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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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),1one count of 

possession of drug paraphernalia,2and 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).
J-S41034-15

- 2 -

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 
J-S41034-15

- 3 -

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 
J-S41034-15

- 4 -

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). 
J-S41034-15

- 5 -

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).
J-S41034-15

- 6 -

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 
J-S41034-15

- 7 -

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:
J-S41034-15

- 8 -

(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 
J-S41034-15

- 9 -

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 
J-S41034-15

- 10 -

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. 
J-S41034-15

- 11 -

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 
J-S41034-15

- 12 -

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)
J-S41034-15

- 13 -

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).