J-S47009-15

*Retired Senior Judge assigned to Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRYAN E. COEN,

Appellant No. 91 MDA 2015

Appeal from the Judgment of Sentence entered December 19, 2014,

in the Court of Common Pleas of Franklin County,

Criminal Division, at No(s): CP-28-SA-0000209-2014

BEFORE: ALLEN, OTT and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.: FILED JULY 24, 2015

Bryan E. Coen (“Appellant”) appeals from the judgment of sentence 

imposed after his non-jury trial conviction for driving at an unsafe speed for 

road conditions.1 We affirm. 

The trial court summarized the procedural posture as follows:

The instant matter arises out of a car crash that occurred 

on January 5, 2014. On June 19, 2014, a Citation was filed 

against [Appellant] alleging a violation of 75 Pa.C.S. § 3361, 

Driving Vehicle at Safe Speed. On September 17, 2014, 

[Appellant] was found guilty of violating 75 Pa.C.S. § 3361 by 

the Hon. Todd R. Williams, Magisterial District Court Judge. 

[Appellant] filed a Notice of Summary Appeal on October 21, 

2014. On November 18, 2014, the Commonwealth filed a 

Motion to Continue hearing in the matter. This Court granted 

said Motion on the same date and scheduled the matter for 

hearing on December 19, 2014.

____________________________________________

1 75 Pa.C.S.A. § 3361. 
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Trial Court Opinion, 2/25/15, at 2 (footnote omitted). 

The trial court additionally detailed the testimony adduced at the 

December 19, 2014 hearing:

The Commonwealth presented the testimony of 

Pennsylvania State Police Trooper George A. Durst, as well as 

expert testimony related to accident reconstruction performed by 

Corporal Eric Campbell of the Pennsylvania State Police. The 

incident in this matter occurred shortly after 3:00 p.m. on 

January 5, 2014, on the south-bound side of Interstate 81 (I81). Tr. at 4 - 5. At the time of the incident, the roads were 

slick and icy, the sky was an overcast with ice/freezing rain. Tr. 

at 5 - 6. Furthermore, Trooper Durst testified that these 

conditions began in the morning hours of January 5, 2014. Tr. 

at 8. Trooper Durst testified that while driving an[d] 

approaching the scene of the incident, he “could tell through 

braking, and normal driving acceleration from different points of 

stopping or slowing that the tires would spin.” Tr. at 7 - 8. 

Because of the conditions of the road, Trooper Durst drove in a 

prudent manner and below the speed limit. Tr. at 8, 20.

On Corporal Campbell's approach to the incident site, he 

noticed that the roads were “icy. Not just a little bit. I mean, 

they were really icy.” Tr. at 27. Additionally, Corporal Campbell 

noted that he had seen six or seven cars that had slid off the 

road or were stuck because of the road conditions. Tr. at 27. 

The road conditions were so treacherous; Corporal Campbell 

drove approximately 20 - 25 miles per hour even though when 

the speed limit was 65 miles per hour. Tr. at 27.

Trooper Durst testified that he interviewed [Appellant] at 

the hospital; [Appellant] stated that as he was driving, a vehicle 

pulled in front of him, which caused him to slow down suddenly 

and cross into the median. Tr. at 10. At this point [Appellant’s] 

vehicle rolled over. Tr. at 11. Corporal Campbell's expert 

testimony on the matter corroborated [Appellant’s] version of 

the vehicle’s crash trajectory. See Tr. at 30 - 32. 

Corporal Campbell further testified that he came to a 

conclusion about [Appellant’s] true speed through the aid of a 

Computer Aided Drafting Program. Tr. at 47. From a yaw point 

of view, [Appellant’s] true speed was calculated at 54.54 miles 
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per hour. Tr. at 47. Additionally, Corporal Campbell testified 

that this was on the low end of the calculation. Tr. at 49. 

Furthermore, Corporal Campbell did a secondary calculation 

where he analyzed the rotational spin, positioning the vehicle 

along the yaw marks, taking certain distances, measuring the 

angle the vehicle was facing away from its path of travel, and 

analyzed the speed using a subjectively estimated impact speed 

to get a speed between 60.56 miles an hour and 65.66 miles per 

hour to correlate with the yaw speed. Tr. at 47 - 48; see also

Tr. at 42 - 46.

Corporal Campbell testified that he performed an 

inspection of [Appellant’s] vehicle after the crash and found 

“nothing that would indicate a defect in the vehicle” and that 

“absent any damage that would have been considered impactrelated, there was no mechanical defect that would have 

attributed to this crash.” Tr. at 45.

Trial Court Opinion, 2/25/15, at 4-6. 

The trial court explained:

[] At the close of the evidence, the [trial c]ourt found [Appellant] 

guilty as charged and imposed the sentence as imposed by the 

Magisterial District Judge. On January 2, 2015, [Appellant] filed 

a Notice of Appeal and a Motion for Transcription and Filing of 

Trial Transcript. On January 6, 2015, the Court entered an 

Order directing [Appellant] to file a statement of matters 

complained of on appeal pursuant to Pa.R.A.P. 1925(b)(2). On 

January 12, 2015, the Court entered an Order denying 

[Appellant’s] Motion for Transcription and Filing of Trial 

Transcript as moot and directed [Appellant] to comply with 

Pa.R.A.P. 1911. [Appellant] timely filed a Concise Statement of 

the Matters Complained of on Appeal. On February 17, 2015, a 

Transcript was lodged and subsequently filed on February 22, 

2015.

Trial Court Opinion, 2/25/15, at 2-3. The trial court issued its opinion 

pursuant to Pa.R.A.P. 1925 on February 25, 2015. 

Appellant presents a single issue on appeal:
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1. Whether the evidence was sufficient to convict the Appellant 

of driving at an unsafe speed for conditions, 75 Pa.C.S.A. 

Section 3361, when the Appellant was traveling at or lower 

than the speed limit, no evidence exists of the road conditions 

at the actual time of the accident, and the Appellant was 

forced to take evasive action due to an emergent situation 

caused by another vehicle?

Appellant’s Brief at 5. 

In reviewing a sufficiency claim, we determine:

[W]hether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime 

beyond a reasonable doubt. In applying the above test, we may 

not weigh the evidence and substitute our judgment for the factfinder. In addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a defendant's 

guilt may be resolved by the fact-finder unless the evidence is so 

weak and inconclusive that as a matter of law no probability of 

fact may be drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proving every element 

of the crime beyond a reasonable doubt by means of wholly 

circumstantial evidence. Moreover, 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 credibility of witnesses and the weight of the 

evidence produced, is free to believe all, part or none of the 

evidence. 

Commonwealth v. Jones, 886 A.2d 689, 704 (Pa. Super. 2005) (internal 

citations omitted). 

In a tripartite argument, Appellant first asserts that the “evidence was 

insufficient to convict the Appellant due to the sudden emergency doctrine.” 

Appellant’s Brief at 13. In support of this assertion, Appellant cites a civil 

case, Lockhart v. List, 665 A.2d 1176, 1180 (Pa. 1995). Appellant’s 
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invocation of the sudden emergency doctrine is unavailing and his reliance 

on Lockhart is misplaced. We specifically explained in the criminal case of 

Commonwealth v. Matroni, 923 A.2d 444 (Pa. Super. 2007):

The trial court erred in instructing the jury on the sudden 

emergency doctrine because that doctrine, a civil concept, is not 

a recognized defense to which [appellant] was entitled to a jury 

instruction. As [appellant] himself acknowledges, “the trial court 

is under a duty to instruct the jury on the correct legal principles 

applicable to the facts presented at trial.” Commonwealth v. 

Cox, 546 Pa. 515, 530, 686 A.2d 1279, 1286 (1996) (emphasis 

added). Here, the sudden emergency doctrine is not a legal 

principle applicable to the Vehicle Code charges in question. 

***

Extensive research has revealed no cases wherein a defendant 

has been permitted to successfully employ the sudden

emergency doctrine as a defense to criminal charges, and we 

decline to allow [appellant] to do so in this case.

Id. at 452. Here, we likewise reject Appellant’s invocation of the civil 

affirmative defense of the sudden emergency doctrine in reviewing 

Appellant’s criminal conviction for driving at an unsafe speed for road 

conditions. 

Appellant additionally argues that the “evidence was insufficient to 

establish [that] Appellant failed to comply with the assured clear distance 

ahead rule.” Appellant’s Brief at 15. Again, Appellant’s argument fails. As 

reiterated in Matroni, “the assured clear distance ahead rule applies to 

essentially static or static objects including vehicles moving in the same 

direction[.]” Matroni, 932 A.2d at 453 citing Cunningham v. Byers, 732 

A.2d 655, 658 (Pa. Super. 1999) (additional citations omitted). Instantly, 
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Appellant’s conviction was not premised on his failure to abide by the 

assured clear distance ahead rule. Rather, the trial court convicted 

Appellant of failing to drive “at a safe and appropriate speed when ... special 

hazards exist ... by reason of weather or highway conditions.” 75 Pa.C.S.A. 

§ 3361; see also Trial Court Opinion, 2/25/15, at 8 (“The [trial c]ourt found 

beyond a reasonable doubt [Appellant] did not operate at a reasonable or 

prudent speed for the prevailing weather conditions.”). 

In his tertiary argument, Appellant asserts that the evidence was 

“woefully” insufficient “when viewed in the light most favorable to the 

Commonwealth as verdict winner.” Appellant’s Brief at 17. We disagree. 

The trial court explained:

In Commonwealth v. Heberling, the Court held that 

“speeding alone does not constitute a violation of [§ 3361]. 

There must be proof of speed that is unreasonable or imprudent 

under the circumstances (of which there must also be proof), 

which are the “conditions” and “actual and potential hazards 

then existing” of the roadway. Commonwealth v. Heberling, 678 

A.2d 794, 795 – 96 (Pa. Super. 1996). Furthermore, the Court 

held that “[i]t is these circumstances under which one’s speed 

may be found sufficiently unreasonable and imprudent to 

constitute a violation of section 3361, even if the driver has 

adhered to the posted speed limit.” Id. at 796. 

In Commonwealth v. Hoke, the Court held that “it is not 

necessary to allege or prove any specific speed at which [the] 

defendant was driving.” Commonwealth v. Hoke, 298 A.2d 913, 

915 (Pa. Super. 1972). The primary inquiry in such cases is not 

the speed, but the speed relative to the conditions. Id. The 

circumstances in this matter are to be determined by the factfinder to conclude whether the Defendant is guilty. See id.

As detailed above, both Trooper Durst and Corporal 

Campbell testified to the icy conditions of the roads at the time 

of the incident. Based upon the expert opinion of Corporal 
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Campbell, [Appellant] was traveling at a lowest possible speed of 

54.54 miles per hour on a “really” icy interstate. Tr. at 27, 47, 

49. While [Appellant] was not per se speeding, the law is clear 

that it is not necessary that [Appellant] be traveling in excess of 

the posted speed limit in order to violate § 3361. See 

Commonwealth v. Heberling, 678 A.2d 794, 795 - 96 (Pa. Super. 

1996); Commonwealth v. Hoke, 298 A.2d 913, 915 (Pa. Super. 

1972).

Furthermore, as the Commonwealth was the verdict 

winner in the instant matter, the [trial c]ourt must view the 

evidence admitted at trial in the light most favorable to the 

Commonwealth. Both Trooper Durst and Corporal Campbell 

testified that the conditions of the road did not allow either of 

them to safely operate their vehicle at the speed limit. Tr. at 6, 

20, 27. Corporal Campbell testified that he did not drive faster 

than 25 miles per hour because of the poor road conditions. Tr. 

at 27. Corporal Campbell further testified that he observed six 

or seven other vehicles slide off of 1-81 as he traveled to the 

accident scene. Tr. at 27.

These poor road conditions combined with [Appellant’s] 

speed rendered [Appellant] unable to maintain control of his 

vehicle, which led to a car crash involving three separate 

vehicles. The Court found the testimony of Trooper Durst and 

Corporal Campbell credible regarding the icy and rainy conditions 

of the road. The Court found beyond a reasonable doubt 

[Appellant] did not operate at a reasonable or prudent speed for 

the prevailing weather conditions. Driving over 54 miles per 

hour on an icy road in the freezing rain is extraordinarily 

dangerous. The evidence in this matter was sufficient to 

conclude beyond a reasonable doubt that [Appellant] 

disregarded these hazardous weather conditions, which led to a 

multiple vehicle crash. Therefore, the Court found [Appellant] 

guilty of violating 75 Pa.C.S. § 3361.

Trial Court Opinion, 2/25/15, at 6-8 (footnote omitted). 

Our review of the record, viewed in the light most favorable to the 

Commonwealth, supports the trial court’s determination that Appellant 

violated § 3361. Again, we note that:
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[I]t is within the province of the [fact-finder] to assess the worth 

of the testimony, which it may then accept or reject. We agree 

that the [fact-finder] is free to believe all, some or none of the 

testimony presented by a witness. 

Neison v. Heimes, 653 A.2d 634, 636-37 (Pa. 1995) (citations omitted). 

Our careful scrutiny of the record does not reflect that the trial court’s 

determination that Appellant violated § 3361 was “so disproportionate to the 

uncontested evidence as to defy common sense and logic.” Id. Further, 

Appellant’s sufficiency argument would require us to re-weigh the testimony 

adduced at trial, which we may not do. See Commonwealth v. Hawkins,

701 A.2d 492, 501 (Pa. 1997) (the credibility of witnesses is “solely for the 

[fact finder] to determine”); see also Commonwealth v. Dougherty, 860 

A.2d 31, 36 (Pa. Super. 2004) (citations omitted) (“This Court cannot 

substitute its judgment for that of the [fact finder] on issues of credibility.”). 

Moreover, we recognize that “[i]t is the function of the [fact finder] to 

evaluate evidence adduced at trial to reach a determination as to the facts, 

and where the verdict is based on substantial, if conflicting evidence, it is 

conclusive on appeal.” Commonwealth v. Reynolds, 835 A.2d 720, 726 

(Pa. Super. 2003) (citation omitted).

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015