NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No EDA 2013

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. TIMOTHY M. THOMAS Appellant No EDA 2013 Appeal from the Judgment of Sentence July 30, 2013 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-SA BEFORE: BOWES, J., OTT, J., and JENKINS, J. MEMORANDUM BY OTT, J.: FILED MAY 09, 2014 Timothy M. Thomas appeals from the judgment of sentence imposed in the Court of Common Pleas of Chester County following the summary appeal on the charge of exceeding the maximum speed limit. 1 Specifically, Thomas was found guilty of driving 40 miles per hour in a 25 mile per hour speed zone. He was assessed fines and costs of $ Thomas claims there was insufficient evidence to support his conviction because, (1) the Commonwealth did not prove that YIS/Cowden Group, Inc., Station W60 was a Commonwealth approved testing station, and (2) there was a general lack of evidence against him. After a thorough review of the submissions by the parties, certified record and relevant law, we agree that the 1 75 Pa.C.S. 3362(a)(3).

2 Commonwealth failed to prove that the testing station was Commonwealth approved, and, therefore, vacate the judgment of sentence. 2 Initially, we note, A challenge to the sufficiency of the evidence is a question of law requiring a plenary scope of review. The appropriate standard of review regarding the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offenses. As a reviewing court, we may not weigh the evidence and substitute our judgment for that of the fact-finder. Furthermore, a fact-finder is free to believe all, part or none of the evidence presented. Commonwealth v. Brooks, 7 A.3d 852, 860 (Pa. Super. 2010). On February 18, 2013, Police Officer Pamela Fentner, a 25-year veteran of the Downingtown Police Department, was conducting a stationary speed patrol on the 200 block of Brandywine Avenue, Downingtown, Pennsylvania. N.T., 7/30/2013, at 4. The speed limit in that residential area is posted at 25 miles per hour. Id. at 12. The road is permanently marked with lines.027 miles apart. Id. at 6, 36. These lines are used in conjunction with a stopwatch-timing device to calculate the speed of a car passing between the lines. Id. at 6. 3 The specific device used was a Robic Acutrak 2 The Commonwealth, in its brief, agrees with Thomas that it failed to present sufficient evidence. 3 Officer Fentner testified how the Robic stopwatch device operates: (Footnote Continued Next Page) - 2 -

3 Speed Stopwatch, Model # SC-800EL. Commonwealth Exhibits 1, 2. Officer Fentner testified she had an unobstructed view of the area. N.T., supra, at 5. At approximately 2:19 P.M., she timed Thomas as traveling 40 miles per hour. Id. at 4, 13. The citation indicated Thomas traveled the.027 miles in 2.43 seconds. 4 There are many methods available to law enforcement to measure a driver s speed. The allowable types of devices are statutorily prescribed at 75 Pa.C.S That section also includes the requirements to ensure the devices are accurate. Section 3368(d) states: (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. Electronic (Footnote Continued) There are two lines. The distance between the lines is put into the device. When a vehicle hits the first line you push the button down. When it hits the second line, you push the button down again and the device calculates the speed. N.T., 7/30/2013, at 6. 4 This translates to 58.6 feet per second, 3250 feet per minute and 40 miles per hour

4 devices commonly referred to as electronic speed meters or radar shall have been tested for accuracy within a period of one year prior to the alleged violation. Other 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. 75 Pa.C.S. 3368(d). Pursuant to this statute, in order to obtain a conviction for speeding, the Commonwealth is required to prove: (1) the type of device used to time the driver was approved by the Department of Transportation, (2) the specific device used to time the driver was tested and certified accurate, and (3) the testing station at which the specific device was tested was approved by the Department of Transportation. See generally Commonwealth v. Denny, 539 A.2d 814 (Pa. Super. 1987). The failure to prove any of these three requirements will doom the prosecution. Here, Thomas claims the Commonwealth failed to prove the testing station that certified the stopwatch accuracy, YIS/Cowden Group, Inc., Station W60, was approved by the Department of Transportation. The means of demonstrating Department of Transportation approval are generally a separate document from the Secretary of Transportation under seal or a citation to the Pennsylvania Bulletin which lists the station as an official testing station. Denny, 529 A.2d at 816. The Commonwealth did provide citation to the Pennsylvania Bulletin to demonstrate that the Robic was an approved device. See 38 Pa.B. 7124, - 4 -

5 12/27/ Although that document also contains the list of approved testing stations, and the YIS/Cowden Group, Inc., Station W60 is on that list, the Commonwealth did not offer the Pennsylvania Bulletin for the purpose of certifying the testing station. Therefore, it may not be accepted for that purpose. See Commonwealth v. Kaufmann, 849 A.2d 1258, 1261 (Pa. Super. 2004). Similarly, the Commonwealth failed to produce a document under seal from the Department of Transportation regarding Station W60. Accordingly, no evidence was produced at trial sufficient to prove YIS/Cowden Group, Inc., Station W60 was a Department approved testing station. Without that proof, there is insufficient evidence to support the conviction for speeding and the judgment of sentence must be vacated. Although we conclude that Thomas s conviction must be set aside, we are compelled to further comment regarding the stopwatch accuracy certificate, Commonwealth Exhibit 2. As noted above, the Denny decision held that independent proof that the testing station was Department certified is required to prove speeding in cases such as the present case. That requirement has carried forward from 5 The document was referred to as in the notes of testimony. See N.T Trial, 7/30/13, at Pa.B and are simply different references to the same document. We note that the list of approved devices and testing stations is published yearly by the Department of Transportation. The document presented at trial, in 2013, was from 2008, and so appears to have been out-of-date. However, no objection was raised on that issue

6 1987. Therefore, it has been determined that a form such as the stopwatch accuracy certificate will not suffice. See Commonwealth v. Kaufmann, 849 A.2d 1258 (Pa. Super. 2004). However, no appellate court decision has ever analyzed the reason for the independent proof requirement and whether that requirement is still necessary. The Denny requirement was born from the specific facts presented in that case. Namely, the Commonwealth attempted to prove the propriety of the testing station by the introduction of a certificate of accuracy issued by Thomas Associates, which merely states that Thomas Associates has been designated an official testing station, signed by David A. Thomas. Denny, 539 A.2d at 816 (italics in original). The panel in Denny determined that under those circumstances, the testing center cannot attest to the fact that the testing station has been appointed by the Department of Transportation as an official testing station. Id. Commonwealth Exhibit 2 is Form MV-444B and was issued by the Commonwealth of Pennsylvania Department of Transportation Bureau of Motor Vehicles and not by YIS/Cowden. 6 Further, the document does not state the testing station was approved by the Department, it certifies that fact. Finally, the document contains the following sentence, This certificate 6 Not only does the form itself indicate is has been provided by the Department, but the Pennsylvania Code requires the form be provided by the Department. See 67 Pa.Code

7 is issued in accordance with the provisions of The Vehicle Code, Section 3368(d), Act of June 17, 1976, No. 81, as amended. (Underlining in original.) Section 3368(d) is the section that requires speed-timing devices approved, certified as accurate, and that that testing stations be Department approved. As Form MV-444B was issued pursuant to 75 Pa.C.S. 3368(d), it might be presumed that the information contained on the form, the accuracy of the device and the status of the testing station, fulfills the requirements of this Section. However, we are unable to determine if Form MV-444B was the form found to be insufficient in Denny, or was created in response to Denny, since the Form contains no reference to the date it was approved by PennDOT. Furthermore, based upon the certified record we cannot determine whether Form MV-444B is available only to approved testing stations. 7 If the current form, which is demonstrably provided by the Department, is only available to approved testing stations, then the inherent unreliability of the self-issued form in Denny does not exist. Accordingly, if the distribution of the form is limited to only those stations authorized to conduct the tests, 7 While it stands to reason that the form, containing pre-printed language certifying the approved status of the testing station, would only be provided by the Department to approved testing stations, this observation does not equate to proof of that supposition

8 then the form may be sufficient proof for both the accuracy of the timing device and certification of the approved status of the testing station. In sum, because we are unable to determine the import of the Form utilized in this case, we are constrained to follow Denny and vacate the judgment of sentence. Judgment of sentence vacated. 8 Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/9/ Because of our resolution of the first issue, we need not address Thomas s second claim