J-S34045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JODY KERN BUTTS

Appellee No. 1499 MDA 2015

Appeal from the Order Entered August 4, 2015

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0002661-2015

BEFORE: PANELLA, J., STABILE, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED MAY 24, 2016

The Commonwealth of Pennsylvania appeals from the order entered in 

the York County Court of Common Pleas, which granted a suppression 

motion in favor of Jody Kern Butts (“Appellee”). We affirm.

In its opinion, the trial court correctly and accurately sets forth the 

relevant facts and procedural history1of this case, therefore we have no 

reason to restate them. See Trial Court Pa.R.A.P. 1925(a) Opinion, filed 

October 19, 2015, at 2-4. 

The Commonwealth raises the following issue for our review:

____________________________________________

1

Procedurally, we add, along with its notice of appeal, the Commonwealth 

filed a Pa.R.A.P. 311(d) certification, which stated that the order granting 

Appellee’s suppression motion would terminate or substantially handicap the 

prosecution.
J-S34045-16

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WHETHER THE TRIAL COURT ERRED IN RULING THAT THE 

POLICE LACKED AUTHORITY TO ARREST [APPELLEE] FOR 

DISORDERLY CONDUCT COMMITTED IN THE PRESENCE OF 

THE OFFICERS[?]

Commonwealth’s Brief at 4. 

A suppression order is final for purposes of appeal only. 

Commonwealth v. James, 69 A.3d 180, 185 (Pa.2013). When addressing 

a challenge to a trial court’s ruling on a suppression motion, our standard of 

review is “whether the factual findings are supported by the record and 

whether the legal conclusions drawn from these facts are correct.” 

Commonwealth v. Hawkins, 45 A.3d 1123, 1126 (Pa.Super.2012), appeal 

denied, 53 A.3d 756 (Pa.2012) (internal citation omitted). Further:

When the Commonwealth appeals from a suppression 

order, we follow a clearly defined standard of review and 

consider only the evidence from the defendant’s witnesses 

together with the evidence of the prosecution that, when 

read in the context of the entire record, remains 

uncontradicted. The suppression court’s findings of fact 

bind an appellate court if the record supports those 

findings. The suppression court’s conclusions of law, 

however, are not binding on an appellate court, whose 

duty is to determine if the suppression court properly 

applied the law to the facts.

Commonwealth v. Baker, 946 A.2d 691, 693 (Pa.Super.2008) (quoting 

Commonwealth v. Barber, 889 A.2d 587, 592 (Pa.Super.2005)). 

Moreover, “[i]t is within the suppression court’s sole province as factfinder to 

pass on the credibility of witnesses and the weight to be given their 

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 

(Pa.Super.2006) (citation omitted).
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Additionally, when reviewing the suppression court’s rulings, we 

consider only the suppression record. In re L.J., 79 A.3d 1073, 1085 

(Pa.2013) (“it is inappropriate to consider trial evidence as a matter of 

course, because it is simply not part of the suppression record, absent a 

finding that such evidence was unavailable during the suppression 

hearing.”).

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Maria Musti 

Cook, we conclude the Commonwealth’s issue merits no relief. The trial 

court opinion comprehensively discusses and properly disposes of the 

question presented. See Trial Court Pa.R.A.P. 1925(a) Opinion, filed 

October 19, 2015, at 5-13 (finding: arrest without warrant for summary 

offense of misdemeanor disorderly conduct not authorized by law where 

Appellee’s behavior of yelling and swearing was loud and obnoxious, but did 

not threaten violence or demonstrate ongoing conduct that imperiled 

personal security of any person or endangered public or private property). 

The trial court’s factual findings are supported by the record, and its legal 

conclusions drawn therefrom are correct. Accordingly, we affirm on the 

basis of the trial court opinion. 

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/2016
(r:l.o) 

1 

herein. 

This Court granted Defendant's motion for suppression for the reasons 

of its Opinion and Order filed August 4, 2015. 

Commonwealth, the undersigned files this supplemental statement in support 

Concise Statement of Matters Complained Of on Appeal filed by the 

that an appeal has been filed in this matter, and in consideration of the 

STATEMENT OF LOWER COURT PURSUANT TO · 

PA.R.A.P.1925(a) 

AND NOW, this ,/&=i-i__day of October 2015, upon receipt of a notice 

Renee Franchi, Esquire 

Eric White, Esquire 

For Appellant: 

For Appellee: 

APPEARANCES: 

JODY K. BUTTS, 

Appellee 

v. 

COMM:ONWEALTH OF 

PENNSYLVANIA 

Appellant 

IN THE COURT OF COMMON PLEAS OF YORK COUNTY, 

PENNSYLVANIA 

NO. CP-67-CR-2661-2015 

Circulated 04/26/2016 01:57 PM
2 

FACTUAL AND PROCEDURAL HISTORY 

On March 11, 2015, York City Police officer Benjamin Smith was 

dispatched to 588 West Market Street in York due to reports of a domestic 

disturbance. (N.T. Supp. Hrg., at 14.) Upon arrival, Officer Smith heard 

yelling coming from inside the residence. (N.T. Supp. Hrg., at 14-15.) The 

officer then made contact with the resident of that address who informed him 

that Defendant Jody K. Butts ("Defendant") was inside and wished her to 

leave the premises. (N.T. Supp. Hrg., at 15.) Officer Smith ultimately 

informed Defendant that she must leave the premises. (N.T. Supp. Hrg., at 

15.) At that point, Officer Huncher arrived on the scene. (N.T. Supp. Hrg., at 

15.) Defendant exited the home and "screamed at [the victim]." (N.T. Supp. 

Hrg., at 6, 15.) Defendant, escorted by the officers, went back into the 

residence and collected her belongings. (N.T. Supp. Hrg., at 7, 17.} The 

officers testified that as Defendant exited the premises through the backyard 

of the residence, she "scream[ed] the whole time," was "combative, angry, 

[ and] loud, very loud," and yelled "obscenities" toward the officers and the 

alleged victim. (N.T. Supp. Hrg., at 8-9, 18.) Officer Smith testified that he 

instructed Defendant to cease her yelling three or four times. (N.T. Supp. 
3 

Hrg., at 10, 19.) Officers testified that because Defendant did not stop· 

yelling, the decision was made to arrest Defendant for disorderly conduct. 

(N.T. Supp. Hrg., at 10, 19.) Officers began walking toward Defendant, 

ordered her to stop, and informed her that she was under arrest. (N.T. Supp. 

Hrg., at 10, 19.) 

Once Defendant was in custody, Officer Huncher performed a search . 

incident to arrest. (N.T. Supp. Hrg., at 11, 20.) Officer Huncher testified that 

he discovered what appeared to be a "half burnt marijuana blunt ... in her 

purse." (N.T. Supp. Hrg., at 11.) 

Defendant was charged with a summary count of disorderly conduct 

under 18 PA.C.S.A. § 5503(a)(2) and a misdemeanor count of Possession of a 

Small Amount pursuant to 35 P.S. § 708-113(a)(3 l)(i). Defendant moved to 

suppress the evidence found during the search on the basis that the search 

violated her rights under the Fourth Amendment to the United States 

Constitution and Article I, Section 8 of the Pennsylvania Constitution. (Def.'s 

Omnibus Mot. at iT 7.) This Court held a hearing on Defendant's motion on 

August 4, 2015. During the hearing, Officers John Huncher and Benjamin 

Smith testified about the events surrounding Defendant's arrest. This Court 
4 

I This order was filed with the Clerk of Courts on August 20, 2015. 

concluded that the officers were not authorized to arrest Defendant for the 

summary charge, and, thus, their search of Defendant was improperly 

conducted. On that basis, this Court suppressed the evidence foundduring 

the search. On August 6, 2015, the Commonwealth filed a Motion for 

Reconsideration. This Court denied the Commonwealth's motion on August 

15, 2015,1 without opinion. The Commonwealth filed a Notice of Appeal on 

September 1, 2015. This Court ordered the Commonwealth to file and serve a 

Concise Statement pursuant to Pa. R. App. P. 1925(b). The Commonwealth 

filed its concise statement on September 8, 2015. 

The Commonwealth enumerates two arguments on appeal. The 

Commonwealth argues this Court erred in ( 1) suppressing evidence found 

during the search incident to Defendant's arrest, and (2) concluding that 

officers were not authorized to arrest Defendant for the summary charge of 

disorderly conduct. Because the former point is predicated on the latter, this 

Opinion addresses whether officers lawfully arrested Defendant. 

For the reasons discussed herein, this Court urges affirmance of the 

order suppressing the evidence in this case. 

) 
5 

intended that these proceedings will be instituted by arrest only in exceptional 

where arrest without a warrant for a summary offense is appropriate. "It is 

( emphasis added). This rule also lends some insight into those situations 

authority may institute proceedings by such an arrest." Pa. R. Crim. P. 440 

summary case is authorized by law, a police officer who exhibits some sign.of 

warrant to police officers. It states: "[w]hen an arrest without a warrant in a 

Procedure 440 grants the authority of arrest for a summary offense without a 

authorized by law" to arrest Defendant. Pennsylvania Rule of Criminal 

mandates that this Court determine whether officers were "specifically 

Pa. R. Crim. P. 400 ( emphasis added). The clear language of this rule 

( 1) issuing a citation to the defendant; or 

(2) filing a citation; or 

(3) filing a complaint; or 

( 4) arresting without a warrant when arrest is specifically 

authorized by law." 

"Criminal proceedings in summary cases shall be instituted either by: 

to Pennsylvania Rule of Criminal Procedure 400. That rule states: 

Criminal proceedings may be initiated by a warrantless arrest pursuant 

DISCUSSION 
6 

18 Pa.C.S. § 5503 (relating to 

disorderly conduct). 

· 42 PA.C.S.A. § 8902 (relating to arrest without warrant) (emphasis added). 

(1) Under Title 18 (relating to crimes and offenses) 

when such offense constitutes a summary offense: 

(a) General rule.--For any of the following offenses, a police 

officer shall, upon view, have the right of arrest without warrant 

upon probable cause when there is ongoing conduct that imperils 

the personal security of any person or endangers public or 

private property: 

police officers may arrest a person without a warrant. 

The Pennsylvania legislature expressly granted authority by which 

officers to arrest Defendant for the summary charge of disorderly conduct. 

"exceptional circumstances" existed in the instant case that would allow the 

violence while she was in their presence. Thus, this Court concluded no 

motion that Defendant made any specific threats of violence or acted out in 

neither officer testified at the hearing on Defendant's omnibus pre-trial 

Defendant's behavior was loud, and even obnoxious. Notably, however, 

The testimony presented at the suppression hearing indicated that 

violence .... " Comment to Pa. R. Crim. P. 440 (emphasis added). 

circumstances such as those involving violence, or the imminent threat of 

I ) . 
7 

2 This Court notes that the term "breach of the peace" is likely to connote an element of violence. See 

Atwater v. City of Lago Vista, 532 U.S. 318, 328 FN.2 (2001) (noting conflict between varying definitions of 

the term, but ultimately construing it narrowly to entail "at least a threat of violence."). 

limit the power of police officers to arrest without a warrant for summary 

promulgating 42 PA.C.S.A. § 8902, the Pennsylvania legislature intended to 

This Court's review of relevant law, however, indicates that in 

arrest in summary cases. (Com. 's Mot. for Recons. at, 21.) 

is in addition to, and not a limitation of, an officer's common law authority to 

Instead, the Commonwealth posited that the authority granted by section 8902 

any requirement of conduct that imperils the personal security of any person. 

cause of any "breach of the peace'r' committed in his or her presence without 

The Commonwealth argued that an officer may arrest uponprobable 

imperiled any person's security or endangered public or private property. 

Again, this Court did not find that the ongoing conduct of Defendant 

personal security of any person or endangers public or private property." 

enumerated offenses, but only if "there is ongoing conduct that imperils the 

arrest without a warrant upon probable cause of disorderly conduct and other 

A plain-language reading of this statute clearly authorizes police to 
8 

3 As written in that version, the bill stated: 

offenses to only those instances where personal safety is imperiled or property 

is endangered. 

The Pennsylvania Supreme Court noted in Commonwealth v. Bullers, 

536 Pa. 84, 637 A.2d 1326 (1994), "our court may not permit a warrantless 

arrest for a summary offense when our legislature has not so provided." Id. at 

1328. The Bullers court then cited statutes where such a grant was bestowed 

by the legislature. Id. at 1329. The Bullers court noted that each section cited 

"clearly and unambiguously" gave police the right to arrest for the defined 

conduct. Id. 

In the instant case, the legislature has "clearly and unambiguously" 

granted police power to arrest for summary offenses, but only in limited 

circumstances. A review of the legislative history of 42 PA.C.S.A. § 8902 

elucidates the legislature's intent to limit the summary arrest powers of police 

officers. Section 8902 was introduced during a special session of the 

legislature as House Bill 22 on February 1, 1995. When the bill was 

considered by the Senate on June 28, 1995, the language of the bill contained 

no limitations on summary arrest powers.3 A state senator from York County 

) 
9 

A police officer, sheriff of a county of the second class and deputy sheriff of a county of the second class 

shall have the right of arrest without warrant upon probable cause for any of the following offenses: 

(1) Under Title 18: 

18 PA.C.S. § 5503 (relating to disorderly conduct). 

H.B. 22, Printer's No. 180, June 20, 1995, at 3. 

4 Yeas-19; Nays-30 on the question of final passage. 

pass during a vote immediately after the senator's comments.4 Id. Most 

Senate Legislative Journal, June 28, 1995, p. 246-247. House Bill 22 failed to 

Mr. President, I do not believe this is what my constituents 

want. I believe this is a direct violation of their rights. This is 

more Big Brother. This is more taking away of public freedom, 

and I would urge all of my colleagues to vote in the negative on 

this bill. 

I would like to read directly from the legislation at hand. 

The bill has been significantly amended and much of it has been 

removed. However, a particular passage that I am concerned 

with says, "A police officer, sheriff of a county of the second 

class and deputy sheriff of a county of the second class shall 

have the right of arrest without warrant upon probable cause for 

any of the following offenses: ... '' And they list a number of 

offenses, including: relating to disorderly conduct, relating to 

public drunkenness, relating to obstructing highways and other 

public passages, and a few other offenses. Now, these are 

currently summary offenses, but with the passage of this bill, Mr. 

President, we would now allow these police officers and sheriffs 

and deputy sheriffs to handcuff and haul away to prison or to jail 

anyone who they feel is guilty of any of these crimes. 

I did want to offer a few comments concerning this bill. 

that was too broad. 

went on the record with concerns that the bill granted police power to arrest 
10 

5 House Bill 22 was approved by the House and Senate on October 25, 1995, and October 30, 1995, 

respectively, and signed by Governor Thomas Ridge on November 17, 1995. 

6 Although the attorney for the Commonwealth argued at the conclusion of the hearing that Defendant 

"couldn't stand up straight," (N.T. SUPP. HRG., at 27), neither officer testified to this fact. 

conduct, but also its misdemeanor equivalent. (Com.'s Mot. for Recons. at 1 

Defendant's conduct constituted not only a summary offense of disorderly 

The Commonwealth argued in its Motion for Reconsideration that 

security" or endanger public or private property. 

discussed previously, Defendant's conduct did not imperil any person's 

unless her conduct met the requirements of 42 PA.C.S.A. § 8902. As 

by law" to arrest Defendant for a summary offense of disorderly conduct 

summary offenses. Thus, Officers Huncher and Smith were not "authorized 

Pennsylvania legislature intended to limit police officers' power to arrest for 

In light of these actions by the legislature, this Court concluded that the 

place.5 

190, at 3. House Bill 22 was ultimately passed with this limiting language in 

public or private property. House Bill 22, September 20, 1995, Printer's No. 

circumstances involving imperilment to personal security or endangerment to 

September 20, 1995, language was added limiting summary arrests to· 

notably, when House Bill 22 was next brought to the senate for a vote on 
11 

Commonwealth v. Frank, 407 PA Super 500, 505, 595 A.2d 1258, 1260 

does not violate of the Unites States and Pennsylvania Constitutions. See 

conduct, regardless of its gradation, a warrantless search incident to that arrest 

This Court agrees that when a person is lawfully arrested for disorderly 

18 PA.C.S.A. § 5503. 

(b) Grading.--An offense under this section is a misdemeanor 

of the third degree if the intent of the actor is to cause substantial 

harm or serious inconvenience, or if he persists in disorderly 

conduct after reasonable warning or request to desist. Otherwise 

disorderly conduct is a summary offense. 

*** 

(2) makes unreasonable noise; 

*** 

(a} Offense defined.--A person is guilty of disorderly conduct if, 

with intent to cause public inconvenience, annoyance or alarm, 

or recklessly creating a risk thereof, he: 

18 PA.C.S.A. § 5503. 

misdemeanor offense of disorderly conduct. Disorderly conduct is defined by 

This Court found Defendant's conduct did not rise to the level of a 

to that arrest was proper. (Com. 's Mot. for Recons. at ,I 37.) 

to arrest Defendant for misdemeanor disorderly conduct, the search incident 

32.) The Commonwealth further asserted that since officers were authorized 
12 

(1991). However, this Court concluded Defendant's arrest was not lawful as 

either a summary offense, or a misdemeanor offense. 

Officers Huncher and Smith testified at the suppression hearing that 

Defendant failed to stop swearing loudly as she walked away despite Officer 

Smith's commands to cease. (N.T. Supp. Hrg., at 8-11, 18.) While this Court 

found most of the officers' testimony credible, this Court was skeptical on 

this point. If Officer Huncher, a six-year police veteran, believed Defendant's 

conduct rose to the level of a misdemeanor on the night of March 11, 2015, he 

certainly could have charged Defendant with a misdemeanor. However, he 

did not. This Court is of the belief that Defendant's conduct constituted only 

a summary violation of disorderly conduct, as reflected in Officer Huncher's 

initial complaint. Resultantly, for Defendant's arrest to be lawful, some 

evidence must have been introduced that tended to show imperilment to 

personal security or endangerment to public or private property. 

Finally, the Commonwealth argued in its motion for reconsideration 

that an absurd result would occur if this Court were to find that police officers 

were not authorized to arrest for "breaches of the peace," because sheriffs and 

constables have been found to be so authorized. (Com.'s Mot. for Recons. at 
13 

Based on the above reasons, this Court respectfully urges affirmance of 

this Court's Order and Decision filed August 4, 2015. 

, 32.) While sheriffs and constables are vested with common law authority to 

arrest for breaches of the peace, the Commonwealth's conclusion is flawed 

insofar as it assumes that such breaches of the peace include summary 

offenses. Sheriffs, constables, and citizens are never authorized to make 

arrests for summary offenses. Commonwealth v. Bienstock, 449 PA Super 

299, 304, 673 A.2d 952, 955 (1996) ("Private citizens do not have authority to 

make stops or arrests for summary offenses."); Kopko v. Miller, 586 Pa. 170, 

185, 892 A.2d 766, 774 (2006) ("[T]he power of Sheriffs to arrest for crimes 

committed in their presence is no different from that of a private citizen."); 

Commonwealth v. Taylor, 450 PA Super 583, 590-91, 677 A.2d 846, 850 

(1996), opinion modified on reconsideration (June 24, 1996) ([A] constable's 

powers are less ... than those of the sheriff.") (internal quotations and 

brackets omitted). Therefore, no absurd result would result from this Court's 

holding. 

CONCLUSION 

) 
14 

BY THE COURT, 

/2 , A cU- lfb. / '~ ~ - 'MARIA MUSTI COOK, JUDGE 

Date: _ 

Statement to counsel of record. 

The Clerk of Courts is directed to provide notice of the entry of this