J-S26019-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
GLENN BRICKUS :
:
Appellee : No. 3301 EDA 2018
Appeal from the Order Entered October 24, 2018
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000810-2018
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED JULY 18, 2019
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Chester County Court of Common Pleas, which granted the
suppression motion of Appellee, Glenn Brickus.1 We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no need to
restate them.
The Commonwealth raises the following issue for our review:
WHETHER THE TRIAL COURT ERRED IN GRANTING
____________________________________________
1 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice
of appeal that the trial court’s suppression order substantially handicapped or
terminated the prosecution of the Commonwealth’s case. Accordingly, this
appeal is properly before us for review. See Commonwealth v. Cosnek,
575 Pa. 411, 421, 836 A.2d 871, 877 (2003) (stating Rule 311(d) applies to
pretrial ruling that results in suppression, preclusion or exclusion of
Commonwealth’s evidence).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S26019-19
[APPELLEE]’S SUPPRESSION MOTION?
(Commonwealth’s Brief at 4).
Our scope and standard of review when the Commonwealth appeals
from a suppression order are as follows:
[T]his Court may consider only the evidence from the
defendant’s witnesses together with the evidence of the
prosecution that, when read in the context of the record as
a whole, remains uncontradicted. In our review, we are not
bound by the suppression court’s conclusions of law, and we
must determine if the suppression court properly applied the
law to the facts. We defer to the suppression court’s
findings of fact because, as the finder of fact, it is the
suppression court’s prerogative to pass on the credibility of
the witnesses and the weight to be given to their testimony.
Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa.Super. 2014), appeal
denied, 630 Pa. 734, 106 A.3d 724 (2014) (internal citations omitted).
Section 4303 of the Pennsylvania Vehicle Code provides, in relevant
part, as follows:
§ 4303. General lighting requirements
* * *
(b) Rear lighting.—Every vehicle operated on a highway
shall be equipped with a rear lighting system including, but
not limited to, rear lamps, rear reflectors, stop lamps and
license plate light, in conformance with regulations of the
department. If a vehicle is equipped with a centrally
mounted rear stop light, a decal or overlay may be affixed
to the centrally mounted rear stop light if the decal or
overlay meets all applicable State and Federal regulations.
75 Pa.C.S.A. § 4303(b).
After a thorough review of the record, the briefs of the parties, the
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J-S26019-19
applicable law, and the well-reasoned opinion of the Honorable Patrick C.
Carmody, we conclude the Commonwealth’s issue merits no relief. The trial
court opinion comprehensively discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed January 11, 2019, at 5-6) (finding:
police stopped Appellee on basis that Appellee’s vehicle’s third brake light was
out, in violation of Section 4303(b) of Vehicle Code; at suppression hearing,
two police officers who stopped Appellee testified Appellee’s vehicle’s third
brake light was inoperable; Commonwealth, however, failed to introduce
Motor Vehicle Recorder (“MVR”) video of incident, body camera recording of
incident, or photographs to establish Appellee’s brake light was out when
police stopped Appellee, even though police still had custody of vehicle at time
of hearing; on other hand, Appellee testified brake light was working on date
of incident; both Appellee and police were equally credible; without video
and/or photographic evidence to demonstrate inoperability of Appellee’s
vehicle’s brake light, Commonwealth failed to meet its burden to establish
police conducted lawful stop of Appellee; at hearing, court merely attempted
to convey that MVR or body camera video could have assisted Commonwealth
to meet its burden to show police lawfully stopped Appellee for violation of
Vehicle Code; suppression court simply opined on record that Commonwealth
risks having courts suppress evidence in future, close cases, like current case,
without functional video equipment; Commonwealth’s contention, that court
suppressed evidence based solely upon court’s personal view that all police
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vehicles should house MVR equipment, merits no relief). The record supports
the trial court’s decision. Accordingly, we affirm on the basis of the trial court
opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/19
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Circulated 06/20/2019 03 56 PM
COMMONWEALTH OF PENNSYLVANIA : ]N THE COURT OF COMMON PLEAS
CHESTER COUNTY, PENNSYLVANIA
vs.
CRIMINAL ACTION -- LAW
NO. 81.0-18
Nicholas J. Casenta, Jr., Esquire, Chief Deputy District Attorney for the Commo�ealth
Sarah B. Black, Esquire, Attorney for.Defendant �· µ
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OPINION PURSUANT TO Pa.R.A.P.1925 ...,, (")
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The Commonwealth has appealed from the Order entered by the court� October 24,
2018, granting defendant's Omnibus Pretrial Motion Petition and Motion for Suppression. of
Evidence, This Opinion is filed pursuant to PaR.A.P. 1925(a).
On October 24, 2018, a hearing was held on defendant's Omnibus Pretrial Motion. At
the conclusion of the hearing, the court granted defendant's motion and suppressed any and all
evidence.obtained as a result of a traffic stop of defendant's vehicle. The Commonwealth filed
a timely Notice of Appeal on November 13, 2018. On the same date, the Commonwealth was
ordered to file a Concise Statement of Matters Complained of on Appeal. The
Commonwealth's Concise. Statement was received on December 3, 2018. In it, the
Commonwealth raises the following issues;
l. The trial court erred in granting defendant's motion;
2. The trial court did not comply with Pa.R.Crim.P. 581;
3. The trial court erred by not making specific .findings of fact;
4. The trial court erred by not making specific conclusions of law;
5. To the extent that the trial court's legal conclusions can be inferred they are
not correct;
6. To the extent that the trial court's factual findings can be inferred they are
not supported by the record;
7. The trial court erred in that it did not grant defendant's suppression motion
based on a violation of defendant's rights, as there were no violations, but
rather. granted defendant's suppression motion based on the trial court's
personal view that all police vehicles should be equipped with MVR (Motor
Vehicle Recording) Equipment, and the trial court wanted to send that
message to the Coatesville Police Department.
See the Commonwealth's Statement of Matters Complained of on Appeal. At the hearing 01
October 24, 2018, Corporal Kenneth Michels testified to the following:
On February 21, 2018, Corporal Michels and Officer Carmen Mollichella of the City o
Coatesville Police Department were on duty operating a marked patrol vehicle in the area .o
North 7th Street' in Coatesville, Chester County, Pennsylvania. Their patrol vehicle had a Moto
Vehicle Recorder (hereinafter, "MVR") in it, but it was not. functioning. The MVR in th
vehicle has been inoperable for about five (5) years. At approximately 5 :00 a.m., the
observed a vehicle travelling at a high rate of speed with an inoperable third brake light. Base
on this observation, they effectuated a 'traffic stop. Officer Bogan of the City of Coatesvill
Police Department also arrived at the. scene. The MVR inhis vehicle was functioning, but h
did not record the incident. Each of the officers at the scene had body cameras, but no on
recorded the alleged inoperable third brake light.
Officer Mollichella also testified at the hearing. He testified consistently with Corpora
Michels' testimony and stated that the third brake light on defendant's vehicle was :no
functioning. He also confirmed that the patrol car did not have a functioning MVK Further
even though there was a working body camera on his person, he did not record the inoperabl ·
third brake light.
At the .hearing, the Commonwealth attempted to introduce the hearsay testimony o
Sergeant Harris of the City ofCoatesville Police Department, who was not subpoenaed forth
hearing. The hearsay testimony would have been that Sergeant Harris. met with someone. from
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the Public Defender's Office to inspect defendant's vehicle prior to the hearing. (The vehicl
was still in the police impound lot at the time of the hearing on October 24, 2018.) Th
inspection of the vehicle revealed that the third brake light- was not operational at that time
The court sustained defense counsel's objection to this line of questioning on the basis o
hearsay: The court would have accepted photographs showing the inoperable brake light, bu
none were offered into evidence.
Defendant took the stand in his own defense. He testified that he was driving a 199
Saturn Aura that he had just bought approximately ten (10) to fifteen ( 15) days before th
incident. He inspected the car when he purchased it, and the brake lights were in workin
order. He also stated that he observed the brake light working on the day in question when h
left for work that morning prior to the stop.
After both sides rested their case, the court noted the following:
You know, this is a tough one, because frankly, it's not only the
credibility. Where I'm at is, this is not going to have any precedential value,
whatsoever, for any other cases. Mr. Brickus, you had a dispute about this
thing. I'm not finding you necessarily more credible than Corporal Michaels
(sic) or Officer Mollichella. I think they're both credible .people. I deal with
them all the time. This is kind of a lecture to Chief Lauter who I have respect
for and also the DA's office. In a situation like this, bring in Sergeant Harris.
Bring in pictures. Bring in - - just take. the extra step to do the hearing right so
that I have the evidence in front of me to do it, Especially in a situation where
both officers, both their cars, don't have MVRs. Then they both have the safety
net oftheir body-cams. We know the way this day went down that, you know,
we have a record, but everything wertt south after that with Mr. Brickus and he
allegedly resisted. I don't know if he was tasered or not. You know, at that
point, itall went south and you know there's going to be a dispute on both sides.
So I find that on February 21st.of 2018, at4:28 in the morning, the police
stopped the car; Both police officers say the third brake light was inoperable.
Mr. Brickus says it was. There was a way to confirm that, which was either just
take a picture of it in the lot. It's been sitting there since February, or have.
Sergeant Harris come in to testify to that. That essentially, the Commonwealth
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did not cross all of their T's and dot all their rs for me to do it beyond a
reasonable doubt. I'm not saying anything that - - Mr. Brickus is telling me
pointblank. It's not that I find you more credible ·than the police officers. This
is - - you're really getting an enormous break. Do you understand that?
* ..........
If 1 see you again or if Coatesville sees you again, you better believe
they're going to .arrest you. In this particular case, you had drugs and everything
else and acted like an. idiot especially considering, allegedly considering, the
time. If Pm ever pulled over it's what do you want and how do you want it.
Just cooperate. Corporal Michaels (sic), I have known you a long time. You
have been a good police officer. Tell them to correct the situation. You have to
have a safety net. If you don't have cameras working for five years, you know
it's going to be a tenuous situation. Do that. Tell that to Chief Laufer. That's
my message in this case. Ms. Cox-Shaw, bring Sergeant Harris in; okay. I'm
granting the suppression, reluctantly, but it has no precedential value on future
cases. I'm not criticizing the police in this case. It's not necessarily their
problem. It's their department that has to get it. In today's times, why bother
having MVRs if you're not using it and body cameras if you're not using it.
Thank you for _your cooperation in this case. Don't say anything else, Mr.
Brickus, Take it and run.
N.T. 10/24/18, pp. 30-33. The above passage reflects that the court did, in fact.make sufficien
findings of fact and conclusions of law. In addition, those findings of fact and conclusions o ·
law were amply supported by the record.1
When a Motion to Suppress has been filed, the 'burden is on the Commonwealth t
establish by a preponderance of the evidence that the challenged evidence is admissible
The court concedes that this passage was poorly articulated. The gist of what the court wa
trying to say was that the court was unable to determine which side was more credible based on th
evidence introduced at the hearing. The Commonwealth, who had the burden of proving by
preponderance of the evidence that the evidence was lawfully obtained, failed to take the step
necessary to prove its case. It did not introduce any MVR. footage, any body camera video. or an
photographs to establish that the third brake light was not functioning. It also did not call Sergean
Harris as a witness to establish this fact. Without any supporting evidence, the court properly found tha
the Commonwealth failed to meet its burden of proof.
The court also notes that while 1t stated that the Commonwealth had to prove its case beyond
reasonable doubt, the correct standard is preponderance of the evidence. As stated above, however
the Commonwealth failed to meet this. standard.
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Commonwealth v. Hamilton, 673 A;2d 915 (Pa. 1996). See also, Pa.R.Crim.P. 581. Wit
regard to traffic stops, the Pennsylvania Superior Court has stated:
A police officer has the authority to stop a vehicle when he or she has reasonable
suspicion that a violation of the vehicle code has taken place, for the purpose of
obtaining necessary information to enforce the provisions of the code. 75 Pa.C.S.
§6308(b). However, if the violation is such that it requires no additional
investigation, the officer must have probable: cause to initiate the stop.
Commonwealth v. Feczko. 10A.3d 1285, 1291 (Pa. Super. 2010).
Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super. 2013).
In this case, defendant was stopped for a violation of 75 Pa.C.S.A. §4303(b) because hi
third brake light was allegedly inoperable. Corporal Michels and ·Officer Mollichella both testifie
that the third brake light was not working. There was no MVR recording, body camera recordin
or photographs offered into evidence to support this contention, even though the vehicle was sti1
in police custody at the time of the hearing. Defendant, on the other hand, testified that it -wa
working on the date in question. Both sides testified credibly and both Scenarios are equally like!
(50/50). Without any video and/or photographic evidence to confirm or deny the operability of th
third brake light, 'the court properly found that the Commonwealth failed to meet its burden o
establishing by a preponderance ofthe evidence that the challenged evidence is admissible.
Although the Commonwealth contends that the court made its ruling based on
"personal view that all police vehicles should be equipped with MVR Equipment," and not on th
applicable statutory and case law, that is not the case. The court was only trying to convey th
message that easily obtainable confirmation from an. MVR or body camera can help th
Commonwealth meet its burden of proving by a preponderance of the evidence that the evidenc
in question was obtained lawfully. Without such evidence, the Commonwealth risks havin
evidence suppressed in close, borderline cases such as this one.
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Based on the forgoing, the court properly found that the Commonwealth failed to mee
its burden of proving that the challenged evidence was properly obtained. Accordingly
defendant's Omnibus Pretrial Motion was appropriately granted and -ihe Commonwealth'
alleged assignments of error are without merit.
BY THE COURT:
tf:f,,·,k C.r.. , . Jy
'PATRICK CARMODY J.
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