Com. v. Sherbaugh, J. ( 2018 )

J-A13033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES R. SHERBAUGH, :
:
Appellant : No. 1511 WDA 2017
Appeal from the Judgment of Sentence September 28, 2017
in the Court of Common Pleas of Armstrong County,
Criminal Division at No(s): CP-03-SA-0000044-2017
BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 30, 2018
James R. Sherbaugh (“Sherbaugh”) appeals from the judgment of
sentence entered following his conviction of the summary offense of failing to
register a vacant building. See Apollo Borough Ordinance No. 272-16, Article
4(a) (the “Ordinance”). We affirm.
The trial court set forth the relevant underlying facts as follows:
[Sherbaugh] lives in Blairsville with his wife. He and his wife
are co-owners of a house located at 622 North Second Street in
Apollo Borough (hereinafter referred to as 622). Neither
[Sherbaugh] nor his wife have ever resided there. Sometime prior
to April 2016, [Sherbaugh’s] son lived there for a time without
paying rent. Otherwise, no one has lived there on a day-in[,] day-
out basis.
***
[On April 20, 2017, Sherbaugh] was charged with a violation
of Apollo Borough Ordinance 272-16, more specifically, Article
4(a) thereof entitled Registration, which reads as follows:
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An owner shall register a vacant or abandoned
property with the Borough Manager or designee, on a
form or forms provided by the Borough and pay the
appropriate registration fee.[FN]
The definition of a vacant building is found in Article 2 of the
Ordinance pertaining to definitions, which reads as follows:
Vacant building: a property or structure, or
portion thereof, that is unoccupied for more than sixty
(60) days or has been the subject of (i) a mortgage
foreclosure action or notice; (ii) a bankruptcy sale or
notice; (iii) a delinquent tax sale or notice, or (iv) a
mortgage foreclosure action where the title to the
property has been retained by the beneficiary of a
deed or trust involved in the foreclosure or transferred
under a deed in lieu of foreclosure/sale.
The term vacant is also defined by the Ordinance. The
definition reads as follows:
Vacant: a building or structure, or portion
thereof, shall be deemed to be vacant if no person or
persons [currently] conducts a lawfully licensed
business there, or lawfully resides in or lives in any
part of the building as the legal or equitable owner(s)
or tenant occupant[(s)] [] or owner-occupants or
tenant(s), on a permanent non-transient basis.
***
In the [police] citation, the Borough has accused
[Sherbaugh] of failing to register 622 as a vacant property with
the borough manager, as required by Article 4 of the Ordinance.
___________________________________________________
Article 4(e) requires the registration to be made within 180
[FN]
days of [the] date that the property becomes vacant.
Trial Court Memorandum, 9/28/17, at 1-2 (emphasis omitted, footnote in
original, paragraphs reordered).
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On June 13, 2017, Sherbaugh was found guilty of violating the
Ordinance by a magisterial district judge, and ordered to pay a fine of
$500.00. Sherbaugh appealed the decision to the Armstrong County Court of
Common Pleas. Following a bench trial, the trial court found Sherbaugh guilty
of violating the Ordinance. Sherbaugh filed a timely Notice of Appeal and a
court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of
on appeal.
On appeal, Sherbaugh raises the following claims for our review:
1) Whether the trial court’s finding of guilty was against the weight
of the evidence?
2) Whether the provision of the [O]rdinance under which
[Sherbaugh] was found guilty was an improper mandatory,
conclusive presumption[?]
3) Whether the [O]rdinance was unreasonably vague in that it did
not contain a definition of the material term “vacant[?]”
4) Whether the trial court erred in failing to construe the undefined
material term “vacant” in the [O]rdinance in favor of [Sherbaugh],
pursuant to the rule of lenity[?]
Brief for Appellant at 14.
“Our standard of review from an appeal of a summary conviction heard
de novo by the trial court is limited to a determination of whether an error of
law has been committed and whether the findings of fact are supported by
competent evidence.” Commonwealth v. Marizzaldi, 814 A.2d 249, 251
(Pa. Super. 2002). “[W]e may not disturb the credibility determinations of
the trial court on review. Thus, we must solely limit our review to a
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consideration of the elements of the statute and the evidence presented.”
Commonwealth v. Askins, 761 A.2d 601, 603 (Pa. Super. 2000).
In his first claim, Sherbaugh alleges that the trial court’s finding was
against the weight of the evidence presented at trial. See Brief for Appellant
at 21-25. Sherbaugh argues that the evidence at trial demonstrated that the
property was not vacant, because he used the property frequently, maintained
utilities there, and kept the property in a habitable condition. Id. at 21.
Sherbaugh asserts that the trial court improperly framed the issue as whether
he lawfully resided at the property “on a permanent non-transient basis,”
instead of the proper question, i.e., whether the property was “vacant.” Id.
at 23-24; see also id. at 22.
In summary appeals, the Pennsylvania Rules of Criminal Procedure
prohibit the filing of post-sentence motions. See Pa.R.Crim.P. 720(D) (stating
that “[t]here shall be no post-sentence motion in summary case appeals
following a trial de novo in the court of common pleas.”). However,
Pa.R.Crim.P. 720(D) does not relieve Sherbaugh of his duty to preserve a
weight of the evidence claim through an oral or written motion prior to
sentencing. See Commonwealth v. Dougherty, 679 A.2d 779, 784 n.3 (Pa.
Super. 1996) (stating that “[the predecessor to Pa.R.Crim.P. 720(D)] …
dispensed with the need to file a post-sentence motion in summary case
appeals following a trial de novo. However, this alteration … has not
eliminated the duty to preserve issues by raising them in the trial court before
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or during trial.”); see also Pa.R.Crim.P. 607(A). Because Sherbaugh has not
raised this claim prior to sentencing, it is waived on appeal.1
In his second claim, Sherbaugh alleges that the trial court improperly
construed the language in the Ordinance, “shall be deemed,” as a conclusive
presumption. See Brief for Appellant at 25, 28-29. Sherbaugh argues that
the trial court should have construed this language as a non-conclusive
presumption, and in turn, found that Sherbaugh had rebutted this
presumption with his testimony of his use of the property. See id.
“Like statutes, the primary objective of interpreting ordinances is to
determine the intent of the legislative body that enacted the ordinance. Where
the words in an ordinance are free from all ambiguity, the letter of the
ordinance may not be disregarded under the pretext of pursuing its spirit.”
Bailey v. Zoning Bd. of Adjustment of City of Phila., 801 A.2d 492, 502
(Pa. 2002) (citations omitted).
In its Opinion, the trial court concisely addressed Sherbaugh’s second
claim as follows:
The [trial court] … finds that [Sherbaugh’s] argument is based on
an unreasonable and somewhat tortured reading of the definition
of “vacant” in the [O]rdinance. First, the definition itself is
included, along with many others, in Article 2(a) of the
[O]rdinance, entitled “Definitions.” The drafters of the
[O]rdinance thus clearly intended the relevant language to be read
as a definition and not as a mandatory presumption.
____________________________________________
1Even if properly preserved, we would conclude that the claim is without merit
based on the reasoning of the trial court. See Trial Court Opinion, 11/28/17,
at 2-3.
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Second, the definition is clear on its face. A building or
structure is vacant if either 1) no person or persons currently
conduct a lawfully licensed business there, or 2) no person or
persons lawfully reside in or live in any part of the building as the
legal or equitable owner(s) or tenant occupant(s) or owner-
occupants or tenant(s), on a permanent, non-transient basis. The
phrase “shall be deemed to be” clearly does not create a
presumption of any kind that would shift the burden of proof to
[Sherbaugh]. Rather, the phrase is used in the Ordinance merely
as introductory language because the word being defined,
“vacant,” is an adjective, not a noun. The Commonwealth readily
admitted at the hearing that it bore the burden to prove beyond a
reasonable doubt that the subject property was vacant.
[Sherbaugh] had no burden whatsoever, and the [trial court] did
not impose any upon him. The [trial court] simply considered
whether the Commonwealth had proven, beyond a reasonable
doubt, that [Sherbaugh] did not reside in the subject property on
a permanent, non-transient basis. Ample, uncontroverted
evidence exists in the record establishing that fact, and the [trial
court] accordingly found [Sherbaugh] guilty.
Trial Court Opinion, 11/28/17, at 2-3 (citations omitted). We agree with the
trial court’s sound rationale and determination, and affirm on this basis in
rejecting Sherbaugh’s second claim. See id.
We will address Sherbaugh’s third and fourth claims together. In his
third claim, Sherbaugh alleges that because the definition of “vacant” in the
Ordinance is ambiguous, the trial court should have found it void, and instead
applied the “ordinary and accepted definition” of “vacant.” See Brief for
Appellant at 35-36. According to Sherbaugh, under several dictionary
definitions of “vacant,” the evidence proves that the property was not vacant.
See id. at 37.
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In his fourth claim, Sherbaugh alleges that because the Ordinance is
penal in nature and the language is vague, the trial court should have applied
the rule of lenity, and construed the Ordinance in favor of Sherbaugh. Id. at
5-6.
In its Opinion, the trial court concisely addressed Sherbaugh’s third and
fourth claims as follows:
[Sherbaugh’s] argument [in his third claim] … is wholly
derivative of his argument that the Ordinance imposes upon him
a conclusive, mandatory presumption, which it does not do. As
the [trial court] already has discussed, the term vacant is defined
in the Ordinance to include a building in which no person or
persons reside on a permanent, non-transient basis. The
Ordinance clearly put [Sherbaugh] on notice of his obligations.
Further, the [trial court] relied exclusively on the definition of the
term “vacant,” and not the term “vacant building,” in finding
[Sherbaugh] guilty. Contrary to [Sherbaugh’s] arguments, the
Ordinance contains a clear definition of “vacant” that fairly puts
him on notice of how he must comply. It is not in any sense
vague.
***
[Sherbaugh] argues [in his fourth claim] that, because the
term “vacant” is not defined by the Ordinance, the [trial court]
should have construed the term strictly and against the
Commonwealth. As the [trial court] already has discussed, the
Ordinance does indeed contain a definition of “vacant” that is
sufficiently clear and unambiguous to put [Sherbaugh] on notice
of his obligations. The [trial court] applied that definition in
finding [Sherbaugh] guilty beyond a reasonable doubt. No
construction of the term was necessary.
Trial Court Opinion, 11/28/17, at 2-3 (citations and italics omitted). We agree
with the trial court’s sound rationale and determination, and affirm on this
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basis in rejecting Sherbaugh’s third and fourth claims, see id., with the
following addendum.
Ordinances are presumed to be constitutional, and a heavy
burden is placed on a person who challenges the constitutionality
of an ordinance. An ordinance is unconstitutionally vague if it fails
to give a person of ordinary intelligence a reasonable opportunity
to know what conduct is prohibited by the law. A vague law
impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory
application. An enactment will not be deemed unconstitutionally
vague if the terms, when read in context, are sufficiently specific
that they are not subject to arbitrary and discriminatory
application. As generally stated, the void for vagueness doctrine
requires that a penal enactment must define the criminal offense
with sufficient definiteness that ordinary people can understand
what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.
Commonwealth v. Asamoah, 809 A.2d 943, 945-46 (Pa. Super. 2002)
(citations and quotation marks omitted).
Here, the Ordinance defines “vacant” as a building that “no person or
persons currently conducts a lawfully licensed business [in], or lawfully resides
in or lives in any part of the building as the legal or equitable owner(s) or
tenant occupant(s) or owner-occupants or tenant(s), on a permanent non-
transient basis.” Apollo Borough Ordinance No. 272-16, at 4 (pages
unnumbered). A person of ordinary intelligence would be able to conclude
that for a building to be deemed not vacant, someone must live or conduct
business in the building on a permanent basis. See Asamoah, 809 A.2d at
945-46. Thus, the Ordinance is not unconstitutionally vague.
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Accordingly, none of Sherbaugh’s claims entitle him to relief, and the
trial court properly found him guilty of the summary offense.2
Judgment of sentence affirmed.
Judge Dubow joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/2018
____________________________________________
2 We note that Sherbaugh presented evidence that he maintained the property
and spent some time inhabiting the property. However, in order to avoid
prosecution under the Ordinance, Sherbaugh must have lived in the home on
a “permanent non-transient basis.” Sherbaugh did not present evidence that
he lived in the home. Although we sympathize with Sherbaugh, the plain
language of the Ordinance constrains our holding.
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