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COMMONWEALTH PENNSYLVANIA v. RONALD L. BERRY (09/24/82)

filed: September 24, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
RONALD L. BERRY, JOSEPH H. BOGART, JOHN E. GREEN, RONALD L. BERRY, TERRY L. BENSHOFF, JAMES S. KELLER, DAVID C. SHOEMAKER, APPELLANTS



No. 1919 Philadelphia, 1980, No. 1920 Philadelphia, 1980, No. 1921 Philadelphia, 1980, No. 1922 Philadelphia, 1980, No. 1923 Philadelphia, 1980, No. 1924 Philadelphia, 1980, No. 1925 Philadelphia, 1980, Consolidated Appeals from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, at Nos. 79-10,683; 79-10,684; 79-10,685; 80-10,001; 80-10,002; 80-10,003 and 80-10,177. (LYCOMING COUNTY)

COUNSEL

Michael H. Collins, Williamsport, for appellants.

Kenneth D. Brown, District Attorney, Williamsport, submitted a brief on behalf of Commonwealth, appellee.

Price, Montemuro and Van der Voort, JJ.

Author: Montemuro

[ 305 Pa. Super. Page 9]

Appellants were convicted by a magistrate of a violation of Section 4901(a) of the Motor Vehicle Code, exceeding the maximum gross permissible weight of a vehicle. Appellants were truck drivers employed by Milk Tank Lines, and each was arrested while operating a truck in the course of his employment for that company. Their convictions were affirmed on their appeals to Common Pleas Court. Because of the factual similarity and identical issue in the cases, the trial court considered all of the cases in a single opinion and order.*fn1 The sole issue presented to us now on appeal is

[ 305 Pa. Super. Page 10]

    whether adequate grounds existed to permit the police officers in question to stop and weigh the particular commercial vehicle on each occasion. Appellants contend that the lower court erred in applying the "reasonable and articulable suspicion" standard, instead of a probable cause standard in ruling on the legality of the "stops" of the vehicles. For the reasons set forth below, we agree with the trial court and affirm.

A short recitation of the facts surrounding each of the stops is necessary. Trooper Charles Fama of the Pennsylvania State Police was the arresting officer in four of the seven cases. The first incident involved appellant Ronald Berry. Trooper Fama was stationed at the top of a ramp leading to the northernmost point of the beltway which bypasses the City of Williamsport. The trooper had his cruiser located so as to be able to see at least the top of the approaching truck for a distance in excess of one quarter mile. He was also in a location from which he could observe the speed of the vehicle as it came up the incline of the ramp. He stopped the truck because it was "pulling very hard" and having a "tough time" making the grade. From his experience in observing over one thousand trucks at that site, he concluded that unless the truck was overweight, it would not have had such difficulty in making the grade. Also, the officer knew from prior conversations with drivers from Milk Tank Lines that the drivers would not operate the tank trucks unless they were full. The trucks were not equipped with baffles; and, therefore, if the trucks were partially full, the milk contents would splash and create a hazard to the drivers. The officer concluded from his knowledge of the capacity of the tank, the weight of milk, and the weight of the truck, that if the tanks were filled to capacity, it would exceed the maximum gross weight.

The next two cases involved appellants Bogart and Green. Trooper Fama stopped Green after he came up a ramp.

[ 305 Pa. Super. Page 11]

While there, he observed Bogart coming up the ramp and he stopped him also. The trooper stopped Green because he observed milk spilled from the hatch on the top of the tank. When the truck was stopped, he observed that the milk that had spilled was still wet, indicating that the tank was full. The other consideration was again the trooper's prior conversations with the truck drivers from that company. There was no observation that the trucks were laboring up the grade or any observation of spillage from the truck operated by Bogart.

The next instance again involved appellant Berry. Trooper Fama was located at the same vantage point near the intersection of the ramp and the beginning of the Williamsport bypass. On that day, he was making a systematic check of all large trucks. From his vantage point, he could see an intersection to the north where trucks would enter a bypass or proceed into the city of Williamsport. He had seen Milk Tank Line trucks on a daily basis and had never seen one go through the streets of Williamsport. It was his suspicion that the driver was trying to avoid the location of the weight check. He radioed a mobile weight unit and requested them to follow him until he could effectuate a stop. After losing sight of the truck, he eventually sighted it and followed it through the city and into the suburbs where he eventually stopped it. While following the truck, he observed that the tires were bumping together, a ...


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