J-S06024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL CIVITELLA

Appellant No. 353 EDA 2014

Appeal from the Judgment of Sentence October 25, 2013

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0007319-2011

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

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

Michael Civitella appeals from the judgment of sentence, imposed by 

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

driving while operating privilege is suspended1and driving under the 

influence (“DUI”).2

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

the Radnor Township Police Department received a dispatch call for an 

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

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

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S. § 1543(b)(1).

2 75 Pa.C.S. § 3802(c).
J-S06024-15

- 2 -

When the officers arrived at the scene, the vehicle was no longer 

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

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

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

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

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

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

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

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

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

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

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

Upon further inspection, the officers observed severe front-end 

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

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

to the vehicle on the passenger-side.

Officer Radico asked Civitella what happened and if he needed medical 

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

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

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

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

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

identification, insurance, and registration, Civitella handed the officers his 
J-S06024-15

- 3 -

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

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

Based upon his observations, Officer Bannar believed that Civitella was 

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

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

Civitella his Miranda3 warnings.

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

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

him Miranda warnings prior to questioning. Hearings on that motion 

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

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

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

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

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

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

Civitella eligible for participation in the Recidivism Risk Reduction Incentive 

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

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

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

instant appeal.

____________________________________________

3 Miranda v. Arizona, 385 U.S. 436 (1966).
J-S06024-15

- 4 -

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

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

statements because he was subjected to custodial questioning without the 

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

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

Our standard of review for suppression rulings is well established:

[I]n addressing a challenge to a trial court’s denial of a 

suppression motion [we are] limited to determining whether the 

factual findings are supported by the record and whether the 

legal conclusions drawn from those facts are correct. Since the 

[Commonwealth] prevailed in the suppression court, we may 

consider only the evidence of the [Commonwealth] and so much 

of the evidence for the defense as remains uncontradicted when 

read in the context of the record as a whole. Where the record 

supports the factual findings of the trial court, we are bound by 

those facts and may reverse only if the legal conclusions drawn 

therefrom are in error.

Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa. Super. 2010).

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

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

product of a custodial interrogation without proper Miranda warnings. 

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

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

he made the statements to the arresting officers.

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

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

formal arrest.” Commonwealth v. Haupt, 567 A.2d 1074, 1077-78 (Pa. 
J-S06024-15

- 5 -

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

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

A “mere encounter” (or request for information) need not be 

supported by any level of suspicion, but it carries no official 

compulsion to stop or respond. An “investigative detention” 

must be supported by reasonable suspicion; it subjects the 

suspect to a stop and a period of detention, but does not involve 

such coercive conditions as to constitute the functional 

equivalent of arrest. A “custodial detention” must be supported 

by probable cause; it is deemed to arise when the conditions 

and/or duration of an investigating detention become so coercive 

as to be the functional equivalent of arrest. Formal arrest 

requires probable cause, and needs no further definition. Among 

the factors the court utilizes in determining whether the 

detention is custodial or investigative are: the basis for the 

detention; the duration; the location; whether the suspect was 

transported against his will, how far, and why; whether 

restraints were used; the show, threat, or use of force; and the 

methods of investigation used to confirm or dispel suspicions.

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

When police interrogate an individual, they must administer proper 

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

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

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

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

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

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

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

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

assistance. At trial, Officer Radico testified to the following:
J-S06024-15

- 6 -

Q [District Attorney]: What’s the first thing you do when you 

see this person [referring to Civitella]?

A: His eyes were shut so I start, you know, asking him if he’s 

okay. And you know he opened his eyes. He said yeah. I said 

are you okay? He said yeah. I said what happened? He said I 

hit some rocks at the trail. He said no big deal. I said are you 

sure you’re okay? Yeah, I’m okay. I said okay. Then I started 

my investigation just that he was the driver of the vehicle for the 

accident.

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

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

testimony presented by Officer Bannar at the suppression hearing:

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

Civitella under arrest?

A: No.

Q: Would he have been free to go?

A: At that point in time no, because he has a strong odor of 

alcohol on his breath, and on his person so at that point in time 

he presented enough evidence that he was actually intoxicated 

and that he actually was driving this vehicle when he said he 

struck these rocks. No.

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

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

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

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

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

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

need to provide Miranda warnings at that time.
J-S06024-15

- 7 -

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

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

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

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

Based on these observations, the officers developed a reasonable suspicion 

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

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

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

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

sufficient to reasonably suspect DUI occurred); see also Commonwealth 

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

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

with suspicion that he operated vehicle while intoxicated).

As discussed above, an investigative detention must be supported by 

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

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

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

officers had reasonable suspicion to believe Civitella had operated a vehicle 

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

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

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

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

investigative detention, whereby the police asked questions in an 
J-S06024-15

- 8 -

investigatory manner. The whole interaction between Civitella and the 

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

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

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

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

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

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

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

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

movement.

Although the officers testified that Civitella would not have been free 

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

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

test focuses on whether in the individual being interrogated reasonably 

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

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

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

restricted prior to his arrest.

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

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

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

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

believe that his movement was restricted. Because he was not in custody, 
J-S06024-15

- 9 -

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

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

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

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/2015