J-A01020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DOMINICK BOOKER                          :
                                          :
                    Appellant             :   No. 2700 EDA 2016

            Appeal from the Judgment of Sentence July 15, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0002555-2014


BEFORE:    LAZARUS, J., OTT, J., and PLATT*, J.

CONCURRING STATEMENT BY LAZARUS, J.:                   FILED JULY 23, 2018

      I agree with the Majority’s disposition. I write separately to voice my

concern with the suppression issue in this case. Police questioned Appellant

while he was immobilized due to medical necessity. As the Majority points

out, Appellant argues that “numerous police officers surrounded” him and

questioned him in the back of an ambulance without providing Miranda

warnings. Majority Opinion, at 8.     The cases on which the Majority relies

support its determination that since the restraints on Appellant’s freedom were

a result of his medical condition, not police action, there was nothing coercive

about the conversation police had with Appellant while in the ambulance. See




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A01020-18


Johnson, supra;1 Fento, supra. See also Commonwealth v. Perry, 710

A.2d 1183 (Pa. Super. 1998) (defendant not subject to custodial interrogation

requiring Miranda warnings when trooper questioned him in emergency room

following automobile accident, even though defendant was immobilized on

gurney and had intravenous tubes in arms; trooper went to hospital to gather

information about accident pursuant to standard police procedure, questioning

____________________________________________


1 I note that the Majority’s citation to Johnson refers to the statement
Johnson gave while in an ambulance. However, Johnson challenged four
different statements he made to police and, with respect to the statement
made while in the ambulance, the Supreme Court specifically noted that
appellant “does not claim that this questioning amounted to a custodial
interrogation requiring Miranda warning.” Id. (emphasis added). Rather,
Johnson argued that his physical condition was so severe that “any statement
given to police was not given knowingly, voluntarily, and intelligently.” Id.
The Court went on to hold that the totality of the circumstances did not support
a determination “that this noncustodial interrogation resulted in an involuntary
confession [.]” Id. (emphasis added) In that same case, however, the Court
did examine another of Johnson’s statements, this one given to police while
he was in the hospital, which he challenged on the basis of custodial
interrogation given without Miranda warnings.            With respect to that
statement, the Court concluded:

       [Johnson’s] inability to leave was not the result of any action of
       restraint by the police, but was due to his physical condition at the
       time. Although the officers displayed their badges, they were not
       in uniform and conducted the interview with the hospital door
       open and while another patient was in the room with Appellant.
       There was no suggestion by Appellant that he wanted police
       questioning to cease, or that he objected to the questioning.


Id. at 1100. Similarly, in Fento, supra, this Court held that where a trooper
questioned a driver in the hospital as part of routine accident investigation,
there was no custodial interrogation. The Fento Court stated that the only
restraints placed on the defendant were created by his own medical condition
as the result of the accident rather than any coercive action on the part of
police. Fento, 526 A.2d at 787.

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J-A01020-18


was not lengthy, trooper noticed “first hand” odor of alcohol on defendant’s

breath and questioned him in that regard, defendant’s family and medical staff

were present, and at no point prior to issuance of Miranda warning did

defendant ask for questioning to stop).

      I note, however, that the Majority has not examined the “overlying test

to determine whether a person is being subjected to a custodial interrogation

necessitating Miranda warnings[-] 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. Turner, 772 A.2d 970, 973 (Pa.

Super. 2001). It is true the police did not “force” Appellant to remain where

he was, although physically he was unable to leave. The case law indicates

that if a person’s confinement or restriction is medically necessary, and not

the result of police action, the inquiry into the reasonable impression conveyed

to the person interrogated is unnecessary. In my view, however, it is equally

likely that a reasonable person in Appellant’s situation would nevertheless

believe he is in custody, particularly here, where Appellant argues police

suspected he was the shooter and their questions were likely to elicit an

incriminating response. Because this Court is bound by prevailing precedent,

I concur.




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