*2 WICKERSHAM, Before HOFFMAN, OLSZEWSKI and JJ.
HOFFMAN, Judge: in a prosecution issue whether sole limit, the Common- speed of the maximum driving in excess of the certifi- enter into evidence a may wealth required by 75 Pa.C.S.A. timing cate rejected correctly 3368(d). We hold that lower and, case evidentiary offer prosecu- order below affirm the accordingly, tion. appellee driving his vehicle
On November Franklin State County. Pennsylvania on Interstate 81 in in a state aircraft Trooper Algatt, flying Thomas A. stopwatch, timed rate of travel over using appellee’s (.3) mile at of a 66.2 a measured distance three-tenths relayed Trooper miles hour and this information per *3 who in a chase vehicle on the David E. Burkholder was Trooper Burkholder then issued a citation to highway. of appellee, sign, acknowledging receipt who refused to 28, January hearing, appellee a 1982 Following citation. 3, guilty February was found the District Justice on by hearing lower held a appeal, summary On hearing, At Assistant on December issue had Attorney legal District advised the court that of of regarding been raised the certificate admissibility stopwatch accuracy by issued station appointed 75 October 1981 Pa.C.S.A. § made an of proof Commonwealth offer prepared photographic copy to introduce a the certificate. court, motion, appellee’s the offer upon rejected lower and the case. This fol- dismissed lowed. 3368(d) that: the Vehicle Code mechanical,
...— All electrical or electronic devices shall approved by department, be of a which shall type appoint calibrating stations for and the devices regulations and to the manner which may prescribe and shall made. The devices shall calibrations tests 60 period days tested for been within 152
prior to the alleged violation. A certificate from station showing that the calibration and test were made within the required period, and that the device accurate, shall be competent prima evi- facie dence those in every proceeding which a facts violation this title is charged. 3368(d) Pa.C.S.A. (emphasis added). This Court set
forth the requirements in Pa.Superior Ct. (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
Certificate,
must offer a
certified by
the Secretary
Transportation
or his designee certifying
the agency
performs
which
the tests on the device as an
official testing station, and must
introduce a Certificate
(radar)
Electronic Device
Accuracy into evidence. The
Certificate of Electronic
(radar)
Device
Accuracy must be
signed
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
vari-
speeds
ous
at which it was tested and the
thereof,
results
show,
face,
must
on its
that the particular device was
(60)
tested within sixty
days of the date it was used to
calibrate the particular
speed.
defendant’s
Id., 423-24,
Pa.Superior Ct. at
...— A relevant, the custodian evidence competent as be if to its and the qualified identity other witness testifies preparation, its was made in the mode if at or near time course regular act, event, if, condition or opinion information, tribunal, the sources of method and time its justify were such as to admission. preparation added). (Emphasis case, that
In instant find first the certificate we record public does not as a business or accuracy qualify su In under pra, the defendant asserted that have been because it was an official
should inadmissible seal required by record and did not contain the state argument, In we stated: rejecting Pa.C.S.A. § applies particularly proofs 75 Pa.C.S.A. “Since preference cases we it takes over hold that (42 general requirements of the Official Documents Law 5328) in speeding Pa.Superior situations.” Pa.C.S.A. applies equally 419 A.2d That rationale Ct. at at 530. correctly As the reasoned: to this case. lower court to admit the certificate legislation passed Special to show that Ordinarily station. accurate, who made the test would person he found. called to he did and what say what light problem, In That would be cumbersome. It issuance of a certificate. permitted leislature *5 hardship no to be burden on the Commonwealth seems original the the produce original signa- to with records, admissibility gener- on it. As to ture in contemplation are not made of a law suit. ally they However, are the full these certificates made with knowl- that of the Commonwealth the edge called testing devise will be in a trial. [sic] 2). note that the (Lower Opinion Additionally, Court at we witness, Trooper Algatt, was unable to Commonwealth’s Al- identify sought the document to be admitted. properly original had never seen the certificate and therefore gatt testify not as to whether true could (N.T. 3). He could only it. December 1982 at copy of it certificate to customary original that was testify case, this Leit- approved sent station —in be headquarters would Jewelry zel’s where —to to copies sent different stations. There- photostated contention, photo- fore, contrary to the Commonwealth’s properly not authenticated.2 copy was us no Accordingly, given the Commonwealth has the lower overturning rejection reason court’s of the in lieu of the admission accuracy. Affirmed. J.,
WICKERSHAM, opinion. files a dissenting WICKERSHAM, dissenting: Judge, incorrectly rejected hold that the lower would and, offer case accord- evidentiary of the Perdok, (1963), 411 Pa. In Commonwealth v. approved for the Supreme Court the admission of the certificate purpose proving apparatus was accurate. that the radar limited However, ground on the the Court reversed the conviction Secretary prove document admissible was not approval fell under of the machine unless it Revenue’s that, exceptions be- for business records or official statements part and it no foundation had been laid was not cause used, duty type apparatus such approve of radar station’s exceptions apply. did not *6 order reverse the below ingly, prose- would cution. prosecution
The below dismissed “be- was not to a prepared cause introduce required as timing accuracy by certificate law.” op. ct. This conclusion based upon Lower at 3. two grounds: (1) the of the certificate of separate 6109(b), accuracy was under 42 Pa.C.S. not admissible § (2) Trooper Algatt provide could not sufficient identification 6108(b). satisfy I would of the document to Pa.C.S. § that, stated, on the was sufficient- hold facts to 42 pursuant identified and was admissible Pa.C.S. ly prosecution sole issue The on this is whether document, fall of a rather than must because prove an element the case. was offered question is no raised about the substance of the There document, timing accuracy. stopwatch by Jewelry, done Leitzel’s which was by Pennsylvania as an official station
designated Transportation, 75 Pa.C.S. Department certificate established that on Octo- photocopy of the stopwatch had used to Leitzel’s tested ber appellee. appellee The citation issued to November clock testing period pre- the sixty day 1981 was well within no 3368(d). No has been raised and by scribed section issue proffered photocopy somehow suggestion made that from the document. differed pertinent in as provides, part, 6109 of Title follows: in the government,
If or any department agency ... kept or has or record- regular activity, course of business act, any transac- writing ... any ed memorandum [or] event, tion, regular and in the course occurrence or recorded, to be has or all of the same any caused when satis- copied reproduced____[s]uch reproduction, identified, in evidence as factorily is admissible original itself in any judicial ... proceeding, whether the original is in existence or not.
42 Pa.C.S. § The offer proof made the Commonwealth below would the procedure have shown whereby photocopy of the by Trooper was received Algatt ultimately in produced court. When an authorized testing station tests and certifies stopwatch, the certificate of sent to the Pennsylvania State Police Bureau of Patrol Harrisburg. any given stopwatch Because in any aircraft is used to clock speeders conjunction with different many barracks, state stations or the Bureau of Patrol sends *7 of the certificate of each station that needs it. It was in this manner that Trooper Algatt received the of the document certifying that Leitzel’s had stopwatch 19, tested the on October 1981. proffered The testimony would clearly satisfied all of the essential requirements for admissibility of the photo- copy pursuant to 42 Pa.C.S. § only requirement
The
on which an issue exists is that of
6109(b)
identification of the copy. Section
repro-
allows
ductions to be admitted only “when satisfactorily identi-
I would hold that “satisfactory identification” need
fied.”
not
testimony
be actual
that the copy is a true and correct
copy.
procedures in the present case provide
appro-
an
priate link
between the
photo-
document and the
copy.
procedures showing the
legitimacy
copy
explained
were
to the court below.
some sugges-
Absent
tion that
the document or its contents differed from the
the document should
accepted
have been
proof pursuant
court as
3368(d).
to 75 Pa.C.S. §
The lower court also reasoned that the document had to
be “identified
aby qualified
witness”
to 42 Pa.C.S.
6108(b) to be admissible as a business record. 6108 creates an exception to the
rule for
Visconto,
See
records.
Pa.Super.
543,
(1982).
Superior Pennsylvania. Court of
Argued Aug. 1984.
Filed Jan. Aug. Appeal Petition for Allowance of Granted