Com. v. Rodriguez, M.

J-A08020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
MANUEL RODRIGUEZ :
: No. 1884 EDA 2017
Appellant :
Appeal from the Order May 12, 2017
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-SA-0000154-2016,
CP-45-SA-000209-2016
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 25, 2018
Manuel Rodriguez appeals1 from the order, entered in the Court of
Common Pleas of Monroe County, finding him guilty of the summary offenses
of improperly tinted car windows2 and unauthorized mounting of a blue light
on a vehicle.3 After careful review, we affirm.
____________________________________________
1 On April 10, 2018, Richard P. White, Esquire, entered his appearance for the
Commonwealth of Pennsylvania. He noted that no Appellee brief will be filed
in the matter.
2 75 Pa.C.S. § 4524(e)(1).
3 75 Pa.C.S. § 4572(c).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Rodriguez is a Pennsylvania State Constable.4 On July 11, 2016,
Rodriguez was pulled over in his unmarked, white Ford Crown Victoria sedan5
by Detectives Brian Webbe and Kim Lippincott of the Monroe County District
Attorney’s Office. The detectives issued Rodriguez two non-moving traffic
citations6 for window-tint and blue light summary violations.7 When he was
stopped, Rodriguez showed the officers his membership card (dated 4/27/16)
in a volunteer organization, “Defiance Search and Rescue (DSR).” 8 The DSR
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4A constable is an elected official authorized to appoint deputy constables. A
constable is an independent contractor and is not an employee of the
Commonwealth, the judiciary, the township, or the county in which he works.
See In re Act 147 of 1990, 598 A.2d 985 (Pa. 1991); Rosenwald v.
Barbieri, 462 A.2d 644 (Pa. 1983); Commonwealth v. Roose, 690 A.2d
268 (Pa. Super. 1997). See also Commonwealth v. Rodriguez, 81 A.3d
103 (Pa. Super. 2013) (because Pennsylvania constables are not employees
of Commonwealth, defendant-constable’s private vehicle, driven in capacity
as independent contractor, did not qualify as exempt governmental vehicle
under section 4524(e)(2)(i) of the Vehicle Code).
5The vehicle was designated a police interceptor model. N.T. Non-Jury Trial,
5/12/17, at 79.
6 Rodriguez was also cited for four non-moving violations in June 2016;
however, the Commonwealth chose not to go forward with the de novo appeal
of those charges and they were dismissed at Rodriguez’s non-jury trial. N.T.
Non-Jury Trial, 5/12/17, at 8-9.
7 The trial court consolidated the two summary offenses for purposes of trial.
8 On the citation, Detective Webbe made the following notation, “Defendant
claims membership in a search and rescue organization that appears largely
fictitious and for which the Chief hasn't provided a list of authorized individuals
to PSP, meaning the Pennsylvania State Police.” N.T. Non-Jury Trial, 5/12/17,
at 21.
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membership card was signed by Roger Metzger, listed as the authorizing chief
officer of DSR. Metzger is also a Pennsylvania State Constable. Rodriguez
was convicted of both offenses before a magistrate. Rodriguez filed a timely
de novo appeal from his summary convictions; on May 12, 2017, a non-jury
trial was held.
At the non-jury trial, Detective Webbe and Constable Metzger9 testified.
Detective Webbe testified that after citing Rodriguez, he investigated the DSR
to determine whether Rodriguez was a certified member of the organization
listed at a nearby police station in order to make him eligible to display the
blue lights on his vehicle pursuant to 75 Pa.C.S. § 4527. Webbe testified that
despite contacting several local police stations, only one trooper had received
a signed list from DSR Chief Metzger listing Rodriguez as a certified member.
The list, however, was dated July 18, 2016, and received by the barracks on
July 22, eleven days after the instant offenses.
Metzger testified that as chief officer of DSR, he incorporated the
organization in Emmaus, Pennsylvania, where he resides. Metzger also
testified that in October 2015 he sent an original, unsigned list of DSR’s
____________________________________________
9 At trial, Metzger testified that he currently held the position of President of
the Monroe County Constables’ Association and president of the Pennsylvania
Fraternal Order of Constables. N.T. Non-Jury Trial, 5/12/17, at 78.
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members to the Bethlehem Police Barracks and, then, an updated, signed list
in July 2016, via first class mail.10
At the conclusion of trial, the court found Rodriguez guilty of the
summary offenses; he was ordered to pay costs and fees.11 Rodriguez filed
a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise12
statement of errors complained of on appeal. Rodriguez presents the following
issues for our consideration:
(1) Was the prosecution in the instant case . . . an
unconstitutional selective prosecution?
(2) Should the objection on page 45, at line 24, have been
overruled, because sustaining it prevented the defendant
from proving his (un)constitutionality defense[?]
(3) Does the evidence support only the conclusion . . . that
[Rodriguez] was a member of a search[] and [] rescue
organization, and that he was entitled to the exemption
under 75 Pa.C.S. § 4572(a)?
(4) Does the evidence support only the conclusion . . . that a
person can see through the car’s windows [] so that there
is no violation of 75 Pa.C.S. § 4524[]?
____________________________________________
10Both Webbe and Metzger took photographs of the tinted windows of
Rodriguez’s vehicle that were admitted at exhibits at trial.
11Specifically, the court ordered Rodriguez to pay $25 in fines and costs for
the window-tint offense, and $25 in fines and $100 in costs for the
unauthorized blue-light offense. N.T. Non-Jury Trial, 5/12/17, at 121-23.
12Technically, Rodriguez’s 8-page Rule 1925(b) statement is anything but
concise. It contains unnecessary details and citations to the record, not to
mention it rambles and is, at times, incomprehensible.
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(5) Is the tint statute[,] 75 Pa.C.S. § 4524[,] . . .
unconstitutionally vague, as applied?
(6) Is 75 Pa.C.S. § 4572(d) [--] especially the search[] and
seizure[] rescue organization statute [--] unconstitutionally
vague, as applied[,] to the extent that the government can
prosecute by means of electing to disregard the exception
or exemption in § 4572 and in § 4572(a)(1) by whim?
(7) Should the five objections discussed in [Rodriguez’s brief]
have been sustained?[13]
Appellant’s Brief, at 5-6 (emphasis in original).
Rodriguez first argues that he has been the subject of selective
prosecution. Specifically, he alleges that the stop of his vehicle was
unconstitutionally selective where the Monroe County District Attorney’s Office
had specifically decided to single out constables because of equipment they
had on their cars.
To establish a selective prosecution defense in Pennsylvania, the
defendant must prove that: (1) others who are similarly situated are generally
not prosecuted for similar conduct, and (2) the defendant was intentionally
and purposefully singled out for an invidious reason. Commonwealth v.
Murphy, 795 A.2d 907 (Pa. Super. 2002).
Instantly, Rodriguez claims that similarly situated individuals such as
private police officers, private railroad police, humane society police, and
fishing and gaming commission law enforcement officers have not been
____________________________________________
13 We limit our review to those objections raised by Rodriguez in his Rule
1925(b) statement; any other objections raised in his appellate brief are
waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived.”).
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investigated like constables with regard to prosecuting window-tinting and
blue-light summary violations. In fact, he claims that most of these similarly
situated individuals have no tint exemption and have no legal authority to
equip their vehicles with the particular light bars. Appellant’s Brief, at 23.
While Rodriguez makes these sweeping generalizations, he fails to
present evidence to support his argument. Although Detective Webbe
testified that he was familiar with recent constable traffic violations and was
aware that his partner had cited Rodriguez for four violations in June 2016,
he also testified that he was not under any instructions to pay special attention
to Rodriguez and that he had also discussed other constables with members
of his office. Here, the court chose to believe Detective Webbe’s testimony
that his office was not selectively prosecuting constables for traffic citations.
Without evidence to show that Rodriguez, as a constable, was intentionally
and purposefully singled out for an invidious reason, or that other similarly
situated individuals were generally not prosecuted for similar conduct, this
claim fails. Commonwealth v. Sanico, Inc., 830 A.2d 621 (Pa. Commw.
2003) (where there was no evidence in record to suggest defendant was
intentionally and purposefully singled out for invidious reason, selective
prosecution defense not viable); Commonwealth v. Celano, 717 A.2d 1071
(Pa. Commw. 1998) (same).
In his next issue on appeal, Rodriguez contends that the court
improperly sustained a Commonwealth objection to defense counsel’s cross-
examination of Detective Webbe. Specifically, Rodriguez claims that the
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sustained objections “prevented [him] from proving his (un)constitutionality
defense.” Appellant’s Brief, at 25.
Rodriguez asserts that by sustaining the Commonwealth’s objection to
his attorney’s questioning of Detective Webbe, he was unable to elicit evidence
to support his selective prosecution defense. Although the court initially
deemed counsel’s questioning of Detective Webbe irrelevant, the court later
permitted counsel to ask the detective if he had ever “been in communities
and near communities where [he saw] that their cars have red and blue lights
on them.” N.T. Non-Jury Trial, 5/12/17, at 48. Detective Webbe testified that
he had been in those communities and had never cited the drivers of those
vehicles because they were on private property; he also testified that he had
never seen those drivers out on the main, public roads. Id. at 48-49.
Detective Webbe, however, did testify that his office had discussed the visible
traffic violations being committed by several different area constables, that he
was not aware of any other constables having been given citations, and that
he was aware at the time of the present vehicle stop that his partner had given
Rodriguez four citations in the month of June. Id. at 50-51. Finally, Detective
Webbe testified that he was not under any instructions to pay special attention
to Rodriguez, that he had discussed other constables with members of his
office, and that he writes citations relatively infrequently. Id. at 51.
From a review of the record, we do not find that the trial court
impermissibly prevented counsel from questioning Detective Webbe on cross-
examination, where the court ultimately permitted counsel to question the
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detective regarding his process of issuing citations, the frequency with which
he cited others in the community for vehicle code violations compared to
constables, and his familiarity with Rodriguez’s prior citations.
In his next issue on appeal, Rodriguez contends that the evidence
sufficiently proves that he was a member of a search and rescue organization,
and, therefore, was eligible to display a blue-light bar on the top of his vehicle.
Pursuant to 75 Pa.C.S. § 4572:
(a) Flashing or revolving blue lights. — Ambulance personnel,
volunteer firefighters, certified volunteer search and rescue
organization members and owners and handlers of dogs used
in tracking humans may each equip one motor vehicle with
no more than two flashing or revolving blue lights.
(1) In order to be eligible to display lights on their
vehicles under this subsection, the names of the
ambulance personnel, volunteer firefighters and certified
volunteer search and rescue organization members
shall be submitted to the nearest station of the
Pennsylvania State Police on a list signed by the chief
of the ambulance or fire department or company, the head
of the search and rescue organization, and each dog
owner and handler shall register at the nearest Pennsylvania
State Police station.
* * *
(c) No vehicle other than a duly authorized vehicle may be
equipped with lights identical or similar to those specified in
subsections (a) and (b).
75 Pa.C.S. § 4572(a)(1) (emphasis added).
Although Rodriguez showed Detective Webbe a membership card for the
DSR when he was stopped, under section 4572 Rodriguez is only eligible to
have the blue light bar atop his vehicle if: (1) he is a certified volunteer search
and rescue organization member; and (2) as a certified DSR member, his
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name had been submitted to the nearest station of the Pennsylvania State
Police on a list signed by the head of the search and rescue organization.
Instantly, the trial court concluded that Rodriguez did not qualify as an
eligible person to have a blue-light bar on his vehicle because: the court did
not find credible evidence that DSR validly exits; there was nothing on
Rodriguez’s vehicle indicating that it was being used to respond to search and
rescue calls; Rodriguez’s name appeared on a list of Bethlehem State Police
Station approved search and rescue members only after the date of the
current violation; the Bethlehem State Police Station had no record of any
such member list effective at the time of Rodriguez’s stop; evidence
contradicted Constable Metzger’s testimony that DSR was a legitimate search
and rescue organization created prior to October 15, 2015 (date of alleged
prior membership list to Bethlehem State Police Station); no evidence
supported Metzger’s testimony that DSR was in existence prior to it being
given 501(c)(3) approval in December 2015 when incorporation documents
were filed; and no credible evidence regarding DSR meetings or information
about the organization’s activities was provided.
The record supports the trial court’s findings. Critically, there is no
evidence to show that Rodriguez was, at the time of the stop, on a signed list
which had been submitted to the nearest state police station, indicating that
he is a certified member of a search and rescue organization. Detective
Webbe investigated the DSR, contacting four local police barracks to see if
any had submitted signed, certified member lists. The four barracks had
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neither received any list with DSR members, nor had they heard of DSR. N.T.
Non-Jury Trial, 5/12/17, at 29. Only one trooper from the Bethlehem branch
of the Pennsylvania State Police told Detective Webbe that he had received an
updated list of members14 of the DSR, dated July 18, 2016, after the subject
stop and citation. Id. at 29-30. The trooper noted that he had never received
the original list allegedly sent in October 2015. Id. at 30. However, even if
the trooper had received the original list, it was not signed by Metzger, a
requirement under section 4572. Without this proof, Rodriguez was not
eligible under section 4572 to display a blue-light bar on the top of his vehicle.
Thus, we find no merit to this claim.
Rodriguez next asserts that the evidence supports the conclusion that
the window tinting on his vehicle did not violate section 4524. We disagree.
A person violates this Commonwealth’s window-tinting statute when he
or she “drive[s] 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. § 4524(e)(1) (emphasis added). Instantly, Detective
Webbe testified at the summary trial that because of the window tint, he could
not see through the vehicle’s side or rear windows into its interior. N.T.
Summary Trial, 5/12/17, at 41. The trial judge found Detective Webbe
credible and also found that the detective’s photographs of the subject
____________________________________________
14Thirteen of the eighteen listed DSR members were constables. N.T. Non-
Jury Trial, 5/12/17, at 38.
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vehicular windows convincing. The court discredited both Constable Metzger’s
photographs of Rodriguez’s car windows, as well as Constable Metzger’s
testimony that he could see clearly into the windows. We will not disturb the
trial court’s credibility determinations. Commonwealth v. Sanchez, 36 A.3d
24 (Pa. 2011) (finder of fact exclusively weighs evidence, assesses credibility
of witnesses, and may choose to believe all, part, or none of evidence).
Accordingly, we conclude that the evidence supports the trial court’s
conclusion that the window tinting on the windows of Rodriguez’s vehicle
violated section 4524(e)(1). Cf. Commonwealth v. Brubaker, 5 A.3d 261
(Pa. Super. 2010) (where arresting officer testified that he was capable of
seeing into defendant’s vehicle, even though sun screening material was on
windows, terms of section 4524(e)(1) not met).
Finally, Rodriguez contends that sections 4524 and 4572 are
unconstitutionally vague. Despite Rodriguez’s claim that the standard
required for legal tinting is neither clear nor measurable, and that the search
and rescue provision of section 4572 can be disregarded at a whim, we
disagree. We do not find either statute void for vagueness.
In evaluating a challenge to the constitutionality of a statute, our
Supreme Court has held:
[A]ny party challenging the constitutionality of a statute must
meet a heavy burden, for we presume legislation to be
constitutional absent a demonstration that the statute clearly,
palpably, and plainly violates the Constitution. The presumption
that legislative enactments are constitutional is strong. All doubts
are to be resolved in favor of finding that the legislative enactment
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passes constitutional muster. Moreover, statutes are to be
construed whenever possible to uphold their constitutionality.
DePaul v. Commonwealth, 969 A.2d 536, 545-46 (Pa. 2009) (internal
quotations and citations omitted).
When a statute is challenged as unconstitutionally vague, our
Pennsylvania courts apply the following test:
Under the void-for-vagueness standard, a statute will only be
found unconstitutional if the statute is so vague that persons of
common intelligence must necessarily guess at its meaning and
differ as to its application. However, a statute will pass a
vagueness constitutional challenge if the statute define[s] the
criminal offense with sufficient definiteness that ordinary people
can understand what conduct is prohibited and in the manner that
does not encourage arbitrary and discriminatory enforcement.
Commonwealth v. McCoy, 69 A.3d 658, 662 (Pa. Super. 2013) (quotation
marks and citations omitted).
Section 4524 prohibits vehicular window tinting that does not permit a
person to see or view the inside of the vehicle. Section 457215 requires
certified members of volunteer search and rescue organizations to have their
names submitted and on file with the nearest Pennsylvania State Police
____________________________________________
15
To the extent that Rodriguez claims the trial court found that he was not
exempt under section 4572 because the DSR was not a bona fide search and
rescue organization, we do not base our decision today on that factor. Rather,
this Court concludes that because there was no evidence of record to show
that Rodriguez had complied with the requirements of section 4572, he cannot
benefit from the exemption; namely, the local state police barracks did not
have a signed list of the certified members of the DSR at the time of the
instant violations. See Commonwealth v. Thompson, 778 A.2d 1215, 1223
n.6 (Pa. Super. 2001) (it is well settled that we may affirm trial court on
different grounds).
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Station in order to be eligible to display lights on their vehicles. The language
of both statutes is not vague; it defines the proscribed criminal conduct 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. McCoy, 69 A.3d 658, 662
(Pa. Super. 2013). Moreover, we note that there are many examples in the
Vehicle Code of behaviors that are prohibited and rely on a police officer’s
perception for enforcement, such as driving a vehicle at a safe speed and
whether a vehicle meets or overtakes a school bus. As noted in Grayned v.
City of Rockford, 408 U.S 104, 110 (1972), “we can never expect
mathematical certainty from [a statute].”
Here, Detective Webbe testified at the summary trial that because of
the window tint, he could not see through the vehicle’s side or rear windows
into its interior. N.T. Summary Trial, 5/12/17, at 41. Pictures admitted at
trial confirm the fact that the window-tinting prevented a person from viewing
the interior of Rodriguez’s car.
Therefore, while section 4524 does not provide the exact degree to
which the windows shall be tinted to constitute a violation under the statute,
an ordinary person can understand the conduct prohibited under section 4524.
Moreover, the requirements for exemption under section 4572 are clearly and
sufficiently stated with specificity such that Rodriguez could understand what
was required to make him exempt under the statute. Accordingly, Rodriguez
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fails to satisfy the heavy burden of proving that the statutes are
unconstitutional. DePaul, supra.
Order affirmed.16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/18
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16 We herein grant Rodriguez’s “New Application for Correction.”
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