Commonwealth v. Martorano

JOHNSON, Judge,

dissenting:

The majority has not set forth the limited scope of review which must control our determination of this appeal. Ignoring uncontested facts which were found by the trial court, the majority concludes that legislative authorization of speed timing devices was “fully intended to require the use” of such devices where a motor vehicle operator is charged with driving 65 miles per hour in a 25 mile-per-hour zone. Since this disregards the plain language of the statute and improperly strips the finder of fact of its long-established perogative to weigh the evidence before it, I must dissent.

Our scope of review in motor vehicle violation cases, where the trial court has heard the case de novo, is to determine whether or not the findings of fact are supported by competent evidence and to correct conclusions of law erroneously made. Commonwealth v. Gussey, 319 Pa.Super. 398, 402, 466 A.2d 219, 221 (1983); Cf. Rich v. Commonwealth, 74 Pa.Comwlth. 76, 78, 458 A.2d 1069, 1071 (1983).

*162The appellant, Anthony Martorano, contends that the trial court erred when it found him guilty of speeding based solely on the police officer’s testimony as to speed. I find no merit in that contention. I would affirm the conviction.

Our well-established standard in testing Martorano’s claim is whether the evidence and all reasonable inferences therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish the elements of the offense beyond a reasonable doubt. Commonwealth v. Thomas, 522 Pa. 256, 561 A.2d 699 (1989). In reviewing the record of the de novo hearing, we must recognize that Martorano makes no objection, on this appeal, to the admission of the police officer’s testimony.

Patrick Taylor had been a Philadelphia Police Officer since February 2, 1971. He had issued between 15,000 and 20,000 traffic citations. Of that number, at least 3,000 or possibly 4,000 were for speeding violations. In March 1986, Taylor was assigned to the Expressway Unit of the Philadelphia Highway Patrol. He was trained with the Vascar Unit and had been working primarily on Interstate 95 (1-95) with the principal duty of apprehending speed violators. He regularly had occasion to observe the flow of traffic with the intent to detect vehicles proceeding faster than the flow of traffic.

On June 19, 1986 at 4:45 a.m., Officer Taylor was parked on the Betsy Ross Bridge exit ramp onto 1-95. He had a clear view of both the Bridge Street exit and 1-95. The traffic was very light. Officer Taylor observed a vehicle coming at a high rate of speed on the Bridge Street exit off of 1-95. At that location, before you enter the Bridge Street exit ramp, there is a yellow sign indicating: Speed 25 miles per hour. Officer Taylor was in an overhead position where he could see the Martorano vehicle approaching. Officer Taylor testified that the Martorano vehicle had been traveling at a higher rate than 60, 65 miles an hour and had not slowed down much, if at all, as it proceeded down the exit ramp. When asked for his opinion as to the speed of the Martorano vehicle, Officer Taylor testified that, at the time he observed the vehicle, he knew it was going in *163excess of 65 miles an hour. This was in a 25 mile-per-hour zone.

The section of the Vehicle Code under which Martorano was convicted provides as follows:

§ 3362. Maximum speed limits
(a) General rule. — -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 subsection 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) 35 miles per hour in any urban district.
(2) 55 miles per hour in other locations.
(3) Any other maximum speed limit established under this subchapter.

75 Pa.C.S. § 3362. A conviction would require proof that Martorano drove a vehicle at a speed in excess of 25 miles per hour. Officer Taylor testified that Martorano was driving 65 miles per hour in a 25 mile per hour zone. Is this testimony sufficient to support the conviction? I conclude that it is.

Until the pronouncement of the majority in this case, a police officer has been competent to render an opinion as to the speed of an observed motor vehicle, subject only to the existence of an adequate opportunity to observe. Commonwealth v. Monosky, 360 Pa.Super. 481, 485, 520 A.2d 1192, 1194 (1987); Commonwealth v. Reynolds, 256 Pa.Super. 259, 271, 389 A.2d 1113, 1119 (1978); Commonwealth v. Forrey, 172 Pa.Super. 65, 70, 92 A.2d 233, 235 (1952). That opinion, once rendered, is for the factfinder, in this case the trial court, to weigh. Commonwealth v. Monosky, supra; Commonwealth v. Forrey, supra; accord, Commonwealth v. Reynolds, supra (jury question).

I find the attempt, by the majority, to distinguish Monosky totally unpersuasive. In Monosky, as in the case now before us, the defendant was driving in a posted 25 mile per *164hour speed limit zone. Two police officers testified that, in their respective opinions, the defendant was travelling approximately 50 miles per hour when initially observed. This court found such opinion testimony was not a subject matter related to a science, skill or occupation beyond the common experience of an average layperson, but rather involved a matter of common knowledge. 360 Pa.Super. at 485, 520 A.2d at 1194. Neither of the police officers had the length or depth of experience as does Officer Taylor in the case now before us. In Monosky, this court held that the opinion testimony of the officers was sufficient evidence for conviction under 75 Pa.C.S. § 3361 (driving vehicle at safe speed).

The majority opines that “greater specificity with respect to a driver’s actual speed” is required under § 3362 (exceeding maximum speed) than under § 3361 (driving vehicle at safe speed), since the latter does not require that a specific speed limit must be exceeded. Such an abstract, facial analysis is unwarranted, given this court’s scope of review. In order to unearth this “difficulty,” the majority must absolutely ignore that the present appeal involves uncontested testimony that Martorano was racing 65 miles per hour in a 25 mile per hour zone. As the Commonwealth correctly points out, Martorano neither contends that a police officer is incompetent to render an opinion with regard to vehicular speed nor that the trial court improperly admitted the testimony. In “distinguishing” Monosky, the majority seemingly approves opinion testimony where the actual speed exceeded a posted limit by 25 miles while rejecting the same type and quality of testimony where the actual speed is 40 miles per hour over the limit!

Assuming that this appeal is properly before us, I have no difficulty in concluding that the findings of the distinguished trial judge are supported by uncontested competent evidence and that there have been no erroneous conclusions of law presented for our review. The uncontradicted testimony of Officer Taylor is abundantly sufficient to prove that Martorano. had driven his vehicle in excess of the maximum 25 mile per hour limit.

*165The trial court found that the testimony of Officer Taylor as to the speed of the Martorano vehicle on the Bridge Street exit ramp was credible. This finding of credibility is solely the province of the trial judge, as factfinder, and binding on this court. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); Commonwealth v. Trignani, 334 Pa.Super. 526, 483 A.2d 862 (1984).

Since the evidence is sufficient to sustain the conviction under the express language of § 3362, I find no need to examine other sections of the Vehicle Code under the guise of exploring the intention of the legislature. 1 Pa.C.S. § 1921(b). The Commonwealth argues, quite cogently, that the legislature established limitations on speed timing devices not to require their use but to prevent their abuse. Like the Commonwealth, I find nothing in the Vehicle Code even remotely suggesting that the legislature intended to abolish opinion testimony of experienced police officers and require that speeding convictions depend solely on mechanical, electrical, or electronic speed timing devices.

I would affirm the judgment of sentence on the very able opinion of the distinguished trial judge, the Honorable Joseph D. O’Keefe. Hence, this dissent.

POPOVICH, J., joins.