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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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