No. 176 January Term, 1975, Appeal from the Judgment of the Court of Common Pleas of Bucks County at Misc. No. 85 of 1974, Criminal, entered August 2, 1974
Henry F. Huhn, Cornwells Heights, for appellant.
Robert T. Burke, Bristol, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, C. J., and O'Brien and Nix, JJ., concurred in the result. Pomeroy, J., filed a dissenting opinion. Jones, former C. J., did not participate in the consideration or decision of this case.
Appellee, Charles W. Dunn, was charged with driving an overweight motor vehicle on the highways of Pennsylvania in violation of Section 903(c) of the Pennsylvania Motor Vehicle Code, Act of April 29, 1959, P.L. 58, § 101 et seq., as
amended, 75 P.S. § 101 et seq. Appellee's truck was allegedly 23,700 pounds overweight. In a hearing before a district judge, appellee was found guilty, and a fine of $4,700 was imposed. Appellee appealed and a trial de novo was held in the Court of Common Pleas of Bucks County. In the non-jury trial, appellee was found guilty of being 1700 pounds overweight and a fine of $120.00 was imposed.
Appellee did not appeal from the judgment of sentence. The prosecution, however, filed an appeal in the Superior Court contending that the fine of $120.00 imposed was not the proper fine under the penalty section of the Motor Vehicle Code, 903(k). That section provides a schedule of graduated fines for motor vehicles that are overweight. The more overweight, the higher the fine. According to the prosecution, the trial court should have imposed a greater fine but did not do so because it erroneously held that a greater penalty for the violation of which appellee was found guilty would be unconstitutional.
Because the prosecution claimed that it was appealing from a trial court ruling invalidating as unconstitutional a penalty statute of the General Assembly, the Superior Court transferred the appeal to this Court. Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202(9); Act of July 31, 1970, P.L. 673, No. 223, art. V, § 503, 17 P.S. § 211.503.
Although the prosecution in this case purports to raise whether the trial court erroneously held the penalty provision, 903(k), of the Motor Vehicle Code unconstitutional, we do not decide that issue because it is not properly before us, as will be explained later in this opinion. In view of our conclusion that the constitutional issue raised is not properly before us, appellate jurisdiction may have properly been in the Superior Court which transferred the appeal to this Court. Because of the previous transfer to us, and since no objection has been raised by the appellee, we proceed to decide this appeal. Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202, 17 P.S. § 211.202(9).
Although the district justice found that appellee was guilty of operating a vehicle which was overweight, at the trial de novo in the Court of Common Pleas the verdict was different. At the conclusion of appellee's non-jury trial in the Court of Common Pleas, on August 2, 1974, the verdict entered and the ensuing colloquy were as follows:
". . . I am going to find the man guilty of the offense and find the overweight was 1700 pounds and impose a fine of $60.00 and cost upon the defendant."
[PROSECUTOR]: Your Honor, the fine would be double in any event on the overweight, so the fine would actually be $120.
[DEFENSE COUNSEL]: Section 903. Anytime a vehicle is over the amount, allowable weight of 73,280, the fine is double, sir.
[PROSECUTOR]: It's 903 and it's under the Penal Section, it would be --
[DEFENSE COUNSEL]: We agree, Your Honor, that is the law.
THE COURT: Yes, I suppose it is part of the Penal Section.
All right, the fine then imposed is $120.
(Whereupon the hearing was concluded.)"
In this appeal the prosecution raises two questions and states them as follows:
"1. Where the legislature has mandated a certain penalty for a criminal violation, may the trial court when imposing sentence ignore the legislative mandate?
2. Are the penalty provisions of § 903 of the Motor Vehicle Code unconstitutional?"
As to the first question raised, we do not agree with the prosecution that the trial court ignored the legislative mandate as to penalties in imposing sentence, and thus there is no need to consider the second question. Appellee was
found guilty of operating a vehicle which was 1700 pounds overweight. Under 903(k), the legislatively mandated penalty for being 1700 pounds overweight is $120. The prosecution does not dispute that fact in this appeal and, as the colloquy previously noted indicates, the prosecution itself informed the trial court that the correct penalty was $120. Defense counsel agreed with the prosecutor. No issue was raised at the time the judgment of sentence was imposed that the legislative mandate was not being followed, and no claim is made before us that the $120 fine was not the proper fine based upon the verdict. There is no doubt that the judgment imposed followed the verdict.
In this appeal, nonetheless, for the first time, the prosecution contends that, under 903(k), a fine of $4,700 should have been imposed. The prosecution's argument is based on its assumption that the verdict in this case found the appellee guilty of being 23,700 pounds overweight. That, however, was not the verdict. The prosecution argues that the evidence at trial showed that appellee was 23,700 pounds overweight. What the evidence showed, however, is irrelevant on appeal. We cannot go behind the verdict. In a criminal case at the appellate level, we cannot impose a new verdict or any verdict other than the verdict found by the trier of fact.
The prosecution also seems to base its assumption as to the verdict entered on its interpretation of the trial court's opinion filed on November 19, 1974, more than three and one-half months after the conclusion of the appellee's trial which ended on August 2, 1974.
Assuming for the moment that the trial court in its opinion of November 19, 1974, was attempting to enter a different verdict than that which it entered on August 2, 1974, we would be compelled to reject any alteration of a verdict made three and one-half months after the entry of the original verdict. Rule 302 of the Pa. Rules of Crim.P., states that:
"A verdict shall be rendered in all non-jury cases within three days after trial."
In this case the only proper verdict upon which judgment of sentence could be entered is the verdict entered at the conclusion of the trial on August 2, 1974, and not any allegedly different verdict entered three and one-half months after the original verdict. Whatever the trial court said in its opinion cannot legally alter the verdict entered on August 2, 1974.
Even though what the trial court's opinion said is not relevant, we note that we cannot agree with the prosecution that the trial court attempted to alter the verdict of August 2, 1974 in its opinion of November 19, 1974. In order to fully understand the trial court's opinion, a background review of the overweight provisions of the Motor Vehicle Code will be helpful. There are two different sections of the Motor Vehicle Code which are concerned with overweight violations: 903(a) and 903(c).
Section 903(a) provides as follows:
"No motor vehicle, and no combination of which a motor vehicle is a part, shall, when operated upon a highway, have a gross weight exceeding seventy-three thousand two hundred eighty (73,280) pounds."
Section 903(c) provides as follows:
"No combination of which a commercial motor vehicle or truck tractor having a registered gross weight is a part shall, when operated upon a highway, have a gross weight exceeding the sum of (1) the registered gross weight of the commercial motor vehicle or truck tractor plus (2) the registered gross weights, if any, of the other vehicles in the combination. This subsection shall not apply to a combination of a commercial motor vehicle or truck tractor and a mobilehome, house trailer, office trailer or a fertilizer trailer of less than ten thousand (10,000) pounds gross weight."
Section 903(a) provides that the maximum weight permitted on Pennsylvania highways is to be 73,280 pounds. No one is permitted without a special permit to travel on the highways with a gross weight exceeding that amount.
Section 903(c) also contains "overweight" prohibitions, but of a different kind. In order to understand Section 903(c), it is first necessary to point out that residents of Pennsylvania are required, when registering certain commercial motor vehicles, to register a "gross weight" for that vehicle. Nonresidents of Pennsylvania, even though driving commercial vehicles in Pennsylvania, are not required to register a "gross weight" for their commercial motor vehicles in Pennsylvania. Act of April 29, 1959, P.L. 58, § 410(e), 75 P.S. § 410(e). The maximum gross weight for which a resident registers a vehicle determines the amount of registration fee which must be paid to the Commonwealth of Pennsylvania for that vehicle. The gross weight registered may not exceed that which the vehicle is designed to handle nor may it exceed the 73,280 pounds gross weight limit of 903(a) even if the vehicle is designed to handle a greater weight. One may, however, register the motor vehicle for a gross weight less than the total gross weight for which the vehicle could be registered. By doing so the owner pays a smaller registration fee than would be paid if that motor vehicle were registered for its maximum permissible gross weight.
Thus, if a resident of Pennsylvania has a motor vehicle which qualifies for a gross weight allowance of 73,280 pounds, and the vehicle is registered for that weight and the proper fee paid, that person would be permitted a gross weight on the highways of Pennsylvania of 73,280 pounds. On the other hand, if that vehicle, although qualifying to be registered for a gross weight of 73,280 pounds, is registered, at the option of the owner, at the lesser weight of 50,000 pounds, that vehicle would be in violation of the Motor Vehicle Code if it were on the highways carrying 73,280 pounds. The violation would not be of Section 903(a) because there is no violation under that section so long as the gross weight does not exceed 73,280 pounds. It would, however, be a violation of Section 903(c) because the 73,280 pounds would be in excess of the registered gross weight.
It can thus be seen that Section 903(a) concerns itself primarily with what we will call for purposes of this opinion
a highway safety overweight. On the other hand, Section 903(c) concerns itself with a registration fee overweight. One could, of course, be in violation of both sections simultaneously. This would be the case if a resident of Pennsylvania were traveling on the highways of Pennsylvania with a gross weight in excess of 73,280 pounds. Since no registration is normally permitted above 73,280 pounds, a weight in excess of that figure could be in violation of ...