Commonwealth v. Bartley , 411 Pa. 286 ( 1963 )

Opinion by

Mr. Justice Cohen,

This is an appeal from a conviction for speeding under the radar provisions of The Vehicle Code. Since this case calls into question the mechanics of the radar timing system, itself, it is necessary to give a brief explanation of the procedure employed by the state police.

The radar set which timed appellant consists of a radar transmitter and receiver placed in the open trunk of an automobile which is parked on the shoulder of the highway. The transmitter emits a cone-shaped beam of radio waves which extends up the lane of oncoming traffic for a distance of 200 to 300 feet. When a vehicle comes into the zone of influence of the radar (i.e., 200 to 300 feet from the unit), the radio waves strike the vehicle and the motion of the vehicle causes the radio waves to return to the receiver at a frequency different from that which was transmitted. The variance is then translated into a reading of miles per hour-upon the radar meter. The -angle of the instrument is set in such a manner that the beam does riot reflect the speed of traffic coming in the opposite direction. This radar set is the standard equipment used by most police agencies throughout the country arid is tested for accuracy in accordance with the radar provisions of The Vehicle Code.¹

On the night in question, Officers Chylak and Rogers manned the radar unit. Officer Chylak-sat in the front seat of the car with the meter oh his lap and when an on-coming vehicle registered a speed in excess of the legal limit he would notify Officer Rogers, sitting next to him, who would visually follow the path of the on-coming vehicle through the rear window, con-: tinuing to follow the vehicle until it passed by them. Officer Chylak would also follow the path of the vehicle through the rear view mirror. Having set up the radar, tested it, and adjusted the angle of its beam, both men were well acquainted with the point on the highway where the instrument first picks up the speed of on-coming vehicles and they therefore were able to select the particular vehicle in a line of vehicles which registered on the meter.

The evidence discloses that on September 17, 1961, at 10:25 p.m., appellant-Bartley was operating a tractor-trailer truck on the Pennsylvania Turnpike in an easterly direction in the right lane of traffic when he was stopped for speeding. At the time in question, appellant was traveling in a line of five vehicles, with a gap existing between each vehicle of about 400 feet. The first three vehicles passed through the beam without registering an unlawful speed, but a vehicle, later identified as appellant’s, broke the beam at a speed of 60 miles per hour, 10 miles over the posted 50 miles per hour limit for trucks. After visually following the lights of appellant’s vehicle until it passed by their car, Officers Chylak and Rogers then identified thé truck by its markings and description which were illuminated by the headlights of the vehicle behind it. The officers then radioed this description to an interceptor car which stopped appellant’s truck. When halted appellant made a statement to the officer impliedly admitting that he knew he was exceeding the legal limit. Later at trial he denied making this statement. The lower court found appellant guilty and an appeal to this Court followed.

Appellant raises two major contentions: First, he maintains that section 1002(d) of The Vehicle Code should be construed to require radar measurement of speed for at least one-quarter of a mile; and second, that the state troopers could not identify beyond a reasonable doubt the particular vehicle which registered the 60 miles per hour speed on the radar meter.

Turning to the first contention, an examination of the purposes and structure of The Vehicle Code is essential. The Act of April 29, 1959, P. L. 58, §1002, as amended, 75 P.S. §1002, contains subsections (a), (b), (c), and (d). Subsections (a) through (e) establish maximum legal speeds, graduated according to the type of area and vehicle involved. In other words, these subsections define the various types of speeding offenses. Subsection (d), on the other hand, does not define the offense of speeding but, instead, prescribes the methods by which a speeding offense must be ascertained and the type of evidence necessary to prove such violation.² See Sheehy Motor Vehicle Operator License Case, 196 Pa. Superior Ct. 122, 127, 173 A. 2d 752, 754 (1961). These methods are: (1) In residential or commercial areas, by a measured stretch of not less than .one-eighth of a mile, manned by peace officers at each end of the stretch; or (2) under any conditions by a peace officer following a vehicle and. timing it on his speedometer for a distance of not less than one-quarter of a mile. Subsection (d) was amended by the Act of April 28, 1961, P. L. 108, §2, 75 P.S. §1002 (d.1) (1) (1962 Supp.), which authorizes the use of radiomicrowave equipment in timing speed.³

Appellant takes the position that since the radar amendment is silent as to required distances of measurement, the legislature intended to incorporate in the amendment the minimum distances contained in the part of subsection (d) set forth above. We do not agree. An examination of the entire statutory scheme indicates that measurement by radar is merely another method by which speeding violations may be ascertained and proved, and this method is separate and apart from the other two types of measurement. Indeed, it would be a tortured construction to read the aforementioned minimum distances into the amendment. In the area where appellant’s truck was stopped for speeding, before the radar amendment the Act of 1959 would have required that his speed “be timed for a distance of not less than one-quarter (%) mile, by a peace officer using a speedometer.” Since the legislature is presumed not to intend an impossible and unreasonable result, this requirement cannot be read into the radar amendment because it would be impossible for a car equipped with radar to follow a vehicle for one-quarter of a mile. See Statutory Construction Act of May 28, 1937, P. L. 1019, Art. IV, §52(1), 46 P.S. §552. Additionally, the one-quarter of a mile requirement is limited by its words to the method of speedometer measurement.

However, in support of appellant’s position it is argued that military radar is capable of measuring speeds of objects over the one-quarter of a mile disance, and that it is the type of equipment that the legislature contemplated. Apart from the difficulty of reading the speedometer provision into the radar amendment, the conditions existing at the time of the amendment militate against the construction suggested by appellant. Since Pennsylvania was one of the last states , to adopt radar, and since these other states used the same so-called “instantaneous timing” type of radar used by the .officers in the present case, the legislature, in the absence of any evidence to the contrary, must be presumed to have intended the use of this standard type of radar.

Moving to the factual issue of the identification of appellant as the violator, the trial judge had determined the credibility of the witnesses and hence his findings are as binding upon us as the verdict of a jury, if supported by competent evidence. See Commonwealth v. Matteo, 130 Pa. Superior Ct. 524, 528, 197 Atl. 787, 789 (1938).

Appellant’s argument on the issue of identification has two aspects. The first is concerned with alleged defects in the process of radar timing itself which may have caused the speed of a vehicle other than that of appellant’s to register on the radar meter. The second questions the perception of Officers Chylak and Rogers.

As to the radar process, appellant maintains that the path of the radar beam overlapped into the- lane of traffic going in the opposite direction, thereby leaving open the possibility that the speed of a westbound vehicle and not appellant’s vehicle registered on the meter. Appellant also contends that other vehicles were passing his truck at the time of the speeding occurrence, thereby raising doubt as to which vehicle’s speed registered on the meter. Both of these possibilities were clearly refuted by positive Commonwealth evidence. Under the standard of review set forth above we are required to affirm the findings of the trial judge who saw all the witnesses and heard all the testimony.

Likewise, as to the visual perception of the identifying officers, there is sufficient testimony and evidence, if believed, to satisfy the Commonwealth’s burden of proving beyond a reasonable doubt the identity of appellant’s vehicle. After identifying on direct examination appellant’s vehicle as the one which exceeded the speed limit, Officer Chylak was cross-examined as follows by appellee’s counsel: “Q. Now, Officer, isn’t it a fact that you are testifying solely from the meter reading and not from the fact that you actually saw this vehicle? A. I observed the vehicle coming up behind me. Q. But you observed many vehicles coming up behind you, isn’t that right? A. That is correct sir. Q. And when it registered, when the meter registered sixty miles an hour, you identified it by seeing the name on it? A. After it had proceeded past my car, yes, sir. Q. Now, officer, in all fairness, you weren’t certain which one of these five vehicles, those five trucks, was the one actually going sixty miles an hour? A. If I hadn’t been certain, I wouldn’t be here sir. Q. In your mind you were certain? A. Yes, sir.”

The identification by Officer Chylak was corroborated by Officer Rogers who testified on direct examination as follows: “Q. Can you recall or do you recall a particular tractor-trailer coming into the radar beam and registering sixty miles per hour? A. Yes, I do. This particular vehicle he was speaking about as I remember it there was a little more of a distance between the last two vehicles. . . . Q. When were you able to identify this particular vehicle? A. Pardon? Q. You watched it to make sure it was the same? A. Yes, I did. . . . Q. Officer, can you recall just as Corporal Chylak reported a tractor-trailer going sixty miles an hour how many cars were in the rear, how many trucks or how many vehicles? A. Just two of them. Q. And how far was the Kramer tractor-trailer from the other vehicle as you recall? A. Well, its pretty hard to say, but I would roughly say two to three hundred feet. Q. Was it possible that you got the two mixed up? A. It’s not.”

The identification by Officer Ohylak, corroborated by Officer Rogers, even without the implied admission by appellant that he was exceeding the speed limit, was sufficient evidence to convince the trial judge beyond a reasonable doubt that appellant’s vehicle was the one which registered 60 miles per hour on the radar meter.

Judgment affirmed.

1 See note 3, infra.

2 “ (d)(1) When the rate of speed of any vehicle is timed on any highway within a business or residence district, where official speed limit signs are erected, as provided in this section, for the purpose of ascertaining whether or not the operator of such vehicle is violating a speed provision of this act, such time may be taken by not less than two (2) peace officers, one of whom shall have been stationed at each end of a measured stretch, and no conviction shall be had upon the unsupported evidence of one (1) peace officer, except as hereinafter provided, and no such measured stretch shall be less than one-eighth (3^) of a mile in length or, under any conditions, the rate of speed may be timed, for a distance of not less than one-quarter (%) ' mile, by a peace officer using a motor vehicle equipped with a speedometer tested for accuracy within a period of thirty (30) days prior to the alleged violation. An official certificate from an official speedometer testing station, showing such test was made, that the speedometer was adjusted for accuracy, if necessary, the date thereof, and the degree of accuracy of such speedometer, shall be competent and prima facie evidence of the fact that such certificate was issued by an official speedometer testing station appointed by the secretary, and of the accuracy of the speedometer, in every proceeding where an information is brought charging a violation of this section.” Act of April 29, 1959, P. L. 58, §1002, as amended, 75 P.S. 1002(d) (1).

3 This section reads in pertinent part as follows:

“(d.1)(1) The rate of speed of any vehicle may be timed on any State highway, including the Pennsylvania Turnpike System, by officers of the Pennsylvania State Police through the use of radiomierowaves, commonly referred to as electronic speed meters or- radar.

“No conviction shall be had upon evidence obtained through the use of radar apparatus unless—(i) it is of a type approved by the secretary, and (ii) it has been calibrated and tested for accuracy and found accurate or adjusted for accuracy within a period of thirty days prior to the alleged violation, and (iii) official warning signs have been erected on the highway by the proper authority indicating that radar is in operation, and (iv) the speed recorded is six or more miles per hour in excess of the legal speed limit.”