J-A26002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

MARSHA C. GREEN,

                          Appellant                   No. 994 WDA 2017


       Appeal from the Judgment of Sentence Entered April 10, 2017
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0005745-2016


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                 FILED FEBRUARY 19, 2019

   Appellant, Marsha Green, appeals from the judgment of sentence of 30

days’ incarceration, imposed following her conviction for two counts of driving

under the influence (DUI) and related offenses, including driving an

unregistered vehicle. Appellant challenges, inter alia, the trial court’s order

denying suppression of a statement she made while ostensibly subject to a

custodial interrogation. After careful review, we reverse the trial court’s order

denying suppression, vacate the judgment of sentence in part, reverse in part,

and remand for further proceedings.

      The trial court summarized the facts adduced at trial as follows:

            On February 19, 2016 at approximately 4:40 a.m.,
      Pennsylvania State Trooper Timothy Schonbachler was dispatched
      to the scene of an automobile accident on Interstate 376 near the
      Boulevard of the Allies in the City of Pittsburgh. The vehicle had
      been abandoned in the left lane of the interstate. Trooper
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       Schonbachler had received word that the occupants of the vehicle
       were not at the scene of the accident but had been located within
       a half mile of the accident scene. Both of these people had been
       observed walking on the Boulevard of the Allies, a busy
       thoroughfare in the City of Pittsburgh, not far from the accident
       scene. When Trooper Schonbachler arrived at the accident scene,
       he observed that the vehicle was positioned against the concrete
       barrier adjacent to the left lane of the interstate. The front left
       tire had been dislodged from the axle and there was heavy
       damage to the front of the vehicle. The driver’s seat was in a
       forward position as though a smaller person had been driving.
       Trooper Schonbachler began to obtain information concerning the
       make, model and the registration for the vehicle. After receiving
       information that [Appellant] and another person were in the
       company of City of Pittsburgh police officers on the Boulevard of
       the Allies, Trooper Schonbachler responded to that area.

             Upon arriving to that area, Trooper Schonbachler
       approached [Appellant]. [Appellant] is less than five feet tall. The
       other person with her, a male, was very large. [Appellant] was
       placed into the back of Trooper Schonbachler’s vehicle and he
       asked her what had happened. He did not place handcuffs on her
       and she was not taken into custody. Trooper Schonbachler did
       not “Mirandize” [Appellant].[1]     [Appellant] advised Trooper
       Schonbachler that she was driving her friend home and she
       thought she “blew a tire.” She recalled hitting the concrete
       barrier. She told Trooper Schonbachler that she injured her leg
       during the accident and Trooper Schonbachler’s personal
       observations confirmed the injury. After [Appellant] made these
       statements, Trooper Schonbachler detected an odor of alcohol
       emanating from [her] breath and person. He noticed her speech
       was slurred and she had bloodshot eyes. As a result, he asked
       her whether she had been drinking before the accident.
       [Appellant] responded that she had ended her employment that
       night around 11:00 p.m. She went to a bar and had been drinking
       alcohol until the she left the bar prior to the accident. At this
       point, Trooper Schonbachler took [Appellant] to the hospital so
       she could be treated for her injuries. The parties stipulated that
       Trooper Schonbachler continued to observe additional signs of
       impairment and signs of intoxication.        The parties further
       stipulated that Trooper Schonbachler would have testified at trial
       that, based on his training and experience, [Appellant] was
____________________________________________


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

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       intoxicated to a degree that rendered her incapable of safely
       operating a motor vehicle on the morning of the accident.
       [Appellant] was placed under arrest at the hospital. No field
       sobriety tests were conducted.

Trial Court Opinion (TCO), 1/22/18, at 2-3.

       On August 24, 2016, the Commonwealth Charged Appellant with 1) DUI,

75 Pa.C.S. § 3802(a)(1); 2) DUI, 75 Pa.C.S. § 3802(a)(1); 3) driving an

unregistered vehicle, 75 Pa.C.S. § 1301(a); 4) driving while operating

privilege is suspended or revoked, 75 Pa.C.S. § 1543(b)(1); 5) required

financial responsibility, 75 Pa.C.S. § 1786(f); 6) driving on roadway laned for

traffic, 75 Pa.C.S. § 3309(1); 7) careless driving, 75 Pa.C.S. § 3714(a); and

8) immediate notice of accident, 75 Pa.C.S. § 3746(a)(2).

       Appellant filed a suppression motion, and the trial court denied that

motion following a hearing held on December 1, 2016. On January 31, 2017,

after a non-jury trial held before the Honorable Anthony M. Mariani of the

Criminal Division of the Court of Common Pleas of Allegheny County, 2 the

court convicted Appellant on all counts.         On April 10, 2017, the court

sentenced Appellant to 30 days’ incarceration, five months’ consecutive

probation, and a $750 fine for DUI at count 1, which merged for sentencing

purposes with the DUI conviction at count 2.         The court also sentenced

Appellant to a concurrent term of 30 days’ incarceration, five months of

restrictive intermediate punishment, and a $500 fine for driving while

operating privilege is suspended or revoked. The court imposed no further
____________________________________________


2 The testimony from the suppression hearing was incorporated into the non-
jury trial. See N.T., 1/30/17-1/31/17, at 15.

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penalty for the remaining counts. The court also ordered Appellant to have a

drug and alcohol evaluation and to attend safe driving school.

      Appellant filed a timely post-sentence motion on April 20, 2017, which

was denied on June 6, 2017. She filed a timely notice of appeal, and a timely,

court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued its Rule

1925(a) opinion on January 22, 2018.

      Appellant now presents the following questions for our review:

        I.   Did the trial court err in failing to suppress the statements
             that [Appellant] made to the police, as she was not informed
             of her Miranda rights prior to the custodial interrogation?

       II.   Were [Appellant]’s rights under the Double Jeopardy Clause
             of the Fifth Amendment of the U.S. Constitution and Article
             1, § 10 of the Pennsylvania Constitution violated because
             she was charged and convicted of two separate DUI
             offenses, even though there was only one incident?

      III.   Was the evidence insufficient to sustain the DUI convictions
             at counts 1 and 2 because the Commonwealth did not prove,
             beyond a reasonable doubt, that [Appellant] imbibed a
             sufficient amount of alcohol that she was rendered incapable
             of safely driving a vehicle?

      IV.    Was the evidence insufficient to sustain the conviction for
             count 3[,] driving [an] unregistered vehicle, because the
             Commonwealth failed to prove, beyond a reasonable doubt,
             that the vehicle was not registered?

Appellant’s Brief at 7.

      We agree that the order denying suppression must be reversed;

however, for ease of disposition, we will address that issue last.           See

Commonwealth v. Coleman, 130 A.3d 38, 41 (Pa. Super. 2015) (“Since a

sufficiency claim warrants automatic discharge rather than retrial, we address



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that issue at the outset.”); see also Commonwealth v. Smith, 568 A.2d

600, 603 (Pa. 1989) (“The question of sufficiency is not assessed upon a

diminished record.”).

      In her second issue, Appellant argues that her double jeopardy rights

were violated when she was convicted on separate DUI counts arising out of

the same incident, based on this Court’s recent decision in Commonwealth

v. Farrow, 168 A.3d 207 (Pa. Super. 2017). As Appellant aptly explains in

her brief:
            In Farrow, this Honorable Court found that where a single
      DUI offense is subject to enhancements (such as for an accident
      or a refusal), the Commonwealth must file a criminal information
      that sets forth a single count under 75 Pa.C.S.[] § 3802, and
      include enhancements under 75 Pa.C.S.[] § 3804 as subparts of
      that single count. 168 A.3d at 218-19. This Honorable Court
      explained that the Commonwealth must charge in this ma[nn]er
      rather than charging multiple counts of DUI under § 3802 when
      there is only incident of DUI. Id. Accordingly, in Farrow, this
      Honorable Court vacated all but one DUI conviction that arose
      from a single incident, and remanded so that the enhancements
      could be placed under the single DUI count. Id. at 219.

           Thus, under Farrow, this Honorable Court must vacate
      [Appellant]’s DUI conviction at Count 2, 75 Pa.C.S.[] §
      3802(a)(1)…. The [t]rial [c]ourt, in its Pa.R.A.P. 1925(a) opinion,
      recognized that such action is necessary. [TCO] at 12.

Appellant’s Brief at 26. Indeed, the Commonwealth also concedes this issue.

Commonwealth’s Brief at 24.      As the trial court and the parties agree, no

further analysis of this claim is required, as relief is clearly warranted under

Farrow in the circumstances of this case. Accordingly, we reverse Appellant’s

conviction for DUI at count 2.




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      Next, Appellant asserts that there was insufficient evidence to convict

her for DUI.

      A claim challenging the sufficiency of the evidence is a question of
      law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a reasonable
      doubt. Where the evidence offered to support the verdict is in
      contradiction to the physical facts, in contravention to human
      experience and the laws of nature, then the evidence is insufficient
      as a matter of law. When reviewing a sufficiency claim[,] the court
      is required to view the evidence in the light most favorable to the
      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      Appellant argues that

      [u]nder these circumstances, the Commonwealth did not establish
      that the accident occurred because [Appellant] drove unsafely due
      to alcohol instead of other factors, such as sleepiness due to the
      time of day or the condition of the highway itself. As the
      Commonwealth did not provide sufficient evidence to establish
      that [she] drank enough alcohol to render her incapable of safe
      driving, this Honorable Court must reverse [Appellant]’s DUI
      convictions.

Appellant’s Brief at 34. We disagree.

      The types of evidence that the Commonwealth may proffer in a
      subsection 3802(a)(1) prosecution include but are not limited to,
      the following: the offender’s actions and behavior, including
      manner of driving and ability to pass field sobriety tests;
      demeanor, including toward the investigating officer; physical
      appearance, particularly bloodshot eyes and other physical signs
      of intoxication; odor of alcohol, and slurred speech. Blood alcohol
      level may be added to this list, although it is not necessary and
      the two hour time limit for measuring blood alcohol level does not
      apply. Blood alcohol level is admissible in a subsection 3801(a)(1)
      case only insofar as it is relevant to and probative of the accused’s

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      ability to drive safely at the time he or she was driving. The weight
      to be assigned these various types of evidence presents a question
      for the fact-finder, who may rely on his or her experience,
      common sense, and/or expert testimony. Regardless of the type
      of evidence that the Commonwealth proffers to support its case,
      the focus of subsection 3802(a)(1) remains on the inability of the
      individual to drive safely due to consumption of alcohol-not on a
      particular blood alcohol level.

Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).

      Here, Appellant crashed her vehicle, in an apparent single-vehicle

accident, at approximately 4:00 a.m. She then abandoned that vehicle and

set off on foot. She admitted to Trooper Schonbachler that she had been

drinking, and he observed several signs of intoxication: her eyes were

bloodshot, she smelled of alcohol, and her speech was slurred. These are the

telltale signs of intoxication.   Taken together, these circumstances would

permit a factfinder to conclude that Appellant had violated the DUI statute.

      However, Appellant argues that “it was impossible to say that alcohol

caused the accident.    Sleepiness, weather, lighting and the structure and

conditions of the roadway all could have caused the accident.” Appellant’s

Brief at 32. While we agree that absolute certainty is impossible to achieve,

that is not the requisite standard for a criminal conviction.      Instead, the

standard is proof beyond a reasonable doubt. Moreover, all of the factors

suggested by Appellant regarding other possible causes of the accident go to

the weight, not the sufficiency of the evidence. Here, it was established that

Appellant was drinking (both directly by her admission and through strong

circumstantial evidence), that she crashed her vehicle in suspicious



                                      -7-
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circumstances, and that she fled the scene of that accident.        Moreover,

Trooper Schonbachler testified that “[b]ased on his observation[s] and

training, …[Appellant] was impaired to the level that she was incapable of

safely driving a vehicle.” TCO at 11. This evidence strongly suggests that her

accident directly was related to her intoxication, and to the extent that some

other circumstances suggested a non-criminal cause of the accident, the trial

court was free to weigh that evidence and still conclude that Appellant had

consumed a sufficient amount of alcohol to render her incapable of safe

driving. Accordingly, we conclude that this claim lacks merit.

      In Appellant’s fourth claim, she argues that there was insufficient

evidence to convict her of driving an unregistered vehicle.          Both the

Commonwealth and the trial court concede that this issue is meritorious. See

Commonwealth’s Brief at 37; TCO at 13 (“After reviewing the record, this

[c]ourt agrees with [Appellant]. No evidence was presented at the trial that

[her] vehicle was unregistered and the conviction for this violation of the

vehicle code should be vacated.”).      Accordingly, we reverse Appellant’s

conviction for driving an unregistered vehicle.

      Finally, we address Appellant’s first claim, which concerns her admission

to Trooper Schonbachler that she had been drinking. It is undisputed that she

was not Mirandized before making that statement. Thus, Appellant contends

that the statement should have been suppressed because she was subject to

a custodial interrogation when she admitted to drinking prior to the accident.




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However, the trial court found that Appellant was not in custody for Miranda

purposes and, therefore, that her admission was not suppressible.

     A law enforcement officer must administer Miranda warnings
     prior to custodial interrogation. Commonwealth v. Johnson,
     373 Pa. Super. 312, 541 A.2d 332, 336 (1988). The standard for
     determining whether an encounter with the police is deemed
     “custodial” or police have initiated a custodial interrogation is an
     objective one based on a totality of the circumstances, with due
     consideration given to the reasonable impression conveyed to the
     person interrogated. Commonwealth v. Gwynn, 555 Pa. 86, ––
     ––, 723 A.2d 143, 148 (1998). Custodial interrogation has been
     defined as “questioning initiated by law enforcement officers after
     a person has been taken into custody or otherwise deprived of his
     [or her] freedom of action in any significant way.” Johnson, 541
     A.2d at 336 quoting Miranda[], 384 U.S. [at] 444….
     “Interrogation” is police conduct “calculated to, expected to, or
     likely to evoke admission.” Id. quoting Commonwealth v.
     Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969). When a
     person’s inculpatory statement is not made in response to
     custodial interrogation, the statement is classified as gratuitous,
     and is not subject to suppression for lack of warnings. Id.

           The appropriate test for determining whether a situation
     involves custodial interrogation is as follows:

        The test for determining whether a suspect is being
        subjected to custodial interrogation so as to necessitate
        Miranda warnings is whether he is physically deprived of
        his freedom in any significant way or is placed in a situation
        in which he reasonably believes that his freedom of action
        or movement is restricted by such interrogation.

     Commonwealth v. Busch, 713 A.2d 97, 100 (Pa. Super. 1998)
     quoting Commonwealth v. Rosario, 438 Pa. Super. 241, 652
     A.2d 354, 365–66 (1994) (en banc), appeal denied, 546 Pa. 668,
     685 A.2d 547 (1996) (other citations omitted). 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. Commonwealth v. Ellis, 379 Pa. Super. 337, 549 A.2d
     1323, 1332 (1988), appeal denied, 522 Pa. 601, 562 A.2d 824



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      (1989), citing California v. Beheler, 463 U.S. 1121, 1125, 103
      S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983).

             The factors a court utilizes to determine, under the totality
      of the circumstances, whether a detention has become so coercive
      as to constitute the functional equivalent of arrest include: the
      basis for the detention; its length; its location; whether the
      suspect was transported against his or her will, how far, and why;
      whether restraints were used; whether the law enforcement
      officer showed, threatened or used force; and the investigative
      methods employed to confirm or dispel suspicions. Busch, 713
      A.2d at 101. The fact that a police investigation has focused on a
      particular individual does not automatically trigger “custody,” thus
      requiring Miranda warnings. Commonwealth v. Fento, 363 Pa.
      Super. 488, 526 A.2d 784, 787 (1987).

Com. v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999).

      Thus, there are two components of a custodial interrogation that must

be satisfied to trigger the requirement that police issue Miranda warnings:

first, the defendant must be in custody, that is, subject to the functional

equivalent of an arrest and, second, the at-issue statement must be prompted

by a police inquiry that was likely to evoke an incriminating response. If either

of these conditions is not met, suppression will not be warranted under

Miranda.

      The trial court determined that Appellant was not in custody for

Miranda purposes, based on the following analysis:

      In this [c]ourt’s view, the interaction between Trooper
      Schonbachler and [Appellant] was not a custodial interrogation.
      At the time [Appellant] made her statements to Trooper
      Schonbachler, [she] had not been arrested. She was not being
      detained and she was not placed in handcuffs. [Appellant] was
      suffering from a leg injury and the incident occurred in February,
      a month in which the average temperature is cold. Trooper
      Schonbachler opted to ask [Appellant] questions to determine the
      circumstances of the accident he encountered. He was simply


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      attempting to gather information to complete his accident report.
      There was no show, use or threatened use of force during the
      interaction. There was nothing coercive about the interaction
      during which [Appellant] made statements. The record is clear
      that [Appellant] was not arrested until Trooper Schonbachler
      made observations about [her] impairment after she had been
      taken to the hospital. Therefore, this [c]ourt did not believe that
      Trooper Schonbachler violated the requirements of Miranda
      during his exhange with [Appellant].

TCO at 5. The trial court did not appear to base its decision on the nature of

Trooper Schonbachler’s questions. However, the Commonwealth asserts that

the Trooper’s questions related to ‘public safety,’ and were not intended to

elicit an incriminating response. See New York v. Quarles, 467 U.S. 649,

657 (1984) (holding that “the need for answers to questions in a situation

posing a threat to the public safety outweighs the need for the prophylactic

rule protecting the Fifth Amendment’s privilege against self-incrimination”).

      Appellant argues that she was subject to a custodial interrogation

because:

      First, Trooper Schonbachler investigated the car, and thought that
      [Appellant] was responsible for the accident and that she left the
      scene. Second, [Appellant] was separated from her companion
      and placed in the back of two separate police cars by policemen
      from two different units for an unspecified amount of time. Third,
      Trooper Schonbachler closed the door to his police car, meaning
      that [Appellant] was clearly not free to leave—indeed, she had no
      way of leaving. Fourth, under these circumstances and without
      Mirandizing her, Trooper Schonbachler asked [Appellant]
      multiple questions designed to elicit incriminating responses.

Appellant’s Brief at 22. Appellant further contends that this Court’s decision

requiring suppression in Commonwealth v. Turner, 772 A.2d 970 (Pa

Super. 2003), compels the same result in this case.



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      In Turner, this Court reversed the trial court’s order denying

suppression   of   Turner’s   statement       to   police,   under   the   following

circumstances:

      On October 18, 1998, Police Officer Gabriel Torres responded in
      uniform to a radio call regarding an automobile accident. Upon
      arriving at the scene, Torres observed a white vehicle that
      apparently had struck a parked vehicle. Turner was leaning
      against the white vehicle, unsteady and barely able to stand.
      Turner appeared to be falling asleep and failed to respond to
      Torres’s questions. Torres did not smell alcohol on Turner’s
      breath. Torres placed Turner in the back of his police car. In
      compliance with his police department’s policy regarding
      suspected DUIs, Torres radioed for a supervisor to come to the
      scene. Sergeant Cassidy arrived on the scene, also in uniform.
      After discussing the situation with Torres, Cassidy opened the door
      of Torres’s police car, leaned in, and asked Turner if he had taken
      any narcotics. Cassidy did not apprise Turner of his rights under
      Miranda. Turner responded that he had taken cough syrup and
      several pills.     Subsequently, the officers arrested Turner.
      However, Turner refused to consent to a blood test. Thereafter,
      the Commonwealth charged Turner with [DUI]. Turner moved to
      suppress his statement to Cassidy, asserting that his detention
      and questioning by the officers violated his rights under the Fifth
      Amendment of the United States Constitution and Article 1,
      Section 9 of the Pennsylvania Constitution.

Turner, 772 A.2d at 972 (citation omitted).

      The Turner Court first addressed the question of custody, finding that

Turner was subject to the functional equivalent of an arrest:

            Torres testified that he “put” Turner into his police car, not
      that he asked Turner if he wanted to sit in the car or offered the
      back seat as a place to rest. Turner sat in the car while Torres
      radioed Cassidy and waited for him to arrive. Torres also testified
      that Cassidy had to open the car door in order to speak to Turner,
      which suggests that Torres closed the door after he put Turner
      inside the car. There is no suggestion in the record that Turner
      closed the door himself.         Based on the totality of the
      circumstances, we conclude that Turner was physically deprived

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      of his freedom to a level that was the functional equivalent of
      being arrested and, therefore, was in custody.

Id. at 974 (citations omitted).

      The Turner Court then considered whether the defendant had been

subject to an interrogation:

      Cassidy, by opening the car door, leaning into the car and
      questioning Turner regarding whether he had taken any narcotics,
      was eliciting information. As a trained officer who observed
      Turner’s physical condition, Cassidy should have known that
      Turner’s response might yield an incriminating statement that
      would lead to Turner’s arrest for driving under the influence.
      Turner did not volunteer that he had taken cough syrup and
      several pills; a uniformed officer specifically questioned him while
      he was confined to the police car where another uniformed officer
      had placed him. We conclude that the combination of Torres
      putting Turner involuntarily into the police car and Cassidy
      questioning Turner regarding his drug use while standing in the
      police car doorway created a custodial interrogation.

Id. (citations omitted). The Turner Court then went on to conclude that the

trial court had erred in ruling “that Turner’s statement should not be

suppressed based on a violation of Miranda.” Id. at 976.

      Appellant argues that the facts in Turner are sufficiently analogous to

the instant case and, thus, require the same result. She contends:

      As in Turner, police put [Appellant] in the back of a police car,
      closed the door and questioned her. Indeed, here, multiple police
      officers placed [Appellant] in the back of two different police cars,
      and escorted her from one to the other.

            Also as in Turner, Trooper Schonbachler should have
      known that his interrogation of [Appellant] would yield
      incriminating statements. First, Trooper Schonbachler knew that
      no one was at the accident scene when he arrived, admitted that
      he thought that [Appellant] drove the car, and knew that it was a
      crime to leave the scene of an accident.           Yet, Trooper
      Schonbachler asked [Appellant] questions that were designed to


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      induce incriminating statements on 75 Pa.C.S. § 3746(a)(2)
      anyway. Second, as soon as Trooper Schonbachler noticed the
      smell of alcohol on [Appellant] he began asking her whether she
      had been drinking and related questions, yet he still did not read
      the Miranda warnings.       As in Turner, [Appellant] did not
      volunteer that she had been drinking until an officer “specifically
      questioned [her] while [she] was confined to the police car[.]” Id.
      at 974. As in Turner, Trooper Schonbachler was “a trained officer
      who observed [Appellant’s] physical condition,” and “should have
      known that [her] response might yield an incriminating statement
      that would lead to [her] arrest for driving under the influence.”
      Id.[]    This Honorable Court suppressed the incriminating
      statements in Turner, and the same result is required here. Id.
      at 976.

Appellant’s Brief at 24-25 (some citations omitted).

      We agree with Appellant. Indeed, there is an even more compelling

case for suppression here than there was in Turner. First, Appellant was in

custody for Miranda purposes.         Pittsburgh Police apparently detained

Appellant before Trooper Schonbachler even came in contact with her. N.T.

Suppression, 12/1/16, at 6 (“[Trooper Schonbachler] [p]roceeded up to the

location where the City of Pittsburgh [Police] had [Appellant] and Mr. Scott.”).

Upon cross-examination, he admitted “that the City of Pittsburgh had her

stopped at the Boulevard of the Allies.” Id. at 12 (emphasis added). At that

point, Trooper Schonbachler “put [Appellant] in the back of [his] vehicle and

asked her what had happened.”       Id.   Nothing in the record suggests that

Appellant voluntarily sat in either police car. See Turner, 772 A.2d at 974

(“Torres testified that he ‘put’ Turner into his police car, not that he asked

Turner if he wanted to sit in the car or offered the back seat as a place to

rest.”). By contrast, the trial court’s analysis here focused solely on the fact



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that Appellant was not handcuffed, and had not been formally arrested. The

same was true of the defendant in Turner, as he was neither handcuffed nor

formally placed under arrest; nevertheless, this Court determined that he was

in custody for Miranda purposes.

     The Commonwealth suggests the opposite conclusion based on its

reading of this Court’s decision in Commonwealth v. Williams, 941 A.2d 14

(Pa. Super. 2015) (en banc).    However, that case is easily distinguishable

from the facts of this case. In Williams, a DUI case,

     Officer Gregory responded to a 911 radio dispatch indicating an
     accident. When Officer Gregory tried to awaken [the a]ppellant
     and remove her from the ground, he detected a strong odor of
     alcohol on her breath.      Officer Gregory then called for an
     ambulance and a tow truck.         Officer Gregory assisted [the
     a]ppellant to her vehicle and asked her to produce her driver’s
     license and registration. When Appellant was unable to locate the
     requested documents, Officer Gregory told her it was unimportant
     at the moment, and to “sit tight” until the ambulance arrived.
     Officer Gregory asked [her] what had happened and if she was
     the only person involved in the accident. Appellant indicated she
     was the only person involved with the accident, but was vague on
     her response to the question of “what happened?”

Id. at 32–33. We held that Williams was not in custody, because no restraints

were applied, she was questioned in “public view at the accident scence[,]”

and the officer did not threaten her or draw his weapon. Id. at 33. Notably,

Williams was also not placed in a police car before being questioned.

     Here, however, Appellant was not found unconscious at the scene of an

accident, she was found walking away from that location when she was

stopped by City of Pittsburgh police.    Trooper Schonbachler then placed



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Appellant in his vehicle, and no evidence suggests that he asked Appellant to

enter his police car, and no evidence suggests that she complied voluntarily.

The facts of this case clearly mirror those of Turner, and are quite unlike

those of Williams.    Accordingly, we conclude that, like the defendant in

Turner, Appellant was clearly in custody before Trooper Schonbachler began

asking her questions about the accident.

     Next, we consider whether Appellant was subject to an interrogation.

The trial court found that Trooper Schonbachler was merely inquiring about

the circumstances of the accident. However, we find the circumstances of this

case demonstrate that Trooper Schonbachler, at a minimum, should have

known that his questions were likely to elicit an incriminating response from

Appellant. After he already suspected that Appellant had unlawfully fled the

scene of the accident, and after he detected alcohol on her breath, Trooper

Schonbachler asked Appellant if she had been drinking.     Given Appellant’s

flight from the scene of the accident, this is even stronger evidence of an

interrogation than was present in Turner.

     The Commonwealth argues that, because Trooper Schonbachler was

investigating an accident, the public safety exception to Miranda applies in

these circumstances, citing New York v. Quarles, 467 U.S. 649 (1984). For

the following reasons, we disagree.

     In Quarles, officers were approached by a young woman, who

     told them that she had just been raped by a black male,
     approximately six feet tall, who was wearing a black jacket with
     the name “Big Ben” printed in yellow letters on the back. She told

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      the officers that the man had just entered an A & P supermarket
      located nearby and that the man was carrying a gun.

            The officers drove the woman to the supermarket, and
      Officer Kraft entered the store while Officer Scarring radioed for
      assistance. Officer Kraft quickly spotted [Quarles], who matched
      the description given by the woman, approaching a checkout
      counter. Apparently upon seeing the officer, [Quarles] turned and
      ran toward the rear of the store, and Officer Kraft pursued him
      with a drawn gun. When [Quarles] turned the corner at the end
      of an aisle, Officer Kraft lost sight of him for several seconds, and
      upon regaining sight of [Quarles], ordered him to stop and put his
      hands over his head.

             Although more than three other officers had arrived on the
      scene by that time, Officer Kraft was the first to reach [Quarles].
      He frisked him and discovered that he was wearing a shoulder
      holster which was then empty. After handcuffing him, Officer
      Kraft asked him where the gun was. [Quarles] nodded in the
      direction of some empty cartons and responded, “the gun is over
      there.”

Id. at 652. Although Quarles was in custody, and subject to an interrogation,

the High Court ruled that his statement was not suppressible under Miranda,

holding that “on these facts there is a ‘public safety’ exception to the

requirement that Miranda warnings be given before a suspect’s answers may

be admitted into evidence[.]” Id. at 655. The exception “does not depend

upon the motivation of the individual officers involved[,]” rather, it arises out

of an objective view of the attendant circumstances to the interrogation. Id.

at 656.

             The police …, in the very act of apprehending a suspect,
      were confronted with the immediate necessity of ascertaining the
      whereabouts of a gun which they had every reason to believe the
      suspect had just removed from his empty holster and discarded
      in the supermarket. So long as the gun was concealed somewhere
      in the supermarket, with its actual whereabouts unknown, it
      obviously posed more than one danger to the public safety: an


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      accomplice might make use of it, a customer or employee might
      later come upon it.

            In such a situation, if the police are required to recite the
      familiar Miranda warnings before asking the whereabouts of the
      gun, suspects in Quarles’ position might well be deterred from
      responding. Procedural safeguards which deter a suspect from
      responding were deemed acceptable in Miranda in order to
      protect the Fifth Amendment privilege; when the primary social
      cost of those added protections is the possibility of fewer
      convictions, the Miranda majority was willing to bear that cost.
      Here, had Miranda warnings deterred Quarles from responding
      to Officer Kraft’s question about the whereabouts of the gun, the
      cost would have been something more than merely the failure to
      obtain evidence useful in convicting Quarles. Officer Kraft needed
      an answer to his question not simply to make his case against
      Quarles but to insure that further danger to the public did not
      result from the concealment of the gun in a public area.

Id. at 657.

      The public safety exception to Miranda is not applicable in this case.

Trooper Schonbachler’s question, regardless of his subjective intent, did not

serve to avert any risk to public safety. The accident had already occurred,

the vehicle in question was no longer operable, and Appellant had already

abandoned it in any event. In these circumstances, Trooper Schonbachler’s

inquiry into the number of drinks that Appellant had consumed did not serve

to avert “further danger to the public….” Quarles, 467 U.S. at 657. Rather,

the   question   was   clearly   eliciting   an   incriminating   response   in   the

circumstances of this case.

      Thus, we conclude that the trial court erred when it denied Appellant’s

motion to suppress. Appellant was subject to a custodial interrogation when

she responded to Trooper Schonbachler’s question regarding whether she had



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been drinking prior the crash.     Accordingly, based on Turner, we are

compelled to reverse the order denying suppression, and to grant a new trial.

     In sum, we reverse Appellant’s judgment of sentence with respect to

her convictions for DUI at count 2, and driving an unregistered vehicle. We

reverse the order denying suppression and vacate her judgment of sentence

in all other respects. We remand for a new trial consistent with this

memorandum.

     Judgment of sentence reversed in part, vacated in part.            Case

remanded. Jurisdiction relinquished.

     Judge Shogan joins this memorandum.

     Judge Murray files a concurring and dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2019




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