Com. v. Salter, T.

J-A19042-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TESEAN LAMONT SALTER :

:

Appellant : No. 1428 WDA 2024

Appeal from the Judgment of Sentence Entered May 13, 2024

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0001105-2023

BEFORE: BOWES, J., STABILE, J., and BENDER, P.J.E.

MEMORANDUM BY BOWES, J.: FILED: NOVEMBER 12, 2025

Tesean Lamont Salter appeals from the sentence of eighteen months of

probation and the issuance of a $25 fine following his conviction for firearms

not to be carried without a license, driving without a license, and failure to use

a safety belt. We affirm the sentence of eighteen months of probation, but

vacate the conviction of failure to use a safety belt and the corresponding fine.

The trial court summarized the facts of the case in its order denying

Appellant’s motion to suppress:

[On December 31, 2022, Officer Craig Sulkowski of the Pittsburgh

Police Department arrived] at 1200 Stanmore Street due to a

complaint that there were approximately 150 juveniles at an

Airbnb. Officer Sulkowski observed four individuals enter a black

Honda CRV that was parked across the street from the Airbnb.

Officer Sulkowski observed that after the individuals entered the

vehicle, it began to back up as if it was attempting to leave its

parking space. . . . [The officer] did not believe the vehicle “had

anywhere else to go” due to the police vehicles being parked in

the middle of the street and . . . decided to approach the vehicle.

J-A19042-25

As [Officer Sulkowski] approached the vehicle [aided by his

flashlight], he noticed that a passenger was holding an open

container of alcohol and that the driver[, Appellant,] was not

wearing a seat belt. Further, [the officer directly observed front

passenger Anando Johnson roll] down his window and [dispose]

of what Officer Sulkowski believed to be a marijuana cigar.

....

After Officer Sulkowski approached the vehicle and began to

interact with its occupants, he observed that . . . Johnson was

nervous[,] . . . “biting his nails, and touching his face.” In

addition, when asked if he had any firearms in the vehicle . . .

Johnson replied, “‘no,’ broke eye contact with [Officer Sulkowski,]

and looked down at his waistband.”

Due to . . . Johnson’s actions, as well as Officer Sulkowski’s

experience and knowledge of numerous Airbnb incidents involving

shootings, [the officer] had reasonable and articulable suspicion

that . . . Johnson was in possession of a firearm[,] justifying his

request for [identification from the vehicle’s occupants, asking] .

. . Johnson to step out of the vehicle and be subject to a pat-down.

After locating a firearm and baggies containing suspected

marijuana in . . . Johnson’s pants, Officer Sulkowski requested

that the remaining occupants be removed from the vehicle to

conduct a wingspan search.

[When Appellant] was removed from the vehicle, Officer

Sulkowski looked through the windshield and observed a firearm

under his seat. As Officer Sulkowski was aware that neither

[Appellant] nor the other occupants of the vehicle possessed a

license to carry a concealed weapon [based upon running their

information through the NCIS system], the incriminating nature

of the firearm was readily apparent and a warrant was not

required.

Order of Court, 1/11/24, at 1-3 (cleaned up, paragraph numbers omitted).

The Commonwealth charged Appellant with firearms not to be carried

without a license, driving without a license, and failure to use a safety belt.

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As will be discussed in further detail below, the safety belt violation was

charged pursuant to 75 Pa.C.S. § 4581(a)(2)(i), which pertains to the

requirement of ensuring that drivers and passengers under the age of

eighteen years old are properly restrained. The Commonwealth also accused

Johnson of violating the statutes for firearms not to be carried without a

license, along with other crimes that were eventually withdrawn by the

Commonwealth. All counts were held for court at the conclusion of a

preliminary hearing. Both co-defendants filed a suppression motion, with

Appellant arguing that the warrantless search of his car violated his rights

afforded by both Article I, § 8 of the Pennsylvania Constitution and the Fourth

Amendment to the United States Constitution.

In a joint hearing, the trial court reviewed the audio-video recording

from Officer Sulkowski’s body camera capturing the incident. Following the

hearing, the court denied the motions, finding that Officer Sulkowski had: (1)

probable cause to stop the vehicle due to seeing a passenger holding an open

container of alcohol, Appellant not wearing a seatbelt, and Johnson discarding

a marijuana blunt; (2) reasonable and articulable suspicion that Johnson was

carrying a firearm without a license, providing justification for Officer

Sulkowski’s request for him to step out of the vehicle and be subject to a pat-

down; (3) upon discovering Johnson possessed a firearm without a license

and bags of marijuana, valid reasons for ordering the remaining occupants

out of the vehicle for safety; (4) plain sight of a firearm under the driver’s seat

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as Appellant exited the vehicle; and (5) grounds for making a custodial arrest

of Appellant without a warrant because Appellant did not have a license to

carry. See Order of Court, 1/11/24, at 1-3. Johnson filed, and Appellant

joined, a motion to reconsider the suppression ruling, which the trial court

denied.

Both Appellant and Johnson waived their right to a jury, proceeding to

stipulated bench trials that were conducted concurrently. The stipulations

included that the vehicle in question belonged to Appellant’s mother, and that

the handgun was operable and met the statutory definition of a firearm. See

N.T. Trial, 4/3/24, at 7-8. At the trial’s conclusion, the court found Appellant

guilty of all three charges. Appellant was sentenced as indicated above, with

the court imposing probation for the firearms conviction and a $25 fine for

violating the safety belt provision. Appellant retained new counsel who filed,

with leave of court, a post-sentence motion nunc pro tunc. The court denied

the motion and this timely appeal followed.1 Both the trial court and Appellant

abided by their duties prescribed by Pa.R.A.P. 1925.

____________________________________________

1 The deadline for the court to decide Appellant’s post-sentence motion

expired on October 3, 2024, but the clerk of courts failed to enter an order

deeming the motion denied. Instead, the trial court denied the post-sentence

motion on November 18, 2025, and Appellant filed an appeal the next day.

This deviation from the mandates of Pa.R.Crim.P. 720(B)(3)(c) qualifies as a

court breakdown. See, e.g., Commonwealth v. Patterson, 940 A.2d 493,

499-500 (Pa.Super. 2007) (determining court breakdown caused appellant to

delay filing of appeal). Accordingly, this Court declines to quash the appeal

and proceeds to consider Appellant’s substantive issues.

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Appellant raises five issues on appeal, which we have reordered for ease

of disposition:

1. Whether the court of common pleas erred in denying [Appellant’s]

motion to suppress when [Appellant] and his vehicle were seized based

only upon him not wearing a seatbelt when operating a motor vehicle

and frequent presence of guns at overcrowded Airbnb gatherings

involving juveniles?

2. Whether the evidence was sufficient to show [Appellant] had

constructive possession of the firearm found under his seat in a vehicle

when there were four occupants of that vehicle, including a passenger

behind [Appellant]?

3. Whether the evidence [was] insufficient to establish the requisite

barrel length of the firearm to support the conviction for possession of

firearm without a license under 18 Pa.C.S. § 6106(a)?

4. Whether the evidence to support the conviction at Count 3 (75 Pa.C.S.

§ 4581(a)(2)(i)) was insufficient where no evidence was presented to

show that any of the [four] occupants were under the age of [eighteen]

year[s]—which is a necessary element of that offense—and, on the

contrary, all occupants were over the age of [eighteen] years at the time

of the offense on December 31, 2022?

5. Whether the $25.00 fine imposed at Count 3 is illegal because 75

Pa.C.S. § 4581(b) limits the fine to $10.00 for all violations of 75 Pa.C.S.

§ 4581(a)(2)?

Appellant’s brief at 4 (cleaned up).

We first examine Appellant’s challenge to the court’s denial of his

suppression motion. Our applicable standard of review “is de novo and is

limited to determining whether the suppression court’s factual findings are

supported by the record and whether the legal conclusions drawn from those

facts are correct.” Commonwealth v. Green, 265 A.3d 541, 550 (Pa. 2021)

(cleaned up). “[W]e may consider only the evidence of the Commonwealth

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and so much evidence for the defense as remains uncontradicted. Our scope

of review of suppression rulings includes only the suppression hearing record

and excludes evidence elicited at trial.” Commonwealth v. Hoyle, 337 A.3d

544, 561 (Pa.Super. 2025) (citation omitted). At the suppression hearing, the

Commonwealth bears the burden of establishing by a preponderance of the

evidence that the evidence was lawfully obtained. See Commonwealth v.

Shackelford, 293 A.3d 692, 698 (Pa.Super. 2023).

The Commonwealth recognizes three types of police interactions with

members of the public, each requiring a different requisite level of suspicion:

The first is a mere encounter, sometimes referred to as a

consensual encounter, which does not require the officer to have

any suspicion that the citizen is or has been engaged in criminal

activity. This interaction also does not compel the citizen to stop

or respond to the officer. A mere encounter does not constitute a

seizure, as the citizen is free to choose whether to engage with

the officer and comply with any requests made or, conversely, to

ignore the officer and continue on his or her way. The second

type of interaction, an investigative detention, is a temporary

detention of a citizen. This interaction constitutes a seizure of a

person, and to be constitutionally valid police must have a

reasonable suspicion that criminal activity is afoot. The third, a

custodial detention, is the functional equivalent of an arrest and

must be supported by probable cause. A custodial detention also

constitutes a seizure.

Commonwealth v. Adams, 205 A.3d 1195, 1199-200 (Pa. 2019) (cleaned

up). This Court employs the “free to leave test,” requiring the court to

evaluate the totality of the circumstances and determine whether the officer’s

conduct would have communicated to a reasonable person that they were free

to ignore the officer and leave the scene, demarcating the line between mere

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encounter and investigative detention. See Adams, 205 A.3d at 1200. A

person is considered seized when their freedom of movement is restrained by

the officer’s conduct. Id. (citing Terry v. Ohio, 392 U.S. 1, 16 (1968)).

Investigatory stops, involving a period of detention but not involving an

arrest, require reasonable suspicion. See Commonwealth v. Goodwin, 750

A.2d 795, 798 (Pa. 2000) (citing Terry, 392 U.S. at 1). Reasonable suspicion

requires “specific and articulable facts which lead them to suspect criminal

activity.” Commonwealth v. Melendez, 676 A.2d 226, 228 (Pa. 1996)

(cleaned up). “[A] police officer must be able to point to specific and

articulable facts and reasonable inferences drawn from those facts in light of

the officer’s experience.” Commonwealth v. Valentin, 748 A.2d 711, 714

(Pa.Super. 2000) (cleaned up). Investigative stops must be based on more

than just “inarticulate hunches.” Terry, 392 U.S. 1 at 22.

Finally, we note that “the subjective intent of the law enforcement officer

is irrelevant in determining whether that officer’s actions violate the Fourth

Amendment." Commonwealth v. Jackson, 302 A.3d 737, 748 (Pa. 2023).

At the root of Appellant’s claim is the question of when Officer

Sulkowski’s interaction with the co-defendants became an investigative

detention. He asserts that the officer acquired reasonable suspicion of

criminal activity only after he had effectuated a stop, which according to

Appellant was “by the time he approached the vehicle [with his flashlight in

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hand] on the right from the front and his partner, Officer Castanzo2, following

behind, round[ed] the front of the vehicle and turned to approach the driver’s

side.” Appellant’s brief at 17-18. Stated another way, the stop occurred when

the officers approached near the car. At this point, Appellant avers that his

vehicle was blocked from leaving the scene by police. Id. at 18-19.

Therefore, Appellant contends that the only articulable facts formulating

Officer Sulkowski’s actions at that moment would have been the safety belt

violation and his prior experience in responding to juvenile Airbnb parties. Id.

at 20. Appellant points to caselaw for the proposition that a traffic stop cannot

be conducted based on a seat belt violation alone. Id. at 15-16 (citing

Commonwealth v. Henderson, 663 A.2d 728, 735 (Pa.Super. 1995) (en

banc)).

The trial did not determine the precise moment it believed an

investigatory detention occurred in this matter, but it nonetheless found that

Officer Sulkowski acquired the requisite suspicion to stop the vehicle once he

had sighted: (1) a passenger holding an open container of alcohol; (2)

Appellant not wearing a seatbelt; and (3) Johnson rolling down his window

and disposing a marijuana cigar.” See Order of Court, 1/11/24, at 2.

For its part, the Commonwealth maintains that Officer Sulkowski only

engaged in a mere encounter when he originally approached the vehicle with

the flashlight drawn. It rejects that the officer “stopped” the vehicle before

____________________________________________

2 Officer Castanzo’s first name does not appear in the record.

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giving any commands because there was not “any tone or demeanor exhibited

by the officer that would have qualified as a particular show of authority or

exercise of force.” Commonwealth’s brief at 24. Rather, Officer Sulkowski

merely approached Appellant’s vehicle “with a flashlight as the street filled

with people leaving the party at the Airbnb.” Id. The Commonwealth points

to the fact that the road obstacles posed by the police vehicles were in place

prior to Appellant entering his car, which prevents him from asserting that he

was trapped by police so as to manufacture an investigative detention. Id. at

23-24.

Upon review, we find that the trial court did not err in denying

Appellant’s motion to suppress. Appellant’s contention that Officer Sulkowski

initiated an investigative detention without the requisite suspicion of criminal

activity is plainly belied by the record. The body camera footage from the

officer confirmed that he watched Johnson throw the marijuana cigar into the

street from only a few feet away, before taking any action beyond simply

approaching with the flashlight. This was in addition to observing Appellant

being unbuckled, despite attempting to back the car up, and another individual

holding open alcohol in the vehicle. Only subsequent to seeing all of those

things did the officer then initiate a conversation and ask for identification,

which was thus when the mere encounter escalated to an investigative

detention.

We have no trouble discerning that at that point, the officer not only had

reasonable suspicion but also probable cause, permitting him to conduct

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further inquiry into whether criminal activity was afoot and to what extent

Appellant was involved. See Commonwealth v. Rice, 304 A.3d 1255, 1261

(Pa.Super. 2023). Further, to the extent that Appellant’s argument relies on

Officer Sulkowski’s subjective belief, that he “seized” the vehicle at the

moment he approached with his flashlight engaged, that is not controlling.

See Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa.Super. 2009). See

also Maryland v. Macon, 472 U.S. 463, 470 (1985) (“Whether a Fourth

Amendment violation has occurred turns on an objective assessment of the

officer’s actions in light of the facts and circumstances confronting him at the

time[.]” (cleaned up)). Finally, Appellant has not persuaded us that there was

an investigative detention when the officer approached on foot merely

because there were other police cars parked within the street and that it would

have been difficult to pull around the officer. The cases he relies upon, where

police actively block a defendant’s vehicle as part of a stop, are plainly

distinguishable. Accordingly, we find that the suppression court’s factual

findings are correct and supported by the record. See Green, 265 A.3d at

550.

Appellant next raises three challenges to the sufficiency of the evidence

supporting his convictions, which we address together. Sufficiency contests

are pure questions of law, with a de novo standard of review and a plenary

scope of review. See Commonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa.

2017). This Court is required to consider the evidence presented at trial in a

light most favorable to the Commonwealth, allowing for reasonable

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inferences. See Commonwealth v. Briggs, 12 A.3d 291, 306 (Pa. 2011).

Evidence is legally sufficient if the Commonwealth proves all elements of a

charge beyond a reasonable doubt. Id. at 306. “As a reviewing court, we

may not weigh the evidence and substitute our judgment for that of the fact-

finder. Furthermore, a fact-finder is free to believe all, part or none of the

evidence presented.” Commonwealth v. Brooks, 7 A.3d 852, 860

(Pa.Super. 2010) (citation omitted). Doubts pertaining to a defendant’s guilt

may be resolved by the fact-finder “unless the evidence is so weak and

inconclusive that as a matter of law no probability of fact may be drawn from

the combined circumstances. The Commonwealth may sustain its burden of

proving every element of the crime beyond a reasonable doubt by means of

wholly circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657,

661 (Pa.Super. 2007) (citation omitted).

Appellant’s first sufficiency claim asserts that the evidence was

inadequate to show that he had constructive possession of the firearm found

under his seat, arguing that the totality of the circumstances only reflect his

proximity to the firearm, not his knowledge of its existence. See Appellant’s

brief at 37.

Our Crimes Code states that “[a]ny person who carries a firearm in any

vehicle . . . without a valid and lawfully issued license under this chapter

commits a felony of the third degree.” 18 Pa.C.S. § 6106(a)(1). Possession

of contraband can be established by proving actual possession, constructive

possession, or joint possession. See Commonwealth v. Bowens, 265 A.3d

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730, 741 (Pa.Super. 2021). We have stated that constructive possession can

be found where an individual does not have “actual possession” over

contraband but does have “conscious dominion.” Commonwealth v.

Heidler, 741 A.2d 213, 215-16 (Pa.Super. 1999) (en banc). An individual

lacks conscious dominion “where another person has equal access to the area

where illegal contraband . . . is found.” Heidler, 741 A.2d at 216.

Additionally, “conscious dominion . . . requires two elements: the power

to control the contraband and the intent to exert such control.”

Commonwealth v. Battle, 883 A.2d 641, 645 (Pa.Super. 2005) (cleaned

up). Constructive possession can be inferred through whether the defendant

was more likely than not in possession of contraband, further aided by the

establishment of the totality of the circumstances. See Commonwealth v.

Best, 120 A.3d 329, 343 (Pa.Super 2015). “Mere presence or proximity to

the contraband is not enough.” Commonwealth v. Peters, 218 A.3d 1206,

1209 (2019) (citation omitted).

Appellant argues that the evidence only established his presence near

the weapon, and therefore constructive possession cannot as a matter of law

be proven through a totality of the circumstances. See Appellant’s brief at

39. He relies on Commonwealth v. Boatwright, 453 A.2d 1058, 1059

(Pa.Super. 1982), for support. In that case, the defendant was determined

not to have constructive possession of a firearm found on the left rear floor of

a vehicle, despite the defendant, who was sitting in the front passenger seat,

making a furtive movement towards the left rear seat immediately prior to the

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officer opening the vehicle door and discovering the firearm. Id. at 1059. In

so concluding, we noted that “[t]he officer could not see [the defendant]’s

hand or arm, only a movement of his body.” Id. at 1058. Furthermore, “[t]he

car was registered to the driver’s girlfriend and the gun to [another

individual].” Id.

The Commonwealth counters with a number of other factors not

considered by Appellant, which tend to establish the power and intent to

control the firearm. These include the car’s registration to Appellant’s mother,

the clear visibility of the firearm to Officer Sulkowski while standing outside

the vehicle, and the lack of space below Appellant’s seat which prevented the

weapon’s placement by either of the backseat passengers. See

Commonwealth’s brief at 37.

We agree with the Commonwealth that it produced sufficient evidence

to support Appellant’s conviction. To begin, the circumstances here are

decidedly different than in Boatwright. The trial court found Officer

Sulkowski’s suppression testimony credible, and that testimony was

incorporated at the stipulated bench trial. N.T. Trial, 4/3/24, at 25. Appellant

was the driver and in control of the vehicle, unlike Boatwright, who was a

passenger. Id. at 13. The parties stipulated at trial to the vehicle in question

being registered to Appellant’s mother. Id. at 15-19. Appellant’s front-seat

passenger, Johnson, was found to be in actual possession of a separate

firearm on his person. See N.T. Suppression, 11/6/23, at 11. Importantly,

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the firearm was under Appellant’s seat, and thus within easy reach. Id. at

26-27.

Additionally, Officer Sulkowski’s testimony at the preliminary hearing,

which was incorporated into the record at the subsequent suppression hearing

and stipulated trial, established that the firearm could not slide any further

under the seat towards the back, further supporting the inference that the

firearm under the driver’s seat was placed there by Appellant, the driver. See

N.T. Trial, 4/3/24, at 7 (incorporating the suppression record for trial). These

facts mitigate the Hiedler Court’s guiding concern that someone else had

“equal access” to the firearm. See, e.g., Commonwealth v. McIntyre, 333

A.3d 417, 433 (Pa.Super. 2025) (“Here, unlike in Heidler, no one other than

the accused had equal access to or control of the firearm in this case.”).

Viewed in the light most favorable to the Commonwealth, the totality of

the circumstances established that Appellant had both the power to control

and the intent to exert such control over the firearm. See Battle, 883 A.2d

at 645. Accordingly, no relief is due.

We next turn to Appellant’s assertion that the evidence presented at

trial was insufficient to support the conviction for possession of a firearm

without a license because the Commonwealth did not establish that the

weapon seized from the vehicle was a “firearm.” Appellant’s brief at 34. As

noted previously, anyone carrying a firearm in a vehicle without “a valid and

lawfully issued license under this chapter commits a felony of the third

degree.” 18 Pa.C.S. § 6106(a)(1). The definition of firearm is as follows:

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Any pistol or revolver with a barrel length less than [fifteen] inches

. . . or any pistol . . . with an overall length of less than [twenty-

six] inches. The barrel length of a firearm shall be determined by

measuring from the muzzle of the barrel to the face of the closed

action, bolt or cylinder, whichever is applicable.

18 Pa.C.S. § 6102(2).

Further, as discussed, Appellant entered into a stipulation at trial that

the recovered weapon met the statutory definition of a firearm. “[F]or a

stipulation to be enforceable it must be valid. While parties have wide latitude

to enter into valid and enforceable stipulations, that ability is not unfettered.

. . . [P]arties cannot stipulate to matters affecting the jurisdiction, business,

or convenience of the courts.” Commonwealth v. Perrin, 291 A.3d 337,

345 (Pa. 2023). Courts still have discretion to accept or reject factual

stipulations and are not “relegated to a mere rubber stamp for the parties.”

Id. at 344-45. See also Commonwealth v. Padilla, 80 A.3d 1238, 1272

(Pa. 2013) (holding that challenges to the sufficiency of the evidence must be

evaluated based on all evidence admitted at trial, including stipulations, and

that such challenges cannot serve as an alternative means to review trial court

or counsel errors).

We recount that at trial, both Appellant and Johnson stipulated “to the

admissibility and authenticity of the Allegheny County Crime Lab . . . [report]

which showed that both firearms seized in this case were sent to the crime

lab, tested by the crime lab and found to be operable meeting the definition

of a firearm.” N.T. Trial, 4/3/24, at 7-8 (emphasis added). Based on this,

the trial court concluded in its opinion that both defendants therefore

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stipulated to the seized firearms as meeting the statutory definition of firearm.

See Opinion of Court, 1/23/25, at 3-4.

The court’s finding is not in error. The evidence, viewed in the

Commonwealth’s favor, plainly reflects the stipulations in question. Despite

Appellant’s contention, the stipulation on the record is not limited merely to

operability, but also expressly acknowledged the definition of “firearm” being

satisfied. Appellant cannot now be heard for the first time on appeal to allege

that the stipulation was limited in scope, despite its broad language.

Moreover, aside from the stipulation, we note that the handgun was

visible on Officer Sulkowski’s body camera when it was held in the officer’s

hand, which a factfinder could then rely upon to ascertain the barrel length or

overall length. See, e.g., Commonwealth v. Jennings, 427 A.2d 231, 235

(Pa. 1981) (determining that firearm barrel length can be established by

circumstantial evidence such as sight, feel, or sound). Although Appellant

avers that the slide of the firearm exceeded the stretch of the officer’s hand,

this did not prevent the court from determining that the handgun overall or

its barrel was sufficiently short as to constitute a firearm. See, e.g., Bruce,

916 A.2d at 661 (holding that doubts pertaining to a defendant’s guilt may be

resolved by the fact-finder “unless the evidence is so weak and inconclusive

that as a matter of law no probability of fact may be drawn from the combined

circumstances”). Consequently, we do not disturb this finding.

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Appellant’s final sufficiency challenge claims that the Commonwealth’s

failure to present evidence demonstrating the age of either him or the

occupants of the vehicle amounts to a failure to produce one of the necessary

elements of the failure to use a safety belt charge. We are constrained to

agree.

The relevant statute is 75 Pa.C.S. § 4581, and which reads as follows in

relevant part:

(a) Occupant protection.

....

(2)(i) The driver of a passenger car, Class I truck, Class II

truck or motor home operated in this Commonwealth shall:

(A) if under 18 years of age, be secured in a

properly adjusted and fastened safety seat belt

system; and

(B) secure or cause to be secured in a properly

adjusted and fastened safety seat belt every vehicle

occupant eight years of age or older but under 18

years of age.

(ii) Except for children under 18 years of age and

except as provided in paragraphs (1) and (1.1) and

subparagraph (i), each driver and front seat occupant of a

passenger car, Class I truck, Class II truck, classic motor

vehicle, antique motor vehicle or motor home operated in

this Commonwealth shall wear a properly adjusted and

fastened safety seat belt system.

....

(b) Offense. — Anyone who fails to comply with the provisions of

subsection (a)(1) or (1.1) commits a summary offense and shall,

upon conviction, be sentenced to pay a fine of $75.

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75 Pa.C.S. § 4581 (emphases added).

Read as a whole, age is a present and clear element to prove a

conviction under any of the subsections listed above. Appellant correctly notes

in his brief that the Commonwealth never presented at trial evidence of the

ages of him or the passengers, despite him being charged with

§ 4581(a)(2)(i). See Appellant’s brief at 21. The trial court opined that there

was a “scrivener’s error” within the criminal information and that Appellant

“should have been charged under [subsection (a)(2)(ii), not (a)(2)(i)].” Trial

Court Opinion, 1/23/25, at 3.

The Commonwealth attempts to characterize Appellant’s sufficiency

challenge as an allegation of error in the criminal information, which, if

successful, could result in waiver of this issue under Pa.R.A.P. 302(a).3 While

there is clearly a discrepancy between the section charged against Appellant

and the evidence adduced at trial, we differentiate from the circumstances

presented in Commonwealth v. Demulter, 314 A.3d 934, 938 (Pa.Super.

2024), which the Commonwealth attempts to apply here. See

Commonwealth’s brief at 28-29. In Demulter, this Court determined that the

defendant’s sufficiency challenge for a conviction of intimidation of a witness

was, in fact, a contention that a mistake had been made in the criminal

____________________________________________

3 In response, Appellant reaffirms his intent that the issue was one of

sufficiency rather than an error in the criminal information. See Appellant’s

reply brief at 5.

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information. See Demulter, 314 A.3d at 938. The conflicting subsections of

the statute at issue there were between the prevention of reporting a crime

versus the intimidation to discourage witness testimony, the statute

dividing each subsection by mode of occurrence. Id. at 938. Specifically, the

defendant was charged with the crime of preventing a witness from reporting,

whereas the evidence at trial clearly went to the subsection concerning

prevention of witness testimony. We concluded that since Demulter did not

challenge the criminal information or point out that the wrong subsection was

charged, the issue was waived.4

In the case sub judice, 75 Pa.C.S. § 4581(a)(2), clearly divides each

subsection of the statute by age. Regardless of whether Appellant was

charged with subsection (2)(i) or (2)(ii), as the trial court opined, evidence of

age was a necessary element of the Commonwealth’s proving a violation of

failure to use a safety belt. The Commonwealth’s omission of evidence

showing any age during trial compels us to conclude that this issue relates to

sufficiency of the evidence. Unlike in Demulter, the Commonwealth did not

prove a wrongly charged subsection of a crime. It simply did not prove any

of the applicable subsections with which Appellant could have been charged.

____________________________________________

4 Even without waiving the issue, the appellant in that case “was not surprised

by the facts raised at trial,” did not prove she was prejudiced by the mistake,

and “knew exactly what she was defending against.” Demulter, 314 A.3d at

941.

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J-A19042-25

By neglecting to adduce evidence as to the element of age, there was

insufficient evidence of any safety belt violation.5 Hence, we vacate the

sentence and reverse Appellant’s conviction under 75 Pa.C.S.

§ 4581(a)(2)(i).6

Based on the above, we affirm the judgment of sentence of eighteen

months of probation arising from the conviction of firearms not to be carried

without a license and driving without a license. We reverse the conviction of

failure to use a safety belt, and vacate the corresponding $25 fine.

Judgment of sentence affirmed in part and vacated in part.

DATE: 11/12/2025

____________________________________________

5 We note moreover that the Commonwealth did not at any time seek to

amend the criminal information to conform the charges to the evidence heard

at trial.

6 Due to vacating Appellant’s fine arising from this conviction, Appellant’s issue

challenging the legality of the fine is rendered moot.

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