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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    DARREN WILLIAM MARINO                      :   No. 730 WDA 2018

                   Appeal from the Order Entered May 4, 2018
                 In the Court of Common Pleas of Mercer County
              Criminal Division at No(s): CP-43-CR-0001792-2017


BEFORE:      OTT, J., MURRAY, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED DECEMBER 18, 2018

        The Commonwealth appeals from the order entered May 4, 2018, in the

Mercer County Court of Common Pleas, granting a pretrial motion to suppress

evidence filed by Appellee, Darren William Marino.1            On appeal, the

Commonwealth contends the trial court erred in concluding Marino’s traffic

stop for a violation of the Motor Vehicle Code was not supported by reasonable

suspicion. For the reasons below, we affirm.

        The trial court issued the following findings of fact after Marino’s

suppression hearing:


____________________________________________


   Former Justice specially assigned to the Superior Court.

1 Pursuant to Pa.R.Crim.P. 311(d), the Commonwealth properly certified in its
notice of appeal that “the pre-trial Order from which this appeal is taken
terminates or substantially handicaps its prosecution.” Notice of Appeal,
5/16/2018.
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     1. Trooper Snyder is a Pennsylvania State Police trooper and has
     been for four years. He is stationed at the Mercer barracks.

     2. On September 5, 2017, Trooper Snyder was on duty at
     approximately 4:00 p.m. in the Borough of Grove City,
     Pennsylvania.

     3. At that time, Trooper Snyder observed a vehicle with an object
     hanging from the rear view mirror that was purple in color.

     4. The object was estimated to be a baseball-sized object. The
     object was swinging back and forth from the rear view mirror and
     was approximately two to three inches.

     5. On first observation, Trooper Snyder was approximately a car
     length or less from [Marino’s] car.

     6. In the opinion of the trooper, the object obstructed the view
     through the windshield.

     7. At the time of day, it was light out and nothing was blocking
     the view of [Marino’s] vehicle.

     8. Trooper Snyder then activated his lights and conducted the
     traffic stop.

     9. Trooper Snyder was initially going to issue a warning for the
     obstruction; however, after running the information, which
     determined that the driver’s license and registration were valid,
     he returned to the vehicle and detected an odor of marijuana.

     10. Trooper Snyder is familiar with the odor of marijuana.

                                  ****

     12. Trooper Snyder then asked [Marino] whether there was any
     marijuana in the car. [Marino] answered, “No.” Trooper Snyder
     then asked when the last time [Marino] had smoked marijuana,
     and [Marino] answered, “Approximately one hour ago.” At that
     point in time, the trooper asked [Marino] to exit the vehicle to
     perform field sobriety tests.

     13. A video of the field sobriety test was watched as part of the
     suppression hearing. … [Marino] failed all tests. At that point in
     time, the trooper arrested [Marino] and advised him that he was
     going to take him for a blood test.



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       14. The trooper then conducted a search of the vehicle and found
       marijuana in a baggie in the glove box. The trooper also found a
       pipe used for smoking marijuana.

       15. On cross[-]examination, the trooper indicated that the object,
       again, was approximately baseball size. He further indicated that
       the video camera of the MVR was above eye level because he was
       driving in an SUV on that date. ...

Findings of Fact, 4/2/2018, at ¶¶ 1-15.

       Marino was subsequently charged with driving under the influence of

controlled substances (three counts), possession of a small amount of

marijuana, possession of drug paraphernalia, and windshield obstructions.2

On March 1, 2018, he filed a pre-trial motion seeking suppression of the

evidence recovered following an unlawful stop, because, in his view, Trooper

Snyder had no reasonable suspicion to stop the vehicle for a violation of the

Motor Vehicle Code. See Omnibus Pre-Trial Motion, 3/1/2018, at 1-2. The

trial court conducted a suppression hearing on April 4, 2018. Both the mobile

video recording of the vehicle stop, and the actual object hanging from

[Marino’s] rear view mirror were introduced into evidence.3            See N.T.,

4/4/2018, at 12-13, 22. At the conclusion of the hearing, the trial court issued

its findings of fact. Thereafter, on May 4, 2018, the court entered an order

granting Marino’s suppression motion.            The Commonwealth filed a timely
____________________________________________


2See 75 Pa.C.S. §§ 3802(d)(1)(i), (d)(1)(iii), and (d)(2); 35 P.S. §§ 780-
113(a)(31) and (a)(32); and 75 Pa.C.S. § 4524(c), respectively.

3 However, neither the video recording nor the purple object were submitted
to this Court as part of the certified record.




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motion for reconsideration, which the court promptly denied.         This appeal

followed.4

       The Commonwealth lists two issues on appeal, which we will address

together. It contends the trial court erred in granting Marino’s suppression

motion because Trooper Snyder’s testimony was sufficient to articulate

reasonable suspicion for the vehicle stop. Furthermore, the Commonwealth

maintains that, in rejecting the trooper’s testimony, the trial court improperly

gave more weight to the degree of obstruction of the ball hanging from the

mirror than the trooper’s own observations. See Commonwealth’s Brief at 4.

       Our standard of review is well-settled:

             When the Commonwealth appeals from a suppression
          order, we follow a clearly defined standard of review and
          consider only the evidence from the defendant’s witnesses
          together with the evidence of the prosecution that, when
          read in the context of the entire record, remains
          uncontradicted. The suppression court’s findings of fact
          bind an appellate court if the record supports those findings.
          The suppression court’s conclusions of law, however, are not
          binding on an appellate court, whose duty is to determine if
          the suppression court properly applied the law to the facts.
          Commonwealth v. Miller, 2012 PA Super 251, 56 A.3d
          1276, 1278–79 (Pa. Super. 2012) (citations omitted). “Our
          standard of review is restricted to establishing whether the
          record supports the suppression court’s factual findings;
          however, we maintain de novo review over the suppression
          court’s legal conclusions.” Commonwealth v. Brown, 606
          Pa. 198, 996 A.2d 473, 476 (2010) (citation omitted).

____________________________________________


4 On May 18, 2018, the trial court ordered the Commonwealth to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Commonwealth complied with the court’s directive, and filed a timely
concise statement on May 31, 2018.

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      Commonwealth v. Korn, 139 A.3d 249, 252–253 (Pa. Super.
      2016), appeal denied, 639 Pa. 157, 159 A.3d 933 (2016). “It is
      within the suppression court’s sole province as factfinder to pass
      on the credibility of witnesses and the weight to be given to their
      testimony. The suppression court is free to believe all, some or
      none of the evidence presented at the suppression hearing.”
      Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super.
      2003) (citations omitted), appeal denied, 577 Pa. 701, 847 A.2d
      58 (2004). Nevertheless, the suppression court’s conclusions of
      law are not binding on an appellate court, and are subject to
      plenary review. Commonwealth v. Johnson, 969 A.2d 565, 567
      (Pa. Super. 2009) (citations omitted).

Commonwealth v. Byrd, 185 A.3d 1015, 1019 (Pa. Super. 2018). When a

defendant files a motion to suppress evidence, “it is the Commonwealth’s

burden to present evidence that the defendant’s constitutional rights were not

infringed.” Commonwealth v. Enimpah, 106 A.3d 695, 701 (Pa. 2014).

      A police officer’s statutory authority to stop a motor vehicle is codified

in Section 6308(b) of the Motor Vehicle Code, which provides:

      Whenever a police officer … 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(b).

      In interpreting this subsection, the courts of this Commonwealth have

concluded that a vehicle stop based solely on reasonable suspicion of a motor

vehicle violation “must serve a stated investigatory purpose. In effect, the

language of Section 6308(b)—‘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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is conceptually equivalent with the underlying purpose of a Terry stop.”

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

(internal citations omitted), appeal denied, 611 Pa. 650, 25 A.3d 327 (2011).

When no further investigation is necessary to determinate if a driver

committed a traffic violation or crime, the officer must possess “probable

cause to believe that the vehicle or the driver was in violation of some

provision of the Code.” Id. (quotation and emphasis omitted).

      In the present case, Trooper Snyder stopped Marino for a violation of

Section 4524 of the Motor Vehicle Code, which provides, in pertinent part:

      (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. § 4524(c). The courts of this Commonwealth have held that a stop

based upon a suspected violation of Section 4524(c) requires only reasonable

suspicion.   See Commonwealth v. Holmes, 14 A.3d 89 (Pa. 2011);

Commonwealth v. Shabazz, 18 A.3d 1217 (Pa. Super. 2011).

      In Holmes, supra, the Pennsylvania Supreme Court explained:

         Reasonable suspicion is a less stringent standard than
         probable cause necessary to effectuate a warrantless arrest,
         and depends on the information possessed by police and its
         degree of reliability in the totality of the circumstances. In
         order to justify the seizure, a police officer must be able to
         point to “specific and articulable facts” leading him to
         suspect criminal activity is afoot. In assessing the totality
         of the circumstances, courts must also afford due weight to
         the specific, reasonable inferences drawn from the facts in


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         light of the officer’s experience and acknowledge that
         innocent facts, when considered collectively, may permit the
         investigative detention.

      Thus, under the present version of Section 6308(b), in order to
      establish reasonable suspicion, an officer must be able to point to
      specific and articulable facts which led him to reasonably suspect
      a violation of the Motor Vehicle Code, in this case, Section
      4524(c).

Holmes, supra, 14 A.3d at 95-95 (internal citations omitted). Furthermore,

“[i]t is the duty of the suppression court to independently evaluate

whether, under the particular facts of a case, an objectively reasonable police

officer would have reasonably suspected criminal activity was afoot.” Id.

at 96 (emphasis supplied).     The Holmes Court emphasized the need for

“specific facts justifying” the officer’s decision to conduct a vehicle stop: “To

hold otherwise would be to give the police absolute, unreviewable discretion

and authority to intrude into an individual’s life for no cause whatsoever.” Id.

(citation omitted).

      In Holmes, the Supreme Court found the testimony provided at the

suppression hearing was insufficient to support the trial court’s determination

that the officer had reasonable suspicion to stop the defendant’s vehicle. See

id. at 97-98.   In that case, the officer testified simply that he observed,

“objects hanging from the rearview mirror [of the defendant’s vehicle] which

were obstructing the driver’s view.” Id. at 97 (citation omitted). The Court

emphasized there was no description of the size of the objects or “how the

objects impaired” the driver’s field of vision. Id. at 98. Based on the officer’s

“bare testimony,” the Holmes Court concluded the suppression court would


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not have been able to determine if the officer had an “objectively reasonable

basis for the vehicle stop.” Id. at 99.

      A panel of this Court came to a different conclusion in Commonwealth

v. Shabazz, 18 A.3d 1217 (Pa. Super. 2011). Like Holmes, in Shabazz, a

police officer initiated a traffic stop based on a suspected violation of Section

4524. Id. at 1218. During the suppression hearing, the officer described the

objects hanging from the defendant’s rearview mirror as “[r]ather large” dice

and at least four pine tree air fresheners. Id. at 1222 (citation omitted). He

estimated the dice were three inches by three inches, and hung “three or four”

inches below the mirror, “low enough to interfere with the driver if he had to

turn or if he had to go straight.”     Id. (citation omitted).   Based on this

testimony, the trial court found, and the panel agreed, “[t]he combination of

multiple air fresheners, three by three inch foam dice, and [the officer’s]

explanation of how these items might impair a driver’s view made it

reasonable for him to suspect the [defendant] was in violation of [Section

4524(c)], and justified the traffic stop.” Id. (citation omitted).

      Turning to the present matter, the trial court distinguished the facts

presented in Shabazz, supra, and determined Trooper Snyder’s stop of

Marino’s vehicle was unlawful:

      [Trooper] Snyder initiated the traffic stop in broad daylight and
      was able to clearly see the object hanging from [Marino’s]
      rearview mirror. … [Trooper] Snyder was able to accurately
      describe the object and state that he believed the object created
      an obstruction to [Marino’s] view. However, the purple object
      hanging from [Marino’s] rearview mirror presents far less of an
      obstruction than was present in Shabazz. More importantly, it

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      hung by itself. In Shabazz, the obstruction was created by a pair
      of fuzzy dice, each similar in size to [Marino’s] single purple
      sphere, and several additional air fresheners.

             Having seen the object and the video from [Trooper]
      Snyder’s police vehicle, this Court finds that [Trooper] Snyder did
      not have reasonable suspicion to believe that the object created a
      material obstruction of [Marino’s] view. The object hung by itself,
      and it was too small to materially impair [Marino’s] ability to drive
      the vehicle safely. Accordingly, the traffic stop initiated by
      [Trooper] Snyder was unlawful, and any evidence obtained
      following the stop must be suppressed.

Trial Court Opinion, 5/4/2018, at 4-5 (footnote omitted).

      The Commonwealth maintains Trooper Snyder’s testimony alone

provided the requisite reasonable suspicion for his stop of Marino’s vehicle,

See Commonwealth’s Brief at 17-19.             It insists the trooper’s detailed

description of the hanging object, his testimony that it “swung back and forth,”

and his belief that the object “materially obstructed the driver’s view through

the front windshield,” was sufficient to demonstrate reasonable suspicion for

the stop. Commonwealth’s Brief at 19. However, the trial court did not find

Trooper Snyder’s belief - that the object “materially obstruct[ed]” Marino’s

vision - was reasonable. 75 Pa.C.S. § 4524(c). Here, the court had the

opportunity to see the actual size and shape of the purple object, and, more

importantly, view the mobile video recording of the stop. See N.T.,4/4/2018,

at 13, 22; Trial Court Opinion, 5/4/2018, at 5.        In a subsequent opinion

accompanying     its   order   denying   the     Commonwealth’s     motion    for

reconsideration, the court elaborated:

      [T]his Court was able to make its own determination as to the
      reasonableness of [Trooper] Snyder’s belief. In making that
      determination, the degree of the obstruction caused by the object

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      was relevant to this Court’s determination. Due to the size of the
      object, [Trooper] Snyder could have observed, at most, a minor
      obstruction. Therefore, [Trooper] Snyder’s subjective belief that
      the object created a material obstruction was unreasonable.

Trial Court Opinion, 5/14/2018, at 3.

      Pursuant to Holmes, the trial court was required “to independently

evaluate whether, under the particular facts of [the] case, an objectively

reasonable police officer would have reasonably suspected” Marino was

committing a traffic violation. Holmes, supra, 14 A.3d at 96. Otherwise, as

the Holmes Court points out, police officers would be given “absolute,

unreviewable discretion and authority to intrude into an individual’s life for no

cause whatsoever.” Id. (citation omitted). Furthermore, the Holmes Court

emphasized Section 4524(c) does not prohibit a driver from hanging an object

from his rearview mirror; “rather, an essential element is that the object or

material hanging from the mirror materially obstructs, obscures, or impairs

the driver’s vision.”   Id. at 97.   In this case, the trial court concluded no

reasonable person could conclude that Marino’s view was materially

obstructed under the circumstances present.

      The Commonwealth also insists, however, the trial court’s independent

consideration of the “degree of obstruction” was improper at this stage in the

proceedings. Commonwealth’s Brief at 21. It maintains the degree to which

the object obstructed Marino’s view was relevant only in determining whether

Marino was guilty beyond a reasonable doubt of a violation of Section 4524(c),

that is, a sufficiency challenge. See id. The Commonwealth argues such a

consideration is not relevant in determining whether a police officer lawfully

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effectuated a traffic stop, when all that is required is reasonable suspicion of

a potential violation. See id. Relying on Justice Eakin’s Dissenting Opinion in

Holmes, supra, the Commonwealth contends, “[i]t is not the degree of

obstruction that provides reasonable suspicion, … but Trooper Snyder’s own

observations regarding a possible material obstruction.”       Id. at 24.     See

Holmes, supra, 14 A.3d at 100 (Eakin, J. Dissenting) (“The issue is whether

what the officer saw gave him reason to suspect there was such a violation.

What the officer finds after the stop does not matter—it is whether he

reasonably believes a criminal violation may be afoot that counts.”).

      In responding to Judge Eakins’ Dissent, the Holmes Majority stated:

      The dissent, it seems, would write the materiality element out of
      Section 4524(c) for purposes of a vehicle stop. Although the
      dissent recognizes that the critical issue in evaluating the legality
      of a traffic stop is whether the police officer reasonably believes a
      criminal violation may be afoot, the dissent opines that an officer
      need not observe a material obstruction; rather, he may observe
      any obstruction and then “investigate whether vision is blocked to
      the point of comprising a violation.” Such an approach is contrary
      to the principles underlying Terry. Further, it would give police
      officers carte blanche to stop any vehicle with an object hanging
      from the rearview mirror, as any hanging object would arguably
      obstruct the driver’s view to some degree. Yet, as discussed
      supra, Section 4524(c) does not prohibit a driver from hanging
      any object from the vehicle’s rearview mirror; it prohibits only
      material obstructions. Thus, unless [the police officer] reasonably
      believed that the object hanging from [the defendant’s] rearview
      mirror materially obstructed his view—which [the officer] did not
      claim at the suppression hearing—he had no legal basis upon
      which to stop [the defendant’s] vehicle.

Holmes, supra, 14 A.3d at 98 n.14 (citation omitted and emphasis in

original). Although, in the present case, Trooper Snyder did testify that he


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believed the purple object hanging from Marino’s rearview mirror “materially

obstructed the driver’s … view[,]” the trial court was not compelled to accept

the trooper’s testimony. Rather, the court considered the testimony in light

of the other evidence - particularly the object itself and the mobile video

recording – and concluded Trooper Snyder’s characterization of the

obstruction as material was unreasonable. The role of the suppression court

is to ensure “there is an objectively reasonable basis for the vehicle stop[.]”

Holmes, supra, 14 A.2d at 99.       Here, the trial court found there was no

reasonable basis for the stop, and we find no reason to disagree. Accordingly,

the Commonwealth is not entitled to relief.

      Order affirmed.

      Judge Murray joins this memorandum.

      President Judge Emeritus Stevens files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2018




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