Com. v. Smolow

• Decision Date: 08 June 1987
• Citation: 527 A.2d 131,364 Pa.Super. 20
• Parties: COMMONWEALTH of Pennsylvania v. Ronald Jay SMOLOW, Appellant. 1364 Phila. 1986
• Court: Pennsylvania Superior Court

Page 131

527 A.2d 131

364 Pa.Super. 20

COMMONWEALTH of Pennsylvania v. Ronald Jay SMOLOW, Appellant.

1364 Phila. 1986

Superior Court of Pennsylvania.

Argued Jan. 15, 1987.

Filed June 8, 1987.

[364 Pa.Super. 22] Ronald J. Smolow, Bensalem, appellant, in pro. per.

Caren J. Fox, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.

OPINION OF THE COURT

ROWLEY, Judge:

Appellant was convicted at a hearing de novo in the Court of Common Pleas of Philadelphia County of violating § 3362(a)(2) of the Motor Vehicle Code (speeding), 75 Pa.C.S. § 3362(a)(2). Following denial of his post-trial motions, appellant was sentenced to pay a fine and costs totalling $117. Appellant then filed this timely appeal in which he seeks to have the judgment of sentence reversed. ¹

Briefly, the facts of the case are that on October 9, 1985, a Philadelphia Police Officer noticed that appellant was driving at what appeared to be an excessive rate of speed. Using a VASCAR-plus speed-timing device (hereafter "VASCAR"), the officer determined that appellant was proceeding at 84.1 m.p.h. in a posted 55 m.p.h. zone. The officer then stopped appellant and issued him a citation for speeding.

On appeal, appellant contends that the trial court erred in failing to find that VASCAR is an electronic device and thus, authorized for use only by the Pennsylvania State Police. Since the arresting officer was not a member of the State Police, he claims, the use of the VASCAR unit was unauthorized and his conviction must be reversed. In support of his argument, appellant cites § 3368(c)(2) of the Motor Vehicle Code, which provides, in part, that "(e)lectronic devices ... may be used only by members of the Pennsylvania State Police ...," (emphasis added), and our Supreme Court's holding in Commonwealth v. DePasquale, 509 Pa. 183, 501 A.2d 626 (1985).

In DePasquale the Court concluded that the ESP device used in that case was an electronic device. As such, the Court held, its use by a local police officer was prohibited by § 3368(c)(2). The Court then reversed the appellant's conviction. At the appellant's trial in DePasquale, the Commonwealth relied on a regulation of PennDot that classified the ESP machine used by the local police as an electrical device. The defendant, DePasquale, however, presented the testimony of an electrical engineer who expressed his opinion, contrary to PennDot's regulation, that the ESP machine used there was in fact an electronic device rather than an electrical device. The Supreme Court concluded, on the basis of the engineer's testimony, which it characterized as "reliable" and "uncontradicted," that the Department's regulation was not dispositive and held that the ESP machine was an electronic device and reversed DePasquale's conviction. ²

In the case now before us the Commonwealth also relied on a Departmental regulation that classified the VASCAR machine as an electrical-mechanical device [15 Pa.Bull. 321 (1985) ]. Thus it was authorized for use by the local police. ³ In contrast to DePasquale, however, the appellant presented no expert or scientific evidence regarding the nature of the VASCAR machine. Appellant claims first that because VASCAR has a computer and a digital readout in which numerals appear on a screen in "little whips of light," it is an electronic device, and, therefore, its use by the local police was unauthorized. However, the only evidence provided in the record regarding the scientific nature of VASCAR was the testimony of the police officer, on cross-examination by appellant, who issued the citation and who candidly admitted that he was not an expert in electronics (N.T., p. 16), nor had he had any training in electronics, mechanics or computers (id. at 30). This evidence in itself is insufficient to prove that VASCAR is an electronic, as opposed to an electrical or mechanical, device.

Appellant suggests, however, that we use common sense and apply, by analogy, the reasoning of DePasquale to the instant case. We decline this invitation for two reasons. First, DePasquale involved the use of the TK-100, Excessive Speed Preventor (ESP), not VASCAR. Second, appellant cannot rely on the expert evidence provided to the court in another case to support his theory in the instant case. "A court is bound to decide the case before it based upon the evidence presented to it by the parties; it has no authority to seek out additional testimony in the records of unrelated cases on the matters at issue before it." DePasquale at 190, n. 4, 501 A.2d at 630, n. 4. Thus, we find that based on the record before it, the trial court did not have sufficient information to determine whether the VASCAR unit used in this case was an electronic or an electrical device.

However, PennDot had consistently classified VASCAR as an electrical-mechanical device prior to and at the time of appellant's offense [see 10 Pa.Bull. 3212 (1980); 14 Pa.Bull. 1112 (1984); 15 Pa.Bull. 321 (1985) ]. Therefore, the local police were justified in using the VASCAR device. Thus, as in DePasquale, the burden was on appellant to present evidence to support his claim that the VASCAR unit was, contrary to the Department's classification, an electronic device. In the absence of sufficient scientific evidence to rebut the Department's classification and establish that VASCAR is an electronic device, appellant's argument fails. Appellant is therefore entitled to no relief on this issue.

Appellant next contends that the trial court erred in admitting evidence of his speed based upon the VASCAR reading since the speedometer in the patrol car in which VASCAR was used had not been certified as accurate. We find no merit to this argument. The VASCAR unit itself was properly calibrated and there is no evidence that the...