            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania                  :
                                              : No. 1298 C.D. 2015
                      v.                      : Submitted: January 15, 2016
                                              :
Matthew J. Faith,                             :
                                              :
                             Appellant        :


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                         FILED: February 23, 2016

               Matthew J. Faith (Faith), representing himself, asks whether the Court
of Common Pleas of Allegheny County (trial court) erred by adjudicating him
guilty of two summary offenses for violating the Borough of West Homestead
(Borough) Tenant Occupancy Safety Inspection Ordinance, No. 658 (Ordinance),1
which requires the inspection of residential rental properties and the issuance and
renewal of occupancy permits. Faith contends the trial court’s decision is not
supported by the evidence. He also asserts the trial court erred because double
jeopardy protections precluded the Borough’s second prosecution for the same
offense. Discerning no error, we affirm.


               Faith is the owner of rental properties, located at 236 West Ninth
Avenue and 242 West Ninth Avenue (properties), in the Borough. The properties

      1
          The Ordinance was enacted on June 14, 2011.
are leased to tenants.    Pursuant to the Ordinance, each person who leases a
residential rental unit to a tenant must obtain a rental safety occupancy permit,
which is issued only after completion of a satisfactory occupancy safety inspection.
Sections 8 & 9 of the Ordinance. Allowing the occupancy of a residential rental
unit in the absence of a permit is a violation of the Ordinance, which is punishable,
upon conviction of a fine not to exceed $1,000. Sections 18(A)(2), (3) of the
Ordinance.


             In October 2014, the Borough’s code enforcement officer sent Faith
two notices of violation for not having his properties inspected. The Borough’s
notices instructed Faith to respond to the Borough within five days. Faith did not
respond. In March 2015, the Borough issued two summary citations. Faith pled
not guilty. The matter was heard by a magisterial district judge. Faith did not
appear. The magisterial district judge found Faith guilty of both offenses and
imposed fines in the amount of $1,000 for each violation, plus costs. Faith filed
two notices of appeal with the trial court.


             The trial court held a non-jury, de novo trial on the summary appeals.
On behalf of the Borough, Christopher Deasy, its code enforcement officer (Code
Officer), testified. The Borough also offered exhibits, including the records of
American Water, which the trial court admitted. Faith testified in his own defense.


             Code Officer testified American Water’s records showed water usage
for both properties from May 2014 through June 2015, which indicated the
properties were occupied during the relevant time period. Notes of Testimony


                                              2
(N.T.)2 at 6; see Borough Exhibits 3 & 3A. Despite tenant occupancy, Code
Officer testified the properties had not been inspected, and the Borough issued no
occupancy permit. N.T. at 4. After issuing the notices of violation, Code Officer
gave Faith five months to comply. N.T. at 4-5. When Code Officer issued the
citations in March 2015, the tenants were still occupying the properties. N.T. at 6-
7, 12.


                   Faith testified he asked the tenants to vacate both properties, but they
refused to leave. N.T. at 8. Faith did not dispute that he did not obtain the rental
safety occupancy permits for the properties. Faith testified he was previously
convicted of violating the Ordinance in August 2014 for “exactly the same thing.”
N.T. at 10. With regard to the August 2014 convictions, he acknowledged the trial
court imposed reduced fines and instructed him to take care of the violations or
face harsher consequences in the future. N.T. at 10.


                   At the close of the hearing, the trial court found Faith guilty of both
violations. The trial court imposed a fine of $1,000 per property violation for a
total fine of $2,000, plus costs. In the supporting opinion,3 the trial court explained
Faith did not dispute that the properties were occupied or that he did not obtain the
required inspections and permits. Although Faith was previously found guilty of
the same offense in August 2014, the trial court determined double jeopardy had


         2
             N.T. refers to the transcript of the June 23, 2015, summary appeal hearing.

         3
        At the direction of the trial court, Faith filed a concise statement of errors complained of
on appeal. Although Faith’s statement was untimely filed, the trial court nevertheless considered
it.


                                                    3
not attached because the violations are continuing. The instant violations occurred
after Faith was found guilty in August 2014 of prior violations. This appeal
followed.


               On appeal,4 Faith contends the trial court erred by finding him guilty.
Faith maintains the Borough did not present sufficient evidence to prove the
violations.    According to Faith, he did not ignore contacts by the Borough
regarding the inspection of the properties. He asserts the use of water on the
properties is not sufficient proof that he did not comply with the inspection
request.5 In addition, Faith contends the trial court’s decision should be reversed
on double jeopardy grounds because he was previously prosecuted and adjudicated
guilty for the same offense.6




       4
         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.
Borough of Walnutport v. Dennis, 114 A.3d 11, 17 n.5 (Pa. Cmwlth. 2015).

       5
          In addition, Faith avers he filed required forms with the Borough regarding occupancy,
which he attached to his brief as “Exhibit A.” However, this evidence was not made part of the
certified record. We will not consider documents attached to a brief that are not part of the
certified record. Pennsylvania Department of Education v. Bagwell, 114 A.3d 1113, 1120
(Pa. Cmwlth. 2015).

       6
          In his statement of questions involved, Faith asserts the Borough lacked jurisdiction to
enforce the inspection of one rental unit because it was occupied for a period of 16 years by the
same tenant – long before the Ordinance regarding inspections was enacted. Appellant’s Brief at
2. However, Faith does not develop this argument in his brief or present any legal authority in
support. Consequently, the issue is waived. See Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa.
2014), certiorari denied, Houssels v. Pennsylvania, __ U.S. __, 135 S. Ct. 1405 (2015) (claims
not sufficiently developed in brief are waived).


                                                4
             In summary offense cases, the prosecution is required to establish a
person’s guilt beyond a reasonable doubt. Borough of Walnutport v. Dennis, 114
A.3d 11, 22 (Pa. Cmwlth. 2015). 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.

Id. (citing Commonwealth v. Geatti, 35 A.3d 798 (Pa. Cmwlth. 2011)).


             Section 8 of the Ordinance provides no person shall rent or lease a
residential rental unit until after the Borough completes a successful inspection and
issues a rental safety occupancy permit. The Ordinance further provides: “A
separate offense shall be deemed committed each day during on or which a
violation of non-compliance occurs or continues.” Section 18(B) of the Ordinance.
The purpose of the Ordinance is to promote, protect and facilitate the quality of
rental housing within the community. Section 4 of the Ordinance.


             In essence, in order to show Faith violated the Ordinance, the
Borough needed to prove Faith was the owner of residential rental units, the units
were occupied by tenants, and Faith did not obtain a rental safety occupancy
permit for those units. Section 8 of the Ordinance.




                                         5
             Here, Faith does not dispute that he is the owner of the properties.
Additionally, Faith admitted both properties were occupied by tenants. N.T. at 11-
12. Although Faith asked the tenants to leave, he did not timely undertake eviction
proceedings to remove them. N.T. at 11-12; see Appellant’s Brief at 5 (“There was
no basis for immediate eviction ....”).       The tenants continued to occupy the
properties, even though Faith did not obtain the necessary rental safety occupancy
permits, despite receiving notices from the Borough to do so.


             Insofar as Faith asserts he did not ignore contacts by the Borough
regarding the inspection of the properties, he did not have the properties inspected.
To the extent Faith claims the use of water on the property is insufficient proof to
show the properties were occupied, Faith’s own testimony that the tenants would
not leave tends to establish that the properties were occupied. N.T. at 11-12.
Although Faith asserted one property was vacant at the time of the hearing,
Appellant’s Brief at 5, the issue before the trial court was whether the property was
occupied at the time the citations were issued. See N.T. at 9, 11-13. According to
Faith and the Code Officer, the properties were occupied when the citations were
issued. N.T. at 11-13. Upon review, the trial court did not err in determining the
Borough presented sufficient evidence to prove the offense.


             As for Faith’s double jeopardy claims, double jeopardy protections
prohibit a second prosecution for the same offense. See U.S. CONST. amend. V;
PA. CONST. art. I, §10; Section 109(1) of the Crimes Code, 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


                                          6
opportunity to supply evidence that it failed to put forth in the first proceeding.
Commonwealth v. Gibbons, 784 A.2d 776, 778 (Pa. 2001); Dennis, 114 A.3d at 19.
“[W]here the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of a fact which the
other does not.”      Commonwealth v. Baldwin, 985 A.2d 830, 836 (Pa. 2009)
(quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).             Double
jeopardy protections do not bar successive prosecutions based upon “temporally
distinct actions.” Commonwealth v. Roefaro, 691 A.2d 472, 474 (Pa. Super. 1997).


             Recently, this Court held double jeopardy protections may be asserted
for a violation of a municipal ordinance. Dennis, 114 A.3d at 19. 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. Id. Thus, those prosecuted for violating municipal ordinances that
provide for criminal penalties are afforded basic protections available to criminal
defendants generally, including double jeopardy protections. Id.


             Under the Crimes Code, a prosecution for a violation of the same
provision of a statute, based on the same facts as a former prosecution, is barred if
the former prosecution resulted in an acquittal or conviction or was terminated.
18 Pa. C.S. §109.     Even where a prosecution is for a violation of a different
provision of the statute or is based on different facts, it is likewise barred if such
former prosecution resulted in an acquittal or in a conviction and the subsequent
prosecution is for:


                                          7
            (i) any offense of which the defendant could have been
            convicted on the first prosecution;

            (ii) any offense based on the same conduct or arising
            from the same criminal episode, if such offense was
            known to the appropriate prosecuting officer at the time
            of the commencement of the first trial and occurred
            within the same judicial district as the former prosecution
            unless the court ordered a separate trial of the charge of
            such offense; or

            (iii) the same conduct, unless:

                   (A) the offense of which the defendant was
            formerly convicted or acquitted and the offense for which
            he is subsequently prosecuted each requires proof of a
            fact not required by the other and the law defining each
            of such offenses is intended to prevent a substantially
            different harm or evil; or

                  (B) the second offense was not consummated
            when the former trial began.

18 Pa. C.S. §110.


            Here, although Faith was previously found guilty in 2014 for violating
the same Ordinance provision in connection with the same properties, the current
citation implicates a different time period. Regarding the current citations, the
Borough cited Faith for failing to comply with the tenant occupancy safety
inspections as of March 3, 2015, after issuing him notices of violation on October
7, 2014. N.T. at 7; Borough’s Exhibit 1A. The prior citations related to violations
occurring prior to August 2014. N.T. at 10. Under the Ordinance, “a separate
offense shall be deemed committed each day during or on which a violation or
non-compliance occurs or continues.” Section 18(B) of the Ordinance (emphasis



                                         8
added). As the violations are temporally distinct, they are separate offenses under
the Ordinance. See id.; see also Roefaro.


             Moreover, the Borough waited five months to file the citations after
giving Faith notices of violation and an opportunity to abate in October 2014. Five
months was a reasonable time for Faith to abate the violations. See Chartiers
Valley Industrial and Commercial Development Authority v. City of Pittsburgh,
569 A.2d 405, 408 (Pa. Cmwlth.), appeal denied, 582 A.2d 325 (Pa. 1990)
(citations did not give rise to double jeopardy violation where defendant was
afforded reasonable time between citations to correct the condition).


             Upon review, the trial court did not err in determining double
jeopardy protections did not attach. As we explained in Dennis, “[t]o conclude
otherwise would essentially give [the defendant] a free pass ....” to continue renting
the properties without inspections or occupancy permits in violation of the
Ordinance. 114 A.3d at 20.


             Accordingly, we affirm.




                                       MICHAEL H. WOJCIK, Judge




                                          9
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania            :
                                        : No. 1298 C.D. 2015
                    v.                  :
                                        :
Matthew J. Faith,                       :
                                        :
                         Appellant      :



                                     ORDER


            AND NOW, this 23rd day of February, 2016, the order of the Court of
Common Pleas of Allegheny County, dated June 23, 2015, is AFFIRMED.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
