Appeal from the Order entered March 24, 1987, Court of Common Pleas, Centre County, Criminal Division at No. 86-1062.
James Jubelirer, State College, for appellant.
Sharon L. Potter, Assistant District Attorney, Bellefonte, for Com., appellee.
Olszewski, Del Sole and Johnson, JJ. Del Sole, J., files a dissenting opinion.
[ 373 Pa. Super. Page 179]
Alpha Epsilon Pi, through David A. Vincoff, was found guilty of disorderly conduct by a district justice and ordered to pay a fine of $50.00 and costs in the amount of $48.50. An appeal of the summary conviction to the common pleas court produced a de novo non-jury trial before the Honorable David E. Grine. The fraternity was again found guilty. The trial court assessed the same fine, plus costs. This direct appeal follows denial of post-verdict motions. We affirm.
Appellant presents two issues for our determination:
1. Did the trial court erroneously overrule defendant's demurrer where the prosecution had been brought under a general provision of the Crimes Code, and a more specific local ordinance was applicable to the factual circumstances alleged?
2. Was the verdict contrary to the evidence and to the weight of the evidence?
With respect to the first issue, we agree with the learned trial court's conclusion that no law or authority exists that mandates that a police officer must charge under a local
[ 373 Pa. Super. Page 180]
ordinance as opposed to a section of the Crimes Code. Commonwealth v. Brown, 346 Pa. 192, 29 A.2d 793 (1943), relied upon by Appellant, involved two acts of assembly (the Penal Code and Election Code). Likewise, Commonwealth v. Buzak, 197 Pa. Super. 514, 179 A.2d 248 (1962) involved the applicability of a penal provision of the Unemployment Compensation Law as against the Penal Code.
In the same vein, Commonwealth v. Litman, 187 Pa. Super. 537, 144 A.2d 592 (1958) called upon this court to choose between the provisions of the Medical Act of 1939 and the Penal Code. In Commonwealth v. Brown, 269 Pa. Super. 150, 409 A.2d 108 (1979) we were asked to consider the applicability of two separate sections of the Crimes Code, one dealing with forgery, the other relating to unlawful use of credit cards.
Commonwealth v. Bidner, 282 Pa. Super. 100, 422 A.2d 847 (1980), like Brown I, supra, involved the Election Code and the Crimes Code. Finally, Commonwealth v. Lawson, 315 Pa. Super. 84, 461 A.2d 807 (1983) called upon this court to compare and contrast two discrete sections of the Crimes Code.
In all of the cases cited by Appellant, our courts were dealing with either two different statutes enacted by the General Assembly, or specific sections contained within the same statute. Inexplicably, the Commonwealth, through its Brief for Appellee, invites us to consider the Statutory Construction Act of 1972, and particularly 1 Pa.C.S.A. § 1933. We reject this invitation since the Statutory Construction Act is only applicable when construing a general provision in a statute which is in conflict with a special provision in the same or another statute.
Appellant recognizes, to its credit, that all of the cases upon which it relies for authority are distinguishable from the case now before us, since none of them involves a general statute and a specific ordinance. Appellant points out that former Pa.R.Crim.P. 51 D, prior to its repeal effective January 1, 1986, would have ...