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Appeal Brief

Judge Watson's Opinion
State Concedes Case

 
                     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



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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.



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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.

William F. Askin, Esq.



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