APPELLANT'S ARGUMENT WHEN THE ONLY EVIDENCE OF SPEEDING IS FROM A VASCAR-PLUS CALCULATION WHERE THE TRIAL COURT ACCEPTS REBUTTAL TESTIMONY SHOWING THE SPEED TO BE 8 OR 9 MILES PER HOUR ABOVE A 35 MPH POSTED LIMIT, IT IS AN ERROR OF LAW TO CONVICT A PERSON WHEN SUCH CONVICTION IS PROHIBITED BY STATUTE. The scope of review for a de novo case in a lower court is whether or not the findings of fact were supported by competent evidence, and to correct conclusions of law erroneously made. Commonwealth v. Gussey, 319 Pa. Super 398, 466 A.2d 219 (Pa. Super 1983) The lower court erroneously made conclusions of law by judging the appellant guilty when the evidence of speed accepted by the court was less than the required speed to sustain conviction. The statute defining the use to which VASCAR can be applied prohibits conviction when the recorded speed is less than 10 miles over the maximum limit. See 75 Pa. C.S.A. s.3368 (c) (4), second sentence. The appellant thoroughly and effectively rebutted the Commonwealth's evidence by showing that the police officer's speed calculation was impossible based upon the time and distance listed on the citation and offered into evidence. Appellant's witness calculated that the speed appellant was traveling to be 44 mph, 9 miles over the speed limit. (The trial court opinion stated that defendant's witness established the speed to be "some eight miles 5 per hour in excess of the posted limit...). The trial court accepted the 44 MPH calculation by appellant's rebuttal witness as the maximum at which appellant could have been traveling. The rebuttal evidence offered by the defendant and accepted by the trial court was below the threshhold speed required by statute for conviction. Forty-four miles per hour is below the less-than-l0- MPH-above-the-speed-limit threshhold required by 75 Pa. C.S.A. s.3368(c) (4). In other words, if the trial court had found appellant to be traveling 45 MPH or greater, conviction would have been proper. Therefore, the trial court found as fact no credible evidence which could support conviction of appellant for speeding under the cited violation of 75 Pa. C.S.A. s.3362 (a) (1). 2. WHEN THE TRIAL COURT DISCOUNTS THE COMMONWEALTH'S EVIDENCE AND BELIEVES DEFENDANT'S REBUTTAL TESTIMONY INSTEAD, AND THE COMMONWEALTH HAS NO OTHER PROOF OF VIOLATION USING A SPEED TIMING DEVICE, THE TRIAL COURT ERRED BY CONVICTING THE DEFENDANT. VASCAR-Plus is now classified as an "electronic device" under 75 Pa. C.S.A. s.3368 (c) (3). The Pennsylvania Department of Transportation defined VASCAR-Plus as an electronic speed timing device (non-radar) which measures elapsed time between two sensors, and thus useable under 75 Pa. C.S.A. s.3368(c) (3) . See Pennsylvania Bulletin, vol 16., No. 34, Saturday August 23, 1986 (16 Pa.B.3159-3160). As an electronic device, the use of VASCAR is subject to the less-than-l0 miles-an-hour threshhold prohibition stated in the statute. The Commonwealth, in using an electronic device under 75 Pa. 6 C.S.A. s. 3368(c) (3), did not prove that appellant here was driving in excess of the speed threshhold required to convict while driving in a speed zone posted at less than 55 MPH. Convictions under Subchapter F must be enforced through the use of a speed timing device. Commonwealth v. Martorano, 387 Pa. Super 151, 563 A.2d 1229 (Pa.Super 1989). The Commonwealth may have proved beyond a reasonable doubt that VASCAR-Plus was an approved speed timing device and that the device was calibrated and tested for accuracy at an approved station. But because the calculation of speed from the VASCAR-Plus device was not accepted by the court, the Commonwealth had no other evidence accepted by the court which could sustain conviction under 75 Pa. C.S.A. s.3362 (a) (1). CONCLUSION Therefore, Appellant respectfully requests this Honorable Court to reverse and dismiss this conviction of Appellant.
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