Appeal from order of Court of Quarter Sessions of the Peace of Montgomery County, April T., 1966, No. 189, in case of Commonwealth of Pennsylvania v. Robert P. Caporiccio.
P. H. Wilson, Assistant District Attorney, with him Henry T. Crocker and Richard A. Devlin, Assistant District Attorneys, and Richard S. Lowe, District Attorney, for Commonwealth, appellant.
Judah I. Labovitz, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J. Jacobs and Hoffman, JJ., dissent.
[ 210 Pa. Super. Page 231]
This is an appeal by the Commonwealth from the decision of the Court of Quarter Sessions of the Peace of Montgomery County sustaining a demurrer to the evidence upon appeal from a summary conviction under The Vehicle Code, 1959, April 29, P. L. 58, § 101 et seq. as amended, specifically § 903, 75 PS § 903.
At 9:50 on the evening of April 18, 1966, an officer of the Upper Merion Township Police Dept., in full uniform, observed a tractor-trailer being operated on Goddard Blvd., at its intersection with Pulaski Drive. The officer noted that the tires were low, that the truck did not bounce when it went over a dip in the road and that "the springs were flat down". He was an experienced officer having supervised weighing of several hundred overweight trucks and it was his belief that the vehicle was over the permissible weight.
The vehicle was stopped and directed to follow the officer to the scales of Louderbach North American Van Lines, a distance of 1.2 miles. After weighing the vehicle on the company scales it was found to be 5900 pounds overweight. The defendant was charged before a Justice of the Peace with violating § 903(d) of The Vehicle Code. A plea of guilty was entered and the required fine of $440 plus $5 in costs was levied and paid.
[ 210 Pa. Super. Page 232]
On April 28, 1966, the defendant filed a petition for leave to appeal the summary conviction. The Commonwealth filed a motion to quash for disregard of local rules of court but the court below dismissed the motion to quash and permitted the appeal. A hearing de novo was held before President Judge David E. Groshens, of the court below, on November 18th. After the presentation of the Commonwealth's case the court below sustained the demurrer to the evidence by the defendant on the ground that the Commonwealth had not sustained its burden of proof in failing to produce competent evidence of the accuracy of the scale upon which the truck was weighed.
The Commonwealth contends that the argument by the defendant that the police officer did not have reasonable cause to believe the weight of the vehicle in question was unlawful is without merit. We agree, although we also believe, that this contention was not the basis of the court's determination of the demurrer. The case of Com. v. One 1958 Plymouth Sedan, 418 Pa. 457, 211 A.2d 536 (1965), is one of unlawful search and seizure and, of course, the officer's observation that an automobile is heavily loaded would not create reasonable cause to believe that the weight of the vehicle was due to contraband.
In the instant case the police officer, under The Vehicle Code, does not have to guess the contents of a truck, in fact, the contents are immaterial, it is the weight of the cargo regardless of what it is, that concerns the investigation. It is the police officer's duty, under The Vehicle Code, based on his experience in truck weights, to make an estimate, and if the physical facts are such, as in this case, to indicate that the weight is beyond the permissible limits, the truck must be weighed to ...