J-S68033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                v.                             :
                                               :
    DENNIS KREASHKO                            :
                                               :
                       Appellee                :       No. 867 WDA 2019

            Appeal from the Suppression Order Entered May 6, 2019
              In the Court of Common Pleas of Armstrong County
             Criminal Division at No(s): CP-03-CR-0000122-2018


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

MEMORANDUM BY GANTMAN, P.J.E.:                        FILED JANUARY 17, 2020

        Appellant, the Commonwealth of Pennsylvania, appeals from the order

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

suppression motion of Appellee, Dennis Kreashko.1 We affirm.

        In its opinions, the trial court accurately set forth the relevant facts and

procedural history of this case. Therefore, we have no reason to restate them.

        The Commonwealth raises one issue for our review:

           WHETHER THE TRIAL COURT ERRED WHEN IT SUPPRESSED
           THE EVIDENCE IN THIS MATTER, FINDING THAT
           [APPELLEE] HAD BEEN UNLAWFULLY DETAINED WHERE
           [APPELLEE’S] VEHICLE WAS LAWFULLY DETAINED AS IT
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth timely filed a notice of appeal on June 4, 2019, pursuant
to Pa.R.A.P. 311(d) (allowing Commonwealth to appeal as of right in criminal
case from pretrial order, where Commonwealth certifies in notice of appeal
that order will terminate or substantially handicap prosecution).
J-S68033-19


           WAS IMPROPERLY LICENSED AND WAS GOING TO BE
           TOWED AND THE TRIAL COURT DID NOT CONSIDER
           [APPELLEE’S] CONSENT TO SEARCH THE TRUNK OF THE
           VEHICLE IN LIGHT OF THE FACT THAT HIS VEHICLE WAS
           GOING TO BE TOWED?

(Commonwealth’s Brief at 4) (emphasis omitted).

        When the Commonwealth appeals from a suppression order, the

relevant scope and standard of review are:

               We 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. As long as
               there is some evidence to support them, we are bound
               by the suppression court’s findings of fact. Most
               importantly, we are not at liberty to reject a finding of
               fact which is based on credibility.

           Commonwealth v. Goldsborough, 31 A.3d 299, 305
           (Pa.Super. 2011), appeal denied, 616 Pa. 651, 49 A.3d 442
           (2012) (internal citation omitted). “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.” Id. (internal citation
           omitted).

Commonwealth v. Parker, 152 A.3d 309, 315 (Pa.Super. 2016).

        After a thorough review of the record, the Commonwealth’s brief, 2 the

applicable law, and the well-reasoned opinions of the Honorable James J.

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

court opinions comprehensively discuss and properly dispose of the question

presented. (See Suppression Memorandum and Order, filed May 6, 2019, at


____________________________________________


2   Appellee declined to file a brief.

                                           -2-
J-S68033-19


6-10; Rule 1925(a) Opinion, filed June 25, 2019, at 3-6) (finding: police

engaged in continued detention of Appellee after initial stop of Appellee’s

vehicle was already complete; Appellee was not free to leave at this point;

although Officer Antal testified that Appellee was asked to exit vehicle because

it was going to be impounded, Deputy Gahagan’s testimony and officers’

conduct, after Appellee had exited vehicle, indicated that purpose was to

continue to investigate whether Appellee was driving under influence;

Appellee’s pupils not responding to light, coupled with Appellee’s movements

in vehicle, did not provide particularized suspicion that exceeds mere hunch

or possibility of criminal activity; court specifically found Officer Antal’s

testimony at preliminary hearing not credible, particularly where defense

counsel did not have opportunity to cross-examine Officer Antal after Deputy

Gahagan offered contradictory testimony more than one year later at

suppression hearing; all additional information supporting Appellee’s eventual

arrest was discovered after officers removed Appellee from his vehicle; in

other words, information officers had at time they asked Appellee to exit his

vehicle was insufficient to support continued detention; further, officers

decided to impound Appellee’s vehicle only after they had already detained

Appellee; Commonwealth offered no argument that Appellee’s continued

detention was lawful, so court properly suppressed all evidence as fruit of

poisonous tree; Commonwealth did not raise, brief, or present any testimony

at suppression hearing to support its now-proffered “inevitable discovery”


                                     -3-
J-S68033-19


argument; moreover, Commonwealth did not establish that police followed

standard policy for conducting inventory searches of impounded vehicles).

Accordingly, we affirm based on the trial court’s opinions.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/17/2020




                                     -4-
                                                                Circulated 01/10/2020 02:59 PM




      IN THE COURT OF COM:MON PLEAS OF ARMSTRONG COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, )
                                    )
                                    )
            vs.                     )   No. CP-03-CR-000122-2018
                                    )
      DENNIS KREASHKO,              )
                   Defendant.       )



                     MEMORANDUM AND ORDER



                                                            : : ; �..I>.·.   '·t .
                                                                               f �·




 _/
       IN THE COURT OF CO:&™ON PLEAS OF ARMSTRONG COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, )
                                                     )
                                                     )
                vs.                                  ).    No. CP-03·CR-000122-2018
                                                     )
   DENNIS KREASHKO,                                  )
                Defendant.                           )

                                        MEMORANDUM
   Panchik, P .J.

           Before the Court for disposition is Defendant Dennis Kreashko's Motion to

   Suppress. The Court held a hearing on March 7, 2019, and the motion is now ripe

   for decision. For the reasons that follow, the Court will grant the motion and

   suppress all evidence obtained after the initial traffic stop of Defendant's vehicle.

                           I.     FACTS AND PROCEDURAL HISTORY

           The findings of fact that follow are based on the testimony presented at the

   hearing on March 7, 2019, together with the testimony presented at the preliminary

   hearing February 13, 2018.1

           1.         On September 27, 2017, at approximately 10:34 a.m., Officer David

   Antal of the Gilpin Township Police Department was on patrol along River




   1 The parties stipulated to the Court's receipt of the 'preliminary hearing transcript for purposes of
   disposing of Defendant's omnibus motion. The arresting officer in this case, Officer David Antal of
   the Gilpin Township Police Department, was not present at the hearing on Marchrt, 2019. He no
   longer works for that department and could not be located by the Commonwealth. Armstrong
   County Deputy Sheriff Robert Gahagan was the Commonwealth's only witness. The Court renders
   herein no opinion with regard to the propriety of the Commonwealth's reliance on the preliminary
   hearing transcript to satisfy its evidentiary burden. See Deft's Memorandum of Law in Opposition,
   3/11/19, at p. 3.
    Comm. v. Kreashko
No. CP·03·CR·0000122·2018


Road/State Route 66 in Gilpin Township, Armstrong County. He was driving a

marked police vehicle and was in full uniform.

            2.      At that time, Officer Antal had been a police officer for approximately

two years.f

            3.      Officer Antal pulled off of River Road to monitor traffic. A silver

Pontiac that was traveling behind Officer's Antal's vehicle continued on River Road.

Noticing the loud exhaust of the Pontiac, Officer Antal pulled back onto River Road

and followed the Pontiac for a short distance.

            4.      As he followed, Officer Antal ran the license plate number on the

Pontiac. The 911 dispatcher advised that the license plate was registered to a

Chrysler convertible in the City of Pittsburgh. The registration also was expired.

            5.      Officer Antal activated his emergency lights and conducted a traffic

stop. Once stopped, he approached the driver of the vehicle, Defendant herein, and

asked for his license, registration, and proof of insurance. Defendant provided the

requested documents.

           6.       While speaking with Defendant, Officer Antal did not see or smell any

narcotics or contraband in the vehicle.

           7.       Officer Antal returned to his police car to check the information

Defendant had provided. While checking the information, Officer Antal noticed

Defendant reaching from his seat into many different areas of the car.



2 Officer Antal did not testify at the preliminary hearing regarding his experience making traffic
stops or arrest for driving under the influence. There was limited discussion with regard to his
experience dealing with felony and misdemeanor drug cases, see Prelim. Hrg. Transc., at 17: 17-19:7.

                                                  2
Comm. v. Kreashko
No. CP-03·CR·0000122·2018


        8.       Officer Antal discovered from 911 that the registration card identified

Defendant as the owner of the vehicle, but was expired.

        9.      At the time of the traffic stop, Armstrong County Deputy Sheriff

Robert Gahagan was serving papers in the vicinity of Gilpin Township. Deputy

Gahagan heard on his radio that the stop was occurring and traveled to the scene to

offer backup to Officer Antal.

        10.     After arriving on the scene, Deputy Gahagan also ran Defendant's

license plate and discovered that it was associated with Chrysler convertible.

        11.     Officer Antal asked Deputy Gahagan if he would keep an eye on

Defendant while he completed his investigation with the 911 dispatcher.

        12.     As he stood beside the rear of Defendant's vehicle, Deputy Gahagan

observed Defendant moving around inside the vehicle, reaching into the glove box,

console, and back seat. Defendant also appeared to be very nervous and "jumpy."

        13.     Deputy Gahagan asked Defendant to stop moving around. As Deputy

Gahagan spoke with Defendant, he noticed that Defendant's voice cracked and that

his eyes were unresponsive to light.

        14.     Either Deputy Gahagan or Officer Antal asked Defendant to get out of

his vehicle. Their testimony is not consistent in this regard. Deputy Gahagan

testified that both he and Officer Antal asked Defendant to get out so that standard

field sobriety tests ("SFTSs") could be performed. Officer Antal testified that he

asked Defendant to exit the vehicle because it was going to be impounded, a

decision that in fact was not made until later.



                                              3
Comm. v. Kreashko
No. CP-03-CR-0000122-2018


        15.      Deputy Gahagan believed at that point that there was a possibility

that Defendant was under the influence.

        16.      Prior to removing Defendant from his vehicle, neither Officer Antal nor

Deputy Gahagan observed any drugs or weapons in plain view in Defendant's

vehicle. They also did not smell any scent of drugs or alcohol on Defendant's

person.

        17.     After Defendant exited the vehicle, Deputy Gahagan performed a

"Terry" frisk to check for weapons. None were found. Deputy Gahagan felt an

object in Defendant's right front pocket and asked him to remove it. Defendant

removed a large wad of cash, approximately an inch thick. Deputy Gahagan placed

the cash aside and continued with the frisk. Officer Antal asked Defendant what

the money was for, and Defendant stated that it was his work money.

        18.      Deputy Gahagan performed the horizontal gaze nystagmus, heel to toe,

and Rambert field sobriety tests, all of which took approximately 20 minutes. After

completing several of the SFSTs, Deputy Gahagan believed that Defendant

displayed signs of impairment.

        19.     At some point, Officer Antal had a discussion with Defendant

regarding whether there was anything illegal in the car. Defendant stated on two

occasions that there was not. He also told Officer Antal that he had drug-related

charges pending and was out on bond.




                                             4
Comm. v. Kreashko
No. CP-03-CR-0000122-2018


          20.    Officer Antal then told Defendant that he would be impounding the car

until he could get a search warrant. Defendant thereafter consented to a search of

the vehicle.

          21.    No drugs or contraband were found in the interior cabin of the car.

          22.    At that point, Deputy Gahagan placed Defendant in the back of Officer

Antal's police car. Defendant was not handcuffed at this point.

          23.    Because Officer Antal determined to impound the vehicle and have it

towed away, Defendant requested that his tools be removed from the trunk. Upon

retrieving them, the officers also found a Crown Royal bag containing narcotics.

          24.    Defendant then was placed under arrest and transported from the

scene for processing. Deputy Gahagan remained at the scene with Defendant's

vehicle until the towing company arrived.

          25.     Based on the evidence discovered during the traffic stop, police

obtained a search warrant for Defendant's residence, where they found additional

controlled substances and paraphernalia.

          26.     Defendant is charged by information filed March 29, 2018, with 1)

possession of drug paraphernalia 3, 2) two counts of possession with intent to deliver

a controlled substance", 3) possession of a controlled substance", 4) possession of




3   35 Pa. Stat. Ann.§ 780-113(a)(32).
4   35 Pa. Stat. Ann.§ 780-113(a)(30).
5   35 Pa. Stat. Ann.§ 780-113(a)(l6).

                                               5
Comm. v. Kreashko
No. CP·03·CR·0000122·2018


marijuana··small amounts, 5) driving an unregistered vehicle", and 6) unauthorized

use of registration plate.f

                                          II.   DISCUSSION

        A.      BURDEN OF PROOF

        Where, as here, a criminal defendant files a motion to suppress evidence, the

burden falls on the Commonwealth to prove that the evidence was not obtained in

violation of the defendant's constitutional rights. Commonwealth v. Enimpah, 106

A.3d 695, 703 (Pa. 2014). See also Pa. R. Crim. P. 581(H).

        B.      ANALYSIS

        Defendant argues in his motion that all evidence obtained after the initial

stop of his vehicle should be suppressed because Officer Antal and Deputy Gahagan

did not have the requisite reasonable suspicion to continue the detention after the

purpose for the original stop had ceased. Defendant does not argue that the initial

stop was unlawful. To dispose of the issue, the Court must determine 1) the nature

of the continued engagement of Defendant after the purpose of the stop was

fulfilled, and 2) whether, if such engagement constituted a detention, it was

supported by adequate grounds.

        After an otherwise lawful traffic stop is complete, reasonable suspicion of

criminal activity must exist to justify a continued detention of the operator:

        [W]here the purpose of an initial traffic stop has ended and a
        reasonable person would not have believed that he was free to leave,
        the law characterizes a subsequent round of questioning by the police

6 35 Pa. Stat. Ann.§ 780·113(a)(31)(i).
1 75 Pa. Cons. Stat. Ann. § 130I(a).
s 75 Pa. Cons. Stat. Ann. § 1372(1).

                                                  6
Comm. v, Kreashko
No. CP·03·CR·0000122·2018


        as an investigative detention or arrest. In the absence of either
        reasonable suspicion to support the investigative detention or probable
        cause to support the arrest, the citizen is considered unlawfully
        detained.

Commonwealth v. By, 812 A.2d 1250, 1256 (Pa. Super. Ct. 2002)(citation omitted).

See also Rodriguez v. United States, 135 S.Ct. 1609, 1616 (2015). The Court finds,

and there does not appear to be any serious dispute, that Defendant continued to be

subject to a detention after the initial traffic stop of his vehicle was complete. He

clearly was not free to leave at this point. Although Officer Antal testified that

Defendant was asked to get out of the vehicle merely because it was going to be

impounded, Deputy Gahagan's testimony and the officers' conduct after Defendant

exited the vehicle indicate that the purpose was to continue to investigate whether

Defendant had been driving under the influence. Deputy Gahagan testified that

the officers' intention in removing Defendant from the vehicle was to perform

SFSTs because of the "possibility'' that Defendant was driving under the influence.

Defendant at this point was detained after the purpose for the initial traffic stop

had been fulfilled, and the Court therefore must determine whether Officer Antal

and Deputy Gahagan had sufficient reasonable suspicion of criminal activity. See

Commonwealth v. Cauley, 10 A.3d 321, 327 (Pa. Super. Ct. 2010).

        In determining whether "reasonable suspicion" exists, the Court applies the

following principles set forth by the Pennsylvania Superior Court:

        Our Supreme Court has mandated that law enforcement officers, prior
        to subjecting a citizen to an investigatory detention, must harbor at
        least a reasonable suspicion that the person seized is then engaged in
        unlawful activity. The question of whether reasonable suspicion
        existed at the time of an investigatory detention must be answered by

                                            7
Comm. v. Kreashko
No. CP·03·CR·0000122·2018


        examining the totality of the circumstances to determine whether the
        officer who initiated the stop had a "particularized and objective basis'
        for suspecting the individual stopped. Thus, to 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 that activity.

        Although a police officer's knowledge and length of experience weigh
        heavily in determining whether reasonable suspicion existed, our
        Courts remain mindful that the officer's judgment is necessarily
        colored by his or her primary involvement in the often competitive
        enterprise of ferreting out crime. Therefore, the fundamental inquiry
        of a reviewing court must be an objective one, namely, whether the
        facts available to the officer at the moment of the intrusion warrant a
        man of reasonable caution in the belief that the action taken was
        appropriate. This inquiry will not be satisfied by an officer's hunch or
        unparticularized suspicion.

Commonwealth v. Reppert, 814 A.2d 1196, 1203·04 (Pa. Super. Ct. 2002)(internal

citations and quotations omitted)(emphasis in original).

        Here, the record establishes that, prior to the officers ordering Defendant

from the vehicle, they had the following objective facts in their collective knowledge:

1) that Defendant had utilized a false license plate on his vehicle, 2) that

Defendant's real registration for the vehicle was expired, 3) that Defendant acted

nervously during his interactions with the officers while in the car, 4) that

Defendant's voice cracked while he was speaking, 5) that Defendant, from his

position in the front driver's seat, reached throughout the vehicle, 6) that

Defendant's eyes appeared to not respond to light as he moved into and out of the

shadowed areas of the car's cabin, and 7) that Defendant indicated that there was

nothing illegal in the car when asked by Officer Antal. The Court concludes that


                                            8
Comm. v. Kreashko
No. CP·03·CR·0000122·2018


these facts, taken together, did not objectively provide the officers with sufficient

reasonable suspicion to continue the detention.

        After initiating the stop of Defendant's vehicle, Officer Antal discovered that

the license plate on the vehicle did not match its make and model and that

Defendant's registration card, although for the right vehicle, was expired. Other

than Defendant's reaching throughout the vehicle, Officer Antal had no other facts

to suspect ongoing criminal activity. Nor did he testify that he suspected criminal

activity or that in his experience, approximately two years as a police officer,

Defendant's actions indicated a likelihood of criminal activity. Further, although

Officer Antal testified that he removed Defendant from his vehicle because it was

going to be impounded, Deputy Gahagan testified that the decision to impound the

vehicle was not made until after Defendant had been removed from the vehicle,

subjected to SFSTs, and was placed in the back of Officer Antal's police car. Deputy

Gahagan further testified that both he and Officer Antal asked Defendant to exit

the vehicle to perform SFSTs.

        Deputy Gahagan further testified that Defendant's pupils did not respond to

changes in light as he moved throughout the vehicle. Even assuming this is true,

that fact coupled with Defendant's movements and traffic violation did not provide

particularized suspicion that exceeds a mere hunch or possibility of criminal

activity--here, driving under the influence. All of the additional information

supporting Defendant's eventual arrest was discovered after Defendant was

removed from his vehicle. Thus, considered objectively, the information that the



                                             9
Comm. v. Kreashko
No. CP-03-CR-0000122·2018


officers had at the time they asked Defendant to exit his vehicle so that they could

question him, conduct a Terryfrisk, and perform standard field sobriety tests was

insufficient to support such a detention. Compare Commonwealth v. Bozeman, ---

A.3d ---, 2019 WL 1088257, *8-*10 (March 8, 2019).

                               III.    CONCLUSIONS OF LAW

        The continued detention of Defendant after the conclusion of the initial traffic

stop of his vehicle was not supported by adequate reasonable suspicion that

Defendant was then engaged in criminal activity. All evidence obtained thereafter

by police must be suppressed. 9

        An appropriate order follows.




9 In his omnibus motion, Defendant also seeks suppression of his statements made after exiting his

vehicle and the evidence obtained from his apartment after police had obtained a search warrant.
The Court need not consider these two aspects of Defendant's motion, as it already has concluded
that all evidence obtained by police after Defendant's exit from his vehicle, including his statements
and the evidence providing probable cause for the search warrant, is fruit of the illegal detention.

                                                   10
    IN THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, )
                                            )
                                            )
            vs.                             )   No. CP-03·CR-000122·2018
                                            )
   DENNIS KREASHKO,                         )
                Defendant.                  )


                                        ORDER
         AND NOW, this <;     1   day of May, 2019, upon consideration of Defendant's

   omnibus pre·trial motion in the nature of a motion to suppress, and after hearing on

   the same, for the reasons set forth in the foregoing memorandum, it is ORDERED

  that the motion be and hereby is GRANTED. All evidence obtained subsequent to

   Defendant's exit from his vehicle during the traffic stop conducted on September 27,

   2017, hereby is SUPPRESSED and shall be inadmissible at trial.



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 IN THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA)
                             )
          vs.                )      No. CP·Q3�CR·0000122·2018
                            .)
DENNIS KREASHKO,             )
              Defendant.     )


                   RULE 1925(a) OPINION




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  IN THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA)
                                             )
               vs.                           )    No. CP-03-CR-0000122·2018
                                             )
 DENNIS KREASHKO,                            )
              Defendant.                     )



                          RULE 1925(a) OPINION

PANCHIK, P.J.

       The Commonwealth of Pennsylvania appeals from this Court's order entered

May 6, 2019, which suppressed certain evidence obtained during and after a traffic

stop of Defendant's vehicle on September 27, 2017. The Court set forth in detail the

findings and analysis supporting its decision in a memorandum filed

contemporaneously with its suppression order. The Commonwealth filed a timely

notice of appeal on June 4, 2019, after which the Court directed the filing of a Rule

1925(b) Concise Statement. The Commonwealth timely complied on June 12, 2019.

The Commonwealth raises two issues in its concise statement.

      In its first issue, the Commonwealth asserts that the Court erred "when it

did not deem the defendant's issues waived after he failed to timely file his omnibus

pretrial motion." To address this issue, the Court must review briefly the

procedural history of this case. The criminal complaint was filed on or about

September 22, 2017. A preliminary hearing was conducted on February 13, 2018.

On March 29, 2018, the Commonwealth filed the criminal information, which

charged Defendant with several drug-related offenses. Defendant entered a written
Commonwealth v. Kreashko
No. CP·03·CR·0000122·2018


waiver of arraignment on April 2, 2018. He then filed his motion to suppress on

May 16, 2018.

        The Court thereafter entered Defendant's Criminal Case Management Order

("CMO"), which provided that "[t]he Court, on its own motion, may dismiss an

omnibus pretrial motion if it is not filed at least fifty (50) days before the jury

selection date set forth above." (CMO, 6/4/2018,    ,r 3).   Approximately five weeks

later, and approximately two months after Defendant's suppression motion had

been filed and scheduled for hearing, the Commonwealth filed a Motion to Quash

the suppression motion, arguing that the motion was filed 14 days past the deadline

established by Pa. R. Crim. P. 579. On July 19, 2018, the Commonwealth moved to

continue the hearing on the omnibus pretrial motion, which the Court granted. On

July 26, 2018, the Commonwealth requested leave to withdraw its motion to quash,

which the Court granted by order entered July 31, 2018. The Court again continued

the hearing on August 27, 2018, November 26, 2018, and January 30, 2019. The

Court conducted the omnibus hearing on March 7, 2019.

       The Commonwealth argues that the Court should have deemed Defendant's

issues to be waived because the motion to suppress was filed more than 30 days

after the entry of Defendant's written waiver of arraignment. The Court disagrees.

First, the Commonwealth withdrew its motion to quash on these grounds, waiving

any objection it had to the Court's consideration of the issues raised. Second, the

CMO entered by the Court extended the deadline for filing any omnibus pre-trial

motions up to 50 days prior to the date set for trial, after which the Court could




                                            2
Commonwealth v. Kreashko
No. CP-03-CR-0000122·2018


dismiss sua. sponte any untimely motions. Defendant's motion was filed well within

that time period. Accordingly, the Court did not err in not deeming Defendant's

suppression issues to be waived.

        The Commonwealth states its second issue as follows, verbatim:

        The Court erred when it suppressed the evidence in this matter,
        finding that the defendant had been unlawfully detained. The
        evidence in this matter was not found on the defendant, but rather in
        the defendant's vehicle which+due to its being improperly licensed··
        was lawfully detained and, pursuant to the request and consent of the
        defendant, was lawfully searched. And in the alternative, because the
        vehicle was lawfully detained and would have been towed and
        subjected to an inventory search, the evidence was also the product of
        inevitable discovery.

(Concise Statement, at      ,r 2).
        The Court set forth its findings and analysis in its prior memorandum and

supplements that analysis here only to the extent necessary to address the

Commonwealth's issues. First, nowhere in its statement of this issue does the

Commonwealth argue that either of the officers involved in this case had any

suspicion, reasonable or otherwise, of criminal activity to support a continued

detention of Defendant after the initial traffic stop had been concluded. Second, the

Commonwealth's assertion that no evidence was found on the Defendant's person

clearly is false. The officers found a large wad of cash in Defendant's clothing after

they removed him from his vehicle and patted him down for weapons, which they

did not find. Third, the Court found, based on the only live witness that the

Commonwealth could produce, that the reason for the detention of Defendant was

Deputy Gahagan's belief in the "possibility" that something criminal was going on.




                                           3
Commonwealth v. Kreashko
No. CP-03-CR-0000122-2018


The Court specifically found Officer Antal's testimony at the preliminary hearing to

be not credible, particularly since defense counsel never had the opportunity to

cross-examine him in light of Deputy Gahagan's contradictory testimony offered

more than a year later. The decision to detain Defendant's vehicle was made after

Defendant already had been detained. The Commonwealth has offered no

argument that the detention of Defendant was lawful, and for that reason, it is

entitled to no relief on appeal on its first issue.

        The Commonwealth argues in the alternative that, because Defendant's

vehicle otherwise would have been detained, impounded, and subjected to an

inventory search, the incriminating evidence in the trunk inevitably would have

been discovered. The Commonwealth did not raise, brief, or present any testimony

regarding this issue prior to filing its concise statement. This Court therefore made

no findings and performed no legal analysis regarding inevitable discovery.

Nevertheless, the Court will address the Commonwealth's argument herein because

it finds it to be without merit in any event.

        The "inevitable discovery" doctrine provides for the admission of certain

otherwise illegally-obtained evidence if:

        [the] evidence which would have been discovered was sufficiently
        purged of the original illegality to allow admission of the evidence ....
        [I]mplicit in this doctrine is the fact that the evidence would have been
        discovered despite the initial illegality.

        If the prosecution can establish by a preponderance of the evidence
        that the illegally obtained evidence ultimately or inevitably would
        have been discovered by lawful means, the evidence is admissible. The
        purpose of the inevitable discovery rule is to block setting aside
        convictions that would have been obtained without police misconduct.


                                              4
Commonwealth v. Kreashko
No. CP-03-CR-0000122-2018




Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. Ct. 2009)(citations

omitted); See also Commonwealth v. Bailey, 986 A.2d 860, 862-863 (Pa.

Super. Ct. 2009).

        With regard to the "inventory search" that the Commonwealth argues would

have been performed, the fact of such an inevitable search is not established in the

record. Officer Antal testified at the preliminary hearing that he asked Defendant

to step out of the vehicle because it was going to be removed from the scene by a tow

truck. (Court Ex. "1," at 10:s-12). The Court found this stated justification for

removing Defendant from his vehicle to be contradictory to Deputy Gahagan's

testimony and, therefore, not credible. Nevertheless, even assuming that the

vehicle would have been towed away as a matter of course because of an invalid

registration, Officer Antal further testified:

         Q.      What if anything else did you learn from Mr. Kreashko?

        A     He had prior charges for Possession with Intent to Deliver
        Narcotics, and he was out on bond for those charges.

         Q.      Did Mr. Kreashko volunteer this information to you?

        A        Yes, that's what he told me after I asked him.

         Q.   What did you do next? Based upon his statements and the
         money you found, didyou ask him again about his car?

         A      I did. I then again asked him if he had anything illegal inside of
         his car, and he stated no. I also advised him that I would -- I am
         impounding his vehicle until I can obtain a search warrant for his
         vehicle based on the large amount of money and his previous charges
         for drug delivery.

         Q.       Did you search the car?


                                              5
Commonwealth v. Kreashko
No. CP-03-CR-0000122-2018



        A.       I didn't. Well, after I advised him of that he said search the car.

(Commw. Ex. "1," at 12:3-25), Either Officer Antal or Deputy Gahagan at some

point contacted "Jim's Towing" to come and retrieve Defendant's vehicle.        ua, 57:3-
58:16). There is no evidence in the record establishing the standard policy followed

by Gilpin Township Police Department for conducting inventory searches of

impounded vehicles. It also is clear from Officer Antal's testimony that such a

routine inventory search was not going to be conducted without a search warrant,

which he intended to procure based on the money found on Defendant's person and

Defendant's statements about his criminal record. The Commonwealth therefore

has failed to establish the necessary elements of the inevitable discovery doctrine in

that it has failed to establish that an inventory search independent of the original

illegality would have been conducted and the incriminating evidence found.

        For these reasons, and based on the findings and analysis set forth in the

Court's May 6, 2019, memorandum, I recommend affirmance on the issues raised in

the Commonwealth's Concise Statement.




                                                   By the Court:


                                                   /:i!/l.nchik,      P.J.




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