Com. v. Bennis, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MEGAN BENNIS :
:
Appellant : No. 662 EDA 2020
Appeal from the Judgment of Sentence Entered January 14, 2020
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001932-2019
BEFORE: LAZARUS, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 04, 2020
Megan Bennis appeals from the judgment of sentence, entered in the
Court of Common Pleas of Bucks County, following her convictions after a non-
jury trial for driving under the influence of alcohol—general impairment
(DUI),1 and the summary offenses of careless driving2 and disregarding a
traffic lane.3 After careful review, we rely, in part, on the trial court opinion,
and affirm.
The trial court set forth the facts of the case as follows:
[O]n November 17, 2018, at 12:21 a.m., Officer Mark Leonhauser,
a twenty-two-year veteran of the Middletown Township Police
Department[,] with extensive experience conducting [DUI]
investigations, was on routine patrol when he was dispatched to
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1 75 Pa.C.S.A. § 3802(a)(1).
2 75 Pa.C.S.A. § 3714(a).
3 75 Pa.C.S.A. § 3309(3).
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U.S. Highway 1 in the area of Hulmeville Avenue on a report of
two motorists with flat tires. When he arrived at that location,
[Bennis’] vehicle, a green Nissan Xterra, was stopped in the traffic
lane that merges onto Route 1 from an access road[.] The
vehicle’s hazard lights were on. When Officer Leonhauser
approached the vehicle, he observed [Bennis] in the driver’s seat.
A male[,] identified as the driver of the other disabled vehicle[,]
was seated in [Bennis’] passenger seat[.] During his initial
contact with [Bennis], Officer Leonhauser noticed a strong odor of
alcohol emanating from [Bennis’] person. He also noted that
[Bennis’] eyes were red and bloodshot. Officer Leonhauser asked
[Bennis] to step out of the vehicle so that he could inspect the
damage and determine how [it] had occurred. A visual inspection
of [Bennis’] vehicle revealed that both tires on the right side []
were “blown out.” [Officer Leonhauser] observed “large gashes”
on the sidewalls of both tires and noted that the rims were
“chewed up.” In an attempt to identify any potential hazard to
other drivers, Officer Leonhauser asked [Bennis] what happened.
[Bennis] told the officer inconsistent [stories] and ultimately was
unable to explain how the damage occurred.
While speaking to [Bennis] outside her vehicle, the officer noticed
that [Bennis] was “a little unsteady on her feet” and that her
“balance was a little off.” Officer Leonhauser asked [Bennis]
where she was coming from and [Bennis] advised that she had
been working as a bartender for a wedding at The Winery in
Newtown, Bucks County, and was on her way home. [Officer
Leonhauser asked Bennis] three or four times if she had consumed
any alcohol. [Bennis] initially denied that she had anything to
drink, before she finally admitted that she had “a shot.” Upon
further questioning, [Bennis] admitted to consuming two or three
shots of vodka.
[Officer Leonhauser asked Bennis] to submit to field sobriety
testing. [Bennis] refused to provide a breath sample for a
portable breath test (PBT) [but] did [] perform various physical
dexterity and mental acuity tests. Officer Leonhauser testified
that of the four tests administered, [Bennis failed] to perform
[three] as instructed. [After] the [nine-step heel-to-toe balance]
test, [Bennis] was given the opportunity to repeat the test. She
refused.
Officer Leonhauser testified that, during his interaction with
[Bennis], she was “very argumentative” and “very difficult.”
When Officer Leonhauser attempted to place [Bennis] in custody,
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[she] ignored his multiple requests to place her arms behind her
back. Ultimately[, Bennis] was taken into custody and
transported to Saint Mary Medical Center where she was read the
[Pennsylvania Department of Transportation] DL-26B [blood-draw
consent] form. When [Officer Leonhauser asked Bennis] if she
would consent to [a] blood [] draw[] for purposes of chemical
testing, [Bennis] refused several times to give a verbal response
and merely shook her head. [Bennis] also refused to sign the [DL-
26B] form. Officer Leonhauser signed the form and [] an assisting
nurse sign[ed it] as a witness to [Bennis’] refusal.
Based on the totality of his observations, Officer Leonhauser
formed the opinion that [Bennis] was under the influence of
alcohol to a degree that rendered her incapable of operating a
motor vehicle safely. Officer Leonhauser’s account of his
interactions with [Bennis] was corroborated by a copy of the
[audio and video] recording retrieved from his motor vehicle
recording device and [Bennis’] DL-26B form[.] This [c]ourt found
Officer Leonhauser to be a credible witness.
Trial Court Opinion, 4/23/20, at 1-3 (internal citations omitted).
The court convicted Bennis of the above offenses on October 10, 2019.
On January 14, 2020, the court sentenced Bennis to serve five days to six
months on house arrest with immediate parole after expiration of the five
days, to pay a $300 fine, and to meet various other conditions. Bennis timely
appealed on February 13, 2020; Bennis and the court subsequently complied
with Pa.R.A.P. 1925.
On appeal, Bennis raises the following issue for our review: “Whether
the evidence was insufficient to convict [Bennis] of [DUI] when [Bennis] called
911 to report she and another driver experienced a flat tire on the same road,
the investigating police officer administered non-standardized field sobriety
tests, and [Bennis] refused to submit to a blood test?” Appellant’s Brief, at 4.
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Our Supreme Court has summarized the well-settled standard of review
for a challenge to the sufficiency of the evidence as follows:
When reviewing a challenge to the sufficiency of the evidence, we
must determine if the Commonwealth established beyond a
reasonable doubt each of the elements of the offense, considering
the entire trial record and all of the evidence received, and
drawing all reasonable inferences from the evidence in favor of
the Commonwealth as the verdict-winner. The Commonwealth
may sustain its burden of proof by wholly circumstantial evidence.
Commonwealth v. Segida, 985 A.2d 871, 880 (Pa. 2009) (citations
omitted).
Bennis was convicted under the following provision of the Motor Vehicle
Code:
(a) General impairment.
(1) An individual may not drive, operate or be in actual
physical control of the movement of a vehicle after imbibing
a sufficient amount of alcohol such that the individual is
rendered incapable of safely driving, operating or being in
actual physical control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(a)(1).
With regard to the proof necessary to sustain a conviction under section
3802(a)(1), we have previously stated that
the Commonwealth must show: (1) that the defendant was the
operator of a motor vehicle and (2) that while operating the
vehicle, the defendant was under the influence of alcohol to such
a degree as to render him incapable of safe driving. To establish
the second element, the Commonwealth must show that alcohol
has
substantially impaired the normal mental and physical
faculties required to safely operate the vehicle. Substantial
impairment, in this context, means a diminution or
enfeeblement in the ability to exercise judgment, to
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deliberate or to react prudently to changing circumstances
and conditions. Evidence that the driver was not in control
of himself, such as failing to pass a field sobriety test, may
establish that the driver was under the influence of alcohol
to a degree which rendered him incapable of safe driving,
notwithstanding the absence of evidence of erratic or unsafe
driving.
Commonwealth v. Gause, 164 A.3d 532, 541 (Pa. Super. 2017) (en banc)
(citations omitted).
Bennis first argues that “throughout her interaction with Officer
Leonhauser, she spoke coherently and clearly, maintained her balance,
climbed over a snow-covered median, recited the alphabet, counted
backwards, and walked a straight line.” Appellant’s Brief, at 11. Additionally,
Bennis points to the fact that, upon Officer Leonhauser’s arrival at the scene,
another vehicle, like her own, was disabled from a flat tire. Id. at 13. Next,
Bennis argues that the trial court improperly focused on what it “perceived as
[her] inappropriate emotional response to Officer Leonhauser” in concluding
Bennis was intoxicated. Id. at 15. Bennis supports this claim by asserting
that Officer Leonhauser was impatient with Bennis, that he became frustrated
with her “almost immediately upon encountering” her, and stated to her that
he was not “trying to speak [] in French.” Id.; see Trial Exhibit C-2. Bennis
concludes that her “attitude toward Officer Leonhauser shows an individual
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frustrated with a police officer whom she called for help, not someone who
was intoxicated.”4 Id. at 16.
We note that, from a practical standpoint, these claims go to the weight
of the evidence, rather than the sufficiency of the evidence. However, Bennis
has failed to preserve a weight of the evidence claim as required
by Pa.R.Crim.P. 607(A). Weight of the evidence claims may not be raised for
the first time on appeal. See Commonwealth v. Causey, 833 A.2d 165,
173 (Pa. Super. 2003) (“A claim that a verdict is against the weight of the
evidence must be raised in the first instance before the trial court.”).
Therefore, we will confine our discussion to the sufficiency of the evidence.
With regard to her sufficiency challenge, Bennis argues that Officer
Leonhauser used non-standardized field sobriety tests.5 Additionally, because
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4 We have previously stated that evidence of a defendant’s demeanor towards
the investigating officer is relevant and admissible. See Commonwealth v.
Teems, 74 A.3d 142, 145 (Pa. Super. 2013) (“The types of evidence that the
Commonwealth may proffer in a subsection 3802(a)(1) prosecution include
but are not limited to, the following: the offender’s actions and behavior,
including manner of driving and ability to pass field sobriety tests; demeanor,
including toward the investigating officer; physical appearance,
particularly bloodshot eyes and other physical signs of intoxication; odor of
alcohol, and slurred speech.”) (emphasis added).
5 At trial, Officer Leonhauser described how he administered several tests by
requesting that Bennis: (1) recite the alphabet from E to Z; (2) count
backward from 36 to 21; (3) perform a finger-dexterity test where he asked
Bennis to touch her fingers to her thumb “in [the] order [of] your index, middle
finger, ring finger, pinky finger, while counting out loud forward . . . then
backward” on each hand; and (4) perform a nine-step heel-to-toe balance test
on the roadway fog line. See N.T. Trial, 10/10/19, at 20-23. Officer
Leonhauser testified that Bennis completed the field sobriety tests with mixed
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“Officer Leonhauser could not articulate an objective or formal standard to
determine an individual’s performance other than failing to follow his specific
instructions[,]” Bennis claims that Officer Leonhauser’s opinion that Bennis
was incapable of safely operating a motor vehicle was not supported by
“competent evidence.” Id. at 11. We disagree.
The trial court found the evidence adduced at trial was sufficient to
prove DUI by relying on our decisions in Commonwealth v. Ragan, 652 A.2d
925 (Pa. Super. 1995), and Commonwealth v. Drake, 681 A.2d 1357 (Pa.
Super. 1996). In those cases, we found that non-standardized field sobriety
tests can demonstrate signs of intoxication. See Ragan, supra at 928(“[A]ppellant’s performance of the field sobriety tests is reflective of the
ordinary signs of intoxication discernable by a layperson. Therefore, the
evidence of appellant’s performance [on the ‘one leg stand’, ‘finger to nose’
and ‘walking in a straight line’ field sobriety tests] were properly admitted at
trial.”); see also Drake, supra at 1359 (results from tests requiring appellant
to count fingers back and forth with thumb and recite alphabet are admissible
because ordinary observer can form opinion as to whether individual is
____________________________________________
results: (1) Bennis successfully recited the alphabet from E to Z, see id. at
20-21; (2) Bennis counted backwards from 36 to 8, and then asked if she was
supposed to stop at 12, id. at 21; (3) Bennis successfully performed one hand
of the finger-counting test, but counted backwards on her second hand, id. at
21-22 (“[I]nstead of counting 1, 2, 3, 4, 4, 3, 2, 1, [Bennis] said 4, 3, 2, 1,
1, 2, 3, 4.”); and (4) Bennis walked the nine-step heel-to-toe balance test,
but “her feet were turned outward,” making the test easier, id. at 55-57.
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intoxicated based upon coordination and concentration as demonstrated by
acts and speech).
Bennis attempts to distinguish Ragan and Drake from her own case by
claiming that, in those cases, the arresting officers “articulated reasons why
the non-standardized field sobriety tests demonstrated intoxication.”
Appellant’s Brief, at 14. Bennis argues by comparison, stating that Officer
Leonhauser’s inability to “articulate any objective standard to demonstrate
[Bennis’] failure of such non-standardized field sobriety tests” renders the
evidence insufficient to sustain her convictions. Id.
With regard to opinion evidence of intoxication, we have previously
stated:
Intoxication is a matter of common knowledge, and opinions given
by lay people are permissible on the issue. However, the lay
witness must have sufficient facts on which to base his opinion
before he can express an opinion on another’s intoxication. The
court also looks to the witness’ personal knowledge and
observation.
Commonwealth v. Bowser, 624 A.2d 125, 133 (Pa. Super. 1993) (internal
citations omitted).
Here, Officer Leonhauser testified that he has twenty-two years of
experience serving as a police officer. N.T. Trial, 10/10/19, at 5. He testified
that he has worked as the primary officer on five-hundred-thirty-seven DUI
cases, and as an assisting officer on several hundred more. Id. at 6. Officer
Leonhauser further testified that he received training in field sobriety testing
in 2011, and a refresher course in 2016, and that he is certified in field sobriety
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testing. Id. at 5-6. Also, Officer Leonhauser explained that he learned several
field sobriety testing techniques from his fellow police officers through on-the-
job training. Id. at 49-50. Specifically, with regard to his on-the-job training,
Officer Leonhauser’s testimony proceeded as follows:
[Defense Attorney:] And where did you receive training to
administer [the counting backward test]?
* * *
[Officer Leonhauser:] Prior to my field sobriety standardized
testing in 2011[,] I had 14 years as a law enforcement officer with
hundreds of DUI arrests and investigations.
Learning from other officers, senior officers to myself[,] and my
experience as a police officer over the years, I learned different
tests, different techniques, to help determine if somebody has the
capabilities to physically multitask, to do responsibilities that one
person would do if you are operating a motor vehicle, such as
driving with my hand on the wheel or using my radio or looking at
my hair, things that a normal, rational, commonsense person
would do in their car.
So having them multitask, like you would do in your
vehicle[,] are some things [sic] that we use to indicate
whether somebody is impaired or not.
Id. (emphasis added).
At trial, Officer Leonhauser rendered his lay opinion that Bennis was
intoxicated such that she could not operate her motor vehicle safely. 6 Id. at
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6 At trial, Officer Leonhauser rendered his opinion as to Bennis’ intoxication as
follows:
So based on my totality of—my contact with her, speaking with
her, the odor of alcoholic beverage, her red, bloodshot eyes, her
explanation of the roadway, her statements about not drinking
and then drinking, I felt that she was under the influence of
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24. During his interaction with Bennis, Officer Leonhauser detected that she
had red, bloodshot eyes and she smelled of alcohol. Id. at 14. He noted that
Bennis told inconsistent stories of how her vehicle sustained such significant
damage, and ultimately how she could not explain it. Id. at 15-17. Officer
Leonhauser further noted that Bennis told different and inconsistent accounts
of how much alcohol she consumed that night. Id. at 19-20. He testified that
Bennis could not describe the roadway leading up to where he encountered
her disabled vehicle. Id. at 24. Finally, Officer Leonhauser noticed that
“throughout the interaction I had with [Bennis], there were times when I
would watch her where she was unsteady.” Id. at 55.
Officer Leonhauser had ample opportunity to observe Bennis. See
Bowser, supra. His opinion was based on the totality of his interaction with
her, which included speaking with Bennis initially when she remained inside
her vehicle, seeing her unsteady on her feet out of the vehicle, and observing
her behavior during her performance of several different field sobriety tests.
Indeed, the video and audio recording of their interaction reveals that Officer
Leonhauser spent nearly an hour with her from the time he encountered her
disabled vehicle through the end of their trip to St. Mary Medical Center. See
Trial Exhibit C-2. We find this was a sufficient factual basis for Officer
Leonhauser’s lay opinion regarding Bennis’ intoxication. See Bowser, supra;____________________________________________
alcohol, impaired and she could not operate a motor vehicle
safely.
N.T. Trial, 10/10/19, at 24.
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see also Drake, supra at 1359 (quoting Ragan, supra) (“[N]on-expert
testimony is admissible to prove intoxication where such testimony is based
upon the witness’ observation of the defendant’s acts and speech and where
the witness can opine as to whether the defendant was drunk.”) (emphasis
omitted); Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008)
(“[A] police officer may render an opinion as to whether a person is
intoxicated.”) (citation omitted).
Finally, we agree with the trial court and find the evidence was sufficient
to show that alcohol substantially impaired Bennis’ normal mental and physical
faculties required for her to safely operate a motor vehicle. See Gause,
supra; see also Trial Court Opinion, 4/23/20, at 6 (finding evidence
sufficient to convict Bennis of section 3802(a)(1) where evidence established
Bennis: (1) admitted that she drank two or three “shots” of vodka prior to
driving, after initially attempting to conceal that fact from Officer Leonhauser;
(2) had red and bloodshot eyes; (3) had compromised balance, evidenced by
her unsteadiness on her feet; (4) was unable to explain what caused damage
to her vehicle; (5) had mixed results in her ability to follow instructions during
field sobriety testing; (6) had an inappropriate and disproportionate emotional
response to Officer Leonhauser during his investigation; and (7) was conscious
of her guilt, evidenced by her refusal to provide both a breath sample and a
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blood sample for testing.7). See also Teems, supra at 147 (evidence of guilt
under section 3802(a)(1) sufficient where officer responding to report of
disabled vehicle observed defendant sitting in driver’s seat, in lane of traffic,
depressing brakes, car had lost its tires and was sitting on rims, defendant
could not recall if he struck anything or when or where accident might have
occurred, officer noticed strong odor of alcohol from defendant, defendant had
red, glassy eyes and slurred speech, defendant failed to blow properly into
PBT machine, and blood test at hospital revealed that defendant had BAC of
0.143). Relying on the trial court’s opinion, both elements of Bennis’ section
3802(a)(1) conviction have been proven beyond a reasonable doubt;
therefore, her challenge to the sufficiency of the evidence fails. See Segida,
supra; see also Trial Court Opinion, 4/23/20, at 6.
Judgment of sentence affirmed.
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7 See 75 Pa.C.S.A. § 1547(e) (Refusal admissible in evidence.) (“In any
summary proceeding or criminal proceeding in which the defendant is charged
with a violation of section 3802 or any other violation of this title arising out
of the same action, the fact that the defendant refused to submit to chemical
testing as required by subsection (a) may be introduced in evidence along
with other testimony concerning the circumstances of the refusal. No
presumptions shall arise from this evidence but it may be considered along
with other factors concerning the charge.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/20
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