“It is the policy of the law not to permit prosecutions under the general provisions of a penal code when there are special penal provisions available.”
How later courts described this case
- “It is the policy of the law not to permit prosecutions under the general provisions of a penal code when there are special penal provisions available.”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
(Borough of Palmyra) :
: No. 866 C.D. 2016
v. :
: Argued: June 5, 2017
Raymond U. Brandt, :
Appellant :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JULIA K. HEARTHWAY, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: August 25, 2017
Raymond U. Brandt (Brandt) appeals from the April 27, 2016 judgment
of sentence imposed by the Court of Common Pleas of Lebanon County (trial court)
following a finding that he was guilty of summary offenses for violating section
302.1 of the Ordinance of the Borough of Palmyra (Ordinance) in failing to maintain
his property in a “clean, safe and sanitary condition.” Ordinance, §302.1. We affirm.
Background
Brandt owns real property located at 46-50 West Main Street in the
Borough of Palmyra (Borough). On April 17, 2015, Jackie Wilbern, the Borough’s
Code Enforcement Officer, issued a notice of violation and cease and desist order
charging Brandt with violating section 302.1 of the Ordinance. (Trial court op. at 1.)1
In pertinent part, Wilbern identified the following unlawful conditions: “Stacks of
debris and miscellaneous materials in rear yard [and] [t]here is [an] accumulation of
tires on the property.” (Ex. 4.)
When Brandt failed to remedy these conditions within the prescribed
time frame, the Borough issued him a citation on June 23, 2015, for violating section
302.1 of the Ordinance (case No. CP-38-SA-79-2015). Thereafter, on dates scattered
throughout August, Wilbern inspected the property and the Borough issued Brandt
four more citations for his ongoing violations of section 302.1 (case No. CP-38-SA-
93-2015).2 Before a magisterial district judge, Brandt either pled guilty to – or was
found guilty of – these summary offenses.3 He then filed summary appeals to the
trial court for a de novo hearing. The trial court effectively consolidated the action at
SA-79 with SA-93 and convened a trial on February 24, 2016. (Trial court op. at 2-
3.)
At the trial, Wilbern stated that she had received complaints from Ernest
Woolever, Brandt’s next-door neighbor, regarding the condition of the property,
1
Wilbern also charged Brandt with violating section 302.8 of the Ordinance, which
prohibits the storage or parking of an unlicensed or inoperative vehicle, but prosecution for this
infraction was apparently abandoned after Brandt removed the vehicle.
2
See Ordinance, §106.4 (Penalty) (“Each day that a violation continues and each Section of
this Code which is violated shall be deemed a separate offense.”).
3
Under Pennsylvania law, a borough may enforce its ordinance regulating health and public
safety by a criminal action in the same manner provided for the enforcement of summary offenses
under the Pennsylvania Rules of Criminal Procedure. Borough of Walnutport v. Dennis, 114 A.3d
11, 24 & n.10 (Pa. Cmwlth. 2015). “Although local ordinance violations are not listed as ‘crimes’
in the Crimes Code, they are treated as criminal violations because they can result in the imposition
of criminal penalties.” Id. at 19.
2
which she described as a multi-family dwelling with a gravel-covered yard area in the
back. Wilbern testified that she initially inspected the property on March 19, 2015,
and explained that the property was in a state of disarray with numerous items laying
about the yard. She said that she returned to the property on June 4, 2015, and took
photographs that displayed in the yard “piles of decorative stone, windows, doors,
trash cans, an engine hoist, a saw horse, and an umbrella. There were also some
vehicles and a refrigerator with covers on them.” (Trial court op. at 4.) After this
inspection, Brandt visited Wilbern and informed her that he received and/or uses
these items as part of his construction business. (Trial court op. at 4-5.)
Wilbern testified that she visited the property on June 4, 2005, and July
27, 2015, and then pretty much on a weekly basis, oftentimes taking photographs of
the areas that she found to be offensive, up until the date of the trial. In short,
Wilbern testified that during her visits, “the general condition of the property had not
changed, although various items would come and go,” (Trial court op. at 5), and she
essentially testified to that which was depicted in the photographs. Her testimony in
these regards may be summarized as follows:
July 27, 2015: “These photographs showed numerous tires,
windows, engine hoists, and lawnmowers in the yard.”
October 18, 2015: “[T]he general condition had not
changed and . . . some additional items, such as piping,
plastic material, and radiator covers, were present in the
yard.”
December 1, 2015: “Fence panels, windows, saw horses,
[a] wheelbarrow and numerous other items could still be
seen scattered around the premises.”
February 24, 2016: “[T]here remained tables, saw horses,
fencing, windows, doors, wheelbarrows, and other items
strewn throughout the yard.”
3
(Trial court op. at 5-6.)4
Ultimately, Wilbern testified that she “has never seen the property in a
cleaned-up condition,” the property “presented a cleanliness problem,” and, “in her
opinion as the Code Enforcement Officer, [the property] was in violation of section
302.1 . . . .” (Trial court op. at 6; see R.R. at 30a-34a.) She emphasized that there
were “numerous items strewn throughout the yard” and, therefore, “[t]he outside of
the property [was] not controlled in a clean and sanitary condition . . . .” (R.R. at
31a-32a.) Wilbern further “noted that all six conditions involved identical
allegations, and acknowledged that various items came and went from the premises,
but the general condition remained the same.” (Trial court op. at 6-7.)
On cross-examination, Wilbern admitted that she did not use a “check
list” to determine whether the property violated section 302.1, but reiterated that it
was her “professional opinion” that the state of the property contravened the
Ordinance. (R.R. at 35a-36a.) Wilbern also admitted on cross-examination that the
property is “basically” a gravel parking lot and noted that while the property is
located in a commercial district, it is registered with the Borough as a “residential
apartment.” (R.R. at 37a.) On redirect, Wilbern explained that Brandt would need a
zoning permit if he wanted to operate a business from his property and that, even if
he had such a permit, the property would still be in violation of section 302.1 of the
Ordinance. (R.R. at 38a-40a.)
Woolever, Brandt’s neighbor, testified that he purchased adjoining
property in January 2015 and stated that Brandt’s property “is a junkyard.” (R.R. at
4
Many, if not all, of the photographs are located in the reproduced record. (See Reproduced
Record (R.R.) at 81a-113a.)
4
42a.) He said that “there are numerous items strewn about the yard,” such as “doors,”
“windows,” “lawnmowers without motors,” “an engine hoist,” “pieces of fence,”
“lumber stacked against the home,” “spray paint cans on a bench,” and “a stack of
stones.” (R.R. at 42a.) Woolever added that he has “safety concerns, health
concerns,” stating that he saw a rat in the backyard in the past summer. (R.R. at 43a.)
Woolever admitted that he and Brandt “do not get along” and are currently involved
in a legal dispute regarding their properties’ boundary line. (R.R. at 43a-44a; Trial
court op. at 7.)
Brandt testified that “he conducts a construction business and uses the
rear portion of his property as his workshop.” (Trial court op. a 7.) He explained that
the “items in the yard are used in his business” and “that he also repairs lawnmowers
as part of his business.” (Trial court op. at 7; see R.R. at 61a-62a.) Brandt further
noted that “he had maintained the work area in his yard for many years prior to
Woolever moving into the adjoining property in January 2015, but he was never cited
for any problem with the property’s exterior condition until then.” (Trial court op. at
8.) 5
After the parties submitted post-trial briefs, the trial court, by order dated
March 11, 2016, found Brandt guilty on all five citations. On April 27, 2016, the trial
court sentenced Brandt to pay a $100.00 fine at SA-79 for one citation. (R.R. at
120a.) The trial court also sentenced Brandt to a $200.00 fine for one citation and a
$300.00 fine for each of the other three citations at SA-93. (R.R. at 121a.)
5
As established by Wilbern’s testimony, Brandt did not have a permit to conduct a
contracting business on his property, and no evidence was introduced at the trial to show that the
property was zoned to permit such a use.
5
Brandt subsequently filed a notice of appeal “from the Opinion and
Order of Sentencing dated April 27, 2016,” but only listed case number SA-79 in the
caption. (Certified Record (C.R.) at #18.) The trial court ordered Brandt to file a
Pa.R.A.P. 1925(b) statement, Brandt complied, and the trial court issued a Pa.R.A.P.
1925(a) opinion.
In rejecting Brandt’s challenge to section 302.1 as being
unconstitutionally vague, the trial court determined that “Wilbern had the authority to
exercise her discretion in determining whether [Brandt’s] property was ‘clean, safe
and sanitary’ within the context of [s]ection 302.1 by reference to the common
meanings of those words.” (Trial court op. at 10.) The trial court then quoted from
Merriam Webster to ascertain the common dictionary meanings of the operative
terms:
Clean: free from dirt, marks, etc.: not dirty: tending to keep
clean: free from pollution or other dangerous substances.
Safe: not able or likely to be hurt or harmed in any way:
not in danger: not able or likely to be lost, taken away, or
given away: not involving or likely to involve danger, harm,
or loss.
Sanitary: of or relating to good health or protection from
dirt, infection, disease, etc.: free from dirt, infection,
disease, etc.
(Trial court op. at 10, quoting www.merriamwebster.com/dictionary).
Based on these definitions, the trial court concluded: “[T]hese terms
mean that the exterior of a property should be free of an accumulation of items,
regardless of whether such items are used in the occupant’s business.” (Trial Court
op. at 10.) As such, the trial court reasoned, “this language is sufficient to apprise
occupants of the type of condition which is prohibited.” (Trial court op. at 10-11.)
6
In addition, the trial court concluded that the credible testimony of
Wilbern and Woolever,6 coupled with the photographic evidence, was sufficient to
establish that Brandt violated section 302.1 of the Ordinance. In this regard, the trial
court determined:
[B]oth of these witnesses described the presence of
numerous items of household structures, machinery,
automotive and machine parts, scrap, and other odds and
ends which created a cluttered, messy, and dangerous
condition on [Brandt’s] property. The photographs taken
by Wilbern revealed that the property remained in this
general condition up to the point of the de novo hearing
....
(Trial court op. at 13-14.) For legal support, the trial court relied predominately on
unpublished case law from this Court where we found the evidence sufficient to
sustain a violation of section 302.1 of the International Property Maintenance Code
(IPMC), as that provision has been adopted and incorporated into municipalities’
codes and/or ordinances. (Trial court op. at 12-13, citing Commonwealth v.
Kemmerer, (Pa. Cmwlth., Nos. 2144 and 2217 C.D. 2012, filed June 10, 2013)
(unreported); MacQuarrie v. Commonwealth, (Pa. Cmwlth., No. 581 C.D. 2008,
filed December 8, 2008) (unreported)).
The case is now before this Court.
6
In crediting at least part – if not all – of Woolever’s testimony, the trial court found:
“Whatever bias there may have been toward [Brandt], we found credible [Woolever’s] description
of the state of [Brandt’s] property at various times from the time he purchased the neighboring
property in January 2015.” (Trial court op. at 14.)
7
Discussion
As a prefatory matter, the Borough argues that, because Brandt only
listed the case at SA-79 on his notice of appeal, this Court lacks jurisdiction to review
the judgment of sentences related to case number SA-93. We disagree.
Our Supreme Court has explained:
Where a party specifies a particular part of a judgment or
order in their [sic] notice of appeal, appellate review may
nevertheless be extended to orders not identified in the
notice of appeal if the specified and unspecified orders are
connected, the intention to appeal the unspecified order is
apparent, and the opposing party has not suffered prejudice
and has had an opportunity to brief the issues.
K.H. v. J.R., 826 A.2d 863, 871 (Pa. 2003).
Here, although the action at SA-93 was not specifically mentioned in the
notice of appeal, it is clear that Brandt intended to appeal this matter as well. As
Brandt correctly states, both cases were effectively consolidated for trial, and given
this procedural overlap, plus the fact that Brandt received four summary convictions
for ongoing violations at SA-79, it seems highly unlikely that he wanted to appeal
only one of his five summary convictions. Further, the trial court rendered judgment
of sentences for both SA-79 and SA-93 on the same date; the issues raised in both
actions are identical; the trial court disposed of these issues in its Pa.R.A.P. 1925(a)
opinion; and the Borough, having thoroughly briefed the issues before the trial court
and this Court, has not sustained demonstrable prejudice. Therefore, applying the
principles of K.H., we conclude that there is no jurisdictional impediment that
prevents us from entertaining both appeals and we will proceed to address Brandt’s
two appellate arguments on the merits.
8
Vagueness
Brandt argues that section 302.1 violates his fundamental due process
rights because the terms “clean, safe and sanitary” are platitudes; the property was not
harmful to persons or the environment and the concept of “clean” is predicated solely
on subjective judgement; Wilbern was unable to define the terms in detail and issued
only conclusory opinions regarding the property; and the phrase as a whole does not
provide fair notice as to the proscribed conduct, inviting arbitrary and discriminatory
enforcement by Wilbern.
“Due process demands that a statute not be vague.” Commonwealth v.
Thur, 906 A.2d 552, 561 (Pa. Super. 2006); see Commonwealth v. Noel, 857 A.2d
1283 (Pa. 2004). 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.” Commonwealth v. Duda, 923 A.2d 1138,
1147 (Pa. 2007). In other words, a law is unconstitutionally vague if “persons of
common intelligence must necessarily guess at its meaning and differ as to its
application” or it “impermissibly delegates basic policy matters to policemen, judges,
and juries for resolution on an ad hoc and subjective basis . . . .” Commonwealth v.
Cotto, 753 A.2d 217, 220 (Pa. 2000) (citations and internal quotation marks omitted).
“However, a statute will not be deemed unconstitutionally vague if the
terms, when read in context, are sufficiently specific that they are not subject to
arbitrary and discriminatory application.” Id. at 220. Where a vagueness challenge
does not allege that the statute infringes First Amendment freedoms, “the specificity
of a statute must be measured against the conduct in which the party challenging the
statute has engaged.” Commonwealth v. Mayfield, 832 A.2d 418, 422 (Pa. 2003).
9
Significantly, “the violator whose conduct falls clearly within the scope of [the
statutory] standard has no standing to complain of vagueness,” Commonwealth v.
Heinbaugh, 354 A. 2d 244, 246 (Pa. 1976), or to assert “the vagueness of the law as
applied to the conduct of others.” Village of Hoffman Estates v. Flipside, 455 U.S.
489, 495 (1982). “The rationale [for this rule] is evident: to sustain such a challenge,
the complainant must prove that the enactment is vague not in the sense that it
requires a person to conform his conduct to an imprecise but comprehensible
normative standard, but rather in the sense that no standard of conduct is specified at
all.” Id. at 495 n.7 (citation and internal quotation marks omitted); see Holder v.
Humanitarian Law Project, 561 U.S. 1, 18-19 (2010).
In entertaining a void-for-vagueness claim, this Court initially focuses
on the language of the Ordinance, see Boos v. Barry, 485 U.S. 312, 329 (1988),
keeping in mind the statutory construction principle that “[u]ncertainties in the
interpretation of an ordinance are to be resolved in favor of a construction which
renders the ordinance constitutional.” Upper Salford Township v. Collins, 669 A.2d
335, 336 (Pa. 1995).
Section 302.1 has been incorporated into the Ordinance through the
Borough’s adoption of the IPMC. (Ordinance, §71; Ex. 2.) Entitled “Sanitation,”
this provision provides:
All exterior property and premises shall be maintained in a
clean, safe and sanitary condition. The occupant shall keep
that part of the exterior property which such occupant
occupies or controls in a clean and sanitary condition.
(Ordinance, §302.1; Ex. 3.)
Based upon the plain meaning of its text, the overriding thrust of section
302.1 is that the exterior property not pose a risk of harm, particularly one that could
10
possibly materialize into bodily injury or damage to physical health/the environment,
and the heading of the Ordinance and dictionary definitions for “safe” and “sanitary”
proffered by the trial court confirm this. Although the meaning of “clean” must be
tethered to the same concepts that “safe” and “sanitary” convey,7 the word can fairly
be construed, in accordance with its ordinary usage in the vernacular,8 to describe a
physical state that is “free from dirt, filth, refuse, or remains” and “other harmful
growth and rubbish[.]” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, 418
(Gove ed., 1986).
Moreover, section 108.1.2 of the Ordinance prohibits “unsafe
equipment” on a premises and sanctions condemnation for a violation. This
provision defines “unsafe equipment” to include, among other items, “any boiler,
heating equipment, . . . electrical wiring or device, flammable liquid containers,” and
also any “other equipment . . . in such disrepair or condition that [it] is a hazard to
life, health, property or safety of the public or occupants of the premises or structure.”
Ordinance, §108.1.2. In relevant part, section 307.1, pertaining to “rubbish and
garbage,” states that “[a]ll exterior property and premises . . . shall be free from any
accumulation of rubbish,” Ordinance, §307.1, and “accumulation” is defined by the
dictionary as “an accumulated mass, quantity or number.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 13 (Gove ed., 1986). In the general definitions section
of the Ordinance, “rubbish” is denoted as “[c]ombustible and noncombustible waste
7
“Words are known by the company they keep.” Commonwealth ex rel. Fisher v. Philip
Morris, Inc., 4 A.3d 749, 756 n.9 (Pa. Cmwlth. 2010).
8
“[D]ictionaries provide substantial evidence of a term’s ordinary usage.” Coulter v.
Department of Public Welfare, 65 A.3d 1085, 1089 n.7 (Pa. Cmwlth. 2013) (citation omitted); see
Ordinance, §201.4 (stating that undefined terms “shall have ordinarily accepted meanings such as
the context implies.”).
11
materials” and includes “paper, rags, cartons, boxes, wood, excelsior, rubber, leather,
tree branches, yard trimmings, tin cans, metals, mineral matter, glass, crockery and
dust and other similar materials.” Ordinance, §202.
Concerning the Ordinance’s applicability to a particular situation,
section 102.1 states that “[w]here, in a specific case, different sections of this code
specify different requirements, the most restrictive shall govern.” Ordinance,
§102.1.9 When this provision is viewed alongside the sections previously discussed,
they collectively work together to breathe additional life and substance into the term
“clean” in section 302.1
Initially, by its very language, section 302.1’s phrase “clean, safe and
sanitary” operates in a broader manner than sections 108.1.2 and 307.1 because the
phrase is not limited to the general class of items enumerated in the other two
sections. For this same reason, the phrase also has a farther reach over the activities
that are proscribed and goes beyond prohibiting the storage of “unsafe equipment”
and the accumulation of “rubbish.” Being the most comprehensive (in relation to the
amount of unlawful conduct it prohibits) or, stated conversely, the “most restrictive”
(in relation to the amount of conduct it allows) of the lot, section 302.1 necessarily
encompasses and includes conduct that is prohibited in sections 108.1.2 and 307.1 –
and then some. In other words, a violation of either sections 108.1.2 or 307.1, or
both, will always constitute a violation of section 302.1, but not vice versa.
Consequently, sections 108.1.2 and 307.1 help inform our understanding of the type
of conduct that section 302.1 does not allow, and, at the same time, demonstrate that
9
Cf. Commonwealth v. Buzak, 179 A.2d 248, 250 (Pa. Super. 1962) (“It is the policy of the
law not to permit prosecutions under the general provisions of a penal code when there are special
penal provisions available.”), superseded by statute as stated in Commonwealth v. Nypaver, 69
A.3d 708, 713-14 (Pa. Super. 2013).
12
section 302.1 makes it illegal to “accumulate” the objects or items that are expressly
listed in sections 108.1.2 and 307.1 and also objects or items that are substantially
similar.
Equally important, the courts have long held, and continue to hold, that
an ordinance requiring a landowner to maintain the premises in a “clean” condition is
not unconstitutionally vague. The underlying proposition supporting these decisions
is that the term “clean” has “a clear . . . meaning to everyone,” and is “within the
comprehension of any one,” State v. Johnson, 410 P.2d 423, 427 (Kan. 1966)
(citations omitted), and therefore, it is “usually held to be [a] term[] of such certain
meaning and so generally understood that [it] can be safely submitted to a jury on an
issue of fact.” Missouri, K. & T.R. Company v. State, 97 S.W. 720, 722 (Tex. Civ.
App. 1906), rev’d on other grounds by 100 S.W. 766 (Tex. 1907).10 As an example,
in upholding an ordinance requiring a landowner to keep the premises in a “clean and
sanitary condition,” the Supreme Court of Minnesota said: “[W]e think that most
reasonable people could agree on an acceptable standard of ‘clean and sanitary’ in the
context of a housing code ordinance.” City of Minneapolis v. Reha, 483 N.W.2d 688,
692 (Minn. 1992). Likewise, in Johnson, the Supreme Court of Kansas affirmed the
validity of a statute making it unlawful for the owner of a structure to “permit the
same to remain unclean to the annoyance of any citizens of this state,” and explained:
Since . . . the terms ‘clean’ and ‘unclean’ as used in the
statute are readily understood and their scope and meaning
are within the comprehension of everyone, we do not
10
Accord, e.g., State v. Heine, (N.J. Ct. App., Civ. Div., No. A-0087-10T1, filed January 20,
2012) (unreported); American Show Bar Series, Inc. v. Sullivan County, 30 S.W.3d 324, 340 (Tenn.
Ct. App. 2000); City of Minneapolis v. Reha, 483 N.W.2d 688, 692-93 (Minn. 1992); People v.
Balmer, 196 Cal. App. 2d Supp. 874, 878-80 (Cal. Ct. App. 1961).
13
believe it can be said or held that the statute either forbids
or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning
and differ as to its application.
410 P.2d at 427 (citation omitted).
We agree with these decisions and their persuasive rationale.11
Consistent with our preceding observations, we conclude that for the exterior of a
property to violate section 302.1 on the ground that it is not “clean,” at the very least,
there should be: (1) an accumulation of items, including refuse, remains, and/or
rubbish; (2) the accumulation is either constructed into a heap(s) or created by
numerous objects located at various points; and (3) the accumulation is of such a
nature and character that a fact-finder could reasonably determine that the condition
of the property is “unclean.” To us, the third element is best left to the province of
the fact-finder to resolve because we believe that the fact-finder, utilizing the skills
garnered through basic common human experience, is entirely competent and well-
equipped to make these context-specific, factually-based determinations. Cf. Kohl v.
New Sewickley Township Zoning Hearing Board, 108 A.3d 961, 970 (Pa. Cmwlth.
2015); see also Gibson v. Workers’ Compensation Appeal Board (Armco Stainless &
Alloy Products), 861 A.2d 938, 944 (Pa. 2004); Commonwealth v. Ebaugh, 783 A.2d
11
In doing so, we decline Brandt’s invitation to follow State v. ACV Realty, 2016 Ohio
3247, (Ohio Ct. App., 7th Dist., No. 15 MA 0072, filed May 26, 2016) (unreported), and the case
upon which it relies, State v. Bielski, 5 N.E.3d 1037 (Ohio Ct. App., 7th Dist., 2013). In Bieleski,
an intermediate appellate court of Ohio concluded that section 307.1 of the IPMC was
unconstitutional on its face because the terms “accumulation,” “rubbish,” and “garbage” were not
clearly defined. Id. at 1042-43. In ACV Realty, the court determined that section 302.1 of the
IPMC and the phrase “clean, safe, and sanitary” fared no better. However, in engaging in their
analysis, the courts in Bieleski and ACV Realty did not consult the dictionary definitions of the
terms, or dismissed them without any meaningful analysis, and failed to consider the provisions of
the IPMC as a whole. It is our respectful view that they are therefore unconvincing and do not pay
appropriate homage to the plain meaning of the suspect terms.
14
846, 850 (Pa. Cmwlth. 2001).12 If the conduct at issue satisfies this standard, the
condition of the property will be deemed to be harmful, or posing a risk of harm, to
the general welfare of the community as a matter of law. See Ordinance, §106.1;
Ebaugh, 783 A.2d at 850; Sobocinski v. City of Williamsport, 319 A.2d 697, 699-70
(Pa. Cmwlth. 1974).
There is sufficient evidence in the record to support the trial court’s
factual description of the property as “cluttered” and “messy,” containing “numerous
items of household structures, machinery, automotive and machine parts, scrap, and
other odds and ends . . . . ” (Trial court op. at 13-14.) Undoubtedly, these objects
have value to Brandt and we suppose many other individuals. Nonetheless, an
objective and reasonable fact-finder could assess the nature of the objects and
legitimately characterize them as refuse in the sense that they are not typically stored
on – or suitable to be stored on – residential property. Indeed, Brandt admitted that
he runs his business from the “gravel yard,” does his “work” there, calls it his
“workshop,” and claims the items are “all construction material.” (R.R. at 49a, 55a,
61a, 63a-64a). After reviewing the testimony and photographs, which support a
12
In Kohl, this Court noted that we “may draw upon common sense and basic human
experience to construe terms.” 108 A.3d at 970. In Gibson, our Supreme Court stated that the
Pennsylvania rule of evidence pertaining to lay person testimony “contemplates admission of lay
opinions rationally based on personal knowledge that are helpful to the trier of fact.” 861 A.2d at
944. The Court further stated that “[a]t common law, witnesses not qualifying as experts were
generally permitted to testify regarding those things that they had seen, heard, felt, tasted, smelled,
or done.” Id. (citation and internal brackets and quotations omitted).
In Ebaugh, this Court did not find a vagueness problem with a noise ordinance stating that
an individual cannot “annoy or disturb a reasonable person of normal sensitivities.” Id. at 847
(citation omitted). We determined that the phrase evidenced “an objective standard that looks to the
impact of noise upon a reasonable person under the particular circumstances of the incident” and
opined that “a person of ordinary intelligence would understand what conduct violates this
provision . . . .” Id. at 850.
15
finding that the objects were accumulated into sizable heaps and scattered in pieces
throughout a notable portion of the “gravel yard,” an objective and reasonable fact-
finder could also conclude that the property was not maintained in a “clean”
condition as that term is ordinarily used and commonly understood.
Construing section 302.1 in the way we have done, this Court concludes
that the provision provides a reasonable person with adequate notice – and an
ascertainable standard upon which to gauge – the type of conduct that is proscribed.
Therefore, we conclude that section 302.1 is not void for vagueness as applied to
Brandt’s particular conduct in this case.
Sufficiency of the Evidence
Brandt argues that the evidence was legally insufficient to sustain his
convictions because the citations issued by Wilbern did not provide notice as to what
specifically needed to be remedied to come into compliance; the dates of the
photographs did not correspond with the dates listed on the citations; the condition of
the property constantly changed throughout the citations period; the items stored on
the property were obtained and/or used as part of Brandt’s construction business; and
the Borough’s photographs and testimony failed to establish violations of section
302.1.
According to Pennsylvania law, any defect with respect to the content of
a citation is unrelated to a sufficiency challenge, which focuses solely on whether the
evidence adduced at trial satisfies the elements of a crime. See Commonwealth v.
Widmer, 744 A.2d 745, 751-52 (Pa. 2000). In any event, to merit relief, a defendant
must raise the defect before the conclusion of trial and establish that the defect
resulted in prejudice or unfair surprise. Pa.R.Crim.P. 109; Borough of Walnutport v.
16
Dennis, 114 A.3d 11, 20-21 (Pa. Cmwlth. 2015).13 Here, Brandt does not allege
prejudice or unfair surprise. Brandt also never raised this issue in his Pa.R.A.P.
1925(b) statement; therefore, it is waived for purposes of appellate review. Pa.R.A.P.
1925(b)(4)(vii); Kull v. Guisse, 81 A.3d 148, 160 (Pa. Cmwlth. 2013).
We do note, however, that Brandt’s contentions concerning the citations
appear meritless. In the notice of violation, Wilbern stated that the unlawful
condition consisted of “[s]tacks of debris and miscellaneous materials in rear yard
[and] [t]here is an accumulation of tires on the property.” (Ex. 4). In light of the
circumstances of this case, her reference to this notice in subsequent citations to
explain the nature of the violation seems to constitute adequate notice, because even
though “various items came and went from the premises,” the stacks of debris and
miscellaneous materials were always present, in one configuration or another, and
“the general condition [of the property] remained the same.” (Trial court op. at 6-7.)
Indeed, at trial, Wilbern stated that he “didn’t tidy anything up for the camera,”
meaning he did not try to “clean up” property, and confirmed that the changes in the
appearance to the property occurred because he either repaired, sold, or used
preexisting items and/or collected additional items. (R.R. at 61a-62a.) Ultimately,
these facts support the conclusion that while Wilbern may have “changed” the
physical appearance of the condition, he made no meaningful attempt to remedy the
condition itself. Consequently, on this record, Brandt would not have benefited from
13
“A defendant shall not be discharged nor shall a case be dismissed because of a defect in
the form or content of a . . . citation, . . . unless the defendant raises the defect before the conclusion
of the trial in a summary case . . . and the defect is prejudicial to the rights of the defendant.”
Pa.R.Crim.P. 109; see Borough of Walnutport, 114 A.3d at 21.
17
any further direction or specificity from Wilbern and he cannot now complain that
inadequate notice thwarted his efforts to rectify the condition.
Further, although the dates of the inspection may have diverged from the
dates of the citations, it is considerably difficult to decipher how or in what manner
Brandt would have sustained prejudice due to this error. Cf. Borough of Walnutport,
114 A.3d at 21 (“Although the notice did not set forth the time period of the violation,
[the defendant] cannot reasonably claim surprise or resulting prejudice warranting
dismissal.”).
Other arguments that Brandt makes regarding the legal inadequacy of
the evidence were considered and rejected in Kemmerer.14 In that case, the
landowner contended that his summary convictions for failing to maintain a clean,
safe, and sanitary condition could not stand because the items on his property were
obtained while he was working as a licensed contractor and the objects had practical
utility. Specifically, the landowner testified that he used the “bags of stones” to “fill
in ruts on his property” and “repair his driveway” and the bag of shingles “are used
for caps and are very expensive.” Kemmerer, slip op. at 6. The landowner also
contended that the items on the property in August 2011 were different from the
items on the property in April 2011 and, therefore, the trial court erred in relying on
the August 2011 photographs as evidence of the property’s condition in April 2011,
the month in which the citation was issued.
On appeal, this Court declined to find merit in these assertions. In doing
so, we determined that the landowner was legally obligated to comply with section
302.1 regardless of whether the items on the property “were related to [the
14
Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa.Code
§69.414(a), unreported decisions may be cited for their persuasive value.
18
landowner’s] contracting business.” Kemmerer, slip op. at 6. We similarly
concluded that “even if some or all of the items on [the] property in August 2011
were different from the items on the property in April 2011, this would not relieve
[the landowner] of [his] duty under [s]ection 302.1 of the Code to maintain [the]
property in a clean, safe and sanitary condition.” Kemmerer, slip op. at 6. Essential
to this part of our conclusion was the fact that the testimony and a comparison of the
photographs demonstrated that “the general condition of the property remained the
same.” Kemmerer, slip op. at 7. Accordingly, this Court in Kemmerer held that the
August 2011 photographs depicted the usual and typical nature of the property’s
condition, and because the condition remained in such a state continuously, the
August 2011 photographs were sufficient evidence to uphold the summary conviction
related to the April 2011 citation.
Here, Brandt testified that all of the objects on the property were
obtained and/or used in connection with his construction business. However, as in
Kemmerer, this fact does not relieve Brandt of the obligation to maintain his property
in compliance with section 302.1. The uncontradicted evidence also shows that
throughout the time-period in which Wilbern issued the citations, the physical
appearance of the property did not remain in a static state-of-being, but instead,
constantly changed. Wilbern, however, testified that the general condition of the
property remained the same up until the point of the de novo hearing. In this regard,
Wilbern’s testimony was corroborated by Brandt’s testimony, wherein he admitted
that he did not try to clean up the property and the property’s condition changed only
because he sold and/or used certain objects and collected more objects in their place.
(R.R. at 57a-62a.) As the fact-finder, the trial court considered this testimony in
conjunction with the photographs, and relying predominately on those photographs,
19
found that the property’s general condition persisted on the dates of the citations and
all the way through the dispute. (Trial court op. at 14.) See also Commonwealth v.
Holtzapfel, 895 A.2d 1284, 1289 n.2 (Pa. Cmwlth. 2006).15 Therefore, although the
property varied in appearance with the passage of time, and the dates of the
photographs differed from the dates of the citations, pursuant to Kemmerer, these
facts did not preclude the trial court, as a matter of law, from finding Brandt guilty of
the summary offenses.
Turning to Brandt’s remaining contentions, we observe that in summary
offenses, the prosecution is required to establish a person’s guilt beyond a reasonable
doubt. Borough of Walnutport, 114 A.3d at 22.
The test for evaluating the sufficiency of the evidence in a
conviction for a summary offense is whether, viewing all
the evidence admitted at trial, together with all reasonable
inferences therefrom, in the light most favorable to the
prosecution, the trier of fact could have found that each
element of the offense charged was supported by evidence
and inferences sufficient in law to prove guilt beyond a
reasonable doubt.
Id.
In at least two unreported decisions, this Court has found sufficient
evidence to support a conviction for violating section 302.1 when confronted with
facts comparable to those in the instant matter. In Kemmerer, we concluded that the
evidence was sufficient to sustain a section 302.1 conviction where the items on the
property included “multiple trash bags, buckets, trash bins, [] garden tools, [and] a
flat tire and a black truck with a bed full of debris.” Slip op. at 8. Similarly, this
15
In Holtzapfel, this Court concluded that it was proper for the trial court to make findings
with respect to a property’s condition based solely on photographic evidence.
20
Court concluded in MacQuarrie: “[The property’s] exterior contained ‘tires, hand
trucks, ladders, lumber, barrels, cans, pneumonic jacks for cars, hoses, scrap metal,
iron [and what] looks like a kitchen sink . . . . Clearly, [the landowner] was not
maintaining his property in a clean, safe, and sanitary condition.” MacQuarrie, slip
op. at 4 (citation omitted).
Here, viewing the evidence in the light most favorable to the Borough,
we conclude that the evidence was sufficient to support Brandt’s summary
convictions for failing to maintain his property in a clean condition. As found
credible by the trial court, the testimony of Wilbern and Woolever accurately
described the condition of the property, along with the items and objects that were
located on it, and this testimony was buttressed by numerous photographs. (Trial
court op. at 13-14.)
As oft-stated, a picture is worth a thousand words, but we find that
elaboration in such extraneous detail is unnecessary in this case. For our purposes, it
suffices to say that the photographs capture the general and reoccurring condition of
the property as one where a substantial amount of refuse and debris are present
throughout a significant portion of the “gravel yard.” Many times, the refuse is
accumulated in heaps; other times it is dispersed randomly; a vast majority of the
times, it is both. Although not necessarily present during each and every picture, the
items that commonly appear are: several white doors with windows and several
sections of fencing, both of which are stacked against the property’s fence;
wheelbarrows, tables, saw horses, an engine hoist, piping, and other machinery,
which are densely concentrated in a small area with machine parts and other debris
scattered around the immediate vicinity of that area; and piles of bricks, stones, wood,
and indecipherable debris in the corner of the property where a “no trespassing” sign
21
is located. In view of this evidence, we cannot disagree with the trial court that the
property was “cluttered” and “messy” and did not meet the standard of being “clean.”
(Trial court op. at 13).16
Finally, to the extent the record contains conflicting evidence and/or
Brandt questions the veracity of Woolever’s or Wilbern’s testimony, or the accuracy
of the photographs, these issues are not cognizable in a challenge to the sufficiency of
the evidence. See Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2013);
Commonwealth v. Gibbs, 981 A.2d 274, 281-82 (Pa. Super. 2009).17 It is beyond
peradventure that the trial court, sitting as the fact-finder, is free to believe all, part or
none of the evidence, to make all credibility determinations, and to resolve all
conflicts in the evidence. Holtzapfel, 895 A.2d at 1289 n.2. This Court, accordingly,
cannot upset the trial court’s credibility determinations or reweigh (or otherwise
reassess) the evidence to reach a finding contrary to the trial court. See id. Therefore,
viewing the evidence in the light most favorable to the Borough as the verdict winner,
while disregarding any unfavorable evidence, see Prieto Corp. v. Gambone
Construction Co., 100 A.3d 602, 609 (Pa. Super. 2014), we conclude that the record
supports Brandt’s convictions for failing to maintain the property in a clean, safe, and
sanitary condition as required by section 302.1 of the Ordinance.
16
Based upon the photographs, it appears to this Court that it would be difficult for a person
to freely navigate within and/or around the condensed area of refuse.
17
An argument that evidence was “unbelievable” is one that “goes to the credibility of the
witness’s testimony, and is, therefore, not an attack on the sufficiency of the evidence,” Griffin, 65
A.3d at 939, and, similarly, “[a]n argument that the finder of fact should have credited one witness’
testimony over that of another witness goes to the weight of the evidence, not the sufficiency of the
evidence,” Gibbs, 981 A.2d at 281-82 (citing and parenthesizing cases).
22
Conclusion
Having determined that section 302.1 of the Ordinance, as applied to the
facts of this case, is not unconstitutionally vague and that the evidence was sufficient
to sustain Brandt’s summary offense convictions, we affirm the trial court’s judgment
of sentence.
_______________________________
PATRICIA A. McCULLOUGH, Judge
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
(Borough of Palmyra) :
: No. 866 C.D. 2016
v. :
:
Raymond U. Brandt, :
Appellant :
ORDER
AND NOW, this 25th day of August, 2017, the April 27, 2016
judgment of sentence entered by the Court of Common Pleas of Lebanon County
(trial court) is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge