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08/01/97 COMMONWEALTH PENNSYLVANIA v. PHILIP S.

August 1, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
PHILIP S. BEACHEY, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Cumberland County, Criminal Division, No. 1996-01436. Before BAYLEY, J.

Before: Tamilia, J., Hudock, J. and Cercone, P.j.e. Opinion BY Tamilia, J. Dissenting Statement BY Hudock, J.

The opinion of the court was delivered by: Tamilia

OPINION BY TAMILIA, J.:

FILED August 1, 1997

Philip Beachey, pro se, appeals his judgment of sentence of $25 plus costs of prosecution. Appellant, who repeatedly flashed his high beams within 50 feet of oncoming vehicles in order to warn them of a police radar unit, was found guilty in a bench trial for violating the Vehicle Code, 75 Pa.C.S. § 4306 Use of multiple beam road lighting equipment, "Whenever the driver of a vehicle approaches an oncoming vehicle within 500 feet, the driver shall use the low beam of light." Id., § 4306(a) Approaching an oncoming vehicle.

Appellant's principal argument is that he merely "flashed" his high beams within 500 feet of oncoming traffic, while the statute only forbids the "use" of high beams within 500 feet of oncoming traffic and says nothing about "flashing" high beams on and off. According to Black's Law Dictionary (5th ed., p. 1381), however, to "use" means "to make use of, ... to avail one's self of, to employ." By flashing his high beams on and off, appellant clearly "made use of" his high beams, "availed himself" of his high beams, and "employed" his high beams each time he "flashed" them.

Appellant further claims the evidence was insufficient as a matter of law to support his conviction. However, the trial court found the Commonwealth proved beyond a reasonable doubt that appellant repeatedly used his high beams. When reviewing the decisions of a Court of Common Pleas, the Superior Court will defer to that court's findings of fact. Fox Park Corp. v. James Leasing Corp., 433 Pa. Super. 505, 641 A.2d 315 (1994). Having reviewed the evidence in the light most favorable to the Commonwealth, we note that appellant himself admitted, "I did flash my headlights on and off a number of times, it easily could have been ten, probably was a few more." (T.T., 10/1/96, pp. 12-13.) He also stated "It was a low beam going into high and back to low...." (T.T. at 15), thus confirming the trial court's finding.

While the statutory intent of section 4306(a), Approaching an oncoming vehicle, was to prevent the use of high beams in a range of distance between oncoming vehicles which would disturb or momentarily blind the driver of the vehicle facing the one with the high beams in play, intent is not a cognizable element of the offense. Neither is length of time of exposure or "flashing" of the high beams a consideration. We are well aware of the benign use of "flashing" of high beams to alert oncoming motorists that their lights are not on in darkness, or that a passing vehicle is in a safe position to move from a passing lane to the right lane, however, the Motor Vehicle Code makes no exceptions in establishing the violation. It is very unlikely that persons would be stopped in these instances or that they would be cited if pulled over. Indeed, in this case, it appeared that appellant would not have been cited but only given a warning had he not vigorously protested the stop. Since exceptions may have the effect of vitiating a rule which in simple application has a very important public safety application, we believe it is better for the legislature to evaluate the need and circumstances of application of such exceptions, rather than imposing them by judicial decision. As it is, the decision as to when and under what circumstances the citation is to be given permits considerable discretion by the police and in view of the fact this is an issue of first impression in that there is no appellate case which has come to our attention that involves a similar factual situation, it is an indication police are exercising appropriate discretion.

For the foregoing reasons, we find appellant's claim to be without merit and affirm the judgment of sentence.

Judgment of sentence affirmed.

DISSENTING STATEMENT BY HUDOCK, J.

FILED August 1, 1997

Because I believe 75 Pa.C.S.A., section 4306 applies only to periods of diminished light conditions, and not to daylight conditions as existed in the ...


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