J. A41002/97

COMMONWEALTH OF PENNSYLVANIA,   :   IN THE SUPERIOR COURT OF
                                :         PENNSYLVANIA
                 Appellee       :
                                :
           v.                   :
                                :
JANOS DOHANICS,                 :
                                :
                 Appellant      :   No. 00406 Pittsburgh 1997


    Appeal from the Judgment of Sentence January 27, 1997,
      in the Court of Common Pleas of Allegheny County,
            Criminal Division at No. CL 2378 of 1996.



BEFORE:  TAMILIA, POPOVICH, and HESTER, JJ.

                   JUDGMENT ORDER    FILED: DECEMBER 22, 1997



AND NOW, this 22nd day of December, 1997, we reverse the decision
of the court below and vacate appellant's judgment of sentence for
exceeding the speed limit of 35 miles per hour in an urban district. 75
Pa.C.S.A. § 3362.

Appellant was charged with driving 66 miles per hour in a 35 miles per
hour zone. The police officer testified that he measured appellant's speed
with a Vascar-Plus timing device. Appellant's expert testified that he
calculated appellant's speed actually to be 44 miles per hour. The lower
court expressly determined appellant's speed to be 43 miles per hour in the
35 miles per hour zone and convicted appellant of speeding in an urban
district.

Appellant now contends, and the Commonwealth concedes, that his
conviction cannot stand since he was convicted of driving less than 10 miles
per hour over the speed limit. 75 Pa.C.S.A. § 3368(c)(4) provides,
"Furthermore, no person may be convicted upon evidence obtained through
the use of [Vascar-Plus] 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." Since the lower court expressly determined that
appellant was travelling only 8 miles per hour over the speed limit of 35
miles per hour, we agree that appellant's conviction cannot stand by
operation of 75 Pa.C.S.A. § 3368(c)(4).

Judgment of sentence reversed and vacated.

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