J-A23009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LEON CORLOYD ROSE

                            Appellant                No. 1301 WDA 2015


              Appeal from the Judgment of Sentence July 30, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0014787-2014


BEFORE: LAZARUS, J., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED NOVEMBER 1, 2016

        Leon Corloyd Rose appeals from the judgment of sentence of 11 ½ to

23 months’ imprisonment following his conviction of Public Drunkenness,1

Carrying a Firearm Without a License2 and Persons Not to Possess a

Firearm.3    Prior to trial, Rose had filed a motion to suppress the firearm,

which police discovered in the center console of his vehicle. The trial court

denied that motion.          On appeal, Rose challenges the order denying

suppression, claiming the search was illegal. After our review, we affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 5055.
2
    18 Pa.C.S.A. §6106(A)(1).
3
    18 Pa.C.S.A. § 6105(A)(1).
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      The trial court summarized the relevant factual history as follows:

      The facts show that Mr. Rose abandoned his vehicle. His vehicle
      was found on a Saturday morning around 6:30 a.m., in the lot of
      a used car business about ½ block from where he was found.
      The doors were closed. The engine was off. No keys were
      visible. But, fresh damage all along the entire passenger side
      was noticed. Officer Smith tried to open a door. It worked. The
      doors were unlocked. Also, contributing to the decisional mix is
      Mr. Rose’s comments. While intoxicated, he was claiming the
      car he was found in was his car. A fair inference is that any
      other car was not his.          Collectively, the circumstances
      demonstrated that Mr. Rose abandoned the vehicle. As such, he
      did not have an expectation of privacy in the vehicle where the
      gun was found.

Trial Court Opinion, 6/6/16, at 3 (citations omitted).

      Notably, the owner of car in which Rose was found had called 911; she

asserted there was an unknown male sitting in the driver’s seat of her car.

Rose, who was visibly highly intoxicated, had entered the complainant’s car,

believing it was his. Sergeant Regis Smith responded to the call and, on his

way to the scene, he noticed another car, with its flashers on, and which was

parked in the lot of a business that was closed at that hour. The car also

appeared to have damage to the entire passenger side.

      Meanwhile, Officer Richard Zilaitis, who also responded to the 911 call,

removed Rose from complainant’s vehicle and placed him in the back of his

patrol car. He instructed complainant to check her car for damage and, in so

doing, she found a set of keys that did not belong to her.                  Rose

acknowledged that the keys were his.




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      Sergeant Smith ran the license plates of the car with the flashers on,

believing it might belong to Rose, which it did. Because the car was parked

at the front of the lot, blocking entry, Sergeant Smith, who was not aware

that the keys were found inside the complainant’s car, looked inside the

unlocked car for the keys.      After finding nothing on the dashboard, he

opened the center console.      There he found a cellphone, cash and a 9-

millimeter firearm. It was later determined that Rose did not have a license

to possess a firearm and that he had a prior conviction in Florida that

precluded him from doing so.

      On appeal, Rose raises the following issue:

      Whether appellant’s right under both the Fourteenth Amendment
      to the United States Constitution ad Article I, Section 8 of the
      Pennsylvania Constitution to be free from unreasonable search
      and seizure was violated by the police search of his vehicle
      absent a warrant, consent, and probable cause.

Appellant’s Brief, at 2.

      Our standard of review of an order denying suppression is limited to

determining whether the factual findings are supported by the record and

whether   the   legal   conclusions   drawn   from   those   facts   are   correct.

Commonwealth v. Bomar, 826 A.2d 831, 842 (2003).

      Where the prosecution prevailed in the suppression court, we
      may consider only the Commonwealth’s evidence 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.


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In re J.E., 937 A.2d 421, 425 (Pa. 2007) (citations omitted).

      Here, Rose asserts the trial court erred in finding that he had

abandoned his vehicle. Our Supreme Court has stated:

      Abandonment is primarily a question of intent, and intent may
      be inferred from words spoken, acts done, and other objective
      facts. All relevant circumstances existing at the time of the
      alleged abandonment should be considered. Police pursuit or the
      existence of a police investigation does not of itself render
      abandonment involuntary. The issue is not abandonment in the
      strict property-right sense, but whether the person prejudiced by
      the search had voluntarily discarded, left behind, or otherwise
      relinquished his interest in the property in question so that he
      could no longer retain a reasonable expectation of privacy with
      regard to it at the time of the search. Moreover, it is well settled
      that no one has standing to complain of a search or seizure of
      property that he has voluntarily abandoned.

Commonwealth v. Shoatz, 366 A.2d 1216, 1220 (Pa. 1976) (citations

omitted).    In other words, “[a]bandonment can be established where an

individual’s surrender of possession of the property constitutes such a

relinquishment of interest in the property that a reasonable expectation of

privacy may no longer be asserted.”       Commonwealth v. Johnson, 636

A.2d 656, 658-59 (Pa. Super. 1994). The question, then, is whether Rose’s

behavior manifested a clear intent to relinquish control of the vehicle. We

believe it did.

      Pursuant to Shaler Police Department policy, vehicles parked in private

lots which have drivers too intoxicated to operate a vehicle, are towed to the

police impound lot, after which an inventory search is performed. As Rose

accurately points out, however, Sergeant Smith found the firearm in the car


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prior to the inventory search. Nonetheless, we agree with the trial court’s

assessment that Rose had abandoned his car.        The fact that Rose left his

car parked in a lot, blocking entry to the lot, with the doors unlocked and the

flashers on, where anyone could gain immediate entry, is indicia of

abandonment. This is not a case of a vehicle simply parked in a public area.

Moreover, Rose’s abandonment was not caused by any unlawful and/or

coercive police conduct. See Commonwealth v. Byrd, 987 A.2d 786 (Pa.

Super. 2009).

       Although not bound by the suppression court’s legal conclusions, we

are bound by its findings if supported in the record. Shoatz, supra. Based

on the circumstances existing at the time of the search, the factual findings

made by the trial court, we discern no legal error in the conclusion that Rose

had abandoned his vehicle and, therefore, had no standing to raise a privacy

claim.    See Shoatz, 366 A.2d at 1219. See also Commonwealth v.

Pizarro, 723 A.2d 675, (Pa. Super. 1998) (“A criminal defendant has no

privacy expectation in property that he has voluntarily abandoned or

relinquished.”).4

       Judgment of sentence affirmed.



____________________________________________


4
  We also note that even if Rose had standing to challenge the search and
seizure of his vehicle, that claim would fail based on the inevitable discovery
exception to the warrant requirement.        See Commonwealth v. Bailey,
986 A.2d 860 (Pa. Super. 2009).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/2016




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