HomeMy WebLinkAboutCP-21-SA-0000007–2012
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V. :
:
WALTER J. HILL : CP-21-SA-0007 – 2012
:
: CP-21-SA-0068 – 2012
:
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., December , 2012
The defendant was charged with violating Vehicle Code Sections 4703 (a) (expired
1
inspection sticker) and 4107 (b) (2) (unlawful activities, improper window tint). Since the
citations had been issued on separate days they were docketed separately. However, because
they were issued by the same officer, we held both hearings on the same day, July 10, 2012.
After each hearing we found the defendant guilty and imposed the statutorily mandated fines
2
and costs. The defendant has filed the instant appeals.
In order to clarify the issues in each case we asked defendant to file a concise statement
3
of the errors complained of on appeal. It appears the only issue raised in connection with the
4
inspection sticker violation is that the officer did not have probable cause to stop his vehicle.
With regard to the conviction for improper window tint he contends 1) the statute is
unenforceable as it applies to window tinting because Vehicle Code Section 4524 (windshield
1
75 Pa. C.S.A. § 4703 (a) and 4107 (b) (2).
2
The Superior Court has consolidated the appeals pursuant to Pa. R.A.P. 513.
3
Pa. R.A.P. 1925 (b).
4
See “Appellant’s Rule 1925 (b) Statement” at 1425 MD 2012.
5
obstructions and wipers) is a more specific statute; and 2) it is improper to use a tint meter to
6
enforce Vehicle Code Section 4107 (b) (2). We will discuss each of those issues in the opinion
that follows.
FACTUAL BACKGROUND
On the morning of November 23, 2011 Patrolman David Rogers of the Carlisle Borough
Police Department stopped the defendant’s vehicle because the inspection sticker displayed in
7
the windshield had expired. The defendant acknowledged that he was aware of the expired
8
sticker. He explained that he was waiting for some parts, without which his vehicle would not
9
pass inspection. The officer issued a citation for violating Section 4703 (a) of the Vehicle Code.
During the stop for the expired inspection sticker the officer also measured the tint on
defendant’s windshield. He found it to be in violation of Section 4107 (b) (2) of the Vehicle
1011
Code. He gave the defendant a verbal warning with a direction to correct the illegal tint.
Three months later, on February 22, 2012, Officer Rogers encountered the defendant
12
driving the same vehicle. It appeared that the windshield tint was still illegal. On that basis he
13
initiated a traffic stop. He again used a tint meter to measure the light transmittal. Prior to
using the meter he tested it on two pieces of glass provided by the manufacturer “with tested
5
75 Pa. C.S.A. § 4724.
6
See “Appellant’s Rule 1925 (b) Statement” at 1426 MD 2012.
7
Transcript of Proceedings, July 10, 2012, p. 19.
8
Transcript of Proceedings, July 10, 2012, p. 20.
9
Transcript of Proceedings, July 10, 2012, p. 20.
10
Transcript of Proceedings, July 10, 2012, p. 20.
11
Transcript of Proceedings, July 10, 2012, p. 20.
12
Transcript of Proceedings, July 10, 2012, p. 3.
13
Transcript of Proceedings, July 10, 2012, p. 4.
2
14
and calibrated numbers for light transmittance.” The tint meter was working within the
15
manufacturer’s specifications. The windshield registered a light transmittance of only twenty
16
five per cent which was identical to the measurement in November. The twenty five percent
reading is well below the seventy per cent light transmittal required by Section 4107 (b) (2) of
17
the Vehicle Code.
DISCUSSION
Probable Cause to Stop: 4703 (a) Violation
The officer testified that he stopped the defendant’s vehicle on November 23, 2011
18
because “it displayed a 6 of 11 inspection and emission sticker on the windshield.” His
observation clearly gave him probable cause to believe the defendant was operating his vehicle
19
in violation of Section 4703 (a) of the Vehicle Code.
Defendant argues that the officer’s testimony was not credible because he gave
20
inconsistent reasons for the stop. He points to the officer’s testimony in the hearing on the
4107 (b) (2) violation where he stated “this had been the second time I had stopped the
21
defendant for window tint.” We found nothing inconsistent in that testimony. The first stop
was directly related to the expired inspection sticker. Pursuant to that stop he issued a citation.
14
Transcript of Proceedings, July 10, 2012, p. 5.
15
Transcript of Proceedings, July 10, 2012, p. 5.
16
Transcript of Proceedings, July 10, 2012, p. 5.
17
See Pa. Code § 175.67 (b) (4) and Table X referred to thereon.
18
Transcript of Proceedings, July 10, 2012, p. 19.
19
The relevant portions provide as follows:
. . . (N)o motor vehicle . . . shall be driven . . . unless the vehicle displays a current valid certificate of
inspection issued under this chapter. 75 Pa. C.S.A. § 4703 (a).
20
See “Appellant’s Rule 1925 (b) Statement, page 3 of 7 unnumbered pages.
21
See “Appellant’s Rule 1925 (b) Statement, page 3 of 7 unnumbered pages. See also Transcript of Proceedings,
July 10, 2012, p. 5.
3
As an ancillary matter he gave the defendant a verbal warning to correct the illegal windshield
tint. The defendant did not follow through. His lack of action led to the second stop.
Unenforceability of Section 4107 (b) (2)
“It is the well settled law of this Commonwealth that prosecutions under general
provisions of a penal code are prohibited where applicable special provisions are available.”
Commonwealth v. Miller, 414 Pa. Super 56 at 61, 606 A.2d 495 at 497 (Pa. Super 1992).
Defendant argues that this principle required that he be prosecuted under Section 4524 (e) of
22
the Vehicle Code rather than Section 4107 (b) (2).
In the first instance we note that the defendant never raised this issue at trial.
Therefore, we are not in a position to explain our reasons for not dismissing the prosecution on
23
those grounds.
Nevertheless we are satisfied that under the facts of this case Section 4524 (e) does not
bar the prosecution of defendant for violating Section 4107 (b). The bar to prosecution only
applies where the two statutes “irreconcilably conflict. “ Com. v. Gautieri, 431 Pa. Super 412,
636 A.2d 1153 (Pa. Super. 1994) quoting from Com. v. Warner, 504 Pa. 600, 476 A.2d 341
(1984). Section 4524 (e) provides in relevant part:
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…
22
See “Appellant’s Rule 1925 (b) Statement”, page 3 of 8 unnumbered pages.
23
See Pa. R.A.P. 1925 (a).
4
75 Pa. C.S.A. § 4524 (e) (1) (emphasis added). Whereas 4107 (b) (2) makes it unlawful to
operate a vehicle which is in “violation of department regulations.” 75 Pa. C.S.A. § 4107 (b) (2).
The applicable department regulations are contained in 67 Pa. Code 175.67 (d) (4) and Table X.
Those regulations require sun screening on the windshield to have a light transmittal level of at
least seventy percent.
These statutes do not irreconcilably conflict. It is clear that a violation of Section 4524
(e) (1) would also be a violation of Section 4107 (b) (2). If the windshield tint precludes one
from seeing inside the vehicle, the light transmittance is obviously less than seventy percent.
However, a violation of Section 4107 (b) (2) does not necessarily involve a violation of Section
4524 (e) (1).
In this case the defendant could not have been charged under Section 4524 (e) because
the officer was able to read the inspection sticker affixed to the inside of the windshield. In
rd
Commonwealth v. Brubaker, 5 A. 3 261 (Pa. Super 2010) the Court overturned a conviction
under Section 4524 (e) where the officer testified that he could see through the windshield. It
went on to suggest that the proper charge would have been under Section 4107 (b) (2). Id.
Reliability of the Tint Meter
Defendant’s last issue involves the use of a tint meter by Officer Rogers to measure the
light transmittal level of the screening material on his windshield. He argues that the use of
such a tool is not authorized by the statute or regulations.
5
Again we note that we were not asked to address this issue at trial. At no time did
defendant’s counsel object to the officer’s testimony regarding the results of the tint meter.
Because we were confused by his disjointed references to the tint meter in his closing
argument, we sought clarification of his position with the following exchange:
THE COURT: Do you have a case or a statute that holds that the use of the tint meter is
inadmissible, if that’s what you were getting at, or are you attacking the credibility of
the meter because of the age of the glass?
MR. SUCEC: I’m attacking the credibility of the meter because of the age of the glass.
THE COURT: Okay.
MR. SUCEC: I’m also attacking the credibility of the meter because there are no
documented records regarding the calibration of the meter. Now, the officer testified
that he calibrated it that morning but there are no written records to indicate that he
24
did. There’s nothing to verify that basically.
As a result we focused upon the reliability rather than the admissibility of the tint meter
measurements.
Based upon the testimony of Officer Rogers we found the results to have been reliable.
The tint meter at issue had been in use by the Carlisle Police Department since 1998. It was
tested by the officer using pre-certified pieces of glass provided by the manufacturer. The
results of the test were well within the plus or minus two percent tolerances required by the
manufacturer. The light transmittal measured on the defendant’s windshield was twenty five
25
percent, far below the seventy percent reading required to be lawful.
24
Transcript of Proceedings, July 10, 2012, pp. 14, 15.
25
We also note that the Superior Court in Commonwealth v. Brubaker, supra, suggested in dicta that a tint meter
reading would be appropriate in a prosecution under Section 4107 (b) (2).
6
________________ ________________________
DATE Edward E. Guido, J.
District Attorney
Cumberland County Courthouse
1 Courthouse Square – Room 202
Carlisle, Pa. 17013
Joseph T. Sucec, Esquire
325 Peach Glen-Idaville Road
Gardners, Pa. 17324
:sld
7