J-S59040-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    Appellee              :
                                          :
                   v.                     :
                                          :
LARRY KONYVES,                            :
                                          :
                   Appellant              :     No. 1176 EDA 2014


       Appeal from the Judgment of Sentence Entered April 7, 2014,
             In the Court of Common Pleas of Bucks County,
          Criminal Division, at No(s): CP-09-CR-0006528-2012


BEFORE: SHOGAN, LAZARUS and STRASSBURGER*, JJ.

MEMORANDUM BY: STRASSBURGER, J.:                  FILED OCTOBER 17, 2014

      Larry Konyves (Appellant) appeals from the judgment of sentence

entered April 7, 2014, following his conviction for driving under the influence

of a controlled substance (DUI) -- general impairment, 4th offense; habitual

offenders; driving under suspension; and, public drunkenness.1 We affirm.

      Appellant was charged with multiple offenses following an interaction

with police in a public parking lot, during which Appellant exhibited signs of

intoxication. Subsequently, Appellant filed a motion to suppress the

statements obtained during the interaction. On January 15, 2013, following

a hearing, Appellant’s motion was denied. Appellant proceeded immediately

to a bench trial, after which he was found guilty of the above-mentioned


1
  75 Pa.C.S. §§ 3802(d)(2), 6503.1, and 1543(b)(1), and 18 Pa.C.S. § 5505
respectively.
* Retired Senior Judge assigned to the Superior Court.
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offenses.    On March 25, 2013, Appellant was sentenced to an aggregate

term of two-and-one-half to five years’ incarceration. Appellant timely filed

post-sentence motions, which were denied. On August 27, 2013, Appellant

filed an appeal with this Court, which was quashed as untimely filed on

February 25, 2014. Commonwealth v. Konyves, 2471 EDA 2013 (Pa.

Super. filed Feb. 25, 2014).

        Appellant filed a petition pursuant to the Post Conviction Relief Act 2

seeking reinstatement of his appellate rights. That petition was granted on

April 7, 2014. This timely appeal followed.

        Appellant’s first two challenges concern the trial court’s denial of his

omnibus pretrial motion to suppress. We have discussed our review of

suppression claims as follows:

        When considering the denial of a suppression motion, this
        Court’s review is limited to determining whether the [lower]
        court’s factual findings are supported by the record and whether
        the legal conclusions drawn from those facts are correct.
        Because the Commonwealth prevailed in the suppression court,
        we consider only the Commonwealth’s evidence and so much of
        the appellant’s evidence as is uncontradicted when read in the
        context of the record as a whole. Where the record supports the
        suppression court’s factual findings, we are bound by those facts
        and may reverse only if the legal conclusions drawn from them
        are erroneous.

Commonwealth v. West, 937 A.2d 516, 527 (Pa. Super. 2007) (internal

citations omitted).




2
    42 Pa.C.S. §§ 9541-9546.


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      Appellant begins by arguing that his interaction with Officer Schuck,

and his subsequent arrest, were not supported by the requisite level of

suspicion. Appellant’s Brief at 24. Appellant’s argument seems to focus on

the fact that the interaction began as an investigation of potential

vandalism, not suspicion of DUI.     Id. at 21-22.    Thus, Appellant contends

that Officer Schuck’s initial observations were “consistent with innocent

activity” which did not warrant further investigation. Id. at 26.

      We evaluate Appellant’s claim mindful of the following.

             “Interaction” between citizens and police officers, under
      search and seizure law, is varied and requires different levels of
      justification depending upon the nature of the interaction and
      whether or not the citizen is detained. Such interaction may be
      classified as a “mere encounter,” an “investigative detention,” or
      a “custodial detention.” A “mere encounter” can be any formal or
      informal interaction between an officer and a citizen, but will
      normally be an inquiry by the officer of a citizen. The hallmark of
      this interaction is that it “carries no official compulsion to stop or
      respond.”

            In contrast, an “investigative detention,” by implication,
      carries an official compulsion to stop and respond, but the
      detention is temporary, unless it results in the formation of
      probable cause for arrest, and does not possess the coercive
      conditions consistent with a formal arrest. Since this interaction
      has elements of official compulsion it requires “reasonable
      suspicion” of unlawful activity. In further contrast, a custodial
      detention occurs when the nature, duration and conditions of an
      investigative detention become so coercive as to be, practically
      speaking, the functional equivalent of an arrest.

Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super. 2000) (citations

omitted).




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     Instantly, the trial court summarized Officer Schuck’s testimony from

the suppression hearing as follows.

           While stopped at a traffic light on West Old Lincoln
     Highway, near the intersection at Wheeler Way, [Officer Schuck]
     observed a silver Acura drive behind a church to his right. Officer
     Schuck testified that he was familiar with this particular area
     since it was part of his patrol zone and that landscaping
     equipment is frequently kept out in the open at the church
     parking lot. Officer Schuck observed the vehicle travel towards
     the landscaping or equipment area.

            The parking lot is accessible by two common entrances;
     one entrance is off of Wheeler Way and the other entrance is off
     West Old Lincoln Highway. … Officer Schuck testified that at the
     time of the incident, he believed the church and daycare center
     were operating, and that the church was “an open, functioning
     church, and that the church building was occupied generally at
     that time.” Special permits are not required to park in the
     parking lot and there are no barriers that would prohibit
     entrance. According to Officer Schuck, there are approximately
     fifty to seventy-five parking spots in the parking lot, and the
     parking lot does not have any “no parking” or “no trespassing
     signs.”

            Officer Schuck entered the parking lot, [] and noticed the
     [silver Acura] was stopped and parked between a trailer and a
     truck and that [Appellant] was standing outside of his vehicle,
     with the car door open, urinating. When [Appellant] noticed
     Officer Schuck, he explained to the Officer that the equipment in
     the parking lot was his and that he had just stopped to “take a
     piss.” Officer Schuck then proceeded to get out of his patrol car
     and asked [Appellant] for identification. [Appellant] told Officer
     Schuck his name, but did not give Officer Schuck any
     identification cards. Officer Schuck stated that [Appellant]
     appeared dumbfounded, as if he was in some sort of “stupor.”
     After asking [Appellant] for his identification three or four times,
     [Appellant] handed Officer Schuck a stack of cards. The stack of
     cards contained business cards and a Pennsylvania non-driver
     photo ID.




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           Officer Schuck proceeded to ask [Appellant] whether or
     not he had been drinking and [Appellant] replied that he had
     not. During this time, Officer Schuck observed that [Appellant]
     was having trouble standing and was “swaying” as he stood.
     When Officer Schuck approached [Appellant], there was no odor
     of alcohol present, but [Appellant’s] pupils were small and did
     not change size when Officer Schuck introduced [Appellant’s]
     eyes to light. Officer Schuck then asked [Appellant] if he had
     taken any drugs and [Appellant] “shrugged his shoulders” and
     told Officer Schuck that he was prescribed the drugs he was
     taking. [Appellant] told the Officer that he had taken two Xanax
     within three hours, and that he was prescribed to take two
     Xanax a day.

           Officer Schuck stated that he suspected [Appellant] was
     under the influence of a controlled substance and called for other
     units to come as backup. Officer Schuck administered a
     preliminary breath test on [Appellant] and ruled out alcohol
     when the test revealed zero alcohol content. While waiting for
     backup to arrive, Officer Schuck noticed that [Appellant] was still
     unsteady on his feet and at one point, [Appellant] fell back on
     Officer Schuck’s patrol vehicle. When Officer Schuck asked
     [Appellant] if he could stand by himself and not lean on the
     patrol car, [Appellant] had trouble and continued to lean on the
     patrol car several times. When [Appellant] spoke to Officer
     Schuck his speech was very slow and Officer Schuck testified
     that he believed [Appellant] was going to “fall asleep while he
     was talking.” According to Officer Schuck, [Appellant] would
     “start to answer or not answer and close his eyes, and then it
     would take a couple of seconds and some prodding from me
     [Officer Schuck] before he’d open his eyes and respond.”

            After backup arrived, Officer Schuck administered three
     field sobriety tests, all of which [Appellant] failed. After the last
     test, Officer Schuck asked [Appellant] whether or not he should
     be driving in this condition and [Appellant] responded that he
     should not be and asked to call his wife. At this point in time,
     Officer Schuck formed the opinion that [Appellant] was under
     the influence of a controlled substance to a degree that rendered
     him incapable of safely driving and placed [Appellant] under
     arrest.




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Trial Court Opinion, 6/2/2014, at 2-5 (citations to notes of testimony and

footnotes omitted).

       As discussed above, a “mere encounter” can be any formal or

informal interaction between an officer and a citizen, but will normally be an

inquiry by the officer of a citizen.   Based on our review of the record, we

determine that the interaction between Appellant and Officer Schuck began

as a mere encounter where the officer was trying to determine what was

going on in the parking lot. Commonwealth v. Kendall, 976 A.2d 503 (Pa.

Super. 2009). However, the officer quickly developed reasonable suspicion

that Appellant had been DUI, raising the level of the encounter to an

investigative detention, once he observed Appellant urinating in a public

parking lot, unable to provide proper identification, and exhibiting outward

signs of being under the influence of a controlled substance.         That the

criminal activity the officer initially suspected was unfounded is immaterial in

this instance. See Commonwealth v. Collins, 950 A.2d 1041 (Pa. Super.

2008) (upholding the legality of citizen-police interaction where officer

engaged in a mere encounter to inquire if occupants of a stopped vehicle

needed assistance and quickly developed reasonable suspicion supporting an

investigatory detention once he smelled and observed marijuana in the

vehicle). Thus, contrary to Appellant’s assertions, we conclude that the trial

court did not err in determining that Officer Schuck’s pre-arrest interaction

with Appellant was lawful and supported by the requisite level of suspicion.



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      In   his   second   argument,   Appellant   challenges   Officer   Schuck’s

question, posed after Appellant had allegedly failed three field sobriety tests,

“Do you think you should be driving in this condition?” to which Appellant

responded, “No. Can I call my wife?” Appellant’s Brief at 23-24. Appellant

maintains that, at the time this question was asked, he was in custody and

subject to interrogation by Officer Schuck; thus, the statement was obtained

in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Id. at 19.

      We note that

              the Miranda safeguards come into play whenever a
      person in custody is subjected to either express questioning or
      its functional equivalent. Thus, interrogation occurs where the
      police should know that their words or actions are reasonably
      likely to elicit an incriminating response from the suspect. [I]n
      evaluating whether Miranda warnings were necessary, a court
      must consider the totality of the circumstances. In conducting
      the inquiry, we must also keep in mind that not every statement
      made by an individual during a police encounter amounts to an
      interrogation. Volunteered or spontaneous utterances by an
      individual are admissible even without Miranda warnings.

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

and quotations omitted).

             Whether a person is in custody for Miranda purposes
      depends on whether the person is physically denied of [his or
      her] freedom of action in any significant way or is placed in a
      situation in which [he or she] reasonably believes that [his or
      her] freedom of action or movement is restricted by the
      interrogation. Moreover, the test for custodial interrogation does
      not depend upon the subjective intent of the law enforcement
      officer interrogator. Rather, the test focuses on whether the
      individual being interrogated reasonably believes [his or her]
      freedom of action is being restricted.




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            Under the totality of the circumstances approach, the
      following factors are relevant to whether a detention has become
      so coercive as to constitute the functional equivalent of a formal
      arrest: the basis for the detention; its length; its location;
      whether the suspect was transported against his or her will, how
      far, and why; whether restraints were used; whether the law
      enforcement officer showed, threatened or used force; and the
      investigative methods employed to confirm or dispel suspicions.

Id. at 30-31 (citations and quotations omitted).

      Instantly, Officer   Schuck testified that his vehicle was parked

approximately two car lengths away from Appellant’s vehicle, which was

parked against a fence between a truck and a trailer. N.T., 1/15/2013, at

48-49.    Only a short period of time elapsed between the officer’s

investigatory stop and Appellant’s arrest, during which time two additional

patrol cars arrived for backup as Appellant performed field sobriety tests.

Id. at 57-58.   However, Appellant was not expressly told he was not free to

leave. On these bases, the trial court concluded that, under the totality of

the circumstances, Miranda warnings were not necessary. Trial Court

Opinion, 6/2/2014, at 9. We disagree.

      The evidence of record reveals that Appellant could have reasonably

believed that his freedom of movement was restricted.         There were three

uniformed officers present on scene, Appellant’s vehicle was parked facing a

fence and was blocked in on either side by landscaping equipment, and

Appellant was told to stand next to Officer Schuck’s vehicle to wait for back

up to arrive. Additionally, Appellant had just failed three field sobriety tests.




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Accordingly, we find that Appellant was in custody, or the functional

equivalent thereof, at the time the question was posed. Moreover, Officer

Schuck’s question to Appellant regarding whether he believed he should be

driving was reasonably likely to elicit an incriminating response.       See

Commonwealth v. Ingram, 814 A.2d 264, 271 (Pa. Super. 2002) (holding

that interrogation occurs when the police should know that their words are

reasonably likely to elicit an incriminating response from the suspect). Thus,

Appellant should have been given Miranda warnings, and in the absence of

such warnings, Appellant’s statement should have been suppressed.3

      However, this finding does not end our review of this issue.        The

Commonwealth argues that, even if Appellant’s statement is inadmissible,

the error admitting the statement is harmless. Commonwealth’s Brief at 20.

Given the overwhelming nature of the evidence of record, we agree.

Therefore, we conclude that Appellant is not entitled to a new trial. See also

Commonwealth v. Baez, 720 A.2d 711, 720 (Pa. 1998) (“A suppression



3
  We limit this holding to the statement elicited by Officer Schuck’s direct
question to Appellant. While the record reflects that Appellant made many
more statements to officers following his arrest, none of these was in direct
response to questions posed by the officers, but were voluntary,
spontaneous utterances by Appellant while in custody and, thus, not subject
to Miranda. Williams, supra.

      In light of our holding that Appellant’s statement was, in fact,
inadmissible, and our analysis of his challenge to the sufficiency of the
evidence presented, infra., we need not address Appellant’s corpus delicti
argument.



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court’s error regarding failure to suppress statements by the accused will not

require reversal if the Commonwealth can establish beyond a reasonable

doubt that the error was harmless.”).

       In his remaining issues, Appellant challenges the sufficiency of the

evidence presented at trial to convict him of DUI. Appellant’s Brief at 26-

31.4

             A challenge to the sufficiency of the evidence is a question
       of law, subject to plenary review. When reviewing a sufficiency
       of the evidence claim, the appellate court must review all of the
       evidence and all reasonable inferences drawn therefrom in the
       light most favorable to the Commonwealth, as the verdict
       winner. 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. The Commonwealth need not preclude every
       possibility of innocence or establish the defendant's guilt to a
       mathematical certainty. Finally, the trier of fact while passing
       upon the credibility of witnesses and the weight of the evidence
       produced, is free to believe all, part or none of the evidence.

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

(citations and quotations omitted).




4
  Appellant’s statement of issues includes bald challenges to the sufficiency
of the evidence presented to sustain his conviction for habitual offenders,
driving under suspension, and public drunkenness; however, Appellant’s
brief does not contain any discernable argument as to those claims. Nor
does Appellant specify which elements of those charges the Commonwealth
failed to prove beyond a reasonable doubt. Accordingly, we find any claims
related to those convictions waived. Commonwealth v. Jones, 815 A.2d
598, 604 n. 3 (Pa. 2002), citing Commonwealth v. LaCava, 666 A.2d 221
(Pa. 1995) (issue included in appellant’s “Statement of Questions Involved”
was waived by failure to address issue in brief itself).


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      Appellant was convicted of DUI - general impairment, which provides,

in relevant part, “[a]n individual may not drive, operate or be in actual

physical control of the movement of a vehicle [while t]he individual is under

the influence of a drug or combination of drugs to a degree which impairs

the individual's ability to safely drive, operate or be in actual physical control

of the movement of the vehicle.” 75 Pa.C.S. § 3802(d)(2). The provisions of

Section 3802 “shall apply upon highways and trafficways throughout this

Commonwealth.”      75 Pa.C.S. § 3101(b). The statute defines “highway” as

“[t]he entire width between the boundary lines of every way publicly

maintained when any part thereof is open to the use of the public for

purposes of vehicular travel.

      The term includes a roadway open to the use of the public for

vehicular travel on grounds of a college or university or public or private

school or public or historical park.”     75 Pa.C.S. § 102.       “Trafficway” is

defined as “[t]he entire width between property lines or other boundary lines

of every way or place of which any part is open to the public for purposes of

vehicular travel as a matter of right or custom.” Id.

      Appellant argues that the parking lot in which he was arrested is “not a

publically maintained highway” and, therefore, the Commonwealth has failed




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to meet its burden of proving that Appellant committed DUI.          Appellant’s

Brief at 26.5 After review, we determine that this claim is without merit.

      As discussed above, Officer Schuck’s testimony established that the lot

in question serviced a church and daycare, and was used as a storage

location for landscaping equipment.        The lot was accessible from two

separate entrances, both of which connected with roadways maintained by

the Commonwealth.      There were no bars or gates precluding entry to the

general public, nor was a pass or permit required for access to the lot. As

the trial court points out, these circumstances “suggest that the parking lot

is customarily used by at least certain members of the public, and that it can

be used for vehicular traffic. Therefore, accepting Officer Schuck’s testimony

as credible, the Commonwealth proved that … [Appellant] was operating a

vehicle on a trafficway for purposes of the Motor Vehicle Code.” Trial Court

Opinion 6/2/2014, at 12-13. We agree with the trial court’s assessment and

hold that Appellant is not entitled to relief.       See Commonwealth v.

Proctor, 625 A.2d 1221, 1224 (Pa. Super. 1993) (holding that a mall

parking lot that is open to the public for the purposes of vehicular traffic as a

matter of right or custom is a trafficway for the purposes of the DUI

statute); See also Commonwealth v. Cozzone, 593 A.2d 860 (Pa. Super.



5
  Notably, Appellant does not challenge the Commonwealth’s evidence that
he was under the influence of prescription drugs to the point where he was
unable to operate safely a motor vehicle or that he was in actual physical
control of his vehicle at the time of his arrest.


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1991) (finding that the parking area of condominium complex is trafficway

as it is generally open to public); Commonwealth v. Wilson, 553 A.2d 452

(Pa. Super. 1989) (concluding that the parking lot to a lounge is trafficway

as it is generally open to the public).

      Accordingly, for all the foregoing reasons, we affirm Appellant’s

judgment of sentence.

      Judgment of sentence affirmed.

      Judge Lazarus joins the memorandum.

      Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/17/2014




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