J-S56030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JORGE DANIEL ROMERO-DIAZ

                            Appellant               No. 220 MDA 2014


          Appeal from the Judgment of Sentence of January 3, 2014
               In the Court of Common Pleas of Berks County
             Criminal Division at No.: CP-06-CR-0000763-2013


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                       FILED NOVEMBER 20, 2014

       Jorge Daniel Romero-Diaz appeals from the judgment of sentence

entered on January 3, 2014, following a stipulated bench trial after which he

was convicted of driving under the influence (“DUI”)—highest rate, driving

while operating privilege is suspended or revoked (“DUS”), and accidents

involving damage to unattended vehicles or property.1 Specifically, Romero-

Diaz challenges the denial of his pretrial motion to suppress. After careful

review, we reverse the order denying Romero-Diaz’s motion to suppress his

confession, we vacate his judgment of sentence, and we remand for further

proceedings consistent with this memorandum.
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
       75 Pa.C.S.A. §§ 3802(c), 1542(a), and 3745(a), respectively.
J-S56030-14



     The trial court set forth the following statement of facts in its April 14,

2014 opinion:

     On October 7th, 2012, Trooper[s] Michael Schatzmann and
     Jason Hope [were] dispatched to a vehicle crash in the area of
     2394 E. Main St[.], Union Township, Berks County. While [en]
     route to the crash, Trooper Schatzmann observed [Romero-Diaz]
     lying on the south side of the roadway on an embankment
     approximately one mile west of the crash scene.

     The Troopers pulled over to investigate the situation. As they
     approached [Romero-Diaz], they saw another individual (later
     identified as the passenger) also lying alongside of the roadway.
     The passenger immediately stated “that [Romero-Diaz] was
     operating the vehicle and they were just trying to made it back
     to his residence in Birdsboro, Pa.”        At this point Trooper
     Schatzmann testified that he smelled a very strong odor of an
     alcoholic beverage emanating from [Romero-Diaz’s] person. He
     also observed [Romero-Diaz’s] eyes to be bloodshot and glassy.

     Trooper Schatzmann proceeded to ask [Romero-Diaz] if he had
     consumed any alcoholic beverages. [Romero-Diaz] admitted
     that he drank “3 or 4 beers[.”] [Romero-Diaz] also stated that
     “he did not consume any alcoholic beverages since the time of
     the crash.”    The Troopers testified they patted down both
     individuals to make sure they were not armed and dangerous. A
     set of car keys was found on [Romero-Diaz]. [Romero-Diaz] and
     [the] passenger were handcuffed (detained for safety) and
     transported to the scene of the crash. Upon arrival [Romero-
     Diaz]’s handcuffs were removed to continue the investigation.
     At this time [Romero-Diaz] started to cry.      Trooper Hope
     approached [Romero-Diaz] again and asked him if he was
     operating the vehicle. [Romero-Diaz] answered “yes.”

     At this point, [Romero-Diaz] said that his driver’s license was
     suspended and that the vehicle was a rental belonging to the
     passenger.     [Romero-Diaz’s] footing was unstable and he
     swayed side to side. [Romero-Diaz] had difficulty keeping his
     eyes open and answering questions. Trooper Schatzmann asked
     [Romero-Diaz] to perform a field sobriety test. [Romero-Diaz]




                                     -2-
J-S56030-14


       complied with a HGN[2] and failed the test given. Due to the
       dangerous location on the roadway, no further field sobriety
       tests were administered.    [Romero-Diaz] was placed under
       arrest for DUI and transported to St. Joseph’s Hospital for
       chemical testing. [Romero-Diaz] agreed to the blood test at
       approximately 6:30 a.m. [His] BAC results were .202%.

Trial Court Opinion (“T.C.O.”), 4/14/2014, at 3-4.

       The Commonwealth filed a criminal information on October 7, 2012,

and Romero-Diaz filed a motion to suppress and a petition for writ of habeas

corpus.    On May 22, 2013, the trial court held a hearing on the pretrial

motions, and ultimately denied them on August 28, 2013.          On January 3,

2014, the court held a stipulated bench trial after which the court found

Romero-Diaz guilty of the abovementioned counts and sentenced him to

county confinement of not less than seventy-two hours nor more than six

months, plus costs and fines. Romero-Diaz filed a notice of appeal on the

same day.      On March 5, 2014, the court ordered Romero-Diaz to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and he timely complied on March 26, 2014. On April 14, 2014, the

trial court entered its opinion pursuant to Pa.R.A.P. 1925(a).

       Romero-Diaz raises the following issues for our review:

       1.   Whether the [c]ourt erred in denying [Romero-Diaz’s]
       suppression motion in that:
____________________________________________


2
      To perform a horizontal gaze nystagmus (“HGN”) test, an officer asks
the driver to follow a penlight with his eyes, and observes the angle at which
the eye twitches.




                                           -3-
J-S56030-14


             a.    The Troopers lacked the requisite reasonable
          suspicion and/ or probable cause because the facts known
          to the Troopers when ordering [Romero-Diaz] to come
          down from the hill on the side of the road did not rise to
          the requisite level of reasonable suspicion that criminal
          activity was afoot or probable cause that a crime was
          occurring or had occurred in violation of [Romero-Diaz’s]
          right under Article I Section 8 of the Constitution of the
          Commonwealth of Pennsylvania and the Fourth and
          Fourteenth Amendments to the Constitution of the United
          States.

              b.    The    searching    Trooper    lacked    reasonable
          suspicion that [Romero-Diaz] was armed and dangerous to
          conduct a protective pat-down of [Romero-Diaz’s] person
          in violation of [his] rights under Article I Section 8 of the
          Constitution of the Commonwealth of Pennsylvania and the
          Fourth and Fourteenth Amendments to the Constitution of
          the United States, and any evidence obtained from the
          illegal pat-down must be suppressed as fruits of an illegal
          search, specifically the keys recovered from [Romero-
          Diaz’s] person as it was not readily apparent the keys were
          a dangerous weapon nor is it criminal to possess keys.

             c.     The detention of [Romero-Diaz] after the initial
          stop was not supported by the requisite probable cause, as
          the Troopers’ actions of handcuffing [Romero-Diaz],
          placing [Romero-Diaz] in the back of the marked police
          car, and transporting [Romero-Diaz] to the scene of the
          accident, effectively arose to the level of an arrest, and
          this arrest was not supported by probable cause in
          violation of [Romero-Diaz’s] right under Article I Section 8
          of the Commonwealth of Pennsylvania and the Fourth and
          Fourteenth Amendments to the Constitution of the United
          States.

              d.  The Troopers failed to apprise [Romero-Diaz] of
          his rights against self[-]incrimination pursuant to
          Miranda[3] as the interrogation of [Romero-Diaz] in front
          of the police car followed the handcuffing of [Romero-
____________________________________________


3
       Miranda v. Arizona, 384 U.S. 436 (1966).




                                           -4-
J-S56030-14


         Diaz], placing [Romero-Diaz] in the back of the marked
         police car and transporting [Romero-Diaz] to the scene of
         the crash, subjecting [Romero-Diaz] to a custodial
         interrogation, as no Miranda warnings were given any
         statements made by [Romero-Diaz] stemming from this
         questioning must be suppressed.

Romero-Diaz’s Brief at 6-7.

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the
      suppression court’s factual findings are supported by the record
      and whether the legal conclusions drawn from those facts are
      correct.    Because the Commonwealth prevailed before 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 suppression court’s factual findings are
      supported by the record, we are bound by these findings and
      may reverse only if the court’s legal conclusions are erroneous.
      Where . . . the appeal of the determination of the suppression
      court turns on allegations of legal error, the suppression court’s
      legal conclusions are not binding on an appellate court, whose
      duty it is to determine if the suppression court properly applied
      the law to the facts. Thus, the conclusions of law of the courts
      below are subject to our plenary review.

Commonwealth v. Thompson, 93 A.3d 478, 484 (Pa. Super. 2014)

(citations omitted).

      In his first issue, Romero-Diaz contends that “[t]he Trooper’s

investigative detention . . . was not supported by reasonable suspicion.”

Romero-Diaz’s Brief at 16.    Specifically, he argues that “at the time the

Troopers came upon Romero-Diaz there [were] no facts connecting him in

any way to the vehicle crash” to which the Troopers had been dispatched,

and there were no “specific or articulable facts” from which they could

reasonably suspect that criminal activity was afoot. Id. at 19. We disagree.

                                    -5-
J-S56030-14


       [I]n assessing the lawfulness of citizen/police encounters, a
       central, threshold issue is whether or not the citizen-subject has
       been seized. Instances of police questioning involving no seizure
       or detentive aspect (mere or consensual encounters) need not
       be supported by any level of suspicion in order to maintain
       validity.[1]   Valid citizen/police interactions which constitute
       seizures generally fall within two categories, distinguished
       according to the degree of restraint upon a citizen’s liberty: the
       investigative detention or Terry[4] stop, which subjects an
       individual to a stop and a period of detention but is not so
       coercive as to constitute the functional equivalent of an arrest;
       and a custodial detention or arrest, the more restrictive form of
       permissible encounters. To maintain constitutional validity, an
       investigative detention must be supported by a reasonable and
       articulable suspicion that the person seized is engaged in
       criminal activity and may continue only so long as is necessary
       to confirm or dispel such suspicion; whereas, a custodial
       detention is legal only if based on probable cause. To guide the
       crucial inquiry as to whether or not a seizure has been effected,
       the United States Supreme Court has devised an objective test
       entailing a determination of whether, in view of all surrounding
       circumstances, a reasonable person would have believed that he
       was free to leave. In evaluating the circumstances, the focus is
       directed toward whether, by means of physical force or show of
       authority, the citizen-subject’s movement has in some way been
       restrained. In making this determination, courts must apply the
       totality-of-the-circumstances approach, with no single factor
       dictating the ultimate conclusion as to whether a seizure has
       occurred.
          [1]
             See generally Florida v. Bostick, 501 U.S. 429, 434-
          35 (1991) (explaining that, even when the officers have no
          basis for suspecting criminal involvement, they may
          generally ask questions of an individual “so long as the
          police do not convey a message that compliance with their
          request is required”); Immigration and Naturalization
          Serv. v. Delgado, 466 U.S. 210, 216-17 (1984); [Florida
          v.] Royer, 460 U.S. [491,] 497-98 [(1983)] (“if there is
          no detention—no seizure within the meaning of the Fourth
____________________________________________


4
       Terry v. Ohio, 392 U.S. 1 (1968).




                                           -6-
J-S56030-14


           Amendment—then no constitutional rights have been
           infringed”); Commonwealth v. Ellis, 662 A.2d 1043,
           1047 (1995).

Commonwealth v. Strickler, 757 A.2d 884, 889-90 (Pa. 2000) (some

citations and footnotes omitted; some citations modified).   In the instant

case, the record supports the trial court’s conclusion that Romero-Diaz and

his passenger were subject to an investigative detention.

      Here, Trooper Schatzmann testified at the pretrial hearing that he and

Trooper Hope received a call from dispatch at approximately 4:30 a.m. on

October 7, 2012, that there had been a crash and the vehicle had been

abandoned.     About a mile from the scene, they saw Romero-Diaz and his

passenger lying in the brush near the road.

      Q.    Okay. So at this point when you received a call from
      dispatch, you weren’t sure when the accident happened, you just
      know there was a 9-1-1 call of an accident and you were
      responding to that 9-1-1 call?

      A.     If I recall correctly, a 9-1-1 call was made in a vehicle
      accident happened, it wasn’t hours ago, it was just within the
      last five minutes. She called in, they heard a crash, they saw a
      vehicle, didn’t see anybody around the vehicle.

      Q.      Okay.

      A.    While we were approaching the vehicle, we had our eyes
      peeled for anyone that may be walking or involved.

N.T. at 36.

      Trooper Schatzmann and Trooper Hope saw someone lying on an

embankment on the side of the road, later determined to be Romero-Diaz,

who stood when they stopped their patrol car. Id. at 48-49. The Troopers


                                    -7-
J-S56030-14



then saw a second man, the passenger, further up the embankment, and

instructed him to come down to where they were standing. Id. at 49. As

the second man approached the Troopers, he insisted, without being

prompted, that he had not been driving and that Romero-Diaz was the

driver.   Trooper Hope observed at that time that Romero-Diaz appeared

“[h]ighly intoxicated, [with a] strong odor of alcoholic beverage emanating

about his person. His speech was slurred. [His e]yes were blood shot. He

had a hard time keeping his eyes open.” Id. at 50.

      Accordingly, at the time the Troopers asked Romero-Diaz and his

passenger to come down from the embankment, they knew that there had

been an accident with an abandoned vehicle, they had discovered two men,

one visibly intoxicated, lying on the side of the road near the accident site,

and it was 4:30 in the morning. Thus, the record supports the suppression

court’s findings when it held as follows:

      For safety reasons, the Troopers did have specific and articulable
      facts along with rational inferences to follow the next step for a
      Terry pat down.       1) They received a dispatch call for an
      investigation in that area. 2) They saw two men lying on the
      side of the road close to the crash scene. 3) Information from
      one of the men about operating a vehicle. 4) Strong signs that
      [Romero-Diaz] was under the influence of alcohol. 5) And it was
      dark outside at approximately 4:30 a.m.

Findings of Fact at 6.   The investigative detention of Romero-Diaz and his

passenger was supported by a reasonable and articulable suspicion that

criminal activity was afoot, and thus, Romero-Diaz’s first issue does not

merit relief. Strickler, 757 A.2d at 889-90.

                                     -8-
J-S56030-14



      Second, Romero-Diaz contends that “[t]he troopers had no reasonable

suspicion to believe that Romero-Diaz was armed and dangerous; therefore,

the Terry search of Romero-Diaz was illegal and all physical evidence seized

as a result of the search must be suppressed.” Romero-Diaz’s Brief at 19.

Specifically, he argues that the Commonwealth failed to carry its burden of

proof to support the warrantless search and seizure of Romero-Diaz’s keys

because the Troopers “were not in a lawful position to detect the presence of

contraband” through the plain feel doctrine, and because keys are not

contraband. Id. at 21. We disagree.

      To conduct a pat down for weapons, a limited search or “frisk” of
      the suspect, the officer must reasonably believe that his safety
      or the safety of others is threatened. If either the seizure (the
      initial stop) or the search (the frisk) is found to be unreasonable,
      the remedy is to exclude all evidence derived from the illegal
      government activity.

      The Terry totality of the circumstances test applies to traffic
      stops or roadside encounters in the same way that it applies to
      typical police encounters. . . . Indeed, as we have observed,
      roadside encounters, between police and suspects are especially
      hazardous, and that danger may arise from the possible
      presence of weapons in the area surrounding a suspect.

Commonwealth v. Simmons, 17 A.3d 399, 403 (Pa. Super. 2011)

(citations omitted).

      Since the sole justification for a Terry search is the protection of
      the police and others nearby, such a protective search must be
      strictly limited to that which is necessary for the discovery of
      weapons which might be used to harm the officer or others
      nearby. Thus, the purpose of this limited search is not to
      discover evidence, but to allow the officer to pursue his
      investigation without fear of violence. If the protective search
      goes beyond what is necessary to determine if the suspect is

                                     -9-
J-S56030-14


      armed, it is no longer valid under Terry and its fruits will be
      suppressed.

Commonwealth v. Guillespie, 745 A.2d 654, 657-58 (Pa. Super. 2000);

see also Commonwealth v. Rehmeyer, 502 A.2d 1332, 1335 (Pa. Super.

1985) (“[If] probable cause to arrest exists, but the officer does not

effectuate the arrest, the officer may nevertheless conduct a protective pat-

down search when he decides to transport the individual in the patrol car.”).

      Here, Trooper Schatzmann stated that “[a]t the first time we detained

[Romero-Diaz and the passenger] we explained to them they are not under

arrest, they were being detained for our safety and transported to the crash

scene.” Id. at 19, 51. As the Trooper observed, “[i]t was dark, there’s no

street lights in that location. . . . So we weren’t sure if they were armed or

anything like that.” Id. at 11; see id. at 14 (describing the embankment as

“a very vulnerable section of that road which is a bad road to begin with”).

Likewise, Trooper Hope observed Romero-Diaz’s visible intoxication and

determined that:

      [W]e needed to get to the crash scene to further [the]
      investigation. So with protocol we handcuffed both individuals,
      told them they were not under arrest but needed to go back to
      the crash scene. At that point we patted them both down.
      [Romero-Diaz] had keys to a vehicle in the back I believe it was
      right pocket. Put them in the patrol vehicle and we resumed to
      where the crash was.

      Q.    And who recovered those keys?

      A.    I did.




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J-S56030-14



N.T. at 51. Trooper Hope further explained that their marked vehicle was

open and did not have a cage separating the backseat. Id. at 60.

      For their own safety, the Troopers were entitled to perform a limited

frisk for weapons before securing Romero-Diaz and his passenger in their

vehicle for transport. Thus, the Troopers had lawful access to pursue a plain

feel patdown of Romero-Diaz, at which point Trooper Hope felt a “bulge” that

was revealed to be his keys. The Troopers’ search ended at that point, and

was “strictly limited to that which is necessary for the discovery of weapons

which might be used to harm the officer or others nearby.” Guillespie, 745

A.2d at 657-58. Therefore, the record supports the trial court’s conclusion

that, in the totality of the circumstances, “[t]he keys found [are] not fruits of

an illegal search and should not be suppressed.” T.C.O. at 8.

      Furthermore, Romero-Diaz claims that “once Trooper Hope realized

the object was keys he would have to further investigate to identify these

keys as capable of operating the vehicle involved in the crash.”       Romero-

Diaz’s Brief at 22. However, this is speculation that is unsupported by the

record.   Neither Trooper stated that Romero-Diaz’s keys were used to

further the investigation in any way. See N.T. at 54-56 (describing events

at accident scene, which included Romero-Diaz’s confession, failed HGN test,

and arrest, and the Troopers calling a tow truck).      In fact, Romero-Diaz’s

own counsel solicited the information about his keys; the Commonwealth did

not contend that they were contraband or that they led to the discovery of

any evidence. Id. at 51-52.

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      We find the circumstances of Romero-Diaz’s claim substantially similar

to those in Commonwealth v. Toro, 638 A.2d 991, 1002 (Pa. Super.

1994):

      Appellant contends that the keys should have been suppressed
      because the police lacked the requisite probable cause to arrest
      appellant. We are somewhat perplexed by appellant’s argument.
      A review of the record demonstrates that the Commonwealth
      never introduced into evidence the keys taken from appellant.
      Because the keys were not used at trial the evidence was, in
      effect,   suppressed    by    the    Commonwealth.          See
      Commonwealth v. Baker, 531 Pa. at 552, 614 A.2d at 668
      (omission of evidence by the Commonwealth is the equivalent of
      suppression).

Commonwealth v. Toro, 638 A.2d 991, 1002 (Pa. Super. 1994) (footnote

omitted); see also Commonwealth v. Ellis, 608 A.2d 1090, 1092 (Pa.

Super. 1992) (“[T]he primary purpose of the exclusionary rule is to deter

unlawful police conduct.”).

      Here, the Commonwealth made no claim that the keys found on

Romero-Diaz belonged to the vehicle abandoned at the scene of the

accident.   In addition, as previously stated, the Troopers were entitled to

take security measures to remove objects from Romero-Diaz that could

potentially be used as a weapon while he was placed in their open police

vehicle for transportation purposes.     Guillespie, 745 A.2d at 657-58.

Moreover, suppression of the keys would not have affected the case because

no evidence was derived from their seizure.     See Simmons, 17 A.3d at

403; Ellis, 608 A.2d at 1092. Thus, Romero-Diaz’s second issue does not

merit relief.

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      Third, Romero-Diaz claims that “[t]he Troopers’ detention of Romero-

Diaz was overly coercive such that it constituted an illegal arrest that was

not supported by probable cause.” Romero-Diaz’s Brief at 23. Specifically,

he contends that no exigent circumstances were present which would justify

his transportation to the accident scene, and thus his investigative detention

rose to the level of an illegal arrest. Id. at 26-27. We disagree.

      Police detentions become custodial, therefore requiring probable
      cause, when, under the totality of the circumstances, the
      detention becomes coercive to the extent it functions as an
      arrest.

      The factors to be used to determine whether the detention has
      become an arrest are[:]

         The basis for the detention; its length; its location;
         whether the suspect was transported against his or her
         will, how far, and why; whether restraints were used;
         whether the law enforcement officer showed, threatened
         or used force; and the investigative methods employed to
         confirm or dispel suspicions.

Commonwealth v. Revere, 814 A.2d 197, 200 (Pa. Super. 2002) (citations

omitted); see also Commonwealth v. Douglass, 539 A.2d 412, 421 (Pa.

Super. 1988) (citing cases).

      In Lovette, our Supreme Court held that placing defendant and
      his companions in a police vehicle and transporting them to the
      scene of an offense, without their consent and without exigent
      circumstances, constituted an illegal arrest without probable
      cause and that evidence gained as a result of the arrest must be
      suppressed notwithstanding the Commonwealth’s contention
      that the seizure was intended to serve investigative purposes
      rather than to arrest and charge the suspect.




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J-S56030-14



Commonwealth v. White, 516 A.2d 1211, 1214 (Pa. Super. 1986) (citing

Commonwealth v. Lovette, 450 A.2d 975, 980 (Pa. 1982) (finding no

exigent circumstances where “[t]he police had the option of detaining the

suspects at the site of the initial encounter and either bringing the

complainant to the site for his identification of the questioned articles or

taking those items to him.”)). However, “when such an action is justified,

placing a suspect into a police vehicle in order to transport him to the scene

is not an arrest and need not be supported by probable cause. Indeed, what

Lovette stresses is that any intrusion upon a person’s liberty must be

justified.” Revere, 814 A.2d at 200.

      Here, at the suppression hearing, the Troopers testified that they

believed it was too dangerous to remain at the location where they found

Romero-Diaz and his passenger because they were “at a very vulnerable

section of that road which is a bad road to begin with, no street lights.” N.T.

at 14; see id. at 11.      As previously discussed, due to Romero-Diaz’s

appearance of intoxication, his passenger’s protests that Romero-Diaz had

been driving, the close proximity of Romero-Diaz and the passenger to the

crash scene, and the late hour, the Troopers had reasonable suspicion to

believe that criminal activity was afoot for purposes of conducting a Terry

investigative detention.    Id. at 52.       Although Romero-Diaz and his

passenger were visibly intoxicated, there is no allegation that the Troopers

used force when patting down and handcuffing them for the Troopers’ safety

while transporting them for “[m]aybe a minute” to the scene of the crash.

                                    - 14 -
J-S56030-14



Id.   Furthermore, upon arrival at the crash scene, the Troopers removed

Romero-Diaz from their vehicle and removed his handcuffs, telling him that

he was not under arrest while they continued their investigation by speaking

to the homeowners who reported the crash and gathering information from

the vehicle. Id. at 53-54.

      We conclude, based upon the totality of the circumstances, that the

Troopers were justified in transporting Romero-Diaz and his passenger the

short distance to the crash site, and that this transportation did not rise to

the level of an arrest. See Revere, 814 A.2d at 200. Unlike in Lovette,

supra, the Troopers did not have the option of detaining Romero-Diaz and

his passenger on the embankment because it was unsafe and there were no

other troopers dispatched to the scene, and the Troopers determined that

they were unable to continue their investigation without proceeding to the

crash site.   See Lovette, 450 A.2d at 980.     Thus, exigent circumstances

existed that justified the transportation of Romero-Diaz and his passenger,

which the Troopers executed in a minimally-invasive manner. See White,

516 A.2d at 1214. Accordingly, the record supports the trial court’s denial of

suppression on this ground.     Thompson, 93 A.3d at 484.      Romero-Diaz’s

third issue does not merit relief.

      We now turn to the admissibility of Romero-Diaz’s confession made to

the Troopers at the scene of the accident. In his fourth issue, Romero-Diaz

argues that he “was in custody for the purposes of Miranda; therefore, his

statements were illegally procured and must be suppressed.” Romero-Diaz’s

                                     - 15 -
J-S56030-14



Brief at 29.   He asserts that, in the totality of the circumstances, he was

“badgered and coerced” into confessing, and had a clear right to have been

presented with his Miranda rights or have his statements suppressed. Id.

at 31.   We agree that Romero-Diaz’s Miranda rights should have been

administered prior to questioning him.

     Statements     made     during   custodial   interrogation    are
     presumptively involuntary, unless the accused is first advised of
     [his] Miranda rights. Custodial interrogation is questioning
     initiated by law enforcement officers after a person has been
     taken into custody or otherwise deprived of [his] freedom of
     action in any significant way. [T]he Miranda safeguards come
     into play whenever a person in custody is subjected to either
     express questioning or its functional equivalent.           Thus,
     [i]nterrogation occurs where the police should know that their
     words or actions are reasonably likely to elicit an incriminating
     response from the suspect. [I]n evaluating whether Miranda
     warnings were necessary, a court must consider the totality of
     the circumstances. In conducting the inquiry, we must also keep
     in mind that not every statement made by an individual during a
     police encounter amounts to an interrogation. Volunteered or
     spontaneous utterances by an individual are admissible even
     without Miranda warnings.

         Whether a person is in custody for Miranda purposes
         depends on whether the person is physically denied of
         [his] freedom of action in any significant way or is placed
         in a situation in which [he] reasonably believes that [his]
         freedom of action or movement is restricted by the
         interrogation.     Moreover, the test for custodial
         interrogation does not depend upon the subjective intent
         of the law enforcement officer interrogator. Rather, the
         test focuses on whether the individual being interrogated
         reasonably believes [his] freedom of action is being
         restricted.

         Said another way, police detentions become custodial
         when, under the totality of the circumstances, the
         conditions and/or duration of the detention become so



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        coercive as to constitute the functional equivalent of
        arrest.

     Thus, the ultimate inquiry for determining whether an individual
     is in custody for Miranda purposes is whether there [was] a
     formal arrest or restraint on freedom of movement of the degree
     associated with a formal arrest.

Commonwealth v. Williams, 941 A.2d 14, 30-31 (Pa. Super. 2008)

(citations omitted); compare Commonwealth v. Gonzalez, 546 A.2d 26

(Pa. 1988) (holding that officer was permitted to ask “what happened” at the

scene of a fatal car accident where driver was exhibiting indicia of

intoxication), with Commonwealth v. Meyer, 412 A.2d 517, 518 (Pa.

1980) (holding that appellant placed in police vehicle for thirty minutes

before questioning was subject to custodial detention).

     Romero-Diaz objects to the admission of his confession, made at the

scene of the accident, that he had been driving the abandoned vehicle.

Romero-Diaz’s Brief at 31.     As previously discussed, Romero-Diaz was

subjected to an investigative detention when the Troopers transported him

to the scene. At the suppression hearing, Trooper Hope testified:

     Q.   When you get to the crash scene what occurs; what did
     you do first?

     A.    Took [Romero-Diaz] out of the vehicle. We separated both
     of them, we kept the passenger inside the vehicle. We took the
     handcuffs off [Romero-Diaz] because we told him he wasn’t
     under arrest. Then we continued our investigation from there.

     Q.    What specifically did you do in that investigation; what are
     you investigating?

     A.    Well, we were investigating the crash, who was operating
     the vehicle, trying to determine whether there’s witnesses at the


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     crash scene, make sure the safety of the crash scene, make sure
     the vehicle was not blocking anything, if we needed fire/EMS.

     Q.   And what specifically did you do when you get to that
     scene; this is 2394 East Main Street in Union Township?

     A.    I proceeded and the majority of what I did, I gathered
     information from the vehicle.   Initially when I got there I
     approached the property owners and I spoke with them.

     Q.    And when you go to speak to them where is [Romero-
     Diaz], if you are aware?

     A.     From what I remember I think he is in front of our patrol
     car[.]

     Q.   Outside of the patrol car?

     A.   Yes.

     Q.   And is he with anybody?

     A.   Trooper Schatzmann.

     Q.   And after speaking—how long are you with the—do you
     know the people—what the homeowner’s names were?

     A.   No, I don’t.

     Q.   When—how long were you speaking with them for?

     A.   Maybe a minute or two, two minutes.

     Q.   And after speaking with them what did you do?

     A.     I came back over to [Romero-Diaz] and I told them I just
     spoke with the homeowners who called the crash in. I said now
     is the time to be honest with me.

     Q.   And when you approached [Romero-Diaz], is Trooper
     Schatzmann still there?

     A.   Yes, I believe he was standing in close proximity. Yes.

     Q.   And is that the front of the patrol car?

     A.   Like I said, I believe it was right in the front.

     Q.   And how did [Romero-Diaz] respond?


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      A.    He put his head down and said yes, I was driving.

N.T. at 53-55. Trooper Schatzmann testified that he and Romero-Diaz stood

at the front of the patrol vehicle for a “[f]ew minutes.” Id. at 33. He asked

Romero-Diaz some questions but his response was “very minimal” and “[h]e

was kind of bobbing his head.”    Id. at 33-34.   Once Trooper Hope joined

them and Romero-Diaz admitted that he had been driving, Trooper

Schatzmann administered the HGN test, which Romero-Diaz failed, and

placed him under arrest for DUI. Id. at 34, 36.

      Considering the totality of the circumstances, the Troopers’ basis for

detaining Romero-Diaz prior to issuing Miranda warnings was to investigate

the accident. The Troopers’ inquiries took place in public view at the scene

of the accident.

      Although the Troopers restrained Romero-Diaz only for the duration of

the drive to the scene, and immediately removed him from their vehicle and

removed his handcuffs, they both stood with him at the front of the police

vehicle. They did not threaten or draw their weapons, or otherwise engage

in a show of force. However, Trooper Hope explicitly stated to Romero-Diaz,

“[N]ow is the time to be honest with me.” N.T. at 54. The Troopers never

indicated to Romero-Diaz that he was free to leave, and his passenger

remained handcuffed in the backseat of the police vehicle while they

questioned Romero-Diaz.

      Under   these   circumstances,   we   conclude   that   Trooper   Hope’s

statement was “reasonably likely to elicit an incriminating response from the


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suspect” and that Romero-Diaz’s detention was sufficiently coercive at this

point to constitute the functional equivalent of arrest. Williams, 941 A.2d

at 33. Thus, he was in custody for purposes of Miranda when he admitted

he was the driver of the vehicle. For failure to administer Miranda warnings

in a custodial setting before eliciting Romero-Diaz’s confession, it must be

suppressed. Thompson, 93 A.3d at 484.

     “Because a confession is the most damning of all evidence, we cannot

say that we are convinced beyond a reasonable doubt that the error did not

affect the judgment.” Commonwealth v. Bullard, 350 A.2d 797, 801 (Pa.

1976). Accordingly, we must vacate the judgment of sentence and remand

for additional proceedings consistent with this memorandum.

     Judgment of sentence vacated. Order denying Romero-Diaz’s motion

to suppress his confession reversed.         Case remanded for additional

proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2014




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