Com. v. Wright, J. ( 2016 )

J-S62043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUNELL RAE WRIGHT
Appellant No. 113 MDA 2016
Appeal from the Judgment of Sentence December 17, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-SA-0000165-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 31, 2016
Appellant, Junell Rae Wright, appeals pro se from the judgment of
sentence entered in the Dauphin County Court of Common Pleas, following
her de novo summary appeal trial in which the court convicted Appellant of
two counts of operating an unsafe vehicle and imposed a fine in the total
amount of $50.00 plus costs of prosecution.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On June 18, 2015, Officer Robert Bennett observed Appellant driving a
Plymouth Duster in Derry, Pennsylvania. Officer Bennett noticed the tint on
the windows of Appellant’s vehicle was too dark, in violation of vehicle
inspection regulations. Officer Bennett conducted a traffic stop of
____________________________________________
1
75 Pa.C.S.A. § 4107(b)(2).
J-S62043-16
Appellant’s vehicle. During the traffic stop, Appellant acknowledged she was
aware the vehicle window tinting was illegal. Appellant refused to allow
Officer Bennett to perform a tint test on the windows. Upon investigating
Appellant’s vehicle, Officer Bennett estimated the window tint permitted
between twenty and fifty percent light transmittance, in violation of Section
67 Pa. Code 175.263(a) and (b) and 67 Pa. Code Table X, which regulate
sun screening on motor vehicle windows. Officer Bennett issued a citation to
Appellant with two charges of operating an unsafe vehicle under Section
4107(b)(2) of the Motor Vehicle Code, which proscribes the operation of a
vehicle that is in an unsafe condition or violates department regulations.
On July 30, 2015, a district magistrate found Appellant guilty of two
counts of operating an unsafe vehicle. On August 6, 2015, Appellant filed a
timely pro se notice of summary appeal requesting a de novo trial before the
Dauphin County Court of Common Pleas. On September 29, 2015, Appellant
failed to appear for a summary appeal trial; and the court convicted
Appellant of two counts of operating an unsafe vehicle and imposed a fine in
the total amount of $50.00 plus costs. On October 19, 2015, Appellant filed
a motion to reconsider the September 29th judgment of sentence. The court
granted Appellant’s motion and held a second summary appeal trial on
December 17, 2015, at which Appellant appeared pro se and testified.
At the December 17th summary appeal trial, Officer Bennett testified
about the details of the June 18, 2015 traffic stop. Officer Bennett also
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stated he had encountered many vehicles with windows tinted too darkly
during his ten years of experience as a police officer. The court convicted
Appellant of two counts of operating an unsafe vehicle and imposed a fine in
the total amount of $50.00 plus costs. On December 23, 2015, Appellant
filed a motion to reconsider the December 17th judgment of sentence.
Appellant filed a pro se notice of appeal on January 13, 2016. The
court denied Appellant’s December 23rd motion to reconsider on January 15,
2016. Appellant filed a Superior Court Criminal Docketing Statement and
attached a document entitled “Issue(s) to be Raised” on February 2, 2016.
On February 10, 2016, the court ordered Appellant to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b). On March 4, 2016, Appellant filed in this Court a pro se Rule
1925(b) statement, which differed from Appellant’s “Issue(s) to be Raised.”
Appellant filed an untimely Rule 1925(b) statement in the trial court on April
13, 2016.2
Appellant raises two issues for our review:
WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION
IN FINDING THAT THE ARRESTING OFFICER HAD
REASONABLE SUSPICION TO STOP…APPELLANT AND
PROBABLE CAUSE TO CITE APPELLANT FOR A VIOLATION
OF 75 PA.C.S.A. § 4107(B)(2)?
____________________________________________
2
Nothing in the record indicates Appellant served a copy of her March 4,
2016 and April 13, 2016 Rule 1925(b) statements on the trial court and the
Commonwealth.
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WHETHER THERE WAS INSUFFICIENT EVIDENCE TO FIND
APPELLANT GUILTY OF 75 PA.C.S.A. § 4107(B)(2) BASED
ON AN ALLEGED WINDOW TINT VIOLATION?
(Appellant’s Brief at 4).
In her first issue, Appellant claims the Commonwealth did not
demonstrate Officer Bennett had reasonable suspicion to stop Appellant’s
vehicle for illegal window tint. Appellant avers the Commonwealth offered
inadequate testimony concerning Officer Bennett’s background to justify his
reasonable suspicion to stop Appellant’s vehicle. Appellant contends the
Commonwealth should have presented additional evidence to establish
Officer Bennett’s experience and/or training in inspecting vehicles and
investigating vehicle equipment violations.
In her second issue, Appellant argues the evidence was insufficient at
the summary appeal trial to support the court’s convictions. Appellant
maintains her vehicle had a valid inspection sticker at the time of the traffic
stop, which should have provided a presumption that her vehicle complied
with inspection requirements. Appellant submits Officer Bennett testified he
could see through the windows of Appellant’s vehicle; Officer Bennett stated
he saw Appellant’s silhouette through the vehicle windows. Appellant also
asserts her vehicle is exempt from window tint regulation because the
regulation applies to vehicles made in 1998 or later and Appellant’s vehicle
was made in 1993. Appellant alleges she has owned her vehicle for sixteen
years, and the tint was on the windows when she bought it. Appellant
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concludes this Court should reverse the convictions. We disagree with
Appellant’s contentions.
With respect to a sufficiency claim:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
“Traffic stops based on reasonable suspicion: either of criminal activity
or a violation of the Motor Vehicle Code under the authority of Section
6308(b) must serve a stated investigatory purpose.” Commonwealth v.
Feczko, 10 A.3d 1285, 1291 (Pa.Super. 2010), appeal denied, 611 Pa. 650,
25 A.3d 327 (2011). “Mere reasonable suspicion will not justify a vehicle
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stop when the driver’s detention cannot serve an investigatory purpose
relevant to the suspected violation.” Id. “Where a vehicle stop has no
investigatory purpose, the police officer must have probable cause to
support it.” Commonwealth v. Enick, 70 A.3d 843, 846 (Pa.Super. 2013),
appeal denied, 624 Pa. 671, 85 A.3d 482 (2014). “Probable cause is made
out when the facts and circumstances which are within the knowledge of the
officer at the time of the [stop], and of which he has reasonably trustworthy
information, are sufficient to warrant a [person] of reasonable caution in the
belief that the suspect has committed or is committing a crime.”
Commonwealth v. Thompson, 604 Pa. 198, 203, 985, A.2d 928, 931
(2009). “Probable cause does not require certainty, but rather exists when
criminality is one reasonable inference, not necessarily even the most likely
inference.” Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa.Super.
2004), appeal denied, 582 Pa. 672. 868 A.2d 1198 (2005).
As a preliminary matter, however, we observe that to preserve claims
for appellate review, “appellants must comply whenever the trial court
orders them to file a Statement of [Errors] Complained of on Appeal
pursuant to [Rule] 1925. [As a general rule, a]ny issues not raised in a
[Rule] 1925(b) statement will be deemed waived.” Commonwealth v.
Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (quoting
Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998)).
Likewise, an appellant’s concise statement must identify the errors to be
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addressed on appeal with sufficient specificity. Commonwealth v.
Dowling, 778 A.2d 683 (Pa.Super. 2001). A Rule 1925(b) statement that is
too vague for the trial court to identify and address the issue(s) the
appellant wishes to raise on appeal can result also in waiver.
Commonwealth v. Reeves, 907 A.2d 1 (Pa.Super. 2006), appeal denied,
591 Pa. 712, 919 A.2d 956 (2007).
Pennsylvania Rules of Appellate Procedure, Rule 1925(b) provides in
relevant part:
Rule 1925. Opinions in Support of Order
* * *
(b) Direction to file statement of errors complained
of on appeal; instructions to the appellant and the
trial court.—If the judge entering the order giving rise to
the notice of appeal (“judge”) desires clarification of the
errors complained of on appeal, the judge may enter an
order directing the appellant to file of record in the trial
court and serve on the judge a concise statement of the
errors complained of on appeal (“Statement”).
(1) Filing and service.−Appellant shall file of record the
Statement and concurrently shall serve the judge. Filing of
record and service on the judge shall be in person or by
mail as provided in Pa.R.A.P. 121(a) and shall be complete
on mailing if appellant obtains a United States Postal
Service Form 3817, Certificate of Mailing, or other similar
United States Postal Service form from which the date of
deposit can be verified in compliance with the
requirements set forth in Pa.R.A.P. 1112(c). Service on
parties shall be concurrent with filing and shall be by any
means of service specified under Pa.R.A.P. 121(c).
(2) Time for filing and service.−The judge shall allow the
appellant at least 21 days from the date of the order’s
entry on the docket for the filing and service of the
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Statement. Upon application of the appellant and for good
cause shown, the judge may enlarge the time period
initially specified or permit an amended or supplemental
Statement to be filed. Good cause includes, but is not
limited to, delay in the production of a transcript necessary
to develop the Statement so long as the delay is not
attributable to a lack of diligence in ordering or paying for
such transcript by the party or counsel on appeal. In
extraordinary circumstances, the judge may allow for the
filing of a Statement or amended or supplemental
Statement nunc pro tunc.
(3) Contents of order.—The judge’s order directing the
filing and service of a Statement shall specify:
(i) the number of days after the date of entry of
the judge’s order within which the appellant must file
and serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the
judge pursuant to paragraph (b)(1);
(iv) that any issue not properly included in the
Statement timely filed and served pursuant to
subdivision (b) shall be deemed waived.
Pa.R.A.P. 1925(b)(1)-(3). For many years, full compliance with a court’s
Rule 1925(b) order was strictly mandatory; but later revisions in the rule
now provide certain avenues for relief from waiver in the criminal appeal
context. Pa.R.A.P 1925(c); Commonwealth v. Hopfer, 965 A.2d 270, 272
(Pa.Super. 2009) (enumerating extraordinary circumstances, such as where
counsel fails to file court-ordered Rule 1925(b) statement, which would
warrant remand for filing of statement, based upon per se ineffectiveness of
counsel). See also Commonwealth v. Mitchell, 986 A.2d 1241, 1244 n.4
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(Pa.Super. 2009) (noting counsel’s failure to file court-ordered Rule
1925(b) statement requires remand for filing of concise statement nunc pro
tunc under revised Rule 1925(c)(3)); Commonwealth v. Scott, 952 A.2d
1190, 1192 (Pa.Super. 2008) (recognizing relaxed strict application of Lord
under recent amendment to Rule 1925 and stating “the complete failure by
counsel to file a Rule 1925(b) statement, as ordered, is presumptively
prejudicial and clear ineffectiveness”). Additionally, this Court may address
the merits of a criminal appeal where the appellant failed to file a timely
Rule 1925(b) statement, if the trial court had adequate opportunity and
chose to prepare an opinion addressing the issues raised on appeal. See
generally Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2008) (en
banc) (addressing post-amendment Rule 1925 and ramifications regarding
untimely Rule 1925(b) statement).
Instantly, Appellant did and continues to proceed pro se in this
summary case. Appellant filed a pro se notice of appeal on January 13,
2016. On February 2, 2016, Appellant filed her Superior Court Criminal
Docketing Statement and attached a document entitled “Issue(s) to be
Raised.” The court ordered Appellant on February 10, 2016, to file of record
and serve on the judge and the Commonwealth a Rule 1925(b) statement
within twenty-one days. See Pa.R.A.P. 1925(b)(3)(i)-(iii). The court’s order
also stated that any issue not raised in the Rule 1925(b) statement would be
deemed waived. See Pa.R.A.P. 1925(b)(3)(iv). Thus, the court’s order
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triggered Appellant’s obligation to file her statement of record and serve it
on the trial court and the Commonwealth by March 2, 2016. See id. On
Friday, March 4, 2016, Appellant filed a pro se Rule 1925(b) statement in
this Court that differed from the Superior Court Criminal Docketing
Statement and attached “Issue(s) to be Raised” she had previously filed.
Appellant later filed another Rule 1925(b) statement in the trial court on
April 13, 2016. Nothing in the record indicates Appellant served a copy of
either Rule 1925(b) statement on the trial court and the Commonwealth.
Moreover, Appellant appeared pro se throughout her summary case, so she
alone was responsible for filing her court-ordered Rule 1925(b) statement in
a timely manner. Appellant failed to comply with the Rule 1925(b) order.
Therefore, she waived her issues on appeal.
Even if Appellant had properly preserved her issues, we would deny
relief based on the opinion of the Honorable Lawrence F. Clark, Jr., who was
only able to refer to Appellant’s Superior Court Criminal Docketing
Statement and attached “Issue(s) to be Raised.” (See Trial Court Opinion,
filed April 21, 2016, at 1-2, 4-6) (finding: as prefatory matter, Appellant
waived issues on appeal because Appellant’s “Issue(s) to be Raised” in her
docketing statement lacked specificity and failed to comply with Rule
1925(b); to extent Appellant appears to challenge reasonable
suspicion/sufficiency of evidence, Officer Bennett testified credibly; Officer
Bennett stated he encountered many vehicles with windows tinted too darkly
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during his ten years as police officer; Officer Bennett stated that before he
stopped Appellant’s vehicle, he observed window tint on Appellant’s vehicle
was well below regulatory 70% light transmittance threshold; after Officer
Bennett pulled Appellant over, Appellant refused to permit Officer Bennett to
test her vehicle window tint; Officer Bennett estimated window tint to permit
between 20% and 50% light transmittance; Officer Bennett issued citation
to Appellant under Section 4107(b)(2) of Motor Vehicle Code for violations of
67 Pa.Code 175.263(a) and (b); Appellant testified she had attempted to
obtain exemption for her vehicle window tint from PennDOT for last four
years, which indicated she was aware her vehicle window tint was illegal;
officer had reasonable suspicion to stop Appellant and evidence was
sufficient to convict her of violating Section 4107(b)(2) of Motor Vehicle
Code). Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2016
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Circulated 10/06/2016 04:20 PM
COMMONWEALTH OF IN THE COURT OF COMMON PLEAS
PENNSYLVANIA, DAUPi.HIN COUNTY, PENNSYLVANIA
Appellee
vs. : NO. 165-SA-2015
JUNELL RAE WRIGHT,
Appellant/Defendant
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
CLARK, SJ., April 2l5t, 2016.
In this summary appeal· case, Junell Rae Wright (hereinafter "Defendant") appeals from
this Court's Order following a hearing held on December 17, 2015, finding the Defendant guilty
of two counts of 75 Pa.C.S.A. § 4107(b)(2).
The basis for the appeal has been expressed by the Defendant in an "Issue(s) To be Raised:"
as follows1:
1. PennDOT refused to issue medical waiver as allowed in§ 4524(e).
2. Police are to be following § 4524(e) for tint violations as shown is [sic] (2) separate
DUI/Drug related arrestis) from York Co. PA before Superior Court.
3. PennDOT may not issue inspection sticker to ANY vehicle in violation as specificed in
§4727(b).
4. Inspection code still has tint.
5. My vehicle is grandfathered in per PennDOT bulletin(s).
6. In Commonwealth v. Brubaker it was stated regulation is being incorrectly applied as a
safety standard and is unreasonable interpretation of 4524(e)(l).
7. Officer did not have enough reasonable suspcion [sic].
8. Tint meters not regulated in statute.
I
This Court notes that Defendant's Issues To be Raised is attached to the Superior Court of Pennsylvania Criminal
Docketing Statement filed February 2, 2016. Defendant's Issues To be.Raised was filed before this Court's 1925(b)
Order which was filed on February 10, 2016.
1
9. FMVSS 205 is a manufacture standard. It is for driver and occupant safety not police safety
or outside visibility.2
This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of
Appellate Procedure 1925(a).
FACTUAL HISTORY
On June 18, 2015, Officer Robert Bennett (''Officer Bennett"), employed by the Derry
Township Police Department3 conducted a traffic stop on the Defendant in the 300 block of North
Lingle Avenue, Derry Township, Dauphin County.4 Officer Bennett testified that as the Defendant
passed his vehicle, he took notice that her window tinting on her Plymouth Duster was "well below
the 70 percent that's required by the inspection regulation, title 67." Id at 4: Officer Bennett
testified that the Defendant was aware that her window tinting was illegal and that the Defendant
refused to allow the Officer to use a TMl 00 tint meter to test the percentage of the windows. Id at
. ,
5. The Defendant refused to put the window up or any of the windows down so the Officer could
conduct a tint test on the windows. Id. Officer Bennett testified that during his ten years as a
police officer, he has experienced many vehicles that were tinted too darkly. Id.. Officer Bennett
testified that it was clear to him that the window tint was well below the 70 percent and Officer
Bennett testified that, in his estimation, the window tint was somewhere between 20 and 50
percent. Id. Officer Bennett issued a citation for unlawful activities Section 4701(b)(2) using the
67 Pa. Code§ I 75.263 (a) and (b) testifying that the front door, rear door, and rear windows of the
I
vehicle were all tinted. Id. at 6. As such, Officer Bennett ~barged her for violation of Pa. Code §
175.263 under two sections (a) and (b ), one for being the doors and one for being the rear window
2 Defendant's Issues To be Raised filed February 2, 2016 attached to Superior Court of Pennsylvania Criminal
Docketing Statement.
3 Officer Bennett has been deployed as a police officer for ten years.
4 Transcript of Proceedings, 3,4 Summary Appeal Hearing, December 17, 2015 (hereinafter "N.T. _")
2
of her vehicle. Id. On cross-examine, the Defendant, 5 attempted to elicit from Officer Bennett
that Officer Bennett did not have a reasonable suspicion to pull her over. 6 Id. at 8. However, Officer
Bennett testified that he knew that her windows were dark enough when her vehicle passed his.
Id. at 8.
The Defendant elected to testify on her own behalf. · Defendant began testifying about this
being a PennDOT problem with PennDOT failing to comply with Section 4524(e)(3)(iii)(a) and
(b) and how she should have been issued a certificate for exemption. Id. at 11. However, when
asked whether the Defendant had a certificate for exemption, she clearly evades the answer and
instead states "I've applied. Been fighting with them [PennDOT] for years over this." Id. at 12,13.
And when asked again if she has a certificate for exemption, she answers "PennDOT absolutely
says there's no such thing." Id. at 13. Finally, the Defendant testified that she should have been
grandfathered in because her vehicle is from 1993 and that her vehicle has been tinted before she
bought it. Id. at 13, 14. However, the Court responded that' "it doesn't conform because you just
told me you've been fighting with PennDOT for four years to get an exemption, and you don't
have one." Id. at 14.
DISCUSSION
It is well-established that "Appellant's concise statement must properly specify the error
to be addressed on appeal." Commonwealth v. Hansley, 24 A.3d 410,415 (Pa. Super.2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (citation omitted). "[T]he Rule 1925(b) statement must
be specific enough for the trial court to identify and address the issues an appellant wishes to raise
on appeal." Id. Further, the Superior Court may find a waiver where a concise statement is too
5
The Defendant represented herself pro se at the summary appeal hearing.
6
The Defendant also attempted to ask questions about a "nonconorming tint waiver," and PennDOT's regulatory
reviews. See N.T. 7-9.
3
vague. Id. "When a comi has to guess what issues an appellant is appealing, that is not enough for
meaningful review." Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.Super.2001) (citation
omitted). A Concise Statement which is too vague to allow the court to identify the issues raised
on appeal is the functional equivalent of no Concise Statement at all." Id. at 686-87.
In the instant matter, the pro se Defendant has raised a number boilerplate claims that fail
to identify any specific issues on appeal. Instead, Defendant proceeds to 'list' numerous problems
that he had with the trial court. Therefore, Appellant has waived any issues she may have had on
appeal in this matter by failing to identify any specific issue on appeal. See Pa.R.A.P. 1925(b)(4);
Commonwealth v. Hansley, 24 A.3d 410, at 415 (Pa.Super.2011).
If,however, this Honorable Court finds that Defendant's issues to be raised were sufficient,
Defendant should be found guilty of two counts of 75 Pa.C.S.A. § 4107(b)(2)7. In essence, the
Defendant argues that the Commonwealth does not meet its burden of showing that Defendant is
guilty of Section 4107(b )(2). The Defendant in the instant matter, relies heavily on Commonwealth
v. Brubaker, 5 A.2d 261 (Pa.Super.2010). However, Defendant's reliance on Brubaker is wholly
inapposite as the appellant in Brubaker was charged with violating Section 4524(e)(l) while the
Defendant here was charged with violating Section 4107(b)(2). The reasons as set forth in
Commonwealth v. Houck, 2016 WL 379561, No. 489 WDA 2015 (Super. 2016) are persuasive
and are stated below8:
7
This Court believes that Defendant's argument can best be described as set forth in her 61" issue to be raised and is
stated as follows: "In Commonwealth v. Brubaker it was stated regulation is being incorrectly applied as a safety
standard and is unreasonable interpretation of 4524(e)(l)."
8
This Court notes that Houch was a non-precedential decision. However, Superior Court Internal Operating
Procedures, 42 Pa.C.S.A. § 65.37 (A) provides that "[a]n unpublished memorandum decision shall not be relied
upon or cited by a Court or a party in any other action or proceeding, except that such a memorandum decision may
be relied upon or cited (1) when it is relevant under the doctrine of law of the case, res judiciata, or collateral
estoppel." As such, this Court finds the reasoning set forth in Houch' to be persuasive.
4
Our holding in Brubaker does not inure to Houck's benefit, as the
appellant in Brubaker, unlike Houck in the instant case, was not charged with
violating section 4107(b )(2). Rather, the appellant in Brubaker was charged
under section 4524(e)(l), which does not prohibit a person from driving a
· motor vehicle which possesses sun screening material that reduces
transmittance of light to below any particular standard. Brukaer, 5 A.3d at
264-65. Indeed, the court in Brubaker seemingly suggested that, given the
officer's ability to see into the appellant's vehicle, the proper charge would
have been under section 175.67{d)(4), which specifically references Table X
and its specific requirements for light transmittance. See Brubaker; 5 A.2d
at 264. Unlike the appellant in Brubaker, Houck was charged with violating
section 4107(b )(2), which prohibits a person from operating a motor vehicle
in violation of PennDOT regulations, including the 70% light transmittance
standard referenced in section 175.67(d)(4) and Table X. As such, Brubaker
is inapposite.
Here, section 4524(e)(l) is more specific than section 4107(b)(2). The
former regulates window tint "which does not permit a person to see or view
the inside of the vehicle through the windshield." 75 Pa.C.S.A. § 4524(e)(l).
Contrarily, section 4107(b)(2) regulates all types of equipment violations.
Indeed, because of the broad application of section 4107(b)(2), it contains
elements outside of the more specific section 4524(e)(l), and a violation of
section 4107(b )(2) does not necessarily involve a violation of section
4524(e)(l). See Brubaker, 5 A.2d at 264-65 (stating that "the language of
[section 4524(e)(I)] does not prohibit a person from driving a motor vehicle
which possesses sun screening material that 'reduces the transmittance of
light below 70%. '"), Indeed, the Commonwealth can prove an equipment
violation if it shows a window tint that does perinit a person to see or view
the inside of the vehicle through the windshield, but does not meet the light
transmittal requirements of Table X. See id. at 265 (stating that "[ section
4524(e)(l)] also does not prohibit a person from driving a motor vehicle
which possesses sun screening material that reduces the transmittance oflight
to below a standard to be determined and published by PennDOT.").
therefore, we conclude that, because the general statute at section 4107(b )(2)
is not encompassed by the more specific statute at section 4524(e)(l), there
is no bar against the Commonwealth pursuing, Houck under the general
statute at section 4107(b )(2).
In the instant matter, Officer Bennett testified" that he noticed the window tinting on
Defendant's Plymouth Duster to be well-below the 70 percent that is required by the vehicle
statute. As such, the officer charged the Defendant under Section 4107 of the Vehicle Code as
9
This Court found Officer Bennett's testimony to be credible.
5
opposed to the more stringent Section 4524. Section 4107(b)(2) provides that is unlawful for any
person to "operate, or cause or permit another person to operate, on any highway in this
Commonwealth any vehicle or combination which is not equipped as required under this part of
under department regulations or when the driver is in violation of department regulations or the
vehicle or combination is otherwise in an unsafe condition or in violation of department
I
regulations." Just like the scenario in Houck (whereas the befendant was charged with violation
of Section 4107(b )(2)), Defendant, in the instant matter is faced with a similar situation. Defendant
was stopped by an Officer who observed that her windows were equipped with window tint (also
known as "sun screening"). Officer continued to pull her over and the Defendant refused to have
her windows tested. Instead of impounding the vehicle and causing major inconvenience in order
to test the window tint, the Officer issued a citation under Section 4107(b )(2). The Officer!" clearly
testified that he estimated the window tint to be between 20 and 50 percent. And the Defendant
herself even admitted that she was aware that her windows were illegal as she was trying to get an
I
exemption from PennDOT for the last four years.11 As Defendant's vehicle did not meet the light
transmittal requirements, and the Defendant herself knew her window tinting was illegal, the
Defendant is guilty of violating Section 4107(b)(2) of the vehicle code.
10
The Officer has been a police officer for ten years and has been involved with numerous instances where window
were tinted too darkly.
11
Defendant argues that PennDOT should have issued her an exemption and that because they did not, she should
not have been found guilty. However, this Court notes that if Defendant has a problem with the issuance of an
exemption from PennDOT, this is not the proper jurisdiction to bring this matter.
6
For the foregoing reasons, it is believed that our December 17 i 2015 Order finding the
Defendant guilty of Section 4107 of the vehicle code was properly entered.
ISSUED AT HARRISBURG, the date first above written.
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Distribution:
Stephen Mcclendon, Esquire- District Attorney's Office
Joseph Cardinale, Esquire- District Attorney's Office
Junell Rae Wright
Jttdges' Csam..aen; UegaJ.:1-Klsmiek
Court Administration- Deb FreemaThd})
Court Administration - Bobby Sissock
Honorable Lawrence F. Clark, Sr.~
-Judges' Chambers-Megan KlemiclGff
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