Commonwealth v. Karash

2017 PA Super 271

COMMONWEALTH OF PENNSYLVANIA, Appellee v. FREDERICK W. KARASH, Appellant

J-A07037-17

No. 1440 WDA 2016

SUPERIOR COURT OF PENNSYLVANIA

AUGUST 21, 2017

Appeal from the Judgment of Sentence September 9, 2016, in the Court of Common Pleas of Erie County, Criminal Division at No(s): CP-25-SA-0000091-2016

BEFORE: OLSON, STABILE, and STRASSBURGER,^* JJ.

OPINION BY STRASSBURGER, J.:

Frederick W. Karash (Appellant) pro se appeals from the judgment of sentence imposed on September 9, 2016, after he was found guilty of a summary offense for not having the required safety equipment on his boat.¹ This case presents an issue of first impression in Pennsylvania, namely whether the stop of a boat without reasonable suspicion or probable cause on a Pennsylvania waterway violates the Fourth Amendment to the United States Constitution or Article I, Section 8 of the Pennsylvania Constitution.Concluding that the stop violates the Fourth Amendment,² we reverse Appellant's judgment of sentence.

We offer the following factual summary. On May 23, 2016, waterways conservation officer (WCO) James Smolko was patrolling Lake Erie. At 7:30 p.m., he observed people fishing from Appellant's boat. He stopped and boarded Appellant's boat to conduct a "license check under [30 Pa.C.S. § ]2703(a)." N.T., 9/9/2016, at 5. After concluding that all who were fishing were compliant with license requirements, WCO Smolko conducted a safety inspection. WCO Smolko determined that there were not enough personal flotation devices (PFDs) for the number of individuals aboard. Appellant was issued a citation for violating 30 Pa.C.S. § 5123(a)(5). WCO Smolko provided an additional PFD and permitted Appellant to continue boating.

A hearing was held before a district magistrate judge on June 23, 2016, and Appellant was convicted of the aforementioned summary offense. Appellant timely filed an appeal for a trial de novo to the Court of Common Pleas of Erie County. Prior to trial, Appellant filed a motion to suppress the Commonwealth's evidence arguing that WCO Smolko "did not have reasonable suspicion or probable cause to conduct a stop" and that the stop violated Appellant's rights to "be free of illegal search and seizure." Motion to Suppress, 8/12/2016.

A combined motion to suppress and de novo hearing was held on September 9, 2016. The Commonwealth argued that WCO Smolko had the authority to stop Appellant's boat pursuant to 30 Pa.C.S. § 901(a)(10), which provides that every WCO "shall have the power and duty to ... [s]top and board any boat subject to this title for the purpose of inspection for compliance with Part III (relating to boats and boating) and the rules and regulations promulgated thereunder." 30 Pa.C.S. § 901(a)(10). Thus, the Commonwealth argued that WCO Smolko did not need reasonable suspicion or probable cause to stop Appellant's boat to conduct a safety inspection. Appellant argued that despite the statute, "the stop violated Article 1, Section 8 of the Pennsylvania Constitution; therefore, it was illegal."³ N.T., 9/9/2016, at 14.

The trial court denied Appellant's motion to suppress, concluding that pursuant to the statute, WCO Smolko had the "power to stop and board any boat without probable cause for the purpose of inspection for compliance with safety rules and regulations." Order, 9/9/2016. The trial court convicted Appellant of violating 30 Pa.C.S. § 5123(a)(5) and fined him $75plus costs. Appellant timely filed a notice of appeal to this Court. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant presents both constitutional claims and non-constitutional claims. "It is well settled that when a case raises both constitutional and non-constitutional issues, a court should not reach the constitutional issue if the case can properly be decided on non-constitutional grounds." Ballou v. State Ethics Comm'n, 436 A.2d 186, 187 (Pa. 1981).

In Appellant's first non-constitutional claim, he argues that the trial court erred by not conducting a separate suppression hearing prior to trial. See Appellant's Brief at 29-30. However, Appellant has waived that issue by failing to object to the trial court's procedure at the time it occurred. "In order to preserve an issue for review, a party must make a timely and specific objection." Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003); Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Moreover, we have held that a trial court at a de novo hearing does not commit "procedural error in not conducting a separate suppression hearing." Commonwealth v. Breslin, 732 A.2d 629, 633 (Pa. Super. 1999) (emphasis added).

Appellant also argues that the evidence was insufficient to sustain his conviction because his "boat was equipped with numerous personal flotationdevices sufficient to have a wearable device for every occupant of the boat and have remaining throwable devices." Appellant's Brief at 33.

Appellant did not raise this issue in his Pa.R.A.P. 1925 statement; thus, it is waived on appeal. See Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.").

Moreover, at trial, Appellant did not offer any testimony or evidence about the number of wearable and throwable devices on his boat; therefore, the trial court could not have considered this situation. Thus, we hold that Appellant has waived this argument for on that basis as well.

In addition, even if we were to consider this argument, he would not be entitled to relief.

The section for which Appellant was convicted provides the following.

(a) General Rule.--The commission may promulgate such rules and regulations as it deems appropriate to provide for the operation and navigation of boats, including the rules of the road for boating, the ways, manner, methods and means of boating, the management of boats and the use thereof and the protection of waters for boating purposes. The rules and regulations may relate to:

***

(5) Equipment requirements for boats, operators of boats, passengers on boats and persons towed or pulled by boats.

30 Pa.C.S. § 5123(a)(5). Boating safety equipment is governed by 58 Pa. Code § 97.1, which provides that "[a] person may not use a boat unless atleast one wearable PFD is on board for each person and the PFD is used in accordance with requirements of the approval label." A wearable device is defined as "[a] PFD that is intended to be worn or otherwise attached to a person's body." Id. According to WCO Smolko, Appellant's boat "was short one [PFD] which was a wearable [PFD]." N.T., 9/9/2016, at 5.

Having concluded we cannot decide this appeal on non-constitutional grounds, we turn to Appellant's claim that the trial court erred by denying his motion to suppress because the stop was "illegal under the PA Constitution." Appellant's Brief at 23. We review this claim mindful of the following.

Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.

[W]e may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Commonwealth v. McCoy, 154 A.3d 813, 815-16 (Pa. Super. 2017).

Appellant argued at the trial court that his stop was illegal pursuant to Article I, § 8 of the Pennsylvania Constitution. In other words, Appellant challenges the trial court's legal conclusion that WCO Smolko had the authority to stop and search his boat without reasonable suspicion orprobable cause. We point out that "the federal constitution establishes certain minimum levels which are equally applicable to the [analogous] state constitutional provision." Commonwealth v. Edmunds, 586 A.2d 887, 894 (Pa. 1991) (internal quotation marks omitted).

Both the Fourth Amendment to the United States Constitution and Article I, § 8 of the Pennsylvania Constitution protect the people from unreasonable searches and seizures. The Fourth Amendment and Article I, § 8 have long been interpreted to protect the people from unreasonable government intrusions into their privacy. The reasonableness of a governmental intrusion varies with the degree of privacy legitimately expected and the nature of the governmental intrusion.

Commonwealth v. McCree, 924 A.2d 621, 626 (Pa. 2007) (internal citations and quotation marks omitted). "The Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner." Commonwealth v. Smith, 77 A.3d 562, 571 (Pa. 2013). "In order to determine the reasonableness of a particular search or seizure a balancing analysis is utilized, wherein the intrusion on the individual of a particular law enforcement practice is balanced against the government's promotion of legitimate interests." Commonwealth v. Blouse, 611 A.2d 1177, 1167 (Pa. 1992). See also Commonwealth v. Johnston, 530 A.2d 74 (Pa. 1987) (holding that balancing-of-interests analysis is required when determining the reasonableness of a search and seizure).

With respect to the government's promotion of legitimate interests, the Commonwealth argues that due to "public interest in safety inspections of boats in the waterways, the intent of the General Assembly was to grant plenary authority to conduct safety inspections without a warrant, probable cause, or reasonable suspicion." Commonwealth's Brief at 6. Specifically, as to life jacket availability, the Commonwealth sets...