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HomeMy WebLinkAbout98-1155 criminal COMMONWEALTH IN THE COURT OF COMMON PLEAS OF :CUMBERLAND COUNTY, PENNSYLVANIA V, : NO 98-1155 CRIMINAL DOUGLAS R. TONGE, : APPEAL FROM SUMMARY: Defendant : MAXIMUM SPEED LIMITS IN RE.' OPINION PURSUANT TO PA. R. A. P. 1925 Before HOFFER, P.J. OPINION In this opinion, we address Defendant's Appeal from the Court's finding of " guilt in Defendant's Appeal from a summary conviction for driving in excess of the posted speed limit.~ This opinion, filed pursuant to Pa. R.A P. 1925, sets forth the reasons for the finding of guilt. Defendant was stopped for speeding on U.S. Route 11 South on March 30, 1998. (Notes to Testimony of Hearing held September 1, 1998, hereinafter N.T., p. 8). Patrolman Robert Bostick of the Middlesex Township Police Department clocked Defendant travelling at an average speed of 60.2 miles per hour in a 40 miles per hour zone. (N.T., p. 9-10). Defendant was charged with violating 75 Pa. C. S. A. Section 3362, driving in excess of the posted speed limit. (N.T., p. 3). At a hearing before a district justice, Defendant was found guilty of travelling 55 miles per hour in a forty miles per hour zone. (N.T., p. 35). Defendant appealed ~ Defendant's Statement of Reasons Complained Of On Appeal was clocked in at the Cumberland County Clerk of Court Office on October 14, 1998. Though that date was not within the ten day filing period, the Court notes that it was in possession of the statement and inadvertently failed to clock the statement in on time. 98-1155 CRIMINAL from the district justices finding and hearing was held before this Court on September 1, 1998. The Court determined that Defendant was driving 60 miles per hour in a forty miles per hour zone and found him guilty. (N.T., p. 34). In Defendant's Statement of Reasons Complained Of On Appeal, Defendant sets forth one reason why his conviction should be overturned. Defendant claims that the Court erred in interpreting the facts of the case. Defendant does not argue any specific failure or miscalibration of the VASCAR device used to time his speed. Defendant merely argues that the laws of physics made it impossible for him to travel at 60 miles per hour. We interpret this assertion to mean that the Defendant is challenging the sufficiency of the evidence against him. The standard of review when challenging the sufficiency of the evidence is: [w]hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Kittelberger, 420 Pa. Super. 104, 108, 616 A.2d 1, 2-3 (1992), 2 98-1155 CRIMINAL quoting .Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986). To sustain a conviction for violating 75 Pa. C. S. A. Section 3362, the Commonwealth must prove, beyond a reasonable doubt, the following: (1) the accused was driving in excess of the speed limit; (2) the device used to time the speed was approved by the Department of Transportation; and (3) the device was calibrated and tested for accuracy within the prescribed time period at a station which has been approved by the Department of Transportation. Commonwealth v. Kittelberger, 420 Pa. Super. 104, 108, 616 A.2d 1, 3 (1992). In the case at bar, the officer clocked the Defendant driving at a speed of 60.2 miles per hour in a 40 miles per hour zone. The Court took judicial notice that the Department of Transportation approved both the VASC^R device, as a speed timing device, and the testing facility used to calibrate the device. (N.T., p. 8). Testimony was also taken that the VASCAR device used was last calibrated March 12, 1998, well within the prescribed sixty day period. (N.T., p. 8). The Commonwealth's evidence was credible and legitimate. The burden of proof was fulfilled. The Court heard and considered all evidence put forth by the Defendant. After careful consideration of the facts as presented the Court found the Defendant guilty. 3