J-S68033-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CORY HOUGHTON,
Appellant No. 569 EDA 2014
Appeal from the Judgment of Sentence Entered on February 11, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003830-2012
BEFORE: ALLEN, J., JENKINS, J., and MUSMANNO, J.
CONCURRING MEMORANDUM BY JENKINS, J.: FILED DECEMBER 09, 2014
I respectfully concur in the result.
In my view, the trial court erred by denying Houghton’s motion to
suppress. The moment of arrest occurred when Officer McCarthy stated:
“No, you don’t [get to go home after taking a portable breath test] because
you didn’t do well on the other tests.” At that point, Officer McCarthy
signaled his intention to take Houghton into custody, and a reasonable
person would not have felt free to leave. Following arrest, Officer McCarthy
did not give Houghton the required Miranda warnings. Thus, Houghton’s
response to the officer’s refusal to permit Houghton to go home – “I just
chugged three beers before I left. If I take the [portable breath test], I’m
not going to pass it” – should have been suppressed as a non-Mirandized
inculpatory statement prompted by custodial interrogation.
J-S68023-14
Nevertheless, I consider the trial court’s error to be harmless. Even
without the “chugging” statement, the evidence remains sufficient to sustain
Houghton’s conviction under 75 Pa.C.S. § 3802(a)(1). The remaining
evidence establishes that (a) Houghton violated the Motor Vehicle Code by
having his high beams activated while passing Officer McCarthy; (2) Officer
McCarthy detected a strong odor of alcohol on Houghton’s person and saw
that he had bloodshot, glassy eyes; (c) Houghton failed two of three field
sobriety tests; and (d) he refused to submit to a test of his blood alcohol
content at the hospital1. This evidence resembles other decisions in which
this Court has found the evidence sufficient to sustain the defendant’s
conviction under section 3802(a)(1). See, e.g., Commonwealth v.
Mobley, 14 A.3d 887, 890 (Pa.Super.2011) (defendant failed to stop at stop
sign even though police officer's cruiser was in full view, defendant failed
four field sobriety tests and was unable to recite alphabet, and officer
observed strong odor of alcohol emanating from defendant's vehicle and
defendant's slurred speech); Commonwealth v. Smith, 904 A.2d 30, 38
(Pa.Super.2006) (defendant drove onto grassy median, drove in wrong lane
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1
Although this refusal took place after Houghton’s arrest, it remains
admissible because it was not the product of a non-Mirandized custodial
interrogation. Moreover, in this appeal, Houghton only challenges the
court’s refusal to suppress his “chugging” statement, not his statement
refusing a blood test.
-2-
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of traffic, smelled of alcohol, was unsteady on her feet, was combative,
failed field sobriety tests, and refused blood alcohol test).
Thus, I concur for the reason that the admissible evidence
demonstrates that Houghton drove or operated his vehicle after imbibing a
sufficient amount of alcohol to render him incapable of driving his vehicle
safely.
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