J-A13025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOSEPH J. WATLEY                           :
                                               :
                      Appellant                :   No. 3022 EDA 2016

           Appeal from the Judgment of Sentence September 6, 2016
                 In the Court of Common Pleas of Pike County
             Criminal Division at No(s): CP-52-SA-0000018-2016


BEFORE:      LAZARUS, J., OTT, J. and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                     FILED JULY 11, 2017

        Joseph J. Watley appeals from the judgment of sentence entered

September 6, 2016, in the Court of Common Pleas of Pike County, after the

trial court found him guilty of violation of 75 Pa.C.S. § 3364(a), Minimum

Speed Regulation – Impeding movement of traffic.               The sole question

presented in this appeal is “[w]hether Joseph J. Watley was innocent of

impeding traffic under 75 Pa.C.S.A. § 3364(a) since the Commonwealth did

not present one witness that testified [Watley] obstructed traffic?”1 Watley’s

Brief at 4. For the reasons set forth below, we are constrained to vacate the

judgment of sentence.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 Watley timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.
J-A13025-17



     The    trial   court   has   summarized   the   Commonwealth’s   evidence

presented at the de novo summary appeal hearing, as follows:

     On May 11, 2016, at approximately 2:45 in the afternoon,
     [Pennsylvania State Police Trooper Michael] Felsman sat in his
     marked police car on the south side of Interstate Highway 84
     (I-84) at mile marker 30.6, observing the flow of traffic going
     eastbound. Felsman observed a 2001 Chevrolet drive by at 48
     miles per hour in a section of the highway with a 65 mile per
     hour speed limit. Felsman pulled out and drove beside the
     Chevrolet as it continued Eastbound. Watley was driving the
     Chevrolet as he travelled east from Indiana on his way to his
     home in Connecticut. A moderate flow of traffic drove by on I-84
     with sunny weather and no adverse driving conditions. After
     driving alongside the Chevrolet and then behind it for 2 miles at
     the same rate of speed, Felsman initiated a traffic stop of the
     Chevrolet, driven by Watley. After Felsman obtained Watley's
     identification, vehicle registration, and insurance information,
     Felsman called for back-up, took Watley into custody, and
     directed the Chevrolet towed off the highway.

     Felsman testified that at the 48 miles per hour speed, he
     believed Watley impeded the flow of traffic at that time,
     although Felsman did not observe a traffic slowdown at the time
     of the stop. Watley testified that he always drives cautiously in
     the right hand lane as a result of an accident that occurred in
     1988.

Trial Court Opinion, 11/29/2016, at 2 (record citations omitted and footnote

omitted).

     The magisterial district court found Watley guilty of violating 75

Pa.C.S. § 3364(a), and ordered Watley to pay a $25.00 fine plus costs.

Watley then appealed to the Court of Common Pleas. The trial court held a

trial de novo after which it denied Watley’s summary appeal, convicted




                                       -2-
J-A13025-17


Watley under Section 3364(a), and sentenced him accordingly. 2,           3
                                                                               This

appeal followed.

        Watley argues “[t]here was no evidence in the record that [Watley]

impeded any traffic as required by this Court to sustain a traffic citation

under [Section] 3364(a) of the Motor Vehicle Code.” Watley’s Brief at 8.

        The principles that guide our review are well-settled:

            The standard we apply in reviewing the sufficiency of the
            evidence is whether 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 fact-finder.
            In addition, we note that the facts and circumstances
____________________________________________


2
  The trial court found Watley not guilty of 75 Pa.C.S. §§ 4303(6) (General
Lighting Requirements) and 4524(b) (Windshield Obstruction) at separate
docket numbers 19-2016-SA and 20-2016–SA, respectively. See Trial Court
Opinion, 11/29/2016, at 2 n.1.
3
    The trial court’s sentencing order reads:

        AND NOW, this 6th day of September, 2016, upon consideration
        of the Defendant’s Summary Appeal and after hearing held
        thereon, it is hereby ORDERED that the Defendant’s summary
        appeal of the underlying conviction for Minimum Speed
        Regulation, 75 Pa.C.S.A. § 3364(a) is DENIED.

        The Defendant is hereby advised of his right to appeal this Order
        to the Pennsylvania Superior Court within thirty (30) days of the
        date of this Order, and that if an appeal is filed, the execution of
        the sentence will be stayed and, if applicable, he may seek
        imposition of bail pending appeal.

Order, 9/6/2016.




                                           -3-
J-A13025-17


            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. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (citations

omitted).

     Section 3364 of the Motor Vehicle Code provides, in part:

     (a)      Impeding movement of traffic prohibited. —
               Except when reduced speed is necessary for safe
              operation or in compliance with law, no person shall
              drive a motor vehicle at such a slow speed as to
              impede the normal and reasonable movement of
              traffic.

              …

     (c)      Establishment of minimum speed limits. — At
              any other time when the department or local
              authorities under their respective jurisdictions
              determine on the basis of an engineering and traffic
              investigation that slow speeds on any highway or
              part of a highway impede the normal and reasonable
              movement of traffic, the department or such local
              authority may determine and declare a minimum
              speed limit below which no person shall drive a
              vehicle except when necessary for safe operation or
              in compliance with law. The minimum limit shall be
              effective when posted upon appropriate fixed or
              variable signs.


                                       -4-
J-A13025-17


75 Pa.C.S. § 3364(a), (c).

      Our review is guided by the two reported cases that deal with Section

3364(a): Commonwealth v. Robbins, 657 A.2d 1003 (Pa. Super. 1995)

and Commonwealth v. Lana, 832 A.2d 527 (Pa. Super. 2003).                  In

Robbins, this Court addressed a sufficiency claim and upheld the appellant’s

conviction under 75 Pa.C.S. § 3364(a), explaining:

      The Commonwealth did not have to show that Appellant was
      travelling at a certain speed, as if this was a case of exceeding
      the maximum speed limits. All that needed to be shown was
      that Appellant was operating his vehicle at such a slow speed
      that it was an impediment to the normal and reasonable
      movement of traffic. The testimony of the two officers indicated
      that Appellant was driving very slowly at a rate of speed of about
      17 miles per hour through no-passing zones with speed limits of
      35 and 45 miles per hour. The officers also mentioned that
      between 18 or 20 cars were trailing behind Appellant and the
      operators of those vehicles were angry, raising their fists and
      honking their horns at Appellant.

Id. at 1004.

      Lana, supra, involved a challenge to the denial of a motion to

suppress evidence seized in a traffic stop.      In Lana, the police officer

testified he followed the defendant for approximately one block at 4:00 a.m.

in a residential neighborhood, and stopped the defendant because the

defendant was driving five to ten miles per hour in a 20-mile-per-hour zone.

This Court found the police officer did not have probable cause to conduct

the traffic stop based on 75 Pa.C.S. § 3364(a). Id., 832 A.2d at 529. Our

Court noted “[n]o traffic was impeded by the speed of appellant’s vehicle,”

and concluded that the police officer’s observation of the defendant’s vehicle

                                    -5-
J-A13025-17


for a distance of one block at 5 to 10 miles per hour in a 20-mile-per-hour

zone provided no justification for the traffic stop. Id., 832 A.2d at 529-30.

      Here, Watley claims the trial court ignored this Court’s precedential

decisions that require evidence of impeding traffic.    Id. at 11. He asserts

“unlike in Robbins, there was not a shred of evidence that [Watley] was

impeding traffic.”   Watley’s Brief at 9. In addition, citing Lana, Watley

argues, “there was no testimony that [Watley] blocked or obstructed traffic

and not one car was behind him.”         Watley’s Brief at 10.     Watley also

contests the trial court’s consideration of Pennsylvania Turnpike traffic rules

and regulations when he “was not travelling on the Turnpike and there was

no minimum speed limit posted.” Watley’s Brief at 10.

      Based on our review of the evidence in the light most favorable to the

Commonwealth as verdict winner, we conclude that Watley’s argument that

the Commonwealth failed to present any evidence that Watley impeded

traffic has merit.

      Trooper Felsman, the Commonwealth’s sole witness, testified that on

May 11, 2016, at approximately 2:45 p.m., he was parked on the south side

of Interstate 84, and monitoring the speed of vehicles going east with a

hand held radar unit.    N.T., 8/31/2016, at 5–7.      His radar unit indicated

Watley was traveling 48 miles per hour in a 65 mile-per-hour zone, and that

he followed Watley for a distance of approximately two miles before stopping

Watley’s vehicle. See id. at 6–7. He further testified, as follows:


                                     -6-
J-A13025-17


      Q: And was there traffic? Were there other cars on the road at
      that time?

      A: Yes there were.

      Q: And what was the flow of traffic like at that time sir?

      A: I would say at that time in the afternoon during a week day
      it was like a moderate flow of traffic. It was sunny out. There
      were no adverse conditions at that time.

N.T., 8/31/2016, at 8.

      On cross examination, Trooper Felsman further testified:

      Q: He was not interfering with the flow of traffic on the day of
      question, correct?

      A: I believe that he would – going at that speed he was
      impeding the flow of traffic at that time. I was sitting at that spot
      before he drove by for approximately ten minutes with that same
      radar gun and I would estimate the speed of vehicles to be sixty to
      sixty-five miles per hour for the prior ten minutes of that.

      Q. The question Trooper was, there wasn’t a car in front of [Watley]
      that he was – or a car behind him that was not –

      A. Not that I observed, no.

Id. at 18.

      The    trial   court,   based   upon    the   evidence   presented   by   the

Commonwealth, reasoned:

      This Court found that Watley violated 75 Pa.C.S. § 3364(a). The
      above Statute states (in pertinent part), “Except when reduced
      speed is necessary for safe operation or in compliance with law,
      no person shall drive a motor vehicle at such slow speed as to
      impede the normal and reasonable flow of traffic.” Id.

      The statute further provided in section (c) that local authorities
      or highway departments may set a minimum speed at which it is
      illegal to drive below. 75 Pa.C.S. § 3364(c) (2016). As an

                                        -7-
J-A13025-17


     example, the Pennsylvania Turnpike has enacted such a
     minimum speed limit under this section, in which it is illegal to
     drive more than 15 miles per hour under the speed limit.
     Pennsylvania Turnpike, Traffic Rules and Regulations: Speed
     Limits,   601.4(a),   https//www.paturnpike.com/travel/traffic-
     _rules_regulations.aspx (accessed Nov. 23, 2016).

     … [Acknowledging the decisions of Commonwealth v. Robbins,
     657 A.2d 1003, 1004 (Pa. Super. 1995) and Commonwealth v.
     Lana, 832 A.2d 527 (Pa. Super. 2003), the trial court
     continues:]

     Many trial courts, while deciding on violations of the Section,
     required testimony regarding impediment of other vehicles on
     the roadway, not only the Defendant and police officer, in order
     to find the Defendant guilty under the Section. Commonwealth
     v. Noviho, 2015 Pa. Dist. & Cnty. Dec. LEXIS 424 (Pa. County
     Ct. 2015) (Commonwealth established (1) Noviho’s operation of
     a motor vehicle below the posted speed limit, (2) which impeded
     the “normal and reasonable movement of traffic.”). See also
     Commonwealth v. McGrath, 78 Bucks Co. L. Rep. 212 (2004)
     (traffic stop unlawful where officer testified that there was no
     other traffic on roadway during his interaction with defendant, so
     slow rate of speed could not have impeded the normal
     movement of traffic); Commonwealth v. Memminger, No.
     1481 Criminal 1999, Slip op. (Monroe Co., Feb. 23, 2000) (no
     reasonable suspicion of a violation of § 3364 where the only
     traffic on highway at the time of the stop for slow speed was
     defendant’s car and the police car that had been following him
     for five miles).

     However, other trial courts in our Commonwealth have ruled
     otherwise; the Court of Common Pleas of Lehigh County held
     that type of testimony is not required for a proper citation under
     the Section. Commonwealth v. Faustner, No. 1742 of 2005,
     slip op. (Lehigh Co., Dec. 28, 2005) (summary vehicle code stop
     for “impeding traffic” lawful where no “civilian traffic” on
     roadway at the time, but only police officer’s vehicle).

     Here, the facts that (1) Watley travelled at a speed of 48
     miles per hour in a 65 mile per hour zone, and (2)
     Felsman believed Watley impeded the flow of traffic,
     establish a violation of the Section under the law. Using
     the non-binding, persuasive guidelines of the Pennsylvania

                                   -8-
J-A13025-17


      Turnpike, an authority on highway travel on the turnpike system
      within the Commonwealth, Watley travelled at more than 15
      miles under the posted 65 mile per hour speed limit. While this
      incident did not take place on the Turnpike, I-84 is a similar 4
      lane highway through a mountainous region of the state. The
      Turnpike’s regulation was instructive to this Court because the
      Turnpike determined the flow of traffic may not legally move
      slower than 50 miles per hour in a 65 mile per hour zone on a
      similar roadway.

      Also, the sunny and dry conditions on I-84 on the day in
      question indicate no necessity to drive at a reduced speed. If the
      weather included rain or snow on the afternoon of May 11, 2016,
      Watley may have been justified in driving so far below the speed
      limit under the law. However, the conditions and the testimony
      suggest traffic flowed quickly at that time, and there was no
      justification to drive at a slower than normal pace to relieve
      Watley of liability.

      Felsman’s belief that Watley’s slow movement on I-84
      impeded the flow of traffic is sufficient evidence to find
      that Watley in fact did so. The Superior Court has not held
      evidence to establish other vehicles besides the
      Defendant and police officer were impeded by the
      defendant is necessary, only that the flow of traffic be
      impeded. This Court follows the Common Pleas Court of
      Lehigh County in not requiring that evidence in order to
      find a violation of the Section. With the moderate flow of
      traffic that Felsman testified travelled between 60-65
      miles per hour, it is reasonable to conclude that Watley
      did in fact impede traffic without actually causing a back-
      up or accident on the roadway.

Trial Court Opinion, 11/29/2016, at 3–5 (emphasis supplied).     We disagree

with the trial court’s analysis for the following reasons.

      Here, the trial court referenced Pennsylvania Turnpike rules and

regulations that establish a minimum speed limit of 15 miles below the

posted speed limit.     However, as the trial court itself recognized, “this

incident did not take place on the Turnpike.” Trial Court Opinion,

                                      -9-
J-A13025-17


11/29/2016, at 5.     Furthermore, no evidence was presented that local

authorities had posted minimum speed limits on Interstate 84, the roadway

on which Watley was travelling.       See 75 Pa.C.S. § 3364(c), supra.

Therefore, we find that Pennsylvania Turnpike minimum speed limits have

no significance in assessing the Commonwealth’s proof in this case under

Section 3364(a).

      Furthermore, the trial court found that Trooper Felsman’s belief that

Watley’s slow speed impeded the flow of traffic was sufficient to establish

Watley’s liability. In support of the trial court’s decision, the Commonwealth

posits “police officers are routinely found competent to render opinions as to

whether traffic violations have occurred.”    Commonwealth’s Brief at 10,

citing Commonwealth v. Monosky, 520 A.2d 1192 (Pa. Super. 1987).

Monosky, however, is inapposite.

      In Monosky, this Court held police officers’ opinion testimony of

vehicle’s speed may be sufficient to sustain a conviction for a violation of

driving at an unsafe speed, 75 Pa.C.S. § 3361. The Monosky Court

reasoned that “lay people are competent to render such an opinion if, as

here, adequate opportunity existed to observe the vehicle.”            Id. at

1194 (emphasis added). In contrast, in the present case, Trooper Felsman’s

opinion testimony that Watley was impeding the flow of traffic was not

based on any observation of Watley’s vehicle blocking or backing up traffic,




                                    - 10 -
J-A13025-17


or causing an accident. He testified regarding what hypothetically “would”4

occur, not anything that had actually occurred. However, Section 3364(a),

as interpreted by this Court, requires proof that the defendant’s slow speed

“was an impediment to the normal and reasonable movement of traffic.”

Robbins, supra, 657 A.2d at 1004 (emphasis supplied). Therefore, we

conclude Trooper Felsman’s “belief” that Watley was impeding traffic was not

competent to establish that Watley was “driv[ing] a motor vehicle at such a

slow speed as to impede the normal and reasonable movement of traffic,”

75 Pa.C.S. § 3364(a).

        Moreover, the Faustner decision, relied upon by the trial court, is a

non-precedential Lehigh County Court of Common Pleas decision that

addressed a suppression motion. In Faustner, the trial judge rejected the

defendant’s argument that “traffic was not impeded because there was no

civilian traffic on [the] street at the time.”     Faustner, 2005 Pa. Dist. and

Cnty. Dec. LEXIS 631 at *13. The trial judge concluded there was “at least

reasonable suspicion for the stop and to issue a traffic citation for the

summary offence [of 75 Pa.C.S. § 3364(a).” Id.           However, in the instant

case, the issue is the sufficiency of the evidence and the standard is proof

beyond a reasonable doubt. Accordingly, Faustner has no persuasive value

here.
____________________________________________


4
 N.T., 8/31/2016, at 18 (“I believe that he would – going at that speed he
was impeding the flow of traffic at that time.”).



                                          - 11 -
J-A13025-17


     In sum, while Trooper Felsman testified, regarding Watley’s 48 mile

per hour speed in a 65 mile per hour zone, that “I believe he would — going

at that speed he was impeding the flow of traffic at that time,” he admitted

he did not observe any vehicle behind Watley. See N.T., 8/31/2016, at 18.

As such, there was no direct evidence or competent opinion testimony that

Watley’s speed affected any vehicles on the roadway.         Therefore, we

conclude Watley’s conviction cannot stand.

     Accordingly, we are constrained to vacate the judgment of sentence.

     Judgment of sentence vacated. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




                                   - 12 -
