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COMMONWEALTH PENNSYLVANIA v. MARVIN TURNER (01/11/85)

filed: January 11, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
MARVIN TURNER, APPELLANT



No. 765 Philadelphia, 1983, Appeal from the Order Entered on March 3, 1983 in the Court of Common Pleas of Delaware County, Criminal Division, at No. 80-112.

COUNSEL

Michael A. Teir, Philadelphia, for appellant.

Donald A. Browns, Media, for Commonwealth, appellee.

Cirillo, Montemuro and Cercone, JJ.

Author: Cercone

[ 337 Pa. Super. Page 567]

Appellant, Marvin Turner, upon summary conviction under the Vehicle Code for operating an overweight vehicle upon a bridge, was sentenced on February 28, 1980, to pay $6685.00 by a district justice.*fn1 Following a hearing de novo before the Court of Common Pleas of Delaware County, appellant was again found guilty. His first appeal to this court resulted in a remand for the filing of post-verdict motions. 308 Pa. Super. 32, 453 A.2d 1053. These were filed and argued before the trial court, which rendered its opinion and order on March 3, 1983, by which it affirmed appellant's conviction, reinstating the fine and costs which were imposed by the district justice. This appeal is taken from the judgment of sentence.

The facts of this case show that on February 11, 1980, appellant drove a tractor and trailer combination bearing five or six new cars over a bridge that had been posted with a two and one-half ton weight limitation. A borough police officer stopped appellant and bade him to follow the officer to a scale which was approximately 1.8 miles away. After the officer set the scale, appellant drove the truck onto the platform. The officer determined the total weight to be fifty-two thousand four hundred and seventy pounds (52,470). The district justice found that this total exceeded the maximum limitation of the bridge by 44,470 pounds.

Appellant argues that the evidence did not support his conviction in that the Commonwealth did not prove that the specific scale used to weigh his truck was within its control in the wording of the statute,*fn2 did not explain the condition of the bridge,*fn3 nor establish whether the issuing officer was in uniform at the time he issued the citation.

[ 337 Pa. Super. Page 568]

Appellant argues that because the scale utilized in this case was owned by a private concern and no evidence was introduced of a contract between the Commonwealth and that private concern, that somehow the scale cannot be said to be within the Commonwealth's control, 75 Pa.C.S.A. ยง 4981(b). We do not interpret the sentence, "the department may also contract with persons or local authorities to use their scales" as requiring that a specific contract be introduced at trial in order that the Commonwealth's proof be complete. This is so especially in light of the fact that a certificate of accuracy issued by the Bureau of Standard Weights and Measures for the Commonwealth of Pennsylvania, Department of Agriculture on July 24, 1979, was introduced into evidence at trial. It describes the scale as a Fairbanks Vehicle Scale, Model No. 6517 C, Serial No. 1879 M, with a 100,000 pound capacity. It is this court's opinion that the scale in question was adequately qualified and within the control and supervision of the Commonwealth, despite its private owner.

Appellant argues that the Commonwealth had the burden of establishing the condition of the bridge which made a weight restriction necessary. See Commonwealth v. Geise, 314 Pa. Superior Ct. 24, 460 A.2d 354 (1983). This contention did not appear in appellant's post-verdict motions. Pa.R.Crim.P. 1123. In fact, the last post-verdict motion submitted by appellant stated the opposite, that is, that the court improperly admitted evidence as to the condition of the bridge. Therefore, the contention is waived.

Finally, appellant requests that we discharge him for failure of the Commonwealth to ...


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