 3138, 82

L.Ed.2d 317 (1984), which held that Miranda

warnings are not required in such

circumstances. The Superior Court relied

upon Commonwealth v. Meyer, 488 Pa. 297,

412 A.2da 517 (1980) in holding that the police

should have given Bruder Miranda warings

prior to asking him questions during the

traffic stop. This Court, however, specifically

-rejected Commonwealth v. Meyer and its

16

ee et | i a oe ae

at a Ae

reasoning Berkemer v. McCarty, supra. at nn.7

and 8.

Since the Pennsylvania Superior Court

has ignored the plain holding of Berkemer v.

McCarty and instead followed federal law4

which this Court rejected, it is respectfully

submitted that the instant case is appropriate

for review by this Court.

4 See Footnote 1, supra.

17

CONCLUSION

For all the foregoing reasons, the

Commonwealth of Pennsylvania respectfully

requests that a Writ of Certiorari issue to

review the decision below.

Respectfully submitted,

Joseph J. Mittleman

Assistant District

Attorney

(Counsel of Record)

Sandra L. Elias

Deputy District Attorney

Chief, Law and Appeals

Unit

William H. Ryan, Jr.

District Attorney

Court House

Media, PA 19063

(215) 891-4210

18

oe eee

an Nl ce EO.

|

)

;

|

:

;

!

.

|

APPENODI X

la

COMMONWEALTH OF PENNSYLVANIA

Vv.

THOMAS A BRUDER, JR.,

Appellant

IN THE SUPERIOR COURT OF

PENNSYLVANIA

NO. 02176 Philadelphia 1986

JUDGMENT

ON CONSIDERATION WHEREOF, it is

now here ordered and adjudged by this Court

that the judgment of the Court of Common

Pleas of Delaware County be, and the same is

hereby Reversed and Remanded for Further

Proceedings. Jurisdiction Relinquished.

BY THE COURT:

David A. Szewczak

Prothonotary

Dated: July 21, 1987

APPENDIx "A"

2a

COMMONWEALTH OF PENNSYLVANIA

Vv.

THOMAS A. BRUDER, JR.,

Appellant

IN THE SUPERIOR COURT OF

PENNSYLVANIA

NO. 02176 Philadelphia 1986

Appeal from the Judgment of Sentence July

23, 1986 in the Court of Common Pleas of

Delaware County, Criminal No. 303 of 1985

BEFORE: CIRILLO, P.J-, ROWLEY AND

HOFFMAN, JJ.

OPINION BY CIRILLO, P.J.:

This is an appeal froma judgment

of sentence, following a non-jury trial, for

driving under the influence of alcohol and

related offenses. We reverse and remand.

The issues presented for our review

are: (1) whether the criminal complaint should

have been dismissed due to its defects; (2)

whether certain evidence was properly

admitted at trial; and (3) whether the verdict

was supported by sufficient evidence.

A patrolman stopped appellant

Bruder's car after the officer saw him pass a

3a

red light. The patrolman also witnessed what

he described as Bruder's erratic driving

behavior. When the policeman approached

Bruder, he noticed indicia of intoxication.

The patrolman testified that Bruder was

unable to walk in a straight line, heel to toe,

or recite the complete alphabet. Appellant

was then arrested for driving under the

influence of alcohol, and informed of his

rights as required by Miranda v. Arizona, 384

U.S. 436, 467-73 (1966).

I

Appellant argues that the complaint

filed against him was defective and,

therefore, should have been dismissed. More

specifically, appellant asserts that the

complaint violated Pennsylvania Rules of

Criminal Procedure 132 and 134.

The alleged violation by the

Commonwealth of Rule 132 was its failure to

include a verification with the complaint.

Rule 132(9) requires that every complaint

include a “verification by the affiant that the

4a

facts set forth in the complaint are true and

correct to the affiant's personal knowledge or

information and belief, and that any false

statements therein are made subject to the

penalties .. . relating to unsworn falsification

to authorities .« « -«

In the case at bar, the arresting

officer, in filing the complaint, used an old

form which was designed to conform to an

older version of Rule 132. The complaint did

not conform to the current version of Rule

132 because it did not contain the required

clause that false statements were subject to

the penalties of unsworn falsification.

The trial court found that based on

Pa. R. Crim P. 150, the defect in the

complaint did not warrant dismissal of the

charges. Pa. R. CrimP. 150 provides that a

"defendant shall not be discharged nor shall a

case be dismissed because of a defect in the

form or content of a complaint, summons or

warrant, or a defect in the procedures of this

chapter, unless the defendant raises the

5a

defect before the conclusion of the

preliminary hearing and the defect is

prejudicial to the rights of the defendant."

The trial court noted that the

defect concerning the absence of a

verification was not raised in this case until

after the preliminary hearing and suppression

hearing. The trial court also observed, and

we agree, that the appellant was aware of the

charges against him and was not prejudiced

by the defect in the complaint.

We express displeasure with the

failure of the police to fully comply with the

requisite formof acomplaint. The plain

language of Rule 150, however, does not

permit us to discharge the complaint inthis

particular case because the defect was

neither timely raised nor was it prejudicial to

the appellant.

Appellant also contends that Pa. R.

Crim. P. 134 was violated. Rule 134 provides

that in any proceeding initiated by a

complaint, the issuing authority shall

6a

ascertain and certify on the complaint that

there is probable cause, inthe formof an

affidavit, for the issuance of process.

Notwithstanding appellant's

assertion tothe contrary, we discern no

language in the rule, or in the comments to

the rule, which require the police to

personally appear and verify the complaint

before the district justice involved in the

case. Because we find no violation of Rule

134, we cannot dismiss the complaint on this

basis.

Appellant also argues that the

defective complaint was a violation of Pa. R.

Crim. P. 130(d). We need not a“ dress this

argument due to our holding that there were

no fatal defects in the instant complaint.

Il

Bruder argues that certain

statements that he made after he was

stopped, as well as the results of the field

sobriety test, should have been suppressed.

When appellant's car was stopped,

Ja

appellant stepped out and approached the

police vehicle. The police officer asked

appellant for his driver's license, registration

and insurance card. Appellant returned to his

car to obtain the requested information.

After appellant had provided this information,

the police officer asked appellant whether he

had been drinking and appellant responded

that he had. The police officer also asked

appellant where he was going. Appellant

responded that he was going home. Bruder

argues that these responses should be

Suppressed because they were made before he

was advised of his rights pur -uant to Miranda

v. Arizona, 384 U.S. 436, 479 (1966).

Miranda warnings need be given

only when one is subjected to custodial

interrogation. Miranda v. Arizona, 384 U.S.

436, 444 (1966); Berkemer v. McCarty, 468

U.S. 420, 428-29 (1984). In order to

determine whether the responses made by

appellant before he received his Miranda

warnings should have been suppressed, we

must decide whether they were elicited during

curtodial interrogation.

In Berkemer v. McCarty, 468 U.S.

420 (1984), the United States Supreme Court

ruled that a motorist was not in custody

when he was stopped by a police officer who

asked "a modest number of questions and

requested him to perform a simple balancing

test visible to passing motorists.” 468 U.S. at

442. As inthe case at bar, the driver in

McCarty, was stopped after being suspected

of driving under the influence of alcohol,

admitted that he had had a few drinks, and

failed a balancing test before being advised of

his Miranda rights. The Court in McCarty,

however, refused to adopt a bright line test

which would have definitively answered the

question of whether Miranda applies to all

traffic stops or whether a suspect need be

adivsed of his rights only when he is formally

placed under arrest. 468 U.S. at 441. Thus,

we are afforded a measure of flexibility in

deciding exactly when a suspect has been

oe met Ol:

9a

taken into custody.

}

In Pennsylvania, "custodial

interrogation does not require that police

make a formal arrest, nor that the police

intend to make an arrest... Rather, the

test of custodial interrogation is whether the

individual being interrogated reasonably

believes his freedom of action is being

restricted." Commonwealth v. Meyer, 488 Pa.

297, 307, 412 A.2d 517, 521 (1980) (quoting

Commonwealth v. Brown, 473 Pa. 562, 570, 375

A.2d 1260, 1264 (1977). Interrogation in this

context is defined as questioning "“expected

to elicit a confession or other incriminating

statements.'" Commonwealth v. Bracey, 501

Pa. 356, 367, 461 A.2d 775, 780 (1983)

(quoting Commonwealth v. Sero, 478 Pa. 440,

453, 387 A.2d 63, 70 (1978)).

In Commonwealth v. Meyer, the

Pennsylvania Supreme Court ruled that the

driver of a car involved in an accident who

was suspected of driving under the influence

of alcohol and who was told by police to wait

1%a

at the scene until additional police arrived

was in custody for purposes of Miranda. The

Meyer court reasoned that because the

defendant had a reasonable belief that his

freedom of action had been restricted,

statements elicited before he received his

Miranda warnings should have been

suppressed. 488 Pa. at 307, 412 A.2d at 522.

See generally Annotation, Right of Motorist

Stopped by Police Officers To Be Informed at

That Time of His Federal Constitutional

Rights Under Miranda v. Arizona, 25 A.L.R.

3d 1076 (1969) (cases collected).

We rely on Meyer in finding that

Bruder reasonably believed that his freedom

of action had been restricted. Undoubtedly,

he was not free to leave when he made the

statements elicited. That the policeman's

questions were intended to elicit incriminating

statements remains obvious. We cannot

readily accept an alternative reason why

Bruder was asked if he had been drinking.

Thus, based on the reasoning in the Meyer,

lla

case, we conclude that Bruder's response that

he had been drinking shoulé have been

excluded as a statement made during custodial

interrogation without the benefit of Miranda

warnings. See generally McCarty, 468 U.S. at

441 n.34 (United States Supreme Court cites

Meyer in connection with discussion which

intimates that duration of and circumstances

Surrounding traffic stop impact on the

determination of whether there was a

custodial interrogation for purposes of

providing Miranda warnings). As we have

established that custodial interrogation existed

at the point that Bruder was asked whether

he had been drinking, the subsequent response

concerning his destination should also have

been excluded.

Bruder's statement, “You don't

know who I am," was admitted into evidence

over the objection of counsel. Although this

Statement was made before Bruder received

his Miranda warnings, it was a spontaneous

utterance not made in response to a question

12a

by the police officer. In Commonwealth v.

Bracey, 501 Pa. 356, 461 A.2da 775 (1983), the

Pennsylvania Supreme Court ruled that a

statement is admissible notwithstanding the

lack of Miranda warnaings if it was not given

in response to police conduct which evoked

an admission, or if it was freely given

without compelling influences. Id. at 367, 461

A.2da at 780 (quoting Commonwealth v. Sero,

478 Pa. 440, 453, 387 A.2d 63, 70 (1978)). It

is clear from the record that this particular

statement by Bruder was freely made in the

absence of evocative police conduct.

Therefore, it was properly admitted.

After appellant informed the police

officer that he had had a few drinks, the

police officer asked the appellant to recite

the alphabet and to walk ina straight line,

heel to toe. Appellant argues that these field

sobriety tests should be suppressed. It is

settled in Pennsylvania that "(r)equiring a

driver to perform physical tests . . .does not

violate the privilege against self-incrimination

13a

because the evidence procured is of a

physical nature rather than testimonial, and

therefore, no Miranda warnings are required."

Commonwealth v. Benson, 280 Pa. Super. 20,

29, 421 A.2d 383, 387 (1980).

Although requiring Bruder to walk

in a straight line was a physical test which

need not have been preceded by Miranda

warnings, we cannot readily reach the same

conclusion regarding Bruder's recitation of

the alphabet. Whereas the constitutional

protection against self-incrimination which

Miranda was designed to protect does not

encompass physical evidence, it does refer to

testimonial evidence. Benson, 280 Pa. Super.

at 29, 421 A.2d at 387. “Testimonial evidence

is communicative evidence as distinguished

from demonstrative or physical evidence."

Commonwealth v. Fernandez, 333 Pa. Super.

279, 284, 482 A.2d 567, 569 (1984).

We view the recitation of the

alphabet as essentially communicative in

nature. Therefore, because the recitation was

l4a

elicited before Bruder received his Miranda

warnings, it should have been excluded as

evidence. Benson, 280, Pa. Super. at 29, 421

A.2d at 387 (citing United Stated v. Wade,

388 U.S. 218 (1967); Schmerber v. California,

384 U.S. 757 (1966)). See Miranda, 384 U.S.

at 479.

In order to reverse on the basis of

the introduction of inadmissible evidence, we

must find an abuse of discretion as well asa

showing of actual prejudice resulting from the

tainted evidence. Commonwealth v. Sweger,

351 Pa. Super. 188, 195, 505 A.2d 331, 334

(1986) (citing Lewis v. Prewitt, 337 Pa. Super.

419, 487 A.~2da 16 (1985))3 see also

Commonwealthy v. Smoyer, 505 Pa. 83, 88, 476

A.2da 1304, 1307 (1984) (effect of tainted

evidence); Commonwealth v. Johnson, 227 Pa.

Super. 96, 102-03, 323 A.2d 813, 816 (1974)

(same).

Based on our analysis which

determined that evidence obtained during

Bruder's custodial interrogation was

15a

inadmissible, wehold that it was an abuse of

discretion to admit such evidence.

Introduction of the tainted evidence was

clear!y prejudicial to Bruder because the

absence of such evidence might very well

have ledtoa different verdict. Thus, we

must reverse and remand for proceedings

consistent with this opinion.

III

The last issue presented is whether

there was sufficient evidence to find

appellant guilty of driving under the

influence of alcohol, 75 Pa. C.S. 83731.

Our standard of review for this

issue is limited. We must “view the evidence

in the light most favorable to the

Commonwealth (as verdict winner) and,

drawing all reasonable inferences therefrom

favorable to the Commonwealth, determine if

there is sufficient evidence to enable the

trier of fact to find every element of the

Crime beyond a reasonable doubt.”

Commonwealth v. Stoyke, 504 Pa. 455, 462,

l6a

475 A.2da 714, 718 (1984) (citing

Commonwealth v. Hudson, 489 Pa. 620, 414

A.2d 1381 (1980).

Even though we have determined in

part II of this opinion that certain evidence

should not have been admitted, we also

recognize that when reviewing the sufficiency

of the evidence, the “entire record with all

evidence actually received must be considered,

whether or not the lower court's rulings

thereon were correct." Commonwealth v.

Minnis, 312 Pa. Super. 53, 55, 458 A.2d 231,

232 (1983). See Commonwealth v. Manhart,

349 Pa. Super. 552, 556, 503 A.2d 986, 988

(1986); see also Commonwealth v. Nelson, 320

Pa. Super. 488, 494, 467 A.2d 638, 641 (1983)

(In passing upon the sufficiency of the

evidence, we evaluate all of the evidence,

whether erroneously received or not. The

proper remedy for prejudicial error due to

inadmissible evidence is grant of a new trial

with such evidence excluded). In Minnis, we

found that the record as a whole indicated

17a

that the evidence was sufficient, but we

reversed and remanded because we ruled that

certain out-of-court identifications should

have been suppressed.

We have the benefit of a recent

consideration of the sufficiency of evidence

in connection with 75 Pa. C.S. $3731, by the

Pennsylvania Supreme Court in Commonwealth

v. Griscavage, 512 Pa. 540, 517 A.2d 1256

(1986). The sole issue in Griscavage was

whether there was sufficient evidence to

establish guilt beyond a reasonable doubt on

the charge of driving while under the

influence of alcohol.

The Court stated that in order to

establish the defendant's guilt, "the

Commonwealth had to prove: (1) that he was

operating a motor vehicle, (2) while under the

influence of alcohol to a degree which

rendered him incapable of safe driving."

Griscavage, 512 Pa. at __, 517 A.2d at 1258;

75 Pa. C.S. §3731(a) (1) (citations omitted). As

in the case before us, there was no dispute in

18a

Griscavage regarding the first element. With

respect to the second element, the Court

quoted an interpretation of the phrase “under

the influence of alcohol,” which, though based

ona prior statute, is applicable to the

current version of 8$3731(a)(1).

The statute does not

require that a person be

drunk, or intoxicated, or

unable to drive his

automobile safely in

traffic, but merely that

the Commonwealth prove

beyond a reasonable

doubt that the defendant

was operating his

automobile under the

influence of intoxicating

liquor _—

The statutory expression

"under the influence of

intoxicating liquor”

includes not only all the

well known and easily

recognized conditions and

degrees of intoxication,

but also any mental or

physical condition which

is the result of drinking

alcoholic beverages and

(a)which makes one unfit

to drive an automobile,

or (b)which substantiall

ciearness O or

any of the normal

acuities

Sate ° eration of an

automo e.

19a

Commonwealth v. Dougherty, 351 Pa. Super.

603, 609, 506 A.2d 936, 939 (1986) (Cirillo, J.,

now P.J.), we held that the evidence was

sufficient to support a conviction under 75

Pa. C.S. 83731 where the defendant was

observed operating a motor vehicle that was

swerving from side to side. Upon stopping

the vehicle in Dougherty, the police noticed

the odor of alcohol and an accumulation of

alcoholic beverages inside the vehicle. The

driver in Dougherty did not perform well in

field sobriety tests and had difficulty walking

and standing upright without placing his

hands on his vehicle. Although in the case

before us there was no evidence of an

accumulation of alcoholic beverages inside the

vehicle, we find that the Dougherty case is

substantially similar to the case at bar and

we rely on it as a basis for our decision.

Based on our application of

Griscavage and Dougherty, and viewing the

evidence as a whole in the light most

favorable to the Commonwealth, we conclude

29a

Griscavage, 512 Pa. at , 517 A.2d at 1258

(emphasis in original) (quoting Commonwealth

v. Horn, 395 Pa. 585, 590-91, 150 A.2d 872,

875 (1959)).

In the instant case, the record

indicates that appellant had been drinking,

had been driving erratically, and had

performed poorly in field sobriety tests.

The trier of fact concluded that those

faculties essential to the safe operation of an

automobile were substantially impaired by

appellant's drinking.

The Griscavage, case instructs us

to consider indicia of intoxication together

with the other circumstances surrounding the

traffic stop. Based onall the evidence

presented in the trial court, these indicia and

circumstances support an inference of

substantial impairment of faculties sufficient

to satisfy the test in Horn.,

We recently upheld a conviction for

driving under the influence in a case that

was factually similar to the instant case. In

- Oe ee lh le ee

2la

that there was adequate support for finding

the appellant guilty of driving under the

influence of alcohol. As we discussed earlier,

however, and as we did no Minnis, we must

still reverse and remand. See Nelson.

Reversed and remanded for

proceedings consistent with this opinion.

Jurisdiction is relinquished.

ROWLEY, J. files a Concurring and

Dissenting Statement.

22a

COMMONWEALTH OF PENNSYLVANIA

Vv.

THOMAS A. BRUDER, JR.,

Appellant

I N THE SUPERIOR

PENNSYLVANIA

COURT OF

NO. 2176 Philadelphia 1986

Appeal from the Judgment of Sentence July

23; 1986, inthe Court of Common Pleas of

Delaware County, Criminal Division, No. 303

of 1985.

BEFORE: CIRILLO, P.J.-, ROWLEY, and

HOFFMAN, JJ.

CONCURRING AND DISSENTING STATEMENT

BY ROWLEY, J:

While I agree with the majority's

disposition of the first and third issues

concerning dismissal of the criminal complaint

and sufficiency of the evidence, I respectfully

disagree with the conclusion that appellant's

statements should have been suppresssed

under Commonwealth v. Meyer, 488 Pa. 297,

412 A.2d 517 (1980). I think that Meyer is

distinguishable on its facts and that the facts

in this case closely parallel those in Berkemer

v. McCarty, 468 U.S. 420 (1984). Considering

23a

also that the U.S. Supreme Court cited Meyer

as an example of the confusion among various

jurisdictions in applying Miranda v. Arizona,

384 U.s. 436 (1966) to situations involving

motorists stopped for traffic violations, I

think that Berkemer is controlling inthis

case. I would affirm the judgment of

sentence.

24a

IN THE COURT OF COMMON PLEAS OF

DELAWARE COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA :

THOMAS A BRUDER, JR. :

Jana Nestlerode, Esquire-Assistant District

Attorney

Court House

Media, PA 19063

Carmen Belefonte, Esquire-Attorney for

Defendant

Lawyers Title Building, 214 N. Jackson St.

Media, PA 19063

PRESCOTT, J.

CRIMINAL DIVISION

ORDER

AND NOW, towit, this 26th day of July,

1985, a hearing having been held in open

Court, pursuant to a Petition to Suppress

filed on behalf of the Defendant, at which

hearing the Defendant was present with his

attorney, and an opportunity having been

given the Defendant and his counsel to cross-

examine Commonwealth witnesses, and an

opportunity having been given to the

Defendant to present witnesses and the

APPENDIX “"B"

25a

Defendant not having taken advantage of this

opportunity to either take the witness stand,

or to present witnesses in his own behalf

which facts do not prejudice his legal rights

in any way, the court makes the following:

I. FINDINGS OF FACT

1. On January 19, 1985, at i2:50 A.M.

Patrolman Steve Shallis of the Newtown

Township Police Department observed a blue

over silver Lincoln Continental in the right

hand operating lane of Route 252. The

vehicle was facing a green traffic signal at

the intersection of Routes 252 and 3. It was

stationary and remained so for 10-15 seconds

before proceeding through the intersection.

2. Officer Shallis followed the subject

vehicle as it proceeded north on Route 252 at

25 M.P.H. ina 40M.P.H. zone. He observed

the vehicle swerve into the left hand passing

lane, almost going into the medial strip, and

then back, onto the right hand shoulder. The

operator of the Lincoln activated his high

beams, despite visual warnings from vehicles

26a

proceeding inthe opposite direction and

continued to drive on the shoulder for

approximately 100 feet before reentering the

highway.

3. As the vehicle approached the

intersection of Route 252 and Goshen Road

the traffic signal at the intersection displayed

a steady red signal. The vehicle continued

toward this intersection and, as it began

entering the intersection, the operator made

an abrupt right hand turn onto Goshen Road,

without stopping for the red signal. This

turn was made in such a wide manner that

the Lincoln was now proceeding eastbound in

the west bound lane, and continued to do so

for 150 feet.

4. Officer Shallis activated the red

lights on his unmarked police vehicle and

stopped the Lincoln at Goshen and

Brookhaven Roads.

5S. The operator of the vehicle exited

it, stumbling as he did so, and walked very

rapidly to the police vehicle.

27a

6. Officer Shallis advised the operator

to produce a driver's license and registration

card for the vehicle. The operator turned

and walked back toward his vehicle with

Officer Shallis fo] lowing him. The operator

had difficulty removing his wallet from his

pocket, however he handed Officer Shallisa

Florida driver's license which identified him

as Thomas A. Bruder, the Defendant.

7. Mr. Bruder informed Officer Shallis

that he was going to his home in Springfield.

The Officer detected a Strong odor of an

alcoholic beverage on mr. Bruder's breath,

and observed that his eyes were blood shot

and his face was flushed.

8. Officer Shallis asked the Defendant

if he could produce a registration card for

the vehicle. Mr. Bruder went into the

vehicle, opened the glove compartment,

removed a large stack of papers and began

fumbling through them, Passing the

registration card several times.

9. Officer Shallis requested that the

28a

Defendant step out of the vehicle and

repeated this request three times before the

Defendant did so. He asked Mr. Bruder to

walk a straight line, heel to toe, six steps

forward, and then six steps back. The

Defendant was unable to place one foot in

front of the other and continued to walk

forward for 15 steps until he walked into the

police vehicle. As he walked back, Defendant

continued to sway from side to side.

10. Officer Shallis asked the Defendant

to recite the alphabet out loud. Defendant

recited it by stating five or six letters at a

time and hesitating before starting again.

ll. Officer Shallis advised the Defendant

that he was under arrest for operating a

vehicle under the influence of alcohol. The

defendant was placed in the rear of a police

vehicle and was advised of his Miranda rights.

Mr. Bruder responded by stating that he

understood his rights.

12. The Defendant was transported to

the Newtown Township Police Station for

29a

Processing. At the Police Station he was

again advised of his Miranda rights. Officer

Shallis requested Defendant to submit toa

chemice test of his breath, blood, or urine to

determine the alcohol content of his blood.

He advised Mr. Bruder that he had the right

to refuse, but that a refusal would result ina

12 months suspension of his operating

privilege and that a refusal to submit toa

chemical test would be used against Defendant

in acourt of law. The Defendant refused to

submit to any chemical tests, Stating that he

understood the consequences of such a

refusal.

II. CONCLUSIONS OF LAW

1. The observations made by Officer

Shallis as he followed the Defendant's vehicle

on January 19, 1985 established sufficient

probable cause to stop and administer field

sobriety tests to the Defendant.

2. The field sobriety tests administered

to the Defendant did not violate any of the

Defendant's Constitutional Rights.

3%

3. The statements and responses given

by the Defendant were obtained pursuant to

lawful inquiries and did not violate any

Constitional Rights of the Defendant.

4. The statements and responses given

by the Defendant further established probable

cause to arrest him.

5. The statements and responses elicited

from the Defendant pursuant to the subject

sobriety tests and inquiries are legally

admissible at his trial subject to relevancy

and other laws of evidence.

6. The nature and purpose of the

suppression hearing and this Order shall not

be disclosed by anyone to anyone, except the

Court, the Defendant and Defendant's counsel.

7. The record made at the Suppression

hearing shall be impounded until after final

judgment.

BY THE COURT:

Rita E. Prescott, J.

3la

IN THE COURT OF COMMON PLEAS OF

DELAWARE COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA :

303-85

vs. :

THOMAS A BRUDER, JR. :

Joseph J. Mittleman, Esquire-Assistant District

Attorney

Court House

Media, PA 19063

Carmen P. Belefonte, Esquire-Attorney for

Defendant

214 N. Jackson Street

Media, PA 19063

PRESCOTT, J. Piled:Mayl14,1986

Defendant, Thomas A. Bruder, Jr., was

convicted by a judge sitting without a jury

for the charges of Driving Under the

Influence of Alcohol, Reckless Driving and

Driving on Roadways Laned for Traffic.

Defendant filed a Motion for New Trial andaA

Motion in Arrest of Judgment. The issues

raised by said motions are:

1) Whether the verdict was against the

evidence and the weight of the evidence;

APPENDIx "c"

32a

2) Whether the criminal complaint

lodged against Defendant was so legally

defective as to require a dismissal of the

charges;

3) Whether certain statements made by

Defendant and the results of certain field

sobriety tests should have been suppressed

where seid statements and tests preceded the

Miranda warnings given to Defendant.

This opinion is written in disposition of

Defendant's post-trial motions and the issues

raised therein.

The facts of the case established by

testimony and other evidence are as follows:

On January 19, 1985, at or about 12:50

A.M., Patrolman Steve Shallis of the Newtown

Township Police DEpartment coserved a blue

and silver Lincoln Continental in the right

hand operating lane of Route 252 at the

intersection with West Chester Pike. The

vehicle was facing a green traffic signal at

said intersection, however, the vehicle was

stationary and remained so for about ten to

33a

fifteen seconds before proceeding through the

intersection. Officer Shallis followed the

subject vehicle as it proceeded north on

Route 252. The vehicle was travelling ata

speed of 25 m.p.h. ina 40m.p.h. zone and it

swerved into the left hand passing lane,

almost hit the medial strip and then went

back across onto the right hand shoulder of

the road. The operator of the subject vehicle

activated his high beams despite visual

warnings from vehicles proceeding inthe

opposite direction and the said vehicle

continued to travel on the shoulder of the

road for approximately 100 feet before

reentering the highway. As the subject

vehicle approached the intersection of Route

252 and Goshen Road, the traffic signal at

said intersection displayed a steady red signal.

The vehicle continued toward the intersection

and, as it began entering the intersection, the

vehicle made an abrupt right hand turn onto

Goshen Road, without stopping for the red

Signal. The turn was made in such a wide

34a

manner that the subject vehicle was

proceeding eastbound in the westbound lane

and continued to do so for approximately 150

feet.

At this point, Officer Shallis activated

the red lights on his police vehicle and

stopped the subject Lincoln at Goshen and

Brookhaven Roads. The operator of the

Lincoln exited from it, stumbling as he did

so, and walked very rapidly toward the police

car. Officer Shallis asked the operator to

produce a driver's license and a registration

card for the Lincoln. Defendant then went

into his vehicle, opened the glove

compartment, removed a large stack of papers

and began fumbling through them, passing the

registration card several times.

Defendant was then asked to step out of

the vehicle and this request was repeated

three times before Defendant complied.

Officer Shallis asked Defendant to walk a

straight line, heel to toe, six steps forward,

and then six steps back. Defendant was

35a

unable to place one foot in front of the other

and continued to walk forward for 15 steps

until he walked into the police vehicle. As

he walked back, Defendant swerved from side

to side.

Officer Shallis then requested Defendant

to recite the alphabet out loud. Defendant

recited it by stating five or six letters ata

time and hesitated before starting again.

Officer Shallis then advised Defendant that he

was under arrest for operating a vehicle

under the influence of alcohol. Defendant

was placed in the rear of the police vehicle

and was given his Miranda rights. Defendant

responded by stating that he understood his

rights.

Defendant was transported to the

Newtown Township police station for

processing. While at the station, Defendant

was again advised of his Miranda rights.

Officer Shallis requested Defendant to submit

to a chemical test of his breath, blood or

urine to determine the alcoholic content of

36a

his blood. He advised Defendant that he

could refuse atest, but that a refusal would

result in a twelve month suspension of his

operator's license and that a refusal to submit

to a chemical test would be used against him

in acourt of law. Defendant refusal to

submit to any chemical test, stating that he

understood the consequences of such a

refusal.

The first issue raised by Defendant's

post-trial motions is: Whether the verdict was

against the evidence and the weight of the

evidence.

In support of the contention that the

verdict was against the evidence, Defendant

argues that the trial judge did not take into

consideration defense expert testimony that

Defendant had taken certaincold tablets,

which alone could cause a person to exhibit

symptoms of intoxication, and that such was

the case here.

This court considered the expert

testimony presented by Defendant. However,

37a

this Court rejected such testimony as it was

based upon testimony adduced from Defendant

which testimony this Court did not find to

be credible. Comm. v. Shaver, 501 PA. 167,

460 A.2dad 742 (1983).

In addition to all the facts as

hereinbefore set forth, this Court relied upon

certain other evidence in rejecting

Defendant's version of what occurred on the

night in question. When taken to the police

station, Defendant told the police that he had

not beendrinking. At trial, Defendant

admitted that he had been drinking. (N.T. pp.

25, 75-76). On the night in question,

Defendant told the police he was going home,

but at trial, Defendant testified that he was

going to acountryclub. (N.T. pp. 24, 79).

At the time of his arrest, Defendant told the

police that he was not ill, yet attrial,

Defendant testified that he was ill that night

and felt dizzy. (N.T. pp. 26, 128).

Purthermore, Defendant's behavior on the day

of his arrest is not consistent with his

ee

38a

testimony that he was feeling ill on the day

inquestion. He had spent six hours ata

country club, had several drinks, danced and

Played cards - after a full day of work.

In light of the Commonwealth's

overwhelming evidence as set forth above and

viewing said evidence inthe light most

favorable tothe Commonwealth, Comm. vs.

Macolino, 503 PA. 201 469 A.24 132 (1983),

this Court is of the opinion that there is

legally sufficient evidence on the record to

Sustain Defendant's guilt beyond a reasonable

doubt.

The second issue raised by Defendant is:

Whether the criminal complaint lodged against

Defendant was so legally defective as to

require a dismissal of the charges.

Defendant contends that the criminal

complaint filed against him did not contain a

verification by the arresting officer that the

facts set forth inthe complaint were true

and correct according tothe arresting

officer's knowledge, information and belief

39a

and that any false Statements in the

complaint would be subject to the penalties of

Section 4904 of the Crimes Code relating to

unsworn falsification. Asa result, Defendant

contends that the instant complaintis

violative of Pa. R. Crim. Proc. 132 and, thus,

null and void.

Defendant also contends that since the

averments contained inthe complaint were

not sworn to and subscribed by the arresting

officer in the presence of the district justice

involved, the complaint is null and void since

it is violative of Pa. R. Crim. Proc. 134.

Before proceeding to review the merits

of Defendant's contentions, the fol lowing

factual background is set forth:

Defendant was arrested without a

Warrant January 19, 1985, at or about 12:50

A.M., and was released from custody ator

about 3:00 A.M. On January 24, 1985, the

arresting officer Prepared and signed a

Criminal complaint for the issuance of a

Summons against Defendant. Said criminal

4%a

complaint was left at the office of a district

justice on the same day, for the district

justice's signature. The district justice

executed the complaint on the same day

sometime between 1:00 P.M. and 4:30 P.M.

The arresting officer did not personally

appear, sign or swear to the complaint in the

presence of the district justice.

With regard to the vérification

procedures set forth in Pa. R. Crim. Proc.

132, the subject rule provides as follows:

"Every complaint shall contain:

(9) a verification by the affiant that the

facts set forth in the complaint are

true and correct to the affiant's

personal knowledge or information and

belief, and that any false statements

therein are made subject to the penalties

of Section 4904 of the Crimes Code (18

P.C.S. $4904), relating to unsworn

falsification tothe authorities.”

The above-cited rule became effective on

January 2, 1985. Prior to said date, an

affiant was reguired to appear before the

,.

district justice and to swear to the averments

in the complaint.

In the case at hand, the arresting

Gla

officer, in drawing up the complaint, used the

only form available to him, towit, the old

form which was designed to comply with Rule

132 prior to the amendment of said rule. As

a result, the form used in the instant case

did not contain a statement that any false

Statements were subject to the penalties of

84904.

As discussed hereinafter, Pa. R. Crim.

Proc. 134 was also amended effective January

2, 1985, and eliminated the requirement that

an affiant personally appear and swear to the

averments of a complaint before the district

justice involwed in the case. In light of the

aforesaid amendment(s) it is the Opinion of

this Court that the absence of the

verification statement inthe subject

complaint constitutes a procedural defect

where it appears that all other provisions of

the rules of criminal procedure have been

compliedwith. In this case, the subject

defect in no way affected the purpose of the

rules regarding the issuance of a summons

4’%a

which is to put a defendant on notice of the

charges lodged against him.

In support of this conclusion, this Court

relies upon Pa. R. Crim. Proc. 150 which

provides as follows:

“a defendant shall not be discharged nor

shall a case be dismissed because of a

defect in the form or content of a

complaint, summons or warrant, or a

defect in the procedures of this Chapter,

unless the defendant raises the defect

before the conclusion of the preliminary

hearing and the defect is prejudicial to

the rights of the defendant.”

The alleged defect was not raised in this

case until after both the preliminary hearing

and suppression hearing. Defendant was

always well aware of the nature of the

charges against him and he has not

demonstrated any prejudice against him

resulting from the complaint lodged in this

case. In tne opinion of this Court,

Defendant's contention on this point was not

timely raised and lacks sufficient merit to

warrant a dismissal of the charges.

Defendant also contends that the

complaint is null and void because the

43a

averments contained in the complaint were

not sworn to and subscribed by the arresting

officer in the presence of the district justice.

As noted above, Pa. R. Crim. Proc. 134

was amended, effective Senuecy 2, 1985, and

the requirement that an arresting officer

personally appear before a district justice to

Swear to and subscribe his name to the

averments in the complaint was entirely

eliminated. As aresult, this Court finds no

merit in Defendant's contention on this point.

The third issue raised by Defendant's

post-trial motions is: Whether certain

Statements made by Defendant and the results

of the field sobriety tests should have been

suppressed where said statements and tests

preceded the Miranda warnings given top

defendant.

Subsequent to Defendant's car being

stopped, Officer Shallis asked Defendant

where he was going. Defendant responded

that he was going home. When stopped,

Defendant was asked whether he had been

44a

drinking to which he responded that he had.

Defendant's contention that these

Statements should have been suppressed

because they were made prior to any Miranda

warnings is not well-founded. The questions

asked by Officer Shallis were not intended to

nor expected to elicit incriminating

information nor did they constitute custodial

interrogation. Instead, the officer was merely

seeking preliminary information after seeing

Defendant's erratic driving. Such questions

do not require any prior Miranda warnings.

Comm. v. Davis, 460 PA. 37, 331 A.2da 406

(1975).

Defendant's statement, “You don't know

who Il am.” was admitted into evidence over

objection of counsel. This statement was not

made in response to a question, but was a

spontaneous utterance by Defendant. As

such, the admission of the statement into

evidence did not violate Defendant's right

against self-incrimination. Comm. v. Bracey,

501 PA. 356, 461 A.~2a@ 775 (1983).

45a

With regard to the results of the field

sobriety tests, the law is clear in

Pennsylvania that Miranda warnings are not

required before the administration of field

sobriety tests because such tests are physical

in nature rather than testimonial and,

therefore, do not violate the right against

self-incrimination. Comm v. Benson, 280 PA.

Super. 20, 421 A.2d4 383 (1980); Comm v.

Kloch, 230 PA. Super. 563, 327 A.24a 375

(1974).

In light of all the foregoing facts and

legal authorities cited, this Court has entered

an Order dated the 9th day of May, 1986,

dismissing Defendant's post-trial motions.

BY THE COURT:

Rita E. Prescott...

46a

J. 01010/87

COMMONWEALTH OF PENNSYLVANIA

V-«

THOMAS A. BRUDER, JR.,

Appellant

IN THE SUPERIOR COURT OF

PENNSYLVANIA

NO. 02176 PHILADELPHIA 1986

JUDGMENT

On Consideration Whereof, it is now

here ordered and adjudged by this Court that

the judgment of the Court of Common Pleas

of Delaware County be, and the same is

hereby reversed and remanded. Jurisdiction

relinquished.

BY THE COURT:

David A. Szewczak

Prothonotary

Dated March 30, 198?

APPENDIx “Dd”

47a

COMMONWEALTH OF PENNSYLVANIA

V.

THOMAS A BRUDER, JR.,

Appellant

IN THE SUPERIOR COURT OF

PENNSYLVANIA

NO. 02176 PHILADELPHIA 19386

Appeal from the Judgment of Sentence July

23, 1986 in the Court of Common Pleas of

Delaware County, Criminal No. 303 of 1985.

BEFORE:

HOFFMAN,

CIRILLO,

JJ.

P.J.-, ROWLEY AND

OPINION BY CIRILLO, P.J.:

This is an appeal froma judgment

of sentence, following a non-jury trial, for

driving under the influence of alcohol and

related offenses. We reverse and remand.

The issues presented for our review

are: (1) whether the criminal complaint should

have been dismissed due to its defects; (2)

whether certain evidence was properly

admitted at trial; and (3) whether the verdict

was supported by sufficient evidence.

indicates that a

The record

patrolman stopped appellant Bruder's car after

48a

the officer saw him pass ared light. The

patrolman also witnessed what he described as

Bruder's erratic driving behavior. When the

policeman approached Bruder, he noticed

indicia of intoxication. The patrolman

testified that Bruder was unable to walk ina

straight line, heel to toe, or recite the

complete alphahet. Appellant was then

arrested for driving under the influence of

alcohol, and informed of his rights as

required by Miranda v. Arizona, 384 U.S.1 436,

467-73 (1966).

I

Appellant argues that the complaint

filed against him was defective and,

therefore, should have been dismissed. More

specifically, appellant asserts that the

complaint filed in the instant case violated

Pennsylvania Rules of Criminal Procedure 132

and 134.

The alleged violation by the

Commonwealth of Rule 132 was its failure to

include a verification with the complaint.

49a

Rule 132(9) requires that every complaint

include a “verification by the affiant that the

facts set forth in the complaint are true and

correct to the affiant's personal knowledge or

information and belief, and that any false

statements therein are made subject to the

penalties... relating to unsworn falsification

to authorities .. ."

In the case at bar, the arresting

officer, in filing the complaint, used an old

form which was designed to conform to an

older version of Rule 132. The complaint

filed in the instant case did not conform to

the current version of Rule 132 because it did

not contain the required clause that false

statements were subject to the penalties of

unsworn falsification.

The trial court found that based on

Pa. R. Crim. P. 150, the defect in the

complaint did not warrant dismissal of the

charges. Pa. R. Crim. P. 150 provides that a

"defendant shall not be discharged nor shall a

case be dismissed because of a defect inthe

59a

form or content of a complaint, summons or

warrant, or a defect in the procedures of this

chapter, unless the defendant raises the

defect before the conclusion of the

preliminary hearing and the defect is

prejudicial to the rights of the defendant.”

The trial court noted that the

defect concerning the absence of a

verification was not raised in this case until

after the preliminary hearing and suppression

hearing. The trial court also observed, and

we agree, that the appellant was aware of the

charges against him and was not prejudiced

by the defect in the complaint.

We express displeasure with the

failure of the police to fully comply with the

requisite formof a complaint. The plain

language of Rule 150, however, does not

permit us to discharge the complaint inthis

particular case because the defect was neither

timely raised nor was it prejudicial to the

appellant.

Appellant also contends that Pa.

5la

R. Crim. 134 was violated. Rule 134 provides

that in any proceeding initiated by an

complaint, the issuing authority shall

ascertain and certify on the complaint that

there is probable cause, inthe form of an

afficavit, for the issuance of process.

Notwithstanding appellant's

assertion tothe contrary, we discern no

language inthe rule, or in the comments to

the rule, which require the police to

personally appear and verify the complaint

before the district justice involved in the

case. Because we find no violation of Rule

134, we cannot dismiss the complaint on this

basis.

Appellant also argues that the

defective complaint was a violation of Pa. R.

Crim. P. 130(d). We need not address this

argument due to our holding that there were

no fatal defects in the instant complaint.

Il

Bruder argues that certain

Statements that he made after he was

5’a

stopped, as well as the results of the field

sobriety test, should have been suppressed.

When appellant's car was stopped,

appellant stepped out and approached the

police vehicle. The police officer asked

appellant for his driver's license, registration

and insurance card. Appellant returned to his

car to obtain the requested information.

After appellant hed provided this information,

the police officer asked appellant whether he

had been drinking and appellant responded

that he had. The police officer also asked

appellant where he was going. Appellant

responded that he was going home. Bruder

argues that these responses should be

suppressed because they were made before he

was advised of his rights pursuant to Miranda

v. Arizona, 384 U.S. 436, 444 (1966); Berkemer

v. McCarty, 468 U.S. 420, 428-29 (1984). In

order to determine whether the responses

made by appellant before he received his

Miranda warnings should have been

suppressed, we must decide whether they were

53a

elicited during custodial interrogation.

In Berkemer v. McCarty, 468 U.S.

420 (1984), the United States Supreme Court

ruled that a motorist was not in custody

when he was stopped by a police officer who

asked “a modest number of questions and

requested himtc perform a simple balancing

test visible to passing motorists." 468 U.S. at

442. As inthe case at bar, the driver in

McCarty was stopped after being suspected of

driving under the influence of alcohol,

admitted that he had a few drinks, and failed

a balancing test before being advised of his

Miranda rights. The Court in McCarty,

however,a refused to adopt a bright line test

which would have definitively answered the

question of whether Miranda applies of his

rights only when he is formally placed under

arrest. 468 U.S. at 441. Thus, we are

afforded a measure of flexibility in deciding

exactly when a suspect has been taken into

custody.

In Pennsylvania, “custodial

54a

interrogation does not require that police

make a formal arrest, nor that the police

intend to make an arrest... Rather, the

test of custodial interrogation is whether the

individual being interrogated reasonable

believes his freedom of action is being

restricted." Commonwealth v. Meyer, 488 Pa.

297, 307, 412 A.2da 517, 521 (1980) (quoting

Commonwealth v. Brown, 473 Pa. 562, 570, 375

A.2da 1260, 1264 (1977). Interrogation in this

context is defined as questioning "expected

to elicit a confession or other incriminating

statements.'". Commonwealth v. Bracey, 501

Pa. 356, 367, 461 A.2da 775, 780 (1983)

(quoting Commonwealth v. Sero, 478 Pa. 440,

453, 387 A.2d 63, 70 (1978)).

In Commonwealth v. Meyer, supra,

the Pennsylvania Supreme Court ruled that

the driver of a car involved in an accident

who was suspected of driving under the

influence of alcohol and who was told by

police to wait at the scene until additional

police arrived, was in custody for purposes of

55a

Miranda. The Meyer court reasoned that

because the defendant had a reasonable belief

that his freedom of action had been

restricted, statements elicited before he

received his Miranda warnings should have

been suppressed. 488 Pa. at 307, 412 A.2dat

522. See generally Annotation, Right of

Motorist Stopped by Police Officers To Be

Informed at That Time of His Federal

Constitutional Rights Under Miranda v.

Arizona, 25 A.L.R. 3d 1076 (1969) (cases

collected).

We rely on Meyer in finding that

Bruder reasonably believed that his freedom

of action had been restricted. Undoubtedly,

he was not free to leave when he made the

Statements elicited. That the policeman's

questions were intended to elicit incriminating

Statements remains obvious. We cannot

readily accept an alternative reason why

Bruder was asked if he had been drinking.

Thus, based on the reasoning inthe Meyer

case, we conclude that Bruder's response that

56a

he had been drinking should have been

excluded as a statement made during custodial

interrogation without the benefit of Miranda

warnings. Meyer, 488 Pa. at 307, 412 A.2d at

522. See generally McCarty, 468 U.S. at 441

n.34 (United States Supreme Court cites

Meyer in connection with discussion which

intimates that duration of and circumstances

surrounding traffic stop impact on the

determination of whether there was a

custodial interrogation for purposes of

providing Miranda warnings.) As we have

established that custodial interrogation existed

at the point Bruder was asked whether he

had been drinking, the subsequent response

concerning his destination should also have

been excluded.

Bruder's statement, "You don't

know who I am," was admitted into evidence

over the objection of counsel. Although this

statement was made before Bruder received

his Miranda warnings, it was a spontaneous

utterance not made in response to a question

57a

by the police officer. In Commonwealth v.

Bracey, 501 Pa. 356, 461 A.2d 775 (1983) , the

Pennsylvania Supreme Court ruled that a

Statement is admissible notwithstanding the

lack of Miranda warnings if it was not given

in response to police conduct which evoked

an admission, or if it was freely given

without compelling influences. Id. at 367, 461

A.2d at 780 (quoting Commonwealth v. Sero,

478 Pa. 440, 453, 387 A.2d 63, 70 (1978). It is

clear fromthe record that this particular

statement by Bruder was freely made in the

absence of evocative police conduct.

Therefore, it was Properly admitted,

After appellant informed the police

officer that he had had a few drinks, the

police officer asked the appellant to recite

the alphabet and to walkina Straight line,

heel to toe. Appellant argues that these field

sobriety tests should be Suppressed. Itis

settled in Pennsylvania that " (r)equiringa

driver to perform physical tests ... does not

violate the Privilege against self-

58a

incrimination because the evidence procured is

of a physical nature rather than testimonial,

and therefore, no Miranda warnings are

required." Commonwealth va. Benson, 280 Pa.

Super. 20, 29, 421 A.2d 383, 387 (1980).

Although requiring Bruder to walk

in a straight line was a physical test which

need not have been preceded by Miranda

warnings, we cannot readily reach the same

conclusion regarding Bruder's recitation of

the alphabet. Whereas the constitutional

protection against self-incrimination which

Miranda was designed to protect does not

encompass physical evidence, it does refer to

testimonial evidence. Benson, 280 Pa. Super.

at 29, 421 A.2d at 387. "Testimonial evidence

is communicative evidence as distinguished

from demonstrative or physical evidence."

Commonwealth v. Fernandez, 333 Pa. Super.

279, 284, 482 A.2d 567, 569 (1984).

We view the recitation of the

alphabet as essentially communicative in

nature. Therefore, because the recitation was

59a

elicited before Bruder received his Miranda

warnings, it should have been excluded as

evidence. Benson, 280 Pa. Super. at 29, 421

A.2d at 387 (citing United States v. Wade, 388

U.S. 218 (1967); Schmerber v. California, 384

U.S. 757 (1966)). See Miranda, 384 U.S. at

479.

In order to reverse on the basis of

the introduction of inadmissible evidence, we

must find an abuse of discretion as well asa

showing of actual prejudice resulting from the

tainted evidence. Commonwealth v. Sweger,

351 Pa. Super. 188, 195, 505 A.24d 331, 334

(1986) (citing Lewis v. Prewitt, 337 Pa. Super.

419, 487 A.2d 16 (1985)). See also

Commonwealth v. Smoyer, 505 Pa. 83, 88, 476

A.2d 1304, 1307 (1984) (effect of tainted

evidence) ; Commonwealth v. Johnson, 227 Pa.

Super. 96, 102-03, 323 A.2d 813, 816 (1974)

(same).

Based on our analysis which

determined that evidence obtained during

Bruder's custodial interrogation was

60a

inadmissible, we hold that it was an abuse of

discretion to admit such evidence.

Introduction of the tainted evidence was

clearly prejudicial to Bruder because the

absence of such evidence might very well

have led toa different verdict. Thus, we

must reverse and remand for proceedings

consistent with this opinion. 1

Reversed and remanded.

Jurisdiction relinquished.

ROWLEY, J. FILES A CONCURRING AND

DISSENTING STATEMENT

1 This disposition precludes the need to

address the remaining issue.

61la

COMMONWEALTH OF PENNSYLVANIA

V-

THOMAS A. BRUDER, JR.,

Appellant

IN THE SUPERIOR COURT OF

PENNSYLVANIA

NO. 2176 Philadelphia, 1986

Appeal fromthe Judgment of Sentence July

23, 1986, inthe Court of Common Pleas of

Delaware County, Criminal Division, No. 303

of 1985.

BEFORE: CIRILLO, P.M., ROWLEY, and

HOFFMAN, JJ.

CONCURRING AND DISSENTING STATEMENT

BY ROWLEY, J.:

While I agree with the majority's

disposition of the issue concerning dismissal

of the criminal complaint, I respectfully

disagree with the conclusion that appellant's

statements should have been suppressed under

Commonwealth v. Meyer, 488 Pa. 297, 412

A.2d 517 (1980). I think that Meyer is

distinguishable on its facts and that the facts

in this case closely parallel those in Berkemer

v. McCarty, 468 U.S. 420 (1984). Considering

62a

also that the U.S. Supreme Court cited Meyer,

as an example of the confusion among various

jurisdictions in applying Miranda v. Arizona,

384 U.S. 436 (1966) to situations involving

motorists stopped for traffic violations, I

think that Berkemer is controlling in this

case.

Because I think that the trial court

has also adequately discussed and correctly

decided appellant's issue concerning the

sufficiency of the evidence, i would affirm

the judgment of sentence.

63a

COMMONWEALTH OF PENNSYLVANIA

Ve

THOMAS A. BRUDER, JR.,

Appellant

I N THE SUPERIOR COURT

PENNSYLVANIA -

NO. 2176 Philadelphia, 1986

ORDER OF COURT

AND NOW, this 8th day of June,

1987, the petition for reargument is denied.

However, panel reconsideration is granted on

the limited issue of the sufficiency of the

evidence.

APPENDIx '"F"

4a '

Supreme Cont of Permsylwnia

MAP ENE F LACHMAN. Eso . . 466 CITY HALL

Eastern istrict

PROTHONMOTARY PHEADELPHIA. PA 18107

PATRICK TASSOS IG BRADSEALE

May 19, 1988 (215) 560-6370

Joseph J. Mittleman, Esquire

John A. Reilly, Esquire

Sandra L. Elias, Esquire

DISTRICT ATTORNEY'S OFFICP.

Delaware County Court House

Media, Pa. 19063

RE: Commonwealth of Pennsylvania, Petitioner v.

Thomas A. Bruder, Jr.

No. 650 E.D. Allocatur Docket 1987

Dear Counsel:

This is to advise you that the following Order has been endorsed on

your Petition for Allowance of Appeal, filed in the above captioned matter:

“May 19, 1988.

DENIED.

Per Curiam".

Very truly yours,

fateh Tovou

PATRICK TASSOS

Deputy Prothonovary

/ma

cc: Stuart Suss, Esquire

Carmen P. Belefonte, Esquire

APPFNDIX "F"