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COMMONWEALTH PENNSYLVANIA v. FRANK JOSEPH GUSSEY (09/30/83)

filed: September 30, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK JOSEPH GUSSEY, APPELLANT



No. 1070 Pittsburgh 1981, Appeal from the Order of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division at No. SA 806 of 1981.

COUNSEL

David Abrams, Monroeville, for appellant.

Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Rowley, Popovich and Hoffman, JJ.

Author: Popovich

[ 319 Pa. Super. Page 399]

This is an appeal by the appellant, Frank Joseph Gussey, from the Order*fn1 of the Court of Common Pleas of Allegheny County finding him guilty of violating 75 Pa.C.S.A. § 3362(a)(2) (Speeding). We affirm.

[ 319 Pa. Super. Page 400]

The facts consist of the following: On June 25, 1981, Trooper Lee Michael Formichella had established a radar site on the Pennsylvania Turnpike at milepost 54.7 in Monroeville, Allegheny County. At approximately 5:35 a.m., a red Dodge coupe, bearing Pennsylvania registration, entered the influence of the radar beam at a speed of 80 miles per hour. The posted speed is 55 miles per hour. The Trooper waved the vehicle over, and appellant stopped a short distance down the road. For exceeding the legal speed limit, appellant was issued a citation in compliance with Pa.R.Crim.P. 51 A(1).

Appellant pleaded not guilty to the summary violation and gave notice of his plea to the appropriate authorities, and a hearing was scheduled before John H. Salton, District Justice, for July 14, 1981. Appellant was given notice of the trial by letter dated July 8, 1981. Pa.R.Crim.P. 55. At the proceedings, both Trooper Formichella and appellant, who was represented by counsel (David Abrams), testified. At the conclusion of the hearing, the District Justice found appellant guilty and ordered him to pay the amount of the fine ($75.00) and court costs ($15.00).

On July 21, 1981, appellant's counsel filed a timely notice of appeal from the summary conviction with the prothonotary of the court of common pleas. Pa.R.Crim.P. 67(a) & (c). As a result thereof, the District Justice submitted a certified transcript of the docket with the Clerk of Courts of Allegheny County (Pa.R.Crim.P. 67(e)), and the case was listed for a de novo hearing on August 31, 1981. Pa.R.Crim.P. 67(f).

Prior to the de novo hearing, counsel for appellant filed an "Omnibus Pretrial Motion" requesting that the court quash the "Citation" and dismiss the proceedings for the following reasons:

     a. The provisions of Rule 69 of the Pennsylvania Rules of Criminal Procedure as it relates [sic] to report of disposition in summary offenses under the Vehicle Code has [sic] been violated in that the Magistrate has not executed the Affidavit which appears on the reverse side

[ 319 Pa. Super. Page 401]

    of the Citation . . ., and further, no adjudication appears on said traffic citation, all of which violate the provisions of Rule 69 of the Pennsylvania Rules of Criminal Procedure for summary conviction matters.

At the proceedings, presided over by the Honorable Nicholas P. Papadakos, argument was heard initially on counsel's complaint that the "Certificate of Disposition," which appears on the back of the "Citation" issued to the appellant by Trooper Formichella, was incomplete in that the line situated immediately above the legend "Signature of District Justice," and preceded by the verbiage: "The information contained hereon is true and correct and I have affixed the seal of my office[,]" was blank.*fn2 This deficiency, according to counsel, resulted in the entry of "no conviction [by] the District Magistrate" because he had "not given an adjudication at this point." (N.T. 8/31/81 at 3) The court rejected counsel's argument and proceeded to hear testimony from the only witness to appear (appellant was not present) concerning what transpired on the day in question.

Trooper Formichella's accounting of the events were not contested by appellant's counsel, which appear supra. However, when the Commonwealth sought to introduce into evidence a document verifying that the radar equipment utilized by the trooper was certified (by a John E. Griffin of E.I. & L. Instruments) and signed (by a Haddle Rice, engineer in charge of testing) in compliance with the law regarding operability, counsel for appellant objected. He did so on the ground that because the information on the June 25, 1981 document had been "typed," save for the signatures of Griffin and Rice, the Commonwealth had not established that the document proving accuracy "was, in fact, signed that day." (N.T. 8/31/81 at 10) In other words, counsel's position would seem to be that, short of the signators appearing in court and testifying that the date "typed" on the document coincided with the date the radar

[ 319 Pa. Super. Page 402]

    equipment was tested, the Commonwealth had fallen short of establishing the authenticity of the document so as to permit its introduction into evidence. The trial court did not ...


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