J-A03020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LEVICK EDWARD LINTON, JR.

                            Appellant                 No. 1200 EDA 2015


            Appeal from the Judgment of Sentence March 24, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0000593-2014


BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY MUNDY, J.:                               FILED APRIL 18, 2016

        Appellant, Levick Edward Linton, Jr., appeals from the March 24, 2015

judgment of sentence of 18 to 36 months’ imprisonment, imposed after he

was found guilty of one count of possession with intent to deliver (PWID).1

After careful review, we affirm.

        The trial court summarized the relevant factual history of this case as

follows.

                    On July 9, 2013, officers of the Tinicum
              Township Police Department were dispatched to the
              area of the 700 block of Jansen Avenue in the
              Essington section of the township for a report of
              “possible illegal drug activity.” Upon arriving to the
              area, Officer Joseph Marino observed a silver vehicle
              that matched the description of the vehicle provided
              by dispatch.        Following a directive by his
____________________________________________
1
    35 P.S. § 780-113(a)(30).
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              commanding officer, Sergeant James Simpkins, Jr.,
              Officer Marino effectuated a stop of the observed
              vehicle.     After Officer Marino made the stop,
              Sergeant Simpkins arrived and spoke to the driver of
              the vehicle. The driver, [] Appellant [], provided the
              officers with a Pennsylvania identification card and
              told the officers that he was coming “from” Wawa, a
              convenience store in the area.

                     The officers ran [] Appellant’s name through
              PennDOT and confirmed that his driver’s license was
              suspended, DUI related.        The officers also had
              trouble believing [] Appellant’s assertion that he had
              just been at the Wawa store because the store was
              located ahead of the direction that Appellant had
              been driving. Sergeant Simpkins asked [] Appellant
              if he could search his vehicle, and [] Appellant said
              yes. Nothing was recovered from the vehicle during
              the search, and [] Appellant was then told that he
              was free to leave and that he would be issued a
              citation in the mail. He was also advised that his
              vehicle would be towed from the scene.

                     The following day, July 10, 2013, the Tinicum
              Township Police Department received a telephone
              call from Lieutenant [Gibney2] of the neighboring
              Darby Borough Police Department, who advised that
              he had received information from a reliable source
              that the vehicle that had been involved in the stop
              the previous day contained narcotics. On July 11,
              2013, based upon on this information, a canine
              search was conducted of the exterior of the vehicle.
              The canine indicated the presence of drugs. Based
              on this and the information supplied by Lieutenant
              [Gibney], a search warrant was prepared. On July
              12, 2013, at 3:15 p.m. Magisterial District Judge
              Horace Davis approved and signed the search
              warrant. With said warrant, a thorough search of
____________________________________________
2
  The Commonwealth informs us that the suppression hearing transcript
erroneously refers to the Lieutenant’s name as “Givney.” Commonwealth’s
Brief at 25 n.4.



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J-A03020-16


              the vehicle was done and Sergeant Simpkins
              discovered a yellow cloth bag filled with 34 clear
              Ziploc bags each containing a blue glassine bag
              stamped “Dream House” which contained white
              powder. Also recovered was a clear plastic Ziploc
              bag containing 140 clear plastic Ziploc bags each
              containing a blue glassine bag stamped “Dream
              House” which also contained white power.        Two
              letters and other documents addressed to []
              Appellant, and four cellular telephones were also
              found in the vehicle. The substances were submitted
              to the Lima Regional Laboratory for testing, and the
              bags were analyzed and confirmed to contain heroin.

Trial Court Opinion, 7/17/15, at 1-2.

       On February 12, 2014, the Commonwealth filed an information,

charging Appellant with one count each of PWID, intentional possession of a

controlled substance, possession of drug paraphernalia, driving with a

suspended license, and driving without a license.3 At some point, Appellant

filed a motion to suppress, on which the trial court conducted a hearing on

July 24, 2014.4      On October 20, 2014, the suppression court entered an

order denying Appellant’s suppression motion.      Appellant proceeded to a

stipulated bench trial on February 26, 2015, at the conclusion of which

Appellant was found guilty of one count of PWID.      The remaining charges


____________________________________________
3
 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 780-113(a)(32), 75 Pa.C.S.A.
§§ 1543(b)(1), and 1501(a), respectively.
4
  Although a copy of the motion is contained within the certified record, it is
neither file-stamped nor docketed.      Nevertheless, as the same issues
contained therein were litigated at the suppression hearing, we do not
consider this an impediment to our review.



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J-A03020-16


were withdrawn. On March 24, 2015, the trial court sentenced Appellant to

18 to 36 months’ imprisonment.                 Appellant did not file a post-sentence

motion. On April 16, 2015, Appellant filed a timely notice of appeal.5

       On appeal, Appellant raises the following issues for our review.

              [I.]   Whether the trial court erred in denying
                     Appellant’s suppression [m]otion to [s]uppress
                     when [] Appellant was stopped and seized by
                     the Tinicum Township Police Department
                     without reasonable suspicion?

              [II.] Did the trial court err in denying Appellant’s
                    suppression [m]otion to [s]uppress on the
                    grounds that [Section] 6309.2(a)(1) of the
                    [Motor] Vehicle Code that the vehicle was
                    towed “in the interest of public safety” when
                    no risk to the public or public safety was
                    presented by the vehicle parked legally on the
                    street?

              [III.] Did the trial court err in       denying Appellant’s
                     suppression [m]otion to          [s]uppress on the
                     grounds that Appellant            lacked a privacy
                     interest in the vehicle,         as it belonged to
                     Appellant’s mother?

              [IV.] Did the trial court err in denying Appellant’s
                    suppression [m]otion to [s]uppress by relying
                    on the independent source doctrine, as the
                    independent source did not mention the
                    specific vehicle searched, and the police were
                    illegally in possession of the vehicle at the time
                    of the search?

Appellant’s Brief at 4.


____________________________________________
5
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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J-A03020-16


      As noted above, all of Appellant’s issues pertain to the denial of his

suppression motion. We begin by noting our well-settled standard of review.

                     In addressing a challenge to a trial court’s
               denial of a suppression motion, we are limited to
               determining whether the factual findings are
               supported by the record and whether the legal
               conclusions drawn from those facts are correct.
               Since    the    Commonwealth      prevailed  in  the
               suppression court, we may consider only the
               evidence of the Commonwealth and so much of the
               evidence     for  the    defense     as   it 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. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)

(citation omitted), appeal denied, 102 A.3d 985 (Pa. 2014). In addition, our

scope of review is confined to the suppression court record. In re L.J., 79

A.3d 1073, 1080 (Pa. 2013).

      In his first issue, Appellant avers that the police lacked reasonable

suspicion to initially stop him inside the vehicle in question. Appellant’s Brief

at 8-22. The Commonwealth counters that the police did have reasonable

suspicion based on the tip provided through dispatch.          Commonwealth’s

Brief at 16.

                          The Fourth Amendment of the Federal
                    Constitution provides, “[t]he right of the
                    people to be secure in their persons, houses,
                    papers, and effects, against unreasonable
                    searches and seizures, shall not be violated ….”
                    U.S. Const. amend. IV. Likewise, Article I,
                    Section 8 of the Pennsylvania Constitution

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J-A03020-16


                   states, “[t]he people shall be secure in their
                   persons, houses, papers and possessions from
                   unreasonable searches and seizures ….” Pa.
                   Const. Art. I, § 8.

            Commonwealth v. Carter, 105 A.3d 765, 768 (Pa.
            Super. 2014) (en banc), appeal denied, 117 A.3d
            295 (Pa. 2015).

Commonwealth v. Williams, 125 A.3d 425, 432 (Pa. Super. 2015). Our

cases have recognized three levels of police-citizen interactions.

            The first is a mere encounter, which requires no level
            of suspicion at all. Commonwealth v. Daniel, 999
            A.2d 590, 596 (Pa. Super. 2010). The second level
            is an investigative detention, which must be
            supported by reasonable suspicion. Id. at 596-597.
            Finally, the third level is an arrest or custodial
            detention, which must be supported by probable
            cause. Id. at 597.

Commonwealth v. Walls, 53 A.3d 889, 892-893 (Pa. Super. 2012).

Instantly, the parties agree that this was investigative detention for which

reasonable suspicion was required. Appellant’s Brief at 8; Commonwealth’s

Brief at 12, 16.

                   It is axiomatic that to establish reasonable
                   suspicion, an officer “must be able to articulate
                   something more than an inchoate and
                   unparticularized suspicion or hunch.” United
                   States v. Sokolow, 490 U.S. 1, 7 (1989)
                   (internal   quotation   marks     and    citation
                   omitted). … A suppression court is required to
                   “take[] into account the totality of the
                   circumstances—the          whole        picture.”
                   Navarette, supra (internal quotation marks
                   and citation omitted).     When conducting a
                   Terry analysis, it is incumbent on the
                   suppression court to inquire, based on all of
                   the circumstances known to the officer ex

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J-A03020-16


                  ante, whether an objective basis for the
                  seizure was present. Adams v. Williams, 407
                  U.S. 143, 146 (1972).

            Carter, supra at 768-769.

Williams, supra. In addition, relevant to this appeal, the Supreme Court

has explained the constitutional distinction between tips from known police

informants and anonymous tips in the following manner.

            Unlike a tip from a known informant whose
            reputation can be assessed and who can be held
            responsible if her allegations turn out to be
            fabricated, … an anonymous tip alone seldom
            demonstrates the informant’s basis of knowledge or
            veracity[.] As we have recognized, however, there
            are situations in which an anonymous tip, suitably
            corroborated, exhibits sufficient indicia of reliability
            to provide reasonable suspicion to make the
            investigatory stop.

Florida v. J.L., 529 U.S. 266, 270 (2000) (internal quotation marks and

citations omitted); see also Commonwealth v. Moore, 805 A.2d 616, 621

(Pa. Super. 2002) (stating, “a tip from an informer known to police may

carry enough indicia of reliability for the police to conduct an investigative

stop, even though the same tip from an anonymous informant would likely

not have done so[]”) (citations omitted).

      In this case, Sergeant Simpkins testified that on July 9, 2013 he

received a radio dispatch based on a tip from a known 911 caller.        N.T.,

7/24/14, at 35, 39. Specifically, Sergeant Simpkins testified that this was a

citizen known to him for over 20 years, and that he knew said citizen to be

truthful and law-abiding. Id. at 39-40. The dispatch information revealed

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J-A03020-16


there was a silver vehicle involved in illegal “drug activity in the rear alley of

the 700 block of Jansen Avenue in Essington.” Id. at 35. Specifically, the

tipster indicated that a silver vehicle was involved. Id. Within one minute

of receiving the information, Sergeant Simpkins went to the area around 700

block of Jansen Avenue.     Id. at 40.    Sergeant Simpkins observed a silver

vehicle upon making a right-hand turn onto to the 600 block of Jansen

Avenue, traveling in the direction away from the 700 block.           Id. at 41.

Sergeant Simpkins radioed to Officer Marino to stop the vehicle. Id. at 42.

Sergeant Simpkins identified the driver of the silver vehicle as Appellant.

Id. at 43-44.

      After careful review of the certified record, we conclude Appellant’s

issue lacks merit. As noted above, the police responded based on a known

informant’s tip apprising them of drug activity involving a silver car at a

specific block of a specific street.   Upon arriving at said area one minute

later, Sergeant Simpkins observed a silver vehicle driving away from the

block specified in the informant’s tip.      Based on these considerations, we

conclude the police had reasonable suspicion and Appellant’s Fourth

Amendment rights were not violated in this regard.        See, e.g., Adams v.

Williams, 407 U.S. 143, 146 (1972) (concluding that information from an

informant that “an individual seated in a nearby vehicle was carrying

narcotics and had a gun at his waist” who was “known to [the officer]




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J-A03020-16


personally and had provided him with information in the past” established

reasonable suspicion).

      Appellant next avers that the trial court erred when it concluded that

the police had the authority to tow the vehicle, under Section 6309.2 of the

Motor Vehicle Code, which requires a 24-hour waiting period before a car

may be towed under certain circumstances. Appellant’s Brief at 23-24; see

also generally 75 Pa.C.S.A. § 6309.2. The Commonwealth counters that

the tow was proper under the section because it was admittedly left parked

in a resident only parking zone. Commonwealth’s Brief at 22. Our review of

the   pertinent   statutes   of   the    Motor   Vehicle   Code   support   the

Commonwealth’s position.

      Our cases have stated that “[t]he right for the police to tow a car is

derived from 75 Pa.C.S. § 3352.”        Commonwealth v. Bailey, 986 A.2d

860, 862 (Pa. Super. 2009), appeal denied, 995 A.2d 350 (Pa. 2010).

Relevant to his case, Section 3352(c) states that “[a]ny police officer may

remove or cause to be removed to the place of business of the operator of a

wrecker or to a nearby garage or other place of safety any vehicle found

upon a highway” if certain conditions apply. Id. § 3352(c). One of those

conditions is where “[t]he vehicle is in violation of section 3353[.]”      Id.

§ 3352(c)(4). Section 3353(a)(3)(ii) prohibits parking a vehicle in any place

“where official signs prohibit parking.” 75 Pa.C.S.A. § 3353(a)(3)(ii).




                                        -9-
J-A03020-16


      In this case, Sergeant Simpkins testified that the vehicle in question

was parked in a residents only zone.

            Q.    Okay. The place that it was parked, is it a
                  legal parking spot?

            A.    You have -- it’s resident parking only.

            Q.    Okay. And for residents parking is there -- is
                  that something that they get a tag from the
                  township?

            A.    They have to get a tag on the back of their car.

            Q.    Okay. Did the vehicle driven by [Appellant]
                  have that tag?

            A.    No.

N.T., 7/24/14, at 54.   In addition, Sergeant Simpkins testified that tickets

are issued for violations of the residential parking restrictions. Id. at 78-79.

Therefore, it is apparent that Appellant’s car was parked in a zone that an

“official sign” from the township designated as requiring a residential permit

on the car, which this vehicle did not possess. Therefore, the vehicle was in

violation of Section 3353(a)(3)(ii), and the police were permitted to tow the

vehicle   under   Section   3352(c)(4).       See,   e.g.,   Commonwealth    v.

Hennigan, 753 A.2d 245, 259 (Pa. Super. 2000) (stating that a “car [that]

was … parked on a public street [was parked on] a ‘highway’ for purposes of

the Vehicle Code”). As a result, the trial court did not err when it concluded




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J-A03020-16


that the police lawfully towed the vehicle.6       Because there was no legal

impediment to the tow, we consequently reject Appellant’s argument that

the police were not lawfully present at the car when the canine sniff

occurred.7 See generally Appellant’s Brief at 28.

       Based on the foregoing, we conclude Appellant’s issues on appeal are

devoid of merit. Accordingly, the trial court’s March 24, 2015 judgment of

sentence is affirmed.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2016




____________________________________________
6
  We note that as an appellate court, we “may affirm [the lower court] for
any reason, including such reasons not considered by the lower court.”
Commonwealth v. Clemens, 66 A.3d 373, 381 n.6 (Pa. Super. 2013)
(citation omitted).
7
  In light of our conclusions that the traffic stop, tow, and canine sniff were
constitutional on the merits and the fact that Appellant does not challenge
the subsequent search warrant as lacking probable cause, we need not
address Appellant’s remaining issues on appeal.



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