No. 339 March Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Franklin County, No. 417 of 1976.
John McCrea, III, Newville, for appellant.
John F. Nelson, III, Assistant District Attorney, Chambersburg, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 265 Pa. Super. Page 330]
Appellant was convicted on November 17, 1976, of driving while under the influence,*fn1 sentenced to a prison term of fifteen (15) days to three (3) months, and fined $250.00. His only contention on appeal is that the prosecution failed to establish that the offense occurred in Franklin County, a necessary element in conferring jurisdiction on the court below. The lower court ruled that appellant's demurrer did not preserve this issue and that his failure to specifically raise the issue until post-trial motions constituted a waiver. The court also took judicial notice, in overruling the post-trial motions, that "it is a well-known geographical fact that" the area near the Shippensburg Fair Grounds where appellant was arrested is "indeed within the boundaries of the County of Franklin." (Opinion at 6). For the reasons stated herein, we affirm the judgment of the court below.
[ 265 Pa. Super. Page 331]
First, we must reject the Commonwealth's contention that appellant waived the jurisdiction issue by not specifically presenting it until post-trial motions. "[T]he locus of a crime is always in issue, for the court has no jurisdiction of the offense unless it occurred within the county of trial . . . ." Commonwealth v. Mull, 316 Pa. 424, 426, 175 A. 418, 419 (1934); see Commonwealth ex rel. Page 331} Chatary v. Nailan, 416 Pa. 280, 283, 206 A.2d 43, 45 (1965); Commonwealth v. Tarsnane, 170 Pa. Super. 265, 267, 85 A.2d 606, 607 (1952); Commonwealth v. Wojdakowski, 161 Pa. Super. 250, 257, 53 A.2d 851, 855 (1947). Moreover, jurisdiction may never be waived, and may be presented at any stage of the proceeding. See, e. g., Commonwealth v. Little, 455 Pa. 163, 314 A.2d 270 (1974); Commonwealth ex rel. Yentzer v. Carpenter, 240 Pa. Super. 202, 362 A.2d 1101 (1976). Finally, in Commonwealth ex rel. Chatary v. Nailan, supra, the supreme court in dictum stated that a demurrer served to question the sufficiency of the evidence establishing the venue of the offense. Accordingly, the issue is preserved for appellate review.
In reviewing the actions of the lower court in dismissing appellant's post-trial motions, we must conclude that the court did not err when it took judicial notice that the situs of the offense was in Franklin County. "The doctrine of judicial notice is intended to avoid the necessity for the formal introduction of evidence in certain cases when there is no real need for it, where a fact is so well established as to be a matter of common knowledge." Albert Appeal, 372 Pa. 13, 20, 92 A.2d 663, 666 (1952); see Commonwealth ex rel. Duff v. Keenan, 347 Pa. 574, 582-83, 33 A.2d 244, 249 (1943) ("so well known as to be incontestable."). Included in the subjects appropriate for judicial notice is the county in which a town or city is located, see Emert v. Larami Corp., 414 Pa. 396, 200 A.2d 901 (1964); Commonwealth v. Kaiser, 184 Pa. 493, 39 A. 299 (1898), and the location of roads and highways. See Schmidt v. Allegheny County, 303 Pa. 560, 154 A. 803 (1931); Commonwealth v. Ball, 277 Pa. 301, 121 A. 191 (1923). Moreover, in Commonwealth v. Kaiser, supra, a case analogous to the instant appeal, the trial court took judicial notice of the situs of the offense to establish its jurisdiction. In holding that the trial court was so authorized, the supreme court went on to conclude that such notice alone was sufficient to establish jurisdiction when the jurisdiction was not contested and "the locality was only in issue technically." Commonwealth v. Kaiser, supra, 184 Pa. at 498, 39 A. at 300.
[ 265 Pa. Super. Page 332]
Instantly, several witnesses for both the prosecution and the defense testified that the offense occurred in the parking lot of the Shippensburg Fair Grounds and on Possum Hollow Road near the Fair Grounds. None of the witnesses specifically stated, however, that the area is in Franklin County, and appellant never alerted the prosecution that the county of the offense was in issue. Indeed, appellant does not contend that the area is in a county other than that which is charged in the indictment. His only contention is that Shippensburg is near the border of Cumberland and Franklin counties and that the prosecution never specifically established that the site of the offense was in Franklin County. In that respect, we conclude that the county of the offense was only technically in issue as a necessary requirement for conferring jurisdiction on the court below. As such, the judicial notice by the court is, under Kaiser, sufficient to establish the situs of the offense.*fn2