J-S68033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

CORY HOUGHTON,

                        Appellant                  No. 569 EDA 2014


   Appeal from the Judgment of Sentence Entered on February 11, 2014
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0003830-2012


BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.

CONCURRING MEMORANDUM BY JENKINS, J.: FILED DECEMBER 09, 2014

     I respectfully concur in the result.

     In my view, the trial court erred by denying Houghton’s motion to

suppress.   The moment of arrest occurred when Officer McCarthy stated:

“No, you don’t [get to go home after taking a portable breath test] because

you didn’t do well on the other tests.”     At that point, Officer McCarthy

signaled his intention to take Houghton into custody, and a reasonable

person would not have felt free to leave. Following arrest, Officer McCarthy

did not give Houghton the required Miranda warnings.         Thus, Houghton’s

response to the officer’s refusal to permit Houghton to go home – “I just

chugged three beers before I left. If I take the [portable breath test], I’m

not going to pass it” – should have been suppressed as a non-Mirandized

inculpatory statement prompted by custodial interrogation.
J-S68023-14



       Nevertheless, I consider the trial court’s error to be harmless. Even

without the “chugging” statement, the evidence remains sufficient to sustain

Houghton’s conviction under 75 Pa.C.S. § 3802(a)(1).           The remaining

evidence establishes that (a) Houghton violated the Motor Vehicle Code by

having his high beams activated while passing Officer McCarthy; (2) Officer

McCarthy detected a strong odor of alcohol on Houghton’s person and saw

that he had bloodshot, glassy eyes; (c) Houghton failed two of three field

sobriety tests; and (d) he refused to submit to a test of his blood alcohol

content at the hospital1. This evidence resembles other decisions in which

this Court has found the evidence sufficient to sustain the defendant’s

conviction under section 3802(a)(1).             See, e.g., Commonwealth v.

Mobley, 14 A.3d 887, 890 (Pa.Super.2011) (defendant failed to stop at stop

sign even though police officer's cruiser was in full view, defendant failed

four field sobriety tests and was unable to recite alphabet, and officer

observed strong odor of alcohol emanating from defendant's vehicle and

defendant's slurred speech); Commonwealth v. Smith, 904 A.2d 30, 38

(Pa.Super.2006) (defendant drove onto grassy median, drove in wrong lane




____________________________________________


1
   Although this refusal took place after Houghton’s arrest, it remains
admissible because it was not the product of a non-Mirandized custodial
interrogation.   Moreover, in this appeal, Houghton only challenges the
court’s refusal to suppress his “chugging” statement, not his statement
refusing a blood test.



                                           -2-
J-S68023-14



of traffic, smelled of alcohol, was unsteady on her feet, was combative,

failed field sobriety tests, and refused blood alcohol test).

      Thus,   I   concur   for   the   reason   that   the   admissible   evidence

demonstrates that Houghton drove or operated his vehicle after imbibing a

sufficient amount of alcohol to render him incapable of driving his vehicle

safely.




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