*1 access, illegal activity plain observes contraband or gains view, backup purpose immediately obtaining for the leaves together having after identified assistance and then reenter v. Moye, officers, Commonwealth as police themselves (1990). 586 A.2d officer, having above cited cases the after In each of the and then left plain contraband view entry, observed gained arrest returning effectuating prior premises to allow a re- objective criteria provide factors some These In this conduct of the officers. court to evaluate the viewing case, nor observed contraband exited the officers neither para- consent. defendant’s prior obtaining premises may officers enter Opinion, the lead digm suggested suspicion, on unverifiable subterfuge, and based premises by a far poses consent. This to obtain the defendant’s attempt would blur permitted, situation than previously more fluid of a seizure evaluating legitimacy established lines subterfuge. obtained as a result CAVANAUGH, concurs in the result. J. Appellee, Pennsylvania,
COMMONWEALTH HEBERLING, Appellant. Stephanie Pennsylvania. Superior Court Feb. Submitted 7, 1996. Filed June *2 Bell, III, Clearfield, appellant. F. Cortez Dubois, Attorney, for the Cherry, E. Assistant District Paul Commonwealth, appellee. *3 EAKIN, CAVANAUGH, SOLE, DEL and JJ.
Before EAKIN, Judge. of sentence judgment from the Heberling appeals
Stephanie County Pleas of Clearfield of Common by entered the Court 75 Pa.C.S. J., conviction under following her (Reilly, presiding) argues, speed. Appellant at unsafe § vehicle essence, to her support is insufficient evidence argues she Specifically, under section 3361. conviction to failed the Commonwealth is insufficient because made her conditions” “hazards” any “prevailing prove unreasonable. excessive travelling “at 9, 1994, a saw police officer July
On Appel- zone. mile-per-hour in a 45 speed” rate of an extreme of a one-tenth (approximately an nearing intersection lant road) two- of a hill (approximately the crest and mile down ahead). stopped of a mile to three-tenths a was issued and points of these two reaching either before condi- Weather violation of section 3361. charging a citation was affected No traffic normal. other clear and tions were at risk. any pedestrians nor were sufficiency we apply reviewing standard whether, admitted viewing all the evidence of evidence winner, there is favorable to the verdict light trial in the most every to find to enable the factfinder sufficient evidence doubt. Common beyond a reasonable of the crime element (1994). Williams, Applying Pa. wealth v. review, insufficiency claim appellant’s we find this standard of without merit. provides: of the Vehicle Code
Section 3361 than is a at a speed No shall drive vehicle person having and under the conditions prudent and reasonable nor existing, hazards then to the actual and regard bring his permit than will the driver speed greater distance ahead. to a within the assured clear vehicle shall drive at foregoing, every person with the Consistent crossing and appropriate speed approaching safe and when approach- when grade crossing, or railroad intersection crest, curve, a hill approaching when going around ing winding roadway narrow or upon any when respect pedestrians hazards exist special conditions. highway of weather or other traffic or reason § Pa.C.S. unambigu is clear and language section 3361 statutory requires construction ous. The basic tenet according to their words of the statute court to construe the 1903(a); v. Stan Commonwealth meaning. Pa.C.S. plain (1982). 326, 335, When the Pa. 446 A.2d ley, 498 cannot a court unambiguous, of a are clear and words statute *4 of the the pretext pursuing spirit the of disregard them under 1921(c); v. Bd. Comm’rs Coretsky § statute. Pa.C.S. of (1989).2 Pa. Township, Butler 17, 1976, July § 1977. P.L. No. effective 1. Act of June 81. 1. upon may the a court embark only when a statute is unclear that 2. It is by reviewing the ascertaining legislature the intent of the task of attained, act, under object the circumstances necessity to be of the Coretsky, 520 remedied. and the mischief to be which it was enacted (c)). 517-18, (citing 1 A.2d at 74 Pa.C.S. Pa. at read together. has two that must be Section 3361 sentences general types sets forth two and alternate The first sentence that, a viola- driving, when a is constitute person of conduct (1) greater prudent than is and speed tion: reasonable to the actual and having regard conditions and under (2) than or existing; hazards then potential his vehicle to a within permit bring will the driver to assured distance ahead. clear with phrase begins sentence of section second ”3 forth several specif- foregoing
“consistent with and sets hazards that further define examples ic of conditions and or general conduct —unreasonable —con- include, not situations but are stitutes a violation. These to, inter- approaching limited a hill crest and approaching not the situations are specifically section. These enumerated that, together with inappropriate or sole situations exclusive violations, is a catchall because speed, might constitute i.e., with respect “when hazards exist category, special other traffic or high- of weather or or reason pedestrians way conditions.” not alone does question speeding is no
There must proof be violation of this section.4 There constitute circum imprudent under the unreasonable or speed that is (of which are the proof), must also be stances which there existing” then hazards “actual and “conditions” and only not may include circumstances roadway. of the These traffic, condi and weather travel pedestrian the amount tions, (e.g., itself whether roadway also the nature but interstate, wide, rural; or four-lane, flat narrow or smooth-surfaced, terrain; pot full winding hilly over shifts.) It holes; clear, lane abrupt or under construction found may be which one’s under these circumstances to,” begin phrase "in with the addition does not sentence second from,” sug- any "alternatively,” phrase other apart "separate and must that the Commonwealth gesting or different standards additional prove support a conviction. speeding specifically addresses Code Vehicle 4. Section 3362 violations. *5 viola- to constitute a sufficiently unreasonable if even the. driver has adhered tion of section limit. posted speed statute its reading in this guided plain
areWe 1002,which as follows: section read precursor, (a) on a shall drive driving highway vehicle Any person not than greater at prudent same a careful and having regard due proper, than is reasonable and nor less any and of highway, and width surface, traffic existing; then and there or conditions other restrictions vehicle, at highway any upon shall drive person and no life, limb, endanger property as to such a him to will permit nor at a than any person, to a within the assured clear distance bring the vehicle ahead. 1002(a) re- legislature The
75 Pa.C.S. 17, 1976 on June this section and enacted section 3361 pealed 1). (see any statute did not delineate repealed footnote caution; enu- that warranted section 3361 situations specific in its sentence. some of them second merates is little of some situations specific inclusion legislature’s many recognition than its common sense more and intersec- hills Approaching situations extra care. require to a beyond caution mere adherence tions demand logically limit; speed coupled proof of unreasonable posted speed a violation of makes out roadway of these conditions either section 3361. in Commonwealth by our decision guided
We also are (1989). found We Vishneski access, highway a limited three-lane speed on that Vishneski’s under section sustained his conviction was unreasonable and 3361: traveling was a truck that there
The trial record indicates time travel- on Route 202 North at the same from the highway on entered the ing the route. It is at exit. Pike and exited the Route 322 on-ramp Paoli was unrea- appellant’s speed from the record that apparent highway. Appellant conditions of the given sonable zoned miles hour per per miles hour a 55 84.5 competing must merge where traffic and exit while area addition, note we *6 the northbound flow traffic. northbound entering exiting the was and rate of within a distance high highway hazards potential one-tenth mile. approximately for a miles rendering at 84.5 traveling and conditions is the evidence. clearly supported hour unreasonable per Vishneski, 503-04, A.2d at at 552 301 Pa.Super. 380 Clearly, examined was not factor. we Weather traffic and congested “hazards” as the such “conditions” and as the nature as well speed, Vishneski’s excessive of a access and limited roadway, on-ramp design the exit- highway. Strausser, D. & Pa. v. 18
Appellant cites Commonwealth (1993) Walker, Pa. D. & 5 517 and Commonwealth C.4th (1990) court The Strausser case. support 631 her C.4th and of a in fact similarity patterns5 on Walker because relied stated: defen- citation was the for issuance of the
The sole basis zone. 25-mph posted in a mph act of dant’s traffic, pedestrians other testimony regarding There was no Under dry was and clear. day and the present, or children Code, Motor Vehicle section 3361 of language sufficient not speeding was a defendant simply proving a safe speed. failure at a conviction for drive condi- prevailing must show that The Commonwealth hazards tions, potential actual existence of and/or and travel unreasonable rate of rendered the defendant’s time. and particular place at that of condi- was no speeding, simply and was 5. Strausser Walker, however, traveled support his hazards to conviction. tions or through only finding speed. at an excessive an intersection limit, ignored the situa- court the Walker exceeded the Walker 3361, clearly which of section in the second sentence tions delineated and a safe crossing intersection "at approaching and requires speed.” appropriate “conditions” no presented 521-22. The Commonwealth Id. at that, with Strausser’s coupled at all hazards” “potential a conviction under section 3361. could sustain excessive interpreting section are few decisions appellate While there in Common- under this section sustained a conviction we (1987), in A.2d 1192 Monosky, wealth v. was Monosky discussed above. to Vishneski addition in a 25 mph approximately area at through residential and wet. We held foggy weather was mph zone. The Monosky: here Motor Vehicle Code applicable provision
involved, shall not that a vehicle states Pa.C.S.A. reasonably than is speed greater of a be driven excess existing hazards prudent under conditions discloses, hazards and condi- As record here that time. residential, readily The area apparent. tions were appellant’s conclude that and wet. We day foggy *7 limit was greater the driving speed posted excess of the given prevailing reasonable and prudent than was hazards. and potential conditions that We found (emphasis at 520 A.2d at Id. in a residential roadway on a conditions and weather that, with Mono- coupled “hazards and conditions” area were section a conviction under speed, sustained sky’s excessive 3361. was appellant that the trial court found
In the instant case rate a hill at an extreme an intersection and crest approaching of speed: this Court notes appeal,
In dismissing the Defendant’s regard to have for the operator the requires that the statute statute existing. hazards actual and then appropriate to at a safe and requires operator drive ap- ... when ... an intersection speed approaching when as a fact in the hill ... Court found proaching crest at an extreme travelling instant that the defendant was case hill an intersection speed approaching rate while of the statute requirements under the crest and determined that has met its burden. the Commonwealth 9/27/95, original). Opinion, Trial Court at hill ... an intersec- “approaching crest” and “Approaching statute in the specifically tion” are “conditions” enumerated proceed appropriate a driver to at a safe and require under When drove at excessive speed. conditions, these she violated section Accordingly, judgment we affirm the of sentence. affirmed. Judgment sentence SOLE, J., DEL a dissenting opinion. files SOLE, Judge, dissenting: DEL I that the Commonwealth failed Because would conclude conviction un- Appellant’s to support offer sufficient evidence 3361,1 75 Pa.C.S.A. dissent. der statutory provision and Majority quotes the relevant “must be proof that in of a conviction there support *8 trial, was in a that he Greene testified Trooper At Michael proceeding car Appellant’s observed position when he patrol speed rate of to be an extreme appeared “in what northbound at 4. He in that N.T. limit area.” speed for the posted 6/19/95 was him that the vehicle told experience that his also stated limit. However hour per speed 45 mile posted exceeding toor speed, actual testified to the vehicle’s trooper never travel- was Appellant which speed of the actual his estimation ing.
128 require specific speed statute at issue does not that a occur, Common- in for a violation to must be exceeded order Martorano, 158-60, wealth v. 563 A.2d Pa.Super. 387 (1989), that it must be shown 1233 however nevertheless of show- was excessive for the conditions.1 Absent speed was it is to conclude that an individual ing speed, impossible conditions. speed at a which was excessive for the traveling 481, 520 A.2d Monosky, v. Commonwealth Pa.Super. In (1987), to drive failing this a conviction for upheld court case, in In contrast to this the record speed. at a safe Monosky by patrol that the was observed appellant disclosed driving per posted speed of the 25 mile hour officers excess officers that the road was in a residential limit. The testified it that day. and it was wet One officer testified foggy area to and 60 necessary for him to accelerate was between that opined Both also appellant. miles to overtake the officers hour approximately per 50 miles appellant traveling initially he was observed. absent this there in no such I believe testimony. case it speed, actual or some evidence the defendant’s estimated traveling at an that the defendant was cannot be concluded at a traveling A cannot find one to be speed. unsafe court conditions, regardless than for reasonable speed conditions, has if no defendant’s to stand Allowing to this verdict offered the court. been officer’s solely testimony, on the officer’s elevates the based to a an unsafe opinion opine as to the permitted fact. While an is officer vehicle, to made the factfinder finding the ultimate be This was unreasonable the conditions. whether driving, prohibits respect to types two of conduct which 1. Section 3361 driving speed greater prudent under at a than reasonable and conditions, speed greater permit the driver to than will case clear ahead. This the vehicle within the assured distance application only prohibition. Common- the first Contrast concerns (where Rishel, (1995) court 658 A.2d wealth 3361 when the upholds violation of conviction under Pa.C.S. her control of appellant testified that she was unable maintain failed to when an that the had vehicle and officer testified accident.) negotiate causing a turn the road *9 finding fact function cannot be usurped by permitting the on the opine guilt witness I the defendant. would vacate Appellant’s Judgment of Sentence and convic- reverse her tion this matter. Pennsylvania
COMMONWEALTH of JACKSON, Appellant. Martinez Superior Pennsylvania. Court of
Argued April 1996. Filed June notes circum- under the unreasonable Majority then at 123. The Majority stances.” Memorandum of the road conditions on the circumstances goes analysis I with their assessment quarrel do not in this case. While conditions, conditions found here conclusion that the appropriate at a safe and proceed driver to required the the convic- support find sufficient evidence speed, I cannot estimating was no offered tion some evidence traveling. Absent at which it that she cannot be held speed, Appellant’s surrounding circum- regardless an excessive stances.