J-S34045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

JODY KERN BUTTS

                            Appellee                   No. 1499 MDA 2015


                 Appeal from the Order Entered August 4, 2015
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002661-2015


BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                FILED MAY 24, 2016

       The Commonwealth of Pennsylvania appeals from the order entered in

the York County Court of Common Pleas, which granted a suppression

motion in favor of Jody Kern Butts (“Appellee”). We affirm.

       In its opinion, the trial court correctly and accurately sets forth the

relevant facts and procedural history1 of this case, therefore we have no

reason to restate them.         See Trial Court Pa.R.A.P. 1925(a) Opinion, filed

October 19, 2015, at 2-4.

       The Commonwealth raises the following issue for our review:


____________________________________________


1
   Procedurally, we add, along with its notice of appeal, the Commonwealth
filed a Pa.R.A.P. 311(d) certification, which stated that the order granting
Appellee’s suppression motion would terminate or substantially handicap the
prosecution.
J-S34045-16


          WHETHER THE TRIAL COURT ERRED IN RULING THAT THE
          POLICE LACKED AUTHORITY TO ARREST [APPELLEE] FOR
          DISORDERLY CONDUCT COMMITTED IN THE PRESENCE OF
          THE OFFICERS[?]

Commonwealth’s Brief at 4.

      A   suppression    order   is    final     for   purposes     of   appeal   only.

Commonwealth v. James, 69 A.3d 180, 185 (Pa.2013). When addressing

a challenge to a trial court’s ruling on a suppression motion, our standard of

review is “whether the factual findings are supported by the record and

whether the legal conclusions drawn from these facts are correct.”

Commonwealth v. Hawkins, 45 A.3d 1123, 1126 (Pa.Super.2012), appeal

denied, 53 A.3d 756 (Pa.2012) (internal citation omitted). Further:

          When the Commonwealth appeals from a suppression
          order, we follow a clearly defined standard of review and
          consider only the evidence from the defendant’s witnesses
          together with the evidence of the prosecution that, when
          read in the context of the entire record, remains
          uncontradicted. The suppression court’s findings of fact
          bind an appellate court if the record supports those
          findings. The suppression court’s conclusions of law,
          however, are not binding on an appellate court, whose
          duty is to determine if the suppression court properly
          applied the law to the facts.

Commonwealth v. Baker, 946 A.2d 691, 693 (Pa.Super.2008) (quoting

Commonwealth        v.   Barber,      889    A.2d      587,   592   (Pa.Super.2005)).

Moreover, “[i]t is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their

testimony.”   Commonwealth            v.    Gallagher,        896   A.2d   583,    585

(Pa.Super.2006) (citation omitted).


                                           -2-
J-S34045-16


      Additionally, when reviewing the suppression court’s rulings, we

consider only the suppression record.           In re L.J., 79 A.3d 1073, 1085

(Pa.2013) (“it is inappropriate to consider trial evidence as a matter of

course, because it is simply not part of the suppression record, absent a

finding   that   such   evidence    was    unavailable   during   the   suppression

hearing.”).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Maria Musti

Cook, we conclude the Commonwealth’s issue merits no relief.              The trial

court opinion comprehensively discusses and properly disposes of the

question presented.       See Trial Court Pa.R.A.P. 1925(a) Opinion, filed

October 19, 2015, at 5-13 (finding: arrest without warrant for summary

offense of misdemeanor disorderly conduct not authorized by law where

Appellee’s behavior of yelling and swearing was loud and obnoxious, but did

not threaten violence or demonstrate ongoing conduct that imperiled

personal security of any person or endangered public or private property).

The trial court’s factual findings are supported by the record, and its legal

conclusions drawn therefrom are correct.          Accordingly, we affirm on the

basis of the trial court opinion.

      Order affirmed.




                                          -3-
J-S34045-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




                          -4-
                                                             Circulated 04/26/2016 01:57 PM




      IN THE COURT OF COMMON PLEAS OF YORK COUNTY,
                       PENNSYLVANIA

COMM:ONWEALTH OF                                        NO. CP-67-CR-2661-2015
PENNSYLVANIA
    Appellant
                       v.
JODY K. BUTTS,
    Appellee

APPEARANCES:

                For Appellant:             Renee Franchi, Esquire
                For Appellee:              Eric White, Esquire



             STATEMENT OF LOWER COURT PURSUANT TO                            ·
                         PA.R.A.P.1925(a)

          AND NOW, this ,/&=i-i__day of October 2015, upon receipt of a notice

that an appeal has been filed in this matter, and in consideration of the

Concise Statement of Matters Complained Of on Appeal filed by the

Commonwealth, the undersigned files this supplemental statement in support

of its Opinion and Order filed August 4, 2015.

          This Court granted Defendant's motion for suppression for the reasons

herein.




                                           1

                                 (r:l.o)
FACTUAL AND PROCEDURAL HISTORY

       On March 11, 2015, York City Police officer Benjamin Smith was

dispatched to 588 West Market Street in York due to reports of a domestic

disturbance. (N.T. Supp. Hrg., at 14.) Upon arrival, Officer Smith heard

yelling coming from inside the residence. (N.T. Supp. Hrg., at 14-15.) The

officer then made contact with the resident of that address who informed him

that Defendant Jody K. Butts ("Defendant") was inside and wished her to

leave the premises. (N.T. Supp. Hrg., at 15.) Officer Smith ultimately

informed Defendant that she must leave the premises. (N.T. Supp. Hrg., at

15.) At that point, Officer Huncher arrived on the scene. (N.T. Supp. Hrg., at

15.) Defendant exited the home and "screamed at [the victim]." (N.T. Supp.

Hrg., at 6, 15.) Defendant, escorted by the officers, went back into the

residence and collected her belongings. (N.T. Supp. Hrg., at 7, 17.} The

officers testified that as Defendant exited the premises through the backyard

of the residence, she "scream[ed] the whole time," was "combative, angry,

[ and] loud, very loud," and yelled "obscenities" toward the officers and the

alleged victim. (N.T. Supp. Hrg., at 8-9, 18.) Officer Smith testified that he

instructed Defendant to cease her yelling three or four times. (N.T. Supp.


                                       2
Hrg., at 10, 19.) Officers testified that because Defendant did not stop·

yelling, the decision was made to arrest Defendant for disorderly conduct.

(N.T. Supp. Hrg., at 10, 19.) Officers began walking toward Defendant,

ordered her to stop, and informed her that she was under arrest. (N.T. Supp.

Hrg., at 10, 19.)

      Once Defendant was in custody, Officer Huncher performed a search .

incident to arrest. (N.T. Supp. Hrg., at 11, 20.) Officer Huncher testified that

he discovered what appeared to be a "half burnt marijuana blunt ... in her

purse." (N.T. Supp. Hrg., at 11.)

      Defendant was charged with a summary count of disorderly conduct

under 18 PA.C.S.A. § 5503(a)(2) and a misdemeanor count of Possession of a

Small Amount pursuant to 35 P.S. § 708-113(a)(3 l)(i). Defendant moved to

suppress the evidence found during the search on the basis that the search

violated her rights under the Fourth Amendment to the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution. (Def.'s

Omnibus Mot. at iT 7.) This Court held a hearing on Defendant's motion on

August 4, 2015. During the hearing, Officers John Huncher and Benjamin

Smith testified about the events surrounding Defendant's arrest. This Court


                                       3
                                                                        )




concluded that the officers were not authorized to arrest Defendant for the

summary charge, and, thus, their search of Defendant was improperly

conducted. On that basis, this Court suppressed the evidence foundduring

the search. On August 6, 2015, the Commonwealth filed a Motion for

Reconsideration.            This Court denied the Commonwealth's motion on August

15, 2015,1 without opinion. The Commonwealth filed a Notice of Appeal on

September 1, 2015. This Court ordered the Commonwealth to file and serve a

Concise Statement pursuant to Pa. R. App. P. 1925(b). The Commonwealth

filed its concise statement on September 8, 2015.

           The Commonwealth enumerates two arguments on appeal. The

Commonwealth argues this Court erred in ( 1) suppressing evidence found

during the search incident to Defendant's arrest, and (2) concluding that

officers were not authorized to arrest Defendant for the summary charge of

disorderly conduct. Because the former point is predicated on the latter, this

Opinion addresses whether officers lawfully arrested Defendant.

           For the reasons discussed herein, this Court urges affirmance of the

order suppressing the evidence in this case.


I
    This order was filed with the Clerk of Courts on August 20, 2015.


                                                       4
DISCUSSION

       Criminal proceedings may be initiated by a warrantless arrest pursuant

to Pennsylvania Rule of Criminal Procedure 400. That rule states:

       "Criminal proceedings in summary cases shall be instituted either by:

          ( 1)   issuing a citation to the defendant; or
          (2)    filing a citation; or
          (3)    filing a complaint; or
          ( 4)   arresting without a warrant when arrest is specifically
                 authorized by law."

Pa. R. Crim. P. 400 ( emphasis added). The clear language of this rule

mandates that this Court determine whether officers were "specifically

authorized by law" to arrest Defendant. Pennsylvania Rule of Criminal

Procedure 440 grants the authority of arrest for a summary offense without a

warrant to police officers. It states: "[w]hen an arrest without a warrant in a

summary case is authorized by law, a police officer who exhibits some sign.of

authority may institute proceedings by such an arrest." Pa. R. Crim. P. 440

( emphasis added). This rule also lends some insight into those situations

where arrest without a warrant for a summary offense is appropriate. "It is

intended that these proceedings will be instituted by arrest only in exceptional




                                          5
                                                          I
                                                          ) .




 circumstances such as those involving violence, or the imminent threat of

 violence .... " Comment to Pa. R. Crim. P. 440 (emphasis added).

       The testimony presented at the suppression hearing indicated that

 Defendant's behavior was loud, and even obnoxious. Notably, however,

 neither officer testified at the hearing on Defendant's omnibus pre-trial

 motion that Defendant made any specific threats of violence or acted out in

 violence while she was in their presence. Thus, this Court concluded no

 "exceptional circumstances" existed in the instant case that would allow the

 officers to arrest Defendant for the summary charge of disorderly conduct.

       The Pennsylvania legislature expressly granted authority by which

 police officers may arrest a person without a warrant.

       (a) General rule.--For any of the following offenses, a police
       officer shall, upon view, have the right of arrest without warrant
       upon probable cause when there is ongoing conduct that imperils
       the personal security of any person or endangers public or
       private property:

             (1) Under Title 18 (relating to crimes and offenses)
             when such offense constitutes a summary offense:

                    18 Pa.C.S. § 5503 (relating to
                    disorderly conduct).
· 42 PA.C.S.A. § 8902 (relating to arrest without warrant) (emphasis added).


                                        6
          A plain-language reading of this statute clearly authorizes police to

    arrest without a warrant upon probable cause of disorderly conduct and other

    enumerated offenses, but only if "there is ongoing conduct that imperils the

    personal security of any person or endangers public or private property."

    Again, this Court did not find that the ongoing conduct of Defendant

    imperiled any person's security or endangered public or private property.

          The Commonwealth argued that an officer may arrest uponprobable

cause of any "breach of the peace'r' committed in his or her presence without

any requirement of conduct that imperils the personal security of any person.

Instead, the Commonwealth posited that the authority granted by section 8902

is in addition to, and not a limitation of, an officer's common law authority to

arrest in summary cases. (Com. 's Mot. for Recons. at, 21.)

          This Court's review of relevant law, however, indicates that in

promulgating 42 PA.C.S.A. § 8902, the Pennsylvania legislature intended to

limit the power of police officers to arrest without a warrant for summary




2
  This Court notes that the term "breach of the peace" is likely to connote an element of violence. See
Atwater v. City of Lago Vista, 532 U.S. 318, 328 FN.2 (2001) (noting conflict between varying definitions of
the term, but ultimately construing it narrowly to entail "at least a threat of violence.").


                                                     7
                                                            )




    offenses to only those instances where personal safety is imperiled or property

    is endangered.

             The Pennsylvania Supreme Court noted in Commonwealth v. Bullers,

    536 Pa. 84, 637 A.2d 1326 (1994), "our court may not permit a warrantless

arrest for a summary offense when our legislature has not so provided." Id. at

    1328. The Bullers court then cited statutes where such a grant was bestowed

by the legislature. Id. at 1329. The Bullers court noted that each section cited

"clearly and unambiguously" gave police the right to arrest for the defined

conduct. Id.

            In the instant case, the legislature has "clearly and unambiguously"

granted police power to arrest for summary offenses, but only in limited

circumstances. A review of the legislative history of 42 PA.C.S.A. § 8902

elucidates the legislature's intent to limit the summary arrest powers of police

officers. Section 8902 was introduced during a special session of the

legislature as House Bill 22 on February 1, 1995. When the bill was

considered by the Senate on June 28, 1995, the language of the bill contained

no limitations on summary arrest powers.3 A state senator from York County


3
    As written in that version, the bill stated:


                                                   8
went on the record with concerns that the bill granted police power to arrest

that was too broad.

                  I did want to offer a few comments concerning this bill.

                I would like to read directly from the legislation at hand.
         The bill has been significantly amended and much of it has been
         removed. However, a particular passage that I am concerned
         with says, "A police officer, sheriff of a county of the second
         class and deputy sheriff of a county of the second class shall
         have the right of arrest without warrant upon probable cause for
         any of the following offenses: ... '' And they list a number of
         offenses, including: relating to disorderly conduct, relating to
         public drunkenness, relating to obstructing highways and other
         public passages, and a few other offenses. Now, these are
         currently summary offenses, but with the passage of this bill, Mr.
         President, we would now allow these police officers and sheriffs
         and deputy sheriffs to handcuff and haul away to prison or to jail
         anyone who they feel is guilty of any of these crimes.

                Mr. President, I do not believe this is what my constituents
         want. I believe this is a direct violation of their rights. This is
         more Big Brother. This is more taking away of public freedom,
         and I would urge all of my colleagues to vote in the negative on
         this bill.
Senate Legislative Journal, June 28, 1995, p. 246-247. House Bill 22 failed to

pass during a vote immediately after the senator's comments.4 Id. Most


    A police officer, sheriff of a county of the second class and deputy sheriff of a county of the second class
    shall have the right of arrest without warrant upon probable cause for any of the following offenses:
         (1) Under Title 18:
         18 PA.C.S. § 5503 (relating to disorderly conduct).
H.B. 22, Printer's No. 180, June 20, 1995, at 3.
4
  Yeas-19; Nays-30 on the question of final passage.


                                                       9
notably, when House Bill 22 was next brought to the senate for a vote on

    September 20, 1995, language was added limiting summary arrests to·

circumstances involving imperilment to personal security or endangerment to

public or private property. House Bill 22, September 20, 1995, Printer's No.

    190, at 3. House Bill 22 was ultimately passed with this limiting language in

place.5

          In light of these actions by the legislature, this Court concluded that the

Pennsylvania legislature intended to limit police officers' power to arrest for

summary offenses. Thus, Officers Huncher and Smith were not "authorized

by law" to arrest Defendant for a summary offense of disorderly conduct

unless her conduct met the requirements of 42 PA.C.S.A. § 8902. As

discussed previously, Defendant's conduct did not imperil any person's

security" or endanger public or private property.

          The Commonwealth argued in its Motion for Reconsideration that

Defendant's conduct constituted not only a summary offense of disorderly

conduct, but also its misdemeanor equivalent. (Com.'s Mot. for Recons. at 1


5
  House Bill 22 was approved by the House and Senate on October 25, 1995, and October 30, 1995,
respectively, and signed by Governor Thomas Ridge on November 17, 1995.
6
  Although the attorney for the Commonwealth argued at the conclusion of the hearing that Defendant
"couldn't stand up straight," (N.T. SUPP. HRG., at 27), neither officer testified to this fact.


                                                   10
32.) The Commonwealth further asserted that since officers were authorized

to arrest Defendant for misdemeanor disorderly conduct, the search incident

to that arrest was proper. (Com. 's Mot. for Recons. at ,I 37.)

       This Court found Defendant's conduct did not rise to the level of a

misdemeanor offense of disorderly conduct. Disorderly conduct is defined by

18 PA.C.S.A. § 5503.

      (a} Offense defined.--A person is guilty of disorderly conduct if,
      with intent to cause public inconvenience, annoyance or alarm,
      or recklessly creating a risk thereof, he:

                                    ***
             (2) makes unreasonable noise;

                                    ***
       (b) Grading.--An offense under this section is a misdemeanor
      of the third degree if the intent of the actor is to cause substantial
      harm or serious inconvenience, or if he persists in disorderly
      conduct after reasonable warning or request to desist. Otherwise
      disorderly conduct is a summary offense.

18 PA.C.S.A. § 5503.

      This Court agrees that when a person is lawfully arrested for disorderly

conduct, regardless of its gradation, a warrantless search incident to that arrest

does not violate of the Unites States and Pennsylvania Constitutions. See

Commonwealth v. Frank, 407 PA Super 500, 505, 595 A.2d 1258, 1260


                                          11
(1991). However, this Court concluded Defendant's arrest was not lawful as

either a summary offense, or a misdemeanor offense.

       Officers Huncher and Smith testified at the suppression hearing that

Defendant failed to stop swearing loudly as she walked away despite Officer

Smith's commands to cease. (N.T. Supp. Hrg., at 8-11, 18.) While this Court

found most of the officers' testimony credible, this Court was skeptical on

this point. If Officer Huncher, a six-year police veteran, believed Defendant's

conduct rose to the level of a misdemeanor on the night of March 11, 2015, he

certainly could have charged Defendant with a misdemeanor. However, he

did not. This Court is of the belief that Defendant's conduct constituted only

a summary violation of disorderly conduct, as reflected in Officer Huncher's

initial complaint. Resultantly, for Defendant's arrest to be lawful, some

evidence must have been introduced that tended to show imperilment to

personal security or endangerment to public or private property.

      Finally, the Commonwealth argued in its motion for reconsideration

that an absurd result would occur if this Court were to find that police officers

were not authorized to arrest for "breaches of the peace," because sheriffs and

constables have been found to be so authorized. (Com.'s Mot. for Recons. at


                                        12
                                                       )




, 32.) While sheriffs and constables are vested with common law authority to

arrest for breaches of the peace, the Commonwealth's conclusion is flawed

insofar as it assumes that such breaches of the peace include summary

offenses. Sheriffs, constables, and citizens are never authorized to make

arrests for summary offenses. Commonwealth v. Bienstock, 449 PA Super

299, 304, 673 A.2d 952, 955 (1996) ("Private citizens do not have authority to

make stops or arrests for summary offenses."); Kopko v. Miller, 586 Pa. 170,

185, 892 A.2d 766, 774 (2006) ("[T]he power of Sheriffs to arrest for crimes

committed in their presence is no different from that of a private citizen.");

Commonwealth v. Taylor, 450 PA Super 583, 590-91, 677 A.2d 846, 850

(1996), opinion modified on reconsideration (June 24, 1996) ([A] constable's

powers are less ... than those of the sheriff.") (internal quotations and

brackets omitted). Therefore, no absurd result would result from this Court's

holding.

CONCLUSION

      Based on the above reasons, this Court respectfully urges affirmance of

this Court's Order and Decision filed August 4, 2015.




                                        13
        The Clerk of Courts is directed to provide notice of the entry of this

Statement to counsel of record.

                                       BY THE COURT,


Date:                   _              /2 lfb. , / A'~ cU-
                                      'MARIA
                                                        ~ -
                                                MUSTI COOK, JUDGE




                                       14
