Opinion
J. S14006/16 No. 791 MDA 2015
04-26-2016
COMMONWEALTH OF PENNSYLVANIA, Appellant v. TOBIAS KAVAUN BANKS
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 4, 2015, in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0005493-2014 BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
Former Justice specially assigned to the Superior Court.
This case concerns a motion to suppress evidence resulting from a vehicle stop. Herein, the Commonwealth appeals from the order of May 4, 2015, which granted Tobias Kavaun Banks' ("appellee's") omnibus pre-trial motion. We affirm.
The Commonwealth may appeal an interlocutory order suppressing evidence when it provides a certification with its notice of appeal that the order terminates or substantially handicaps the prosecution. Commonwealth v. Whitlock , 69 A.3d 635, 636 n.2 (Pa.Super. 2013), citing Pa.R.A.P. 311(d). In Commonwealth v. Gordon , 673 A.2d 866, 689 (Pa. 1996), our supreme court held that the Commonwealth may appeal the grant of a defense motion in limine which excludes Commonwealth evidence and has the effect of substantially handicapping the prosecution. As the trial court ruling excludes Commonwealth evidence, and the Commonwealth has certified that the effect of the ruling substantially handicaps the prosecution, we find that this appeal is properly before this court.
The trial court provided the following procedural and factual history:
The Appellee was charged with two counts of Possession With Intent to Deliver for heroin and cocaine.[] The Appellee was also charged with a third count of Driving While Operating Privileges Suspended or Revoked.[]
On October 27, 2014, counsel for the Appellee filed a Motion for Additional Discovery and Motion to Extend Time to File Omnibus Pre-Trial Motion and Habeus [sic]. On December 2, 2014, a Hearing was held on the Appellee's motions at which testimony was taken and, at the conclusion of that Hearing, Appellee's counsel was given two additional weeks to file omnibus motions. The Appellee submitted his Omnibus Pretrial Motion on December 15, 2014. Commonwealth filed their Commonwealth's Reply to Defendant's Omnibus Pre-Trial Motion on December 26, 2014. On May 4, 2015, this Court entered an Order granting the Appellee's Omnibus Pre-Trial Motion.
. . . .
On July 11, 2014, Officer Vincent Monte performed a traffic stop on a gray Buick LaCrosse with an inoperable driver's side registration lamp. The vehicle in question is equipped with two license plate lights. The dash cam in the officer's cruiser was not functioning as designed, so there is no video of the stop. The Appellee, who was the driver, was able to provide the officer with the requested vehicle documents, but Appellee, despite his representation that he had a valid license, could not produce his license for the officer. After consulting the computer in his cruiser and dispatch, Officer Monte ascertained that the Appellee's driver's license was suspended. As neither the Appellee nor his passengers had valid
licenses, and because the vehicle was partially blocking the lane of travel, the car was impounded.Trial court opinion, 8/20/15 at 1-4 (citations omitted).
On cross examination, Officer Monte stated that he is unaware of any policy allowing a driver to call a vehicle's owner to retrieve the vehicle and the Appellee was not offered any such chance to do so. During an inventory search, the officer located what he described as a large quantity of heroin and cocaine. Officer Monte told the Suppression Court that he was unaware, prior to the incident, that York City has an ordinance for impounding vehicles. And, Officer Monte was unaware of "any specific policy, manual, or procedure guide on the exact best practice for performing a vehicle inventory search." Yet, Officer Monte performed an inventory search prior to towing the vehicle in order to protect the police and tow operators from hazardous conditions in the vehicle and to ward against liability.
The Commonwealth raises the following issues for our review:
1. Did the trial court err in granting Defendant's motion to suppress where the officers had probable cause to effectuate a traffic stop where the vehicle had an inoperable driver's side registration lamp?Commonwealth's brief at 4.
2. Did the trial court err in granting Defendant's motion to suppress where the officers had reasonable suspicion to effectuate a traffic stop where the vehicle had an inoperable driver's side registration lamp?
3. Did the trial court err in determining that the evidence seized as a result of the traffic stop constituted "fruit of the poisonous tree?"
Having determined, after careful review, that the Honorable Michael E. Bortner, in his Rule 1925(a) opinion of August 20, 2015, ably and comprehensively disposes of the Commonwealth's issues on appeal, with appropriate references to the record and without legal error, we will affirm on the basis of that opinion. Most importantly, the trial court carefully and correctly distinguishes this court's recent opinion in Commonwealth v. Salter , 121 A.3d 987 (Pa.Super. 2015). Salter reversed the suppression court's determination that the police lacked probable cause to stop the defendant's vehicle based on a traffic violation where there was no license plate illumination at all on the vehicle. Id. at 993. Instantly, the trial court determined that the stop of the vehicle was without probable cause because there was no testimony by the police officers that the license plate was not illuminated by a remaining license plate lamp on the vehicle.
Order affirmed.
Panella, J. joins the Memorandum.
Stevens, P.J.E. files a Dissenting Memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/26/2016
Image materials not available for display.