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COMMONWEALTH PENNSYLVANIA v. CHARLES F. SCHMITZER (04/10/81)

filed: April 10, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES F. SCHMITZER, III, APPELLANT



No. 823 April Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Butler County, Criminal Division - C.A. 197 of 1979, Book 68, Page 392.

COUNSEL

Thomas W. King, III, Butler, for appellant.

Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.

Price, DiSalle and Montemuro, JJ.

Author: Montemuro

[ 286 Pa. Super. Page 140]

Appellant was convicted of Reckless Driving*fn1 and sentenced to pay a fine of twenty-five ($25.00) dollars and the costs of prosecution. We affirm.

On December 7, 1978 at approximately 8:35 A.M., a Butler City police officer stopped the automobile which appellant had been driving in the vicinity of New Castle Street and Eighth Avenue, Butler City, Butler County, and issued Citation No. D1145 09. We do not have a copy of the Citation as part of the record, but from the testimony, it would appear that the Citation alleged that, based on information received, the appellant was driving at a speed of thirty-one (31) miles per hour through a school zone, which was controlled by two signs on opposite sides of the street on each end of the school, with flashing amber lights and with the speed limit of fifteen (15) miles per hour spelled out and flashing on the signs. Appellant was charged with "Reckless Driving," a violation of Section 3714 of the Vehicle Code. Id.

The officer who issued the citation testified that on the morning appellant was cited, he, together with his police chief and a police captain, were watching cars going through the school zone of the West End School. While thus on duty, he received a radio transmission to stop appellant's vehicle and that he looked up and saw appellant's vehicle coming at him head on, "at a pretty good clip, high rate of speed, in excess of the fifteen mile an hour posted." (TTp.3) He testified further that there was school bus traffic, heavy vehicular traffic, and school children crossing to go to school.

[ 286 Pa. Super. Page 141]

The police chief testified that he and a police captain were sitting in an unmarked police car on the north side of New Castle Street just west of Sixth Street. They were using a radar gun and he observed appellant coming through Fourth Street on New Castle at a fast rate of speed. The radar gun clocked appellant's vehicle travelling thirty-one (31) miles per hour in the fifteen (15) miles per hour zone and he then radioed to the officer stationed at Eighth Street to make the arrest. Aside from the radar gun, he judged appellant's speed to be between twenty-five (25) and thirty (30) miles per hour. Further, there were children crossing the street and there was heavy vehicular traffic. Neither he nor his police captain were certified by the Pennsylvania State Police or by the Pennsylvania Department of Transportation on the use of a radar gun and their only training was from the manufacturer of the equipment. He was using the radar gun as a back-up to his judgment of the speed of the vehicles coming into the school zone.

Appellant testified that he was going to work and that his place of business was located on New Castle Street. He went by the area quite often and he knew of the school zone. He did not observe the flashing lights that day, but he did see children crossing. He knew of the speed limit, and he said he was going about twenty-five (25) miles per hour. There were no vehicles in front of him and he never crossed the center lane of the highway. He stayed in his own lane of traffic and he was paying attention to the road and highway. He knew of the existence of school children in the area.

Appellant first argues that the lower court erred in admitting evidence of speed based on the use ...


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