J. S25007/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVID JARROLD SMITH, : No. 512 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, February 18, 2015,
in the Court of Common Pleas of Westmoreland County
Criminal Division at No. CP-65-SA-0000456-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVID JARROLD SMITH, : No. 513 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, February 18, 2015,
in the Court of Common Pleas of Westmoreland County
Criminal Division at No. CP-65-SA-0000186-2014
BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 15, 2016
David Jarrold Smith appeals the February 18, 2015 judgment of
sentence of the Court of Common Pleas of Westmoreland County that fined
him a total of $75 plus costs for two violations of Section 3364(b)(2) of the
J. S25007/16
Vehicle Code, 75 Pa.C.S.A. § 3364(b)(2), and one violation of
Section 3301(c)(1) of the Vehicle Code, 75 Pa.C.S.A. § 3301(c)(1).
On December 24, 2013, at approximately 6:00 p.m., Pennsylvania
State Trooper Corey Beam (“Trooper Beam”) was on patrol on Brinkerton
Road in Hempfield Township. At approximately 6:10 p.m., Trooper Beam
observed three cars ahead of him as traffic was backed up on Brinkerton
Road heading south because appellant was ahead of the vehicles on a
bicycle. Appellant was traveling below the posted speed limit of 35 miles per
hour. Appellant turned onto Smartnick Road as did Trooper Beam. The cars
that had been traveling between appellant’s bicycle and Trooper Beam
remained on Brinkerton. (Notes of testimony, 2/18/15 at 32-34.)
Trooper Beam followed appellant for approximately one mile until appellant
came to a “complete stop in the middle of the road on the crest of the hill,
as I’m behind him, and put his feet down as to, I don’t know, take a break I
guess.” (Id. at 35.) Trooper Beam activated his lights, got out of his
vehicle, and directed appellant to move to the side of the road.
Trooper Beam cited appellant for operating a vehicle at a speed so slow as to
impede the normal flow of traffic. (Id. at 36-37.)
On May 13, 2014, Pennsylvania State Trooper Chet Bell
(“Trooper Bell”) was on routine patrol on Donohoe Road in Hempfield
Township when he observed appellant “traveling on his pedal cycle in the
right lane from the fog line towards the double yellow line back and forth not
-2-
J. S25007/16
allowing for safe passing.” (Id. at 9.) Appellant continued operating his
bicycle in this manner for approximately one mile until approximately five to
ten vehicles were behind him. (Id. at 10.) Appellant received two citations:
one for failing to drive in the right lane when traveling less than normal
speed and one for operating a vehicle at a speed so slow as to impede the
flow of traffic. (Id. at 14.)
Appellant was found guilty of the citations by two magisterial district
judges. He appealed to the trial court. The appeals were consolidated
before the trial court. The trial court held a de novo hearing on
February 18, 2015. Trooper Beam and Trooper Bell testified regarding the
events of December 24, 2013, and May 13, 2014, respectively.
Appellant testified that on May 13, 2014:
I was riding my bicycle from Twin Lakes onto
Donohoe Road going as fast as I could. It was within
the law. I was riding in the road. The roadway is a
tar and gravel surface and there was an
accumulation of loose gravel near the right edge of
the road and also in the center between the two tire
tracks. There’s also glass and debris as I would --
wherever I would see it, and I traveled at all times in
the right-hand lane, in accordance with Chapter 35,
and I notice that I wasn’t being passed and that the
roadway had opened up. It was clear for a vehicle to
pass, in accordance with the rules on passing, but
the vehicle was simply following me. . . .
Id. at 50-51.
With respect to the December 24, 2013, incident, appellant testified:
[T]here had been a snow squall in the area that left
dry blowing snow and freezing drainage along the
-3-
J. S25007/16
roadway, especially Smartnick Road. As I turned on
to Smartnick Road, I heard a vehicle behind me at a
distance that was greater than someone that was
following me, but someone that was not even in
proximity to me, and this continued for over a mile.
At one point I rode by a church on the right, which
has a drainage gutter right next to the roadway from
the roof of the church. It collects melted snow,
which was refreezing on the roadway. At that point I
naturally moved to the left of the ice, which was
refreezing on the road. That location is dangerous
like that and treacherous every winter.
I then -- the road curves left and it goes up a knob
and there’s no visibility beyond that. At that point I
did ride in the center of the lane. And I believe at
this point, where passing would have been unlawful
and illegal and unsafe, [Officer Beam] did approach
me to a closer proximity. A few seconds later I had
crested the hill and again [Officer Beam] could have
passed. I made it -- gave way to the right and he
continued to followed [sic]. Being Christmas Eve
after dark, I began to be concerned about my
personal safety as to what the intentions were of this
vehicle that is following me and not passing, after
numerous efforts that I gave for them to go.
Well, when I reached the crest of the hill where there
was visibility for a mile in both directions, I decided
that I am going to stop and make a U-turn and make
this vehicle go. Well, the reason for that is because
at the top of the hill I would be going down at a high
rate of speed and could possibly have to maneuver
or brake to avoid road hazards. Also, there’s a field
where deer -- almost every night I would see a herd
of deer and these animals would cross right in front
of me and it’s a place where you don’t want to be
going fast. You don’t want to get rear-ended. I
didn’t know what this driver following me, what their
intentions were, and I decided to take reasonable
efforts so as not to impeded [sic] the normal
movement of traffic, so it wasn’t normal traffic, was
it?
-4-
J. S25007/16
So I stopped and I signaled hands down and I
signaled to make a . . . move, and then he activated
his lights and then at that time I became aware that
it was a state trooper and I followed his
instructions. . . .
Id. at 52-55.
The trial court found appellant guilty of the three summary offenses
“based upon the testimony taken and the credibility of the prosecuting
Pennsylvania State Police officer.” (Trial court opinion, 5/12/15 at 1.)
Appellant raises the following issues for this court’s review:
Whether the evidence was insufficient to sustain the
conviction of Title 75 [Pa.C.S.A.] §3364 . . . (b)(2),
Driving On Right side of Roadway on 5/13/2014[?]
Whether the evidence was insufficient to sustain the
conviction of Title 75 [Pa.C.S.A.] § 3364 . . .(b)(2),
Driving on Right side of Roadway on 12/24/2013[?]
Whether the evidence was insufficient to sustain the
conviction of Title 75 [Pa.C.S.A.] § 3301 . . .(c)(1),
Driving On Right side of Roadway on 5/13/2014[?]
(Italics omitted).
Appellant’s brief at 6.1
A claim challenging the sufficiency of the evidence is
a question of law. Commonwealth v. Widmer,
560 Pa. 308, 319, 744 A.2d 745, 751 (2000). In
that case, our Supreme Court set forth the
sufficiency of the evidence standard:
Evidence will be deemed sufficient to
support the verdict when it establishes
each material element of the crime
1
The convictions were appealed to this court under two separate docket
numbers. The appeals were consolidated on May 1, 2015, by per curiam
order of this court.
-5-
J. S25007/16
charged and the commission thereof by
the accused, beyond a reasonable doubt.
Commonwealth v. Karkaria, 533 Pa.
412, 625 A.2d 1167 (1993). Where the
evidence offered to support the verdict is
in contradiction to the physical facts, in
contravention to human experience and
the laws of nature, then the evidence is
insufficient as a matter of law.
Commonwealth v. Santana, 460 Pa.
482, 333 A.2d 876 (1975). When
reviewing a sufficiency claim the court is
required to view the evidence in the light
most favorable to the verdict winner
giving the prosecution the benefit of all
reasonable inferences to be drawn from
the evidence. Commonwealth v.
Chambers, 528 Pa. 558, 599 A.2d 630
(1991).
Id. at 319, 744 A.2d at 751.
Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).
With respect to the December 24, 2013 citation,2 appellant asserts
that there was no testimony that he was not operating his bicycle at a safe
and reasonable speed. He also argues that there was no evidence that he
failed to use reasonable efforts so as not to impede the flow of traffic.
Section 3364(b)(2) of the Vehicle Code, 75 Pa.C.S.A. § 3364(b)(2),
provides:
§ 3364 Minimum speed regulation
....
(b) Slow moving vehicle to drive off
roadway.--
2
This court has foregone the sequence of appellant’s arguments.
-6-
J. S25007/16
....
(2) A pedalcycle may be operated at a
safe and reasonable speed
appropriate for the pedalcycle. A
pedalcycle operator shall use
reasonable efforts so as not to
impede the normal and reasonable
movement of traffic.
In order to sustain a conviction under 75 Pa.C.S.A. § 3364(b)(2), the
Commonwealth must establish either that the bicycle or pedalcycle was not
operated at a safe and reasonable speed appropriate for that pedalcycle or
that the pedalcycle operator failed to use reasonable efforts so as not to
impede the normal and reasonable movement of traffic.
Trooper Beam credibly3 testified that appellant stopped in the middle
of the road on the crest of a hill and that his action forced Trooper Beam to
stop his vehicle. (Notes of testimony, 2/18/15 at 35.) Trooper Beam
testified that he cited appellant “[b]ecause he impeded traffic by coming to a
complete stop in the middle of the road.” (Id. at 38.)
At the time appellant stopped in the middle of the road, the only other
vehicle on the roadway was Trooper Beam. However, it stands to reason
that stopping a bicycle in the middle of a two-lane road at the crest of a hill
impeded traffic in the form of Trooper Beam. Also, before appellant turned,
3
Regarding issues of credibility, it is not this court’s function to substitute its
judgment for that of the trial court. Issues of credibility are the province of
the finder-of-fact. Commonwealth v. Zugay, 745 A.2d 639, 645
(Pa.Super. 1990). In this case, the finder-of-fact was the trial court.
-7-
J. S25007/16
he had traffic backed up behind him. Appellant admitted that he stopped in
the middle of the road. While appellant testified that he stopped because he
was concerned that a vehicle was following him, he would have had to avoid
road hazards, and he possibly would have had to avoid deer crossing the
roadway, the trial court did not find him credible.
With respect to the May 13, 2014 citations, appellant raises the same
argument concerning Section 3364(b)(2). Trooper Bell testified that
appellant was on his bicycle and was weaving back and forth within the right
lane for approximately one mile while he was traveling at a rate that was
less than the speed limit. Trooper Bell testified that because of the weaving,
it was not safe for other vehicles behind him, of which there were five to ten,
to safely pass. (Notes of testimony, 2/18/15 at 10-11.) The trial court
found Trooper Bell credible. While appellant testified that he was forced to
move within the lane because of an accumulation of loose gravel, glass, and
debris on the roadway, the trial court did not credit this testimony. Given
that a bicyclist must not impede traffic under Section 3364(b)(2), the
weaving within the lane which prevented faster moving automobiles from
passing him did impede the flow of traffic.
With respect to the violation of Section 3301(c)(1), appellant argues
that on a two-lane road with vehicles traveling in one lane in each direction,
a pedalcycle can travel and have full use of the right-hand lane but need not
-8-
J. S25007/16
travel as close to the shoulder as possible in order to allow motor vehicles to
squeeze by in the same or partially in the same lane as the pedalcycle.
Section 3301(c)(1) of the Vehicle Code, 75 Pa.C.S.A. § 3301(c)
provides:
§ 3301 Driving on right side of roadway
(c) Pedalcycles.--
(1) Upon all roadways, any pedalcycle
operating in accordance with Chapter 35,
proceeding at less than the normal speed
of traffic at the time and place and under
the conditions then existing shall be
driven in the right-hand lane then
available for traffic, or as close as
practicable to the right-hand curb or
edge of the roadway, except when
overtaking and passing another vehicle
proceeding in the same direction or when
preparing for a left turn at an
intersection or into an alley, private road
or driveway.
(2) This subsection does not apply to:
(i) A pedalcycle using any
portion of an available
roadway due to unsafe
surface conditions.
(ii) A pedalcycle using a roadway
that has a width of not more
than one lane of traffic in
each direction.
On cross-examination, Trooper Bell testified that appellant was
operating his pedalcycle or bicycle in the right-hand lane of a two-lane road.
(Notes of testimony, 2/18/15 at 21.)
-9-
J. S25007/16
Given that Section 3301(c)(2)(ii) states that Subsection (c)(1) does
not apply when the pedalcycle is using a roadway that has a width of not
more than one lane of traffic in each direction and Trooper Bell testified that
he stopped appellant on a two-lane road with one lane of traffic in each
direction, we agree with appellant that the trial court erred when it found
him guilty of Section 3301(c)(1) as that section did not apply to appellant.
Judgment of sentence affirmed as to the two citations for
Section 3364(b)(2). Judgment of sentence reversed as to the citation for
Section 3301(c)(1). Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:4/15/2016
- 10 -