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COMMONWEALTH v. MOYER (09/19/73)

decided: September 19, 1973.

COMMONWEALTH, APPELLANT,
v.
MOYER



Appeal from order of Court of Common Pleas of Bucks County, Nos. 1247 and 1247-2 of 1971, in case of Commonwealth of Pennsylvania v. Edward John Moyer.

COUNSEL

Stephen B. Harris, First Assistant District Attorney, with him Kenneth G. Biehn, District Attorney, for Commonwealth, appellant.

Richard R. Fink, Assistant Public Defender, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 225 Pa. Super. Page 375]

In the instant case, Commonwealth has appealed from the order of the lower court granting a new trial following a conviction for operating a motor vehicle after suspension of a license, and from an order granting a motion in arrest of judgment with respect to a conviction for tending to corrupt the morals of a minor.

On June 7, 1971, Officer Raymond Burns of the East Rockhill Township Police Department, Bucks County, observed a motor vehicle proceeding west on Route 313 at a speed of approximately 80 miles per hour. Officer Burns phoned ahead for assistance, and began to pursue the car. The vehicle was finally stopped by another police car which had joined the pursuit. The operator of the vehicle, Edward John Moyer, the appellee, failed to produce a driver's license; it was later determined that the appellee's license had been suspended

[ 225 Pa. Super. Page 376]

    prior to the arrest. In the automobile, there were two other passengers and a case of beer from which a number of bottles had been emptied. At trial, the arresting officer testified that he smelled liquor on the breath of all the occupants, including a 16-year-old youth, Dennis James Schwartz.

Appellee was charged on two bills of indictments. Trial was held before the Honorable Judge Edwin H. Satterthwaite, President Judge of the Court of Common Pleas of Bucks County, sitting without a jury. The Court found the appellee guilty on two of the charges: operating after suspension and, tending to corrupt the morals of a minor. Post-trial motions were argued. On March 23, 1973, the court en banc delivered its opinion and order, granting a new trial on the charge of operating after suspension and granting a motion in arrest of judgment on the charge of tending to corrupt the morals of a minor. The Commonwealth appeals from this order.

With respect to the driving while under suspension charge, the lower court granted a new trial because it determined that it was the burden of the Commonwealth to offer proof that appellant's driving privileges had not been reinstated prior to the date of the offense, and that this burden had not been met.

Section 624 of The Vehicle Code, 75 P.S. 624(6), provides that it shall be unlawful for any person: "(6) To operate any motor vehicle or tractor upon the highways of this Commonwealth after the operating privilege is suspended or revoked . . . and before such operating privilege . . . has been reinstated."

Under the statutory provision, there is no reason to assume that after a suspension period has expired driving privileges are automatically revived. As this Court has said in Commonwealth v. Ungar, 190 Pa. ...


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