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COMMONWEALTH PENNSYLVANIA v. RICKY LEE BURKHOLDER AND HARVEY L. BURKHOLDER (06/13/89)

submitted: June 13, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
RICKY LEE BURKHOLDER AND HARVEY L. BURKHOLDER, APPELLANTS



Appeal from the Judgment of Sentence of the Court of Common Pleas, Cumberland County, Criminal Division, at No. 592 Criminal 1988.

COUNSEL

Arthur T. McDermott, Carlisle, for appellants.

John M. Eakin, Dist. Atty., Mechanicsburg, for the Com., appellee.

Brosky, Beck and Hoffman, JJ. Beck, J., files a dissenting opinion.

Author: Brosky

[ 388 Pa. Super. Page 254]

This is an appeal from the judgment of sentence following a Bench finding of guilt of violations of various provisions of the Game Law, 34 Pa.C.S. 101 et seq. Specifically, appellant, Harvey L. Burkholder, was charged with violating § 2323(a)(1), Tagging and Reporting Big Game Kills; § 2307(a), Unlawful Taking or Possession of Game or Wildlife; § 2504(a), Shooting on or Across Highways; and § 2308(a)(7), Unlawful Devices and Methods. Appellant, Ricky Lee Burkholder, was charged with violating § 2323(a), Tagging and Reporting Big Game Kills, and § 2307(a), Unlawful Taking or Possession of Game or Wildlife.

The issues raised on appeal are (1) whether the search and seizure conducted at appellant, Harvey Burkholder's residence was in violation of Article 1, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution; (2) whether evidence seized at the scene and retained in the possession of the Game Warden for six weeks should have been suppressed; (3)

[ 388 Pa. Super. Page 255]

    whether the Commonwealth proved a charge of conspiracy against the appellants; (4) whether the trial court abused its discretion in denying a view of the scene; and (5) whether the court abused its discretion by failing to reopen the trial to hear after-discovered evidence. Because we find that the items were seized pursuant to a stale search warrant, we reverse and remand for a new trial.

The incident giving rise to the above charges occurred on December 14, 1987, in Cumberland County. Witnesses, Mr. and Mrs. Bruce Davis, while standing on the porch of their home, observed appellant, Harvey L. Burkholder, alight from his pick-up truck on a nearby roadway and fire several shots toward a number of deer. Apparently having shot one of the deer, he then re-entered the vehicle and drove in the direction of the animals.

At the same time, Mrs. Davis drove to where the pick-up truck was then parked and observed Mr. Burkholder fire two more shots at the animal, killing it.

At that time, Mr. Burkholder's son, appellant, Ricky Lee Burkholder, who had been hunting with a third party, appeared on the scene. He assisted his father in dragging the animal to the truck and then left the scene with his father. Although Ricky Lee Burkholder later claimed to game officials that he, not his father, had shot the deer and had attached his tag to it, the trial court found from the evidence presented at trial that Ricky Lee Burkholder had not shot the deer and was aware that it was not properly tagged when removed from the scene.

After the shooting incident, Mrs. Davis reported to the Game Warden that Harvey Burkholder had illegally shot at the deer from the road. Two days after the incident, the Game Warden searched the area of the road from where Mrs. Davis said Harvey Burkholder had been shooting and found two spent .30-06 cartridges, which the Warden retained in his possession.

Approximately six weeks later, on January 30, 1988, the Game Warden, accompanied by other officers, conducted a

[ 388 Pa. Super. Page 256]

    search at the Harvey Burkholder residence. Although the warrant authorized only the seizure of "all firearms chambered for the .30-06 shell," the officers also seized both live and spent .30-06 ammunition, in addition to firearms. The rifles and ammunition were turned over to the State Police Laboratory for analysis. At this time, the Game Warden also turned over to ...


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