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filed: April 4, 1988.


Appeal from the Judgment of Sentence February 2, 1987 in the Court of Common Pleas of Chester County, Criminal, No. 2070-86.


Sarah R. Nichols, Assistant Public Defender, Paoli, for appellant.

Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.

Cirillo, President Judge, and Brosky and Beck, JJ.

Author: Cirillo

[ 373 Pa. Super. Page 26]

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Chester County. We reverse and remand for a new trial.

At approximately 1:30 a.m. on July 24, 1986, Patrolman Lester J. Neri of the Tredyffrin Township Police Department arrested the appellant, Richard Waggoner, for driving under the influence of alcohol. At the time, Officer Neri requested Waggoner to perform a field sobriety test. Following the test, Neri read Waggoner his Miranda warnings and advised him of the Implied Consent Law, 75 Pa.C.S. § 1547. Waggoner was then transported to Paoli Memorial Hospital. At the hospital, Waggoner refused to submit to a blood test. Subsequently, Waggoner was taken to the Tredyffrin Township Police Station where he was informed that he was to be videotaped. While on camera, Neri read Waggoner his Miranda warnings again. With one exception, Waggoner answered in the affirmative when asked if he understood each right as it was read to him. That exception occurred when Waggoner was asked by Neri if he had understood that a lawyer could be appointed for him free of charge before any questioning. Waggoner answered, "I can't afford a lawyer." Officer Neri responded to Waggoner's reply by simply continuing to read Waggoner the remaining Miranda warnings.

As the taping continued, Waggoner reenacted the field sobriety tests he had performed at the scene of his arrest.

[ 373 Pa. Super. Page 27]

During the tests, Waggoner asked Officer Neri for clarification of the instructions on how to perform various parts of the tests and commented several times on the quality of his performance. He made it clear during the videotaping that he had arthritis of his hip and knee but was still willing to cooperate with the testing. Upon completion of the field sobriety tests, Neri interviewed Waggoner. In the middle of the interview, Neri asked Waggoner if he had been drinking alcoholic beverages recently. After asking Neri to clarify what time frame was involved, Waggoner responded that he had been drinking alcohol three hours before his arrest and detention. After a few more questions, the interview and the taping terminated.

Following a jury trial before the Honorable Robert S. Gawthrop, III, Waggoner was found guilty of driving while under the influence of alcohol pursuant to 75 Pa.C.S. § 3731(a)(1). Waggoner's post-trial motions were denied, and he was sentenced to a period of imprisonment of not less than thirty days nor more than twenty-three months. This appeal ensued.

On appeal, Waggoner raises the issue of whether the trial court erred in failing to suppress the videotape depicting him making an inculpatory statement and reenacting the field sobriety tests. Waggoner argues that admission of the videotape violated his fifth and sixth amendment rights which are applicable to the states through the fourteenth amendment. Furthermore, Waggoner claims that he invoked his right to counsel by the responses he gave to Neri's second reading of his Miranda warnings during the videotaping.

I. Fifth Amendment

The fifth amendment provides each individual with the right not to be compelled to be a witness against oneself in any criminal case. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court established safeguards to ensure that this fifth amendment right is not abrogated by the actions of overzealous police during

[ 373 Pa. Super. Page 28]

    custodial interrogations. The safeguards created were stated by the Miranda court as follows:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. If, however, he indicates in any manner and at any state of the process that he wishes to consult with an attorney before speaking there can be no questioning.

Id. at 444-45, 86 S.Ct. at 1612. Unless these safeguards are followed, Miranda prohibits prosecutorial use of a defendant's statements.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court held that the fifth amendment "privilege protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature, and that the withdrawal of blood" and admission of a blood analysis report does not involve the compulsion prohibited by the fifth amendment. Id. at 761, 86 S.Ct. at 1830. Thereafter, in Commonwealth v. Kloch, 230 Pa. Super. 563, 327 A.2d 375 (1975), our Superior Court used Schmerber as the basis for ruling that Miranda warnings are not required when a defendant is requested to take a field sobriety test. Id., 230 Pa. Superior Ct. at 572, 327 A.2d at 381; see also Commonwealth v. Benson, 280 Pa. Super. 20, 29, 421 A.2d 383, 387 (1980) ("requiring a driver to perform physical tests . . . does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial and therefore no Miranda warnings are required."); accord, State v. Nece, 206 N.J.Super. 118, 501 A.2d 1049 (Law Div. 1985) (fifth amendment does not apply to physical movements involved in sobriety tests because the movements are non-testimonial). The Kloch court stated, "[T]he driver is

[ 373 Pa. Super. Page 29]

    the source of 'real or physical evidence,' compulsion of which does not come within the purview of the fifth amendment." 230 Pa. Super. at 572, 327 A.2d at 381 (citation omitted). Since requiring a defendant to perform a field sobriety test does not involve the type of compulsion associated with the fifth amendment, no Miranda warnings were required prior to videotaping Waggoner performing the physical acts involved in the sobriety tests. Commonwealth v. Conway, 368 Pa. Super. 488, 534 A.2d 541 No. 2570 Philadelphia 1987 (1987). However, in addition to performing the physical acts involved in the sobriety tests, Waggoner asked questions and made comments during the course of the sobriety tests. Furthermore, after the tests, Waggoner answered questions posed by Officer Neri. These verbalizations are within the purview of the fifth amendment. In Commonwealth v. Bruder, 365 Pa. Super. 106, 528 A.2d 1385, (1987), Bruder was stopped by a police officer for driving through a red light. Upon noticing Bruder's demeanor, the police officer asked him to recite the alphabet and walk in a straight line, heel to toe. The court held that although Bruder's act of walking in a straight line was a physical test not requiring Miranda warnings, his recitation of the alphabet was communicative in nature. Therefore, we held that because the alphabet recitation was elicited before Bruder had received his Miranda warnings, the recitation should have been excluded as evidence.

In Commonwealth v. Conway, Bruder was utilized in determining whether the audio portion of a videotaped sobriety tests should have been suppressed. In Conway, the defendant invoked his right to remain silent and his right to counsel while the Miranda warnings were given to him during the videotaping. Following Conway's invocation of these rights, he was filmed performing three sobriety tests. As he performed the tests, Conway spoke to get occasional clarification concerning the officer's oral instructions. The officer also requested that Conway count from 1,001 to 1,030 while balancing on one leg. After Conway had completed the tests, the police officer asked him questions,

[ 373 Pa. Super. Page 30]

    including how much and what he had drunk prior to his arrest. In concluding that these verbalizations were testimonial, the Conway court reasoned:

[Mr. Conway] was required to give more than physical evidence when he demonstrated his physical coordination on the sobriety tests. The test procedure was structured so that [Mr. Conway] was compelled to reveal his thought processes by asking for clarification of some of the officer's instructions, and his statements in response thereto manifest his confusion. Because confusion is arguably a sign of intoxication, [Mr. Conway] was forced to incriminate himself by 'communicating' his confusion while performing the tests . . . . That [Mr. Conway's] statements are communicative cannot be questioned in light of our conclusion that Mr. Bruder's recitation of the alphabet was communicative. Mr. Bruder was told by the police exactly what to say while the content of [Mr. Conway's] statements was more within his volitional control. By seeking clarification of the police officer's instructions, [Mr. Conway] expressed his thought processes far more than did Mr. Bruder in his recitation. There is a greater communicative or testimonial aspect in [Mr. Conway's] statements than in Mr. Bruder's recitation.

534 A.2d at 546, 547. In addition, the Conway court determined that the defendant's statements were compelled. The court theorized that the conduct of the police during the videotaping elicited the testimonial statements the Commonwealth sought to use against him at trial. Because of the pressure to perform the sobriety tests correctly, Conway was compelled to ask for a clarification of the police officer's instructions each time he was unsure whether he had understood them. Finally, the Conway court held that because the verbalizations during the videotape procedure were testimonial and compelled, they were covered by the fifth amendment; since Conway had not waived his Miranda rights, the audio portion of the videotape was inadmissible at his trial. Similarly in the case at bar, Waggoner's verbalizations during the videotaping must be suppressed unless he made a voluntary, knowing, and intelligent

[ 373 Pa. Super. Page 31]

    waiver of his rights after receiving his Miranda warnings.

II. Sixth Amendment

The decisions involving the sixth amendment have for the most part concerned questions of how "interrogation" is to be defined in that context, that is, whether the traditional conception of interrogation is to bound the parameters of the sixth amendment analysis. See generally Kamisar, Brewer v. Williams, Massiah, and Miranda: What Is "Interrogation"? When Does It Matter?, 67 Geo.L.J. 1 (1978). We are not faced with the difficult question here of whether or not what occurred between Waggoner and the police was or was not interrogation in any sense. The cases in which the question has been of importance involve scenarios in which police have made suggestive statements in attempts to elicit information without actually asking for it, See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), or a wired informer has pretended to play the role of confidant to an accused who was not then in a custodial situation, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In this case, there is no question that we are faced with a defendant in a custodial situation. The question we must determine is whether the sixth amendment had attached at that point, and if it had, whether any deliberate attempt had been made to elicit information from him.

Following the rulings of the Supreme Court of the United States, an accused is guaranteed the right to counsel when an attempt is made by the government to deliberately elicit information after the commencement of adversarial proceedings against him. Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985); Brewer, 430 U.S. at 401, 97 S.Ct. at 1240; Massiah, 377 U.S. at 206, 84 S.Ct. at 1203. Although the Supreme Court has read this to mean that no sixth amendment right attaches prior ...

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