Com. v. Poseno, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RANDALL S. POSENO
Appellant No. 266 MDA 2016
Appeal from the Judgment of Sentence January 12, 2016
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-SA-0000089-2015
BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 22, 2016
Randall S. Poseno appeals from the judgment of sentence of a fine
plus costs imposed after he was convicted of speeding, a summary offense.
We affirm.
During the early afternoon of July 3, 2015, Pennsylvania State Police
Sergeant Matthew Nickey was positioned along Route 15 in Adams County
monitoring southbound traffic with a radar device. The posted speed limit
on that road was sixty-five miles per hour. At 12:08 p.m., Sergeant Nickey
clocked a silver Chrysler sedan traveling at eighty-five miles per hour.
Sergeant Nickey effectuated a traffic stop. Appellant was the driver of the
vehicle.
* Retired Senior Judge assigned to the Superior Court.
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After Sergeant Nickey spoke with Appellant, he returned to his cruiser
and completed a citation for speeding in violation of 75 Pa.C.S. § 3362.1 He
did not print the citation since he had run out of citation numbers, which can
be downloaded only in groups, and the citation in question could not be
issued a number. Sergeant Nickey informed Appellant that he would receive
the citation by mail, immediately returned to the police station, obtained
additional citation numbers, added a citation number to Appellant’s citation,
and printed it. Sergeant Nickey then filed the citation with the court. 2
A magisterial district judge found Appellant guilty. Following a de
novo summary appeal hearing, the court found Appellant guilty of speeding
and ordered him to pay a fine of $52.50 plus costs. Appellant filed a timely
notice of appeal, and subsequently, filed his Rule 1925(b) concise statement
of matters complained of on appeal. The court then issued its Rule 1925(a)
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1
The Vehicle Code reads, in pertinent part, “except when a special hazard
exists that requires lower speed for compliance with section 3361 (relating
to driving vehicle at safe speed), the limits specified in this section or
established under this subchapter shall be maximum lawful speeds and no
person shall drive a vehicle at a speed in excess of the following maximum
limits . . . (1.1) 65 miles per hour . . . for all vehicles on freeways where the
department has posted a 65-miles-per-hour . . . speed limit.” 75 Pa.C.S. §
3362.
2
We note that, although Sergeant Nickey observed Appellant traveling at
eighty-five miles per hour, he issued the citation for seventy-five miles per
hour “to give [Appellant] a little bit of a break on the points and the fine.”
N.T., 1/12/16, at 10-11.
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opinion. This matter is now ready for our review. Appellant raises a single
question for our consideration:
Whether the Trial Court abused its discretion in judging
Appellant guilty of speeding, inasmuch as the Commonwealth
failed to prove beyond a reasonable doubt that it was
defendant’s vehicle that was exceeding the posted speed limit by
ten miles per hour[?]
Appellant’s brief at 4.
Appellant’s primary contention challenges the sufficiency of the
Commonwealth’s evidence that he was speeding. He maintains that
Sergeant Nickey mistakenly issued him a citation after the fact. Appellant
argues he was actually traveling at sixty-five miles per hour, and Sergeant
Nickey initiated the stop only to warn Appellant that it was illegal to drive in
the left lane when not passing another car. In addition, Appellant asserts
that the certificate of accuracy for the radar was not signed by a “designee
of the Secretary of Transportation,” and, therefore, the radar was not
properly certified for use. Appellant’s brief at 11.
Our scope and standard of review of sufficiency claims is well-settled.
In analyzing a sufficiency challenge,
we must determine whether, viewing all the evidence admitted
at trial in the light most favorable to the verdict winner, there is
sufficient evidence to enable a fact-finder to find every element
of the crime beyond a reasonable doubt. In applying the above
test, we may not weight the evidence and substitute our
judgment for that of the fact-finder.
In addition, we note that the facts and circumstances established
by the Commonwealth need not preclude every possibility of
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innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. 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
record must be evaluated and all evidence actually received
must be considered. Finally, the trier of fact while passing upon
the credibility of the witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015)
(citations omitted).
To sustain a conviction for speeding, the Commonwealth must show
beyond a reasonable doubt that: 1) the defendant was driving in excess of
the speed limit; 2) the speed timing device was approved by the Department
of Transportation; and, 3) the device was calibrated and tested for accuracy
within prescribed time period by a station which has been approved by the
department. Commonwealth v. Kittelberger, 616 A.2d 1, 3 (Pa.Super.
1992) (citation omitted).
Instantly, the Commonwealth offered the testimony of Sergeant
Nickey. Sergeant Nickey testified, and the court credited, that he observed
Appellant traveling at an excessive rate of speed on a stretch of roadway
with a properly posted speed limit of sixty-five miles per hour. His
observation was confirmed by hand-held radar, which indicated Appellant
was driving at eighty-five miles per hour. The Commonwealth also
presented a certificate of accuracy for the radar, which was entered into
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evidence without objection. That document specified that the unit was
certified by YIS/Cowden Group, Inc. on January 2, 2015, well within the one-
year limit required by statute. See 75 Pa.C.S. § 3368(d). The court took
judicial notice of the Pennsylvania Bulletin wherein the testing facility and
hand-held radar were listed as certified.3 Thus, we find the Commonwealth
established beyond a reasonable doubt that Appellant operated his vehicle
above the maximum speed limit.
Appellant also assails the propriety of the certificate of accuracy based
on insufficient evidence that the tester was a “designee of the Secretary of
Transportation.” Appellant’s brief at 11. This argument has been waived.
Appellant did not object to the admission of the certificate at trial, and issues
not raised at trial may not be raised for the first time on appeal. See
Commonwealth v. Jaynes, 135 A.3d 606, 613 (Pa.Super. 2016) (failure to
raise a timely objection at trial waives the claim on appeal); Pa.R.A.P.
302(a). We further observe that Appellant’s argument is premised upon a
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3
A review of the Commonwealth’s exhibit reveals that the certified testing
station at issue was YIS/Cowden Group, Inc., rather than Guth Laboratories
as stated by Sergeant Nickey. See N.T., 1/12/16, at 5-7. The
Commonwealth also erroneously requested that the court take judicial notice
of the laboratory’s certification in Volume 45, Number 1, pages 88-96 of the
Pennsylvania Bulletin. Notice of certification for both laboratories is located
at Volume 45, Number 51, pages 7254-7257 of the Pennsylvania Bulletin.
These inconsistencies do not affect the substance of the evidence adduced at
trial, and we note them here for accuracy’s sake.
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fundamental misreading of the relevant law, and therefore, he would not be
afforded relief even if the matter were properly before us.4
Finally, to the extent that Appellant’s passing reference to
Pennsylvania Rule of Criminal Procedure 4105 challenges the procedure by
which Sergeant Nickey issued his citation, that issue is waived. Appellant
raised a similar claim in his Rule 1925(b) statement, and the trial court
addressed that issue in its opinion. However, Appellant failed to include this
issue in his statement of questions involved on appeal in violation of
Pa.R.A.P. 2116, and it is not fairly suggested by the sufficiency issue
presented herein. In addition, Appellant has not fully articulated his
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4
Appellant relies on Commonwealth v. Gussey, 466 A.2d 219, 224
(Pa.Super. 1983) (citing Commonwealth v. Gernsheimer, 419 A.2d 528,
530 (Pa.Super. 1980)) for the proposition that the certificate of accuracy
must be signed by a “designee of the Secretary of Transportation.”
Appellant’s brief at 11. However, the relevant authority reads, in pertinent
part, that the certificate must be “certified by the Secretary of
Transportation or his designee certifying the agency which performs the test
on the devices is an official testing station . . . [and] must be signed by the
person who performed the tests[.]” Appellant’s claim that the tester must
be a designee of the Secretary of Transportation is belied by the clear
language of the above quoted statement which indicates it must be certified
by the Secretary of Transportation or a designee, but merely signed by the
tester.
5
Pennsylvania Rule of Criminal Procedure 410 specifies that, “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 same incident, a law enforcement
officer shall institute a criminal proceeding in a summary case by filing a
citation with the proper issuing authority.” Pa.R.Crim.P. 410.
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position, noting only that Sergeant Nickey was prevented from issuing a
citation in person due to a computer malfunction. Appellant does not bolster
this position with case law or provide legal argument to explain how
Sergeant Nickey’s purported deviation from protocol entitles him to relief.
Hence, we find this issue waived. Commonwealth v. Long, 786 A.2d 237,
239 n.3 (Pa.Super. 2001) (citation omitted) (observing “generally, questions
not presented in the ‘Statement of Questions Involved’ are deemed
waived”); Commonwealth v. Gonzalez, 112 A.3d 1232, 1240 (Pa.Super.
2015) (citation omitted) (finding issue waived where appellant failed to cite
any legal authority).
In summary, the Commonwealth adduced sufficient evidence to
convict Appellant of speeding, and Appellant’s other contentions are waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2016
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