Com. v. Swirsding ( 2017 )

J-S32045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOHN SWIRSDING
Appellant No. 2375 EDA 2016
Appeal from the Judgment of Sentence July 6, 2016
in the Court of Common Pleas of Delaware County Criminal Division
at No(s): CP-23-CR-0007084-2015
BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 30, 2017
Appellant, John Swirsding, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas following a bench
trial and his convictions for public drunkenness,1 possession of marijuana,2
and possession of drug paraphernalia.3 Appellant asserts that the evidence
was insufficient to support his conviction for public drunkenness, and that
the trial court erred in denying his motion to suppress the contraband
discovered in his vehicle during an inventory search. We affirm.
The trial court set forth the facts of this case as follows:
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 5505.
2
35 P.S. § 780-113(a)(31).
3
35 P.S. § 780-113(a)(32).
J-S32045-17
Appellant’s arrest and convictions arise out of a 911 call for
a possible domestic situation that Officer Robert McCreight
of the Haverford Township Police Department responded to
on September 12, 2015 at or about 4:00 a.m. in the area
of the 2700 block of Belmont Avenue in Havertown,
Pennsylvania.
Officer Robert McCreight of the Haverford Township
Police Department was on patrol duty September 12, 2015
when he received a call over the DELCOM for a possible
domestic situation along the 2700 block of Belmont
Avenue in the Township involving two subjects fighting and
a suspect running over objects in the driveway with his
vehicle, a green Range Rover.
Upon approaching the area along the 2600 block of
Haverford Rd., Officer McCreight identified a green Range
Rover parked in front of a 7-11 store at 2606 Haverford
Road fitting the description of the involved vehicle.
The area was desolate but for the empty lots of the
surrounding businesses and the Range Rover was parked
in front of the 7-11 store. As Officer McCreight pulled in to
the lot the vehicle was neither running nor occupied.
Officer McCreight began to run the green Range Rover’s
tag information. As he did Appellant exited the 7-11 store
and approached the officer. Officer McCreight asked the
defendant whether the vehicle was his and the defendant
responded that it was his and a conversation ensued.
Appellant explained that he was having an argument
with his wife because she was purportedly cheating on
him. Appellant stated he may have also struck another
vehicle although his vehicle had no damage. As he spoke,
Officer McCreight detected an odor of alcohol and observed
[] Appellant’s erratic behavior. Appellant’s mood ranged
from laughing about the situation to nearly crying and
breaking down. Because of the behavior, he was placed in
the back of the police cruiser. Appellant did admit to
drinking earlier in the evening with his wife.
Based on all of the circumstances and his experience,
Officer McCreight believed Appellant’s behaviors indicated
-2-
J-S32045-17
he was under the influence possibly of alcohol.
Specifically, based on the odor emanating from the
Appellant, Appellant’s admission that he had been
consuming alcohol, his mood swings and very erratic
behavior.
Officer McCreight testified that although Appellant
would not be arrested for any domestic issue or DUI, he
would be arrested for Public Drunkenness. Officer
McCreight did not feel it was safe for [] Appellant to be
driving. When it was decided that Appellant was going to
be locked up for Public Drunkenness he was placed in
handcuffs and replaced back into the police cruiser.
Since [Appellant’s] vehicle was parked in the lot of the
7-11 convenience store, Officer McCreight was compelled
to ask the person in charge if the vehicle could remain
there. He was told the vehicle would have to be removed.
Therefore, the on-duty tow, K&S Towing in Haverford was
called to come and impound the vehicle.
The Haverford Township Police Department has a
standing written impoundment and inventory search policy
that requires the officer to search the vehicle for any
valuables and create a form identifying all of the recovered
objects so there can be no claim of loss. []CS-1 was
marked for identification and identified as the Haverford
Township Police directive regarding inventory search of
vehicles[].
Officer McCreight testified that since he was not
permitted to leave the vehicle on private property the
vehicle was to be impounded. Pursuant to the policy he
conducted a search of the vehicle and when he opened the
door he was immediately struck with the strong smell of
fresh marijuana which he described as overwhelming.
Plainly observable in the center console there was a
multicolored glass smoking bowl and a 4x6 white vacuum
sealed bag which he recognized as a bag commonly used
to package narcotics to hide the smell.
All of the seized contraband was in plain view upon
opening the car door. The bowl was seized and the
marijuana was seized.
-3-
J-S32045-17
Trial Ct. Op., 1/16/17, at 2-5.
On July 6, 2016, following the trial court’s denial of Appellant’s motion
to suppress evidence, Appellant was convicted of the aforementioned
charges. That same day, the trial court sentenced Appellant to thirty days of
probation for public drunkenness, thirty days of probation for possession of a
small amount of marijuana, and six months of probation for possession of
drug paraphernalia. All sentences were to be served concurrently. On
August 1, 2016, Appellant filed the instant timely appeal and subsequently
filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. The trial court filed a responsive opinion.
Appellant raises the following issues for our review:
1. Did the trial court err in its decision to not quash the
[charging] public drunkenness as [] Appellant was not
given any type of objective testing, had not behaved in a
matter consistent for charging him with the summary
offense of public drunkenness and, in fact, [] throughout
the initial meeting as well as police interrogation acted
peacefully and spoke with the officer in a peaceful fashion
and if this information had been quashed by the court it
would therefore eliminate the probable cause for the
subsequent arrest and detention of [] Appellant?
2. Did the trial court err in denying that Appellant was a
business invitee and therefore did not enjoy the
protections given under the law to said business invitee
directly or indirectly connected with his business dealing
with the possessor of the property? Additionally, did the
Commonwealth show that the police officer spoke with a
true and correct agent of the business who had permission
to speak with the police about possessions of [] Appellant
or order the possessions be removed from the property
forcibly?
-4-
J-S32045-17
3. Did the trial court err by allowing the warrantless
seizure and towing of Appellant’s immobilized but safely
parked vehicle as well as the trial court’s failure to
suppress 2.9 grams of marijuana and drug paraphernalia
which was found in the closed center console of the
Appellant’s motor vehicle in direct contravention of
Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013).
Appellant’s Brief at 4-5.
In his first issue, Appellant claims that the evidence was insufficient to
support his conviction for public drunkenness because the Commonwealth
failed to present any evidence that he was “manifestly under the influence of
alcohol or a controlled substance.” Appellant’s Brief at 18. Appellant points
out that the arresting officer, Officer McCreight, testified that when he
approached Appellant at the time in question, Appellant spoke to him in a
peaceful fashion. Id. No relief is due.
When evaluating a challenge to the sufficiency of the evidence:
[W]e view the evidence in the light most favorable to the
Commonwealth together with all reasonable inferences
from that evidence, and determine whether the trier of fact
could have found that every element of the crimes charged
was established beyond a reasonable doubt.
Commonwealth v. Walker, 836 A.2d 999, 1000 n.3 (Pa. Super. 2003)
(citations and quotation marks omitted).
Further, the summary offense of public drunkenness is defined as
follows:
A person is guilty of a summary offense if he appears in
any public place manifestly under the influence of alcohol
or a controlled substance, as defined in the act of April 14,
1972 (P.L. 233, N. 64), known as the Controlled
-5-
J-S32045-17
Substance, Drug Device and Cosmetic Act, except those
taken pursuant to the lawful order of a practitioner, as
defined in the Controlled Substance, Drug, Device, and
Cosmetic Act, to the degree that he may endanger himself
or other persons or property, or annoy persons in his
vicinity.
18 Pa.C.S. § 5505.
Moreover, we note that to convict a person of public drunkenness, the
Commonwealth need not present proof of a specific blood alcohol reading.
Rather, the Commonwealth must establish that the defendant was
intoxicated to such a degree that it “rendered him a danger to himself or
others, or an annoyance to those around him.” Commonwealth v. Meyer,
431 A.2d 287, 290 (Pa. Super. 1981).
As noted by the trial court, Officer McCreight, an officer with over ten
years of experience, believed that Appellant’s behavior indicated that he was
under the influence of alcohol and was a potential danger to others. Officer
McCreight specifically cited the odor of alcohol emanating from Appellant,
Appellant’s erratic behavior, and Appellant’s own admission that he had been
consuming alcohol. Moreover, read in a light most favorable to the
Commonwealth, Appellant had already driven his car to the convenience
store, and would have driven from the store had the officer not intervened.
Accordingly, we conclude that the evidence presented was sufficient to
support Appellant’s conviction for public drunkenness. See Walker, 836
A.2d at 1000 n.3; Meyer, 431 A.2d at 290.
-6-
J-S32045-17
We next address Appellant’s second and third issues together.
Appellant discusses our Supreme Court’s decision in Lagenella and asserts
that the inventory search was illegal because the arresting officer improperly
ordered his vehicle be towed. Appellant contends that at the time the police
decided to tow his car, he was a “business invitee” of the convenience store
and therefore was entitled to leave his car in the store’s parking lot following
his arrest. Appellant acknowledges Officer McCreight’s testimony that an
individual inside the store stated that Appellant would not be able to keep
his car in the parking lot following his arrest. Appellant, however, generally
avers that the Commonwealth failed to prove this individual was a proper
“agent” authorized to require the removal of Appellant’s car on behalf of the
store. Appellant further emphasizes the convenience store lacked any
signage which would have prevented him from leaving his car unattended,
regardless of any lack of permission expressed by an employee of the store.
Lastly, Appellant contends that the inventory search was conducted for
investigatory purposes. We conclude Appellant’s arguments warrant no
relief.
“Inventory searches are a well-defined exception to the search warrant
requirement.” Commonwealth v. Healry, 909 A.2d 352, 358 (Pa. Super.
2006) (en banc) (citation omitted). “An inventory search of an automobile is
permitted where: (1) the police have lawfully impounded the automobile,
and (2) the police have acted in accordance with a reasonable, standard
-7-
J-S32045-17
policy of routinely securing an inventory of the contents of the impounded
vehicle.” Id. at 359 (citations omitted). Further, it is well settled that “an
inventory search is reasonable if it is conducted pursuant to reasonable
standard police procedures and in good faith and not for the sole purpose of
investigation.” Id. (citation omitted).
In determining whether a proper inventory search has
occurred, the first inquiry is whether the police have
lawfully impounded the automobile, i.e., have lawful
custody of the automobile. The authority of police to
impound vehicles derives from the police’s reasonable
community care-taking functions. Such functions include
removing disabled or damaged vehicles from the highway,
impounding automobiles which violate parking ordinances
(thereby jeopardizing public safety and efficient traffic
flow), and protecting the community’s safety.
Lagenella, 83 A.3d 94, at 102-03.
In Lagenella, our Supreme Court considered an inventory search of a
safely parked car pursuant to the specific provisions of 75 Pa.C.S. § 6309.2
regarding persons operating a vehicle with a suspended license. Id. at 99-
100. The Lagenella Court held that “a vehicle which has simply been
immobilized in place is not in the lawful custody of police for purposes of
an inventory search.” Id. at 104 (emphasis added). The Court further
concluded that the officer in that case did not have the authority to tow
under Section 6309.2(a)(1) and the inventory search could not be justified
in anticipation of towing the vehicle.4 Id. at 101.
4
The Lagenella Court noted:
-8-
J-S32045-17
Instantly, Appellant’s arguments based on his status as a business
invitee fails to identify any error in the trial court’s conclusion that “[a]s soon
as [Appellant] was arrested he no longer occupied any permissible status as
a business invitee on the premises of the 7-11 convenience store.” Trial Ct.
Op. at 10. More significantly, Appellant fails to respond to the trial court’s
suggestion that the inventory search was proper under Lagenella because a
violation of 75 Pa.C.S. § 3353 authorized the arresting officer to tow the
vehicle. See Trial Ct. Op. at 11. Appellant fails to cite to or discuss Section
3353(b),5 which creates the summary offense of unattended vehicle on
Section 6309.2(a)(1) provides that, where a person
operates a vehicle while his or her license is suspended, a
law enforcement officer shall immobilize the vehicle and
notify the appropriate judicial authority, or, “in the
interest of public safety, direct that the vehicle be
towed and stored by the appropriate towing and storage
agent.” 75 Pa.C.S.A. § 6309.2(a)(1) (emphasis added).
Lagenella, 83 A.3d at 101.
5
Section 3353(b) states:
Unattended vehicle on private property.—
(1) No person shall park or leave unattended a vehicle on
private property without the consent of the owner or other
person in control or possession of the property except in
the case of emergency or disablement of the vehicle, in
which case the operator shall arrange for the removal of
the vehicle as soon as possible.
(2) The provisions of this subsection shall not apply to
private parking lots unless such lots are posted to notify
-9-
J-S32045-17
private property, or the trial court’s conclusion that he was in violation of
that provision. Therefore, we are constrained to find Appellant’s claim that
the arresting officer lacked the authority to tow his vehicle waived. See
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)( “[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful
fashion capable of review, that claim is waived.”)
Similarly, since Appellant’s argument that the officer exceeded the
scope of an inventory search relates to his claim that the officer lacked the
authority to tow, that claim is waived as well.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2017
the public of any parking restrictions and the operator of
the vehicle violates such posted restrictions. For the
purposes of this section “private parking lot” means a
parking lot open to the public or used for parking without
charge; or a parking lot used for parking with charge. The
department shall define by regulation what constitutes
adequate posting for public notice.
75 Pa.C.S. § 3353(b)(1)-(2). Although Appellant raises an argument based
on the absence of signage, he fails to cite, discuss, or seek relief based on
the exception to Subsection (b)(1) created by Subsection (b)(2).
- 10 -