J. S33044/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. : No. 413 MDA 2019

:

NATHANIEL HOMM GONZALEZ :

Appeal from the Order Entered February 6, 2019,

in the Court of Common Pleas of Berks County

Criminal Division at No. CP-06-CR-0003024-2018

BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 09, 2019

The Commonwealth appeals from the February 6, 2019 order entered 

by the Court of Common Pleas of Berks County granting Nathaniel Homm 

Gonzalez’s (“appellee”) motion to suppress evidence. After careful review, we 

affirm.

The trial court set forth the following factual history:

At approximately 6:30 P.M. on June 26, 2018, 

West Reading Police Officer Chad Marks was 

conducting a routine patrol in the area of 

South Seventh Avenue and Spruce Street in the 

Borough of West Reading, Berks County. 

Officer Marks observed a silver Honda Accord drive 

past him with fairly dark tint on the rear window that 

was peeling. Officer Marks could see inside the 

vehicle through the tinted rear window. He began 

following the vehicle, during which time he observed 

a “rope-type of configuration” hanging from the 

rearview mirror as well as a flag [that] he believes was 

“suctioned to the windshield.” . . . Based on his 
J. S33044/19

- 2 -

observation of the rope and flag, Officer Marks 

testified that he “was concerned there could be a line 

of sight issue.” Officer Marks stated that the rope was 

“partially in front of the area the driver would need to 

look to make a right-hand turn,” and he believed the 

flag would impair the driver’s view. After driving 

behind the vehicle FOR two or three blocks he initiated 

a traffic stop, “to advise the driver about those items.” 

On cross[-]examination, he stated that the rear 

window tint was also a reason for stopping the vehicle, 

and stated, “I believe [the tint] would be considered 

illegal.” He intended only to provide a warning to the 

driver, not a citation.

Officer Marks exited his patrol car and approached the 

driver’s side of the Accord. The vehicle was driven by 

Edwin Gonzalez ([appellee’s] brother) and [appellee] 

was in the front passenger seat. The vehicle was 

owned by [appellee’s] friend. Officer Marks explained 

why he stopped the vehicle, and asked the driver for 

his identification and where he was travelling. 

[Appellee] was visibly nervous during the traffic stop. 

His stomach was pulsating, and he looked sick and like 

he might cry. Officer Marks asked [appellee] if he was 

okay, and [appellee] said that he was. Officer Marks 

then asked the driver if there were any guns or drugs 

in the car that he should be aware of. At that, 

[appellee] looked at the center console and said, “It’s 

in there.” [Appellee] then removed drugs from the 

center console and handed them to Officer Marks.

[Appellee] was charged with possession with intent to

deliver a controlled substance and possession of a 

controlled substance.[

1] The driver was not charged 

with or issued a written warning for violating 

75 Pa.C.S.[A.] § 4524 relating to windshield 

obstructions and window tint.

. . . .

Officer Marks testified that the “rope type of 

configuration” was “hard to describe” and that he did 

 

1 35 P.S. § 780-113(a)(30) and (16), respectively.
J. S33044/19

- 3 -

not know what, exactly, it was. He offered the 

following descriptions of the rope: it hung down two 

to three inches from the rearview mirror; it was a 

single, small rope that was thicker than a shoe string; 

it was “maybe not” as wide as [a] parking pass, and 

overall was no bigger than a parking pass. Edwin 

Gonzalez, the driver of the vehicle, described the rope 

as “some type of knot thing” hanging from the 

rearview mirror.

Officer Marks testified that the flag was approximately 

five by five inches and was located “one-half to 

three-quarters” of the way up the front windshield on 

the passenger side, near the “A” pillar. He believes it 

was the flag of Puerto Rico. Officer Marks indicated 

that the flag was “suctioned to the window” and 

“suction-cupped to the front windshield.”

Trial court findings of fact & conclusions of law, 2/6/19 at 1-3 (headings and 

endnotes omitted).

On September 28, 2018, appellee filed an omnibus pretrial motion in 

which he sought to suppress evidence from the traffic stop. The trial court 

held a hearing on November 7, 2018, and entered an order granting appellee’s 

motion on February 6, 2019.

The Commonwealth filed a notice of appeal to this court on March 8, 

2019. In its notice of appeal, the Commonwealth certified that the trial court’s 

order either terminated or substantially handicapped its ability to prosecute 

this case. See Commonwealth v. James, 69 A.3d 180, 185 (Pa. 2013), 

citing Commonwealth v. Dugger, 486 A.2d 382, 386 (Pa. 1985). The trial 

court did not order the Commonwealth to file a concise statement of errors 

complained of on appeal. On March 12, 2019, the trial court filed an opinion 
J. S33044/19

- 4 -

pursuant to Pa.R.A.P. 1925(a), in which it incorporated its February 6, 2019 

statement of findings of fact and conclusions of law.2

The Commonwealth raises the following issue for our review:

Did the trial court err in suppressing evidence where 

Officer Marks had probable cause to conduct a traffic 

stop for a violation of the Motor Vehicle Code, 

specifically windshield obstructions under 

75 Pa.C.S.A. § 4524?

Commonwealth’s brief at 4 (full capitalization omitted).

Our standard of review for Commonwealth appeals of orders granting 

suppression motions is as follows:

When the Commonwealth appeals a suppression 

order, we consider only the evidence from [appellee’s] 

witnesses together with the portion of the 

Commonwealth’s evidence which is uncontroverted. 

Our standard of review is limited to determining 

whether the suppression court’s factual findings are 

supported by the record, but we exercise de novo

review over the suppression court’s conclusions of 

law. Further, appellate courts are limited to reviewing 

only the evidence presented at the suppression 

hearing when examining a ruling on a pre-trial motion 

to suppress. It is within the suppression court’s sole 

province as factfinder to pass on the credibility of 

witnesses and the weight to be given their testimony.

Commonwealth v. Harris, 176 A.3d 1009, 1018 (Pa.Super. 2017) 

(quotation marks and citations omitted).

 

2 Appellee did not file a brief with this court.
J. S33044/19

- 5 -

Here, the Commonwealth contends that Officer Marks possessed the 

requisite reasonable suspicion required to initiate a traffic stop. 

(Commonwealth’s brief at 10.) For the following reasons, we disagree.

We first turn to the rope configuration that was affixed to the rear view 

mirror. Objects hanging from the rear view mirror are regulated by 

Section 4524(c) of the Motor Vehicle Code, which provides as follows:

(c) Other obstruction.--No person shall drive any 

motor vehicle with any object or material hung 

from the inside rearview mirror or otherwise 

hung, placed or attached in such a position as 

to materially obstruct, obscure or impair the 

driver’s vision through the front windshield or 

any manner as to constitute a safety hazard.

75 Pa.C.S.A. § 4524(c). 

Our supreme court held that conclusory statements by police officers 

that objects hanging from a rearview mirror obstruct a driver’s view are 

“insufficient to allow the suppression court to assess the reasonableness of 

the officer’s belief that a [driver] was obstructed, let alone materially

obstructed, as the statute requires.” Commonwealth v. Holmes, 14 A.3d 

89, 98 (Pa. 2011) (emphasis in original), citing Terry v. Ohio, 392 U.S. 1, 

12, 22 (1968). Rather, the Commonwealth must produce evidence in such 

cases that a material obstruction was present.

Otherwise, as noted by our supreme court,

there are myriad objects which drivers commonly 

hang from their rearview mirrors. Air fresheners; 

parking placards; mortarboard tassels; crosses; 

rosary beads; medallions of St. Christopher, the 
J. S33044/19

- 6 -

patron saint of travel; and rabbits’ feet are but a few.

It is not illegal for a driver to hang such items from 

his or her rearview mirror, so long as the items do not 

materially obstruct the driver’s view. The legislature 

could have written Section 4524(c) to prohibit a driver 

from hanging any object from the vehicle’s rearview 

mirror, or it could have prohibited hanging objects 

that obstruct a driver’s view to any degree, but it did 

not; rather, it prohibited only material obstructions.

Were this Court to conclude that an officer’s bare 

testimony that he saw an object hanging from a 

rearview mirror which obstructed the driver’s view, 

without any additional testimony or other evidence 

supporting the officer’s conclusion that the object 

materially obstructed the driver’s view, was sufficient 

to demonstrate reasonable suspicion to 

constitutionally support the intrusion of a vehicle stop, 

we would obviate the suppression court’s role in 

ensuring there is an objectively reasonable basis for 

the vehicle stop, and expose every law-abiding 

motorist who hangs an object from his or her rearview 

mirror to a potentially unwarranted intrusion. See 

Terry.

Holmes, 14 A.3d at 98-99.

Here, Officer Marks’ testimony was insufficient to support the conclusion 

that the object materially obstructed the driver’s view. The record reflects 

that Officers Marks’ testimony about any potential obstruction caused by the 

rope configuration is limited to, “I could see that this was partially in front of,

you know, where the driver would need to look to the right of him.” (Notes 

of testimony, 11/7/18 at 7.) Accordingly, we find that the trial court’s factual 

findings are supported by the record and that the trial court did not err when 

it concluded that Officer Marks’ observation of the rope configuration hanging 
J. S33044/19

- 7 -

from the rearview mirror did not provide him with the requisite reasonable 

suspicion required to initiate a traffic stop.

We next turn to the flag Officer Marks observed attached to the 

windshield. Applying the same standard our supreme court used in Holmes

to address Section 4524(c), we find that Officer Marks did not possess 

reasonable suspicion to initiate a traffic stop for a violation of Section 4524(a), 

which provides, in relevant part:

(a) Obstruction on front windshield.--No person 

shall drive any motor vehicle with any sign, 

poster or other nontransparent material upon 

the front windshield which materially obstructs, 

obscures or impairs the driver’s clear view of the 

highway or any intersecting highway except an 

inspection certificate . . . .

75 Pa.C.S.A. § 4524(a).

Here, the trial court made the following determination pertaining to the 

flag:

The evidence presented at the suppression hearing 

was not sufficient to allow [the trial court] to fully, 

independently assess whether [Officer Marks’] 

suspicion was reasonable absent additional evidence 

of the size of the windshield, whether the flag was 

suctioned directly and securely to the windshield or 

was dangling and swaying from a hook, the distance 

between the “A” pillar and the flag, the actual size of 

the flag[Endnote viii], or whether the flag was 

transparent or cloth.

[Endnote viii] The [trial] court recognizes 

that Officer Mark[s’] testimony that the 

flag was 5x5 inches was an 

approximation, but it is not convinced that 

the flag was square as opposed to the 
J. S33044/19

- 8 -

traditional rectangular shape (3x5 or 

4x6).

Trial court findings of fact & conclusions of law, 2/6/19 at 6. 

We also note that Officer Marks did not provide any testimony as to 

whether the flag materially obstructed the driver’s view. Rather, he provided 

the following testimony: 

Well, [the flag,] amongst the other things, drew my 

attention because I was concerned that there would 

be a line-of-sight issue. Obviously, we have four-way 

intersections in the Borough and we’ve had a lot of 

accidents because of people having things hanging 

from their mirrors and windshields and they’re unable 

to see correctly.

Notes of testimony, 11/7/18 at 9. Based on the evidence of record, we find 

that the trial court did not err when it concluded that Officer Marks’

observation of the flag affixed to the windshield did not provide him with the 

reasonable suspicion required to initiate a traffic stop.

Finally, we turn to the tint observed by Officer Marks in the rear window. 

Window tint is regulated by Section 4524(e) of the Motor Vehicle Code, which 

provides, in relevant part: “No person shall drive any motor vehicle with any 

sun screening device or other material which does not permit a person to see 

or view the inside of the vehicle through the windshield, side wing or side 

window of the vehicle.” 75 Pa.C.S.A. § 4524(e).3

 

3 75 Pa.C.S.A. § 4524(b) addresses obstructions on side and rear windows. 

This subsection does not reference rear window tint.
J. S33044/19

- 9 -

At the suppression hearing, Officer Marks testified that he observed a 

“fairly dark tint” on the rear window of the car that was starting to peel. 

(Notes of testimony, 11/7/18 at 6.) Officer Marks further testified that he 

could see through the rear window in order to observe the rope configuration 

and flag. (Id. at 5-6; 19.) Further, Officer Marks stated that the tint was not 

the sole reason that he initiated the traffic stop, but that it could be a reason 

to do so. (Id. at 20.)

Based on the plain language of the statute, we find that the trial court’s 

legal conclusions are free of legal error, as the tint on the rear window did not 

provide Officer Marks with the requisite reasonable suspicion required to 

initiate a traffic stop. Indeed, the statute only regulates the use of tint on 

windshields, side wings, or side windows of vehicles. See 75 Pa.C.S.A. 

§ 4524(e). Moreover, even if Section 4524(e) regulated tint on rear windows, 

Officer Marks still would not possess reasonable suspicion to initiate a traffic 

stop, as he testified that he was able to see through the rear window—

indicating that the tint on the rear window was in compliance with the Motor 

Vehicle Code. See id.

Accordingly, we find that the trial court did not err when it granted 

appellee’s motion to suppress evidence.
J. S33044/19

- 10 -

Order affirmed. 

Ott, J. joins in this Memorandum.

Lazarus, J. concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2019