Com. v. Rodriguez, M.

J-A08020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF : IN THE SUPERIOR COURT OF

PENNSYLVANIA : PENNSYLVANIA

:

:

v. :

:

:

MANUEL RODRIGUEZ :

: No. 1884 EDA 2017

Appellant :

Appeal from the Order May 12, 2017

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

No(s): CP-45-SA-0000154-2016,

CP-45-SA-000209-2016

BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.: FILED JUNE 25, 2018

Manuel Rodriguez appeals1 from the order, entered in the Court of

Common Pleas of Monroe County, finding him guilty of the summary offenses

of improperly tinted car windows2 and unauthorized mounting of a blue light

on a vehicle.3 After careful review, we affirm.

____________________________________________

1 On April 10, 2018, Richard P. White, Esquire, entered his appearance for the

Commonwealth of Pennsylvania. He noted that no Appellee brief will be filed

in the matter.

2 75 Pa.C.S. § 4524(e)(1).

3 75 Pa.C.S. § 4572(c).

____________________________________

* Retired Senior Judge assigned to the Superior Court.

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Rodriguez is a Pennsylvania State Constable.4 On July 11, 2016,

Rodriguez was pulled over in his unmarked, white Ford Crown Victoria sedan5

by Detectives Brian Webbe and Kim Lippincott of the Monroe County District

Attorney’s Office. The detectives issued Rodriguez two non-moving traffic

citations6 for window-tint and blue light summary violations.7 When he was

stopped, Rodriguez showed the officers his membership card (dated 4/27/16)

in a volunteer organization, “Defiance Search and Rescue (DSR).” 8 The DSR

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4A constable is an elected official authorized to appoint deputy constables. A

constable is an independent contractor and is not an employee of the

Commonwealth, the judiciary, the township, or the county in which he works.

See In re Act 147 of 1990, 598 A.2d 985 (Pa. 1991); Rosenwald v.

Barbieri, 462 A.2d 644 (Pa. 1983); Commonwealth v. Roose, 690 A.2d

268 (Pa. Super. 1997). See also Commonwealth v. Rodriguez, 81 A.3d

103 (Pa. Super. 2013) (because Pennsylvania constables are not employees

of Commonwealth, defendant-constable’s private vehicle, driven in capacity

as independent contractor, did not qualify as exempt governmental vehicle

under section 4524(e)(2)(i) of the Vehicle Code).

5The vehicle was designated a police interceptor model. N.T. Non-Jury Trial,

5/12/17, at 79.

6 Rodriguez was also cited for four non-moving violations in June 2016;

however, the Commonwealth chose not to go forward with the de novo appeal

of those charges and they were dismissed at Rodriguez’s non-jury trial. N.T.

Non-Jury Trial, 5/12/17, at 8-9.

7 The trial court consolidated the two summary offenses for purposes of trial.

8 On the citation, Detective Webbe made the following notation, “Defendant

claims membership in a search and rescue organization that appears largely

fictitious and for which the Chief hasn't provided a list of authorized individuals

to PSP, meaning the Pennsylvania State Police.” N.T. Non-Jury Trial, 5/12/17,

at 21.

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membership card was signed by Roger Metzger, listed as the authorizing chief

officer of DSR. Metzger is also a Pennsylvania State Constable. Rodriguez

was convicted of both offenses before a magistrate. Rodriguez filed a timely

de novo appeal from his summary convictions; on May 12, 2017, a non-jury

trial was held.

At the non-jury trial, Detective Webbe and Constable Metzger9 testified.

Detective Webbe testified that after citing Rodriguez, he investigated the DSR

to determine whether Rodriguez was a certified member of the organization

listed at a nearby police station in order to make him eligible to display the

blue lights on his vehicle pursuant to 75 Pa.C.S. § 4527. Webbe testified that

despite contacting several local police stations, only one trooper had received

a signed list from DSR Chief Metzger listing Rodriguez as a certified member.

The list, however, was dated July 18, 2016, and received by the barracks on

July 22, eleven days after the instant offenses.

Metzger testified that as chief officer of DSR, he incorporated the

organization in Emmaus, Pennsylvania, where he resides. Metzger also

testified that in October 2015 he sent an original, unsigned list of DSR’s

____________________________________________

9 At trial, Metzger testified that he currently held the position of President of

the Monroe County Constables’ Association and president of the Pennsylvania

Fraternal Order of Constables. N.T. Non-Jury Trial, 5/12/17, at 78.

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members to the Bethlehem Police Barracks and, then, an updated, signed list

in July 2016, via first class mail.10

At the conclusion of trial, the court found Rodriguez guilty of the

summary offenses; he was ordered to pay costs and fees.11 Rodriguez filed

a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise12

statement of errors complained of on appeal. Rodriguez presents the following

issues for our consideration:

(1) Was the prosecution in the instant case . . . an

unconstitutional selective prosecution?

(2) Should the objection on page 45, at line 24, have been

overruled, because sustaining it prevented the defendant

from proving his (un)constitutionality defense[?]

(3) Does the evidence support only the conclusion . . . that

[Rodriguez] was a member of a search[] and [] rescue

organization, and that he was entitled to the exemption

under 75 Pa.C.S. § 4572(a)?

(4) Does the evidence support only the conclusion . . . that a

person can see through the car’s windows [] so that there

is no violation of 75 Pa.C.S. § 4524[]?

____________________________________________

10Both Webbe and Metzger took photographs of the tinted windows of

Rodriguez’s vehicle that were admitted at exhibits at trial.

11Specifically, the court ordered Rodriguez to pay $25 in fines and costs for

the window-tint offense, and $25 in fines and $100 in costs for the

unauthorized blue-light offense. N.T. Non-Jury Trial, 5/12/17, at 121-23.

12Technically, Rodriguez’s 8-page Rule 1925(b) statement is anything but

concise. It contains unnecessary details and citations to the record, not to

mention it rambles and is, at times, incomprehensible.

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(5) Is the tint statute[,] 75 Pa.C.S. § 4524[,] . . .

unconstitutionally vague, as applied?

(6) Is 75 Pa.C.S. § 4572(d) [--] especially the search[] and

seizure[] rescue organization statute [--] unconstitutionally

vague, as applied[,] to the extent that the government can

prosecute by means of electing to disregard the exception

or exemption in § 4572 and in § 4572(a)(1) by whim?

(7) Should the five objections discussed in [Rodriguez’s brief]

have been sustained?[13]

Appellant’s Brief, at 5-6 (emphasis in original).

Rodriguez first argues that he has been the subject of selective

prosecution. Specifically, he alleges that the stop of his vehicle was

unconstitutionally selective where the Monroe County District Attorney’s Office

had specifically decided to single out constables because of equipment they

had on their cars.

To establish a selective prosecution defense in Pennsylvania, the

defendant must prove that: (1) others who are similarly situated are generally

not prosecuted for similar conduct, and (2) the defendant was intentionally

and purposefully singled out for an invidious reason. Commonwealth v.

Murphy, 795 A.2d 907 (Pa. Super. 2002).

Instantly, Rodriguez claims that similarly situated individuals such as

private police officers, private railroad police, humane society police, and

fishing and gaming commission law enforcement officers have not been

____________________________________________

13 We limit our review to those objections raised by Rodriguez in his Rule

1925(b) statement; any other objections raised in his appellate brief are

waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the statement

and/or not raised in accordance with the provisions of this paragraph (b)(4)

are waived.”).

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investigated like constables with regard to prosecuting window-tinting and

blue-light summary violations. In fact, he claims that most of these similarly

situated individuals have no tint exemption and have no legal authority to

equip their vehicles with the particular light bars. Appellant’s Brief, at 23.

While Rodriguez makes these sweeping generalizations, he fails to

present evidence to support his argument. Although Detective Webbe

testified that he was familiar with recent constable traffic violations and was

aware that his partner had cited Rodriguez for four violations in June 2016,

he also testified that he was not under any instructions to pay special attention

to Rodriguez and that he had also discussed other constables with members

of his office. Here, the court chose to believe Detective Webbe’s testimony

that his office was not selectively prosecuting constables for traffic citations.

Without evidence to show that Rodriguez, as a constable, was intentionally

and purposefully singled out for an invidious reason, or that other similarly

situated individuals were generally not prosecuted for similar conduct, this

claim fails. Commonwealth v. Sanico, Inc., 830 A.2d 621 (Pa. Commw.

2003) (where there was no evidence in record to suggest defendant was

intentionally and purposefully singled out for invidious reason, selective

prosecution defense not viable); Commonwealth v. Celano, 717 A.2d 1071

(Pa. Commw. 1998) (same).

In his next issue on appeal, Rodriguez contends that the court

improperly sustained a Commonwealth objection to defense counsel’s cross-

examination of Detective Webbe. Specifically, Rodriguez claims that the

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sustained objections “prevented [him] from proving his (un)constitutionality

defense.” Appellant’s Brief, at 25.

Rodriguez asserts that by sustaining the Commonwealth’s objection to

his attorney’s questioning of Detective Webbe, he was unable to elicit evidence

to support his selective prosecution defense. Although the court initially

deemed counsel’s questioning of Detective Webbe irrelevant, the court later

permitted counsel to ask the detective if he had ever “been in communities

and near communities where [he saw] that their cars have red and blue lights

on them.” N.T. Non-Jury Trial, 5/12/17, at 48. Detective Webbe testified that

he had been in those communities and had never cited the drivers of those

vehicles because they were on private property; he also testified that he had

never seen those drivers out on the main, public roads. Id. at 48-49.

Detective Webbe, however, did testify that his office had discussed the visible

traffic violations being committed by several different area constables, that he

was not aware of any other constables having been given citations, and that

he was aware at the time of the present vehicle stop that his partner had given

Rodriguez four citations in the month of June. Id. at 50-51. Finally, Detective

Webbe testified that he was not under any instructions to pay special attention

to Rodriguez, that he had discussed other constables with members of his

office, and that he writes citations relatively infrequently. Id. at 51.

From a review of the record, we do not find that the trial court

impermissibly prevented counsel from questioning Detective Webbe on cross-

examination, where the court ultimately permitted counsel to question the

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detective regarding his process of issuing citations, the frequency with which

he cited others in the community for vehicle code violations compared to

constables, and his familiarity with Rodriguez’s prior citations.

In his next issue on appeal, Rodriguez contends that the evidence

sufficiently proves that he was a member of a search and rescue organization,

and, therefore, was eligible to display a blue-light bar on the top of his vehicle.

Pursuant to 75 Pa.C.S. § 4572:

(a) Flashing or revolving blue lights. — Ambulance personnel,

volunteer firefighters, certified volunteer search and rescue

organization members and owners and handlers of dogs used

in tracking humans may each equip one motor vehicle with

no more than two flashing or revolving blue lights.

(1) In order to be eligible to display lights on their

vehicles under this subsection, the names of the

ambulance personnel, volunteer firefighters and certified

volunteer search and rescue organization members

shall be submitted to the nearest station of the

Pennsylvania State Police on a list signed by the chief

of the ambulance or fire department or company, the head

of the search and rescue organization, and each dog

owner and handler shall register at the nearest Pennsylvania

State Police station.

* * *

(c) No vehicle other than a duly authorized vehicle may be

equipped with lights identical or similar to those specified in

subsections (a) and (b).

75 Pa.C.S. § 4572(a)(1) (emphasis added).

Although Rodriguez showed Detective Webbe a membership card for the

DSR when he was stopped, under section 4572 Rodriguez is only eligible to

have the blue light bar atop his vehicle if: (1) he is a certified volunteer search

and rescue organization member; and (2) as a certified DSR member, his

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name had been submitted to the nearest station of the Pennsylvania State

Police on a list signed by the head of the search and rescue organization.

Instantly, the trial court concluded that Rodriguez did not qualify as an

eligible person to have a blue-light bar on his vehicle because: the court did

not find credible evidence that DSR validly exits; there was nothing on

Rodriguez’s vehicle indicating that it was being used to respond to search and

rescue calls; Rodriguez’s name appeared on a list of Bethlehem State Police

Station approved search and rescue members only after the date of the

current violation; the Bethlehem State Police Station had no record of any

such member list effective at the time of Rodriguez’s stop; evidence

contradicted Constable Metzger’s testimony that DSR was a legitimate search

and rescue organization created prior to October 15, 2015 (date of alleged

prior membership list to Bethlehem State Police Station); no evidence

supported Metzger’s testimony that DSR was in existence prior to it being

given 501(c)(3) approval in December 2015 when incorporation documents

were filed; and no credible evidence regarding DSR meetings or information

about the organization’s activities was provided.

The record supports the trial court’s findings. Critically, there is no

evidence to show that Rodriguez was, at the time of the stop, on a signed list

which had been submitted to the nearest state police station, indicating that

he is a certified member of a search and rescue organization. Detective

Webbe investigated the DSR, contacting four local police barracks to see if

any had submitted signed, certified member lists. The four barracks had

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neither received any list with DSR members, nor had they heard of DSR. N.T.

Non-Jury Trial, 5/12/17, at 29. Only one trooper from the Bethlehem branch

of the Pennsylvania State Police told Detective Webbe that he had received an

updated list of members14 of the DSR, dated July 18, 2016, after the subject

stop and citation. Id. at 29-30. The trooper noted that he had never received

the original list allegedly sent in October 2015. Id. at 30. However, even if

the trooper had received the original list, it was not signed by Metzger, a

requirement under section 4572. Without this proof, Rodriguez was not

eligible under section 4572 to display a blue-light bar on the top of his vehicle.

Thus, we find no merit to this claim.

Rodriguez next asserts that the evidence supports the conclusion that

the window tinting on his vehicle did not violate section 4524. We disagree.

A person violates this Commonwealth’s window-tinting statute when he

or she “drive[s] 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, side wing or side window of the

vehicle.” 75 Pa.C.S. § 4524(e)(1) (emphasis added). Instantly, Detective

Webbe testified at the summary trial that because of the window tint, he could

not see through the vehicle’s side or rear windows into its interior. N.T.

Summary Trial, 5/12/17, at 41. The trial judge found Detective Webbe

credible and also found that the detective’s photographs of the subject

____________________________________________

14Thirteen of the eighteen listed DSR members were constables. N.T. Non-

Jury Trial, 5/12/17, at 38.

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vehicular windows convincing. The court discredited both Constable Metzger’s

photographs of Rodriguez’s car windows, as well as Constable Metzger’s

testimony that he could see clearly into the windows. We will not disturb the

trial court’s credibility determinations. Commonwealth v. Sanchez, 36 A.3d

24 (Pa. 2011) (finder of fact exclusively weighs evidence, assesses credibility

of witnesses, and may choose to believe all, part, or none of evidence).

Accordingly, we conclude that the evidence supports the trial court’s

conclusion that the window tinting on the windows of Rodriguez’s vehicle

violated section 4524(e)(1). Cf. Commonwealth v. Brubaker, 5 A.3d 261

(Pa. Super. 2010) (where arresting officer testified that he was capable of

seeing into defendant’s vehicle, even though sun screening material was on

windows, terms of section 4524(e)(1) not met).

Finally, Rodriguez contends that sections 4524 and 4572 are

unconstitutionally vague. Despite Rodriguez’s claim that the standard

required for legal tinting is neither clear nor measurable, and that the search

and rescue provision of section 4572 can be disregarded at a whim, we

disagree. We do not find either statute void for vagueness.

In evaluating a challenge to the constitutionality of a statute, our

Supreme Court has held:

[A]ny party challenging the constitutionality of a statute must

meet a heavy burden, for we presume legislation to be

constitutional absent a demonstration that the statute clearly,

palpably, and plainly violates the Constitution. The presumption

that legislative enactments are constitutional is strong. All doubts

are to be resolved in favor of finding that the legislative enactment

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passes constitutional muster. Moreover, statutes are to be

construed whenever possible to uphold their constitutionality.

DePaul v. Commonwealth, 969 A.2d 536, 545-46 (Pa. 2009) (internal

quotations and citations omitted).

When a statute is challenged as unconstitutionally vague, our

Pennsylvania courts apply the following test:

Under the void-for-vagueness standard, a statute will only be

found unconstitutional if the statute is so vague that persons of

common intelligence must necessarily guess at its meaning and

differ as to its application. However, a statute will pass a

vagueness constitutional challenge if the statute define[s] the

criminal offense with sufficient definiteness that ordinary people

can understand what conduct is prohibited and in the manner that

does not encourage arbitrary and discriminatory enforcement.

Commonwealth v. McCoy, 69 A.3d 658, 662 (Pa. Super. 2013) (quotation

marks and citations omitted).

Section 4524 prohibits vehicular window tinting that does not permit a

person to see or view the inside of the vehicle. Section 457215 requires

certified members of volunteer search and rescue organizations to have their

names submitted and on file with the nearest Pennsylvania State Police

____________________________________________

15

To the extent that Rodriguez claims the trial court found that he was not

exempt under section 4572 because the DSR was not a bona fide search and

rescue organization, we do not base our decision today on that factor. Rather,

this Court concludes that because there was no evidence of record to show

that Rodriguez had complied with the requirements of section 4572, he cannot

benefit from the exemption; namely, the local state police barracks did not

have a signed list of the certified members of the DSR at the time of the

instant violations. See Commonwealth v. Thompson, 778 A.2d 1215, 1223

n.6 (Pa. Super. 2001) (it is well settled that we may affirm trial court on

different grounds).

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Station in order to be eligible to display lights on their vehicles. The language

of both statutes is not vague; it defines the proscribed criminal conduct 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. McCoy, 69 A.3d 658, 662

(Pa. Super. 2013). Moreover, we note that there are many examples in the

Vehicle Code of behaviors that are prohibited and rely on a police officer’s

perception for enforcement, such as driving a vehicle at a safe speed and

whether a vehicle meets or overtakes a school bus. As noted in Grayned v.

City of Rockford, 408 U.S 104, 110 (1972), “we can never expect

mathematical certainty from [a statute].”

Here, Detective Webbe testified at the summary trial that because of

the window tint, he could not see through the vehicle’s side or rear windows

into its interior. N.T. Summary Trial, 5/12/17, at 41. Pictures admitted at

trial confirm the fact that the window-tinting prevented a person from viewing

the interior of Rodriguez’s car.

Therefore, while section 4524 does not provide the exact degree to

which the windows shall be tinted to constitute a violation under the statute,

an ordinary person can understand the conduct prohibited under section 4524.

Moreover, the requirements for exemption under section 4572 are clearly and

sufficiently stated with specificity such that Rodriguez could understand what

was required to make him exempt under the statute. Accordingly, Rodriguez

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fails to satisfy the heavy burden of proving that the statutes are

unconstitutional. DePaul, supra.

Order affirmed.16

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/25/18

____________________________________________

16 We herein grant Rodriguez’s “New Application for Correction.”

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