Com. v. Poseno, R.
266 MDA 2016
| Pa. Super. Ct. | Aug 22, 2016Background
- On July 3, 2015, PSP Sgt. Matthew Nickey used a hand‑held radar on Route 15 (65 mph limit) and observed a silver Chrysler traveling at 85 mph; he stopped the vehicle and identified Randall S. Poseno as the driver.
- Nickey initially could not print a citation because he had run out of citation numbers; he told Poseno the citation would be mailed, returned to the station, obtained numbers, printed the citation (for 75 mph to reduce points/fine), and filed it with the court.
- A magisterial district judge found Poseno guilty; after a de novo summary appeal hearing, the trial court again found him guilty and imposed a $52.50 fine plus costs.
- Poseno appealed, arguing (1) insufficient evidence that his vehicle was the one exceeding the speed limit and (2) the radar certificate of accuracy was not properly signed by a designee of the Secretary of Transportation; he also alleged procedural defects under Pa.R.Crim.P. 410.
- The Commonwealth admitted Sgt. Nickey’s testimony, the radar reading, and a certificate of accuracy for the radar (certified by YIS/Cowden Group, Inc. on Jan. 2, 2015); the court judicially noticed the Pennsylvania Bulletin listing the certified testing facility.
- The trial court credited the Commonwealth’s evidence; the Superior Court reviewed sufficiency and waiver issues and affirmed the judgment of sentence.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Poseno) | Held |
|---|---|---|---|
| Sufficiency of evidence that Poseno’s vehicle exceeded speed limit | Sgt. Nickey’s observation plus hand‑held radar and certificate of accuracy prove speed above limit | Poseno contends he was traveling at 65 mph, radar reading mistaken, stop was pretextual | Court held evidence sufficient; conviction affirmed |
| Validity of radar certificate of accuracy | Certificate (YIS/Cowden Group) was within one‑year calibration period and admitted without objection | Argues certificate not signed by a designee of the Secretary of Transportation, so device uncertified | Held waived for failure to object at trial; meritless on law even if preserved |
| Compliance with Pa.R.Crim.P. 410 when citation initially not issued in person | Commonwealth relied on rule permitting filing when issuance not feasible | Poseno claims officer deviated from protocol (citation issued after the fact) | Held waived for procedural-default (not preserved in appellate statement) and inadequately developed |
| Judicial notice of testing facility certification | Commonwealth asked court to take judicial notice of Pennsylvania Bulletin listing the certified lab | Poseno disputed certification/authenticity | Court took judicial notice; inconsistencies noted but deemed immaterial to substance |
Key Cases Cited
- Commonwealth v. Gonzalez, 109 A.3d 711 (Pa. Super. 2015) (standard of review for sufficiency challenges)
- Commonwealth v. Kittelberger, 616 A.2d 1 (Pa. Super. 1992) (elements required to prove speeding via timing device)
- Commonwealth v. Jaynes, 135 A.3d 606 (Pa. Super. 2016) (failure to timely object at trial waives claim on appeal)
- Commonwealth v. Gussey, 466 A.2d 219 (Pa. Super. 1983) (discussion of certificate of accuracy/signing requirements)
- Commonwealth v. Gernsheimer, 419 A.2d 528 (Pa. Super. 1980) (procedural discussion of certification language)
- Commonwealth v. Long, 786 A.2d 237 (Pa. Super. 2001) (issues not raised in Statement of Questions Involved deemed waived)