Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

COMMONWEALTH PENNSYLVANIA v. RICHARD HAMAKER (03/24/88)

SUPERIOR COURT OF PENNSYLVANIA


submitted: March 24, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
RICHARD HAMAKER, APPELLANT

Appeal from Judgment of Sentence September 25, 1987, in the Court of Common Pleas of Monroe County, Criminal No. 407 - 1987.

COUNSEL

David R. Dautrich, Reading, for appellant.

James F. Marsh, District Attorney, Stroudsburg, for Com., appellee.

Cavanaugh, Olszewski and Melinson, JJ.

Author: Olszewski

[ 373 Pa. Super. Page 511]

This is an appeal from a judgment of sentence entered following appellant's conviction for speeding. We affirm.

On March 8, 1987, a citation was issued charging appellant with driving at an excessive speed in violation of Section 3362(a)(2)*fn1 of the Motor Vehicle Code. Appellant was found guilty of the charge at a summary trial before a

[ 373 Pa. Super. Page 512]

    district justice. A timely appeal to the court of common pleas was filed and, on August 25, 1987, a trial de novo was held.

Evidence at that trial essentially consisted of the testimony of the arresting officer, Trooper Robert D. Rossi of the Pennsylvania State Police. Trooper Rossi stated that he was operating a Customs KR-10 SPS Traffic Safety Radar System at the time of the arrest and that the radar system indicated appellant was driving at 65 m.p.h. in a 55 m.p.h. speed zone.

Appellant objected to the trooper's testimony, claiming that the Commonwealth had failed to present an adequate foundation for the statements regarding the speed of appellant's vehicle. Specifically, appellant argued that the testimony was inadmissible because Trooper Rossi had failed to conduct the four field checks for speed accuracy which were outlined in the radar system operator's manual.*fn2 The objection was overruled*fn3 and a finding of guilt was made by the court.

On September 3, 1987, appellant filed post-trial motions for a new trial and in arrest of judgment raising challenges to the weight and the sufficiency of the evidence. Both motions were denied and, on September 25, 1987, appellant was sentenced to pay a fine in the amount of $55. This timely appeal followed.*fn4

[ 373 Pa. Super. Page 513]

Appellant's sole claim on appeal attacks the trooper's failure to follow the radar manufacturer's guidelines to insure accuracy. On this basis, appellant asserts that the evidence was insufficient to support the conviction.

Initially, we note that this claim was raised in boilerplate fashion in appellant's post-trial motions. An issue must be raised with specificity in the lower court or it is not preserved for appellate review. Commonwealth v. Pyett, 372 Pa. Super. 291, 293, 539 A.2d 444, 445 (1988); Commonwealth v. Holmes, 315 Pa. Super. 256, 461 A.2d 1268 (1983). In the absence of a specific attack on the sufficiency of the evidence, appellant's claim is waived.

We, however, have reviewed the merits of appellant's claim and find it without basis. To sustain a conviction for speeding, the Commonwealth must show beyond a reasonable doubt: (1) that an accused was driving in excess of the applicable speed limit,*fn5 (2) that the speed timing device was approved by the Department of Transportation*fn6 and, (3) that it had been tested for accuracy by an approved testing station.*fn7 See generally Commonwealth v. Gernsheimer, 276 Pa. Super. 418, 419 A.2d 528 (1980).*fn8 A review of the record reveals that the Commonwealth has sustained its burden of proving these elements. Trooper Rossi testified that while using the radar unit, appellant was "clocked" at 65 m.p.h. in a 55 m.p.h. speed zone. Further, there is no dispute that the device had been approved by the Department of Transportation and that it had been tested at an

[ 373 Pa. Super. Page 514]

    approved station.*fn9 Finally, according to the certificate of accuracy, the radar device had been tested approximately ten days prior to the date of the citation. Nothing in the statutes, the Code provisions*fn10 or case law require that the Commonwealth produce additional proof, and we decline to inject an additional element into the law where there is none. Accordingly, we are satisfied that the evidence was sufficient to sustain the conviction for speeding.

Finally, we find it necessary to comment on appellant's challenge to the Commonwealth's evidence. In our view, the question of whether the radar system produced an accurate test result absent corroboration by the four manufacturer-recommended field tests is one concerning the weight -- not the sufficiency -- of the evidence.*fn11 Pursuant to Section 3368(d) of the Motor Vehicle Code, "[a] certificate from the [testing] station showing that the calibration and test were made within the required period, and that the device was accurate, shall be competent and prima facia evidence of those facts in every proceeding in which a violation of [Title 75] is charged." 75 Pa.C.S.A. ยง 3368(d). Appellant's strategy to cross-examine the trooper regarding the failure to perform all of the recommended tests was merely an attempt to discredit the validity and accuracy of the calibration test result. It is the trial court's function to evaluate and weigh the evidence; such determinations are not lightly disturbed by an appellate court. Rich v. Commonwealth,

[ 373 Pa. Super. Page 51574]

Pa. Commw. 76, 78-80, 458 A.2d 1069, 1071-1072 (1983).

Having concluded that competent evidence of record supports the conviction, we affirm the order.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.