Com. of PA v. R.A. PrentissCom. of PA v. R.A. Prentiss
BY SENIOR JUDGE LEAVITT FILED: May 3, 2024
Richard A. Prentiss appeals two orders of the Court of Common Pleas of Clearfield County (trial court) convicting him of summary offenses under the Game and Wildlife Code (Game Code).1 The first order convicted Prentiss of “shooting on or across highways” in violation of Section 2504(a) of the Game Code,
Background
The Keystone Elk County Alliance is a non-profit organization that preserves elk in Clearfield and Elk Counties. To raise funds, the Alliance conducts an annual raffle, with the approval of the Pennsylvania Game Commission, for the issuance of an early hunting license authorizing the kill of a single elk. In 2019, Prentiss won the raffle, which also entitled him to professional guide services. Kim Rensel and Gary Couteret, who are affiliated with Elk County Outfitters, volunteered to provide these services to Prentiss for a period of seven days, beginning on September 11, 2019.
On the third day of hunting, September 13, 2019, Rensel “was guiding Prentiss at different hunting locations.” Trial Court Op. at 1. Ben Gnan accompanied them to film the hunt for potential use in a documentary.
On March 10, 2020, Prentiss, Rensel, and Couteret were each separately cited by the Game Commission for their actions on September 13, 2019. Prentiss was cited for shooting on or across a highway in violation of
Prentiss appealed, and the trial court conducted a de novo trial on September 28, 2020. At the outset of the trial, Prentiss’ counsel moved to dismiss Prentiss’ charge for violating
The Commonwealth presented the testimony of Gnan, the cameraman. He testified that the plan for September 13, 2019, was for the party to “drive to a specific location, get out and hunt at that location[.]” N.T. 14; R.R. 11. They went first to a place called “Hoover plot” and because they did not “see anything there[,]” they decided to move to the Kolovoski property, where “[they] had been the prior two days[.]” N.T. 14; R.R. 11. Prentiss killed the bull elk on the Hoffman property, which is “[a]cross the road” from the Kolovoski property. N.T. 17; R.R. 12. Gnan filmed the conversation between the trucks of Couteret and Rensel while in the road and the shooting of the bull elk, and the Commonwealth played Gnan‘s video at the trial. Gnan testified that the group‘s conduct that day did not constitute road hunting.
The Commonwealth also presented testimony of Mark Gritzer, a game warden for the Game Commission, who offered his interpretation of Gnan‘s video.
He noted that Couteret told Rensel and Prentiss, while they were in their separate vehicles, that there was a bull elk “in the woods” located “around the corner.” N.T. 24; R.R. 13. According to Gritzer, Rensel and Prentiss responded by parking the vehicle to “get out to pursue that animal.” N.T. 24; R.R. 13. Gritzer estimated the distance from Rensel‘s vehicle to the intersection of Oak Hill Road and Hoffman Road to be 52 yards. Gritzer noted, further, that as they crossed the road, Rensel told Prentiss that
On cross-examination, Gritzer acknowledged that the area where the shooting took place was known as a traditional breeding ground that “attracts a lot of big bulls coming to that area to participate in the breeding situation.” N.T. 32; R.R. 15. Gritzer also acknowledged that he arrived at the scene within minutes after the elk was killed and did not see “anything wrong.” N.T. 31; R.R. 15. He initiated his investigation only after receiving a copy of Gnan‘s video several months later.
Rensel testified. He explained that he and Prentiss “pre-planned each location where [they] were going to go and look for the elk.” N.T. 47; R.R. 19. On September 11, 2019, they went to the Kolovoski property where they saw the bull elk that was shot two days later. They did not shoot the elk on the first day because “the wind was wrong” and the elk “did not present himself for a shot.” N.T. 46; R.R. 19. On September 12, 2019, they went back to the same area and saw elk traveling towards the “large field on the Kolovoski property.” N.T. 47; R.R. 19. On September 13, 2019, Rensel and Prentiss first went to the Hoover property where they saw two smaller bull elk, which they chose not to take. Instead, they continued hunting.
Rensel testified as follows:
[Counsel:] . . . And did you then go to another site?
[Rensel:] Yes. It was about eight miles away, was the Kolovoski property.
[Counsel:] Okay.
[Rensel:] And knowing that [the elks] were traveling toward the large field the night before, not knowing if the big bull was there, we parked alongside that road and were going to access it from the far end, come up towards that field through that little access road.
[Counsel:] That second location you went to, was that pre-planned/pre-determined?
[Rensel:] Yes.
. . . .
[Counsel:] So tell the Court what happened as you were going up to that location.
[Rensel:] We came across Oak Hill Church Road coming from Quehanna Highway. We come to a T on Hoffman Road, I believe that it is there, made a left. And at that point Mr. Couteret came up and said he had heard elk. I pulled over, as I was going to anyway.
. . . .
[Counsel:] Had you expected to see Mr. Couteret at that point at that location?
[Rensel:] Sometimes we have – he knew I was going there, and he showed up knowing that I was going to be there. That‘s all.
[Counsel:] But there was no preplanning that he was going to meet you?
[Rensel:] No, no. We went there knowing we were going to the Kolovoski property.
[Counsel:] Did you park where you intended to park?
[Rensel:] Yes.
N.T. 48-49; R.R. 19-20 (emphasis added). Rensel stated that he did not see any elk while in his vehicle or hear any “bugling.” N.T. 56-57; R.R. 21-22. Rensel explained that because Prentiss had “physical limitations” and “walked with a cane[,]” they were “limited to how far he can go and how fast he can go.” N.T. 50; R.R. 20.
Prentiss testified on his behalf. He explained that Elk County Outfitters picked places to hunt where he “can get out and just get into wherever [they are] going to hunt because [he] can‘t walk up the mountains and down the other side like they do with the normal hunt.” N.T. 60; R.R. 22. The plan for September 13, 2019, was to “try another spot” before going back to the “original property [they] hunted on the past two days,” i.e., the Kolovoski property. N.T. 61; R.R. 23. Prentiss testified that they went back to the Kolovoski property because he “liked the size of the bull that [he had] seen the first day when [they] were there” and believed it might “be hanging out” there. N.T. 68; R.R. 24. With respect to the shooting in question, Prentiss testified that he did not load his rifle until he “stepped on to the other side” of the road where they had parked. N.T. 63; R.R. 23.
Trial Court Decision
By order of December 7, 2020, the trial court found Prentiss guilty of the charges under
In its opinion, the trial court rejected Prentiss’ argument that the citation for violation of
The trial court next considered the charge for violation of
Prentiss appealed to this Court.
Appeal
On appeal,3 Prentiss raises three issues for our consideration, which we combine into two for clarity. First, Prentiss
Section 2307(a) of the Game Code
Under the Pennsylvania Rules of Criminal Procedure, a citation for violation of the Game Code must provide notice of the offense. See
The Commonwealth responds that its citation was adequate because it recited the date, approximate time, and location of the bull elk incident. In any case, the Commonwealth contends that Prentiss did not suffer “actual prejudice,” which is required for a summary citation to be dismissed for defects therein. Commonwealth Brief at 6 (citing Borough of Walnutport v. Dennis, 114 A.3d 11, 21 (Pa. Cmwlth. 2015)).
Article I, Section 9 of the Pennsylvania Constitution provides, “[i]n all criminal prosecutions the accused hath a right . . . to demand the nature and cause of the accusation against him[.]”
(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[.]
“[T]he 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. Nicely, 988 A.2d 799, 806 (Pa. Cmwlth. 2010) (quoting Commonwealth v. Borriello, 696 A.2d 1215, 1217 (Pa. Cmwlth. 1997)). Stated otherwise, a “defendant should not have to guess which charges have been placed against him. If charges in an indictment are not clear and explicit a defendant cannot properly defend against them.” Borough of Walnutport, 114 A.3d at 20 (quoting Commonwealth v. Wolfe, 289 A.2d 153, 155 (Pa. Super. 1972)).
A defect in a criminal citation is not necessarily fatal to the Commonwealth‘s prosecution. The Pennsylvania Rules of Criminal Procedure provide as follows:
A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the procedures of these rules,
unless the defendant raises the defect before the conclusion of the trial in a summary case or before the conclusion of the preliminary hearing in a court case, and the defect is prejudicial to the rights of the defendant.
In Redovan, 227 A.3d 453, the defendant was charged with hunting over bait, in violation of
On appeal, we reversed the conviction. We held, inter alia, that the citation did not conform to
whether the illegal conduct was for the use of salt or corn as bait. The game warden had indicated to the defendant that he would be cited for using salt as bait. Redovan, 227 A.3d at 457. However, he was convicted of using corn.
In Commonwealth v. Halstead, 79 A.3d 1240 (Pa. Cmwlth. 2013), this Court considered a challenge to a citation for defective windows and other structures in violation of a property maintenance ordinance. We held that the citation provided adequate notice for the windows but not for other structures, such as deteriorated roof joists, because they were not specified in the citation. We reversed the conviction.
By contrast, in Borough of Walnutport, 114 A.3d 11, this Court affirmed the conviction for nonpayment of garbage removal service invoices in violation of the municipal solid waste ordinance. The property owner challenged the citation as defective because it did not identify the date of the offense; whether he resided at the property; or whether he used the garbage removal service. We rejected this challenge. The citation stated that “the defendant failed to pay the garbage bill for the garbage removal services provided to the property[,]” and the ordinance did not require residency or actual use of the service.5 Id. at 21
the fees owed on the door of the property. Lest there be any doubt, the owner stipulated that he did not pay the invoices in question.
(a) General rule.--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.
Here, the Game Commission‘s citation was based, presumably, upon Prentiss’ taking or possession of game “contrary to the provisions of this title.”
The Game Commission used a standard citation form with a number of boxes to be filled out. On the
Charge[:] Unlawful Taking or Possession of Game or Wildlife
Nature of Offense[:] The defendant did unlawfully, 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 hunt for, take, kill, transport, possess or use game or wildlife contrary to the title. To wit: bull elk.
R.R. 4 (emphasis added). Other boxes on the citation form were filled out as follows:
Date of Offense[:] 09/13/2019
Location of Offense[:] Intersection of Oak Hill Road & Paul Hoffman Road
Time[:] (Approx) 0724
County[:] Clearfield
City-Twp-Boro[:] Karthaus
34 Pa. C.S. Sec. 2307 Sub. Sec. (a)
Confidential Information Section[:] . . . . Commonwealth requesting replacement cost for resource as per 34 Pa. C.S. Section 925(1) and 58 Pa. Code Section 131.8 - $5,000[.] Evidence seizure tag #48527-antlers/meat & evidence seizure tag # 83529-(2) video flash drives depicting hunt subject guided by Elk County Outfitters guide Kim Rensel & Gary Couteret
R.R. 4.
The citation summarized the text of
The Commonwealth argues that Prentiss did not suffer prejudice. If Prentiss did not understand the
Actual prejudice is found where the content of the citation does not notify the defendant “as to the nature of the summary offense” or where the defect or omission involves “the basic elements of the offense charged.” Borough of Walnutport, 114 A.3d at 21. This is what occurred here. The citation for the
We conclude, and hold, that as in Redovan, 227 A.3d 453, the citation for violation of
Section 2504(a) of the Game Code
Prentiss argues, next, that the trial court erred by convicting him of “road hunting” under
The Commonwealth concedes that Payne involved a hunter shooting a wild animal less than 25 yards from the road but argues that Payne is distinguishable. There, approximately 45 minutes transpired between the defendant‘s exit from the vehicle and his shot at the deer. Here, Prentiss and Rensel “immediately pull[ed] over” after receiving information from Couteret that game was in the area, and Prentiss took his first shot at the elk approximately two minutes after leaving the vehicle. Commonwealth Brief at 16.
We start with a review of
(a) General rule.--
It is unlawful for any person to shoot at any game or wildlife while it is on a public highway or on a highway open to use or used by the public or to shoot across a public highway or a highway or roadway open to use or used by the public unless the line of fire is high enough above the elevation of the highway to preclude any danger to the users of the highway. It shall be unlawful for any person, after alighting from a motor vehicle being driven on or stopped on or along a public highway or road open to public travel, to shoot at any wild bird or wild animal while the person doing the shooting is within 25 yards of the traveled portion of the public highway or road open to public travel. (b) Penalty.--A violation of this section is a summary offense of the fourth degree.
In Payne, the defendant parked his vehicle along a public road, walked 75 feet, and took up a position 18 feet from the edge of the road. From that position, he shot a deer “about 35 feet ‘into the woods.‘” Payne, 995 A.2d at 1240 (citation omitted). Forty-five minutes elapsed between the parking of the hunter‘s vehicle and his shot. The defendant appealed his conviction to the Superior Court, arguing that
The Superior Court sustained the appeal, holding that the trial court erred in its interpretation of
In interpreting the second sentence of section 2504, we must conclude that the General Assembly intended to alleviate the same concerns, i.e., shooting on or across highways in a manner that poses a danger to users of the highway. The plain language of the second sentence of section 2504(a) indicates an intent by the General Assembly to preclude the practice of road hunting, i.e., the situation in which a hunter or hunters who are driving or riding in a vehicle on a public highway spot wildlife or game, alight from the vehicle, and shoot at the game when the hunter is “within 25 yards of the traveled portion of the public highway . . . .”
34 Pa. C.S.[] §2504(a) . Although the General Assembly did not use language setting forth a time limit on the word “alighting,” the clear tenor of the language was to prohibit road hunting, which, as described, is a reckless practice that may endanger users of the highway. A hunter who quickly emerges from a vehicle, and scrambles to shoot at game observed from the highway, while within 25 yards of the highway, engages in dangerous behavior to other users of the highway.
Payne, 995 A.2d at 1241-42 (emphasis added). Because the defendant “shot the deer while it was on the same side of the road as where [he] was standing,” the defendant did not shoot over the highway. Id. at 1242. Further, the defendant‘s conduct “did not constitute road hunting, and did not endanger any user of the highway, as section 2504 requires.” Id.
Prentiss argues that Payne established that to violate
The Superior Court construed
Using the Superior Court‘s construction of
to shoot at game observed from the highway, while within 25 yards of the highway[.]” Payne, 995 A.2d at 1241-42. While preventing danger to “users of the highway” may be one object to be attained,
Prentiss argues that the rule of lenity requires that this Court set aside the conviction. He contends that
[a]mbiguities should and will be construed against the government. This principle has its foundation in the rule of lenity that provides that any ambiguity in a criminal statute will be construed in favor of the defendant. The rule of lenity requires a clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the penalties would be.
McGrath v. Bureau of Professional and Occupational Affairs, State Board of Nursing, 146 A.3d 310, 316 (Pa. Cmwlth. 2016) (quoting Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d 596, 600 (Pa. Cmwlth. 2011) (emphasis in original and added)).
In Commonwealth v. Rosario, 294 A.3d 338 (Pa. 2023), our Supreme Court applied both statutory construction principles and the rule of lenity to hold that a defendant may not be penalized for violation of a probation sentence he has not begun to serve. In reaching this conclusion, the Supreme Court acknowledged that the rule of lenity has limits. It does not require “that the words of a penal statute be given their narrowest possible meaning or that legislative intent be disregarded.” Id. at 350 (quoting Commonwealth v. Nevels, 235 A.3d 1101, 1105 (Pa. 2020)). Courts must first use the tools of statutory construction when considering the meaning of a penal provision. The rule of lenity applies only “at the end of the process of construing what [the legislature] has expressed, [if] there is grievous ambiguity or uncertainty in the statute.” Rosario, 294 A.3d at 350 (quoting Shaw v. United States, 580 U.S. 63, 71 (2016)).
We conclude that after using applicable principles of statutory construction, we are not left with a “grievous ambiguity or uncertainty.” Rosario, 294 A.3d at 350. The phrase “alighting from a motor vehicle” adds little to the prohibition against shooting “within 25 yards of the traveled portion of the public highway or road open to public travel.”
We hold that
Conclusion
For the above-stated reasons, we reverse the trial court‘s order on the violation of
MARY HANNAH LEAVITT, President Judge Emerita
AND NOW, this 3rd day of May, 2024, the order of the Court of Common Pleas of Clearfield County in the above-captioned matter, dated December 7, 2020, convicting Richard A. Prentiss of violating
Jurisdiction relinquished.
MARY HANNAH LEAVITT, President Judge Emerita
Notes
(a) General rule.--Except as otherwise provided in this title, it is unlawful for any person to hunt or aid, abet, assist or conspire to hunt any game or wildlife through the use of:
. . . .
(8) Any 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. Nothing contained in this subsection shall pertain to normal or accepted farming, habitat management practices, oil and gas drilling, mining, forest management activities or other legitimate commercial or industrial practices. Upon discovery of such baited areas, whether prosecution is contemplated or not, the commission 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.
Borough of Walnutport, 114 A.3d at 21 (quoting Walnutport Borough Solid Waste Ordinance, Ordinance No. 2011-05, Section 16, enacted May 12, 2011) (emphasis added).The legal and/or equitable owner(s) of the real estate containing a residential establishment shall be responsible to pay, and shall pay, the fees, fines and penalties as may be imposed pursuant to the provisions of this article. A residential establishment is exempt from this section only if it is an unoccupied dwelling unit as defined pursuant to this article.
(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.