HomeMy WebLinkAbout00-1113 CriminalCOMMONWEALTH
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CHARGE: APPEAL FROM SUMMARY:
MAXIMUM SPEED LIMITS
JAMES W. KENDALL : NO. 00-1113 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., December 28, 2000.
In this Vehicle Code case, a pro se defendant has appealed to
the
Pennsylvania Superior Court from a judgment of sentence following a summary
trial in which he was found guilty of speeding. The sentence imposed was a fine
and costs.
The evidence, as to speeding, at the trial before this court on Defendant's
appeal from summary revealed that on February 5, 2000, at 8:55 p.m., a pickup
truck being driven by Defendant was stopped by Pennsylvania State Trooper
Christopher C. Ott on Interstate Route 81 in Cumberland County, Pennsylvania.~
The stop resulted from a radar indication of Defendant's speed at 79 miles-per-
hour; the posted speed limit was 65-miles per hour.2 Trooper Ott issued a citation
for speeding to Defendant.3 In acknowledging receipt of the citation, Defendant
subscribed his name to it and wrote:
ACCEPTED FOR VALUE
NON-NEGOTIABLE4
During the course of the trial, Defendant explained his action in this regard
as follows:
THE COURT: When you asked him what you were being
stopped for, did he tell you it was for speeding?
N.T. 4, 8, Trial, August 15, 2000 (hereinafter N.T.
2N.T. 4.
3N.T. 9.
Id.; traffic citation.
THE WITNESS: Yes.
THE COURT: ... I am not quite sure what you mean by
accepted for value, non-negotiable.
THE WITNESS: He wrote me a claim against my property
for damage, and I don't understand how I damaged him, but he
wrote a claim against my property. I didn't want that claim to
get blown out of proportion, so I made it non-transferable or
non-negotiable.
Non-negotiable simply means it's just between him and I.
So therefore when he transferred his claim against my property
to Hel~n S~.t~!enberger [the district justice who heard the case
in the first instance], I didn't understand what had gone on so
then I end up following it up with letters to Helen
Shulenberger, which resulted in more and more and just
escalated.
THE COURT: You are treating the citation as a property
claim?
THE WITNESS: Right.
THE COURT: Okayfi
Defendant also described the circumstances of the stop,6 and testified that,
in his opinion, he had not been speeding.? As noted, at the conclusion of the trial
the court found him guilty as charged and imposed sentence, as follows:
AND NOW, this 15th day of August, 2000, upon
consideration of the Defendant's appeal from summary
conviction, and following a de novo trial, the Court finds the
Defendant guilty of speeding at the rate of 79 miles per hour in
a 65 mile per hour zone.
The sentence of the Court is that the Defendant pay the
costs of prosecution, a fine of $60.50, a $10.00 Emergency
Medical Services Fund Assessment, and a $30.00 CAT Fund
Surcharge.
5 N.T. 22-23.
6 N.T. 22.
7 N.T. 23.
2
The Defendant is notified of his right to appeal to the
Pennsylvania Superior Court from the judgment of sentence
entered herein within 30 days of today's date.
Defendant filed an appeal from the judgment of sentence on September 14,
2000. The grounds for the appeal have been expressed in a statement filed by
Defendant on October 4, 2000, as follows:
I James W. Kendall do hereby give this detailed Statement
of Matters Complained of on appeal dated 8 Sept. 2000 for
reasons to include but not limited to the following:
1. PurpoSed Defend?.nt property was represented by it's
owner in order to protect owner's financial interest and
was therefore denied an adequate defence by a court
appointed attorney.
2. Discovery by defendant was denied or ignored by all
(10) written requests including court order signed by
the Judge on 7/18/00.
3. Written request dated 7 April 00, preceded by verbal
request on 6 April 2000, was not granted thereby
denial of due process occured.
4. Witness who testified for Commonwealth, who is
unknown by purported defendant, was identified
during trial by different names including: Trooper
Christopher C.Ott, Trooper Ott, and Christopher C.
Ott.
5. Witness for Commonwealth did not have, nor did he
state that he knew anyone who did have a bona fide
claim against the purported defendant, yet was still
allowed to offer testimony in the absense of a claim
and before jurisdiction was established by the court to
rule in this matter.
6. The certificate of calibration for timing device, of
which proported defendant has been denied a copy of,
showed reading to be inaccurate.
7. Vehicle information was inaccurate, a copy was
unattainable by purported defendant.
8. Both written and verbal requests for a BILL OF
PARTICULARS were denied therefore jurisdiction in
this matter was never established.
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9. Witness for the Commonwealth admitted receipt of
request for discovery, and receipt of 10-day default
letter and admitted that he did not respond, therefore
the request by the proported defendant to be granted
releif from the charges should have been granted for
failure to respond within a timely manner, in the
interests of justice.
10. Commonwealth did not provide purported defendant
with all requested evidence and witness list as
requested in writing therefore making an adequate
defence impossible to prepare for in advance.
Il. Tuning Fork test was stated as having an internal
check which indicates a speed of 15, 30, 45, and 60,;
and that the tuning fork indicated 65, which is
standard, but failed to mention the unit of distance
such as inches, feet, or yards, as well as failed to
mention the unit of time, such as seconds, minutes, or
hours. A copy of these test results were denied the
purported defendant.
12. Posted speed limit on route was stated as being 65, but
failed to state UNIT OF DISTANCE, and UNIT OF
TIME, therefore this statement warrents no merit as
evidence.
13. Witness stated reading of radar device indicated 79,
but failed to state UNIT OF DISTANCE, and UNIT
OF TIME, therefore this statement warrents no merit
as evidence.
14. Witness did not follow proper procedures whereby he
did not estimate the speed of purported defendants
vehicle before confirming the estimate with radar
device, however he did state that if he were to make an
estimate now, that he would estimate 80, but failed to
state UNIT OF DISTANCE, and UNIT OF TIME,
however proper procedure requires that this estimate
be done before confirming by use of an approved
timing device. Witness testimony shows that this
procedure was not followed property therefore this
procedure as well as the results of this procedure
warrents no merit as evidence.
4
I James W. Kendall do hereby request that the charges against
my property be dismissed for lack of; a Verified Complaint,
failure to respond in a timely manner, denial of due process of
law to purported defendant, and lack of jurisdiction in this
matter, in the interest of justice.
Defendant's statement of matters complained of on appeal indicates that,
inter alia, he continues to pursue the proposition that the case represents a civil
action against his property as opposed to a criminal prosecution of his person. The
matters complained of may be grouped into five general categories of grievance--
failure of the Commonwealth to properly maintain a civil claim against
Defendant's property, failure of the court to appoint counsel to represent
Defendant, failure of the Commonwealth to provide discovery to Defendant in
response to Defendant's motion, failure of the Commonwealth to file a bill of
particulars in response to Defendant's motion, and insufficiency of the evidence as
it related to radar. These subjects will be discussed seriatim hereafter.
This opinion is written in support of the judgment of sentence pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
DISCUSSION
The record in the present case, as evidenced by the docket entries, consists
of the citation and district justice transcript, Defendant's Request for a Bill of
Particulars (and for production of items such as the police report, "a copy of the
Verified Complaint which states the full and proper name of the injured party," a
"written and signed Notification as to the outcome of [the summary trial before the
district justice]," and a summary of "evidence to be used against purported
defendant"), a rule to show cause issued upon the Commonwealth in response to
Defendant's request, a Motion for Dismissal filed by Defendant based upon the
Commonwealth's lack of response to the rule, a denial of the motion to dismiss,
the notes of testimony of the trial, the verdict and sentence, a letter from
Defendant subsequent to the trial reiterating the pretrial request for a bill of
particulars and discovery, a denial of the post-trial request, Defendant's notice of
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appeal, orders relating to preparation of the transcript and submission of a
statement of matters complained of on appeal, and Defendant's statement of
matters complained of on appeal.
Construction of prosecution as civil action against Defendant's property.
The present case was commenced by the issuance of a citation to Defendant
pursuant to Pennsylvania Rule of Criminal Procedure 51. The citation charged
commission of a summary offense under the Vehicle Code. See Act of June 17,
P.L. 162, §1, as amended, 75 Pa. C.S. §3362(c)(1) (2000 Supp.). The court is
unaware of any authority for Defendant's position that the prosecution should be
regarded as a civil action brought by Trooper Ott on a non-transferable property
claim.
Appointment of counsel. In summary offense cases, the right of an indigent
defendant to appointment of counsel upon request where a likelihood of
imprisonment exists in the event of conviction is provided for in Pennsylvania
Rule of Criminal Procedure 316(a). Several factors in the present case, however,
militate against a conclusion that this right was abridged herein.
First, the penalty prescribed for the offense by statute was a fine as opposed
to imprisonment. See Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S.
§3362(c) (2000 Supp.). Second, the docket entries disclose no motion by
Defendant for appointment of counsel, nor does the trial transcript reveal such a
request. Third, the record contains no basis for a finding of indigency on the part
of Defendant. Under these circumstances, it is believed that Defendant's appeal
from the judgment of sentence, to the extent that it is based upon a violation of a
right to appointment of counsel, is not meritorious.
Failure of Commonwealth to provide discovery. With regard to discovery,
the Pennsylvania Rules of Criminal Procedure provide for disclosure, upon
request, by the Commonwealth of certain limited types of information to a
defendant. See Pa. R. Crim. P. 305. However, several impediments exist with
respect to Defendant's position on discovery in this case.
First, the type of discovery requested by Defendant was largely beyond the
scope of Rule 305. Second, much of the discovery requested by Defendant was
already a matter of public record, including the district justice transcript, the name
of the trooper who issued the citation (which was provided on the citation and
recorded on the transcript), and the outcome of the trial before the district justice
(which was also recorded on the district justice transcript). Third, discovery is not,
as a general rule, practiced in summary cases. Thus, a comment to Rule 305
espouses the view that the rule "is intended to apply only to court cases."
Comment--1998, Pa. R. Crim. P. 305 (noting, however, an exception where
disclosure of exculpatory evidence is constitutionally required); cf.
Commonwealth v. Owens, 427 Pa. Super. 379, 629 A.2d 150 (1993), appeal
denied, 537 Pa. 623,641 A.2d 588 (1994) (claim of motorist cited for speeding of
right to view radar reading at time of stop rejected).
Fourth, a termination of the prosecution as requested by Defendant in his
Motion for Dismissal would not have been an appropriate response by the court to
the Commonwealth's failure to answer the rule issued upon Defendant's discovery
motion. A more defensible approach by Defendant would have been a motion to
make the rule absolute and to compel the Commonwealth to provide the requested
discovery.
For the foregoing reasons, it is believed that the court's denial of
Defendant's motion for dismissal based upon a failure of the Commonwealth to
respond to the rule was correct, and that the judgment of sentence was properly
entered notwithstanding the Commonwealth's unwillingness to acquiesce in
Defendant's demand for discovery.
Failure of Commonwealth to provide bill of particulars. Under
Pennsylvania Rule of Criminal Procedure 304, a defendant may move for an order
directing the Commonwealth to provide a bill of particulars, within seven days of
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the Commonwealth's failure to comply with a timely request for the same.s
However, such a request must "set forth the specific particulars sought by the
defendant, and the reasons why the particulars are requested." Pa. R. Crim. P.
304(b).
"[A]n application for a Bill of Particulars is addressed to the [trial] court's
discretion." Commonwealth v. Hassine, 340 Pa. Super. 318, 361,490 A.2d 438,
461 (1985), overruled on other grounds, Commonwealth v. Schaeffer, 370 Pa.
Super. 179, 536 A.2d 354 (1987), affd, 547 Pa. 53,688 A.2d 1143 (1993). Factors
favoring the grant of an application for a bill of particulars include the prospect of
a disclosure of exculpatory evidence or evidence otherwise favorable to the
defense, the risk of unfair surprise at trial in the absence of a disclosure of the
requested information, and other compelling circumstances of an exceptional
nature. Id.
Finally, a dismissal of a prosecution for failure to respond to a rule to show
cause why a bill of particulars should not be provided would not normally be
appropriate. A fairer approach would be an order making the rule absolute and
directing the Commonwealth to file the requested bill of particulars.
In the present case, Defendant's motion for a bill of particulars did not set
forth the specific particulars sought, and did not indicate why the bill was
necessary. No unusual circumstances favoring a grant of the motion suggested
themselves. Furthermore, a dismissal of the prosecution for failure to respond to
the rule to show cause, as requested by Defendant, would, in the court's view,
have been excessive. For these reasons, it is believed that the court's denial of
Defendant's motion for dismissal based upon the Commonwealth's failure to file a
bill of particulars was correct, and that the judgment of sentence was properly
entered notwithstanding the Commonwealth's unwillingness to acquiesce in
Defendant's demand for a bill of particulars.
8 For purposes of this opinion, it will be assumed without holding that a bill of particulars may be
sought in a summary offense case.
Evidence related to radar. Under Section 3368(c)(2) of the Vehicle Code,
speed of a vehicle on a highway may be measured by a member of the
Pennsylvania State Police by a radio-microwave device, commonly referred to as
radar.9
All ... electronic devices shall be of a type approved by the
[Department of Transportation], which shall appoint stations
for calibrating and testing the devices .... 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
t!~at 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 [the Vehicle Code] is charged.
Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1368(d).
Under regulations promulgated by the Department pertaining to
certification, a radar unit must, for a given frequency, show "the correct speed in
mph ~vithin the limits of+O, -1 mph." 67 Pa. Code §105.15(a)(5)(v).
In the present case, the Commonwealth's evidence, which included a
certificate of accuracy with respect to the unit operated by Trooper Ott~° and
reference to the Pennsylvania Bulletin xvhich signified Department approval of the
model used and the station which performed the test,~ as well as Trooper Ott's
testimony as to his operation of the unit on the occasion of Defendant's stop, was
sufficient to show that the unit used "was properly certified under the Regulations
and that the officer could accurately time the rate of speed [that the vehicle was]
travelling .... "Commonwealth v. Ness, 341 Pa. Super. 225, 231,491 A.2d 234,
236-37 (1985). Unlike a prosecution for speeding based upon a speedometer
clock, the instant prosecution was not dependent upon proof of a minimum
9 Act of June 17, 1976, P.L. 162, {31, as amended 75 Pa. C.S. §3368(c)(2).
l0 Commonwealth's Exhibit 1, Trial, August 15, 2000.
l~ N.T. 7.
9
distance traveled.12 The court has found no authority for the proposition
apparently advanced by Defendant that the time and distance traveled by him
during the operation of the radar unit were facts which the Commonwealth was
required to prove in addition to the result of an approved, properly certified and
properly operated unit. The legislature's sanction of this type of device, which
internally calculates speed on the basis of electromagnetic intervals (and does not
require a measured course on the ground), for determining speed would suggest
otherwise.
For the foregoing reasons, it is believed that the judgment of sentence in
Defendant's case was properly entered.
Jaime M. Keating, Esq.
Chief Deputy District Attorney
James W. Kendall
6088 Molly Pitcher Highway
Chambersburg, PA 17201
Defendant, Pro Se
BY THE COURT,
J,.)'We~ley OleS(J~., J. ~ '/~/ '
12 See Commonwealth v. Ness, 341 Pa. Super. 225,491 A.2d 234 (1985).
10