September 7, 1984
COMMONWEALTH OF PENNSYLVANIA V. LARRY SCHILDT, APPELLANT
No. 369 Harrisburg, 1982, Appeal from the Order entered October 4, 1982, in the Court of Common Pleas of York County, Criminal Division, at No. 196 Summary Conviction, 1980.
Before Del Sole, Popovich and Roberts, JJ.
Judgment of Sentence affirmed.
DEL SOLE, J.:
I respectfully dissent.
Idisagree with the majority that this case involved a systematic vehicle stop.
On appeal, we must accept as true Trooper Zeisloft's testimony that he intended to stop all vehicles of class 4 or higher. If we were to apply a subjective test in determining whether the stop was systematic, I would agree with the majority that the fact no other stops occurred was a matter affecting only the trooper's credibility. The trooper's intent would be the decisive factor.
I believe, however, that the test for a systematic stop must be objective. Regardless of the trooper's intent, he also testified he was "sure" other trucks passed while Appellant's vehicle was being weighed which were "probably" class 4 or higher. Applying an objective test, the stop in this case was not systematic.*fn1
*fn1 I do not mean to imply that every vehicle must be stopped in order to constitute a systematic stop. However, there must be some non-random method of selection, such as every third vehicle, etc.
*fn2 See Commonwealth v. Berry, 305 Pa. Super. 8, 451 A.2d 4 (1982).