J-S06024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL CIVITELLA

                            Appellant                  No. 353 EDA 2014


            Appeal from the Judgment of Sentence October 25, 2013
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0007319-2011


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                            FILED MARCH 09, 2015

        Michael Civitella appeals from the judgment of sentence, imposed by

the Court of Common Pleas of Delaware County, following his convictions for

driving while operating privilege is suspended1 and driving under the

influence (“DUI”).2

        On May 29, 2011, shortly after 2:00 a.m., Officer Stephen Bannar of

the Radnor Township Police Department received a dispatch call for an

accident at Brookside Road and Conestoga Roads in Wayne, PA.           Officer

Anthony Radico was the first to respond, followed by Officer Bannar.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 1543(b)(1).
2
    75 Pa.C.S. § 3802(c).
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      When the officers arrived at the scene, the vehicle was no longer

present. Officer Bannar saw that some of the shrubbery and rocks lining the

perimeter of the park appeared out of place, and he observed tire marks in

the mud in front of the rocks. Officer Bannar further observed reddish fluid

leading from the accident location down Conestoga Road to Parkes Run. The

two officers followed the trail of fluid down Parkes Run and onto Leslie Road.

      The fluid trail ended about half a mile from the scene of the accident,

at a private residence located at 860 Leslie Road. The officers shined their

spotlights onto the fluid and followed it up the driveway of the residence.

When the officers reached the top of the driveway, they observed a black

Mercedes parked parallel across the driveway, with the nose of the vehicle

facing the residence. There was white smoke coming from the vehicle.

      Upon further inspection, the officers observed severe front-end

damage to the Mercedes, and both the driver-side and passenger-side

airbags had deployed. The officers found Civitella lying on the ground next

to the vehicle on the passenger-side.

      Officer Radico asked Civitella what happened and if he needed medical

attention. Civitella responded that he had struck some rocks on the trail and

that “it wasn’t a big deal.”   Civitella had a strong odor of alcohol on his

breath, his speech was impaired, his face was flushed, his eyes were red and

glossy, and he was unsteady on his feet. Officers Bannar and Radico helped

Civitella to his feet because he could not stand on his own. When asked for

identification, insurance, and registration, Civitella handed the officers his

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business card.      Officer Radico also asked Civitella where he was coming

from. Civitella told the officer that he had been at a bar in Conshohocken.

Based upon his observations, Officer Bannar believed that Civitella was

under the influence of alcohol.         Officer Radico then placed Civitella under

arrest and transported him to Bryn Mawr Hospital. The officers did not read

Civitella his Miranda3 warnings.

        On August 24, 2012, Civitella filed a Motion to Suppress the

statements he made to police, arguing that the police had failed to provide

him Miranda warnings prior to questioning.              Hearings on that motion

occurred on April 25, 2013, and May 2, 2013. The lower court denied the

motion on July 12, 2013, and a jury trial commenced on August 6, 2013.

        Following trial, a jury found Civitella guilty of DUI and driving while

operating privilege is suspended. On October 25, 2013, the court sentenced

Civitella to a term of 12 to 24 months’ imprisonment, plus 90 days, followed

by three years of probation and $3,800 in fines and costs. The court found

Civitella eligible for participation in the Recidivism Risk Reduction Incentive

(RRRI) and awarded him credit for time served.               Trial Court Opinion,

5/14/14, at 1. Civitella filed post-sentence motions, which the court denied

on January 2, 2014.         Thereafter, on January 31, 2014, Civitella filed the

instant appeal.


____________________________________________


3
    Miranda v. Arizona, 385 U.S. 436 (1966).



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      On appeal, Civitella presents the following issue for our review:

whether the trial court erred when it denied Civitella’s motion to suppress his

statements because he was subjected to custodial questioning without the

benefit of Miranda warnings, in violation of PA. Const. Art. 1, § 9, and U.S.

Const. Amend. V, XIV. Appellant’s Brief, at 5.

      Our standard of review for suppression rulings is well established:

      [I]n 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. Cauley, 10 A.3d 321, 325 (Pa. Super. 2010).

      Civitella maintains that his statements to the officers on the night of

his arrest were not voluntary. Rather, he claims the statements were the

product of a custodial interrogation without proper Miranda warnings.

Therefore, Civitella argues, the statements should have been suppressed.

As such, the key inquiry will be whether Civitella was in custody at the time

he made the statements to the arresting officers.

      “An encounter between police and a suspect may be described as a

mere encounter, an investigative detention, a custodial detention, or a

formal arrest.”   Commonwealth v. Haupt, 567 A.2d 1074, 1077-78 (Pa.



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Super. 1989), quoting Commonwealth v. Douglass, 539 A.2d 412, 417

(Pa. Super. 1988). This Court, in Douglass, went on to explain:

      A “mere encounter” (or request for information) need not be
      supported by any level of suspicion, but it carries no official
      compulsion to stop or respond. An “investigative detention”
      must be supported by reasonable suspicion; it subjects the
      suspect to a stop and a period of detention, but does not involve
      such coercive conditions as to constitute the functional
      equivalent of arrest. A “custodial detention” must be supported
      by probable cause; it is deemed to arise when the conditions
      and/or duration of an investigating detention become so coercive
      as to be the functional equivalent of arrest. Formal arrest
      requires probable cause, and needs no further definition. Among
      the factors the court utilizes in determining whether the
      detention is custodial or investigative are: the basis for the
      detention; the duration; the location; whether the suspect was
      transported against his will, how far, and why; whether
      restraints were used; the show, threat, or use of force; and the
      methods of investigation used to confirm or dispel suspicions.

Id. at 417-18, 421 (citations omitted).

      When police interrogate an individual, they must administer proper

warnings as to that individual’s constitutional rights to counsel and to remain

silent, as well as the significance of waiving those rights. Miranda, supra.

“Interrogation”   has     been   defined   as,   “questioning   initiated   by   law

enforcement officials.”    Commonwealth v. DeJesus, 787 A.2d 394, 401

(Pa. 2001), citing Miranda, 384 U.S. at 444.

      Instantly, the interaction between Civitella and the officers began as a

mere encounter, in which the officers were trying to determine if a motor

vehicle accident had occurred and if there was a need for immediate medical

assistance. At trial, Officer Radico testified to the following:



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      Q [District Attorney]: What’s the first thing you do when you
      see this person [referring to Civitella]?

      A: His eyes were shut so I start, you know, asking him if he’s
      okay. And you know he opened his eyes. He said yeah. I said
      are you okay? He said yeah. I said what happened? He said I
      hit some rocks at the trail. He said no big deal. I said are you
      sure you’re okay? Yeah, I’m okay. I said okay. Then I started
      my investigation just that he was the driver of the vehicle for the
      accident.

N.T. Trial, 8/7/13, at 21-22.

      We read Officer Radico’s testimony in conjunction with the following

testimony presented by Officer Bannar at the suppression hearing:

      Q: And at this point [after the initial questions] in time was Mr.
      Civitella under arrest?

      A: No.

      Q: Would he have been free to go?

      A: At that point in time no, because he has a strong odor of
      alcohol on his breath, and on his person so at that point in time
      he presented enough evidence that he was actually intoxicated
      and that he actually was driving this vehicle when he said he
      struck these rocks. No.

N.T. Suppression Hearing, 4/25/13, at 26.

      Based upon our review of the certified record, we agree with the trial

court’s conclusion that the interaction between Civitella and the officers

began as a mere encounter.      See Commonwealth v. Kendall, 976 A.2d

503 (Pa. Super 2009) (officer’s initial contact constituted a mere encounter

where driver pulled over for an unknown reason). Accordingly, there was no

need to provide Miranda warnings at that time.




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      At trial, Officer Radico testified that during their encounter, Civitella

had trouble standing up, was unsteady on his feet, smelled of alcohol,

mentioned that he had hit some rocks, and was unable to produce his

identification from his wallet.   N.T. Preliminary Hearing, 12/20/11, at 23.

Based on these observations, the officers developed a reasonable suspicion

that Civitella had been driving under the influence, raising the level of the

interaction to an investigative detention. See Commonwealth v. DeLeon,

419 A.2d 82 (Pa. Super. 1980) (damage to accident site and vehicle,

coupled with odor of alcohol on appellant, who was found lying near car,

sufficient to reasonably suspect DUI occurred); see also Commonwealth

v. Kasunic, 620 A.2d 525 (Pa. Super 1993) (defendant found next to

vehicle, smelling of alcohol and exhibiting signs of intoxication, consistent

with suspicion that he operated vehicle while intoxicated).

      As discussed above, an investigative detention must be supported by

reasonable suspicion and “it subjects the suspect to a stop and a period of

detention, but does not involve such coercive conditions as to constitute the

functional equivalent of arrest.” Douglass, 359 A.2d at 417-18. Here, the

officers had reasonable suspicion to believe Civitella had operated a vehicle

under the influence when they observed a trail of fluid from the site of an

accident directly to his home, found his car severely damaged with deployed

airbags, and saw Civitella lying on the          ground exhibiting signs of

intoxication.   At the onset of that suspicion, the encounter elevated to an

investigative   detention,   whereby   the   police   asked   questions   in   an

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investigatory manner.      The whole interaction between Civitella and the

officers lasted less than one half hour. N.T. Suppression Hearing, 4/25/13,

at 30. Furthermore, there is no evidence in the record to suggest that police

used, or threatened the use of, any force beyond, as Civitella suggests, the

potential use of overhead squad lights to illuminate a dark and secluded

area.    Appellant’s Brief, at 10.   While the officers did admit to touching

Civitella, this was only to help him to his feet and to prevent him from

falling. N.T. Suppression Hearing, 4/25/13, at 25. There is no evidence to

suggest that police in anyway moved Civitella, or restricted his freedom of

movement.

        Although the officers testified that Civitella would not have been free

to leave, we note that, “the test for custodial interrogation does not depend

on the subjective intent of the law enforcement interrogator.      Rather, the

test focuses on whether in the individual being interrogated reasonably

believes his freedom of action is being restricted.”      Commonwealth v.

Williams, 650 A.2d 420, 427 (1994). Civitella fails to present any evidence

to support his assertion that he reasonably believed his freedom was being

restricted prior to his arrest.

        Based on the foregoing, we agree with the trial court’s conclusion that

Civitella was not in custody at the time he made the statements in question.

Trial Court Opinion, 5/14/14, at 5. Civitella was not physically deprived of

his freedom in any way or placed in a situation where he would reasonably

believe that his movement was restricted. Because he was not in custody,

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Civitella was not entitled to Miranda warnings.    Accordingly, we conclude

that the record supports the suppression court’s findings, and that the legal

conclusions drawn therefrom were not made in error. Cauley, supra.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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