Com. v. Vishneski

• Decision Date: 06 January 1989
• Citation: 552 A.2d 297,380 Pa.Super. 495
• Parties: COMMONWEALTH of Pennsylvania v. Jerome R. VISHNESKI, Appellant.
• Court: Pennsylvania Superior Court

Page 297

552 A.2d 297

380 Pa.Super. 495

COMMONWEALTH of Pennsylvania v. Jerome R. VISHNESKI, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 15, 1988.

Filed Jan. 6, 1989.

Frank W. Hayes, West Chester, for appellant.

Thomas J. Wagner, Asst. Dist. Atty., Phoenixville, for Com., appellee.

Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.

OLSZEWSKI, Judge:

This is an appeal from judgment of sentence in the Court of Common Pleas of Chester County entered against appellant for violation of 75 Pa.C.S.A. § 3361. Appellant contends that the trial court erred in: (1) admitting into evidence the arresting officer's testimony regarding a VASCAR-Plus unit speed-timing taken over a distance of less than one-tenth mile, and (2) finding appellant guilty of 75 Pa.C.S.A. § 3361. For the reasons below, we affirm the trial court.

On March 22, 1987, appellant was driving north on Route 202 between Paoli Pike and Route 322 in Chester County. Officer Miller observed appellant's car in front of him traveling at a high rate of speed. Consequently, Officer Miller followed appellant's car for a distance of 0.0938 mile and timed the vehicle using a VASCAR-Plus speed-timing device. Appellant's car was timed at 84.5 miles per hour in a 55 mile per hour zone. Thereafter, Officer Miller arrested appellant and charged him with violation of 75 Pa.C.S.A. § 3361, driving vehicle at unsafe speed.

Appellant was found guilty by the District Justice and appealed to the Court of Common Pleas. After a de novo trial, appellant was found guilty. Following denial of post-trial motions, appellant was sentenced to pay the statutory fine of $25, plus court costs and the statutory emergency fund fine of $10. This timely appeal follows.

Appellant first maintains that the trial judge erred in admitting into evidence the arresting officer's testimony regarding a VASCAR-Plus unit speed reading taken over a distance of less than one-tenth mile. Specifically, appellant contends that the testimony is inadmissible because the procedure used by the arresting officer is contrary to the one-tenth mile calibration requirement found in 67 Pa.Code § 105.95 and contrary to the holding of Commonwealth v. Alexion, 33 Ches.Co.Rep. 37 (1984). In Alexion, supra, the trial court "[found] the 1/10 of a mile calibration to be reasonable and conclude[d] that it should also apply, as a minimum standard, to the use of VASCAR-PLUS." Id. at 38.

In reviewing appellant's contention, we turn to the applicable statutory provisions to determine the legislative intent regarding the use of a VASCAR-Plus unit. In ascertaining the legislature's intent, we are mindful that "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit," 1 Pa.C.S.A. § 1921(b), and "[e]very statute shall be construed, if possible, to give effect to all its provisions." 1 Pa.C.S.A. § 1921(a). Section 3368 of the 1976 Vehicle Code, as amended, governs the use of speed-timing devices and reads in pertinent part:

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

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(3) Electronic devices which calculate speed by measuring elapsed time between measured rod 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 [section 3368(c)(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 [section 3368(c)(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 [section 3368(c)(3) ] within a school zone.

(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 [section 3368(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.

(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.

75 Pa.C.S.A. § 3368(c)-(e).

In accordance with Section 3368(d), the Department of Transportation has issued regulations classifying speed-timing devices and providing for the certification and calibration of these devices. The VASCAR-Plus unit has been classified as a electronic speed-timing device (nonradar) which calculates average speed between any two points. See 17 Pa.Bulletin 453 (January 24, 1987); Commonwealth v. Smolow, 364 Pa.Super. 20, 25 n. 3, 527 A.2d 131, 134 n. 3 (1987) (Department of Transportation has reclassified VASCAR as an electronic speed-timing device and approved its use by any police officer.). Moreover, the Department of Transportation has issued regulations in accordance with 75 Pa.C.S.A. § 3368(d) regarding the calibration and testing of electronic speed-timing devices such as the VASCAR-Plus unit. Appellant specifically refers us to 67 Pa.Code § 105.95(a)(4) which reads:

(a) Method. An electronic device governed by this subchapter shall be calibrated and tested as follows:

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(4) A course other than a 1/4 mile can be used, but not less than 1/10 mile.

In reviewing the statutory scheme, we find that the legislature did not indicate a minimum distance requirement for the use of a VASCAR-Plus unit nor did it provide the Department of Transportation with the authority to regulate the use of the unit by imposing a distance requirement. Contrary to appellant's contention, 67 Pa.Code § 105.95(a)(4) does not specify a minimum distance requirement for use of the VASCAR-Plus unit. Instead, it sets forth the method to calibrate and test an electronic unit.

In Alexion, supra, the defendant, appealing from a summary speeding conviction, contended that the timing of his car by a VASCAR-Plus unit over a distance of less than one-tenth mile was "so fraught with unreliability as to be incapable of sustaining a conviction beyond a reasonable doubt." Id. at 37. The trial court agreed. It reasoned that the VASCAR-Plus unit, a device which measures both the distance and the time necessary for a vehicle to pass over a particular distance, is subject to human error because "there is an inevitable lag between the time the operator thinks he sees the driver begin and end the measured distance and when he actually trips and untrips the device." Id. In light of this potential for human error, the court found that it was necessary to establish a minimum distance requirement for use of the unit, and turned to 67 Pa.Code § 105.95(a)(4) for guidance. Finding that the Department of Transportation requires the calibration of " 'electrical-mechanical' speed devices" over a distance of no less of one-tenth of a mile, the trial court concluded that it is important that such devices be operated, as well as calibrated, over the minimum distance set forth in the regulation. In reaching this conclusion, the trial court in Alexion, supra, improperly imposed a requirement that was not intended by the legislature. It is evident from the statutory provisions that the legislature considered the possibility of human error and sought to minimize it, not by imposing a minimum distance requirement for operation of an electronic device, but by requiring: (1) approval of the devices by the Department of Transportation; (2) calibrating and testing of the devices for accuracy, and (3) appointment of stations for calibrating and testing. Thus, the trial court in Alexion, supra, created a requirement where none existed in the statute. We, therefore, have no choice but to overrule Alexion, supra. See Halko v. Board of Directors of School District of Foster, 374 Pa. 269, 97 A.2d 793 (1953) (court in construing statute cannot...