J-A11036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
YOUB KIM :
:
Appellant : No. 1796 MDA 2017
Appeal from the Judgment of Sentence October 16, 2017
in the Court of Common Pleas of Clinton County
Criminal Division at No.: CP-18-SA-0000019-2017
BEFORE: STABILE, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED JULY 19, 2018
Appellant, Youb Kim, appeals pro se from the judgment of sentence
entered following her summary conviction for failing to move over while
passing an emergency response area.1 We affirm.
We take the factual and procedural history in this matter from our
review of the certified record and the trial court’s December 28, 2017 opinion.
On May 16, 2017, Pennsylvania State Police Trooper Andrew W. Adams issued
a citation to Appellant for passing an emergency response area in the lane
adjacent to the area when the other lane was available. On June 14, 2017, a
magisterial district judge found Appellant guilty and fined her $250.00 plus
costs. On July 11, 2017, Appellant filed a notice of summary appeal.
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1 75 Pa.C.S.A. § 3327(a)(1).
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* Retired Senior Judge assigned to the Superior Court.
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During the summary appeal hearing, Trooper Adams testified that, on
the date of the incident, he was assisting a fellow officer with a traffic stop of
a semi-truck and trailer on the right side berm of I-80 eastbound. (See
Summary Appeal Hearing, 10/16/17, at 8-9). Both police vehicles had all
emergency lights activated, and they were located at either end of the semi-
truck and trailer. (See id. at 10). Trooper Adams explained that he observed
Appellant’s vehicle pass him in the right lane (the lane closest to his vehicle),
and felt his car shake because her car was “right next to [him, and] passed
within five feet of [his] vehicle.” (Id. at 11). He testified that Appellant had
room to move over into the left lane. Trooper Adams then pulled out behind
Appellant and conducted a traffic stop, issuing her a citation for failing to move
over. (See id. at 12-13).
Appellant stated that, after seeing the emergency vehicles on the side
of the roadway, she slowed down to “almost below [twenty-five] miles per
hour[;]” looked in her rearview mirror to see if she could “comfortably move
over to the left lane” and determined that she did not feel comfortable moving
over; and then “drove as close as [she] could to the left lane[.]” (Id. at 17).
She also provided the court a schematic drawing illustrating the scene as she
remembered it. (See id. at 18).
At the close of the hearing the court explained that it “received
conflicting testimony today[, and] . . . resolve[d] all issues of the conflict in
favor of Trooper Adams[.]” (Id. at 21). It reasoned that the schematic
drawing provided by Appellant did not show any other vehicle in the left lane,
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and concluded that she could have moved into the left lane if she had chosen.
(See id.). The court then found that Trooper Adams:
[R]esponded to a code trooper’s request regarding an emergency
stop. He activated the emergency equipment by way of lighting
on his cruiser. He was on the right berm behind the other
emergency responded trooper. He stopped an 18-wheeler. His
lights were activated, [the other trooper’s] lights were activated.
The trooper clearly observed [Appellant’s] vehicle pass in the right
lane closest to his vehicle. He could feel his car shake. The
passing vehicle had no other traffic in the left lane and had the
ability to move over and did not.
(Id. at 21-22). The court concluded that Appellant had violated section
3327(a)(1) of the vehicle code, and imposed a fine of fifty dollars plus costs.
This instant appeal followed.2
Initially, we note that Appellant’s brief fails to comply with the Rules of
Appellate Procedure. Her brief includes three sections, which she describes
as 1) “[s]tatement about the actions [she] took on May 16[, 2017], leading
up to the traffic stop[;]” 2) “[r]ationale for challenging [trial] court’s
decision[;]” and 3) “[p]hotos of the road with [her] explanation[.]”
(Appellant’s Brief, at 4). She does not include a statement of jurisdiction,
order in question, statement of scope and standard of review, statement of
questions involved, or summary of argument. See Pa.R.A.P. 2111(a). “[T]he
omission of a statement of questions presented is particularly grievous since
the statement . . . defines the specific issues this [C]ourt is asked to review.”
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2 Pursuant to the trial court’s order, Appellant filed a concise statement of
matters complained of on appeal on December 21, 2017. The trial court
entered its opinion on December 28, 2017. See Pa.R.A.P. 1925(a).
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Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996) (citation
and internal quotation marks omitted).
We recognize that Appellant is proceeding pro se in her appeal.
Although this Court is willing to liberally construe materials filed
by a pro se litigant, pro se status confers no special benefit upon
the appellant. To the contrary, any person choosing to represent
himself in a legal proceeding must, to a reasonable extent,
assume that his lack of expertise and legal training will be his
undoing.
Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 2005) (citations
omitted).
Therefore, because of her failure to adhere to the Rules of Appellate
procedure, this Court has the right to quash or dismiss Appellant’s appeal
pursuant to Pa.R.A.P. 2101. Despite this, “in the interest of justice we address
the arguments that can reasonably be discerned from this defective brief.”
Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal
denied, 879 A.2d 782 (Pa. 2005).
Appellant states that she
would like [the] Superior Court’s decision on if [she] complied with
the law. Because [the trial] court discredited [her] statement
about [her] car speed and other actions [she] took and sided with
Trooper Adams, without considering [her] evidence, [she] raise[s]
the question of law to the Superior Court of Pennsylvania.
(Appellant’s Brief, at 12-13). It appears Appellant is claiming that the trial
court erred when it determined that her testimony was incredible and that
Trooper Adams’s testimony was credible, and thus her conviction was against
the weight of the evidence. This issue does not merit relief.
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When the challenge to the weight of the evidence is
predicated on the credibility of trial testimony, our review of the
trial court’s decision is extremely limited. Generally, unless the
evidence is so unreliable and/or contradictory as to make any
verdict based thereon pure conjecture, these types of claims are
not cognizable on appellate review. . . .
. . . [I]t is well settled that the Court cannot substitute its
judgment for that of the trier of fact. Further, the finder of fact
was free to believe the testimony of certain of the
Commonwealth’s witnesses and to disbelieve the testimony of
another. [I]t is for the fact-finder to make credibility
determinations, and the finder of fact may believe all, part, or
none of a witness’s testimony.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009), appeal
denied, 3 A.3d 670 (Pa. 2010) (citations and quotation marks omitted.
Here, the fact finder found Trooper Adams’s testimony, that Appellant
failed to move her vehicle into the left lane while passing emergency
responders on the right side of the highway, and that she could have safely
done so, to be credible. (See N.T. Summary Appeal, at 21-22). It did not
find credible Appellant’s testimony that both lanes were full and she could not
move over. (See id. at 17, 21-22). Because we may not disturb the fact
finder’s credibility in this regard, Appellant’s claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/19/2018
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