Com. v. Marmeluc, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ALBERTO MARMELUC
Appellant No. 794 WDA 2015
Appeal from the Judgment of Sentence March 5, 2015
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-SA-0000004-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED JULY 26, 2016
Appellant, Alberto Marmeluc, appeals from the judgment of sentence
entered after the trial court found him guilty of speeding, a summary
offense, in violation of 75 Pa.C.S.A. § 3362(a)(3). Marmeluc argues that the
evidence at trial was insufficient to establish that he had exceeded the
maximum posted speed limit or that the radar gun used had been properly
certified. In the alternative, he contends that the verdict was against the
weight of the evidence at trial. After careful review of the record, we cannot
find any error in the trial court’s decision, and therefore affirm.
While driving on the Pennsylvania Turnpike, Marmeluc was pulled over
and charged with exceeding the maximum posted speed limit in an active
work zone. After a hearing, Magisterial District Judge Cathy S. Calhoun
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found him guilty and imposed a fine. Marmeluc appealed to the Court of
Common Pleas of Bedford County.
At the summary appeal hearing, Corporal John Mowery of the
Pennsylvania State Police testified that he had used a radar gun to clock
Marmeluc travelling at 58 miles per hour in a 40 mile per hour zone.
Marmeluc testified that he was travelling with the flow of traffic at the posted
speed limit, but that Corporal Mowery was stationed at the point where the
speed limit dropped from 55 to 40 miles per hour. The trial court found
Marmeluc guilty of speeding, but found that the Commonwealth had failed to
establish that this occurred in an active work zone. This timely appeal
followed.
On appeal, Marmeluc first argues that the evidence at trial was
insufficient to establish that he was speeding. We review a challenge to the
sufficiency of the evidence as follows:
The standard we apply when reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all evidence actually
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received must be considered. Finally, the 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. Furthermore, when reviewing a sufficiency claim, our
Court is required to give the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
However, the inferences must flow from facts and circumstances
proven in the record, and must be of such volume and quality as
to overcome the presumption of innocence and satisfy the jury
of an accused’s guilt beyond a reasonable doubt. The trier of fact
cannot base a conviction on conjecture and speculation and a
verdict which is premised on suspicion will fail even under the
limited scrutiny of appellate review.
Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)
(citation omitted). When reviewing a bench trial, we review the record to
ensure the findings of fact are supported by competent evidence and that
the trial court did not commit an error of law. See Commonwealth v.
Kaufman, 849 A.2d 1258, 1259 (Pa. Super. 2004).
Marmeluc’s argument is best described as a “shotgun” or “kitchen
sink” approach, whereby he lists a series of critiques of the evidence
presented by the Commonwealth. For example, Marmeluc asserts that the
Commonwealth “failed to show that they tracked the speed of Appellant’s
vehicle for over 500 feet.” Appellant’s Brief, at 8. However, he does not
support these critiques with any citations to precedent, statute, or
regulation. After reviewing this catalogue of critiques, we conclude that they
are all arguments addressed to the weight of the evidence, not its legal
sufficiency.
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To the extent that Marmeluc argues a general challenge to the
sufficiency of the evidence, we note that Corporal Mowery testified that his
radar gun indicated that Marmeluc was driving at a speed of 58 miles per
hour in a zone where the posted speed limit was 40 miles per hour. See
N.T., Summary Appeal Hearing, 3/5/15, at 6. The trial court was entitled to
credit this testimony, and it is sufficient to establish that Marmeluc was
driving at a speed exceeding the maximum posted limit. Marmeluc’s first
argument on appeal merits no relief.
Next, Marmeluc argues that the Commonwealth failed to meet its
burden of establishing that the radar gun used by Corporal Mowery had been
calibrated by an approved testing station. Under 75 Pa.C.S.A. § 3362, in
order to sustain a conviction for speeding, the Commonwealth must prove,
among others, that the timing “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. Kaufman, 849
A.2d 1258, 1259 (Pa. Super. 2004) (citations omitted). This element is part
of the Commonwealth’s evidentiary burden to sustain the conviction; it is not
merely a condition of admissibility for the test results. See id., at 1260. This
element must be established by evidence independent of the test results
themselves. See Commonwealth v. Denny, 539 A.2d 814, 816 (Pa.
Super. 1987).
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At first, this Court required this independent evidence to be in the form
of “a Certificate, certified by the Secretary of Transportation or his designee
certifying the agency which performs the tests on the devices as an official
testing station, and must introduce a Certificate of Electronic Device (radar)
Accuracy into evidence.” Commonwealth v. Gernsheimer, 419 A.2d 528,
530 (Pa. Super. 1980). However, this burden was subsequently relaxed. The
Commonwealth is now permitted to meet its burden by merely providing a
citation to the Department of Transportation’s list of official testing stations
in the Pennsylvania Bulletin. See Denny, 539 A.2d at 816. A trial court may
take judicial notice of the citation to the list of official testing stations in the
Pennsylvania Bulletin, but an appellate court may not if the Commonwealth
did not ask the trial court to do so. See Commonwealth v. Kittelberger,
616 A.2d 1, 6 (Pa. Super. 1992).
Here, Corporal Mowery testified that the radar gun had been tested at
an official testing station listed in the Pennsylvania Bulletin. See N.T., Trial,
3/5/15, at 10. The Commonwealth did not provide a copy of the official
testing station list in the Pennsylvania Bulletin, nor did it provide a citation to
the list. While this arguably violates the explicit language in Denny, we
conclude that Corporal Mowery’s testimony is sufficient evidence,
independent of the certificate of accuracy, of the status of the testing
station. It is clearly preferable to utilize the easily obtained list of official
testing stations as evidence to support this element of a traffic code
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violation, but any defect in using Corporal Mowery’s testimony for this
purpose goes to the weight of the evidence, not its sufficiency. Marmeluc’s
second issue on appeal merits no relief.
In his final issue, Marmeluc contends that the verdict was against the
weight of the evidence.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear
and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
This does not mean that the exercise of discretion by the trial
court in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for
the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason,
as opposed to prejudice, personal motivations, caprice or
arbitrary actions. Discretion is abused where the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where
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the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill-will.
Commonwealth v. Orie, 88 A.3d 983, 1015-1016 (Pa. Super. 2014)
(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014).
After reviewing the transcript and the exhibit admitted at trial, we
cannot conclude that the trial court abused its discretion. The trial court did
not act capriciously, and notably found that Corporal Mowery’s testimony
was insufficient to establish that Marmeluc was in a work zone when he
exceeded the speed limit. The record reveals that the trial court carefully
considered the evidence before it reached a verdict. Marmeluc’s final issue
on appeal merits no relief.
As we conclude that none of Marmeluc’s issues are meritorious, we
affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2016
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