Com. v. Dasilva

• Citation: 440 Pa.Super. 291,655 A.2d 568
• Parties: COMMONWEALTH of Pennsylvania v. Jose Manuel DASILVA, Appellant.
• Decision Date: 28 February 1995
• Court: Superior Court of Pennsylvania

Page 568

655 A.2d 568

440 Pa.Super. 291

COMMONWEALTH of Pennsylvania v. Jose Manuel DASILVA, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 7, 1994.

Filed Feb. 28, 1995.

Stephen L. Shields, Bethlehem, for appellant.

John M. Morganelli, Dist. Atty., Bethlehem, for Com.

Before CAVANAUGH, KELLY and BROSKY, JJ.

KELLY, Judge:

In this appeal, we are called upon to determine whether a motorist who fails to stop when meeting or overtaking a school bus whose red signal lights are flashing and whose side stop signal arms are activated, may be convicted of violating 75 Pa.C.S.A. § 3345(a), ¹ where the operator of the school bus failed to activate her amber lights no less than one hundred, fifty (150) feet prior to making a stop pursuant to the statutory requirement of 75 Pa.C.S.A. § 3345(d). ² Although the Commonwealth's evidence does indeed indicate a failure on the part of the school bus operator to activate the amber lights at the required distance, we hold that the appellant may still be convicted of violating 75 Pa.C.S.A. § 3345(a). Thus, we affirm.

The relevant facts and procedural background are as follows. On April 23, 1993 at approximately 8:30 a.m., while seated in her van at a stop sign on the east side of the intersection of Sixth Street and Buchanan Street in Bethlehem, Pennsylvania, Debra Eiclen, a private citizen, observed the appellant, Jose Manuel DaSilva, who was driving a white 1993 Dodge mini-van, proceed through the intersection from the south on Buchanan Street and pass a school bus which had stopped just before the north side of the intersection to discharge children and had its red flashing lights and side stop signal arms activated. Ms. Eiclen recorded the appellant's license plate number, DDE154, and proceeded to the police sub-station to report the incident. The police contacted the driver of the school bus, Lori Kern, who confirmed the incident. On the basis of Ms. Eiclen's assertions, the police issued a citation; District Justice Nancy Matos found the appellant guilty of the charge and ordered the appellant to pay a fine of $100.00 plus costs. The appellant appealed to the Common Pleas Court. On October 28, 1993, at the request of both the appellant and the Commonwealth, Judge F.P. Kimberly McFadden continued the case to December 2, 1993. Prior to the hearing date, on November 23, 1993, Judge McFadden sustained the appeal, pursuant to Commonwealth v. Fulmer, 423 Pa.Super. 338, 621 A.2d 146 (1993). On December 3, 1993, having reconsidered her disposition of the appeal, Judge McFadden vacated the November 23, 1993 order and scheduled the case for a hearing on January 5, 1994. Several continuances later, on March 31, 1994, Judge McFadden filed another order, affirming the December 3, 1993 order. The case was then listed for trial on May 4, 1994. A continuance was granted until June 1, 1994. Following a trial de novo on June 1, 1994 before Judge McFadden, at which both Ms. Eiclen and Ms. Kern testified for the Commonwealth, the appellant was again convicted of the charge and ordered to pay a $100.00 fine plus costs. The appellant brought this timely appeal.

The appellant presents the following questions for our review:

1. DID THE TRIAL COURT COMMIT AN ERROR OF LAW IN FAILING TO REQUIRE THE COMMONWEALTH

TO FOLLOW THE CITATION FILING PROCEDURE DELINEATED IN § 3345(a.1) OF THE PENNSYLVANIA MOTOR VEHICLE CODE?

2. DID THE TRIAL COURT COMMIT AN ERROR OF LAW BY VACATING ITS OWN ORDER SUSTAINING APPELLANT'S APPEAL AND THUS SUBJECTING APPELLANT TO DOUBLE JEOPARDY?

3. DID THE TRIAL COURT COMMIT AN ERROR OF LAW IN FAILING TO DISMISS THIS CASE AFTER THE COMMONWEALTH FAILED TO SHOW THAT THE BUS OPERATOR ACTIVATED HER AMBER LIGHTS NO LESS THAN 150' FEET PRIOR TO MAKING A STOP PURSUANT TO THE STATUTORY REQUIREMENT OF 3345.3(d) [sic]?

Appellant's Brief at 3.

The scope of appellate review of a trial de novo is limited to a determination of whether the trial court's findings of fact are supported by competent evidence and/or whether an error of law was committed. Commonwealth v. Horney, 365 Pa.Super. 152, 154, 529 A.2d 18, 19 (1987) (citing Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621 (1986), allocatur denied, 514 Pa. 638, 523 A.2d 345 (1987)). Absent a manifest abuse of discretion, we shall not disturb on appeal the findings of the trial court. Id.

The appellant contends that the trial court erred when it vacated its order of November 23, 1993 discharging the appellant. The appellant argues that the order sustaining his appeal pursuant to Commonwealth v. Fulmer, supra, 423 Pa.Super. 338, 621 A.2d 146 represented an acquittal and therefore a final adjudication in the matter, thus reinstatement of the charge would place him in double jeopardy. We cannot agree.

The protections afforded by the Double Jeopardy Clause of the United States Constitution and the Pennsylvania Constitution are coextensive, involving the same meaning, purpose and end. Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988); Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986). This clause protects against multiple prosecutions for the same offense after acquittal and against multiple punishments for the same crime. Commonwealth v. Arriaga, 422 Pa.Super. 52, 618 A.2d 1011 (1993); Commonwealth v. Rightley, 421 Pa.Super. 270, 617 A.2d 1289 (1992).

Commonwealth v. Quinlan, 433 Pa.Super. 111, 120 n. 4, 639 A.2d 1235, 1240 n. 4 (1994). Further, as stated in the dissenting opinion in Commonwealth v. Kern, 294 Pa.Super. 151, 439 A.2d 795 (1982), overruled on other grounds by Commonwealth v. Butler, 389 Pa.Super. 209, 566 A.2d 1209 (1989):

it is axiomatic that in order to prevail on a plea of double jeopardy the defendant must establish that he has already been once placed in jeopardy. In a jury case, jeopardy does not attach until the jury has been impaneled and sworn; and in a non-jury case, jeopardy attaches when the accused has been subjected to a charge and the court has begun to hear evidence.

Commonwealth v. Smith, 232 Pa.Super. 546, 548-549, 334 A.2d 741, 742 (1975). Consequently, where jeopardy has not attached ab initio, there can be no viable subsequent claim of double jeopardy.

Commonwealth v. Kern, supra, 294 Pa.Super. at 158-59, 439 A.2d at 798-99. ³ See also Commonwealth v. Rosario, 418 Pa.Super. 196, 613 A.2d 1244 (1992), allocatur granted, 535 Pa. 646, 633 A.2d 151 (1993).

A pretrial order which discharges a defendant is a final order. Commonwealth v. Butler, supra, 389 Pa.Super. at 212, 566 A.2d at 1210; Commonwealth v. Andrews, 251 Pa.Super. 162, 164, 380 A.2d 428, 429 (1977). As a general rule, a trial court may not modify a final order beyond the thirty day statutory time limit set forth in 42 Pa.C.S.A § 5505. Commonwealth v. Fralic, 425 Pa.Super. 581, 585, 625 A.2d 1249, 1251 (1993). A trial court, however, has the power to rescind a pretrial order discharging a defendant if the court acts within thirty days of the entry of the order. Commonwealth v. Butler, supra, 389 Pa.Super. at 212, 566 A.2d at 1210; Commonwealth v. Kern, supra, 294 Pa.Super. at 156, 439 A.2d [440 Pa.Super. 298] at 797-98; Commonwealth v. Sheppard, 372 Pa.Super. 550, 551-52, 539 A.2d 1333, 1334 (1988). Thus, "the court's exercise of its power under § 5505 of the Judicial Code is almost entirely discretionary; this power may be exercised sua sponte...." Justice v. Justice, 417 Pa.Super. 581, 586, 612 A.2d 1354, 1357 (1992), allocatur denied, 533 Pa. 635, 621 A.2d 581 (1993). See also Hutchison by Hutchison v. Luddy, 417 Pa.Super. 93, 108, 611 A.2d 1280, 1288 (1992), appeal dismissed, 538 Pa. 484, 649 A.2d 435 (1994) (citing Atlantic Richfield Company v. J.J. White, 302 Pa.Super. 276, 448 A.2d 634 (1982)) ("court has inherent power to reconsider its own rulings").

In the instant case, the trial court set a date for the appellant's trial de novo. Prior to that date, the trial court determined as a matter of law that, pursuant to Commonwealth v. Fulmer, supra, 423 Pa.Super 338, 621 A.2d 146, the appellant's appeal should be sustained and entered an order to that effect on November 23, 1993. On December 3, 1993, having sua sponte reconsidered its order within thirty days after its entry, the trial court vacated its previous order and again scheduled the appellant for trial. The appellant, although subjected to a charge, had not been placed in jeopardy because the trial court had not yet begun to hear evidence. See Commonwealth v. Rosario, supra, 418 Pa.Super. 196, 613 A.2d 1244; Commonwealth v. Kern, supra, Because the appellant had not been placed in jeopardy, the trial court's December 3, 1993 order could not have placed him in double jeopardy.

As to the appellant's assertion that the November 23, 1993 order was an acquittal, the ruling of the trial court did not represent a resolution of any of the factual elements of the offense charged. See Commonwealth v. MacArthur, 427 Pa.Super. 409, 629 A.2d 166 (1993). Hence, the order of November 23, 1993 was not an acquittal and reinstatement of the charge would not place him in double jeopardy. Therefore, we conclude that the appellant's second issue as presented is without merit. We now proceed to the appellant's first issue presented.

The appellant asserts that the trial court erred when it failed to require the Commonwealth to adhere to the citation filing procedure delineated in 75 Pa.C.S.A. § 3345(a.1) ⁴ of the Pennsylvania Motor Vehicle Code. The appellant argues that because the school bus driver observed the violation, had knowledge concerning the identity of the vehicle in question, and knew that the police also possessed the information and were acting upon it, she should have filed a written, signed report to be included with the citation. (Appellant's Brief at 7). We disagree.

In support of this proposition, the appellant cites Commonwealth v. Fulmer, supra, 423 Pa.Super. 338, 621 A.2d 146. There, Ms. Fulmer overtook a school bus while its...