Commonwealth v. Karash
| Decision Date | 21 August 2017 |
| Docket Number | No. 1440 WDA 2016,J-A07037-17,1440 WDA 2016 |
| Citation | 2017 PA Super 271 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. FREDERICK W. KARASH, Appellant |
| Court | Pennsylvania Superior Court |
This is a difficult case and, as the learned Majority notes, the suppression issue has sharply divided courts throughout the United States. I agree with the Majority's decision to assume jurisdiction over this appeal despite the fact that jurisdiction properly lies with the Commonwealth Court. I also agree with the Majority's conclusion that Appellant waived both his claim that the trial court erred by not holding a separate suppression hearing and his claim that the evidence was insufficient to find him guilty. With respect to Appellant's sufficiency claim, I concur with the Majority's finding of waiver pursuant to Pennsylvania Rule of Appellate Procedure 1925(b)(4)(vii) as Appellant failed to raise a sufficiency challenge in his concise statement of errors complained of on appeal.1 I disagree,however, with the Majority's holding that the Water Conservation Officer ("WCO") in this case needed reasonable suspicion that criminal activity was afoot before ensuring that Appellant's boat complied with all applicable safety regulations. Because I disagree that the challenged stop required reasonable suspicion, I am unable to join the learned Majority's conclusion that Appellant's conviction is constitutionally infirm. Therefore, I respectfully concur in part and dissent in part.
As the Majority correctly notes, jurisdiction over this appeal properly lies with the Commonwealth Court; however, this Court has the authority to assume jurisdiction over this appeal pursuant to Pennsylvania Rule of Appellate Procedure 741(a).2 Majority Opinion at 1 n.1. I hesitate not to transfer this case to the Commonwealth Court for three reasons.
First, this case presents an issue which lies at the heart of the Commonwealth Court's jurisdiction. Specifically, this case deals with the constitutionality of a statute defining the scope of authority of a Commonwealth agency. This is the type of case our General Assembly has allocated to the Commonwealth Court and not to this Court.
Second, this Court often cites the argument that the assumption of jurisdiction over appeals improperly taken to this Court is "in the interest of judicial economy." Gosselin, 861 A.2d at 999 n.2; see Smith, 868 A.2d at 1254 n.2 (citation omitted); Commonwealth v. Neitzel, 678 A.2d 369, 370 n.2 (Pa. Super. 1996) (citation omitted); Fengfish v. Dallmyer, 642 A.2d 1117, 1119 n.2 (Pa. Super. 1994). This is true on the micro level. That is, judicial economy with respect to a specific case is furthered when this Court assumes jurisdiction over an appeal improperly brought to this Court when briefing has been completed and oral argument heard. On the macro level, however, this continued exercise of discretion under Rule 741(a) results in an overall decrease in judicial economy. Exercising discretion to assume jurisdiction over appeals taken to the incorrect intermediate appellate court has a disproportionate impact on this Court and its staff. It also tends to increase the time required to adjudicate the large number of cases properly brought to this Court. Thus, on the macro level this decreases judicial economy.
Third, if this Court assumes jurisdiction over appeals improperly brought to this Court there will be no incentive for parties and counsel to bring appeals to the correct intermediate appellate court. There will likewise be no incentive for appellees to object to this Court assuming jurisdiction over such appeals. By transferring improperly filed appeals to the Commonwealth Court, parties will be incentivized to take appeals to the correct intermediate appellate court and objecting when that does not occur.
This case presents two unique circumstances that convince me that assuming jurisdiction over this appeal is appropriate despite these misgivings. First, the decision on the suppression issue presented in this case will affect future appeals brought to both this Court and the Commonwealth Court. See Commonwealth v. DeLuca, 6 Pa. D. & C.5th 306, 323 n.8 (C.C.P. Delaware 2008), aff'd, 981 A.2d 309 (Pa. Super. 2008) ().
Second, this Court has extensive experience in addressing suppression issues. Every year, this Court decides hundreds of appeals in which a suppression decision in a criminal case is challenged. Thus, although this case is at the core of the Commonwealth Court's jurisdiction, this Court has significant experience addressing suppression issues. Therefore, I agreewith the learned Majority's decision to assume jurisdiction over this appeal pursuant to Rule 741(a).
Turning to the merits of this appeal, the statute in question provides that:
Every waterways conservation officer shall have the power and duty to[ s]top and board any boat subject to [the Fish and Boat Code] for the purpose of inspection for compliance with [30 Pa.C.S.A. §§ 5101-5507] and the rules and regulations promulgated thereunder. Any boat lying at its regular mooring or berth shall not be boarded without the consent of the owner or a search warrant.
Appellant was convicted of failing to comply with 58 Pa. Code § 97.1, which requires that a boat must have at least one wearable personal flotation device on board for each person on the boat. Section 97.1 was obviously promulgated to ensure the safety of boaters. Thus, as relevant to this case, section 901(a)(10) permits WCOs to board boats traversing a waterway in this Commonwealth to ensure compliance with safety regulations promulgated by the Fish and Boat Commission.
The Majority cogently sets forth the Supreme Court of the United States' holding in United States v. Villamonte-Marquez, 462 U.S. 579 (1983). See Majority Opinion at 10-12. I agree with the Majority that any analysis of the suppression issue in this case must be grounded in that decision. Under the framework set forth in Villamonte-Marquez, the focus of this Court's inquiry is on Villamonte-Marquez, 462 U.S. at 588 (internal quotation marks and citation omitted).
The Majority cites State v. Carr, 878 N.E.2d 1077 (Ohio Ct. App. 2007) and State v. Lecarros, 66 P.3d 543 (Or. Ct. App. 2003) as persuasive authority in support of its holding that this balance, as it relates to random, suspicionless boat stops, weighs in favor of finding a Fourth Amendment violation. On the other hand, the Majority finds unpersuasive the reasoning in State v. Eppinette, 838 So.2d 189 (La. Ct. App. 2003), State v. Pike, 532 S.E.2d 543 (N.C. Ct. App. 2000), Schenekl v. State, 30 S.W.3d 412 (Tex. Crim. App. 2000), and State v. Giles, 669 A.2d 192 (Me. 1996).3 These cases found, at a minimum, that random, suspicionless boat stops to conduct safety inspections do not violate the Fourth Amendment. I find the latter state court decisions, along with decisions from state and federal courts not cited by the learned Majority, more persuasive than Carr and Lecarros.
In Carr, the lake in question was not open to the sea. Carr, 878 N.E.2d at 1081 (). Thus, the court concluded that a fixed checkpoint was a reasonablealternative. See id. at 1079. In this case, however, Appellant was stopped while traveling on Lake Erie, which is traversed by the international boundary between the United States and Canada. See Definitive Treaty of Peace Between the United States of America and his Britannic Majesty, U.S.-U.K, art. II, Sept. 3, 1783, 8 Stat. 80. Thus, a boat could easily flee from the United States to Canada in order to evade the checkpoint proposed in Carr. Thus, I find Carr distinguishable from the case sub judice.
In Lecarros, the court found that the search in question violated Article I, section 9 of the Oregon Constitution. See Lecarros, 66 P.3d at 547. The court did not reach the issue of whether the search violated the Fourth Amendment of the United States Constitution. "There may be occasions when Article I, section 9, of the Oregon Constitution extends its protections when the Fourth Amendment does not." State v. Pierce, 333 P.3d 1069, 1075 (Or. Ct. App. 2014) (citations omitted). As the court in Lecarros never reached the question of whether the search violated the Fourth Amendment, I find it unpersuasive with respect to the issue presented in the case at bar.
Instead, I find persuasive the reasoning of those courts which have found that random, suspicionless boat stops to conduct safety inspections do not violate the Fourth Amendment. As the Court of Appeals of North Carolina stated, "boats do not display the same safety stickers and licenses as do motor vehicles, neither are all the regulated safety requirementsreadily able to be seen by an officer while the boat is moving." Pike, 532 S.E.2d at 549 (citations omitted); see Villamonte-Marquez, 462 U.S. at 589-590 (citation omitted); see also State v. Allen, 425 S.W.3d 753, 760 (Ark. 2013) (Danielson, J., dissenting) (). This is an important distinction between boats and...
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