J-A26002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MARSHA C. GREEN                          :
                                          :
                    Appellant             :    No. 994 WDA 2017

           Appeal from the Judgment of Sentence April 10, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0005745-2016

BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

CONCURRING AND DISSENTING MEMORANDUM BY MURRAY, J.:

                                               FILED FEBRUARY 19, 2019

       I agree with the learned Majority’s resolution of Appellant’s last three

claims and join them in full, including the decision to vacate Appellant’s

convictions of DUI at count 2 and driving an unregistered vehicle. I write

separately, however, because I disagree with the Majority’s decision to vacate

Appellant’s judgment of sentence as to her remaining convictions and to grant

a new trial. Instead, I would affirm Appellant’s convictions other than DUI at

count 2 and driving an unregistered vehicle.

       The Majority aptly sets forth the factual and procedural history of this

case, and thus, I need not repeat it.      I note only that Appellant filed a

suppression motion in which she argued that Trooper Schonbachler elicited

from   her   incriminating   statements   regarding   her   alcoholic   beverage

consumption, after he placed her into custody and interrogated her without
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informing her of her Miranda rights. The trial court denied the motion on the

basis that Appellant was not subject to a custodial detention and interrogation

when Trooper Schonbachler questioned her in the back of his police vehicle.

See Trial Court Opinion, 1/22/18, at 3-5.

      The Majority reverses the order denying Appellant’s suppression motion,

concluding that Appellant was subject to a custodial detention and

interrogation when Trooper Schonbachler placed her in the back of his police

vehicle and questioned her about whether she had consumed alcoholic

beverages earlier that night. See Majority Opinion at 8-19. While I agree

with the Majority’s conclusion that Appellant was subject to a custodial

detention and interrogation, I disagree that the trial court’s decision not to

suppress the statements Appellant made relating to her alcoholic beverage

consumption necessitated vacating her judgment of sentence and granting a

new trial.   Because I find the trial court’s decision to deny Appellant’s

suppression motion to be harmless error, I would have affirmed Appellant’s

judgment of sentence on all convictions other than DUI at count 2 and driving

an unregistered vehicle. See Commonwealth v. Baez, 720 A.2d 711 (Pa.

1998) (A suppression court’s failure to suppress testimony does not require

reversal if the error was harmless).

      Under the harmless error doctrine, “an error can be harmless only if the

appellate court is convinced beyond a reasonable doubt that the error is

harmless.”    Commonwealth v. Fulton, 179 A.3d 475, 493 (Pa. 2018)


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(quotations and citations omitted). In defining the harmless error standard,

our Supreme Court has stated that “an error cannot be held harmless unless

the appellate court determines that the error could not have contributed to

the verdict. Whenever there is a ‘reasonable possibility’ that an error ‘might

have contributed to the conviction,’ the error is not harmless.” Id. (quoting

Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978)).

      As the Supreme Court has explained:

      Harmless error exists if the state proves either: (1) the error did
      not prejudice the defendant or the prejudice was de minimis; or
      (2) the erroneously admitted evidence was merely cumulative of
      other untainted evidence which was substantially similar to the
      erroneously admitted evidence; or (3) the properly admitted and
      uncontradicted evidence of guilt was so overwhelming and the
      prejudicial effect of the error was so insignificant by comparison
      that the error could not have contributed to the verdict.

Id. (emphasis in original, quotations and citations omitted).

      In this case, Trooper Schonbachler testified that upon arriving at the

accident scene, he observed Appellant’s abandoned vehicle against a concrete

barrier, with “heavy damage to the front of the vehicle.” N.T., 12/1/16, at 5.

Upon learning that Appellant and her passenger had walked away from the

scene, Trooper Schonbachler proceeded locate Appellant on a nearby

roadway.   Id. at 6.   Trooper Schonbachler testified that once he located

Appellant, he placed her in the back of his vehicle and “asked her what

happened.” Id. at 7-8. Appellant told Trooper Schonbachler “she was driving

her friend home.   She thinks a tire blew.    She hit the barrier, and that’s

basically all she could remember.” Id. at 8. Trooper Schonbachler testified

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that it was precisely this moment that he noticed Appellant had “an odor of

alcohol, slurred speech and bloodshot eyes[.]”     Id. At that point, Trooper

Schonbachler asked Appellant when “the last time she had a drink was and

how many drinks she had.” Id.

      As the Majority correctly states, “there are two components of a

custodial interrogation that must be satisfied to trigger the requirement that

police issue Miranda warnings: first, the defendant must be in custody, that

is, subject to the functional equivalent of an arrest and, second, the at-issue

statement must be prompted by a police inquiry that was likely to evoke an

incriminating response.” Majority Op. at 10. The Majority concludes correctly

that when Trooper Schonbachler asked Appellant about the last time she had

a drink, he did so while Appellant was in custody and the question was one

that was likely to elicit an incriminating response. See id. at 18. Thus, the

Majority properly determined that the trial court should have suppressed

Appellant’s answer to that question.

      Nevertheless, the Majority’s decision to vacate Appellant’s judgment of

sentence and grant a new trial disregards the ample evidence that preceded

Trooper Schonbachler’s improper question. My reading of the record reveals

more than sufficient evidence up to that point to sustain Appellant’s conviction

of DUI under Section 3802(a)(1) of the Pennsylvania Motor Vehicle Code.

Section 3802(a)(1) states that “[a]n individual may not drive, operate or be

in actual physical control of the movement of a vehicle after imbibing a


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sufficient amount of alcohol such that the individual is rendered incapable of

safely driving, operating or being in actual physical control of the movement

of the vehicle.”     75 Pa.C.S.A. § 3802.        The record reflects that Appellant

crashed her vehicle, abandoned the vehicle, and walked away from the scene

of the accident. N.T., 12/1/16, at 5-6. When Trooper Schonbachler placed

Appellant into his police vehicle and asked her what happened, he immediately

noticed that she had an odor of alcohol, slurred speech, and bloodshot eyes.

Id. at 8. As the Majority concedes in its analysis of Appellant’s sufficiency

claim relating to Section 3802(a)(1), “[t]hese are the telltale signs of

intoxication.”     Majority Op. at 8.            Appellant presented no evidence

contradicting Trooper Schonbachler’s observations of her intoxication. Thus,

there was ample evidence to sustain Appellant’s conviction under Section

3802(a)(1), even without Appellant’s statements indicating that she had

consumed alcoholic beverages earlier that night.1

       Importantly, when Trooper Schonbachler asked Appellant what had

happened, he was not asking a question designed to elicit an incriminating

response, but rather a question that any police officer – and likely anyone else

– would have asked upon arriving at the scene of an automobile accident. In


____________________________________________


1   Moreover, Appellant’s statements were irrelevant to her convictions of
driving while operating privilege is suspended or revoked, 75 Pa.C.S.A. §
1543(b)(1); required financial responsibility, 75 Pa.C.S.A. § 1786(f); driving
on roadway laned for traffic, 75 Pa.C.S.A. § 3309(1), careless driving, 75
Pa.C.S.A. § 3714(a); and immediate notice of accident, 75 Pa.C.S. §
3746(a)(2). Thus, an analysis relating to these convictions is unnecessary.

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my view, while Appellant may have been in custody in the back of Trooper

Schonbachler’s vehicle, she was not subject to a custodial interrogation until

Trooper Schonbachler asked her about her drinking. Therefore, the trial court

did not need to suppress the evidence obtained prior to that point.

      In sum, I would find the trial court’s denial of Appellant’s suppression

motion to be harmless error, as there was abundant properly admitted and

uncontradicted evidence of Appellant’s guilt. Because I find the trial court’s

failure to suppress the statements Appellant made after Trooper Schonbachler

asked her about her drinking to be harmless, I would affirm Appellant’s

convictions other than DUI at count 2 and driving an unregistered vehicle.




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