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COMMONWEALTH PENNSYLVANIA v. ROBERT J. SHENKIN (01/09/85)

filed: January 9, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT J. SHENKIN



NO. 02685 PHILADELPHIA, 1982, Appeal from the Order dated August 17, 1982, in the Court of Common Pleas of Delaware County, Criminal Division, at No. 390 of 1981.

COUNSEL

Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellant.

Robert J. Shenkin, West Chester, appellee, in propria persona.

Spaeth, President Judge, and Beck and Tamilia, JJ.

Author: Beck

[ 337 Pa. Super. Page 519]

While traveling on West Chester Pike in Newtown Township, Delaware County, appellee Robert Shenkin's vehicle was clocked at 66 miles per hour by an officer of the Newtown Township Police Department using a speed timing device known as the Excessive Speed Preventer ("E.S.P.") Model TK 100.*fn1 The posted speed limit at the relevant location on West Chester Pike is 40 miles per hour. Appellee was issued a citation for exceeding the posted speed limit in violation of section 3362 of the Vehicle Code, 75 Pa.C.S. § 3362.

Appellee was found guilty of the offense of speeding in a summary trial before a district justice. He filed a timely appeal from the judgment of the District Court. At the non-jury trial de novo in the Court of Common Pleas of Delaware County, Shenkin demurred to the Commonwealth's evidence. His demurrer raised, inter alia, the issue of whether section 6109(b) of the Vehicle Code, 75 Pa.C.S. § 6109(b), required Newtown Township to enact an ordinance authorizing its police department to use the E.S.P. timing device. Appellee's demurrer was overruled and he presented a defense in which he continued to attack the

[ 337 Pa. Super. Page 520]

    legal authority of the Newtown Township police to use the E.S.P. device.*fn2

The trial court then found appellee guilty of speeding. Appellee filed timely post-verdict motions for a new trial and in arrest of judgment. In addition to boilerplate challenges to the weight and sufficiency of the evidence, the post-verdict motions renewed appellee's contention that Newtown Township was without legal authority to enforce speed limits using the E.S.P. device, because no local ordinance was enacted authorizing such actions. On August 17, 1982, the trial court granted appellee's motion in arrest of judgment by an order which reads as follows: "AND NOW, to wit, this 17th day of August, 1982 having heard testimony, reviewed briefs submitted by both parties, it is hereby ordered that Defendant's post-verdict motion is granted, the appeal is sustained, and the Defendant is found not guilty." The Commonwealth brings the instant appeal from this order. For the reasons stated below, we reverse and remand.

We begin our inquiry with a consideration of whether this order is appealable by the Commonwealth. Although neither party briefed or argued the issue, we must address the appealability of the order sua sponte, since it is a question going to the jurisdiction of the appellate court. This Court may not act where it is without jurisdiction, even if the parties consent. See, e.g., Balter v. Balter, 284 Pa. Super. 350, 425 A.2d 1138 (1981).

In the instant case, it is evident from the opinion filed by the trial court that its decision to grant the motion in arrest of judgment was based on the resolution of a question of law, namely whether Newtown Township's use of the E.S.P. timing device was improper ...


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