Commonwealth v. Hilfiger

615 A.2d 452, 419 Pa. Super. 450, 1992 Pa. Super. LEXIS 3742

• Court: Superior Court of Pennsylvania
• Decided: October 29, 1992
• Docket: 636
• Status: Published

Opinions

FORD ELLIOTT, Judge:

This is an appeal from a judgment of sentence imposed August 27, 1991, following appellant’s conviction for a summary “hit and run” vehicular offense.¹ On appeal, appellant raises two issues: 1) that the applicable statute of limitations had expired and prosecution was thus time barred, and 2) that the evidence was insufficient to support the verdict. For the reasons which follow, we find appellant’s arguments unconvincing and shall, therefore, affirm the judgment of sentence.

On the morning of August 28, 1990, complainant Kim A. Kane was driving her car to work on Route 15 in Lycoming County. Soon after entering upon Route 15, complainant noticed a worn and rusted, yellow Toyota pick-up truck following closely to the rear of her vehicle. Complainant testified that the truck then attempted to pass her automobile. She averred that the truck struck her left rear and side bumper and that she was partially run off the road. The truck did not stop, but continued driving on. Complainant witnessed the license plate number and gave pursuit until the vehicles reached a point where the truck’s driver arrived at his apparent destination. At this time complainant got a brief glimpse of the driver’s hair color as well as the side of his face but was unable to see his full countenance because the driver averted his gaze when he saw complainant. Complainant described the driver as hatless and wearing sunglasses.

Complainant did not approach the truck’s driver at that time but instead continued on to work where she telephoned state police. An initial check of the license number reported, ML01982, was fruitless. However, when so informed, complainant allowed that she could have been mistaken as to the “M” and that the first letter could have been a “W.” When the police then checked WL01982, it revealed a truck owned by Spook Hollow Auto Wreckers. Thus, the state police were aware of the truck’s owner, but not operator, on or about August 28, 1990.

The police conducted no further investigation until on or about October 1, 1990, when a state trooper observed the reported vehicle and followed it back to Spook Hollow Auto Wreckers. Upon the police officer’s questioning, appellant admitted that he usually drove the truck in question but denied driving it the day of the accident and specifically denied being involved in an accident. A citation against appellant was issued the following day, October 2, 1990.

At trial, complainant positively identified appellant. Her identification was based not only upon the viewing of appellant on the date of the accident but also upon the fact that complainant and appellant had seen each other several times thereafter in their respective vehicles; both parties said that they frequently travelled Route 15. Complainant testified that on most of those occasions, appellant recognized her and “gave her the finger.”²

The presentation of appellant’s case included testimony by himself, his employer, and a co-worker. Appellant denied his involvement in any accident with complainant. He stated that he works from 8:00 a.m. until 5:00 p.m. and that he distinctly remembered being at work by 7:30 a.m. on the day in question. The accident occurred at approximately 8.T0 a.m. His employer and co-worker served to corroborate his story. They did admit that the yellow pick-up truck was sometimes driven on job-related chores during the work day. The employer could not remember whether appellant drove the truck on that day. The co-worker specifically remembered that he and appellant were running an errand in a different vehicle at the time of the accident. They also testified that appellant “always” wore a hat and almost never wore sunglasses.

Appellant’s first argument on appeal is that the statute of limitations on summary vehicular offenses had already expired when the citation was issued. The statute of limitations reads, in pertinent part:

§ 5553. Summary offenses involving vehicles

(a) General rule. — Except as provided in subsection (b) or (c), proceedings for summary offenses under Title 75 (relating to vehicles) must be commenced within 30 days after the commission of the alleged offense or within 30. days after the discovery of the commission of the offense or the identity of the offender, whichever is later, and not thereafter.

(e) Disposition of proceedings within two years. — No proceedings shall be held or action taken pursuant to a summary offense under Title 75 subsequent to two years after the commission of the offense.

42 Pa.C.S.A. § 5553(a) and (e).³ Essentially, appellant’s argument is that the police possessed sufficient information on August 28, 1990, to have been able to discover the identity of the operator and should be charged with that knowledge. Thus, the statute of limitations should have begun to run from that date and, therefore, would have expired by the time the citation was issued on October 2, 1990. This is an extrapolation from a ruling of this court in Commonwealth v. Matthews, 286 Pa.Super. 474, 429 A.2d 37 (1981), and cited by appellant. However, we believe that appellant’s suggested extension of that holding is unjustified.

In Matthews, on January 9, 1979, two cars side-swiped each other while driving on an icy road. The defendant’s automobile continued to travel for about half of a mile before it skidded off the road into a snow embankment. Before police arrived, the defendant and all of her passengers were transported to a local hospital. First, the investigating state trooper found the defendant’s driver’s license and registration in the disabled vehicle. Second, the defendant’s brother-in-law returned to the scene in order to assist police. Finally, the defendant’s husband went to the police headquarters to retrieve the defendant’s purse and was interviewed by the police. The defendant was served with her summons on February 1,1979, well beyond the 15-day limitations period in effect at that time. In Matthews, this court ruled that on January 9, the police were in possession of sufficient evidence from which the identity of the violator could be ascertained and that they were chargeable with knowledge of the defendant’s identity. Thus, the 15-day limit began to run from that date.

Instantly, we cannot say that the police had evidence on August 28, 1990, of the identity of appellant to a degree sufficient to trigger the running of the limitations period. All that the police had on that date was knowledge of a violation, a rough description of the violator, and knowledge of the ownership of the vehicle that was used in the violation. Even had the truck been registered to an individual rather than to a company, we could not say that knowledge of the owner is the same as knowledge of the operator. Moreover, if appellant is asking this court to impose some sort of due diligence requirement on the Commonwealth pertaining to the conduct of police investigations of summary vehicular offenses, we will not do so. It is clear from subsection (e) of 42 Pa.C.S.A. § 5553, which bars all prosecutions dating more than two years from the violation date, that the legislature has anticipated the potential of lengthy police investigations and has allowed the Commonwealth two years to conclude such investigations, identify and prosecute the violator. Furthermore, this court has previously interpreted this section to require not only that prosecution be commenced within two years, but completed within this time frame. See Commonwealth v. Quinn, 405 Pa.Super. 487, 592 A.2d 1316 (1991), allocatur denied, 529 Pa. 619, 600 A.2d 535 (1991), and Commonwealth v. Markley, 375 Pa.Super. 231, 544 A.2d 72 (1988).⁴

Appellant’s second argument challenges the evidence as being insufficient to support the verdict. We note our standard of review:

[ W]hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt.... The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence ... Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered ... Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. (Citations omitted)

Commonwealth v. Griscavage, 512 Pa. 540, 542, 517 A.2d 1256, 1257 (1986) (citations omitted in original), quoting Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979).

The argument contained in appellant’s brief merely points to the places in the trial transcript where his own and his witnesses’ testimony either contradicts complainant’s testimony or demonstrates that appellant could not have been the person involved in the accident, and that such evidence should have served to raise a reasonable doubt. What appellant ignores is that the trier of fact is free to disbelieve this testimony in full. The trier of fact may simply have chosen to believe the account given by the complainant. This is precisely what the trial court, as trier of fact, apparently did, as witnessed by its opinion of June 11,1991, rejecting appellant’s argument for reconsideration based on a sufficiency of evidence ground. We likewise agree that the complainant’s testimony sufficiently established the elements of the crime of which appellant was convicted. Complainant testified that an accident occurred in which her vehicle was struck (Notes of testimony, 3/20/91, page 5). She testified that her vehicle was being driven or otherwise attended at the time of the accident (Notes of testimony, 3/20/91, pages 4-5). She testified that her car was damaged as a result (Notes of testimony, 3/20/91, page 7). She positively identified appellant as the operator of the other vehicle (Notes of testimony, 3/20/91, pages 7-8). Finally, complainant testified that at no time did appellant stop and identify himself or offer assistance (Notes of testimony, 3/20/91, page 6). Thus, a prima facie case under 75 Pa.C.S.A. § 3743 was made out by the Commonwealth. We find that appellant’s second argument affords him no relief.

Accordingly, the judgment of sentence August 27, 1991, is hereby affirmed. Jurisdiction relinquished.

BROSKY, J., files a dissenting opinion.

1 . 75 Pa.C.S.A. § 3743. "Hit and run” is a colloquial description of the violation. Technically, a violator must not leave the scene of an accident involving an attended vehicle, without giving information and rendering aid as per § 3744, and in which damage to a vehicle or other property occurred.

2 . A widely recognized gesture of hostile contempt.

3 . Subsection (a) is somewhat poorly drafted. The initial clause describes three optional happenstances which cause the statute to begin to run. Unfortunately, the modifying clause, "whichever is later,” is comparative in form. With three or more options, the superlative form, "whichever is latest,” should more properly have been employed. The use of the comparative is confusing because it implies a choice between two options rather than among three. Nevertheless, we have previously considered this section to present three happenstances from which the limitation period could begin to run rather than two. See Commonwealth v. Larson, 299 Pa.Super. 252, 445 A.2d 550 (1982).

4 . Markley has been partially overruled by Quinn. Quinn held that the statute of limitations described at 42 Pa.C.S.A. § 5553(e) is tolled where prosecution cannot be completed because of delay directly attributable to the accused.