Com. v. Neitzel

• Decision Date: 21 May 1996
• Citation: 678 A.2d 369,451 Pa.Super. 1
• Parties: COMMONWEALTH of Pennsylvania v. Kevin NEITZEL, Appellant.
• Court: Pennsylvania Superior Court

Page 369

678 A.2d 369

451 Pa.Super. 1

COMMONWEALTH of Pennsylvania v. Kevin NEITZEL, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 8, 1996.

Filed May 21, 1996.

Matthew White, Philadelphia, for appellant.

Jonathan Levy, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Before CAVANAUGH, J., and CIRILLO and CERCONE, President Judges Emeritus.

CERCONE, President Judge Emeritus:

This is a direct appeal from the judgment of sentence ¹ entered following a trial de novo at which appellant was convicted of violating the Game and Wildlife Code. ² We affirm.

Appellant, Kevin Neitzel, was a taxidermist at the time of his arrest, with a business address at 4100 Robbins Avenue in the City of Philadelphia. On August 19, 1994, eleven armed officers from the Pennsylvania Game Commission and the United States Fish and Wildlife Service conducted a search of appellant's taxidermy shop at approximately 1:30 p.m., during appellant's regular business hours. See N.T. 3/8/95 at 14. The officers seized several items, including two frozen migratory game bird carcasses. The Commonwealth filed two Philadelphia Municipal Court citations on September 28, 1994 charging that appellant had not complied with game tag regulations promulgated under 34 Pa.C.S. § 2103, 16 U.S.C. §§ 703-712, and 50 C.F.R. §§ 20.26 and 20.37 with regard to his possession of a Merganser hen and a Wood Duck hen.

On November 17, 1994, appellant was found guilty as charged in Philadelphia Municipal Court. ³ Appellant was not represented by counsel at the Municipal Court hearing. See N.T. 3/8/95 at 4 (averment of defense counsel at appellant's trial de novo ). However, appellant engaged the services of an attorney and timely appealed for a trial de novo in the Court of Common Pleas. On March 7, 1995, counsel filed an omnibus pre-trial motion on appellant's behalf seeking suppression of evidence. The Honorable Jacqueline F. Allen denied the omnibus motion on March 8, 1995 and the matter proceeded to trial. After the Commonwealth rested, appellant demurred. Judge Allen granted the demurrer as to the charge of possessing improperly tagged migratory game birds belonging to another person, but found that the Commonwealth had sustained its burden of proof that appellant had possessed improperly tagged birds belonging to himself. Appellant then testified on his own behalf. Ultimately, Judge Allen found appellant guilty on two counts of violating section 2103 by possessing an improperly tagged Wood Duck hen and Merganser hen. The trial court imposed a fine of one hundred dollars ($100) for each improperly tagged bird. Appellant filed no consolidated post-trial motion. See Pa. R.Crim.P., Rule 1410(D), 42 Pa.C.S.A. (there shall be no post-sentence motion in summary case appeals following a trial de novo in the Court of Common Pleas).

Appellant filed a timely notice of appeal, and the trial court directed appellant to supply a concise statement pursuant to Rule of Appellate Procedure 1925. See Pa. R.A.P., Rule 1925(b), 42 Pa.C.S.A. Appellant complied, and explained that he was improperly convicted of a crime not charged. The trial court addressed this claim in an extensive opinion, filed July 20, 1995, and concluded that appellant's contentions were meritless. The instant timely appeal followed in which appellant raises two issues: (1) that the lower court erred in holding that appellant could be convicted of an offense for which he was never properly charged; and (2) that the trial court had no authority to amend, sua sponte, the charge against appellant at the time of trial to add a new charge not included on the original citation. ⁴

Appellant does not dispute the fact that the freezer at his taxidermy shop contained two migratory game birds which were not tagged in the manner required by the Code of Federal Regulations. ⁵ He explained at trial that he hunted the birds himself, and stored them in his home freezer until his wife objected. He then transferred the carcasses to his shop freezer. Appellant also stated that he knew about the game tag requirements for migratory game birds. N.T. 3/8/95 at 19-22. Thus, appellant admitted not only that the migratory game bird carcasses seized by the federal and state agents belonged to him, he also conceded that they were not properly tagged as he knew they should be. However, appellant does not contest the sufficiency of the evidence; rather he argues that he was convicted of a crime not charged in the citation with which the Commonwealth commenced the case against him. In his first issue, appellant contends that he was only charged with possessing two improperly tagged migratory game birds belonging to another person, an offense under section 20.37 of the Code of Federal Regulations. He therefore urges us to find that he did not receive proper notice that the Commonwealth intended to prove that he was guilty of possessing improperly tagged migratory game birds belonging to himself, an offense under section 20.36 of the Code of Federal Regulations.

The information to be included on a citation is specified by Rule of Criminal Procedure 53. At the time of the events underlying the instant appeal, that Rule provided as follows:

(a) Every citation shall contain: ...

(6) a citation of the specific section and subsection of the statute or ordinance allegedly violated, together with a summary of the facts sufficient to advise the defendant of the nature of the offense charged;....

Pa. R.Crim.P., Rule 53(a)(6), 42 Pa.C.S.A. (substantially modified by amendments adopted July 25, 1994, effective January 1, 1995). The former version of the Rule did not require the Commonwealth to recite all possible facts connected to the statutory sections listed in a particular citation. Rather, a citation was deemed to provide proper notice under the prior version of Rule 53 when the statutory cites and the facts recited provided actual notice to a defendant as to the nature of the crimes charged. Commonwealth v. Cohen, 413 Pa.Super. 460, 463-64, 605 A.2d 814, 815-16 (1992).

The first citation filed in the instant case accused appellant of committing the following acts:

[Violating] 34 PA C.S. SECTION 2103, REF 16 USC 703-712, AND 50 CFR 2036 & 2037. DEFENDANT WAS IN CUSTODY UNLAWFULLY, OF MIGRATORY GAME BIRD (HEN, WOODDUCK), BELONGING TO ANOTHER, WITHOUT REQUIRED TAGS OR INFORMATION, PURSUANT TO 16 USC 703-712 AND 50 CFR 2036 AND 2037.

Philadelphia Municipal Court Citation, Complaint No. 70231. (The second citation lodged against appellant used virtually identical language, but charged that appellant violated section 2103 with regard to the carcass of a Merganser hen rather than a Wood Duck.) It is apparent on the face of the citations that the Commonwealth accused appellant of violating section 2103 of the Game and Wildlife Code, with reference to certain specifically identified federal laws and regulatory provisions.

The citation charges that appellant violated section 2103 of the Game and Wildlife Code. That statutory section contains the following language:

(a) General rule.--The provisions of the Federal Migratory Bird Treaty Act (16 U.S.C. § 703 et seq.) or Federal Duck Stamp Act (16 U.S.C. § 718 et seq.) are hereby made a part of this title. Federal regulations shall not apply if commission regulations or other provisions of this title prescribe stronger or more detailed restrictions for the taking of migratory birds, nongame birds or game or wildlife.

34 Pa.C.S.A. § 2103(a) (emphasis in original). In order to understand the meaning of section 2103, it is obviously necessary to consult the provisions of the United States Code. In this case, the relevant statute is section 703 of the Migratory Bird Treaty Act:

Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured which consists, or is composed in whole or in part, of any such bird or any part, nest, or egg thereof, included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds concluded August 16, 1916 (39 Stat. 1702), the United States and the United Mexican States for the protection of migratory birds and game mammals concluded February 7, 1936, the United States and the Government of Japan for the protection of migratory birds and birds in danger of extinction, and their environment concluded March 4, 1972 and the convention between the United States and the Union of Soviet Socialist Republics for the conservation of migratory birds and their environments concluded November 19, 1976.

16 U.S.C. § 703 (emphasis added). The pertinent "regulations" referenced by section 703 concerning "possession" of migratory game birds (and/or game bird parts) have been set forth in the Code of Federal Regulations as follows:

No person shall put or leave any migratory game birds at any place (other than at his personal abode), or in the custody of another person for picking, cleaning, processing, shipping, transportation, or storage (including temporary storage), or for the purpose of having taxidermy services performed, unless such birds have a tag attached, signed by the hunter, stating his address, the total number and species of birds, and the date such birds were killed. Migratory game birds being transported in any vehicle as the personal baggage of the possessor shall not be considered as...