No. 84 Harrisburg, 1981, Appeal from the Order of February 19, 1981 in the Court of Common Pleas of Fulton County, Criminal Division, No. 59 of 1980.
Merrill W. Kerlin, District Attorney, McConnellsburg, for Commonwealth, appellant.
Philip Samuel Cosentino, Chambersburg, for appellee.
Cercone, President Judge, and Wickersham and Rowley, JJ.
[ 310 Pa. Super. Page 129]
Appellee, Merle Allen Beatty was found guilty of speeding*fn1 by a district justice and appealed to the Fulton County Court of Common Pleas. After presentation of the Commonwealth's case in the trial de novo, counsel for appellee demurred to the evidence on the grounds that no proof had been offered that the particular radar device, which was used to detect the speed of appellee's vehicle, the Model 100 Decatur Gun, had been approved by the Pennsylvania Department of Transportation for use by law enforcement agencies. The Assistant District Attorney then suggested
[ 310 Pa. Super. Page 130]
that the court take judicial notice of the Department's approval.*fn2 The lower court requested that each side present briefs on the issue of whether the Court must automatically take judicial notice of the face of the approval, or whether the Commonwealth must present a certificate of approval or actually request the court to take judicial notice before that element of the offense would be proved. The Court subsequently decided that the Commonwealth had failed to meet its burden of proving that the radar device was approved and found appellee not guilty. From the adjudication of not guilty, the Commonwealth appeals.*fn3
Case law is consistent and long-standing that the Commonwealth may not appeal a verdict of not guilty. This proscription results from the judicial interpretation of the Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution and of Article I, § 10 of the Pennsylvania Constitution. That interpretation precludes review of a verdict of acquittal without placing the defendant twice in jeopardy. Sanabria v. U.S., 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43 (1978); Borough of West Chester v. Lal, 493 Pa. 387, 426 A.2d 603 (1981).
In the instant case, although it was appellee's demurrer which initially raised the question of the insufficiency of the Commonwealth's case, the lower court did reserve its ruling until after the defense presented its case and after the submission of briefs by counsel. In effect, the court's not guilty verdict was an adjudication of not guilty, and not the grant of a demurrer.*fn4
[ 310 Pa. Super. Page 131]
Therefore, the Commonwealth's appeal in the instant case ...