J-A13033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JAMES R. SHERBAUGH,                       :
                                           :
                    Appellant              :       No. 1511 WDA 2017

        Appeal from the Judgment of Sentence September 28, 2017
           in the Court of Common Pleas of Armstrong County,
           Criminal Division at No(s): CP-03-SA-0000044-2017

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED AUGUST 30, 2018

      James R. Sherbaugh (“Sherbaugh”) appeals from the judgment of

sentence entered following his conviction of the summary offense of failing to

register a vacant building. See Apollo Borough Ordinance No. 272-16, Article

4(a) (the “Ordinance”). We affirm.

      The trial court set forth the relevant underlying facts as follows:

            [Sherbaugh] lives in Blairsville with his wife. He and his wife
      are co-owners of a house located at 622 North Second Street in
      Apollo Borough (hereinafter referred to as 622).             Neither
      [Sherbaugh] nor his wife have ever resided there. Sometime prior
      to April 2016, [Sherbaugh’s] son lived there for a time without
      paying rent. Otherwise, no one has lived there on a day-in[,] day-
      out basis.

                                   ***

            [On April 20, 2017, Sherbaugh] was charged with a violation
      of Apollo Borough Ordinance 272-16, more specifically, Article
      4(a) thereof entitled Registration, which reads as follows:
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            An owner shall register a vacant or abandoned
            property with the Borough Manager or designee, on a
            form or forms provided by the Borough and pay the
            appropriate registration fee.[FN]

          The definition of a vacant building is found in Article 2 of the
     Ordinance pertaining to definitions, which reads as follows:

                  Vacant building: a property or structure, or
            portion thereof, that is unoccupied for more than sixty
            (60) days or has been the subject of (i) a mortgage
            foreclosure action or notice; (ii) a bankruptcy sale or
            notice; (iii) a delinquent tax sale or notice, or (iv) a
            mortgage foreclosure action where the title to the
            property has been retained by the beneficiary of a
            deed or trust involved in the foreclosure or transferred
            under a deed in lieu of foreclosure/sale.

            The term vacant is also defined by the Ordinance.          The
     definition reads as follows:

                  Vacant: a building or structure, or portion
            thereof, shall be deemed to be vacant if no person or
            persons [currently] conducts a lawfully licensed
            business there, or lawfully resides in or lives in any
            part of the building as the legal or equitable owner(s)
            or tenant occupant[(s)] [] or owner-occupants or
            tenant(s), on a permanent non-transient basis.

                                      ***

           In the [police] citation, the Borough has accused
     [Sherbaugh] of failing to register 622 as a vacant property with
     the borough manager, as required by Article 4 of the Ordinance.
     ___________________________________________________

        Article 4(e) requires the registration to be made within 180
     [FN]

     days of [the] date that the property becomes vacant.

Trial Court Memorandum, 9/28/17, at 1-2 (emphasis omitted, footnote in

original, paragraphs reordered).




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      On June 13, 2017, Sherbaugh was found guilty of violating the

Ordinance by a magisterial district judge, and ordered to pay a fine of

$500.00. Sherbaugh appealed the decision to the Armstrong County Court of

Common Pleas. Following a bench trial, the trial court found Sherbaugh guilty

of violating the Ordinance. Sherbaugh filed a timely Notice of Appeal and a

court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of

on appeal.

      On appeal, Sherbaugh raises the following claims for our review:

      1) Whether the trial court’s finding of guilty was against the weight
      of the evidence?

      2) Whether the provision of the [O]rdinance under which
      [Sherbaugh] was found guilty was an improper mandatory,
      conclusive presumption[?]

      3) Whether the [O]rdinance was unreasonably vague in that it did
      not contain a definition of the material term “vacant[?]”

      4) Whether the trial court erred in failing to construe the undefined
      material term “vacant” in the [O]rdinance in favor of [Sherbaugh],
      pursuant to the rule of lenity[?]

Brief for Appellant at 14.

      “Our standard of review from an appeal of a summary conviction heard

de novo by the trial court is limited to a determination of whether an error of

law has been committed and whether the findings of fact are supported by

competent evidence.” Commonwealth v. Marizzaldi, 814 A.2d 249, 251

(Pa. Super. 2002). “[W]e may not disturb the credibility determinations of

the trial court on review. Thus, we must solely limit our review to a


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consideration of the elements of the statute and the evidence presented.”

Commonwealth v. Askins, 761 A.2d 601, 603 (Pa. Super. 2000).

      In his first claim, Sherbaugh alleges that the trial court’s finding was

against the weight of the evidence presented at trial. See Brief for Appellant

at 21-25. Sherbaugh argues that the evidence at trial demonstrated that the

property was not vacant, because he used the property frequently, maintained

utilities there, and kept the property in a habitable condition.     Id. at 21.

Sherbaugh asserts that the trial court improperly framed the issue as whether

he lawfully resided at the property “on a permanent non-transient basis,”

instead of the proper question, i.e., whether the property was “vacant.” Id.

at 23-24; see also id. at 22.

      In summary appeals, the Pennsylvania Rules of Criminal Procedure

prohibit the filing of post-sentence motions. See Pa.R.Crim.P. 720(D) (stating

that “[t]here shall be no post-sentence motion in summary case appeals

following a trial de novo in the court of common pleas.”).            However,

Pa.R.Crim.P. 720(D) does not relieve Sherbaugh of his duty to preserve a

weight of the evidence claim through an oral or written motion prior to

sentencing. See Commonwealth v. Dougherty, 679 A.2d 779, 784 n.3 (Pa.

Super. 1996) (stating that “[the predecessor to Pa.R.Crim.P. 720(D)] …

dispensed with the need to file a post-sentence motion in summary case

appeals following a trial de novo.      However, this alteration … has not

eliminated the duty to preserve issues by raising them in the trial court before


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or during trial.”); see also Pa.R.Crim.P. 607(A). Because Sherbaugh has not

raised this claim prior to sentencing, it is waived on appeal.1

       In his second claim, Sherbaugh alleges that the trial court improperly

construed the language in the Ordinance, “shall be deemed,” as a conclusive

presumption. See Brief for Appellant at 25, 28-29. Sherbaugh argues that

the trial court should have construed this language as a non-conclusive

presumption, and in turn, found that Sherbaugh had rebutted this

presumption with his testimony of his use of the property. See id.

       “Like statutes, the primary objective of interpreting ordinances is to

determine the intent of the legislative body that enacted the ordinance. Where

the words in an ordinance are free from all ambiguity, the letter of the

ordinance may not be disregarded under the pretext of pursuing its spirit.”

Bailey v. Zoning Bd. of Adjustment of City of Phila., 801 A.2d 492, 502

(Pa. 2002) (citations omitted).

       In its Opinion, the trial court concisely addressed Sherbaugh’s second

claim as follows:

       The [trial court] … finds that [Sherbaugh’s] argument is based on
       an unreasonable and somewhat tortured reading of the definition
       of “vacant” in the [O]rdinance. First, the definition itself is
       included, along with many others, in Article 2(a) of the
       [O]rdinance, entitled “Definitions.”       The drafters of the
       [O]rdinance thus clearly intended the relevant language to be read
       as a definition and not as a mandatory presumption.
____________________________________________


1Even if properly preserved, we would conclude that the claim is without merit
based on the reasoning of the trial court. See Trial Court Opinion, 11/28/17,
at 2-3.

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            Second, the definition is clear on its face. A building or
      structure is vacant if either 1) no person or persons currently
      conduct a lawfully licensed business there, or 2) no person or
      persons lawfully reside in or live in any part of the building as the
      legal or equitable owner(s) or tenant occupant(s) or owner-
      occupants or tenant(s), on a permanent, non-transient basis. The
      phrase “shall be deemed to be” clearly does not create a
      presumption of any kind that would shift the burden of proof to
      [Sherbaugh]. Rather, the phrase is used in the Ordinance merely
      as introductory language because the word being defined,
      “vacant,” is an adjective, not a noun. The Commonwealth readily
      admitted at the hearing that it bore the burden to prove beyond a
      reasonable doubt that the subject property was vacant.
      [Sherbaugh] had no burden whatsoever, and the [trial court] did
      not impose any upon him. The [trial court] simply considered
      whether the Commonwealth had proven, beyond a reasonable
      doubt, that [Sherbaugh] did not reside in the subject property on
      a permanent, non-transient basis.          Ample, uncontroverted
      evidence exists in the record establishing that fact, and the [trial
      court] accordingly found [Sherbaugh] guilty.

Trial Court Opinion, 11/28/17, at 2-3 (citations omitted). We agree with the

trial court’s sound rationale and determination, and affirm on this basis in

rejecting Sherbaugh’s second claim. See id.

      We will address Sherbaugh’s third and fourth claims together. In his

third claim, Sherbaugh alleges that because the definition of “vacant” in the

Ordinance is ambiguous, the trial court should have found it void, and instead

applied the “ordinary and accepted definition” of “vacant.”       See Brief for

Appellant at 35-36.     According to Sherbaugh, under several dictionary

definitions of “vacant,” the evidence proves that the property was not vacant.

See id. at 37.




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       In his fourth claim, Sherbaugh alleges that because the Ordinance is

penal in nature and the language is vague, the trial court should have applied

the rule of lenity, and construed the Ordinance in favor of Sherbaugh. Id. at

5-6.

       In its Opinion, the trial court concisely addressed Sherbaugh’s third and

fourth claims as follows:

             [Sherbaugh’s] argument [in his third claim] … is wholly
       derivative of his argument that the Ordinance imposes upon him
       a conclusive, mandatory presumption, which it does not do. As
       the [trial court] already has discussed, the term vacant is defined
       in the Ordinance to include a building in which no person or
       persons reside on a permanent, non-transient basis.               The
       Ordinance clearly put [Sherbaugh] on notice of his obligations.
       Further, the [trial court] relied exclusively on the definition of the
       term “vacant,” and not the term “vacant building,” in finding
       [Sherbaugh] guilty. Contrary to [Sherbaugh’s] arguments, the
       Ordinance contains a clear definition of “vacant” that fairly puts
       him on notice of how he must comply. It is not in any sense
       vague.

                                       ***

              [Sherbaugh] argues [in his fourth claim] that, because the
       term “vacant” is not defined by the Ordinance, the [trial court]
       should have construed the term strictly and against the
       Commonwealth. As the [trial court] already has discussed, the
       Ordinance does indeed contain a definition of “vacant” that is
       sufficiently clear and unambiguous to put [Sherbaugh] on notice
       of his obligations. The [trial court] applied that definition in
       finding [Sherbaugh] guilty beyond a reasonable doubt.          No
       construction of the term was necessary.

Trial Court Opinion, 11/28/17, at 2-3 (citations and italics omitted). We agree

with the trial court’s sound rationale and determination, and affirm on this




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basis in rejecting Sherbaugh’s third and fourth claims, see id., with the

following addendum.

            Ordinances are presumed to be constitutional, and a heavy
      burden is placed on a person who challenges the constitutionality
      of an ordinance. An ordinance is unconstitutionally vague if it fails
      to give a person of ordinary intelligence a reasonable opportunity
      to know what conduct is prohibited by the law. A vague law
      impermissibly delegates basic policy matters to policemen,
      judges, and juries for resolution on an ad hoc and subjective basis,
      with the attendant dangers of arbitrary and discriminatory
      application. An enactment will not be deemed unconstitutionally
      vague if the terms, when read in context, are sufficiently specific
      that they are not subject to arbitrary and discriminatory
      application. As generally stated, the void for vagueness doctrine
      requires that a penal enactment must define the criminal offense
      with sufficient definiteness that ordinary people can understand
      what conduct is prohibited and in a manner that does not
      encourage arbitrary and discriminatory enforcement.

Commonwealth v. Asamoah, 809 A.2d 943, 945-46 (Pa. Super. 2002)

(citations and quotation marks omitted).

      Here, the Ordinance defines “vacant” as a building that “no person or

persons currently conducts a lawfully licensed business [in], or lawfully resides

in or lives in any part of the building as the legal or equitable owner(s) or

tenant occupant(s) or owner-occupants or tenant(s), on a permanent non-

transient basis.”    Apollo Borough Ordinance No. 272-16, at 4 (pages

unnumbered). A person of ordinary intelligence would be able to conclude

that for a building to be deemed not vacant, someone must live or conduct

business in the building on a permanent basis. See Asamoah, 809 A.2d at

945-46. Thus, the Ordinance is not unconstitutionally vague.




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       Accordingly, none of Sherbaugh’s claims entitle him to relief, and the

trial court properly found him guilty of the summary offense.2

       Judgment of sentence affirmed.

       Judge Dubow joins the memorandum.

       Judge Olson concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2018




____________________________________________


2 We note that Sherbaugh presented evidence that he maintained the property
and spent some time inhabiting the property. However, in order to avoid
prosecution under the Ordinance, Sherbaugh must have lived in the home on
a “permanent non-transient basis.” Sherbaugh did not present evidence that
he lived in the home. Although we sympathize with Sherbaugh, the plain
language of the Ordinance constrains our holding.

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