J-S45040-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   Appellee              :
                                         :
          v.                             :
                                         :
TYRONE W. HOUSTON,                       :
                                         :
                   Appellant             :     No. 2114 EDA 2016

               Appeal from the Judgment of Sentence June 27, 2016
               in the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-51-CR-0011491-2015

BEFORE: GANTMAN, P.J., PANELLA, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED SEPTEMBER 12, 2017

      Tyrone W. Houston (Appellant) appeals from the judgment of sentence

entered June 27, 2016, after he was found guilty of carrying a firearm

without a license, carrying a firearm on a public street in Philadelphia, and

possession of a small amount of marijuana. We affirm.

      The trial court offered the following summary of the facts underlying

this case.1

             Police Officer Jason Reid testified that at around 8:49 p.m.
      on August 22, 2015, he was on routine highway patrol in an
      unmarked vehicle on the 1200 block of South 53rd Street in
      Philadelphia. Officer Reid was patrolling that particular area
      because a homicide had occurred the night prior. While on
      patrol, he encountered [Appellant] in a black Cadillac Eldorado
      with heavily tinted windows. Officer Reid pulled [Appellant] over
      to further investigate the suspected motor vehicle code violation.
      Officer Reid described the windows as “[a]lmost pitch black.”

1
 The trial court cites exclusively to the transcript regarding Appellant’s
motion to suppress.


* Retired Senior Judge assigned to the Superior Court
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            Once pulled over, Officer Reid began to approach
      [Appellant’s] vehicle and ordered him to roll down the windows.
      [Appellant] complied. As he walked toward the car, Officer Reid
      observed a heavy smell of burnt marijuana emanating from
      inside the vehicle. [Appellant] was dressed in his work attire
      and had tools scattered throughout the car. [Appellant] gave
      Officer Reid his driver’s license. Officer Reid observed a burned
      marijuana cigar next to [Appellant’s] leg. Officer Reid then
      asked [Appellant] if he had any more marijuana in the car.
      [Appellant] said he did and also acknowledged that he had an
      unloaded firearm in his right pants pocket. At the time these
      statements were made, [Appellant] was still seated in the
      driver’s seat. He was not handcuffed and the officers had not
      drawn their weapons. Officer Reid asked [Appellant] if he had a
      permit to carry a firearm, which he declined. [Appellant] also
      explained that the ammunition for the gun was in the trunk of
      his car. Officer Reid asked [Appellant] to put his hands on the
      back of his head. Officer Reid reached over [Appellant] and
      recovered an unloaded black handgun.            The officers also
      recovered the burnt marijuana cigar as well as several packets of
      unburnt marijuana from the visor above the driver’s seat.

            [Appellant’s] mother, Sherry Houston, testified during the
      motion hearing. She stated that prior to his arrest, [Appellant]
      was [] at her house for dinner. She stated that when he left, the
      windows of his car were rolled completely down because the air
      conditioner was not functioning properly. [Appellant] himself
      also testified, refuting the testimony of Officer Reid. He too
      claimed that the windows of his car were rolled down when he
      was pulled over. He testified that Officer Reid told him he
      smelled weed, but wasn’t concerned about it. He stated that
      Officer Reid told him “you know what the F I’m looking for” and
      reached through his window and started patting him down.
      However, [Appellant] admitted during his testimony that the
      back windshield of his vehicle is also tinted.

Trial Court Opinion, 10/4/2016, at 1-3 (citations omitted).

      Appellant sought to suppress the physical evidence, averring his arrest

was illegal. Motion to Suppress, 12/28/2015. Following a hearing, the trial




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court denied Appellant’s motion, and he subsequently pled guilty to the

aforementioned charges.

        However, Appellant filed for and was granted permission to withdraw

his guilty plea, and eventually proceeded to a non-jury trial. Following his

trial, Appellant was found guilty and sentenced to an aggregate term of

incarceration of time-served to twenty-three months incarceration, followed

by six years’ probation. This timely-filed appeal followed.2

        Appellant presents the following question for our review: Did not the

trial court err in denying the motion to suppress, as the court’s legal analysis

was based on a misreading of the Motor Vehicle Code? Appellant’s Brief at

3.

        We address Appellant’s sole issue on appeal mindful of the following.

        Our standard of review in addressing a challenge to the denial of
        a suppression motion is limited to determining whether the
        suppression court’s factual findings are supported by the record
        and whether the legal conclusions drawn from those facts are
        correct.    Because the Commonwealth prevailed before the
        suppression court, 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.
        Where ... the appeal of the determination of the suppression
        court turns on allegations of legal error, the suppression court’s
        legal conclusions are not binding on an appellate court, whose
        duty it is to determine if the suppression court properly applied
        the law to the facts. Thus, the conclusions of law of the court[]
        below are subject to our plenary review.


2
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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Commonwealth v. Perel, 107 A.3d 185, 188 (Pa. Super. 2014) (quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).             “Moreover,

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.”    Commonwealth v. Stilo, 138 A.3d 33, 35–36 (Pa. Super.

2016).

     The following principles guide our review if this matter.

     (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.

75 Pa.C.S. § 6308.

     Traffic stops based on a reasonable suspicion: either of criminal
     activity or a violation of the Motor Vehicle Code under the
     authority of [subs]ection 6308(b) must serve a stated
     investigatory purpose. Commonwealth v. Feczko, 10 A.3d
     1285, 1291 (Pa. Super. 2010) (en banc) (citation omitted). For a
     stop based on the observed violation of the vehicle code or
     otherwise non-investigable offense, an officer must have
     probable cause to make a constitutional vehicle stop. Feczko,
     10 A.3d at 1291 (“Mere reasonable suspicion will not justify a
     vehicle stop when the driver’s detention cannot serve an
     investigatory purpose relevant to the suspected violation.”).

Commonwealth v. Bush, 2017 WL 3046959 (Pa. Super. filed July 19,

2017) (some quotation marks omitted).




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        At the suppression hearing, Officer Reid testified that he stopped

Appellant’s vehicle due to the car’s heavily tinted windows, which the officer

suspected was a violation of 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.”).

        If the alleged basis of a vehicular stop is to determine whether
        there has been compliance with the Commonwealth’s vehicle
        code, it is incumbent upon the officer to articulate specific facts
        possessed by him, at the time of the questioned stop, which
        would provide probable cause to believe that the vehicle or the
        driver was in violation of some provision of the code. However,
        if an officer stops a vehicle for the purpose of obtaining
        necessary information to enforce the provisions of the code, the
        stop need only be based on reasonable suspicion that a violation
        of the code has occurred.

Commonwealth v. Slattery, 139 A.3d 221, 222–23 (Pa. Super. 2016)

(citation omitted). Because 75 Pa.C.S. § 4524(e)(1) sets forth exceptions3




3
    See 75 Pa.C.S. § 4524(e)(2)(i-ii)

        (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


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to this provision, thus allowing certain individuals to drive vehicles with

tinted windows, Officer Reid needed to stop the vehicle to obtain further

information to confirm that Appellant was indeed in violation of the above-

referenced provision. Thus, as confirmed by Appellant, the Commonwealth,

and the trial court, only reasonable suspicion was needed by Officer Reid to

initiate a stop of Appellant’s vehicle.    “The determination of whether an

officer had reasonable suspicion that criminality was afoot so as to justify an

investigatory detention is an objective one, which must be considered in

light of the totality of the circumstances.” Commonwealth v. Holmes, 14

A.3d 89, 96 (Pa. 2011).

      Appellant argues that Officer Reid did not have reasonable suspicion to

stop his vehicle. Appellant’s Brief at 8. Specifically, Appellant avers that the

testimony elicited at the suppression hearing, which he contends was found

credible by the trial court,4 confirms Appellant’s assertion that all of the

windows in his vehicle were down, and thus the officer would have been

unable to view whether the side windows were tinted.        Id.   Furthermore,

Appellant contends that the plain reading of the statute cited supra, only

“prohibits driving while the side windows or front windshield are obstructed


      certificate of exemption for medical reasons has been issued in
      accordance with regulations adopted by the department.
4
  In support of this averment, Appellant contends that “[t]he trial court
stated in her findings of fact, regarding [Appellant’s] testimony about the
windows: ‘[Appellant] testified to that fact and I do believe he was being
candid with the [trial court] with regard to that fact.’” Appellant’s Brief at 9
(citation omitted).


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by tinting,” and therefore, the officer’s observation that Appellant’s rear

window was tinted, is of no moment, since the statute does not prohibit the

rear window from being tinted. Id. at 8- 14.

      In its 1925(a) opinion, the trial court offered the following analysis:

      Officer Reid testified that the basis for the traffic stop was
      because the car had “heavy tinted windows” that were “[almost]
      pitch black” and prevented him from seeing inside the vehicle
      even with the aid of his flashlight. These observations gave rise
      to a suspected violation of the [Motor Vehicle Code] provision
      barring window tint and gave Officer Reid the requisite
      reasonable suspicion and probable cause needed to stop
      [Appellant’s] car. Th[e trial court] found Officer Reid credible
      despite a factual dispute between the testimonies of Officer Reid
      and [Appellant] about whether the windows were rolled down.
      However, even if the discrepancy were to be resolved in favor of
      [Appellant], the fact that his rear windshield was tinted was
      sufficient on its own to raise reasonable suspicion of a violation.

Trial Court Opinion, 10/4/2016, at 4 (citations omitted). The trial court also

provided further reasoning for denying Appellant’s motion, on the record

after the hearing.

            Thank you. I have reached my finding of facts and
      conclusions of law with regard to this case. In regards to the
      stop that occurred on the 1200 Block of South 53rd Street, this
      Court does find that Officer Reid is an officer in the Highway
      Patrol Unit. He has eight years in narcotics. That on August 22nd
      of 2015, he was in an unmarked patrol car with his partner,
      Officer Rivera, in full uniform. That at approximately 8:49 p.m.,
      there was a vehicle investigation of [Appellant’s] car, in which
      [Appellant’s] car was pulled over.

            During that time Officer Reid stated that he saw tint on the
      windows of the car. Tint dark enough that he could not see
      inside with the lights of his patrol car and his flashlight. He
      stated that Officer Rivera was on the passenger’s side of the
      vehicle at the time of this stop. He stated that the defendant was
      compliant and that he rolled down the windows when asked.


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      That Officer Reid smelled an odor of burnt marijuana at that
      time.

                                        ***

            I did take testimony from Ms. Houston and I heard Ms.
      Houston’s [(Appellant’s mother)] testimony as well as
      [Appellant’s] testimony. With regard to their testimony, I think
      that one of the deciding factors for me in this particular case is
      with regard to the tint on that back window. The actual motor
      vehicle code does not specify that it needs to be the front
      windshield. It says “windshield.” I believe that that applies both
      to the front and the back windshield, and I think that is the
      intent of the legislator--based on the fact that all other windows
      in the vehicle are enumerated within the code.

            [Appellant] testified to that fact and I do believe he was
      being candid with the [trial court] with regard to that fact.
      Because of that, I do deny the motion to suppress. I do find that
      there was reasonable suspicion and probable cause in this case
      and I believe that it was elevated by statements made by
      [Appellant] at the time. Additionally, the actual smell of
      marijuana, alone, and the observation of the blunt would have
      allowed Officer Reid to make a valid arrest on possession of
      marijuana and with the possibility of DUI.

N.T., 1/20/2016, at 32-34.

      Here, it is clear the trial court found Officer Reid’s testimony, that

Appellant’s side windows were up when he initiated the stop, credible. 5 Not

only was this fact stated in the court’s findings of fact, but also reiterated in

5
  In finding as such, we disagree with Appellant’s interpretation of the court’s
findings and credibility determinations. A reading of the transcript as a
whole shows that the trial court’s statement that “[Appellant] testified to
that fact and I do believe he was being candid with the [trial court] with
regard to that fact” was preceded by the court’s finding that the back
window was tinted, and that Appellant had admitted to that fact. N.T.,
1/20/2016, at 33. We decline to conclude that the trial court’s statement
should be read to include all of Appellant’s testimony, especially in light of
the court’s opinion reiterating that it had found Officer Reid more credible
than Appellant.


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the trial court’s 1925 opinion, wherein the court specifically stated that it

“found   Officer   Reid   credible    despite   a   factual    dispute    between      the

testimonies of Officer Reid and [Appellant] about whether the windows were

rolled down.” Trial Court Opinion, 10/4/2016, at 4. Because the trial court

credited Officer Reid’s testimony concerning the side windows, and Appellant

admitted his side windows were indeed tinted, N.T., 1/20/2016, at 21,

Officer Reid had the requisite reasonable suspicion needed to initiate the

stop of Appellant’s vehicle.

      Although the trial court found persuasive the fact that all parties

agreed that the back window was tinted, and interpreted 75 Pa.C.S.

§ 4524(e)(1)     as   prohibiting    such   tinting,   the    trial   court’s   credibility

determination that Officer Reid observed Appellant’s tinted side windows is

dispositive. “As this Court has often reiterated: 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. Gallagher,

896 A.2d 583, 585 (Pa. Super. 2006) (citation and quotations omitted).                  In

light of the trial court’s credibility determination that Officer Reid observed

the tint on Appellant’s side windows, we need not resolve whether 75

Pa.C.S. § 4524(e)(1) includes the back window/windshield.

      Thus, we are unconvinced that any of Appellant’s arguments entitles

him to relief.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2017




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