J-S37018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

HOWARD LYON,

                         Appellant                 No. 1458 EDA 2014


                     Appeal from the Order April 14, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): MC-51-CR-0016459-2013


BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED AUGUST 07, 2015

      Appellant, Howard Lyon, appeals from the order denying his petition to

the Court of Common Pleas of Philadelphia County for a writ of certiorari.

We affirm.

      The trial court summarized the procedural history of this case as

follows:

            [Appellant] was arrested on April 27, 2013, and charged
      with knowingly or intentionally possessing a controlled substance
      by a person not registered under the [A]ct, 35 P.S. § 780-113
      §§ (a)(16). On September 16, 2013, the matter commenced
      before the Philadelphia Municipal Court with [Appellant’s]
      counsel, Beverly Beaver, Esq., proceeding by way of a motion to
      suppress any and all physical evidence recovered from
      [Appellant] by members of the Philadelphia Police Department.
      Ms. Beaver’s motion alleged that the police officers lacked
      probable cause or reasonable suspicion to stop, arrest, and
      search [Appellant]. At the motion to suppress hearing, the
      Commonwealth presented live testimony of Philadelphia Police
      Officer Daniel Caban.     At the culmination of the evidence
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      presented, the lower court denied [Appellant’s] motion to
      suppress.

             The Commonwealth then moved to incorporate all
      relevant, non-hearsay testimony from the motion record into
      trial, as well as C-1 (the property receipt) and C-2 (the seizure
      analysis indicating a positive presence of cocaine base). A bench
      trial was then held on that same day, and [Appellant] was found
      guilty, beyond a reasonable doubt, of the above charged
      offense; he was then sentenced to 14 months of reporting
      probation.

             Ms. Beaver then filed a motion to vacate the sentence so
      she could make additional arguments. The lower court granted
      that motion, and it held a hearing on November 19, 2013.
      There, Ms. Beaver argued that her motion to suppress should be
      granted not because the officer’s actions were unlawful under
      the law that he knew at the time, but because the statute is
      unconstitutional. Further, Ms. Beaver alleged that the statute
      violates the Equal Protection Clause of both the Pennsylvania
      and United States Constitutions in that the law is not narrowly
      tailored to advance a compelling government interest.       Ms.
      Beaver’s arguments were held under advisement and then later
      denied. On December 27, 2013, [Appellant] was resentenced
      again to 14 months of reporting probation.

            [Appellant] then filed a petition for Writ of Certiorari
      seeking review of the lower court’s denial of his motion to
      suppress. This Court held a hearing on April 14, 2014, and
      denied [Appellant’s] petition. [Appellant] timely filed his Notice
      of Appeal on May 9, 2014. Pursuant to this Court’s directive,
      [Appellant] timely filed his 1925(b) statement of errors
      complained of on appeal on June 10, 2014.

Trial Court Opinion, 10/30/14, at 1-3 (internal citations omitted).

      The trial court made the following factual findings:

      1.    On April 27, 2013, Officer Daniel Caban was on a tour of
      duty as a SEPTA police officer in the city and county of
      Philadelphia. Between the hours of 6:30 p.m. and 7 p.m.,
      Officer Caban’s tour of duty took him to the area of the 2700
      block of Kensington Avenue.


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      2.    There, Officer Caban encountered [Appellant] at the
      Kensington and Somerset Station. Officer Caban was standing
      at the platform of the station looking down where he observed
      [Appellant] drinking out of an open can of Coors Light beer.

      3.    Officer Caban intended to head to the highway and
      perform an investigative stop, but he noticed that [Appellant]
      was actually coming towards the station. Officer Caban saw
      [Appellant] walking up the westbound stairway.

      4.    Officer Caban stopped [Appellant] there in the middle of
      the stairway. [Appellant] passed right by the officer, and Officer
      Caban called him back. [Appellant] stumbled. Officer Caban
      could tell when he started to talk to the man that he was a little
      intoxicated at that time. [Appellant’s] eyes were glassy and he
      displayed instability of balance. [Appellant] reportedly put both
      his hands on the steps in an effort to maintain or regain his
      balance when the officer asked him for his identification as he
      was walking up the stairway.

      5.    Officer Caban then informed [Appellant] that he was being
      placed under arrest for an open container violation.

      6.    Officer Caban then effectuated the arrest and searched
      [Appellant’s] person incident to that arrest.    Officer Caban
      recovered a clear plastic bag containing 19 small little purple
      packets containing a white chunky substance, alleged crack
      cocaine. [Appellant] was taken to East Detectives at the time
      and the items were placed on a Property Receipt No. 3694875.

      7.   The seizure analysis subsequently indicated a positive
      presence of cocaine base.

      8.   The lower court found [Appellant] guilty of intentional
      possession of a controlled substance and sentenced him to 14
      months of reporting probation.

Trial Court Opinion, 10/30/14, at 3-4 (internal citations omitted).

      Appellant presents the following issue for our review:

           Did not the lower court err when it denied Appellant’s
      motion to suppress physical evidence, when it held that 53 P.S.
      § 13349, authorizing the arrest of an individual for a violation of

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      any local ordinance in a city of the first class when such a broad
      right to arrest for a violation of a local ordinance does not exist
      in cities of any other class in the Commonwealth of
      Pennsylvania, does not violate the Equal Protection Clause of the
      Fourteenth Amendment of the United States Constitution, Article
      III, § 20 of the Pennsylvania Constitution, the 4th and 14th
      Amendments to the United States Constitution and Article 1, § 8
      of the Pennsylvania Constitution?

Appellant’s Brief at 2.

      Appellant maintains that 53 P.S. § 13349 is unconstitutional because it

violates the equal protection clauses of the United States and Pennsylvania

Constitutions.   Appellant’s Brief at 14.    Appellant further asserts that the

statute implicates a fundamental right and therefore must satisfy the strict

scrutiny standard of review. Id. at 21-25. Appellant argues that the statute

is unconstitutional because it “does not meet a compelling government

interest and is not narrowly tailored.” Id. at 14, 27-30. Appellant contends

that the statute allows for similarly situated individuals to be subject to

disparate treatment because the statute allows for the arrest and search of

individuals pursuant to local ordinance in some jurisdictions in Pennsylvania

but not in other jurisdictions.    Id. at 15-16, 32.      As a result, Appellant

argues, the motion to suppress should have been granted because the law

permitting arrests for violations of a local ordinance in cities of the first class

is unconstitutional. Id. at 33.

      We review a trial court’s decision regarding a motion to suppress

according to the following standard:




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           Our standard of review of a denial of suppression is
     whether the record supports the trial court’s factual findings and
     whether the legal conclusions drawn therefrom are free from
     error. Our scope of review is limited; we may consider only the
     evidence of the prosecution 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 findings of
     the suppression court, we are bound by those facts and may
     reverse only if the court erred in reaching its legal conclusions
     based upon the facts.

Commonwealth v. McRae, 5 A.3d 425, 429 (Pa. Super. 2010).

     In addressing Appellant’s claim, we note the following tenets:

“Legislative acts of the general assembly enjoy a strong presumption of

constitutionality and the party challenging the legislation bears a heavy

burden of persuasion.   Legislation will not be invalidated unless it clearly,

palpably, and plainly violates the constitution....” DeFazio v. Civil Service

Commission of Allegheny County, 756 A.2d 1103, 1105 (Pa. 2000)

(internal citations and quotation marks omitted).

     [I]t is now generally accepted that the meaning and purpose of
     the Equal Protection Clause of the United States Constitution,
     see U.S. Const. amend. XIV, § 1, and the state Constitution’s
     prohibition against special laws, see Pa. Const. art. III, § 32, are
     sufficiently similar to warrant like treatment, and that
     contentions concerning the two provisions may be reviewed
     simultaneously. In particular, Article III, Section 32 and the
     Equal Protection Clause both reflect the principle that like
     persons in like circumstances must be treated similarly.

            Equal protection principles do not, however, vitiate the
     Legislature’s power to classify, which necessarily flows from its
     general power to enact regulations for the health, safety, and
     welfare of the community. Nor do they prohibit differential
     treatment of persons having different needs, provided the
     classifications at issue bear a reasonable relationship to a
     legitimate state purpose. In this regard, a classification, though

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       discriminatory, will be deemed reasonable if any state of facts
       reasonably can be conceived to sustain it.            However, a
       classification will be struck down if it is based upon artificial or
       irrelevant distinctions used for the purpose of evading the
       constitutional prohibition.     In undertaking its analysis, a
       reviewing court is free to hypothesize reasons the Legislature
       might have had for the classification.

Harrisburg School Dist. v. Zogby, 828 A.2d 1079, 1088 (Pa. 2003) (some

internal citations and quotation marks omitted).

       It is well settled in this Commonwealth that “the Legislature is

permitted to treat cities of different sizes differently, particularly as

classifications of cities and school districts based upon population are

deemed general legislation and are specifically authorized by our state

Constitution.” Zogby, 828 A.2d at 1089-1090.

       The statute at issue in this case, 53 P.S. § 13349, provides as follows:

       § 13349. Summary proceedings for violation of ordinances

       Any police officer or constable, upon view of the breach of any
       ordinance of any city of the first class,[1] is authorized to
       forthwith arrest the person or persons so offending, without any
       process, and to take said person or persons forthwith before any
       police magistrate or alderman of said city, who shall thereupon
       require bail for the appearance of said person at a time to be
       fixed for the hearing of said charge, and in default of bail to
       commit for a hearing; and at said hearing the case shall be
       proceeded with as if the parties were appearing before said
       magistrate or alderman upon a summons duly issued and
       returned served, or if both parties desire it the case may be
       entered and determined by the magistrate or alderman in like
       manner, without requiring bail or further continuance.
____________________________________________


1
  Philadelphia is the only “city of the first class” in Pennsylvania.
Commonwealth v. Rose, 755 A.2d 700, 703 n.3 (Pa. Super. 2000).



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     Philadelphia’s    “open   container”   ordinance   prohibits   the      public

consumption or possession of an open container of alcoholic beverages in a

public right-of-way.   Philadelphia Code § 10-604.       It is undisputed that

Appellant violated this ordinance when Officer Caban observed Appellant

drinking from an open can of beer in a public right-of-way.

     We have stated the following when reviewing an equal protection

challenge:

             When addressing an equal protection challenge, we must
     initially ascertain the appropriate degree of scrutiny to which the
     challenged act is to be subjected. Equal protection analysis
     recognizes three types of governmental classification, each of
     which calls for a different standard of scrutiny. The appropriate
     standard of review is determined by examining the nature of the
     classification and the rights thereby affected.

            In the first type of case, where the classification relates to
     who may exercise a fundamental right or is based on a suspect
     trait such as race or national origin, strict scrutiny is required.
     When strict scrutiny is employed, a classification will be invalid
     unless it is found to be necessary to the achievement of a
     compelling state interest.

           The second type of case involves a classification which,
     although not suspect, is either sensitive or important but not
     fundamental. Such a classification must serve an important
     governmental interest and be substantially related to the
     achievement of that objective.

           The third type of situation involves classifications which are
     neither suspect nor sensitive or rights which are neither
     fundamental nor important. Such classifications will be valid as
     long as they are rationally related to a legitimate governmental
     interest.

Commonwealth v. Beshore, 916 A.2d 1128, 1133-1134 (Pa. Super. 2007)




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      Appellant maintains that because the statute authorizes the arrest of

an individual, it necessarily implicates the right to be free from an

unreasonable search and seizure.       Appellant’s Brief at 21.      Moreover,

Appellant asserts, the right to be free from unreasonable searches and

seizures is a “fundamental right.” Id. at 22. As a result, Appellant argues,

the statute must satisfy the “strict scrutiny” standard of review. Id. at 24.

      Upon review of the challenged statute, we note that it allows an officer

to conduct an arrest of an individual in a city of the first class if that

individual violates a local ordinance in the officer’s presence. The officer’s

ability to arrest an individual does not stand alone. Instead, the power to

arrest must be triggered by the violation of a local ordinance. In this case,

the triggering element was Appellant’s violation of the open container

ordinance.

      After review of both the local ordinance § 10-604 and 53 P.S. § 13349,

we cannot agree that either implicates a fundamental right. First, we cannot

conclude that Appellant has a fundamental right to drink from an open

container in a public right-of-way.   Moreover, we discern no constitutional

right implicated by a lawful arrest.    Indeed, Appellant concedes that the

United States Supreme Court “has held that it is constitutionally permissible

to arrest an individual simply for the violation of a summary or fine-only

offense without the presence of other circumstances that could justify

arrest.” Appellant’s Brief at 31.


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      Furthermore, this statute classifies on the basis of population and

locality.   The classification is not based on a suspect trait such as race or

national origin. Thus, a strict scrutiny standard of review is not implicated.

      Additionally we conclude, and Appellant does not argue, that the

classification is not based upon grounds which would merit an intermediate

or a heightened standard of review.     Thus, we agree with the trial court’s

conclusion that the rational basis test is the proper level of scrutiny to be

applied in the instant matter.

      Our Supreme Court has established the following test when applying

the rational basis test:

            In applying the rational basis test, we have adopted a two-
      step analysis. First, we must determine whether the challenged
      statute seeks to promote any legitimate state interest or public
      value. If so, we must next determine whether the classification
      adopted in the legislation is reasonably related to accomplishing
      that articulated state interest or interests.

Commonwealth v. Albert, 758 A.2d 1149, 1152 (Pa. 2000).

      Given a rational-basis review, we find the statute serves a legitimate

state interest, namely the promotion of public safety and general welfare.

Considering the densely populated city, the state has a legitimate interest in

prohibiting the consumption of alcoholic beverages in public right-of-ways.

We conclude that a legitimate state interest in curbing consumption of

alcoholic beverages in public, and the potential related conduct, in order to

promote public safety and general welfare in Philadelphia is served by this

statute, and equal protection is not thereby offended.

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      We find further support for this conclusion in language provided by our

Supreme Court:

      [M]ere identification of a geographic disparity is insufficient to
      establish a constitutional violation.          See McGowan v.
      Maryland, 366 U.S. 420, 427, 81 S.Ct. 1101, 6 L.Ed.2d 393
      (1961) (explaining that equality guarantees relate to “equality
      between persons as such, rather than between areas, and ...
      territorial uniformity is not a constitutional prerequisite”). Thus,
      such variations may be constitutionally valid, assuming the
      presence of a sufficient governmental interest (for example,
      rational basis or compelling interest, depending upon the
      character of the interest involved).

Commonwealth v. Bavusa, 832 A.2d 1042, 1052 (Pa. 2003).

      Furthermore, we cannot conclude that the statute created a suspect

geographic class.   It is well-settled that “a statute may be deemed per se

unconstitutional if, under the classification, the class consists of one member

and is closed or substantially closed to future membership.” Markovsky v.

Crown Cork & Seal Co., 107 A.3d 749, 757 (Pa. Super. 2014).                  While

Philadelphia is currently the only member of the first class based on its

population, having only one member does not per se invalidate a statute.

Harristown Dev. Corp. v. Commonwealth Dept. of General Services,

614 A.2d 1128, 1132, n.9 (Pa. 1992).          The class at issue is not closed.

Rather, it remains open, and the law has been crafted so as to allow

additional cities to join the class should they become sufficiently large in




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population.2 As the class is not closed, the classification of one member is

not unconstitutional. Id.

       Because 53 P.S. § 13349 is not unconstitutional, the arrest of

Appellant for violation of the local ordinance was lawful.           Moreover, the

search of Appellant’s person pursuant to that arrest was lawful. Accordingly,

we conclude that the Municipal Court properly denied Appellant’s motion to

suppress the contraband discovered on Appellant’s person during the search

pursuant to his arrest. Thus, the Court of Common Pleas did not commit an

abuse of discretion in declining to grant Appellant’s writ of certiorari.

       Order affirmed.




____________________________________________


2
    The statute defining a city of the first class, inter alia, provides as follows:

       § 101. Purpose of classification; division into classes

       For the purpose of legislation regulating their municipal affairs,
       the exercise of certain corporate powers, and having respect to
       the number, character, powers, and duties of certain officers
       thereof, the cities now in existence and those hereafter created
       in this Commonwealth shall be divided into four classes:

              Those containing a population of one million or over
              shall constitute the first class.

53 P.S. § 101.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2015




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