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COMMONWEALTH PENNSYLVANIA V. WELLINGTON R. MCKAY (08/31/84)

SUPERIOR COURT OF PENNSYLVANIA


August 31, 1984

COMMONWEALTH OF PENNSYLVANIA V. WELLINGTON R. MCKAY, APPELLANT

No. 47 Harrisburg, 1983, Appeal from the Judgment of Sentence dated February 2, 1983, in the Court of Common Pleas of Dauphin County, Criminal Division, at No. 1939 C.D. 1982.

Before Del Sole, Popovich and Roberts, JJ. Del Sole, J., files a Concurring Memorandum.

Per Curiam:

Judgment of Sentence affirmed.

DEL SOLE, J., files a Concurring Memorandum.

DEL SOLE, J.:

While I concur in the result reached by the majority, I do not do so based on the reasoning in the majority opinion.

My reading of 42 Pa.C.S.A. § 6103 leads me to the inescapable conclusion that the offered exhibit at the trial court should not have been admitted.

Section 6103 provides as follows:

Proof of Official Records

(a) General Rule - An official record kept within this Commonwealth by any court, district judge or other government unit, or any entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that the officer has the custody. The certificate may be made by any public officer having a seal of office and having official duties with respect to the government unit in which the record is kept. . .

(b) Lack of Record - A written statement that after an examination of the records of the government unit no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subsection (a), is admissible as evidence that the records contain no such records or entry." (Emphasis Supplied)

The prosecution in this case sought to introduce a statement from the Liquor Control Board that the defendant was not a licensee. The statement set forth that there was a lack of any record indicating that the defendant was licensed to distribute alcohol or malt beverages.

The introduction of this statute would be governed by § 6103(b) as set forth set forth above. That subsection requires authentication of the record as set forth in subsection (a). Subsection (a) requires that the officer having custody set forth with the record contains a certificate to the effect that the officer who was making the statement has custody of the records. That certificate would be made by the public officer having the seal of the office. This is what the legislature required and this is what the court should require.

However, I would affirm the conviction based upon the stipulation of counsel that his client had committed the act. A review of the record reveals the following:

Mr. Lock: If it is of any assistance to anybody, I'm prepared to stipulate to all of theinformation on the information with the exception of the prior convictions.

The Court: Let me have the information. In other words, Mr. Lock, you're willing to agree tht the information states that in Count 1, August 29, your client unlawfully sold from 611 Kelker Street liquor?

Mr. Lock: Yes, sir.

The Court: And that on September 5th, it was only two counts. On September 5th and 12th, I guess, I don't know which. He did the same thing?

Mr. Lock: Yes, sir.

The Court: That time it was beer.

Mr. Lock: Yes, sir.

The Court: Why is it a waiver trial? I understand about the convictions. That's another matter for sentence. Why is it a waiver trial if your're agreeing to that?

Mr. Lock: The issue in this case is substantially the same as in the other case.

The Court: Is that an issue on whether--

Mr. Lock: On whether he sold the liquor, no.

The Court: On whether he was licensed?

Mr. Lock: No.

Based on the record, it is clear that the Appellant stipulated that he did in fact engage in unlicensed sale of alcoholic beverages. For that reason, I would sustain the conviction.

19840831

© 1998 VersusLaw Inc.



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