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 Judgme nt 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, 20 16

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 Apri l 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.J. S83006/16

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As Trooper Karinchak passed, appellant:

extended both arms up taking his hands off his h andlebars 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 fo r 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 w hen 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 attemp ting 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.J. S83006/16

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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 gu ilty 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.)J. S83006/16

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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

e vidence 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 Kar inchak 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.J. S83006/16

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Appellant argues that such a remote connection made by someone who is

not an expert is n ot 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 h as 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 credibly 3 testified 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 hand lebars. 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 iss ues 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.J. S83006/16

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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 o ff 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.