Com. v. Baker, D. (memorandum)

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J-A04018-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DANIEL C. BAKER Appellant No. 828 WDA 2013 Appeal from the Judgment of Sentence of April 11, 2013 In the Court of Common Pleas of Washington County Criminal Division at No.: CP-63-SA-0000320-2012 BEFORE: BOWES, J., WECHT, J., and STABILE, J. MEMORANDUM BY WECHT, J.: FILED JULY 2, 2014 Daniel C. Baker appeals from his April 11, 2013 judgment of sentence. For the reasons that follow, we affirm. The trial court aptly summarized the factual history of this case in its supplemental opinion1 pursuant to Pa.R.A.P. 1925(a), as follows: On August 9, 2013, [Baker] was traveling on Ridge Road (also known as [T]ownship [R]oad 616) within Robinson Township in member of the Robinson Township Police Department . . ., testified that he observed [Baker] driving a commercial flat-bed truck carrying metal pipe on Ridge Road which appeared to be in violation of [local] ordinance weight restrictions.2 truck passed Officer Farkas, [he] followed [Baker] in his vehicle, turned on his police lights and successfully stopped [Baker] on Ridge Road to effectuate a weighing. When [Baker] stopped his ____________________________________________ 1 See infra at 5. J-A04018-14 [truck,] Officer Garkas informed him why he was stopped and that he was going to conduct a weighing. 2 Officer Farkas testified with credibility that his training truck alone would have been greater than the allowable limit[] of ten tons for Ridge Road. Officer Farkas testified that he used two pairs of scales [in [axel] of the truck, then the front, by having [Baker] move the truck either forward or backward onto each pair of scales while on level ground. Officer Farkas also testitifed that the scales were certified by the Department of General Services for the Commonwealth of Pennsylvania on March 28, 2012, and he produced written verification thereof. According to the scales, the gross weight of the truck was 69,900 pounds. Officer Farkas, testified, however, that he permitted a three[-]percent [downward] deviation to 67,803 pounds to allow for any margin of error. After the weighing, Officer Farkas testitifed that he completed two Motor Carrier Enforcement Vehicle Weight Records 3 Officer Farkas testified that he handed [Baker] one of the two original Records and gave [Baker] a copy of the citation; the second original Record was retained by Officer Farkas for the police 47,803 pounds over the limit of 20,000 and the fine would be $13,650, plus certain applicable costs. As a result, the total due was $13,856. 3 The [Robinson Township Police Department] does not provide [Officer Farkas] with a portable photocopying machine when working in the field. As Officer Farkas testified, he must independently scribe a Record for the driver and Record for the police department. -2- J-A04018-14 On September 17, 2012, a magisterial district judge found Baker guilty of violating the weight limits2 applicable to Ridge Road. Baker was ordered citation. Time Payment Order, 9/17/2012, at 1. Specifically, Baker was found to be in violation of Robinson Township Ordinance No. 02.09-2009,3 which provides as follows: An Ordinance Setting Forth Weight and Size Restrictions on Roadways and/or Parts of Roadways Located in Robinson Township. WHEREAS, the Second Class Township Code, provides that Robinson Township can establish weight and size restrictions on roadways located in the Township; and WHEREAS, the Board of Supervisors of Robinson Township have caused Engineering surveys to be made for purposes of this Ordinance and the same are available for inspection at the Township Municipal Offices; and WHEREAS, the Board of Supervisors have deemed that it is in the best interest of a Township to establish weight and size restrictions on roadways for Robinson Township pursuant to the aforesaid surveys; NOW THEREFORE, the Robinson Township Board of Supervisors, in lawful session meeting, hereby ORDAIN AND ENACT as follows: ____________________________________________ 2 See authorities with respect to highways and bridges under their jurisdictions may prohibit the operation of vehicles and may impose restrictions as to the weight . . . of vehicles 3 The ordinance was signed, taking immediate effect, on April 14, 2009. -3- J-A04018-14 SECTION 1. The weight and size restriction roadway surveys prepared by K2 Engineering, Inc. in January of 2009 and on file at the Robinson Township Municipal Offices located at 8400 Noblestown Road[,] McDonald, PA[,] 15057[,] are hereby incorporated into this Ordinance. SECTION 2. The location distances and weight restrictions set forth in the K2 Engineering, Inc. weight and size restriction roadway surveys are hereby adopted on the following roadways: * Ridge Road * * T-616, distance 0.86 miles * * * SECTION 3. The Township will post the aforesaid roadways with signage indicating the weight restrictions and locations on said roadways for purposes of this Ordinance. SECTION 4. Any person [who] violates any provisions of this Ordinance shall be prosecuted under the applicable sections of the Pennsylvania Motor Vehicle Code including but not limited to Section 4902 and all sub parts thereof and upon conviction shall be sentenced to pay a fine of $300.00 plus $150.00 for each five hundred (500) pounds or part thereof, in excess of two-thousand (2,000) over the maximum allowable weight plus in enforcing this Ordinance. -2 (unnumbered).4 See The weight and size restriction survey regarding Ridge Road incorporation, was conducted on or about January 2, 2009. Id. at 6. The survey noted that existing signage on Ridge Road already limited vehicles to ____________________________________________ 4 -issue Robinson Township ordinance and a copy of the survey conducted upon Ridge Road. -4- J-A04018-14 a maximum weight of ten tons, or 20,000 pounds. Id. at 4. Based upon posting should be maintained to prevent additional damage to the roadway Id. at 6. On September 25, 2012, Baker filed a notice of appeal from his de novo summary trial was held in the Washington County Court of Common Pleas. On April 13, 2013, that of the magisterial district court. On May 10, 2013, Baker filed a notice of appeal. On May 14, 2013, the trial court directed Baker to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 3, 2013, Baker timely complied. On June 14, 2013, the trial court issued a Rule 1925(a) opinion. However, on June 21, 2013, the trial court issued a supplemental Rule 1925(a) opinion, explaining that its earlier opinion was issued before the [the] conviction of [Baker] should stand when the evidence presented by the as follows: This case is rife with issues regarding the authenticity of the documentary evidence offered as the basis for the underlying -5- J-A04018-14 citation and eventual conviction of [Baker. Officer Farkas] testified before the Court that the Motor Carrier Enforcement C at trial) and that was filed with the court, was the underlying document that formed the basis for the issuance of the citation given to [Baker]. The document that was testified to by [Officer Farkas] was not the same document given to [Baker] and had different information on it. [Baker] pointed out on the record six (6) differences between the document he was given (and had to defend), and the document that was accepted by the Court and marked as Exhibit C. The differences included: 1. Different handwriting on the top left portion of the document; 2. Weight of Axle three (3) was different amount; 3. Weight of Axle four (4) had two different amount[s]; 4. The appearance of -3% on the [copy of the citation copy; 5. The regulation state number on [the copy of the citation copy; 6. -10. Thus, Baker argues that the evidence adduced by the not sufficiently authenticated. Our standard of review from an appeal of a summary conviction heard de novo by the trial court is limited to a determination of whether an error of law has been committed and whether the findings of fact are supported by -6- J-A04018-14 competent evidence. Commonwealth v. Marizzaldi, 814 A.2d 249, 251 (Pa. Super. 2002) (citing Commonwealth v. Lutes, 793 A.2d 949, 958 (Pa. Super. 2002)). The adjudication of the trial court will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Parks, 768 A.2d 1168, 1171 (Pa. Super. 2001) (citing Commonwealth v. Askins, the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by Id. The Pennsylvania Rules of Evidence provide, in relevant part, as follows with regard to the authentication of evidence: Rule 901. Authenticating or Identifying Evidence (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (b) Examples. The following are examples only complete list of evidence that satisfies the requirement: not a Testimony of a Witness with Knowledge. (1) Testimony that an item is what it is claimed to be. * * * (7) Evidence about Public Records. Evidence that: (A) a document was recorded or filed in a public office as authorized by law; or (B) a purported public record or statement is from the office where items of this kind are kept. -7- J-A04018-14 Pa.R.E. 901. The Pennsylvania Supreme Court has opined upon the authentication of evidence, as follows: [T]here is no requirement that the Commonwealth establish the sanctity of its exhibits beyond a moral certainty. Commonwealth v. Pedano, 405 A.2d 525, 528 (Pa. Super. 1979); Commonwealth v. Proctor, 385 A.2d 383, (Pa. Super. 1978). Every hypothetical possibility of tampering need not be eliminated; it is sufficient that the evidence, direct or circumstantial, establishes a reasonable inference that the identity and condition of the exhibit remain unimpaired until it was surrendered to the trial court. Id.; see Commonwealth v. Miller, 339 A.2d 573 (Pa. Super. 1975). Commonwealth v. Hudson, 414 A.2d 1381, 1387 (Pa. 1980) (internal citations modified). This Court has discussed the types of circumstantial evidence that may be used for authentication purposes, as follows: [A] writing can be authenticated by circumstantial evidence that may take a number of forms, and that tends to show that the writing is what it purports to be. . . . [S]uch evidence may, depending upon the facts at issue, include proof of: the timing and method of delivery of the document, information in the contents of the writing that is known by the purported sender and the recipient, events preceding or following the execution or delivery of the writing, other communications by the purported sender prior to or following the execution or delivery of the letterhead on the document, the handwriting technique, or the style of expression used in the language of the writing. Commonwealth v. Brooks, 508 A.2d 316, 319-20 (Pa. Super. 1986). Additionally, we note that the authenticity of a document is, ultimately, a question that rests with the fact-finder: [T]he ultimate determination of authenticity is for the [factfinder]. A proponent of a document need only present a prima -8- J-A04018-14 facie case of some evidence of genuineness in order to put the issue of authenticity before the fact[-]finders. * * * The court makes the preliminary determination of whether or not a prima facie case exists to warrant its submission to the finders of fact, but the jury itself considers the evidence and weighs it against that offered by the opposing party. Id. at 320 (emphasis in original). Baker argues that the inconsistencies between the two versions of the citation written by Officer Farkas, see supra at 6, served to undermine the authenticity of the copy adduced by the Commonwealth. In its supplemental 1925(a) opinion, the trial court has thoroughly discussed these alleged y at the de novo trial. Specifically, the trial court concludes, upon the basis of Officer are the result of inadvertent transcription errors that Officer Farkas made in filling out the two separate versions of the citation. See supra at 2. Upon see 4/11/2013, at 7-45, the trial court concluded that there was no error in permitting Officer Farkas to rely upon the -hand knowledge T.C.O. at 4. -9- J-A04018-14 We have reviewed the certified record, and the governing legal standards attendant to the authentication of evidence. We agree with the at-issue evidence b memorandum. In addition to his claim that the Commonwealth failed to properly rsion of the citation, Baker has appended an alternative argument at the end of his brief asserting that the [Officer Farkas] acknowledged[] that the two [citations] in question differed raises the specter that the prejudicial effect of the evidence outweighs its probative establish that Ridge Road was, in fact, weight-limited. Id. at 14. Assuming, arguendo supporting legal authorities, see Pa.R.A.P. 2119, Baker has failed to include these claims in his statement of the questions presented. See Pa.R.A.P. 2116(a). To the extent that Baker relies upon these claims for relief, they are waived. See Commonwealth v. Bryant, 57 A.3d 191, 196 n.7 (Pa. his Rule 2116 statement of the questions). - 10 - J-A04018-14 Consequently, we conclude that the trial court did not commit an error Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/2/2014 - 11 - Circulated 06/17/2014 04:30 PM Circulated 06/17/2014 04:30 PM Circulated 06/17/2014 04:30 PM Circulated 06/17/2014 04:30 PM Circulated 06/17/2014 04:30 PM

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