Opinion
J-S62043-16 No. 113 MDA 2016
10-31-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. JUNELL RAE WRIGHT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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. 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 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 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.
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.
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)?
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 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 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 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
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:
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 (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).(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.
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 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 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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/31/2016
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