J-A03045-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37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 cross-
examination 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 rule-
making 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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