J-A02024-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK ALEXANDER CRESSWELL                   :
                                               :
                       Appellant               :   No. 1069 WDA 2019

         Appeal from the Judgment of Sentence Entered May 31, 2019
      In the Court of Common Pleas of Mercer County Criminal Division at
                        No(s): CP-43-CR-0001798-2017


BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 14, 2020

       Appellant, Mark Alexander Cresswell, appeals from the judgment of

sentence entered on May 31, 2019, following his bench trial convictions for

theft by unlawful taking, receiving stolen property, theft from a motor vehicle,

possession of a small amount of marijuana, and possession of drug

paraphernalia.1 Upon review, we affirm.

       The suppression court2 summarized the facts of this case as follows:

____________________________________________


1  18 Pa.C.S.A. §§ 3921, 3925, and 3934 and 35 P.S. §§ 780-113(a)(31) and
780-113(a)(32), respectively. Appellant was also convicted of carrying a
firearm without a license pursuant to 18 Pa.C.S.A. § 6106. However, that
conviction was subsequently vacated upon Appellant’s post-sentence motion
for relief because the Commonwealth failed to prove the subject firearm was
operable.

2 As discussed below, Appellant filed an omnibus pre-trial motion seeking
suppression of evidence. The trial court held an evidentiary hearing regarding
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       [On August 18, 2017, at approximately 10:30 a.m.,] Trooper
       [Joseph] Snyder observed an SUV travelling toward him on State
       Route 208 in Pine Township, Mercer County, Pennsylvania. The
       day was clear and sunny.

                               *               *    *

       Trooper Snyder observed a cluster of air fresheners hanging from
       the rearview mirror of the SUV. Trooper Snyder believed that this
       cluster of air fresheners materially obstructed the driver’s view.

                               *               *    *

       Ultimately Trooper Snyder turned around, followed the SUV, and
       stopped it. Once behind the SUV, Trooper Snyder observed that
       the   SUV’s    license  plate   frame    blocked    the  word
       [“]Pennsylvania.[”]

       After stopping the SUV, the trooper approached the vehicle and
       smelled marijuana. Based on this [observation], the trooper
       conducted a search of the vehicle and found marijuana under the
       driver’s seat and in an [ammunition] case next to [Appellant] in
       the backseat. He also found a firearm in the center console with
       the magazine in the glove compartment.

       While the operator of the SUV was taken by Trooper Snyder to the
       local hospital for a blood draw, [Appellant] was taken to the
       Pennsylvania State Police Mercer barracks.      Trooper Snyder
       returned to the barracks about one hour after the stop and found
       [Appellant] who had been placed uncuffed in an interview room.

Suppression Court Opinion, 5/11/2018, at 15-17.




____________________________________________


suppression on April 4, 2018 before the Honorable Robert G. Yeatts. After the
suppression court denied Appellant relief, the matter proceeded to a non-jury
trial before the Honorable Christopher J. St. John on March 22, 2019. For
clarity and ease of discussion, we will refer to the tribunals as the suppression
court and trial court, respectively.




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       Thereafter, Trooper Snyder read Appellant his Miranda3 rights and

Appellant answered questions. Initially, Appellant alleged that the driver of

the SUV stole the firearm that the police recovered. Appellant admitted that

he and the driver of the SUV fired the recovered firearm earlier. The driver of

the SUV showed police a Snapchat video, from his cellular telephone, showing

Appellant wielding the firearm in question.4 Appellant subsequently admitted

that the firearm was his. The firearm had been reported stolen.

       The    Commonwealth         charged     Appellant,   inter   alia,   with   the

aforementioned crimes.        On January 19, 2018, Appellant filed an omnibus

pre-trial motion alleging, inter alia, that the traffic stop was illegal and the

evidence obtained therefrom required suppression.5 The suppression court

held an evidentiary hearing on April 4, 2018 and denied relief by order and

opinion on May 11, 2018. Appellant filed a motion to reconsider suppression.

The suppression court granted relief by holding another evidentiary hearing

to hear additional testimony.         On January 11, 2019, the suppression court

again denied relief. The case proceeded to a non-jury trial on March 22, 2019.

The trial court convicted Appellant of the aforementioned crimes, as well as
____________________________________________


3   Miranda v. Arizona, 384 U.S. 436 (1966).

4 Trooper Snyder confiscated the driver’s cellular telephone, obtained a search
warrant for its contents, but could not unlock it. As a result, he was unable
to obtain the video.

5Appellant had standing to challenge the traffic stop and to file a suppression
motion. See Commonwealth v. Shabezz, 166 A.3d 278, 286 (Pa. 2017).



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carrying a firearm without a license.6           On May 31, 2019, the trial court

sentenced Appellant to an aggregate term of six to 23 months of incarceration

followed by a two-year term of probation.7            The trial court re-sentenced

Appellant on June 27, 2019 to the same term of incarceration, but imposed

the sentence on Appellant’s conviction for theft by unlawful taking. This timely

appeal resulted.8

       On appeal, Appellant presents a sole issue for our review:

       Whether the [trial] court erred in not suppressing the traffic stop
       for a front windshield obstruction when there was no evidence that
       the object hung from the rearview mirror materially obstructed,
       obscured or impaired the driver[’]s vision or in any manner
       constituted a safety hazard[?]

Appellant’s Brief at 2.



____________________________________________


6  As previously noted, however, the trial court subsequently vacated
Appellant’s conviction for carrying a firearm without a license because the
Commonwealth failed to prove the subject firearm was operable.

7   Both Appellant and the Commonwealth filed post-sentence motions
challenging the sentence imposed. The trial court held a hearing on June 27,
2019 and vacated the prior sentence and, as previously mentioned,
overturned Appellant’s conviction for carrying a firearm without a license.

8  Appellant filed a notice of appeal on July 17, 2019. On July 18, 2019, the
trial court filed an order directing Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on July 29, 2019. On August 28, 2019, the trial court ordered Appellant
to file an amended Rule 1925(b). Appellant complied timely on September 3,
2019. On September 16, 2019, the trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a), relying upon the suppression court’s decision under the
coordinate jurisdiction rule or law of the case. See Zane v. Friends Hospital,
836 A.2d 25, 29 (Pa. 2003) (transferee trial judge may not alter resolution of
legal question previously decided by transferor judge).

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      Relying principally upon this Court’s decision in Commonwealth v.

Anthony, 1 A.3d 914 (Pa. Super. 2010) and our Supreme Court’s decision in

Commonwealth v. Holmes, 14 A.3d 89 (Pa. 2011), Appellant contends that

the suppression court erred by denying suppression “since [] Trooper [Snyder]

did not testify as to how the air fresheners materially obstructed the driver’s

view.” Id. at 10. He claims that Trooper Snyder’s “attempt[] to compare the

dimensions of the ‘cluster of air fresheners’ with the [mobile video recorder

(MVR)] in his own vehicle [] failed [to show] how the air fresheners materially

impaired the driver’s view.”     Id. at 23.    He further claims that Trooper

Snyder’s testimony was not credible, because:

      The Trooper’s [recollection of the] dimensions of the air fresheners
      [was] not only inaccurate, but he also has no recollection as to
      the color or the exact number. In addition, the Trooper did not
      measure the air fresheners, did not seize them (provided there
      was more than one), nor did he photograph them. His testimony
      [] is not credible given these deficiencies.

      The three occupants of the vehicle testified at the October 24,
      2018 [s]uppression hearing that there was a single air freshener,
      and identified the air freshener, produced by [the driver] at the
      [h]earing, as the one that hung on the rearview mirror at the time
      of the traffic stop. [The driver] testified that he installed the air
      freshener in such a way that the height was only 3 ¾ [inches] to
      4 [inches], since the tip of the air freshener sat up behind the
      rearview mirror. He testified that the air freshener did not
      obstruct his view through his front windshield, which he said was
      approximately 5 [feet] in width or across and 3 [feet] in height.
      He also testified that Trooper Snyder told him that it was illegal to
      hang air fresheners from the rearview mirror. Their respective
      testimony is uncontroverted and in contradiction to the testimony
      of Trooper Snyder.       Their testimony is also more credible,
      nothwithstanding the court’s assessment, because the actual air
      freshener at issue was produced by [the driver], who was already
      sentenced and had no reason to lie.


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Id. at 18-19 (record citations omitted). As such, Appellant contends:

      If this Court affirms the lower court[’s decision,] it will [not] only
      universally permit and invite police to stop every car or truck
      wherein an air freshener is hanging from the rearview mirror, but
      it will also establish an arbitrary and capricious standard for said
      stops, thereby allowing police to conduct traffic stops on a
      multitude of vehicles with similar or lesser items hanging from the
      vehicle’s rearview mirror.

Id. at 31.

      Our decision in Commonwealth v. Shabazz, 18 A.3d 1217 (Pa. Super.

2011) provides guidance. In that case, this Court held that a combination of

multiple pine-tree shaped air fresheners and foam dice measuring three by

three inches, hanging from a rearview mirror, gave police reasonable

suspicion to conduct a traffic stop for windshield obstructions under 75

Pa.C.S.A. § 4524(c). In Shabazz, we previously determined:

         Our standard of review in addressing a challenge to a trial
         court's denial of a suppression motion is whether the factual
         findings are supported by the record and whether the legal
         conclusions drawn from those facts are correct. We must
         consider only the evidence of the prosecution and so much
         of the evidence of the defense as remains uncontradicted
         when read in the context of the record as a whole. Those
         properly supported facts are binding upon us and we may
         reverse only if the legal conclusions drawn therefrom are in
         error.

      Commonwealth v. Dixon, 997 A.2d 368, 372–373 (Pa. Super.
      2010) (en banc), quoting Commonwealth v. Thompson, 985
      A.2d 928, 931 (Pa. 2009) (internal quotes and citations omitted).
      “The issue of what quantum of cause a police officer must possess
      in order to conduct a vehicle stop based on a possible violation of
      the Motor Vehicle Code is a question of law, over which our scope
      of review is plenary and our standard of review is de novo.”
      Commonwealth v. Holmes, 14 A.3d 89, 94 (Pa. 2011).


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     The Vehicle Code permits a police officer to initiate a traffic stop
     when he or she possesses reasonable suspicion that a section of
     the Code has been or is being violated.

        § 6308. Investigation by police officers

        (b) Authority of police officer.—Whenever a police officer
        is engaged in a systematic program of checking vehicles or
        drivers or 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.A. § 6308. The Commonwealth bears the burden of
     establishing the validity of the stop. “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....” Holmes, supra at 95–96 (emphasis
     in original).

     [In Shabazz], at the suppression hearing, the Commonwealth
     sought to establish through testimony of the arresting officer that
     the officer possessed reasonable suspicion to believe [Shabazz]
     was in violation of 75 Pa.C.S.A. § 4524(c) at the time of the traffic
     stop. The statute 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).

     This Court has applied the foregoing principles to traffic stops
     premised on perceived violations of 75 Pa.C.S.A. § 4524(c). In
     Commonwealth v. Benton, 655 A.2d 1030 (Pa. Super. 1995),
     we held a stop to be illegal where the officer did not present
     reasonable and articulable grounds for suspecting a violation of
     75 Pa.C.S.A. § 4524(c). In that case, the officer professed a belief

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     that it was illegal to hang any object from a rearview mirror and
     provided no testimony that he was aware of the size or nature of
     the object at the time of the stop or how it materially impaired
     visibility through the windshield. Id. at 1034. Accord,
     Commonwealth v. Felty, 662 A.2d 1102 (Pa. Super. 1995).

                          *            *            *

     [Moreover, o]ur conclusion in [Commonwealth v. Anthony, 1
     A.3d 914 (Pa. Super. 2010)] was premised, as in Benton, on the
     officer's lack of an articulable and particularized description of the
     objects he observed hanging from the rearview mirror, and the
     impact of those objects on the visibility through the windshield.
     We did not hold, [however,] that the items that were ultimately
     deemed to be hanging from the driver's mirror were inadequate
     to support an inference of material obstruction as a matter of law.
     “More to the point, however, the trooper's observations were the
     product of the stop itself; he did not make detailed observations
     of the character of the object before making the stop.” Anthony,
     supra at 921.

     Our Supreme Court has still more recently affirmed these
     principles in Holmes, supra, wherein the Court emphasized that
     the requirement that the police express specific and articulable
     facts in support of their suspicion is critical to enable the reviewing
     court to perform an independent assessment of the
     reasonableness of that suspicion.

        The determination of whether an officer had reasonable
        suspicion that criminality was afoot so as to justify an
        investigatory detention is an objective one, which must be
        considered in light of the totality of the circumstances. It 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.

     Holmes, supra at 96 (citations omitted). “[I]n order to establish
     reasonable suspicion, an officer must articulate specific facts in
     addition to inferences based on those facts, to support his
     belief that criminal activity was afoot.” Id. at 97 (emphasis in
     original).

     Thus, the facts must be testified to in support of the
     reasonableness of the officer's suspicion occasioned by his or her
     pre-stop observations.

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          Under its plain language, a driver is not in violation of the
          statute simply because he has an object hanging from the
          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. Thus,
          while we agree with the Commonwealth that the law does
          not require that police be able to identify the object before
          making a vehicle stop, in order to support a suppression
          court's finding that an officer possessed reasonable
          suspicion to believe that a violation of 75 Pa.C.S.A.
          § 4524(c) has occurred, the officer must articulate at least
          some fact or facts to support his inference or conclusion
          that the object materially impaired the driver's view.

       Id. (emphasis in original).

          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.

       Id. at 99.[9]

____________________________________________


9   Finally, our Supreme Court in Holmes stated:

       [T]here 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 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



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Commonwealth v. Shabazz, 18 A.3d 1217, 1219–1221 (Pa. Super. 2011)

(footnote omitted).

       In this case, the trial court determined:

       Trooper Snyder observed a cluster of air fresheners hanging from
       the rearview mirror of the SUV. Trooper Snyder believed this
       cluster of air fresheners materially obstructed the driver’s view.
       He described this cluster as being two to three in number that
       were closer together at the top and fanned out wider at the
       bottom. He described the width of the clusters at the top as being
       two to three inches wide, at the bottom five to six inches wide and
       the length from bottom to top as two to three inches long. The
       air fresheners were arranged in a fanned out triangular shape.

       Trooper Snyder used as frame of reference his car’s mobile video
       recorder (MVR) which is located beneath the rearview mirror and
       covers an area of two inches high, two inches wide, and four
       inches long. Trooper Snyder believes that anything covering an
       area greater than that materially obstructs a driver’s view.

Suppression Court Opinion, 5/11/2018, at 16. The suppression court found

“the entirety of Trooper Snyder’s testimony credible.”10 Id. at 15.




____________________________________________


       objects that obstruct a driver's view to any degree, but it did not;
       rather, it prohibited only material obstructions.

Holmes, 14 A.3d at 98–99.

10   This Court has stated:

       It is within the exclusive province of the suppression court to pass
       on the credibility of witnesses and determine the weight to be
       given to their testimony. This Court will not disturb a suppression
       court's credibility determination absent a clear and manifest error.

Commonwealth v. Fudge, 213 A.3d 321, 326 (Pa .Super. 2019) (citations
and quotations omitted).

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      Accordingly, the suppression court concluded the traffic stop was

supported by reasonable suspicion:

      Presently, before making the stop (on a clear and sunny day) the
      trooper was able to identify the objects that were hanging as being
      a cluster of two or three air fresheners that were fanned out in a
      triangle shape. He was able to give the dimensions of the cluster
      and was able to compare that to the MVR in his own vehicle. The
      [c]ourt must also consider 75 Pa.C.S.A. § 6308 which states in
      pertinent part that the officer must be able to point to specific and
      articulable facts which lead him to reasonably suspect a violation
      of the [M]otor [V]ehicle [C]ode. The [c]ourt finds that Trooper
      Snyder testified specifically about the size and nature of the
      objects he observed hanging from the rearview mirror. Thus, the
      [c]ourt finds that the stop of the SUV was valid.

Id. at 22.

      Upon review of the certified record, we agree with the trial court that

Trooper Snyder testified specifically about the size and nature of the objects

that he observed hanging from the rearview mirror before he made the traffic

stop. As such, we reject Appellant’s reliance on Anthony and Holmes. Here,

Trooper Snyder testified that the cluster of air fresheners was larger in size

than the MVR found in his police car.     The MVR was located in a similarly

situated location to the air fresheners at issue, or just below the rearview

mirror. Comparing the air fresheners to the MVR, Trooper Snyder determined

that the air fresheners constituted a material obstruction. Here, the evidence

showed that the objects, as observed before the traffic stop, appeared to

materially obstruct, obscure, or impair the driver’s vision through the

windshield. We conclude that the information was sufficient for the trial court

to independently evaluate whether Trooper Snyder had reasonable suspicion

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to conduct a traffic stop because the subject vehicle was in violation of Section

4524(c). Finally, the suppression court ultimately credited Trooper Snyder’s

version of events and we will not disturb that determination, as there was no

clear and manifest error in doing so. We conclude that the record supports

the suppression court’s factual findings and legal conclusions. Accordingly,

Appellant was not entitled to suppression and, as a result, we affirm his

judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2020




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