Com. v. Schnupp, A. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW SCHNUPP :
:
Appellant : No. 337 WDA 2021
Appeal from the Judgment of Sentence Entered February 4, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No: CP-02-CR-0004697-2020
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: FEBRUARY 25, 2022
Appellant, Andrew Schnupp, appeals from the aggregate judgment of
sentence of 18 months’ of probation, which was imposed after his conviction
at a bench trial for possession of a controlled substance.1 We affirm.
The trial court, in its opinion, discusses the facts underlying this appeal
as follows.
On February 2[3], 2020, the Defendant was pulled over by Officer
Jason Moss at approximately nine o’clock in the evening. Officer
Moss observed the Defendant’s vehicle to have tinted windows
that prevented the officer from clearly observing the driver or
other occupants of the vehicle. Upon initiating the traffic stop and
approaching the vehicle, Officer Moss observed the Defendant
shoving an object down the front of his pants in a furtive
movement. When Officer Moss subsequently questioned the
Defendant regarding this action, the Defendant readily admitted
to putting one stamp bag of heroin in his pants by providing the
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* Retired Senior Judge assigned to the Superior Court.
1 35 Pa.C.S. § 780-113(a)(16).
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drugs to the officer. Officer Moss requested the Defendant
retrieve the narcotics and the Defendant complied. He was then
placed under arrest. The alleged narcotics were transported to
the Crime Lab for testing and came back positive for heroin and
fentanyl.
Trial Court Opinion (TCO), at 1-2.
Appellant was charged with possession of a controlled substance and
driving with a suspended license.2 Appellant filed a motion to suppress the
traffic stop and any evidence obtained, based on a lack of reasonable suspicion
to stop Appellant’s vehicle. Motion to Suppress, 1/11/21. After a hearing on
February 4, 2021, the trial court denied Appellant’s motion to suppress.
Order, 2/4/21. The trial court found that Officer Moss had reasonable
suspicion to stop Appellant’s vehicle. Appellant proceeded to a non-jury trial
and the trial court found Appellant guilty of possession of a controlled
substance. Appellant proceeded to sentencing the same day, and the trial
court sentenced Appellant to 18 months’ of probation. Order of Sentence,
2/4/21. Appellant filed a timely notice of appeal on March 5, 2021.3
Appellant presents the following issue for our review:
Did the arresting officer possess the requisite reasonable suspicion
to stop Mr. Schnupp’s vehicle for a violation of the window tint
statute, 75 Pa.C.S. Section 4524(e)(1), where there was no
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2The Commonwealth withdrew the charge of driving with a suspended license,
75 Pa.C.S. § 1543(b)(1)(i). See, N.T., 2/4/21, at 13.
3The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement on
March 31, 2021. Appellant filed a timely Rule 1925(b) statement on April 12,
2021.
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evidence that the tint on his windows prevented a person from
seeing inside the vehicle?
Appellant’s Brief, at 4 (suggested answer omitted).
In reviewing a suppression court's denial of a suppression motion,
we may consider only the evidence of the Commonwealth 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
suppression court's factual findings are supported by the record,
we are bound by these findings and may reverse only if the court's
legal conclusions are erroneous. . . . Nonetheless, we exercise
plenary review over the suppression court's conclusions of law.
Commonwealth v. Johnson, 107 A.3d 52, 93 (Pa. 2014) (citations omitted).
“It is within the exclusive province of the suppression court to, ‘pass on the
credibility of witnesses and determine the weight to be given to their
testimony.’” Commonwealth v. Fudge, 213 A.3d 321, 326 (Pa. Super.
2019) (internal citation omitted). “This Court will not disturb a suppression
court’s credibility determination absent a clear and manifest error.” Id., at
326-27.
Appellant argues Officer Moss lacked reasonable suspicion to stop his
vehicle because Officer Moss testified that the tint on Appellant’s windows
prevented him from clearly observing the driver or occupants of the vehicle
and did not state that he was prevented from viewing the inside of the vehicle.
Appellant’s Brief, at 8. The Commonwealth argues that the trial court used
the wrong standard at the suppression hearing, therefore, Appellant’s issue is
waived. Appellee’s Brief, at 1. The Commonwealth posited that the standard
at the suppression hearing should have been whether Officer Moss had
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probable cause, not reasonable suspicion, to stop Appellant’s vehicle.
Appellant filed a reply brief with this Court and argues that the trial court used
the proper standard at the suppression hearing, reasonable suspicion.
Alternately, Appellant argues that even if the standard is probable cause, the
question is properly before this Court because if a stop lacks reasonable
suspicion, it also lacks probable cause.
Before addressing Appellant’s challenge to Officer Moss’s observations,
we will address the Commonwealth’s assertion that Appellant waived his issue
on appeal because the trial court used the wrong standard at the suppression
hearing. “The issue of what quantum of cause a police officer must possess
in order to conduct a vehicle stop based on a possible violation of the Motor
Vehicle Code is a question of law, over which our scope of review is plenary
and our standard of review is de novo. Commonwealth v. Harris, 176 A.3d
1009, 1019 fn.3 (Pa. Super. 2017) (citing Commonwealth v. Chase, 960
A.2d 108 (Pa. 2008)).
The vehicle code contains the following provision regarding investigation
by police officers.
(b) Authority of police officer.--Whenever a police officer is
engaged in a systematic program of checking vehicles or drivers
or has reasonable suspicion that a violation of this title is occurring
or has occurred, he may stop a vehicle, upon request or signal,
for the purpose of checking the vehicle's registration, proof of
financial responsibility, vehicle identification number or engine
number or the driver's license, or to secure such other information
as the officer may reasonably believe to be necessary to enforce
the provisions of this title.
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75 Pa.C.S. § 6308(b) (bold in original). This Court has stated, “[t]raffic stops
based on a reasonable suspicion: either of criminal activity or a violation of
the Motor Vehicle Code under the authority of Section 6308(b) must serve a
stated investigatory purpose.” Commonwealth v. Feczko, 10 A.3d 1285,
1291 (Pa. Super. 2010) (citation omitted). Alternately, this Court has held,
an officer must have probable cause “for a stop based on an observed violation
of the vehicle code or another non-investigable offense.” Harris, 176 A.3d at
1009.
In Commonwealth v. Prizzia, 260 A.3d 263 (Pa. Super. 2021), this
Court determined “the appropriate quantum of cause necessary to validate a
traffic stop based on a violation of section 4524(e)(1) [window tint statute,]
is dependent on the specific facts of each case.” Id., at 269 fn.2. This Court
elaborated,
In some situations[,] . . . a probable cause standard will apply
because the officer's testimony establishes that a window-tint
violation was immediately apparent to the officer, and no further
investigatory purpose was served by the traffic stop. In other
cases[,] . . . a reasonable suspicion standard could apply because
the officer's testimony demonstrates that he or she stopped the
vehicle to get a closer and/or unobstructed view of the windows,
in further investigation of whether the tint violates section
4524(e)(1).
Id. This Court articulated, “our decision today should not be read as
precluding application of a reasonable suspicion standard to a stop for a
window-tint violation, if the specific facts of the case demonstrate that an
investigatory purpose was served by the stop.” Id.-5-
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Turning to the facts before us, we determine a probable cause standard
applies. The following exchange occurred between Officer Moss and the
Commonwealth on direct examination after Officer Moss testified to his
observations about Appellant’s vehicle.
Commonwealth: And you determined that there was a violation of
the vehicle?
Officer Moss: Yes.
Commonwealth: And what did you do after you determined that
there was a violation?
Officer Moss: Initiated a traffic stop at 4751 McKnight Road.
N.T., Motion to Suppress, 2/4/21, at 6-7. On cross-examination, Officer Moss
testified that he did not issue a citation to Appellant for a traffic code violation
based on window tint. Id., at 12. On redirect, Officer Moss testified “[t]here
was not a specific reason” that he did not charge Appellant with a violation of
the traffic code based on window tint. Id., at 12. Officer Moss continued,
“truthfully, it is an oversight on my part. At the same time, my focus was on
the possession. I understand obviously that the window tint was the probable
cause for that. It is an oversight on my part really.” Id., at 12-13.
Officer Moss’s testimony demonstrates that he did not initiate the stop
of Appellant’s car to further investigate a possible window tint violation, but
that he believed a violation had occurred. Therefore, we find that a probable
cause standard applies to the stop upon these facts. See Prizzia, 260 A.3d
at 269; Harris, 176 A.3d at 1019. Although the trial court used a reasonable
suspicion standard, this does not hamper our review as the trial court’s legal
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conclusions are subject to a de novo and plenary review. See Johnson, 107
A.3d at 93; See Feczko, 10 A.3d at 1285 (where trial court used reasonable
suspicion standard, but this Court found probable cause existed to support the
stop based on a violation of the motor vehicle code). Moreover, the law is
well settled that if the record supports the result reached by the suppression
court, we may affirm on any ground. Commonwealth v. Cartagena, 63
A.3d 294, 301 (Pa. Super. 2013) (citing Commonwealth v. Lewis, 39 A.3d
341, 345 (Pa. Super. 2012).
The relevant section of the motor vehicle code states,
(e) Sun screening and other materials prohibited.--
(1) No person shall drive any motor vehicle with any sun screening
device or other material which does not permit a person to see or
view the inside of the vehicle through the windshield, side wing or
side window of the vehicle.
(2) This subsection does not apply to:
(i) A vehicle which is equipped with tinted windows of the type
and specification that were installed by the manufacturer of the
vehicle or to any hearse, ambulance, government vehicle or any
other vehicle for which a currently valid certificate of exemption
has been issued in accordance with regulations adopted by the
department.
(ii) A vehicle which is equipped with tinted windows, sun screening
devices or other materials which comply with all applicable Federal
regulations and for which a currently valid certificate of exemption
for medical reasons has been issued in accordance with
regulations adopted by the department.
75 Pa.C.S. § 4524(e)(1)-(2) (bold in original).
There is no measurable amount of tint that renders a vehicle with
tinted windows illegal in Pennsylvania. Tint is illegal if, from point
of view of the officer, he or she is unable to see inside of a vehicle
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through the windshield, side wing, or side window. There is no
legislative history surrounding the passage of Section 4524 to
elucidate the reason for this subjective standard.
Cartagena, 63 A.3d at 305 fn. 26 (citations omitted).
The trial court, in its opinion, stated,
[w]hen discussing the traffic stop, Officer Moss credibly testified
that he observed tinted windows on the Defendant’s vehicle that
prevented him from clearly observing the driver or the occupants
of the vehicle. The officer stated that all the windows appeared
to be tinted, specifically the front windows[.]
TCO, at 3-4 (citations to the record omitted).
Officer Moss testified that he had been a police officer for 21 years and
with Ross Township for 10 years. N.T., Motion to Suppress, 2/4/21, at 5. He
testified that he observed the vehicle at 9:00 at night and the windows were
up. Id., at 6-10. On direct examination, Officer Moss testified as follows.
Officer Moss: I observed a white Jeep Cherokee. When I initially
observed it, it had tinted windows which prevented me from
clearly observing the driver or the occupants of the vehicle.
Commonwealth: Where did you initially see this vehicle?
Officer Moss: On McKnight Road.
Commonwealth: Which windows were tinted?
Officer Moss: They were all tinted. Specifically, the front
windows were tinted. I couldn't see who the driver was.
Commonwealth: And is that the requirement for you to be able
to see through the driver side window to see if there's
someone driving?
Officer Moss: Yeah. It's a violation of 4524(e)(1) window tint
which says you have to be able to clearly observe the driver of the
vehicle. The windows were so tinted you couldn't clearly
observe the driver of the vehicle.
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Id., at 6-7 (emphasis added). Officer Moss testified that the tint on
Appellant’s windows, based on a violation of 4524(e)(1), was the reason that
he initiated the traffic stop. Id., at 7.
The record supports the trial court’s factual determination that all of
Appellant’s car windows were tinted, specifically the front windows. N.T.,
Motion to suppress, 2/4/21, at 6. The record also shows that Officer Moss,
who the trial court found credible, testified that the tint prevented him from
seeing the driver of the vehicle. Id.; See TCO, at 3. The record supports the
trial court’s determination that Officer Moss testified credibly, and we will not
disturb that credibility determination. Fudge, 213 A.3d at 326–27. We are
bound by the trial court’s factual findings because they are supported by
evidence of record. Johnson, 107 A.3d at 93.
To determine whether probable cause exists, we must consider
“whether the facts and circumstances which are within the
knowledge of the officer at the time of the arrest, and of which he
has reasonably trustworthy information, are sufficient to warrant
a man of reasonable caution in the belief that the suspect has
committed or is committing a crime.”
Commonwealth v. Ibrahim, 127 A.3d 819, 824 (Pa. Super. 2015) (citation
omitted). “We are mindful that ‘[p]robable cause does not require certainty,
but rather exists when criminality is one reasonable inference, not necessarily
even the most likely inference.’” Commonwealth v. Spieler, 887 A.2d
1271, 1275 (Pa. Super. 2005). “[A] police officer has probable cause to stop
a motor vehicle if the officer observes a traffic code violation, even if it is a
minor offense.” Commonwealth v. Gurung, 239 A.3d 187, 191 (Pa. Super.
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2020). However, the “issuance of a citation by an officer for a violation of the
MVC [motor vehicle code] is a matter within the sole discretion of that officer.”
Spieler, 887 A.2d at 1275.
In Harris, 176 A.3d at 1009, this Court found the officer had probable
cause to stop the appellant’s vehicle even where he also testified that the
driver’s side window was rolled down through which he could see the driver
of the car. Id., at 1014 (emphasis added). This Court found the officer’s
testimony sufficient to find probable cause where he testified,
the window tint, which covered all of the vehicle's side windows,
was “extremely dark” and, as a result, he could not see inside of
the vehicle through the passenger side of the vehicle. He noted
that, when looking through the passenger-side window, he could
not determine whether a male or female was driving the vehicle.
Id., at 1013 (citation to notes of testimony omitted). Recently, in
Commonwealth v. Johnson, 1115 EDA 2021 (Pa. Super. Jan. 4, 2022)
(unpublished memorandum),4 this Court found probable cause existed to stop
appellant’s car based on a window tint violation even though the officer also
testified that he “saw movement in the vehicle,” because “he maintained that
he could not clearly see into the vehicle.” Id.
The entirety of Officer Moss’s testimony establishes that the “facts and
circumstances” he knew at the time were “sufficient to warrant a man of
reasonable caution in the belief” that [Appellant] had violated 75 Pa.C.S. §
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4Unpublished decisions of this Honorable Court issued after May 1, 2019, may
be cited for their persuasive value. Pa.R.A.P. 1926(b)(1), (2).
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4524(e)(1). Ibrahim, 127 A.3d at 824. First, Officer Moss testified that the
tint on Appellant’s car covered all the windows of the car, specifically the front
windows. See 75 Pa.C.S. § 4524(e)(1) (“No person shall drive any motor
vehicle with any sun screening device or other material which does not permit
a person to see or view the inside of the vehicle through the windshield,
side wing or side window of the vehicle.”) (emphasis added). Next,
Officer Moss testified he could not “see who the driver was” because of tint on
the “front windows” of Appellant’s car. N.T., Motion to Suppress, 2/4/21, at
6. Officer Moss’s testimony that he “couldn’t see who the driver was”
sufficiently establishes that he couldn’t “see . . . the inside of the vehicle,” as
the driver is seated inside of the vehicle. See 75 Pa.C.S. § 4524(e)(1);
Prizzia, 260 A.3d at 265 (probable cause where Trooper observed a vehicle
on the road with “windows tinted to the degree that [he] could not see the
operator inside the vehicle” and before initiating a traffic stop, he followed
appellant’s vehicle for a period of time and at no distance could he see through
the “side, front, [or] passenger windows.”). In addition, Officer Moss’s
testimony that the windows on Appellant’s car were “so tinted” that he could
not “clearly observe the driver of the vehicle,” id., at 7 (emphasis added),
supports a finding that he could not see the driver inside the vehicle because
of the level of tint on Appellant’s car windows.
The combination of Officer Moss’s testimony that “all” the windows were
tinted, specifically the “front windows” where he “couldn’t see who the driver
was” inside the vehicle and the windows were “so tinted” that he couldn’t
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“clearly observe the driver” inside the vehicle sufficiently establishes that
Officer Moss had probable cause to stop Appellant’s vehicle based on a
violation of 75 Pa.C.S. § 4524(e)(1). See 75 Pa.C.S. § 4524(e)(1); Harris,
176 A.3d at 1009; Prizzia, 260 A.3d at 265; Johnson, 1115 EDA 2021.
Accordingly, we find that the trial court did not err in denying Appellant’s
motion to suppress.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/25/2022
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