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HENRY KISSINGER v. COMMONWEALTH PENNSYLVANIA (06/17/87)

decided: June 17, 1987.

HENRY KISSINGER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Dauphin County, in case of Commonwealth of Pennsylvania v. Henry Kissinger, No. 2420 C.D. 1982.

COUNSEL

John J. Robinson, Jr., Laws and Staruch, for appellant.

Mary D. France, Cleckner and Fearen, with her, Robert A. Enders, for appellee.

Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 106 Pa. Commw. Page 638]

This is an appeal by Henry Kissinger, Appellant, from an order of the Court of Common Pleas of Dauphin County denying his post-verdict motion for reconsideration of that court's prior denial of his motion for discovery and inspection. Appellant sought a discovery and inspection order in order to substantiate his justification defense to the charge he violated Upper Paxton Township Ordinance No. 9-76. That ordinance required him to connect his improved property to the Millerburg Area Authority's (Authority) sewer system within sixty days of being notified to do so. We affirm.

This matter was previously before this Court on Appellant's double jeopardy challenge to his prosecution for violating the Township ordinance. See Kissinger v. Commonwealth (Kissinger I), 88 Pa. Commonwealth Ct. 46, 488 A.2d 401 (1985), petition for allowance of appeal denied, No. 75 M. D. Allocatur Dkt. 1985 (Pa., filed June 19, 1985). In Kissinger I we affirmed the common pleas court's denial of Appellant's motion to dismiss the prosecution on the basis of double jeopardy. After the Pennsylvania Supreme Court denied allowance to appeal our decision in Kissinger I, the matter was returned to the common pleas court. Appellant and the Township entered into a stipulation*fn1 before the

[ 106 Pa. Commw. Page 639]

    common pleas court wherein he admitted that he did not connect his improved property to the Authority's sewer system within sixty days of being notified to do so. He also filed a pre-trial motion for discovery and inspection whereby he sought a court order to allow an expert of his choosing to inspect and test the Authority's sewage treatment plant and operation in order to substantiate his defense of justification. The common pleas court denied the motion and convicted him of violating Ordinance No. 9-76 based upon his stipulation. He then filed post-verdict motions seeking reconsideration of the court's prior denial of his motion for discovery and inspection. The common pleas court denied that motion and sentenced him to pay a fine of $300 and costs of prosecution.

In this appeal, Appellant contends that the common pleas court erred by denying him the opportunity to have his expert examine and test the Authority's sewage treatment plant in order to substantiate his defense of justification. It is Appellant's position that the Authority's sewage treatment system is inadequate, overburdened, and at times deposits untreated or undertreated

[ 106 Pa. Commw. Page 640]

    sewage into the Susquehanna River. He argues that his failure to connect with the Authority's system as required by Ordinance No. 9-76 is justified by his desire not to further contribute to danger posed by the Authority's alleged pollution of a water source by its depositing of untreated or undertreated sewage.

Pre-trial discovery in criminal prosecutions is governed by Pa. R. Crim. P. 305. Rule 305 B(1) lists a number of categories of evidence that the Commonwealth is mandated to disclose to the defendant upon request. The discovery and inspection sought here by Appellant is not included in any of the categories enumerated under Rule 305 B(1). Rather, Appellant contends that the materials sought through his discovery and inspection motion come under Rule 305 B(2), pertaining to discovery that is discretionary with the court. The Appellant's request would seem to fall under category (d) pertaining to other evidence identified by the defendant, provided that the defendant can additionally establish that its disclosure would be in the interests of justice. As this type of discovery is clearly within the common pleas court's discretion, our review of that court's denial of Appellant's motion is limited to whether that court abused its ...


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