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COMMONWEALTH v. COLDSMITH. COMMONWEALTH V. PHEIL (07/13/54)

July 13, 1954

COMMONWEALTH
v.
COLDSMITH. COMMONWEALTH V. PHEIL



COUNSEL

Harold R. Prowell, Elmer E. Harter, Jr., Prowell & Harter, Harrisburg, for appellants.

William H. Saye, Asst. Dist. Atty., Huette F. Doweling, Dist. Atty., Harrisburg, for appellee.

Before Rhodes, P. J., and Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Gunther

[ 176 Pa. Super. Page 284]

GUNTHER, Judge.

The appellants were apprehended while driving on Route 22 in Dauphin County and charged with speeding under Article X, § 1002(b) (6) of the Vehicle Code. They waived hearing before the justice of the peace and, after hearing, were found guilty by the Quarter Sessions Court. These appeals raise four objections, all of which were overruled by the court below.

At trial motions to quash the informations were made and overruled. The motions alleged first that the informations did not set forth that the justice of the peace was the nearest available magistrate or that his office was in the township where the violations occurred. Examination of the information reveals that the situs of the violations was East Hanover Township. The seal of the justice of the peace was imprinted on the informations and clearly revealed that his office was in that township. No attempt has been made by appellants to prove that the justice was in the wrong township or that

[ 176 Pa. Super. Page 285]

    he was not the nearest available magistrate. Where the defendant is brought before a justice of the peace in the same township as the situs of the offense, it is presumed he is the nearest available magistrate, and the defendant has the burden of proving the contrary. Commonwealth v. Arcara, 81 Pa. Dist. & Co. 42. The motions to quash also objected to the fact that the summons or notice to appear was not attached to the information and did not appear in the record. Again no attempt was made to prove that a proper summons was not sent. The transcript clearly states that 'notice of filing of the information sent to defendant, together with a copy thereof, by registered mail.' At any rate the absence of an indication in the record that the proper notice to appear had been sent would be a procedural irregularity which would not affect the justice's jurisdiction. Commonwealth v. Burall, 146 Pa. Super. 525, 22 A.2d 619. The appellants have no cause to complain on this ground, since they did appear and have a hearing and offered no proof of defectiveness of notice.

Appellants also contend that § 1002(d) of the Vehicle Code, 75 P.S. § 501, is unconstitutional as abridging the right 'to meet the witnesses face to face' which is guaranteed to defendants in criminal prosecutions by Article I, § 9 of the Constitution of Pennsylvania, P.S. The statute in issue provides that 'An official certificate from an official speedometer testing station, showing such test was made, that the speedometer was adjusted for accuracy, the date thereof, and the degree of accuracy of such speedometer after adjustment, shall be competent and prima facie evidence of the fact that such certificate was issued by an official speedometer testing station appointed by the secretary, and of the accuracy of the speedometer, in every proceeding where an information is brought charging a violation of this section.' It is contended that this statute prevents a

[ 176 Pa. Super. Page 286]

    speed violator from cross-examining the mechanic who tested the speedometer of the arresting officer.

The right 'to meet the witnesses face to face' is intended to secure the right of cross-examination. This is really, therefore, only an application of the hearsay rule. The hearsay rule, or the right to cross-examine, has never been devoid of exceptions. Wigmore on Evidence, Vol. V, § 1397. One of those exceptions, long imbedded in our law, is that of public documents or official statements of public officers. The reason for such exception is the inconvenience of the attendance at a hearing of a public official and the trustworthiness of one entrusted with a public duty based on the absence of a motive to falsify or misrepresent. Such reasoning clearly obtains here, where a mechanic would have no purpose in falsely certifying to the accuracy of a speedometer. The mechanics ...


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