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THOMAS E. LARRIMER v. COMMONWEALTH PENNSYLVANIA (05/20/88)

decided: May 20, 1988.

THOMAS E. LARRIMER, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE. WILLIAM S. LARRIMER, APPELLANT V. COMMONWEALTH OF PENNSYLVANIA, APPELLEE



Appeals from the Orders of the Court of Common Pleas of Erie County, in the case Commonwealth of Pennsylvania v. William S. Larrimer and Thomas E. Larrimer, Nos. 1340 of 1986 and 1341 of 1986.

COUNSEL

Peter Molinaro, Jr., with him, James C. Larrimer, Dougherty, Larrimer & Lee, for appellants.

Marilyn Woolery, Assistant District Attorney, with her, Michael J. Veshecco, District Attorney, for appellee.

Judges MacPhail and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 116 Pa. Commw. Page 255]

Petitioners appeal from the denial of their motion in arrest of judgment following their conviction for two violations of the Fish and Boat Code (Code), 30 Pa. C. S. §§ 101 -- 7314. William S. Larrimer was convicted of violating Section 5123(a)(5) of the Code, 30 Pa. C. S. § 5123(a)(5), relating to equipment requirements for boats, and Thomas E. Larrimer was convicted of violating Section 2102(b) of the Code, 30 Pa. C. S. § 2102(b), relating to the number of devices and fishing tackle allowed. Both violations were summary offenses. Each Petitioner was fined $25.00 and the costs of prosecution. We will affirm the judgment of sentence.

It appears that Petitioners and a female companion were fishing in a 16-foot open aluminum boat on Lake Erie when three patrol officers of the Pennsylvania Fish Commission pulled alongside for a routine boat check. As a result of their observations and conversation with the occupants of the boat, the patrolmen issued a citation to William Larrimer for failure to have visual flares on board and issued a citation to Thomas Larrimer for having three fishing rods in use when the limit is two. The patrolmen also confiscated the fishing rods.

Petitioners were afforded a hearing before a District Justice where they were found guilty. Petitioners then appealed to the Court of Common Pleas of Erie County. After a non-jury trial, the Petitioners were again found

[ 116 Pa. Commw. Page 256]

    guilty and judgment of sentence was entered. As we have noted, Petitioners' post-trial motion was denied. Petitioners' application for reconsideration of that order was also denied. The appeal to this Court followed.

At the non-jury trial, after the witnesses for the prosecution testified and the Commonwealth rested, counsel for the Petitioners orally moved to suppress the testimony and evidence presented by the Commonwealth on the ground of illegal search and seizure. The trial judge denied the motion because no pre-trial motion for suppression was filed and because he was of the opinion that the search and seizure was not illegal. The Petitioners presented no evidence.

In Petitioners' motion in arrest of judgment, a constitutional challenge is made to many of the provisions of the Code and the regulations adopted by the Fish Commission. In particular, Petitioners contend that the statutory provisions authorizing random routine checks of boats by waterways patrolmen, the confiscation of fishing equipment and the authority given to waterways patrolmen to ascertain whether one about to be charged will plead guilty and pay a fine to the arresting officer or plead not guilty and be cited, are violative of their constitutional rights.

The trial judge, in his opinion in support of his order denying post-trial relief, again noted Petitioners' failure to file a pre-trial motion to suppress, as required by Pa. R. Crim. P. 323, was a bar to the relief requested after the prosecution had rested. He also held that Petitioners' constitutional challenges were barred because ...


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