Com. v. Bennett, W.

• Court: Superior Court of Pennsylvania
• Decided: February 17, 2022
• Docket: 880 MDA 2021
• Status: Unpublished

Opinion

J-S34020-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WILLIAM MATTHEW BENNETT : : Appellant : No. 880 MDA 2021

Appeal from the Judgment of Sentence Entered June 7, 2021 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0000746-2020

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: FEBRUARY 17, 2022

William Matthew Bennett appeals the judgment of sentence following

his convictions for Maximum Speed Limits and Driving Under the Influence of

Alcohol or Controlled Substance - Marijuana (“DUI”).1 He challenges the denial

of his motion to suppress and the sufficiency of the evidence. We affirm.

On January 12, 2020, Pennsylvania State Trooper Matthew Hartung

arrested Bennett for the above charges. At Bennett’s preliminary hearing,

Bennett argued that he was not impaired and that the corpus delicti rule

prevented any of his statements coming into evidence because the

Commonwealth failed to “show that a crime was committed,” specifically the

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1 75 Pa. C.S.A. §§ 3362(a)(3) and 3802(d)(2), respectively. J-S34020-21

crime of DUI. N.T., Preliminary Hearing, 06/11/20, at 34, 35. The court

rejected his argument and bound him over for trial.

Bennett then moved to suppress his statements and any evidence taken

from the vehicle, arguing that Trooper Hartung did not Mirandize him.2 At

the motion hearing, the Commonwealth and Bennett agreed to enter the

preliminary hearing transcript as evidence. The following evidence was

presented at the preliminary hearing.

Trooper Hartung testified that he is trained in field sobriety tests

(“FSTs”) and in the Advanced Roadside Impairment Detection Enforcement

(“ARIDE”), “which is more focused on drug DUIs than alcohol DUIs.” Id. at 9.

He also testified that he had made hundreds of DUI arrests, “[p]robably half”

of which were “drug-related DUI arrests.” Id.

Trooper Hartung testified that on January 12, 2020, he observed

Bennett driving at 71 mph in a 45-mph zone and proceeded to initiate a traffic

stop. Id. at 4-5. Bennett complied and pulled his vehicle over. When Trooper

Hartung approached Bennett’s vehicle, he observed Bennett in the driver’s

seat and four other people in the vehicle. Id. at 5. Trooper Hartung

immediately smelled a strong odor of burnt marijuana coming from the

vehicle. Id. He observed “that [Bennett] had symptoms of someone who

recently smoked marijuana based on his bloodshot eyes, dilated pupils.” Id.

2 Miranda v. Arizona, 384 U.S. 436 (1966).

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Trooper Hartung asked all four occupants of the vehicle for identification and

went to his patrol car where he radioed for back up.

He then returned to Bennett’s vehicle, and without handing any of the

identification cards back, asked Bennett to get out of the car and walked him

to the rear of Bennett’s vehicle. Id. at 6, 21, 23. Trooper Hartung told Bennett

that he could smell marijuana coming from the vehicle and asked him if there

was any marijuana in the car. Bennett replied, “[N]ot that [I’m] aware of.”

Id. at 25. Trooper Hartung then asked Bennett “if he had smoked marijuana,”

and Bennett responded that “he had smoked marijuana approximately three

hours earlier.” Id. at 7, 26.

Trooper Hartung testified that he then asked Bennett to perform four

FSTs. Id. at 7. Trooper Hartung said Bennett performed one – the horizontal

gaze nystagmus and vertical gaze nystagmus test – without signs of

intoxication. Id. at 8. However, three others produced signs that Bennett was

intoxicated. During the lack of convergence test, which tests the ability to

cross one’s eyes, he observed that Bennett’s eyes did not cross. The trooper

testified this is “a common indicator for marijuana usage.” Id. at 10. For the

Romberg balance test, Bennett “estimated the passage of 30 seconds in 24

seconds.” Id. According to Trooper Hartung, in performing the test, if the

participant is not within a “5-second threshold above or below 30 seconds, it

can be an indicator of impairment also.” Id. During the walk and turn test,

Bennett “missed heel to toe on step four[,]” “stepped off the line on step five

and missed heel to toe again[,]” “did not turn as instructed[,]” and “missed

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heel to toe on step seven.” Id. During the one leg stand test, “[Bennett] didn’t

exhibit enough clues to conclude that he was impaired based on that test.”

Id. at 12.

Trooper Hartung also observed that Bennett “had an odor of marijuana

coming about his person” and had eyelid and body tremors. Id. at 12, 25. He

testified that body tremors are an indicator of marijuana usage. Id. at 25.

However, the trooper conceded the weather was cold. Id.

After the FSTs, Trooper Hartung arrested Bennett for DUI. Id. at 13.

Trooper Hartung also testified that one of the occupants of the vehicle said

that “they were smoking while they were driving” but “[s]he didn’t clarify

which persons out of the five of them were or were not smoking.” Id. at 14,

33.

Following briefing, the trial court denied suppression. After a stipulated

bench trial, and following sentencing, Bennett instituted this timely appeal.

Bennett raises the following issues:

I. Did the trial court err in admitting into evidence incriminating statements made by [Bennett] at the time of his arrest where [Bennett] was not advised of his rights against self-incrimination under Miranda prior to custodial interrogation by the Pennsylvania State Police Trooper?

II. Did the Commonwealth fail to establish a prima facie case for Driving under the Influence of Controlled Substances where there was no evidence other than the inculpatory statements of [Bennett’s] himself that he had consumed controlled substances prior to operating his vehicle?

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Bennett’s Br. at 3.

Bennett argues that the trial court erred by admitting incriminating

statements he made without being given Miranda warnings. He alleges that

he was under arrest at the time of the statements and was subjected to

interrogation “designed to elicit a testimonial response.” Id. He acknowledges

that questions regarding a driver’s license or car registration do not require a

Miranda warning, but states that Miranda is required “once the trooper

recognizes what he believes to be the smell of marijuana[.]” Id.

We review the admission of evidence for an abuse of discretion.

Commonwealth v. Radecki, 180 A.3d 441, 451 (Pa.Super. 2018). An abuse

of discretion is not a mere error of judgment, “but is rather the overriding or

misapplication of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by

the evidence of record.” Id. (citation omitted). Pursuant to Miranda, “when

an individual is taken into custody or otherwise deprived of his freedom by the

authorities in any significant way and is subjected to questioning, the privilege

against self-incrimination is jeopardized.” Miranda, 384 U.S. at 478. When

that privilege is violated, any statements given should be excluded from

evidence. Id. at 479.

An individual is subjected to custody for purposes of Miranda if the

individual’s “freedom of action” is “physically denied . . . in any significant

way,” or a reasonable person in the same situation would reasonably believe

that the individual’s “freedom of action or movement is restricted by the

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interrogation.” Commonwealth v. Cooley, 118 A.3d 370, 376 (Pa. 2015)

(cleaned up). Courts must look at the totality of the circumstances when

considering whether an encounter was custodial. Id. Factors relevant to

determining if a person was in custody include: “the basis for the detention;

its length; its location; whether the suspect was transported against his or her

will, how far, and why; whether restraints were used; whether the law

enforcement officer showed, threatened or used force; and the investigative

methods employed to confirm or dispel suspicions.” Commonwealth v.

Witmayer, 144 A.3d 939, 948 (Pa.Super. 2016).

Considering the evidence in its totality, the encounter between Trooper

Hartung and Bennett did not rise to the level of custody. Miranda warnings

were therefore not necessary. Trooper Hartung asked Bennett to get out of

his vehicle based on the smell of burnt marijuana coming from the vehicle. He

then asked Bennett walk to the back of Bennett’s vehicle and explained that

he smelled marijuana. Trooper Hartung then asked if there was marijuana in

the vehicle and if Bennett had smoked marijuana.

No evidence here suggests that that Trooper Hartung restrained Bennett

during this questioning or that he made a show of force or threatened to use

force. Nor was there any evidence that he conducted the questioning in a

forceful or threatening manner, or that he made Bennett get out of the vehicle

and go to the back of his vehicle against his will. As for Bennett’s argument

that Trooper Hartung arrested him based on the smell of burnt marijuana

alone, this claim lacks foundation in the record. See Commonwealth v. Barr,

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No. 28 MAP 2021, 2021 WL 6136363, *15 (Pa. Dec. 29, 2021) (holding

troopers lacked probable cause based solely on smell of burning marijuana,

after enactment of Medical Marijuana Act). The evidence is clear that Trooper

Hartung arrested Bennett after the trooper not only smelled burnt marijuana

from the car and Bennett’s person, but also observed Bennett’s bloodshot

eyes, heard Bennett’s admission, and observed Bennett’s performance on

FSTs evidencing marijuana intoxication. The trial court did not abuse its

discretion when admitting Bennett’s statements.

Bennett also argues that the Commonwealth failed to meet its burden

to support the DUI conviction. He argues that “[t]here was no evidence that

[Bennett] was incapable of driving safely.” Bennett’s Br. at 23. He maintains

that there were no issues with his driving except his speeding and he

“performed well on almost all” the FSTs. Id. at 22. Bennett also claims that

even if his statements are admissible, “the corpus delicti rule dictates that his

statements alone are insufficient to prove an offense.” Id. at 23.

The corpus delicti rule is both a limitation on the admission of the

defendant’s inculpatory statement and a rule limiting the reliance on the

defendant’s inculpatory statement to support a finding of guilt. See

Commonwealth v. Cuevas, 61 A.3d 292, 295 (Pa.Super. 2013). We review

the trial court’s application of the rule for an abuse of discretion.

Commonwealth v. Dula, 262 A.3d 609, 637 (Pa.Super. 2021).

Bennett’s argument goes to the second prong of the rule – the

requirement that the Commonwealth present sufficient evidence for the fact

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finder to consider the defendant’s statement in determining guilt. That prong

of the rule provides that, in order for the fact finder to consider the defendant’s

inculpatory statement, the prosecution must prove beyond reasonable doubt

that a crime has been committed. See Cuevas, 61 A.3d at 295.3 This part of

the rule thus requires the Commonwealth to present evidence that: “(1) a loss

has occurred; and (2) the loss occurred as a result of a criminal agency.”

Dula, 262 A.3d at 637 (cleaned up). Only if it has done so can it “rely upon

statements and declarations of the accused to prove that the accused was, in

fact, the criminal agent responsible for the loss.” Id. (quoting

Commonwealth v. Taylor, 831 A.2d 587, 590 (Pa. 2003) (internal quotation

marks omitted)).

The statute at issue here – 75 Pa. C.S.A. § 3802(d)(2) – provides that

an individual is guilty of DUI when the “individual is under the influence of a

drug or combination of drugs to a degree which impairs the individual’s ability

to safely drive, operate, or be in actual physical control of the movement of

the vehicle.” 75 Pa. C.S.A. § 3802(d)(2). As applied to this case, then, in order

to establish the corpus delicti, the Commonwealth needed to show that

someone operated a motor vehicle while under the influence of a drug or

combination of drugs. See Commonwealth v. Zelosko, 686 A.2d 825, 826

(Pa.Super. 1996).

3See also Commonwealth v. Bullock, 170 A.3d 1109, 1118 (Pa.Super. 2017).

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Here, Trooper Hartung testified that Bennett showed signs of

impairment during portions of the FSTs; had bloodshot eyes; and smelled of

burnt marijuana emanated from his person. The Commonwealth thus

presented sufficient evidence for the fact finder to rely on Bennett’s

statements in finding him guilty. Bennett’s further contention that there was

no evidence to support a finding that he was incapable of driving safely also

lacks merit. As to Bennett’s contention that he passed some of the FSTs, this

argument goes to the weight of the evidence, not the sufficiency. Bennett’s

corpus delicti and sufficiency argument is meritless.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/17/2022

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