Com. v. Jamison, J. ( 2014 )

J. A14006/14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOHN JAMISON, : No. 1403 MDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, May 15, 2013,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-SA-0000441-2011
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 06, 2014
John Jamison appeals from the judgment of sentence of May 15, 2013,
following his conviction of two summary counts of failure to comply with the
requirements of a police officer, 75 Pa.C.S.A. § 6311, and operating a motor
vehicle that does not comply with Pennsylvania Department of
Trans
affirm.
On July 9, 2011, Officer Jacob Clevenger was on routine patrol when
windows. (Notes of testimony, 2/1/12 at 6.) Officer Clevenger effectuated
a traffic stop and measured the light transmittance in the glass using a
self-calibrating light meter. (Id. at 7.) According to Officer Clevenger,
* Retired Senior Judge assigned to the Superior Court.
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minimum as defined by PennDOT regulations is 70%. (Id.)
Officer Clevenger advised appellant that he was in violation of 67 Pa.Code
§ -
from the windows within five days. (Id. at 6, 9-10.) Officer Clevenger did
not receive the card back within five days, and after being informed that
appellant did not intend to remove the tint, he issued a citation for a
Section 6311 violation, failure to respond regarding the compliance card, as
well as the citation for violating Section 4107(b)(2), failure to comply with
PennDOT regulations. (Id. at 6-9.)
A magisterial district judge convicted appellant of the two
above-mentioned summary offenses, and following a trial de novo, the
convictions wer
argument that the charges must be dismissed because he should have been
cited under 75 Pa.C.S.A. § 4524(e)(1), which specifically governs window
- 75 Pa.C.S.A.
§ 4107(b)(2). On May 15, 2013, the trial court found appellant guilty of
both charges and imposed an aggregate fine of $525. On July 15, 2013,
appellant was granted permission to file a nunc pro tunc appeal, and notice
of appeal was filed on August 1, 2013. On August 9, 2013, appellant was
ordered to file a concise statement of errors complained of on appeal within
21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.; appellant filed
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his statement on September 5, 2013.1 On October 23, 2013, the trial court
filed an opinion, relying on the transcript and its prior order of May 15,
2013.
I. Whether the explicit language of 75 Pa.C.S.
§ 4524(e), which regulates sun screening on
car windows, should supercede [sic] the
equipment regulations that regulate the same
topic as incorporated into the Vehicle Code via
the catch-all provision at 75 Pa.C.S.
§ 4107(b)(2)?
Because ap
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Raban, 85 A.3d 467, 468 (Pa. 2014) (citation omitted).
w
(e) Sun screening and other materials
prohibited.--
(1) 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.
1
b) statement was untimely
filed, because the trial court accepted the late statement and addressed
Commonwealth v.
Rodriguez, 81 A.3d 103, 105 n.2 (Pa.Super. 2013), appeal denied, 91
A.3d 1238 (Pa. 2014).
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75 Pa.C.S.A. § 4524(e)(1). At trial, appellant presented testimony that a
person would be able to see the inside of his vehicle through the tinted
windows. However, appellant was not charged with violating
Section 4524(e)(1), he was charged with violating Section 4107(b)(2), which
provides:
(b) Other violations.--It is unlawful for any
person to do any of the following:
(2) 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 or 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
regulations.
Section 4107(b)(2) was based on his violation of the PennDOT regulation at
67 Pa.Code § 175.67(d)(4), concerning sun screening material:
§ 175.67. Glazing.
(d) Obstructions. A vehicle specified under this
subchapter shall have glazing free from
obstructions as described in § 175.80 (relating
to inspection procedure).
(4) A sun screening device or other
material which does not permit a
person to see or view the inside of
the vehicle is prohibited . . . . See
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Table X for specific requirements
for vehicles subject to this
subchapter. Passenger car
requirements relating to the rear
window are delineated by vehicle
model year in Table X.
67 Pa.Code § 175.67(d)(4). Table X sets forth specific light transmittance
requirements for different passenger cars. It is undisputed that the
transmittance.2
Appellant argues that the statutory provision at Section 4524(e) of the
Vehicle Code supersedes the PennDOT regulation found at 67 Pa.Code
§ 175.67(d)(4); and therefore, both citations should have been dismissed.
According to appellant, Section 4524(e) and the PennDOT regulation are in
conflict, and statutes always supersede administrative regulations. See
Commonwealth v. Kerstetter, 62 A.3d 1065, 1069 (Pa.Cmwlth. 2013),
affirmed
Joyce Outdoor
, 49 A.3d 518, 524 (Pa.Cmwlth. 2012).
its own regulations is controlling unless the interpretation is plainly
2
Appellant testified that his sun screening allows 20% light transmittance.
(Notes of testimony, 2/1/12 at 16.) This would still be well below the 70%
standard.
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Id., quoting Joyce Outdoor Adver., LLC, supra.
Section 4103(a) of the Vehicle Code grants PennDOT authority to
promulgate vehicle equipment standards for vehicles, equipment and
devices required under this part. To the maximum extent possible,
consistent with safety, the standards shall be expressed in terms of
minimum acceptable performance levels, measured against objective testing
We can discern no conflict between 75 Pa.C.S.A. § 4524(e)(1) and
67 Pa.Code § 175.67(d)(4); indeed, they are nearly identical. Both prohibit
sun screening devices or other material which does not permit a person to
see or view the inside of the vehicle. The cases relied upon by appellant,
Kerstetter, supra, and Equitable Gas Co. v. Wade, 812 A.2d 715(Pa.Super. 2002), are readily distinguishable.
In Kerstetter, the Commonwealth Court found a clear conflict
between the Public School Code and Department of Education regulations in
inter alia, children
enrolled in grades above k
attendance provisions applied to any student enrolled in public school,
regardless of whether they were enrolled in kindergarten. The appellant in
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Kerstetter relied on the Department regulations, arguing that because her
children were only enrolled in kindergarten, they were not subject to the
compulsory school attendance law. The Commonwealth Court disagreed,
inconsistent regulation. Kerstetter, 62 A.3d at 1070.
Similarly, in Wade, the gas company sought post-judgment interest of
18% based on a lawful tariff it received from the Public Utility Commission
l as a regulation governing late payments of utility bills set
forth in the Pennsylvania Code. Both these provisions were in clear conflict
with the statute governing post-judgment interest, which is set at the legal
rate of 6% per year. Wade, 812 A.2d at 717, citing 42 Pa.C.S.A. § 8101;
41 P.S. § 202. The Wade court noted that both the regulation and the tariff
were issued by the PUC, not the Pennsylvania Legislature, and are not
Id. at 718. Therefore, they cannot
supersede Section 8101 which sets forth the legal rate of post-judgment
interest. Id.
Both Wade and Kerstetter presented clear conflicts or inconsistencies
between the relevant statutes and regulations. In the case sub judice, as
stated above, there is no such conflict or inconsistency. Both the statute
and the regulation prohibit driving with sun screening material which does
not permit a person to see inside the vehicle. PennDOT then implemented
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this requirement, pursuant to its legislative mandate, by establishing a
minimum standard, i.e., 70% light transmittance. 75 Pa.C.S.A. § 4524(e) is
silent as to acceptable levels of light transmittance, so there is no
inconsistency. Without the PennDOT standards for permissible light
transmittance thresholds, police would have no objective testing parameters
Commonwealth v.
Brubaker, 5 A.3d 261 (Pa.Super. 2010), which is wholly inapposite. In
Brubaker, the appellant was stopped and charged with violating
Section 4524(e)(1). Id. at 262. However, at trial, the investigating officer
there was sun screening material present on the subject windows. Id. at
263-264. Therefore, the plain terms of Section 4524(e)(1) were not met.
There was testimony at trial that the officer used a window tint meter to
measure the percentage of light transmitted through the glass, and only
window, well below the 70% threshold. Id. at 264. However, appellant was
not charged with violating Section 4107(b)(2), and Section 4524(e)(1) does
not refer to the 70% light transmittance standard. The terms of 67 Pa.Code
§ 175.67(d)(4) could not be utilized to sustain a conviction under
Section 4524(e)(1). Id.
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that he could, in fact, see into the vehicle, the evidence was insufficient to
sustain a conviction for violating Section 4524(e)(1).
Obviously, our holding in Brubaker
benefit, where appellant was charged with violating Section 4107(b)(2),
making it unlawful to operate a motor vehicle in violation of PennDOT
regulations, which would include the 70% light transmittance standard
referenced in 67 Pa.Code § 175.67(d)(4) and Table X. The defendant in
Brubaker was charged under 75 Pa.C.S.A. § 4524(e)(1), 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. As such, Brubaker is inapposite.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2014
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