# Commonwealth v. Heberling > Superior Court of Pennsylvania · June 7, 1996 · 451 Pa. Super. 119 URL: https://www.frixlaw.com/law-library/cases/9697238 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Stephanie HEBERLING, Appellant - **Court:** Superior Court of Pennsylvania - **Decided:** June 7, 1996 - **Citations:** 451 Pa. Super. 119; 678 A.2d 794; 1996 Pa. Super. LEXIS 1949 - **Precedential status:** Published - **Opinion:** Dissent by Sole - **Judges:** Cavanaugh, Del Sole, and Eakin - **Cited by:** 64 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9697238 ## How later opinions describe it (automated extraction) - Finding a driver’s speed unreasonable as she approached a crest of a hill and an intersection ## Opinion text DEL SOLE, Judge, dissenting: Because I would conclude that the Commonwealth failed to offer sufficient evidence to support Appellant’s conviction under 75 Pa.C.S.A. § 3361,1 dissent. The Majority quotes the relevant statutory provision and notes that in support of a conviction there “must be proof of the speed that is unreasonable or imprudent under the circumstances.” Majority Memorandum at 123. The Majority then goes on the analysis the circumstances of the road conditions in this case. While I do not quarrel with their assessment of the conditions, or the conclusion that the conditions found here required the driver to proceed at a safe and appropriate speed, I cannot find sufficient evidence to support the conviction when there was no evidence offered estimating the speed at which Appellant was traveling. Absent some evidence of Appellant’s speed, it cannot be held that she was traveling at an excessive speed, regardless of the surrounding circumstances. At trial, Trooper Michael Greene testified that he was in a patrol position when he observed Appellant’s car proceeding northbound “in what appeared to be an extreme rate of speed for the posted speed limit in that area.” N.T. 6/19/95 at 4. He also stated that his experience told him that the vehicle was exceeding the posted 45 mile per hour speed limit. However the trooper never testified to the vehicle’s actual speed, or to his estimation of the actual speed which Appellant was traveling. *128 The statute at issue does not require that a specific speed must be exceeded in order for a violation to occur, Commonwealth v. Martorano, 387 Pa.Super. 151, 158-60 , 563 A.2d 1229, 1233 (1989), however it must nevertheless be shown that the speed was excessive for the conditions. 1 Absent of showing of speed, it is impossible to conclude that an individual was traveling at a speed which was excessive for the conditions. In Commonwealth v. Monosky, 360 Pa.Super. 481 , 520 A.2d 1192 (1987), this court upheld a conviction for failing to drive at a safe speed. In contrast to this case, the record in Monosky disclosed that the appellant was observed by patrol officers driving in excess of the 25 mile per hour posted speed limit. The officers testified that the road was in a residential area and it was a foggy wet day. One officer testified that it was necessary for him to accelerate to between 55 and 60 miles to overtake the appellant. Both officers also opined that the appellant was traveling approximately 50 miles per hour when he was initially observed. In this case there in no such testimony. I believe absent some evidence of the defendant’s actual or estimated speed, it cannot be concluded that the defendant was traveling at an unsafe speed. A court cannot find one to be traveling at a speed greater than reasonable for the conditions, regardless of the conditions, if no evidence of the defendant’s speed has been offered to the court. Allowing this verdict to stand based solely on the officer’s testimony, elevates the officer’s opinion that Appellant was traveling at an unsafe speed, to a fact. While an officer is permitted to opine as to the speed of a vehicle, the ultimate finding to be made by the factfinder is whether that speed was unreasonable for the conditions. This *129 fact finding function cannot be usurped by permitting the witness to opine on the guilt of the defendant. I would vacate the Appellant’s Judgment of Sentence and reverse her conviction in this matter. . Section 3361 prohibits two types of conduct which respect to driving, driving at a speed greater than reasonable and prudent under the conditions, and driving at a speed greater than will permit the driver to stop the vehicle within the assured clear distance ahead. This case concerns application of only the first prohibition. Contrast Commonwealth v. Rishel, 441 Pa.Super. 584 , 658 A.2d 352 (1995) (where court upholds violation of conviction under 75 Pa.C.S. § 3361 when the appellant testified that she was unable to maintain control of her vehicle and when an officer testified that the appellant had failed to negotiate a turn in the road causing an accident.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9697238. Public record. Not legal advice.