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COMMONWEALTH PENNSYLVANIA v. DAVID B. BARRETT (07/11/88)

filed: July 11, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID B. BARRETT, APPELLANT



Appeal from the Judgment of Sentence entered October 14, 1987, Court of Common Pleas, Centre County, Criminal Division at No. 1985-1079.

COUNSEL

Thomas K. Kistler, Bellefonte, for appellant.

Glenn, Davis, Harrisburg, for Com., appellee.

Brosky, Montemuro and Johnson, JJ.

Author: Johnson

[ 375 Pa. Super. Page 467]

Upon appeal from a summary criminal conviction appellant was tried de novo before the Court of Common Pleas of Centre County and found guilty of driving an unregistered vehicle in violation of 75 Pa.C.S. § 1301(a). The conviction for this summary offense was based on appellant's driving a truck with trailer on Route 144 in Centre County. The truck was not registered in Pennsylvania. Appellant was sentenced to pay a fine of $1,890 plus costs. His motion to modify sentence was denied and on direct appeal from judgment of sentence appellant raises the following issues:

I. DO 75 PA.C.S. §§ 1301(c), 1101(b) AND 1102(6) EXEMPT MOTOR VEHICLES REGULARLY ENGAGED IN INTERSTATE COMMERCE FROM PENNSYLVANIA REGISTRATION?

II. IS THERE A LEGISLATIVE CONFLICT, SUCH THAT SECTIONS 75 PA.C.S. 1301(c) AND 75 PA.C.S. 1101(b) ARE IRRECONCILABLE, AND IF SO, WHICH SECTION SHOULD CONTROL?

III. DID THE COURT ACT OUTSIDE OF ITS AUTHORITY BY IMPOSING A FINE BASED UPON FACTS WHICH WERE NOT CONTAINED WITHIN THE TESTIMONY OR RECORD IN ANY WAY WHATSOEVER?

In his first argument appellant contends that the operative language of 75 Pa.C.S. § 1301(a) does not require that a vehicle be registered in this Commonwealth, but only that a vehicle must be registered. This argument is waived

[ 375 Pa. Super. Page 468]

    by appellant's failure to include it in his post verdict motion and post verdict motion filed nunc pro tunc. Commonwealth v. Duden, 326 Pa. Super. 73, 473 A.2d 614 (1984). Whatever procedural irregularities may have occurred in providing appellant notice of right to appeal pursuant to Pa.R.Crim.P. 1123(c)(1) were remedied when the court permitted the filing of appellant's post verdict motion nunc pro tunc and ruled thereon.

In his second argument appellant contends that his vehicle is not required to be registered in Pennsylvania because it is a vehicle regularly engaged in interstate commerce. We have reviewed the applicable provisions of the Vehicle Code, 75 ...


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