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COMMONWEALTH PENNSYLVANIA v. DANIEL STOVER (03/11/88)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 11, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL STOVER, APPELLANT

Appeal from the Judgment of Sentence of November 24, 1986 in the Court of Common Pleas of Lehigh County, Criminal, No. 242-S/1983.

COUNSEL

Richard J. Orloski, Allentown, for appellant.

William H. Platt, District Attorney, Allentown, for Com. appellee.

McEwen, Montemuro and Kelly, JJ.

Author: Mcewen

[ 372 Pa. Super. Page 36]

This appeal has been taken from the judgment of sentence to pay a fine of $300 plus costs, imposed by the distinguished Judge James N. Diefenderfer, after appellant was found to have violated Section 3743 of the Vehicle Code, 75 Pa.C.S. § 3743.*fn1

The trial judge in his able opinion has accurately summarized the facts relevant to the disposition of this appeal:

On November 10, 1982, at approximately 10:00 A.M., defendant's motor vehicle collided with the rear of a tractor-trailer truck which was stopped at a red light on Seventh Street at Route 22. The collision occurred at a time when Seventh Street was under construction. Due to the construction, traffic was bumper to bumper and moving very slowly.

[ 372 Pa. Super. Page 37]

An electrical worker, Barry Dannenhower, employed by Bell of Pennsylvania, was stationed along Seventh Street where the truck had stopped. Dannenhower heard the crash and immediately notified the truck driver, Douglas R. McCoy, that his vehicle had been struck. McCoy exited his cab to survey the situation. McCoy found that the defendant's motor vehicle, a green Pontiac, was damaged in the area of the hood and the windshield. The rear of the truck had been struck. McCoy asked the defendant some questions. However, the defendant refused to provide McCoy with his name, address, driver's license and registration. He told McCoy only the year of his vehicle. McCoy recorded the motor vehicle license. Defendant told McCoy that he could not stay around because of his condition; McCoy testified that the defendant appeared to be intoxicated. Defendant then offered McCoy money so that he would not involve the police. Shortly thereafter, McCoy, upon seeing a police cruiser in the area, flagged the cruiser over. In response, the defendant got into his vehicle and headed east on Route 22.

McCoy gave the patrolman, Alfred C. Rhoads, Jr., the information for the police report. The patrolman issued a citation to the defendant later that day, using the license number to find the defendant's identity and address. Defendant was cited for failing to give information when involved in an accident with an attended vehicle.

Appellant pleaded guilty on December 1, 1982, to a violation of 75 Pa.C.S. § 3743. Six months later, on June 6, 1983, appellant filed a petition for leave to appeal nunc pro tunc which was granted by the court a further six months later on December 22, 1983. A trial de novo was held on May 14, 1984 -- some seventeen months after the date of the asserted motor vehicle offense -- and appellant was found guilty. While post-verdict motions were filed in timely fashion, argument was not held thereon until April 24, 1985, almost one year after the de novo trial. The post-verdict motions were not ruled upon for yet another year, when on

[ 372 Pa. Super. Page 38]

July 21, 1986, they were dismissed. After sentence was imposed on November 24, 1986, appellant undertook the instant appeal.

Appellant presents two sufficiency arguments, initially asserting that the evidence was insufficient to support a conviction under Section 3743 of the Vehicle Code since the Commonwealth failed to establish that there was any "damage to a vehicle or other property" as required by 75 Pa.C.S. § 3743.

The settled standard of review for evaluating a challenge to the sufficiency of the evidence is "whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984). Accord: Commonwealth v. Macolino, 503 Pa. 201, 205-06, 469 A.2d 132, 134 (1983); Commonwealth v. Tribble, 502 Pa. 619, 621-22, 467 A.2d 1130, 1131 (1983); Commonwealth v. Keblitis, 500 Pa. 321, 322-23, 456 A.2d 149, 150 (1983); Commonwealth v. Kennedy, 499 Pa. 389, 391-93, 453 A.2d 927, 928 (1982); Commonwealth v. Lovette, 498 Pa. 665, 669-70, 450 A.2d 975, 977 (1982).

Appellant argues that the statute did not require him to stop and to provide information at the scene of the accident since he did not observe the damage to the truck. We do not agree since the evidence, including the testimony of appellant as to the damage sustained by his own vehicle, was sufficient to support the conclusion of the trial court that the truck sustained damage, however slight, as a result of the accident. Thus, this insufficiency argument is rejected as meritless.

Appellant further argues that the evidence was insufficient to establish that he did not provide sufficient information to the driver of the second vehicle. We summarily reject this contention since the record provides ample support

[ 372 Pa. Super. Page 39]

    for the conclusion of the trial court that appellant did not provide to the victim the information required by Section 3744(a) of the Vehicle Code.*fn2

Appellant next argues that the judgment of sentence must be vacated since it was imposed after the expiration of the two year statute of limitations provided by Section 5553 of the Judicial Code, 42 Pa.C.S. § 5553(e).*fn3

This Court, in Commonwealth v. Jannenga, 335 Pa. Super. 77, 483 A.2d 963 (1984), held that, pursuant to 42 Pa.C.S. § 5553(e), "any summary proceedings initiated under title 75 must be disposed of at the trial level within two years [of the commission of the offense] or not at all." Id., 335 Pa. Superior Ct. at 81, 483 A.2d at 965. The offense at issue was committed on November 10, 1982, thus establishing November 10, 1984, as the deadline for all proceedings relevant to the offense. As we have recounted, although appellant initially pleaded guilty, he subsequently sought

[ 372 Pa. Super. Page 40]

    and was granted leave to appeal nunc pro tunc, and, while appellant was found guilty after a trial de novo held on May 14, 1984,*fn4 he was not sentenced until November 24, 1986, a date more than two years after the trial de novo and some four years and fourteen days after the date of the commission of the offense.

While the sluggish pace at which this case proceeded through the system*fn5 triggers a number of arguments to support an assertion that the charges should be dismissed, appellant failed to raise the defense of the statute of limitations at any time in the trial court. Thus, we find the defense of the statute of limitations to have been waived and, therefore, affirm the judgment of sentence.

The defendant in Commonwealth v. Jannenga, supra, filed a motion to dismiss the charges based upon 42 Pa.C.S. § 5553(e) prior to the dismissal of his post-verdict motions. Thus, the issue was raised in a timely fashion and ruled upon by the trial court. Similarly, this Court, in Commonwealth v. Larson, 299 Pa. Super. 252, 445 A.2d 550 (1982), held that proceedings against a defendant charged with summary violations of the Vehicle Code were required, pursuant to 42 Pa.C.S. § 5553(a), to be instituted within thirty days after the commission of the offense.*fn6 Proceedings against the defendant in that case were not instituted within the statutory time period and the court noted that "[t]he case against appellant therefore should have been dismissed upon proper motion." Id., 299 Pa. Superior Ct.

[ 372 Pa. Super. Page 41]

    at 255, 445 A.2d at 551 (emphasis supplied). While the defendant in Larson had failed to file post-verdict motions, this Court (1) noted that the defendant had not been advised of the necessity of filing such motions, and (2) noted that the defendant had raised the defense of the statute of limitations in the trial court. Id., 299 Pa. Superior Ct. at 255 n. 3, 445 A.2d at 551 n. 3.

Appellant in the instant case, however, never raised the defense of the statute of limitations in the trial court, even though he could have raised the issue of the statute of limitations at any time between the expiration date of the statute of limitations, namely, November 20, 1984, and the date of sentencing two years later on November 24, 1986. The defense of the statute of limitations is waived by a failure to raise it in a timely fashion. See: Commonwealth v. Darush, 501 Pa. 15, 20 n. 4, 459 A.2d 727, 730 n. 4 (1983); Commonwealth v. Riley, 330 Pa. Super. 201, 212-14, 479 A.2d 509, 515 (1984). As appellant failed to timely assert in the trial court the defense of the statute of limitations, that defense has been waived and may not now form the basis for relief.

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.


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