Commonwealth v. Conway
Commonwealth v. Conway
Opinion of the Court
The Commonwealth appeals from an oral suppression order issued by the Chester County Court of Common Pleas on September 23, 1986. The court found inadmissible the audio portion of a video tape of appellee performing sobriety tests after he had been arrested for driving while under the influence. We affirm.
Prior to reviewing the suppression order, we must determine whether it is appealable. In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), our Supreme Court held that the Commonwealth may appeal a suppression order as long as the Commonwealth certifies in good faith that the suppression order substantially handicaps or terminates the prosecution. Id., 506 Pa. at 545, 486 A.2d at 386. A prosecution is substantially handicapped whenever “the Commonwealth is denied the use of all their evidence,” id. The Commonwealth’s certification is “not contestable,” and “[i]t, in and of itself, precipitates and authorizes the appeal.” Id. See also Commonwealth v. Hunsberger, 358 Pa.Super. 207, 516 A.2d 1257 (1986) (“Dugger rule” applied). In the case before us, the Commonwealth has satisfied the certification requirement. We therefore find that the Commonwealth has an absolute right of appeal to this Court to challenge the validity of the September 23, 1986 suppression order. We now turn to the merits of the Commonwealth’s claims.
At the station, the police informed appellee of his Miranda rights and of the Implied Consent Law.
The suppression court concluded that the sound portion of the tape, in conjunction with the video, would both mislead the jury and violate appellee’s privilege against self-incrimination. Accordingly, the court proposed that a police officer give a “voice over” to explain the film while only the video portion of the tape be shown to the jury. The officer could also comment on whether he thought appellee had passed the tests.
The Commonwealth argues that the audio tape should not be suppressed on the ground that it would mislead the jury because the jury is capable of analyzing such evidence. Additionally, the Commonwealth concedes now, as it did at the suppression hearing, that both appellee's filmed invocation of his right to remain silent and the post-test questioning by the police officer are inadmissible. However, it argues that appellee’s “utterances” during the course of the tests were neither testimonial nor compelled and are, therefore, not protected by the privilege against self-incrimination. The Commonwealth maintains that because it seeks to introduce the audio portion of the videotape only to demonstrate appellee’s symptoms of intoxication, not for the substantive content of the words, the suppression court erred in excluding the audio portion of the tape based on appellee’s Fifth Amendment rights.
This appeal, therefore, presents one issue: did the trial court err when it suppressed the audio portion of the tape containing appellee’s spoken words, which were recorded while he performed the sobriety tests?
The court of common pleas determined that the sound portion of the tape could mislead the jury and would thus have a prejudicial impact on appellee’s case. Because this appeal challenges a suppression order, we are cognizant of our narrow scope of review. The trial court has “broad discretion as to the manner in which a trial is to be conducted, particularly with regard to the admission or exclusion of evidence.” Commonwealth v. Lumpkins, 324 Pa.Super. 8, 14, 471 A.2d 96, 99 (1984). Relevancy is, of course, a basic requirement for the admissibility of any evidence in a criminal trial. Id. However, not all relevant evidence is
In limiting the admissibility of the tape to the video portion only, the suppression court determined that the audio portion of the tape was misleading and potentially prejudicial because Mr. Conway, in response to the officer’s instructions, asks a series of questions, some of them “arguably incriminating.”
In the case before us, we agree with the suppression court and find that the probative value of the visual recording of Mr. Conway performing the sobriety tests, when coupled with the audio portion of the tape, is outweighed by its prejudicial impact. When the videotape is viewed in conjunction with the sound, it is apparent that Mr. Conway is crying. He also asks numerous questions to clarify the instructions read to him by the officer. The evidence, with the sound included, is highly inflammatory. The jury is likely to jump to the immediate conclusion that Mr. Conway was drunk when he took the tests, without considering other reasonable explanations for Mr. Conway’s behavior.
When evidence is inflammatory, the court must determine its essential evidentiary value. In this case, Mr. Conway has been charged with driving under the influence of alcohol pursuant to 75 Pa.C.S. § 3731(a)(1) (1987). Therefore, the Commonwealth must prove that Mr. Conway was “operating a motor vehicle ... while under the influence of alcohol to a degree which rendered him incapable of safe driving.” Commonwealth v. Griscavage, 512 Pa. 540, 544, 517 A.2d 1256, 1258 (1986); 75 Pa.C.S. § 3731(a)(1).
Also compelling the affirmance of the court of common pleas’ order is our agreement with the trial court’s determination that the audio portion of the tape contravenes Mr. Conway’s privilege against self-incrimination. We note that Pennsylvania courts have held that “[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.” Commonwealth v. Benson, 280 Pa.Super. 20, 29, 421 A.2d 383, 387 (1980). See also Commonwealth v. Kloch, 230 Pa.Super. 563, 572, 327 A.2d 375, 381 (1974). Field sobriety tests are not testimonial because they “merely require a driver to exhibit his or her physical coordination.” Commonwealth v. Romesburg, 353 Pa.Super. 215, 221, 509 A.2d 413, 416 (1986). The privilege against self-incrimination, therefore, presents no impediment to admission of the video portion of the tape. However, the admission of appellee’s verbal statements made during the physical tests does present a conflict with this privilege.
The privilege, set forth in the Fifth Amendment to the United States Constitution, “protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature.” Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908 (1966). See also Commonwealth v. Fernandez, 333 Pa.Super. 279, 284, 482 A.2d 567, 569 (1984) (quoting Holt v. United States, 218 U.S. 245, 252-53, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910) (Holmes, J.)) (the privilege prohibits using moral or physical compulsion to extort communications from an accused but does not
Testimonial evidence is “communicative evidence as distinguished from demonstrative or physical evidence,” Commonwealth v. Fernandez, supra, 333 Pa.Super. at 284, 482 A.2d at 569. The line between physical or demonstrative evidence, on the one hand, and testimonial or communicative evidence, on the other, is a blurred one. See South Dakota v. Neville, 459 U.S. 553, 561, 103 S.Ct. 916, 921, 74 L.Ed.2d 748 (1983) (case involving the admission into evidence of a refusal to take a blood-alcohol test). 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. We therefore conclude that Mr. Conway’s statements were testimonial.
Our recent decision in Commonwealth v. Bruder, supra, supports our determination that the statements made by Mr. Conway during the videotaping of his sobriety test performance, which the Commonwealth now seeks to introduce as evidence of his intoxication, are testimonial. In Bruder, the police observed the accused as he ran a red light and drove his car erratically. The officer stopped Mr. Bruder and noted signs of intoxication. The patrolman
In the case before us, Mr. Conway had been arrested and had invoked his right to remain silent. He never waived that right. Any compelled, testimonial statements made by him are protected by the privilege against self-incrimination. Using a “Bruder analysis,” we find that Mr. Conway’s statements are testimonial. In Bruder, the manner in which the accused recited the alphabet was offered by the Commonwealth as evidence of his intoxication. In the case before us, the Commonwealth seeks to introduce Mr. Conway’s statements for the same reason that the recitation was offered in Bruder. The Commonwealth asserts that the “evidentiary value is not in the substantive content of those utterances, but solely in the manner in which defendant expressed himself.” Appellant’s Brief at 11. 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
We turn to the second part of our two-part inquiry to determine whether Mr. Conway’s statements were compelled by police conduct. The Commonwealth argues that Mr. Conway’s statements were voluntary. We disagree. If a testimonial statement is given “freely and voluntarily without any compelling influences,” it is admissible, Commonwealth v. Sero, 478 Pa. 440, 453, 387 A.2d 63, 70 (1978). See also Commonwealth v. Bracey, 501 Pa. 356, 367, 461 A.2d 775, 780 (1983) (quoting Sero, supra). However, if police conduct is “likely or expected to elicit a confession or other incriminating statements,” Miranda warnings are required. Id. (emphasis added).. If the accused, like Mr. Conway, does not waive the privilege against self-incrimination, any testimonial statements obtained as a result of police conduct likely to elicit incriminating statements are inadmissible at trial. At the taping of Mr. Conway’s performance on the sobriety tests, the police officer administering the tests explained
Order affirmed.
. To administer the horizontal gaze nystagmus test, the police officer faces the subject. The officer then holds an object such as a pen or a pointer directly in front of the subject’s face and asks the subject to keep his head still while following the object with his eyes only. The officer then moves the object from side to side on a horizontal plane. The procedure tests the subject’s ability to focus.
. 75 Pa.C.S. § 1547 (1987). The statute provides in pertinent part that (a) General Rule. Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood ... if a police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a motor vehicle: (1) while under the influence of alcohol____
75 Pa.C.S. § 1547(a) (1987).
. Because neither party challenges the admissibility of the video portion of the tape, we are not called upon to make a judgment concerning the utility of this type of demonstrative evidence. We are, however, troubled by this “advance” in technology. We question whether such evidence is necessary in drunk driving cases since,
We note that had Mr. Conway challenged the admissibility of the video tape, as well as of the audio tape, the suppression court would apply the general two-step test to determine the admissibility of such demonstrative evidence. First, the court determines whether the evidence is inflammatory in nature. If the evidence is inflammatory, the court then decides whether the evidence is of "essential evidentiary value” such that its need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. See Commonwealth v. Groff, 356 Pa.Super. 477, 481, 514 A.2d 1382, 1384 (1986) (and cases cited therein). See also our discussion at pages 543 through 544 of the text.
The privilege against self-incrimination ordinarily presents no barrier to admission of demonstrative or physical evidence such as a video tape. A visual recording of a suspect’s legally compelled actions, though perhaps highly incriminating, would not, in general, constitute communicative or testimonial evidence. It therefore would not be protected by the privilege against self-incrimination. See Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 1831-32, 16 L.Ed.2d 908 (1966) (courts have usually held that the protection of the privilege does not extend to compulsory fingerprinting, photographs, measurements, writing or speaking for identification, appearing in court, assuming a particular stance, walking or making a particular gesture because the privilege is not violated by compulsion which makes a suspect the source of physical evidence).
. For instance, after the officer administered the horizontal gaze nystagmus test, Mr. Conway asked, "Did I pass?” N.T., September 23, 1986, at 20.
. Mr. Conway was also charged with violating 75 Pa.C.S. § 3731(a)(4), which would require the Commonwealth to prove that Mr. Conway was operating a motor vehicle and that his blood-alcohol content was at least 0.10%. Commonwealth v. Speights, 353 Pa.Super. 258, 262, 509 A.2d 1263, 1265 (1986). However, Mr. Conway refused to submit to any testing of his blood-alcohol level.
. The police officer read the test instructions in a monotone. He used little, if any, inflection or intonation. Some of the instructions were confusing. For instance, the officer explained the "walk the line” balancing test as follows:
Take nine heel to toe steps on the line, keeping your feet on the line. When you get to the 9th step, pivot on your lead foot, keeping your lead foot on the line, taking several small steps on your lead foot, such as this [officer demonstrates], and turn around. Then you’ll take nine more heel to toe steps back to the starting position. Understand that?
N.T., September 23, 1986, at 21.
Concurring Opinion
concurring:
I concur in the result reached by the majority. Faced with clearly prejudicial and excludable statements in the audio portion of the tape (i.e. appellant’s invocation of his Miranda rights), it was not an abuse of the trial court’s sound discretion to order the suppression of the entire audio portion of the tape rather than redact particular statements.
I do not join in the majority’s analysis of the alleged inflammatory nature of such audio or video tapes in general. Nor do I join in the majority’s alternate holding that appellant’s remarks during the sobriety tests were testimonial communications protected by the Fifth Amendment. I find neither discussion necessary to the disposition of this appeal. Furthermore, I do not perceive this appeal to have raised or decided what statements by appellant may be related to the factfinder at trial by means other than the audio portion of the video tape. We are called upon here only to decide whether the trial court abused its discretion
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellant, v. James CONWAY, Appellee
- Cited By
- 42 cases
- Status
- Published