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HomeMy WebLinkAbout02-159 CriminalCOMMONWEALTH V. WILLIAM H. DONOVAN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-0159 CRIMINAL OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J. December ,2002 The defendant was convicted of the summary offense of hunting over bait in violation of Section 2308(a)(8) of the Game and Wildlife Code.~ He was sentenced to pay the costs of prosecution and the statutorily mandated fine of $200. He has filed this timely appeal. In his concise statement of matters complained of on appeal the defendant raises the following issues: (1 .) We erred in failing to suppress statements he gave to the deputy wildlife conservation officer. (2.) The evidence was insufficient to sustain the conviction. (3.) Absent evidence as to his visual acuity, the conviction cannot stand. We will address each issue in the opinion that follows. Suppression of Defendant's Statements. The defendant filed a pretrial motion to suppress certain statements he had made ~ 34 Pa. C.S.A. § 2308(a)(8). NO. 2002-0159 CRIMINAL to the deputy wildlife conservation officer during the investigation of this matter. On May 28, 2002, we held an evidentiary hearing after which we denied the motion. On appeal defendant contends that we erred in failing to suppress those statements because they were made without the benefit of Miranda warnings.2 We will recite briefly the salient facts established at the evidentiary hearing. On October 10, 2001, about one half hour before sunset, Deputy Wildlife Conservation Officer Lynch was investigating a complaint that someone may be hunting over bait. While walking along a deer trail, he noticed that shelled corn had been scattered. He followed the scattered corn a distance of 137 feet until he came upon the defendant who was positioned 15 feet off the ground in a climbing portable tree stand. The defendant had a bow and hunting arrows with him. After identifying himself, Officer Lynch directed the defendant to lower his archery equipment and to come out of the tree. The defendant complied. The officer then advised the defendant that he was hunting in a baited area and showed him the corn. The defendant replied that he had not known the corn was present, denied placing it there and opined that squirrels may have been responsible for scattering it. It was this response, made without the benefit of Miranda warnings, which the defendant sought to suppress. There exist three levels of interaction between police and citizens:3 The first of these is a "mere encounter" (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an "investigative detention" must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as 2 gdiranda v. Arizona, 384 U.S. 436 (1966). ~ "Deputy game wardens are law enforcement officers..." In Interest of Me//orr, 327 Pa. Super 396, 476 A.2d 13, 14 (1984). NO. 2002-0159 CRIMINAL to constitute the functional equivalent of arrest. Finally, an arrest or "custodial detention" must be supported by probable cause. Commonwealth v. Phinn, 761 A.2d 176, 181 (Pa. Super. 2000) (quoting Commonwealth v. Ellis, 541 Pa. 285, 662 A.2d 1043, 1047 (1995) (citations and footnotes omitted)). We are satisfied that, under the facts of this case, the defendant was subject only to an investigative detention during which no Miranda warnings were required. An "investigative detention", is commonly referred to as a Terry stop.4 While the defendant was not free to leave, that does not mean he was in custody for purposes of Miranda.5 As the Superior Court has stated: It is important to note, however, that while a "seizure" of a suspect by police triggers Fourth Amendment protections, it does not trigger Miranda rights under the Fifth Amendment. "Seizures" and "custody" are analytically distinct concepts in the modern criminal constitutional law lexicon. The mere fact that an individual is subjected to a stop and a period of detention during which the individual is subject to the control of the police and not free to leave (a seizure) does not render such detention "custodial" so as to require Miranda warnings. "While a suspect may certainly walk away from a mere encounter with a police officer, every traffic stop and every Terry stop involves a stop and period of time during which the suspect is not free to go but is subject to the control of the police officer detaining him." (citations omitted). Commonwealth v. Ellis, 379 Pa. Super. 337, 354, 549 A.2d 1323, 1331 (1988). The Terry stop is designed to allow the officer to investigate his reasonable suspicion of criminal activity. As Mr. Justice Cappy stated in his concurring opinion in Commonwealth v. Martin, 534 Pa. 136, 626 A.2d 556 (1993), "A Terry stop is justified due to the brief nature of the encounter, the minimal intrusion upon the individual and the 4 Terryv. Ohio, 392 U.S. 1, (1968). s "Miranda warnings are required where a suspect is subject to custodial interrogation" (emphasis added). 778 A.2d 1215, 1221 (Pa. Super 1999). NO. 2002-0159 CRIMINAL need for swift police action in a manner consistent with protecting the officer's safety." 626 A.2d at 562. Whether the defendant was in custody for purposes of Miranda, or merely the subject of an investigative detention, depends upon the totality of the circumstances. "(P)olice detentions become custodial when, under the totality of the circumstance, the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of an arrest." Commonwealth v. Manion, 725 A.2d 196, 200 (Pa. Super. 1999). Our Supreme Court recognized that even the handcuffing of a defendant and placing him into the back of a patrol vehicle does not automatically turn a Terry stop into the functional equivalent of an arrest. Commonwealth v. Gwynn, 555 Pa. 86, 723 A.2d 143 (1998). The Court noted that those "actions during the Terry stop constituted permissible preservation of the status quo while the officer confirmed or dissipated his suspicions." 723 A.2d at 149. Under the totality of the circumstances in the instant case, we were satisfied that the interaction of the officer with the defendant did not rise to the level of a custodial detention. Therefore no Miranda warnings were necessary. Officer Lynch's actions were merely designed to get the information he needed to confirm or dissipate his suspicions, consistent with his own safety. They were no more coercive than a routine traffic stop for which Miranda warnings are not normally required.6 Consequently, we denied the defendant's request to suppress the statements obtained during the investigative detention. 6 See Pennsylvania v. Bruder, 488 U.S. 9, (1988) which held that an ordinary traffic stop involving questioning and field sobriety testing did not amount to custody for purposes of Miranda. NO. 2002-0159 CRIMINAL Sufficiency of the Evidence. A summary trial was held before us on October 1, 2002. The facts established at trial were as follows. On October 7, 2001, Deputy Wildlife Conservation Officer Lynch observed shelled corn scattered on a deer trail in Penn Township, Cumberland County, Pennsylvania. He also noticed a climbing tree stand overlooking the trail. However, it was not occupied on that date. On October 10, 2001, at about 6:10 p.m., the officer returned to the same location.7 The officer came upon the defendant who was hunting from the tree stand, 15 to 18 feet in the air with a bow and hunting arrows.8 Corn was scattered all along the deer trail he was overlooking. The nearest corn was only four feet from the tree containing the defendant's stand. There were at least six to eight piles of corn that were clearly visible from the tree stand.9 Section 2308(a)(8) of the Game and Wildlife Code provides in relevant part as follows: Unlawful devices and methods (a) General rule.-Except as otherwise provided in this title, it is unlawful for any person to hunt.., any game or wildlife through the use of: (8) Any artificial or natural bait, hay, grain, fruit, nut, salt, chemical, mineral or other food as an enticement for game or wildlife, regardless of kind and quantity, or take advantage of any such area or food or bait prior to 30 days after the removal of such material and its residue. 34 Pa. C.S.A. § 2308(a)(8). The Commonwealth Court has recently held that the "reasonable hunter" or "negligent hunter" standard is sufficient to impose liability under 7 There was still about one half hour of shooting time remaining. 8 It was archery season for white tail deer. 9 The corn was so obvious that the officer could get a handful by just bending over and picking it up from one spot. NO. 2002-0159 CRIMINAL this section. Commonwealth v. Sellinger, 763 A.2d 525, 526 (Pa. Com. 2000). In other words, "a violation of 34 Pa. C.S. § 2308(a)(8) occurs regardless of whether the hunter actually intends to take advantage of the bait if he continues to hunt in an area after he knows or has reason to know it is a baited area...". 763 A.2d at 527. In the instant case, we were satisfied beyond a reasonable doubt that the defendant was hunting in an area which he knew or had reason to know was baited. Therefore, we found him guilty. Defendant's Eyesight. The defendant's last issue also amounts to an attack on the sufficiency of the evidence. He contends that without evidence of his visual acuity, the Commonwealth failed to establish beyond a reasonable doubt that he saw or should have seen the corn. He bases this position on the fact that it is lawful for the blind or visually impaired to hunt in Pennsylvania. We discounted this argument because there was ample evidence from which we could infer that the defendant was neither blind nor visually impaired. In the first instance, we had the opportunity to observe him during the trial and he did not appear to be hampered by any visual impairment. We noted as much on the record,l° Furthermore, after hearing the evidence, we were satisfied that the defendant could see just fine. When confronted with the corn by the officer, he denied having placed it their. He pointed out that he had seen squirrels carrying corn onto the trail from an adjoining field which was 250 to 300 yards from his tree stand. ~ If he could see a squirrel carrying corn more then 200 yards away, he surely could have seen corn piled on the deer trail only a few feet Transcript of Proceedings, October 1, 2002, p. 43. Transcript of Proceedings, October 1, 2002, p. 21. NO. 2002-0159 CRIMINAL away. For those reasons, we concluded that his eyesight was such that he should have seen the corn on the trail. DATE Edward E. Guido, J. Jaime M. Keating, Esquire For the Commonwealth Karl E. Rominger, Esquire For the Defendant :sld