J-S26019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                v.                             :
                                               :
    GLENN BRICKUS                              :
                                               :
                       Appellee                :       No. 3301 EDA 2018

                Appeal from the Order Entered October 24, 2018
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000810-2018


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                             FILED JULY 18, 2019

       Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Chester County Court of Common Pleas, which granted the

suppression motion of Appellee, Glenn Brickus.1 We affirm.

       In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case.         Therefore, we have no need to

restate them.

       The Commonwealth raises the following issue for our review:

          WHETHER        THE    TRIAL    COURT     ERRED   IN   GRANTING
____________________________________________


1 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice
of appeal that the trial court’s suppression order substantially handicapped or
terminated the prosecution of the Commonwealth’s case. Accordingly, this
appeal is properly before us for review. See Commonwealth v. Cosnek,
575 Pa. 411, 421, 836 A.2d 871, 877 (2003) (stating Rule 311(d) applies to
pretrial ruling that results in suppression, preclusion or exclusion of
Commonwealth’s evidence).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S26019-19


         [APPELLEE]’S SUPPRESSION MOTION?

(Commonwealth’s Brief at 4).

      Our scope and standard of review when the Commonwealth appeals

from a suppression order are as follows:

         [T]his Court may consider only the evidence from the
         defendant’s witnesses together with the evidence of the
         prosecution that, when read in the context of the record as
         a whole, remains uncontradicted. In our review, we are not
         bound by the suppression court’s conclusions of law, and we
         must determine if the suppression court properly applied the
         law to the facts. We defer to the suppression court’s
         findings of fact because, as the finder of fact, it is the
         suppression court’s prerogative to pass on the credibility of
         the witnesses and the weight to be given to their testimony.

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

denied, 630 Pa. 734, 106 A.3d 724 (2014) (internal citations omitted).

      Section 4303 of the Pennsylvania Vehicle Code provides, in relevant

part, as follows:

         § 4303. General lighting requirements

                                 *    *    *

         (b) Rear lighting.—Every vehicle operated on a highway
         shall be equipped with a rear lighting system including, but
         not limited to, rear lamps, rear reflectors, stop lamps and
         license plate light, in conformance with regulations of the
         department. If a vehicle is equipped with a centrally
         mounted rear stop light, a decal or overlay may be affixed
         to the centrally mounted rear stop light if the decal or
         overlay meets all applicable State and Federal regulations.

75 Pa.C.S.A. § 4303(b).

      After a thorough review of the record, the briefs of the parties, the


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J-S26019-19


applicable law, and the well-reasoned opinion of the Honorable Patrick C.

Carmody, we conclude the Commonwealth’s issue merits no relief. The trial

court opinion comprehensively discusses and properly disposes of the question

presented. (See Trial Court Opinion, filed January 11, 2019, at 5-6) (finding:

police stopped Appellee on basis that Appellee’s vehicle’s third brake light was

out, in violation of Section 4303(b) of Vehicle Code; at suppression hearing,

two police officers who stopped Appellee testified Appellee’s vehicle’s third

brake light was inoperable; Commonwealth, however, failed to introduce

Motor Vehicle Recorder (“MVR”) video of incident, body camera recording of

incident, or photographs to establish Appellee’s brake light was out when

police stopped Appellee, even though police still had custody of vehicle at time

of hearing; on other hand, Appellee testified brake light was working on date

of incident; both Appellee and police were equally credible; without video

and/or photographic evidence to demonstrate inoperability of Appellee’s

vehicle’s brake light, Commonwealth failed to meet its burden to establish

police conducted lawful stop of Appellee; at hearing, court merely attempted

to convey that MVR or body camera video could have assisted Commonwealth

to meet its burden to show police lawfully stopped Appellee for violation of

Vehicle Code; suppression court simply opined on record that Commonwealth

risks having courts suppress evidence in future, close cases, like current case,

without functional video equipment; Commonwealth’s contention, that court

suppressed evidence based solely upon court’s personal view that all police


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J-S26019-19


vehicles should house MVR equipment, merits no relief). The record supports

the trial court’s decision. Accordingly, we affirm on the basis of the trial court

opinion.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/19




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                                                                     Circulated 06/20/2019 03 56 PM




COMMONWEALTH OF PENNSYLVANIA                       : ]N THE COURT OF COMMON PLEAS

                                                     CHESTER COUNTY, PENNSYLVANIA
                vs.
                                                     CRIMINAL ACTION -- LAW

                                                     NO. 81.0-18

Nicholas J. Casenta, Jr., Esquire, Chief Deputy District Attorney for the Commo�ealth
Sarah B. Black, Esquire, Attorney for.Defendant                                �·           µ
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       The Commonwealth has appealed from the Order entered by the court� October 24,

2018, granting defendant's Omnibus Pretrial Motion Petition and Motion for Suppression. of

Evidence, This Opinion is filed pursuant to PaR.A.P. 1925(a).

       On October 24, 2018, a hearing was held on defendant's Omnibus Pretrial Motion. At

the conclusion of the hearing, the court granted defendant's motion and suppressed any and all

evidence.obtained as a result of a traffic stop of defendant's vehicle. The Commonwealth filed

a timely Notice of Appeal on November 13, 2018. On the same date, the Commonwealth was

ordered to file a Concise Statement of Matters Complained of on Appeal.                            The

Commonwealth's Concise. Statement was received on December 3, 2018.                        In it, the

Commonwealth raises the following issues;

       l. The trial court erred in granting defendant's motion;
       2. The trial court did not comply with Pa.R.Crim.P. 581;
       3. The trial court erred by not making specific .findings of fact;
       4. The trial court erred by not making specific conclusions of law;
       5. To the extent that the trial court's legal conclusions can be inferred they are
          not correct;
       6. To the extent that the trial court's factual findings can be inferred they are
          not supported by the record;
       7. The trial court erred in that it did not grant defendant's suppression motion
          based on a violation of defendant's rights, as there were no violations, but
            rather. granted defendant's suppression motion based on the trial court's
            personal view that all police vehicles should be equipped with MVR (Motor
            Vehicle Recording) Equipment, and the trial court wanted to send that
            message to the Coatesville Police Department.

See the Commonwealth's Statement of Matters Complained of on Appeal. At the hearing            01


October 24, 2018, Corporal Kenneth Michels testified to the following:

        On February 21, 2018, Corporal Michels and Officer Carmen Mollichella of the City o

Coatesville Police Department were on duty operating a marked patrol vehicle in the area .o

North 7th Street' in Coatesville, Chester County, Pennsylvania. Their patrol vehicle had a Moto

Vehicle Recorder (hereinafter, "MVR") in it, but it was not. functioning. The MVR in th

vehicle has been inoperable for about five (5) years.        At approximately 5 :00 a.m., the

observed a vehicle travelling at a high rate of speed with an inoperable third brake light. Base

on this observation, they effectuated a 'traffic stop. Officer Bogan of the City of Coatesvill

Police Department also arrived at the. scene. The MVR inhis vehicle was functioning, but h

did not record the incident. Each of the officers at the scene had body cameras, but no on

recorded the alleged inoperable third brake light.

        Officer Mollichella also testified at the hearing. He testified consistently with Corpora

Michels' testimony and stated that the third brake light on defendant's vehicle was :no

functioning. He also confirmed that the patrol car did not have a functioning MVK Further

even though there was a working body camera on his person, he did not record the inoperabl ·

third brake light.

        At the .hearing, the Commonwealth attempted to introduce the hearsay testimony o

Sergeant Harris of the City ofCoatesville Police Department, who was not subpoenaed forth

hearing. The hearsay testimony would have been that Sergeant Harris. met with someone. from

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the Public Defender's Office to inspect defendant's vehicle prior to the hearing. (The vehicl

was still in the police impound lot at the time of the hearing on October 24, 2018.) Th

inspection of the vehicle revealed that the third brake light- was not operational at that time

The court sustained defense counsel's objection to this line of questioning on the basis o

hearsay: The court would have accepted photographs showing the inoperable brake light, bu

none were offered into evidence.

       Defendant took the stand in his own defense. He testified that he was driving          a   199

Saturn Aura that he had just bought approximately ten (10) to fifteen ( 15) days before th

incident. He inspected the car when he purchased it, and the brake lights were in workin

order. He also stated that he observed the brake light working on the day in question when h

left for work that morning prior to the stop.

       After both sides rested their case, the court noted the following:

                You know, this is a tough one, because frankly, it's not only the
       credibility. Where I'm at is, this is not going to have any precedential value,
       whatsoever, for any other cases. Mr. Brickus, you had a dispute about this
       thing. I'm not finding you necessarily more credible than Corporal Michaels
       (sic) or Officer Mollichella. I think they're both credible .people. I deal with
       them all the time. This is kind of a lecture to Chief Lauter who I have respect
       for and also the DA's office. In a situation like this, bring in Sergeant Harris.
       Bring in pictures. Bring in - - just take. the extra step to do the hearing right so
       that I have the evidence in front of me to do it, Especially in a situation where
       both officers, both their cars, don't have MVRs. Then they both have the safety
       net oftheir body-cams. We know the way this day went down that, you know,
       we have a record, but everything wertt south after that with Mr. Brickus and he
       allegedly resisted. I don't know if he was tasered or not. You know, at that
       point, itall went south and you know there's going to be a dispute on both sides.

              So I find that on February 21st.of 2018, at4:28 in the morning, the police
       stopped the car; Both police officers say the third brake light was inoperable.
       Mr. Brickus says it was. There was a way to confirm that, which was either just
       take a picture of it in the lot. It's been sitting there since February, or have.
       Sergeant Harris come in to testify to that. That essentially, the Commonwealth
                                                -3-
        did not cross all of their T's and dot all their rs for me to do it beyond a
        reasonable doubt. I'm not saying anything that - - Mr. Brickus is telling me

        pointblank. It's not that I find you more credible ·than the police officers. This
        is - - you're really getting an enormous break. Do you understand that?

                                                * ..........
                If 1 see you again or if Coatesville sees you again, you better believe
        they're going to .arrest you. In this particular case, you had drugs and everything
        else and acted like an. idiot especially considering, allegedly considering, the
        time. If Pm ever pulled over it's what do you want and how do you want it.
        Just cooperate. Corporal Michaels (sic), I have known you a long time. You
        have been a good police officer. Tell them to correct the situation. You have to
        have a safety net. If you don't have cameras working for five years, you know
        it's going to be a tenuous situation. Do that. Tell that to Chief Laufer. That's
        my message in this case. Ms. Cox-Shaw, bring Sergeant Harris in; okay. I'm
        granting the suppression, reluctantly, but it has no precedential value on future
        cases. I'm not criticizing the police in this case. It's not necessarily their
        problem. It's their department that has to get it. In today's times, why bother
        having MVRs if you're not using it and body cameras if you're not using it.
        Thank you for _your cooperation in this case. Don't say anything else, Mr.
        Brickus, Take it and run.

N.T. 10/24/18, pp. 30-33. The above passage reflects that the court did, in fact.make sufficien

findings of fact and conclusions of law. In addition, those findings of fact and conclusions o ·

law were amply supported by the record.1

        When a Motion to Suppress has been filed, the 'burden is on the Commonwealth t

establish by a preponderance of the evidence that the challenged evidence is admissible



         The court concedes that this passage was poorly articulated. The gist of what the court wa
trying to say was that the court was unable to determine which side was more credible based on th
evidence introduced at the hearing. The Commonwealth, who had the burden of proving by
preponderance of the evidence that the evidence was lawfully obtained, failed to take the step
necessary to prove its case. It did not introduce any MVR. footage, any body camera video. or an
photographs to establish that the third brake light was not functioning. It also did not call Sergean
Harris as a witness to establish this fact. Without any supporting evidence, the court properly found tha
the Commonwealth failed to meet its burden of proof.
         The court also notes that while 1t stated that the Commonwealth had to prove its case beyond
reasonable doubt, the correct standard is preponderance of the evidence. As stated above, however
the Commonwealth failed to meet this. standard.
                                                   -4-
Commonwealth v. Hamilton, 673 A;2d 915 (Pa. 1996). See also, Pa.R.Crim.P. 581. Wit

regard to traffic stops, the Pennsylvania Superior Court has stated:

       A police officer has the authority to stop a vehicle when he or she has reasonable
       suspicion that a violation of the vehicle code has taken place, for the purpose of
       obtaining necessary information to enforce the provisions of the code. 75 Pa.C.S.
       §6308(b). However, if the violation is such that it requires no additional
       investigation, the officer must have probable: cause to initiate the stop.
       Commonwealth v. Feczko. 10A.3d 1285, 1291 (Pa. Super. 2010).

Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super. 2013).

       In this case, defendant was stopped for a violation of 75 Pa.C.S.A. §4303(b) because hi

third brake light was allegedly inoperable. Corporal Michels and ·Officer Mollichella both testifie

that the third brake light was not working. There was no MVR recording, body camera recordin

or photographs offered into evidence to support this contention, even though the vehicle was sti1

in police custody at the time of the hearing. Defendant, on the other hand, testified that it -wa

working on the date in question. Both sides testified credibly and both Scenarios are equally like!

(50/50). Without any video and/or photographic evidence to confirm or deny the operability of th

third brake light, 'the court properly found that the Commonwealth failed to meet its burden o

establishing by a preponderance ofthe evidence that the challenged evidence is admissible.

       Although the Commonwealth contends that the court made its ruling based on

"personal view that all police vehicles should be equipped with MVR Equipment," and not on th

applicable statutory and case law, that is not the case. The court was only trying to convey th

message that easily obtainable confirmation from an. MVR or body camera can help th

Commonwealth meet its burden of proving by a preponderance of the evidence that the evidenc

in question   was obtained lawfully. Without such evidence, the Commonwealth risks havin
evidence suppressed in close, borderline cases such as this one.


                                                -5-
       Based on the forgoing, the court properly found that the Commonwealth failed to mee

its burden of proving that the challenged evidence was properly obtained.     Accordingly

defendant's Omnibus Pretrial Motion was appropriately granted and -ihe Commonwealth'

alleged assignments of error are without merit.




                                             BY THE COURT:




                                                    tf:f,,·,k      C.r.. , . Jy
                                             'PATRICK CARMODY                    J.




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