J-S31025-16

                                     2016 PA Super 216



COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

JOHN RICHARD VETTER, III

                                                         No. 1400 MDA 2015


                   Appeal from the Order Dated July 14, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0001084-2014


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

OPINION BY OTT, J.:                               FILED SEPTEMBER 27, 2016

        The Commonwealth appeals from the Order dated July 14, 2015, in

the Court of Common Pleas of Berks County, granting Defendant, John

Richard Vetter, III’s, motion to suppress evidence and Writ of Habeas

Corpus, thereby terminating the prosecution against Vetter. In this timely

appeal, the Commonwealth raises three arguments: (1) the trial court erred

in not classifying the action between Vetter and the Pennsylvania State

Trooper, Corporal Raymond O’Donnell, as a mere encounter, (2) the trial

court erred in failing to determine Corporal O’Donnell had reasonable

suspicion to stop Vetter for the summary offence of disorderly conduct, and

(3) the trial court erred in granting Vetter habeas corpus relief, thereby

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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denying the Commonwealth the ability to appeal the adverse decision. After

a thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.

       We glean the underlying facts of this matter from the notes of

testimony from the suppression hearing held on June 3, 2015.          The only

witness to testify was the arresting officer, Corporal Raymond O’Donnell,

Pennsylvania State Police, who, at the time was stationed with Troop L,

Hamburg Station.          N.T. Suppression Hearing, 6/3/2015 at 4-5.         On

December 14, 2013 at approximately 8:00 PM,1 Corporal O’Donnell was on

patrol on southbound State Route 61, Perry Township.          Id. at 5.   It had

been snowing and was still snowing at that time. Id. at 6. Relevant to this

appeal, Corporal O’Donnell testified on direct examination:

       I observed the vehicle [Vetter’s car] stopped in the traveling
       lanes of southbound Route 61 with the driver’s side door opened
       and the occupant of the vehicle standing outside the vehicle in
       between the door and his vehicle with his back towards me as
       though – and his hands were in front of him as though he was
       urinating in the roadway. And really, immediately prior to
       seeing this vehicle stopped, I wasn’t that much behind a vehicle
       which had to go around the vehicle where the individual was
       stopped, standing outside to proceed onto State Route 61 south.

                                               ***

       His vehicle was parked on the roadway of 61 going south. His
       door was open, and he was standing right at the A pillar with his

____________________________________________


1
  A copy of the dash-cam video was presented to the suppression court as
evidence. The video has no date or time signature on it.



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       back towards oncoming traffic and his hands down in front of
       him.[2]

                                           ***

       In this section, 61 is 2 lanes traveling south. I don’t recall if it’s
       one lane going north or two lanes going south [sic]; but it’s
       paved divided roadway, north and south travel lanes. And in the
       area we’re talking about was two particular lanes going south.

                                           ***

       Q: Now, was this traffic stopped – do you know which lane it was
       stopped in?

       A: It would have been the right travel lane.

       Q: Now, is there a guard rail that runs along this road?

       A: There is.

       Q: How far from the guard rail would you say that car was?

       A: At least a car width.

       Q: And that location of the car would be reflected in the video?

       A: Yes.

       Q: Now, after you pulled up, what did this – the operator of this
       vehicle do?

       A: He got back inside the driver’s seat and proceeded to drive
       south on 61.

       Q: How far did he get?

       A: Not very far; I activated my lights.

____________________________________________


2
 Corporal O’Donnell testified he did not see Vetter urinating nor did he see
any indication he had been urinating. Id. at 7.



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       Q: Was that after he pulled away or as he was getting into the
       car?

       A: As he was getting in the car.

       Q: What was the reason for the traffic stop?

       A: Initially, due to the road conditions, I thought he may have
       been stuck on the roadway. I was seeing if he needed any kind
       of assistance. But when he got back in the driver’s seat and
       began to gain forward momentum, it was because of the traffic
       violation[3] that he was stopped on the roadway and standing on
       the roadway.

Id. at 6-9.

       After the traffic stop was initiated, Corporal O’Donnell determined

Vetter was intoxicated.

       However, based upon the testimony and a review of the dash-cam

video, the suppression court determined Corporal O’Donnell did not possess

either a reasonable suspicion or probable cause to believe that Vetter

violated Section 3351:

       The video shows in the snow storm that the vehicle stopped as
       far off the roadway as possible, and it was clearly not in the lane
       of travel. No vehicles were obstructed and in able [sic] to pass
       [Vetter] with no swerving or breaking. Furthermore, the video
       shows that the vehicle was visible for at least 500 feet in the
       snow storm.[4]

____________________________________________


3
  This was a claimed violation of regulations regarding “stopping, standing,
or parking outside of business, and residential districts.” 75 Pa.C.S. § 3351.
4
  We have reviewed the dash-cam video and agree that the suppression
court has accurately described it. We note that at least one vehicle is shown
passing Vetter’s car without any problem.



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                                          ***[5]

       In this case, Corporal Donnell [sic] lacked reasonable suspicion
       or probable cause to believe that [Vetter] was in violation of the
       motor vehicle code.

Suppression Court Conclusions of Law,6 6/15/2015, at ¶ 21.              Accordingly,

Vetter’s motion to suppress evidence obtained as a result of the traffic stop

was granted.

       Our standard of review for a Commonwealth appeal from an order

granting suppression is well settled:

       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. Miller, 56 A.3d 1276, 1278-79 (Pa. Super. 2012).

       In the first issue, the Commonwealth claims the trial court erred in not

classifying the interaction between Vetter and Corporal O’Donnell as a mere

encounter.     The Commonwealth argues the police have a duty to render

assistance to disabled motorists.              The initial reason Corporal O’Donnell
____________________________________________


5
 Here, the suppression court found there was no actual evidence that Vetter
had urinated outside his car.
6
  Although labeled as “conclusions of law” the first portion describing the
video is clearly a factual determination.




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testified to for stopping was to determine whether Vetter’s vehicle was stuck

in the snow.    In other circumstances, such an argument might prevail.

However, here, Corporal O’Donnell admitted his concern that Vetter might

be a stranded motorist vanished when Vetter got into his car and started to

drive away. See N.T. Suppression Hearing at 9. Further, he admitted he

stopped the moving car due to his belief that Vetter had violated Section

3351 of the Motor Vehicle Code.

      Logically, one cannot stop a moving vehicle in order to determine

whether that vehicle is stranded.    Additionally, stopping a vehicle on the

basis of a violation of 75 Pa.C.S. § 3351 requires the police officer to

possess probable cause, as that is a violation that does not require further

investigation. See Commonwealth v. Salter, 121 A.3d 987, 993 (Pa.

Super. 2015) (explaining when a traffic stop requires probable cause or

reasonable suspicion).   Accordingly, the Commonwealth’s claim the action

between Vetter and Corporal O’Donnell was a mere encounter is without

merit.

      Next, the Commonwealth argues that regardless of any probable cause

or lack thereof regarding a potential violation of 75 Pa.C.S. § 3351, Corporal

O’Donnell did possess probable cause to stop Vetter’s vehicle based upon the

suspicion he had been urinating on the street. The Commonwealth argues

such public urination is a violation of 18 Pa.C.S. § 5503, disorderly conduct.

The Commonwealth argues that seeing Vetter positioned as he was, “door

was open, and he was standing right at the A pillar with his back towards

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oncoming traffic and his hands down in front of him.”        N.T. Suppression

Hearing, supra at 7, provided the Corporal with reasonable suspicion to

believe Vetter was engaging in disorderly conduct by relieving himself in the

roadway, thereby making the stop of Vetter’s vehicle allowable.             This

argument is unavailing.

     Although the notes of testimony demonstrate Corporal O’Donnell’s

belief that Vetter was urinating at the time the trooper initially encountered

Vetter, Corporal O’Donnell never claimed he stopped Vetter on the basis of a

suspected violation of the criminal statute 18 Pa.C.S. § 5503; but only for

the perceived violation of the motor vehicle code, 75 Pa.C.S. § 3351.

Further, the certified record shows that the Commonwealth did not raise the

argument regarding disorderly conduct until filing its Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. However, “issues not raised in

the lower court are waived and cannot be raised for the first time on

appeal.” Commonwealth v. Cash, ___ A.3d ___, 2016 WL 3002910 at *

10, Pa.R.A.P. 302(a).

     Additionally,   even   if   the   issue   had   not   been   waived,   the

Commonwealth was unlikely to have prevailed.          The Commonwealth has

asserted that,

     Precedent dictates that public urination constitutes criminal
     activity, as this action is one of the many bases for a charge of
     disorderly conduct. See Commonwealth v. Strickler, 757
     A.2d 884, 890 n.9 (Pa. 2000)(citing Commonwealth v.
     Williams, 568 A.2d 1281, 1288 (Pa. Super. 1990));



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       Commonwealth v. Barber, 889 A.2d 587, 595 (Pa. Super.
       2005).

Appellant’s Brief at 13.

       None of these cases actually hold that public urination is a basis for

disorderly conduct.7

       Disorderly conduct is statutorily defined at 18 Pa.C.S. § 5503, which

states, in relevant part:



____________________________________________


       7
         In Strickler, the defendant and a companion were observed
urinating at the side of a public roadway near a farm property. However,
Strickler did not challenge the sufficiency of the evidence, so the issue was
not before any appellate court. The footnote in Strickler merely noted that
in Commonwealth v. Williams, the defendant was arrested for disorderly
conduct after being observed publically urinating. On that basis, without
further analysis, the Supreme Court stated that prevailing precedent allowed
public urination to be treated as the predicate for disorderly conduct.

However, the issue in Williams was not whether public urination was a
predicate to disorderly conduct. In Williams, the defendant parked his car
on the sidewalk and urinated on a building in downtown Denora. He was
arrested for disorderly conduct, a summary offense, but challenged the
search incident to arrest for a summary offense. Accordingly, in Williams,
there was no analysis of public urination as a predicate for disorderly
conduct.

The issue in Barber was whether a tip from an identified caller to the police
complaining of a man urinating in a parking lot, drinking beer and driving a
van (which was identified by description and license plate) provided
reasonable suspicion to stop said van. The Barber decision incorrectly
noted that Strickler held that observation of public urination provided
reasonable suspicion. See Commonwealth v. Barber, 889 A.2d at 595.
As noted, the Strickler decision merely commented, in a footnote, about
Williams. Accordingly, the Commonwealth is incorrect in asserting that
“precedent dictates” public urination constitutes criminal activity.



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

                                      ...


         (4) creates a hazardous or physically offensive condition
         by any act which serves no legitimate purpose of the actor.

18 Pa.C.S. § 5503(a).    The statute specifically includes “highways” among

public places. See Section 5503(c).

      Subsection 4 is the only applicable section to public urination, creating

a physically offensive condition. However, we are also mindful that,

      The offense of disorderly conduct is not intended as a catchall for
      every act which annoys or disturbs people; it is not to be used as
      a dragnet for all the irritations which breed in the ferment of a
      community. It has a specific purpose; it has a definite objective,
      it is intended to preserve the public peace.

Commonwealth v. Maerz, 879 A.2d 1267, 1269 (Pa. Super. 2005)

(citation omitted).

      Additionally, “The cardinal feature of the crime of disorderly conduct is

public unruliness which can or does lead to tumult and disorder.”

Commonwealth v. Hock, 728 A.2d 943, 946 (Pa. 1999)                     quoting

Commonwealth v. Greene, 189 A.2d 141, 144 (Pa. 1963).

      Here, the Commonwealth has presented no evidence or argument to

demonstrate how, under the specific facts of this case, where Vetter

appeared to be urinating at the side of a highway, in the dark of night, in a

snow storm, away from any residence or businesses, positioning himself

such that he was largely protected from view, such action was likely to lead


                                      -9-
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to tumult and disorder. Because of this we cannot agree that, based on §

5503, the Commonwealth would have prevailed on the issue of reasonable

suspicion of committing disorderly conduct, even had it been preserved.

     Finally, we agree with the Commonwealth that when granting a motion

to suppress evidence, such that the result is to effectively terminate the

matter, the trial court should nonetheless refrain       from immediately

discharging the defendant to allow the Commonwealth time to appeal the

adverse ruling.     However, the Commonwealth’s appeal in this matter

successfully found its way to our Court.    Therefore, the Commonwealth

suffered no prejudice.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2016




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