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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
KEITH D. CERQUEIRA                          :
                          APPELLANT         :
                                            :
                                            :     No. 1004 WDA 2016

                      Appeal from the Order June 22, 2016
             In the Court of Common Pleas of Westmoreland County
               Criminal Division at No(s): CP-65-SA-0000012-2016


BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                                FILED JUNE 29, 2017

        Appellant, Keith D. Cerqueira, appeals from the June 22, 2016 Order

entered in the Court of Common Pleas of Westmoreland County finding

Appellant guilty of the summary offenses of Driving an Unregistered Vehicle

and Operation of a Vehicle Without Official Certificate of Inspection.1 After

careful review, we affirm.

        The relevant facts and procedural history, as gleaned from the certified

record, are as follows.      Appellant is an employee of Brady Auto Sales

(“BAS”), a licensed car dealer in Penn Hills, Pennsylvania.      In June 2014,

Appellant purchased a 2008 Chevrolet Cobalt (“the Vehicle”) from BAS. The

*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S. § 1301(a) and 75 Pa.C.S. § 4703(a), respectively.
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Vehicle needed a new motor and its inspection sticker had expired in January

2014.

        On June 29, 2015, after completing repairs on the Vehicle and before

Appellant      obtained   a   valid   inspection   sticker,   Appellant   signed   a

Consignment Agreement with BAS.           The Consignment Agreement provided

that Appellant could store the Vehicle on the lot of BAS, but it was Appellant

who would remain the owner of the Vehicle until the Vehicle was sold. Also,

pursuant to BAS policy, the Vehicle could not be sold until the Vehicle had a

valid inspection certificate.

        The Consignment Agreement also granted BAS the exclusive right to

sell the Vehicle and once the Vehicle was sold, Appellant and BAS would split

the profits.

         On July 24, 2015, Appellant was driving the Vehicle on a highway

using car dealer license plate issued to BAS. Appellant had not yet obtained

a valid inspection certificate and Officer Tony J. Anthony stopped Appellant

because the Vehicle’s inspection certificate had expired.

        Officer Anthony conducted a vehicle information inquiry through the

Pennsylvania Department of Transportation, which revealed that the car was

still registered to Appellant and the Vehicle’s registration had expired in April

2015.




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      Officer Anthony issued Appellant two traffic citations:      Driving an

Unregistered Vehicle and Operation of a Vehicle Without Official Certificate of

Inspection.

      On December 16, 2015, Magisterial District Court found Appellant

guilty of both violations.   On January 14, 2016, Appellant appealed to the

Westmoreland County Court of Common Pleas. After a bench trial on June

21, 2016, the trial court found Appellant guilty of both violations and

sentenced Appellant to pay an aggregate fine of $100.

      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following two issues on appeal:

      1. Whether the Commonwealth proved [Appellant] guilty beyond
         a reasonable doubt of violating 75 Pa.C.S. § 1301(a) when it
         failed to offer any evidence to disprove [Appellant]’s
         affirmative defense that the car did not need to be registered
         due to 1) the car having a dealer license plate to [Appellant]’s
         employer [BAS], 2) the car and its title being in possession of
         [Appellant]’s employer [BAS], and 3) [BAS] owning the car
         due to a valid consignment agreement with [Appellant].

      2. Whether the court erred in finding [Appellant] guilty of 75
         Pa.C.S. § 4703(a) [inspection violation] when the car was not
         required to be registered within the Commonwealth due to it
         being exempt from registration as a dealer owned/possessed
         vehicle.

Appellant’s Brief at 1-2 (some capitalization omitted).

      Driving an Unregistered Vehicle

      Appellant concedes that he was driving with an expired vehicle

registration. He, however, argues that the Vehicle was exempt from vehicle


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registration under the car dealer’s exemptions to the registration statute, 75

Pa.C.S. § 1336(a)(2) and (b)(3). See Appellant’s Brief at 8.

      Our standard of review is well settled for sufficiency of evidence

claims:

      The standard we apply in reviewing the sufficiency of evidence is
      whether, viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact finder to find every element of the crime
      beyond a reasonable doubt. In applying this test, we may not
      weigh the evidence and substitute our judgment for that of the
      fact-finder.

Commonwealth v. Costa-Hernandez, 802 A.2d 671, 673 (Pa. Super.

2002).

      To sustain a conviction for Driving an Unregistered Vehicle, the

Commonwealth must prove that an individual is driving a vehicle that is not

registered in the Commonwealth of Pennsylvania.          See 75 Pa.C.S. §

1301(a).

      The legislature, however, has provided for several exemptions from

the vehicle registration requirement, including one for car dealers.       This

exemption permits a car dealer to not register individual vehicles and utilize

“special registration plates which may be displayed on vehicles in lieu of

registering each vehicle individually.” 75 Pa.C.S. § 1335(a). A car dealer

may only take advantage of the dealer registration exemption, however, if




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the dealer is using the vehicle for certain enumerated purposes and the

vehicle is being “held for sale.”2 75 Pa.C.S. § 1336(a)(2) and (b)(3).

      In this case, Appellant argues that that the car dealer exemption

applied because the Vehicle was being “held for sale” and he was using the

Vehicle either to transport it to or from a repair facility, or for personal use.

See 75 Pa.C.S. § 1336(a)(2) and (b)(3).        The evidence, however, clearly

demonstrated that the Vehicle was not being “held for sale.”               Thus,

Appellant is not entitled to defense of the exemption, regardless of his use of

the Vehicle, and the trial court properly refused to apply the car dealer

exemption as a defense to this case.

      It was undisputed that BAS would not attempt to sell the Vehicle until

the Vehicle passed inspection. When Appellant was driving the Vehicle, the

Vehicle had not yet passed inspection. In fact, Appellant admitted that when

he was driving the Vehicle, he was driving it to prepare the Vehicle for its

emission test. N.T. Trial, 6/21/16, at 51-52, 54, 78. Thus, the Vehicle was

not ready for sale and BAS could not be holding it for sale.

      Since the evidence supports the trial court’s conclusion that the car

was not “held for sale,” we need not address the other elements that




2
  We note that it is Appellant’s burden to prove that a vehicle registration
exemption applies. See generally Commonwealth v. Yogel, 453 A.2d
15, 16 (Pa. Super. 1982)



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Appellant would have to prove to assert the defense based on the car dealer

exemption.3

      Appellant further argues that although his name is on the certificate of

title, that is not conclusive evidence of ownership of the Vehicle.       See

Wasilko v. Home Mut. Cas. Co., 232 A.2d 60, 61 (Pa. Super. 1967).

Although we agree with the premise of Appellant’s argument, Appellant’s

argument ignores the statutory language. The issue is not who “owns” the

car, but who “holds the car for sale.”    In this case, the Vehicle had not

passed the emission test and was not ready for sale. Thus, BAS could not

hold the Vehicle for sale. Therefore, the indicia of ownership of the Vehicle

is not relevant to the analysis.4




3
  Appellant argues that he is entitled to the exemption under 75 Pa.C.S. §
1336(a)(2) where the Appellant would have to establish that he was
operating the Vehicle “[f]or testing, for safety inspection, repairing or
transporting to or from a repair facility.”       75 Pa.C.S. § 1336(a)(2).
Appellant admitted at trial that he was not en route to a repair shop at the
time of the traffic stop, but was driving to get the Vehicle ready for a not-
yet-scheduled emission test. Thus, Appellant could not establish either
element of this defense.
4
  Even if we were to address the issue of who owned the car, the evidence
established that it was Appellant and not BAS who owned the car. Appellant
was the titled owner of the Vehicle and the registration was in his name.
Commonwealth Exhibit 1, Vehicle Record Abstract. Moreover, Appellant
agreed in the Consignment Agreement that the Vehicle “shall remain the
property of [Appellant] until sold.” Defendant’s Exhibit E, Consignment
Agreement.




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      In sum, the Commonwealth presented sufficient evidence to prove that

Appellant was driving a vehicle with expired registration pursuant to 75

Pa.C.S. § 1301(a), and Appellant presented insufficient evidence to prove

that any dealer registration exemptions applied.           Thus, the trial court

properly convicted Appellant of Driving an Unregistered Vehicle.

      Operation of a Vehicle Without Official Certificate of Inspection

      In response to the conviction for operating the Vehicle without a

certificate of inspection, Appellant again argues that the Vehicle was exempt

from the inspection requirement because the Vehicle was exempt from the

inspection requirement “as a dealer owned/possessed vehicle” pursuant to

75 Pa.C.S. § 4703(a). Appellant’s Brief at 2.

      Section 4703 states, in pertinent part, “no motor vehicle required to

bear current registration plates issued by this Commonwealth . . . shall

be operated unless the vehicle displays a currently valid certificate of

inspection issued under this chapter.”        75 Pa.C.S. § 4703(a) (emphasis

added). Appellant argues that because the Vehicle was eligible for the car

dealer registration exemption, the Vehicle is not required to “bear current

registration   plates”   and   is,   therefore,   exempt   from   the   inspection

requirements set forth in 75 Pa.C.S. § 4703(a).

      As discussed above, BAS did not hold the Vehicle for sale, and thus,

Appellant was not exempt from the registration requirements. Therefore,




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Appellant is not exempt from the inspection requirements and, thus, this

argument fails.5

        In conclusion, we find that the trial court did not err in convicting

Appellant of Driving an Unregistered Vehicle and Operation of a Vehicle

Without Official Certificate of Inspection.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/29/2017




5
    Appellant concedes that he did not have a valid inspection certificate.



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