J-S68033-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
CORY HOUGHTON,                             :
                                           :
                   Appellant               :            No. 569 EDA 2014

      Appeal from the Judgment of Sentence entered on February 11, 2014
                in the Court of Common Pleas of Chester County,
                 Criminal Division, No. CP-15-CR-0003830-2012

BEFORE: ALLEN, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED DECEMBER 09, 2014

        Cory Houghton (“Houghton”) appeals from the judgment of sentence

imposed after he was convicted of driving under the influence – general

impairment (hereinafter “DUI”), as well as the summary offenses of careless

driving, registration and certificate of title required, and use of multiple-

beam road lighting equipment.1 We affirm.

        The trial court set forth the relevant facts underlying this appeal as

follows:

              [O]n July 12, 2012, Officer McCarthy of the Schuylkill
        Township Police Department was on duty at approximately 2:09
        a.m.[,] travelling west on Route 23 (Valley Forge Road). When
        he was near the 1100 block of Valley Forge Road, he observed a
        green Chrysler 300 sedan travelling east on Route 23 with its
        high beams activated. The high beams remained on as the
        vehicle passed Officer McCarthy’s car. Officer McCarthy saw the
        vehicle turn into the parking lot of Frank’s Sports Bar. [Officer
        McCarthy] turned around, activated his emergency lights and

1
    See 75 Pa.C.S.A. §§ 3802(a)(1), 3714(a), 1301(a), 4306(a).
J-S68033-14

     turned into the parking lot. He told [Houghton], who was
     already getting out of his vehicle, to get back in the car.
     [Houghton] complied and Officer McCarthy approached.
     [Houghton’s] speech was normal, but his eyes were bloodshot
     and glassy, and Officer McCarthy detected a strong odor of
     alcohol.    He asked if [Houghton] had been drinking, which
     [Houghton] denied. [Houghton] was asked to exit his vehicle in
     order to perform field sobriety tests (hereinafter “FSTs”). He
     satisfactorily performed the walk and turn test, but he failed the
     one-leg stand test and the finger-to-nose test.

           After the FSTs were completed, Officer McCarthy removed
     a portable breath test device (hereinafter “PBT”) from his
     pocket. When [Houghton] saw it, he immediately blurted out,
     “Do I have to take that?,” to which Officer McCarthy responded
     “no.” [Houghton] then asked “What would happen if I don’t take
     it?” Officer McCarthy answered, “I will transport you to the
     hospital for a blood test.” After that, [Houghton] said “so then if
     I take this, I get to go home?” Officer McCarthy replied “no, you
     don’t because you didn’t do well on the other tests.” [Officer]
     McCarthy also stated “if you’re being honest with me about not
     having anything to drink, everything will go smoothly.”
     [Houghton] then stated, “Look, I’m not drunk, okay? But I
     haven’t eaten anything all day. I just chugged three beers
     before I left. If I take that thing[, i.e., the PBT], I’m not going
     to pass it.”     Officer McCarthy told him to think about it.
     [Houghton] then agreed to take the PBT.[2] [Houghton] was
     subsequently taken into custody for DUI[, and placed in
     handcuffs,] and put in the rear of the police car. He was
     transported to Phoenixville Hospital[,] where he refused the
     blood test.

Trial Court Opinion, 6/18/14, at 2-3 (footnote added).

     After taking Houghton into custody, Officer McCarthy charged him with

the above-mentioned offenses.     Prior to trial, Houghton filed a Motion to

Suppress his inculpatory statements made to Officer McCarthy, asserting

that they were made during a custodial interrogation, and because Officer

2
  The record does not disclose the exact result of the PBT. However, Officer
McCarthy’s Affidavit of Probable Cause states that the PBT gave a positive
indication that Houghton had consumed alcohol.

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McCarthy had not read Houghton his Miranda3 rights prior to the

statements, they were therefore inadmissible.        The trial court denied the

Motion to Suppress.

        The matter proceeded to a bench trial, at the close of which the trial

court convicted Houghton on all counts, and sentenced him to serve fifteen

days in jail, followed by seventy-five days of electronic monitoring, and six

months of probation.4        In response, Houghton timely filed a Notice of

Appeal.

        Houghton presents the following issues for our review:

         I.   Whether the trial court erred in refusing to suppress
              [Houghton’s] statements that he chugged three beers
              and knew he would fail a breath test where said
              statements were elicited after [] Officer [McCarthy]
              advised [Houghton] that he was not free to go home
              based upon [Houghton’s] performance on [the FSTs]
              and that everything would go smoothly so long as
              [Houghton] had been honest about not having anything
              to drink?

        II.   Whether there is insufficient evidence against
              [Houghton] to support the finding of guilt on the
              charge[] of [DUI], specifically when the evidence was
              insufficient to show that [Houghton] was rendered
              incapable of safe driving as a result of drinking three
              beers?

Brief for Appellant at 5 (capitalization and footnote omitted).

        Houghton first argues that the trial court erred in denying his Motion to

Suppress his inculpatory statements made to Officer McCarthy because they


3
    Miranda v. Arizona, 384 U.S. 436 (1966).
4
    We observe that this was Houghton’s second conviction for DUI.

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occurred during a custodial interrogation, requiring Miranda warnings.5 Id.

at 12-19.

        In reviewing the denial of a suppression motion,

        our role is to determine whether the record supports the
        suppression court’s factual findings and the legitimacy of the
        inferences and legal conclusions drawn from those findings. In
        making this determination, we may consider only the evidence of
        the prosecution’s witnesses and so much of the defense as, fairly
        read in the context of the record as a whole, remains
        uncontradicted. When the evidence supports the factual findings
        of the suppression court, we may reverse only if there is an error
        in the legal conclusions drawn from those factual findings. As a
        reviewing court, we are therefore not bound by the legal
        conclusions of the suppression court and must reverse that
        court’s determination if the conclusions are in error or the law is
        misapplied.

Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa. Super. 2013) (brackets

and citation omitted).

        This Court has explained that

              [t]he legal standard of proof required by a police officer
        when engaging or interacting with a citizen varies depending on
        whether the citizen has been detained, and if so, the degree of
        the detention and the circumstances surrounding the interaction.
        There are three basic levels of interaction between citizens and
        police officers, and the accompanying standard of proof needed
        for each level is firmly established:

            The first category, a mere encounter or request for
            information, does not need to be supported by any level
            of suspicion, and does not carry any official compulsion to
            stop or respond. The second category, an investigative
            detention, derives from Terry[6] and its progeny: such a

5
  Houghton does not challenge the legality of Officer McCarthy’s initial traffic
stop for Houghton’s failure to dim his high-beam headlights. Additionally,
Houghton’s vehicle registration was expired.
6
    Terry v. Ohio, 392 U.S. 1 (1968).

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          detention is lawful if supported by reasonable suspicion
          because, although it subjects a suspect to a stop and a
          period of detention, it does not involve such coercive
          conditions as to constitute the functional equivalent of an
          arrest.   The final category, the arrest or custodial
          detention, must be supported by probable cause.

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

added; citations omitted); see also Commonwealth v. Korenkiewicz,

743 A.2d 958, 963 (Pa. Super. 1999) (stating that “the classification of the

interaction between police and citizen determines the scope of applicable

constitutional protections.”).

      In the instant case, it is undisputed that the interaction between

Houghton and Officer McCarthy was not a mere encounter.             At issue is

whether the interaction was an investigative detention, which does not

require the provision of Miranda warnings, or a custodial detention, to

which the dictates of Miranda attach.      See Commonwealth v. Murray,

936 A.2d 76, 81 (Pa. Super. 2007) (stating that “[i]t is well-established that

the dictates of Miranda do not attach during an investigatory detention.”

(citation and quotation marks omitted)); see also Commonwealth v.

Kunkle, 79 A.3d 1173, 1179 (Pa. Super. 2013) (stating that “[t]he Miranda

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

either express questioning or its functional equivalent.” (citation omitted)).

      Regarding investigative detentions, this Court has explained that

            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. In other words, in
      view of all the circumstances, if a reasonable person would have

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J-S68033-14

      believed that he was not free to leave, then the interaction
      constitutes an investigatory detention.        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, supra.

Cauley, 10 A.3d at 325-26 (footnote, citations and quotation marks

omitted).

      Additionally, we have observed that

            [a] law enforcement officer who lacks the precise level of
      information necessary for probable cause to arrest but possesses
      reasonable suspicion of criminal activity, is not required to
      simply shrug his shoulders and allow … a criminal to escape.
      Rather, the officer may conduct a brief, investigatory stop to
      maintain the status quo temporarily while obtaining more
      information. …

            The factors considered to determine whether a detention is
      investigative or custodial include:

            the basis for the detention (the crime suspected and the
            grounds for suspicion); the duration of the detention; the
            location of the detention (public or private); whether the
            suspect was transported against his will (how far, why);
            the method of detention; the show, threat or use of
            force; and, the investigative methods used to confirm or
            dispel suspicions.

Commonwealth v. Pizarro, 723 A.2d 675, 681 (Pa. Super. 1998)

(citations and quotation marks omitted). Moreover, we have held that “[t]he

mere fact that an individual is subjected to a stop and a period of detention

during which the individual is subject to the control of the police and is not

free to leave (a seizure) does not render such detention necessarily

‘custodial’ so as to require Miranda warnings.” Commonwealth v. Ellis,

549 A.2d 1323, 1331-32 (Pa. Super. 1988) (citing Michigan v. Long, 463

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U.S. 1032, 1051 (1984) (stating that “[d]uring any investigative detention,

the suspect is “in the control” of the officers in the sense that he may be

briefly detained against his will[.]”)).

      Houghton summarizes his argument in connection with this claim as

follows:

             [Houghton’s] statements to Officer McCarthy that he “just
      chugged three beers” and “knew he would fail that thing” were
      made during custodial interrogation without the provisions of the
      Miranda warnings and therefore improperly admitted at trial.
      By telling [Houghton] that he would not be free to go home at
      the conclusion of the roadside encounter due to [Houghton’s]
      performance on [the FSTs] already conducted, [O]fficer
      [McCarthy] conveyed to [Houghton] his obvious intent to arrest
      [Houghton] for [DUI]. Therefore, [Houghton] was in custody for
      Miranda purposes when he subsequently made the statements
      at issue.

            [Houghton] was subject to interrogation at the time of his
      statements because [O]fficer [McCarthy] should have known
      that his conduct in presenting [Houghton] with the PBT, telling
      him that he would not be free to go home due to his
      performance on the [FSTs], and advising him that as long he had
      been honest about not having anything to drink, would have
      been likely to evoke an effort on the part of [Houghton] to
      defend himself. This is especially so since [O]fficer [McCarthy]
      did not believe [Houghton] was being honest about not having
      anything to drink, and made the decision to arrest before
      presenting [Houghton] with the PBT.

Brief for Appellant at 12.

      It is undisputed that Officer McCarthy conducted a routine, legal traffic

stop of Houghton’s vehicle for a violation of the Motor Vehicle Code

(hereinafter “the Code”). While speaking with Houghton, Officer McCarthy

detected a strong odor of alcohol coming from Houghton’s person, and

observed that Houghton had glassy, bloodshot eyes. N.T., 4/17/13, at 18.

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J-S68033-14

At that point, Officer McCarthy had reasonable suspicion that Houghton was

driving under the influence of alcohol,7 and began investigating whether

Houghton was intoxicated to an extent above the legal limit, thus turning the

interaction into an investigative detention. Officer McCarthy asked Houghton

to perform three FSTs, two of which he failed.       Id. at 20-24.    Officer

McCarthy then withdrew a PBT from his pocket, in response to which

Houghton spontaneously stated, “Do I have to take that?” Id. at 24. Officer

McCarthy responded in the negative, and informed Houghton that if he

refused the PBT, he would be taken to the hospital for a test of his blood

alcohol content (“BAC”).   Id.   Houghton then asked Officer McCarthy, “so

then if I take [the PBT], I get to go home?[,]” to which Officer McCarthy

replied “that was not the case due to the fact that [Houghton] had not

performed well on … two of the [FSTs].”       Id. at 26-27.     According to

Houghton, at this point, the interaction changed from an investigative

detention into a custodial detention, requiring Miranda warnings, because

“[O]fficer [McCarthy] conveyed to [Houghton] his obvious intent to arrest

[Houghton] for [DUI,]” and, therefore, Houghton’s subsequent statements

that he had “chugged three beers” and “knew he would fail [the PBT]”

should have been suppressed.      Brief for Appellant at 12; see also N.T.,

4/17/13, at 27. We disagree.




7
  Houghton does not contest that Officer McCarthy had reasonable suspicion
to investigate whether he was intoxicated.

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      The record reveals that Officer McCarthy did not place Houghton under

arrest and take him into custody until he failed the PBT.          This was after

Houghton had made his inculpatory statements.         From the totality of the

circumstances, we determine that the interaction that occurred before

Officer McCarthy took Houghton into custody was not so coercive as to

constitute the functional equivalent of an arrest.       See Cauley, supra.

Specifically, Officer McCarthy (1) detained Houghton for a brief period of

time to investigate a potential DUI; (2) conducted the traffic stop and

investigation in a public parking lot; (3) did not physically restrain Houghton

in any way; (4) never threatened to or used any force during the

interrogation; and (5) used routine FSTs commonly used in such situations

to confirm or dispel his suspicions of DUI. See Pizarro, supra (setting forth

the   factors   to   consider   when   determining   whether   a    detention   is

investigative or custodial).      Accordingly, at the time of Houghton’s

inculpatory statements, the interaction was still an investigative detention,

and Officer McCarthy was therefore not required to read Houghton his

Miranda rights at that time.8 See Murray, supra; Ellis, supra. Moreover,

contrary to Houghton’s argument, the fact that Officer McCarthy stated to

Houghton that he would not be permitted to go home if he performed the




8
  Since we determine that Houghton was not in custody, it is not necessary
to engage in a discussion of whether Officer McCarthy’s questioning
constituted interrogation.

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PBT did not, in itself, convert the interaction into a custodial detention.9 See

Commonwealth v. Gommer, 665 A.2d 1269, 1274 (Pa. Super. 1995)

(holding that a police interaction with a motorist suspected of DUI

constituted an investigative detention, even though the police officer had

taken possession of the appellant’s car keys following the traffic stop, where

(a) the officer had observed the appellant driving erratically and had

reasonable suspicion that the appellant was under the influence; (b) the

subsequent investigative detention was brief; (c) the officer did not threaten

or use force; and (d) the officer did not interrogate the appellant); see also

Ellis, 549 A.2d at 1331 (stating that “every traffic stop and every Terry

stop involves a stop and a period of time during which the suspect is not free

to go but is subject to the control of the police officer detaining him.”).

Therefore,   the   trial   court   properly   refused   to   suppress   Houghton’s

inculpatory statements.

      Next, Houghton argues that the evidence was insufficient to convict




9
  We observe that after Officer McCarthy made this statement, he also
stated to Houghton, regarding taking the PBT, “if he [Houghton] had been
being honest with me about not having anything to drink, then everything
would go smoothly.” N.T., 4/17/13, at 27.

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him   of   DUI   under   section   3802(a)(1)10   of   the   Code   because   the

Commonwealth failed to prove that his alleged consumption of “three beers”

rendered him incapable of safe driving.     See Brief for Appellant at 18-19

(citing, inter alia, Commonwealth v. Rosko, 509 A.2d 1289, 1291 (stating

that “[i]n order to convict [a]ppellant of a violation of [the predecessor

statute to section 3802(a)(1)], the Commonwealth must prove not only that

[a]ppellant had been driving but that he was ‘under the influence of alcohol

to a degree which renders the person incapable of safe driving.’” (emphasis

in original))). According to Houghton, “there was no evidence presented to

establish a nexus between [Houghton’s] consumption of alcohol, and his

ability to safely drive,” in that (1) Officer McCarthy did not observe

Houghton driving erratically; (2) Officer McCarthy testified that Houghton did

not slur his speech or stumble when he got out of the car; (3) Houghton

passed one of the three FSTs; and (4) “the Commonwealth [did not] present

any evidence or testimony that [Houghton’s] inability to perform [the

remaining FSTs was] related to his inability to safely operate a vehicle.”

Brief for Appellant at 20-21.


10
   Section 3802(a)(1) provides that “[a]n individual may not drive, operate
or be in actual physical control of the movement of a vehicle after imbibing a
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(a)(1); see also Commonwealth v.
Kerry, 906 A.2d 1237, 1241 (Pa. Super. 2006) (stating that “Section
3802(a)(1) … is a general provision and provides no specific restraint upon
the Commonwealth in the manner in which it may prove that an accused
operated a vehicle under the influence of alcohol to a degree which rendered
him incapable of safe driving.” (citation and quotation marks omitted)).

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      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.    In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.         Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact[,] while passing upon the credibility of witnesses
      and the weight of the evidence produced, is free to believe all,
      part or none of the evidence.

Commonwealth v. Melvin, 2014 PA Super 181, at *83 (Pa. Super. 2014)

(citation omitted).

      The Code provides, regarding a motorist’s refusal to submit to a BAC

test, as follows:

      In any summary proceeding or criminal proceeding in which the
      defendant is charged with a violation of section 3802 …, the fact
      that the defendant refused to submit to chemical testing … may
      be introduced in evidence along with other testimony concerning
      the circumstances of the refusal. No presumptions shall arise
      from this evidence but it may be considered along with other
      factors concerning the charge.

75 Pa.C.S.A. § 1547(e).




                                 - 12 -
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      Here, the evidence established that (a) Houghton violated the Code by

having his high beams activated when passing Officer McCarthy; (b) Officer

McCarthy detected a strong odor of alcohol emanating from Houghton’s

person, and noticed that he had bloodshot, glassy eyes; (c) Houghton failed

two of the three FSTs; (d) Houghton admitted to having “chugged three

beers” prior to driving; and (e) Houghton refused to submit to a test of his

BAC at the hospital.      We conclude that all of this evidence was amply

sufficient to support Houghton’s conviction of DUI, and the trial court

therefore   properly   rejected   Houghton’s   sufficiency   challenge.   See

Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (holding

that the evidence was sufficient to sustain the appellant’s conviction of DUI

where the appellant (a) violated the Code by coasting through a stop sign;

(b) smelled of alcohol; and (c) failed four separate FSTs). Moreover, to the

extent that Houghton points to the lack of evidence of any erratic driving on

his part, this Court has stated that “[e]vidence of erratic driving is not a

necessary precursor to a finding of guilt under [section 3802(a)(1)].     The

Commonwealth may prove that a person is incapable of safe driving through

the failure of a field sobriety test.” Id.

      Accordingly, because we conclude that the trial court properly denied

Houghton’s Motion to Suppress, and there was sufficient evidence to support

his DUI conviction, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Allen, J., joins the memorandum.

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     Jenkins, J., files a concurring memorandum.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/9/2014




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