J-S48025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BASHEIR FAKHA EDWARDS

                            Appellant                No. 2183 MDA 2013


               Appeal from the Order Entered October 25, 2013
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0000294-2013


BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                      FILED SEPTEMBER 18, 2014

        The Commonwealth appeals an order from the Luzerne County



motion. We affirm.

        By criminal information filed February 21, 2013, the Commonwealth

charged Edwards with possession of a prohibited firearm,1 carrying a firearm

without a license,2 two counts of receiving stolen property,3 defiant


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 6105(a)(1).
2
    18 Pa.C.S. § 6106(a)(1).
3
    18 Pa.C.S. § 3925(a).
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trespass,4 and driving without a license.5 On June 27, 2013, Edwards filed a

motion to suppress the evidence, including a firearm, alleging the police

seized him in his vehicle without probable cause or reasonable suspicion in

violation of the Fourth Amendment to the United States Constitution and

Article I Section 8 of the Pennsylvania Constitution. See U.S. Const. Amend.

IV; Pa. Const. Art. I § 8; Motion to Suppress, June 17, 2013, ¶¶ 1-5. After a

hearing, the suppression court granted his motion. Order Granting Motion to

Suppress, 10/25/2013.

        In its suppression hearing findings, the trial court aptly set forth the

factual history as follows:

        I.    INTRODUCTION

        Pursuant to an agreement of the parties, the Motion to
        Suppress relates only to the basis for the vehicle stop on
        December 12, 2012.

        II.   FINDINGS OF FACT

        1.    On December 12, 2012, Plains Township patrol
              sergeant Dale Binker was working the 11:00 p.m. to
              7:00 a.m. shift.

        2.    During the early morning hours of December 12,
              2012, sergeant Dale Binker was parked in a marked
              patrol vehicle in a lot near the Jazz Café off of River
              Street in Plains Township, Luzerne County[,]
              Pennsylvania.

____________________________________________


4
    18 Pa.C.S. § 3503(b)(1)(ii).
5
    75 Pa.C.S. § 1501(a).



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     3.    At approximately 1:17 a.m. on December 12, 2012,
           sergeant Binker observed a yellow vehicle enter the
           lot and travel on a dirt access road into a wooded
           area.

     4.    Sergeant Binker pursued the yellow vehicle,
           activated his lights and stopped the vehicle on the
           dirt access road.

     5.    The dirt access road leads to Canadian Pacific
           railroad property.


     6.    Sergeant     Binker testified  that  he  had
           suspicions regarding the yellow vehicle which
           is why he activated his lights to bring the
           vehicle to a stop.

     7.    No testimony was provided as to any specific
           suspicions with regard to the yellow vehicle.


     8.    [Officer] Michael Savokinas testified that he was
           employed as a Canadian Pacific railway police officer.


     9.    Officer Savokinas did not know if the portion of the
           access road on which the yellow vehicle was
           traveling and eventually stopped was owned by the
           Canadian Pacific railroad.

     10.   Sergeant Binker and Officer Savokinas provided
           credible testimony at the suppression hearing held
           on October 22, 2013.

Statement in Lieu of Opinion, January 6, 2014 (adopting Findings of Fact and

                                                          -3 (page numbers




                                   -3-
J-S48025-14


supplied) (emphasis added). On November 25, 2013, after the trial court
                                                                6



       The Commonwealth presents the following issue for our review:

       [I.]   Whether the officer had reasonable suspicion to stop

              access road to private property?



court erred by finding that the police officer lacked reasonable suspicion to

conduct the stop under the totality of the circumstances. See, e.g.,




       When the Commonwealth appeals from a suppression order,

              this Court may consider only the evidence from the

              the prosecution that, when read in the context of the
              record as a whole, remains uncontradicted.
              Commonwealth v. Whitlock, 69 A.3d 635, 637
              (Pa.Super.2013) (citation omitted).[7] In our review,

____________________________________________


6
  The Commonwealth and the suppression court complied with Pa.R.A.P.
1925. See Statement at 1 (citing Pa.R.A.P. 1925(a)(1)). An order granting
a suppression motion is considered an interlocutory order. Further, the
Commonwealth has complied with Pa.R.A.P. 311(d) by certifying that the


7
  Because the trial court granted the suppression motion prior to October 30,
2013, we review the entire record. Cf. In re L.J., 79 A.3d 1073, 1080
(Pa.2013).




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J-S48025-14


            conclusions of law, and we must determine if the
            suppression court properly applied the law to the
            facts. Id.
            findings of fact because, as the finder of fact, it is

            credibility of the witnesses and the weight to be
            given      to    their   testimony.  Id.    (citing
            Commonwealth v. Baker, 946 A.2d 691, 693
            (Pa.Super.2008)).

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa.Super.2014). Further,

            [t]he Fourth Amendment to the United States
            Constitution and Article I, Section 8 of the
            Pennsylvania Constitution protect individuals against
            unreasonable        searches        and      seizures.
            Commonwealth v. Miller, 56 A.3d 424, 429
            (Pa.Super.2012). Warrantless searches or seizures
            are presumptively unreasonable subject to certain
            established exceptions. Id. (citation omitted).

Id. In responding to a suppression motion, the Commonwealth has the

burden of presenting evidence and establishing, by a preponderance of the

evidence, that the police did not obtain the challenged evidence in violation

                            See Pa.R.Crim.P. 581(H); Commonwealth v.

Anthony, 1 A.3d 914, 919 (Pa.Super.2010).

      A police officer may initiate an investigatory vehicle stop when he has

reasonable suspicion to believe a violation of the Motor Vehicle Code is

occurring or has occurred. Commonwealth v. Bailey, 947 A.2d 808, 811

                                                                            of

criminal activity or a violation of the Motor Vehicle Code under the authority




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J-S48025-14


Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa.Super.2010) (internal

citation omitted).

                o establish grounds for reasonable suspicion, the
            officer must articulate specific observations which, in
            conjunction with reasonable inferences derived from
            those observations, led him reasonably to conclude,
            in light of his experience, that criminal activity was
            afoot and that the person he stopped was involved in
                           See Commonwealth v. Reppert, 814
            A.2d     1196,     1203    (Pa.Super.2002)       (citing
            Commonwealth v. Cook, 558 Pa. 50, 735 A.2d
            673, 677 (1999)).


            existed at the time [the officer conducted the stop]
            must be answered by examining the totality of the
            circumstances to determine whether the officer who
            initiated the stop had a particularized and objective
            basis                                             Id.
            Therefore, the fundamental inquiry of a reviewing

            the facts available to the officer at the moment of
            the [stop] warrant a man of reasonable caution in
            the bel                                         Id.
            (quoting Commonwealth v. Zhahir, 561 Pa. 545,
            751 A.2d 1153, 1156 (2000)).

Commonwealth v. Anthony, 1                A.3d 914, 919-20 (Pa.Super.2010)

(selected internal quotations omitted).

      The suppression court held that when Sergeant Binker activated his

lights and pulled Edwards over, he stopped him without reasonable suspicion

based on specific, articulable facts that criminal activity was afoot.

Statement ¶¶ 8-10, at 3-4. We agree.

      Prior to the stop, there was no indication of illegal activity. The vehicle

was not speeding. N.T. 10/22/2013, p. 11. There was no reason to suspect

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J-S48025-14


that the vehicle was trespassing on private property, since there were no

                                                 Id. at p. 17. Instead, the

officer merely had generalized, unfounded suspicions about the vehicle, as

the following testimony demonstrates:

           Q [Prosecution]: And at that point in time [while
           working on December 12, 2012], what did you do
           upon seeing that vehicle?

           A [Sergeant Binker]: At that time, I proceeded to

           we had numerous stolen cars placed in the woods.
           We had people illegally dumping, and we also had
           people back there poaching.

                                  ***

           Q [Defense counsel]: When you saw the yellow
           car, you had no indication [that it was engaged in
           illegal activity], did you?

           A: I saw a vehicle pull into the woods which [] was
           suspicious at that time.

           Q:

           A: Yes.

           Q:                                     going on?

           A: It could have been easy to be explained as
           somebody dumping or could have been a parker, or
           a girl going back there and they could have gotten


           woods.

                                  ***

N.T. 10/22/2013, pp. 6, 15-16.


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J-S48025-14




investigative detention [as opposed to an arrest], you do need reasonable

suspicion, w

no indication of any illegal activity being afoot. And, therefore, it should not

                                                                     -27.   The

suppression court agreed and suppressed all evidence seized as a result of

the stop. Statement ¶¶ 8-10, at 3-4. We discern no error of law in the trial



      Order affirmed.

      Judge Donohue joins in the memorandum.

      Judge Platt files a dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2014




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