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COMMONWEALTH PENNSYLVANIA v. RONALD JAY SMOLOW (06/08/87)

filed: June 8, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
RONALD JAY SMOLOW, APPELLANT



Appeal from the Judgment of Sentenced Entered in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 8600-640.

COUNSEL

Ronald J. Smolow, Bensalem, appellant, in propria persona.

Caren J. Fox, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Rowley and Hoffman, JJ.

Author: Rowley

[ 364 Pa. Super. Page 22]

OPINION OF THE COURT

Appellant was convicted at a hearing de novo in the Court of Common Pleas of Philadelphia County of violating § 3362(a)(2) of the Motor Vehicle Code (speeding), 75 Pa.C.S. § 3362(a)(2). Following denial of his post-trial motions, appellant was sentenced to pay a fine and costs totaling $117. Appellant then filed this timely appeal in which he seeks to have the judgment of sentence reversed.*fn1

Briefly, the facts of the case are that on October 9, 1985, a Philadelphia Police Officer noticed that appellant was driving at what appeared to be an excessive rate of speed. Using a VASCAR-plus speed-timing device (hereafter "VASCAR"), the officer determined that appellant was proceeding at 84.1 m.p.h. in a posted 55 m.p.h. zone. The officer then stopped appellant and issued him a citation for speeding.

[ 364 Pa. Super. Page 23]

On appeal, appellant contends that the trial court erred in failing to find that VASCAR is an electronic device and thus, authorized for use only by the Pennsylvania State Police. Since the arresting officer was not a member of the State Police, he claims, the use of the VASCAR unit was unauthorized and his conviction must be reversed. In support of his argument, appellant cites § 3368(c)(2) of the Motor Vehicle Code, which provides, in part, that " (e)lectronic devices . . . may be used only by members of the Pennsylvania State Police . . .," (emphasis added), and our Supreme Court's holding in Commonwealth v. DePasquale, 509 Pa. 183, 501 A.2d 626 (1985).

In DePasquale the Court concluded that the ESP device used in that case was an electronic device. As such, the Court held, its use by a local police officer was prohibited by § 3368(c)(2). The Court then reversed the appellant's conviction. At the appellant's trial in DePasquale, the Commonwealth relied on a regulation of PennDot that classified the ESP machine used by the local police as an electrical device. The defendant, DePasquale, however, presented the testimony of an electrical engineer who expressed his opinion, contrary to PennDot's regulation, that the ESP machine used there was in fact an electronic device rather than an electrical device. The Supreme Court concluded, on the basis of the engineer's testimony, which it characterized as "reliable" and "uncontradicted," that the Department's regulation was not dispositive and held that the ESP machine was an electronic device and reversed DePasquale's conviction.*fn2

In the case now before us the Commonwealth also relied on a Departmental regulation that classified the VASCAR machine as an electrical-mechanical device [15 Pa.Bull. 321 (1985)]. Thus it ...


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