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> Commonwealth of
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Traffic
Case Law 1
In
this traffic case, the
Appellant, Gail Denny
contends that she was
wrongly convicted
because the judge did
meet the statutory
requirements when the
prosecutor presented
evidence in court
against the defendant
(appellant).This case
involves traffic radar,
more specifically, the
KR-10 radar unit.
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372
Pa.Super.
317
Commonwealth
of
Pennsylvania
v.
Gail Denny,
Appellant.
Superior Court
of
Pennsylvania.
Argued June 25,
1987.
Filed Sept. 25,
1987.
Reargument
Denied Nov. 19,
1987.
[372
Pa.Super.
318] Alan
M. Rosen,
Philadelphia,
for
appellant.
Stuart Suss,
Asst. Dist.
Atty., West
Chester, for
Com.,
appellee.
Before Cirillo,
President
Judge, and
McEwen and
Tamilla,
JJ.
Cirillo,
President
Judge.
This is an
appeal from a
judgment of
sentence
entered in the
Court of Common
Pleas, Chester
County.
Appellant Gail
Denny was
convicted of
exceeding the
maximum speed
as proscribed
by 75 Pa.C.S.A.
§ 3362.
Her citation
indicated that
she had been
clocked by a
KR-10 radar
device as
travelling at
69 miles per
hour in a 55
mile per hour
speed zone.
Appellant
appealed
pursuant to
Pa.R.Crim.P.
63(b)(3), and a
de novo hearing
was held before
President Judge
Stively on
March 19,
1986.
On July 22,
1986,
appellant's
post-trial
motions were
denied. On
September 29,
1986, appellant
was sentenced
in absentia.
Appellant was
notified of the
sentence and
her right to
appeal within
thirty days
when she
received a
letter from the
District
Attorney's
Office dated
November 12,
1986. Denny
received this
letter on or
about November
15. Notice of
appeal was
filed in this
court on
December 15,
1986.
We consider the
following
question on
appeal: whether
the trial court
erred in
admitting into
evidence a
Certificate of
Accuracy of a
radar speed
timing device,
where the
Commonwealth
failed to
introduce
competent
evidence that
the issuer of
the Certificate
was a testing
station
approved
[372
Pa.Super.
319] by the
Department of
Transportation
at the time it
allegedly
tested the
radar device in
question?
Section 3368(d)
of the Vehicle
Code
provides:
All
mechanical,
electrical
or
electronic
devices
shall be of
a type
approved by
the
department,
which shall
appoint
stations for
calibrating
and testing
the devices
and may
prescribe
regulations
as to the
manner in
which
calibrations
and tests
shall be
made. The
devices
shall have
been tested
for accuracy
within a
period of 60
days prior
to the
alleged
violation. A
certificate
from the
station
showing that
the
calibration
and test
were made
within the
required
period, and
that the
device was
accurate,
shall be
competent
and prima
facie
evidence of
those facts
in every
proceeding
in which a
violation of
this title
is
charged.
75 Pa.C.S.A.
§ 3368(d)
(emphasis
added).
Appellant
argues that
the case of
Commonwealth
v.
Gernsheimer,
276
Pa.Super.
418, 419
A.2d 528
(1980) is
controlling.
In
Gernsheimer,
this court
stated:
We hold that in
prosecuting
speeding cases
where a radar
or other
electronic
device is used
to calibrate a
defendant's
speed that in
order to
introduce the
results of such
into evidence
the
Commonwealth
must offer a
Certificate,
certified by
the Secretary
of
Transportation
or his designee
certifying the
agency which
performs the
tests on the
devices as an
official
testing
station, and
must introduce
a Certificate
of Electronic
Device (radar)
Accuracy into
evidence.
Id. at 423, 419
A.2d at
530.
In the instant
case, the trial
court did not
find
Gernsheimer to
be controlling,
stating, "the
Gernsheimer
court did not
squarely
address the
issue with
which we are
presented and
we are
therefore under
no obligation
to follow its
recommendations."
In Gernsheimer,
appellant was
convicted of
speeding. On
appeal, the
issue raised
was whether the
trial court
improperly
admitted the
Certificate of
Accuracy
because the
certificate did
not contain an
official seal
on its
face.
[372
Pa.Super.
320] In
Gernsheimer,
the
Commonwealth
introduced two
exhibits: (1) a
certificate
from the
Secretary of
Transportation
under seal
appointing York
Corporation as
an official
testing
station, and
(2) a
certificate of
accuracy,
signed by both
the person who
calibrated the
device and the
person in
charge of the
testing
station. The
latter
certificate was
at issue, and
the appellant
contended it
should not have
been admitted
into evidence
because it did
not contain an
official seal
and the officer
who testified
at appellant's
hearing had not
performed the
tests nor was
he present
during its
testing.
Gernsheimer,
276 Pa.Super.
at 422-23, 419
A.2d at 530.
The Gernsheimer
court held that
an official
seal was not
needed for
admissibility,
stating that
"[t]here
is nothing in
[75
Pa.C.S.A.
§ 3368(d)
] which
requires that a
seal appear on
the Certificate
of Electronic
Device
Accuracy." Id.
at 423, 419
A.2d at
530.
The trial court
in the instant
case thus
concluded that
since the
language in
Gernsheimer
went beyond the
particular
issue raised
and was not
applicable to
the particular
facts in
Gernsheimer's
case, it is
obiter dictum.
See In re
Estate of Pew,
411 Pa. 96,
103, 191 A.2d
399, 404 (1963)
(what is
actually
decided and
controlling is
the law
applicable to
the particular
facts of that
particular case
and while all
other
statements and
conclusions
therein are
entitled to
great
consideration,
they are not
controlling).
The language in
Gernsheimer
clearly went
beyond the
specific issue
raised.
However, this
court has twice
restated this
"dictum" as
setting forth
the
requirements of
75 Pa.C.S.A.
§ 3368(d).
See
Commonwealth v.
Cummings, 338
Pa.Super. 149,
487 A.2d 897
(1985);
Commonwealth v.
Gussey, 319
Pa.Super. 398,
466 A.2d 219
(1983).
In Cummings,
the sole issue
on appeal was
whether in a
prosecution for
exceeding the
maximum speed
limit, the
Commonwealth
may enter into
evidence a
photocopy of
the certificate
of accuracy
required by 75
Pa.C.S.A.
§ 3368(d).
The court held
a photocopy of
the certificate
was not
admissible into
evidence
because it
could not be
authenticated.
In Gussey, the
issue on appeal
was whether the
certificate[372
Pa.Super.
321] of
accuracy was
improperly
admitted over
objection
because the
date was typed
in instead of
written by
hand, and the
Commonwealth
did not call
the party who
executed the
certificate to
verify the date
of execution.
The court found
no error,
holding that
"the
Commonwealth
can utilize any
means to fill
in the
'certificate of
accuracy,'
i.e., by typing
or hand-writing
the required
data, except
for the
signatures of
the certifying
personnel."
Gussey, 319
Pa.Super. at
409, 466 A.2d
at 225.
Like
Gernsheimer,
neither of
these cases
address the
specific issue
before us:
whether the
Commonwealth
offered
competent
evidence that
the certificate
of accuracy was
prepared by a
testing station
appointed by
the Department
of
Transportation.
See 75
Pa.C.S.A.
§ 3368(d).
Thus, the trial
court was
correct in its
finding that
the dictum in
Gernsheimer, as
well as its
reiteration in
Cummings and
Gussey, is not
binding
precedent.
The confusion
in establishing
a proper
foundation for
the admission
of a
certificate of
accuracy
pursuant to
§ 3368 is
evident from
our review of
the record. The
Commonwealth
relies on the
certificate of
accuracy itself
as proof that
Thomas
Associates has
been designated
an official
testing
station,
arguing that
"the court
properly took
judicial notice
of the fact
that ... the
testing
station, Thomas
Associates,
Inc., is an
approved
testing station
since those
facts appear in
numerous
publications of
the
Pennsylvania
Bulletin."
This argument,
however, is
misleading. It
is true that
the trial court
is required to
take judicial
notice of this
fact pursuant
to the
Commonwealth
Documents Law,
45 P.S.
§§
1501 and 1506
(1986 special
Pamphlet). But
the trial court
specifically
stated:
"We
are not
considering
any entry in
the
Pennsylvania
Bulletin
because that
was not
properly
before us
... having
been raised
long after
the evidence
of the
Commonwealth
had closed
in this
case. So we
are not
relying on
that. We are
relying on a
reading of
[the
statute]
and [372
Pa.Super.
322] a
fair
appraisal of
[the
certificate
of
accuracy]."
1
A
certificate of
accuracy, if
properly
authenticated,
is evidence of
the fact that
the radar
device has been
calibrated and
tested pursuant
to the
requirements of
§ 3368(d).
Section 3368(d)
provides that
the "department
shall appoint
stations for
calibrating and
testing." Thus,
in order to
meet the
statutory
requirements,
the
Commonwealth
must show that
the testing
station was
appointed by
the Department
of
Transportation.
Evidence,
independent of
the certificate
itself, is
necessary to
prove this. A
certificate of
accuracy,
issued by
Thomas
Associates,
which merely
states that
Thomas
Associates has
been designated
an official
testing
station, signed
by David A.
Thomas, is
insufficient.
We agree with
appellant that
an employee of
the testing
center cannot
attest to the
fact that the
testing station
has been
appointed by
the Department
of
Transportation
as an official
testing
station.
Although the
dictum in
Gernsheimer is
not
controlling, it
is entitled to
great
consideration.
In re Estate of
Pew, 411 Pa. at
103, 191 A.2d
at 404. In
light of the
confusion in
this case, we
find the
foundational
requirements
clarified in
Gernsheimer to
be particularly
helpful. In
Gernsheimer,
the
Commonwealth
introduced a
separate
document from
the Secretary
of
Transportation
under seal
appointing York
Corporation as
an official
testing
station. We
recognize the
inefficiency of
requiring this
type of
document in the
prosecution of
such cases, and
at the same
time recognize
the utility of
the listings in
the
Pennsylvania
Bulletin.
We therefore
hold that in
order for
results of a
radar device to
be properly
admissible at
trial, the
Commonwealth
must offer
evidence,
independent of
the certificate
of accuracy, to
show that the
testing
facility has
been appointed
by the
Department of
Transportation
as an official
testing station
pursuant to the
requirements of
section 3368(d)
of [372
Pa.Super.
323] the
Vehicle Code.
This
independent
evidence may
consist of
either a
separate
document from
the Secretary
of
Transportation
under seal or a
citation to the
Pennsylvania
Bulletin which
lists the
station as an
official
testing
station.
Judgment of
sentence
vacated.
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