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COMMONWEALTH PENNSYLVANIA v. LEWIS G. CUMMINGS (01/18/85)

filed: January 18, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
LEWIS G. CUMMINGS



No. 00006 HBG 83, Appeal from the Order of December 16, 1982 in the Court of Common Pleas Of Franklin County, Criminal Division, at No. Misc. No. 3 of 1982.

COUNSEL

Francis X. O'Brien, Jr., Chief Counsel, Harrisburg, for Commonwealth, appellant.

Philip S. Cosentino, Chambersburg, for appellee.

Wickersham, Olszewski and Hoffman, JJ. Wickersham, J., files a dissenting opinion.

Author: Hoffman

[ 338 Pa. Super. Page 151]

The sole issue on appeal is whether in a prosecution for driving in excess of the maximum speed limit, the Commonwealth may enter into evidence a photocopy of the certificate of timing device accuracy required by 75 Pa.C.S.A. § 3368(d). We hold that the lower court correctly rejected the evidentiary offer of the photocopy in this case and, accordingly, affirm the order below dismissing the prosecution.

On November 10, 1981, appellee was driving his vehicle on Interstate 81 in Franklin County. Pennsylvania State Trooper Thomas A. Algatt, flying in a state police aircraft and using a stopwatch, timed appellee's rate of travel over a measured distance of three-tenths (.3) of a mile at 66.2 miles per hour and relayed this information to Trooper David E. Burkholder who was in a chase vehicle on the highway. Trooper Burkholder then issued a citation to appellee, who refused to sign, acknowledging receipt of the citation. Following a January 28, 1982 hearing, appellee was found guilty by the District Justice on February 3, 1982. On appeal, the lower court held a summary hearing on December 16, 1982. At this hearing, the Assistant District Attorney advised the court that a legal issue had been raised regarding the admissibility of the certificate of stopwatch accuracy issued by the appointed testing station on October 19, 1981 pursuant to 75 Pa.C.S.A. § 3368(d). The Commonwealth made an offer of proof that it was prepared to introduce a photographic copy of the certificate. The lower court, upon appellee's motion, rejected the offer and dismissed the case. This Commonwealth appeal followed.

Section 3368(d) of the Vehicle Code provides that:

[ 338 Pa. Super. Page 152]

    prior to the alleged violation. A certificate from the station showing that the calibration and test were made within the required period, and that the device was accurate, shall be competent and prima facie evidence of those facts in every proceeding in which a violation of this title is charged.

75 Pa.C.S.A. § 3368(d) (emphasis added). This Court set forth the requirements of § 3368(d) in Commonwealth v. Gernsheimer, 276 Pa. Superior Ct. 418, 419 A.2d 528 (1980), holding that

     in prosecuting speeding cases where a radar or other electronic device is used to calibrate a defendant's speed that in order to introduce the results of such into evidence the Commonwealth must offer a Certificate, certified by the Secretary of Transportation or his designee certifying the agency which performs the tests on the device as an official testing station, and must introduce a Certificate of Electronic Device (radar) Accuracy into evidence. The Certificate of Electronic Device (radar) Accuracy must be signed by the person who performed the tests and the engineer in charge of the testing station, must show that the device was accurate when tested by stating the various speeds at which it was tested and the results thereof, and must show, on its face, that the particular device was tested within sixty (60) days of the date it was used to calibrate the particular defendant's speed.

Id., 276 Pa. Superior Ct. at 423-24, 419 A.2d at 530. Although the question of the admissibility of a photocopy, instead of the original, of the certificate of accuracy did not arise in Gernsheimer,*fn1 we note that the entry of the original certificate appears to be common practice. See Commonwealth v. Gussey, ...


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