J-A35031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
            v.                             :
                                           :
DAVID K. HOUCK,                            :
                                           :
                  Appellant                :           No. 489 WDA 2015

           Appeal from the Judgment of Sentence March 12, 2015
             in the Court of Common Pleas of Allegheny County,
               Criminal Division, No. CP-02-SA-0002607-2014

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED JANUARY 29, 2016

      David K. Houck (“Houck”) appeals the judgment of sentence imposed

following his conviction of a summary offense under the Motor Vehicle Code

(hereinafter “the Vehicle Code”):    operating a motor vehicle that does not

comply with Pennsylvania Department of Transportation (“PennDOT”)

regulations, 75 Pa.C.S.A. § 4107(b)(2).1 We affirm.

      On July 23, 2014, Houck was stopped by Mount Lebanon Police Officer

Bryan Crabb (“Officer Crabb”), who observed that a 2012 Volkswagen GTI,

operated by Houck, appeared to have windows equipped with window tint,

also referred to as “sun screening.” After stopping Houck’s vehicle, Officer

Crabb used a tint meter to measure the window tint on Houck’s vehicle. The

1
 Section 4107, entitled “Unlawful Activities,” provides, in pertinent part, that
“[i]t is unlawful for any person to ... [o]perate ... on any highway in this
Commonwealth any vehicle ... which is not equipped as required under this
part or under department regulations ....” 75 Pa.C.S.A. § 4107(b)(2). The
PennDOT regulation implicated in this case is 67 Pa. Code § 175.67, entitled
“Glazing.”
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tint meter indicated that the window tint on Houck’s vehicle permitted a light

transmittance level of only 17%.    Due to this equipment violation, Officer

Crabb issued Houck a citation under section 4107(b)(2), based on Houck’s

violation of the PennDOT sun screening regulation at section 175.67(d)(4).

Section 175.67(d)(4) provides as follows:

      (d) Obstructions. A vehicle specified under this subchapter
      shall have glazing free from obstructions as described in
      § 175.80 (relating to inspection procedure)

                                  ***

      (4) A sun screening device or other material which does not
      permit a person to see or view the inside of the vehicle is
      prohibited, unless otherwise permitted by FMVSS No. 205, or a
      certificate of exemption has been issued in compliance with
      § 175.265 (relating to exemption provisions). See Table X for
      specific requirements for vehicles subject to this
      subchapter. Passenger car requirements relating to the rear
      window are delineated by vehicle model year in Table X.

67 Pa. Code § 175.67(d)(4) (emphasis supplied). Section 175.265 sets forth

the levels of acceptable light transmittance at Table X, entitled Acceptable

Light Transmittance Levels for Vehicle Glazing (hereinafter referred to as




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“Table X”).2 Table X sets forth specific light transmittance requirements for

passenger cars, depending on the model year. Pursuant to Table X, at least

70% of light must pass through the tinted glass of Houck’s 2012 passenger

vehicle.3   As noted above, the light transmittance level of 17% on the

windows of Houck’s vehicle fell far below this requirement.4

      On November 4, 2014, after a hearing, a Magisterial District Judge

found Houck guilty of violating section 4107(b)(2). Houck filed a summary

appeal of his citation to the Allegheny County Court of Common Pleas. By

Order dated March 12, 2015, following a de novo summary appeal trial, the

trial court found Houck guilty of violating section 4107(b)(2), and imposed a




2
  Section 175.265 sets forth the categories of vehicles which are exempt
from compliance with section 175.263, which provides, in pertinent part,
that

      [a] person may not operate, on a highway, a motor vehicle with
      a front windshield, side window or side wing that has been
      equipped with a sun screening device or other material which
      does not permit a person to see or view the inside of the vehicle.

67 Pa. Code § 175.263(a). None of the exceptions set forth in section
175.265 are applicable to Houck’s vehicle.
3
 Section 175.263(b) also refers to Table X “for specific requirements for
vehicles subject to this subchapter.” 67 Pa. Code § 175.263(b).

4
 Notably, Officer Crabb did not cite Houck under 75 Pa.C.S.A. § 4524 of the
Vehicle Code, which provides, in pertinent part that, unless one of the
enumerated exceptions is met, “[n]o person shall drive any motor vehicle
with any sun screening device … 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.A. § 4524(e)(1). Section 4524 does not
refer to Table X.


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fine of $25.00, plus costs. Houck filed a timely Notice of Appeal and a court-

ordered Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal.

      On appeal, Houck raises the following issues for our review:

      1. Whether the lower court committed an error of law or abused
         its discretion by upholding an alleged violation for prohibitive
         window tint under 75 Pa.C.S.[A.] § 4107(b)(2), “Unlawful
         Activities[,]” rather than applying the specific legal standard
         for    prohibitive   window    tint  under     75   Pa.C.S.[A.]
         § 4524(e)(1)?

      2. Whether the lower court committed an error of law or abused
         its discretion by ruling [that] 67 Pa.[ Code] § 175.67(d)(4) is
         incorporated into 75 Pa.C.S.[A.] § 4107(b)(2), “Unlawful
         Activities[,]” and/or that it is determinative or applicable to
         establishing prohibitive window tint?

Brief for Appellant at 4 (capitalization omitted).

      As Houck’s issues are related, we will address them together. In his

first issue, Houck contends that, because the Pennsylvania Legislature has

promulgated a specific statute regulating window tint under section

4524(e)(1), the lower court’s reliance upon section 4107(b)(2) is incorrect.

Brief for Appellant at 12. Houck asserts that he was stopped by police for

prohibitive window tint, but was not cited for a violation of section

4524(e)(1).    Brief for Appellant at 13.      Houck claims that “the use of

[section 4107(b)(2)], together with the routine incorporation of [section

175.67(d)(4)] is inappropriate, because it creates an irreconcilable conflict

with [section 4524(e)(1)].” Brief for Appellant at 15.

      Relying on Commonwealth v. Brubaker, 5 A.3d 261 (Pa. Super.

2010), and Commonwealth v. Cartagena, 63 A.3d 294 (Pa. Super. 2013)


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(en banc), Houck argues that the practice of incorporating              section

175.67(d)(4) into section 4107(b)(2) has been “expressly repudiated” by

this Court. Brief for Appellant at 15. Houck also argues that “prosecutions

under the general provisions of [section] 4107(b)(2) are prohibited where

relevant provisions are available and when there is an irreconcilable conflict

with another statute.” Brief for Appellant at 15 (citing Commonwealth v.

Miller, 606 A.2d 495, 497 (Pa. Super. 1992)).       Houck contends that “the

lower court’s reliance on [section] 4107 conflates the law, causes systemic

confusion among the courts and police, and subverts the General Assembly’s

intent.” Brief for Appellant at 16. Houck asserts that the trial court erred by

concluding that there is no irreconcilable conflict between section 4524(e)(1)

and section 4107(b)(2), and that “[i]t may be possible to see into the

vehicle through the window[,] although the window may still have a light

transmittance level of less than 70% and violate [section] 4107(b)(2).”

Brief for Appellant at 16 (citing Trial Court Opinion, 4/29/15, at 5

(unnumbered)).5

      Houck claims that there is no published authority supporting the

application of section 4107(b)(2) to prohibitive window tint.        Brief for

Appellant at 19.     Houck argues that section 4107 applies to “vehicle

equipment,” and contends that after-market window tint is not “vehicle

equipment,” but rather constitutes an “accessory.”      Id. at 20-21.   Houck

5
 We observe that the copy of the Trial Court Opinion attached to Houck’s
brief on appeal is missing two pages.


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asserts that, to the extent that section 4107 applies to window tint, it only

applies to after-market vehicle equipment which violates an applicable

statue or regulation, and that a violation of section 175.67(d)(4) is not a

violation of the Vehicle Code.           Id. at 22-23 (citing 25 Summary of

Pennsylvania Jurisprudence 2d Environmental Law § 8:204 (2d ed.), Vehicle

Equipment Standards and 13 West’s Pennsylvania Practice, Rules of the

Road § 212 (2013-2014 ed.)). Houck claims that section 4524(e)(1) is the

only statute that could reasonably be implicated by prohibitive window tint,

and only when it does not allow a person to see or view the inside of the

vehicle. Brief for Appellant at 23. Houck argues that, because Officer Crabb

testified that he could see through the windows of Houck’s vehicle, the

window    tint   was   not   illegal,    thereby   rendering   section   4107(b)(2)

inapplicable. Brief for Appellant at 23.

      In his second issue, Houck contends that, “by incorporating [section]

175.67(d)(4) into [section] 4107(b)(2), the lower court allows police to favor

the general statute [i.e., section 4107(b)(2)] over the specific statute [i.e.,

section 4524(e)(1),] thereby yielding an unreasonable and absurd result …”




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Brief for Appellant at 24.6 Houck points to FMVSS No. 205, as referenced in

section 175.67(d)(4), and asserts that the safety standard contained in

FMVSS No. 205 concerns driver visibility rather than a person’s ability to see

into a vehicle through the windows.      Brief for Appellant at 26-27.     Houck

claims that the 70% light transmittance standard in FMVSS No. 205 applies

only to original or replacement glazing, and does not apply to after-market

screening affixed to vehicle window surfaces.        Brief for Appellant at 27.

Similarly, Houck argues that section 175.67(d)(4) and Table X apply only to

original or replacement glazing, and do not apply to after-market screening

affixed to vehicle window surfaces.        Brief for Appellant at 27.      Houck

contends that whereas inward visibility is controlled by section 4524(e)(1),

outward visibility is controlled by state inspection standards.         Brief for

Appellant at 28.   According to Houck, “this is the only way that [section]

175.67(d)(4) and [section] 4524(e)(1) can co-exist under the law without

creating a irreconcilable conflict.” Brief for Appellant at 28.

      Because Houck’s issues present a pure question 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).




6
  Houck cites to 67 Pa. Code § 161, and asserts that “the purpose [of the
chapter] is to assess outward visibility of the driver, not inward visibility of a
person outside.” Brief for Appellant at 25. However, our review discloses
that this chapter, entitled “Railroads and Canals,” has been repealed. See
67 Pa. Code § 161 (2015).


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      In Brubaker, the appellant was stopped for prohibitive window tint by

a police officer who thereafter used a tint meter on the appellant’s vehicle

windows, which permitted a light transmittance level of only 36.3%, well

below the 70% threshold set forth in Table X.    Brubaker, 5 A.3d at 264.

The appellant was charged with violating section 4524(e)(1), which, as

noted above, prohibits the operation of “any motor vehicle with any sun

screening device … 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.A. § 4524(e)(1) (emphasis supplied). Notably, section

4524(e)(1) makes no reference to Table X or to the 70% light transmittance

standard contained therein.    Moreover, at trial, the investigating officer

conceded that, even though there was sun screening material present on the

subject windows, he could, in fact, see into the appellant’s vehicle.

Brubaker, 5 A.3d at 263.      Therefore, given the officer’s testimony, this

Court ruled that the plain terms of section 4524(e)(1) had not been

satisfied. Id.

      Our holding in Brubaker does not inure to Houck’s benefit, as the

appellant in Brubaker, unlike Houck in the instant case, was not charged

with violating section 4107(b)(2).   Rather, the appellant in Brubaker was

charged under section 4524(e)(1), which does not prohibit a person from

driving a motor vehicle which possesses sun screening material that reduces

transmittance of light to below any particular standard. Brubaker, 5 A.3d



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at 264-65. Indeed, the court in Brubaker seemingly suggested that, given

the officer’s ability to see into the appellant’s vehicle, the proper charge

would have been under section 175.67(d)(4), which specifically references

Table X and its specific requirements for light transmittance.                See

Brubaker, 5 A.3d at 264.       Unlike the appellant in Brubaker, Houck was

charged with violating section 4107(b)(2), which prohibits a person from

operating a motor vehicle in violation of PennDOT regulations, including the

70% light transmittance standard referenced in section 175.67(d)(4) and

Table X. As such, Brubaker is inapposite.

      Houck’s reliance on Cartagena is similarly misplaced. In Cartagena,

an en banc panel of this Court considered the legality of the warrantless

protective sweep of the defendant’s vehicle, which had windows that were so

heavily tinted that the police officer could not see through them, even with a

flashlight. The appellant in Cartagena did not challenge the legality of his

initial stop, which was based on a violation of 4524(e)(1).             Thus, the

Cartagena case did not involve a challenge to, or any substantive analysis

of, any statute or regulation relating to window tint.        In a footnote, the

Cartagena Court observed that “[t]here is no measurable amount of tint

that renders a vehicle with tinted windows illegal in Pennsylvania. Tint is

illegal if, from point of view of the officer, he or she is unable to see inside of

a vehicle through the windshield, side wing, or side window.” Cartagena,

63 A.3d at 305 n.26. However, the Cartagena Court’s comments, made in



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dicta, were restricted to section 4524(e)(1), and the Court made no

reference to either section 4107(b)(2) or section 175.67(d)(4).        As such,

Cartagena is also inapposite.

      In this case, Houck could not have been charged under section

4524(e) because the Officer Crabb was able to see into Houck’s vehicle.

See N.T., 1/26/15, at 7. Nevertheless, we are satisfied that, under the facts

of this case, section 4524(e) does not bar the prosecution of Houck for

violating section 4107(b).

      We have explained that, “[e]ven if the two [statutory sections] have

identical elements in the sense that the special wholly encompasses the

general, so long as the general has elements outside the special, the

Commonwealth is not precluded from pursuing both charges in one trial.”

Commonwealth v. Gautieri, 636 A.2d 1153, 1155 (Pa. Super. 1994)

(citing Miller, 606 A.2d at 498) (brackets in original, citation omitted)).

      Here, section 4524(e)(1) is more specific than section 4107(b)(2).

The former regulates window tint “which does not permit a person to see or

view the inside of the vehicle through the windshield.”           75 Pa.C.S.A.

§ 4524(e)(1).      Contrarily, section 4107(b)(2) regulates all types of

equipment violations.   Indeed, because of the broad application of section

4107(b)(2), it contains elements outside of the more specific section

4524(e)(1), and a violation of section 4107(b)(2) does not necessarily

involve a violation of section 4524(e)(1). See Brubaker, 5 A.3d at 264-65



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(stating that “the language of [section 4524(e)(1)] does not prohibit a

person from driving a motor vehicle which possesses sun screening material

that ‘reduces the transmittance of light below 70%.’”).          Indeed, the

Commonwealth can prove an equipment violation if it shows a window tint

that does permit a person to see or view the inside of the vehicle through

the windshield, but does not meet the light transmittal requirements of Table

X. See id. at 265 (stating that “[section 4524(e)(1)] also does not prohibit

a person from driving a motor vehicle which possesses sun screening

material that reduces the transmittance of light to below a standard to be

determined and published by PennDOT.”).        Therefore, we conclude that,

because the general statute at section 4107(b)(2) is not encompassed by

the more specific statute at section 4524(e)(1), there is no bar against the

Commonwealth pursuing Houck under the general statute at section

4107(b)(2).   See Gautieri, 636 A.2d at 1155.      Additionally, because the

record supports Houck’s violation of the 70% light transmittance standard

referenced in section 175.67(d)(4) and Table X, the trial court did not err in

determining that Houck was guilty of violating section 4107(b)(2).

      Because we find no merit to Houck’s claims on appeal, we affirm the




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judgment of sentence imposed by the trial court.7

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/29/2016




7
  Houck also claims that the trial court erred in relying on four unpublished
Superior Court Memoranda in imposing his judgment of sentence. We agree
that the trial court should not have relied on unpublished decisions, as
unpublished decisions of this Court are non-precedential. See Superior
Court Internal Operating Procedure § 65.37; 210 Pa. Code § 65.37.
However, this Court may affirm the decision of the trial court if it is correct
on any grounds. See Commonwealth v. Turner, 73 A.3d 1283, 1286 n.5
(Pa. Super. 2013) (stating that an appellate court may affirm a trial court’s
decision on any grounds supported by the record on appeal).


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