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HomeMy WebLinkAbout99-1762 CriminalCOMMONWEALTH ' V. ; LARRY L. LIEBRUM, JR.: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 99-1762 CRIMINAL TERM NO. 99-1763 CRIMINAL TERM NO. 99-1764 CRIMINAL TERM NO. 99-1765 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., April 3, 2000. In this criminal case, Defendant has appealed from judgments of sentence entered by this court for four summary offenses under the Game Law. The offenses in question were the unlawful killing and possession of an antlerless deer when the actor's privilege to hunt was revoked, l the unlawful application for and receipt of a furtaking license when the actor's privilege to hunt and trap was revoked,2 the unlawful hunting for antlerless deer at a time when the actor's privilege to hunt was revoked,3 and the unlawful application for and receipt of a hunting license when the actor's privilege to hunt was revoked .4 At trial, the issues contested by Defendant were (1) whether Defendant's license had been revoked at the time of the alleged offenses and (2) the adequacy of notice to Defendant of any such revocation.5 The bases for Defendant's appeal from the Act of July 8, 1986, P.L. 442, § 1, as amended, 34 Pa. C.S. § 2307(a) (1999 Supp.). Act of July 8, 1986, P.L. 442, § 1, as amended, 34 Pa. C.S. § 271 l(a)(10). Act of July 8, 1986, P.L. 442, § 1, as amended, 34 Pa. C.S. § 2711(a)(10). Act of July 8, 1986, P.L. 442, § 1, as amended, 34 Pa. C.S. § 271 l(a)(10). Defendant's counsel framed the issues at the commencement of trial as follows: [T]he only thing at issue is, whether or not [Defendant's] license was revoked or whether or not he had any notice that his license could or had been revoked. So the only two issues are, did they actually judgments of sentence, as expressed in his statement of matters complained of on appeal, are as follows: 1. Was there a sufficiency of evidence to sustain a conviction beyond a reasonable doubt? 2. As a matter of law, did the Court err when it found that the Defendant's hunting license and privilege to hunt was suspended or revoked? 3. Did the Court err when it did not apply the defense of mistake? 4. Did the Court err in finding the Defendant guilty where no mens rea was proven? This opinion in support of the judgments of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS The test for sufficiency of the evidence in a criminal case has been stated by the Pennsylvania Superior Court as follows: The test to be applied in determining the sufficiency of evidence to sustain a conviction is whether, accepting as true all the evidence and all reasonable inferences arising therefrom upon which, if believed, the trier of fact could properly have based its verdict, it is sufficient to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes with which he has been charged. As with all challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth.6 revoke it, and if they did actually revoke it, did they give him some notice of it so he would know he was revoked. There's some other--basically, I guess the defense is willing to stipulate, you know, certainly there was a deer killed. Yeah, he was in the woods. Yeah, he bought the license at the K-Mart. So that will save the Court the time of having [the wildlife conservation officer] prove all the elements of the offense. We're willing to stipulate, except for those two issues. N.T. 7, Trial, December 7, 1999 (hereinafter N.T. ). 6 Commonwealth v. Barnes, 310 Pa. Super. 480, 482-83,456 A.2d 1037, 1038 (1983). 2 All of the evidence admitted at trial is to be considered,7 without consideration as to the admissibility of that evidence.8 "The question of sufficiency is not assessed upon a diminished record.''9 The Commonwealth is entitled to the benefit of all reasonable inferences deducible from the evidence,l° The trier-of-fact is free to believe all, part or none of the evidence presented.~ ~ Viewed in this light, the evidence at trial may be summarized as follows. As the result of an alleged incident on November 2, 1996, in Shippen Township, Cameron County, Pennsylvania, Defendant received citations for failure to wear proper apparel while turkey hunting~2 and failure to display a hunting license while hunting.~3 The citations contained warnings of suspension of hunting and trapping privileges in the event of a guilty verdict and nonpayment of fine.TM 7 Commonwealth v. Vetrini, 734 A.2d 404, 407 (Pa. Superior Ct. 1999). 8 Commonwealth v. Savage, 695 A.2d 820, 825 (Pa. Superior Ct. 1997), quoting Commonwealth v. Davis, 437 Pa. Super. 471,475, 650 A.2d 452, 454-55 (1994), afl'd, 543 Pa. 628, 674 A.2d 214 (1996). 9 Commonwealth v. Davis, 437 Pa. Super. 471,475, 650 A.2d 452, 454 (1994), aff'd. 543 Pa. 628, 674 A.2d 214 (1996). ~o Commonwealth v. Gease, 548 Pa. 165, 169, 696 A.2d 130, 132 (1997). Commonwealth v. Metts, 447 Pa. Super. 275,298, 669 A.2d 346, 358 (1995). ~2 Commonwealth's Exhibit 6 (citation), Trial, December 7, 1999 (hereinafter 's Exhibit ); N.T. 85-86 (admission by Defendant of actual receipt of citation); see Act of July 8, 1986, P.L. 442, § 1, 34 Pa. C.S. § 2102(a); 58 Pa. Code § 141.45(a)(6). 13 Commonwealth's Exhibit 5 (citation); N.T. 85-86 (admission by Defendant of actual receipt of citation); see Act of July 8, 1986, P.L. 442, § 1, as amended, 34 Pa. C.S. § 271 l(a)(1). Commonwealth's Exhibits 5-6. Defendant was aware that if he failed to appear for trial on these charges he would be found guilty.~5 Defendant was notified of the trial date (December 20, 1996) by the district justice.~6 Defendant requested, but was denied, a continuance of the trial on the charges,l? He did not appear for the trial,~8 was found guilty in absentia,~9 and ignored a notice from the district justice to pay a fine? The Pennsylvania Game Commission sent written notice to Defendant, dated August 4, 1997, by certified mail to his correct address that, as a result of his conviction and failure to pay the fine, his hunting, furtaking and trapping privileges were suspended, and that failure to comply with the suspension would subject him to "further penalization as provided by law.''2~ The notice read as follows: You have been convicted of violating the Game and Wildlife Code of Pennsylvania by a court having jurisdiction and were placed on time payment to pay the prescribed penalty in full within the required period and failed to do so. Under authority of Section 930, of the Game and Wildlife Code, all privileges granted to you, are suspended, effective immediately, until the penalty is paid in full. During such period of suspension as set forth above, it shall be unlawful to purchase a hunting or furtaking license, or to hunt or trap anywhere within the Commonwealth, or to exercise the privilege of any Special Permit granted by the Game and Wildlife Code. Failure to comply with the suspension shall subject you to further penalization as provided by law. 15 N.T. 88. 16 Commonwealth Exhibits 7-8 (trial notices). ~7 N.T. 21, 40, 86. is N.T. 86. 19 Commonwealth's Exhibits 4-6, 9. 20 Commonwealth's Exhibit 9; N.T. 79. 2t Defendant's Exhibit 1. 4 When the penalty has been paid in full it shall be your responsibility to notify the Pennsylvania Game Commission to have the suspension removed. Written verification from the District Justice that the penalty has been satisfied must be sent to: Pennsylvania Game Commission, 2001 Elmerton Avenue, Harrisburg, PA 17110-9797, Attn: Bureau of Law Enforcement. BY ORDER OF THE PENNSYLVANIA GAME COMMISSION22 Notwithstanding three notices of this item left in Defendant's mailbox by his letter carrier,23 Defendant did not claim the notification of suspension from the Game Commission and it was returned to the Commission by the postal service on August 23, 1997.24 The suspension terminated on January 14, 1999,25 as a consequence of Defendant's payment of the fine on December 14, 1998.26 While Defendant's privileges were still under suspension, on January 5, 1998, Defendant applied for and received a furtaker's license,27 and on October 30, 1998, a general hunting license.28 While his privileges remained under suspension, on Monday, December 14, 1998, during antlerless deer season,29 at about noon, Defendant was encountered by Wildlife Conservation Officer Timothy M. Grenoble as he emerged from 22 Defendant's Exhibit 1; cf. Dickerson v. Commonwealth, 138 Pa. Commw. 141, 587 A.2d 379 (1991). 23 N.T. 57-72 (testimony of letter carrier). 24 Defendant's Exhibit 1; Commonwealth's Exhibit 11; N.T. 57-72. Defendant had also declined to claim a communication of similar import, sent certified mail a few days earlier by the Commission and noticed by the postal service in the same manner. Defendant's Exhibit 4; Commonwealth's Exhibit 11; N.T. 57-72. 25 Defendant's Exhibit 5 (restoration letter). 26 N.T. 9, 15. 27 Commonwealth's Exhibit 2. 28 Commonwealth's Exhibit 1. 29 N.T. 23. woods adjacent to Mountainview Road near the Borough of Mount Holly Springs in Cumberland County, Pennsylvania? On this occasion, Defendant was dragging a deer which he had shot and killed that morning.31 As the wildlife conservation officer for the district in which Defendant resided,32 Officer Grenoble had in his possession an arrest warrant for Defendant issued by the Cameron County district justice for nonpayment of fines and costs, and the unclaimed notice of suspension, inter alia? The officer served the warrant upon Defendant, and handed him the notice of suspension, inter alia? Defendant paid the amount due on the warrant to the officer, for transmittal to the Cameron County district justice, and was released? Citations for the charges subjudice were filed on April 21, 1999,36 following further investigation by the officer? Trial on Defendant's appeal from summary convictions was held in this court on December 7, 1999. Following the entry of guilty verdicts by the court, fines were imposed for the offenses in accordance with statute? Defendant filed an appeal to the Superior Court from the judgments of sentence on January 6, 2000.39 The appeal was transferred to the Commonwealth Court on March 22, 2000.40 30 N.T. 8-9. 3~ N.T. 9, 28; Commonwealth's Exhibit 10 (Deer Harvest Field Information Form). 32 N.T. 8, 27-29, 33-34. 33 N.T. 12-13, 19. 34 N.T. 14-15. 35 N.T. 15. 36 N.T. 5. 37 N.T. 22. 38 N.T. 99-101. DISCUSSION Under Section 2307(a) of the Game Law, it is provided as follows: It is unlawful for any person to aid, abet, attempt or conspire to hunt for or take or possess, use, transport or conceal any game or wildlife unlawfully taken or not properly marked or any part thereof, or to hunt for, trap, take, kill, transport, conceal, possess or use any game or wildlife contrary to the provisions of this title. Act of July 8, 1986, P.L. 442, § 1, as amended, 34 Pa. C.S. § 2307(a). Under Section 271 l(a)(10) of the Game Law, it is provided as follows: Except as otherwise provided in this title, it is unlawful for any person to ... [h]unt or take, or aid, assist or attempt to hunt or take, furbearers or take any game or wildlife anywhere in this Commonwealth, either with or without a license, or make application, receive or attempt or conspire to receive any license required by this chapter, during any period that these privileges have been denied or withdrawn by this title, by the director or by a district justice or court. Act of July 8, 1986, P.L. 442, § 1, as amended, 34 Pa. C.S. § 271 l(a)(10). Under Section 930 of the Game Law, it is provided as follows: All privileges granted by this title shall automatically be suspended if a defendant fails to respond to a citation or summons within 60 days or fails to pay all penalties in full within 180 days following conviction. Act of July 8, 1986, P.L. 442, § 1, 34 Pa. C.S. § 930. Under Section 2743 of the Game Law, it is provided as follows: To revoke a license then in force or to deny any person the privilege to secure a license or to hunt or take game or wildlife anywhere in this Commonwealth for any period, the commission shall send a written notice to that effect to the person at the last known address by United States Postal Service with provisions for return of a signed receipt or a receipt of nondelivery. The return of a undeliverable notice shall be proof of service and shall not be used as a defense against the denial or revocation of the privilege to secure a license. 39 Notice of Appeal, filed January 6, 2000. 40 Order of Court, 399 MDA 2000 (Pa. Superior Ct., March 22, 2000). 7 Act of July 8, 1986, P.L. 442, § 1, 34 Pa. C.S. § 2743 (emphasis added). As Defendant's counsel acknowledged at trial, this degree of notice is considerably different from that necessary to sustain a prosecution for driving under suspension.4~ In the present case, the court was of the view that the evidence which was admitted, considered' in conjunction with the inferences that could reasonably be drawn from the evidence, amply supported the Commonwealth's position that Defendant's privileges under the Game Law had been suspended at the times of his applications for licenses and his encounter with Officer Grenoble, that the Commission had sent notice of the suspension to Defendant at his correct address in the manner prescribed by statute, that the notice had been returned to the Commission as nondeliverable by virtue of Defendant's unwillingness .to claim it, and that this constituted service of the notice in accordance with the statute. In addition, in view of Defendant's history of indifference to Game Law enforcement (failure to attend his 1996 trial on Game Law charges, failure to comply with a payment schedule following his conviction, failure to accept certified mail from the Game Commission), and the warning as to suspension for nonpayment of fines which he was given on the citations he received in 1996, the court was unable to credit his profession of ignorance as to the probable status of his privileges. Even had the court's view, as trier-of-fact, been different as to Defendant's mental state, summary offenses involving violations of license suspensions and revocations are generally considered to be in the malum prohibitum category of crimes, in the absence of statutory language suggesting otherwise. See, e.g., Commonwealth v. Guthrie, 420 Pa. Super. 372, 616 A.2d 1019 (1992); Commonwealth v. Ungar, 190 Pa. Super. 43, 151 A.2d 782 (1959). In such cases, an alleged absence of mens rea42 or presence of mistake43 is normally unavailing to a defendant. 4~ N.T. 74-75. 42 See, e.g., Commonwealth v. Baer, 452 Pa. Super. 547, 682 A.2d 802 (1996); see also Commonwealth v. Ungar, 190 Pa. Super. 43, 151 A.2d 782 (1959). 43 See, e.g., Commonwealth v. Guthrie, 420 Pa. Super. 372, 616 A.2d 1019 (1992). 8 For the foregoing reasons, it is believed that the judgments of sentence in the present case were properly entered. Jaime Keating, Esq. Chief Deputy District Attorney Karl E. Rominger, Esq. 155 South Hanover Street Carlisle, PA 17013 Attorney for Defendant BY THE COURT, 9