J-S21006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

HOWARD JACKSON,

                          Appellant                  No. 2802 EDA 2013


           Appeal from the Judgment of Sentence October 10, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008007-2011


BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED MAY 12, 2015

       Howard Jackson appeals from the judgment of sentence of one year

probation that was imposed after he was convicted of possession of a

controlled substance.     We reject his challenge to the suppression court’s

ruling herein and affirm.

       The interdiction leading to Appellant’s arrest on the possession charge

at issue herein was described as follows.     At approximately 1:00 a.m. on

October 21, 2010, Philadelphia Police Officers Kyle Cross and Frederick

Clough saw a black Buick SUV parked in the northbound traveling lane of the

7700 block of Lowber Street, Philadelphia. Appellant was seated in the front

seat of the car, a passenger was next to him, and Appellant was rummaging

around in the car. The driver’s side door was open. Believing that Appellant




*
    Retired Senior Judge assigned to the Superior Court.
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might be breaking into the vehicle, Officers Cross and Clough initiated an

investigatory detention.

      Officer Cross drove his cruiser behind the SUV and activated the police

car’s lights and sirens. The police officers then approached the car. As they

did so, Officer Cross saw Appellant reach from the front seat to the rear seat

of the car, place a black bag on his lap, and stuff a clear plastic Ziploc bag

into his pants crotch. Appellant was removed from the vehicle. The Ziploc

bag was partially protruding from Appellant’s pants. Officer Cross observed

a smaller blue plastic bag containing a powdery substance inside the

exposed part of the bag.     Based on a belief that it contained cocaine, the

bag was seized, and Appellant was arrested. The black bag contained amber

pill bottles, and every bottle but one indicated that they contained drugs

prescribed for Appellant.    In the pill bottle not bearing Appellant’s name,

police recovered fifty-eight Xanax pills.

      Appellant was charged with possession of a controlled substance. He

moved to suppress the drugs seized as a result of the interdiction.       The

municipal court granted that motion, and the Commonwealth appealed to

the court of common pleas, where it prevailed.       At an August 13, 2012

nonjury trial, Appellant was convicted of the charged offense, and he was

sentenced on October 10, 2012. This appeal followed. Appellant raises this

contention: “Is the Defendant entitled to a remand to the Trial Court for a

new trial where the Suppression Court erred when it failed to grant the


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Defendant’s Motion to Suppress Evidence as the result of an illegal traffic

stop [and] a subsequent illegal search and seizure?” Appellant’s brief at 3.

      We first elucidate the pertinent standard of review:

             An appellate court's standard of review in addressing a
      challenge to a trial court's denial of a suppression motion is
      limited to determining whether the factual findings are supported
      by the record and whether the legal conclusions drawn from
      those facts are correct. [Because] the prosecution prevailed in
      the suppression court, we may consider only the evidence of the
      prosecution and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record
      as a whole. Where the record supports the factual findings of the
      trial court, we are bound by those facts and may reverse only if
      the legal conclusions drawn therefrom are in error.

Commonwealth v. Postie, 2015 WL 663437, *3 (Pa.Super. 2015).

      Herein, the suppression court noted that both Officer Cross and Officer

Clough “testified that they were conducting an investigation on the night in

question, with Officer Clough clarifying that the officers were concerned that

someone was breaking into the car.” Trial Court Opinion, 7/1/14, at 4. The

court continued that the officers articulated that the vehicle door was ajar,

the SUV was parked in a traffic lane, it was one o’clock in the morning, and

“someone was rummaging through the backseat.” Id. The court concluded

that, “[g]iven these articulated observations, this court believes the officers

were reasonable in concluding that someone may have been breaking into

the car.”   Id. at 5-6.   The court therefore upheld the interdiction as an




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investigatory detention supported by reasonable suspicion that a crime was

being committed.

       On appeal, Appellant does not challenge this finding.            Instead,

Appellant believes that the investigatory detention was premised upon the

fact that the car was stopped in a traffic lane.      Appellant sets forth two

provisions of the Motor Vehicle Code that prohibit stopping in a travel lane. 1


____________________________________________


1
  Specifically, 75 Pa.C.S. § 3351, with an exception for disabled vehicles,
provides:

        (a) General rule.--Outside a business or residence district, no
       person shall stop, park or stand any vehicle, whether attended
       or unattended, upon the roadway when it is practicable to stop,
       park or stand the vehicle off the roadway. In the event it is
       necessary to stop, park or stand the vehicle on the roadway or
       any part of the roadway, an unobstructed width of the highway
       opposite the vehicle shall be left for the free passage of other
       vehicles and the vehicle shall be visible from a distance of 500
       feet in each direction upon the highway.

Appellant notes that there was no proof that he was outside a business or
residence district.

      Appellant also insists that there was no proof that his stop of his SUV
constituted a violation of 75 Pa.C.S. § 3353, which states in pertinent part:

        (a) General rule.--Except when necessary to avoid conflict
       with other traffic or to protect the safety of any person or vehicle
       or in compliance with law of the directions of a police officer or
       official traffic-control device, no person shall:

              (1) Stop, stand or park a vehicle:

(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

                       (i) On the roadway side of any vehicle
                       stopped or parked at the edge or curb of
                       a street except that:

                             (A) A pedalcycle . . . .

                             (B) Standing or parking for
                             the purpose of loading or
                             unloading      persons     or
                             property may be authorized
                             by local ordinance . . . .

                       (ii) On a sidewalk except that a
                       pedalcycle may be parked as provided in
                       section 3509(b)(2).

                       (iii) Within an intersection.

                       (iv) On a crosswalk.

                       (v) Between a safety zone and the
                       adjacent curb within 30 feet of points on
                       the curb immediately opposite the ends of
                       a safety zone, unless a different length is
                       indicated by official traffic-control devices.

                       (vi) Alongside or opposite any street
                       excavation or obstruction when stopping,
                       standing or parking would obstruct traffic.

                       (vii) Upon any bridge or other elevated
                       structure upon a highway or within a
                       highway tunnel.

                       (viii) On any railroad tracks.

                       (ix) In the area between roadways of a
                       divided highway, including crossovers.

(Footnote Continued Next Page)


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His argument on appeal is devoted solely to refuting that the evidence

established that he violated those provisions.

      Police may conduct a vehicular stop based upon reasonable suspicion

that a crime is being committed. Commonwealth v. Anthony, 977 A.2d

1182 (Pa.Super. 2009). In this case, the officers involved in the interdiction

did not premise their investigation to any extent on the fact that Appellant’s

SUV was parked in a traffic lane.                Rather, they articulated that they
                       _______________________
(Footnote Continued)

                       (x) At any place where official signs
                       prohibit stopping.

             (2) Stand or park a vehicle:

                       (i) In front     of   a   public   or   private
                       driveway.

                       (ii) Within 15 feet of a fire hydrant.

                       (iii) Within 20 feet of a crosswalk at an
                       intersection.

                       (iv) Within 30 feet upon the approach to
                       any flashing signal, stop sign, yield sign
                       or traffic-control signal located at the site
                       of a roadway.

                       (v) Within 20 feet of the driveway
                       entrance to any fire station or, when
                       properly sign posted, on the side of a
                       street opposite the entrance to any fire
                       station within 75 feet of the entrance.

75 Pa.C.S. § 3353




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investigated the SUV based upon a belief that Appellant may have been

stealing the contents of that vehicle, and the trial court accepted that belief

as reasonably premised upon the articulated facts. Appellant does not assail

that finding and is therefore not entitled to relief.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2015




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