J-S32045-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JOHN SWIRSDING

Appellant No. 2375 EDA 2016

Appeal from the Judgment of Sentence July 6, 2016

in the Court of Common Pleas of Delaware County Criminal Division

at No(s): CP-23-CR-0007084-2015

BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 30, 2017

Appellant, John Swirsding, appeals from the judgment of sentence 

entered in the Delaware County Court of Common Pleas following a bench 

trial and his convictions for public drunkenness,1 possession of marijuana,2

and possession of drug paraphernalia.3 Appellant asserts that the evidence 

was insufficient to support his conviction for public drunkenness, and that 

the trial court erred in denying his motion to suppress the contraband 

discovered in his vehicle during an inventory search. We affirm.

The trial court set forth the facts of this case as follows:

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 5505.

2 35 P.S. § 780-113(a)(31).

3 35 P.S. § 780-113(a)(32).
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Appellant’s arrest and convictions arise out of a 911 call for 

a possible domestic situation that Officer Robert McCreight 

of the Haverford Township Police Department responded to 

on September 12, 2015 at or about 4:00 a.m. in the area 

of the 2700 block of Belmont Avenue in Havertown, 

Pennsylvania. 

Officer Robert McCreight of the Haverford Township 

Police Department was on patrol duty September 12, 2015 

when he received a call over the DELCOM for a possible 

domestic situation along the 2700 block of Belmont 

Avenue in the Township involving two subjects fighting and 

a suspect running over objects in the driveway with his 

vehicle, a green Range Rover. 

Upon approaching the area along the 2600 block of 

Haverford Rd., Officer McCreight identified a green Range 

Rover parked in front of a 7-11 store at 2606 Haverford 

Road fitting the description of the involved vehicle.

The area was desolate but for the empty lots of the 

surrounding businesses and the Range Rover was parked 

in front of the 7-11 store. As Officer McCreight pulled in to 

the lot the vehicle was neither running nor occupied.

Officer McCreight began to run the green Range Rover’s 

tag information. As he did Appellant exited the 7-11 store 

and approached the officer. Officer McCreight asked the 

defendant whether the vehicle was his and the defendant 

responded that it was his and a conversation ensued. 

Appellant explained that he was having an argument 

with his wife because she was purportedly cheating on 

him. Appellant stated he may have also struck another 

vehicle although his vehicle had no damage. As he spoke, 

Officer McCreight detected an odor of alcohol and observed 

[] Appellant’s erratic behavior. Appellant’s mood ranged 

from laughing about the situation to nearly crying and 

breaking down. Because of the behavior, he was placed in 

the back of the police cruiser. Appellant did admit to 

drinking earlier in the evening with his wife. 

Based on all of the circumstances and his experience, 

Officer McCreight believed Appellant’s behaviors indicated 
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he was under the influence possibly of alcohol. 

Specifically, based on the odor emanating from the 

Appellant, Appellant’s admission that he had been 

consuming alcohol, his mood swings and very erratic 

behavior.

Officer McCreight testified that although Appellant 

would not be arrested for any domestic issue or DUI, he 

would be arrested for Public Drunkenness. Officer 

McCreight did not feel it was safe for [] Appellant to be 

driving. When it was decided that Appellant was going to 

be locked up for Public Drunkenness he was placed in 

handcuffs and replaced back into the police cruiser.

Since [Appellant’s] vehicle was parked in the lot of the 

7-11 convenience store, Officer McCreight was compelled 

to ask the person in charge if the vehicle could remain 

there. He was told the vehicle would have to be removed. 

Therefore, the on-duty tow, K&S Towing in Haverford was 

called to come and impound the vehicle. 

The Haverford Township Police Department has a

standing written impoundment and inventory search policy 

that requires the officer to search the vehicle for any 

valuables and create a form identifying all of the recovered 

objects so there can be no claim of loss. []CS-1 was 

marked for identification and identified as the Haverford 

Township Police directive regarding inventory search of 

vehicles[]. 

Officer McCreight testified that since he was not 

permitted to leave the vehicle on private property the 

vehicle was to be impounded. Pursuant to the policy he 

conducted a search of the vehicle and when he opened the 

door he was immediately struck with the strong smell of 

fresh marijuana which he described as overwhelming. 

Plainly observable in the center console there was a 

multicolored glass smoking bowl and a 4x6 white vacuum 

sealed bag which he recognized as a bag commonly used 

to package narcotics to hide the smell. 

All of the seized contraband was in plain view upon 

opening the car door. The bowl was seized and the 

marijuana was seized. 
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Trial Ct. Op., 1/16/17, at 2-5.

On July 6, 2016, following the trial court’s denial of Appellant’s motion 

to suppress evidence, Appellant was convicted of the aforementioned 

charges. That same day, the trial court sentenced Appellant to thirty days of 

probation for public drunkenness, thirty days of probation for possession of a 

small amount of marijuana, and six months of probation for possession of 

drug paraphernalia. All sentences were to be served concurrently. On 

August 1, 2016, Appellant filed the instant timely appeal and subsequently 

filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal. The trial court filed a responsive opinion.

Appellant raises the following issues for our review: 

1. Did the trial court err in its decision to not quash the 

[charging] public drunkenness as [] Appellant was not 

given any type of objective testing, had not behaved in a 

matter consistent for charging him with the summary 

offense of public drunkenness and, in fact, [] throughout 

the initial meeting as well as police interrogation acted 

peacefully and spoke with the officer in a peaceful fashion 

and if this information had been quashed by the court it 

would therefore eliminate the probable cause for the 

subsequent arrest and detention of [] Appellant?

2. Did the trial court err in denying that Appellant was a 

business invitee and therefore did not enjoy the 

protections given under the law to said business invitee 

directly or indirectly connected with his business dealing 

with the possessor of the property? Additionally, did the 

Commonwealth show that the police officer spoke with a 

true and correct agent of the business who had permission 

to speak with the police about possessions of [] Appellant 

or order the possessions be removed from the property 

forcibly?
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3. Did the trial court err by allowing the warrantless 

seizure and towing of Appellant’s immobilized but safely 

parked vehicle as well as the trial court’s failure to 

suppress 2.9 grams of marijuana and drug paraphernalia 

which was found in the closed center console of the 

Appellant’s motor vehicle in direct contravention of 

Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013).

Appellant’s Brief at 4-5. 

In his first issue, Appellant claims that the evidence was insufficient to 

support his conviction for public drunkenness because the Commonwealth 

failed to present any evidence that he was “manifestly under the influence of 

alcohol or a controlled substance.” Appellant’s Brief at 18. Appellant points 

out that the arresting officer, Officer McCreight, testified that when he 

approached Appellant at the time in question, Appellant spoke to him in a 

peaceful fashion. Id. No relief is due.

When evaluating a challenge to the sufficiency of the evidence:

[W]e view the evidence in the light most favorable to the 

Commonwealth together with all reasonable inferences 

from that evidence, and determine whether the trier of fact 

could have found that every element of the crimes charged 

was established beyond a reasonable doubt. 

Commonwealth v. Walker, 836 A.2d 999, 1000 n.3 (Pa. Super. 2003) 

(citations and quotation marks omitted). 

Further, the summary offense of public drunkenness is defined as 

follows:

A person is guilty of a summary offense if he appears in 

any public place manifestly under the influence of alcohol 

or a controlled substance, as defined in the act of April 14, 

1972 (P.L. 233, N. 64), known as the Controlled 
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Substance, Drug Device and Cosmetic Act, except those 

taken pursuant to the lawful order of a practitioner, as 

defined in the Controlled Substance, Drug, Device, and 

Cosmetic Act, to the degree that he may endanger himself 

or other persons or property, or annoy persons in his 

vicinity. 

18 Pa.C.S. § 5505.

Moreover, we note that to convict a person of public drunkenness, the 

Commonwealth need not present proof of a specific blood alcohol reading. 

Rather, the Commonwealth must establish that the defendant was 

intoxicated to such a degree that it “rendered him a danger to himself or 

others, or an annoyance to those around him.” Commonwealth v. Meyer, 

431 A.2d 287, 290 (Pa. Super. 1981). 

As noted by the trial court, Officer McCreight, an officer with over ten 

years of experience, believed that Appellant’s behavior indicated that he was 

under the influence of alcohol and was a potential danger to others. Officer 

McCreight specifically cited the odor of alcohol emanating from Appellant, 

Appellant’s erratic behavior, and Appellant’s own admission that he had been 

consuming alcohol. Moreover, read in a light most favorable to the 

Commonwealth, Appellant had already driven his car to the convenience 

store, and would have driven from the store had the officer not intervened. 

Accordingly, we conclude that the evidence presented was sufficient to 

support Appellant’s conviction for public drunkenness. See Walker, 836 

A.2d at 1000 n.3; Meyer, 431 A.2d at 290. 
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We next address Appellant’s second and third issues together. 

Appellant discusses our Supreme Court’s decision in Lagenella and asserts 

that the inventory search was illegal because the arresting officer improperly 

ordered his vehicle be towed. Appellant contends that at the time the police 

decided to tow his car, he was a “business invitee” of the convenience store 

and therefore was entitled to leave his car in the store’s parking lot following 

his arrest. Appellant acknowledges Officer McCreight’s testimony that an 

individual inside the store stated that Appellant would not be able to keep 

his car in the parking lot following his arrest. Appellant, however, generally 

avers that the Commonwealth failed to prove this individual was a proper 

“agent” authorized to require the removal of Appellant’s car on behalf of the 

store. Appellant further emphasizes the convenience store lacked any 

signage which would have prevented him from leaving his car unattended, 

regardless of any lack of permission expressed by an employee of the store. 

Lastly, Appellant contends that the inventory search was conducted for 

investigatory purposes. We conclude Appellant’s arguments warrant no 

relief. 

“Inventory searches are a well-defined exception to the search warrant 

requirement.” Commonwealth v. Healry, 909 A.2d 352, 358 (Pa. Super. 

2006) (en banc) (citation omitted). “An inventory search of an automobile is 

permitted where: (1) the police have lawfully impounded the automobile, 

and (2) the police have acted in accordance with a reasonable, standard 
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policy of routinely securing an inventory of the contents of the impounded 

vehicle.” Id. at 359 (citations omitted). Further, it is well settled that “an 

inventory search is reasonable if it is conducted pursuant to reasonable 

standard police procedures and in good faith and not for the sole purpose of 

investigation.” Id. (citation omitted).

In determining whether a proper inventory search has 

occurred, the first inquiry is whether the police have 

lawfully impounded the automobile, i.e., have lawful 

custody of the automobile. The authority of 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. 

Lagenella, 83 A.3d 94, at 102-03. 

In Lagenella, our Supreme Court considered an inventory search of a 

safely parked car pursuant to the specific provisions of 75 Pa.C.S. § 6309.2 

regarding persons operating a vehicle with a suspended license. Id. at 99-

100. The Lagenella Court held that “a vehicle which has simply been 

immobilized in place is not in the lawful custody of police for purposes of 

an inventory search.” Id. at 104 (emphasis added). The Court further 

concluded that the officer in that case did not have the authority to tow 

under Section 6309.2(a)(1) and the inventory search could not be justified 

in anticipation of towing the vehicle.4 Id. at 101. 

 

4 The Lagenella Court noted: 
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Instantly, Appellant’s arguments based on his status as a business 

invitee fails to identify any error in the trial court’s conclusion that “[a]s soon 

as [Appellant] was arrested he no longer occupied any permissible status as 

a business invitee on the premises of the 7-11 convenience store.” Trial Ct. 

Op. at 10. More significantly, Appellant fails to respond to the trial court’s 

suggestion that the inventory search was proper under Lagenella because a 

violation of 75 Pa.C.S. § 3353 authorized the arresting officer to tow the 

vehicle. See Trial Ct. Op. at 11. Appellant fails to cite to or discuss Section 

3353(b),5 which creates the summary offense of unattended vehicle on 

 

Section 6309.2(a)(1) provides that, where a person 

operates a vehicle while his or her license is suspended, a 

law enforcement officer shall immobilize the vehicle and 

notify the appropriate judicial authority, or, “in the 

interest of public safety, direct that the vehicle be 

towed and stored by the appropriate towing and storage 

agent.” 75 Pa.C.S.A. § 6309.2(a)(1) (emphasis added).

Lagenella, 83 A.3d at 101.

5 Section 3353(b) states: 

Unattended vehicle on private property.—

(1) No person shall park or leave unattended a vehicle on 

private property without the consent of the owner or other 

person in control or possession of the property except in 

the case of emergency or disablement of the vehicle, in 

which case the operator shall arrange for the removal of 

the vehicle as soon as possible.

(2) The provisions of this subsection shall not apply to 

private parking lots unless such lots are posted to notify 
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private property, or the trial court’s conclusion that he was in violation of 

that provision. Therefore, we are constrained to find Appellant’s claim that 

the arresting officer lacked the authority to tow his vehicle waived. See 

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)( “[W]here an 

appellate brief fails to provide any discussion of a claim with citation to 

relevant authority or fails to develop the issue in any other meaningful 

fashion capable of review, that claim is waived.”) 

Similarly, since Appellant’s argument that the officer exceeded the 

scope of an inventory search relates to his claim that the officer lacked the 

authority to tow, that claim is waived as well. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/30/2017

 

the public of any parking restrictions and the operator of 

the vehicle violates such posted restrictions. For the 

purposes of this section “private parking lot” means a 

parking lot open to the public or used for parking without 

charge; or a parking lot used for parking with charge. The 

department shall define by regulation what constitutes 

adequate posting for public notice.

75 Pa.C.S. § 3353(b)(1)-(2). Although Appellant raises an argument based 

on the absence of signage, he fails to cite, discuss, or seek relief based on 

the exception to Subsection (b)(1) created by Subsection (b)(2).