J-S09020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
LAWRENCE KINGSLEY                        :
                                         :
                   Appellant             :    No. 593 MDA 2017

         Appeal from the Judgment of Sentence February 27, 2017
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-SA-0000262-2014


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY MCLAUGHLIN, J.:                           FILED MAY 03, 2018

      Lawrence Kingsley appeals from the judgment of sentence entered

following his summary conviction for failing to stop at a stop sign, 75

Pa.C.S.A. § 3323(b). We affirm.

      On August 22, 2014, Pennsylvania State Trooper Trisha Campbell

pulled over Kingsley for failing to stop at the stop signs located at the

intersection of State Route 382 and Eisenhower Boulevard. On October 30,

2014, the magisterial district court found Kingsley guilty of failing to stop at

a stop sign. Kingsley filed an appeal, and the trial court conducted a

summary appeal hearing on two days approximately 1 year and 9 months

apart.

      Following the first day of the hearing, June 29, 2015, the trial court did

not immediately set a date for the second day of the hearing. On July 20,

2015, Kingsley filed a Motion to Strike his date of birth from the record. The

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S09020-18



Commonwealth filed a response and Kingsley filed a Renewed Motion to

Modify Order and to Compel Service. On March 31, 2016, the trial court

denied the Motion to Strike and the Renewed Motion to Modify Order and

Compel Service. In this order, the trial court scheduled a second hearing day

for May 9, 2016. On April 11, 2016, a notation on the docket states the mail

sent to Kingsley containing the March 31, 2016 order was returned as

undeliverable. Kingsley did not attend the May 9, 2016 hearing. On May 13,

2016, the trial court affirmed the judgment of the magisterial district court.

      On July 20, 2016, Kingsley filed a Motion to Open Judgment. On

December 6, 2016, the trial court vacated the May 13, 2016 order and

scheduled the second day of the hearing for February 27, 2017.

      At the hearing, Trooper Campbell testified that she witnessed Kingsley

“c[o]me through th[e] intersection and fail[] to stop at the stop sign before

merging onto Eisenhower Boulevard.” N.T., 6/29/15, at 8. She further

testified that the stop sign was not improperly installed. Id. at 11.

      Kingsley presented the testimony of Jason Hershock, a Pennsylvania

Department of Transportation (“PennDOT”) employee, and Frank Williamson

Jr., the Director of Public Safety and Assistant Township Manager for Lower

Swatara Township, Dauphin County. Hershock testified that the stop signs at

the intersection were 36 inches by 36 inches, the speed limit was 55 miles

per hour before the exit ramp, and there was no stop sign ahead sign. N.T.,

2/27/17, at 17-18. Further, he testified that PennDOT had a project planned

that would realign the intersection at issue. Id. at 33. On cross-examination,

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Hershock testified that the stops signs were in compliance with regulations

“from what [he] see[s].” Id. at 45.

         Williamson testified regarding local ordinances and regarding the

shrubbery on the side of the road. On cross-examination, Williamson

testified that Route 283 and Eisenhower Boulevard are state highways. Id.

at 67.

         Kingsley testified that he returned to the intersection and “saw signage

that was blocked by a long truck,” which PennDOT should have anticipated.

He stated the signage was not in the proper position and not sufficiently

visible to a motorist. Id. at 70. He stated that the project PennDOT planned

at the intersection would change the stop sign to a yield sign. Id. at 71. He

also     entered   into   evidence   exhibits,   including   photographs     of   the

intersection.

         The trial court found Kingsley guilty, reasoning that Kingsley failed to

stop at the stop signs and that “the stop sign[s], from all indications to the

Court, w[ere] properly placed” when placed by PennDOT authorities. Id. at

79. The court imposed a $25.00 fine and required Kingsley to pay court

costs.

         Kingsley raises the following issues on appeal:

            1. Does § 3111(b) of the Vehicle Code afford an absolute
            defense to the allegation in question?

            2. In respect to this statute, was there sufficient proof that
            the stop signs [were] out of position and insufficiently
            visible?


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         3. If the signs were out of position and insufficiently
         visible, does it matter whether PennDOT or the local
         township had ultimate control over traffic regulation at the
         intersection in question?

         4. Was the lower court remiss in failing to acknowledge
         that PennDOT’s decision to reconstruct the intersection in
         question, though not yet implemented, tends to support
         [Kingsley’s] contention that there were deficiencies in the
         signage and roadway design?

         5. Where the infraction, if there was one at all, was only
         technical, did the Commonwealth meet its burden of proof
         in showing criminal intent?

         6. Did the court below fail to recognize that the alleged
         infraction, although regrettable, was a de minimis offense
         which     should   have    been    excusable  under    the
         circumstances in question[?]

         7. Do other irregularities in the proceedings         show
         unacceptable prejudice by the court below?

         8. Should [Kingsley] and [the] general public be afforded
         the same protection against publication of personal
         information which the Commonwealth Court has granted to
         state employees?

Kingsley’s Br. at 3-4 (suggested answers omitted).

      Kingsley’s first three arguments maintain that he established an

affirmative defense to the Section 3323 violation. He argues the stop signs’

placement and size did not conform with the requirements adopted by the

Vehicle Code. He also contends the stops signs were not visible to motorists,

and that the trial court erred in failing to consider PennDOT’s plans to

change the sign at the intersection from a stop sign to a yield sign. In these

claims, Kingsley argues, in effect, that the Commonwealth failed to present

sufficient evidence that he violated Section 3323.



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     “Because evidentiary sufficiency is a question of law, our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Ballard, 80 A.3d 380, 390 (Pa. 2013) (citation omitted). Specifically, we

must determine whether, when viewed in a light most favorable to the

verdict winner, the evidence at trial and all reasonable inferences therefrom

are sufficient for the trier of fact to find that each element of the crime

charged is established beyond a reasonable doubt. See Commonwealth v.

Dale, 836 A.2d 150, 152 (Pa.Super. 2003). “The Commonwealth may

sustain its burden of proving every element of the crime beyond a

reasonable    doubt   by   means    of    wholly   circumstantial   evidence.”

Commonwealth v. Brown, 23 A.3d 544, 559 (Pa.Super. 2011) (en banc)

(quoting   Commonwealth       v.   Hutchinson,     947   A.2d   800,   805–06

(Pa.Super. 2008)).

     Further, “[a]s an appellate court, we do not assess credibility nor do

we assign weight to any of the testimony of record.” Commonwealth v.

Kinney, 863 A.2d 581, 584 (Pa.Super. 2004) (citation omitted). Therefore,

we will not disturb the verdict “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.” Commonwealth v. Bruce, 916 A.2d

657, 661 (Pa.Super. 2007) (quoting Commonwealth v. Frisbie, 889 A.2d

1271, 1274–75 (Pa.Super.2005)).

     Section 3323 provides:


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        Except when directed to proceed by a police officer or
        appropriately attired persons authorized to direct, control
        or regulate traffic, every driver of a vehicle approaching a
        stop sign shall stop at a clearly marked stop line.

75 Pa.C.S.A. § 3323(b).

     Section 3111 of the Vehicle Code states, in relevant part:

        (b) Proper position and legibility of device.--No provision of
        this title for which official traffic-control devices are
        required shall be enforced against an alleged violator if at
        the time and place of the alleged violation an official device
        is not in proper position and sufficiently legible to be seen
        by an ordinarily observant person. Whenever a particular
        section does not state that official traffic-control devices
        are required, the section shall be effective even though no
        devices are erected or in place.

        (c) Presumption of authorized placement.--Whenever
        official traffic-control devices are placed or held in position
        approximately conforming to the requirements of this title,
        the devices shall be presumed to have been so placed by
        the official act or direction of lawful authority, unless the
        contrary shall be established by competent evidence.

        (d) Presumption of proper devices.--Any official traffic-
        control device placed or held pursuant to the provisions of
        this title and purporting to conform to the lawful
        requirements pertaining to such devices shall be presumed
        to comply with the requirements of this title, unless the
        contrary shall be established by competent evidence.

75 Pa.C.S.A. § 3111(b)-(d). Accordingly, Section 3111 provides a defense to

Section 3323 if the stop sign, a “traffic control device,” is “not in proper

position and sufficiently legible to be seen by an ordinarily observant

person.” It, however, also establishes two presumptions, including a

presumption that the traffic control devices comply with the Vehicle Code,




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unless the defendant establishes otherwise. See Commonwealth v.

Gernsheimer, 419 A.2d 528, 530 (Pa.Super. 1980).

      In Commonwealth v. Abramson, 4 Pa.D.&C. 3d 368, 369-70

(Montour Cnty. C.P. 1977), relied on by Kingsley, the Court of Common

Pleas found the defendant not guilty of failing to stop at the stop sign

because the defendant established the stop sign was bent at an angle, the

intersection had poor lighting, and the traffic markings were inadequate and

confusing. In Abramson, the defendant testified that he exercised caution

while driving, but had difficulty following the road because of poor traffic

markings and lighting conditions. He said he stopped at one stop sign, but

did not see the second, which was located a short distance from the first. Id.

In addition, the proprietor of a Sunoco station, located at the intersection at

issue, testified that the stop sign was struck by trucks on numerous

occasions and was now at an angle, which made it difficult to see. Id. at

370. Further, he stated that most drivers do not see the stop sign, and go

through it without stopping, and agreed that the lighting conditions were

poor and the traffic markings were inadequate and confusing. Id.

      Here the Commonwealth established that Kingsley failed to stop at the

stop signs before merging onto Eisenhower Boulevard. Further, Kingsley

presented insufficient evidence to overcome the presumption that the

placement of the stop signs was proper. Unlike in Abraham, the stop signs

were not at an angle that prevented drivers from seeing them. In addition,

although there was evidence the stop signs were after a curve, Kingsley did

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not establish that this placement prevented drivers from seeing the stop

signs.

         In addition, that PennDOT may have plans to change the signs at the

intersection does not change the outcome. At the time of the incident, stop

signs existed at the intersection, and Kingsley failed to stop.

         Further, the trial court did not err in concluding that because the roads

were state highways, and Kingsley failed to establish that the local

government controlled the area in question, PennDOT, and not the local

government, controlled the road. 75 Pa.C.S.A. § 6122(a) (governing

authority to erect traffic-control devices); 67 Pa.Code § 212.5 (governing

installation and maintenance of traffic control devices).

         In his next two claims, Kingsley maintains that the Commonwealth

failed to establish he had criminal intent to violate Section 3323 and it was a

de minimis infraction.

         To establish a person violated Section 3323, a summary offense, the

Commonwealth need not establish a defendant had a criminal intent to fail

to stop. See 75 Pa.C.S.A. §3323 (stating drivers “shall” stop at stop signs

and not including mens rea requirement); 18 Pa.C.S.A. § 305(a) (culpability

requirements in Section 301 and 302 inapplicable to summary offenses and

offenses defined by a statute other than the Crimes Code). Therefore, the

trial court did not err in failing to address whether Kingsley intended to

violate Section 3323.




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      Section 312 of the Crimes Code provides that the Commonwealth shall

dismiss a prosecution, “having regard to the nature of the conduct charged

to constitute an offense and the nature of the attendant circumstances,” if it

finds the conduct of the defendant:

         (1) was within a customary license or tolerance, neither
         expressly negatived by the person whose interest was
         infringed nor inconsistent with the purpose of the law
         defining the offense;

         (2) did not actually cause or threaten the harm or evil
         sought to be prevented by the law defining the offense or
         did so only to an extent too trivial to warrant the
         condemnation of conviction; or

         (3) presents such other extenuations that it cannot
         reasonably be regarded as envisaged by the General
         Assembly or other authority in forbidding the offense.

18 Pa.C.S.A. § 312(a). Here, as discussed above, the Commonwealth

established Kingsley did not stop at the stop signs, and the stop signs were

properly installed. This violation was not within a customary license or

tolerance of Section 3323. Further, the conduct threatened the harm sought

to be prevented, and there are no “other extenuations” to justify finding that

the offense was de minimis. Therefore, the court did not err in failing to

dismiss the case.

      Kingsley next claims that irregularities in the proceedings show the

trial court was prejudiced against him. The “irregularities” included that the

court allegedly failed to provide notice of a hearing to Kingsley, and,

although the trial court later re-instated the appeal, it initially dismissed it

when he failed to appear for the hearing. Kingsley has waived this claim


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because he did not raise it below. Pa.R.A.P. 302 (claims waived if not raised

before trial court). Further, although there was a significant delay between

the traffic stop and the ultimate resolution of the case, there is no indication

that the delay prejudiced Kingsley or violated his rights. Upon learning that

Kingsley had not received notice of the hearing, the trial court vacated the

order dismissing the appeal and re-scheduled the hearing. Kingsley was then

able to present testimony and evidence in support of his defense.

      Kingsley also claims that the punishment was disproportionate to the

crime, particularly where he had expenses for filing and witness fees,

research, transcripts, photocopying, and travel expenses. Kingsley waived

this claim by failing to raise it before the trial court. Pa.R.A.P. 302 (claims

waived if not raised before trial court). Further, the fine of $25.00 plus court

costs was not disproportionate to the violation and the other costs Kingsley

cites cannot properly be considered “punishment.”

      In his final claim, Kingsley argues that his right to privacy was

infringed when the trial court denied his motion to strike his date of birth

from the record. Even assuming, purely for argument’s sake, that Kingsley

had a right to privacy in his birthday date, that right is overcome by the

Commonwealth’s substantial need. Birthdates are on dockets to assist in

identifying the correct individual, and the trial court did not err in denying

the motion to strike it.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2018




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