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05/15/97 COMMONWEALTH PENNSYLVANIA v. JEFFREY

May 15, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JEFFREY MARTIN, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Cumberland County, Criminal Division at No. 95-1467. Before BAYLEY, J.

Before: Cirillo, P.j.e., Popovich and Hester, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

FILED: May 15, 1997

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Cumberland County following appellant's conviction pursuant to 18 Pa.C.S.A. § 4116(e), relating to illegally copied videotapes. Herein, appellant contends (1) that the information should have been quashed since it did not notify him sufficiently of the charge against him, and (2) that the trial court improperly instructed the jury as to the relevant principles of law. We affirm.

The facts and procedural history of this case are as follows: On August 20, 1995, Pennsylvania State Police Trooper James Wilson received information that appellant was selling illegally copied videotapes at the Silver Springs Flea Market in Silver Springs Township, Pennsylvania. Trooper Wilson, along with Detective Wayne Jirsa of the Motion Picture Association of America, travelled to the flea market. Upon arrival, they noticed appellant's booth and discovered approximately one-hundred illegally copied videotapes. The videotapes were made with a video camera in a movie theater. Many of the illegally copied videotapes contained copies of movies which were showing in the movie theater and had not yet been released for videotape. Appellant was then arrested, charged and convicted by a jury of violating 18 Pa.C.S.A. § 4116(e). On April 30, 1996, he was sentenced to three to twelve months incarceration. On May 7, 1996, he filed a post-sentence motion which was denied by the lower court. This appealed followed.

Appellant's first contention is that the information should have been quashed because it did not notify him sufficiently of the crime against him. Specifically, he contends that the information, which charged him with violating 18 Pa.C.S.A. § 4116(e), improperly utilized language from both Section 4116(e) and 18 Pa.C.S.A. § Section 4116(d). While we agree with appellant that a criminal information must inform the defendant adequately of the crime with which he is charged, we find that he has failed to preserve this issue for review.

"A request to quash an information must be made in an omnibus pretrial motion for relief or it is considered waived." Commonwealth v. Rishel, 441 Pa. Super. 584, 658 A.2d 352, 358 (1995), rev'd on other grounds, Pa. , 682 A.2d 1267 (1996) (citation omitted). See Pa.R.Crim.P. 306. In this case, the information was filed on September 22, 1995, well before appellant's jury trial commenced on March 26, 1996. However, appellant's counsel concedes that he did not challenge the validity of the information until after the Commonwealth completed its case in chief at trial. *fn1 The record reveals that counsel failed to file an omnibus pretrial motion to quash the information. Accordingly, the issue was not preserved for review Rishel, supra; Commonwealth v. Cruz, 355 Pa. Super. 176, 512 A.2d 1270 (1986).

Appellant's next contention is that the trial court improperly instructed the jury. Specifically, he contends that the jury instruction concerning Section 4116(e) was at variance from the information since it contained the terms "knowingly" and "knowing conduct." He further argues that the term "knowingly" is an element of Section 4116(d) and is not an element of 4116(e) and, therefore, the trial court's instruction improperly permitted the jury to convict him under either Section 4116(d) or Section 4116(e).

Section 4116(e) provides, in relevant part, that: "Every recorded device sold or transferred or possessed for the purpose of sale by any manufacturer, distributor, or wholesale or retail merchant shall contain on its packaging, the true name of the manufacturer. The term 'manufacturer' shall not include the manufacturer of the cartridge or casing itself." Section 4116(d) provides, in relevant part, that: "It shall be unlawful for any person to knowingly retail or possess for the purpose of retailing any recorded device that has been produced, manufactured, distributed or acquired at wholesale in violation of any provision of this section."

The information in this case charged appellant as follows: "Pursuant to 18 Pa.C.S.A. § 4116(e), on Sunday, the 20th day of August, 1995, Jeffrey Martin unlawfully sold or transferred or possessed for the purpose of sale by any manufacturer, distributor, or wholesale or retail merchant which failed to contain on its packaging the true name of the manufacturer."

The entire charge given by the trial court regarding the elements of the crime at issue was as follows:

The specific section we're dealing with, so called Section 4116(e) says this: Every recorded device sold or transferred or possessed for the purpose of sale by any manufacturer, distributor, or wholesale or retail merchant, shall contain on its packaging the true name of the manufacturer. The term 'manufacturer' shall not include the manufacturer of the cartridge of the case itself....and the law says it's unlawful for any person to knowingly retail or possess for the purpose of retailing any recorded device in violation of any provision of this section, and the Commonwealth claims it's that section which defendant violated in this case, and that's the law that's applicable to this case.

Again, let's look at this statute and repeat what I told you before. Every recorded device sold or transferred or possessed for the purposes, by any, including a manufacturer, distributor or wholesale or retail merchant, shall contain on its packaging the true name of the manufacturer. The term manufacturer shall not include the manufacturer of a cartridge or casing itself. . . .and under the law it shall be unlawful for any person to knowingly retail or possess for the purpose of retailing any recorded device in violation of any provision in this section of the statute. The provision we are dealing with is the provision I just talked to you about, with respect to every recorded device sold by a retail merchant shall have on it the true name ...


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