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filed: September 4, 1981.


No. 2480 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Lehigh County, Trial Division, Criminal Section, No. 871 of 1979.


Jerry A. Snyder, Assistant District Attorney, Allentown, for Commonwealth, appellant.

Howard N. Stark, Allentown, for appellee.

Wickersham, Watkins and Lipez, JJ.

Author: Lipez

[ 290 Pa. Super. Page 443]

This is a Commonwealth appeal from a pretrial suppression order,*fn1 in a prosecution on two counts of possession of a controlled substance and two counts of possession with intent to deliver a controlled substance. Being unable to resolve the issues on this record, we vacate the suppression order, and remand for further proceedings.*fn2

The Commonwealth's evidence at the suppression hearing consisted of testimony by two police officers, Pesola and Williams. Officer Pesola testified that he had seen a juvenile about five feet within the edge of the grounds of an unenclosed municipal park in Bethlehem at 9:30 p. m. on July 22, 1979. The park had a posted closing time of 9:00 p. m., and a Bethlehem ordinance provided penalties for being in a municipal park after closing time.

[ 290 Pa. Super. Page 444]

Officer Pesola saw the juvenile walk out of the park and get into defendant's car. Defendant started to drive away. Officer Pesola shone a spotlight on the car. Defendant stopped, and got out of the car. Officer Pesola walked past him and approached the car, where he saw some green vegetable matter on the passenger side floor in a plastic bag. The juvenile passenger was trying to stuff the bag under the seat. Officer Pesola examined the bag's contents, determined it was marijuana, and arrested the juvenile passenger.

Officer Williams, who had accompanied Officer Pesola in a separate car, approached defendant, and asked if defendant had any more marijuana in the trunk of his car. Defendant said he did not, and Officer Williams asked if defendant would mind opening the trunk so he could check. Defendant opened the trunk and picked up a bag, which he tossed toward the forward portion of the trunk. Officer Williams retrieved the bag and found marijuana inside. Defendant was arrested. Officer Pesola inspected an eyeglass case, which was also removed from the car trunk, and discovered 25 tranxene tablets.

Defendant moved to suppress the marijuana and tranxene, as well as the statements he had made immediately following his arrest. The Commonwealth contended in the court below, as it does here, that: (1) Officer Pesola had a right to stop defendant's car in order to issue a citation to defendant's juvenile passenger, who had violated the Bethlehem ordinance by being in the park after closing; and (2) defendant consented to the search of his trunk.

At the conclusion of the suppression hearing, the court below did not make findings of fact and conclusions of law, as required by Pennsylvania Rule of Criminal Procedure 323(i). The reasons for the suppression order are stated only in the opinion filed by the court below after this appeal was taken from the order. In its opinion, the court concluded that Officer Pesola had no right to stop defendant's car, because the juvenile passenger had not violated the ordinance. The court did not decide the issue of whether

[ 290 Pa. Super. Page 445]

    defendant had consented to the search of his trunk, since the search was only made possible by stopping the car. Hence the court considered what was found in the trunk as the fruit of the illegal stop, and should be suppressed regardless of whether defendant consented after being stopped.

The ordinance at issue and its enforcement and penalty provisions read as follows:


(a) Hours. Except for unusual and unforeseen emergencies, parks shall be open to the public every day of the year from 6:00 a. m. to 9:00 p. m. The Director of Parks and Public Property is authorized to extend the hours for special events upon request of any group or organization; provided such request is made at least forty-eight hours prior to the date of the special event. No individual shall enter any park area before the opening hours or remain in any park after closing hours, unless such individual has written permission of the Director of Parks and Public Property. (Ord. 2573 § 3. Passed 9-6-77.)


(a) Officials. The Director of the Department of Parks and Public Property and park attendants shall, in connection with their duties imposed by law, diligently enforce the provisions of this article.

(b) Ejectment. The Director and any park attendant shall have the authority to eject from the park any person acting in violation of this article.

(c) Seizure of property. The Director and any park attendant shall have the authority to seize and confiscate any property, thing or device in a park which violates or is used in violation of this article. (Ord. 2211 § 10. Passed 9-22-70.)

941.99 PENALTY

Whoever violates any of the provisions in this article shall be fined not more than three hundred dollars ($300.00) or imprisoned not more than ninety days, or both. (Ord. 2211 § 11. Passed 9-22-70.)

[ 290 Pa. Super. Page 446]

In determining that defendant's juvenile passenger had not violated the park ordinance, the court below analogized the ordinance to the defiant trespass action of the Crimes Code, 18 Pa.C.S. § 3503(b)(1), which provides:

(b) Defiant trespasser. --

(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:

(i) actual communication to the actor;

(ii) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or

(iii) fencing or other enclosure manifestly designed to exclude intruders.

The lower court's opinion states that in Commonwealth v. Conyers, 238 Pa. Super. 386, 357 A.2d 569 (1976), this court held that a violation of section 3503(b)(1) occurs only if one remains on the property after a warning to leave has been given. The court was apparently referring to this statement in the Conyers opinion: "The crime of defiant trespass occurs when a person remains in a place where he is not privileged to remain after notice of trespass is given." Id., 238 Pa. Super. at 389, 357 A.2d at 579 (footnote omitted). Conyers did not say, however, that these are the only circumstances under which defiant trespass can be committed. The statute itself which is quoted in the footnote accompanying the foregoing quote from Conyers, uses the language " enters or remains." (Emphasis supplied). Moreover it is clear from that footnote that the court in Conyers was relying solely on section 3503(b)(1)(i) as the method of giving notice against trespass which fit the facts of that case. Cf. Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382, 1385 (1981). Neither Conyers nor Tate implies that subsections (b)(1)(ii) or (iii) cannot be applied to satisfy the notice requirement, since the statute makes them alternatives by using the word "or" to separate them.

Even assuming that the court below was correct in interpreting the Bethlehem ordinance by analogizing it to

[ 290 Pa. Super. Page 447]

    the defiant trespass statute, it is plain that Commonwealth v. Conyers, supra, does not provide a proper basis for the lower court's interpretation of the ordinance.*fn3 Since the stated basis for the decision below was incorrect and the court did not make findings under Rule 323(i), we are left with nothing to review in order to determine the correctness of the court's decision. In reviewing a suppression court's determination, we are merely to decide whether the evidence supports the findings and the legitimacy of the conclusions drawn from those findings. E. g., Commonwealth v. Watson, 487 Pa. 169, 172, 409 A.2d 19, 20 (1979).

Here the lower court made no findings. We are also unaided by the discussion in the lower court's opinion, because the basis for the determination of the first issue was incorrect, and there has been no determination at all on the second issue.*fn4 Therefore we must remand for a new suppression hearing, after which the court below shall make the specific findings required by Rule 323(i), and enter a new order on the motion to suppress. See Commonwealth v. Spaulding, 275 Pa. Super. 261, 262, 418 A.2d 712, 713 (1980).*fn5

[ 290 Pa. Super. Page 448]

Order vacated, and case remanded for further proceedings consistent with this opinion. Jurisdiction of this court is not retained.

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