submitted: June 29, 1979.
COMMONWEALTH OF PENNSYLVANIA
RAYMOND W. MANNY, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. JEFFREY B. SAMPSELL, APPELLANT
No. 2906 October Term, 1978, No. 2907 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lycoming County, Criminal Division, Nos. 77-11,257 and 78-10,301
John P. Campana, Williamsport, for appellants.
William S. Kieser, District Attorney, Williamsport, for Commonwealth, appellee.
Price, Gates and Dowling, JJ.*fn* Price, J., concurs in result.
[ 272 Pa. Super. Page 94]
This is an appeal from a conviction for a speeding violation.*fn1 The appellant has stipulated to all the facts necessary to sustain his conviction. The sole issue presented for review is whether the lower court was correct in holding that the arresting officers were authorized under the Vehicle Code*fn2 to use a stopwatch for determining the speed of appellant's vehicle over a measured distance of 1/8 mile.
Section 3368 of the Vehicle Code empowers police officers to use speed timing devices of a type approved by the Pennsylvania Department of Transportation. On October 28, 1978, the Transportation Department adopted certain amendments to 67 Pa.Code Chapter 337, Subchapter E, § 337.31-35, promulgated for the purpose of further implementing Section 3368 of the Vehicle Code.*fn3 These regulations explicitly approve of properly calibrated and officially tested stopwatches for use as mechanical speed timing devices. Although the incident in question predated the adoption of these regulations, the particular stopwatch used had been duly tested for accuracy within sixty days prior to the appellant's arrest, as required under 75 Pa.C.S.A. § 3368(d) of the Vehicle Code. Accordingly, we find that the appellant is out of time.
*fn* President Judge G. THOMAS GATES of the Court of Common Pleas of Lebanon County, Pennsylvania, and Judge JOHN C. DOWLING of the Court of Common Pleas of Dauphin County, Pennsylvania, are sitting by designation.