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Commonwealth v. Sampson

January 9, 2009

COMMONWEALTH OF PENNSYLVANIA
v.
NICHOLAS JOSEPH SAMPSON, APPELLANT



The opinion of the court was delivered by: Judge Simpson

Submitted: October 10, 2008

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

Nicholas Joseph Sampson (Defendant) appeals an order of the Lycoming County Common Pleas Court (trial court) that affirmed a magisterial district judge (MDJ) judgment against Defendant as to 15 violations of Section 2908(a)(1) of the Game and Wildlife Code (Game Code), 34 Pa. C.S. §2908(a)(1) (exercising privileges granted by a Pennsylvania Game Commission (Game Commission) permit without the required permit) and a former Game Commission regulation prohibiting the practice of taxidermy without a permit.*fn1 Defendant asserts the Game Commission lacked jurisdiction to prosecute these charges because the Legislature transferred jurisdiction over taxidermy permits from the Game Commission to the Department of Agriculture (Agriculture). Defendant further asserts that he possessed a valid taxidermy permit when he acquired the wildlife specimens, which authorized him to retain the specimens indefinitely and that his violations of the former regulation did not constitute criminal offenses. For the reasons that follow, we affirm.

I.

Defendant is a licensed taxidermist and operates a taxidermy studio in Williamsport, Lycoming County. In June 2005, Defendant's annual taxidermy license expired, and he failed to renew it. In response, Wildlife Conservation Officer Kristopher Krebs (Officer Krebs) made several attempts to contact Defendant regarding the status of his permit. In January 2006, Officer Krebs met with Defendant at his studio and noticed a large quantity of wildlife specimens present. Defendant informed Officer Krebs he wished to renew his permit. Officer Krebs gave Defendant one day to contact him regarding his renewal application. However, Defendant did not contact Officer Krebs, and he did not return any of the officer's calls.

Thereafter, pursuant to a search warrant of Defendant's premises, Officer Krebs and other Game Commission officers seized and photographed numerous wildlife specimens owned by individuals other than Defendant. The specimens included whitetail and mule deer antlers, pronghorn antelope horns, and a black squirrel. In total, the Game Commission seized more than 200 items. On January 12, 2006, Officer Krebs charged Defendant with 17 counts of unlawfully possessing or holding specimens for another without a taxidermy permit, a violation of 34 Pa. C.S. §2908(a)(1) and former 58 Pa. Code §147.129(a)(10). An MDJ found Defendant guilty of the charges, fined him $200 for each violation, and imposed costs of $51.00 for each violation.

Defendant filed a summary appeal and raised three issues: whether the Commission lacked jurisdiction to continue the prosecution; whether Defendant's previous taxidermy permit authorized his continued possession of specimens after his permit expired; and, whether the record supports the findings of guilt.

Following a de novo hearing on appeal, the trial court found Defendant not guilty on two charges of possessing specimens belonging to others without a taxidermy license. As to the remaining 15 charges, the trial court found the Commonwealth established beyond a reasonable doubt that Defendant possessed wildlife specimens received from other persons without a valid taxidermy permit. Consequently, the trial court affirmed those convictions and sentences.

As to the Game Commission's jurisdiction to prosecute the violation of permit regulations, the trial court noted the Game Code authorizes the Game Commission to issue various permits and promulgate regulations. 34 Pa. C.S. §§2901(a) and (b). Former Section 2926 of the Game Code governed taxidermy permits. However, the Act of July 7, 2006, P.L. 358 (Act 77), effective October 5, 2006, deleted 34 Pa. C.S. §2926 and transferred the licensing of taxidermists to Agriculture. See Chapter 27 of the Agriculture Code, 3 Pa. C.S. §§2701-07.*fn2

Because the violations here occurred prior to the transfer of jurisdiction to Agriculture, the trial court rejected Defendant's argument that Game Commission officers could no longer prosecute taxidermy permit violations.

The trial court also rejected Defendant's assertion the taxidermy provisions of the Game Code authorized the holder of an expired taxidermy permit to "receive from any person any bird or animal that has been legally or accidentally killed, keep the specimen or any part thereof in possession indefinitely and mount the specimen.." Former 34 Pa. C.S. §2926(b)(1) (emphasis added). The trial court reasoned the Legislature's use of the term "indefinitely" merely indicated there was no set time limit for licensed taxidermist to mount a specimen; it did not authorize a taxidermist to continue possession of specimens after his permit expired.

II.

Defendant raises the following issues.*fn3 First, Defendant asserts the Commission lacked jurisdiction to prosecute the taxidermy permit violations. Second, Defendant asserts former Section 2926(b) authorized a valid permit holder to keep a specimen indefinitely even after his permit expired. Third, Defendant asserts the former enabling statute did not authorize the Commission to enact additional criminal ...


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