Com. of PA v. J.T. Redovan

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

: No. 1416 C.D. 2017

v. :

: Argued: October 2, 2019

Joshua T. Redovan , :

Appellant :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY

JUDGE McCULLOUGH FILED: February 18, 2020

Joshua T. Redovan appeals from the March 30, 2017 order of the

Court of Common Pleas of Westmoreland County (trial court), finding him guilty

of the summary offense of hunting over bait in violation of section 2308(a)(8) of

the Game and Wildlife Code (Code), 34 Pa.C.S. §2308(a)(8).1

1

Section 2308(a)(8) of the Code provides, in pertinent part, the following:

[I]t is unlawful for any person to hunt or aid, abet, assist or

conspire to hunt any game or wildlife through the use of . . . [a]ny

artificial or natural bait, hay, grain, fruit, nut, salt, chemical,

mineral or other food as an enticement for game or wildlife,

regardless of kind and quantity, or take advantage of any such area

or food or bait prior to 30 days after the removal of such material

and its residue. . . .

34 Pa.C.S. §2308(a)(8).

Background

In August 2016, Redovan placed corn bait and a salt block close to a

tree stand, located in Westmoreland County, where he intended to archery hunt.

(Reproduced Record (R.R.) at 100a-101a.) On August 16, 2016, Redovan

removed the corn and salt, including all visible residue, in order to comply with

section 2308(a)(8) of the Code, which permits baiting as long as it is removed at

least 30 days before an area is hunted. Id. The first day of archery season in that

area was September 17, 2016, and Redovan intended to hunt the first day of the

season. (R.R. at 97a-98a, 101a.)

Thereafter, on August 25, 2016, Redovan noticed a large pile of corn

and a game camera approximately 70 yards from his tree stand. (R.R. at 98a-99a.)

Neither the large pile of corn nor the camera had been placed by Redovan. Id.

Upon finding the corn, Redovan contacted the Pennsylvania Game Commission

(Game Commission) to report what he believed was illegal baiting by another

hunter. (R.R. at 53a, 98a-100a, 108a.) Redovan then removed the other hunter’s

corn from the area. (R.R. at 67a, 110a.)

On August 29, 2016, Game Commission Officer Michael Papinchak

(Officer Papinchak) called Redovan to obtain information regarding the evidence

of baiting that Redovan had discovered. (R.R. at 54a, 67a-68a, 86a.) The next

day, Officer Papinchak visited the area described by Redovan and found remnants

of corn on the ground. (R.R. at 54a.) Officer Papinchak decided to conduct a

thorough investigation of the area and observed evidence of recent deer activity.

(R.R. at 55a-56a.) Specifically, Officer Papinchak noticed a significant number of

deer tracks, which indicated the area was heavily trafficked by deer. Id. Officer

Papinchak also found a stone that he believed had been used as a pedestal for a salt

block. (R.R. at 56a, 65a.) Although Officer Papinchak was unable to observe any

salt residue by the naked eye, he tasted a soil sample and determined that there was

2

salt in the soil. (R.R. at 71a, 73a.) Officer Papinchak did not call Redovan to

inform him that there was still salt residue in the soil and also did not post the area

to advise hunters it was closed for hunting. (R.R. at 73a, 102a.)

On opening day, September 17, 2016, Officer Papinchak returned to

the area near the tree stand and witnessed Redovan hunting from his tree stand.

(R.R. at 61a, 70a, 72a.) Officer Papinchak informed Redovan he would be citing

Redovan for hunting in a baited area and, specifically, for hunting over the area

of the salt residue. (R.R. at 71a-74a.) Officer Papinchak also collected soil

samples that day and sent them to an independent laboratory for testing, which

confirmed a high level of sodium in the soil. (R.R. at 63a-64a, 91a-93a.)

On September 30, 2016, Officer Papinchak issued a citation to

Redovan for hunting over bait in violation of section 2308(a)(8) of the Code. The

citation described the nature of Redovan’s offense as follows:

THE DEFENDANT DID UNLAWFULLY HUNT

THROUGH THE USE OF ANY ARTIFICIAL OR

NATURAL BAIT, SALT, CHEMICAL, MINERAL OR

OTHER FOOD AS AN ENTICEMENT FOR GAME

OR WILDLIFE, REGARDLESS OF KIND AND

QUANTITY, OR TAKE ADVANTAGE OF ANY

SUCH AREA OR FOOD OR BAIT PRIOR TO 30

DAYS AFTER THE REMOVAL OF SUCH

MATERIAL AND ITS RESIDUE.

(R.R. at 9a.) On December 14, 2016, a magisterial district judge found Redovan

guilty of hunting over bait under section 2308(a)(8) of the Code.

Redovan filed a summary appeal with the trial court, which held a de

novo hearing on March 30, 2017. Both Redovan and Officer Papinchak testified at

the hearing. The Commonwealth also presented the testimony of Verdean Keyser,

the chemist who tested the soil samples collected by Officer Papinchak. The

3

Commonwealth’s case-in-chief focused on attempting to prove that Redovan

violated section 2308(a)(8) of the Code by hunting in the area of the salt residue.

Following the hearing, the trial court found Redovan guilty under

section 2308(a)(8) of the Code. In its subsequent Pa.R.A.P. 1925(a) opinion, the

trial court explained its decision as follows:

I found as fact that [Redovan] was apprehended by

[Officer] Popincak [sic] while hunting within 70 yards of

an area which he, [Redovan], knew had been baited less

than 30 days prior to the date he was hunting. The record

shows that [Redovan] himself had reported baiting with

corn on August 26, 2016, and met with the game officer

on that date. Thereafter, on September 17, 2016, he

located and utilized a tree stand to harvest deer.

[Redovan] argued that the corn baiting was not his, but

that any baiting he did in the area was with salt.

However, the gravamen of the offense is not necessarily

whose bait is present within 30 days, but more

importantly the act of hunting within 30 days of a

presence of baiting.

The facts were not in serious dispute and I ruled that they

established [Redovan’s] guilt beyond a reasonable doubt.

On May 25, 2017, Redovan filed a motion for reconsideration, which the trial court

denied. On June 19, 2017, Redovan filed an uncontested petition seeking the

reinstatement of his appellate rights nunc pro tunc, which the trial court granted

that same day. This appeal followed.

4

Discussion

On appeal,2 Redovan argues that (1) the trial court erred in finding

him guilty of section 2308(a)(8) of the Code based on information not involved in

his citation; (2) the evidence presented at trial was insufficient to sustain a

conviction under section 2308(a)(8) of the Code; and (3) section 2308(a)(8) of the

Code is unconstitutionally vague, as applied, because it yields a result that is

absurd, impossible of execution, or unreasonable.

We first address whether the trial court erred in finding Redovan

guilty based on information not relating to his citation. Redovan argues that even

though he was cited for a violation stemming from salt residue under his tree stand,

he was found guilty for a violation involving the corn that he discovered and about

which he notified the Game Commission. Redovan contends that Officer

Papinchak cited him for salt residue, rather than corn, and that the

Commonwealth’s case at trial was only based on proving a violation involving the

salt residue. Redovan also maintains that although section 2308(a)(8) provides

that, upon discovery of a baited area, the Game Commission may post a reasonable

area around the baited area to advise hunters that it is unavailable for hunting, the

Game Commission did not do so here. Conversely, the Game Commission argues

that the citation provided Redovan sufficient notice that the presence of corn in his

hunting area could serve as the basis of his guilt under section 2308(a)(8).

Section 2308(a)(8) of the Code provides, in pertinent part, as follows:

[I]t is unlawful for any person to hunt or aid, abet, assist

or conspire to hunt any game or wildlife through the use

of . . . [a]ny artificial or natural bait, hay, grain, fruit, nut,

2

On appeal from a summary conviction, where the trial court has taken additional

evidence at a de novo hearing, our scope of review is limited to determining whether the trial

court abused its discretion or committed an error of law. Commonwealth v. Spontarelli, 791

A.2d 1254, 1255 n.2 (Pa. Cmwlth. 2002).

5

salt, chemical, mineral or other food as an enticement for

game or wildlife, regardless of kind and quantity, or take

advantage of any such area or food or bait prior to 30

days after the removal of such material and its residue. . .

. Upon discovery of such baited areas, whether

prosecution is contemplated or not, the [C]ommission

may cause a reasonable area surrounding the enticement

to be posted against hunting or taking game or wildlife.

The posters shall remain for 30 days after complete

removal of the bait.

34 Pa.C.S. §2308(a)(8).

We conclude that Redovan’s conviction was based on information not

properly before the trial court nor listed in the citation. The citation closely mimics

section 2308(a)(8), stating that Redovan “unlawfully hunt[ed] through the use of

any artificial or natural bait, salt, chemical, mineral or other food as an enticement

for game or wildlife . . . or [took] advantage of any such area or food or bait prior

to 30 days after the removal of such materials and its residue.” (R.R. at 9a)

(emphasis omitted). However, the citation itself must be viewed in the context of

what occurred during both Officer Papinchak’s apprehension of Redovan and at

trial, as it relates to the citation notice requirements under Pennsylvania law.

Pursuant to Rule 403(A)(6) of the Pennsylvania Rules of Criminal

Procedure, “[e]very citation shall contain . . . a citation of the specific section and

subsection of the statute or ordinance allegedly violated, together with a summary

of the facts sufficient to advise the defendant of the nature of the offense charged.”

Pa.R.Crim.P. 403(A)(6) (emphasis added). Further, “it is well-established that the

essential elements of a summary offense must be set forth in the citation so that the

defendant has fair notice of the nature of the unlawful act for which he is charged.”

Commonwealth v. Borriello, 696 A.2d 1215, 1217 (Pa. Cmwlth. 1997). Thus, “the

content of each citation, taken as a whole,” must “prevent[] surprise as to the

nature of the summary offense of which the defendant [is] found guilty at trial.”

6

Id. “[A] defendant should not have to guess which charges have been placed

against him,” because, where charges “are not clear and explicit[,] a defendant

cannot properly defend against them.” Borough of Walnutport v. Dennis, 114 A.3d

11, 21 (Pa. Cmwlth. 2015). A summary offense may be dismissed for defects in

the citation where the defendant suffered actual prejudice, which occurs if the

contents of the citation did not sufficiently notify the defendant of the nature of the

summary offense. Id.

The citation here gave no specific details about the exact infraction,

i.e., whether Redovan was cited for the use of salt bait or the pile of corn bait that

was discovered. The record indicates that Redovan had removed a salt block from

his hunting area more than 30 days before hunting the area, as required by section

2308(a)(8) of the Code. It was at this site that Redovan was apprehended while

hunting. (R.R. at 62a, 70a, 101a, 107a.) Officer Papinchak testified that when he

apprehended Redovan, he informed him that residue from salt influenced the

deer’s activities and habits and, hence, it qualified as a baited area in which

Redovan was not permitted to hunt. (R.R. at 62a-63a.) Officer Papinchak also

told Redovan that he was being cited for hunting over the area of the salt and that

he could not hunt in the area of the salt residue. (R.R. at 71a-74a.) During their

interaction, Officer Papinchak did not indicate that there was also a violation

relating to the corn. Thus, based on Officer Papinchak’s encounter with

Redovan, as well as the citation, which contains no mention of the corn pile,

Redovan had every reason to believe that he was only being cited for a violation

stemming from salt residue, which was in the area of his tree stand that he had

cleared of the salt block over 30 days prior.

Moreover, at trial, all of the evidence introduced during the

Commonwealth’s case-in-chief related to the salt residue found near the tree stand,

and not the pile of corn. See R.R. at 56a-57a, 59a-60a, 64a-65a, 75a, 78a-79a. In

7

fact, at trial, Officer Papinchak summarized his opinion of why Redovan violated

the statute, noting that Redovan “was hunting over a baited area with mineral

content in the soil that he placed there.” (R.R. at 85a) (emphasis added).

Additionally, the Commonwealth’s closing statement only discussed the salt

residue and did not mention the corn. (R.R. at 120a-21a.)

Hence, the citation did not give Redovan sufficient notice that he was

being charged for hunting in a baited area based on the placement of the corn. The

citation broadly recited section 2308(a)(8) of the Code without indicating whether

he was being charged for conduct relating to the salt residue or the corn. In light of

Officer Papinchak’s conversation with Redovan, in which he only mentioned the

salt residue, and the evidence presented by the Commonwealth at trial, Redovan

had no reason to believe he was being charged for a violation of section 2308(a)(8)

of the Code due to hunting 70 yards from the location of the former corn pile. Yet,

the trial court’s ruling inexplicably relied upon facts that did not form the basis of

either the citation or the testimony presented by the Commonwealth.

Consequently, Redovan’s citation neither gave him fair notice of the nature of the

charge nor prevented surprise at trial. Because the failure to apprise Redovan that

he was being charged for a violation stemming from the corn prevented him from

adequately defending against the charge, we must reverse the order of the trial

court.

Additionally, we are constrained to reverse based on the Game

Commission’s failure to post a “reasonable area” around the area of the corn that

Redovan discovered. As observed previously, section 2308(a)(8) of the Code

provides that upon discovery of baited areas, regardless of whether prosecution is

contemplated, the Game Commission “may cause a reasonable area surrounding

the enticement to be posted against hunting or taking game or wildlife. The

8

posters shall remain for 30 days after complete removal of the bait.” 34 Pa.C.S.

§2308(a)(8) (emphasis added).

Here, Redovan called the Game Commission to report his discovery

of a pile of corn bait that was placed 70 yards from his tree stand. (R.R. at 53a.)

According to Redovan, he reported the corn because he was concerned about a

possible baiting violation in the area of the corn. (R.R. at 98a-100a.) Officer

Papinchak responded and visited the site where the corn had been placed. (R.R. at

54a.) However, Officer Papinchak did not post a “reasonable area” around the

corn to alert hunters not to hunt in that area. (R.R. at 73a.) Redovan testified that

usually the Game Commission will tape off an area to inform hunters that an area

had been baited but, in this instance, the area of the corn was not posted to inform

hunters that hunting was not allowed. (R.R. at 102a.) Officer Papinchak returned

to that area on opening day and cited Redovan for violating section 2308(a)(8) of

the Code.

Given that Redovan attempted to comply with the Code by calling in

the possible baiting violation, it is troubling that he was later convicted of a baiting

violation for the same bait about which he notified the Game Commission. The

posting provision in section 2308(a)(8) of the Code exists in order to instruct

hunters that the Game Commission has determined that a certain area was baited

and not suitable for hunting. Without a poster, Redovan had no way of knowing

that his tree stand, located 70 yards from the corn pile that he reported, was

considered a “baited area” where he was not allowed to hunt. Thus, the better

approach would have been for the Game Commission to post a “reasonable area”

around the former location of the corn to inform hunters not to hunt in the area, as

provided for in the statute. Because of the lack of a posting of a “reasonable area”

around the corn, Officer Papinchak’s decision to apprehend Redovan for a

9

violation involving the same bait that Redovan reported amounts to a game of

“gotcha,” which requires that we overturn the conviction.

Redovan also argues that the evidence presented at trial was

insufficient to sustain a conviction under section 2308(a)(8) of the Code. Redovan

contends that the Commonwealth did not prove that he hunted over a “baited area”

and that the trial court failed to address the “reasonable hunter” standard that

applies to section 2308(a)(8) of the Code. Redovan further maintains that hunting

70 yards away from the location of the corn that he discovered and removed was

not a violation under section 2308(a)(8) of the Code and that the Commonwealth

did not adduce sufficient evidence at trial to sustain a conviction based on the corn.

Conversely, the Commonwealth argues that it presented evidence at

trial to demonstrate that Redovan was hunting in the same area of the corn within

30 days of that area being baited. It asserts that Redovan was clearly aware of the

presence of the corn and that Redovan’s tree stand was in close proximity to and in

view of the location where the corn was found. The Commonwealth notes that

Redovan testified that he called in the potential violation involving the corn

because the pile of corn he discovered was “so close” to his tree stand.

(Commonwealth’s Br. at 5.) Thus, the Commonwealth contends there is sufficient

evidence to convict Redovan under section 2308(a)(8) of the Code for hunting in

the same area as the corn bait.

We conclude that the evidence presented by the Commonwealth with

respect to the corn discovered by Redovan was insufficient to sustain a conviction

under section 2308(a)(8) of the Code. As noted previously, under section

2308(a)(8) of the Code,

it is unlawful for any person to hunt or aid, abet, assist or

conspire to hunt any game or wildlife through the use of .

. . [a]ny artificial or natural bait, hay, grain, fruit, nut,

salt, chemical, mineral or other food as an enticement

10

for game or wildlife, regardless of kind and quantity, or

take advantage of any such area or food or bait prior

to 30 days after the removal of such material and its

residue . . . .

34 Pa.C.S. §2308(a)(8) (emphasis added).

We have previously applied the “reasonable hunter” standard to

section 2308(a)(8) of the Code, concluding that a violation of section 2308(a)(8)

“occurs regardless of whether the hunter actually intends to take advantage of the

bait if he continues to hunt in an area after he knows or has reason to know that it

is a baited area.” Commonwealth v. Sellinger, 763 A.2d 525, 527 (Pa. Cmwlth.

2000) (emphasis added). In Sellinger, we noted that the law did not specify a

distance that a hunter must be from bait or a baited area before he can lawfully

hunt, but relied on a Fourth Circuit Court of Appeals decision to hold that a “baited

area” is defined “by its capacity to act as an effective lure for the particular hunter

charged with a violation of the statute.” Id. (citing United States v. Chandler, 753

F.2d 360 (4th Cir. 1985)).3

Under our section 2308(a)(8) jurisprudence, we have upheld convictions

where it was apparent that the Commonwealth proved that the baited area acted as

an effective lure for the particular hunters charged with violating the statute. See,

e.g., Commonwealth v. Ramun (Pa. Cmwlth., No. 1455 C.D. 2015, filed September

8, 2016), slip op. at 11-12 (affirming conviction where Commonwealth presented

evidence that the hunter shot a bear next to a pile of corn);4 Commonwealth v.

3

In Chandler, 753 F.2d at 362, the Fourth Circuit held that under a similar federal statute,

“[t]he extent of a ‘baited area’ is defined only by the capacity of bait placed anywhere within it

to act as an effective lure for the particular hunter charged.” Id.

4

Pursuant to this Court’s Internal Operating Procedures, an unreported opinion of the

Court filed after January 15, 2008, may be cited for its persuasive value. 210 Pa. Code

§69.414(a).

11

Comly (Pa. Cmwlth., No. 2053 C.D. 2014, filed August 27, 2015), slip op. at 6

(affirming conviction where cracked corn was placed on a trail directly in front of

and approximately 10 feet away from the blind where the hunter was observed

hunting); Commonwealth v. Donovan, 829 A.2d 759, 760-61 (Pa. Cmwlth. 2003)

(affirming conviction where shelled corn was scattered 130 feet along a deer

trail, hunter was in tree stand directly over the trail, and the closest corn was only

4 feet from the tree where the stand was located); see also Poff v.

Commonwealth, 609 A.2d 594, 594-95 (Pa. Cmwlth. 1992) (affirming conviction

where hunter was seen scattering cracked corn in front of his cabin and later

found hunting adjacent to the cabin).

Here, the trial court determined Redovan violated section 2308(a)(8)

of the Code based on its finding that Redovan “was apprehended by [Officer]

Papinchak while hunting within 70 yards of an area which[, Redovan] knew had

been baited less than 30 days prior to the date he was hunting.” (Trial court

op. at 1) (emphasis added). However, given the general lack of facts in the record

regarding the placement of the corn found by Redovan in relation to where he was

apprehended, we conclude that the Commonwealth failed to establish that the area

of the corn found by Redovan was a baited area, i.e., that it acted as an effective

lure for him.5

It is undisputed that Redovan was archery hunting when apprehended

at his tree stand. (R.R. at 72a, 98a, 101a.) The sole facts concerning the placement

of the pile of corn found by Redovan—and reported by him to the Game

Commission—in relation to where he was apprehended derives from his own

testimony. Specifically, Redovan testified that the pile of corn was approximately

5

Moreover, while Officer Papinchak testified that Redovan hunted in the area of the salt

residue, the trial court found a violation regarding the corn.

12

70 yards away from his tree stand. (R.R. at 99a, 112a.) No other evidence was

introduced regarding the placement of the corn.

Because the evidence established that Redovan was archery hunting

70 yards from the location where the corn was found and the Commonwealth

neglected to introduce any other facts regarding the placement of the corn, the

Commonwealth did not meet its burden of proof. The Commonwealth failed to

present any evidence of the type of bow or crossbow used by Redovan, the bow’s

range, whether it was possible to accurately hit a target at such a distance with the

bow used by Redovan, and/or whether a typical hunter could or would take such a

shot. Further, there was no evidence introduced on the layout of the terrain. In

particular, there was no testimony regarding the topography or vegetation of the

area, including whether the area was an open field, heavily wooded, or contained

brush, which is highly relevant to whether the corn could act as an effective lure

for Redovan. There was also no evidence on whether the location of the corn was

even visible from the tree stand or the elevation of the tree stand in relation to the

location of the corn. Due to the lack of evidence concerning the location of the

corn and the fact that Redovan was archery hunting 70 yards away from the

previous location of the bait pile, we hold that the Commonwealth failed to meet

its burden of demonstrating beyond a reasonable doubt that Redovan hunted in a

baited area, judging by its capacity to act as an effective lure.

The Commonwealth contends that the evidence supported Redovan’s

conviction based on Redovan’s testimony that the corn was “so close” to his tree

stand that he was worried about violating the statute. (R.R. at 98a.) When asked

on direct examination about the pile of corn, Redovan stated that it was not his, but

that “there was about 80 pounds of corn . . . . And since the proximity [was] so

close, because it says it is the hunter’s responsibility to take care of the area and

watch what’s going on, otherwise you assume like responsibility for that.” Id.

13

Redovan also testified that his “concern with that pile of corn” was that “[i]t was

within 70 yards of my tree stand” and that he was “concerned of a possible baiting

violation because of another potential hunter.” (R.R. at 99a-100a) (emphasis

added).

Redovan’s concern that the bait was close enough to his tree stand to

constitute a possible violation of section 2308(a)(8) of the Code does not in and of

itself establish a violation of the statute. Redovan followed the law by removing

the corn and contacting the Game Commission. In order to convict Redovan for a

violation of section 2308(a)(8), the Commonwealth was required to prove beyond

a reasonable doubt that Redovan was hunting in a “baited area.” Given the lack of

evidence that the corn bait placed 70 yards away from Redovan’s tree stand could

act as an effective lure, the Commonwealth did not meet its burden of proof.

Having concluded that the Commonwealth failed to both provide

Redovan with sufficient notice that it intended to prosecute him for a violation of

section 2308(a)(8) of the Code stemming from the corn he found and failed to

present sufficient evidence of a violation relating to the corn, we reverse the order

of the trial court.6, 7

6

In the alternative, Redovan argues that section 2308(a)(8) of the Code is

unconstitutionally vague as applied to the invisible salt residue in the soil near Redovan’s tree

stand.

Specifically, Redovan contends that while section 2308(a)(8) contains the word

“residue,” the Code does not define it or contain any explanation of bait residue removal or

remediation. Redovan argues he had no way to discern the acceptable level of salt residue

allowed in the soil or the remediation efforts required to ameliorate salt residue in the soil.

Hence, Redovan asserts that the statute, as applied, was unconstitutionally vague because he had

no way to determine what conduct was prohibited. Additionally, the statute is supposed to be

governed by the “reasonable hunter” standard, see Sellinger, 763 A.2d at 527, which would

require the trial court to find that Redovan knew or should have known that after he removed the

salt block and its visible residue, there would be residue remaining in the soil which needed to be

removed.

(Footnote continued on next page…)

14

Accordingly, for the foregoing reasons, we reverse the order of the

trial court.

________________________________

PATRICIA A. McCULLOUGH, Judge

(continued…)

However, due to our disposition of this matter on other grounds, and because Redovan

was not found guilty of baiting with salt, we will not address Redovan’s argument that section

2308(a)(8) is unconstitutionally vague.

7

We note that the Commonwealth has not requested a remand to the trial court to

reconsider whether a violation resulting from the salt residue occurred in the event we would

reverse the trial court’s conviction of Redovan stemming from the corn. Regardless, it is too late

in the proceedings for the Commonwealth to seek such action. While the Commonwealth

brought a single-count complaint against Redovan based on a violation of section 2308(a) of the

Code due to the salt residue, the trial court found a violation for the corn. In its 1925(a) opinion,

the trial court stated that it found that Redovan was apprehended while hunting within 70 yards

of an area that he knew had been baited less than 30 days prior to the date he was hunting. (Trial

court op. at 1.) The trial court observed that Redovan reported the corn bait to the Game

Commission on August 26, 2016, and hunted from his tree stand on September 17, 2017. Id.

Finally, the trial court found the following: Redovan contended “that the corn baiting was not

his, but that any baiting he did in the area was salt. However, the gravamen of the offense

is not necessarily whose bait is present within 30 days, but more importantly the act of

hunting within 30 days of a presence of baiting.” Id. at 1-2 (emphasis added).

Here, on sentencing order, although the trial court found Redovan guilty for a violation

involving the corn he discovered, and took into consideration the issue of the salt, the trial court

did not find him guilty of a violation stemming from the salt. Because the trial court’s order and

opinion indicates that it necessarily considered the issue of whether Redovan violated section

2308(a)(8) of the Code, with respect to the salt residue, and did not find him guilty of that

violation, the Commonwealth is precluded from relitigating that issue in an effort to resolve it in

a contrary way. See Commonwealth v. States, 938 A.2d 1016, 1021-22 (Pa. 2007);

Commonwealth v. Crenshaw, 470 A.2d 451, 453 (Pa. 1983). Significantly, there is nothing in

the record to remotely suggest that the trial court intended to find Redovan guilty for the salt, and

the Commonwealth did not file a post-sentence motion to modify the sentence. Therefore, even

if the trial court committed an oversight or an inadvertent error, at this point in time, the trial

court lacks the legal authority to amend or otherwise alter the sentencing order. See

Commonwealth v. Cooper, 482 A.2d 1014, 1020-21 (Pa. Super. 1984); see also Commonwealth

v. Dzvonick, 297 A.2d 912, 914-15 (Pa. 1972); Commonwealth v. Borrin, 12 A.3d 466, 473 (Pa.

Super. 2011) (en banc), aff’d, 80 A.3d 1219 (Pa. 2013).

15

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

: No. 1416 C.D. 2017

v. :

:

Joshua T. Redovan , :

Appellant :

ORDER

AND NOW, this 18th day of February, 2020, the March 30, 2017

Order of the Court of Common Pleas of Westmoreland County is hereby reversed.

________________________________

PATRICIA A. McCULLOUGH, Judge