Commonwealth v. Redovan

• Decision Date: 18 February 2020
• Docket Number: No. 1416 C.D. 2017,1416 C.D. 2017
• Citation: 227 A.3d 453
• Parties: COMMONWEALTH of Pennsylvania v. Joshua T. REDOVAN, Appellant
• Court: Pennsylvania Commonwealth Court

227 A.3d 453

COMMONWEALTH of Pennsylvania

v.Joshua T. REDOVAN, Appellant

No. 1416 C.D. 2017

Commonwealth Court of Pennsylvania.

Argued: October 2, 2019

Filed: February 18, 2020

Mark D. Bolkovac, Greensburg, for Appellant.

Peter M. Caravello, Asst. District Attorney, Greensburg, for Appellee.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE McCULLOUGH

Joshua T. Redovan appeals from the March 30, 2017 order of the Court of Common Pleas of Westmoreland County (trial court), finding him guilty of the summary offense of hunting over bait in violation of section 2308(a)(8) of the Game and Wildlife Code (Code), 34 Pa.C.S. § 2308(a)(8).¹

Background

In August 2016, Redovan placed corn bait and a salt block close to a tree stand, located in Westmoreland County, where he intended to archery hunt. (Reproduced Record (R.R.) at 100a-101a.) On August 16, 2016, Redovan removed the corn and salt, including all visible residue, in order to comply with section 2308(a)(8) of the Code, which permits baiting as long as it is removed at least 30 days before an area is hunted. Id. The first day of archery season in that area was September 17, 2016, and Redovan intended to hunt the first day of the season. (R.R. at 97a-98a, 101a.)

Thereafter, on August 25, 2016, Redovan noticed a large pile of corn and a game camera approximately 70 yards from his tree stand. (R.R. at 98a-99a.) Neither the large pile of corn nor the camera had been placed by Redovan . Id. Upon finding the corn, Redovan contacted the Pennsylvania Game Commission (Game Commission) to report what he believed was illegal baiting by another hunter. (R.R. at 53a, 98a-100a, 108a.) Redovan then removed the other hunter's corn from the area. (R.R. at 67a, 110a.)

On August 29, 2016, Game Commission Officer Michael Papinchak (Officer Papinchak) called Redovan to obtain information regarding the evidence of baiting that Redovan had discovered. (R.R. at 54a, 67a-68a, 86a.) The next day, Officer Papinchak visited the area described by Redovan and found remnants of corn on the ground. (R.R. at 54a.) Officer Papinchak decided to conduct a thorough investigation of the area and observed evidence of recent deer activity. (R.R. at 55a-56a.) Specifically, Officer Papinchak noticed a significant number of deer tracks, which indicated the area was heavily trafficked by deer. Id. Officer Papinchak also found a stone that he believed had been used as a pedestal for a salt block. (R.R. at 56a, 65a.) Although Officer Papinchak was unable to observe any salt residue by the naked eye, he tasted a soil sample and determined that there was salt in the soil. (R.R. at 71a, 73a.) Officer Papinchak did not call Redovan to inform him that there was still salt residue in the soil and also did not post the area to advise hunters it was closed for hunting. (R.R. at 73a, 102a.)

On opening day, September 17, 2016, Officer Papinchak returned to the area near the tree stand and witnessed Redovan hunting from his tree stand. (R.R. at 61a, 70a, 72a.) Officer Papinchak informed Redovan he would be citing Redovan for hunting in a baited area and, specifically, for hunting over the area of the salt residue . (R.R. at 71a-74a.) Officer Papinchak also collected soil samples that day and sent them to an independent laboratory for testing, which confirmed a high level of sodium in the soil. (R.R. at 63a-64a, 91a-93a.)

On September 30, 2016, Officer Papinchak issued a citation to Redovan for hunting over bait in violation of section 2308(a)(8) of the Code. The citation described the nature of Redovan's offense as follows:

THE DEFENDANT DID UNLAWFULLY HUNT THROUGH THE USE OF ANY ARTIFICIAL OR NATURAL BAIT, SALT, CHEMICAL, MINERAL OR OTHER FOOD AS AN ENTICEMENT FOR GAME OR WILDLIFE, REGARDLESS OF KIND AND QUANTITY, OR TAKE ADVANTAGE OF ANY SUCH AREA OR FOOD OR BAIT PRIOR TO 30 DAYS AFTER THE REMOVAL OF SUCH MATERIAL AND ITS RESIDUE.

(R.R. at 9a.) On December 14, 2016, a magisterial district judge found Redovan guilty of hunting over bait under section 2308(a)(8) of the Code.

Redovan filed a summary appeal with the trial court, which held a de novo hearing on March 30, 2017. Both Redovan and Officer Papinchak testified at the hearing. The Commonwealth also presented the testimony of Verdean Keyser, the chemist who tested the soil samples collected by Officer Papinchak. The Commonwealth's case-in-chief focused on attempting to prove that Redovan violated section 2308(a)(8) of the Code by hunting in the area of the salt residue.

Following the hearing, the trial court found Redovan guilty under section 2308(a)(8) of the Code. In its subsequent Pa.R.A.P. 1925(a) opinion, the trial court explained its decision as follows:

I found as fact that [Redovan] was apprehended by [Officer] Popincak [sic] while hunting within 70 yards of an area which he, [Redovan], knew had been baited less than 30 days prior to the date he was hunting. The record shows that [Redovan] himself had reported baiting with corn on August 26, 2016, and met with the game officer on that date. Thereafter, on September 17, 2016, he located and utilized a tree stand to harvest deer. [Redovan] argued that the corn baiting was not his, but that any baiting he did in the area was with salt. However, the gravamen of the offense is not necessarily whose bait is present within 30 days, but more importantly the act of hunting within 30 days of a presence of baiting.

The facts were not in serious dispute and I ruled that they established [Redovan's] guilt beyond a reasonable doubt.

On May 25, 2017, Redovan filed a motion for reconsideration, which the trial court denied. On June 19, 2017, Redovan filed an uncontested petition seeking the reinstatement of his appellate rights nunc pro tunc , which the trial court granted that same day. This appeal followed.

Discussion

On appeal,² Redovan argues that (1) the trial court erred in finding him guilty of section 2308(a)(8) of the Code based on information not involved in his citation; (2) the evidence presented at trial was insufficient to sustain a conviction under section 2308(a)(8) of the Code; and (3) section 2308(a)(8) of the Code is unconstitutionally vague, as applied, because it yields a result that is absurd, impossible of execution, or unreasonable.

We first address whether the trial court erred in finding Redovan guilty based on information not relating to his citation. Redovan argues that even though he was cited for a violation stemming from salt residue under his tree stand, he was found guilty for a violation involving the corn that he discovered and about which he notified the Game Commission. Redovan contends that Officer Papinchak cited him for salt residue, rather than corn, and that the Commonwealth's case at trial was only based on proving a violation involving the salt residue. Redovan also maintains that although section 2308(a)(8) provides that, upon discovery of a baited area, the Game Commission may post a reasonable area around the baited area to advise hunters that it is unavailable for hunting, the Game Commission did not do so here. Conversely, the Game Commission argues that the citation provided Redovan sufficient notice that the presence of corn in his hunting area could serve as the basis of his guilt under section 2308(a)(8).

Section 2308(a)(8) of the Code provides, in pertinent part, as follows:

[I]t is unlawful for any person to hunt or aid, abet, assist or conspire to hunt any game or wildlife through the use of ... [a]ny artificial or natural bait, hay, grain, fruit, nut, salt, chemical, mineral or other food as an enticement for game or wildlife, regardless of kind and quantity, or take advantage of any such area or food or bait prior to 30 days after the removal of such material and its residue.... Upon discovery of such baited areas, whether prosecution is contemplated or not, the [C]ommission may cause a reasonable area surrounding the enticement to be posted against hunting or taking game or wildlife. The posters shall remain for 30 days after complete removal of the bait.

34 Pa.C.S. § 2308(a)(8).

We conclude that Redovan's conviction was based on information not properly before the trial court nor listed in the citation. The citation closely mimics section 2308(a)(8), stating that Redovan "unlawfully hunt[ed] through the use of any artificial or natural bait, salt, chemical, mineral or other food as an enticement for game or wildlife ... or [took] advantage of any such area or food or bait prior to 30 days after the removal of such materials and its residue." (R.R. at 9a) (emphasis omitted). However, the citation itself must be viewed in the context of what occurred during both Officer Papinchak's apprehension of Redovan and at trial, as it relates to the citation notice requirements under Pennsylvania law.

Pursuant to Rule 403(A)(6) of the Pennsylvania Rules of Criminal Procedure, "[e]very citation shall contain ... 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. 403(A)(6) (emphasis added). Further, "it is well-established that the essential elements of a summary offense must be set forth in the citation so that the defendant has fair notice of the nature of the unlawful act for which he is charged." Commonwealth v. Borriello , 696 A.2d 1215, 1217 (Pa. Cmwlth. 1997). Thus, "the content of each citation, taken as a whole," must "prevent[ ] surprise as to the nature of the summary offense of which the defendant [is] found guilty at trial." Id. "[A] defendant should not have to guess which charges have been placed against him," because, where charges "are not clear and explicit[,] a...