Com. v. Cerqueira, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
KEITH D. CERQUEIRA :
APPELLANT :
:
: No. 1004 WDA 2016
Appeal from the Order June 22, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-SA-0000012-2016
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED JUNE 29, 2017
Appellant, Keith D. Cerqueira, appeals from the June 22, 2016 Order
entered in the Court of Common Pleas of Westmoreland County finding
Appellant guilty of the summary offenses of Driving an Unregistered Vehicle
and Operation of a Vehicle Without Official Certificate of Inspection.1 After
careful review, we affirm.
The relevant facts and procedural history, as gleaned from the certified
record, are as follows. Appellant is an employee of Brady Auto Sales
(“BAS”), a licensed car dealer in Penn Hills, Pennsylvania. In June 2014,
Appellant purchased a 2008 Chevrolet Cobalt (“the Vehicle”) from BAS. The
*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S. § 1301(a) and 75 Pa.C.S. § 4703(a), respectively.
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Vehicle needed a new motor and its inspection sticker had expired in January
2014.
On June 29, 2015, after completing repairs on the Vehicle and before
Appellant obtained a valid inspection sticker, Appellant signed a
Consignment Agreement with BAS. The Consignment Agreement provided
that Appellant could store the Vehicle on the lot of BAS, but it was Appellant
who would remain the owner of the Vehicle until the Vehicle was sold. Also,
pursuant to BAS policy, the Vehicle could not be sold until the Vehicle had a
valid inspection certificate.
The Consignment Agreement also granted BAS the exclusive right to
sell the Vehicle and once the Vehicle was sold, Appellant and BAS would split
the profits.
On July 24, 2015, Appellant was driving the Vehicle on a highway
using car dealer license plate issued to BAS. Appellant had not yet obtained
a valid inspection certificate and Officer Tony J. Anthony stopped Appellant
because the Vehicle’s inspection certificate had expired.
Officer Anthony conducted a vehicle information inquiry through the
Pennsylvania Department of Transportation, which revealed that the car was
still registered to Appellant and the Vehicle’s registration had expired in April
2015.
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Officer Anthony issued Appellant two traffic citations: Driving an
Unregistered Vehicle and Operation of a Vehicle Without Official Certificate of
Inspection.
On December 16, 2015, Magisterial District Court found Appellant
guilty of both violations. On January 14, 2016, Appellant appealed to the
Westmoreland County Court of Common Pleas. After a bench trial on June
21, 2016, the trial court found Appellant guilty of both violations and
sentenced Appellant to pay an aggregate fine of $100.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following two issues on appeal:
1. Whether the Commonwealth proved [Appellant] guilty beyond
a reasonable doubt of violating 75 Pa.C.S. § 1301(a) when it
failed to offer any evidence to disprove [Appellant]’s
affirmative defense that the car did not need to be registered
due to 1) the car having a dealer license plate to [Appellant]’s
employer [BAS], 2) the car and its title being in possession of
[Appellant]’s employer [BAS], and 3) [BAS] owning the car
due to a valid consignment agreement with [Appellant].
2. Whether the court erred in finding [Appellant] guilty of 75
Pa.C.S. § 4703(a) [inspection violation] when the car was not
required to be registered within the Commonwealth due to it
being exempt from registration as a dealer owned/possessed
vehicle.
Appellant’s Brief at 1-2 (some capitalization omitted).
Driving an Unregistered Vehicle
Appellant concedes that he was driving with an expired vehicle
registration. He, however, argues that the Vehicle was exempt from vehicle
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registration under the car dealer’s exemptions to the registration statute, 75
Pa.C.S. § 1336(a)(2) and (b)(3). See Appellant’s Brief at 8.
Our standard of review is well settled for sufficiency of evidence
claims:
The standard we apply in reviewing the sufficiency of 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 this test, we may not
weigh the evidence and substitute our judgment for that of the
fact-finder.
Commonwealth v. Costa-Hernandez, 802 A.2d 671, 673 (Pa. Super.
2002).
To sustain a conviction for Driving an Unregistered Vehicle, the
Commonwealth must prove that an individual is driving a vehicle that is not
registered in the Commonwealth of Pennsylvania. See 75 Pa.C.S. §
1301(a).
The legislature, however, has provided for several exemptions from
the vehicle registration requirement, including one for car dealers. This
exemption permits a car dealer to not register individual vehicles and utilize
“special registration plates which may be displayed on vehicles in lieu of
registering each vehicle individually.” 75 Pa.C.S. § 1335(a). A car dealer
may only take advantage of the dealer registration exemption, however, if
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the dealer is using the vehicle for certain enumerated purposes and the
vehicle is being “held for sale.”2 75 Pa.C.S. § 1336(a)(2) and (b)(3).
In this case, Appellant argues that that the car dealer exemption
applied because the Vehicle was being “held for sale” and he was using the
Vehicle either to transport it to or from a repair facility, or for personal use.
See 75 Pa.C.S. § 1336(a)(2) and (b)(3). The evidence, however, clearly
demonstrated that the Vehicle was not being “held for sale.” Thus,
Appellant is not entitled to defense of the exemption, regardless of his use of
the Vehicle, and the trial court properly refused to apply the car dealer
exemption as a defense to this case.
It was undisputed that BAS would not attempt to sell the Vehicle until
the Vehicle passed inspection. When Appellant was driving the Vehicle, the
Vehicle had not yet passed inspection. In fact, Appellant admitted that when
he was driving the Vehicle, he was driving it to prepare the Vehicle for its
emission test. N.T. Trial, 6/21/16, at 51-52, 54, 78. Thus, the Vehicle was
not ready for sale and BAS could not be holding it for sale.
Since the evidence supports the trial court’s conclusion that the car
was not “held for sale,” we need not address the other elements that
2
We note that it is Appellant’s burden to prove that a vehicle registration
exemption applies. See generally Commonwealth v. Yogel, 453 A.2d
15, 16 (Pa. Super. 1982)
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Appellant would have to prove to assert the defense based on the car dealer
exemption.3
Appellant further argues that although his name is on the certificate of
title, that is not conclusive evidence of ownership of the Vehicle. See
Wasilko v. Home Mut. Cas. Co., 232 A.2d 60, 61 (Pa. Super. 1967).
Although we agree with the premise of Appellant’s argument, Appellant’s
argument ignores the statutory language. The issue is not who “owns” the
car, but who “holds the car for sale.” In this case, the Vehicle had not
passed the emission test and was not ready for sale. Thus, BAS could not
hold the Vehicle for sale. Therefore, the indicia of ownership of the Vehicle
is not relevant to the analysis.4
3
Appellant argues that he is entitled to the exemption under 75 Pa.C.S. §
1336(a)(2) where the Appellant would have to establish that he was
operating the Vehicle “[f]or testing, for safety inspection, repairing or
transporting to or from a repair facility.” 75 Pa.C.S. § 1336(a)(2).
Appellant admitted at trial that he was not en route to a repair shop at the
time of the traffic stop, but was driving to get the Vehicle ready for a not-
yet-scheduled emission test. Thus, Appellant could not establish either
element of this defense.
4
Even if we were to address the issue of who owned the car, the evidence
established that it was Appellant and not BAS who owned the car. Appellant
was the titled owner of the Vehicle and the registration was in his name.
Commonwealth Exhibit 1, Vehicle Record Abstract. Moreover, Appellant
agreed in the Consignment Agreement that the Vehicle “shall remain the
property of [Appellant] until sold.” Defendant’s Exhibit E, Consignment
Agreement.
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In sum, the Commonwealth presented sufficient evidence to prove that
Appellant was driving a vehicle with expired registration pursuant to 75
Pa.C.S. § 1301(a), and Appellant presented insufficient evidence to prove
that any dealer registration exemptions applied. Thus, the trial court
properly convicted Appellant of Driving an Unregistered Vehicle.
Operation of a Vehicle Without Official Certificate of Inspection
In response to the conviction for operating the Vehicle without a
certificate of inspection, Appellant again argues that the Vehicle was exempt
from the inspection requirement because the Vehicle was exempt from the
inspection requirement “as a dealer owned/possessed vehicle” pursuant to
75 Pa.C.S. § 4703(a). Appellant’s Brief at 2.
Section 4703 states, in pertinent part, “no motor vehicle required to
bear current registration plates issued by this Commonwealth . . . shall
be operated unless the vehicle displays a currently valid certificate of
inspection issued under this chapter.” 75 Pa.C.S. § 4703(a) (emphasis
added). Appellant argues that because the Vehicle was eligible for the car
dealer registration exemption, the Vehicle is not required to “bear current
registration plates” and is, therefore, exempt from the inspection
requirements set forth in 75 Pa.C.S. § 4703(a).
As discussed above, BAS did not hold the Vehicle for sale, and thus,
Appellant was not exempt from the registration requirements. Therefore,
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Appellant is not exempt from the inspection requirements and, thus, this
argument fails.5
In conclusion, we find that the trial court did not err in convicting
Appellant of Driving an Unregistered Vehicle and Operation of a Vehicle
Without Official Certificate of Inspection.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2017
5
Appellant concedes that he did not have a valid inspection certificate.
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