Com. v. Kittelberger

• Decision Date: 28 October 1992
• Citation: 616 A.2d 1,420 Pa.Super. 104
• Parties: COMMONWEALTH of Pennsylvania v. James M. KITTELBERGER, Appellant.
• Court: Pennsylvania Superior Court

Page 1

616 A.2d 1

420 Pa.Super. 104

COMMONWEALTH of Pennsylvania v. James M. KITTELBERGER, Appellant.

Superior Court of Pennsylvania.

Argued Aug. 25, 1992.

Filed Oct. 28, 1992.

James A. Hickey, McMurray, for appellant.

Edward M. Clark, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before DEL SOLE, KELLY and BROSKY, JJ.

BROSKY, Judge.

This is an appeal from the judgment of sentence ¹ entered following appellant's conviction for driving in excess of the speed limit. ² The sole issue presented for our review is whether the Commonwealth sustained its burden of proving that the speed timing device utilized was of a type that had been approved by the Pennsylvania Department of Transportation (PennDoT) where the only evidence offered by the Commonwealth relating to this matter was the certificate of accuracy. For the reasons set forth below, we reverse the judgment of sentence and discharge appellant.

Before addressing the issue raised by appellant, we will briefly recount the relevant facts giving rise to this appeal. Appellant, James Kittelberger, was driving on interstate 79 during the late evening hours of November 14, 1990 when he was observed by Trooper Robert Rendar to be traveling in excess of the posted speed limit. ³ As a result, appellant was given a speeding citation. Appellant contested his guilt and a hearing was held before a district justice on February 20, 1991 following which appellant was convicted. A timely appeal from the summary conviction was then taken. A trial de novo was held on July 1, 1991. After the close of his case, appellant challenged the sufficiency of the Commonwealth's evidence as it related to the proof of approval of the radar gun by PennDoT. The trial court rejected appellant's argument and again adjudged appellant guilty. Appellant was then immediately sentenced to pay a fine of $68.00. Post-trial motions, which renewed appellant's objection to the insufficiency of the Commonwealth's evidence, were timely filed and denied. ⁴ This appeal followed. ⁵

Appellant questions whether the Commonwealth sustained its burden of proving that the speed timing device in this case was of a type which had been approved by the Pennsylvania Department of Transportation. In addressing this issue,

we note that our scope of review ..., where the lower court has heard the case de novo, is to determine whether or not the findings of fact are supported by competent evidence and to correct conclusions of law erroneously made. Also, the action of the lower court will not be disturbed on appeal except for [a] manifest abuse of discretion.

Commonwealth v. Gussey, 319 Pa.Super. 398, 402, 466 A.2d 219, 221 (1983) (citations omitted). We further recognize that the question raised by appellant presents a challenge to the sufficiency of the Commonwealth's evidence. In reviewing matters of this type, the test is:

[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.

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986), quoting Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 538-539 (1979). We will evaluate appellant's claim and the decision of the lower court with these principles in mind.

To sustain a conviction for speeding, the Commonwealth must show beyond a reasonable doubt that: (1) an accused was driving in excess of the speed limit; (2) the speed timing device was approved by the Department of Transportation; and (3) the device was calibrated and tested for accuracy within the prescribed time period by a station which has been approved by the department. 75 Pa.C.S.A. § 3362(a) and § 3368(a)-(e); Commonwealth v. Hamaker, 373 Pa.Super. 510, 513, 541 A.2d 1141, 1142 (1988). Because only the Commonwealth's proof relating to approval by the department is in dispute, we will focus our analysis on this element. ⁶

In sustaining its burden of proof, the Commonwealth need not produce a certificate from PennDoT which expressly indicates approval of a particular speed timing device. Rather, the legislature has considerably lessened the Commonwealth's evidentiary burden by enabling the courts to take judicial notice of the fact that the device has been approved by PennDoT, provided that the approval has been published in the Pennsylvania Bulletin. See 45 Pa.C.S.A. § 506 (providing for judicial notice) and §§ 724-725 (requiring Commonwealth agency regulations to be published in the Pennsylvania Bulletin); 75 Pa.C.S.A. § 3368(d) (requiring PennDoT to classify and approve speed timing devices by regulation).

As applied here, the certified record identified the radar gun used to measure appellant's speed as a Falcon. N.T. 7/1/91 at 4-5. PennDoT has approved Falcon radar guns for use by the Pennsylvania State Police. 19 Pa.Bull. No. 50, Part I, at 5346 (December 16, 1989). Consequently, the Commonwealth could have established the requisite element of approval in this case merely by asking the lower court to take judicial notice of the fact that the department's approval of the Falcon radar gun was published in the Pennsylvania Bulletin. 45 Pa.C.S.A. § 506. The Commonwealth concedes, and our own review of the certified record confirms, that the Commonwealth did not expressly ask the lower court to take judicial notice of the department's approval of the Falcon radar gun. However, the Commonwealth maintains that it satisfied its evidentiary burden by introducing the certificate of accuracy.

The approach now urged by the Commonwealth was expressly rejected by the Pennsylvania Supreme Court in Commonwealth v. Perdok, 411 Pa. 301, 192 A.2d 221 (1963). In Commonwealth v. Perdok, the Commonwealth presented an argument which is virtually identical to that raised here in which it was suggested that the certificate of accuracy was sufficient to prove that the secretary had approved of the radar device. ⁷ In declining to adopt the Commonwealth's reasoning, our Supreme Court interpreted the Vehicle Code as only authorizing the admission of the certificate of accuracy to prove that the radar had been tested for accuracy and calibrated within the requisite time period prescribed by the statute. Commonwealth v. Perdok, 411 Pa. at 305, 192 A.2d at 224. The Supreme court then held that because the certificate of accuracy only proved the accuracy of the radar, additional proof of approval of the type of radar device was necessary to sustain a conviction for speeding. Id., 411 Pa. at 306-307, 192 A.2d at 225.

This court applied the same analysis employed in Commonwealth v. Perdok to a speeding conviction that arose under the Vehicle Code of 1976 and observed that "[s]ection 3368(d) only confers admissibility on the certificate of accuracy to prove the test was made within the required period and that the device was accurate. It does not, however, extend use of the certificate to proving approval of the type of device itself." Commonwealth v. Nardei, 278 Pa.Super. 420, 422, 420 A.2d 612, 613 (1980) (emphasis in original). The Commonwealth, however, suggests that Commonwealth v. Nardei was wrongly decided because it relied upon Commonwealth v. Perdok. The essence of the Commonwealth's contention is that Commonwealth v. Perdok and its progeny are distinguishable because Perdok was decided under the Vehicle Code of 1959, which was subsequently repealed by the Vehicle Code of 1976. Notwithstanding the Commonwealth's argument to the contrary, we find this to be a distinction without a difference.

The Vehicle Code of 1959, as amended by the Act of April 28, 1961, P.L. 108, No. 48, § 2, codified at 75 P.S. § 1002(d.1)(1), first permitted the state police to utilize radar to measure a motorist's speed. The 1961 amendment further provided that no conviction could be maintained by use of radar unless the device had been specifically approved by the Secretary of Revenue and had been calibrated and tested for accuracy within the requisite time period by an official testing station appointed by the secretary. Id., codified at 75 P.S. 1002(d.1)(1) and (2). As noted by the Commonwealth, the Vehicle Code of 1959 and the amendments thereto were subsequently repealed by the Vehicle Code of 1976. Act of June 17, 1976, P.L. 162, No. 81, § 7.

Although the prior act was repealed, the Vehicle Code of 1976 re-enacted a provision which was substantially similar to that contained in the former act. Specifically, the 1976 version of the Vehicle Code continued to require proof of approval of the speed timing device by the Pennsylvania Department of Transportation as well as proof of calibration and testing for accuracy by a testing station that was appointed by the department. Act of June 17, 1976, P.L. 162, No. 81, § 1, codified at 75 Pa.C.S.A. § 3368(d). The primary difference in the requirements of the provisions of the vehicle codes thus appears to be that the 1976 Vehicle Code substituted the Department of Transportation in place of the Secretary of Revenue as the government unit responsible for approving the type of radar or other speed timing devices which are to be used by the police. As demonstrated by a comparison of the two versions of the Vehicle Code, the essential elements which the Commonwealth must prove to sustain a speeding conviction have remained unchanged. We therefore find the purported distinction posited by the Commonwealth to be...