Com. v. Gonzalez, N. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 413 MDA 2019
:
NATHANIEL HOMM GONZALEZ :
Appeal from the Order Entered February 6, 2019,
in the Court of Common Pleas of Berks County
Criminal Division at No. CP-06-CR-0003024-2018
BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 09, 2019
The Commonwealth appeals from the February 6, 2019 order entered
by the Court of Common Pleas of Berks County granting Nathaniel Homm
Gonzalez’s (“appellee”) motion to suppress evidence. After careful review, we
affirm.
The trial court set forth the following factual history:
At approximately 6:30 P.M. on June 26, 2018,
West Reading Police Officer Chad Marks was
conducting a routine patrol in the area of
South Seventh Avenue and Spruce Street in the
Borough of West Reading, Berks County.
Officer Marks observed a silver Honda Accord drive
past him with fairly dark tint on the rear window that
was peeling. Officer Marks could see inside the
vehicle through the tinted rear window. He began
following the vehicle, during which time he observed
a “rope-type of configuration” hanging from the
rearview mirror as well as a flag [that] he believes was
“suctioned to the windshield.” . . . Based on his
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observation of the rope and flag, Officer Marks
testified that he “was concerned there could be a line
of sight issue.” Officer Marks stated that the rope was
“partially in front of the area the driver would need to
look to make a right-hand turn,” and he believed the
flag would impair the driver’s view. After driving
behind the vehicle FOR two or three blocks he initiated
a traffic stop, “to advise the driver about those items.”
On cross[-]examination, he stated that the rear
window tint was also a reason for stopping the vehicle,
and stated, “I believe [the tint] would be considered
illegal.” He intended only to provide a warning to the
driver, not a citation.
Officer Marks exited his patrol car and approached the
driver’s side of the Accord. The vehicle was driven by
Edwin Gonzalez ([appellee’s] brother) and [appellee]
was in the front passenger seat. The vehicle was
owned by [appellee’s] friend. Officer Marks explained
why he stopped the vehicle, and asked the driver for
his identification and where he was travelling.
[Appellee] was visibly nervous during the traffic stop.
His stomach was pulsating, and he looked sick and like
he might cry. Officer Marks asked [appellee] if he was
okay, and [appellee] said that he was. Officer Marks
then asked the driver if there were any guns or drugs
in the car that he should be aware of. At that,
[appellee] looked at the center console and said, “It’s
in there.” [Appellee] then removed drugs from the
center console and handed them to Officer Marks.
[Appellee] was charged with possession with intent to
deliver a controlled substance and possession of a
controlled substance.[1] The driver was not charged
with or issued a written warning for violating
75 Pa.C.S.[A.] § 4524 relating to windshield
obstructions and window tint.
....
Officer Marks testified that the “rope type of
configuration” was “hard to describe” and that he did
1 35 P.S. § 780-113(a)(30) and (16), respectively.
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not know what, exactly, it was. He offered the
following descriptions of the rope: it hung down two
to three inches from the rearview mirror; it was a
single, small rope that was thicker than a shoe string;
it was “maybe not” as wide as [a] parking pass, and
overall was no bigger than a parking pass. Edwin
Gonzalez, the driver of the vehicle, described the rope
as “some type of knot thing” hanging from the
rearview mirror.
Officer Marks testified that the flag was approximately
five by five inches and was located “one-half to
three-quarters” of the way up the front windshield on
the passenger side, near the “A” pillar. He believes it
was the flag of Puerto Rico. Officer Marks indicated
that the flag was “suctioned to the window” and
“suction-cupped to the front windshield.”
Trial court findings of fact & conclusions of law, 2/6/19 at 1-3 (headings and
endnotes omitted).
On September 28, 2018, appellee filed an omnibus pretrial motion in
which he sought to suppress evidence from the traffic stop. The trial court
held a hearing on November 7, 2018, and entered an order granting appellee’s
motion on February 6, 2019.
The Commonwealth filed a notice of appeal to this court on March 8,
2019. In its notice of appeal, the Commonwealth certified that the trial court’s
order either terminated or substantially handicapped its ability to prosecute
this case. See Commonwealth v. James, 69 A.3d 180, 185 (Pa. 2013),
citing Commonwealth v. Dugger, 486 A.2d 382, 386 (Pa. 1985). The trial
court did not order the Commonwealth to file a concise statement of errors
complained of on appeal. On March 12, 2019, the trial court filed an opinion
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pursuant to Pa.R.A.P. 1925(a), in which it incorporated its February 6, 2019
statement of findings of fact and conclusions of law.2
The Commonwealth raises the following issue for our review:
Did the trial court err in suppressing evidence where
Officer Marks had probable cause to conduct a traffic
stop for a violation of the Motor Vehicle Code,
specifically windshield obstructions under
75 Pa.C.S.A. § 4524?
Commonwealth’s brief at 4 (full capitalization omitted).
Our standard of review for Commonwealth appeals of orders granting
suppression motions is as follows:
When the Commonwealth appeals a suppression
order, we consider only the evidence from [appellee’s]
witnesses together with the portion of the
Commonwealth’s evidence which is uncontroverted.
Our standard of review is limited to determining
whether the suppression court’s factual findings are
supported by the record, but we exercise de novo
review over the suppression court’s conclusions of
law. Further, appellate courts are limited to reviewing
only the evidence presented at the suppression
hearing when examining a ruling on a pre-trial motion
to suppress. It 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. Harris, 176 A.3d 1009, 1018 (Pa.Super. 2017)
(quotation marks and citations omitted).
2 Appellee did not file a brief with this court.
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Here, the Commonwealth contends that Officer Marks possessed the
requisite reasonable suspicion required to initiate a traffic stop.
(Commonwealth’s brief at 10.) For the following reasons, we disagree.
We first turn to the rope configuration that was affixed to the rear view
mirror. Objects hanging from the rear view mirror are regulated by
Section 4524(c) of the Motor Vehicle Code, which provides as follows:
(c) Other obstruction.--No person shall drive any
motor vehicle with any object or material hung
from the inside rearview mirror or otherwise
hung, placed or attached in such a position as
to materially obstruct, obscure or impair the
driver’s vision through the front windshield or
any manner as to constitute a safety hazard.
75 Pa.C.S.A. § 4524(c).
Our supreme court held that conclusory statements by police officers
that objects hanging from a rearview mirror obstruct a driver’s view are
“insufficient to allow the suppression court to assess the reasonableness of
the officer’s belief that a [driver] was obstructed, let alone materially
obstructed, as the statute requires.” Commonwealth v. Holmes, 14 A.3d
89, 98 (Pa. 2011) (emphasis in original), citing Terry v. Ohio, 392 U.S. 1,
12, 22 (1968). Rather, the Commonwealth must produce evidence in such
cases that a material obstruction was present.
Otherwise, as noted by our supreme court,
there are myriad objects which drivers commonly
hang from their rearview mirrors. Air fresheners;
parking placards; mortarboard tassels; crosses;
rosary beads; medallions of St. Christopher, the
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patron saint of travel; and rabbits’ feet are but a few.
It is not illegal for a driver to hang such items from
his or her rearview mirror, so long as the items do not
materially obstruct the driver’s view. The legislature
could have written Section 4524(c) to prohibit a driver
from hanging any object from the vehicle’s rearview
mirror, or it could have prohibited hanging objects
that obstruct a driver’s view to any degree, but it did
not; rather, it prohibited only material obstructions.
Were this Court to conclude that an officer’s bare
testimony that he saw an object hanging from a
rearview mirror which obstructed the driver’s view,
without any additional testimony or other evidence
supporting the officer’s conclusion that the object
materially obstructed the driver’s view, was sufficient
to demonstrate reasonable suspicion to
constitutionally support the intrusion of a vehicle stop,
we would obviate the suppression court’s role in
ensuring there is an objectively reasonable basis for
the vehicle stop, and expose every law-abiding
motorist who hangs an object from his or her rearview
mirror to a potentially unwarranted intrusion. See
Terry.
Holmes, 14 A.3d at 98-99.
Here, Officer Marks’ testimony was insufficient to support the conclusion
that the object materially obstructed the driver’s view. The record reflects
that Officers Marks’ testimony about any potential obstruction caused by the
rope configuration is limited to, “I could see that this was partially in front of,
you know, where the driver would need to look to the right of him.” (Notes
of testimony, 11/7/18 at 7.) Accordingly, we find that the trial court’s factual
findings are supported by the record and that the trial court did not err when
it concluded that Officer Marks’ observation of the rope configuration hanging
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from the rearview mirror did not provide him with the requisite reasonable
suspicion required to initiate a traffic stop.
We next turn to the flag Officer Marks observed attached to the
windshield. Applying the same standard our supreme court used in Holmes
to address Section 4524(c), we find that Officer Marks did not possess
reasonable suspicion to initiate a traffic stop for a violation of Section 4524(a),
which provides, in relevant part:
(a) Obstruction on front windshield.--No person
shall drive any motor vehicle with any sign,
poster or other nontransparent material upon
the front windshield which materially obstructs,
obscures or impairs the driver’s clear view of the
highway or any intersecting highway except an
inspection certificate . . . .
75 Pa.C.S.A. § 4524(a).
Here, the trial court made the following determination pertaining to the
flag:
The evidence presented at the suppression hearing
was not sufficient to allow [the trial court] to fully,
independently assess whether [Officer Marks’]
suspicion was reasonable absent additional evidence
of the size of the windshield, whether the flag was
suctioned directly and securely to the windshield or
was dangling and swaying from a hook, the distance
between the “A” pillar and the flag, the actual size of
the flag[Endnote viii], or whether the flag was
transparent or cloth.
[Endnote viii] The [trial] court recognizes
that Officer Mark[s’] testimony that the
flag was 5x5 inches was an
approximation, but it is not convinced that
the flag was square as opposed to the
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traditional rectangular shape (3x5 or
4x6).
Trial court findings of fact & conclusions of law, 2/6/19 at 6.
We also note that Officer Marks did not provide any testimony as to
whether the flag materially obstructed the driver’s view. Rather, he provided
the following testimony:
Well, [the flag,] amongst the other things, drew my
attention because I was concerned that there would
be a line-of-sight issue. Obviously, we have four-way
intersections in the Borough and we’ve had a lot of
accidents because of people having things hanging
from their mirrors and windshields and they’re unable
to see correctly.
Notes of testimony, 11/7/18 at 9. Based on the evidence of record, we find
that the trial court did not err when it concluded that Officer Marks’
observation of the flag affixed to the windshield did not provide him with the
reasonable suspicion required to initiate a traffic stop.
Finally, we turn to the tint observed by Officer Marks in the rear window.
Window tint is regulated by Section 4524(e) of the Motor Vehicle Code, which
provides, in relevant part: “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.” 75 Pa.C.S.A. § 4524(e).3
375 Pa.C.S.A. § 4524(b) addresses obstructions on side and rear windows.
This subsection does not reference rear window tint.
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At the suppression hearing, Officer Marks testified that he observed a
“fairly dark tint” on the rear window of the car that was starting to peel.
(Notes of testimony, 11/7/18 at 6.) Officer Marks further testified that he
could see through the rear window in order to observe the rope configuration
and flag. (Id. at 5-6; 19.) Further, Officer Marks stated that the tint was not
the sole reason that he initiated the traffic stop, but that it could be a reason
to do so. (Id. at 20.)
Based on the plain language of the statute, we find that the trial court’s
legal conclusions are free of legal error, as the tint on the rear window did not
provide Officer Marks with the requisite reasonable suspicion required to
initiate a traffic stop. Indeed, the statute only regulates the use of tint on
windshields, side wings, or side windows of vehicles. See 75 Pa.C.S.A.
§ 4524(e). Moreover, even if Section 4524(e) regulated tint on rear windows,
Officer Marks still would not possess reasonable suspicion to initiate a traffic
stop, as he testified that he was able to see through the rear window—
indicating that the tint on the rear window was in compliance with the Motor
Vehicle Code. See id.
Accordingly, we find that the trial court did not err when it granted
appellee’s motion to suppress evidence.
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Order affirmed.
Ott, J. joins in this Memorandum.
Lazarus, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2019
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