J-S41034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

DAVID MICHAEL WILFONG,

                            Appellant                   No. 1922 MDA 2014


            Appeal from the Judgment of Sentence October 17, 2014
                  in the Court of Common Pleas of York County
               Criminal Division at No.: CP-67-CR-0006034-2013


BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED AUGUST 21, 2015

        Appellant appeals from the judgment of sentence following his

conviction of two counts of driving under the influence (DUI), 1 one count of

possession of drug paraphernalia,2 and two summary offenses. On appeal,

Appellant challenges the trial court’s denial of his motion to suppress. For

the reasons discuss below, we affirm.

        We take the underlying facts and procedural history in this matter

from the notes of testimony of the suppression hearing and our independent

review of the certified record. On March 30, 2013, at approximately 3:20
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. §§ 3802(a)(1)(i) and (d)(1)(iii).
2
    35 P.S. § 780-113(a)(32).
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p.m., Sergeant Darryl Smuck of the Southern Regional Police was on routine

patrol in the borough of Loganville in York County. (See N.T. Suppression

Hearing, 3/26/14, at 9-10).     Sergeant Smuck was sitting at the exit to a

parking lot, preparing to make a right turn, when he observed a vehicle with

a large splintered windshield pass him; he saw two men in the vehicle. (See

id. at 11). He pulled out and began to follow the vehicle. (See id. at 12).

As he did, the vehicle began to weave within its travel lane and traveled at

an inconsistent speed. (See id.). Sergeant Smuck ran the vehicle license

plate, which “came back as a dead tag, not a legally registered vehicle.”

(Id.).     The vehicle turned right onto Route 216 and Sergeant Smuck

activated his lights and sirens to make a traffic stop. (See id.). The vehicle

continued driving at a slow speed and weaving back and forth, as it rounded

a curve, it pulled to the side of the road.     (See id.).   Sergeant Smuck

testified that the curve in question is very sharp and dangerous and many

accidents and fatal accidents happened there. (See id.). He stated that a

fatal accident occurred on the exact spot that Appellant pulled over. (See

id. at 12-13).     He also averred that he did not believe Appellant legally

parked the vehicle, as he thought the spot might be part of someone’s yard.

(See id. at 13).

         As soon as the vehicle pulled over, the passenger jumped out and the

driver (later identified as Appellant) slid over and exited the passenger door.

(See id. at 13). They both approached the police car. (See id.). Sergeant


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Smuck ordered them to stand by their vehicle.       (See id.).   Noting that

Appellant was “very aggravated,” Sergeant Smuck requested assistance

from other officers. (Id.). Two state troopers responded. (See id. at 14).

Sergeant Smuck then initiated contact with Appellant, asking him why he

exited his vehicle, and requesting his driver’s license, registration, and

insurance card. (See id.). Appellant told Sergeant Smuck that the vehicle

had been in an accident and the driver’s side door did not work. (See id.).

       As Sergeant Smuck spoke with Appellant, he observed that the

passenger kept looking into the vehicle and Appellant remained very upset.

(See id.). Concerned for his safety, Sergeant Smuck requested that the

passenger come to the rear of the vehicle. (See id.). Sergeant Smuck then

glanced into the vehicle to ascertain that there were no readily available

weapons and, as he did, he smelled the odor of marijuana. (See id. at 14-

15).   He then returned to his vehicle to run Appellant’s information and

observed that Appellant continued to pace around.           (See id. at 15).

Appellant complained that Sergeant Smuck was violating his constitutional

rights. (See id. at 16). Sergeant Smuck then placed Appellant in handcuffs

as a precaution. (See id.).

       One of the state police officers informed Sergeant Smuck that he was

familiar with the vehicle, knew that it had been involved in an accident, and

that it was not supposed to be on the road.    (See id.).    Sergeant Smuck

contacted the insurance carrier who told him that it removed the vehicle


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from the insurance policy at the end of 2012. (See id. at 17). Sergeant

Smuck ascertained that the vehicle had not been inspected, was not legally

tagged, and was not insured.           (See id.).     Sergeant Smuck thought that,

parked on the curve, the vehicle represented a danger.                      (See id.).

Therefore, he requested a tow truck.             (See id.).    Sergeant Smuck also

believed, based upon the odor of marijuana, that Appellant was driving

under the influence.       (See id.).    However, Appellant refused to submit to

field sobriety tests. (See id.).

       Sergeant Smuck did not feel that he could arrest Appellant for a DUI.

(See id.). He advised Appellant that he could not drive the vehicle, which

would be towed, and offered to allow Appellant to make a telephone call to

arrange for a ride. (See id. at 18-19). Appellant refused, saying he lived

nearby and would walk home. (See id. at 18).

       As Appellant began walking away, another police officer from the

Southern Regional Police, in accordance with department policy, began an

inventory search of the vehicle and discovered a glass smoking pipe with

residue    that   was    later   determined      to   be   marijuana   in   the   glove

compartment.3 (See id.; see also N.T. Trial, 8/18/14, at 24). Because the

police had discovered contraband, they stopped the search and, in

____________________________________________


3
 Sergeant Smuck explained that it was department policy to do an inventory
search prior to towing to make sure there were no valuables because a
private company tows the vehicles. (See id. at 25-26).



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accordance with department policy, decided to apply for a search warrant.

(See N.T. Suppression Hearing, 3/26/14, at 18).        Believing he now had

reasonable suspicion that Appellant was driving under the influence,

Sergeant Smuck drove up to Appellant, who was walking down the road,

explained what they found, and again asked him to do a breath test. (See

id. at 18-19).     Appellant refused, Sergeant Smuck then arrested him and

transported him to the hospital for a blood test.4 (See id.).

       Following his arrest, Appellant moved to suppress the evidence found

in the car, contending that the inventory search was illegal. (See Omnibus

Pre-Trial Motion, 2/06/14, at unnumbered pages 2-7). Following a hearing,

on March 26, 2014, the trial court denied the motion to suppress, finding

that the procedure employed by the police was “appropriate under the

circumstances” because the “vehicle created an issue with regards to public

safety.” (See N.T. Suppression Hearing, 3/26/14, at 31).

       On August 18, 2014, following a bench trial, the trial court convicted

Appellant of the aforementioned offenses. (See N.T. Trial, 8/18/14, at 48-

49). On August 28, 2014, Appellant filed a post-trial motion. (See Motion

for Post-Trial Relief, 8/28/14, at unnumbered pages 1-2).       The trial court

denied the motion on October 15, 2014. (See Order, 10/15/14, at 1).         On

October 17, 2014, the trial court sentenced Appellant to a term of
____________________________________________


4
  At trial, toxicologist Donna Papsun testified that Appellant’s blood tested
positive for marijuana. (See N.T. Trial, 8/18/14, at 42-43).



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incarceration of not less than seventy-two hours nor more than six months

with a consecutive twelve-month term of probation. (See N.T. Sentencing,

10/17/14, at 4-5). The instant, timely appeal followed. On November 18,

2014, the trial court ordered Appellant to file a concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925(b). On December 9, 2014,

Appellant filed a timely Rule 1925(b) statement. On January 12, 2015, the

trial court issued an opinion, disaffirming his prior decision to deny

Appellant’s motion to suppress. See Rule 1925(a).

      On appeal, Appellant raises the following questions for our review:

      I.    Did the [t]rial [c]ourt err in finding the retention and
            impound of the vehicle was necessary and legal?

      II.   Did the [t]rial [c]ourt err in allowing the admission of
            evidence after an unlawful “inventory” search?

(Appellant’s Brief, at 4).

      On appeal, Appellant challenges the denial of his motion to suppress.

(See Appellant’s Brief, at 7-12). When we review a ruling on a motion to

suppress,   “[w]e    must    determine   whether   the   record   supports   the

suppression court’s factual findings and the legitimacy of the inferences and

legal conclusions drawn from these findings.” Commonwealth v. Holton,

906 A.2d 1246, 1249 (Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa.

2007) (citation omitted).     Because the suppression court in the instant

matter found for the prosecution, we will consider only the testimony of the

prosecution’s witnesses and any uncontradicted evidence supplied by


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Appellant. See id. If the evidence supports the suppression court’s factual

findings, we can reverse only if there is a mistake in the legal conclusions

drawn by the suppression court. See id.

     In his first claim, Appellant argues that the retention and impound of

the vehicle was illegal and the vehicle should have been immobilized rather

than impounded. (See Appellant’s Brief, at 7-10). We disagree.

     The procedure regarding immobilization of a vehicle is found at 75 Pa.

C.S.A. § 6309.2, which states in pertinent part:

     (a) General rule.—Subject to subsection (d), the following shall
     apply:

                                 *    *    *

           (2) If a motor vehicle or combination for which there
           is no valid registration or for which the registration is
           suspended, as verified by an appropriate law
           enforcement officer, is operated on a highway or
           trafficway    of   this    Commonwealth,      the    law
           enforcement officer shall immobilize the motor
           vehicle or combination or, in the interest of public
           safety, direct that the vehicle be towed and stored
           by the appropriate towing and storing agent
           pursuant to subsection (c), and the appropriate
           judicial authority shall be so notified.

     (b) Procedure upon immobilization.—

                                 *    *    *

           (2) When a vehicle is immobilized pursuant to
           subsection (a)(2), the owner of the vehicle may
           appear before the appropriate judicial authority
           within 24 hours from the time the vehicle was
           immobilized. The appropriate judicial authority may
           issue a certificate of release upon:


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                    (i) the furnishing of proof of registration
                    and financial responsibility by the owner
                    of the vehicle; and

                    (ii) receipt of evidence that the operator
                    of the vehicle has complied with the
                    pertinent provisions of Title 42 and this
                    title.

75 Pa. C.S.A. § 6309.2(a)(2) and (b)(2)(i) and (ii) (emphasis added).

      Here, Appellant does not dispute that there was no valid registration

for the vehicle but claims that the vehicle did not represent a threat to public

safety. (See Appellant’s Brief, at 9-10).     In so doing, Appellant ignores the

testimony at the suppression hearing and claims that the testimony at trial

showed that the vehicle was not a threat to public safety. (See Appellant’s

Brief, at 10).

      Initially we note that the Pennsylvania Supreme Court has definitively

held that a reviewing court can look only to the record developed at the

suppression hearing in determining the propriety of the suppression

court’s decision.    See In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).         Our

review of the record demonstrates that, at the suppression hearing, the

Commonwealth proved that the vehicle was a threat to public safety. The

testimony established that the vehicle was not inspected, not legally tagged,

unregistered, and uninsured.      (See N.T. Suppression Hearing, 3/26/14, at

12, 17).   The vehicle had been in a serious accident and had a cracked

windshield and a non-functioning driver’s side door. (See id. at 11, 14, 16).

Appellant stopped it on a sharp curve in a spot known for accidents, and, in

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fact, had stopped on the exact spot where a fatal accident had occurred.

(See id. at 12-13). This evidence supports the suppression court’s factual

finding that the “vehicle created an issue with regards to public safety.”

(Id.).

         Further we find Appellant’s argument that the Pennsylvania Supreme

Court’s decision in Commonwealth v. Langanella, 83 A.3d 94 (Pa. 2013)

dictates that we overturn the denial of the motion to suppress to be

misplaced.     In Langanella, the police pulled over a motorist for failing to

use a turn signal and then ascertained that his driver’s license was

suspended and that the vehicle did not have an emissions sticker.         See

Langanella, supra at 96. Although the defendant said that he could call a

friend to drive the vehicle home, the police refused and impounded the

vehicle. See id. at 96-97. At the suppression hearing, the police testified

that the vehicle was undamaged, it was legally parked at the curb, and that

the vehicle neither posed a detriment to the flow of traffic nor created a

safety hazard.     See id. at 98.   Thus, the Supreme Court found that the

Commonwealth had failed to produce any evidence that would allow the

police to impound the vehicle pursuant to 75 Pa. C.S.A. § 6309.2(a)(2).

See id. at 102.

         Here, unlike in Langanella, we are not discussing a situation where

someone else, with a valid license, could drive the car. No one could drive

this car because it was not legal. Further, also unlike in Langanella, there


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was testimony that the car was damaged, that it created a safety hazard in

the spot were Appellant parked it, and that the police officer believed that

the spot was not a legal parking spot.5 Thus, we believe that Langanella

compels the opposite result. Therefore, Appellant’s claim that the retention

and impoundment of the vehicle was illegal must fail.       See Langanella,

supra at 101-02.

       In his second claim, Appellant alleges that the search of his vehicle

was unlawful. (See Appellant’s Brief, at 10-12). We disagree, although we

do so for reasons different from those articulated by the trial court, (see

N.T. Suppression Hearing, 3/26/14, at 31).           See Commonwealth v.

Harper, 611 A.2d 1211, 1213 n.1 (Pa. Super. 1992) (“It is well-settled that

an appellate court may affirm the decision of the trial court if there is any

basis on the record to support the trial court’s action. This is so even if we

rely upon a different basis in our decision to affirm.”).



____________________________________________


5
  Both Appellant and the trial court in its 1925(a) opinion, cite Langanella
for the proposition that a car cannot represent a threat to public safety
unless it is disabled or damaged, impedes the flow of traffic, there is broken
glass, or items of value in plain view. (See Appellant’s Brief, at 9, Trial
Court Opinion, 1/12/15 at 5). However, a review of Langanella clearly
shows that this list was not this Court’s announcement of a test for
determining when a car represents a threat to public safety but rather a
recapping of the testimony of the police officer during the suppression
hearing. See Langanella, supra at 101-02. Thus, there is nothing in
Langanella that suggests a vehicle cannot represent a threat to public
safety for other reasons.



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      In   Commonwealth       v.   Gary,      91   A.3d   102   (Pa.   2014),   the

Pennsylvania Supreme Court adopted the Federal automobile exception to

the warrant requirement, holding that only probable cause and no exigent

circumstances “beyond the inherent mobility of a motor vehicle is required.”

See Gary, supra at 138.      In Commonwealth v. Cabeza, 469 A.2d 146

(Pa. 1983), our Supreme Court stated:

            Therefore, we hold that where an appellate decision
      overrules prior law and announces a new principle, unless the
      decision specifically declares the ruling to be prospective only,
      the new rule is to be applied retroactively to cases where the
      issue in question is properly preserved at all stages of
      adjudication up to and including any direct appeal.

Cabeza, supra at 148.

      Appellant acknowledges this but claims that the issue in question was

not properly preserved.    (See Appellant’s Reply Brief, at 5-6).        Here, the

parties litigated the issue of the lawfulness of the search at all stages of the

proceeding; however, Appellant argues that because he litigated it on a

different theory it was not properly preserved. (See id.). We disagree.

      In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014), the

appellant sought the retroactive application of Alleyne v. United States,

133 S.Ct. 2151 (2013) to his case.         This Court held that although the

appellant had not litigated the specific issue addressed in Alleyne, he had

challenged the legality of his sentence through the proceedings; therefore,

we found that the issue was properly preserved. See Newman, supra at

90. Here, the record clearly reflects that Appellant challenged the legality of

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the search throughout the proceedings, therefore, the issue is properly

preserved and we can apply Gary retroactively. See it. at 90.

       Accordingly, the question before us is whether the police had probable

cause to search Appellant’s vehicle. We find that they did. Appellant was

driving erratically, the vehicle was not “street legal,” both Appellant and the

passenger were agitated throughout the stop, the passenger kept looking

furtively into the vehicle, and Sergeant Smucker smelled an odor of

marijuana in it. (See N.T. Suppression Hearing, 3/26/14, at 12-15). Thus,

probable cause existed to search Appellant’s vehicle. See Commonwealth

v. Gelineau, 696 A.2d 188, 193 (Pa. Super. 1997), appeal denied, 705 A.2d

1305 (Pa. 1998) (reversing trial court and finding probable cause to search

vehicle where officer smelled marijuana); Commonwealth v. Stainbrook,

471 A.2d 1223, 1224-25 (Pa. Super. 1984), (citing Commonwealth v.

Stoner, 344 A.2d 633 (Pa. Super. 1975) (en banc) for proposition that

detection of odor of marijuana is sufficient to establish probable cause to

search vehicle); see also Commonwealth v. Jones, — A.3d —, 2015 WL

4503123, at *3 (Pa. Super. July 24, 2015) (odor of marijuana sufficient

probable cause to arrest for DUI). Appellant’s claim that the search of his

vehicle was unlawful lacks merit.6


____________________________________________


6
 Moreover, even if we found that Gary did not apply, Appellant’s claim lacks
merit because he premises his argument that the search is unlawful on his
(Footnote Continued Next Page)


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      Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




                       _______________________
(Footnote Continued)

claim that the police improperly impounded the vehicle, a claim that we
found lacking in merit. (See Appellant’s Brief, at 10-12).




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