93 Pa. Commw. 120 | Pa. Commw. Ct. | 1985
Lead Opinion
Opinion by
’’ ‘ Felix Steve Milewski) Appellant, appeals here from a judgment of sentence of the Court of Common-Pleas'of Erie County. That judgment of sentence was imposed following his conviction- for violating the minimum size gill net regulations promulgated by the Pennsylvania Fish Commission (Commission) under authority of Section 2903(e) of the •Fish arid Boat Code, 30 Pa. C. S. §2903(e). We affirm.
The record establishes, the following facts which are" pertinent. Appellant is a commercial fisherman who works the waters óf Lake Erie. -On November 5, .1981, two Deputy. Waterway' Patrolmen boarded .Appellant’s boat.to check his fish catch and nets. The patrolmen proceeded to check the mesh size.of Appellant’s gill nets to ensure their compliance with'the Commission’s regulations. A “gill net” is a flat net which is suspended vertically in the water with meshes that allow the .head of a fish to pass but entangle its gill-covers as it seeks to withdraw. Webster ’s Third International .Dictionary 957 (1976). By regulation, ..58/Pa. Code §63.3(a), the Commission established a minimum mesh size of two and one-half inches for ..gill. nets. According .to the patrolmen’s measure.menbs, -the mesh size- of Appellant’s nets was, less ..than the, minimum two and one-half inches. As a result of that, measurement, Appellant was cited for being in violation of 58 Pa. Code §63.3(a) and his catch and nets were seized by the Commission. On November-8, 1981, patrolmen boarded Appellant’s boat but were’ unable to ■ measure his ■ nets. as ' Appellant had picked the nets and already reset them. The patrolmen confiscated the catch on the assumption that they wéré- caught with undersized nets. 'The following day,
In this appeal, Appellant raises three major assignment's of error, which are (1) whether there was sufficient evidence that his riets were-undersized5 "so as to sustain the convictions; (2) whether he was erroneously tried, convicted and sentenced under the wrong statutory section for a third-degree misdemeanor rather than a summary offerise; arid (3) whether the statutory and regulatory framework under which he was prosecuted is unconstitutional for vagueness. -We shall address these issues Seriatim. -
The initial prong of Appellant’s challenge tó the sufficiency of the evidence is that the Commonwealth failed to prove that the flexible rules uséd by the Commission . patrolmen' to measure the mesh-size of his gill "nets were approved -by the United States- National Bureau of Standards. It is Appellants contention that proof of such approval is a necessary element of proving a violation ■ of -58 Pa. Code- §63.3 (.a).-:‘We disagree. -
§63.3. Use of Gill Nets.
(a) Size. It is unlawful to set, fish or possess any gill net with a mesh size of between 3 1/16 of an inch and 4 1/2 inches as measured over a flexible rule. The minimum mesh size for gill nets is 2 1/2 inches. . . . All mesh or meshes in gill nets used in fishing shall be measured over a flexible rule approved by the United States National Bureau ■of Standards. (Emphasis added.)
We also acknowledge that this regulation is penal in nature, and is, as is the case with the penal sections of the Fish and Boat Code, to be strictly construed. Section 1928(b) of the Statutory Construction Act of 1972, 1 Pa. C. S. §1928(b); see also Commonwealth v. Scott, 76 Pa. D. & C. 115 (C.P. Somerset 1951) (Section 54 of the Fish Law of 1925 (repealed), formerly 30 P.S. §54, which prohibited possession of certain nets without a permit, is a penal statute and must be strictly construed). The canon of strict construction, however, does not require that the words of a penal statute be given their narrowest meaning or that the lawmaker’s evident intent be disregarded. Commonwealth v. Duncan, 456 Pa. 495, 321 A.2d 917 (1974).
At -flial, the Commonwealth presented evidence that the Commission interpreted the regulation as requiring that the measures used by its patrolmen be traceable to one approved by the National Bureau of Standards rather than each flexible rule being individually approved by the Bureau. This was the standard practice of the Commission and this regulation, 58 Pa. Code §63.3(a), has since, been amended
The second prong of Appellant’s attack on the sufficiéncy of the evidence to support his conviction is that the evidence does not show beyond a reasonable doubt that the patrolmen who measured the mesh size of his nets did so properly as envisioned by the regulation. The gravamen of this contention is that the "patrolmen erroneously required the flexible rule to remain rigid in order for the nets to pass inspection while'he argués the term “flexible” as used in the regulation indicates that the rule may be bent or flexed when measuring the nets. This argument, too, must be rejected.
When reviewing a challenge to the sufficiency of the evidence to support a conviction, an appellate court must review the entire record and all evidence must" be read in a light most favorable to the Commonwealth which is entitled to all reasonable inferences therefrom. Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983). The testimony presented by the water patrolmeii established that the standard procedure for" measuring the mesh size of nets was to place the rule in the square of the mesh, diagonally from one corner to the opposite corner. If the rule could pass diagonally through a square perfectly straight, the net did not violate the minimum mesh size regulation. We also note that this practice comporté" with the -requirements of former 30 P.S. §93
Appellant’s next contention is that he was charged and prosecuted under the wrong statutory section which classified his alleged violation as a third-degree misdemeanor rather than as a summary offense. He argues that the Commission improperly promulgated 58 Pa. Code §63.3(a) under 30 Pa. C. S. §2903(e), which authorizes the Commission to promulgate rules and regulations applicable to boundary lakes, whereas the Commission should have properly based the regulation upon 30 Pa. C. S. §2102 (d), which authorizes the Commission to promulgate rules and regulations pertaining to the minimum mesh size of nets. While a violation of a regulation promulgated under Section 2903(e) is a third-degree misdemeanor, a violation of a regulation promulgated under Section 2102 (d) is classed only as a first-degree summary offense. Appellant further argues that since Section 2102(d) is more specific than is Section 2903(e), the former should govern and his alleged violation of 58 Pa. Code §63.3(a) should be classed as a first-degree summary offense. We duly note, however, that Section 2102(d) is contained in the general provisions section of the Fish and Boat Code while Section 2903(e) is found in the chapter dealing specifically with special licenses and permits and this section itself deals specifically with boat and net licenses for boundary lakes. There is no question that Lake Brie falls within the defini
Our review of the record compels us to agree with the common pleas court that Appellant has waived this argument by failing to present it in éither the pre-trial proceedings or during trial. Pa. R. Crim. P. 1123(a) provides, in pertinent part, as follows:
Buie 1123. Post-Verdict Motions
(a) Within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may he considered which were raised in pre-trial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. . . . (Emphasis added.)
Under Rule 1123(a), where an issue is raised for the first time* in post-verdict motions, it is not properly preserved for appellate review and therefore waived. Commonwealth v. Jones, 478 Pa. 172, 178, 386 A.2d 495, 497-498 (1978); Commonwealth v. Cooley, 465 Pa. 35, 40 n. 5, 348 A.2d 103, 106 n. 5 (1975).
Our research has discerned two major exceptions to- this doctrine. The first is where the issue concerns the subject matter jurisdiction. Our appellate courts have repeatedly held that subject matter jurisdiction is hot a waivable issue since it goes directly to the power of the court to act and it can be raised at' any stage in the proceedings. Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974); Commonwealth v. Thomas, 305 Pa. Superior Ct. 158, 451 A.2d 470 (1982). Appellant’s complaint here does not attack the subject matter jurisdiction of the common •pleas court and this exception to the waiver doctrine is not applicable.
We now turn to Appellant’s final contention which is that his due process rights were violated by the manner in which he was prosecuted. The first prong of this contention is that the Commission’s regulations under which he was prosecuted are unconstitutionally vague and ambiguous and provide insufficient notice of what conduct is prohibited. A penal statute is “void for vagueness” where it fails to give a person of ordinary intelligence fair notice
The second prong of Appellant’s due process argument is that he was denied an impartial and disinterested determination of his guilt or innocence in .that, the Commission and its enforcement officers have an improper financial and personal interest in prosecuting violators of the Fish and Boat Code. This improper financial and personal interest arises, he contends, from the fact that all fines and penalties recovered from prosecutions under the Fish, and Boat Code are placed in a separate fund. 30 Pa. C. S. §521 (a). Since monies from this fund, known as .the “Fish Fund,” are used to pay for the training, sala
Having found Appellant’s assignments of error to be without merit, we affirm the judgment of sentence.
Order
Now, November 22, 1985, the judgments of sentence of the Court of Common Pleas of Erie County at Docket Nos. 795 and 839 of 1982, Criminal Division, are hereby affirmed.
58 Pa. Code §69.32(a) now provides as follows:
Size. The following mesh size gill nets are permitted: 2.75 inch mesh or 2 7/8 inch mesh and 4.5 inch mesh, stretch measure, wet measured over a rigid metal rule with one pound sliding brass weight, certified as accurate by the Commission or other appropriate authority. . . .
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
It appears to me that the regulation in effect at the time of the alleged offense clearly required that the measurement of the net size should be done with a flexible rule approved by the United States National Bureau of Standards. While administrative agencies do have the right to interpret their own regulations, I find nothing here to interpret. The language used in the regulation could not be more precise. The enforcement officers simply did not comply with the regulation and,- therefore, the prosecution is fatally flawed. ■ •
I would reverse and set aside the judgments of sentence.