J-S73024-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HARRY YALETSKO
Appellant No. 607 MDA 2014
Appeal from the Judgment of Sentence of March 12, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-SA-0000032-2014
BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED DECEMBER 19, 2014
Harry Yaletsko (“Appellant”) challenges the judgment of sentence
entered by the trial court following his appeal from a summary conviction
before a magisterial district judge. We affirm.
On March 12, 2014, following a hearing, the trial court affirmed
Appellant’s summary conviction for a violation of 75 Pa.C.S. 3309(a)
(“Driving on roadways laned for traffic”). On the same day, the trial court
entered judgment of sentence.1 This timely appeal followed. The trial court
did not direct Appellant to file a concise statement of errors complained of
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1
The sentence consisted of a citation. The amount of the penalty is not
readily apparent, but closer scrutiny is not required: Appellant challenges
only the verdict, not the levy.
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on appeal pursuant to Pa.R.A.P. 1925(b), but the court has furnished a brief
Rule 1925(a) opinion for our reference.
As best we can glean from the record before us, Appellant was
overtaking a vehicle that had made a wrong turn and was starting and
stopping as it proceeded down the road, the driver searching for an
opportunity to turn around. Appellant came upon the other vehicle and
attempted to pass on the left just as the other driver began to turn left, thus
blocking Appellant and resulting in a collision.
Appellant raises the following issues:
1. Whether it is a viable legal defense for a driver to cross
over into another lane of travel when faced with a sudden
emergency?
2. Whether the court erred in concluding that the defense had
not established [that] a sudden emergency existed[?]
Brief for Appellant at 4.
Appellant’s first issue pertains to the “sudden emergency doctrine,”
which may provide a defense to a citation arising from driving behavior
arising when “a party . . . suddenly and unexpectedly finds him or herself
confronted with a perilous situation [that] permits little or no opportunity to
apprehend the situation and act accordingly.” Lockhart v. List, 665 A.2d
1176, 1180 (Pa. 1995). Although Appellant offers a modicum of argument
that “evidence” of the sudden emergency somehow was excluded, see Brief
for Appellant at 7-8, he directs us to nothing in the certified record to
support that premise, and the trial court’s account reflects not exclusion but
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rather that the principles underlying the doctrine were considered and
rejected. If Appellant intends to maintain that any such evidence was
excluded, whatever it might have been, he must direct this Court to where in
the record he attempted to enter evidence that the court refused to accept,
and Appellant also must direct us to evidence that he properly objected to
such a ruling. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”);
Pa.R.A.P. 2117(c) (“Where under the applicable law an issue is not
reviewable on appeal unless raised or preserved below, the statement of the
case shall . . . specify [t]he method of raising them . . . [and t]he way in
which they were passed upon by the court.”); Pa.R.A.P. 2119(c) (“If
reference is made to the pleadings, evidence, charge, opinion or order, or
any other matter appearing in the record, the argument must set forth, in
immediate connection therewith, or in a footnote thereto, a reference to the
place in the record where the matter referred to appears.”). Appellant’s
failure to do so provides us with no basis upon which to grant relief.
Accordingly this issue fails.
In his second issue, Appellant turns to what we perceive to be the
main contention of his appeal—that the trial court entered a judgment at
odds with the weight of the evidence. See Brief for Appellant at 8 (“In the
present matter it is evident that Appellant was presented with a sudden
emergency, and did not deviate from the standard of conduct that a
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reasonable person would employ when confronted with Appellant’s
situation.”).
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no
obligation to view the evidence in the light most favorable to the
verdict winner. An allegation that the verdict is against the
weight of the evidence is addressed to the discretion of the trial
court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. A trial judge must
do more than reassess the credibility of the witnesses and allege
that he would not have assented to the verdict if he were a
juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations,
internal quotation marks, and footnote omitted). A weight of the evidence
claim is addressed to the trial court, and we review the trial court’s
consideration of the weight of the evidence only for an abuse of the trial
court’s discretion in ruling upon that issue. Commonwealth v. Rivera, 983
A.2d 1211, 1225 (Pa. 2009).
Appellant’s entire argument on this point consists of one paragraph:
[The other driver] admitted that he was lost and in search of an
area in which he could turn his vehicle around. Additionally, [the
other driver] was operating his vehicle in a stop and go manner,
driving for about two hundred yards at a time and then
slamming on his breaks [sic]. Furthermore, when Appellant got
up to the crest of the hill in which he was traveling, [the other
driver’s] vehicle was stopped in the middle of the road, brake
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lights on, with no turning signal activated. At that point
Appellant was faced with three options: run off the road and into
the trees, hit the back of [the stopped] vehicle, or try to go
around [the] vehicle. Trying to go around [the] vehicle was the
best option presented to Appellant, and it required him to travel
in the opposite lane of traffic.
Brief for Appellant at 8-9.
To this, the trial court responds:
This Court noted that counsel for [Appellant] implied in his cross-
examination of Jacobson, that he was driving erratically.
Although that characterization was denied, the combined
testimony of Jacobson and [Appellant] presents a driver who has
made a wrong turn, [and who is] looking for a place to turn
around, driving slowly, braking and then rolling for 200 yards.
Following such a vehicle is not unknown to the average driver.
Certainly attempting to pass such a vehicle without first giving
notice by horn is taking a significant risk. In so doing,
[Appellant] created what he now calls a sudden emergency.
Trial Court Opinion at 2 (unnumbered). In its two-page opinion, the trial
court reviewed this and other evidence, and specifically noted that it did not
find Appellant’s testimony credible.
Appellant does not contest the evidentiary predicates to which the trial
court alluded, and our review of the record does not suggest that the trial
court’s account is inconsistent with the evidence presented at Appellant’s
trial. We discern no more than Appellant’s disagreement with the trial
court’s weighing of the evidence, which is insufficient to warrant relief under
the circumstances of this case.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2014
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