J-A28038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

SAMUEL CARROLL FOSTER,

                            Appellant                  No. 1693 EDA 2014


             Appeal from the Judgment of Sentence April 25, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0004626-2012


BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED JANUARY 08, 2016

       Samuel Carroll Foster (“Appellant”) appeals from the judgment of

sentence imposed in this road-rage incident after the trial court found him

guilty of two counts of driving under the influence (“DUI”).1      On appeal,

Appellant argues that the suppression court erred in admitting statements

he made at the scene, evidence of his blood alcohol content (“BAC”), and

contraband found in his vehicle. We affirm.

       The trial judge, who presided over the suppression hearing and the

bench trial, made the following findings of fact:


____________________________________________


1
   Appellant was convicted of 75 Pa.C.S. § 3802(d)(1)(i) (any amount of a
schedule I controlled substance), and § 3802(d)(3) (combination of drugs
and alcohol).
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           Trooper Gibson has been employed by the Pennsylvania
     State Police since February 2009, and was stationed at Troop K
     Media barracks.

           This Trooper had received education and/or training
     regarding Driving Under the Influence (DUI) at the State Police
     Academy. And, has on almost a weekly basis observed people
     under the influence of alcohol and/or drugs.

           This Trooper has been trained at the Academy in
     conducting field sobriety tests and has administered hundreds of
     such tests in his career.

           Trooper Gibson was uniformed and on duty on March 9,
     2012 at approximately 10:31 p.m. while operating a marked
     State Police vehicle in a southbound direction on the Media by-
     pass where it approached the intersection with Baltimore Pike.

          At the trooper’s vantage point he observed a white Chevy
     minivan proceeding southbound when it drove off the improved
     roadway and onto the left hand earthen berm.

           Believing the minivan had just crashed, he activated his
     vehicle’s overhead emergency lights and siren and drove
     southbound on the bypass to where the white vehicle was
     located. Upon his arrival he could see the minivan was still in
     motion on the left shoulder of the road. And, immediately
     behind the minivan was a black truck, also on the left shoulder
     of the road.

           [Upon] his arrival at the scene the Trooper exited his
     vehicle and heard shouting voices as he proceeded around the
     back of the black truck.     After rounding the truck he saw
     [Appellant] exiting his truck shouting at the driver of the
     minivan, who was also out of his vehicle.

           The driver of the minivan had his hands raised at chest
     level and his body squared with [Appellant] while they were
     arguing. Simultaneously the Trooper saw [Appellant] reaching
     into [Appellant’s] right rear pants pocket with his right hand
     while advancing towards the minivan driver[;] the Trooper
     believed that if he did not intercede a physical assault was
     imminent. All the while the Trooper was repeating orders for the
     two [men] to disengage, which went ignored. The Trooper had

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     to finally draw his weapon to get the two drivers to comply, and
     get down on the ground before the Trooper hand cuffed both
     men.

           After both drivers were hand cuffed Trooper Gibson found
     a knife in [Appellant’s] right rear pants pocket.

           Once the scene was secured Trooper Gibson asked
     [Appellant] cursory questions of what was going on. While
     [Appellant] was informing [the trooper] of how the minivan
     driver was driving[, the trooper] noticed a strong odor of alcohol
     emanating from [Appellant’s] breath. The Trooper also noticed
     that [Appellant’s] speech was slurred, and while standing
     (unrestrained) [Appellant] was swaying with unsure footing.

           Trooper Gibson entered [Appellant’s] truck and moved it
     further off the road for safety reasons.

           While moving [Appellant’s] truck [the Trooper] noticed in
     plain view a wooden box on the center console which he
     recognized as [a] container to conceal a controlled substance.

           Once the Trooper ascertained there was no safety threat to
     himself, the other responding officers and the general public[,]
     the hand cuffs were removed from both drivers.

           After [Appellant] was unrestrained Trooper Gibson
     informed [Appellant] that he wanted to make sure [Appellant]
     could safely operate his vehicle and asked him to perform
     several field sobriety tests[,] which [Appellant] failed.

           [Appellant] testified that he feared if he failed the field
     test(s) he would then be arrested.

           After failing the field tests [Appellant] was offered a
     portable breath test, which [Appellant] voluntarily consented to
     and performed the test as instructed. The test results indicated
     he was over the limit.

          Thereafter, [Appellant] was placed under arrest and
     Trooper Gibson read [Appellant] the DL-26 form.




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             [Appellant] informed Trooper Gibson that he understood
       the DL-26 form and voluntarily consented to have the blood test
       performed.

             After [Appellant] was placed under arrest Trooper Gibson
       performed the required custodial inventory search of
       [Appellant’s] vehicle before it was to be towed.[2] This search
       would have inevitably yielded the discovery of [Appellant’s] drug
       paraphernalia containing suspected marijuana had it not already
       been seen in plain view.

Trial Court Opinion, 12/23/14, at unnumbered 4–6 (internal citation

omitted).

       Appellant filed an omnibus pretrial motion on October 25, 2012,

seeking suppression of his statements that he had been drinking at the

Veterans of Foreign War club and that the marijuana was his, as well as

suppression of the contraband and BAC evidence.              Following a hearing on

January 11, 2013, the suppression court denied Appellant’s motion. Order,

5/13/13.     At a bench trial on December 16, 2013, the following evidence

was admitted as stipulated facts:              Affidavit of Probable Cause, Incident

Report, Preliminary Hearing Notes of Testimony, Suppression Notes of

Testimony, PennDoT Form DL-26 signed by Appellant; Drugscan Lab Report,

and the chain of custody of Appellant’s blood and test results.                 The

documentation indicated that Appellant’s BAC was 0.108% at the time his
____________________________________________


2
   At Appellant’s preliminary hearing, defense counsel attempted to cross-
examine Trooper Gibson regarding the presence of a tow truck at the scene.
The Commonwealth objected because the questions were beyond the scope
of direct examination.     The magisterial district justice sustained the
Commonwealth’s objection. N.T. (Preliminary Hearing), 7/17/12, at 30.



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blood was collected, and his blood tested positive for marijuana, a Schedule

I controlled substance. After finding Appellant guilty, the trial court imposed

a sentence of six months of intermediate punishment.           Order, 1/9/14;

Order, 4/25/14. Appellant filed a timely notice of appeal. Appellant and the

trial court have complied with Pa.R.A.P. 1925.

       Appellant presents one question for our consideration, which we

paraphrase as follows:           “Did the suppression court err in admitting

Appellant’s statements and contraband evidence?” Appellant’s Brief at 4. In

addressing a challenge to the denial of a suppression motion, our standard

of review:

       is limited to determining whether the suppression court’s factual
       findings are supported by the record and whether the legal
       conclusions drawn from those facts are correct. Because the
       Commonwealth prevailed before the suppression court, we may
       consider only the evidence of the Commonwealth and so much of
       the evidence for the defense as remains uncontradicted when
       read in the context of the record as a whole.[3] Where the
       suppression court’s factual findings are supported by the record,
       we are bound by these findings and may reverse only if the
       court’s legal conclusions are erroneous. Where . . . the appeal of
       the determination of the suppression court turns on allegations
       of legal error, the suppression court’s legal conclusions are not
       binding on an appellate court, whose duty it is to determine if
____________________________________________


3
   Our Supreme Court prospectively applied a new rule regarding the scope
of review in suppression matters in In re L.J., 79 A.3d 1073 (Pa. 2013).
Specifically, the L.J. Court clarified that an appellate court’s scope of review
in suppression matters includes the suppression hearing record and not
evidence elicited at trial. Id. at 1087. Because the suppression hearing in
the case sub judice predates the decision in L.J., that holding has no bearing
on our review. Commonwealth v. Hale, 85 A.3d 570 (Pa. Super. 2014).



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      the suppression court properly applied the law to the facts.
      Thus, the conclusions of law of the courts below are subject to
      our plenary review.

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations

omitted)).

      Arguing for suppression, Appellant describes a very dramatic scene

involving a rookie state trooper, deadly force, no jacket in thirty-nine-degree

weather, asthma, lost police cruiser video footage, an unlawful arrest, and

an illegal vehicle search.   Contrarily, the suppression court found Trooper

Gibson’s version of events to be credible. Trial Court Opinion, 12/23/14, at

unnumbered 1, 4, and 6. According to the suppression court:

           Trooper Gibson, accordingly, restrained both drivers while
      he conducted a temporary investigative detention.

            During an investigative detention Trooper Gibson was free
      to briefly stop, detain, and question the suspects, as he did with
      [Appellant].

            Once the scene was secured and the police had
      ascertained what had occurred, both drivers were unrestrained.

             Due to all the observations by Trooper Gibson, [he] had
      reasonable suspicion that [Appellant] was impaired, thus
      [Appellant] was subjected to field sobriety tests[,] which he
      failed.

             Thereafter, [Appellant] was arrested.

            [Appellant] voluntarily consented to be subjected to a
      blood test to ascertain the level of alcohol in his blood.

             Pennsylvania courts have long recognized that police are
      justified in investigating a situation, so long as the police

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     officer(s) reasonably believe that criminal activity is afoot.
     Commonwealth v. Melson, 556 A.2d 836 (Pa. Super. 1989).
     Likewise, it is well established that “the dictates of Miranda do
     not attach during an investigatory detention.” Commonwealth v.
     Kondash, 808 A.2d 943, 948 (Pa. Super. 2002).

           In the instant case Trooper Gibson had reasonable
     suspicion that criminal activity was afoot; and his original
     investigatory detention of [Appellant] was appropriate. Since an
     investigatory detention does not trigger Miranda requirements
     [Appellant’s] statements made during the investigatory
     detention were properly admissible.

            When Trooper Gibson smelled a strong odor of alcohol on
     [Appellant’s] breath, observed [Appellant’s] slurred speech and
     unsure footing[,] there is no question that he had sufficient
     probable cause under 75 Pa. C.S.A. 1547 to believe [Appellant]
     was operating his vehicle under the influence of alcohol.
     Participation in a breathalyzer test (or field sobriety test) is not
     the equivalent of an interrogation, nor is it a criminal proceeding.
     Commonwealth v. Mordan, 615 A.2d 102 (Pa. Super. 1992).
     During an interrogation, the objective is to obtain incriminating
     statements. Id. “Requiring a driver to perform physical tests or
     to take a breath analysis test does not violate the privilege
     against self-incrimination because the evidence procured is of a
     physical nature rather than testimonial, and therefore, no
     Miranda warnings are required.” Commonwealth v. Benson, 421
     A.2d 383, 387 (Pa. Super. 1980).

           As a condition of maintaining a driver’s license in
     Pennsylvania, all drivers are subject to the implied consent
     requirements of the Motor Vehicle Code and must submit to
     blood and breath tests under appropriate circumstances.
     Commonwealth v. O’Connell, 555 A.2d 873, 877 (Pa. 1989).
     Where an officer has reasonable grounds to believe that a
     motorist is driving while under the influence of alcohol, the driver
     may properly be requested to submit to a chemical test of blood,
     breath or urine to determine the alcoholic content of the blood.
     Commonwealth v. McFarren, 525 A.2d 1185 (Pa. 1987). Neither
     the Fourth Amendment bar against unreasonable searches and
     seizures nor Fifth Amendment privilege against self-incrimination
     prevents the Commonwealth from requiring a driver to submit to
     a breathalyzer test. Commonwealth v. Hipp, 551 A.2d 1086 (Pa.
     Super. 1988).

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            In the instant case Trooper Gibson had reasonable
      suspicion that [Appellant] was operating his vehicle while under
      the influence, accordingly, his request for field sobriety tests,
      breathalyzer test and blood analysis were appropriate as a
      matter of law. Further, in addition to the implied consent to
      submit to testing, [Appellant] freely gave actual consent to
      submit to the requested tests.

            Accordingly, all the test results were properly admissible.

Trial Court Opinion, 12/23/14, at unnumbered 6–8.

      In support of his position, Appellant first contends that all of the

evidence should have been suppressed because his arrest was illegal.

Appellant’s Brief at 17.      According to Appellant, the trooper lacked

reasonable suspicion when he first arrived at the scene.           Id. at 18.

Appellant further argues that Trooper Gibson lacked probable cause to arrest

him because the only evidence of suspected impairment was the odor of

alcohol on Appellant’s breath, which evidence was obtained after the trooper

had placed Appellant in handcuffs. Id. at 18–19.

      The Commonwealth responds that Trooper Gibson had reasonable

suspicion to investigate the situation unfolding between Appellant and the

other driver on the side of a busy highway. Commonwealth’s Brief at 10.

The Commonwealth further argues that the initial interaction between

Appellant and Trooper Gibson was a stabilization of the volatile situation and

an investigatory detention. Id. at 10–15. As Trooper Gibson interacted with

Appellant, the Commonwealth asserts, probable cause ripened based on

Appellant’s breath, unstable balance, failure of field sobriety tests, and the


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results of the breathalyzer test.              Thus, the Commonwealth concludes,

Appellant’s arrest was lawful. Id. at 16–19.

       Upon review, we agree with the Commonwealth.                  The suppression

court found, and the record confirms, that Trooper Gibson responded to

what he believed was a traffic accident.            Criminal Complaint (Affidavit of

Probable Cause), 4/3/12, at 6; N.T. (Preliminary Hearing), 7/17/12, at 5, 9;

N.T. (Suppression), 1/11/13, at 13, 48. Upon arriving at the scene, Trooper

Gibson had reasonable suspicion to believe that criminal activity was afoot

when he observed Appellant reaching for his back pants pocket as he

shouted at and moved toward the other driver. N.T. (Preliminary Hearing),

7/17/12,     at   5–8;    N.T.    (Suppression),     1/11/13,   at   18–20,   52–53.

Additionally, as Trooper Gibson interacted with Appellant, the trooper had

probable cause to believe that Appellant was impaired based on his breath,

slurred speech, instability, field sobriety tests, and breathalyzer test. N.T.

(Preliminary Hearing), 7/17/12, at 9–12; N.T. (Suppression), 1/11/13, at

22, 25–31, 32–34. Thus, we conclude that Appellant’s arrest was legal.

       Next, Appellant asserts that his statements should have been

suppressed because Trooper Gibson did not administer Miranda4 warnings.

According to Appellant, he was placed under arrest when Trooper Gibson

handcuffed him; therefore, any statements or evidence obtained after that

____________________________________________


4
    Miranda v. Arizona, 384 U.S. 436 (1966).



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point were unlawful because the trooper did not advise Appellant of his

constitutional rights. Appellant’s Brief at 20. Contrarily, the Commonwealth

contends that Appellant’s formal arrest did not occur until after the

breathalyzer test; therefore, Appellant’s pre-arrest statements were not

subject to Miranda warnings.       Commonwealth’s Brief at 21–24 (citing

Commonwealth v. Pakacki, 901 A.2d 983, 988 (Pa. 2006)).

     Again, we agree with the Commonwealth.        Our Supreme Court “has

declined to hold that every time an individual is placed in handcuffs that

such individual has been arrested.”    Commonwealth v. Guillespie, 745

A.2d 654, 660 (Pa. Super. 2000) (citing Commonwealth v. Carter, 643

A.2d 61, 67 n. 2 (Pa. 1994)).      “[F]or their safety, police officers may

handcuff individuals during an investigative detention.” Commonwealth v.

Rosas, 875 A.2d 341, 348 (Pa. Super. 2005). Moreover, an investigatory

detention does not trigger Miranda warnings. Kondash, 808 A.2d at 948;

see also Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007)

(quoting Kondash).

     Here, the suppression court found, and the record confirms, that

Appellant and the other driver were placed in handcuffs to maintain the

status quo and to stabilize a volatile situation. N.T. (Preliminary Hearing),

7/17/12, at 9; N.T. (Suppression), 1/11/13, at 20, 23, 58.      Additionally,

Appellant was not under arrest until the breathalyzer test results indicated

that his BAC was above the legal limit; at that point, Trooper Gibson read


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Appellant the implied consent warning.        Criminal Complaint (Affidavit of

Probable Cause), 4/3/12, at 6–7; N.T. (Preliminary Hearing), 7/17/12, at

11–12; see also N.T. (Suppression), 1/11/13, at 123 (Appellant testified

that he was not under arrest until after the breathalyzer test). As discussed

above, Trooper Gibson’s original investigatory detention of Appellant was

appropriate. Because an investigatory detention does not trigger Miranda

warnings, Appellant’s statements made during the investigatory detention

were admissible.    Kondash, 808 A.2d at 948; Murray, 936 A.2d at 81.

Thus, Appellant’s contrary claim lacks merit.

        Appellant’s third argument is that the contraband evidence should

have been suppressed because the warrantless search of his vehicle was

illegal. Appellant contends that Trooper Gibson did not conduct an inventory

search and no exigent circumstances existed that would justify the trooper’s

search of Appellant’s truck.   Appellant’s Brief at 21.   The Commonwealth

points out that Trooper Gibson did not charge Appellant with any drug

offenses; therefore, any argument regarding the wooden box, the trooper’s

subsequent search of the vehicle, and recovery of suspected marijuana is

moot.     Commonwealth’s Brief at 19.        Alternatively, the Commonwealth

submits that the contraband was in plain view, recovered during a valid

inventory search, and subject to the inevitable discovery doctrine.     Id. at

19–21 (citing Commonwealth v. Brown, 368 A.2d 626, 631 (Pa. 1976)).




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     Our review of the record confirms that Appellant was not prosecuted

for or convicted of any drug offenses. Criminal Complaint, 4/3/12, at 2–4;

Judgment of Sentence, 4/25/14. Consequently, evidence of the wooden box

and marijuana did not contribute to his convictions, which were based on the

breathalyzer test results and the blood test results.      Criminal Complaint

(Affidavit of Probable Cause), 4/3/12, at 6–7; N.T. (Preliminary Hearing),

7/17/12, at 11, 13–16, Exhibit C-1.

     Moreover, “evidence that ultimately or inevitably would have been

recovered by lawful means should not be suppressed despite the fact that its

actual recovery was accomplished through illegal actions.”     Commonealth

v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009). Here, the suppression

court found and the record confirms that:

     the drug paraphernalia was located on [Appellant’s] vehicle’s
     [console] between the front seats, in plain view. However, even
     if the discovery of this drug paraphernalia was initially “illegal”
     the Commonwealth adequately proved it would have been
     inevitably discovered in the subsequent legal inventory search
     which was performed on [Appellant’s] vehicle subsequent to
     [Appellant’s] lawful arrest.

Trial Court Opinion, 12/23/14, at unnumbered 9.        Thus, we conclude that

Appellant’s contraband challenge warrants no relief.

     Appellant next argues that all of the evidence should have been

suppressed because the trooper obtained it through coercion.       Appellant’s

Brief at 25. According to Appellant, “[a]ll acts and behavior by the Trooper




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in the instant case had the primary goal to elicit incriminating responses

from Appellant, while Appellant was not free to go.” Id. at 27.

       We consider this argument to be a challenge to the weight of the

Commonwealth’s evidence, an elevation of Appellant’s version of events over

Trooper Gibson’s version. We reiterate, “It is within the suppression court’s

sole province as factfinder to pass on the credibility of witnesses and the

weight to be given their testimony.”         Commonwealth v. Gallagher, 896

A.2d 583, 585 (Pa. Super. 2006).             As an appellate court, we cannot

substitute our judgment for that of the finder of fact. Commonwealth v.

Champney, 832 A.2d 403, 408 (Pa. 2003).             Here, the suppression court

found Trooper Gibson’s testimony to be credible.           Trial Court Opinion,

12/23/14, at unnumbered 1, 4, and 6. We shall not re-weigh the evidence

and substitute our judgment for that of the suppression court. Gallagher,

896 A.2d at 585; Champney, 832 A.2d at 408.

       Finally, Appellant concludes that all of the evidence should have been

suppressed based on the totality of the circumstances. Appellant’s Brief at

27.    According to Appellant, “[t]he record shows that a pattern of

increasingly deficient and illegal methods used by the arresting Trooper

compelled the logical conclusion to suppress the evidence.” Id. at 27–28.

       We agree with Appellant that a suppression court is required to “take

into   account   the   totality   of   the   circumstances—the   whole   picture.”

Navarette v. California, ___ U.S. ___, 134 S.Ct. 1683 (2014). However,


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we disagree that suppression was warranted in light of the totality of the

circumstances at hand.      The record supports the suppression court’s

findings, and its legal conclusions are without error. Therefore, Appellant’s

final challenge fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/2016




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