Opinion
No. 1873 C.D. 2013
10-09-2014
Commonwealth of Pennsylvania v. Timothy Dennis, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ROBERT SIMPSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Timothy Dennis (Dennis) appeals an order of the Court of Common Pleas of Northampton County (trial court) that entered a verdict of guilty of two violations of Section 4 of the Health and Nuisance Ordinance of the Borough of Walnutport, Ordinance No. 2004-03 (Ordinance) for creating a nuisance based on the accumulation of debris and the storage of abandoned and junked vehicles. The trial court also entered a verdict of not guilty of violating Section 5A of the Ordinance for the storage of abandoned and junked vehicles in connection with a business.
The Honorable Leonard N. Zito, now Senior Judge, presided.
Dennis contends the trial court erred or abused its discretion by: refusing to immediately certify the matter for appeal after Dennis presented his motion to dismiss on double jeopardy grounds; not dismissing the citations on double jeopardy grounds; determining the Borough presented sufficient evidence; not dismissing the citations for lack of specificity; not suppressing testimony and physical evidence obtained by trespass; and, not announcing the verdict and sentence in open court upon the conclusion of the trial. He also contends the trial court entered inconsistent verdicts; implemented an excessive penalty; and, violated his First Amendment rights. Discerning no error, we affirm.
I. Background
Dennis is the owner of residential property located at 645 Lehigh Gap Street (Property), in the Borough of Walnutport (Borough), Northampton County. Upon receiving complaints from the neighbors, in November 2010, the Borough filed two citations against Dennis for violating two provisions of the Ordinance related to the accumulation of garbage and rubbish and the storage of abandoned and junked vehicles on his Property.
Specifically, the Borough cited Dennis for violating Sections 4 and 5A of the Ordinance. These sections provide:
Section 4. Nuisance unlawful
It shall be unlawful for any person to create a nuisance as herein defined. Any person violating any provision of this Ordinance shall be subject to the penalties hereinafter provided.
Section 5. Activities and conditions constituting nuisance
The following activities shall be deemed to be a nuisance when, based upon actual conditions in the Borough, they constitute a nuisance in fact:
A. The accumulation of garbage and rubbish and the storage of abandoned or junked automobiles, on private
and public property, and the carrying on of any offensive manufacture or business.Certified Record (C.R.), Ex. No. B-6. Section 3B of the Ordinance defines nuisance as "[s]uch activity, existence of a condition, or state of being, which, based upon actual conditions in the Borough, shall be offensive to public life, health, safety, morals, welfare, peace, decency, dignity, reasonable and comfortable use of property, and the tranquility of the community." C.R., Ex. No. B-6.
The first citation identified the nature of the offense as "the accumulation of garbage and rubbish on private property" (rubbish citation). C.R., Ex. No. B-2 (Citation P8635408-5). The second citation listed "the storage of abandoned and junked automobiles on his property creating a nuisance" as the offense (vehicle citation). C.R., Ex. No. B-2 (Citation P8635409-6). Both citations charged Dennis with violating Sections 4 and 5A of the Ordinance. The Borough supplemented both citations with additional facts in support of the alleged violations. See C.R., Ex. No. B-2 (Amendments to Citations P8635408-5 and P8635409-6).
Magisterial District Judge Robert A. Hawke (Magistrate Hawke) found Dennis guilty of violating both sections of the Ordinance. Dennis timely appealed to the trial court.
In August 2011, the trial court began a non-jury, de novo trial on the summary appeals. At the start of the trial, Dennis moved to dismiss the matter on double jeopardy grounds. In support of the motion, he asserted that, in 2004, the Borough cited him with violating the same provisions of the Ordinance for the same vehicles and same conditions on the Property. A Magisterial District Judge found Dennis guilty of violating Section 4 of the Ordinance. Dennis appealed. At the de novo hearing, the trial court, with Judge Robert A. Freedberg (Judge Freedberg) presiding, dismissed the 2004 citations. On this basis, Dennis argued, the present prosecution violated Dennis' constitutional right to be free from successive prosecutions for the same criminal offense.
In response, the Borough asserted Judge Freedberg dismissed the case at the start of the trial on a procedural technicality. Specifically, Judge Freedberg ruled the citations did not comply with Pa. R. Crim. P. 403(A)(5) because they incorrectly identified the address for the Property. Judge Freedberg did not reach the substantive merits of the case or make a factual determination as to Dennis' guilt or innocence. In addition, the Borough argued it was proceeding under a new set of facts resulting from the passage of time, exposure to the elements, deterioration of the vehicles, and additional violations of the Ordinance.
The proceedings before Judge Freedberg are not part of the certified record.
The trial court took the motion to dismiss under advisement to determine if there was any change in facts and proceeded with the de novo trial. Tr. Ct. Hr'g, 8/31/11, Notes of Testimony (N.T.) at 24, 37-38. The trial court heard testimony from Borough's Code Enforcement Officer Eric Stohl (Code Officer) and Dennis' neighbor Scott Stauffer (Neighbor), and partial testimony from Dennis before adjourning the trial as a result of time constraints. The trial court scheduled the matter for completion for the end October 2011.
Unless otherwise specified, the notes of testimony citations refer to the August 31, 2011 hearing.
In the interim, Dennis filed an interlocutory appeal with the Superior Court challenging the trial court's decision to defer ruling on his motion to dismiss. Dennis asserted he was entitled to an automatic appeal. The Superior Court transferred the matter to this Court. We dismissed the appeal as interlocutory, explaining the matter was not immediately appealable because the trial court simply deferred ruling on the motion. Commonwealth v. Dennis (Pa. Cmwlth., No. 610 C.D. 2012, order filed April 19, 2012) (Quigley, S.J.). Dennis requested reconsideration, which we denied. Commonwealth v. Dennis (Pa. Cmwlth., No. 610 C.D. 2012, order filed May 8, 2012) (Oler, S.J.).
The matter reconvened before the trial court in August 2013. In September 2013, the trial court entered a verdict of guilty of violating Section 4 on both citations. However, the trial court found Dennis not guilty of violating Section 5A of the Ordinance. The trial court also filed a 12-page opinion in support. Dennis appealed. At the direction of the trial court, Dennis filed a concise statement of errors complained of on appeal pursuant to Pa. R.A.P. 1925(b). In response, the trial court filed a Pa. R.A.P. 1925(a) Opinion. This appeal is now before us for disposition.
II. Contentions
On appeal, Dennis asserts a variety of procedural and substantive errors. He contends the trial court erred and abused its discretion by not granting his motion to dismiss on double jeopardy grounds or immediately certifying the matter for appeal. According to Dennis, double jeopardy precluded the trial court from retrying him for the same nuisance violations as the 2004 citations, which were dismissed.
Where the trial court receives additional evidence in deciding whether there was a summary violation of an ordinance, our review is limited to determining whether constitutional rights were violated or whether the trial court abused its discretion or committed an error of law. Commonwealth v. Stone, 788 A.2d 1079 (Pa. Cmwlth. 2001).
In addition, Dennis maintains the citations and the amendments lacked sufficient specificity as they did not notify him of how the items listed constituted a nuisance. He also claims the trial court entered inconsistent verdicts by finding him guilty of Section 4 but not guilty of Section 5A. Further, the trial court violated Pa. R. Crim. P. 462(F) by not immediately announcing the verdict and sentence in open court upon the conclusion of the trial. The trial court erred by not suppressing evidence obtained by trespass. He contends the punishment levied is excessive under the constitutional protections against cruel and unusual punishment. Finally, Dennis argues the trial court violated his First Amendment right to freedom of expression and his privacy right to enjoy his property.
III. Discussion
A. Refusal to Certify Matter for Immediate Appeal
First, Dennis argues the trial court abused its discretion by refusing to certify the matter for immediate appeal following the presentation of Dennis' motion to dismiss or, in the alternative, by failing to make an immediate ruling. According to Dennis, the 2004 and 2010 citations are the same. Judge Freedberg dismissed the 2004 citations. Dennis claims, having been acquitted of the violation, the Borough cannot reprosecute him again for the same offense. Dennis moved to dismiss the 2010 citations on double jeopardy grounds. However, by refusing to dismiss or otherwise rule on the motion and proceeding to trial, Dennis contends, the trial court wrongfully subjected him to double jeopardy.
The Borough counters the trial court did not rule on Dennis' pre-trial motion because it was not clear whether double jeopardy attached. Although the items listed on the 2004 and 2010 citations are substantially similar, the Borough argued the conditions at the Property are different. Specifically, the Borough claimed the vehicles deteriorated and the debris piles grew over the course of six years between the citations. Consequently, the issue of whether double jeopardy attached involved a question of fact. The trial court correctly took the matter under advisement to gather necessary facts to determine whether the offense was the same or different before rendering a decision on Dennis' double jeopardy claim. Thus, the trial court did not err by refusing to grant, deny, or otherwise rule on the motion.
Moreover, the Borough asserts the propriety of the trial court's action in deferring to rule on Dennis' motion was previously addressed. Dennis filed an appeal challenging the trial court's refusal to act, which this Court quashed as interlocutory. Consequently, the Borough asserts Dennis cannot relitigate this issue on appeal.
Generally, criminal defendants have a right to appeal a trial court's pre-trial double jeopardy determination, even though the ruling is technically interlocutory. Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011) (per curiam) (citing Commonwealth v. Bolden, 373 A.2d 90 (Pa. 1977) (plurality opinion)); Commonwealth v. Dimmig, 456 A.2d 198 (Pa. Super. 1983). "[P]retrial orders denying double jeopardy claims are final orders for purposes of appeal." Orie, 22 A.3d at 1024 (quoting Commonwealth v. Haefner, 373 A.2d 1094, 1095 (Pa. 1977) (per curiam)) (emphasis omitted).
Relying on Orie, Bolden and Dimmig, Dennis argues the trial court erred by not ruling on the motion. However, Dennis' reliance on these cases for this proposition is misplaced. These cases merely provide that once a court enters an order disposing of a motion to dismiss on double jeopardy grounds, the order is immediately appealable. Orie, Bolden; Dimmig. However, these cases do not provide a trial court must immediately act on a motion. See id.
Here, the trial court held the motion in abeyance as it was not able to determine whether double jeopardy attached based on the facts alleged. The Borough asserted the conditions serving as the underlying basis for the 2004 and 2010 citations were different; Dennis claimed they were the same. Given the factual dispute, we conclude the trial court did not err or abuse its discretion by moving forward to gather more information to determine whether the offense cited was the same.
Moreover, this Court previously addressed the propriety of the trial court's actions in deferring to rule on Dennis' motion. Dennis filed an appeal to this Court challenging the trial court's refusal to act. This Court quashed the appeal as interlocutory, noting the trial court did not deny the motion but merely deferred ruling on the motion. Commonwealth v. Dennis (Pa. Cmwlth., No. 610 C.D. 2012, order filed April 19, 2012) (Quigley, S.J.). In Dennis' motion for reconsideration, he made the same arguments he makes today. This Court denied reconsideration stating, "the trial court determined it cannot rule upon [Dennis'] 'motion to dismiss-double jeopardy' because there are not sufficient facts before the [C]ourt from which a ruling on double jeopardy can be made." Commonwealth v. Dennis (Pa. Cmwlth., No. 610 C.D. 2012, order filed May 8, 2012) (Oler, S.J.). Consequently, Dennis cannot relitigate this issue. See Peden v. Gambone Bros. Dev. Co., 798 A.2d 305 (Pa. Cmwlth. 2002).
B. Double Jeopardy
Next, Dennis contends the trial court substantively erred by not determining double jeopardy precluded the Borough's re-prosecution for the same offense. Dennis claims the 2010 citations allege the same nuisance conduct as the 2004 citations. He claims Judge Freedberg's 2006 dismissal of the 2004 citations is tantamount to an acquittal.
The Borough counters the changes in condition of the vehicles and debris from 2004 to 2010 amounted to new citable offenses. Moreover, the trial court dismissed the 2004 citations on technical grounds prior to the start of trial. Therefore, double jeopardy did not attach.
Under the Double Jeopardy Clauses of both the United States and Pennsylvania Constitutions, as well as under the Crimes Code, a second prosecution for the same offense is prohibited. See U.S. CONST. amend. V; PA. CONST. art. I, §10; 18 Pa. C.S. §109(1). This rule barring retrial is confined to cases where the prosecution's failure to meet its burden is clear and a second trial would merely afford the prosecution another opportunity to supply evidence that it failed to put forth in the first proceeding. Commonwealth v. Gibbons, 784 A.2d 776 (Pa. 2001).
Double jeopardy protections may be asserted for a violation of a municipal ordinance. 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. Shahid v. Borough of Eddystone, (E.D. Pa., No. 11-2501, filed May 22, 2012) (unreported), 2012 WL 1858954, aff'd (3rd. Cir., No. 12-2634, filed November 6, 2012) (per curiam), cert. denied, ___ U.S. ___, 134 S. Ct. 92 (2013); see Borough of W. Chester v. Lal, 426 A.2d 603 (Pa. 1981) (holding proceedings charging violations of a municipal ordinance, which provides for imprisonment upon conviction or imposition of a fine or penalty, are criminal in nature); Commonwealth v. Stone & Co., 788 A.2d 1079 (Pa. Cmwlth. 2001) (same). "Thus, those prosecuted for violating municipal ordinances that provide for criminal penalties are afforded basic protections available to criminal defendants generally, including those afforded by the Rules of Criminal Procedure and the Constitution." Shadid, slip op. at 4, 2012 WL 1858954 at *4. This includes double jeopardy protections. Lal.
Here, pursuant to the Ordinance, a violation of its provisions can result in criminal penalties. Specifically, Section 6 of the Ordinance provides:
Any person who violates or permits a violation of this Ordinance shall, upon conviction in a summary proceeding brought before a district Justice under the Pennsylvania Rules of Criminal Procedure, be guilty of a summary offense and shall be punishable by a fine of not less than $100 nor more than $1,000, plus costs of prosecution. ... Each day or portion thereof that such violation continues or is permitted to continue shall constitute a separate offense and each section of this Ordinance that is violated shall also constitute a separate offense.C.R., Ex. B-6. Because the Ordinance authorizes the imposition of criminal sanctions, Dennis is entitled to assert double jeopardy. See Lal. The question then is whether the offenses are the same.
In 2010, the Borough cited Dennis for violating two sections of the Ordinance for two conditions on the Property. Specifically, the vehicle citation charged Dennis for the storage of abandoned or junked vehicles; the rubbish citation charged him for the accumulation of garbage and rubbish. The Borough argued the current conditions on the Property constituted new nuisances. In support, the Borough submitted testimony and photographic evidence regarding the change in condition between 2004 and 2010.
As for the vehicles, the picture exhibits show significant deterioration including rust, missing parts and flat tires. See C.R., Ex. Nos. B-3, B-4, B-5. Code Officer took the photographs in July 2010, February 2011, and August 2011. Id.; N.T. at 41. Some of the vehicles are buried under debris from a fallen tree and a collapsed barn. See C.R., Ex. No. B-3 (photographs 2a, 3a, 4a, 5a, 9a, 11a).
Although the Borough did not produce photographs in connection with the 2004 citation, the Borough presented the testimony of Code Officer. Code Officer testified he worked for the Borough for the last 27 years, holding his current position for the last seven or eight years. N.T. at 39. He testified he is extremely familiar with the Property. Id. at 50. According to his personal observations, the vehicles are in a much worse state of disrepair than in 2004, when the original citation was filed. Id. at 50, 57, 58, 62, 66, 69, 79. He explained the vehicles have increased rust, rot, missing parts, flat tires, and broken taillights. Id. at 50-51, 53, 82, 84. Although the citation involves the same vehicles, he testified the condition of the vehicles is much different than in 2006 when the case was dismissed. Id. at 53, 88.
As for the debris piles, the picture exhibits show various piles of broken asphalt, yard waste, and various household items. See C.R., Ex. No. B-3 (photographs 6a, 12a-23a, 25a-27a); Ex. No. B-4 (photographs 4b-6b); Ex. No. B-5 (photographs 1-3, 6-12, 18-19, 21). According to Code Officer, these piles are not the same as those cited in 2004, but worse. N.T. at 55. He explained the piles of debris increased in size and height. Id. at 55, 82. He testified much of the debris accumulated on the Property after 2006. Id. at 55, 58-59.
Based on our review, the record supports the trial court's determination that the current conditions at the Property amounted to new citable offenses to which double jeopardy did not attach. The record shows the vehicles, garbage and other debris that gave rise to the 2010 citations underwent a material change since 2006. As the trial court aptly noted, to conclude otherwise "would operate as a de facto license for [Dennis] to violate the Borough's nuisance ordinances in perpetuity." Tr. Ct., Slip Op., 9/11/13, at 9.
C. Sufficiency of Evidence
Next, Dennis maintains the Borough did not prove any problems in connection with the vehicles or debris constituting a nuisance in fact. The Borough cannot rely on objects as being a nuisance per se, but must prove the offensive nature of the conditions, which it did not.
With regard to the vehicles, Dennis claims the Borough did not prove the vehicles are junked or abandoned. The terms "junked" and "abandoned" are not defined by the Ordinance. Even applying plain meaning definitions, the vehicles are not junked or abandoned. Dennis proved three of the six vehicles cited are registered in Tennessee. With regard to the three non-registered vehicles, Dennis removed two from the Property before the conclusion of the trial. As for the accumulation of garbage and rubbish, Dennis asserts the Borough only offered proof regarding piles of debris, not garbage or rubbish. The Borough offered no evidence as to how any of these items created a nuisance.
The Borough counters the trial court did not err or abuse its discretion in finding Dennis guilty of both citations. The record contains sufficient evidence to prove beyond a reasonable doubt Dennis was guilty of nuisance under Section 4 of the Ordinance for the accumulation of garbage and rubbish and the storage of junked vehicles as of the date of the citation.
In summary offense cases, the prosecution is required to establish a person's guilt beyond a reasonable doubt. Stone & Co. 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. Commonwealth v. Geatti, 35 A.3d 798 (Pa. Cmwlth. 2011).
In order to show Dennis violated the Ordinance, the Borough bore the burden of proving Dennis "created a nuisance." Section 4 of the Ordinance. A nuisance is an "activity, existence of a condition, or state of being, which, based upon actual conditions in the Borough, shall be offensive to public life, health, safety, morals, welfare, peace, decency, dignity, reasonable and comfortable use of property, and the tranquility of the community." Section 3B of the Ordinance.
When an ordinance is established pursuant to a municipality's authority to prohibit or regulate nuisances, the municipality is required to show that the condition complained of is a nuisance in fact in order to regulate or abate such condition. Commonwealth v. Nicely, 988 A.2d 799 (Pa. Cmwlth. 2010) (citing Commonwealth v. Hanzlik, 161 A.2d 340 (Pa. 1960)).
Here, the Ordinance does not contain a per se prohibition on the accumulation of garbage or the storage of junked or abandoned vehicles on one's property. Rather, the Ordinance prohibits these items if they are "offensive to public life, health, safety, morals, welfare, peace, decency, dignity, reasonable and comfortable use of property, and the tranquility of the community." Section 3B of the Ordinance. The offensive nature of the item is an element of the offense. The burden is on the Borough to prove every element beyond a reasonable doubt. See Stone.
The Borough cited Dennis for nuisance for the "storage of abandoned and junked automobiles" and "the accumulation of garbage and rubbish on private property" on his Property. C.R., Ex. No. B-2. In the amendments, the Borough identified six vehicles and piles of grass, tree branches, broken blacktop and various debris materials, as well as their specific locations on the Property, causing the nuisance. Id.
Code Officer testified the Property in its current condition is dangerous, unwholesome and offensive to public life. N.T. at 130. He opined the subject debris piles are fire hazards and harbors for rodents and snakes. Id. at 64, 71, 73. In addition, he observed foul water leaking from the debris piles onto the public street. Id. at 133.
Neighbor testified he saw vermin in and around the debris piles and abandoned vehicles on the Property. Id. at 140. He also testified to a rancid smell emanating from the Property. Id. at 137. He attributed the smell to the decomposing grass pile located alongside his property. Id. Neighbor also testified that, during heavy storms, debris from Dennis' Property washes onto the street into the storage drain, necessitating him to clear the drain. Id.
In addition, the Borough presented photographs of the Property taken by Code Officer in July 2010, February 2011, and August 2011. The photographs showed six vehicles in rusted, deteriorated condition, some of the vehicles in worse shape than others. C.R., Ex. No. B-3 (photographs 1a-12a, 16a-18a, 23a); Ex. No. B-4 (photographs 1b, 3b, 4b); Ex. No. B-5 (photographs 2, 4-5, 13-16, 19-21). Specifically, three of the vehicles, located behind the barn, were covered in debris from fallen trees and a collapsed barn. C.R., Ex. No. B-3 (photographs 2a-5a, 9a-11a, 24a); Ex. B-4 (photograph 3b); Ex. No. B-5 (photographs 13, 15, 19, 20). The photographs also showed large piles of sticks and grass, a mound of broken asphalt, a heap of debris with several rusting metal fences, the broken down side of a barn, battered and rusted utilities, and various household goods. C.R., Ex. No. B-3 (photographs 5a, 6a, 9a, 12a-27a); Ex. No. B-4 (photographs 1b-6b); Ex. No. B-5 (photographs 1-3, 6-13, 17-21).
In his defense, Dennis testified the piles of debris are not garbage or rubbish, but rather firewood, compost piles and household items. See N.T. at 149. He testified he utilizes the various items throughout the year. He defended that none of his vehicles are junked or abandoned; he works on them occasionally. Id. at 150. He testified three of six vehicles are registered in the state of Tennessee; the other three are not registered. Id. at 147. He conceded none of the vehicles would pass state inspection, but he believed all would be operable if he cleared the debris, inflated the tires and recharged the batteries. Id. at 160-161. Dennis acknowledged the vehicles behind the barn have been in the same position for at least seven years, and there is more rust on the vehicles. Id. at 162.
At the second hearing, Dennis testified he is not a resident of the Borough all year, adding "I'm only here to maintain property and I work on the cars occasionally when I am here." N.T., 8/20/13, at 27. He also testified he removed two of the unregistered vehicles. Id. The Borough presented photographs taken by Code Officer in August 2013 confirming the removal of two vehicles. Id. at 36, 49. However, Code Officer testified and the photographs show the debris piles remain and, in fact, increased in size. Id. at 37-38; see id. at 57.
Although the trial court did not make specific credibility determinations regarding the witnesses' testimony, it is clear the trial court credited the Borough's evidence over Dennis' testimony. Based on the evidence, the trial court determined the Borough established the existence of a nuisance and potential fire hazard. Tr. Ct., Slip Op., 9/11/13, at 11.
Upon review, the Borough submitted ample evidence to prove beyond a reasonable doubt that the conditions on Dennis' Property constituted a nuisance in violation of Section 4 of the Ordinance. The fact that Dennis subsequently removed two of the vehicles does not negate the conditions as they existed when the citations were issued.
D. Citations - Lack of Specificity
Next, Dennis argues the trial court erred or abused its discretion by not dismissing the nuisance citations for lack of specificity. The 2010 citations cited him for "the accumulation of garbage and rubbish on private property" and the "storage of abandoned and junked automobiles." C.R., Ex. No. B-2. The citations did not contain any specific allegations as to what objects and conditions constituted nuisances. Although the amendments to the citations identified specific objects, they did not identify what conditions constituted the nuisance. Further, neither the rubbish citation nor the amendment specifically identified furniture, fences, and utilities.
The Borough counters the citations along with the amendments adequately apprised Dennis as to the charges against him. Even if this Court were to find a defect in form, a summary citation cannot be dismissed absent a showing of prejudice. Dennis did not show any prejudice.
Article I, Section 9 of the Pennsylvania Constitution provides, "[i]n all criminal prosecutions the accused hath a right ... to demand the nature and cause of the accusation against him." PA. CONST. art. I, §9. In addition, Pennsylvania citation procedures provide: "[e]very citation shall contain ... the specific section of the ... ordinance allegedly violated, together with a summary of the facts sufficient to advise the defendant of the nature of the offense charged." Pa. R. Crim. P. 403(A)(6).
"[T]he essential elements of a summary offense must be set forth in the citation so that the defendant has fair notice of the nature of the unlawful act for which he is charged." Nicely, 988 A.2d at 806 (quoting Commonwealth v. Borriello, 696 A.2d 1215, 1217 (Pa. Cmwlth. 1997), aff'd, 723 A.2d 1021 (Pa. 1999)). In other words, "[a] defendant should not have to guess which charges have been placed against him. If charges in an indictment are not clear and explicit a defendant cannot properly defend against them." Commonwealth v. Wolfe, 289 A.2d 153, 155 (Pa. Super. 1972).
When a citation contains defects, the court must turn to the state rules of criminal procedure for the consequences of that defect. Borriello. Rule 109 of the Pennsylvania Rules of Criminal Procedure provides:
A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the procedures of these rules, unless the defendant raises the defect before the conclusion of the trial in a summary case or before the conclusion of the preliminary hearing in a court case, and the defect is prejudicial to the rights of the defendant.Pa. R. Crim. P. 109 (emphasis added).
In order for a summary citation to be dismissed for defects in a citation, the defendant must have suffered actual prejudice. Borriello. Actual prejudice will not be found where the content of the citation, taken as a whole, sufficiently notifies the defendant as to the nature of the summary offenses or where the defect or omission does not involve the basic elements of the offense charged. Id.
Here, the rubbish citation cited Dennis for "the accumulation of garbage and rubbish on private property." C.R., Ex. No. B-2. The amendment to the rubbish citation provided:
A. Count I. The pile of grass next to the curb next to Lehigh Gap Street;
B. Count II. A pile of tree branches next to the stop sign for Lehigh Gap Street;
C. Count III. Pile of broken blacktop and various debris materials located next to the side of the barn.
D. Count IV. Stock piles and/or debris located next to the rock wall and chain link fence adjacent to Lehigh Gap Street.
E. Count V. Debris piles next to three (3) cars adjacent to Lehigh Gap Street in front of the barn; debris between the cars and debris between the barn door and the vehicles and debris in front of the barn.
Id.
The vehicle citation cited Dennis for the "storage of abandoned and junked automobiles on his property creating a nuisance." Id. The amendment to the vehicle citation identified the make and model of the vehicles and their location on the property. Id.
Prior to issuing the citations, the Borough sent Dennis two letters advising him the Ordinance deems the accumulation of "abandoned and/or junked vehicles" and "junk" on private property as a nuisance. C.R., Ex. No. B-1 (Borough Ltrs., 8/12/10). One letter directed Dennis to Ordinance 1987-08, which outlined what the Borough considered an abandoned vehicle. Id. Both letters directed Dennis to abate the nuisance by removing the junk. Id.
Ordinance 1987-08 is an amendment to the Borough's Health and Safety Ordinance. Although the Borough did not charge Dennis of violating this ordinance, it advised him that this ordinance outlines what constitutes an abandoned vehicle. C.R., Ex. No. B-7. Section 1 of Ordinance 1987-08 prohibits: broken glass anywhere on the vehicle, jagged edges on the body of the vehicle, overgrown grass, weeds and bushes in the vicinity of the stored vehicle as this can constitute a haven for rats, mice, squirrels, and similar vermin. Id. It requires the vehicles be maintained in roadworthy condition. Id.
Contrary to Dennis' claims, the citations and amendments, taken as a whole, sufficiently apprised Dennis of the nuisance charges against him. Even assuming the summary citations were somehow deficient, Dennis cannot reasonably claim surprise or resulting prejudice warranting dismissal. Therefore, the trial court did not err by not dismissing the citations for lack of specificity.
E. Inconsistent Verdicts
Next, Dennis contends the trial court erred and created more difficulties by finding him guilty of Section 4, but not guilty of Section 5A of the Ordinance. He argues the trial court's interpretation of Section 5A is inconsistent with both the interpretation of the section by the magistrate and prior rulings of the trial court. According to Dennis "one has to read §5A as a LIST of alleged activities and conditions constituting an alleged nuisance rather than a complete whole!" Appellant's Br. at 22.
The Borough responds Dennis did not properly develop this argument, and the argument is not clear. Further, Dennis did not cite any case law in support. To the extent Dennis is attempting to argue the verdicts are inconsistent, the Borough contends this argument is without merit.
In his reply brief, Dennis does not augment or otherwise clarify his argument in response to the Borough's claims. Instead, Dennis restated the discussion contained in his original brief verbatim.
Upon review, it is difficult to understand Dennis' argument. It appears Dennis believes the trial court, by finding him not guilty of Section 5A, could not find him guilty of Section 4.
Section 4 of the Ordinance provides: "It shall be unlawful for any person to create a nuisance as herein defined." C.R., Ex. No. B-6. According to the Ordinance, a nuisance is "[s]uch activity, existence of a condition, or state of being, which, based upon actual conditions in the Borough, shall be offensive to public life, health, safety, morals, welfare, peace, decency, dignity, reasonable and comfortable use of property, and the tranquility of the community." Section 3 of the Ordinance; C.R. Ex. No. B-6.
Section 5 of the Ordinance provides, with emphasis added:
The following activities shall be deemed to be a nuisance when, based upon actual conditions in the Borough, they constitute a nuisance in fact:C.R. Ex. No. B-6.
A. The accumulation of garbage and rubbish and the storage of abandoned or junked automobiles, on private and public property, and the carrying on of any offensive manufacture or business.
* * * *
The trial court determined the vehicles and debris met the definition of a nuisance and, therefore, constituted a violation of Section 4 but not Section 5A. The trial court interpreted Section 5A as requiring the added component of conducting a business, such as a junkyard. Because the Borough presented no evidence that Dennis is carrying on a business, the trial court determined he was not guilty of violating Section 5A.
Although Dennis argues the trial court's interpretation of Section 5A is inconsistent with prior interpretations of that section by the magistrate and prior rulings of the trial court, he does not cite any cases in support or otherwise develop this argument. To the extent Dennis is attempting to argue Section 5 is an exhaustive list of activities constituting nuisance, he did not develop the argument. Id.
By failing to cite supportive authority or otherwise develop the issue for appellate review, Dennis waived the issue. See Muldrow v. Se. Pa. Transp. Auth., 88 A.3d 269 (Pa. Cmwlth. 2014) (providing an undeveloped argument or an argument not supported by pertinent authority is waived). Notwithstanding the waiver, the trial court's interpretation gives meaning to both Sections 4 and 5A. There is no basis to conclude the trial court erred in treating Section 4 as a nuisance catchall provision.
F. Pa. R. Crim. P. 462(F) - Open Court Announcement
Dennis voluntarily withdrew the issue of whether the trial court violated Pa. R. Crim. P. 462(F) by not announcing the verdict and sentence in open court upon the conclusion of the trial, conceding he waived the issue. See Appellant's Am. Br. at 23.
G. Suppression of Evidence
Dennis also contends the trial court erred by refusing to suppress testimony and physical evidence as the fruit of an unlawful search and seizure. The evidence was not in plain view. He claims Code Officer trespassed on property belonging to the Pennsylvania Department of Transportation (PennDOT) to obtain evidence. On this basis, he maintains the trial court should have suppressed the evidence.
The Borough counters the trial court did not err by refusing to suppress the evidence. Code Officer never entered Dennis' Property. Rather, he properly obtained the evidence from the public street, Neighbor's property by permission, and PennDOT property. An alleged trespass on PennDOT's property does not give Dennis any right to suppress evidence because he holds no expectation of privacy in government property.
A search occurs when government intrudes on an area in which a person has a constitutionally-protected, reasonable expectation of privacy. Commonwealth v. Robbins, 647 A.2d 555 (Pa. Super. 1994) (citing Katz v. United States, 389 U.S. 347 (1967)). "Undeniably, one of the primary sources of a reasonable expectation of privacy is the right to exclude trespassers, which attaches to property rights." Commonwealth v. Carelli, 546 A.2d 1185, 1193 (Pa. Super. 1988). However, "the presence or absence of an accompanying trespass is merely a factor to consider in determining the reasonableness of a visual intrusion." Commonwealth v. Soychak, 289 A.2d 119, 122 (Pa. Super. 1972). "[T]he right to exclude trespassers and the existence of an objectively reasonable expectation of privacy are not co-extensive." Carelli, 546 A.2d at 1193. For instance, observations made by a person trespassing in an open field are not deemed to invade the property owner's reasonable expectations of privacy. Id. The test of propriety of observations by police into a defendant's premises is whether the police unreasonably violated the defendant's justifiable expectation of privacy. Soychak.
Here, Code Officer testified he did not enter Dennis' Property. N.T., 8/31/11, at 120. Rather, he took photographs, using a telephoto lens, from Lehigh Gap Street and Neighbor's property. Id. at 38, 46, 104, 120. Additionally, Code Officer took some photos from the wooded area owned by PennDOT located behind Dennis' Property. Id. at 104-105. Contrary to Dennis' assertions, Dennis did not have a reasonable expectation of privacy in the surrounding properties. See Soychak. Therefore, the trial court did not err by refusing to suppress this evidence.
Moreover, the trial court noted it would have reached the same conclusion even if it suppressed the photographs taken on PennDOT's property. See Tr. Ct., 9/11/13, slip op. at 12 n.2.
H. Excessive Punishment
Dennis contends the punishment is excessive and violates the constitutional protections against cruel and unusual punishment. The trial court, acting as the de novo factfinder, never made its own conclusion regarding fines and costs. Rather, the trial court simply referred to Magistrate Hawke's determination. In so doing, Dennis asserts, the trial court erred because the trial court found Dennis not guilty in part and guilty in part, whereas Magistrate Hawke found him guilty of violating both sections. The trial court should have reduced the fine upon finding him not guilty of Section 5A and imposed the lowest fine possible as Dennis is a first time offender under the Ordinance. Although Dennis concedes he did not raise the issue during the de novo appeal, he asserts the issue did not arise until after the trial court entered its verdict.
The Borough counters Dennis did not raise this issue during the trial. On this basis, the trial court did not address the issue in its 1925(a) opinion. Additionally, Dennis failed to cite any case law in support of his position on appeal. For these reasons, the Borough contends, the issue is waived.
Assuming the issue is not waived, the Borough argues the trial court affirmed Magistrate Hawke's decision, which imposed a penalty of $500. In light of the evidence and Dennis' failure to remove the nuisance from 2010 through the conclusion of the trial in 2013, the fine imposed is not excessive, and it does not constitute cruel and unusual punishment. The fine could have been much greater under the Ordinance.
The Borough asserts Magistrate Hawke imposed a total penalty of $500. Appellee's Am. Br. at 46. Despite challenging the fine as excessive, Dennis does not address the amount of the fine in his amended brief or his reply brief. However, a review of the certified record reveals Magistrate Hawke imposed a total fine of $1,500 ($500 upon finding Dennis guilty of the vehicle citation and $1,000 upon finding him guilty of the rubbish citation). See Certified Record, Item Nos. 38 (trial court's summary appeal docket), 4 (magisterial docket for Citation P8635409-6), 2 (magisterial docket for Citation P8635408-5). --------
Pursuant to Pa. R.A.P. 302, "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." See In re: Att'y Ridgebury Twp. Auditors, 965 A.2d 314 (Pa. Cmwlth. 2009). Here, Dennis did not raise this issue at trial. Dennis raised the issue for the first time in his Pa. R.A.P. 1925(b) statement.
Contrary to Dennis' assertions, the issue of the amount of fine existed long before the trial court entered its verdict. Magistrate Hawke imposed a fine of $500 upon finding Dennis guilty of the vehicle citation and $1,000 upon finding him guilty of the rubbish citation. See C.R., Item Nos. 38 (trial court's summary appeal docket), 4 (magisterial docket for Citation P8635409-6), 2 (magisterial docket for Citation P8635408-5). Dennis challenged the findings of guilt, but he did not raise any objection to the amounts of fines at the de novo appeal. Although Dennis raised the issue in his 1925(b) statement, the trial court did not address the issue upon concluding Dennis "waived this issue by failing to raise it at trial." Tr. Ct., 11/7/13, Slip Op. at 7. Moreover, in the current appeal, Dennis does not cite any law in support of his position. By failing to raise the issue during trial, where pertinent facts could be adduced, and by failing to include supporting authority on appeal, the issue is waived. See Muldrow; Att'y Ridgebury.
Notwithstanding, the Eighth Amendment of the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. Similarly, the Pennsylvania Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted." PA. CONST. art. 1, §13.
The prohibition against excessive fines requires the fine to be reasonably proportionate to the crimes which occasion them. See Commonwealth v. Eisenberg, ___ A.3d ___ (Pa., No. 34 WAP 2012, filed August 19, 2014), 2014 WL 4079968. As our Supreme Court recently reiterated:
[T]he primary purpose of a fine or a penalty is twofold[:] to punish violators and to deter future or continued violations. Since it serves not only as a punishment but also as a deterrent, the amount of the fine can be raised to whatever sum is necessary to discourage future or continued violations, subject, of course, to any restriction imposed on the amount of the fine by the enabling statute or the Constitution.Id. at ___, slip op. at 12, 2014 WL 4079968 *12 (quoting Commonwealth v. Church, 522 A.2d 30, 34 (Pa. 1987)).
Section 6 of the Ordinance permits "a fine of not less than $100 nor more than $1,000, plus costs of prosecution." Significantly, "[e]ach day ... that such violation continues or is permitted to continue shall constitute a separate offense and each section of this Ordinance that is violated shall also constitute a separate offense." Section 6 of the Ordinance (emphasis added).
Here, the trial court upheld the combined fine of $1,500 imposed by Magistrate Hawke. The fine of $1,500 does not violate the constitutional proscriptions against excessive fines and cruel and unusual punishment. Indeed, under the Ordinance, the fine imposed could have been $1,000 a day for each violation, plus costs of prosecution. The $1,500 fine is reasonably proportionate to the nuisance and appears reasonably calculated to have a deterrent effect; therefore, it is not constitutionally excessive. Therefore, we conclude the trial court did not err or abuse its discretion in this respect.
I. First Amendment Rights
Finally, Dennis claims the trial court violated his First Amendment right to freedom of expression and his privacy right to enjoy his property.
The Borough responds Dennis waived the issue by not raising it during trial or in his 1925(a) statement of errors complained of on appeal.
Upon review, Dennis did not raise the issue at trial or in his statement of errors complained of on appeal. Consequently, the issue is waived. See Pa. R.A.P. 302(a) (issues not raised before the trial court are waived); Kull v. Guisse, 81 A.3d 148 (Pa. Cmwlth. 2013), appeal denied, 91 A.3d 163 (Pa. 2014) (issues not included in a statement of errors complained of on appeal are waived and will not be addressed on appeal).
IV. Conclusion
Upon review, we conclude the respected trial court did not abuse its discretion, commit an error of law, or violate Dennis' constitutional rights. Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 9th day of October, 2014, the order of the Court of Common Pleas of Northampton County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge