Commonwealth v. Karash

309 A.3d 1159

COMMONWEALTH of Pennsylvania

v.Frederick W. KARASH, Appellant

No. 473 C.D. 2020

Commonwealth Court of Pennsylvania.

Submitted on Briefs October 11, 2023

Decided February 6, 2024

Appealed from No. SA 91 of 2016, Common Pleas Court of the County of Erie, John J. Mead, J.

Frederick W. Karash, Appellant, Pro Se.

Michael E. Burns, Assistant District Attorney, Erie, for Appellee.

Vienna Vasquez, Assistant Counsel, Harrisburg, for Amicus Curiae Pennsylvania Fish and Boat Commission.

Jason A. Raup, Assistant Counsel, Harrisburg, for Amicus Curiae Pennsylvania Game Commission.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE LORI A. DUMAS, Judge, HONORABLE STACY WALLACE, Judge

OPINION BY JUDGE WALLACE

Frederick W. Karash (Defendant) appeals pro se from the Court of Common Pleas of Erie County’s (trial court) judgment of sentence following his summary conviction for violating the Fish and Boat Code¹ (the Code) by having an insufficient number of life jackets known as personal floatation devices (PFDs) aboard his boat. Defendant challenges the trial court’s denial of his suppression motion and the sufficiency of the evidence supporting his conviction. After review, we affirm.

BACKGROUND

Around 7:30 p.m. on May 20, 2016, while patrolling Lake Erie, Officer James Smolko (Officer Smolko), a waterways conservation officer (WCO) for the Pennsylvania Fish and Boat Commission (Commission), observed individuals fishing from Defendant’s boat, which was a Sea Ray Cabin Cruiser approximately 22 feet in length. Trial Court Opinion, 12/24/18, (Op.), at 1; Notes of Testimony, 9/14/18, (N.T.) at 8, 22.² Officer Smolko approached Defendant’s boat to conduct a fishing license check. Op. at 1; N.T. at 9-10. At the time, Officer Smolko was dressed in full uniform and driving a marked patrol boat. Op. at 1; N.T. at 6-7. Two cadet trainees and another WCO were also on the patrol boat with Officer Smolko. Id. Officer Smolko did not activate his patrol boat’s lights or sirens as he approached Defendant’s boat. Op. at 1; N.T. at 9.

Officer Smolko motored his patrol boat close to Defendant’s boat and identified himself as a WCO. Op. at 1; N.T. at 10. Officer Smolko requested that the people on board hold up their fishing licenses. Op. at 3; N.T. at 10. Pennsylvania fishing licenses are small cards with images displayed on the front, which vary between an outline of the keystone or the outline of a fish. N.T. at 12. The back of the fishing license provides the license holder’s name and other identifying features. Id. at 13. After confirming the individuals who were fishing possessed fishing licenses, Officer Smolko informed Defendant he was going to conduct a safety equipment inspection of the boat, as was ordinary for Officer Smolko following a fishing license check. Op. at 3; N.T. at 13.

Routinely, to conduct a safety equipment inspection, Officer Smolko would check to ensure the boat carried sufficient life jackets or PFDs, and a Type 4 throwable device, which is a throwable seat cushion buoy. N.T. at 13-14. Additionally, Officer Smolko would check for the visual distress signals, day and night use flares or a distress flag, a fire extinguisher, and the boat’s registration. Id. at 14. Officer Smolko would not board boats to conduct safety equipment inspections, but rather would request the owners or operators of the boats to show him the equipment for his inspection. Op. at 4; N.T. at 17.

Here, while conducting the safety equipment inspection of Defendant’s boat, Officer Smolko requested Defendant hand everyone on board a wearable PFD so Officer Smolko could determine whether the equipment was readily accessible, in serviceable condition, and the appropriate size for the individuals on board. Op. at 5; N.T. at 26-27. While Defendant’s boat had five people on board, Defendant had only four wearable PFDs. Op. at 5; N.T. at 15-16. After determining Defendant was not in compliance with Section 97.1(b) of the Commission’s Regulations,³ which requires a boater have at least one wearable PFD on board for each person, 58 Pa. Code § 97.1(b), Officer Smolko took Defendant’s identification and drove away from Defendant’s boat to do a vessel and license check through Erie County dispatch. Op. at 5; N.T. at 17-18. At the end of the encounter, Officer Smolko gave Defendant a wearable PFD from his patrol boat so Defendant could continue to boat and return to the marina. Op. at 5; N.T. at 16. During the entire interaction between Officer Smolko and Defendant, no WCOs boarded Defendant’s boat or tied the boats together. Op. at 5; N.T. at 17. The encounter lasted between 30 and 40 minutes. Op. at 6; N.T. at 17, 113.

Officer Smolko issued a summary citation to Defendant for violating Section 97.1(b) of the Commission’s Regulations, 58 Pa. Code § 97.1(b). On June 23, 2016, a magisterial district judge found Defendant guilty of the offense. Defendant appealed to the trial court. Prior to the trial de novo, Defendant filed a suppression motion arguing the stop constituted an unreasonable search and seizure under the federal and state constitutions. On September 9, 2016, the trial court conducted a combined suppression hearing and trial. The trial court denied Defendant’s suppression motion, found him guilty, and sentenced him to a $75.00 fine. Defendant appealed to the Superior Court of Pennsylvania. A divided three-judge panel reversed Defendant’s conviction and found the stop violated his right to be free from unreasonable searches and seizures. The Commonwealth petitioned for reargument, which the Superior Court granted, vacating the panel’s decision. On May 30, 2018, the Superior Court, en banc, concluded deficiencies in the record precluded its review and vacated Defendant’s judgment of sentence and remanded for a new suppression hearing so the record could be properly developed.

On September 14, 2018, the trial court held a suppression hearing and denied Defendant’s motion to suppress. Subsequently, on May 6, 2019, the trial court held a trial de novo and denied Defendant’s summary appeal, reimposing his sentence. Defendant appealed to the Superior Court. On April 3, 2020, the Superior Court transferred the case to this Court.

On appeal to this Court, Defendant, pro se, challenges the denial of his suppression motion and his conviction.⁴ Regarding the denial of his suppression motion, Defendant argues he had a reasonable expectation of privacy on his boat and Officer Smolko’s stop and detention of his boat was not supported by reasonable suspicion, probable cause, or a search warrant, and thus violated his right to be free from unreasonable search and seizure. Defendant’s Br. at 8. Regarding his conviction, Defendant asserts the Commonwealth failed to prove Defendant did not have the required number of PFDs aboard his boat. Id. at 7

In response, the Commonwealth asserts the stop of Defendant’s boat and brief inspection of the fishing licenses, and the subsequent safety inspection, were not unreasonable, and thus did not violate either the state or federal constitutions. Commonwealth’s Br. at 4-12. The Commonwealth points out Officer Smolko’s stop of Defendant’s boat to conduct a fishing license check was not unreasonable as it was his duty as a WCO and is required by the Code. Id. at 12-13. Similarly, the Commonwealth asserts the safety equipment inspection of Defendant’s boat was not unreasonable as boaters are required to possess certain safety equipment and the Code sets forth the powers and duties of the WCOs, which includes stopping and boarding any boat to inspect for compliance. Id. at 13-15. Finally, the Commonwealth contends it produced sufficient evidence to prove Defendant failed to have the required number of wearable PFDs aboard his boat. Id. at 17.

DISCUSSION

Suppression Motion

[1–4] First, we consider Defendant’s challenge to the trial court’s denial of his suppression motion. When addressing a challenge to the denial of a suppression motion, our review is limited to determining whether the trial court’s factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (2010) (internal quotations and citations omitted). Because the Commonwealth prevailed before the trial court, we consider only the Commonwealth’s evidence and so much of the Defendant’s evidence as is uncontradicted. Id. So long as the trial court’s factual findings are supported by the record, we are bound by those findings and will reverse the trial court’s decision only if its legal conclusions are erroneous. Id. To the extent we address issues of law, our review is de novo. Commonwealth v. Beaman, 583 Pa. 636, 880 A.2d 578, 581 (2005) (citation omitted). In other words, we "are not bound by the legal conclusions of the … lower court[ ]." EQT Prod. Co. v. Borough of Jefferson Hills, 652 Pa. 508, 208 A.3d 1010, 1025 (2019) (citation omitted).

Because we are addressing a constitutional challenge, we begin by reviewing the Fourth Amendment to the United States (U.S.) Constitution, U.S. Const. amend. IV (Fourth Amendment), and its similar state counterpart, article I, section 8 of the Pennsylvania Constitution, Pa. Const. art. I, § 8. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. Similarly article I, section 8 of the Pennsylvania Constitution provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and

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