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COMMONWEALTH PENNSYLVANIA v. ANTHONY MARTORANO (08/22/89)

filed: August 22, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY MARTORANO, APPELLANT



Appeal from Judgment of Sentence July 16, 1987, in the Court of Common Pleas of Philadelphia County, Criminal No. 87-003649.

COUNSEL

Francis X. Meehan, Philadelphia, for appellant.

Linda Perkins, Asst. Dist. Atty., for Com., appellee.

Cirillo, President Judge, and Brosky, Rowley, McEwen, Olszewski, Tamilia, Popovich, Johnson and Melinson,*fn* JJ. Rowley, J., files dissenting statement. Johnson, J., files dissenting opinion in which Popovich, J., joins.

Author: Olszewski

[ 387 Pa. Super. Page 152]

Appellant, Anthony Martorano, appeals from a judgment of sentence entered by the Court of Common Pleas of Philadelphia County sustaining the traffic court's imposition of a fine following appellant's conviction for speeding. For reasons delineated below, we vacate the judgment of sentence and discharge appellant.

During the early morning hours of June 19, 1986, Officer Patrick Taylor of the Philadelphia Police Department parked his patrol car, which was equipped with a speed timing device known as "Vascar," on the the Betsy Ross Bridge exit ramp onto Interstate 95. While so situated, Officer Taylor observed appellant traveling at a high rate of speed on the Bridge Street exit; moreover, a Vascar reading indicated that appellant had been traveling at an average speed of 71.81 miles per hour in a 25-miles-per-hour

[ 387 Pa. Super. Page 153]

    zone. The officer subsequently apprehended appellant and issued a traffic citation for appellant's violation of 75 Pa.C.S.A. § 3362(a)(3).*fn1

On April 17, 1987, appellant was convicted as charged in traffic court. Appellant appealed the conviction to the court of common pleas, which convened a de novo hearing on May 1, 1987. At the hearing, the Commonwealth submitted a copy of the original certificate of accuracy of the Vascar unit operated by Officer Taylor. Counsel for appellant objected on the grounds that photocopies are inadmissible pursuant to this Court's ruling in Commonwealth v. Cummings, 338 Pa. Super. 149, 487 A.2d 897 (1985).*fn2 In order to provide the Commonwealth with the opportunity to obtain the original document, the Honorable Joseph D. O'Keefe continued the hearing until June 10, 1987. At that time, however, the Commonwealth was still unable to supply the original certificate. Nonetheless, the Commonwealth urged that failure to comply with Cummings was not fatal to its case, arguing that:

The fact that the certificate of accuracy is not here just means that the Commonwealth didn't prove prima faciely [sic] with that certificate, but the testimony and the routine course and practice clearly prove that this man

[ 387 Pa. Super. Page 154]

    was speeding both under the Vacar [sic] and under the officer's observation.

Transcript at 26.

The trial court, over defense counsel's objection, admitted the evidence obtained through operation of the Vascar unit and appellant was convicted of violating § 3362(a)(3). Post-verdict motions were filed and denied on July 16, 1987. In it's opinion issued pursuant to Pa.R.A.P. 1925(a), however, the de novo court acknowledged that "[Appellant's] contentions . . . relating to the production of the Original Certificate of Accuracy and to the approvals of the Vascar Unit and testing station by the Pennsylvania Department of Transportation are supported under the law. Absent [the] requisite foundational facts regarding the calibration and approval of Vascar Unit NO. 2054 and the approval of the EM2 testing station, the speed of Mr. Martorano's automobile, as it was clocked by the Vascar Unit, cannot properly be sustained as competent evidence." Opinion at 5. Nonetheless, Judge O'Keefe found that there was sufficient evidence independent of the Vascar reading to support appellant's conviction. Citing Officer Taylor's experience, including the fact that he had issued approximately fifteen to twenty thousand speeding citations during his more than sixteen-year tenure with the police force, the court maintained "that the opinion testimony of Officer Taylor is, itself, sufficient to uphold the speeding conviction of Mr. Martorano." Opinion at 9. This appeal followed.

Appellant raises two issues for our review:

1. Did the Lower Court err when it found the appellant guilty of speeding, 75 Pa.C.S.A. Section 3362(a)(3), where the Commonwealth failed to submit into evidence an original certificate of accuracy for the speed timing device, and where the Commonwealth further failed to introduce any competent evidence, independent of the certificate of accuracy, to show that the speed timing device used by the police officer was approved for use by the Pennsylvania Department of Transportation and further that a testing facility appointed and approved by the

[ 387 Pa. Super. Page 155]

Commonwealth tested the machine in accordance with the requirements of 75 Pa.C.S.A. Section 3368(d) of the vehicle code.

2. Did the Lower Court err when it found appellant guilty of speeding solely based on the police officer's ...


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