Com. v. Karash, F. ( 2016 )

J-A16012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FREDERICK W. KARASH,
Appellant No. 1318 WDA 2015
Appeal from the Judgment of Sentence August 5, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-SA-0000074-2015
BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 12, 2016
Appellant, Frederick W. Karash, appeals pro se from the judgment of
sentence entered in the Court of Common Pleas of Erie County. We affirm.
We summarize the history of this case as follows. On March 29, 2015,
Appellant was traveling on Route 8 in Erie County when he drove by
Pennsylvania State Trooper Joshua Deitle and was clocked with a radar gun
as traveling 73 miles per hour (“mph”) in a 55 mph zone. The trooper cited
Appellant for traveling 60 mph in a 55 mph zone. Prior to the hearing before
the district magistrate, the Commonwealth amended the citation to reflect
that Appellant was traveling 73 mph. The magistrate convicted Appellant
and sentenced him to pay fines. Appellant then appealed to the court of
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A16012-16
common pleas. On August 5, 2015, the trial court convicted Appellant and
imposed a $61.00 fine, plus fees and costs. This timely pro se appeal
followed. Both Appellant and the trial court have complied with Pa.R.A.P.
1925.
Appellant presents the following issues for our review, which we
reproduce verbatim:
1 Q- Did the Judge err in allowing the “amended” citation to be
presented as evidence?
2 Q- Did the Judge Show discriminatory bias and incompetent
arrogance by failing to review the motions brought by the
defendant while wasting not a moments time in granting the
Commonwealths motions?
3 Q- Did the judge err by failing to adhere strictly to ruling in
regard to the Constitution of the United States (specifically 5th
and 14th Amendment)?
4 Q- Did the Commonwealth fail to strictly adhere to the rules
of Criminal Procedure by failing to properly issue the Citation?
5 Q- Did the Commonwealth meet the burden set forth for
amending a citation pursuant to The Rules of Criminal Procedure
as delineated in Commonwealth v Palmer?
6 Q- Did the Issuing authority fail to comply with the Rules of
Criminal Procedure thus biasing me for future hearings/ thus
violating my rights?
7 Q- Did the Judge Completely disregard the Rules of Criminal
Procedure at the time of reaching a verdict thus expounding on
the argument that she is discriminatively biased and arrogantly
incompetent?
8 Q- Did the Judge allow contradicting stories from the
prosecution to be submitted as evidence yet fail to address the
issue of credibility of Commonwealth witnesses, Thus Showing
reckless disregard for the interest of justice?
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9 Q- Did the Judge Show Bias by granting the continuance
request of the Commonwealth (without considering the
responsive pleading) while denying the continuance request of
the defendant?
10 Q- Did the Judge have a responsibility to recuse herself? Did
her failure to do so create a prejudice? Did She act outside of
her Judicial Function/athority?
11 Q- Does the Judge understand the concept of a de novo
hearing? Does her disinterest in the violative manner in which
the initial hearing transpired elude to the fact that she has
interests in revenue generation and not neutral fact finding and
justice?
12 Q- Did the Commonwealth meet the Burden of Proof?
Appellant’s Brief at ii-iii.
As a prefatory matter, we observe that appellate briefs must materially
conform to the briefing requirements set forth in the Pennsylvania Rules of
Appellate Procedure. Pa.R.A.P. Chapter 21. When a party’s brief fails to
conform to the Rules of Appellate Procedure and the defects are substantial,
an appellate court may, in its discretion, quash or dismiss the appeal
pursuant to Pa.R.A.P. 2101.
It is well settled that the argument portion of an appellate brief must
be developed with pertinent discussion of the issue, which includes citations
to relevant authority. Pa.R.A.P. 2119(a). See Commonwealth v.
Genovese, 675 A.2d 331, 334 (Pa. Super. 1996) (stating that “[t]he
argument portion of an appellate brief must be developed with a pertinent
discussion of the point which includes citations to the relevant authority”).
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In Commonwealth v. B.D.G., 959 A.2d 362 (Pa. Super. 2008), a
panel of this Court offered the following relevant observation regarding the
proper formation of the argument portion of an appellate brief:
In an appellate brief, parties must provide an argument as to
each question, which should include a discussion and citation of
pertinent authorities. Pa.R.A.P. 2119(a). This Court is neither
obliged, nor even particularly equipped, to develop an argument
for a party. Commonwealth v. Williams, 566 Pa. 553, 577,
782 A.2d 517, 532 (2001) (Castille, J., concurring). To do so
places the Court in the conflicting roles of advocate and neutral
arbiter. Id. When an appellant fails to develop his issue in an
argument and fails to cite any legal authority, the issue is
waived. Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa.
Super. 1996).
Id. at 371-372. Thus, failure to cite case law or other legal authority in
support of an argument results in waiver of the claim. Commonwealth v.
Owens, 750 A.2d 872, 877 (Pa. Super. 2000).
As we have often stated, “Although this Court is willing to liberally
construe materials filed by a pro se litigant, pro se status confers no special
benefit upon the appellant.” Commonwealth v. Adams, 882 A.2d 496,
498 (Pa. Super. 2005) (citing Commonwealth v. Lyons, 833 A.2d 245,
252 (Pa. Super. 2003)). “To the contrary, any person choosing to represent
himself in a legal proceeding must, to a reasonable extent, assume that his
lack of expertise and legal training will be his undoing.” Adams, 882 A.2d
at 498 (citing Commonwealth v. Rivera, 685 A.2d 1011 (Pa. Super.
1996)).
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Here, the argument portion of Appellant’s pro se brief contains
rambling discussions of purported error lacking any pertinent analysis.
Appellant’s Brief at 3-11. Essentially, we are perplexed by Appellant’s
incomprehensible analyses and discussions. This unclear discourse has
hampered meaningful appellate review. We recognize that Appellant is
acting pro se. As we previously mentioned, Appellant’s status as a pro se
litigant does not relieve him of his responsibility to conform to the applicable
rules of appellate procedure. While this particular defect in Appellant’s brief
warrants dismissal of the appeal, we decline to do so at this juncture.
Instantly, we have thoroughly reviewed the briefs of the parties, the
relevant law, and the certified record before us, including the sixteen-page
opinion of the trial court dated October 26, 2015, which addresses the issues
raised by Appellant in his Pa.R.A.P. 1925(b) statement. We conclude that
the issues presented by Appellant lack merit, and the trial court’s opinion
adequately addresses Appellant’s various claims raised on appeal.
Accordingly, we affirm on the basis of the trial court’s opinion and adopt its
reasoning as our own. The parties are directed to attach a copy of that
opinion in the event of further proceedings in this matter.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2016
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Circulated 08/30/2016 02:54 PM
COMMONWEALTH OF PENNSYLVANIA, IN THE COURT OF COMMON PLEAS
Appellee OF ERJE COUNTY, PENNSYL,V ANIN.
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APPEARANCES: Frederick W. Karash, Prose (Appellant)
Nathaniel E. Strasser, Assistant District Attorney, on behalf of the
Commonwealth of Pennsylvania (Appellee)
I
\-
OPINION
Domitrovich, J., October 26th, 2015
The instant matter is before the Pennsylvania Superior Court on Frederick W. Karash's
(hereafter referred to as "Appellant") appeal from this Trial Court's Order dated August 5th, 2015,
whereby this Trial Court found, at the de novo trial, Appellant guilty of the summary charge of
Maximum Speed Limits, at TR 317-2015, in violation of 75 Pa. C. S. §3362(a)(2) at 73 m.p.h. in a 55
m.p.h. zone, an:d imposed a sentence of a $61.00 fine, $10.00 EMS, $45.00 Surcharge, $10.00 Judicial
Computer and all court costs. Appellant's speed was detected by a Pennsylvania State Police trooper
using a speed timing device properly approved by the Commonwealth of Pennsylvania Department of
Transportation, as well as appropriately calibrated and tested for accuracy within the prescribed time
period by a station approved by the Department of Transportation.
I. Factual and Procedural History
On March 29th, 2015, Pennsylvania State Police Trooper Joshua David Deitle was monitoring
traffic speeds on Route 8 in Union Township, Erie County, Pennsylvania. Notes of Testimony,
Summary Conviction Appeal hearing, August 51h, 2015, pg. 16, lines 5-8. Trooper Deitle was in a
marked police cruiser and was in full Pennsylvania State Police uniform. Id., pg. 16, lines 10-13.
Trooper Deitle was also using a hand-held speed timing device, identified as a Decatur Electronics
"Genesis" model with a serial number of GHDI 7653. Id., pg. 16, line 17 -pg. 17, line 1.
1
E
On that date, a Mitsubishi Outlander, black in color and traveling northbound on Route 8, came
into the speed timing device's field of influence traveling at initially 73 miles per hour. Id, pg. 18, line
24 - pg. 19, line 2. Once the vehicle passed the police cruiser, Trooper Deitle pulled out and initiated a
traffic stop of the Mitsubishi Outlander. Id., pg. 19, lines 2-3. Trooper Deitle discovered the vehicle
was being operated by Appellant Frederick W. Karash, whose identity was confirmed by his
Pennsylvania Driver's License. Id, pg. 19, lines 4-7. Prior to the traffic stop on March 29th, 2015,
Trooper Deitle had no other interaction with Appellant. Id., pg. 20, lines 2-7. Trooper Deitle advised
Appellant he was exceeding the maximum speed limit, but cited Appellant for a lower speed in order
to "cut him [Appellant] a little bit of a break" and due to Appellant recording the traffic stop. Id., pg.
20, line 17-pg. 21, line 21. Trooper Deitle cited Appellant for traveling 60 miles per hour in a 55 mile
per hour zone. Id., pg. 21, lines 11-12.
On April 21st, -2015, Assistant District Attorney and Trooper Deitle amended the traffic citation
at Appellant's hearing in front of Magisterial District Judge Carol L. Southwick. Id., pg. 23, lines 2-4.
The traffic citation was amended before a hearing had commenced, with Appellant present, and was
amended to reflect 73 miles per hour in a 55 mile per hour zone, the speed Appellant was actually
traveling when Trooper Deitle timed his vehicle. Id, pg. 23, lines 5-15. Appellant was found guilty by
Magisterial District Judge Carol L. Southwick of violating 75 Pa. C. S. §3362(a)(2) at 73 m.p.h. in a 55
m.p.h. zone, and sentence was properly imposed.
Appellant filed both a Notice of Summary Appeal and a Motion to Quash Citation "Exceeding
Maximum Speed Limits" on May 11th, 2015. A Summary Conviction Appeal hearing was scheduled
before this Trial Court for July ih, 2015. Assistant District Attorney Nathaniel E. Strasser filed a
Motion to Reschedule Summary Appeal Hearing on June 9th, 2015, which was granted by this Trial
Court on June 11th, 2015. Appellant's Summary Conviction Appeal hearing was rescheduled for
August 5th, 2015 before this Trial Court, at which testimony was taken and evidence was received.
Following the Summary Conviction Appeal de novo hearing, this Trial Court found Appellant guilty of
2
violating 75 Pa. C. S. §3362(a)(2) at 73 m.p.h. in a 55 m.p.h. zone, and sentence was properly
imposed.
Appellant filed a Notice of Appeal to the Pennsylvania Superior Court on August zs", 2015.
This Trial Court filed its 1925(b) Order on August zs", 2015. Appellant filed his "Precise Statement of
Matters to be Raised on Appeal" on September 1 5\ 2015.
II. Legal Argument
The Pennsylvania Superior Court's scope of review where a 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; and the action of a trial court will not be disturbed on
appeal except for a manifest abuse of discretion. See Commonwealth v. Kittelberger, 616 A.2d I, 2 (Pa.
Super. 1992).
In his "Precise Statement of Matters to be Raised on Appeal," Appellant- raises twelve (12)
separate issues on appeal, which this Trial Court will summarize into ten (10) issues as follows:
1. As to Appellant's first, fourth and eighth issues, the traffic citation, issued by
Pennsylvania State Police Trooper Joshua David Deitle to Appellant on March 29th,
2015, was properly amended to reflect 73 miles per hour in a 55 mile per hour zone,
the actual speed Appellant was traveling when Trooper Deitle timed Appellant's
vehicle.
Rule 109 of the Pennsylvania Rules of Criminal Procedure states:
A defendant shall not be discharged nor shall a case be dismissed because of a defect in
the form or content of a complaint, citation, summons, or warrant, or a defect in the
procedures of these rules, unless the defendant raises the defect before the conclusion of
the trial in a summary case or before the conclusion of the preliminary hearing in a
court case, and the defect is prejudicial to the rights of the defendant.
Pa. R. Crim. P. 109; see Commonwealth v. Palmer, 482 A.2d 1318, 1319 (Pa. Super. 1984).
Pennsylvania courts employ the test of whether the crimes specified in the original complaint, citation,
summons, or warrant involve the same basic elements and evolved out of the same factual situation as
the crimes specified in the amended complaint, citation, summons, or warrant. See Palmer at 1320
3
(citing Commonwealth v. Stanley, 401 A.2d 1166 (Pa. Super. 1979)). If so, then a defendant is deemed
to have been placed on notice regarding his alleged criminal conduct. See id.
Appellant argues the traffic citation itself states Appellant was traveling at a speed of 60 miles
per hour in a 55 mile per hour zone and, pursuant to 75 Pa. C. S. §3368, said speed "is not a
convictable offense." At the time of the de nova hearing, Trooper Deitle clearly stated that, on March
29th, 2015, Appellant's vehicle was traveling 73 miles per hour northbound on Route 8 in Union City,
Pennsylvania. NT., pgs. 16-19. Trooper Deitle, using an approved Decatur Electronics model hand-
held speed timing device, rather than citing Appellant for the initial speed of 73 miles per hour, gave
Appellant "a break" on his original citation at 60 miles per hour in a 55 mile per hour zone. Id, pgs.
20-21. Prior to the hearing commencing before Magistrate District Judge Carol L. Southwick, the
Commonwealth amended Appellant's traffic citation to reflect 73 miles per hour in a 55 mile per hour
zone - the original speed Appellant as timed by Trooper Deitle. The amended traffic citation formed
the basis of Appellant's conviction before Magistrate District Judge Carol L. Southwick on April 215\
2015 and before this Trial Court on August 5t\ 2015. Furthermore, the amendment to the traffic
citation was proper as the same basic elements were involved and the traffic citation arose from the
same factual situation - Appellant traveling in excess of the maximum speed limit, which was timed
by a Pennsylvania State Police trooper using an approved speed timing device. See Palmer, 482 A.2d
at 1320.
Therefore, Appellant's argument that traveling 60 miles per hour in a 55 mile per hour zone "is
not a convictable offense" is not relevant because Appellant's traffic citation was properly amended to
the original speed timed by Trooper Deitle - 73 miles per hour. As the amended traffic citation for
traveling 73 miles per hour in a 55 mile per hour zone formed the basis of Appellant's conviction,
Appellant's first issue is without merit.
2. The Trial Court properly denied Appellant's Motion to Quash Citation.
4
Appellant argues the Trial Court refused to acknowledge his Motion to Quash Citation and, by
doing so, ignored the provisions of Rules 109 and 403 of the Pennsylvania Rules of Criminal
Procedure.
First and foremost, this Trial Court did acknowledge Appellant's Motion to Quash Citation
during the Summary Conviction Appeal hearing on August 5t\ 2015. Prior to any testimony, this Trial
Court provided Appellant ample time to argue his Motion to Quash Citation and then provided the
Commonwealth's attorney time to respond to Appellant's Motion to Quash Citation. NT, pgs. 6-13.
Ultimately, this Trial Court denied Appellant's Motion to Quash Citation, stating:
THE COURT: Okay. And the Court has heard from both sides. I think we
thoroughly had you discuss your arguments and the Court will rule that the Motion to
Quash is denied.
Id, pg. 13, lines 8-11.
Furthermore, this Trial Court had a proper basis for denying Appellant's Motion to Quash
Citation. As stated above, the amendment to Appellant's traffic citation to cure a defect in the citation
was proper as the same basic elements were involved and the amended citation arose from the same
factual situation - Appellant traveling in excess of the maximum speed limit, which was timed by a
Pennsylvania State Police trooper using an approved speed timing device. See Palmer, 482 A.2d at
1320.
Therefore, this Trial Court did acknowledge Appellant's Motion to Quash Citation and
properly denied Appellant's Motion prior to the beginning of testimony, and Appellant's second issue
is without merit.
3. Appellant's assertion of "intimidating, threatening or coercive" behavior of the
Commonwealth's attorney during initial plea negotiations is not relevant to
Appellant's conviction for violation 75 Pa. C. S. §3362(a)(2).
Appellant argues this Trial Court allowed "the Prosecuting Attorney's narrative regarding
'amending the citation' secondary to my [Appellant's] refusal to plead guilty." Appellant also argues
5
the Commonwealth's attorney was intimidating and threatening m his behavior during pleas
negotiations.
Rule 462 of the Pennsylvania Rules of Criminal Procedure states ''when a defendant appeals
after the entry of a guilty plea or a conviction by an issuing authority in any summary proceeding ... the
case shall be heard de novo by the judge of the court of common pleas sitting without a jury." See Pa.
R. Crim. P. 462(a).
During cross-examination of Trooper Deitle, Appellant elicited testimony regarding plea
negotiations occurring between the Commonwealth's attorney and Appellant prior to the hearing
before Magistrate District Judge Carol L. Southwick. NT., pgs. 28-31. Ultimately, this Trial Court
indicated the Summary Conviction Appeal hearing was de novo; therefore, any prior plea negotiations
were not relevant to the charge Appellant had allegedly violated. Id, pg. 30, lines 11-13, 20-22; pg. 31,
lines 1-3. In addition, any "intimidating, threatening, or coercive" negotiations are not relevant as
Appellant did not plead guilty before Magistrate District Judge Carol L. Southwick due to said
negotiations and did not plead guilty before this Trial Court due to said negotiations. Appellant's third
issue is without merit.
4. Appellant was issued the original traffic citation and had notice of the amended traffic
citation.
Appellant argues the amended traffic citation was never "issued" to him in violation of Rule
405 of the Pennsylvania Rules of Criminal Procedure. Appellant also argues he "rejects the theory that
an issuing authority, rather than an officer, can amend a citation."
Rule 405 of the Pennsylvania Rules of Criminal Procedure states "when a criminal proceeding
in a summary case is instituted by issuing a citation to the defendant. .. the law enforcement officer
contemporaneously shall give the defendant a paper copy of the citation containing all the information
required by Rule 403."
6
Following the traffic stop on March 291\ 2015, Trooper Deitle issued a traffic citation to
Appellant containing all the information required by Pa. R. Crim. P. 403, which indicated Appellant
was traveling 60 miles per hour in a 55 mile per hour zone. NT, pg. 20, lines 19. Prior to the hearing
before Magistrate District Judge Carol L. Southwick and in the presence of Appellant, the
Commonwealth orally amended the traffic citation to indicate Appellant was traveling 73 miles per
hour in a 55 mile per hour zone, the speed originally timed by Trooper Deitle. Id., pg. 23, lines 2-15.
Furthermore, both the original citation, which indicated 60 miles per hour, and the orally amended
citation, which indicated 73 miles per hour, was both made part of the record.
Therefore, as the original citation was provided to Appellant at the time of the violation, as
required by Rule 405 of the Pennsylvania Rules of Criminal Procedure, and Appellant had notice of
the amendment to the traffic citation prior to the hearing commencing before Magistrate District Judge
Carol L. Southwick, Appellant's fourth issue is without merit.
5. Upon Appellant's Notice of Appeal, transcripts from the Magistrate District Judge
hearing were filed pursuant to Pa. R. Crim. P. 462; however, Rule 462 does not
require the Magistrate District Judge to note Appellant's objections.
Appellant argues that, upon the filing of his Notice of Summary Conviction Appeal, transcripts
from the Magistrate District Judge hearing were not forwarded and his objections from said hearing
were not noted, as required by Rule 462 of the Pennsylvania Rules of Criminal Procedure.
Rule 462 of the Pennsylvania Rules of Criminal Procedure states, when a defendant appeals
after the entry of a guilty plea or a conviction by an issuing authority, said issuing authority must file
transcripts and other required papers from the lower court. See Pa. R. Crim. P. 462(a). Furthermore,
Rule 13 5 of the Pennsylvania Rules of Civil Procedure states a "transcript" before the Issuing
Authority must contain (1) the date and place of hearings; (2) the names and addresses of the
prosecutor, defendant and witnesses; (3) the names and office addresses of counsel in the proceeding;
(4) the charge against the defendant as set forth in the prosecutor's complaint; (5) the date of issuance
7
of any citation, summons or warrant of arrest and the return of service thereon; ( 6) a statement whether
the parties and witnesses were sworn and which of these persons testified; (7) when the defendant was
held for court, the amount of bail set; (8) the nature of the bail posted and the name and address of the
corporate surety or individual surety; (9) a notation that the defendant has or has. not been
fingerprinted; (10) a specific descripting of any defect properly raised in accordance with Rule 109;
(11) a notation that the defendant was advised of the right to apply for the assignment of counsel; (12)
the defendant's plea of guilty or not guilty, the decision that was rendered in the case and the date
thereof, and the judgment of sentence and place of confinement, if any; and (13) any other information
required by the Rules to be in the Issuing Authority's transcript. See Pa. R. Crim. P. 135.
Contrary to Appellant's assertion, a review of the docket clearly reveals "Transcripts from
Lower Court Filed" were filed on May 181h, 2015. Filing of the lower court transcripts on May 181\
2015 satisfies the requirements of Rule 462(a). There is no requirement that the lower court transcripts
be forwarded to Appellant or anyone else; rather, the filing of said transcripts satisfies Rule 462(a). In
addition, Rule 462(a) does not require objections from the lower court be noted. Finally, "transcripts"
from the Issuing Authority does not mean "a typed copy of testimony given orally or an official record
of proceedings in a trial or hearing." See Black's Law Dictionary, 1636 (lh Ed 2009).
Therefore, as the Transcripts from the lower court, pursuant to Rule 462(a), were properly filed
after Appellant filed bis Notice of Summary Conviction Appeal. Therefore, Rule 462(a) of the
Pennsylvania Rules of Criminal Procedure was satisfied. Appellant's fifth issue is without merit.
6. This Trial Court did issue both an oral and written Order at the time of sentencing
following Appellant's Summary Conviction Appeal hearing.
Appellant argues this Trial Court failed to provide Appellant with a written Order or follow the
Pennsylvania Rules of Criminal Procedure in that regard.
Rule 462(g) of the Pennsylvania Rules of Criminal Procedure states "at the time of sentencing,
the trial judge shall. .. issue a written order imposing sentence, signed by the trial judge and including
8
the information specified in paragraphs (g)(l) through (g)(3), and a copy of the order shall be given to
the defendant." See Pa. R. Crim. P. 462(g)(4).
Appellant's Summary Conviction Appeal hearing was held before this Trial Court on August
st\ 2015. After hearing testimony and receiving evidence from Appellant and the Commonwealth, this
Trial Court announced its decision orally from the bench an found Appellant guilty of violation 75 Pa.
C. S .. §3363(a)(2). The Trial Court imposed the appropriate sentence. Following said hearing, a written
I
Order was prepared and was signed by the undersigned judge. Said Order included the information I
l
specified in Rule 462(g)(l) through (g)(3), as it stated (1) the date on which payment of Appellant's
fines, costs and fees were due and (2) the right to appeal to the Superior Court within 30 days of the
imposition of sentence, and that, if an appeal is filed, the execution of sentence will be stayed.1 Finally,
I
a copy of this Trial Court's Order was supplied to Appellant via mail.
Therefore, as this Trial Court did issue both an oral and written Order at the time of sentencing,
which included the information specified in Rule 462(g)(l) through (g)(3), and a copy of said Order
was supplied to Appellant, the requirements of Rule 462(g) of the Pennsylvania Rules of Criminal
Procedure were satisfied. Appellant's sixth issue is without merit.
7. This Trial Court properly granted the Commonwealth's Motion for Continuance of
Summary Hearing, filed prior to the scheduled Summary Conviction Appeal hearing
with· good cause shown, and properly denied Appellant's Motion to Continue, made
duringthe rescheduled Summary Conviction Appeal hearing.
Rule 106 of the Pennsylvania Rules of Criminal Procedure states "a trial court or issuing
authority may, in the interests of justice, grant a continuance, on its own motion, or on the motion of
either party." See Pa. R. Crim. P. 106(a). "When the matter is in the court of common pleas, the trial
judge shall on the record identify the moving party and state of record the reasons for granting or
denying the continuance." See Pa. R. Crim. P. 106(c).
1 As a sentence of imprisonment was not imposed by this Trial Court for Appellant's violation of75 Pa. C. S. §3362(a)(2),
the information specified in Rule 462(g)(3) was not required in this Trial Court's Order dated August s", 2015.
. 9
Furthermore, Rule 462 states:
In appeals from summary proceedings arising under the Vehicle Code or local traffic
ordinances, other than parking offenses, the law enforcement officer who observed the
alleged offense must appear and testify. The failure of a law enforcement officer to
appear and testify shall result in the dismissal of the charges unless:
(3) The trial judge determines that good cause exists for the law enforcement officer's
unavailability and grants a continuance.
See Pa. R. Crim. P. 462(c)(3).
Prior to the originally scheduled Summary Conviction Appeal hearing on July ih, 2015,
Assistant District Attorney Nathaniel E. Strasser filed a Motion to Reschedule Summary Appeal
Hearing. In said Motion, Attorney Strasser averred (1) a Summary Conviction Appeal hearing was
scheduled for July ih, 2015; (2) the affiant, Trooper Joshua David Deitle, would be unavailable on this
date; and (3) there were no prior continuances in this· matter. This Trial Court concluded there was
good cause for granting the Commonwealth's Motion as Trooper Deitle was required to appear and
testify, pursuant to Pa. R. Crim. P. 462(c); no prior continuances had been granted; and a continuance
was necessary in the interest of justice. Pa. R. Crim. P. 106(a). By Order dated June n", 2015, this
Trial Court granted the Commonwealth's Motion and rescheduled the Summary Conviction Appeal
hearing for August 5t\ 2015, and a copy of said Order was provided to Appellant via mail.
At the rescheduled Summary Conviction Appeal hearing, after a pause in the middle of the
proceedings, Appellant requested a continuance. See NT, pg. 38, lines 1-2. Appellant requested a
continuance he had "a lot more evidence to bring into the nature of this case in order to prepare his
defense" and he "hadn't been apprised of any crime until now." Id, pg. 38, lines 15-19. The
Commonwealth's attorney responded by noting Appellant had not stated any "extraordinary
circumstance" for continuing the hearing other than not having all of his evidence ready; Appellant
was present during the hearing before Magistrate District Judge Carol L. Southwick; and Appellant
was provided the citation and all of the paperwork provided to Magistrate District Judge Carol L.
10
Southwick. Id., pg. 38, line 23 - pg. 39, line 12. This Trial Court ultimately denied Appellant's request
for a continuance since this Summary Conviction Appeal hearing had already commenced and good
cause was not shown by Appellant. Id, pg. 39, line 13.
Therefore, the Commonwealth, prior to the initial Summary Conviction Appeal hearing, did
show good cause for a continuance. Appellant, during the rescheduled Summary Conviction Appeal
hearing, failed to show good cause for a continuance. This Trial Court properly granted the
Commonwealth's continuance and properly denied Appellant's request for a continuance. Appellant's
seventh issue is without merit.
8. This Trial Court was not required to recuse herself from Appellant's Summary
Conviction Appeal hearing as there was no evidence of impartiality, bias or the
appearance of impropriety.
Rule 2. 7 of Chapter 33 "Code of Judicial Conduct" states "a judge shall hear and decide
matters assigned to the judge, except where the judge has recused himself or herself or when
disqualification is required by Rule 2.11 or other law." Pa. Code Judicial Conduct 2. 7. Furthermore,
Rule 2.11 of Chapter 33 "Code of Judicial Conduct" provides several circumstances where a judge
shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably
be questioned. See Pa. Code Judicial Conduct 2.11 (a)(l)-(6).2
After the Summary Conviction Appeal had commenced, but prior to the commencement of
testimony, Appellant indicated the undersigned judge had a responsibility to recuse herself from the
instant case. See NT, pg. 13, lines 13-15. The reason behind Appellant's request for the undersigned
judge's recusal was an investigation by the Judicial Conduct Board because of a Complaint Appellant
filed, of which the undersigned judge had no notice of. Id, pg. 13, lines 17-22. After hearing
2
According to Rule 2.ll(a), a judge must recuse himself or herself where said judge: (I) has a personal bias or prejudice
concerning a party or a party's lawyer, or personal knowledge offacts that are in dispute in the proceeding; (2) knows they
are a party in the proceeding; (3) knows they have an economic interest in the proceedings; (4) knows a party has made
contributions to the judge's campaign; (5) made a public statement committing the judge to rule a particular way in the
proceeding; or (6) served as an attorney, governmental employee or material witness in the proceeding.
11
Appellant's argument, the undersigned judge did not recuse herself from the instant case. Id, pg. 14,
lines 11-21.
Appellant did not raise any of the provisions of Rule 2.1 l(a), which would require the
undersigned judge to disqualify or recuse herself from the instant case, at the August 5th, 2015
Summary Conviction Appeal hearing, and does not raise any of the provisions in his "Precise
Statement of Matters to be Raised on Appeal." In fact, Appellant only requested the undersigned judge
recuse herself because of a Complaint Appellant filed against the undersigned judge, and Appellant did
not raise any argument to further support his request for recusal. There are no requirements within
Rule 2.11 ( a) requiring a judge to recuse simply because a litigant has filed a Judicial Conduct Board
Complaint against said judge.
Therefore, as Appellant has failed to raise any specific requirement which would have required
the undersigned judge to recuse herself from the instant case, other than Appellant's Complaint filed
against her, the undersigned judge properly denied Appellant's request for recusal. Appellant's eighth
issue is without merit.
9. This Trial Court conducted a proper de novo Summary Conviction Appeal hearing on
August s", 2015.
First, Appellant argues the amended citation was not only illegal, but also moot. As stated
above numerous times, the amendment of the traffic citation before Magistrate District Judge Carol L.
Southwick was proper as the same basic elements were involved and the traffic citation arose from the
same factual situation - Appellant traveling in excess of the maximum speed limit, which was properly
timed by a Pennsylvania State Police trooper using an approved speed timing device. See Pa. R. Crim.
P. 109; see also Palmer, 482 A.2d at 1320. In addition, the amended citation, along with the original
citation, were both made part of the record, and it was proper for this Trial Court to consider the
amended citation at Appellant's de novo proceeding.
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Second, Appellant argues the Commonwealth's attorney's "intimidating, threatening and
coercive" plea negotiations at the Magistrate District Judge level shows deprivation of due process. As
stated above, said negotiations were not relevant to the de nova hearing before this Trial Court as the
plea negotiations had no bearing on Appellant's violation of 75 Pa. C. S. §3362(a)(2). Also, whether
the plea negotiations were "intimidating, threatening and coercive" are not relevant as Appellant did
not plead guilty before Magistrate District Judge Carol L. Southwick or before this Trial Court.
Third, Appellant argues this Trial Court ignored evidence of the Commonwealth's attorney and
the Issuing Authority undertaking ex parte communications. Although Trooper Deitle stated he never
witnessed the Commonwealth's attorney engage in ex parte communications with Magistrate District
Judge Carol L. Southwick, see NT., pg. 22, line 8 - pg. 23, line I, and Appellant did not offer any
testimony on direct or cross-examination to refute Trooper Deitle's testimony regarding no ex parte
communications, this Trial Court concludes any alleged ex parte communications are not relevant to
Appellant's de novo hearing regarding this amended citation at 75 Pa. C. S. §3362(a)(2).
Finally, Appellant argues his original written citation has an area "where fines are delineated,
but it does not add up." A review of this Trial Court's Order dated August 51\ 2015, a copy of which
was served upon Appellant, clearly indicates the fines, costs and fees imposed after Appellant's
Summary Conviction Appeal hearing and when the fines, costs and fees are to be paid.
Therefore, the citation was properly amended and received by this Trial Court, and any plea
negotiations, ex parte communications and alleged mathematical errors on the citations are not relevant
to Appellant's de novo hearing regarding his violation of 75 Pa. C. S. §3362(a)(2). Appellant's ninth
issue is without merit.
10. The Commonwealth has met its burden of proof regarding Appellant's violation of 75
Pa. C. S. §3362(a)(2).
Appellant argues the Commonwealth failed to meet its burden of proof following the Summary
Conviction Appeal hearing before this Trial Court.
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To sustain a conviction for speeding, the Commonwealth must show beyond a reasonable doubt
that: (1) an accused 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
the prescribed time period by a station which has been approved by the Department of Transportation.
Commonwealth v. Kittelberger, 616 A.2d 1, 3 (Pa. Super. 1992); see also Commonwealth v. Hamaker,
541 A.2d 1141, 1142 (Pa. Super. 1988).
Trooper Deitle stated, on March 291\ 2015, he was monitoring traffic speeds along Route 8 in
Union City, Pennsylvania. NT, pg. 16, lines 5-8. Trooper Deitle was using a hand-held speed timing
device, identified as a Decatur Electronics "Gensis" model with a serial number of GHDl 7653, to time
traffic speeds. Id, pg. 16, line 17 - pg. 17, line 1. A Mitsubishi Outlander, black in color and traveling
northbound on Route 8, came into the speed timing device's field of influence traveling at initially 73
miles per hour. Id, pg. 18, line 24 - pg. 19, line 2. Trooper Deitle discovered the vehicle was being
operated by Appellant, whose identity was confirmed by his Pennsylvania Driver's License. Id., pg.
19, lines 4-7. Therefore, as Trooper Deitle indicated Appellant was driving in excess of the maximum
speed limit, i.e. 73 miles per hour in a 55 mile per hour zone, the first element has been sustained.
In sustaining its burden of proof, the Commonwealth need not produce a certificate from
PennDOT which expressly indicates approval of a particular speed timing device; rather, the
Pennsylvania Legislature has considerably lessened the Commonwealth's evidentiary burden by
enabling a trial court to take judicial notice of the fact that the device has been approved by PennDOT,
provided that the approval has been published in the Pennsylvania Bulletin. Kittelberger, 616 A.2d at
3. According to 44 Pa. Bulletin 8064, dated December 2ih, 2014, the Genesis GHD model hand-held
speed timing device, manufactured by Decatur Electronics, has been approved for use by the
Pennsylvania State Police. See. 44 Pa.B. 8064. Therefore, as this Trial Court may take judicial notice
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of the notice of approved speed timing devices, published in the Pennsylvania Bulletin, the second
element has been satisfied.
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. 3368(d). The
Commonwealth offered a copy of the Certificate of Accuracy for the particular speed timing device
'used by Trooper Deitle on March z9t\ 2015 as Commonwealth's Exhibit A. NT, pg. 18, lines 3-5.
Said Certificate stated the Genesis GHD model hand-held speed timing device used by Trooper Deitle
was last calibrated for accuracy on October 22nd, 2014 and was signed by the individuals who
completed the testing. Id, pg. 18, lines 6-13. Finally, Appellant's own subpoenaed witness, James
Bonaparte of WISCO Calibration Services3 who signs all of the calibration certificates for ''this side of
the State," stated he signed the Certificate of Accuracy as an individual qualified to calibrate said
devices. Id, pg. 47, line 16 - pg. 49, line 2. Mr. Bonaparte stated the only qualification the
Commonwealth of Pennsylvania requires for calibrating speed timing devices in the acquisition of an
electrical engineering degree, which Mr. Bonaparte has attained. NT, pg. 49, lines 3-15. Based upon
Appellant's own questioning, Mr. Bonaparte stated there was no possibility of operator error with the
hand-held speed timing device Trooper Deitle was using on March 29th, 2015, either at a distance or on
a hill. Id, pg. 50, lines 2-20. Therefore, based upon the Certificate of Accuracy and the testimony of
James Bonaparte, the third element has been sustained.
The Commonwealth has shown beyond a reasonable doubt that: (1) Appellant was driving in
excess of the speed limit; (2) the speed timing device used by Trooper Deitle to time Appellant's speed
was approved by the Department of Transportation; and (3) said device was calibrated and tested for
accuracy within the prescribed time period by a station which has been approved by the Department of
3
44 Pa. Bulletin 8064 also states that Wisco Calibration Services, Inc., 820 Washington Boulevard, Pittsburgh, Allegheny
County, PA 15206, was appointed as an official Electronic Device Testing Stations for radar devices used by members of
the Pennsylvania State Police on July 141\ 1999 as Station RIO. See 44 Pa.B. 8064.
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Transportation. The Commonwealth met its burden of proof regarding Appellant's violation of 75 Pa.
C. S. §3362(a)(2). Appellant's tenth issue is without merit.
HI. Conclusion
For all of the foregoing reasons, this Trial Court concludes the instant appeal is without merit
and respectfully requests the Pennsylvania Superior Court affirm its Order dated August 51\ 2015.
BY THE COURT:
L ,-····--······· . -:· . -· - · · · · · · · . . r··; /~-------., ,.,\
~"Jjli:;/;;'l~Z/Jll-~f;/:/t7)·1/i;\._IL___---,.-'
1steplfanieDomitrovich, Judge
r
cc: Frederick W. Karash, 21 Center Street, Apt. #1, North East, PA 16428
Nathaniel E. Strasser, Assistant District Attorney
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