Commonwealth v. Martorano

563 A.2d 1229, 387 Pa. Super. 151, 1989 Pa. Super. LEXIS 2567

Opinions

OLSZEWSKI, Judge:

Appellant, Anthony Martorano, appeals from a judgment of sentence entered by the Court of Common Pleas of Philadelphia County sustaining the traffic court’s imposition of a fine following appellant’s conviction for speeding. For reasons delineated below, we vacate the judgment of sentence and discharge appellant.

During the early morning hours of June 19, 1986, Officer Patrick Taylor of the Philadelphia Police Department parked his patrol car, which was equipped with a speed timing device known as “Vascar,” on the the Betsy Ross Bridge exit ramp onto Interstate 95. While so situated, Officer Taylor observed appellant traveling at a high rate of speed on the Bridge Street exit; moreover, a Vascar reading indicated that appellant had been traveling at an average speed of 71.81 miles per hour in a 25-miles-per-hour zone. The officer subsequently apprehended appellant and issued a traffic citation for appellant’s violation of 75 Pa.C. S.A. § 3362(a)(3).¹

On April 17, 1987, appellant was convicted as charged in traffic court. Appellant appealed the conviction to the court of common pleas, which convened a de novo hearing on May 1, 1987. At the hearing, the Commonwealth submitted a copy of the original certificate of accuracy of the Vascar unit operated by Officer Taylor. Counsel for appellant objected on the grounds that photocopies are inadmissible pursuant to this Court’s ruling in Commonwealth v. Cummings, 338 Pa.Super. 149, 487 A.2d 897 (1985).² In order to provide the Commonwealth with the opportunity to obtain the original document, the Honorable Joseph D. O’Keefe continued the hearing until June 10, 1987. At that time, however, the Commonwealth was still unable to supply the original certificate. Nonetheless, the Commonwealth urged that failure to comply with Cummings was not fatal to its case, arguing that:

The fact that the certificate of accuracy is not here just means that the Commonwealth didn’t prove prima faciely [sic] with that certificate, but the testimony and the routine course and practice clearly prove that this man was speeding both under the Vacar [sic] and under the officer’s observation.

Transcript at 26.

The trial court, over defense counsel’s objection, admitted the evidence obtained through operation of the Vascar unit and appellant was convicted of violating § 3362(a)(3). Post-verdict motions were filed and denied on July 16, 1987. In it’s opinion issued pursuant to Pa.R.A.P. 1925(a), however, the de novo court acknowledged that “[Appellant’s] contentions ... relating to the production of the Original Certificate of Accuracy and to the approvals of the Vascar Unit and testing station by the Pennsylvania Department of Transportation are supported under the law. Absent [the] requisite foundational facts regarding the calibration and approval of Vascar Unit NO. 2054 and the approval of the EM2 testing station, the speed of Mr. Martorano’s automobile, as it was clocked by the Vascar Unit, cannot properly be sustained as competent evidence.” Opinion at 5. Nonetheless, Judge O’Keefe found that there was sufficient evidence independent of the Vascar reading to support appellant’s conviction. Citing Officer Taylor’s experience, including the fact that he had issued approximately fifteen to twenty thousand speeding citations during his more than sixteen-year tenure with the police force, the court maintained “that the opinion testimony of Officer Taylor is, itself, sufficient to uphold the speeding conviction of Mr. Martorano.” Opinion at 9. This appeal followed.

Appellant raises two issues for our review:

1. Did the Lower Court err when it found the appellant guilty of speeding, 75 Pa.C.S.A. Section 3362(a)(3), where the Commonwealth failed to submit into evidence an original certificate of accuracy for the speed timing device, and where the Commonwealth further failed to introduce any competent evidence, independent of the certificate of accuracy, to show that the speed timing device used by the police officer was approved for use by the Pennsylvania Department of Transportation and further that a testing facility appointed and approved by the Commonwealth tested the machine in accordance with the requirements of 75 Pa.C.S.A. Section 3368(d) of the vehicle code.

2. Did the Lower Court err when it found appellant guilty of speeding solely based on the police officer’s opinion testimony as to speed.

Appellant’s brief at 2.

We are faced with deciding the issue, previously not addressed in appellate courts of this Commonwealth, of whether a police officer’s opinion testimony is sufficient grounds upon which to base a speeding violation pursuant to 42 Pa.C.S.A. § 3362. In so doing, we are guided by 75 Pa.C.S.A. § 3368, in which our legislature established comprehensive guidelines governing the implementation and maintenance of speed timing devices.

(c) Mechanical, electrical and electronic devices authorized.—

(1) Except as otherwise provided in this section, the rate of speed of any vehicle may be timed on any highway by a police officer using a mechanical or electrical speed timing device.

(2) Except as otherwise provided in paragraph (3), electronic devices such as radio-microwave devices (commonly referred to as electronic speed meters or radar) may be used only by members of the Pennsylvania State Police.

(3) Electronic devices which calculate speed by measuring elapsed time between measured road surface points by using two sensors and devices which measure and calculate the average speed of a vehicle between any two points may be used by any police officer.

(4) No person may be convicted upon evidence obtained through the use of devices authorized by paragraphs (2) and (3) unless the speed recorded is six or more miles per hour in excess of the legal speed limit. Furthermore, no person may be convicted upon evidence obtained through the use of devices authorized by paragraph (3) in an area where the legal speed limit is less than 55 miles per hour if the speed recorded is less than ten miles per hour in excess of the legal speed limit. This paragraph shall not apply to evidence obtained through the use of devices authorized by paragraph (3) within a school zone.

As amended 1985, July 11, P.L. 204, No. 52, § 3, imd. effective; 1986, March 27, P.L. 71, No. 24, § 2, imd. effective.

(d) Classification, approval and testing of mechanical, electrical and electronic devices. — The department may, by regulation, classify specific devices as being mechanical, electrical or electronic. All mechanical, electrical or electronic devices shall be of a type approved by the department, which shall appoint stations for calibrating and testing the devices and may prescribe regulations as to the manner in which calibrations and tests shall be made. The certification and calibration of electronic devices under subsection (c)(3) shall also include the certification and calibration of all equipment, timing strips and other devices which are actually used with the particular electronic device being certified and calibrated. The devices shall have been tested for accuracy within a period of 60 days prior to the alleged violation. A certificate from the station showing that the calibration and test were made within the required period, and that the device was accurate, shall be competent and prima facie evidence of those facts in every proceeding in which a violation of this title is charged.

As amended 1986, March 27, P.L. 71, No. 24, § 2, imd. effective.

(e) Distance requirements for use of mechanical, electrical and electronic devices. — Mechanical, electrical or electronic devices may not be used to time the rate of speed of vehicles within 500 feet after a speed limit sign indicating a decrease of speed. This limitation on the use of speed timing devices shall not apply to speed limit signs indicating school zones, bridge and elevated structure speed limits, hazardous grade speed limits and work zone speed limits.

Added 1985, July 11, P.L. 204, No. 52, § 3, imd. effective.

“In order to properly ascertain the meaning of a statute, we are required to consider the intent of the Legislature.” Commonwealth v. Stewart, 375 Pa.Super. 585, 592, 544 A.2d 1384, 1388 (1988). “The polestar of statutory construction is to ascertain and effectuate the intention of the General Assembly.” Bronchik v. Commonwealth, Department of Transportation, 101 Pa.Commw. 231, 233, 515 A.2d 1045, 1046 (1986), citing 1 Pa.C.S. § 1921(a); Mt. Laurel Racing Association v. Zoning Hearing Board, Municipality of Monroeville, 73 Pa.Commw. 531, 458 A.2d 1043 (1983). There is a presumption under under Section 1922(2) of the Statutory Construction Act of 1972, 1 Pa.C.S. § 1922(2), that the legislature intended the whole statute to be effective and certain. Commonwealth, Department of Environmental Resources v. Pennsylvania Mines Corporation, 102 Pa.Commw. 452, 457-60, 519 A.2d 522, 525-26 (1986). Moreover, we are to presume that the General Assembly did not intend a result that is absurd or unreasonable. Stewart, supra, quoting 1 Pa.C.S. § 1921(a); see also Lehigh Valley Cooperative Farmers v. Commonwealth, Bureau of Employment Security Department of Labor and Industry, 498 Pa. 521, 526, 447 A.2d 948, 950 (1982) (citations omitted).

Applying these tenets to 75 Pa.C.S.A. § 3368, we conclude that because the Legislature enacted detailed and specific instructions regarding use and maintenance of speed timing devices in this Commonwealth, it would be impermissible for us to sanction circumvention of those provisions. Therefore, we hold that in order to sustain a speeding conviction under 75 Pa.C.S.A. § 3362, the Commonwealth must present evidence which would satisfy the requirements of 75 Pa.C.S.A. § 3368. As a consequence, we also hold that a police officer’s uncorroborated testimony as to speed is insufficient to support a conviction for violating Section 3362.

In support of its position that a police officer’s estimation of speed, absent an exact measurement from a speed timing device, is legally sufficient to establish a speeding violation, the Commonwealth cites Commonwealth v. Monosky, 360 Pa.Super. 481, 520 A.2d 1192 (1987). We, however, find Monosky distinguishable from the case at bar. In Mono-sky, the appellant was charged with violating 75 Pa.C.S.A. § 3361 (driving vehicle at safe speed) as opposed to 75 Pa.C.S.A. § 3362 (maximum speed limits). A panel of this Court held that the opinion testimony of police officers who observed appellant’s driving was sufficient to establish a violation of the statute. Section 3361 provides as follows:

§ 3361. Driving vehicle at safe speed

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around curve, when approaching a hill crest, when travelling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

Section 3361 does not require that a specific speed limit must be exceeded in order for a violation to occur. Conversely, it is necessary to prove, as an element of a 75 Pa.C.S.A. § 3362 violation, that the offender exceeded a posted speed limit. This requirement, by definition, entails greater specificity with respect to the driver’s actual speed than would a case involving 75 Pa.C.S.A. § 3361. Accordingly, we find Monosky inapplicable to the instant situation.

Finding no precedent in this Commonwealth, our sister jurisdictions provide guidance in resolving this issue. While not controlling, we find City of Kansas City v. Oxley, 579 S.W.2d 113 (Mo.1979), to be factually analogous and to provide instructive and compelling rationale. In Oxley, the appellant was convicted of exceeding the posted speed limit. The Supreme Court of Missouri, sitting en banc, observed that, “The only evidence ... from which the court, as the trier of facts, could have found the defendant, Oxley, guilty of speeding was that the officer, based on his experience as a police officer, arrived at a speed that he believed to be approximately ten miles over the posted speed limit of 85 m.p.h.” Id. at 114. The prosecution had attempted to submit evidence which had been obtained through the use of radar, but was unsuccessful in its efforts. Thus, the only weapon remaining in its arsenal was the opinion testimony of the arresting officer. After stating that the violation had “criminal overtones” and that guilt had to be proven beyond a reasonable doubt, the Missouri court held that, under the circumstances, “the testimonial opinion of the officer as to the defendant's rate of speed is not substantial evidence upon which to support a finding of guilt.” Id. at 116.³

Similarly, the Missouri Court of Appeals, in City of Jackson v. Langford, 648 S.W.2d 927 (Mo.Ct.App.1988), cited a substantial body of case law in support of the proposition that radar had long been accepted as a means of speed detection in that jurisdiction. The appellant in Lang-ford had been convicted of speeding. After finding that the prosecution had failed to establish the accuracy and proper operation of the radar unit that had provided evidence in support of the conviction, the court held that the opinion testimony of two officers that the appellant had been speeding “[did] not constitute sufficient substantial evidence to find defendant guilty beyond a reasonable doubt.” Id. at 930, citing Oxley, supra.⁴

While a review of the foregoing cases provides support for our resolution of the instant matter, we need look no further than 75 Pa.C.S.A. § 3368 in order to conclude that the Pennsylvania Legislature fully intended to require the use of speed timing devices when a driver is charged with violating 75 Pa.C.S.A. § 3362. We find, therefore, that the trial court erred in accepting Officer Taylor’s uncorroborated testimony regarding appellant’s speed as sufficient to convict appellant of violating 75 Pa.C.S.A. § 3362.⁵

We vacate the judgment of sentence and discharge appellant. Jurisdiction relinquished.

ROWLEY, J., files dissenting statement. JOHNSON, J., files dissenting opinion in which POPOVICH, J., joins.

1 . The statute provides as follows:

3362. Maximum speed limits

(a) General rule. — Except when a special hazard exists that requires lower speed for compliance with section 3361 (relating to driving vehicle at safe speed), the limits specified in this subsection or established under this subchapter shall be maximum lawful speeds and no person shall drive a vehicle at a speed in excess of the following maximum limits:

(1) 35 miles per hour in any urban district.

(2) 55 miles per hour in other locations.

(3) Any other maximum speed limit established under this sub-chapter.

2 . In Cummings, a panel of this Court held that a photocopy of a certificate of accuracy was not admissible under the statutory hearsay exception for business and public records, 42 Pa.C.S.A. § 6109(b), and, therefore, was not admissible because it could not be authenticated by the testifying police officer who had not seen the original certificate. Similarly, in the instant case, Officer Taylor offered no testimony to establish the authenticity of the photocopy.

3 . We note that the Oxley court made no mention of any statutory provision similar to 75 Pa.C.S.A. § 3368 that governed the use of speed timing devices.

4 . In a footnote to this section, the Langford court stated that "Some writers have suggested that a speeding case can never be made with opinion evidence alone. We do not read Oxley that broadly.” 648 S.W.2d 927, 930 n. 3. Indeed, it would appear that the Oxley court could conceive of a case in which opinion testimony might be sufficient to support a conviction; the court, however, placed great emphasis on the fact that it was dealing with a criminal proceeding "where the standard of proof is of a higher caliber [than in civil cases].” 579 S.W.2d at 116. Moreover, the court emphasized that "under these facts” the opinion testimony was insufficient. Id. (emphasis supplied). This language leads us to conclude that while the Supreme Court of Missouri could envision a situation in which such testimony might be sufficient, a case involving criminal sanctions for speeding did not present that particular situation.

5 . We note that it is possible that other charges may have been brought pursuant to which Officer Taylor may have testified as to speed in order to establish conditions that would have brought appellant’s offense within the purview of the particular statute. See, e.g., Mono-sky, supra; Commonwealth v. Dandar, 249 Pa.Super. 327, 378 A.2d 319 (1977).