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COMMONWEALTH PENNSYLVANIA v. MAX B. BASLICK (12/11/89)

filed: December 11, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
MAX B. BASLICK, APPELLANT



Appeal From Order Entered May 1, 1989, Court of Common Pleas, Criminal Division, Lancaster County No. S103-1988.

COUNSEL

Michael M. Apfelbaum, Sunbury, for appellant.

Cavanaugh, Montemuro and Popovich, JJ.

Author: Cavanaugh

[ 389 Pa. Super. Page 414]

The present appeal is from a sentence of a fine for vehicular speeding in violation of the vehicle code. The trial court found the appellant, Max E. Baslick, guilty in a trial de novo after an appeal from a summary conviction. The speeding citation was issued after observation of appellant's tractor trailer by a trooper aboard an aircraft which was on aerial patrol over the Pennsylvania Turnpike.*fn1 Appellant argues that we should reverse the conviction because of an alleged discrepancy in the color identification of the vehicle as reported and recorded by the aerial observer and the trooper on the highway who issued the citation. The air and ground personnel maintained radio contact. Appellant fails to articulate whether his argument is that the evidence was insufficient or whether the verdict is against the weight of the evidence. We have nevertheless reviewed the record under both standards and find no merit to the appeal. The argument as to a conflict in the color description of the offending vehicle was but a single factor in the trial before the court. The court resolved all issues of credibility in favor of the Commonwealth and found that appellant's vehicle was continuously observed from the time the speeding was timed until it was stopped by the officer on the highway.

Appellant's sole citation of authority is the case of Commonwealth v. LaPaglia, 22 D & C 3d 28 (1981) wherein the court in an aerial surveillance speeding case held:

Accordingly, because of the misgivings we have already expressed as to the inherent difficulties with the method of identification here used, we hold that it is so fraught with risk of innocent error that it must be scrutinized with care and received with caution before being accepted as true by the factfinder. Commonwealth v. LaPaglia, 22 D & C 3d, 34.

[ 389 Pa. Super. Page 415]

We disagree and see no reason for a stricter standard of proof in aerial observation speed cases. The testimony in this case from the trooper was that he was a passenger in the aircraft in the "air enforcement program" when he observed appellant's vehicle travelling at a speed noticeably greater than the rate of other traffic, thereafter he recorded the time elapsed while the truck passed between several marked (and duly certified) distance markers on the surface of the turnpike. The officer testified:

Q. While you were observing this vehicle pass over these lines, what did you do?

A. As the front of the tractor trailer combination approached the first set of lines, which was at mile post marker 270.0, and as it then crossed it, I activated my stopwatch, an electronic stopwatch which I had there in the aircraft, and permitted that instrument to continue to function until the front of that tractor trailer combination crossed over the second line. It was in the left lane throughout that period of time, and that second location was at mile post marker 270.6 eastbound.

Q. And after you made that observation what did you do?

A. As the front of its passed over the second line, I deactivated the instrument and looked at the digital readout to observe the ...


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