J-E01006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREDERICK W. KARASH :
:
Appellant : No. 1440 WDA 2016
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: BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON,
J., STABILE, J., DUBOW, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY OLSON, J.: FILED MAY 30, 2018
Appellant, Frederick W. Karash, appeals from the judgment of sentence
entered on September 9, 2016. After careful consideration, we conclude that
the record is inadequate to decide the important constitutional question
presented in this case. Accordingly, we vacate Appellant’s judgment of
sentence and remand for further proceedings consistent with this
memorandum.
The factual background of this case is as follows. On May 23, 2016,
Waterways Conservation Officer (WCO) James Smolko observed people
fishing from Appellant’s boat while on patrol on Lake Erie. After confirming
the individuals’ compliance with fishing license requirements, WCO Smolko
conducted a safety inspection of Appellant’s boat. WCO Smolko determined
that there were an insufficient number of personal flotation devices aboard
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the vessel. He cited Appellant for violating 30 Pa.C.S.A. § 5123(a)(5). WCO
Smolko provided an additional personal flotation device and permitted
Appellant to continue boating.
The procedural history of this case is as follows. On June 23, 2016, a
magisterial district judge found Appellant guilty of the charged offense.
Appellant filed a timely notice of appeal to the Court of Common Pleas of Erie
County. Prior to the trial de novo, Appellant filed a suppression motion
arguing that the stop constituted an unreasonable search and seizure under
the federal and state constitutions.
The trial court conducted a combined suppression hearing and trial de
novo on September 9, 2016. The trial court denied Appellant’s suppression
motion, found him guilty, and sentenced him to a $75.00 fine. Appellant
timely filed a notice of appeal to this Court. A divided three-judge panel
reversed Appellant’s conviction and found that the stop violated Appellant’s
constitutional right to be free from unreasonable searches and seizures.
Thereafter, this Court granted the Commonwealth’s reargument petition and
vacated the three-judge panel’s decision. Appellant, who previously appeared
pro se, was represented by counsel for our en banc proceedings. Moreover,
amici curiae filed briefs in support of the Commonwealth and participated in
oral argument.
Appellant presents two issues for our review:
1. Were Appellant’s Fourth Amendment and Article I, Section 8
rights violated when, in the absence of [a] warrant, reasonable
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suspicion[,] or probable cause, agents of the state seized his
boat while on a Pennsylvania waterway and detained him for
approximately one hour while performing a search?
2. In light of available less intrusive invasions of privacy, does the
Commonwealth’s interest in boater safety so outweigh
Appellant’s federal and state constitutional rights that it may
seize and search any boat on Pennsylvania waterways, even in
the absence of reasonable suspicion or probable cause to
believe a violation has been committed, for purposes of
conducting safety inspections?
Appellant’s Substitute Brief at 4 (complete capitalization removed).
Both of Appellant’s issues challenge the denial of his suppression
motion. We review the denial of a suppression motion for an abuse of
discretion and our scope of review consists of “the evidence of the
Commonwealth and so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a whole.”
Commonwealth v. Cole, 167 A.3d 49, 58 (Pa. Super. 2017) (citation
omitted).
Appellant, the Commonwealth, and amici curiae all present arguments
that heavily depend on facts that are not of record in this case. Appellant
contends that WCO Smolko was on his boat for over an hour when conducting
the safety inspection. See, e.g., Appellant’s Substitute Brief at 15. The
Commonwealth, on the other hand, avers that WCO Smolko’s safety
inspection “was neither random nor objectively or subjectively intrusive.”
Commonwealth’s Substitute Brief at 6. The Pennsylvania Fish and Boat
Commission argues that Officer Smolko never stepped foot on Appellant’s
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boat. See Pennsylvania Fish and Boat Commission at 6-7. The Pennsylvania
Game Commission avers that the “safety inspection of Appellant’s boat was
neither random nor objectively or subjectively intrusive.” Pennsylvania Game
Commission Brief at 4. In other words, Appellant, the Commonwealth, and
amici all approach this case by advancing inferences drawn from an
undeveloped set of beliefs regarding the facts surrounding the stop of
Appellant’s boat.
The record, however, does not support the factual averments made by
the parties or amici. The record is devoid of any information regarding how
WCO Smolko conducted the stop or how he performed the safety inspection.
Moreover, there is no evidence relating to when WCOs such as WCO Smolko
conduct safety inspections and any safeguards employed to avoid arbitrary
enforcement of boating safety regulations. We decline to reach the important
constitutional question presented in this case given the sparse record we have
been presented. Accordingly, we vacate Appellant’s judgment of sentence
and remand for a new suppression hearing (and a new trial de novo if the trial
court denies the suppression motion). The trial court shall issue detailed
findings of fact and conclusions of law at the conclusion of the new suppression
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hearing so that, if either party appeals, the appellate court1 may properly
review the constitutionality of the stop.
Judgment of sentence vacated. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/2018
____________________________________________
1 Jurisdiction over this appeal properly lies with the Commonwealth Court.
See 42 Pa.C.S. § 762(a)(2)(i) (“[T]he Commonwealth Court shall have
exclusive jurisdiction of appeals from final orders of the courts of common
pleas . . . [for] . . . [a]ll criminal actions or proceedings for the violation of
any . . . [r]ule, regulation or order of any Commonwealth agency[.]”).
However, this Court has the authority to assume jurisdiction over this appeal
pursuant to Pennsylvania Rule of Appellate Procedure 741(a). We caution the
parties, however, that we may transfer any future appeal in this case to the
Commonwealth Court.
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