Com. v. Bruder

• Decision Date: 21 July 1987
• Citation: 365 Pa.Super. 106,528 A.2d 1385
• Parties: COMMONWEALTH of Pennsylvania v. Thomas A. BRUDER, Jr., Appellant. 2176 Phila. 1986
• Court: Pennsylvania Superior Court

Page 1385

528 A.2d 1385

365 Pa.Super. 106

COMMONWEALTH of Pennsylvania v. Thomas A. BRUDER, Jr., Appellant.

2176 Phila. 1986

Superior Court of Pennsylvania.

Argued Jan. 13, 1987.

Filed July 21, 1987.

Carmen P. Belefonte, Media, for appellant.

Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com.

Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.

CIRILLO, President Judge:

This is an appeal from a judgment of sentence, following a non-jury trial, for driving under the influence of alcohol and related offenses. We reverse and remand.

The issues presented for our review are: (1) whether the criminal complaint should have been dismissed due to its defects; (2) whether certain evidence was properly admitted at trial; and (3) whether the verdict was supported by sufficient evidence.

A patrolman stopped appellant Bruder's car after the officer saw him pass a red light. The patrolman also witnessed what he described as Bruder's erratic driving behavior. When the policeman approached Bruder, he noticed indicia of intoxication. The patrolman testified that Bruder was unable to walk in a straight line, heel to toe, or recite the complete alphabet. Appellant was then arrested for driving under the influence of alcohol, and informed of his rights as required by Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 1624-27, 16 L.Ed.2d 694 (1966).

I

Appellant argues that the complaint filed against him was defective and, therefore, should have been dismissed. More specifically, appellant asserts that the complaint violated Pennsylvania Rules of Criminal Procedure 132 and 134.

The alleged violation by the Commonwealth of Rule 132 was its failure to include a verification with the complaint. Rule 132(9) requires that every complaint include a "verification by the affiant that the facts set forth in the complaint are true and correct to the affiant's personal knowledge or information and belief, and that any false statements therein are made subject to the penalties ... relating to unsworn falsification to authorities...."

In the case at bar, the arresting officer, in filing the complaint, used an old form which was designed to conform to an older version of Rule 132. The complaint did not conform to the current version of Rule 132 because it did not contain the required clause that false statements were subject to the penalties of unsworn falsification.

The trial court found that based on Pa.R.Crim.P. 150, the defect in the complaint did not warrant dismissal of the charges. Pa.R.Crim.P. 150 provides that a "defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, summons or warrant, or a defect in the procedures of this chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant."

The trial court noted that the defect concerning the absence of a verification was not raised in this case until after the preliminary hearing and suppression hearing. The trial court also observed, and we agree, that the appellant was aware of the charges against him and was not prejudiced by the defect in the complaint.

We express displeasure with the failure of the police to fully comply with the requisite form of a complaint. The plain language of Rule 150, however, does not permit us to discharge the complaint in this particular case because the defect was neither timely raised nor was it prejudicial to the appellant.

Appellant also contends that Pa.R.Crim.P. 134 was violated. Rule 134 provides that in any proceeding initiated by a complaint, the issuing authority shall ascertain and certify on the complaint that there is probable cause, in the form of an affidavit, for the issuance of process.

Notwithstanding appellant's assertion to the contrary, we discern no language in the rule, or in the comments to the rule, which require the police to personally appear and verify the complaint before the district justice involved in the case. Because we find no violation of Rule 134, we cannot dismiss the complaint on this basis.

Appellant also argues that the defective complaint was a violation of Pa.R.Crim.P. 130(d). We need not address this argument due to our holding that there were no fatal defects in the instant complaint.

II

Bruder argues that certain statements that he made after he was stopped, as well as the results of the field sobriety test, should have been suppressed.

When appellant's car was stopped, appellant stepped out and approached the police vehicle. The police officer asked appellant for his driver's license, registration and insurance card. Appellant returned to his car to obtain the requested information. After appellant had provided this information, the police officer asked appellant whether he had been drinking and appellant responded that he had. The police officer also asked appellant where he was going. Appellant responded that he was going home. Bruder argues that these responses should be suppressed because they were made before he was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).

Miranda warnings need be given only when one is subjected to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); Berkemer v. McCarty, 468 U.S. 420, 428-29, 104 S.Ct. 3138, 3144, 82 L.Ed.2d 317 (1984). In order to determine whether the responses made by appellant before he received his Miranda warnings should have been suppressed, we must decide whether they were elicited during custodial interrogation.

In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the United States Supreme Court ruled that a motorist was not in custody when he was stopped by a police officer who asked "a modest number of questions and requested him to perform a simple balancing test visible to passing motorists." 468 U.S. at 442, 104 S.Ct. at 3151. As in the case at bar, the driver in McCarty was stopped after being suspected of driving under the influence of alcohol, admitted that he had had a few drinks, and failed a balancing test before being advised of his Miranda rights. The Court in McCarty, however, refused to adopt a bright line test which would have definitively answered the question of whether Miranda applies to all traffic stops or whether a suspect need be advised of his rights only when he is formally placed under arrest. 468 U.S. at 441, 104 S.Ct. at 3151. Thus, we are afforded a measure of flexibility in deciding exactly when a suspect has been taken into custody.

In Pennsylvania, "custodial interrogation does not require that police make a formal arrest, nor that the police intend to make an arrest.... Rather, the test of custodial interrogation is whether the individual being interrogated reasonably believes his freedom of action is being restricted." Commonwealth v. Meyer, 488 Pa. 297, 307, 412 A.2d 517, 521 (1980) (quoting Commonwealth v. Brown, 473 Pa. 562, 570, 375 A.2d 1260, 1264 (1977)). Interrogation in this context is defined as questioning " 'expected to elicit a confession or other incriminating statements.' " Commonwealth v. Bracey, 501 Pa. 356, 367, 461 A.2d 775, 780 (1983) (quoting Commonwealth v. Sero, 478 Pa. 440, 453, 387 A.2d 63, 70 (1978)).

In Commonwealth v. Meyer, the Pennsylvania Supreme Court ruled that the driver of a car involved in an accident who was suspected of driving under the influence of alcohol and who was told by police to wait at the scene until additional police arrived was in custody for purposes of Miranda. The Meyer court reasoned that because the defendant had a reasonable belief that his freedom of action had been restricted, statements elicited before he received his Miranda warnings should have been suppressed. 488 Pa. at 307, 412 A.2d at 522. See generally Annotation, Right of Motorist Stopped by Police Officers To Be Informed at That Time of His Federal Constitutional Rights Under Miranda v. Arizona, 25 A.L.R.3d 1076 (1969) (cases collected).

We rely on Meyer in finding that Bruder reasonably believed that his freedom of action had been restricted. Undoubtedly, he was not free to leave when he made the statements elicited. That the policeman's questions were intended to elicit incriminating statements remains obvious. We cannot readily accept an alternative reason why Bruder was asked if he had been drinking. Thus, based on the reasoning in the Meyer case, we conclude that Bruder's response that he had been drinking should have been excluded as a statement made during custodial interrogation without the benefit of Miranda warnings. Meyer, 488 Pa. at 307, 412 A.2d at 522. See generally McCarty, 468 U.S. at 441 n. 34, 104 S.Ct. at 3151 n. 34 (United States Supreme Court cites Meyer in connection with discussion which intimates that duration of and circumstances surrounding traffic stop impact on the determination of whether there was a custodial interrogation for purposes of providing Miranda warnings). As we have established that custodial interrogation existed at the point that Bruder was asked whether he had been drinking, the subsequent response concerning his destination should also have been excluded.

Bruder's statement, "You don't know who I am," was admitted into evidence over the objection of counsel. Although this statement was made before Bruder received his Miranda warnings, it was a spontaneous utterance not made in response to a question by the police officer. In Commonwealth v. Bracey, 501 Pa. 356, 461 A.2d 775 (1983), the Pennsylvania Supreme Court ruled that a statement is admissible notwithstanding the lack of Miranda warnings if it was not given in response to police conduct which evoked an admission, or if it was freely given without compelling influences. Id. at 367, 461 A.2d at 780 (quoting Commonwealth v. Sero, 478 Pa. 440, 453,...