J-S56026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    JOSEPH SIRIANNI

                             Appellant                 No. 3382 EDA 2016


            Appeal from the Judgment of Sentence October 20, 2016
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No: CP-46-CR-0000914-2016


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

MEMORANDUM BY STABILE, J.:                        FILED NOVEMBER 30, 2017

        Appellant, Joseph Sirianni, appeals from the October 20, 2016 judgment

of sentence entered in the Court of Common Pleas of Montgomery County

(“trial court”) sentencing him to one year of probation for possession of drug

paraphernalia and one year of concurrent probation for possession of a

controlled substance.1        Appellant challenges the denial of his motion to

suppress. Upon review, we affirm.

        The trial court made the following factual findings.

              On the morning of November 20, 2015 at approximately
        2:20 AM Officer Michael Choiniere of the Norristown Police
        Department was on duty in a marked patrol car. He was patrolling
        in an area of Norristown, Montgomery County, Pa. which he knew

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 Pa.C.S.A. §§ 780-113(A)(32) and (16) respectively.
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     very well. The patrol car was equipped with an operable dash-cam
     video, which recorded the entire incident.

           While the officer was driving down Lafayette Street, he
     turned his head to the right and observed the vehicle of
     [Appellant], as it sat parked, with its lights on, in the middle of
     the block of Jamison Alley. At approximately 2:22 AM, the officer
     drove his vehicle south on Hawes Street and west on Washington
     Street and approached Jamison Alley from the rear of where
     [Appellant’s] vehicle was situated. The officer turned off the
     headlights of the patrol car and entered Jamison Alley and pulled
     his patrol car up behind [Appellant’s] vehicle. The officer turned
     the headlights off so as to not spook the vehicle, in case there
     were people around it, and for purposes of his own safety.[FN2]
     Jamison Alley allows for driving in both directions. There are wide
     spots in the alley where a car could get through if necessary. At
     this time, the vehicle of [Appellant] was still impeding the
     alleyway. After the officer approached, the vehicle of [Appellant]
     pulled over to the left side of Jamison Alley so that it was no longer
     obscuring the roadway.

        [FN2: The officer further testified that the area was a “high
        crime area.”]

            The officer then did a license plate check on [Appellant’s]
     vehicle.    He was able to determine that [Appellant’s] car was
     registered in Lansdale, Pennsylvania. Police Officer Choiniere
     articulated his reasons for conducting the stop of [Appellant’s]
     vehicle included that: it was an out of state, or out of town tag;
     that the vehicle was situated in a high crime, high drug area at
     2:22 AM in the morning; sitting parked in the middle of the alley;
     occupied with its light on. Based on the aforementioned factors,
     the officer activated his overhead lights and got out of his car and
     approached the vehicle of [Appellant].

           When Officer Choiniere made contact with [Appellant], he
     produced a valid Pennsylvania identification card. The officer ran
     a check on [Appellant] and learned of an outstanding fines and
     costs warrant. [Appellant] was taken into custody and was
     searched incident to that arrest. [Appellant] did not raise any
     issue with regard to the validity of his arrest on the fines and costs
     warrant. [Appellant] does not raise any issue with regard to the
     seizure of evidence from his pocket being a search incident to a
     lawful arrest.   The officer recovered a clear plastic bag in
     [Appellant’s] right front pants pocket which contained a white


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        crystal like substance. The substance was field tested on the
        scene by the officer and it was determined to be
        methamphetamine.

Trial Court Opinion, 12/28/16, at 4-6 (footnotes omitted).

        Following these events, Appellant was charged with possession of a

controlled substance and possession of drug paraphernalia. On May 4, 2016,

Appellant filed an omnibus pre-trial motion, which included a motion to

suppress based on an illegal stop. Appellant filed a supplemental motion to

suppress on October 5, 2016, seeking to suppress the physical evidence seized

after the stop as fruit of the poisonous tree. The trial court held a hearing on

Appellant’s motion to suppress on October 20, 2016. At the conclusion of the

hearing, the trial court denied Appellant’s motion. Appellant agreed to waive

his right to a jury trial and a bench trial proceeded immediately thereafter. At

the conclusion of the bench trial, the trial court found Appellant guilty and

sentenced Appellant to one year of probation. Appellant filed a timely notice

of appeal on October 31, 2016. On November 1, 2016, the trial court directed

Appellant to file a concise statement of errors complained of on appeal.

Following an extension, Appellant filed his concise statement on December 5,

2016.        The trial court issued a Pa.R.A.P. 1925(a) opinion on December 28,

2016.

        Appellant raises one question for our review.

        I.      Whether the trial court committed an error of law and/or
                abused its discretion in denying Appellant’s motion to
                suppress the stop of Appellant Sirianni and the subsequent
                poisoned fruit thereof where police did not possess
                reasonable suspicion to conduct the stop.

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Appellant’s Brief at 7.

        Our standard of review for the denial of a suppression motion is well

established.

        [The] standard of review in addressing a challenge to a trial court’s
        denial of a suppression motion is whether the factual findings are
        supported by the record and whether the legal conclusions drawn
        from those facts are correct. When reviewing such a ruling by the
        suppression court, we must consider only the evidence of the
        prosecution and so much of the evidence of the defense as
        remains uncontradicted when read in the context of the record….
        Where the record supports the findings of the suppression court,
        we are bound by those facts and may reverse only if legal
        conclusions drawn therefrom are in error.

Commonwealth v. Bush, 166 A.3d 1278, 1282 (Pa. Super. 2017) (quoting

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007)). Moreover,

when reviewing a traffic stop, we must determine whether an officer had

reasonable suspicion. “Traffic stops based on reasonable suspicion: either of

criminal activity or a violation of the Motor Vehicle Code under the authority

of [75 Pa.C.S.A. § 6308(b)][2] must serve a stated investigatory purpose. Id.

____________________________________________


2   Section 6308(b) provides:

        Whenever a police officer is engaged in a systematic program of
        checking vehicles or drivers or has reasonable suspicion that a
        violation of this title is occurring or has occurred, he may stop a
        vehicle, upon request or signal, for the purpose of checking the
        vehicle’s registration, proof of financial responsibility, vehicle
        identification number or engine number or the driver’s license, or
        to secure other such information as the officer may reasonably
        believe to be necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b).


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(quoting Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010)

(en banc) (citation omitted)).

       In order to determine whether the police had a reasonable
       suspicion to subject an individual to an investigative detention,
       the totality of the factual circumstances which existed at the time
       of the investigative detention must be considered. “Among the
       factors to be considered in establishing a basis for reasonable
       suspicion are tips, the reliability of the informants, time, location,
       and suspicious activity, including flight.”

Commonwealth v. Morrison, 166 A.3d 357, 364-65 (Pa. Super. 2017)

(citing Commonwealth v. Ayala, 791 A.2d 1202, 1208 (Pa. Super. 2002)).

       However, for certain motor vehicle code violations, the officer must have

probable cause for a stop. See Commonwealth v. Salter, 121 A.3d 987,

993 (Pa. Super. 2015).

       If it is not necessary to stop the vehicle to establish that a violation
       of the Vehicle Code has occurred, an officer must possess probable
       cause to stop the vehicle. Where a violation is suspected, but a
       stop is necessary to further investigate whether a violation has
       occurred, an officer need only possess reasonable suspicion to
       make a stop.

Id. In the matter sub judice, we do not need to determine whether the motor

vehicle violation requires reasonable suspicion or probable cause because we

conclude that the officer had probable cause to stop Appellant’s vehicle. The

motor vehicle violation was a violation of a parking regulation, which provides

that

       (a)   Two-way highways.--Except as otherwise provided in this
             section, every vehicle standing or parked upon a two-way
             highway shall be positioned parallel to and with the right-
             hand wheels within 12 inches of the right-hand curb or, in

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            the absence of a curb, as close as practicable to the right
            edge of the right-hand shoulder.

      (b)   One-way highways.--Except as otherwise provided in this
            section, every vehicle standing or parked upon a one-way
            highway shall be positioned parallel to the curb or edge of
            the highway in the direction of authorized traffic movement
            with its right-hand wheels within 12 inches of the right-hand
            curb or, in the absence of a curb, as close as practicable to
            the right edge of the right-hand shoulder, or with its left-
            hand wheels within 12 inches of the left-hand curb or, in the
            absence of a curb, as close as practicable to the left edge of
            the left-hand shoulder.

75 Pa.C.S.A. § 3354. The motor vehicle code further defines highway as “the

entire width between the boundary lines of every way publicly maintained

when any part thereof is open to the use of the public for purpose of vehicular

travel.” 75 Pa.C.S.A. § 102. Further, standing is defined as “the halting of a

vehicle, whether occupied or not, except momentarily for the purpose of and

while actually engaged in receiving or discharging passengers.” Id.

      The record shows that Appellant’s vehicle was standing in the middle of

a roadway, nowhere near the shoulder, and impeding the passage of traffic

when Officer Choiniere approached the vehicle. This is further evidenced by

the fact that Appellant was able to pull over after Officer Choinere approached.

Thus, the officer had probable cause to stop Appellant for a violation of 75

Pa.C.S.A. § 3354. Because the officer had probable cause to effectuate the

stop, the trial court correctly denied Appellant’s motion to suppress.

Therefore, we do not need to address Appellant’s claim that the officer did not

possess reasonable suspicion for the stop.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2017




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