J-A34029-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :      IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellee         :
                                        :
           v.                           :
                                        :
ARTHUR KENT HAMRICK,                    :
                                        :
                       Appellant        :      No. 2087 MDA 2013


    Appeal from the Judgment of Sentence Entered November 14, 2013,
              In the Court of Common Pleas of Adams County,
             Criminal Division, at No. CP-01-CR-0000949-2012.


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.:                           FILED APRIL 17, 2015

     Appellant, Arthur Kent Hamrick, appeals from the judgment of

sentence entered November 14, 2013, following his conviction at a bench

trial of driving under the influence of alcohol (“DUI”), general impairment

and DUI, highest rate of alcohol. We affirm.

     The trial court summarized the facts of the case as follows:

            Appellant’s August 19, 2013 non-jury trial, which
     incorporated testimony from his March 25, 2013 suppression
     hearing, revealed the following facts. On May 31, 2012 at
     approximately 9:20 p.m., Officer Juanita Larmer of the
     Hamiltonban Township Police Department received a telephone
     call from Jesse Sanders on her work cell phone. Officer Larmer’s
     shift had ended at 9:00 p.m., but she remained in her patrol car
     and in full uniform. Mr. Sanders, a friend of Officer Larmer and
     a firefighter and EMS technician with the Fairfield Fire Company,
     had been picking up pizza at Ventura’s, a restaurant and bar in
     Fairfield, Adams County, Pennsylvania, with his friend Bradley
     Hartdagen.      Mr. Sanders called Officer Larmer after Mr.
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     Hartdagen saw a gentleman leave Ventura’s looking confused
     and observed him attempting to enter a couple of different cars
     before he was able to locate his green Ford station wagon and
     drive away.

            Mr. Sanders and Mr. Hartdagen began following the
     gentleman and observed his vehicle weaving and crossing the
     center line on several occasions. Mr. Sanders notified Officer
     Larmer of the gentleman’s behavior and provided her with a
     description of the vehicle and its license plate number. After
     receiving this information, Officer Larmer placed a phone call to
     Adams County Control, alerting them to the presence of a
     potentially intoxicated driver in Fairfield Borough and providing
     the identifying information she had received. County Control
     then notified Officer Dustin Miller of the Carroll Valley Borough
     Police that there was a possible intoxicated driver and gave him
     the license plate number of the vehicle and the address where it
     was registered.

            Soon after getting off the phone with County Control,
     Officer Larmer made a phone call to Officer Miller, further
     describing the situation as related to her by Mr. Sanders. Officer
     Larmer and Officer Miller, in separate cars, proceeded to
     Appellant’s residence at 351 Fairfield Station Road and located
     the green Ford station wagon with the license plate number
     which Mr. Sanders had described to Officer Larmer. Once they
     arrived at the residence, Officer Miller knocked on Appellant’s
     back door. Appellant answered the door after a minute or two
     and remained “half in and half out of the threshold.” Upon the
     officers’ encouragement, Appellant stepped onto his porch to
     speak with Officer Miller. The officers noted that Appellant’s
     breath smelled strongly of alcohol and he exhibited signs of
     intoxication in that he was “not steady on his feet,” his speech
     was slurred, his eyes were bloodshot, his face was flushed red,
     and his movements were slow and lethargic.

           During their conversation outside of Appellant’s house,
     Appellant admitted that he had been driving approximately 10-
     15 minutes before the officers arrived and that he was returning
     home from Ventura’s Restaurant. Appellant stated that he drank
     one beer there. Officer Miller then asked Appellant whether he
     would be willing to come to Officer Miller’s car to speak further


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        with him. At that point, Appellant became irate and attempted
        to go back into his house—Officer Miller prevented Appellant
        from retreating by grabbing his wrists. The officers then walked
        Appellant to Officer Miller’s car, performed a pat down search of
        Appellant for weapons, and removed a knife from Appellant’s
        pocket. Eventually, the officers were able to have Appellant
        perform field sobriety tests. The tests revealed indications that
        Appellant was intoxicated. Appellant then stated that he had
        consumed two beers at Ventura’s. Officer Miller placed Appellant
        under arrest for DUI and transported him to Gettysburg Hospital
        for a blood test. Appellant’s blood sample was sent to NMS labs
        where Appellant’s blood alcohol content was determined to be
        .184 percent.

Trial Court Opinion, 1/6/14, at 1–3.

        Appellant filed a suppression motion on December 17, 2012. The trial

court held a hearing on March 25, 2013, and denied the motion on April 17,

2013.     Following a bench trial on June 3, 2013, the trial court found

Appellant guilty of DUI, general impairment and DUI, highest rate of alcohol.

The trial court determined that Appellant’s convictions merged for purposes

of sentencing and held that his convictions were second offenses for

sentencing purposes. The trial court sentenced Appellant on November 14,

2013, commensurate with the “Commonwealth’s recommendation and the

defense’s agreement with that recommendation,” Trial Court Opinion,

1/6/14, at 3, to thirty-six months in the County Intermediate Punishment

Program (“IPP”) with forty-five days in Phase I (re-entry), forty-five days in

Phase II (house arrest), and the remainder in Phases III through V

(restorative sanctions). Id.




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      Appellant filed a notice of appeal on November 21, 2013.        Both the

trial court and Appellant complied with Pa.R.A.P. 1925.

      Appellant raises the following issue for our review:

      A. Whether the Commonwealth presented sufficient evidence to
      substantiate a finding of guilt beyond a reasonable doubt on the
      charges, Did the police have sufficient justification to order the
      defendant out of his house, and forcibly escort him to their
      patrol cars, Did the police subject the defendant to custodial
      interrogations without the benefit of Miranda warnings.

Appellant’s Brief at 6 (verbatim) (full capitalization omitted).

      While Appellant presents this claim as a single issue in his Statement

of Questions Involved, he breaks it down in the argument section of his brief

into headings labeled A, B, and C.       Appellant’s Brief at 8.   Heading “A”

purports to assail the sufficiency of the evidence; however, Appellant fails to

assert any argument in his brief, thus, this issue has been abandoned.

Therefore, any claim regarding the sufficiency of the evidence is waived.

Bolick v. Commonwealth, 69 A.3d 1267, 1269 (Pa. Super. 2013) (holding

that failure to present an argument in support of issue results in waiver)

(citing Pa.R.A.P. 2119(a) and Commonwealth v. Spotz, 18 A.3d 244, 282

(Pa. 2011)). See also Commonwealth v. Samuel, 102 A.3d 1001, 1003–

1004 (Pa. Super. 2014) (“In order to develop a claim challenging the

sufficiency of the evidence properly, an appellant must specifically discuss

the elements of the crime and identify those which he alleges the

Commonwealth failed to prove” and failure to do so results in waiver.).


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       Heading “C” purports to raise an issue regarding Miranda1 warnings.

Appellant fails to include a section identified as heading “C” in his brief. In

his argument under heading “B,” Appellant includes three conclusory

sentences referencing Miranda, one of which is repeated twice. Appellant’s

Brief at 9 and 12. In Commonwealth v. Harris, 979 A.2d 387 (Pa. Super.

2009), we stated as follows:

       When an allegation is unsupported [by] any citation to the
       record, such that this Court is prevented from assessing this
       issue and determining whether error exists, the allegation is
       waived for purposes of appeal. . . . Commonwealth v.
       Einhorn, 911 A.2d 960, 970 (Pa. Super. 2006) (“An appellate
       brief must provide citations to the record and to any relevant
       supporting authority. This Court will not become the counsel for
       an appellant, ‘and will not, therefore, consider issues ... which
       are not fully developed in the brief.’”).             See also
       Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super.
       2007); Commonwealth v. Judd, 897 A.2d 1224, 1233 (Pa.
       Super. 2006).

Id. at 393 (some internal citations omitted). Thus, this issue is also waived.

The only issue preserved for review is the claim identified in Appellant’s brief

as issue “B.”2



1
    Miranda v. Arizona, 384 U.S. 436 (1966).
2
    It is important to keep in mind that we are not now evaluating the
sufficiency of the evidence, as we have held that issue waived. Thus, we are
not evaluating whether the Commonwealth had to prove that Appellant was
in actual physical control of his vehicle during the time when he was
rendered incapable of safely doing so due to the consumption of alcohol.
Accord Commonwealth v. Segida, 985 A.2d 871, 879 n.6 (Pa. 2009)
(Commonwealth need not prove accused did not drink alcohol after accident
because DUI statute does not contain this element).

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     Appellant’s three-page argument under heading “B” consists of two

pages of references to case law setting forth standards regarding probable

cause and the existence of exigent circumstances under which police may

arrest without a warrant when a defendant is in his home.        The extent of

Appellant’s argument is as follows:

            In the present case, Officer Miller received a dispatch of a
     possible intoxicated driver and a registration plate number.
     There was no information as to the source of the information or
     the alleged observations that were made.

            When reviewing the audio/video recording from the patrol
     unit, and the audio recording of the County Dispatch Center, it
     was clear that no other information was conveyed to Officer
     Miller at the time of the arrest. It should be noted that [O]fficer
     Lamer [sic] testified that she made a cellphone call to Officer
     Miller informing him of a possible DUI and where it was heading,
     but that phone call is not on the audio/visual recording of Miller’s
     car which occurs the time of the initial call to Officer Miller until
     the time of arrest. Also, there is no mention of the alleged
     phone call in any police report or prior testimony.

           Therefore, when Officer Miller ordered [Appellant] to come
     out of the house he simply had the equivalent of an anonymous
     uncooberated [sic] tip. He then removed [Appellant] from his
     house and conducted a pat-down search. During the incident,
     [Appellant] started bleeding. He was clearly under arrest (i.e. “if
     you don’t take the tests we’re going to the hospital”).

            Once he was removed from the house, and subjected to
     physical restraint by two uniformed officers, [Appellant] was
     clearly in custody.

Appellant’s Brief at 10–11. Appellant does not cite case law supporting his

position, other than heretofore described references to standards, and he




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fails to include any citations to the record in this case. He baldly asserts that

all evidence “must be suppressed.”

      We consider this argument mindful of the following standard of review:

      In addressing a challenge to a trial court’s denial of a
      suppression motion we are limited to determining whether the
      factual findings are supported by the record and whether the
      legal conclusions drawn from those facts are correct. Since the
      Commonwealth prevailed in 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. Where the record
      supports the factual findings of the trial court, we are bound by
      those facts and may reverse only if the legal conclusions drawn
      therefrom are in error.

Commonwealth v. Brown, 64 A.3d 1101, 1104–1105 (Pa. Super. 2013)

(quoting Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa. Super. 2010)).

      This Court recently explained the three types of interactions between

citizens and police, as follows:

             Interactions with police are classified as mere encounters,
      investigative detentions, or formal arrests. Commonwealth v.
      Ellis, 379 Pa.Super. 337, 549 A.2d 1323, 1331 (1988).

            Police may engage in a mere encounter absent any
            suspicion of criminal activity, and the citizen is not
            required to stop or to respond. If the police action
            becomes too intrusive, a mere encounter may
            escalate into an investigatory stop or a seizure. If
            the interaction rises to the level of an investigative
            detention, the police must possess reasonable
            suspicion that criminal activity is afoot, and the
            citizen is subjected to a stop and a period of
            detention. Probable cause must support a custodial
            interrogation or an arrest.




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      Commonwealth v. Boswell, 554 Pa. 275, 721 A.2d 336, 341
      (1998) (citations omitted).

Commonwealth v. Thompson, 93 A.3d 478, 485 (Pa. Super. 2014).

      Whether the instant matter began as a mere encounter or an

investigative detention, the record is clear that police had reasonable

suspicion throughout the encounter. While it is true that Appellant was in

his home when the police officer came to his back door, the United States

Supreme Court has stated, when discussing police approach to a front door,

that “a police officer not armed with a warrant may approach a home and

knock, precisely because that is ‘no more than any private citizen might do.’

Kentucky v. King, 563 U.S. ___, ___, 131 S.Ct. 1849, 1862, 179 L.Ed.2d

865 (2011).”   Florida v. Jardines, ___ U.S. ___, 133 S. Ct. 1409, 1416

(2013).   Herein, when police prevented Appellant from retreating into his

own house, the encounter clearly must be characterized as an investigative

detention. N.T. (Suppression), 3/25/13, at 25; Commonwealth v. Smith,

904 A.2d 30, 35 (Pa. Super. 2006) (“An investigative detention occurs when

a police officer temporarily detains an individual by means of physical force

or a show of authority for investigative purposes.”).

      “An investigatory detention triggers the constitutional protection of the

Fourth Amendment to the United States Constitution, Article I, Section 8 of

the Pennsylvania Constitution, and the prerequisites for such a detention as

set forth in Terry [v. Ohio, 392 U.S. 1, 23–26 (1968)].” Cauley, 10 A.3d


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at 325–326 (footnote and citations omitted).       The Cauley Court further

stated:

             An investigative detention is lawful if supported by
      reasonable suspicion. [Commonwealth v.] Sands, 887 A.2d
      [261] at 269 [(Pa. Super. 2005)] (quoting [Commonwealth v.]
      Hill, 874 A.2d [1214,] 1217 [(Pa. Super. 2005]). “To meet the
      standard of reasonable suspicion, the officer must point to
      specific and articulable facts which, together with the rational
      inferences therefrom, reasonably warrant the intrusion.” Smith,
      904 A.2d at 35 (quotation omitted). In addition, “we must look
      to the totality of the circumstances to determine whether the
      officer had reasonable suspicion that criminal activity was afoot.”
      Id. at 35–36 (quoting Barber, 889 A.2d at 593).                 An
      investigative detention may last “as is necessary to confirm or
      dispel such suspicion.” Commonwealth v. LaMonte, 859 A.2d
      495, 500 (Pa. Super. 2004) (quoting Commonwealth v.
      Strickler, 563 Pa. 47, 58, 757 A.2d 884, 889 (2000)). Because
      the level of intrusion may change during the course of the
      encounter, the record must be carefully scrutinized for any
      evidence of such changes. Commonwealth v. Blair, 860 A.2d
      567, 572 (Pa. Super. 2004) (citing Strickler, 563 Pa. at 58–60,
      72–73, 757 A.2d at 889–91, 897–98).

Cauley, 10 A.3d at 326.

      The trial court, in its April 17, 2013 opinion denying Appellant’s motion

to suppress, concluded that all three types of interactions were present in

this case.    The court opined that Officer Miller’s act of knocking on

Appellant’s door was “nothing more than a mere encounter.”         Trial Court

Opinion (Suppression), 4/17/13, at 5 (citing Commonwealth v. Gonzalez,

979 A.2d 879, 884–885 (Pa. Super. 2009)). Alternatively, the court stated

that even if the initial interaction is considered an investigatory detention,

information provided by informants—here, Jesse Sanders—may provide


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police with reasonable suspicion to conduct an investigatory stop.                The

suppression court stated:

               Instantly, Officer Larmer received a tip from a named
         informant that a possible DUI was in progress. The informant
         [Jesse Sanders] was well known to Officer Larmer.            The
         information presented was specific and reliable as the informant
         made personal observations of [Appellant’s] condition then
         followed [Appellant] as he drove. The information provided by
         Mr. Sanders gave Officers reasonable suspicion that [Appellant]
         was driving under the influence.

               This suspicion was heightened and corroborated during the
         encounter on [Appellant’s] porch when Officer Miller learned
         from [Appellant] that he had recently driven and when he
         noticed signs of alcohol intoxication including a strong smell of
         alcohol coming from [Appellant’s] breath, bloodshot eyes, slow
         lethargic movements, unsteadiness and a flushed face.

               After Officers had all of that information [Appellant] asked
         the Officers to leave his property and attempted to go back into
         his house. At that time he was detained by the Officers with
         minimal compulsion. Clearly, by then the Officers possessed
         reasonable suspicion that [Appellant] was driving under the
         influence.    Without doubt there was then an investigatory
         detention. Based on the totality of the circumstances Officers
         possessed reasonable suspicion that [Appellant] was driving
         under the influence of alcohol sufficient to subject him to field
         sobriety testing.

Trial Court Opinion (Suppression), 4/17/13, at 5–6. We agree with the trial

court’s alternative conclusion.

         As the trial court noted, “Even if this initial interaction is considered an

investigatory detention, information provided by informants may provide

Police     with   reasonable   suspicion   to     conduct   an   investigatory   stop.

Commonwealth v. Griffin, 954 A.2d 648, 651 (Pa. Super. 2008).”                   Trial


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Court Opinion (Suppression), 4/17/13, at 11. Although the instant scenario

was not a traffic stop, because we have concluded that the subsequent

encounter between police and Appellant was an investigative detention, the

requirement of reasonable suspicion herein is akin to that required to

conduct an investigatory stop, and we draw guidance from case law

expounding on that concept. This Court recently emphasized:

     To have reasonable suspicion, police officers need not personally
     observe the illegal or suspicious conduct, but may rely upon the
     information of third parties, including “tips” from citizens.
     Naturally, if a tip has a relatively low degree of reliability, more
     information will be required to establish the requisite quantum of
     suspicion than would be required if the tip were more reliable.
     This Court has examined the requirements surrounding
     reasonable suspicion for automobile stops emanating from
     information provided by a tipster and has explained:

                 Reasonable suspicion, like probable cause, is
           dependent upon both the content of information
           possessed by police and its degree of reliability.
           Both factors—quantity and quality—are considered in
           the “totality of the circumstances—the whole
           picture,” that must be taken into account when
           evaluating whether there is reasonable suspicion.
           Thus, if a tip has a relatively low degree of reliability,
           more information will be required to establish the
           requisite quantum of suspicion than would be
           required if the tip were reliable.

                 When the underlying source of the officer’s
           information is an anonymous call, the tip should be
           treated with particular suspicion. However, a tip
           from an informer known to the police may carry
           enough indicia or reliability for the police to conduct
           an investigatory stop, even though the same tip from
           an anonymous informant would likely not have done
           so.


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             Indeed, identified citizens who report their observations of
      criminal activity to police are assumed to be trustworthy, in the
      absence of special circumstances, since a known informant
      places himself at risk of prosecution for filing a false claim if the
      tip is untrue, whereas an unknown informant faces no such risk.
      When an identified third party provides information to the police,
      we must examine the specificity and reliability of the information
      provided. The information supplied by the informant must be
      specific enough to support reasonable suspicion that criminal
      activity is occurring. To determine whether the information
      provided is sufficient, we assess the information under the
      totality of the circumstances. The informer’s reliability, veracity,
      and basis of knowledge are all relevant factors in this analysis.

Commonwealth v. Washington, 63 A.3d 797, 803 (Pa. Super. 2013)

(quoting Commonwealth v. Barber, 889 A.2d 587, 593–594 (Pa. Super.

2005) (quotations, quotation marks, and citations omitted)).

      Upon review and in consideration of the circumstances of this case, we

conclude the trial court did not err in determining that the officers had

reasonable suspicion to detain Appellant and submit him to field-sobriety

tests. Officer Larmer, a thirteen-year veteran in the Hamiltonban Township

Police Department, received the equivalent of a reliable tip on her work

cellular telephone indicating that Appellant appeared “confused and possibly

intoxicated” and had “crossed over the center line several times.”            N.T.

(Suppression), 3/25/13, at 5.      The detailed information provided by Mr.

Sanders, who was known to Officer Larmer as reliable, provided Officer

Larmer with reasonable suspicion that Appellant was driving under the

influence.   Id. at 5–6.   Officer Larmer testified that she contacted Adams


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County Control and alerted them to the presence of a potentially intoxicated

driver in Fairfield Borough and further, provided the identifying information

she had received from Mr. Sanders. Id. at 6. County Control then notified

Officer Dustin Miller of the Carroll Valley Borough Police Department that

there was a possible intoxicated driver and gave him the license plate

number of the vehicle and the address where it was registered. Id. at 19.

Officer Larmer and Officer Miller spoke on the telephone at that point. Id. at

7, 20.    Officer Larmer and Officer Miller each proceeded to Appellant’s

residence, arriving within “a few minutes,” id. at 8, and located the green

Ford station wagon with the license plate number that Mr. Sanders had

described to Officer Larmer. Id. at 21.

      Officer Miller knocked on Appellant’s back door.   N.T. (Suppression),

3/25/13, at 21.    When Appellant opened the door, Officer Miller noticed a

“strong” odor of alcohol emanating from Appellant and asked him to step

onto the porch.     Id. at 22.      Appellant exhibited signs of intoxication

including being “unsteady,” with “slurred” speech, his eyes “were bloodshot

red,” his face “was flushed red,” and his movements were “slow” and

“lethargic.”   Id. at 22–23.   During the conversation outside of Appellant’s

house, Appellant admitted that he had been driving approximately ten to

fifteen minutes before the officers arrived and that he was returning home




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from Ventura’s Restaurant.      Id. at 24.      Thus, prior to the sobriety tests,

Officer Miller noticed indicia of intoxication.

      Officer Miller’s police vehicle was equipped with an in-car camera

system, it was recording the events described, and copies of the recording

were admitted without objection.        N.T. (Suppression), 3/25/13, at 27–28.

Appellant exhibited indicia of intoxication when performing the field sobriety

tests. Id. at 26. Officer Miller testified that Appellant admitted to drinking

beer at Ventura’s Restaurant and did not indicate he had anything to drink

after returning to his home. Id.

      Based on the foregoing, we conclude that the officers possessed

requisite reasonable suspicion and were able to point to articulable and

specific facts that gave rise to the probability that Appellant had been driving

under the influence. Cauley, 10 A.3d at 327. The officers reasonably drew

the inference that Appellant “having driven to the scene and immediately

exhibited signs of intoxication, drove to the scene while intoxicated.” Id. As

a result of the field sobriety tests, police had probable cause to arrest

Appellant. Appellant has offered no substantial argument to the contrary in

his brief.   Appellant’s Brief at 11.    As such, we further conclude the trial

court properly denied Appellant’s suppression motion.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/17/2015




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