J-E01006-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

FREDERICK W. KARASH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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

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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.