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HomeMy WebLinkAbout98-1340 criminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : JEFFREY SCOTT SMITH : 98-1340 CRIMINAL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 192-~ Bayley, J., January 13, 1999:-- On October 6, 1998, following a bench trial, defendant, Jeffrey Scott Smith, was found guilty of the summary offense of driving under suspension, DUI-related in violation of the Vehicle Code at 75 Pa.C.S. Section 1543(b), and the summary offense of driving through a red light in violation of the Vehicle Code at 75 Pa.C.S. Section 3112. Defendant was sentenced on October 6th, on the red light violation to pay the costs of prosecution and fine of $25. On the driving under suspension, DUI-related conviction, a mandatory sentence was imposed for a third offense to pay the costs of prosecution, a fine of $1,000, and undergo imprisonment in the Cumberland County Prison for a term of 90 days. Bail was continued pending the filing of a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania. Defendant filed that appeal and in a statement of matters complained of on appeal, avers: (A) The defendant was prejudiced by the fact that the police officer, who was off duty at the time of the alleged violation, filed a citation rather than issue a citation directly in violation of Rule 60 of the Pennsylvania Rules of Criminal Procedure. (B) Defendant further avers that the verdict was against the weight of the evidence. The evidence at trial in a light most favorable to the Commonwealth was as 98-1340 CRIMINAL TERM follows.1 On March 13, 1998, at approximately 12:15 p.m., Corporal Michael Dzezinski of the Carlisle Police, while off duty and not in uniform, was operating his personal vehicle in the Borough of Carlisle. He was on South Pitt Street behind a car as he approached the intersection of High Street which was controlled by a traffic light. Corporal Dzezinski looked to the right side of the intersection and saw defendant, Jeffrey Smith, driving a white Mustang. He knew Smith by name and by face and that he drove a white Mustang. Defendant's mother, Evelyn Smith, owns a white Mustang. Corporal Dzezinski looked at defendant for about ten seconds and saw him drive through the traffic light which was red for traffic on High Street. Officer Dzezinski did not pursue defendant for the red light violation because he was in his private vehicle and not in uniform. Later on the same day, Officer Dzezinski requested a certification of defendant's driving record from the Department of Transportation. After receiving that record, which shows that defendant's operating privilege was suspended for one year effective October 21, 1997, for a driving under the influence conviction, the officer filed the within citations on March 26, 1998. DISCUSSION Defendant maintains that Officer Dzezinski violated Pa.R.Crim. P. 60 so as to require an arrest of judgment. Rule 60 provides: When it is not feasible to issue the citation to the defendant or when evidence is discovered after the issuance of a citation that gives rise to additional summary charges against the defendant resulting from the Commonwealth v. Reddix, 355 Pa. Super. 514 (1986). -2- 98-1340 CRIMINAL TERM same incident, a law enforcement officer shall institute a criminal proceeding in a summary case by filing a citation with the proper issuing authority. The Vehicle Code at 75 Pa.C.S. Section 1543(d) provides: Citation of appropriate subsection.--Prior to filing a citation for a violation of this section with the issuing authority named in the citation, the police officer shall verify the basis for the suspension with the department. Upon receiving the verification, the officer shall cite the appropriate subsection of this section on the citation, (Emphasis added.) Not only was it not feasible for Officer Dzezinski to pursue and stop defendant for a red light violation while he was not in uniform and was in his own vehicle, the officer properly filed both citations after he received the verification from PennDOT that defendant's operating privilege was suspended on March 13, 1998. There was no Rule 60 violation that requires an arrest of judgment. A new trial should be awarded on the grounds that the evidence is against the weight of the evidence only when the verdict is so contrary to the evidence as to shock one's sense of justice, making the award of a new trial so imperative so that right may be given another opportunity to prevail. Commonwealth v. Manchas, 430 Pa. Super. 63 (1993). While defendant offered evidence that he was not driving on the occasion that Officer Dzezinski testified that he saw him drive, the court was satisfied beyond a reasonable doubt that he did. The credibility of the witnesses was for the trier of fact. Commonwealth v. Cruz-Centeno, 447 Pa. Super. 98 (1995). Defendant is not entitled to a new trial on his claim that the verdicts were against the weight of the evidence. -3- 98-1340 CRIMINAL TERM Jaime Keating, Esquire For the Commonwealth Diana Woodside, Esquire For Defendant Edgar B. Bayley, f' :saa -4-