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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