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COMMONWEALTH v. KLOCH (09/23/74)

decided: September 23, 1974.

COMMONWEALTH
v.
KLOCH, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Franklin County, No. 199 of 1971, in case of Commonwealth of Pennsylvania v. Jerome J. Kloch.

COUNSEL

Kenneth E. Hankins, Jr., with him Thomas H. Crider, Blake E. Martin, and Crider, Martin, Bittle & Hankins, for appellant.

Edwin D. Strite, Jr., First Assistant District Attorney, with him John W. Walker, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.

Author: Spaeth

[ 230 Pa. Super. Page 568]

Appellant was convicted by a jury of operating a motor vehicle while under the influence of intoxicating liquor. The Vehicle Code, Act of April 29, 1959, P. L. 58, § 1037, 75 P.S. § 1037. On this appeal he raises numerous issues. After review of each issue we affirm.

A summary of the events surrounding appellant's arrest is essential to discussion of the issues he raises.*fn1 On January 29, 1971, shortly before 3:00 a.m., State Troopers Michael Belkelja and S. A. Bowser, who were assigned to the Chambersburg substation, received a dispatch over the radio that a motor vehicle was parked on the highway approximately two miles north of Chambersburg. Upon arriving at the scene the troopers found a 1970 Dodge coupe illegally parked*fn2 in the southbound lane with three quarters of the car on the

[ 230 Pa. Super. Page 569]

    roadway and the remainder on the shoulder of the road. The car's motor was running, the lights were on and the windows were shut. Appellant was seated in the driver's seat, slumped against the left door, apparently asleep. Trooper Belkelja awakened appellant by tapping on the door window and shouting. After appellant rolled down the window the troopers smelled a strong odor of alcohol. Belkelja asked appellant what he was doing there; appellant replied that he had pulled over to sleep. Appellant was then asked to produce his operator's license and car registration. He had difficulty doing so. When appellant got out of the vehicle he was able to stand but did so by leaning against the vehicle. After appellant alighted it became apparent to the troopers that the odor of alcohol was coming from appellant. Appellant was instructed to walk toward Belkelja, who was standing by the patrol car, parked behind appellant's car. This request, which is known as "a field sobriety test," was made to enable the troopers to determine if appellant was drunk. As appellant walked toward Belkelja he staggered and at one point had to be supported by Trooper Bowser. The troopers then put appellant in the back seat of the patrol car, read him the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), and advised him that he was under arrest for operating a vehicle while intoxicated. After driving appellant's car to a safe place off the highway Belkelja asked appellant how much he had had to drink. Appellant said he had had a few drinks with friends at the officers' club at the Letter-kenny Army Depot, which is about a mile from where appellant's car was found. Appellant was taken to the Chambersburg substation where he was given a blood test by a qualified physician. While there he was observed by Trooper Edward Miller, Jr., to be glassy-eyed. Miller also saw him staggering, and found his speech slurred.

[ 230 Pa. Super. Page 570]

On April 20, 1971, after a preliminary hearing, appellant was bound over for action by the grand jury. On August 13 the grand jury approved the indictment. On August 20 appellant presented a pre-trial motion to suppress evidence. As to most of the evidence the motion was denied. The court below, however, did order the results of the blood test suppressed. The Commonwealth appealed to this court, and on June 16, 1972, the appeal was quashed.*fn3

On August 18, 1972, appellant presented applications for dismissal, to quash the indictment, for change of venue, challenging the array of the grand jury, and challenging the array of trial jurors. The applications were dismissed and on August 31 and September 1 the case was tried before a jury.

On August 2, 1973, appellant's post-trial motions were heard by a court en banc. By opinion and order of October 18 the motions were dismissed.

I.

Appellant contends that his first statement to Trooper Belkelja, that he had pulled over to sleep, should have been suppressed because no Miranda warnings had been given him.

Under Miranda v. Arizona, supra, a person must be warned of his right to remain silent before the initiation of custodial interrogation. "Custodial interrogation" encompasses questioning conducted (1) "after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way," id. at 444, or (2) while he is the focus of an investigation, Commonwealth v. Feldman, 432 Pa. 428, 432,

[ 230 Pa. Super. Page 571248]

A.2d 1, 3 (1968). Warnings are not required where general on-the-scene investigatory questioning is conducted "to determine whether a crime has been committed or is in progress." Lowe v. United States, 407 F.2d 1391, 1394 (9th Cir. 1969).*fn4 Such questioning is not considered "custodial." Belsky, Criminal Procedure in Pennsylvania: The Pre-Trial Issues in Four Parts, 78 Dick. L. Rev. 209, 214 (1974). This is made explicitly clear in Miranda : "General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present (footnote omitted)." Miranda v. Arizona, supra at 477-78.

When these principles are applied to the present case it will be seen that Trooper Belkelja's initial question to appellant, in which he asked why appellant was illegally parked, was not "custodial interrogation" but rather "[g]eneral on-the-scene questioning." It is true that when the troopers walked up to appellant's car they intended to restrict his freedom of movement, but not in any significant way.*fn5 Appellant was after all illegally

[ 230 Pa. Super. Page 572]

    parked and had to be detained if a ticket was to be issued. Nor was the investigatory nature of the situation altered by the fact that when appellant rolled down the car window the troopers smelled alcohol. Belkelja's question was designed to determine how appellant's car came to be where it was. The question related as much to the fact that appellant was illegally parked as to the suspicious circumstances. It was not accusatory, nor was it necessarily intended to elicit a confession of drunk driving. Appellant points to nothing suggesting that the question was asked under circumstances that were hostile or coercive. When the question was asked, appellant was still in his own car. Under these facts Belkelja's questioning cannot be considered "custodial interrogation." See State v. Dubany, 184 Neb. 337, 167 N.W. 2d 556 (1969) (pickup stuck in sand, driver asked if he had been driving). See also Annot., 25 A.L.R. 3d 1076-1086 (1969). Accordingly, appellant's answer to the question was properly admitted despite the fact that he had been given no Miranda warnings.

Appellant also contends that Miranda warnings should have been given before the troopers asked him to take the field sobriety test. The contention has no merit. Miranda warnings are required by the Fifth Amendment; they inform a person that he cannot be compelled to be a witness against himself. Requiring a driver to walk in an effort to determine whether he is intoxicated does not violate his privilege against self-incrimination, for the evidence secured is not of a "testimonial or communicative nature." Schmerber v. California, 384 U.S. 757, 761 (1966). Rather, the driver is the source of "real or physical evidence," compulsion of which does not come within the purview of the Fifth Amendment. Id. at 763-64. See generally Commonwealth v. Robinson, 229 Pa. Superior Ct. 131, 324 A.2d 441 (1974). Cf. Commonwealth v. Rutan, 229 Pa. Superior Ct. 400, 323 A.2d 730 (1974).

[ 230 Pa. Super. Page 573]

II.

Appellant next contends that he was under arrest for drunk driving from the moment the troopers smelled alcohol, after he had rolled down his window; that the arrest was illegal as a warrantless arrest; and that his statements to the troopers, the results of the field sobriety test, and the observations of him by Trooper Miller, should have been suppressed as the fruits of the arrest.

"An arrest may be accomplished by 'any act that indicates an intention to take [a person] into custody and that subjects him to the actual control and will of the person making the arrest:' 5 Am. Jur. 2d, Arrest, § 1, p. 695." Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963). Appellant was not arrested until he was placed in the troopers' patrol car. Prior to that time the troopers did nothing that subjected appellant to their control and will or indicated an intent to take appellant into custody. Rather, the troopers engaged in a course designed to determine whether there was a basis for holding appellant.

It is true that appellant was not entirely free to leave before he was placed in the patrol car. As has been stated, the troopers intended to detain appellant at the time they walked up to his car. Their intention, however, arose from the fact that appellant was illegally parked. The odor of alcohol aroused their suspicions and gave them further cause for a brief detention of appellant. Brief detentions for investigatory purposes are constitutionally permissible where probable cause for a lawful arrest is lacking. Under Terry v. Ohio, supra, a police officer may stop a person if he observes specific instances of unusual and ...


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