J-S32045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                      v.

JOHN SWIRSDING

                           Appellant                     No. 2375 EDA 2016


               Appeal from the Judgment of Sentence July 6, 2016
       in the Court of Common Pleas of Delaware County Criminal Division
                        at No(s): CP-23-CR-0007084-2015

BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED AUGUST 30, 2017

        Appellant, John Swirsding, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas following a bench

trial and his convictions for public drunkenness,1 possession of marijuana,2

and possession of drug paraphernalia.3 Appellant asserts that the evidence

was insufficient to support his conviction for public drunkenness, and that

the trial court erred in denying his motion to suppress the contraband

discovered in his vehicle during an inventory search. We affirm.

        The trial court set forth the facts of this case as follows:


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 5505.
2
    35 P.S. § 780-113(a)(31).
3
    35 P.S. § 780-113(a)(32).
J-S32045-17


       Appellant’s arrest and convictions arise out of a 911 call for
       a possible domestic situation that Officer Robert McCreight
       of the Haverford Township Police Department responded to
       on September 12, 2015 at or about 4:00 a.m. in the area
       of the 2700 block of Belmont Avenue in Havertown,
       Pennsylvania.

          Officer Robert McCreight of the Haverford Township
       Police Department was on patrol duty September 12, 2015
       when he received a call over the DELCOM for a possible
       domestic situation along the 2700 block of Belmont
       Avenue in the Township involving two subjects fighting and
       a suspect running over objects in the driveway with his
       vehicle, a green Range Rover.

         Upon approaching the area along the 2600 block of
       Haverford Rd., Officer McCreight identified a green Range
       Rover parked in front of a 7-11 store at 2606 Haverford
       Road fitting the description of the involved vehicle.

           The area was desolate but for the empty lots of the
       surrounding businesses and the Range Rover was parked
       in front of the 7-11 store. As Officer McCreight pulled in to
       the lot the vehicle was neither running nor occupied.

          Officer McCreight began to run the green Range Rover’s
       tag information. As he did Appellant exited the 7-11 store
       and approached the officer. Officer McCreight asked the
       defendant whether the vehicle was his and the defendant
       responded that it was his and a conversation ensued.

          Appellant explained that he was having an argument
       with his wife because she was purportedly cheating on
       him. Appellant stated he may have also struck another
       vehicle although his vehicle had no damage. As he spoke,
       Officer McCreight detected an odor of alcohol and observed
       [] Appellant’s erratic behavior. Appellant’s mood ranged
       from laughing about the situation to nearly crying and
       breaking down. Because of the behavior, he was placed in
       the back of the police cruiser. Appellant did admit to
       drinking earlier in the evening with his wife.

          Based on all of the circumstances and his experience,
       Officer McCreight believed Appellant’s behaviors indicated


                                   -2-
J-S32045-17


       he was under the         influence possibly of alcohol.
       Specifically, based on    the odor emanating from the
       Appellant, Appellant’s   admission that he had been
       consuming alcohol, his    mood swings and very erratic
       behavior.

          Officer McCreight testified that although Appellant
       would not be arrested for any domestic issue or DUI, he
       would be arrested for Public Drunkenness.            Officer
       McCreight did not feel it was safe for [] Appellant to be
       driving. When it was decided that Appellant was going to
       be locked up for Public Drunkenness he was placed in
       handcuffs and replaced back into the police cruiser.

          Since [Appellant’s] vehicle was parked in the lot of the
       7-11 convenience store, Officer McCreight was compelled
       to ask the person in charge if the vehicle could remain
       there. He was told the vehicle would have to be removed.
       Therefore, the on-duty tow, K&S Towing in Haverford was
       called to come and impound the vehicle.

          The Haverford Township Police Department has a
       standing written impoundment and inventory search policy
       that requires the officer to search the vehicle for any
       valuables and create a form identifying all of the recovered
       objects so there can be no claim of loss. []CS-1 was
       marked for identification and identified as the Haverford
       Township Police directive regarding inventory search of
       vehicles[].

          Officer McCreight testified that since he was not
       permitted to leave the vehicle on private property the
       vehicle was to be impounded. Pursuant to the policy he
       conducted a search of the vehicle and when he opened the
       door he was immediately struck with the strong smell of
       fresh marijuana which he described as overwhelming.
       Plainly observable in the center console there was a
       multicolored glass smoking bowl and a 4x6 white vacuum
       sealed bag which he recognized as a bag commonly used
       to package narcotics to hide the smell.

         All of the seized contraband was in plain view upon
       opening the car door. The bowl was seized and the
       marijuana was seized.


                                  -3-
J-S32045-17


Trial Ct. Op., 1/16/17, at 2-5.

      On July 6, 2016, following the trial court’s denial of Appellant’s motion

to suppress evidence, Appellant was convicted of the aforementioned

charges. That same day, the trial court sentenced Appellant to thirty days of

probation for public drunkenness, thirty days of probation for possession of a

small amount of marijuana, and six months of probation for possession of

drug paraphernalia.    All sentences were to be served concurrently.        On

August 1, 2016, Appellant filed the instant timely appeal and subsequently

filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. The trial court filed a responsive opinion.

      Appellant raises the following issues for our review:

         1. Did the trial court err in its decision to not quash the
         [charging] public drunkenness as [] Appellant was not
         given any type of objective testing, had not behaved in a
         matter consistent for charging him with the summary
         offense of public drunkenness and, in fact, [] throughout
         the initial meeting as well as police interrogation acted
         peacefully and spoke with the officer in a peaceful fashion
         and if this information had been quashed by the court it
         would therefore eliminate the probable cause for the
         subsequent arrest and detention of [] Appellant?

         2. Did the trial court err in denying that Appellant was a
         business invitee and therefore did not enjoy the
         protections given under the law to said business invitee
         directly or indirectly connected with his business dealing
         with the possessor of the property? Additionally, did the
         Commonwealth show that the police officer spoke with a
         true and correct agent of the business who had permission
         to speak with the police about possessions of [] Appellant
         or order the possessions be removed from the property
         forcibly?



                                     -4-
J-S32045-17


           3. Did the trial court err by allowing the warrantless
           seizure and towing of Appellant’s immobilized but safely
           parked vehicle as well as the trial court’s failure to
           suppress 2.9 grams of marijuana and drug paraphernalia
           which was found in the closed center console of the
           Appellant’s motor vehicle in direct contravention of
           Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013).

Appellant’s Brief at 4-5.

      In his first issue, Appellant claims that the evidence was insufficient to

support his conviction for public drunkenness because the Commonwealth

failed to present any evidence that he was “manifestly under the influence of

alcohol or a controlled substance.” Appellant’s Brief at 18. Appellant points

out that the arresting officer, Officer McCreight, testified that when he

approached Appellant at the time in question, Appellant spoke to him in a

peaceful fashion. Id. No relief is due.

      When evaluating a challenge to the sufficiency of the evidence:

           [W]e view the evidence in the light most favorable to the
           Commonwealth together with all reasonable inferences
           from that evidence, and determine whether the trier of fact
           could have found that every element of the crimes charged
           was established beyond a reasonable doubt.

Commonwealth v. Walker, 836 A.2d 999, 1000 n.3 (Pa. Super. 2003)

(citations and quotation marks omitted).

      Further, the summary offense of public drunkenness is defined as

follows:

           A person is guilty of a summary offense if he appears in
           any public place manifestly under the influence of alcohol
           or a controlled substance, as defined in the act of April 14,
           1972 (P.L. 233, N. 64), known as the Controlled


                                       -5-
J-S32045-17


          Substance, Drug Device and Cosmetic Act, except those
          taken pursuant to the lawful order of a practitioner, as
          defined in the Controlled Substance, Drug, Device, and
          Cosmetic Act, to the degree that he may endanger himself
          or other persons or property, or annoy persons in his
          vicinity.

18 Pa.C.S. § 5505.

     Moreover, we note that to convict a person of public drunkenness, the

Commonwealth need not present proof of a specific blood alcohol reading.

Rather,   the   Commonwealth    must   establish   that   the   defendant   was

intoxicated to such a degree that it “rendered him a danger to himself or

others, or an annoyance to those around him.” Commonwealth v. Meyer,

431 A.2d 287, 290 (Pa. Super. 1981).

     As noted by the trial court, Officer McCreight, an officer with over ten

years of experience, believed that Appellant’s behavior indicated that he was

under the influence of alcohol and was a potential danger to others. Officer

McCreight specifically cited the odor of alcohol emanating from Appellant,

Appellant’s erratic behavior, and Appellant’s own admission that he had been

consuming alcohol.     Moreover, read in a light most favorable to the

Commonwealth, Appellant had already driven his car to the convenience

store, and would have driven from the store had the officer not intervened.

Accordingly, we conclude that the evidence presented was sufficient to

support Appellant’s conviction for public drunkenness.      See Walker, 836

A.2d at 1000 n.3; Meyer, 431 A.2d at 290.




                                    -6-
J-S32045-17


          We next address Appellant’s second and third issues together.

Appellant discusses our Supreme Court’s decision in Lagenella and asserts

that the inventory search was illegal because the arresting officer improperly

ordered his vehicle be towed. Appellant contends that at the time the police

decided to tow his car, he was a “business invitee” of the convenience store

and therefore was entitled to leave his car in the store’s parking lot following

his arrest.     Appellant acknowledges Officer McCreight’s testimony that an

individual inside the store stated that Appellant would not be able to keep

his car in the parking lot following his arrest. Appellant, however, generally

avers that the Commonwealth failed to prove this individual was a proper

“agent” authorized to require the removal of Appellant’s car on behalf of the

store.      Appellant further emphasizes the convenience store lacked any

signage which would have prevented him from leaving his car unattended,

regardless of any lack of permission expressed by an employee of the store.

Lastly, Appellant contends that the inventory search was conducted for

investigatory purposes.       We conclude Appellant’s arguments warrant no

relief.

          “Inventory searches are a well-defined exception to the search warrant

requirement.” Commonwealth v. Healry, 909 A.2d 352, 358 (Pa. Super.

2006) (en banc) (citation omitted). “An inventory search of an automobile is

permitted where: (1) the police have lawfully impounded the automobile,

and (2) the police have acted in accordance with a reasonable, standard



                                       -7-
J-S32045-17


policy of routinely securing an inventory of the contents of the impounded

vehicle.” Id. at 359 (citations omitted). Further, it is well settled that “an

inventory search is reasonable if it is conducted pursuant to reasonable

standard police procedures and in good faith and not for the sole purpose of

investigation.” Id. (citation omitted).

          In determining whether a proper inventory search has
          occurred, the first inquiry is whether the police have
          lawfully impounded the automobile, i.e., have lawful
          custody of the automobile. The authority of police to
          impound vehicles derives from the police’s reasonable
          community care-taking functions. Such functions include
          removing disabled or damaged vehicles from the highway,
          impounding automobiles which violate parking ordinances
          (thereby jeopardizing public safety and efficient traffic
          flow), and protecting the community’s safety.

Lagenella, 83 A.3d 94, at 102-03.

        In Lagenella, our Supreme Court considered an inventory search of a

safely parked car pursuant to the specific provisions of 75 Pa.C.S. § 6309.2

regarding persons operating a vehicle with a suspended license. Id. at 99-

100.     The Lagenella Court held that “a vehicle which has simply been

immobilized in place is not in the lawful custody of police for purposes of

an inventory search.”    Id. at 104 (emphasis added).      The Court further

concluded that the officer in that case did not have the authority to tow

under Section 6309.2(a)(1) and the inventory search could not be justified

in anticipation of towing the vehicle.4 Id. at 101.


4
    The Lagenella Court noted:



                                     -8-
J-S32045-17


        Instantly, Appellant’s arguments based on his status as a business

invitee fails to identify any error in the trial court’s conclusion that “[a]s soon

as [Appellant] was arrested he no longer occupied any permissible status as

a business invitee on the premises of the 7-11 convenience store.” Trial Ct.

Op. at 10. More significantly, Appellant fails to respond to the trial court’s

suggestion that the inventory search was proper under Lagenella because a

violation of 75 Pa.C.S. § 3353 authorized the arresting officer to tow the

vehicle. See Trial Ct. Op. at 11. Appellant fails to cite to or discuss Section

3353(b),5 which creates the summary offense of unattended vehicle on




           Section 6309.2(a)(1) provides that, where a person
           operates a vehicle while his or her license is suspended, a
           law enforcement officer shall immobilize the vehicle and
           notify the appropriate judicial authority, or, “in the
           interest of public safety, direct that the vehicle be
           towed and stored by the appropriate towing and storage
           agent.” 75 Pa.C.S.A. § 6309.2(a)(1) (emphasis added).

Lagenella, 83 A.3d at 101.
5
    Section 3353(b) states:

           Unattended vehicle on private property.—

           (1) No person shall park or leave unattended a vehicle on
           private property without the consent of the owner or other
           person in control or possession of the property except in
           the case of emergency or disablement of the vehicle, in
           which case the operator shall arrange for the removal of
           the vehicle as soon as possible.

           (2) The provisions of this subsection shall not apply to
           private parking lots unless such lots are posted to notify



                                       -9-
J-S32045-17


private property, or the trial court’s conclusion that he was in violation of

that provision. Therefore, we are constrained to find Appellant’s claim that

the arresting officer lacked the authority to tow his vehicle waived.   See

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)( “[W]here an

appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful

fashion capable of review, that claim is waived.”)

      Similarly, since Appellant’s argument that the officer exceeded the

scope of an inventory search relates to his claim that the officer lacked the

authority to tow, that claim is waived as well.

      Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/30/2017


         the public of any parking restrictions and the operator of
         the vehicle violates such posted restrictions.     For the
         purposes of this section “private parking lot” means a
         parking lot open to the public or used for parking without
         charge; or a parking lot used for parking with charge. The
         department shall define by regulation what constitutes
         adequate posting for public notice.

75 Pa.C.S. § 3353(b)(1)-(2). Although Appellant raises an argument based
on the absence of signage, he fails to cite, discuss, or seek relief based on
the exception to Subsection (b)(1) created by Subsection (b)(2).




                                    - 10 -
