Com. v. Williams

941 A.2d 14

COMMONWEALTH of Pennsylvania, Appellee v. Hope L. WILLIAMS, Appellant.

No. 827 WDA 2006.

Superior Court of Pennsylvania.

Argued September 6, 2007.

Filed January 3, 2008.

Gregory D. Metrick, Mercer, for appellant.

Patrick B. Farrone, Asst. Dist. Atty., Mercer, for Corn., appellee.

BEFORE: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN, LALLYGREEN, TODD, BOWES, GANTMAN, McCAFFERY, and DANIELS, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, Hope L. Williams, appeals from the judgment of sentence entered in the Mercer County Court of Common Pleas, following her convictions for driving under the influence ("DUI")¹ and careless driving². Specifically, Appellant asks us to determine whether the trial court erred when it denied her omnibus pre-trial suppression motion, where there was insufficient probable cause to arrest Appellant for DUI, and her incriminating statements were elicited before she was given proper Miranda³ warnings. We are also asked to decide whether the, court has the statutory authority to impose a sentence under the Intermediate Punishment Program ("IPP"), in light of the mandatory sentencing provisions of the DUI statute, which call for a fixed term of imprisonment. We hold, Under the totality of the circumstances, there was probable cause to arrest Appellant for DUI; Appellant was not "in custody" for purposes of Miranda when she made incriminating statements; and the court had the statutory authority and discretion to sentence Appellant to IPP, if both Appellant and the program qualified.⁴ Accordingly, we affirm.

¶ 2 The trial court opinion fully and correctly sets forth the relevant facts of this case as follows:

At approximately 6:12 a.m. on June 12, 2005, David R. Gregory, a police officer with Hempfield Township Police Department and 20 years experience, received a dispatch from 911 that a vehicle was stuck on the tracks on Kennard-Osgood Road. Officer Gregory arrived on the scene at approximately 6:13 a.m. and observed a Ms. Donahoe with [Appellant] who was lying on or near the roadway, about fifty (50) feet from the railroad tracks and the car.

Prior to Officer Gregory's arrival, Ms. Donahoe had observed [Appellant's] vehicle stuck on the railroad tracks, and stopped to offer assistance. The engine was running and the front wheels of the vehicle were still turning when Ms. Donahoe arrived on the scene. There was no one in the driver's seat, and [Appellant] was sleeping in the back seat. Ms. Donahoe attempted to arouse [Appellant] unsuccessfully, and then called 911 to report the incident.

Ms. Donahoe turned the engine off in [Appellant's] vehicle and put the transmission in park. Shortly thereafter, a passerby arrived and assisted Ms. Donahoe in removing [Appellant] from the vehicle and sat her alongside the roadway. [Appellant] never awoke during this time. Ms. Donahoe remained at the scene until the arrival of Officer Gregory.

Officer Gregory attempted unsuccessfully to wake [Appellant] who was lying on the ground on a chilly morning. Officer Gregory leaned over to detect [Appellant's] pulse and smelled a strong odor of alcoholic beverages, which he believed to be beer, on [Appellant's] breath.

Officer Gregory called for an ambulance and a tow truck. Prior to the arrival of the ambulance, [Appellant] sat up and was escorted back, to her vehicle with the assistance of Officer Gregory, who held onto [Appellant's] arm because she was unsteady on her feet. In response to questions from Officer Gregory, [Appellant] indicated that she had been alone "and that she had operated the vehicle; but [Appellant] was vague in her response when asked, "What happened?"

[Appellant] was unable to locate her driver's license or registration documents for the vehicle; however Officer Gregory was advised by 911 that [Appellant] was the owner. Officer Gregory observed that [Appellant] was confused and had difficulty answering questions.

[Appellant] denied having any injuries and was attended to by ambulance personnel; however [Appellant] refused transport by ambulance to the hospital. At approximately 6:41 a.m., Officer Gregory arrested [Appellant] for DUI, issued her Miranda warnings, and then transported [Appellant] to Greenville Hospital for a blood alcohol test. En route to the hospital, and after being Mirandized [Appellant] stated that she was the operator of the motor vehicle and admitted consuming Coors Lite.

Upon arrival at the emergency room of the hospital, [Appellant] was read her implied consent warnings from the DL-26 form. [Appellant] refused to submit to a blood alcohol test. Officer Gregory then offered [Appellant] a second opportunity to submit to a blood alcohol test, [] which [Appellant] refused a second time.

[Appellant's] vehicle had to be removed from the railroad tracks by a tow truck. One of the tires on the vehicle was a spare "donut." There were indications on the ground in the ballast around the railroad tracks that [Appellant's] vehicle made attempts to drive off the railroad tracks. The railroad crossing was in disrepair at its intersection with the paved roadway. No field sobriety tests were administered by Officer Gregory, in part out of his concern for [Appellant's] safety, and because [Appellant] was too unsteady at the time. Officer Gregory was unaware how long the vehicle was on the tracks or how long [Appellant] was asleep in the back seat of the vehicle prior to the arrival of Ms. Donahoe.

[Appellant] filed a[n] omnibus motion for pre-trial relief asserting the police lacked probable cause to arrest [Appellant] for DUI and sought suppression of the admission by [Appellant] that she was the operator of a vehicle involved in a single-vehicle accident because [Appellant] was not given Miranda warnings prior to being asked at the scene, "What happened?" and whether [Appellant] was the driver. By Order dated December 22, 2005, the Honorable Christopher J. St. John denied [Appellant's] motion. [Appellant] was subsequently convicted of driving under the influence of alcohol, 75 Pa.C.S. § 3802(a)(1), a second offense, an ungraded misdemeanor, not involving a BAC refusal, but involving an accident; and careless driving, 75 Pa.C.S. § 3714(a), a summary offense. [Appellant] was sentenced by Order dated April 5, 2006.

(Trial Court Opinion, dated June 28, 2006, at 2-5). The court sentenced Appellant to incarceration for a period of thirty (30) days, followed by five (5) months' probation. The court directed that "all periods of incarceration shall be served under qualified restrictive intermediate punishment on house arrest with electronic monitoring with drug and alcohol testing monitored by the Mercer County Intermediate Punishment Program (IPP) if [Appellant] qualifies and pays the costs thereof, with release for work, counseling, and medical and dental appointment." (Sentence, filed April 10, 2006, at 2). The court added specific conditions to Appellant's sentence of probation.

¶ 3 Appellant timely filed a notice of appeal on May 3, 2006. By order dated and filed May 30, 2006, the court ordered Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.1925(b), within five days of the date of the order. Appellant filed her Rule 1925(b) statement on June 7, 2006.⁵ On appeal, a three judge panel of this Court sua sponte requested en banc review to determine whether this Court's decision in Commonwealth v. Poncala, 915 A.2d 97 (Pa.Super.2006), appeal denied, ___ Pa. ___, 932 A.2d 1287 (2007) precludes imposition of IPP as an alternative sentence for first, second, or third DUI offenses. A majority of the commissioned judges agreed to en banc review.

¶ 4 Appellant now raises three issues for our review:

IS THERE PROBABLE CAUSE TO ARREST [APPELLANT] FOR DUI

WITHOUT A WARRANT WHEN SHE IS FOUND SLEEPING IN THE BACK SEAT OF A DISABLED MOTOR VEHICLE FOR AN UNKNOWN TIME, ALONG RAILROAD TRACKS? WHEN A SUSPECT IS MOVED BY THE POLICE TO ANOTHER LOCATION, AND TOLD TO "SIT TIGHT" AND WAIT FOR AN AMBULANCE, AND POLICE ARE LOOKING THROUGH HER VEHICLE, IS SUCH A SUSPECT IN CUSTODY REQUIRING MIRANDA WARNINGS TO BE GIVEN PRIOR TO ELICITATION OF STATEMENTS?

(Appellant's Brief at 6).⁶

MAY THE TRIAL COURT IMPOSE A COUNTY INTERMEDIATE PUNISHMENT SENTENCE OF HOUSE ARREST WITH ELECTRONIC SURVEILLANCE IN LIEU OF IMPRISONMENT WHEN THE DUI STAUTE CALLS FOR MANDATORY IMPRISONMENT?

(Appellant's Supplemental Brief at 6).

¶ 5 Initially, we address the issue raised in Appellant's supplemental brief. Appellant argues IPP is an alternative sentence available to eligible offenders convicted of their first, second, or third DUI offense. Appellant asserts this offense was her second DUI offense in ten years and she underwent pre-sentencing drug and alcohol assessment as required by the IPP statute. Appellant concedes the DUI penalties statute specifically requires fixed terms of imprisonment for repeat DUI offenders. Notwithstanding the mandatory DUI penalties, Appellant submits the court retains the discretion to impose IPP in qualified programs for qualified offenders, and the IPP statute does not conflict with the DUI penalties statute. Appellant concludes her IPP sentence is proper under both statutes, as within the court's discretion. We agree.

¶ 6 This case involves the interplay between the mandatory sentencing provisions of the DUI statute and the discretionary sentencing provisions of the Sentencing Code, which presents "a question of law that compels plenary review to determine whether the court committed an error of law." Commonwealth v. Anthony B. Williams, 871 A.2d 254, 262 (Pa.Super.2005). "As with all questions of law, the appellate standard of review is de novo and the appellate scope of review is plenary." In re Wilson, 879 A.2d 199, 214 (Pa.Super.2005) (en banc).

¶ 7 Section 9721 of the Sentencing Code states:

§ 9721. Sentencing Generally

(a) General Rule.—In determining the sentence to be imposed the court shall, except as...