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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                     v.

ALBERTO MARMELUC

                          Appellant                    No. 794 WDA 2015


            Appeal from the Judgment of Sentence March 5, 2015
              In the Court of Common Pleas of Bedford County
             Criminal Division at No(s): CP-05-SA-0000004-2015


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.

MEMORANDUM BY PANELLA, J.                                FILED JULY 26, 2016

      Appellant, Alberto Marmeluc, appeals from the judgment of sentence

entered after the trial court found him guilty of speeding, a summary

offense, in violation of 75 Pa.C.S.A. § 3362(a)(3). Marmeluc argues that the

evidence at trial was insufficient to establish that he had exceeded the

maximum posted speed limit or that the radar gun used had been properly

certified. In the alternative, he contends that the verdict was against the

weight of the evidence at trial. After careful review of the record, we cannot

find any error in the trial court’s decision, and therefore affirm.

      While driving on the Pennsylvania Turnpike, Marmeluc was pulled over

and charged with exceeding the maximum posted speed limit in an active

work zone. After a hearing, Magisterial District Judge Cathy S. Calhoun
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found him guilty and imposed a fine. Marmeluc appealed to the Court of

Common Pleas of Bedford County.

      At the summary appeal hearing, Corporal John Mowery of the

Pennsylvania State Police testified that he had used a radar gun to clock

Marmeluc travelling at 58 miles per hour in a 40 mile per hour zone.

Marmeluc testified that he was travelling with the flow of traffic at the posted

speed limit, but that Corporal Mowery was stationed at the point where the

speed limit dropped from 55 to 40 miles per hour. The trial court found

Marmeluc guilty of speeding, but found that the Commonwealth had failed to

establish that this occurred in an active work zone. This timely appeal

followed.

      On appeal, Marmeluc first argues that the evidence at trial was

insufficient to establish that he was speeding. We review a challenge to the

sufficiency of the evidence as follows:

      The standard we apply when reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually

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      received must be considered. Finally, the trier of fact while
      passing upon the credibility of witnesses and the weight of the
      evidence produced is free to believe all, part or none of the
      evidence. Furthermore, when reviewing a sufficiency claim, our
      Court is required to give the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence.

      However, the inferences must flow from facts and circumstances
      proven in the record, and must be of such volume and quality as
      to overcome the presumption of innocence and satisfy the jury
      of an accused’s guilt beyond a reasonable doubt. The trier of fact
      cannot base a conviction on conjecture and speculation and a
      verdict which is premised on suspicion will fail even under the
      limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted). When reviewing a bench trial, we review the record to

ensure the findings of fact are supported by competent evidence and that

the trial court did not commit an error of law. See Commonwealth v.

Kaufman, 849 A.2d 1258, 1259 (Pa. Super. 2004).

      Marmeluc’s argument is best described as a “shotgun” or “kitchen

sink” approach, whereby he lists a series of critiques of the evidence

presented by the Commonwealth. For example, Marmeluc asserts that the

Commonwealth “failed to show that they tracked the speed of Appellant’s

vehicle for over 500 feet.” Appellant’s Brief, at 8. However, he does not

support these critiques with any citations to precedent, statute, or

regulation. After reviewing this catalogue of critiques, we conclude that they

are all arguments addressed to the weight of the evidence, not its legal

sufficiency.




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      To the extent that Marmeluc argues a general challenge to the

sufficiency of the evidence, we note that Corporal Mowery testified that his

radar gun indicated that Marmeluc was driving at a speed of 58 miles per

hour in a zone where the posted speed limit was 40 miles per hour. See

N.T., Summary Appeal Hearing, 3/5/15, at 6. The trial court was entitled to

credit this testimony, and it is sufficient to establish that Marmeluc was

driving at a speed exceeding the maximum posted limit. Marmeluc’s first

argument on appeal merits no relief.

      Next, Marmeluc argues that the Commonwealth failed to meet its

burden of establishing that the radar gun used by Corporal Mowery had been

calibrated by an approved testing station. Under 75 Pa.C.S.A. § 3362, in

order to sustain a conviction for speeding, the Commonwealth must prove,

among others, that the timing “device was calibrated and tested for accuracy

within the prescribed time period by a station which has been approved by

the [Department of Transportation.]” Commonwealth v. Kaufman, 849

A.2d 1258, 1259 (Pa. Super. 2004) (citations omitted). This element is part

of the Commonwealth’s evidentiary burden to sustain the conviction; it is not

merely a condition of admissibility for the test results. See id., at 1260. This

element must be established by evidence independent of the test results

themselves. See Commonwealth v. Denny, 539 A.2d 814, 816 (Pa.

Super. 1987).




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      At first, this Court required this independent evidence to be in the form

of “a Certificate, certified by the Secretary of Transportation or his designee

certifying the agency which performs the tests on the devices as an official

testing station, and must introduce a Certificate of Electronic Device (radar)

Accuracy into evidence.” Commonwealth v. Gernsheimer, 419 A.2d 528,

530 (Pa. Super. 1980). However, this burden was subsequently relaxed. The

Commonwealth is now permitted to meet its burden by merely providing a

citation to the Department of Transportation’s list of official testing stations

in the Pennsylvania Bulletin. See Denny, 539 A.2d at 816. A trial court may

take judicial notice of the citation to the list of official testing stations in the

Pennsylvania Bulletin, but an appellate court may not if the Commonwealth

did not ask the trial court to do so. See Commonwealth v. Kittelberger,

616 A.2d 1, 6 (Pa. Super. 1992).

      Here, Corporal Mowery testified that the radar gun had been tested at

an official testing station listed in the Pennsylvania Bulletin. See N.T., Trial,

3/5/15, at 10. The Commonwealth did not provide a copy of the official

testing station list in the Pennsylvania Bulletin, nor did it provide a citation to

the list. While this arguably violates the explicit language in Denny, we

conclude    that   Corporal   Mowery’s     testimony    is   sufficient   evidence,

independent of the certificate of accuracy, of the status of the testing

station. It is clearly preferable to utilize the easily obtained list of official

testing stations as evidence to support this element of a traffic code


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violation, but any defect in using Corporal Mowery’s testimony for this

purpose goes to the weight of the evidence, not its sufficiency. Marmeluc’s

second issue on appeal merits no relief.

     In his final issue, Marmeluc contends that the verdict was against the

weight of the evidence.

     An appellate court’s standard of review when presented with a
     weight of the evidence claim is distinct from the standard of
     review applied by the trial court:

        Appellate review of a weight claim is a review of the
        exercise of discretion, not of the underlying question of
        whether the verdict is against the weight of the evidence.
        Because the trial judge has had the opportunity to hear
        and see the evidence presented, an appellate court will
        give the gravest consideration to the findings and reasons
        advanced by the trial judge when reviewing a trial court’s
        determination that the verdict is against the weight of the
        evidence. One of the least assailable reasons for granting
        or denying a new trial is the lower court’s conviction that
        the verdict was or was not against the weight of the
        evidence and that a new trial should be granted in the
        interest of justice.

     This does not mean that the exercise of discretion by the trial
     court in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court’s discretion, we have
     explained:

        The term “discretion” imports the exercise of judgment,
        wisdom and skill so as to reach a dispassionate conclusion
        within the framework of the law, and is not exercised for
        the purpose of giving effect to the will of the judge.
        Discretion must be exercised on the foundation of reason,
        as opposed to prejudice, personal motivations, caprice or
        arbitrary actions. Discretion is abused where the course
        pursued represents not merely an error of judgment, but
        where the judgment is manifestly unreasonable or where


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         the law is not applied or where the record shows that the
         action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Orie, 88 A.3d 983, 1015-1016 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014).

      After reviewing the transcript and the exhibit admitted at trial, we

cannot conclude that the trial court abused its discretion. The trial court did

not act capriciously, and notably found that Corporal Mowery’s testimony

was insufficient to establish that Marmeluc was in a work zone when he

exceeded the speed limit. The record reveals that the trial court carefully

considered the evidence before it reached a verdict. Marmeluc’s final issue

on appeal merits no relief.

      As we conclude that none of Marmeluc’s issues are meritorious, we

affirm the judgment of sentence.

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2016




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