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COMMONWEALTH PENNSYLVANIA v. CHARLES L. FRYE (09/22/86)

filed: September 22, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES L. FRYE, III, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Fayette County, at No. 504 S.D. 1984.

COUNSEL

Donald L. Best, Jr., Pittsburgh, for appellant.

James J. Nesser, Assistant District Attorney, Connellsville, for Com., appellee.

Cirillo, President Judge, and Brosky, Rowley, Wieand, Montemuro, Beck, Tamilia, Popovich and Johnson, JJ. Brosky, J., files a concurring statement.

Author: Popovich

[ 357 Pa. Super. Page 396]

This is an appeal from the judgment of sentence which was imposed after appellant, Charles Lewis Frye III, was convicted by a judge sitting without a jury of racing on the highways. 75 Pa.C.S.A. ยง 3367.*fn1 We affirm.

Appellant raises the following issues: (1) whether the evidence was insufficient to support appellant's conviction beyond a reasonable doubt; (2) whether the criminal complaint which was filed against appellant was defective because the complaint failed to specify the speed at which appellant was alleged to have driven and also failed to specify the applicable speed limit. We must reject appellant's contentions.

Viewing the evidence in a light most favorable to the verdict winner, which is the prosecution in this case, the facts as summarized by the trial court consist of the following:

On September 15, 1984, Pennsylvania State Police Trooper, Daniel J. Venick, was on routine traffic patrol with Trooper Frank Winter. At approximately, 11:20 P.M., the

[ 357 Pa. Super. Page 397]

    troopers were stopped at a red light in the northbound left-turn lane at an intersection on U.S. Route 119. At this intersection, U.S. Route 119 is a six lane divided roadway, consisting of two northbound lanes and a northbound left-turn lane, and two southbound lanes and a southbound left-turn lane. While waiting for the light to change, Trooper Venick observed appellant operating a 1934 Ford Coupe, which was described as a "hot rod." Co-defendant, William H. Shiffler, Jr., was operating a "modified" 1965 Volkswagen Beetle.*fn2 Both vehicles stopped side by side at the intersection.

The trooper heard appellant and his co-defendant (hereinafter referred to as appellants) "revving" their engines and "chirping" their tires for approximately twenty to thirty seconds before the light changed to green. When the light turned green, the appellants' tires squealed and their vehicles accelerated to a high rate of speed for three tenths (.3) of a mile. During this period of acceleration, their vehicles were side by side in the northbound lanes, at which point Frye's vehicle surpassed and pulled in front of Shiffler's vehicle. Under these circumstances, the troopers stopped appellants approximately seven tenths (.7) of a mile from the intersection and cited them for racing on the highways.

On appeal, appellant contends that the evidence is insufficient to prove "each and every element of the offense of racing on the highways." Brief for Appellant at 8. However, because the only theory which appellant raised, in support of his claim of insufficient evidence, is that the "evidence only established [that] the defendants made a quick start", we are unable to review each and every element of the offense of racing on the highways. "MOTION IN ARREST OF JUDGMENT", Allegations Nos. 4

[ 357 Pa. Super. Page 398]

    and 5. Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980).

In examining appellant's claim that the evidence only established that the appellants made a quick start, we must begin with the ...


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