J-A31005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TANNIA AURORA JAUREGUI,
Appellant No. 59 EDA 2016
Appeal from the Judgment of Sentence Entered November 24, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-SA-0000332-2015
BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 04, 2017
Appellant, Tannia Aurora Jauregui, appeals from the judgment of
sentence of fines totaling $164, imposed after she was convicted of driving
an unregistered vehicle, 75 Pa.C.S. § 1301(a), and driving in violation of the
maximum speed limits, 75 Pa.C.S. § 3362(a)(3). We affirm.
The trial court summarized the facts and procedural history of this
case, as follows:
On January 21, 2015 at approximately 9:24[]AM, Officer
Anthony Aloi of the Swarthmore Borough Police Department was
on duty monitoring the speed of vehicles in a marked patrol
vehicle on Michigan Avenue and School Lane in Swarthmore
Borough, Delaware County, Pennsylvania. At this date and time,
Officer Aloi clocked a red sedan (the Vehicle) traveling
westbound on Michigan Avenue at 52.3 [miles per hour (mph)]
in a 25 mph speed zone. When Officer Aloi saw the Vehicle,
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*
Former Justice specially assigned to the Superior Court.
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[his] patrol vehicle was parked on School [Lane]. The patrol
vehicle was approximately 35 to 40 feet from the intersection of
Michigan Avenue. The intersection was a “T” intersection.
[Appellant] was traveling on Michigan Avenue. Officer Aloi
testified that at this time, he had a clear view of the speed lines
and nothing obstructed his view. Officer Aloi identified the
Vehicle’s driver as [Appellant].
Officer Aloi testified [that] on this day, he used a Robic
Speed Timing Device, Serial No. SB5R, a certified device up to
calibration, and 90 foot speed lines. Officer Aloi explained that
when he “clocked” the Vehicle from “line to line,” he pushed the
button on the speed timing device when he saw the Vehicle’s
front tires [strike] the first line and pushed the button again
when he saw the Vehicle’s front tires striking the second line.
Officer Aloi testified that the distance of 90 feet is equivalent to
.017 miles. Officer Aloi testified that the speed timing device
beeps when he pushes the button. Officer Aloi further testified
that the speed timing device calculated that there was 1.17
seconds between [the Vehicle’s] striking the first line and the
second line. Therefore, the speed of the Vehicle was 52.3 mph.
Then, Officer Aloi performed a traffic stop of the Vehicle.
Officer Aloi testified that there was a passenger in the Vehicle,
but [he] did not recall seeing anything on the passenger’s lap.
During the traffic stop, Officer Aloi checked [Appellant’s] vehicle
registration through NCIC and learned the registration was
expired. Officer Aloi issued two citations to [Appellant] for the
excessive speed violation, 75 Pa. C.S.A. §3362(a)(3), and for
the expired vehicle registration, 75 Pa. C.S.A. §1301(a).
***
On behalf of [Appellant], Mercedes Palma (Ms. Palma),
[Appellant’s] mother, testified that on the time and date in
question, she was the passenger in [Appellant’s] [v]ehicle. Ms.
Palma further testified that while [she was] in the Vehicle, she
had her white dog in her lap. Ms. Palma testified that they were
going to the vet because the dog was bleeding. Ms. Palma
further testified that she intermittently looked at the
speedometer as [Appellant] drove on Michigan Avenue because
she was in a catastrophic vehicle accident many years ago. Ms.
Palma testified that while traveling on Michigan Avenue, the
Vehicle was not going more than 25[]mph. Ms. Palma testified
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that she saw the patrol vehicle crossing School Lane while
traveling on Michigan Avenue.
[Appellant also testified and] denied driving on Michigan
Avenue in excess of 25[]mph on the date and time in question.
[Appellant] testified that while traveling on Michigan Avenue, she
looked at her speedometer. [Appellant] further testified that in
the morning on the date in question, she was at the vet and had
a receipt for the visit. [Appellant] introduced [into evidence] a
photograph of the intersection of School Lane and Michigan
Avenue and a photograph of Michigan Avenue, which were
admitted. [Appellant] testified that Officer Aloi’s patrol vehicle
was not parked at the corner of School Lane and Michigan
Avenue, but rather [it] was parked “all the way down School
Lane.” [Appellant] testified that there was a stop sign on
Michigan Avenue where it intersects with a street two blocks
before School Lane. [Appellant] could not recall the name of the
street and testified that she would not have stopped at this stop
sign and[] then[] accelerate[d] the Vehicle to 50 mph before
arriving at the School Lane intersection.
Trial Court Opinion (TCO), 1/27/16, at 1-2, 4-5 (citations to the record
omitted).
After hearing this evidence, “[t]he trial court found Officer Aloi’s
testimony to be extremely credible” and, thus, it convicted Appellant of the
above-stated offenses. Id. at 9. That same day, the court sentenced
Appellant to pay fines totaling $164. She filed a timely notice of appeal, and
also filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. The trial court filed a responsive opinion on January 27, 2016.
Herein, Appellant presents four questions for our review:
1. Did the [trial] [c]ourt abuse its discretion [by] convicting
[Appellant] when the Commonwealth failed to prove beyond a
reasonable doubt that [Appellant] was speeding in light of
uncontroverted testimony from a passenger-witness that
[Appellant] was not speeding, and physical evidence that Officer
Aloi could not observe the “traffic lines”?
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2. Did the [trial] [c]ourt commit an error of law when it
sustained a conviction for speeding tracked for a 90[-]feet
distance when 75 Pa[.C.S.] §3368(a) specifically states the
distance can be “not less than three tenths of a mile[]”[?]
3. Did the [trial] [c]ourt commit [an] error of law when it
sustained a conviction for an expired registration when there
was no probable cause to have stopped [Appellant,] making the
evidence fruit of the poisonous tree?
4. Did the [trial] [c]ourt abuse its discretion when it denied
[Appellant’s] procedural due process rights to present argument
and closing argument?
Appellant’s Brief at 5.
Appellant’s first three issues challenge the sufficiency of the evidence
to sustain her convictions.
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Appellant first contends that the evidence was insufficient to support
her speeding conviction because both she and Ms. Palma testified that she
was not speeding and that Officer Aloi was parked in a location where he
could not possibly have been able to see the speed lines. Essentially,
Appellant is complaining that the trial court should have credited her and her
mother’s testimony rather than that of the officer. Attacks on credibility
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determinations are challenges to the weight, not the sufficiency, of the
evidence. See Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa. Super.
1997). Moreover, the trial court was free to believe the officer’s testimony
and discount the self-serving claims of Appellant and her mother, Ms. Palma.
Commonwealth v. Caban, 60 A.3d 120, 132 (Pa. Super. 2012) (“[T]he
trier of fact while passing upon the credibility of witnesses and the weight of
the evidence produced, is free to believe all, part or none of the evidence.”)
(citation omitted). Thus, Appellant’s argument does not demonstrate that
the evidence was insufficient to sustain her speeding conviction.
In Appellant’s next issue, she contends that the evidence was
insufficient to prove that she was speeding because Officer Aloi only clocked
her speed for a distance of 90 feet, when 75 Pa.C.S. § 3368(a) requires a
police officer to clock a driver’s speed for “not less than three tenths of a
mile.” Appellant’s Brief at 15. Section 3368(a) reads:
(a) Speedometers authorized.--The rate of speed of any
vehicle may be timed on any highway by a police officer using a
motor vehicle equipped with a speedometer. In ascertaining the
speed of a vehicle by the use of a speedometer, the speed
shall be timed for a distance of not less than three-tenths of a
mile.
75 Pa.C.S. § 3368(a) (emphasis added).
Clearly, section 3368(a) applies when an officer is clocking a driver’s
speed by using the speedometer in the police vehicle. Here, Officer Aloi did
not use his speedometer, but instead he utilized a “Robic Speed Timing
Device.” TCO at 2. The use of speed timing devices is regulated by section
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3368(c), not (a). Accordingly, Appellant’s argument that her speeding
conviction cannot stand because the officer violated section 3368(a) is
meritless.
Next, Appellant contends that the evidence was insufficient to support
her conviction of driving an unregistered vehicle because the evidence that
her registration had expired was only discovered after Officer Aloi unlawfully
stopped her vehicle. Appellant avers that the vehicle stop was illegal
because Officer Aloi “was unable to observe the speed lines he used to track
the speeding[,]” and because he violated 75 Pa.C.S. § 3368(a) by not
tracking her speed for three-tenths of a mile. Thus, according to Appellant,
the officer lacked probable cause or reasonable suspicion to validate the
traffic stop. However, Appellant did not file a motion to suppress the
evidence that her registration had expired. Consequently, she cannot now
claim that the court erred by considering that evidence in convicting her of
driving an unregistered vehicle.1
Lastly, Appellant argues that the trial court “abused its discretion when
it denied [her] procedural due process rights to present [a] closing
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1
Even had Appellant filed a motion to suppress, her claim that the traffic
stop was illegal is clearly meritless. Again, section 3368(a) does not apply
to the facts of this case, and the court was free to believe Officer Aloi’s
testimony that he could see the speed lines. Accordingly, when Officer Aloi
clocked Appellant’s speed and determined that she was driving 52.3 miles
per hour (mph) in a 25 mph speed zone, he clearly possessed probable
cause to stop her vehicle.
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argument.” Appellant’s Brief at 19 (emphasis omitted). We need not delve
into the specifics of Appellant’s argument, as the court points out - and the
record confirms - that she never asked to present a closing argument, nor
did she object when the court rendered its verdict without closing arguments
being given by either party. See TCO at 11 (citing N.T. Trial, 11/24/15, at
60-61). Because Appellant never raised before the trial court the purported
violation of her due process rights, she has waived that claim for our review.
See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2017
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