*1
Filed under holding withdraw his affidavit could not our these circumstances. *2 Best, Jr., Donald L. Pittsburgh, for appellant. Nesser,
James J. Assistant District Attorney, Connells- ville, Com., for appellee. CIRILLO,
Before President Judge, BROSKY, ROWLEY, WIEAND, MONTEMURO, BECK, TAMILIA, JOHNSON, POPOVICH and JJ.
POPOVICH, Judge: This is an appeal from judgment of sеntence which imposed was appellant, after Charles III, Lewis Frye was convicted aby judge sitting without jury of racing on the highways. Pa.C.S.A. 3367.1 We affirm.
Appellant raises the following (1) issues: whether the evidence was support insufficient to appellant’s conviction beyond doubt; (2) reasonable whether the criminal com- plaint which was filed against appellant was defective be- cause the complaint failed to specify the speed at which appellant was alleged to have driven and also failed to sрecify the applicable speed limit. We must reject appel- lant’s contentions.
Viewing the evidence in light most favorable to the winner, verdict which is the prosecution case, in this facts as by summarized the trial court consist of the follow- ing:
On September 1984, Pеnnsylvania State Police Troop- er, Venick, Daniel J. was on routine traffic patrol with Trooper Frank Winter. P.M., At approximately, 11:20 appellant’s conviction, 1. For summary received a fine of $200.00 and pay prosecution. was ordered to the costs оf light in at a red the northbound stopped troopers were Route 119. on U.S. At this lane at an intersection left-turn a six lane divided intersection, roadway, Route U.S. and a left- northbound lanes northbound consisting of two lanes and lane, southbound a southbound and two turn waiting light change, Trоop- for lane. While left-turn Coupe, a 1934 Ford appellant operating observed er Venick Co-defendant, rod.” William as a “hot which was described Shiffler, Jr., a “modified” 1965 operating Volks- H. stopped Both side side at the wagen Beetle.2 vehicles intersection. (herein- heard and his co-defendant trooper “revving” engines their appellants) to as
after referred twenty thirty for “chirping” approximately their tires green. light light changed When seconds before *3 and their ve- squealed the tires green, appellants’ turned fоr high rate of three tenths hicles accelerated a acceleration, of their (.3) During period of a mile. lanes, in at by the northbound which vehicles were side side in front of surpassed pulled Shif- point Frye’s circumstances, troopers these fler’s vehicle. Undеr (.7) of mile seven tenths a stopped appellants approximately racing them for on the from the intersection and cited highways. evidence is insuffi- contends that the appeal, appellant
On of offense of element prove every cient to “each and 8. Brief for How- racing on the highways.” raised, in ever, which theory only because the evidence, is insufficient support of his claim of a the defendants made established “evidence only [that] start”, every to review each quick we are unable highwаys. “MO- of of element the offense JUDGMENT”, Allegations Nos. TION IN ARREST OF appel- and tried with was consolidated 2. Shiffler’s case Co-defendant on has not been consolidated Although appeal of Shiffler lants. attorney by private who appeal, parties represеnted same both are appeals. Appeal at No. See has for both filed one brief Term, Pittsburgh Philpot, and 5. Commonwealth 491 Pa. (1980). examining appellant’s claim that the evidence only start, appellants quick that the made a we must
established appliсable provides: criminal statute which begin with Racing Highways on (a) in following Definitions.—As used this section the shall phrases meanings given words and have the to them in this subsection:
“Drag of or more operation race.” two vehicles in point accelerating speeds frоm a side side at other, to outdistance each or the competitive attempt or a common selected operation of one more vehicles over course, to the same for point point, from the same or purpose cоmparing speeds power relative of or acceleration the vehicle vehicles within certain distance or time limit. in attempt The use of one or more vehicles an
“Race.” outdistance or vehicle from outgain, prevent another рassing, given to arrive at a destination ahead another vehicles, physical vehicle or or to test stamina or long driving routes. endurance drivers over distance (b) person rule.—No shall drive a vehicle on a General race, contest, any speеd competition drag or highway contest, endurance, or test of physical race acceleration acceleration, or or for the purpose exhibition of record, and no shall in making person any manner race, contest, partiсipate any competition, such test *4 exhibition.
(c) special or department Permits for activities.—The per- local authorities within their issue jurisdiction may special pro- mits for activities which would otherwise be hibited this section. by
(d) violating this section is Penalty.—Any person сonviction, shall, guilty summary upon of a offense and pay be sentenced to a fine of $200.
1976, 17, 162, 81, 1, 1, 1977. July June P.L. No. eff. § supports appellant’s claim was testimony which The which estab- by defense witnesses testimony proffered the in order to “revving” sound was made the lished that Be- enginе Frye’s the car. speed for the idle maintain all, to or none of part is free believe the fact finder cause appellant must conclude that presented, we evidence Jackson, entitled to relief. Commonwealth 506 Pa. not (1984). trial, at when which was introduced The evidence prosecution, estab light most favorable to in a viewed co-defendant, Shiffler, operated lished that engines, side as “revved” their they side their vehicles seconds, “chirped” twenty thirty their tires for (.3) of speed for tenths high to a rate of three accelerated Additionally, the record green. turned light mile after the surpassed and pulled vehicle appellant’s also showed that circum Under these front of vehicle at time. Shiffler’s guilt was stances, appellant’s establishes that the record high fоr doubt beyond a reasonable proven ways. court erred next contends trial complaint to dismiss the because motion
denying appellant’s at which specify failed complaint must limit. We also driving and the disagree. Code, 75 Motor provision Vehicle aрplicable
Pa.C.S.A. states: speed violations Charging in this speed provision of a every charge violation (relating of section except for a violation subchapter, complaint the citation driving speed), safe the defendant at which speсify shall limit. applicable driven and the to have following contained Additionally, the citation at issue language: *5 filed with which was the citation
According appellant, citation forth on the not set information “contains the court Frye”. Brief for at 16. There- issued Charles fore, appellаnt argues citation defective because *6 “specifies of citation neither the copy his the which nor the alleged to have driven he was limit.” Id. case, that appellant argues
In the should this copy of the set forth “BLOCK 10” his of have been designates the of Id. which “Nature Offense”. citation case, conclude that the citation which was filed was we that the of the citation which copy defective and also not to him of the was sufficient inform given appellant him. See charges pending against of which were naturе the A(l)(e). (Every citation shall contain Pa.R.Crim.P. 52 subd. of specific citation of the section subsection “a violated, together allegedly or ordinance with statute of sufficient to advise the defendant summary of the facts charged”.) of the offense the nature аppellant states that which was issued to The citation A RACE’ WITH “DID COMPETE IN ‘DRAG appellant TO IN ATTEMPT ANOTHER FROM STOP LIGHT VEH. Record, THE ACCELLERATE OTHER VEH.” OUT [SIC] circumstances, no we have 2, page No. Under these Item notice adequate that had difficulty concluding case, In a we against filed him. similar charge of the commentеd: uphold position must the Commonwealth’s
We “accurately describe requirement is meant to summary lay of rather than out gravamen” the offense of The Commonwealth blow-by-blowdescription events. case, (Cumberland Co. Pa.D & 3rd C Weed [3 in reference to following 1977)] mаde observation this: must include a section specific a citation
Although summary violated, the statute it need show the nature to advise defendant of facts sufficient pending prose- him the charged, notifying offense him a chance to affording cution and himself defend is all that of the offense is description lenient ... This necessary because the upon must be defendant served citation, issuance of the him giving immediate notification of the infraction he when best able observe and recall surrounding facts circumstances the inci- Thus, dent ... we conclude that the description of the offense on a citation adequate long so as it advises Com- defendant of the charge. See, too, nature of the Yarnell, monwealth v. (Lebanon 57 D & C 2d 541 Co. Colbert, Commonwealth v. 1972), 56 D & C 2d- 419 (Bucks Co.1972). citation, find no serious question
We that the summary included, advised the the nature of the charges. Who is better able know what conduct oc- requires curred which a defense but the defendant him- *7 self, being present at the issuance of the citation? Notice the operative is term here and we find that summary, Weеd, supra, as interpreted by was sufficient. The cita- tion, concerned, far specificity as as is was valid. Stahl, v. Commonwealth 507, 513, 296 Pa.Super. 442 A.2d 1166, (1982) added). 1169 (Emphasis case,
In appellant even concedes speed that appellant’s vehicle an was not еlement of the offense Instead, charged.3 gravamen of the instant offense is competition the acceleration one appellant vehicle which driving was another from particular stop with a Hence, light. find appellant adequately we that was in- formed of the charge against which was filed him.
In support
argument
of his
that
the instant
citation
dismissed,
should
have been
cites the case of
Morris,
Commonwealth v.
269,
Pa.Super.
268
(1979). Morris,
1350
In
this Court held that a citation for
racing on the highways
allega-
was defective becаuse “an
tion as to
required
complaint
was
and
not
Id.,
271,
Pa.Superior
there.”
Ct. at
Id. an speed is not essential proof particular of a Because highways in this the offense element of our dеcision case, previous reject must overrule we Morris, supra, v. a dis- Commonwealth mandates which speed. charge allegation an absent discharge is warranted said that past, we have citation, contain a if summons or warrant “complaint, 150; Commonwealth Pa.R.Crim.P. defect ...” substantive Gerard, A.2d 416-417 70, 74, 459 Pa.Super. (1983). have said that: We also in which the exemplified as ones are defects
Substantive or where the be determined cannot identity defendant’s described. properly is not offense Id. a defendant must be we are unconvinced
Because limit informed of either against in order defend to have driven which he not entitled *8 is charge highways, of to relief.
Judgment of sentence affirmed. BROSKY, J., concurring statement. files a RESTRICTIONS”, F, Subchapter entitled “SPEED 4. An examination Driving at Safe following statutory provisions: reveals (75 3361), Speed (75 Limits Pa.C.S.A. Spеed § Pa.C.S.A. Maximum 3363), (75 3362), Mini- § Pa.C.S.A. of Maximum Limits Alteration § 3364), Speed (75 Special Limita- Speed Regulations Pa.C.S.A. § mum (75 3365), (75 Charing Speed Pa.C.S.A. Violations § Pa.C.S.A. tions 3367), (75 Speed Timing 3366), Highways Racing § Pa.C.S.A. on § 3368). (75 § Devices Pa.C.S.A. 404
BROSKY, Judge, concurring: first majority’s opinion I in the as to the issue in this join issue, I appellant’s majori- cаse. As to second as read question it does not resolve the raised in ty’s opinion, Morris, Commonwealth v. 269, Pa.Super. 268 407 A.2d (1979), provision 75 3367 is a speed whether Pa.C.S. § a citation or requires complaint and thus whether § speed 3367 to charging specify a violation at which § alleged and the applicable the defendant have driven Rather, majority appears limit. to hold that even speed provision if 3367 is a that the absence of an § allegation complaint a citation is not a defect discharge. agree I the dissent which warrants would with Morris speed provision. and hold that 3367 is not a Of course, analysis majority’s, under either this or the a de- discharged is not entitled to if he is not informed fendant be of the limit or the at which he is Therefore, I agree majori- to have driven. with the ty judgment of sentence must be affirmed. Pennsylvania
COMMONWEALTH AHEARN, Appellant. Dick Lavere Pennsylvania. Superior Court of Aug. Submitted Sept. Filed 4,1987. Appeal Denied March for Allowance Petition