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COMMONWEALTH PENNSYLVANIA v. RAYMOND CARL KRESGE (05/03/83)

submitted: May 3, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
RAYMOND CARL KRESGE, APPELLANT



No. 920 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Monroe County, Criminal Division, at No. 703-1980.

COUNSEL

Arthur Lucian Zulick, Assistant Public Defender, Stroudsburg, for appellant.

Elmer D. Christine, Jr., Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

McEwen, Montgomery and Hoffman, JJ.

Author: Mcewen

[ 317 Pa. Super. Page 407]

This appeal has been taken from an order denying a pretrial motion to quash, on double jeopardy grounds, an information that charged appellant, Raymond Carl Kresge, with unlicensed possession of a firearm.*fn1 Appellant contends that the provisions of 18 Pa.C.S.A. § 110 bar his prosecution on the firearms offense since it arose out of the same criminal episode as did his citation for a summary game law offense upon which he had previously entered an acknowledgment of guilt and paid a fine to a district game protector. We disagree and affirm the order of the distinguished Senior Judge Arlington W. Williams.

On the evening of November 1, 1980, two Pennsylvania game protection officers observed appellant on two occasions direct a spotlight from the passenger seat of a vehicle into woodlands and fields adjacent to Weir Mountain Road in Ross Township. On one of these occasions the game protectors observed the spotlight illuminate deer in the field near the road. As a result, the officers followed the vehicle until the driver of the automobile, Donald Kresge, without being signaled to do so, brought his vehicle to a stop. Deputy protector William Heil approached the vehicle and questioned appellant as to the number of deer he had observed while casting the spotlight into the field and, after completing a consensual inspection of the trunk of the car, observed the stock of a rifle under the driver's seat of the car, and pulled it out of its position. Robert Heil, also a deputy game protector and the partner of protector William Heil, then observed, from his position on the opposite side

[ 317 Pa. Super. Page 408]

    of the car, a holstered .22 calibre revolver on the floor of the passenger side of the car where appellant was seated and he immediately seized it. William Heil then informed both appellant and the driver of the car that they were in violation of the game law.

The revolver was subsequently delivered by the officers to their supervisor, the district game protector, who transferred custody of the weapon to the Pennsylvania State Police for investigation. Appellant, ten days after the incident, met with the district game protector at the State Police Barracks where he (1) admitted to the State Police that he lacked a license for such a weapon and (2) signed an acknowledgement of his guilt of the game law violation, paid a fine of two hundred dollars to the district game protector and received an official statement of satisfaction for the offense, pursuant to the provisions of 34 P.S. § 1311.1203.*fn2 The state police, however, did not file a complaint against appellant for possession of a firearm without a license, 18 Pa.C.S.A. § 6109, until December 18, 1980, after they had received a certification from Harrisburg that confirmed that appellant did not possess a license to carry a firearm. After his arraignment on the firearms violation, appellant filed a pretrial motion to quash the information on double jeopardy grounds arguing that 18 Pa.C.S.A. § 110 barred his prosecution of the firearms offense as a result of the former prosecution on the game law offense. The Common Pleas Court denied the motion

[ 317 Pa. Super. Page 409]

    to quash by order dated April 8, 1981, from which appellant has taken this appeal.*fn3

The sole issue for our determination is whether, under the provisions of § 110 of the Crimes Code, 18 Pa.C.S.A. § 110, the prior conviction of appellant of the summary offense of casting rays of artificial light upon a big game animal while in possession of a firearm, a violation of 34 P.S. § 1311.704(b) of the Pennsylvania Game Law, bars his subsequent prosecution upon the firearms ...


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