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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES P. ENGLISH

Appellant :

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 862 WDA 2019

Appeal from the Judgment of Sentence Entered May 20, 2019
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP

- 20

- CR

- 0000116

- 2018

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J. *

MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 11, 2020

James P. English (Appellant), appeals from the judgment of sentence

entered in the Crawford County Court of Common Pleas, following his bench

trial convictions of driving under the influence 1 (DUI) and related offenses.

Appellant argues the court erred in finding his init ial encounter with

Pennsylvania State Police Troopers was a mere encounter and thus the court

erred in denying his motion to suppress. We affirm.

The trial court summarized the facts as follows: On December 23, 2017,

at approximately 12:23 a.m., Pennsylva nia State Police Trooper Cody J.

Northcott and Trooper Nicholas Miller were on duty, in uniform, when they

received a call from a witness who reported an accident at the intersection of

Lake Road and Leach Road in North Shenango Township. The witness stat ed

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 3802(a)(1)

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the vehicle had left the scene by traveling south on Lake Road and had front

end damage. The witness was unable to provide further description of the

vehicle. Trial Ct. Op. 8/30/18 at 1.

At the time the information was received the troopers were physi cally

located south of the accident scene and elected to canvas the area of the

Welcome Inn, a bar located approximately 1.9 miles from the accident scene.

In the parking lot, the troopers observed a Ford Edge with a broken headlight

and “ yellow paint tha t appeared to be shiny. ” Trial Ct. Op. at 2. The troopers

ran the license plate number and learned Appellant was the owner. The

troopers entered the bar and asked if Appellant was present. Appellant, who

was sitting at the bar with a small, full glass in front of him, responded in the

affirmative . The troopers asked if Appellant would step outside because they

did not want to question him inside the bar with other patrons present. O nce

o utside, Trooper Northcott asked Appellant if he knew why they wan ted to talk

to him. Appellant responded he knew it concerned the automobile accident in

which he was just involved. Upon further questioning, Appellant stated he

was traveling at a high rate of speed and was unable to stop at a stop sign,

which led him t o strike a gate where the accident occurred . Trooper Northcott

testified at the suppression hearing that Appellant never asked if he could

leave, nor was he told he could leave. Id. at 3. The troopers ’ vehicle

contained mobile video recording (MVR) with both video and audio and the

troopers advised Appellant he was being recorded.J

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While talking to Appellant , Trooper Northcott noticed a strong odor of

alcohol on his breath as well as glassy, bloodshot eyes and slowed speech.

Trooper Northcott asked Appellant if he had anything to drink before coming

to the Welcome Inn. Appellant replied he did not, and that he had been in the

bar about ten minutes. Trooper Northco tt nevertheless suspected Appellant

had been driving under the influence and asked him to undergo field sobriety

tests. Appellant acquiesced and ultimately failed the tests. Trooper Northcott

then handcuffed Appellant.

Trooper Northcott asked Appellant for his insurance information.

Appellant directed Trooper Northcott to retrieve it from the vehicle. While

inside the vehicle, Trooper Northcott detected an odor of mar ijuana and

questioned Appellant, i d. at 4, who responded that he smoked marijuana

earl ier in the day. See Appellant ’ s Brief at 9

. At no time did either trooper

advise Appellant of Miranda 2 warnings. Appellant was then transported to

the hospital, where he consented to a blood draw. The blood draw indicated

a blood alcohol concentration (BAC) of 0.135% as well as the presence of

cocaine and marijuana.

The Commonwealth charged Appellant with seven counts of DUI under

these subsections: general impairment; high rate of alcohol; Schedule I

controlled substance; Schedule II controlled substance; metabolite of a

controlled substance; impaired ability; and co mbination of alcohol and/or

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

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drugs. 3 The Commonwealth further charged Appellant with summary offenses

under failing to stop signs and yield signs, failing to drive vehicle at safe speed,

careless driving, and accidents involving damage to unattended vehicl e or

property 4

.

On March 29, 2018, Appellant filed a motion to suppress his stateme nts

and the blood alcohol test, alleging the troopers did not have reasonable

suspicion or probable cause to stop and question him. The trial court held a

suppression heari ng on August 2, 2018 and denied in part and granted in part

Appellant ’ s motion. The trial court determined , in viewing the totality of the

circumstances, t hat t he encounter between Appellant and the troopers began

as a mere encounter , evolved into an inve stigative detention and ended as a

custodial interrogation. Trial Ct. Op. at 7. The court thus declined to suppress

Appellant ’ s initial statements to the troopers . However, it suppressed the

interrogation and statements given after Appellant failed the field sobriety

tests and was handcuffed. Order, 8/30/18.

This matter proceeded to a bench trial upon stipulated evidence

. 5 On

3 75 Pa.C.S. § 3802(a)(1), (b), (d)(1)(i)

- (iii), (d)(2)

- (3).

4 75 Pa.C.S. §§ 3323(b), 3361, 3714(a), 3745(a).

5 At trial

, the parties stipulated to additional facts surrounding the incident on
December 23, 2017, including the results of the field sobriety tests and the
results of Appellant ’ s blood draw, which revealed a BAC of 0.135% and the
presence of cocaine and marijuana . Furthermore:

At some time after [Appellant ’ s ] arrest, Trooper Northcott

went to the intersection of Leach Road and S. Lake Road [

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April 3, 2019, the trial court found Appellant guilty on all counts. On May 20,

2019, the court sentenced Appellant to 60 mont hs ’ intermediate punishment,

with the first 60 days to be served in incarceration, followed by three months ’

house arrest. Appellant did not file a post

- trial motion. This timely appeal

followed. Appellant complied with the trial court ’ s order to file P a.R.A.P.

1925(b) statement of errors complained of on appeal.

Appellant presents one issue for our review:

Whether the trial court erred in denying Appellant ’ s motion to suppress pursuant to Pennsylvania Rule of Criminal Procedure

Rule 581?

Appellant ’ s Br ief at 4. Appellant contends the trial court erred in denying his

motion to suppress because the interaction with Troopers Northcott and Miller

at the Welcome Inn was not a mere encounter. Appellant believes the initial

encounter started as a custodial i nterrogation or, at least, an investigative

detention. Appellant further argues that Trooper Northcott ’ s suspicion that

Appellant was driving under the influence, without investigation of the

accident scene, was insufficient to establish reasonable suspic ion or probable

cause that Appellant ’ s vehicle was involved in an accident. Id. at 14.

Appellant contends that under the totality of the circumstances, the troopers

restrained his freedom and effectively seized him in violation of his

Trooper Northcott would testify that he observed damage to a
gate west of Leach Road and S. Lake Road intersection and t ire marks on the road approximately thirty feet in length.

Commonwealth ’ s Exh. 2 & 3

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constitutional rights, id. at 15, when the two troopers approached him in full

uniform with firearms holstered at their sides and asked him to speak with

them outside. Thus, Appellant believed he had no choice and was not free to

leave. 6

We adhere to the f ollowing standard:

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

6 In a footnote in Appellant ’ s brief, he notes that at the time of the suppression

h earing, this Court had not yet issued our decision in Commonwealth v.

Krenzel

, 209 A.3d 1024 (Pa. Super. 2019) (holding appellant did not make
knowing and conscious choice to submit to blood draw because officer failed

to, as statutorily obligated, advise of his right to refuse chemical testing and
the consequences arising therefrom)

, re arg. denied (July 12, 2019).
Appellant ’ s Brief at 9 n. 6. Appellant then contends he did not knowing ly and

conscious ly agree to submit to the blood draw because the troopers never
informed him of his rights. Appellant concedes this issue was not raised i n his

motion to suppress. See Pa.R.A.P. 903(a) ( “ Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal. ” );

Commonwealth v. Jones , 193 A.3d 957, 964 ( Pa. Super. 2018) ( defen dant
cannot raise, on appeal, claim tha t he was entitled to suppression on a theory

he did not raise before trial court)

.

While we acknowledge Krenzel was decided on the same day Appellant
was sentenced (May 20, 2019), we note he did not seek relief before the trial

court in a post

- sentence motion, include this issue in his court

- ordere d
Pa.R.A.P. 1925(b) statement, or present any meaningful legal argument for

this Court ’ s review in his appellate brief. Accordingly, we do not consider any

claim under Krenzel

. See Pa.R.A.P. 1925(b)(vii) (i ss ues not included in Rule
1925(b) Statement are waived), 2119(a) (a rgument section of brief shall

include discussion and citation of authorities as are deemed pertinent );

Commonwealth v. Rush , 959 A.2d 945, 949

- 51 ( Pa. Super. 2008) (this

Court cannot review legal theory in support of claim unless that particular
legal theory was presented to trial court ; furthermore, failure to present developed arguments and apply relevant law to facts of the case may result
in waiver of claim).J

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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 conc lusions are erroneous. 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 [trial court ’ s]
conclusions of law [ ] are subj ect to our plenary review.

Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre

- trial motion to suppress.

Commonwealth v. Shreffler , 201 A.3d 757, 763 (Pa. Super. 2018 ) (citation

omitted).

The main purpose of both the Fourth Amendment of the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution is to

protect “ citizens from unreasonable searches and seizures

. ” Commonwealth

v. Hill , 874 A.2d 1214, 1217 (Pa. Super. 2005) (citation omitted). “ Not every

encounter between citizens and the police is so intrusive as to amount to a

‘ seizure ’ triggering constitutional concerns. ” Id.

Traditionally, this Court has recognized three categorie s of

encounters between citizens and the police. These categories
include (1) a mere encounter , (2) an investigative detention, and
(3) custodial detentions. The first of these, a “ mere encounter ”
(or request for information), [needs] not be supported by any
level of suspicion, but carries no official compulsion to stop or to
respond. The second, an “ investigative detention ” must be
supported by reasonable suspicion; it subjects a suspect to a sto p and a period of detention, but does not involve such coercive
conditions as to constitute the functional equivalent of an arrest.
Finally, an arrest or “ custodial detention ” must be supported by
probable cause.J

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Commonwealth v. Collins

, 950 A.2d 1041, 1 046 (Pa. Super. 2008) (citation

omitted ). “ Miranda warnings are required on ly when a suspect is in custody.”

Commonwealth

. v. Pakacki , 901 A.2d 983, 987 (Pa. 2006).

In evaluating the level of interaction, courts conduct an
objective examination of the to tality of the surrounding
circumstances. We are bound by the suppression court ’ s factual
findings, if supported by the record; however, the question
presented

— whether a seizure occurred

— is a pure question of law
subject to plenary review.

The totality

- of

- the

- circumstances test is ultimately centered
on whether the suspect has in some way been restrained by
physical force or show of coercive authority. Under this test, no
single factor controls the ultimate conclusion as to whether a

seizur e occurred

— to guide the inquiry, the United States Supreme
Court and [the Pennsylvania Supreme Court] have employed an
objective test entailing a determination of whether a reasonable
person would have felt free to leave or otherwise terminate the

encounte r. “ [W]hat constitutes a restraint on liberty prompting a
person to conclude that he is not free to ‘ leave ’ will vary, not only
with the particular police conduct at issue, but also with the setting

in which the conduct occurs. ”

Commonwealth v. Lyles

, 9 7 A.3d 298, 302

- 03 (Pa. 2014) (citations

omitted).

Here, the trial court opined:

[W]e cannot find that the initial encounter was really much

different than a police officer asking someone at the scene of an
accident if that person was the driver. Certainl y the Trooper asked
[Appellant] to go outside and the Troopers were in uniform but
they essentially indicated they asked him to go outside as to not
question him in front of other patrons in the bar suggesting they

did not want to embarrass him.

[Appellan t] went out freely with the Troopers and the initial

question that he was asked was if he knew why the Troopers were

there to talk to him.J

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- He responded that he did know it was about the crash that he

had just been in.

Up to that point we are satisfied th at the interaction was a

mere encounter.

However, based on Trooper Northcott ’ s testimony on cross

examination the encounter evolved into at least an investigative

detention because the Trooper indicated that once [Appellant]

stated he was the driver of the vehicle that had been involved in

the crash [Appellant] was no longer free t o leave and we believe

that would have been apparent to him.

Trial Ct. Op. at 5

- 6.

Further, the trial court explained:

While we recognize any interaction with the Troopers did not

occur at the site of the accident, what did occur was essentially

equ ivalent to what would have happened at the scene of the

accident if [Appellant] was encountered by the police at that time.

The interaction was for a limited period of time and while there

was some repetitive questioning by the Trooper we believe that

the encounter was an investigative detention.

Based on that investigative detention and the fact [Appellant]

had been in an accident where he ran through a stop sign and

further that he had the odor of alcohol on his person as well as glassy eyes with slow s peech as indicated by the Trooper, there

was reason to administer field sobriety tests.

Once those were administered and [Appellant] was placed

under arrest he clearly was in custodial detention and any questioning at that point would have required that he be given

Miranda warnings.

Id. at 7.

Lastly, the court noted:

[Appellant ’ s] counsel spent quite a bit of time [at the suppression
hearing] trying to establish that the Trooper should not have

concluded that the vehicle in the parking lot of the Wel come Inn

which turned out to be [Appellant ’ s] was the vehicle in theJ

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accident the Trooper was investigating because of paint color not matching.

We do not think that is of any consequence since the Trooper

was aware that the vehicle he was looking for wou ld have fresh

front end damage which is exactly what [Appellant] ’ s vehicle had

when found in the Welcome Inn parking lot, even though there

can be a dispute as to color of the paint transferred from the

contact with the gate at the accident scene.

Id. at 7.

We agree with the trial court ’ s evaluation that the initial encounter

between the t roopers and Appellant was a mere encounter requiring no level

of suspicion . The initial approach and request carried no official compulsion to

stop, respond , or comply

. See Collins

, 950 A.2d at 1046 . The troopers did

not coerce or physically restrain Appellant. See Lyles

, 97 A.3d at 303.

Moreover, even if the initial confrontation was an investigative detention

as opposed to a mere encounter, as Appellant maintains, the troopers’ conduct

comports with constitutional limitations. See Pakacki , 901 A.2d at 987

. The

encounter encompassed a brief

, investigative detention supported by

reasonable suspicion, based upon the witness information received and the

troopers’ observations of Appellant’s vehicle with front end damage, in close

proximity, both temporal and geographic, to the situs of the accident.

Accordingly, the trial court properly granted in part and denied in part

Appellant ’ s motion to suppress.

J udgment of sentence affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/11/2020