          IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Richard Carl Worrell, Jr.,                        :
                                                  :
                               Appellant          :
                                                  :
                v.                                :   No. 291 C.D. 2014
                                                  :
Commonwealth of Pennsylvania,                     :   Submitted: July 18, 2014
Department of Transportation,                     :
Bureau of Driver Licensing                        :



BEFORE:         HONORABLE RENÉE COHN JUBELIRER, Judge
                HONORABLE ROBERT SIMPSON, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                                         FILED: September 2, 2014

      Richard Carl Worrell, Jr. (Licensee) appeals from the Order of the Court of
Common Pleas of Lawrence County (trial court) denying his appeal from the
suspension of his operating privilege by the Department of Transportation, Bureau
of Driver Licensing (Department) pursuant to Section 1547(b)(1)(ii) of the Vehicle
Code1 for refusal to submit to chemical testing. On appeal, Licensee argues that

      1
          75 Pa. C.S. § 1547(b)(1)(ii). Section 1547(b)(1)(ii) provides, in relevant part:

      (1) If any person placed under arrest for a violation of section 3802 is requested to
      submit to chemical testing and refuses to do so, the testing shall not be conducted
      but upon notice by the police officer, the department shall suspend the operating
      privilege of the person as follows:
                                                                                   (Continued…)
the trial court erred by admitting into evidence his statement to the arresting police
officer that he was driving the vehicle when: (1) the Department did not establish
the corpus delicti in this case; and (2) he was clearly in police custody, but had not
been advised of his legal rights before he was questioned about whether he was
driving the vehicle. Licensee argues further that the trial court’s denial of his
appeal was against the weight of the evidence. Discerning no error, we affirm.


         By notice mailed October 16, 2013, the Department notified Licensee that it
was suspending his operating privilege for eighteen months pursuant to Section
1547(b)(1)(ii) for refusing to submit to a chemical test on September 24, 2013.
Licensee appealed the suspension, and a de novo hearing was held before the trial
court.


         During the hearing the Department presented documentary evidence,
including Licensee’s driving record, which showed Licensee’s prior convictions
for violating Section 3802 of the Vehicle Code, 75 Pa. C.S. § 3802, and the
testimony of Officer Matthew Liberatore, who was the only witness to testify.
Based on Officer Liberatore’s testimony, the trial court found as follows. On

                                                ....

         (ii) For a period of 18 months if any of the following apply:

            (A) The person’s operating privileges have previously been suspended
            under this subsection.
            (B) The person has, prior to the refusal under this paragraph, been
            sentenced for:
            (I) an offense under section 3802[.]

Id.

                                                  2
September 24, 2013, Officer Liberatore was on patrol when he noticed “a green
pickup truck parked sideways with half of the vehicle on the sidewalk and the
other half on the roadway.” (Trial Ct. Op. at 2.) Licensee was “standing on the
sidewalk next to the vehicle” zippering his pants. (Trial Ct. Op. at 2.) Officer
Liberatore smelled a strong odor of alcohol when he approached Licensee. (Trial
Ct. Op. at 2.) Officer Liberatore asked Licensee what he was doing, and Licensee
“responded that he had been drinking at the Polish National Alliance Club” (Club),
which was three to four blocks away. (Trial Ct. Op. at 2.) Licensee responded
further that he drove from the Club to where the vehicle was parked and that he
had stopped because he needed to urinate. (Trial Ct. Op. at 2.) The vehicle’s
engine was not running, but the keys were in the ignition. (Trial Ct. Op. at 2.) The
vehicle was registered to Licensee’s wife. (Trial Ct. Op. at 2.)


      Officer Liberatore administered three field sobriety tests which Licensee
failed to properly perform. (Trial Ct. Op. at 2.) Officer Liberatore also conducted
a portable breath test which indicated that Licensee’s blood alcohol content was
.17 percent. (Trial Ct. Op. at 2.) Officer Liberatore placed Licensee under arrest
for driving under the influence and transported him to the local hospital for
chemical testing. (Trial Ct. Op. at 2.) Upon arrival at the hospital, Licensee
became argumentative, would not cooperate, and interrupted Officer Liberatore
when he read Licensee the chemical testing warnings. (Trial Ct. Op. at 2.) After
being warned that his operating privilege would be suspended if he refused to
submit to chemical testing, Licensee refused to submit. (Trial Ct. Op. at 2-3.)




                                          3
       At the conclusion of Officer Liberatore’s testimony, Licensee’s counsel
argued, based on the corpus delicti rule, that the Department failed to meet its
burden of proof because it did not present any evidence independent of Licensee’s
statement to Officer Liberatore to prove that Licensee operated the vehicle while
he was intoxicated. (Hr’g Tr. at 20.) Counsel argued further that Licensee’s
Miranda2 rights were violated because he was in police custody and had not been
advised of his legal rights when he made the incriminating statement that he drove
the vehicle to the location where Officer Liberatore found it parked. (Hr’g Tr. at
25.)


       The trial court issued an Order denying Licensee’s appeal and reinstating the
Department’s suspension of Licensee’s operating privilege.          In an opinion in
support of its Order, the trial court found Officer Liberatore’s testimony credible
and further found, based on that testimony, that Officer Liberatore had reasonable
grounds to believe that Licensee was operating the vehicle while intoxicated.
(Trial Ct. Op. at 5-6, 10.) The trial court pointed out that Officer Liberatore
observed: (1) the vehicle parked sideways on the road; (2) Licensee urinating in
public; (3) a strong odor of alcohol emanating from Licensee; (4) the keys to the
vehicle were in the ignition; (5) Licensee’s failure to pass three field sobriety tests;
and (6) the portable breath test indicated that Licensee’s blood alcohol content was
.17%. (Trial Ct. Op. at 6.) Therefore, the trial court concluded that it did not err
by admitting Officer Liberatore’s testimony that Licensee stated that he was
driving the vehicle because there was other evidence that supported its finding that


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

                                                4
Officer Liberatore had reasonable grounds to believe that Licensee was driving
under the influence of alcohol. (Trial Ct. Op. at 6.)


       Next, the trial court determined that Officer Liberatore was not
constitutionally required to advise Licensee of his Miranda rights before Licensee
made any statements because the encounter between Officer Liberatore and
Licensee was an investigatory detention. (Trial Ct. Op. at 8.) Finally, the trial
court concluded that its Order denying Licensee’s appeal was not against the
weight of the evidence because the credible evidence established that Officer
Liberatore had reasonable grounds to believe that Licensee was operating the
vehicle under the influence of alcohol and that he refused to submit to chemical
testing. (Trial Ct. Op. at 9-11.) Licensee now appeals the trial court’s Order to
this Court.3


       In support of his appeal, Licensee first argues that, because there is no
evidence independent of his verbal statement that he was driving the vehicle, the
Department failed to prove that Licensee was operating the vehicle while under the
influence of alcohol. Licensee points out that Officer Liberatore testified that
when he approached the vehicle: (1) Licensee was standing outside the vehicle;
(2) he never saw Licensee inside the vehicle; (3) the vehicle was not running; and
(4) no one was ever seen inside the vehicle. Therefore, Licensee asserts, the
Department failed to prove the corpus delicti in this case.

       3
         “Our standard of review in a license suspension case is to determine whether the trial
court’s findings are supported by competent evidence, whether errors of law have been
committed, or whether the trial court’s determinations demonstrate a manifest abuse of
discretion.” Department of Transportation v. Renwick, 669 A.2d 934, 936 n.2 (Pa. 1996).

                                              5
       Initially, we note that Licensee’s reliance on the corpus delicti rule is
misplaced. As explained by our Superior Court, “[t]he well-established corpus
delicti rule provides that ‘a criminal conviction may not stand merely on the out[-
]of[-]court confession of one accused, and thus a case may not go to the fact[-
]finder where independent evidence does not suggest that a crime has occurred.’”
Commonwealth v. Cuevas, 61 A.3d 292, 295 (Pa. Super. 2013) (quoting
Commonwealth v. Edwards, 555 A.2d 818, 823 (Pa. 1989)) (emphasis added,
alterations in original, footnote omitted). “This rule is rooted in the hesitancy to
convict a person of a crime solely on the basis of that person’s statements.” Id.
(emphasis added). Therefore, the corpus delicti rule is applicable in criminal
matters. However, suspensions of operating privileges for refusal of chemical
testing are civil proceedings, not criminal proceedings. Sitoski v. Department of
Transportation, Bureau of Driver Licensing, 11 A.3d 12, 21 (Pa. Cmwlth. 2010).
Thus, the trial court was not prohibited, pursuant to the corpus delicti rule, from
considering Licensee’s statements to Officer Liberatore in this civil proceeding.


       The Department’s burden in license suspension cases is to prove that the
arresting officer “had reasonable grounds to believe that the licensee was operating
or was in actual physical control of the movement of the vehicle while under [the]
influence of alcohol.”4 Banner v. Department of Transportation, Bureau of Driver
Licensing, 737 A.2d 1203, 1206 (Pa. 1999). “In assessing whether it has met this


       4
          The Department must also prove that the licensee was asked to submit to a chemical
test, refused to do so, and was warned that a refusal might result in a suspension of his or her
operating privilege. Banner v. Department of Transportation, Bureau of Driver Licensing, 737
A.2d 1203, 1206 (Pa. 1999). Licensee does not challenge that the Department established these
elements of its burden.

                                               6
burden, we consider the totality of the circumstances and determine, as a matter of
law, whether a person in the position of the arresting officer could have reasonably
reached this conclusion.” Helt v. Department of Transportation, Bureau of Driver
Licensing, 856 A.2d 263, 266 (Pa. Cmwlth. 2004) (citing Banner, 737 A.2d at
1207). This standard is not very demanding, and the arresting officer’s belief that
the licensee had been driving while under the influence of alcohol need not be
correct.   Koutsouroubas v. Department of Transportation, Bureau of Driver
Licensing, 61 A.3d 349, 353 (Pa. Cmwlth. 2013). The legal question of whether
reasonable grounds exist is “reviewable by the court on a case by case basis.”
Banner, 737 A.2d at 1207.


      When determining if reasonable grounds exist, the following may be
considered: “the location of the vehicle, whether the engine was running and
whether there was other evidence indicating that the motorist had driven the
vehicle at some point prior to the arrival of the police.” Id. It is not necessary that
the licensee “be observed behind the steering wheel of the vehicle while it was in
motion” or “even necessary that the licensee be observed behind the steering
wheel.” Department of Transportation, Bureau of Driver Licensing v. Bendik, 535
A.2d 1249, 1251 (Pa. Cmwlth. 1988).


      In this matter the trial court found that, even without considering Licensee’s
statement that he drove the vehicle from the Club and had stopped to urinate,
Officer Liberatore had reasonable grounds to believe that Licensee had been
operating the vehicle while intoxicated. This finding is based on the following
facts gleaned from Officer Liberatore’s credible testimony:          (1) the vehicle,


                                          7
registered to Licensee’s wife, was parked partway on the sidewalk and partway on
the road; (2) a strong odor of alcohol was emanating from Licensee, who was
standing next to the vehicle; (3) Licensee failed three field sobriety tests; (4)
Licensee was urinating in public; (5) the keys were in the ignition; and (6) the
portable breath test indicated that Licensee’s blood alcohol content was .17%.
Accordingly, based on the foregoing, we conclude that the trial court did not err by
determining that Officer Liberatore’s belief that Licensee had driven the vehicle
while intoxicated was reasonable.


       Next, Licensee argues that the trial court erred by permitting into evidence
his incriminating statement that he was driving the vehicle when it was clear he
made the statement in response to Officer Liberatore’s questioning after being
placed in police custody and before he was read his Miranda rights.5
Notwithstanding that a licensee may not seek a reversal of an operating privilege
suspension based on a claim that his rights as a criminal defendant have been
compromised, including the contention that the licensee was not properly advised
of his Miranda rights, Sitoski, 11 A.3d at 21, we conclude that this issue was
thoroughly and correctly analyzed and ably disposed of as follows in the
comprehensive and well-reasoned opinion of the trial court:

       5
          The Department argues that Licensee has waived any argument that Officer Liberatore
should not have been permitted to testify regarding what Licensee said when he was first
questioned because Licensee neither objected to this testimony nor did he move to have it
stricken in accordance with Rule 103(a) of the Pennsylvania Rules of Evidence, Pa. R.E. 103(a)
(requiring that any claims of error with respect to the admittance or exclusion of evidence must
be preserved on the record). While Licensee’s counsel did not make a specific objection during
Officer Liberatore’s testimony, counsel argued before the trial court that Licensee’s Miranda
rights had been violated because he was questioned regarding his involvement in a crime while
in police custody. (Hr’g Tr. at 22-25.) Therefore, we will address the merits of this issue.

                                               8
       As to one’s right against self-incrimination, a person must be
informed of his or her Miranda rights prior to custodial interrogation
by police. Miranda v. Arizona, 384 U.S. 436[, 473] (1966);
Commonwealth v. Sites, . . . 235 A.2d 387[, 389-90] ([Pa.] 1967)
[(quotation marks omitted)]. “Interrogation [is] police . . . conduct
‘calculated to, expected to, or likely to evoke [an] admission.’”
Commonwealth v. Brown, . . . 711 A.2d 444[, 451] ([Pa.] 1998)
[(quoting Commonwealth v. Brantner, 406 A.2d 1011, 1016 (Pa.
1979))]. [“]Interrogation occurs when the police should know that
their words or actions are reasonably likely to elicit an incriminating
response, [. . .] and the circumstances must reflect a measure of
compulsion above and beyond that inherent in custody itself.[”]
Commonwealth v. Fisher, . . . 769 A.2d 1116[, 1125] ([Pa.] 2001).
Clearly, the Pennsylvania courts have established that any statements
made as a result of a custodial interrogation are presumptively
involuntary and inadmissible, unless the accused is advised of his or
her Miranda rights. Commonwealth v. Levanduski, 907 A.2d 3, 23
(Pa. Super. 2006) (citing Commonwealth v. DiStefano, 782 A.2d 574,
579 (Pa. Super. 2001)); [s]ee also Commonwealth v. Pakacki, . . . 901
A.2d 983, 991 ([Pa.] 2006) [(Baer, J., concurring)]. A custodial
interrogation has been defined as “questioning initiated by the police
after a person has been taken into custody or otherwise deprived of his
or her freedom of action in any significant way.” Commonwealth v.
Clinton, 905 A.2d 1026, 1032 (Pa. Super. 2006) (citing
Commonwealth v. Ingram, 814 A.2d 264, 271 (Pa. Super. 2002)). An
interrogation occurs when a police officer should have known that his
or her actions or words were reasonably likely to elicit an
incriminating response from the defendant. Commonwealth v.
Hughes, . . . 639 A.2d 763, 771 ([Pa.] 1994) (citing Rhode Island v.
Innis, 446 U.S. 291 . . . (1980); Commonwealth v. Whitley, . . . 457
A.2d 507 ([Pa.] 1983)). However, unsolicited remarks that are not the
result of a custodial interrogation constitute voluntary and
spontaneous statements, which are not subject to suppression. [Fisher,
769 A.2d at 1125] (citing Commonwealth v. Gibson, . . . 720 A.2d
473, 480 ([Pa.] 1998)).

       In addition, an investigative detention is not the equivalent of
an arrest and is not subject to the dictates of Miranda and warnings are
not required prior to questioning. [Pakacki, 901 A.2d at 988]. An
investigatory detention, which must be supported by reasonable
suspicion, subjects a suspect to a stop and period of detention, but
lacks the coercive aspects of an arrest. Commonwealth v. Phinn, 761
A.2d 176, 181 (Pa. Super. 2000) (citing Commonwealth v. Ellis, . . .
                                   9
      662 A.2d 1043, 1047 ([Pa.] 1995)). Ordinary traffic stops, without
      additional indicia that the accused is under arrest, are investigative
      detentions and do not constitute custody for the purposes of providing
      Miranda warnings. Commonwealth v. Haupt, . . . 567 A.2d 1074,
      1078 ([Pa. Super.] 1989) (citing Berkemer v. McCarty, 468 U.S. 420,
      439 . . . (1984); Pennsylvania v. Bruder, 488 U.S. 9 . . . (1988)).

             In the current matter, Officer Liberatore was not
      constitutionally required to provide [Licensee] with Miranda warnings
      prior to his statement as the encounter between he and [Licensee] was
      an investigatory detention. The testimony presented to this Court
      indicates that Officer Liberatore was patrolling Factory Avenue when
      he observed the green pickup truck parked sideways with half of the
      vehicle on the sidewalk and the other half on the roadway. He also
      noticed [Licensee] standing next to the vehicle zipping his pants. The
      police officer stopped and approached [Licensee], who emanated a
      strong odor of alcohol. Officer Liberatore spoke with [Licensee] at
      that time, who revealed that he drove the vehicle to that location from
      the [Club] and parked it there to urinate. There is no indication that
      the police officer was placing [Licensee] into custody at that time, he
      was merely investigating the situation due to the unusual
      circumstances concerning the manner in which the vehicle was parked
      and [Licensee] zipping his pants. At that point, the encounter was an
      investigatory detention, which lacks the coercive aspects of custodial
      detention and the police officer was permitted to ask [Licensee]
      questions that may elicit incriminating responses without providing
      [Licensee] with a recitation of the Miranda warnings. [Licensee]
      failed three field sobriety tests and a portable breath test after he made
      those statements to Officer Liberator[e]. The police officer placed
      [Licensee] under arrest after all of those events transpired. . . . .


(Trial Ct. Op. at 6-9.) Accordingly, the trial court “did not err in admitting Officer
Liberatore’s testimony concerning the statements made by [Licensee] indicating
that he operated the vehicle.” (Trial Ct. Op. at 9.)


      Finally, Licensee argues that the trial court’s Order denying his appeal is
against the weight of the evidence. Licensee contends that there was no credible


                                          10
evidence that he was ever driving the truck; therefore, the trial court abused its
discretion in finding that Licensee was operating a vehicle while under the
influence of alcohol.


      Here, even without considering Licensee’s statement that he drove the
vehicle from the Club to the location where Officer Liberatore found it parked
sideways, the trial court found, based on Officer Liberatore’s credible testimony,
that the officer had reasonable grounds to believe that Licensee was operating the
vehicle while intoxicated. Questions of evidentiary weight and credibility are
“solely in the province of the trial court.” Sitoski, 11 A.3d at 17. Accordingly, we
are bound by the trial court’s credibility determination in this matter and cannot
reweigh the evidence in Licensee’s favor.


      For the foregoing reasons, the trial court’s Order is affirmed.



                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge




                                         11
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Richard Carl Worrell, Jr.,                 :
                                           :
                             Appellant     :
                                           :
             v.                            :   No. 291 C.D. 2014
                                           :
Commonwealth of Pennsylvania,              :
Department of Transportation,              :
Bureau of Driver Licensing                 :


                                         ORDER

      NOW, September 2, 2014, the Order of the Court of Common Pleas of
Lawrence County, entered in the above-captioned matter, is hereby AFFIRMED.




                                           ________________________________
                                           RENÉE COHN JUBELIRER, Judge
