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IN THE COURT OF COMMON PLEAS OF LAWRENCE COUNTY
COMMONWEALTH OF PENNSYLVANIA
VS
JOSEPH XXX XXXXXXXX, JR.
Notes of Testimony Taken Before
HONORABLE GLENN McCRACKEN, JR.
President Judge
At the Courthouse, New Castle, Pennsylvania
Thursday, August 19, 1999
APPEARANCES: On Behalf of the Commonwealth,
On Behalf of the Defendant,
George P. Micacchione, Esq.
Leann Chieze, RPR
Official Court Stenographer
Thursday, August 19, 1999
THE COURT: Call the case, please.
MISS SHEVETZ: Case No. 576 of 1999, Criminal Division, the Commonwealth of Pennsylvania versus Joseph XXX XXXXXXXX, Jr.
THE COURT: This is the time scheduled for hearing de novo subsequent to the Defendant's appeal from operating unsafe equipment, in violation of Section 4107(b) (2). Are we going to get into a hearing?
MR. MICACCHIONE: If it please the Court, at this time, I would like to make a motion, Your Honor, to sustain the appeal on the basis of the fact that the wrong section has been charged. As this Court knows, this is a rule of law that indicates where there is a general section and a specific section dealing with the same situation, you must charge under the specific section. The officer here charged under 4107.
THE COURT: (b) (2).
MR. MICACCHIONE: That's correct, Your Honor. 4107 is a general section dealing with equipment standards. If the Court will look at the citation, the Court will note that this is a charge basically dealing with sunscreening or tinting material. There is a specific section dealing with that. If the Court will look at Section 4524(e) of the Vehicle Code, it is specifically sunscreening and other materials prohibited.
THE COURT: What's your response to that, Mr. Sensky?
MR. SENSKY: Your Honor, we believe that there are two statutes that are applicable here. One which Mr. Micacchione has mentioned and also 4107(b) (2). We feel that both statutes are specific, both in the same amount. Why (b) (2) is applicable is it states it is unlawful for any person to do any of the following, operate or cause or permit another person to operate on any highway in the Commonwealth any vehicle or combination which is not equipped as required under this part or under department regulations. Department regulations specifically have set tables and regulations dealing with sunscreening, Your Honor.
THE COURT: I don't think Mr. Micacchione would argue with anything you said, but how do you respond to his argument that when there's a general provision of the Vehicle Code and a specific one and the alleged violation falls under specific, you've got to charge specific? How do you respond to that?
MR. SENSKY: I would agree with that statement, Your Honor, but my argument is that the section that he's been charged under is at least as specific or more specific in its wording in that it deals with the department regulations Violations of department regulations and in the department regulations is a table for sun-screening.
MR. MICACCHIONE: We would indicate to this Court that this is not so. First of all, the section Mr. Sensky is citing talks about general standards for the entire automobile, not specifically delineated to sunscreening. Second of all, that does not apply to a private individual. That does not apply to any kind of an individual. Those statutes were made back in 1996, Your Honor, when PennDOT was trying to determine through inspection that a person met or did not meet certain standards. This particular statute, 4524 (e) , was done specifically to do sunscreening. It was determined by PennDOT that 4107 did not apply because it applied to inspection stations, not to private individuals.
THE COURT: Does 4524(e) -- was it enacted subsequent to 4107(b) (2)?
MR. MICACCHIONE: The last amendment, Your Honor, appears to be a 1990 amendment.
THE COURT: Yeah, but we don't know which one was the last.
MR. MICACCHIONE: Well, the 1990 amendment indicates that paragraph two of subsection (e) was rewritten. That deals with that certificate of inspection that you can receive.
THE COURT: Whereas 4107 was enacted in 1976, effective 1977, amended in 1985. What part of it was amended? No. 20, Section 3, effective within 60 days. What part of the statute is that?
MR. MICACCHIONE: Subsection (b), paragraph two, which inserted or under department regulations and/or in violation of department regulations and added subsection (b).
THE COURT: Do you agree?
MR. SENSKY: Yes.
THE COURT: Well, the last act of the legislature on the subject is the 4524(e), is it not?
MR. MICACCHIONE: That's correct, Your Honor.
MR. SENSKY: Subsection -- it would appear subsection (e) (2) was amended in 1990 and we're dealing with subsection (e)
THE COURT: Well then, that was the same date as the appeal or same year at least as the memo on the other one, right? So that really doesn't help us if it's the same date. It leaves us where we begin. Well, I think Mr Micacchione is right when he says it's a general and specific charge, particularly when you're talking about criminal, but you don't have any authority, do you?
MR. MICACCHIONE: No, I don't, Your Honor.
THE COURT: Well, take a look at it. Come on in my chambers.
(Discussion held off the record in chambers.)
(Reconvene at this time.)
THE COURT: Let the record show while we were off the record researching, Mr. Micacchione's contention is that where there's a specific statute, it ought to be charged as opposed to a general statute. Now, you moved to dismiss the charges, did you not?
MR. MICACCHIONE: I did, Your Honor.
THE COURT: We researched that, and Commonwealth versus Miller, unofficially reported at 606 A.2d page 495, seems to be dispositive of it and on page -- the bottom of page 497, Miller says, it's well-settled law of this Commonwealth that prosecutions under general provisions of a penal code are prohibited where applicable special provisions are available. I will skip the citation However, our Supreme Court has held that this general policy is only applicable "where the conflict between the statutes is irreconcilable," and I will skip the citation. Thus, even 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. I don't think either counsel argues that that's the applicable -- that that's not the applicable law, but there is a question as to whether or not the statutes are irreconcilable and whether they have identical elements or whether they don't, and there's no stipulation of the facts to allow me to go straight to the legal issue, so we'll hear your evidence on the facts, counsel, and then we'll take the case under advisement and invite your memos with regard to the law, and then we'll decide it, so call your first witness.
MR. SENSKY: Trooper Tyler to the stand.
(Witness is sworn.)
TROOPER DAVID TYLER, having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows
DIRECT EXAMINATION
BY MR. SENSKY:
Q Trooper, state your full name for the record.
A Trooper David Tyler.
Q Your employment?
A Pennsylvania State Police.
Q How long have you been employed there?
A Approximately eight years.
Q And were you employed by the state police on or about April 28, 1999?
A Yes, I was.
Q You were working what turn?
A I was working daylight shift.
Q And what time is that from?
A It was either 7:00 to 3:00 or 8:00 to 4:00.
Q Trooper, on that day, were you in a full uniform, in a marked police vehicle?
A Yes, I was.
Q Did you stop the Defendant, XXX -- or Joseph XXX XXXXXXXX, Jr ?
A Yes, I did.
Q Can you explain how that stop occurred and what occurred on that stop?
A At approximately 9:45 a.m., I was sitting on State Route 422, Mahoning Township, Lawrence County, across from the corvette shop, when I saw a green Mercury Cougar sedan traveling east on 422 -- excuse me, on 224. I observed that the rear side windows and rear windows had after-market tinting on them or blacked out. I initiated a traffic stop on that vehicle; came in contact with the operator and owner, Joseph XXX XXXXXXXX, Jr., of XXXX Avenue, XXXXXXXX, PA. He is present in the courtroom seated at defense table with the grayish-blue shirt on. I advised him as to why I had stopped him. Once I obtained his information I recalled stopping him and writing him a warning a few weeks earlier for the same violation. I used a tint meter on his rear side window which showed that -
MR. MICACCHIONE: Objection.
THE COURT: What's the basis?
MR. MICACCHIONE: The basis of the objection is he's using an instrument that hasn't been certified under the auspices as much as the radar gun and everything else, and the authority for using such a tinted meter -
Q Trooper -
THE COURT: We'll sustain that.
Q Trooper, did you at that time have a tint meter with you?
A Yes, I did.
Q And do you always carry a tint meter with you on your patrols?
A Frequently, I do
Q And is that tint meter here today?
A Yes, it is.
Q At that time, on that date, which would have been April 28 of 1999, had that tint meter been calibrated?
A It's self-calibrating
Q Had that tint meter ever been calibrated, to your knowledge?
A I believe initially when it was constructed.
Q So it's a self-calibrating machine?
A Yes
(Commonwealth's Exhibit No. 1 is marked for identification.)
Q Trooper, I show you what's been marked Commonwealth Exhibit 1, it's a certificate of calibration. Please state where that's from and what that is
MR. MICACCHIONE: Objection. If it please the Court, in looking at that certificate, there is no seal on it, nor has it been indicated whether or not that particular place has been certified according to the Pennsylvania Bulletin.
THE COURT: Well, this is the first time I've ever heard of a tint meter. I don't know what the applicable law for those are as opposed to radar guns and speedometers and so on. What is the authority of the statute, Mr. Sensky?
MR. SENSKY: For calibration?
THE COURT: For tint meters.
MR. SENSKY: I don't believe there is one, Your Honor. This is something very new to myself also. I understand Mr. Micacchione -
THE COURT: Well, is there any authority under the law that you can use them to determine the amount of tint?
MR. SENSKY: Your Honor, I would say that at least as far as calculating the tint, there would have to be, because inspection stations have regulations on tint. We've gone through that. Also, there is a statute -
THE COURT: We didn't do it on the record. We mentioned inspection stations in the off-the-record discussion about the authority.
MR. SENSKY: Correct. And also, Mr. Micacchione pointed out a statute that deals with sunscreening. How else are you going to test sunscreening without a meter?
MR. MICACCHIONE: 3524 says all you have to do is be able to see inside.
THE COURT: However, you charged 4107.
MR. MICACCHIONE: Judge, it says here that this is an alleged certificate of calibration. There is no seal on it, as much as you would normally get on radar or -
THE COURT: Well, I don't know if --there are specific statutes on radars and speedometers. I don't know of any statutes about a tint meter because I've never heard of it.
MR. MICACCHIONE: I understand that, Your Honor. It also states here that the recertification of accuracy for court purposes is available. Now, there's no date on this -- I'm sorry, the test date on this is 3-27-95.
THE COURT: Well, are there any provisions of the Vehicle Code any, but addressing a tint meter?
MR. SENSKY: I don't believe so, Your Honor, none that I've come across.
MR. MICACCHIONE: I haven't come across of course it has to be approved by the Pennsylvania Department of Transportation, just like radar guns have to be approved and just like your calibration and certification stations have to be approved.
THE COURT: Well, there are statutes applying to the issues that you raise, but I don't know of any statute applying to tint meters.
MR. MICACCHIONE: That's exactly my point, Your Honor.
MR. SENSKY: Well, the point would be -
MR. MICACCHIONE: If they don't have a statute allowing them to be used and certifying certain laboratories and certain models, just like they do with radar guns, then they can't use them.
MR. SENSKY: Your Honor, the Commonwealth's position would be this. If the state wanted specifically to regulate tint meters in this case -- they've regulated radar guns and what have you. They've got specific laws and specific statutes on that. Here, we don't have any. Our contention is it would be just like somebody bringing in the test result to something else.
THE COURT: It's up to me to decide whether I think it's admissible. Mr. Micacchione argues because there is no statutes on it, then it isn't recognizable under the law.
MR. SENSKY: Then I would contend if you use that principle, Your Honor, we'd have a million statutes, because if we wanted some kind of expert evidence or some kind of evidence other than expert that wasn't in the statute, we'd have to have it --
THE COURT: If it's in the statute obviously the scientific principle has been approved. The fact it isn't in the statute, I tend to agree with you. It's up to me, like all evidence, to determine whether it's reliable and so on and so forth. Now, at this point in time, I've also confessed my ignorance. I've never heard of it, so obviously I don't know the principle that it operates under, therefore, I don't know whether it's accepted in the scientific community, if it's reliable or anything, so unless you can show me some evidence, at least the principle on which it relies, I wouldn't be disposed to admit it.
MR. MICACCHIONE: The other problem that we have, Your Honor, even if the Court would be disposed -- I'm being deprived of my right of cross examination. The other statutes that set forth the types of radar that are used and the stations that are certified are intended so that we don't have to bring those people into court to testify that they are properly licensed by the state.
THE COURT: Yeah. Now, with regard to these inspection stations, that's 70/30. How is that 70/30 determined? Is that an opinion or by a tint meter?
MR. SENSKY: Well, let me propose this to Your Honor, an example. You have in drug cases a field kit that police officers use. That's evidence admittable in a drug case even though you don't have the person coming from the field kit or field test or maker coming in and saying, yes, we certified these tests are correct and that the test kits are correct.
THE COURT: The PET isn't admissible in court on a drunken driving case.
MR. MICACCHIONE: And also, those are admissible only as prima facie, not -- the drug kit test, the field test that the officers do, are admissible as prima facie evidence only.
THE COURT: Now, I've got no knowledge -- I didn't know these tint meters existed. I don't know the scientific principle from which it's based, whether this officer knows that, could explain it, has been trained in it, I don't know Let's pursue that, but unless you can give me some authority like radar and speedometers are permitted under certain tests and calibrations and approved in the Pennsylvania Bulletin, I'd be disposed not to allow it, but I'll allow you to question your witness about whether he knows the principle and whether he's trained on it and whether it's accepted or so on and whether ever used it in another court anything like that.
MR. SENSKY: I would only ask of you, Your Honor, that -- you can make your decision on that.
BY MR. SENSKY:
Q Trooper Tyler, have you ever used this tint meter before?
A Yes, I have.
Q How many times approximately in the past two years have you used it?
A (No response.)
Q Can you guesstimate?
A Approximately 50 times.
Q Now, at the state police barracks, have you ever been trained in the use of this tint meter?
A Nothing officially, no.
Q Have you ever taken any courses, not officially in training?
A No.
Q Do other officers, police officers and state police, use tint meters?
MR. MICACCHIONE: Objection, it's irrelevant.
THE COURT: Overruled.
Q Do other officers use them?
A Yes.
Q And is it a policy of the state police that most troopers carry tint meters with them in their vehicles?
A We have one for our station.
Q One for the station?
A Um-hum.
Q Does it usually go out with the state trooper every day?
A Usually.
Q It just rotates?
A Whoever wants to take it can take it.
Q Have you ever testified, Officer, before in a court of law, that being a district magistrate's court or this court or any other court in this state or country as to tint meter results?
A On prior citations?
Q On prior citations.
A Yes.
Q What courts have you testified in, sir?
A I'd say probably every magistrate's office in the county with the exception of Magistrate Battaglia.
Q At any time, have you ever not been allowed to testify to tint meter results in the magistrate's office?
MR. MICACCHIONE: Objection.
THE COURT: Now, a way to qualify witnesses -- to have you testify --it's an appropriate question. I don't know how much weight I'm going to give to being allowed to testify in district justices' court, no disrespect to district justices, but I think it's an appropriate question to try to qualify the witness. We'll overrule the objection.
Q Have you ever not been allowed to testify as to tint meter results in a court of law?
A No.
Q Sir, have you ever done any studies as to your results of tint meter results before as to whether they were accurate or not?
A Any studies?
Q Yes.
A No.
Q Have you made any checks as to whether or not they were accurate?
A No.
MR. SENSKY: Your Honor, I'm going to ask that, one, for the record, he be qualified as an expert to testify to the tint meter results and that you admit the tint meter results, because, one, the state police use them. If I may ask one more question.
Q To your knowledge, Trooper Tyler, does any other barracks, state police barracks in this state, have tint meters?
A I don't know.
MR. SENSKY: I would just say that it is commonplace in the County of Lawrence and for this New Castle barracks police to have one tint meter. It goes out every day. Police officers use it. We'd ask that based on that foundation, he be allowed to testify to the results.
THE COURT: We'll sustain the objection to it. I never heard of it, I don't know a brand name, I don't know a principle upon which it's applied. He doesn't have any knowledge of the principle or how to operate, never been trained, and he doesn't have any statute authorizing it, so I'm going to sustain the objection to the results of the tint meter.
Q Trooper Tyler, do you have any knowledge of how the tint meter works?
A No
Q Trooper Tyler, as to when you stopped the Defendant, specifically, the window, where were they tinted? What windows were tinted?
A The rear side windows and the rear window.
Q And the tint in the windows, could you see through the windows to see the inside of the vehicle?
MR. MICACCHIONE: Objection.
THE COURT: What's the basis of your objection?
MR. MICACCHIONE: He's not charged under that section. That is not an element.
THE COURT: No, but I think it's a part of the legal argument, Mr. Micacchione, about what elements -- whether it's different, whether it's irreconcilable or not, but he's charged under the section that requires a 70/30.
MR. MICACCHIONE: That's correct, Your Honor.
THE COURT: You're not able to prove that, are you?
MR. MICACCHIONE: No.
THE COURT: That 70/30, is that 70/30 sunlight or 70/30 visibility?
MR. MICACCHIONE: Seventy percent light has to be going through the window, I believe is the way it reads.
THE COURT: Can you prove that? Do you have any evidence of that?
MR. MICACCHIONE: Am I right?
THE WITNESS: (Nods head affirmatively.)
THE COURT: Can you prove that?
MR. MICACCHIONE: No.
MR. SENSKY: The only way I can prove it is by general statements of the trooper as to whether or not he could see through to the inside.
THE COURT: Let's say he says yes; let's say he says no. How can I reach a conclusion as to whether or not 70 percent light could get in?
MR. SENSKY: Your Honor, I go back to general scientific principles that we all learn in high school, Your Honor. Specifically, if you can't see the inside of the vehicle, that means no light is coming through the window.
THE COURT: What if it's at night, moonlit?
MR. SENSKY: I will qualify him. If it was in the daytime -- obviously, if it's in the daytime, he can't see in the vehicle.
THE COURT: All right. We'll overrule the objection.
Q Trooper, when did this stop occur?
A 9:45 a.m.
Q And the sun had arisen, correct?
A That's correct.
Q And it was light out?
A Yes.
Q To your knowledge, to your memory, could you see the inside of the vehicle at all from those windows that had tint on them?
A With what I have written on my citation, no, you couldn't have.
MR. MICACCHIONE: I'm going to object to that, not responsive to the question.
THE COURT: We'll sustain that.
MR. MICACCHIONE: Move to strike.
THE COURT: There is not a foundation for it. I'm not satisfied he looked through. He's referring to notes. We'll sustain that. We'll strike that evidence. Did you look through -- did you try to look through any of the windows that you thought were tinted?
THE WITNESS: Yes. That's what drew my attention to stop the vehicle was the tinting on the vehicle.
THE COURT: After it was stopped, did you attempt to look through any of the tinted windows?
THE WITNESS: I did look at the windows. I can't testify as to what -- all I can testify to is the notes I put on my citation, and with the notes that I put on my citation, you wouldn't be able to see through a window
MR. MICACCHIONE: Objection, that's speculation.
THE COURT: Well, what notes are on your citation?
THE WITNESS: I put 16 percent rear sides.
THE COURT: Okay. We'll sustain that.
MR. SENSKY: Your Honor, I would argue that one, if I may question him.
Q Trooper, your citation, when did you write it out?
A On April 28th.
Q The same day? Would you have written it the same time you had stopped the Defendant?
A Yes.
Q So your notes that you put on the citation -
THE COURT: The problem with his notes are he's using the 16 percent that I ruled inadmissible. I'm assuming --Officer, correct me if I'm wrong. You are assuming it there's only 16 percent, therefore, you couldn't see through it. Is that correct?
THE WITNESS: That's correct.
THE COURT: That's what I'm disallowing based on my prior ruling.
MR. SENSKY: It does not refresh your memory, sir? You have no personal knowledge refreshed that you could see through the windows?
THE WITNESS: I can't say that, no.
THE COURT: You haven't got a case, counsel. Separate and apart from the legal argument, I don't think you have a case. Now, I would say this. If the one statute says 70/30, I'm assuming that presupposes some sort of scientific test, because how can somebody just with the naked eye looking through there determine whether there is 70 percent light or something? So maybe that implies or presupposes a test such as his tint meter. The problem is, there's no authority for it that you gave to me. I think you got hit kind of between the eyes as I did, did you not?
MR. SENSKY: Your Honor, I've never seen one of these things in my life.
THE COURT: Well, I've been around here a lot longer than you have and I haven't either, so I'm not going to criticize you about that. We know nothing about the principle. The officer -- no disrespect to him -- has no training in that regard or knowledge about it, so on the basis of that, I don't think you have a case.
MR. SENSKY: The Commonwealth makes a motion --
THE COURT: To dismiss the charges?
MR. SENSKY: Yes.
THE COURT: All right. Take this Order, please. Now, this 19th day of August, 1999, case being called for hearing de novo subsequent to the Defendant's appeal from summary conviction of driving with tinted windows, in violation of Section 4107 (b)(2); the motion of the Commonwealth to dismiss the charges is granted.
By the Court. Paragraph. The Prothonotary is directed to exit a copy of this to the District Attorney, Attorney George Micacchione and District Justice J.V. Lamb. Did he pay anything out there?
MR. MICACCHIONE: No, Your Honor. Thank you, Your Honor.
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