Com. v. Morgenstern, Jr., J.

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAMES DOUGLAS MORGENSTERN, JR.,

Appellant No. 982 MDA 2013

Appeal from the Judgment of Sentence of May 17, 2013 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000570-2012

BEFORE: PANELLA, OLSON AND PLATT,* JJ. CONCURRING MEMORANDUM BY OLSON, J.: FILED AUGUST 01, 2014

I concur in the result reached by the learned majority. I write separately, however, because I believe that Appellant properly preserved his issues for appellate review and we should therefore reach his appellate claims. Nevertheless, because I believe the trial court properly denied suppression, I agree that Appellant is not entitled to relief.

The learned majority does not reach the merits of this case, finding

oncise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) was vague and, therefore, ineffective in cases cited by the majority for the proposition that there is a bright-line rule pertaining to waiver deal with the timeliness of filing and the failure to *Retired Senior Judge assigned to the Superior Court.

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include issues in a Rule 1925 statement. Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (re-affirming the bright-line rule first set forth in Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) that in order to preserve a claim for appellate review, an appellant must timely file a court-ordered Rule 1925(b) statement and any issues not raised will be deemed waived.) (emphasis added); Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc. longer within this Court's discretion to review the merits of an untimely Rule 1925(b) statement based solely on the trial court's decision to address the merits of those untimely raised issues. Under current precedent, even if a trial court ignores the untimeliness of a Rule 1925(b) statement and (emphasis added).

Moreover, in Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011), a case also relied upon by the majority, this Court found three issues on appeal were waived because Hansley failed to specify those claims in his Rule 1925 statement. However, in that case, the trial court did not address those issues below. Hansley, 24 A.3d at 415-specify his first, fourth, or fifth issues on appeal in his Rule 1925(b) Consequently, [th More specifically, on appeal Hansley was challenging: (1) the sufficiency of

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questioning of Hansley outside the scope of direct examination; and (3) truthfulness. Id. I believe that finding waiver on the basis of vagueness was proper therein, because Hansley did not: (1) specify how the evidence was insufficient or what element of the crime of robbery was not proven; (2) point to specific questions asked by the Commonwealth during its crossexamination of Hansley that exceeded the scope of direct examination; and (3) allege which comments the Commonwealth made about his truthfulness or how the trial court erred in allowing them. Id. The scenario in Hansley, however, is distinguishable from the current matter.

Regarding waiver premised upon a vague Rule 1925(b) statement, this Court has previously determined:

Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is thus a crucial component of the appellate process.

When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review. When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues.

In other words, a [c]oncise [s]tatement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement at all. While [Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)] and its progeny have generally involved situations where an appellant completely fails to mention an issue in his [c]oncise [s]tatement, for the reasons set forth above we conclude that Lord should also apply to [c]oncise

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[s]tatements which are so vague as to prevent the court from identifying the issue to be raised on appeal. In the instant case, [Dowling]'s [c]oncise [s]tatement was not specific enough for the trial court to identify and address the issue [Dowling] wished to raise on appeal. As such, the court did not address it. Because [Dowling]'s vague [c]oncise [s]tatement has hampered appellate review, it is waived.

Commonwealth v. Dowling, 778 A.2d 683, 686-687 (Pa. Super. 2001). However, where a trial court opinion meaningfully addresses arguments presented in an otherwise vague Rule 1925(b) statement, judicial review is not hampered and we may reach the merits of the appeal. See Commonwealth v. Smith, 955 A.2d 391, 393 (Pa. Super. 2008).

Herein, upon review, although inartfully stylized as a motion,

s Rule 1925(b) statement precisely identifies the issues Appellant length; however, Appellant clearly delineated the first four and one-half pages as a recitation of the underlying facts in the matter. Although superfluous, the factual recitation is not an impediment to review. The upon the contention that the sheriffs exceeded their legal authority. exceeded the scope of their authority under Commonwealth v. Dobbins, 934 A.2d 1170 (Pa. 2007), in both interrogating Ms. Bouse and [Appellant]

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1925(b) Statement, 6/14/2013, at 6, ¶ 31. Appellant further claimed that the sheriffs possess only limited powers to enforce criminal statutes and may make warrantless searches only when they personally witness a breach of the peace or a felony. Id. at 6, ¶ 32, citing Dobbins, supra; Commonwealth v. Leet, 641 A.2d 299 (Pa. 1994). Citing Commonwealth v. Marconi, 64 A.3d 1036 (Pa. 2013), Appellant averred that a sheriff is not a police officer under the Motor Vehicle Code. Id. at 7, ¶

the authority or jurisdiction to investigate and file complaints for criminal

Id. at 7, ¶ 34. Moreover, Appellant asserted that there was no probable cause or exigent circumstances justifying a warrantless search of

cle and that the search was not incident to arrest because the sheriff never effectuated an arrest but only later issued a summons. Id. at 8, ¶ 40-41. Finally, Appellant avowed that he was officially detained when he gave consent to search his trunk, thus his consent was not voluntary. Id. at 9, ¶ 42.

As the majority acknowledges, Appellant filed his concise statement in a timely manner. See Majority Memorandum at 9, n.2. Moreover, as the foregoing establishes, Appellant clearly challenged the search of his person and vehicle, together with the subsequent issuance of a felony summons, addressed these issues in its Rule 1925(a) opinion. Hence, I would not find

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waiver based upon vagueness and, instead, would reach the merits of exceeded their authority and that the recovered evidence required suppression, our standard of review is as follows:

An appellate court's standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the prosecution prevailed in the suppression court, we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Smith, 85 A.3d 530, 534 (Pa. Super. 2014)(citation and bracket omitted).

I

Commonwealth v. Leet, 641 A.2d to make arrests without warrant for felonies and for breaches of the peace

Id. at 303. In Leet, the Supreme Court

to find a motor vehicle code provision granting to sheriffs the power to enforce the code sheriffs have had the power and duty to enforce the laws since before the Magna Carta; rather, it would be necessary to find an unequivocal provision in the code

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ab not

Id. (footnote omitted) (emphasis in original).

In 2002, our Supreme Court decided Commonwealth v. Lockridge, 810 A.2d 1191 (Pa. 2002), a case wherein a deputy sheriff issued a citation for a summary offense under the Motor Vehicle Code when the deputy did not personally observe the violation. In that matter, a probation officer witnessed Lockridge driving despite the fact that one of the conditions of his probation prohibited his operation of a motor vehicle. Lockridge, 810 A.2d at 1192. The Supreme Court noted that while the power of the sheriff to institute warrantless arrests emanated from common law as Leet instructs,

concerns a process that is among those set out in the Pennsylvania Rules of Criminal Procedure for commencing a

Id. at 1194. The Supreme Court examined Pennsylvania Rules of Criminal Procedure 103, 402, 405, and 410, and concluded that, when read in conjunction, a sheriff is a law enforcement officer as defined by Pa.R.Crim.P. 103 and may issue a summary citation by: (1) exhibiting a show of authority, or (2) based upon information received from a witness to the summary violation. Id. at 1195-1196.

In Commonwealth v. Dobbins, 934 A.2d 1170 (Pa. 2007), our

on of a suspected methamphetamine manufactory, obtain[ed] a search warrant in furtherance of that

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investigation, and effectuate[d] arrests for any offenses the investigation

Dobbins

authority to arrest for breaches of the peace or felonies committed have only such independent investigatory authority to seek out evidence of wrongdoing that is committed outside of their presence as is expressly

Id.

Here, Deputy Sheriff James L. Hart testified that he saw a car parked in a pull- -6. An hour later, the Deputy Hart saw the car in the same location, with the

Id.

Id. at 7-8. When the deputy

puty that Appellant had gone to get gas. Id. at 8-9. However, Deputy Hart noticed had been two and Appellant took one with him. Id. at 10. Next, Appellant jogged up to the scene, without a gas can. Id. at 11. Appellant and Deputy Hart knew each other. Id. at 11. When Appellant spoke to Deputy Hart,

very

Id. Deputy Hart told Appellant

Id. partner, Deputy Sheriff Brian Weibert conducted a license plate search that

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vehicl vehicle had not been inspected. Id. When told about the registration and

Id. at 13. Deput

Id. at 14. With discovered a rifle. Id. at 17. Appellant confirmed that he was on probation, a fact already known to Deputy Hart. Id.

Id. at 19. Deputy Hart did not take Appellant into custody, but filed a complaint charging Appellant with one count of persons not to possess a firearm, 18 Pa.C.S.A. § 6105. Id. at 23-24.

Based upon my review of the record, I would conclude that Appellant is not entitled to relief based upon his chal suppression order. The initial encounter with police was to determine the welfare of the occupants of a disabled vehicle. Later, the deputy sheriffs determined that there was a motor vehicle code violation when the license plat Appellant did not have valid registration. Thereafter, Appellant volunteered information that there was a firearm in the vehicle and gave his consent to search. Based upon the foregoing, I believe the sheriffs possessed both the

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authority and requisite constitutional justification to support the search and eventual seizure of the rifle.

I note that Appellant was on probation at the time of the search.

[I]t must be remembered that the very assumption of the institution of probation is that the probationer is more likely than the ordinary citizen to violate the law.

• • * *

Although the Fourth Amendment ordinarily requires the degree of probability embodied in the term probable cause a lesser degree satisfies the Constitution when the balance of governmental and private interests makes such a standard reasonable. Those interests warrant a lesser than probable cause standard here. When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable. The same circumstances that lead us to conclude that reasonable suspicion is constitutionally sufficient also render a warrant requirement unnecessary.

In establishing reasonable suspicion, the fundamental inquiry is an objective one, namely, whether the facts available to the officer at the moment of the intrusion warrant a man of reasonable caution in the belief that the action taken was appropriate. This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circumstances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability.

Commonwealth v. Moore, 805 A.2d 616, 619-620 (Pa. Super. 2002) (internal citations, quotations, and brackets omitted).

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Appella search, Deputy Hart had to have reasonable suspicion that criminal activity

and admission that the vehicle bore a license plate for another car amounted to reasonable suspicion to suspect criminal activity in order to effectuate a search.

Finally, Appellant argues that the sheriffs lacked the ability to issue a subsequent felony summons. The filing of a summons is set forth in the Pennsylvania Rules of Criminal Procedure for instituting proceedings in court cases. The Rules are adopted under Article V, § 10(c) of the Pennsylvania Constitution and the Constitution grants our Supreme Court exclusive rulemaking authority. Kopko v. Miller , 892 A.2d 766, 777 (Pa. 2006)

Accordingly, the test enunciated in Leet and the parameters of a sheriff's common law arrest powers as discussed in that case have no present bearing. Rather, [the deputy sheriff's] authority to file Id. When we interpret our Rules of Criminal Procedure, we employ the same principles employed in the interpretation of statutes. See

rds of a [rule] are clear and free from all ambiguity, the letter of it is not to be

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Lockridge, and my reading of the Rules of Criminal Procedure, support my conclusion that a sheriff may file a criminal complaint. Pursuant to Pa.R.Crim.P. 502 and 503, criminal proceedings may be instituted by filing a written complaint that is filed with the appropriate issuing authority. Pa.R.Crim.P. 502, 503. Pennsylvania Rule of Criminal Procedure 504 sets forth the contents of the complaint. complaints whether the affiant is a law enforcement officer,[1] a police officer, or a private citi

Id., citing Pa.R.Crim.P. 506. Herein, upon review, the deputy sheriff, a law enforcement officer, followed all of the applicable rules in filing a criminal complaint. Deputy Hart, as affiant, filed the criminal complaint containing all of the required contents and a magistrate independently approved it.

In sum, I believe that Appellant preserved his claims for appellate review. However, I believe the sheriffs did not exceed their authority and, therefore, the trial court properly denied suppression. Accordingly, I, like

e. ____________________________________________

1 Law Enforcement Officer is any person who is by law given the power

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