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HomeMy WebLinkAbout00-2655 criminalCOMMONWEALTH go HEMPT BROTHERS, INC. · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·NO. 2000-2655 CRIMINAL -: IN RE' OPINION PURSUANT TO PA. R.A.P. 1925 Guido, J., June 6, 2001 On February 27, 2001, we found the defendant guilty of violating Section 4107(b)(2) of the Vehicle Code.~ We imposed sentence immediately and the defendant filed this timely appeal. On appeal, defendant contends that (1) the evidence was insufficient to prove beyond a reasonable doubt that it violated the statute in question and (2) the statute in question is unconstitutionally vague. We will address each issue in the opinion that follows. FACTUAL BACKGROUND On November 3, 2000, a State Motor Cartier Enforcement Officer with the Public Utility Commission noticed one of the defendant's dump trucks on the Creekview Road Overpass of Route 581 in Hampden Township, Cumberland County, Pennsylvania. What drew his attention to this particular truck was the fact that it was loaded to the hilt with gravel and had no tailgate or other means to secure the load from shifting or falling onto the road. He stopped the truck, explained the safety hazard to the driver, and agreed to ~75 Pa. C.S.A. § 4107(b)(2). 2000-265 5 CRIMINAL escort him to the construction site for which the gravel was intended. While he followed the truck to the construction site, no gravel actually fell onto the roadway. However, the load shifted continuously during the course of the trip. The officer then met with defendant's safety representatives.' He informed them that the dump truck could not carry any loads on a public highway until it was equipped with a tailgate.2 The officer then issued the citation in question. The dump truck had a scow type bed. In other words, the vehicle is designed with a slight incline of 18 to 24 inches at the rear of the bed. The purpose of the incline is to prevent the gravel from falling onto the roadway. DISCUSSION Defendant was cited with violating Section 4107(b)(2) of the Vehicle Code which provides as follows: § 4107 Unlawful activities (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 which is otherwise in an unsafe condition or in violation of department regulations. At trial the parties agreed that the applicable "department regulations" are contained in 49 C.F.R. § 393.100.3 The relevant portions of those regulations provide as follows: 2 The addition of a tailgate is feasible. 3 It is an incredibly complicated journey to get from 75 Pa. C.S.A. § 4107(b)(2) to 49 C.F.R. {}393.100(b)(1) and (4). The department regulations referred to in the citation are contained in 67 Pa. Code § 231.452 which adopts by reference the vehicle out of service criteria contained in Appendix B of the Federal Highway Administration's National Driver Vehicle Inspection Manual. See Pa. Code § 231.452(a). Appendix B, in mm, establishes safety criteria for motor vehicles and references various sections of the U.S. Department of Transportation, Federal Highway Administration regulations as set forth in Title 49 of the Code of Federal Regulations. The relevant federal regulations for this action, as referred to in the citation, are 49 C.F.R. § 392.9(a)(1) which provides: 2000-2655 CRIMINAL § 393.100 General roles for protection against shifting or falling cargo. (b) Basic protection components. Each cargo-carrying motor vehicle must be equipped with devices providing protection against shifting or falling cargo that meet the requirements of either paragraph (b)(1), (2),(3), or (4) of this section. (1) Option A. The vehicle must have sides, sideboards, or stakes, and a rear endgate, endboard, or stakes. Those devices must be strong enough and high enough to assure that cargo will not shift upon, or fall from the vehicle. Those devices must have no aperture large enough to permit cargo in contact with one or more of the devices to pass through it. (3) Option D. The vehicle must have other means of protecting against shifting or falling cargo which are similar to, and at least as effective as, those specified in paragraph (b)(l), (2), or (3) of this section 49 C.F.R. § 393.100(b)(1) and (4). (emphasis added). Sufficiency Of The Evidence. The defendant concedes, as it must, that its dump truck was not equipped with "a rear endgate, endboard, or stakes" as required by Option A contained in Section 393.100(b)(1). However, it argues that the Commonwealth has not proven beyond a reasonable doubt that its truck did not satisfy the requirements of Option D contained in Section 393.100(b)(4). We disagree. § 392.9 Safe loading. (a) General. No person shall drive a commercial motor vehicle and a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless~ (1) The commercial motor vehicle's cargo is properly distributed and adequately secured as specified in §§ 393.100-393.106 of this subchapter. Of the sections referenced in § 392.9(a)(1), only Sections 393.100(b)(1) and (b)(4) are relevant to the case at bar. 2000-2655 CRIMINAL In the first instance, we were satisfied beyond a reasonable doubt that the slant design at the rear of the bed was not "similar to" the "rear endgate, endboard, or stakes" specified in Option A. The devices specified in Option A are barriers intended to prevent the load from "shifting or falling.''4 The fact that barrier type devices are contemplated · by Option A is made clear from the last sentence which provides that the "devices must have no aperture large enough to permit cargo.., to pass through it.''5 The scow design has no such barrier. Furthermore, the "aperture" would not prevent anything from passing through it. There is simply air, through which any cargo can pass. More importantly, we were also satisfied beyond a reasonable doubt that a slight incline at the rear of the bed is not "at least as effective as" a tailgate. Reason and common sense lead to the inescapable conclusion that a solid tailgate would be more effective in preventing graVel from falling onto the roadway than the slight incline design.6 While the design might prevent the gravel from falling under normal driving conditions on grades routinely encountered on our highways, that does not make it "as effective as" a tailgate. No vehicle is always operated under normal conditions. Potholes, sudden stops and even accidents, are common occurrences in the life of every vehicle. Under those circumstances, a solid tailgate would certainly be more effective in preventing tons of gravel from falling onto the road, or worse, onto a vehicle. The Commonwealth only had to prove beyond a reasonable doubt that the scow design was either (1) not "similar to" or (2) not "as effective as" a tailgate. In the instant While the scow design may, arguably, prevent some cargo from falling, it does not prevent shifting. In the case of gravel, a solid tailgate would logically be required. One need only look at the picture of the rear of the fully loaded dump truck to understand this point. 2000-2655 CRIMINAL case, we were satisfied that it proved both. Unconstitutionally Vague. Defendant next argues that the statute in question is unconstitutionally vague and, therefore, void. There is nothing of record to indicate that the constitutionality of the statute was challenged before us. We recognize that failure to raise an issue in the lower court operates as a waiver of that issue. Commonwealth v. Walton, 483 Pa. 588, 397 A.2d 1179 (1979). However, in fairness to the defendant, it did raise the matter in a memorandum of law presented in our chambers the day of the heating. We were aware of the issue at trial, and we are relatively certain that the parties addressed it in their closing arguments.7 In any event, we are satisfied that the statute is not unconstitutionally vague. The Pennsylvania Supreme Court discussed the "void for vagueness doctrine" in Commonwealth v. Bared 545 Pa. 297, 681 A.2d 162, 165 (1996). As the Court stated' "As generally stated, the void for vagueness doctrine requires that a penal statute 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." Mikulan, supra at 251,470 A.2d at 1342, quoting, Kolenderv. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). See Commonwealth v. Burt, 490 Pa. 173, 177-78, 415 A.2d 89, 91 (1980), quoting, Colautti v. Franklin, 439 U.S. 379, 390, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979) (a statute is void for vagueness if it" 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" '). Due process requirements are satisfied if the statute provides reasonable standards by which a person may gauge their future conduct. Commonwealth v. Heinbaugh, 467 Pa. 1, 6, 354 A.2d 244, 246 (1976), citing, United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 320-21, 46 L.Ed2d 228 (1975). ? By agreement of the parties, closing arguments were held off the record. 2000-2655 CRIMINAL 681 A.2d at 165. The statute in this case clearly requires that a vehicle use a tailgate (Option A) or means "similar to, and at least as effective as" a tailgate (option D) to prevent shifting and falling gravel. There is nothing vague about the language in Option A. While the "similar to, and at least as effective as" language of Option D may be less than precise, we are satisfied that it gives fair notice as to what is acceptable and does not lend itself to arbitrary or discriminatory enforcement. Even if Option D might be construed to be unconstitutionally vague in some circumstances, as applied to the defendant, it is not. There is no suggestion that the bed design of defendant's dump truck is similar to "a rear endgate, endboard, or stakes.''8 Since there is no contention that the design of the truck was "similar to" nor any credible evidence that it was "as effective as", the devices set forth in Option A, the defendant has no standing to challenge the constitutionality of the statue as appli DATE Edward E. Guido, J. Jaime Keating, Esquire For the Commonwealth Michael J. Cassidy, Esquire David DeLuce, Esquire For the Defendant The defendant did not contend that the design of the bed was~. ~similar to. t h6s~. ,~levices set forth in Option A. The crux of its argument at trial was that the design wa~¢~ffective.as' ~ i~,.~ate in preventing gravel from falhng onto the road. We note that we d~d not find ~ts ev~gynce on th~s~.~ssue to be persuasive. 9 "A traditional principle of constitutional adjudication is that a person to whom a statute may constitutionally be applied will not be heard to challenge l{l~t, s~l~l~n~e g~u~that it may be applied unconstitutionally to others in situations not before the Co[fl~."'~o~onwealth v. Stock, 346 Pa. Super. 60, 66, 499 A,2d 308, 311, (1985).