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COMMONWEALTH PENNSYLVANIA v. CYNTHIA A. WACHTER (12/28/84)

filed: December 28, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
CYNTHIA A. WACHTER, APPELLANT



No. 00479 Hsbg., 1983, Appeal from the Judgment of Sentence of December 2, 1983 in the Court of Common Pleas of York County, Criminal Division, at No. 158 S.C. 1982.

COUNSEL

Allen H. Smith, York, for appellant.

William T. Hast, Assistant District Attorney, York, for Commonwealth, appellee.

Wickersham, Watkins and Hester, JJ.

Author: Watkins

[ 337 Pa. Super. Page 29]

This is an appeal by the defendant from her conviction before a District Justice of operating a motor vehicle at an excessive speed. At the hearing de novo, the testimony of the Commonwealth showed that the defendant's vehicle was travelling at 44 m.p.h. in a 25 m.p.h. speed zone. This speed was determined through the use of an ESP (excessive speed preventor). The defendant demurred to the Commonwealth's evidence on the ground that the Commonwealth had failed to prove that the West York Borough had enacted an ordinance authorizing the use of ESP and further failed to post the use of such a device. The defense stated that no evidence would be presented and that the case would be decided by the Court of Common Pleas on the demurrer. The lower court overruled the demurrer on October 26, 1983 and found the defendant guilty.

The only question raised on appeal is whether the Commonwealth can sustain its burden of proof in a speeding violation case under the Vehicle Code based on an "ESP" speed timing without proof of a local ordinance authorizing

[ 337 Pa. Super. Page 30]

    the use of such a device and the posting of signs indicating such enforcement.

After review of the record and briefs in this appeal, we conclude that the lower court adequately disposed of the question raised.

In its opinion,*fn1 the lower court stated that:

"Defendant argues that these sections require a municipality to adopt the use of an approved speed timing device by Ordinance and to post a notice of the use of that approved speed timing device. We disagree.

"Defendant's contention that an Ordinance authorizing the use of the ESP device must be adopted by the municipality prior to its use is supported by the ruling in Commonwealth v. Wickham, 130 P.L.J. 65 (1982); Commonwealth v. Shenkin, (Delaware County, S.A. 3890-81 (8/18/82); and Commonwealth v. Herdman, supra. On the other hand, the trial courts in Cumberland County (Commonwealth v. DePasquale, supra) and in Lycoming County, Commonwealth v. Selleck, 15 Lycoming Rep. 66 (1982), have held that there ...


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