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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

MICHAEL ALLEN PEARSON

                         Appellant                  No. 1522 WDA 2016


          Appeal from the Judgment of Sentence August 19, 2016
            In the Court of Common Pleas of Cameron County
           Criminal Division at No(s): CP-12-CR-0000056-2015


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 12, 2017

      Michael Allen Pearson appeals from the judgment of sentence of an

aggregate fine of $650 plus court costs imposed following his bench

conviction of five summary offenses:      reckless driving; driving vehicle at

unsafe speed; driving on roadways laned for traffic; driving without a

license; drivers required to be licensed; and driving while operating privilege

suspended or revoked. We affirm.

      On the evening of September 10, 2015, Emporium Borough Police

Officer Patrick Straub engaged Appellant in a high-speed vehicle pursuit in

Cameron County, Pennsylvania. The chase terminated when Officer Straub

lost control of his vehicle on a mountain road and collided with an

embankment. The road, known, alternatively, as State Route 3001, South
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Mountain Road, and Whittimore Hill Road, follows the tortuous contours of

South Mountain, which is a ridge that forms the southern border of the

Borough of Emporium. Officer Straub apprehended Appellant the following

day at his place of employment and charged him with seven violations of the

vehicle code, including fleeing or attempting to elude a police officer graded

as a felony of the third degree.    While a jury acquitted Appellant of the

felony offense, the trial court convicted him of the five summary violations

listed above.

      Although Officer Straub’s pursuit of Appellant was brief, we look at it

from the perspective of three separate witnesses: Emporium Borough Police

Chief David Merritt, Pennsylvania State Police Trooper Josiah Reiner, and

Officer Straub.    First, Chief Merritt testified that, on the evening of

September 10, 2015, he observed Appellant, whom he has known for

approximately fifteen years, operating a vehicle on Sycamore Street in

Emporium. See N.T., 8/19/16, at 24. Chief Merritt lived on the corner of

Sycamore Street and South Wood Street and from his front porch, he

noticed Appellant drive down Sycamore, park in the middle of the street, exit

the vehicle, enter a nearby residence, return to the vehicle, and drive away.

Id at 26. There was no question in his mind that Appellant was the person

operating the automobile.    Id. at 25-26.    The witness was familiar with

Appellant’s driving history and knew that Appellant’s driving privileges had

been suspended.    Id. at 26.   Chief Merritt immediately contacted Officer

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Straub, who was patrolling the area, advised him that Appellant was driving

a gold or beige colored SUV, and informed the officer of Appellant’s location

so that Officer Straub could initiate a traffic stop for the violation. Id. at 27.

From his perspective of the ensuing chase, Chief Merritt observed Appellant

“turn right onto South Broad Street . . . and travel south, and immediately

behind him [he] saw [Officer Straub’s] marked patrol car and heard both

vehicles accelerate” down South Broad Street, across the South Street

Bridge, and begin the steep ascent up South Mountain Road. Id. at 28. The

witness observed the pursuit down Broad Street, but, his view was blocked

intermittently by houses located on Broad Street. Id. at 29-30, 31-33.

      Next, Officer Straub testified that on September 10, 2015, he was

traveling northbound on South Broad Street in Emporium, when he received

the call from Chief Merritt advising him that he observed Appellant operating

a motor vehicle near the intersection of Second Street and South Broad

Street. Id. at 35. As Chief Merritt was describing Appellant’s vehicle and

reporting its location, Officer     Straub viewed in his        rearview mirror

Appellant’s car turn onto South Broad Street and precede south toward

South Mountain. Id. at 36. Officer Straub executed a U-turn and initiated

pursuit.   Id. at 37.    As Officer Straub approached Appellant’s car, he

observed Appellant travel into the oncoming lane of traffic in order to

negotiate a turn. Id. When Officer Straub illuminated his emergency lights,

Appellant accelerated away from the pursuit. Id. Officer Straub radioed Elk

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County Control to advise of the situation, activated his siren, and pursued

Appellant’s vehicle for approximately one-half mile as it started the ascent

up South Mountain Road. Id. at 37-38. He periodically lost direct sight of

the vehicle as Appellant maneuvered the sharp curves, but he was able to

follow the illumination of Appellant’s headlights and taillights as he traveled

up South Mountain Road. Id. at 52-53.            Officer Straub explained that

Appellant would drive on the wrong side of the road in order to maintain

speed through curves. Id. at 62. Shortly thereafter, Officer Straub failed to

negotiate a hairpin turn and crashed the patrol vehicle. Id. at 39. According

to Officer Straub, the incident occurred on a clear night and the roads were

dry. Id. at 62.

      When Appellant was apprehended the following day, he volunteered to

Officer Straub that he had been driving the previous night due to necessity.

Id. at 43-46. “He stated that his license was suspended and that he had to

drive because he had children.”     Id. at 43.     He continued “that his wife

would drop him off at work, but during his shift she would drop the vehicle

off so he could drive home at the end of his shift.” Id. at 44.        He also

contested that the police officer activated his emergency lights in an attempt

to initiate a stop. Officer Straub recounted, “He stated that my lights and

siren weren't on, and I stated to him that they were and I pursued him up

South Mountain Road.” Id. at 46.




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        Pennsylvania State Police Trooper Josiah Reiner witnessed part of the

chase, and he was present when Appellant volunteered the incriminating

statement.      He testified that he was patrolling in Emporium near the

intersection of East Second Street and Broad Street when he observed a

vehicle turn from West Second Street on to southbound Broad Street. He

continued, “a few seconds [later] I observed the Emporium Borough police

car” follow the vehicle, and activate its lights in order to initiate a traffic

stop.    Id. at 67.     At that point, the vehicle accelerated across the South

Broad Street bridge and started up the hill. Id. Officer Straub activated the

siren on his patrol vehicle and followed, “and [Trooper Reiner] in turn

followed that police car.” Id. at 67. He heard Officer’s Straub’s radio call to

Elk County Control advising of the chase, and then heard an aborted

transmission that was apparently terminated by the collision. Id. at 69.

        As it relates to the pre-Miranda statements Appellant made to officer

Straub, Trooper Reiner recalled “Officer Straub notified [Appellant] again of

the reason why he was arrested. And [Appellant] made several incriminating

remarks about how he needs to drive to do work every day; he needs to

support his family; he needs to do this, that and the other thing.” Id. at 73.

        The   trial   court   denied   the   ensuring   motion   to   suppress   the

incriminating statements and a related motion in limine. As noted, supra, a

jury acquitted Appellant of attempting to elude a police officer, and the trial

court convicted him of five summary traffic violations.           Appellant filed a

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timely appeal challenging the sufficiency of the evidence supporting three of

the five convictions.

      Appellant presents the following question for our review: “Whether . . .

the evidence was insufficient for the trial court to find [Appellant] guilty of

the summary offenses of reckless driving, driving vehicle at [un]safe speed,

and driving on roadways laned for traffic?” Appellant’s brief at 7. Appellant

does not challenge the sufficiency of the evidence supporting his convictions

for driving without a license and driving with a suspended license. For the

following reasons, no relief is due.

      We apply the following standard of review of Appellant’s assertion that

the evidence was insufficient to sustain the verdicts against him:

      [W]e examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury’s finding of all the elements of the offense beyond a
      reasonable doubt. The Commonwealth may sustain its burden
      by means of wholly circumstantial evidence.

Commonwealth v. Lloyd, 151 A.3d 662, 664 (Pa.Super. 2016).

      Appellant’s first argument relates to identification. Stated plainly, he

argues that the Commonwealth failed to adduce evidence to demonstrate

beyond a reasonable doubt that he was operating the motor vehicle on the

evening of September 10, 2015. The crux of this contention is that Officer

Straub did not positively identify Appellant as the driver. This claim fails for

at least two reasons.    First and foremost, Appellant admitted to operating



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the vehicle on the night in question, and Officer Straub and Trooper Reiner

both confirmed Appellant’s admission.      Second, Police Chief Merritt did, in

fact, positively identify Appellant, whom he has known for approximately

fifteen years. He identified Appellant both inside and outside of the vehicle,

and relayed all of the pertinent information to Officer Straub. Indeed, Chief

Merritt confirmed that he was certain Appellant was the person operating the

automobile.   Moreover, Chief Merritt testified that he not only witnessed

Appellant drive from Sycamore Street to South Broad Street, he also

observed a portion of Officer Straub’s pursuit of Appellant on South Broad

Street and heard both vehicles accelerate across the bridge.         We reject

Appellant’s contention that the forgoing identification evidence was deficient

notwithstanding the fact that Officer Straub did not positively identify

Appellant during the chase and that Chief Merritt’s view of the action was

obstructed intermittently.

      Appellant’s second argument relates to the reckless driving conviction.

That offense is defined as follows: “(a) General rule.—Any person who

drives any vehicle in willful or wanton disregard for the safety of persons or

property is guilty of reckless driving.”     75 Pa.C.S. § 3736(a).   Appellant

contends that the Commonwealth failed to adduce evidence concerning the

nature of his driving. Again, we disagree.

      During the trial, Officer Straub testified that Appellant accelerated

away from him when he attempted to initiate a traffic stop and that he

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crossed into the oncoming lane of traffic when he attempted to navigate a

curve prior to their ascent up South Mountain. Indeed, the officer explained

that, while he was able to stay on the right side of the twisty roadway

(except for the one hairpin turn he could not), “[Appellant] was driving on

the wrong side of the road to maneuver the curves faster.”         N.T., at 62.

Appellant clearly disregarded the possibility of encountering oncoming traffic

or an unforeseen obstacle behind the next curve in the roadway. Under the

totality of the circumstances, and viewed in the light most favorable to the

Commonwealth as verdict winner, we find that the evidence is sufficient to

demonstrate     the   reckless   nature    of   Appellant’s   driving.     See

Commonwealth v. Best, 120 A.3d 329 (Pa.Super. 2015) (testimony that

driver admitted entering opposite lane of travel, is sufficient to support

conviction for reckless driving). Hence, no relief is due.

      Appellant’s next argument relates to the crime of driving at an unsafe

speed. That offense entails,

      No person shall drive a vehicle at a speed greater than is
      reasonable and prudent under the conditions and having regard
      to the actual and potential hazards then existing, nor at a speed
      greater than will permit the driver to bring his vehicle to a stop
      within the assured clear distance ahead. Consistent with the
      foregoing, every person shall drive at a safe and appropriate
      speed when approaching and crossing an intersection or railroad
      grade crossing, when approaching and going around curve, when
      approaching a hill crest, when traveling upon any narrow or
      winding roadway and when special hazards exist with respect to
      pedestrians or other traffic or by reason of weather or highway
      conditions



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75 Pa.C.S. § 3361.

      Appellant argues that the Commonwealth did not present evidence to

establish the posted speed limits or the condition of the roadways when the

chase occurred. The Commonwealth counters that its evidence established

that Appellant drove his vehicle at a speed that exceeded what was

reasonable and prudent under the circumstances. We agree.

      Contrary to Appellant’s protestations, the posted speed limit is

irrelevant under § 3361. In Commonwealth v. Heberling, 678 A.2d 794

(Pa.Super. 1996), we noted that the focus of the § 3361 inquiry is on the

circumstances surrounding the operation of a vehicle and not excessive

speed per se. Id. at 796. We explained, “[t]here 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.”       Id.      We identified the conditions

regarding the roadway itself as the most relevant consideration, “e.g.,

whether four-lane, interstate, or rural, flat and wide, or narrow and winding

over hilly terrain; smooth-surfaced, or full of potholes; clear, or under

construction with abrupt lane shifts.”

      Instantly,   Officer   Straub   testified   at    length   about   Appellant’s

acceleration up the tortuous mountain road that was inundated with

dangerous curves, which Appellant elected to navigate on the wrong side of

the road for the sake of maintaining his speed.          While Officer Straub also

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testified that it was a clear, dry night, those conditions did not negate the

fact that, despite being the more cautious of the two drivers, he collided with

an   embankment      on    a   hairpin    turn.        We    are   satisfied   that   the

Commonwealth’s evidence sustained the conclusion that Appellant drove his

vehicle at a speed greater than a reasonable and prudent person would

under the existing conditions.

      Finally, we address Appellant’s assertion that the evidence will not

sustain the finding that he violated what the Motor Vehicle Code defines as

driving on roadways laned for traffic. Pursuant to that section:

      Whenever any roadway has been divided into two or more
      clearly marked lanes for traffic the following rules in addition to
      all others not inconsistent therewith shall apply:

      (1) Driving within single lane.—A vehicle shall be driven as
      nearly as practicable entirely within a single lane and shall not
      be moved from the lane until the driver has first ascertained that
      the movement can be made with safety.

75 Pa.C.S. § 3309.

      Appellant complains that the Commonwealth failed to prove beyond a

reasonable doubt that the pertinent roadways were marked with lanes or

that Appellant created a safety hazard by crossing into the lane designated

for oncoming traffic.     No relief is due.       First,   Appellant does not cite any

legal authority for his proposition that the Commonwealth was required to

demonstrate, as an element of the offense, that South Broad Street and/or

State Route 3001, a/k/a South Mountain Road a/k/a Whittimore Hill Road,



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are in fact marked.            “[W]here an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is

waived.” In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011). As Appellant

failed to cite relevant case law, develop his legal argument, or apply the law

to   the    facts   of   the   case   regarding   this   contention,   it   is   waived.

Commonwealth v. Wise, 2017 WL 4079782, at *5 (issue waived where

appellant provided vague, undeveloped argument and neglected to cite to

controlling case law).

        While Appellant also failed to support with relevant legal authority the

component of his argument relating to the nature of the transgression, i.e.,

whether he left the lane in an unsafe manner, we are cognizant that our

jurisprudence would not permit sanction for a de minimis offense. Thus, we

address the merits of this contention and reject it.

        As the Commonwealth accurately observes, the certified record

highlights     the danger Appellant created by choosing to drive against the

right of way simply in order to maintain his speed up the twisty mountain

road.      As we noted, supra, Appellant clearly disregarded the possibility of

oncoming traffic or encountering an unforeseen obstacle in the roadway.

Under the totality of the circumstances, and viewed in the light most

favorable to the Commonwealth as verdict winner, the evidence is sufficient.

See Best, supra at 344 (testimony that appellant admitted entering the

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opposite lane of travel, is sufficient to support appellant's conviction for

driving on roadways laned for traffic).

      For all of foregoing reasons, we find that the Commonwealth adduced

sufficient evidence to sustain the summary offenses of reckless driving,

driving vehicle at unsafe speed, and driving on roadways laned for traffic.

      Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




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