J-A19032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ROBERT CURTIS, :

: Appellant : No. 747 WDA 2014 Appeal from the Judgment of Sentence entered on Apr il 16, 2014 in the Court of Common Pleas of Washington County, Criminal Division, No. CP-63-SA-0000042-2014 BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 19, 2015 Robert Curtis (“Curtis”) appeals from the judgment of sentence imposed following his conviction of the summary off ense of Vehicle Size/Weight Limits. See 75 Pa.C.S.A. § 4902(a). We affirm. On November 19, 2013, Curtis was contracted by Sih ol Building Supply to deliver cement to a delivery site on Burgettstow n Road in Findlay Township, Allegheny County, for Mosites Constructio n Company. Curtis was driving a cement truck on Old Steubenville Pike and turned onto Ridge Road, in Robinson Township, Washington County. Old Steub enville Pike is weightrestricted to a 10 ton/20,000 pound weight limit, a nd there is signage indicating the weight limit at every intersection. Officer William Nimal (“Officer Nimal”), a certified weight master for th e McDonald Police Department, saw the truck had bulging tires and sus pected that the truckJ-A19032-15

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was carrying weight over the posted limit. After s topping the vehicle on Ridge Road, Officer Nimal called Officer Patrick Fa rkas (“Officer Farkas”), another certified weight master and member of the M cDonald Borough Police Department, for assistance. Officer Farkas brought portable scales and weighed each axle on the vehicle. Officer Farkas d etermined the weight of the vehicle, with its load, was 68,191 pounds. Acc ordingly, a citation was issued and fine assessed based on the truck weighin g 48,191 pounds over the maximum allowable weight.

A de novo non-jury trial was held on April 16, 2014. After hearing the evidence, the trial court found Curtis guilty under Section 4902(a), sentenced him to pay the costs of prosecution and t o pay a fine of $13,800.00, 1 plus E.M.S. and MCARE surcharges. Curtis filed a timely Notice of Appeal and a timely court-ordered Pennsylvania R ule of Appellate Procedure 1925(b) Concise Statement of Matters Comp lained of on Appeal.

1 Section 4902 sets forth the penalty for a violatio n of subsection (a) as follows: (g) Penalty. (1) Any person operating a vehicle or combination upon a highway or bridge in violation of a prohibition or restriction imposed under subsection (a) is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $75, except that any person convicted of op erating a vehicle with a gross weight in excess of a posted weight shall, upon conviction, be sentenced to pay a fine of $150 plus $150 for each 500 pounds, or part thereof, in excess of 3,000 pounds over the maximum allowable weight. 75 Pa.C.S.A. § 4902(g).J-A19032-15

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On appeal, Curtis raises the following question fo r our review: “Did the

trial court err as a matter of law or abuse its dis cretion in finding [Curtis] guilty of violating 75 Pa.C.S.A. §[]4902(a) of the PA Motor Vehicle Code?” Brief for Appellant at 4 (some capitalization omitt ed). We apply the following standard of review when con sidering a challenge to the sufficiency of the evidence: The standard we apply in reviewing the sufficiency of the evidence is whether[,] viewing all the evidence adm itted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to fi nd every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and s ubstitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwe alth need not preclude every possibility of innocence. Any d oubts regarding a defendant’s guilt may be resolved by th e fact-finder unless the evidence is so weak and inconclusive tha t as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its bu rden of proving every element of the crime beyond a reasona ble doubt by means of wholly circumstantial evidence. Moreov er, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact[,] while passing upon the credibilit y of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Melvin , 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation omitted). The relevant portion of the Vehicle Code, Section 4902(a), states as

follows: (a) Restrictions based on condition of highway or bridg e.J-A19032-15

- 4 - (1) The Commonwealth and local authorities with respect to highways and bridges under their jurisdictions may prohibit the operation of vehicle s and may impose restrictions as to the weight or siz e of vehicles operated upon a highway or bridge only when they determine by conducting an engineering and traffic study as provided for in department regulations that the highway or bridge may be damaged or destroyed unless use by vehicles is prohibited or the permissible size or weight of vehicles is reduced. (2) School buses, emergency vehicles and vehicles making local deliveries or pickups may be exempted from restrictions on the use of highways imposed under this subsection. 75 Pa.C.S.A. § 4902(a). “With respect to Section 4902, if a driver testifi es that he was acting under the local pick-up or delivery exemption to Se ction 4902(a), the Commonwealth can rebut this testimony with evidence of an alternative route by which the driver could have avoided the we ight-restricted road entirely.” Commonwealth v. Reaser , 851 A.2d 144, 149 (Pa. Super. 2004); see Commonwealth v. Doleno , 633 A.2d 203, 206 (Pa. Super. 1993). If the Commonwealth offers an alternative r oute as rebuttal to the local pick-up or delivery exemption, the Commonweal th must demonstrate

that the alternative route was reasonable. Reaser , 851 A.2d at 151. Curtis asserts that he was subject to the local de livery exemption in Section 4902(a). Brief for Appellant at 10-12; see also id. at 12 (wherein Curtis argues that the trial court erred in conclud ing that the local delivery exemption may apply in Findley Township, but not in other weight-restrictedJ-A19032-15

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areas, such as Washington County). Curtis contends that the

Commonwealth’s alternative route is unreasonable an d insufficient to rebut the exemption. Id. at 11-12. Curtis argues that the Commonwealth’s alternative route would have “(1) required Curtis t o travel a longer distance, (2) made [Curtis’s] trip longer, (3) required Curti s to utilize a toll road, and (4) would have still required Curtis to traverse a weight-restricted road.”

Id. at 11 (citations omitted). At trial, Officer Nimal testified that commercial vehicles generally use routes 22 and 30, and then access toll road 576, wh ich runs parallel to Old Stuebenville Pike, when traveling to a destination on Burgettstown Road. N.T., 2/24/15, at 6. When Officer Nimal asked Curt is why he did not take the alternative route, Curtis indicated that his bo ss or his company would not pay for the tolls. Id. at 6-8. According to Officer Nimal, the alternativ e route would have allowed Curtis to avoid a citation in Robinson Township on the way to the delivery site in Findlay Township. Id. at 11. Officer Farkas testified, that as a certified Weig ht Master, he and Officer Nimal were certified in weighing vehicles. Id. at 14. Officer Farkas stated that he used a scale calibrated by the Penns ylvania State Police when weighing Curtis’s cement truck. Id. at 15. The Officers weighed the four axles of the vehicle, took the total weight and sub tracted the 3% tolerance mandated by the Commonwealth, which resulted in a t otal of 68,191 pounds. Id. at 16.J-A19032-15

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Here, it is undisputed that Curtis was driving a t ruck that exceeded the posted weight limits on Old Steubenville Pike Road in Robinson Township. Though Curtis may have had to travel over a weight- restricted road in Findlay Township where he had to make his delivery, the local delivery exemption does not extend to all weight-restricted roads on the way to a delivery site. Significantly, Curtis could have ta ken routes 22 and 30, and toll road 576, as a reasonable alternative route to avoid Old Steubenville Pike. The alternative route runs parallel to Old S teubenville Pike, would not significantly increase Curtis’s travel distance or time, and would have enabled Curtis to avoid any weight-restricted road in Robinson Township. Moreover, the fact that the alternate route include s a toll road does not

make this route unreasonable. See 75 Pa.C.S.A. § 4902(d) (stating that in “conjunction with the exercise of the powers set fo rth in subsections (a) and (b), the Commonwealth may designate alternate route s for vehicles in excess of specified weights or sizes” and that such “alternate routes may utilize portions of the Pennsylvania Turnpike”). T hus, the Commonwealth’s proposed alternative route, to rebut the local deli very exemption, is

reasonable. See Doleno , 633 A.2d at 206 (stating that the evidence was sufficient to rebut the local delivery exemption wh ere the officer outlined a route by which Doleno could have driven from one pi ck-up to the nextJ-A19032-15

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without using the weight-restricted road). 2 Based on the foregoing, the evidence is sufficient to sustain Curtis’s Section 4902(a) conviction. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 10/19/2015

2 Curtis relies on our decision in Reaser to argue the Commonwealth’s alternative route is unreasonable, and that the tri al court applied the law in a manner that would yield an absurd construction of t he statute. Brief for Appellant at 10-12. In Reaser , this Court determined that no alternative route to the delivery site was reasonable when the deliverer had to travel on a weight-restricted road to get to a delivery site at the end of a cul-de-sac. Reaser , 851 A.2d at 151. Therefore, there was no reasonab le alternative route where the driver could avoid the weight-restr icted road. Id. However, unlike Reaser , Curtis was not on the road that was connected to the delivery site, but was passing through another township when he violated the Vehicle Code. Further, while the Reaser Court concluded there were no reasonable alternative routes, the evidence here establishes that Curtis did have a reasonable alternative route.