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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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