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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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