Commonwealth of Pa. v. Lagenella

17 A.3d 1257

2011 PA Super 68

COMMONWEALTH of Pennsylvania, Appellee

v.Francis Patrick LAGENELLA, Jr., Appellant.

Superior Court of Pennsylvania.

Argued Dec. 7, 2010.Filed April 5, 2011.

Damian J. DeStefano, Public Defender, Harrisburg, for appellant.Christopher J. Schmidt, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.BEFORE: STEVENS, SHOGAN, and MUNDY, JJ.OPINION by STEVENS, J.:

Appellant Francis Patrick Lagenella, Jr., (hereinafter “Appellant”), appeals from the judgment of sentence entered in the Court of Common Pleas of Dauphin County on January 11, 2010, at which time he was sentenced to an aggregate term of three (3) years to ten (10) years in prison after he was convicted of Theft by receiving stolen property ¹ and two counts of Persons not to possess, use, manufacture, control, sell or transfer firearms ² following a stipulated waiver trial.³ Upon a review of the record, we affirm.

The trial court set forth the following summary of the facts revealed at the suppression hearing on September 22, 2009:

At approximately 1:42 a.m. on December 31, 2008, Corporal Terry Wealand of the Harrisburg Bureau of Police initiated a traffic stop of a Black Ford Mustang in the 500 block of Woodbine Street in Harrisburg. [N.T., 9–22–09, pp. 2–5].³ Corporal Wealand requested and received from [Appellant] his driver's license, registration, and insurance documents. [N.T., 9–22–09, pp. 5–6]. Corporal Wealand noted that [Appellant]'s vehicle did not have the required emission inspection sticker and, upon investigating the status of [Appellant's] license, it was discovered that [Appellant's] license was under suspension. [N.T., 9–22–09, pp. 6–7].

Corporal Wealand issued two citations to [Appellant] and told him he was free to leave. [N.T., 9–22–09, p. 8]. Corporal Wealand also told [Appellant] that he was going to have the car towed due to [Appellant's] licensing status, and that the Harrisburg Bureau of police mandates an inventory of a vehicle that is to be impounded and towed. [N.T., 9–22–09, pp. 8–10]. Pursuant to this policy, any personal property within the vehicle valued at more than $5.00 must be listed on the computerized form. Accordingly, Corporal Wealand conducted an inventory of the vehicle, including the trunk. [N.T., 9–22–09, pp. 9–10].

During the inventory, [Appellant] asked it he could stay and watch. Corporal Wealand told him he was free to stay but did not have to stay. [N.T., 9–22–09, p. 9]. During the inventory of the trunk, Corporal Wealand observed a shotgun and a rifle in plain view. [N.T., 9–22–09, p. 13] Based upon a computer check, Corporal Wealand was aware that [Appellant] was a convicted felon who was barred from possessing firearms. [N.T., 9–22–09, p. 14]. [Appellant] was arrested and taken into custody.

Trial Court Opinion filed April 19, 2010, at 3–4.

On February 5, 2010, Appellant filed a timely notice of appeal. In an Order entered on February 18, 2010, the trial court directed Appellant to file a statement of matters complained on Appeal; Appellant filed the same on March 10, 2010, wherein he averred the following:

^1. 18 Pa.C.S.A. 3925(a).

1. The denial of [Appellant's] Motion to Dismiss Reinstituted Charges and Writ of Habeas Corpus pertaining to the two (2) counts of Persons not to Possess Firearms was in error. 18 Pa.C.S.A. § 6105, Pa.R.Crim.P. 132, 544, 551.

2. This Honorable Court erred when it denied in part [Appellant's] Motion to Suppress Physical Evidence.

In his brief, Appellant raises the following issues for our review:

^1. Did the trial court err when it failed to suppress physical evidence and Appellant's statements obtained during an inventory search of the vehicle?

^2. Did the trial court err when it denied [Appellant's] Motion to Dismiss Reinstituted Charges and Writ of Habeas Corpus pertaining to the two (2) counts of Persons not to possess firearms, 18 Pa.C.S.A. § 6105?

Brief for Appellant at 4.

Our Supreme Court set forth our standard of review when addressing a challenge to a trial court's denial of a suppression motion as follows:

Our standard of review in addressing a challenge to a trial court's denial of a suppression motion 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, 573 Pa. 426, 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. Id. 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. Id.

In re J.E., 594 Pa. 528, 535, 937 A.2d 421, 425 (2007).

Appellant argues that when an individual is stopped on the highway for a summary offense, police lack statutory authority to impound his or her vehicle and police officers may not tow a vehicle simply because their agency has issued a written order authorizing them to do so. Appellant further asserts that 75 Pa.C.S.A. § 6309.2 ⁴ allows for a vehicle to be immobilized and to be towed only if there is an issue of public safety. In support of his contentions Appellant relies upon Commonwealth v. Thurman, 872 A.2d 838 (Pa.Super.2005), appeal denied, 585 Pa. 688, 887 A.2d 1241 (2005) ⁵ and argues the instant matter is distinguishable from Commonwealth v. Henley, 909 A.2d 352 (Pa.Super.2006) (en banc) appeal denied 592 Pa. 786, 927 A.2d 623 (2007).⁶ Brief for Appellant at 15–20.

Appellant also maintains there were no exigent circumstances which would provide for a warrantless search of his vehicle and that Corporeal Wealand searched the trunk to uncover additional criminal evidence after finding suspected contraband in Appellant's eyeglass case which he did not voluntarily consent to have opened. Brief at 25–27. Appellant concludes that:

... Corporal Terry Wealand conducted an improper warrantless search of Appellant's vehicle. The Appellant's vehicle should not have been towed because it was not towed pursuant to the care-taking functions of law enforcement. Further, Corporal Wealand conducted an improper inventory search because it was not pursuant to reasonable, written police procedures. Also, there were alternatives to securing Appellant's personal items other than by taking an inventory of the vehicle's contents. Corporal Wealand conducted an unlawful warrantless search of the trunk of Appellant's vehicle pursuant to a criminal investigation. Moreover, consent to search the eyeglass case found in the jacket was not given voluntarily. Finally, the plain feel doctrine does not justify the seizure and subsequent search of the eyeglass case. Therefore, said search and seizure of Appellant's vehicle was illegal, and thereby constitutes a violation of the right to be free from illegal search and seizure under the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution....

Brief for Appellant at 30–31.

Recently, when considering claims which parallel the arguments Appellant has set forth herein concerning whether a proper inventory search of an automobile had occurred, a panel of this Court reasoned as follows:

[T]he first inquiry is whether the police have lawfully impounded the automobile, i.e., have lawful custody of the automobile.... The second inquiry is whether the police have conducted a reasonable inventory search. Henley, 909 A.2d at 359 (citations omitted). Regarding the first requirement, in Henley this Court noted “[t]he authority of the 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.” Id. (citations omitted). The police's authority to take custody of a vehicle, however, also derives from section 6309.2, [FN5] which in relevant part provides as follows:

5. See Henley, 909 A.2d at 364 (holding that section 6309.2 coexists with “the traditional community care-taking functions of the police.”)

* * *

Therefore, pursuant to section 6309.2(a)(1), an officer who stops a vehicle operated by a person whose driving privilege is, inter alia, suspended, is faced with two options: immobilize the vehicle in place or, if it poses public safety concerns, have it towed and stored at an impound lot. Once the vehicle is immobilized or impounded under section 6309.2, the vehicle is in the lawful custody of the police.

The relevant requirements for purposes of immobilization are: (i) the person operates a motor vehicle while the person's operating privilege is suspended, revoked, canceled, recalled or disqualified or where the person is unlicensed, as verified by an appropriate law enforcement officer in cooperation with the department, and (ii) the vehicle does not pose public safety concerns. For purposes of towing, the requirements are: (i) the person operates a motor vehicle while the person's operating privilege is suspended, revoked, canceled, recalled or disqualified or where the person is unlicensed, as verified by an appropriate law enforcement officer in cooperation with the department and (ii) the vehicle poses public safety concerns warranting its towing and storage at an impound lot.

Thompson argues the vehicle did not pose public safety concerns and therefore the vehicle could not be towed, but only immobilized. Thompson, in fact, argues the police had no authority to tow the vehicle but does not argue the police did not have sufficient grounds for immobilizing the vehicle.

We first note any discussion regarding whether the requirements for towing the vehicle have been met here is unnecessary...