J-S59008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SEAN HANNON                                :
                                               :
                       Appellant               :   No. 3497 EDA 2018

        Appeal from the Judgment of Sentence Entered October 4, 2018
      In the Court of Common Pleas of Wayne County Criminal Division at
                        No(s): CP-64-CR-0000366-2017


BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY LAZARUS, J.:                          FILED DECEMBER 30, 2019

        Sean Hannon appeals from the judgment of sentence, entered in the

Court of Common Pleas of Wayne County, after being convicted by a jury of

two counts each of endangering the welfare of children (EWOC),1 driving under

the influence (DUI),2 and recklessly endangering another person (REAP),3 and

one count each of the summary offenses of driving while operating privilege

suspended/revoked4 and permitting unauthorized person to drive.5         After

careful review, we affirm.

____________________________________________


1   18 Pa.C.S. § 4304(a)(1).

2 75 Pa.C.S. § 3802(a)(1) (general impairment); 75 Pa.C.S. § 3802(c)
(highest rate).

3   18 Pa.C.S. § 2705.

4   75 Pa.C.S. § 1543(b)(1).

5   75 Pa.C.S. § 1574(a).
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      On November 5, 2017, at approximately 5 p.m., Hannon and his two

children, an eleven-year-old daughter and eight-year-old son, were traveling

in his 1999 Dodge Dakota truck.       At some point, Hannon permitted his

daughter to drive the vehicle.      Ryan Yannone, who was driving behind

Hannon’s truck, noticed that the vehicle was weaving and traveling very

slowly. At an intersection, the truck failed to stop at a posted stop sign. At

another intersection, the truck stopped and sat on the side of the road. Upon

seeing this, Yannone exited his vehicle and approached Hannon’s truck where

he observed Hannon’s daughter in the driver’s seat. When Yannone asked

Hannon why the child had been driving, Hannon yelled at him to “mind [his]

own f*c*ing business,” and told him that his daughter “was 16 years old.”

N.T. Jury Trial, 7/9/18, at 53. Yannone testified that Hannon was “[l]oud,

obnoxious, [and] seemed to [be] under the influence of something.”          Id.

Yannone offered to get help, but the child immediately drove away.

      Yannone continued to follow Hannon’s vehicle as it turned onto Neville

Road in Wayne County, noting that it was “just all over the road.” Id. at 55.

Hannon’s truck ultimately “stopped dead in the road . . . turned right . . . and

ended up under a pine tree . . . totally off the road.”     Id.   At that point,

Yannone watched Hannon’s two children exit the truck and run up the road.

Id. at 63. Yannone approached Hannon’s truck where Hannon had “slid into

the driver’s seat[,] put [the vehicle] in reverse, and started backing up.” Id.

at 56.   At that point, Yannone “hurried up[, reached through the truck’s

window,] put [the vehicle] back in park” and removed the keys from the


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ignition. Id. at 56, 63. As Yannone called the police to have authorities come

to the scene, he noticed Hannon exit his truck and slide something under the

pine tree. Yannone retrieved the object, a bottle of “brandy or whiskey or

something.” Id. at 56.

       Trooper Jamison Warner arrived on the scene in uniform in his patrol

car.6 He first spoke with Yannone who told him the above details; Yannone

surrendered a bottle of Black Velvet whiskey (the item Hannon discarded) and

Hannon’s keys to the trooper. Id. at 69. The trooper obtained information

that revealed Hannon was driving with a DUI-suspended license. N.T. Motion

in Limine and Omnibus Hearing, 7/2/18, at 14.          When Trooper Warner

approached Hannon and spoke with him, Hannon initially denied that his

daughter had been driving the truck and said that he had been driving. N.T.

Jury Trial, 7/9/18, at 70. After the trooper told Hannon that he knew Hannon

had attempted to drive his truck and that Hannon’s license had been

suspended, Hannon changed his story and said that he never drove the

vehicle. Id. Trooper Warner’s police report from the scene indicated that

Hannon’s speech was slow and slurred, he had a strong odor of alcohol on his

breath, had bloodshot eyes, looked disheveled, was uncooperative, and acted

“slow and sluggish.” Id. at 71. The trooper administered several field sobriety

tests which indicated Hannon was impaired. Trooper Warner testified that in

his experience as a law enforcement officer, which included more than one
____________________________________________


6 Yannone testified that the Hamlin Fire Department arrived on the scene
before the police. N.T. Jury Trial, 7/9/18, at 65.

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hundred prior DUI-related arrests, he believed that Hannon was not capable

of safe driving. Id. at 72.

        At that point, Trooper Warner arrested Hannon and transported him to

Wayne Memorial Hospital to have his blood drawn. Blood tests revealed a

BAC of .228%. Hannon was then taken to PSP Honesdale where he was read

his Miranda7 warnings before he gave an oral statement to Trooper John

Decker. N.T. Jury Trial, 7/9/18, at 83. In his statement, Hannon admitted

that he had been drinking beer since 4 p.m. that day, was drunk, could not

remember how much alcohol he had consumed, and that he had been driving.

Id. at 86.     At some point thereafter, Hannon told Trooper Decker that he

remembered his daughter driving the truck “when some guy came up to the

truck and yelled at him.” Id. at 87. Trooper Decker testified he smelled a

strong odor of alcohol on Hannon’s breath when he interacted with him at the

station. Id.

        Hannon filed a pretrial motion in limine to suppress his statements made

at the accident scene, as well as the statements he made at PSP Honesdale.

On July 6, 2018, the trial court denied Hannon’s pretrial motion and also

granted the Commonwealth’s motion in limine to preclude the defense from

eliciting any evidence regarding Yannone’s 2005 crimen falsi summary

conviction. After a jury trial held in July 2018, Hannon was found guilty of the

above-mentioned crimes.          He was sentenced on October 4, 2018, to an

____________________________________________


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

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aggregate term of imprisonment of 84-180 months; the court also imposed

fines, found him ineligible under the Recidivism Risk Reduction Incentive

(RRRI) Act, and gave him credit for time served.8 Hannon filed a timely post-

sentence motion that was denied on October 18, 2018. Counsel filed a notice

of appeal and motion to withdraw simultaneously on November 15, 2018. The

trial court stayed the appeal until the status of counsel’s representation was

clarified.

       On February 7, 2019, this Court entered an order reinstating Hannon’s

appeal rights and ordered the trial court rule on the motion to withdraw. On

March 21, 2019, the trial court entered an order granting counsel’s motion to

withdraw and appointed new appellate counsel. New counsel filed a timely

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Hannon presents the following issues for our review:

       (1)    Whether the trial court abused its discretion by denying
              [Hannon’s] omnibus pre[]trial motion for suppression of
              [Hannon’s] statements when [Hannon] was not advised of
              his Miranda rights and the questioning officer admitted to
              [Hannon] being questioned in custody.

       (2)    Whether the trial court abused its discretion by granting the
              Commonwealth’s [m]otion in [l]imine and prejudicing
              [Hannon] by not allowing him to discuss the witness[’s]
              prior record at trial.

Appellant’s Brief, at 5.

       In considering the denial of a suppression motion, the appellate
       standard of review is well-settled. An appellate court must
       determine whether the record supports the suppression court’s
____________________________________________


8The trial court ordered Hannon’s sentence run consecutive to a sentence he
was currently serving in Lackawanna County.
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       factual findings and the legitimacy of the inferences and legal
       conclusions drawn from these findings. In doing so, the court may
       consider only the prosecution’s evidence and the defendant’s
       evidence to the extent it is not contradictory. If the evidence
       presented at the suppression hearing supports these findings of
       fact, the appellate court may not reverse the [trial] court unless
       its accompanying legal conclusions are in error.

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).

       Hannon claims that the trial court erred in denying his motion to

suppress statements9 he made to Trooper Warner at the accident scene where

he was not first Mirandized. Specifically, Hannon contends that because the

trooper knew that Hannon’s license had been suspended prior to speaking to

Hannon and where the trooper testified he would not have let Hannon leave

the scene, he was effectively in custody.

       In order to determine whether a defendant was subject to a “custodial

detention,” the United States Supreme Court “had devised an objective test

entailing a determination of whether, in viewing the totality of the

circumstances, a reasonable person would have believed he was free to

leave.” By, 812 A.2d at 1255, citing United States v. Mendenhall, 446

U.S. 544, 554 (1980).         “[T]he test for a custodial interrogation does not

depend     upon    the   subjective     intent   of   the   law   enforcement   officer


____________________________________________


9  In his suppression motion, Hannon argued that two separate sets of
statements should not have been admitted at trial. The first set relates to his
admission to Trooper Warner at the scene that he had been driving the subject
vehicle at the time of the accident. The second set refers to statements he
made to Trooper Decker at PSP Honesdale where a “new custodial
interrogation commenced.” Omnibus Pretrial Motion, 5/15/18, at ¶ 53.
Hannon has abandoned any argument in his brief with regard to the
statements made at the police station.
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interrogator.” Commonwealth v. Williams, 650 A.2d 420, 427 (Pa. 1994).

Rather, it focuses on the individual being interrogated and whether he or she

“reasonably believes [his or her] freedom of action is being restricted.” Id.

      “[S]tatements of an accused arising from a ‘custodial interrogation’ are

inadmissible unless the prosecution shows that the procedural safeguards

required by Miranda were afforded the accused.”           Commonwealth v.

Gonzalez, 546 A.2d 26, 29 (Pa. 1988). Interrogation occurs when the police

should know that their words or actions are reasonably likely to elicit an

incriminating response from the suspect. Commonwealth v. Williams, 941

A.2d 14, 30 (Pa. Super. 2008) (en banc).           Specifically, “the Miranda

safeguards come into play whenever a person in custody is subjected to either

express questioning or its functional equivalent.”    Id. However, not every

statement made by an individual during a police encounter amounts to an

interrogation.   Volunteered or spontaneous utterances are admissible even

without Miranda warnings. Additionally individuals have a duty under the

Vehicle Code to stay at the scene of an accident and identify themselves and

their vehicle, as well as exhibit an operator’s license and proof of insurance;

these motorist responsibilities do not require Mirandizing.         Gonzalez,

supra.

      In evaluating whether Miranda warnings are necessary, courts must

consider the totality of the circumstances, which include the basis for the

detention, the duration of the detention, the location of the detention, whether

restraints were used, whether law enforcement showed, threatened or used


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force, and the methods of investigation used to confirm or dispel suspicions.

Williams, 941 A.2d at 31. The fact that the defendant was the focus of an

investigation is relevant in determining whether he or she was in custody, but

does not per se require Miranda warnings. Id.

      Here, Trooper Warner testified that when he first approached Hannon at

the accident scene, he asked him what had happened, told him he knew his

license had been DUI-suspended, informed him that a witness had seen

Hannon’s daughter driving the vehicle before it ended up under the pine tree,

and also told him that the witness told the trooper that he had observed

Hannon try to get into the driver’s seat in an attempt to move the vehicle after

the accident. N.T. Motion In Limine and Omnibus Hearing, 7/2/18, at 10, 14.

Trooper Warner testified that Hannon appeared unsteady on his feet during

their discussion, was sweating a little bit, and had slurred speech and a strong

odor of alcohol on his breath.    Id. at 11.   Hannon proceeded to fail field

sobriety tests administered by the trooper and was then taken into custody

and transported to Wayne Memorial Hospital to have his blood drawn. Id.

      While Trooper Warner’s physical actions were non-confrontational in

nature (i.e., trooper did not restrict Hannon’s freedom of movement, did not

use or threaten to use any force, did not remove his weapon from his holster,

did not place Hannon in handcuffs or otherwise restrain him, and did not block

Hannon’s path of exit), his verbal communication subjected Hannon to a

custodial interrogation. Specifically, when Trooper Warner told Hannon that

the witness informed him that he saw Hannon driving the car and that he


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knew Hannon had a DUI-suspended license, Hannon was subjected to the

functional equivalent of a custodial interrogation. Specifically, a reasonable

person in Hannon’s position would not have believed that he was free to leave

the scene. See Commonwealth v. Snyder, 60 A.3d 165 (Pa. Super. 2013)

(where officer’s words and conduct were likely to elicit incriminating response

after officer explained to defendant warrant for his arrest had been issued and

that witnesses had made statements against him to police, defendant was

subjected to interrogation requiring issuance of          Miranda warnings);

Commonwealth v. DeJesus, 787 A.2d 394 (Pa. 2001)10 (Miranda warnings

required before detective explained to defendant that he had been implicated

in shootings and that witnesses had made statements about his involvement

in shootings; detective should have known that comments and conduct were

reasonably likely to evoke effort on part of defendant to defend himself and

give his own version of events).

       Here, Trooper Warner’s statements were more than general comments

intended to elicit identifying information regarding whether Hannon owned the

vehicle or had proof of insurance or a license; moreover, they were not an

inquiry to ascertain whether Hannon was injured or to obtain general

information about the incident.            Cf. Commonwealth v. Gonzalez, 546

A.2d 26 (Pa. 1988) (where officers ask defendant at accident scene if she was

hurt and what had happened, defendant not in custody so Miranda warnings

____________________________________________


10This case was abrogated on other grounds.            See Commonwealth v.
Cousar, 928 A.2d 1025 (Pa. 20017).
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not required); Commonwealth v. Williams, 941 A.2d 14 (Pa. Super. 2008)

(where purpose of officer’s questions was to obtain general information and

where defendant admitted to officer at scene of accident that she was driver

of vehicle before administered Miranda warning, statement did not need to

be suppressed). Rather, Trooper Warner’s statements made Hannon aware

that he was the particular subject of a criminal investigation and that he was

not free to leave the accident scene because law enforcement knew he had a

suspended license.

      Under such circumstances, where his statements were likely to elicit an

incriminating response, Trooper Warner was required to administer Hannon

his Miranda rights. Williams, supra. Accordingly, the prosecution was not

permitted   to   use   any   statements     stemming      from   Trooper    Warner’s

interrogation of Hannon where he was not first Mirandized.                 Gonzalez,

supra. However, we conclude that the admission of Hannon’s initial non-

Mirandized statement was harmless error where Hannon voluntarily

admitted he had been driving his car when Trooper Warner first came upon

the accident scene and where witness Yannone testified that he saw both

Hannon’s minor daughter and Hannon in actual physical control of the vehicle

during the incident. See Commonwealth v. Fay, 344 A.2d 473 (Pa. 1975)

(failure to suppress statements not reversible error where Commonwealth can

establish   beyond     reasonable   doubt   error   was    harmless);      see   also




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Commonwealth v. Henry, 599 A.2d 1321 (Pa. Super. 1991) (erroneous

admission of confession can be constitutionally harmless).11

       In his next issue, Hannon contends that the trial court improperly

granted the Commonwealth’s motion to preclude admission of witness

Yannone’s 2005 summary conviction for violating 34 Pa.C.S. § 906, making a

false or fraudulent statement on a report or application to a gaming

commission representative. Hannon claims that the exclusion of this evidence

was in error where “Mr. Yannone is the only witness to the alleged crimes”

and where the probative value of admitting the evidence (as it relates to

Yannone’s credibility) outweighs its prejudicial effect. Appellant’s Brief, at 14.

       An appellate court’s standard of review is well settled:

       [T]he admissibility of evidence is within the sound discretion of
       the trial court and we will not reverse absent an abuse of
       discretion. . . . An abuse of discretion may not be found merely
       because an appellate court might have reached a different
       conclusion, but requires a result of manifest unreasonableness, or
       partiality, prejudice, bias, or ill-will, or such lack of support so as
       to be clearly erroneous.

Commonwealth v. Leap, 2019 PA Super 323, *7 (Pa. Super. filed October

25, 2019) (citations omitted).

       Pennsylvania Rule of Evidence 609 states, in pertinent part:



____________________________________________


11 We also note that Trooper Warner’s failure to issue Miranda warnings at
the scene did not invalidate the incriminating oral statements Hannon made
to Trooper Decker at PSP Honesdale after his subsequent receipt of Miranda
warnings. See Commonwealth v Charleston, 16 A.3d 505 (Pa. Super.
2011).

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       Rule 609.       Impeachment             by   Evidence   of   a   Criminal
       Conviction

       (a) In General. For the purpose of attacking the credibility
       of any witness, evidence that the witness has been
       convicted of a crime, whether by verdict or by plea of guilty or
       nolo contendere, must be admitted if it involved dishonesty
       or false statement.

       (b) Limit Evidence on Using the Evidence After 10 Years. This
       subdivision (b) applies if more than 10 years have passed
       since the witness’s conviction or release from confinement for
       it, whichever is later. Evidence of the conviction is admissible
       only if:

          (1) its probative value substantially outweighs its
          prejudicial effect; and

          (2) the proponent gives an adverse party reasonable
          written notice of the intent to use it so that the party has a
          fair opportunity to contest its use.

Pa.R.E. 609(a), (b) (emphasis added). Here, Yannone’s conviction involved

giving a false statement to gaming authorities, which is clearly a crime falling

within the ambit of Rule 609. The conviction, however, was handed down

more than 10 prior to Hannon’s trial. Thus, pursuant to Rule 609(b), evidence

of Yannone’s conviction is admissible only if “its probative value substantially

outweighs its prejudicial effect[.]” Pa.R.A.P. 609(b)(1).12

       Instantly, the trial court found the evidence inadmissible where “there

was no probative value to outweigh the prejudicial effect [it] would have

caused[, t]he conviction [wa]s 14 years old[,] and a violation of the Game
____________________________________________


12There is no dispute that Hannon gave the Commonwealth notice of its intent
to use Yannone’s prior conviction at trial. See Commonwealth’s Motion in
Limine, 5/9/18, at ¶ 4 (“On May 7, 2018, the Commonwealth received written
notice from the [d]efense . . . that it intends to seek introduction at trial of
Mr. Yannone’s prior conviction for a summary violation of the Game Laws in
2005[.]”).
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Laws has no relation to the subject matter of [Hannon’s] case.” Trial Court

Opinion, 5/9/19, at 5.

      The purpose of Rule 609 is to use crimes involving dishonesty or false

statement to attack the credibility of a witness.      See Commonwealth v.

Buterbaugh, 91 A.3d 1247 (Pa. Super. 2014) (en banc); see also

Commonwealth v. Howard, 823 A.2d 911, 913 (Pa. Super. 2003) (Rule 609

“contemplate[s] the impeachment of a witness through the use of his or her

prior convictions.”). Thus, the fact that Yannone’s gaming-related crime had

no subject matter relationship to the crime at hand is irrelevant. However,

even though Yannone’s conviction did fit within the ambit of Rule 609 as one

of dishonesty, we do not find that the trial court abused its discretion in finding

it inadmissible under Rule 609(b).

      Here, Yannone’s testimony supported the Commonwealth’s prosecution

of Hannon for his crimes, specifically his EWOC, REAP and DUI convictions.

Accordingly, it was relevant at trial. Arguably, the evidence of Yannone’s prior

summary conviction under section 906 was probative of his credibility.

However, any probative value was substantially outweighed by the potential

for unfair prejudice as Yannone was the only witness that could testify to

support the Commonwealth’s case with regard to having personally observed

Hannon’s eleven-year-old daughter and Hannon drive his truck.            Thus, we

conclude that the trial court’s decision to exclude the Rule 609 evidence was

not an abuse of discretion. Leap, supra.

      Judgment of sentence affirmed.


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     Judge Nichols concurs in the result of this Memorandum.

     Judge McLaughlin concurs in the result of this Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/19




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