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JOHN WILLIAM RICH v. COMMONWEALTH PENNSYLVANIA (05/02/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 2, 1983.

JOHN WILLIAM RICH, JR., APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE

Appeal from the Order of the Court of Common Pleas of the 26th Judicial District, Columbia County Branch in case of Commonwealth of Pennsylvania v. John W. Rich, Jr., No. 68 of 1981.

COUNSEL

Martin J. Cerullo, Frumkin & Manta, P.C., for appellant.

Elwood R. Harding, Jr., Assistant District Attorney of Columbia County, for appellee.

Judges Blatt, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 74 Pa. Commw. Page 77]

John W. Rich, Jr. (appellant) appeals here*fn1 from an order of the Court of Common Pleas of the 26th Judicial District Columbia County Branch wherein he was adjudged guilty of driving a vehicle at a rate of 75 miles per hour in a 55 mile per hour zone, in violation of Section 3362(a) of the Vehicle Code, 75 Pa. C.S. ยง 3362(a).

The evidence presented to the trial court includes the testimony of a state policeman, Trooper Thomas Reddon, who testified that on November 16, 1980, at 11:25 A.M., he observed a vehicle being operated by the appellant. After using his radar gun, which registered that the vehicle was traveling at 75 miles per hour, he pulled the vehicle over and issued a citation to the driver. Trooper Reddon testified that he had

[ 74 Pa. Commw. Page 78]

    been trained in the use of the radar gun, that his gun had been certified for accuracy by an authorized testing station on November 6, 1980, and that, a few minutes before he stopped the appellant, he had subjected the gun to another type of accuracy test which indicated that it was in proper working order.

The testimony of the appellant indicates that, at the time in question, he was on his way to meet someone on business, he was lost, and that he did not then and does not know now how fast he was driving. On cross-examination, when questioned by the assistant district attorney, the appellant testified as follows:

Q: Do you deny that you were exceeding the speed limit?

A: I don't think I am denying that, no.

Q: So that you don't deny that you were speeding ?

A: What I am saying is that I wasn't going seventy-five.

Q: How fast were you traveling?

A: Well, it seems ironic that I was going exactly 75, not 74, or 73, or 76 -- it just seems like a convenient figure, 75.

Q: How fast were you going?

A: I don't have any idea. I was lost. I was not familiar with the road. I was heading west. I don't know how fast I was going.

Our scope of review, here, where the trial court has heard the case de novo, is to determine whether or not the findings of fact are supported by competent evidence and whether or not errors of law have been committed. Pratt v. Department of Transportation, Bureau of Traffic Safety, 62 Pa. Commonwealth Ct. 55, 434 A.2d 918 (1981).

The trial judge identified the issue in the instant case as "one of credibility" and he "accordingly . . .

[ 74 Pa. Commw. Page 79]

    adjudge[d] the [appellant] guilty of traveling at a rate of 75 miles per hour in a 55 mile per hour zone."

The appellant argues that the issue is not one of credibility, but rather whether or not the evidence presented below was sufficient to sustain a conviction. He notes that "a car traveling at 75 miles per hour requires much more distance in which to stop than was testified to below", and he questions the trooper's testimony that the appellant was pulled over "about one hundred or two hundred feet" from where the trooper was initially stationed. Reasoning that it would be impossible to stop in such a distance if he had been traveling at 75 miles per hour, the appellant argues that it was therefore impossible for him to have been traveling at that rate of speed.

The bare assertion that he stopped within 200 feet of where the trooper's vehicle had been stationed, absent any evidence demonstrating the significance of such a fact,*fn2 is not in and of itself supportive of a conclusion that he was not traveling at the speed reported.*fn3 Moreover, the appellant's testimony indicated that, in his estimation, he could have stopped "in that distance" only if he had slammed on the brakes, which

[ 74 Pa. Commw. Page 80]

    he claims he did not do. This, however, is a question of credibility, and it is the trial court's function, not ours, to decide on the credibility of witnesses and to reconcile conflicts in the evidence. Spirer v. Commonwealth, 52 Pa. Commonwealth Ct. 381, 416 A.2d 587 (1980).

We believe that the trial court correctly identified the issue here as one of "credibility", and, keeping in mind that credibility determinations are not within our scope of review, Spirer, a careful review of the record has convinced us that there is competent evidence in the record to support the trial court's conclusion. We will affirm its order.

Order

And Now, this 2nd day of May, 1983, the order of the Court of Common Pleas of the 26th Judicial District Columbia County Branch in the above-captioned matter is hereby affirmed.

Disposition

Affirmed.


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