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

v.

SEAN HANNON

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3497 EDA 2018 Appeal from the Judgment of Sentence Entered October 4, 2018 In the Court of Common Pleas of Wayne County Criminal Division at

No(s): CP

- 64

- CR

- 0000366

- 2017

BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J. MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 30, 2019 Sean Hannon appeals from the judgment of sentence, entered in the Court of Common Pleas of Wayne County, after being convicted by a jury of two counts each of endangering the welfare of children (EWOC) , 1 driving u nder the influence (DUI), 2 and recklessly endangering another person (REAP) , 3 and one count each of the summary offenses of driving while operating privilege suspended/revoked 4 and permitting unauthorized person to drive. 5 After careful review, we affirm

.

_________________ __________ ______ ____ _______ 1 18 Pa.C.S. § 4304(a)(1).

2 75 Pa.C.S. § 3802(a)(1) (general impairment); 75 Pa.C.S. § 3802(c) (highest rate).

3 18 Pa.C.S. § 2705.

4 75 Pa.C.S. § 1543(b)(1).

5 75 Pa.C.S. § 1574(a).J

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On November 5, 2017, at approximately 5 p.m., Hannon and his two children, an eleven

- year - old daughter and eight

- year - old son, were traveling in his 1999 Dodge Dakota truck . At some point, Hannon permitted his daughter to drive t he vehicle

. Ryan Yannone, who was driving behind Hannon’s truck , noticed that the vehicle was weaving and traveling very slowly . At an intersection , the truck f a iled to stop at a posted stop sign. At another in tersection, the truck stopped and sat on the side of t he road. Upon seeing this, Yannone exited his vehicle and approached Hannon’s truck where he observed Hannon’s daughter in the driver’s seat. When Yannone asked Hannon why the child had been driving, Hannon yelled at him to “mind [his]

own f*c*ing busine ss,” and told him that his daughter “w as 16 years old .” N.T. Jury Trial, 7/9/18 , at 53. Yannone testified that Hannon was “[l]oud, obnoxious, [and] seemed to [be] under the influence of something.” Id. Yannone offered to get help, but the child immedia tely drove away . Yannone continued to follow Hannon’s vehicle as it turned onto Neville Road in Wayne County , noting that it was “just all over the road.” Id. at 55. Hannon’s truck ultimately “stopped dead in the road . . . turned right . . . and ended up under a pine tree . . . totally off the road.” Id. At that point, Yannone watched Hannon’s two children exit the truck and run up the road

. Id. at 63

. Yannone approached Hannon’s truck where Hannon had “slid into the driver’s seat[,] put [the vehic le ] in reverse, and started backing up.” Id. at 56. At that point, Yannone “hurried up[ , reached through the truck’s window, ] put [the vehicle ] back in park” and removed the keys from theJ

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ignition. Id. at 56, 63. As Yannone called the police to have authorities come to the scene, he noticed Hannon exit his truck and slide something under the pine tree. Yannone retrieved the object, a bottle of “brandy or whiskey or something.” Id. at 56. Trooper Jamison Warner arrived on the scene in uniform i n his patrol

car . 6 He first spoke with Yannone who told him the above details ; Yannone

s urrendered a bottle of Black Velvet whiskey (the item Hannon discarded) and Hannon’s keys to the trooper

. Id. at 69. The trooper obtained information that revealed H annon was driving with a DUI

- suspended license. N.T. Motion in Limine and Omnibus Hearing, 7/2/18, at 14. When Trooper Warner approached Hannon and spoke wit h him, Hannon initially denied that his daughter had been driving the truck and said that he had been driving

. N.T. Jury Trial, 7/9/18, at 70. After the trooper told Hannon that he knew Hannon had attempted to drive his truck and that Hannon’s license had been suspended , Hannon changed his story and said that he never drove the vehicle. I

d. Trooper Warner ’s police report from the scene indicated that Hannon’s speech was slow and slurred , he had a strong odor of alcohol on his breath, had bloodshot eyes, looked disheveled, was uncooperative, and acted “slow and sluggish.” Id. at 71 . The trooper administered several field sobriety tests which indicated Hannon was impaired. Trooper Warner testified that in his experience as a law enforcement officer, which included more than one

_________________ __________ ______ ____ _______ 6 Yannone testified that the Hamlin Fire Department arrived on the scene before the police. N.T. Jury Trial, 7/9/18, at 65.J

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hundred prior DUI

- related arrests , he believed th at Hannon was not capable of safe driving. Id. at 72. At that point, Trooper Warner arrested Hannon and transported him to Wayne Memorial Hospi tal to have his blood drawn

. Blood t ests revealed a BAC of .228%. Hannon was then taken to PSP Honesdale where he was read his Miranda 7 warnings before he gave a n oral statement to T rooper John Decker . N.T. Jury Trial, 7/9/18 , at 83. In his statement, Hannon admitt ed that he had been drinking beer since 4 p.m. that day , was dru nk , could not remember how much alcohol he had consume d, and that he had been driving. Id. at 86. At some point thereafter, Hannon told Trooper Deck er that he remembered his daughter driving the truck “when some guy came up to the truck and yelled at him.” Id. at 87. Trooper Decker testified he smelled a strong odor of alcohol on Hannon’s breath when he interacted with him at the
station. Id. Hannon filed a pretrial motion in limine t o suppress his statements made at the accident scene , as well as the statements he made at PSP Ho nesdale

. On July 6, 2018, the trial court denied Hannon’s pretrial motion and also granted the Commonwealth ’s motion in limine to preclude the defense from eliciting any evidence regarding Yannone’ s 2005 crimen falsi summary conviction

. After a jury trial held in July 2018, Hannon was found guilty of the above

- mentioned crimes. He was sentenced on October 4, 2018, to an

_________________ __________ ______ ____ _______ 7 Miranda v. Arizona , 384 U.S. 436 (1966)

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aggregate term of imprisonment of 84

- 180 months ; the court also imposed fines , found him ineligible under the Recidivism Risk Reduct ion Incentive (RRRI) Act , and gave him credit for time served

. 8 Hannon filed a timely post

sentence motion that was denied on October 18, 2018. Counsel filed a notice of appeal and motion to withdraw simultaneously on November 15, 2018. The trial court stayed the appeal until the status of counsel’s representation was

c larified. On February 7, 2019, this Court entered an order reinstating Hannon’s appeal rights and ordered the trial court rule on the motion to withdraw. On March 21, 20 1 9, the trial co urt entered an order granting counsel’s motion to withdraw and appoint ed new appellate counsel. New counsel filed a timely Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Hannon presents the following issues for our review: (1) Whether the trial court abused its discretion by denying [Hannon’s] omnibus pre[]trial motion for suppression of [Hannon’s] statements when [Hannon] was not advised of his Miranda rights and the questioning officer admitted to [Hannon] being questioned in custody

. (2) Whether the trial court abused its discretion by granting the Commonwealth’s [m]otion in [l]imine and prejudicing [Hannon] by not allowing him to discuss the witness[’s] prior record at trial. Appellant’s Brief, at 5. In considering the denial of a suppr ession motion, the appellate standard of review is well

- settled. An appellate court must determine whether the record supports the suppression court’s

_________________ __________ ______ ____ _______ 8 The trial court ordered Hannon’s sentence run consecutive to a sentence he was curren tly serving in Lackawanna County.J

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factual findings and the legitimacy of the inferences and legal conclusions drawn from these findings. I n doing so, the court may consider only the prosecution’s evidence and the defendant’s evidence to the extent it is not contradictory. If the evidence presented at the suppression hearing supports these findings of fact, the appellate court may not reverse the [trial] c ourt unless its accompanying legal conclusions are in error. Commonwealth v. By , 812 A.2d 1250, 1254 (Pa. Super. 2002). Hannon claims that the trial court erred in denying his motion to suppress statements 9 he made to Trooper Warner at the a ccident scene where he was not first Mirandized

. Specifically , Hannon contends that because t he trooper knew that Hannon’s license had been suspended prior to speaking to
Hannon and where the trooper testified he would not have le t Hannon leave the scene , he was effectively in custody

. In order to determine whether a defendant was subject to a “custodial detention,” the United States Supreme Court “had devised an objective test entailing a determination of whether, in viewing the totality of the circumstances, a reasonable person would have believed he was free to leave.” By , 812 A.2d at 1255, citing United States v. Mendenhall , 446 U.S. 544, 554 (1980). “[ T ] he test for a custodial interrogation does not depend upon the subjective intent of the law enforcement officer

_________________ __________ ______ ____ _______ 9 In his suppression motion, Hannon argue d that two separate sets of statements should not have been admitted at trial. The first set relates to his admission to Trooper Warner at the scene that he had been driving the su bject vehicle at the time of the accident . The second set refers to statement s he made to Trooper Decker at PSP Honesdale where a “new custodial interrogation commenced.” Omnibus Pretrial Motion, 5/15/18, at ¶ 53. Hannon has abandoned any argument in his brief with regard to the statements made at the police station.J

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interrogator. ” Commo nwealth v. Williams , 650 A.2d 420, 427 (Pa. 1994). Rather, it focuses on the individual being interrogated and whether he or she “reasonably believes [his or her ] freedom of action is being restricted.” Id. “[ S ] tatements of an accused arising from a ‘ cu stodial interrogation ’ are inadmissible unless the prosecution shows that the procedural safeguards required by Miranda were afforded the accused. ” Commonwealth v. Gonzalez , 546 A.2d 26, 29 (Pa. 1988). Interrogation occurs when the police should know tha t their words or actions are reasonably likely to elicit an incriminating response from the suspect. Commonwealth v. Williams , 941 A.2d 14, 30 (Pa. Super. 2008) (en banc). Specifically, “the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.” Id. However, not every statement made by an individual during a police encounter amounts to an interrogation. Volunteered or spontaneous utterances are admissible even without Miranda warnings. Additionally individuals have a duty under the Vehicle Code to stay at the scene of an accident and identify themselves and their vehicle, as well as exhibit an operator’s license and proof of insurance ; these motorist responsibilities d o not require Mirandizing

. Gonzalez , supra . In evaluating whether Miranda warnings are necessary, courts must consider the totality of the circumstances , which include the basis for the detention, the duration of the detention, the location of the deten tion , whether
restraints were used, whe ther law enforcement showed, threat ened or use dJ

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force, and the methods of investigation used to confirm or dispel suspicions

. Williams , 941 A.2d at 31. The fact that the defendant was the focus of an investigation i s relevant in determining whether he or she was in custody, but does not per se require Miranda warnings. Id. Here, Trooper Warner testified that when he first approached Hannon at the accident scene, he asked him what had happened, told him he knew hi s license had been DUI

- suspended, informed him that a witness had s een Hannon’s daughter driving the vehicle before it ended up under the pine tree , and also told him that the witness told the trooper that he had observed Hannon try to get into the driver’s seat in an attempt to move the vehicle after the accident. N.T. Motion In Limine and Omnibus Heari ng, 7/2/18, at 10 , 14

. Trooper Warner testified that Hannon appea red unsteady on his feet during their discussion, was sweating a little bit, and had slurred speech and a st rong odor of alcohol on his breath. Id. at 11. Hannon proceeded to fail field sobriety tests administered by the trooper and was then taken into c ustody and transported to Wayne Memorial Hospital to have his blood drawn. Id. While Trooper Warner ’s physical actions were non

- confrontational in
nature (i.e., trooper d id not restrict Hannon’s freedom of movement, did not use or threaten to use any for ce, did not remove his weapon from his holster, did not place Hannon in handcuffs or otherwise restrain him, and did not block Hannon’s path of exit ), his verbal communication subjected Hannon to a custodial interrogation

. Specifically, when Trooper Warne r told Hannon that the witness informed him that he saw Hannon driving the car and that heJ

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knew Hannon had a DUI

- suspended license , Hannon was subjected to the functional equivalent of a custodial interrogation. Specifically, a reasonable
person in Hannon ’s position would not have believed that he was free to leave the scene

. See Commonwealth v. Snyder , 60 A.3d 165 (Pa. Super. 2013) (where officer’s words and conduct were likely to elicit incriminating response after officer explained to defendant warrant for his arrest had been issued and that witnesses had made statements against him to police, defendant was subjected to interrogation requiring issuance of Miranda warnings); Commonwealth v. DeJesus , 787 A.2d 394 (Pa. 2001) 10 ( Miranda warnings required before detective explained to defendant that he had been implicated in shootings and that witnesses had made statements about his involvement in shootings ; detective should have known that comments and conduct were reasonably likely to evoke effort on part of defendant to defend himself and give his own version of events). Here, Trooper Warner’s statements were more than general comments intended to elicit identifying information regarding whether Hannon owned the vehicle or had proof of insurance or a li cense ; moreover, they were not an inquiry to ascertain whether Hannon was injured or to obtain general information about the incident

. Cf. Commonwealth v. Gonzalez , 546 A.2d 26 (Pa. 1988) (where officers ask defendant at accident scene if s he was hurt and what had happened , defendant not in custody so Miranda warnings

_________________ __________ ______ ____ _______ 10 This case was abrogated on other grounds. See Commonwealth v. Cousar , 928 A.2d 1025 (Pa. 20017).J

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not required); Commonwealth v. Williams , 941 A.2d 14 (Pa. Super. 2008) (where purpose of officer’s questions was to obtain general information and where defendant admitted to officer at sc ene of accident that she was driver of vehicle before administered Miranda warning, statement did not need to be suppressed). Rather, T rooper Warner’s s tatements made Hannon aware that he was the particular subject of a criminal investigation and that he was not free to leave the accident scene because law enforcement knew he had a suspended license

. Under such circumstances, where his statements were likely to elicit an incriminating response, Trooper Warner was required to administer Hannon his Miranda rights. Williams , supra . Accordingly, the prosecution was not permitted to use any statements stemming from Trooper Warner’s interrogation of Hannon where he was not first Mirandized

. Gonzalez , supra . However, we conclude that the admission of H annon’s initial non

Mirandized statement was harmless error where Hannon voluntarily admitted he had been driving his car when Trooper Warner first came upon the accident scene and where witness Yannone testified that he saw both Hannon’s minor daughter an d Hannon in actual physical control of the vehicle during the incident. See Commonwealth v. Fay , 344 A.2d 473 (Pa. 1975) (failure to suppress statements not reversible error where Commonwealth can establish beyond reasonable doubt error was harmless) ; see alsoJ

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Commonwealth v. Henry , 599 A.2d 1321 (Pa. Super. 1991) (erroneous admission of confession can be constitutionally harmless)

. 11 In his next issue, Hannon contends that the trial court improperly granted the Commonwealth’s motion to preclude admissio n o f witness Yannone’s 2005 summary conviction for violating 34 Pa.C.S. § 906, making a false or fraudulent statement on a report or application to a gaming commission representative. Hannon claims that the exclusion of this evidence was in error where “M r. Yannone is the only witness to the alleged crimes” and where the probative value of admitting the evidence (as it relates to Yannone’s credibility) outweighs its prejudic ial effect. Appellant’s Brief, at 14. An appellate court’s standard of review is well settled: [T] he admissibility of evidence is within the sound discretion of the trial court and we will not reverse absent an abuse of discretion.

. . . An abuse of discretion may not be found merely because an appellate court might have reached a dif ferent conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill

- will, or such lack of support so as to be clearly erroneous. Commonwealth v. Leap , 2019 PA Super 323, *7 (Pa. Super. filed October 25, 2019) (cita tions omitted). Pennsylvania Rule of Evidence 609 states , in pertinent part:

_________________ __________ ______ ____ _______ 11 We also note that Trooper Warner’s failure to issue Miranda warnings at the scene di d not invalidate the incriminating oral statements Hannon made to Trooper Decker at PSP Honesdale after his subsequent receipt of Miranda warnings. See Commonwealth v Charleston , 16 A.3d 505 (Pa. Super. 2011).J

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Rule 609. Impeachment by E vidence of a Criminal Convi ct ion (a) In General

. F or the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere , must be admitted if it involved dishonesty or false statement. (b) Limit Evide nce on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years ha ve passed since the witness’s conviction or release from confinement for it, which ever is la ter

. Evidence of the conviction is admissible only if: (1) its prob ative value substantially outweighs its prejudicial effect ; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to c ontest its use.

Pa.R .E. 609(a) , (b) (emphasis added ). Here, Yannone’s conviction involved giving a false statement to gaming authorities , which is clearly a crime falling within the ambit of Rule 609 . The conviction, however, was handed down more than 10 prior to Hannon’s trial. Thus, pursuant to Rule 60 9 (b), evidence of Yannone’s conviction is admissible only if “its probative value substantially outweighs its prejudicial effect[

. ] ” Pa.R.A.P. 609(b)(1)

. 12 Instantly, the trial court found the evidence inadmissible where “there was no probative value to ou tweigh the prejudicial effect [it] would have caused[, t]he conviction [wa] s 14 years old[,] and a violation of the Game

_________________ __________ ______ ____ _______ 12 T here is no dispute that Hannon gave the Commonwealth notice of its intent to use Yannone’ s prior conviction at trial. See Commonwealth’s Motion in Limine, 5/9/18, at ¶ 4 (“On May 7, 2018, the Commonwealth received written notice from the [d]efense . . . that it intends to seek introduction at t rial of Mr. Yannone’s prior conviction for a summary violation of the Game La ws in 2005[.]”).J

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Laws has no relation to the subject matter of [Hannon’s] case.” Trial Court Opinion, 5/9/19, at 5.
T he purpose of Rule 609 is to use crimes involving dishonesty or false statement to attack the credibility of a witness. See Commonwealth v. Buterbaugh , 91 A.3d 1 247 (Pa. Super. 2014) (en banc); see also Commonwealth v. Howard , 823 A.2d 911, 913 (Pa. Super . 2003) ( Rule 609 “contemplate[s] the impeachment of a witness through the use of his or her prior convictions.”). Thus, the fact that Yannone’s gaming

- related crime had no subject matter relationship to the crime at hand is irrelevant. However, even tho ugh Yannone’s conviction did fit within the ambit of R ule 609 as one of dishonesty, we do not find that the trial court abused its discretion in finding it inadmissible under Rule 609(b). Here, Yannone’s testimony supported the Commonwealth’s prosecution of Hannon for his crimes, specifically his EWOC , REAP and DUI convictions. Accordingly, it was relevant at trial. Arguably, the evidence of Yannone’s prior summary conviction unde r section 906 was probative of his credibility. However, any probative va lue was substantially outweighed by the potential for unfair prejudice as Yannone was the only witness that could testify to support the Commonwealth ’ s case with regard to having personally observed Hannon’s eleven

- year - old daughter and Hannon drive his truck . Thus, we conclude that the trial court’s decision to exclude the Rule 609 evidence was not an abuse of discretion. Leap , supra . Judgment of sentence affirmed.J

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Judge Nichols concurs in the result of this Memorandum. Judge McLaughlin concurs in th e result of this Memorandum. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/30/ 19