J-A28038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SAMUEL CARROLL FOSTER,

Appellant No. 1693 EDA 2014

Appeal from the Judgment of Sentence April 25, 2014

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0004626-2012

BEFORE: GANTMAN, P.J., PANELLA, and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JANUARY 08, 2016

Samuel Carroll Foster (“Appellant”) appeals from the judgment of 

sentence imposed in this road-rage incident after the trial court found him 

guilty of two counts of driving under the influence (“DUI”).1 On appeal, 

Appellant argues that the suppression court erred in admitting statements 

he made at the scene, evidence of his blood alcohol content (“BAC”), and 

contraband found in his vehicle. We affirm.

The trial judge, who presided over the suppression hearing and the 

bench trial, made the following findings of fact:

____________________________________________

1

 Appellant was convicted of 75 Pa.C.S. § 3802(d)(1)(i) (any amount of a 

schedule I controlled substance), and § 3802(d)(3) (combination of drugs 

and alcohol).
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Trooper Gibson has been employed by the Pennsylvania 

State Police since February 2009, and was stationed at Troop K 

Media barracks.

This Trooper had received education and/or training

regarding Driving Under the Influence (DUI) at the State Police 

Academy. And, has on almost a weekly basis observed people 

under the influence of alcohol and/or drugs.

This Trooper has been trained at the Academy in 

conducting field sobriety tests and has administered hundreds of 

such tests in his career.

Trooper Gibson was uniformed and on duty on March 9, 

2012 at approximately 10:31 p.m. while operating a marked 

State Police vehicle in a southbound direction on the Media bypass where it approached the intersection with Baltimore Pike.

At the trooper’s vantage point he observed a white Chevy 

minivan proceeding southbound when it drove off the improved 

roadway and onto the left hand earthen berm.

Believing the minivan had just crashed, he activated his 

vehicle’s overhead emergency lights and siren and drove 

southbound on the bypass to where the white vehicle was 

located. Upon his arrival he could see the minivan was still in 

motion on the left shoulder of the road. And, immediately 

behind the minivan was a black truck, also on the left shoulder 

of the road.

[Upon] his arrival at the scene the Trooper exited his 

vehicle and heard shouting voices as he proceeded around the 

back of the black truck. After rounding the truck he saw 

[Appellant] exiting his truck shouting at the driver of the 

minivan, who was also out of his vehicle.

The driver of the minivan had his hands raised at chest 

level and his body squared with [Appellant] while they were 

arguing. Simultaneously the Trooper saw [Appellant] reaching 

into [Appellant’s] right rear pants pocket with his right hand 

while advancing towards the minivan driver[;] the Trooper 

believed that if he did not intercede a physical assault was 

imminent. All the while the Trooper was repeating orders for the 

two [men] to disengage, which went ignored. The Trooper had 
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to finally draw his weapon to get the two drivers to comply, and 

get down on the ground before the Trooper hand cuffed both 

men.

After both drivers were hand cuffed Trooper Gibson found 

a knife in [Appellant’s] right rear pants pocket.

Once the scene was secured Trooper Gibson asked 

[Appellant] cursory questions of what was going on. While 

[Appellant] was informing [the trooper] of how the minivan 

driver was driving[, the trooper] noticed a strong odor of alcohol 

emanating from [Appellant’s] breath. The Trooper also noticed 

that [Appellant’s] speech was slurred, and while standing 

(unrestrained) [Appellant] was swaying with unsure footing.

Trooper Gibson entered [Appellant’s] truck and moved it 

further off the road for safety reasons.

While moving [Appellant’s] truck [the Trooper] noticed in 

plain view a wooden box on the center console which he 

recognized as [a] container to conceal a controlled substance. 

Once the Trooper ascertained there was no safety threat to 

himself, the other responding officers and the general public[,] 

the hand cuffs were removed from both drivers.

After [Appellant] was unrestrained Trooper Gibson 

informed [Appellant] that he wanted to make sure [Appellant] 

could safely operate his vehicle and asked him to perform 

several field sobriety tests[,] which [Appellant] failed.

[Appellant] testified that he feared if he failed the field 

test(s) he would then be arrested.

After failing the field tests [Appellant] was offered a 

portable breath test, which [Appellant] voluntarily consented to 

and performed the test as instructed. The test results indicated 

he was over the limit.

Thereafter, [Appellant] was placed under arrest and 

Trooper Gibson read [Appellant] the DL-26 form.
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[Appellant] informed Trooper Gibson that he understood 

the DL-26 form and voluntarily consented to have the blood test 

performed.

After [Appellant] was placed under arrest Trooper Gibson 

performed the required custodial inventory search of 

[Appellant’s] vehicle before it was to be towed.[2] This search 

would have inevitably yielded the discovery of [Appellant’s] drug 

paraphernalia containing suspected marijuana had it not already 

been seen in plain view.

Trial Court Opinion, 12/23/14, at unnumbered 4–6 (internal citation 

omitted).

Appellant filed an omnibus pretrial motion on October 25, 2012, 

seeking suppression of his statements that he had been drinking at the 

Veterans of Foreign War club and that the marijuana was his, as well as 

suppression of the contraband and BAC evidence. Following a hearing on 

January 11, 2013, the suppression court denied Appellant’s motion. Order, 

5/13/13. At a bench trial on December 16, 2013, the following evidence 

was admitted as stipulated facts: Affidavit of Probable Cause, Incident 

Report, Preliminary Hearing Notes of Testimony, Suppression Notes of 

Testimony, PennDoT Form DL-26 signed by Appellant; Drugscan Lab Report, 

and the chain of custody of Appellant’s blood and test results. The 

documentation indicated that Appellant’s BAC was 0.108% at the time his 

____________________________________________

2

 At Appellant’s preliminary hearing, defense counsel attempted to crossexamine Trooper Gibson regarding the presence of a tow truck at the scene. 

The Commonwealth objected because the questions were beyond the scope 

of direct examination. The magisterial district justice sustained the 

Commonwealth’s objection. N.T. (Preliminary Hearing), 7/17/12, at 30.
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blood was collected, and his blood tested positive for marijuana, a Schedule 

I controlled substance. After finding Appellant guilty, the trial court imposed 

a sentence of six months of intermediate punishment. Order, 1/9/14; 

Order, 4/25/14. Appellant filed a timely notice of appeal. Appellant and the 

trial court have complied with Pa.R.A.P. 1925.

Appellant presents one question for our consideration, which we 

paraphrase as follows: “Did the suppression court err in admitting 

Appellant’s statements and contraband evidence?” Appellant’s Brief at 4. In 

addressing a challenge to the denial of a suppression motion, our standard 

of review:

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.[3] 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 

____________________________________________

3

 Our Supreme Court prospectively applied a new rule regarding the scope 

of review in suppression matters in In re L.J., 79 A.3d 1073 (Pa. 2013). 

Specifically, the L.J. Court clarified that an appellate court’s scope of review 

in suppression matters includes the suppression hearing record and not

evidence elicited at trial. Id. at 1087. Because the suppression hearing in 

the case sub judice predates the decision in L.J., that holding has no bearing 

on our review. Commonwealth v. Hale, 85 A.3d 570 (Pa. Super. 2014).
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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. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting 

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations 

omitted)).

Arguing for suppression, Appellant describes a very dramatic scene 

involving a rookie state trooper, deadly force, no jacket in thirty-nine-degree 

weather, asthma, lost police cruiser video footage, an unlawful arrest, and 

an illegal vehicle search. Contrarily, the suppression court found Trooper 

Gibson’s version of events to be credible. Trial Court Opinion, 12/23/14, at 

unnumbered 1, 4, and 6. According to the suppression court:

Trooper Gibson, accordingly, restrained both drivers while 

he conducted a temporary investigative detention.

During an investigative detention Trooper Gibson was free 

to briefly stop, detain, and question the suspects, as he did with 

[Appellant].

Once the scene was secured and the police had 

ascertained what had occurred, both drivers were unrestrained.

Due to all the observations by Trooper Gibson, [he] had 

reasonable suspicion that [Appellant] was impaired, thus 

[Appellant] was subjected to field sobriety tests[,] which he 

failed.

Thereafter, [Appellant] was arrested.

[Appellant] voluntarily consented to be subjected to a 

blood test to ascertain the level of alcohol in his blood.

Pennsylvania courts have long recognized that police are 

justified in investigating a situation, so long as the police 
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officer(s) reasonably believe that criminal activity is afoot. 

Commonwealth v. Melson, 556 A.2d 836 (Pa. Super. 1989). 

Likewise, it is well established that “the dictates of Miranda do 

not attach during an investigatory detention.” Commonwealth v. 

Kondash, 808 A.2d 943, 948 (Pa. Super. 2002).

In the instant case Trooper Gibson had reasonable 

suspicion that criminal activity was afoot; and his original 

investigatory detention of [Appellant] was appropriate. Since an 

investigatory detention does not trigger Miranda requirements 

[Appellant’s] statements made during the investigatory 

detention were properly admissible.

When Trooper Gibson smelled a strong odor of alcohol on 

[Appellant’s] breath, observed [Appellant’s] slurred speech and 

unsure footing[,] there is no question that he had sufficient 

probable cause under 75 Pa. C.S.A. 1547 to believe [Appellant] 

was operating his vehicle under the influence of alcohol. 

Participation in a breathalyzer test (or field sobriety test) is not 

the equivalent of an interrogation, nor is it a criminal proceeding. 

Commonwealth v. Mordan, 615 A.2d 102 (Pa. Super. 1992). 

During an interrogation, the objective is to obtain incriminating 

statements. Id. “Requiring a driver to perform physical tests or 

to take a breath analysis test does not violate the privilege 

against self-incrimination because the evidence procured is of a 

physical nature rather than testimonial, and therefore, no 

Miranda warnings are required.” Commonwealth v. Benson, 421 

A.2d 383, 387 (Pa. Super. 1980).

As a condition of maintaining a driver’s license in 

Pennsylvania, all drivers are subject to the implied consent 

requirements of the Motor Vehicle Code and must submit to 

blood and breath tests under appropriate circumstances. 

Commonwealth v. O’Connell, 555 A.2d 873, 877 (Pa. 1989). 

Where an officer has reasonable grounds to believe that a 

motorist is driving while under the influence of alcohol, the driver 

may properly be requested to submit to a chemical test of blood, 

breath or urine to determine the alcoholic content of the blood. 

Commonwealth v. McFarren, 525 A.2d 1185 (Pa. 1987). Neither 

the Fourth Amendment bar against unreasonable searches and 

seizures nor Fifth Amendment privilege against self-incrimination 

prevents the Commonwealth from requiring a driver to submit to 

a breathalyzer test. Commonwealth v. Hipp, 551 A.2d 1086 (Pa. 

Super. 1988).
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In the instant case Trooper Gibson had reasonable 

suspicion that [Appellant] was operating his vehicle while under 

the influence, accordingly, his request for field sobriety tests, 

breathalyzer test and blood analysis were appropriate as a 

matter of law. Further, in addition to the implied consent to 

submit to testing, [Appellant] freely gave actual consent to 

submit to the requested tests.

Accordingly, all the test results were properly admissible.

Trial Court Opinion, 12/23/14, at unnumbered 6–8.

In support of his position, Appellant first contends that all of the 

evidence should have been suppressed because his arrest was illegal. 

Appellant’s Brief at 17. According to Appellant, the trooper lacked 

reasonable suspicion when he first arrived at the scene. Id. at 18. 

Appellant further argues that Trooper Gibson lacked probable cause to arrest 

him because the only evidence of suspected impairment was the odor of 

alcohol on Appellant’s breath, which evidence was obtained after the trooper 

had placed Appellant in handcuffs. Id. at 18–19. 

The Commonwealth responds that Trooper Gibson had reasonable 

suspicion to investigate the situation unfolding between Appellant and the 

other driver on the side of a busy highway. Commonwealth’s Brief at 10. 

The Commonwealth further argues that the initial interaction between 

Appellant and Trooper Gibson was a stabilization of the volatile situation and 

an investigatory detention. Id. at 10–15. As Trooper Gibson interacted with 

Appellant, the Commonwealth asserts, probable cause ripened based on 

Appellant’s breath, unstable balance, failure of field sobriety tests, and the 
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results of the breathalyzer test. Thus, the Commonwealth concludes, 

Appellant’s arrest was lawful. Id. at 16–19.

Upon review, we agree with the Commonwealth. The suppression 

court found, and the record confirms, that Trooper Gibson responded to 

what he believed was a traffic accident. Criminal Complaint (Affidavit of 

Probable Cause), 4/3/12, at 6; N.T. (Preliminary Hearing), 7/17/12, at 5, 9; 

N.T. (Suppression), 1/11/13, at 13, 48. Upon arriving at the scene, Trooper 

Gibson had reasonable suspicion to believe that criminal activity was afoot 

when he observed Appellant reaching for his back pants pocket as he 

shouted at and moved toward the other driver. N.T. (Preliminary Hearing), 

7/17/12, at 5–8; N.T. (Suppression), 1/11/13, at 18–20, 52–53. 

Additionally, as Trooper Gibson interacted with Appellant, the trooper had 

probable cause to believe that Appellant was impaired based on his breath, 

slurred speech, instability, field sobriety tests, and breathalyzer test. N.T. 

(Preliminary Hearing), 7/17/12, at 9–12; N.T. (Suppression), 1/11/13, at 

22, 25–31, 32–34. Thus, we conclude that Appellant’s arrest was legal.

Next, Appellant asserts that his statements should have been 

suppressed because Trooper Gibson did not administer Miranda4 warnings. 

According to Appellant, he was placed under arrest when Trooper Gibson 

handcuffed him; therefore, any statements or evidence obtained after that 

____________________________________________

4

 Miranda v. Arizona, 384 U.S. 436 (1966).
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point were unlawful because the trooper did not advise Appellant of his 

constitutional rights. Appellant’s Brief at 20. Contrarily, the Commonwealth 

contends that Appellant’s formal arrest did not occur until after the 

breathalyzer test; therefore, Appellant’s pre-arrest statements were not 

subject to Miranda warnings. Commonwealth’s Brief at 21–24 (citing 

Commonwealth v. Pakacki, 901 A.2d 983, 988 (Pa. 2006)).

Again, we agree with the Commonwealth. Our Supreme Court “has 

declined to hold that every time an individual is placed in handcuffs that 

such individual has been arrested.” Commonwealth v. Guillespie, 745 

A.2d 654, 660 (Pa. Super. 2000) (citing Commonwealth v. Carter, 643 

A.2d 61, 67 n. 2 (Pa. 1994)). “[F]or their safety, police officers may 

handcuff individuals during an investigative detention.” Commonwealth v. 

Rosas, 875 A.2d 341, 348 (Pa. Super. 2005). Moreover, an investigatory 

detention does not trigger Miranda warnings. Kondash, 808 A.2d at 948; 

see also Commonwealth v. Murray, 936 A.2d 76, 81 (Pa. Super. 2007) 

(quoting Kondash).

Here, the suppression court found, and the record confirms, that 

Appellant and the other driver were placed in handcuffs to maintain the 

status quo and to stabilize a volatile situation. N.T. (Preliminary Hearing), 

7/17/12, at 9; N.T. (Suppression), 1/11/13, at 20, 23, 58. Additionally, 

Appellant was not under arrest until the breathalyzer test results indicated

that his BAC was above the legal limit; at that point, Trooper Gibson read 
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Appellant the implied consent warning. Criminal Complaint (Affidavit of 

Probable Cause), 4/3/12, at 6–7; N.T. (Preliminary Hearing), 7/17/12, at 

11–12; see also N.T. (Suppression), 1/11/13, at 123 (Appellant testified 

that he was not under arrest until after the breathalyzer test). As discussed 

above, Trooper Gibson’s original investigatory detention of Appellant was 

appropriate. Because an investigatory detention does not trigger Miranda

warnings, Appellant’s statements made during the investigatory detention 

were admissible. Kondash, 808 A.2d at 948; Murray, 936 A.2d at 81. 

Thus, Appellant’s contrary claim lacks merit.

Appellant’s third argument is that the contraband evidence should 

have been suppressed because the warrantless search of his vehicle was 

illegal. Appellant contends that Trooper Gibson did not conduct an inventory 

search and no exigent circumstances existed that would justify the trooper’s 

search of Appellant’s truck. Appellant’s Brief at 21. The Commonwealth 

points out that Trooper Gibson did not charge Appellant with any drug 

offenses; therefore, any argument regarding the wooden box, the trooper’s 

subsequent search of the vehicle, and recovery of suspected marijuana is 

moot. Commonwealth’s Brief at 19. Alternatively, the Commonwealth 

submits that the contraband was in plain view, recovered during a valid 

inventory search, and subject to the inevitable discovery doctrine. Id. at 

19–21 (citing Commonwealth v. Brown, 368 A.2d 626, 631 (Pa. 1976)).
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Our review of the record confirms that Appellant was not prosecuted 

for or convicted of any drug offenses. Criminal Complaint, 4/3/12, at 2–4; 

Judgment of Sentence, 4/25/14. Consequently, evidence of the wooden box

and marijuana did not contribute to his convictions, which were based on the 

breathalyzer test results and the blood test results. Criminal Complaint 

(Affidavit of Probable Cause), 4/3/12, at 6–7; N.T. (Preliminary Hearing), 

7/17/12, at 11, 13–16, Exhibit C-1. 

Moreover, “evidence that ultimately or inevitably would have been 

recovered by lawful means should not be suppressed despite the fact that its 

actual recovery was accomplished through illegal actions.” Commonealth 

v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009). Here, the suppression 

court found and the record confirms that:

the drug paraphernalia was located on [Appellant’s] vehicle’s 

[console] between the front seats, in plain view. However, even 

if the discovery of this drug paraphernalia was initially “illegal” 

the Commonwealth adequately proved it would have been 

inevitably discovered in the subsequent legal inventory search 

which was performed on [Appellant’s] vehicle subsequent to 

[Appellant’s] lawful arrest.

Trial Court Opinion, 12/23/14, at unnumbered 9. Thus, we conclude that 

Appellant’s contraband challenge warrants no relief.

Appellant next argues that all of the evidence should have been 

suppressed because the trooper obtained it through coercion. Appellant’s 

Brief at 25. According to Appellant, “[a]ll acts and behavior by the Trooper 
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in the instant case had the primary goal to elicit incriminating responses 

from Appellant, while Appellant was not free to go.” Id. at 27. 

We consider this argument to be a challenge to the weight of the 

Commonwealth’s evidence, an elevation of Appellant’s version of events over 

Trooper Gibson’s version. We reiterate, “It is within the suppression court’s 

sole province as factfinder to pass on the credibility of witnesses and the 

weight to be given their testimony.” Commonwealth v. Gallagher, 896 

A.2d 583, 585 (Pa. Super. 2006). As an appellate court, we cannot 

substitute our judgment for that of the finder of fact. Commonwealth v. 

Champney, 832 A.2d 403, 408 (Pa. 2003). Here, the suppression court 

found Trooper Gibson’s testimony to be credible. Trial Court Opinion, 

12/23/14, at unnumbered 1, 4, and 6. We shall not re-weigh the evidence 

and substitute our judgment for that of the suppression court. Gallagher, 

896 A.2d at 585; Champney, 832 A.2d at 408.

Finally, Appellant concludes that all of the evidence should have been 

suppressed based on the totality of the circumstances. Appellant’s Brief at 

27. According to Appellant, “[t]he record shows that a pattern of 

increasingly deficient and illegal methods used by the arresting Trooper 

compelled the logical conclusion to suppress the evidence.” Id. at 27–28.

We agree with Appellant that a suppression court is required to “take 

into account the totality of the circumstances—the whole picture.” 

Navarette v. California, ___ U.S. ___, 134 S.Ct. 1683 (2014). However, 
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we disagree that suppression was warranted in light of the totality of the 

circumstances at hand. The record supports the suppression court’s 

findings, and its legal conclusions are without error. Therefore, Appellant’s 

final challenge fails.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/8/2016