Opinion
Argued September 12, 1972
October 25, 1972.
Motor vehicles — Suspension of motor vehicle operator's license — The Vehicle Code, Act 1959, April 29, P. L. 58 — Burden of proof — Conviction record — Evidence — Exhibits — Record.
1. In an appeal challenging the suspension of a motor vehicle operator's license pursuant to The Vehicle Code, Act 1959, April 29, P. L. 58, the burden is upon the Commonwealth to prove by legal and competent evidence the convictions upon which the suspension is based and the correctness of subsequent calculations or assessment of points, and to sustain such burden the record of convictions in proper form should be produced together with the records of the Secretary of Transportation compiled therefrom to justify the suspension. [416-17]
2. A reviewing court cannot determine the propriety of a ruling excluding from evidence a proffered exhibit without having the proffered document or a complete identifying description thereof before it in the record. [416-17]
Argued September 12, 1972, before Judges KRAMER, MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 1085 C.D. 1971, from the Order of the Court of Common Pleas of Washington County, in case of Commonwealth of Pennsylvania v. Donald Lee Ross, No. 193 July Term, 1971.
Suspension of motor vehicle operator's license by Secretary of Transportation appealed by licensee to the Court of Common Pleas of Washington County. Appeal sustained. GLADDEN, J. Commonwealth appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Stuart A. Liner, Assistant Attorney General, with him Anthony J. Maiorana, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellant.
Frank A. Conte, for appellee.
The Commonwealth has appealed from an order of the Court of Common Pleas of Washington County sustaining the appeal of Donald Lee Ross from the Secretary of Transportation's suspension of his operator's license.
The Secretary notified Donald Lee Ross of the suspension of his driver's license for 15 days upon a fresh speeding conviction pursuant to Section 619.1(b) of The Vehicle Code and for a consecutive period of 60 days by reason of an accumulation of at least 11 points pursuant to Section 619.1(i) and (k). Ross's appeal was sustained by the court below.
Section 619.1(b) of The Vehicle Code, Act of April 29, 1959, P. L. 58, as amended, 75 Pa.C.S.A. § 619.1(b).
At the hearing, counsel for the Commonwealth made the following offer of evidence: "If the court please, I submit this certified copy of the conviction report of motor vehicle violation that applies to this case. I submit it pursuant to the applicable provisions of the motor vehicle code that permits such records certified by the Secretary of Transportation to be admitted into evidence."
The objection of Ross's counsel to the proffered document was sustained. The Commonwealth's counsel did nothing further. The rejected document was not identified and made the subject of a renewed offer; did not become a part of the record for purposes of testing the correctness of the court's ruling; and is not before us.
The Commonwealth had the burden of proving by legal and competent evidence the convictions and the correctness of the Secretary's computation or assessment of points. Commonwealth v. Hepler, 2 Pa. Commw. 516, 279 A.2d 93 (1971). In Virnelson Motor Vehicle Operator License Case, 212 Pa. Super. 359, 243 A.2d 464 (1968), the Superior Court set forth what evidence carries the Commonwealth's burden: "At the hearing before the lower court the Commonwealth should produce the records of convictions received by the Department of Revenue [now Department of Transportation] from the magistrates and courts of record in the proper form, and the Secretary's record compiled therefrom which justified the suspension. If these documents show that the suspension was given in accordance with the mandate of section 619.1, the Commonwealth has produced a prima facie case for suspension." 212 Pa. Super. at 368, 243 A.2d at 469. Not having the report here sought to be introduced, we are unable to determine whether it was the evidence described in Virnelson or something other, properly rejected. It appears to have been only a record of the appellee's last conviction which, if properly certified, would have been admissible, but alone not sufficient to carry the Commonwealth's burden.
We are therefore unable to conclude that the court below erred in sustaining the appeal before it.
Affirmed.