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COMMONWEALTH PENNSYLVANIA v. RAYMOND E. NESS. COMMONWEALTH PENNSYLVANIA (04/04/85)

filed: April 4, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
RAYMOND E. NESS. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. DALE ELWOOD SMITH



NO. 53 HARRISBURG 1984, NO. 54 HARRISBURG 1984, Appeal from the Order of the Court of Common Pleas of Lycoming County, Criminal at Nos. 83-10, 686 and 83-10, 691.

COUNSEL

William P. Carlucci, Assistant District Attorney, Williamsport, for Commonwealth, appellant.

Scott Williams, Williamsport, for appellee (at 53).

John P. Pietrovito, Williamsport, for appellee (at 54).

Wickersham, Del Sole and Popovich, JJ.

Author: Del Sole

[ 341 Pa. Super. Page 227]

The question for our consideration in this appeal is whether the Vehicle Code of 1976, P.L. 162, Act. No. 81, 75 Pa.C.S.A. Section 101, eff. July 1, 1977, continued the previous Code's requirement that speed timing devices, such as a stop watch, be used over a measured distance of at least one-eighth of a mile.

On March 13, 1983, Appellee, Raymond Ness, was cited for operating his vehicle at 50.5 m.p.h. in excess of the posted 35 m.p.h. limit. The officer had timed Ness' speed using a certified stop watch over a premeasured course of 200 feet.

Dale Elwood Smith was cited for travelling of 56.8 m.p.h. in a posted 35 m.p.h. zone in Old Lycoming Township on May 27, 1983. Smith's speed was measured over a course of 600 feet also by a certified stop watch. At summary hearings before the District Justice, both individuals were found guilty of speeding. The convictions were appealed to the Court of Common Pleas of Lycoming County. At a pre-trial hearing, both sides offered evidence by stipulation, and the court en banc sustained the Appellees' motions to dismiss. The issue was purely one of law, and the court determined that under the present Vehicle Code, the minimum distance over which rates of speed could be detected was one-eighth of a mile or 660 feet. The cases were consolidated, and the Commonwealth appeals the Common Pleas Court's determination of that issue.

The court reasoned that the one-eighth of a mile minimum distance requirement contained in the previous Vehicle Code was retained implicitly by the 1976 re-enactment. The Commonwealth argues the alternative interpretation -- that by re-enacting the Code and making no explicit distance requirement with regard to speed timing devices (except the speedometer), the legislature did not intend to preserve that requirement. We are persuaded by the Commonwealth's argument.

The applicable texts are:

[ 341 Pa. Super. Page ...


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