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NON-PRECEDENTIAL DECISION               SEE SUPERIOR COURT I.O.P 65.37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.
J-A03045-14



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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