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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    JOSEPH DUMANOV

                             Appellant                No. 390 EDA 2017


                     Appeal from the Order January 5, 2017
                In the Court of Common Pleas of Carbon County
              Criminal Division at No(s): CP-13-SA-0000005-2015


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED OCTOBER 24, 2017

        Joseph Dumanov, proceeding pro se, appeals from an order of the Court

of Common Pleas of Carbon County, which imposed a fine of $68.50, plus

costs, following his conviction for speeding. 75 Pa.C.S.A. § 3362. We affirm.

        On January 2, 2015, Trooper Daniel J. Marotta of the Pennsylvania State

Police was monitoring traffic along Interstate 80 in Kidder Township, Carbon

County. Trooper Marotta testified that his radar indicated that Dumanov’s

silver pick-up truck was traveling at a rate of 83 miles per hour in a 65 mile

per hour zone. Trooper Marotta initiated a traffic stop and issued a citation to

Dumanov for violation of section 3362 of the Vehicle Code., exceeding the

posted speed limit.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        On January 5, 2017, at a trial de novo before the Honorable Steven R.

Serfass, Dumanov did not contest the fact that he was driving over the posted

speed limit.1 Instead, Dumanov argued that section 3362 is unconstitutional

and denies him his “sole right to freely travel.”     N.T. Trial, 1/5/17, at 10.

Judge Serfass found Dumanov guilty of violating section 3362, and entered

an order in accordance with Pa.R.Crim.P. 462(g).2



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1   On direct examination, Dumanov testified as follows:

        Q:    Now that you’re under oath, sir, I just want to verify what
        you said which is already part of the record but was not sworn
        testimony that you are not contesting the speeding violation?

        A:    I’m contesting the law itself.

        Q:     I understand that. What I’m saying is, you’ve heard
        testimony from this Trooper that indicated that according to the
        device that he was using you were traveling 83 miles per hour in
        a zone posted at 65 miles per hour. You are not contesting that
        violation?

        A:    That is correct.

N.T. Trial, 1/5/17, at 11. Further, the Commonwealth carried its burden of
proving the speeding offense. The radar gun showed the defendant was
traveling 83 miles per hour, in excess of the maximum speed of 65 miles per
hour. The Commonwealth established that the speeding device and the testing
station were approved by the Department of Transportation, and the court
took judicial notice of the department’s approval of the Gemini GHD Radar
Gun as published in the Pennsylvania Bulletin. Id. at 5-8.
2 Pursuant to Pa.R.Crim.P. 462(G), following a trial de novo, the trial judge
“shall: . . . issue a written order imposing sentence, signed by the trial judge.”
The order must also advise defendant of the right to appeal to this Court within
30 days of the imposition of sentence. Pa.R.Crim.P. 462(G)(4).



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        Dumanov filed a notice of appeal, and the trial court directed him to file

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Dumanov timely filed his Rule 1925(b) statement. On appeal, he

challenges the constitutionality, validity and necessity of 75 Pa.C.S.A. § 3362

(Maximum speed limits),3 arguing that it is vague, lacks scientific foundation,



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3   Section 3362 of the Vehicle Code provides:

        (a) General rule.--Except when a special hazard exists that
        requires lower speed for compliance with section 3361 (relating to
        driving vehicle at safe speed), the limits specified in this section
        or established under this subchapter shall be maximum lawful
        speeds and no person shall drive a vehicle at a speed in excess of
        the following maximum limits:

           (1) 35 miles per hour in any urban district.

           (1.1) 65 miles per hour or 70 miles per hour for all vehicles
           on freeways where the department has posted a 65-miles-
           per-hour or 70-miles-per-hour speed limit.

           (1.2) 25 miles per hour in a residence district if the highway:

              (i) is not a numbered traffic route; and

              (ii) is functionally classified by the department as a local
              highway.

           (2) 55 miles per hour in other locations.

           (3) Any other maximum speed limit established under this
           subchapter.

        75 Pa.C.S.A. § 3362 (emphasis added).




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and conflicts with 75 Pa.C.S.A. § 33614 (Driving vehicle at safe speed).

Dumanov’s argument focuses on the fact that he was cited for violating section

3362, when section 3361 “adequately serves the full purpose of regulating

rate of motion and `speed’ for travelers.” Appellant’s Brief, at 41. For that

reason, and because the neighboring states of Ohio and New Jersey do not

have a similar law, Dumanov argues that section 3362 is needless legislation.

        We begin by stating that all legislation enacted by General Assembly

carries a strong presumption of constitutionality, 1 Pa.C.S.A. § 1922, and any

party challenging a statute’s constitutionality bears a heavy burden to

demonstrate that the legislation clearly, palpably, and plainly violates the

terms of the constitution. Commonwealth v. Rabold, 951 A.2d 329, 340

(Pa. 2008); Commonwealth v. Burnsworth, 669 A.2d 883, 886 (Pa. 1995).

____________________________________________


4   Section 3361 of the Vehicle Code provides:

        No person shall drive a vehicle at a speed greater than is
        reasonable and prudent under the conditions and having regard
        to the actual and potential hazards then existing, nor at a speed
        greater than will permit the driver to bring his vehicle to a stop
        within the assured clear distance ahead. Consistent with the
        foregoing, every person shall drive at a safe and appropriate
        speed when approaching and crossing an intersection or railroad
        grade crossing, when approaching and going around curve, when
        approaching a hill crest, when traveling upon any narrow or
        winding roadway and when special hazards exist with respect to
        pedestrians or other traffic or by reason of weather or highway
        conditions.

75 Pa.C.S.A. § 3361.




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       Section 3362 provides the maximum speeds for designated areas,

posted pursuant to Pennsylvania Department of Transportation regulations.

67 Pa. Code § 211.71. The Department, on state designated highways5 (and

local authorities, on any highway within their boundaries), may erect official

traffic-control devices in conformance with the department regulations, upon

all highways as required to carry out the provisions of the Vehicle Code or “to

regulate, restrict, direct, warn, prohibit, or guide traffic.”      75 Pa.C.S.A. §

6122(a) (emphasis added); see 67 Pa. Code § 211.1 et seq. No provision of

the Vehicle Code is deemed to prevent the Department on state-designated

highways, and local authorities on streets or highways within their physical

boundaries, from the reasonable exercise of their police powers. 75 Pa.C.S.A.

§ 6109.    Establishing speed limits, as authorized in the Vehicle Code, and

enforcement of those speed limits, are clearly reasonable exercises of the

state’s police power. See 75 Pa.C.S.A. §§ 3361 et seq.

       Alternatively, speeding alone does not violate section 3361 (Driving

vehicle at safe speed).       Commonwealth v. Heberling, 678 A.2d 794 (Pa.

Super. 1996).      There must be proof of speed, not necessarily beyond the

posted    speed     limit,   that   is   unreasonable   or   imprudent   under   the

circumstances, which are the “conditions” and “actual and potential hazards

then existing” on the roadway. 75 Pa.C.S.A. § 3361. Driving at the posted

____________________________________________


5See 75 Pa.C.S.A. § 102, defining “State designated highway” as a “highway
or bridge on the system of highways and bridges over which the department
has assumed or has been legislatively given jurisdiction.”

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speed limit, or even below it, may violate section 3361 depending on the

circumstances.

      These circumstances may include not only the amount of traffic,
      pedestrian travel and weather conditions, but also the nature of
      the roadway itself (e.g., whether four-lane, interstate, or rural;
      flat and wide, or narrow and winding over hilly terrain; smooth-
      surfaced, or full of potholes; clear, or under construction with
      abrupt lane shifts.) It is these circumstances under which one’s
      speed may be found sufficiently unreasonable and imprudent to
      constitute a violation of section 3361, even if the driver has
      adhered to the posted speed limit.

Heberling, 678 A.2d at 796 (emphasis added). Thus, driving at a speed that

is careful and prudent, having due regard to traffic, surface, existing

restrictions or conditions, for purposes of section 3361, is not necessarily

equivalent to driving at the posted speed limit.

      Although a section 3362 violation may contribute to a section 3361

violation, this does not convince us that section 3362 is, therefore, needless

or duplicative. Moreover, Dumanov has failed to present either a substantive

or procedural due process argument that establishes that section 3362 clearly,

palpably, and plainly violates the Constitution. Rabold, supra; Burnsworth,

supra. Additionally, Dumanov’s claim that section 3362 is unconstitutional

simply because other states have not enacted similar statutes is baseless. We

agree with the trial court’s conclusion that Dumanov has failed to meet his

substantial burden of challenging the constitutionality of section 3362 of the

Vehicle Code. See In re R.D., 739 A.2d 548, 554 (Pa. Super. 1999) (“The

right of the judiciary to declare a statute void, and to arrest its execution, is


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one which, in the opinion of all courts, is coupled with responsibilities so grave

that it is never to be exercised except in very clear cases.” ). This is clearly

not that case.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017




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