Com. v. Ellard, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. : : RICHARD W. ELLARD, : : Appellant : No. 1388 MDA 2013

Appeal from the Judgment of Sentence entered on May 15, 2013 in the Court of Common Pleas of York County, Criminal Division, No. CP-67-SA-0000432-2011

BEFORE: LAZARUS, WECHT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 11, 2014 imposed following his conviction of two summary offenses under the Motor

operating a motor vehicle that does not comply with Pennsylvania Department of Transportation

75 Pa.C.S.A. § 4107(b)(2);1 and (2) failure to comply with the requirements of a police officer, id. § 6311. We affirm. 1

75 Pa.C.S.A. § 4107(b)(2). The PennDOT regulation implicated in this case is 67 Pa. Code § 175.67, which prohibits, with a few

Id. § 175.67(d)(4).

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sitting in his patrol car when he saw a Mercedes Benz, operated by Ellard, which appeared to have windows that were tinted in violation of the law. allowed only 10% light transmittance. PennDOT regulations require 70% light transmittance.2

Based upon this equipment violation, Officer Eisenhart issued Ellard a remove all non-factory window tinting from his vehicle within five days, and return the compliance card to the police, verifying that the window tinting was removed. Ellard never returned the compliance card.

Accordingly, Officer Eisenhart issued two citations to Ellard: one for his failure to respond regarding the compliance card, see 75 Pa.C.S.A. § 6311; and the other under 75 Pa.C.S.A. § the PennDOT sun screening regulation at 67 Pa. Code § 175.67(d)(4).3 Notably to this appeal, Officer Eisenhart did not cite Ellard under the provision of the Vehicle Code that governs sun-screening materials on motor vehicles. See 75 Pa.C.S.A. § 4524(e)(1) (providing that, unless one of the enumerated

2 See (setting forth specific light transmittance requirements for different passenger cars). 3 Section 175.67(d)(4) also references Table X.

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o person shall drive any motor vehicle with any sun scre of the vehicle through the windshield, side wing or side window of the

In October 2011, a Magistrate District Judge convicted Ellard of the two above-mentioned summary offenses. Upon a de novo appeal by Ellard, argued that both of the charges against Ellard must be dismissed because Officer Eisenhart improperly cited Ellard for the illegal window tinting under section 4107(b)(2) of the Vehicle violation of the PennDOT regulation at 67 Pa. Code § 175.67(d)(4)). Ellard argued that Officer Eisenhart should have cited him under section 4524(e), since that is the statutory provision that specifically governs window tinting, and, according to Ellard, statutes always supersede administrative convictions, and imposed an aggregate fine of $525 for the two offenses. Ellard timely filed a Notice of Appeal.

On appeal, Ellard presents the following issue for our review: sun screening on car windows, should super[s]ede the [PennDOT] equipment regulations that regulate the same topic as incorporated into the

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Vehicle Code via the catch-Brief for Appellant at 4 (capitalization omitted).

n of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Raban, 85 A.3d 467, 468 (Pa. 2014).

Ellard argues that his convictions must be vacated because Officer Eisenhart improperly cited him for the unlawful window tint pursuant to the PennDOT regulation at 67 Pa. Code § 175.67(d)(4), when the citation should have been issued under the statutory provision at 75 Pa.C.S.A. § 4524(e)(1), which supersedes the PennDOT regulation. See Brief for Appellant at 4-5 (citing, inter alia, Commonwealth v. Kerstetter, 62 A.3d

4 a conflict between section 4524(e)(1) of the Vehicle Code and the PennDOT regulation in question, he fails to properly develop this bald allegation, and our review discloses no conflict. Indeed, the substantive language of both provisions is virtually identical. Compare 75 Pa.C.S.A. § 4524(e)(1)

o person shall drive any motor vehicle with any sun

4 We observe that Ellard does not argue that the evidence against him was insufficient to support his convictions. Rather, he asserts that he should have never been convicted of any offense because the Commonwealth failed to charge him under the proper section of the Vehicle Code.

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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

with 67 Pa. Code § 175.67(d)(4) (prohibiting any

un screening device or other material which does not permit a person to

Moreover, the PennDOT regulation, by referring to Table X, merely expounds upon the statutory provision by providing precise standards for permissible light transmittance thresholds.5 Without these standards, police officers would be left with no objective testing parameters was in violation of the law. Finally, the cases that Ellard relies upon in his brief are inapposite,6 as they dealt with statutory and regulatory provisions that had clear conflicts/inconsistencies. In the instant case, there is no conflict or inconsistency between 75 Pa.C.S.A. § 4524(e)(1) and 67 Pa. Code § 175.67(d)(4).

Accordingly, we conclude that the trial court did not commit legal error

5 75 Pa.C.S.A. § 4524(e) is silent as to acceptable levels of light transmittance. 6 See Equitable Gas Co. v. Wade, 812 A.2d 715 (Pa. Super. 2002), and Kerstetter, supra.

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Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/11/2014

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