J. S83006/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DAVID SMITH, : No. 1980 WDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, November 13, 2015,

in the Court of Common Pleas of Westmoreland County

Criminal Division at No. CP-65-SA-0000230-2015

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 21, 2016

David Smith appeals the November 13, 2015 judgment of sentence of 

the Court of Common Pleas of Westmoreland County that fined him $25 plus 

costs for careless driving in violation of Section 3714(a) of the Vehicle Code, 

75 Pa.C.S.A. § 3714(a).

On April 10, 2015 at approximately 5:20 p.m., Pennsylvania State 

Trooper Robert G. Karinchak (“Trooper Karinchak”) was operating a marked 

unit traveling east on State Route 30 in Hempfield Township. 

Trooper Karinchak observed a backlog of about 20 or 25 vehicles. He moved 

into the left lane and noticed appellant operating his bicycle in the center of 

the right lane impeding traffic. (Notes of testimony, 11/13/15 at 7-10.)

 

* Retired Senior Judge assigned to the Superior Court.
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As Trooper Karinchak passed, appellant:

extended both arms up taking his hands off his 

handlebars and extended his middle finger on both 

hands as he’s driving down the highway. As I 

passed, I observed that. And I got back into the 

right lane after I passed him and set myself up in 

order to make a traffic stop. He pulled over. I 

explained to him why I stopped him, and I released 

him to go. He left in front of me and continued down 

Route 30 continuing the same behavior as he was 

before. He did the same motion with his hands 

again.

Id. at 10. Trooper Karinchak issued a traffic citation for careless driving.1 

(Id.)

Appellant was found guilty of careless driving by the magisterial 

district judge. He appealed to the trial court. The trial court held a de novo

hearing on November 13, 2015. Trooper Karinchak testified regarding the 

events of April 10, 2015. Trooper Karinchak explained the basis for the 

citation:

I filed the charge of careless driving because 

as he’s operating on a heavily traveled highway, 

divided highway one of the busiest highways in 

Westmoreland County at a busy time when 

there’s [sic] lots of people on the highway, he 

removed his hands from the handle bars, which is his 

mechanism to steer his vehicle.

Also, . . . he removed his hands from the 

handlebars and extended them however to 

communicate, whatever he was attempting to 

communicate and at that time, he had no 

 

1 Trooper Karinchak issued a second citation for which appellant was found 

not guilty before the magisterial district judge. That citation is not before 

this court.
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mechanism to stop the vehicle nor did he have any 

mechanism to steer the vehicle.

In my estimation, that’s careless driving. He 

can’t stop his vehicle nor can he take evasive action 

if there is any kind of hazard. He’s endangering 

himself and/or other people on the highway which is 

a definition of careless driving.

Id. at 11.

Appellant testified that he could steer a bicycle without placing his 

hands on the handlebars by “leaning, placing pressure on the left pedal or 

the right pedal or by using your knees, your thighs to lean to the left or the 

right with the top of the bike to make it lean left or right.” (Id. at 22.) 

Appellant explained that the road ahead of him was in good condition when 

he pulled his hands off the bike. (Id. at 23-24.) He further explained the 

reason for his action:

To give the finger to Trooper Karinchak because he 

had been leering at me. He had been gawking at 

me. He had been following me over my left 

shoulder, and he was not driving at a normal 

improving speed but he was creating a hazard by his 

gawking at me, and I felt that I was going to be 

again cited for some misinterpretation that he has 

about where I can ride on the road.

Id. at 24.

The trial court found appellant guilty of careless driving “based on 

testimony taken and the finding of credibility of the prosecuting 

Pennsylvania State Police trooper.” (Trial court order, 2/11/16 at 1.)
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Appellant contends that the evidence was insufficient to sustain a 

conviction for careless driving.

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 

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).

Appellant asserts that Trooper Karinchak’s testimony failed to establish 

that appellant committed careless driving because Trooper Karinchak did not 

testify that there would be a probability of an accident but only that there 

was a possibility of an accident if there were any hazards on the roadway. 
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Appellant argues that such a remote connection made by someone who is 

not an expert is not sufficient to convict him of careless driving. He also 

asserts that Trooper Karinchak violated his right to free speech under the 

First Amendment of the United States Constitution when he cited him for 

making the obscene gesture when his hands were not on the handlebars.

Section 3714(a) of the Vehicle Code, 75 Pa.C.S.A. § 3714(a), provides 

that “[a]ny person who drives a vehicle in careless disregard for the safety 

of persons or property is guilty of careless driving, a summary offense.”2 

This court has defined “careless disregard” as less than willful or wanton 

conduct but more than ordinary negligence. See Commonwealth v. 

Gezovich, 7 A.3d 300, 301 (Pa.Super. 2010).

Here, Trooper Karinchak credibly3testified that appellant was riding 

his bicycle on a four to six-lane road, depending on the exact location, with 

20 to 25 cars behind him. He further credibly testified that appellant took 

his hands off the handlebars so that he had no means of steering or braking 

until he put his hands back on the handlebars. The trial court did not find 

credible appellant’s testimony that he could effectively steer by leaning and 

using his legs and feet. This court is satisfied that the trial court did not 

 

2 Appellant does not challenge that his bicycle constitutes a vehicle under 

Section 3714 of the Vehicle Code.

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.
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commit an error of law when it determined that appellant was guilty of 

careless driving.4

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/21/2016

 

4 With respect to the constitutional argument, this court finds no merit. 

Appellant was not cited for careless driving because he made an obscene 

gesture to Trooper Karinchak. Rather, he was cited because he took his 

hands off the handlebars so he could not steer or brake quickly. While he 

took his hands off the handlebars to make the gesture, the gesture was not 

the basis of the citation.