Commonwealth v. HurstCommonwealth v. Hurst
- Reporters:
- , ,
- Before:
- Sole
Appellant was charged and found guilty by a district magistrate for Reckless Driving, a violation of
Appellant asserts on appeal that the trial court erred in refusing Appellant’s oral motion to dismiss inasmuch as the prosecuting state trooper was not acting within his scope of employment at the time the summary offense was commit
Preliminarily, we find it necessary to summarize the sequence of events leading to the instant appeals so that certain procedural improprieties committed at the trial court level may be illuminated. On October 22, 1986, Appellant was found guilty of Reckless Driving by the trial court judge. During the same proceeding, Appellant received his sentence and was notified by the deputy district attorney that he had 10 days in which “to appeal any post-trial motions.” (N.T., 10/22/86, 10). Appellant was not advised that an appeal to this Court must be filed within 30 days after sentencing. Thereafter, on November 3, 1986, Appellant filed a motion for a new trial. On the same day, a motion to modify the sentence was filed. In an order dated November 5, 1986, the trial court denied Appellant’s motion to modify. In response, Appellant filed his first appeal from the November 5, 1986 order. Later, on January 12, 1987, the trial judge denied Appellant’s motion for a new trial. Appellant then filed his second appeal to this Court on February 11, 1987.
Initially, we point out that the trial judge improperly pronounced verdict and sentence simultaneously. The proper procedure is to permit a defendant to file timely post-trial motions
after
the verdict is rendered, but
before
sentence is imposed.
Commonwealth v. Dalbon,
296 Pa. Super. 122, 124-125, 442 A.2d 326, 327 (1982).
See
Comment to
The next area of confusion appearing in the record is the fact that Appellant filed his first appeal from the November 5, 1986 order denying Appellant’s motion to modify the sentence. Section 742 of the Judicial Code vests
Moreover, even if we were to overlook this mislabelling and regard it as an appeal from the judgment of sentence, it appears to be untimely. Appellant was sentenced on October 22, 1986; the appeal under consideration was not filed until November 25, 1986, more than thirty days following sentencing. It is clear that an appeal must be filed within thirty days after entry of the order from which the appeal is taken. Since timeliness of appeal is jurisdictional, we may not enlarge the time for filing the notice of appeal as a matter of grace or indulgence. Commonwealth v. Smith, 348 Pa.Super. 10, 14-15, 501 A.2d 273, 275 (1985).
However, we recognize that a trial judge must advise a defendant on the record at the time of sentencing of the defendant’s right to file an appeal and the time within which that right must be exercised.
See
Next, we address the merits of Appellants’ arguments raised on appeal. First, Appellant alleges that the traffic citation issued by a Pennsylvania State Police trooper was invalid insofar as the prosecuting officer was not acting within the scope of his employment at the time Appellant committed the summary offense of Reckless Driving. The facts are as follows. On April 18, 1986, Trooper Charles A. Mory, Jr. was returning home from work on Route 1-83 when he observed Appellant’s tractor-trailer pass his car. Appellant then proceeded to tailgate another vehicle for approximately one or two-tenths of a mile. Appellant then attempted to pass the vehicle; as he did so, Appellant swerved into the vehicle’s lane, causing its driver to brake hard in order to avoid a collision. After assessing the situation, Trooper Mory waved Appellant off to the side of the highway. Appellant explained his erratic behavior by stating that he was tired of the manner in which the operator of the vehicle was driving. After obtaining the necessary data from Appellant, the police officer forwarded this information to the district justice, who later issued a summons by mail to Appellant.
Appellant argues that the prosecuting officer did not possess the authority to file a citation with the district justice since he was off-duty at the time the summary offense occurred. Appellant contends that Trooper Mory stood “in the shoes of a private citizen” and was without authority to issue a traffic citation. In support of this position, Appellant relies on
Our Supreme Court disagreed and found that the officer, despite being off-duty, was “acting as a police officer when he removed the package and turned it over to the police.” Further, it was held that the policeman’s conduct was totally inconsistent with the theory that he was merely a private citizen. Id. at 383 A.2d at 842. Thus, our Supreme Court refused to analyze the supression issues from the perspective that the search and seizure was performed by a private citizen. See People v. Martin, 225 Cal.App.2d 91, 36 Cal.Rptr. 924 (1964) (“police officers outside their jurisdiction, though technically private citizens, regarded as agents of the state on the basis of their conduct”). See also State v. Brothers, 4 Or.App. 253, 478 P.2d 442 (1970) (“off-duty police chief who came to home as ambulance operator, returned later that night to search, held a police officer at time of search”). Id. at 383 A.2d at 842.
We find from these facts that Trooper Mory was acting as a police officer, not as a private citizen, when he stopped Appellant’s tractor trailer. Despite Appellant’s position to the contrary, the fact that the officer was off-duty does not mean that the trooper’s power to conduct official police business automatically ceased. The circumstances attendant to Appellant’s delay clearly illustrate that the safeguards which attach to a driver being pulled over by an on-duty police officer were present at all times. Therefore, we disagree with Appellant’s contention that the issued citation was null.
Appellant cites Commonwealth v. Stahl, 296 Pa.Super. 507, 442 A.2d 1166 (1982) for the proposition that the arrest of a defendant by an off-duty police officer is invalid. However, we find that the conclusion reached by this Court in Stahl is factually inapplicable to the case at bar. In that case, we considered whether or not an arrest made by an “off-duty policeman as a citizen’s arrest” was valid. Id., 296 Pa.Superior Ct. at 513, 442 A.2d at 1169. The distinction between the two cases lies in the fact that Trooper Mory acted as a police officer, not as a private citizen, when he executed the citation. Parenthetically, we note that the Opinion in Stahl ws authored by one panel member with the remaining two judges concurring in the result. Under these circumstances, that Opinion is of no precedential value.
[a] citation (rather than a complaint) shall be filed with an issuing authority by a police officer when the offense charged is a violation of a traffic ordinance or is a summary offense under the Vehicle Code, when the police officer is not in uniform, or when it is not feasible for him to issue a citation to the defendant, or when evidence is discovered after the issuance of a citation which gives rise to additional summary charges against the defendant resulting from the same incident.
(Emphasis supplied).
Finally, Appellant urges that the trial court committed numerous instances of error in pronouncing sentence. For the following reasons, however, we need not address those particular arguments. The sentence imposed by the trial court was illegal; therefore, we must vacate the judgment of sentence and remand this case for resentencing. 2
The Commonwealth aptly points out that the trial court could not properly sentence Appellant to 30 days imprisonment under the applicable statutes. The summary offense of Reckless Driving is contained within the Vehicle Code. Section 6502(b) of the Code provides that “[ejvery person convicted of a summary offense for a violation of any of the provisions of this title for which another penalty is not provided shall be sentenced to pay a fine of $25.
Presently, a term of imprisonment is not permitted by
Accordingly, the judgment of sentence is vacated. Case remanded for resentencing. Jurisdiction is relinquished.
Notes
. In Commonwealth v. Picker, 293 Pa.Super. 381, 384, 439 A.2d 162, 163 (1981), we opined that the proper procedure for litigants to follow under these circumstances would be to file a motion to vacate the improperly imposed judgment of sentence in order to allow for the filing of post-verdict motions.
. We recognize that Appellant does not raise the legality of sentence issue by his appeals. However, illegality of sentence is not waivable and may be raised by this Court sua sponte. Commonwealth v. Roach, 307 Pa.Super. 506, 511 n. 2, 453 A.2d 1001, 1003, n. 2 (1982).