Commonwealth v. Cummings

*151HOFFMAN, Judge:

The sole issue on appeal is whether in a prosecution for driving in excess of the maximum speed limit, the Commonwealth may enter into evidence a photocopy of the certificate of timing device accuracy required by 75 Pa.C.S.A. § 3368(d). We hold that the lower court correctly rejected the evidentiary offer of the photocopy in this case and, accordingly, affirm the order below dismissing the prosecution.

On November 10, 1981, appellee was driving his vehicle on Interstate 81 in Franklin County. Pennsylvania State Trooper Thomas A. Algatt, flying in a state police aircraft and using a stopwatch, timed appellee’s rate of travel over a measured distance of three-tenths (.3) of a mile at 66.2 miles per hour and relayed this information to Trooper David E. Burkholder who was in a chase vehicle on the highway. Trooper Burkholder then issued a citation to appellee, who refused to sign, acknowledging receipt of the citation. Following a January 28, 1982 hearing, appellee was found guilty by the District Justice on February 3, 1982. On appeal, the lower court held a summary hearing on December 16, 1982. At this hearing, the Assistant District Attorney advised the court that a legal issue had been raised regarding the admissibility of the certificate of stopwatch accuracy issued by the appointed testing station on October 19, 1981 pursuant to 75 Pa.C.S.A. § 3368(d). The Commonwealth made an offer of proof that it was prepared to introduce a photographic copy of the certificate. The lower court, upon appellee’s motion, rejected the offer and dismissed the case. This Commonwealth appeal followed.

Section 3368(d) of the Vehicle Code provides that:

... — All mechanical, electrical or electronic devices shall be of a type approved by the department, which shall appoint stations for calibrating and testing the devices and may prescribe regulations as to the manner in which calibrations and tests shall be made. The devices shall have been tested for accuracy within a period of 60 days *152prior to the alleged violation. A certificate from the station showing that 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 this title is charged.

75 Pa.C.S.A. § 3368(d) (emphasis added). This Court set forth the requirements of § 3368(d) in Commonwealth v. Gernsheimer, 276 Pa.Superior Ct. 418, 419 A.2d 528 (1980), holding that

in prosecuting speeding cases where a radar or other electronic device is used to calibrate a defendant’s speed that in order to introduce the results of such into evidence the Commonwealth must offer a Certificate, certified by the Secretary of Transportation or his designee certifying the agency which performs the tests on the device as an official testing station, and must introduce a Certificate of Electronic Device (radar) Accuracy into evidence. The Certificate of Electronic Device (radar) Accuracy must be signed by the person who performed the tests and the engineer in charge of the testing station, must show that the device was accurate when tested by stating the various speeds at which it was tested and the results thereof, and must show, on its face, that the particular device was tested within sixty (60) days of the date it was used to calibrate the particular defendant’s speed.

Id., 276 Pa.Superior Ct. at 423-24, 419 A.2d at 530. Although the question of the admissibility of a photocopy, instead of the original, of the certificate of accuracy did not arise in Gernsheimer,1 we note that the entry of the original certificate appears to be common practice. See Commonwealth v. Gussey, 319 Pa.Superior Ct. 398, 466 A.2d 219 (1983); Commonwealth v. Gernsheimer, supra.

The Commonwealth argues, however, that it may enter a photocopy of the required certificate of accuracy *153under the statutory hearsay exception for business and public records, 42 Pa.C.S.A. § 6109(b). We disagree. Section 6109(b) provides that a photocopy of “any memo, writing, entry, print, representation, or combination thereof, of any act, transaction, occurrence or event” which in the regular course of business has been “recorded, copied or reproduced” may be as admissible in evidence as the original itself. Before the photocopy can be admitted, however, 42 Pa.C.S.A. § 6108(b) requires that the document be authenticated:

... — A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

(Emphasis added).

In the instant case, we find first that the certificate of accuracy does not qualify as a business or public record under § 6109(b). In Commonwealth v. Gernsheimer, supra, the defendant asserted that the certificate of accuracy should have been inadmissible because it was an official record and did not contain the state seal as required by 42 Pa.C.S.A. § 5328. In rejecting this argument, we stated: “Since 75 Pa.C.S.A. § 3368(d) applies particularly to proofs in speeding cases we hold that it takes preference over the general requirements of the Official Documents Law (42 Pa.C.S.A. 5328) in speeding situations.” 276 Pa.Superior Ct. at 423, 419 A.2d at 530. That rationale applies equally to this case. As the lower court correctly reasoned:

Special legislation was passed to admit the certificate of the testing station. Ordinarily to show that the testing device was accurate, the person who made the test would have to be called to say what he did and what he found. That would be cumbersome. In light of that problem, the leislature permitted the issuance of a certificate. It *154seems to be no burden or hardship on the Commonwealth to produce the original certificate with the original signature on it. As to admissibility of business records, generally they are not made in contemplation of a law suit. However, these certificates are made with the full knowledge of the Commonwealth that the accuracy of the testing devise [sic] will be called in a trial.

(Lower Court Opinion at 2). Additionally, we note that the Commonwealth’s witness, Trooper Algatt, was unable to properly identify the document sought to be admitted. Al-gatt had never seen the original certificate and therefore could not testify as to whether the photocopy was a true copy of it. (N.T. December 16, 1982 at 3). He could only testify that it was customary for the original certificate to be sent by the approved testing station — in this case, Leit-zel’s Jewelry — to the police headquarters where it would be photostated and copies sent to different stations. Therefore, contrary to the Commonwealth’s contention, the photocopy was not properly authenticated.2

Accordingly, the Commonwealth has given us no reason for overturning the lower court’s rejection of the admission of the photocopy in lieu of the original certificate of accuracy.

Affirmed.

WICKERSHAM, J., files a dissenting opinion.

. The issue in Gernsheimer was whether § 3368(d) required that the official state seal appear on the certificate of accuracy. We held that such a seal was not needed for admissibility.

. In Commonwealth v. Perdok, 411 Pa. 301, 192 A.2d 221 (1963), the Supreme Court approved the admission of the certificate for the limited purpose of proving that the radar apparatus was accurate. However, the Court reversed the speeding conviction on the ground that the document was not admissible to prove the Secretary of Revenue’s approval of the machine unless it fell under the hearsay exceptions for business records or official statements and that, because no foundation had been laid and it was not part of the testing station’s duty to approve the type of radar apparatus used, such exceptions did not apply.