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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                       :
DAVID JARROLD SMITH,                   :          No. 512 WDA 2015
                                       :
                       Appellant       :


        Appeal from the Judgment of Sentence, February 18, 2015,
          in the Court of Common Pleas of Westmoreland County
              Criminal Division at No. CP-65-SA-0000456-2014


COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  v.                   :
                                       :
DAVID JARROLD SMITH,                   :          No. 513 WDA 2015
                                       :
                       Appellant       :


        Appeal from the Judgment of Sentence, February 18, 2015,
          in the Court of Common Pleas of Westmoreland County
              Criminal Division at No. CP-65-SA-0000186-2014



BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 15, 2016

     David Jarrold Smith appeals the February 18, 2015 judgment of

sentence of the Court of Common Pleas of Westmoreland County that fined

him a total of $75 plus costs for two violations of Section 3364(b)(2) of the
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Vehicle    Code,   75     Pa.C.S.A.    §    3364(b)(2),     and     one     violation    of

Section 3301(c)(1) of the Vehicle Code, 75 Pa.C.S.A. § 3301(c)(1).

      On December 24, 2013, at approximately 6:00 p.m., Pennsylvania

State Trooper Corey Beam (“Trooper Beam”) was on patrol on Brinkerton

Road in Hempfield Township.           At approximately 6:10 p.m., Trooper Beam

observed three cars ahead of him as traffic was backed up on Brinkerton

Road heading south because appellant was ahead of the vehicles on a

bicycle. Appellant was traveling below the posted speed limit of 35 miles per

hour. Appellant turned onto Smartnick Road as did Trooper Beam. The cars

that had been traveling between appellant’s bicycle and Trooper Beam

remained on Brinkerton.            (Notes of testimony, 2/18/15 at 32-34.)

Trooper Beam followed appellant for approximately one mile until appellant

came to a “complete stop in the middle of the road on the crest of the hill,

as I’m behind him, and put his feet down as to, I don’t know, take a break I

guess.”    (Id. at 35.)     Trooper Beam activated his lights, got out of his

vehicle, and directed appellant            to   move   to   the   side    of the    road.

Trooper Beam cited appellant for operating a vehicle at a speed so slow as to

impede the normal flow of traffic. (Id. at 36-37.)

      On    May    13,     2014,      Pennsylvania     State      Trooper    Chet       Bell

(“Trooper Bell”) was on routine patrol on Donohoe Road in Hempfield

Township when he observed appellant “traveling on his pedal cycle in the

right lane from the fog line towards the double yellow line back and forth not



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allowing for safe passing.”      (Id. at 9.)   Appellant continued operating his

bicycle in this manner for approximately one mile until approximately five to

ten vehicles were behind him. (Id. at 10.) Appellant received two citations:

one for failing to drive in the right lane when traveling less than normal

speed and one for operating a vehicle at a speed so slow as to impede the

flow of traffic. (Id. at 14.)

      Appellant was found guilty of the citations by two magisterial district

judges.   He appealed to the trial court.        The appeals were consolidated

before the trial court.         The trial court held a de novo hearing on

February 18, 2015. Trooper Beam and Trooper Bell testified regarding the

events of December 24, 2013, and May 13, 2014, respectively.

      Appellant testified that on May 13, 2014:

            I was riding my bicycle from Twin Lakes onto
            Donohoe Road going as fast as I could. It was within
            the law. I was riding in the road. The roadway is a
            tar and gravel surface and there was an
            accumulation of loose gravel near the right edge of
            the road and also in the center between the two tire
            tracks. There’s also glass and debris as I would --
            wherever I would see it, and I traveled at all times in
            the right-hand lane, in accordance with Chapter 35,
            and I notice that I wasn’t being passed and that the
            roadway had opened up. It was clear for a vehicle to
            pass, in accordance with the rules on passing, but
            the vehicle was simply following me. . . .

Id. at 50-51.

      With respect to the December 24, 2013, incident, appellant testified:

            [T]here had been a snow squall in the area that left
            dry blowing snow and freezing drainage along the


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          roadway, especially Smartnick Road. As I turned on
          to Smartnick Road, I heard a vehicle behind me at a
          distance that was greater than someone that was
          following me, but someone that was not even in
          proximity to me, and this continued for over a mile.
          At one point I rode by a church on the right, which
          has a drainage gutter right next to the roadway from
          the roof of the church. It collects melted snow,
          which was refreezing on the roadway. At that point I
          naturally moved to the left of the ice, which was
          refreezing on the road. That location is dangerous
          like that and treacherous every winter.

          I then -- the road curves left and it goes up a knob
          and there’s no visibility beyond that. At that point I
          did ride in the center of the lane. And I believe at
          this point, where passing would have been unlawful
          and illegal and unsafe, [Officer Beam] did approach
          me to a closer proximity. A few seconds later I had
          crested the hill and again [Officer Beam] could have
          passed. I made it -- gave way to the right and he
          continued to followed [sic]. Being Christmas Eve
          after dark, I began to be concerned about my
          personal safety as to what the intentions were of this
          vehicle that is following me and not passing, after
          numerous efforts that I gave for them to go.

          Well, when I reached the crest of the hill where there
          was visibility for a mile in both directions, I decided
          that I am going to stop and make a U-turn and make
          this vehicle go. Well, the reason for that is because
          at the top of the hill I would be going down at a high
          rate of speed and could possibly have to maneuver
          or brake to avoid road hazards. Also, there’s a field
          where deer -- almost every night I would see a herd
          of deer and these animals would cross right in front
          of me and it’s a place where you don’t want to be
          going fast. You don’t want to get rear-ended. I
          didn’t know what this driver following me, what their
          intentions were, and I decided to take reasonable
          efforts so as not to impeded [sic] the normal
          movement of traffic, so it wasn’t normal traffic, was
          it?



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            So I stopped and I signaled hands down and I
            signaled to make a . . . move, and then he activated
            his lights and then at that time I became aware that
            it was a state trooper and I followed his
            instructions. . . .

Id. at 52-55.

      The trial court found appellant guilty of the three summary offenses

“based upon the testimony taken and the credibility of the prosecuting

Pennsylvania State Police officer.” (Trial court opinion, 5/12/15 at 1.)

      Appellant raises the following issues for this court’s review:

            Whether the evidence was insufficient to sustain the
            conviction of Title 75 [Pa.C.S.A.] §3364 . . . (b)(2),
            Driving On Right side of Roadway on 5/13/2014[?]

            Whether the evidence was insufficient to sustain the
            conviction of Title 75 [Pa.C.S.A.] § 3364 . . .(b)(2),
            Driving on Right side of Roadway on 12/24/2013[?]

            Whether the evidence was insufficient to sustain the
            conviction of Title 75 [Pa.C.S.A.] § 3301 . . .(c)(1),
            Driving On Right side of Roadway on 5/13/2014[?]
            (Italics omitted).

Appellant’s brief at 6.1

            A claim challenging the sufficiency of the evidence is
            a question of law. Commonwealth v. Widmer,
            560 Pa. 308, 319, 744 A.2d 745, 751 (2000). In
            that case, our Supreme Court set forth the
            sufficiency of the evidence standard:

                   Evidence will be deemed sufficient to
                   support the verdict when it establishes
                   each material element of the crime

1
  The convictions were appealed to this court under two separate docket
numbers. The appeals were consolidated on May 1, 2015, by per curiam
order of this court.


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                     charged and the commission thereof by
                     the accused, beyond a reasonable doubt.
                     Commonwealth v. Karkaria, 533 Pa.
                     412, 625 A.2d 1167 (1993). Where the
                     evidence offered to support the verdict is
                     in contradiction to the physical facts, in
                     contravention to human experience and
                     the laws of nature, then the evidence is
                     insufficient as a matter of law.
                     Commonwealth v. Santana, 460 Pa.
                     482, 333 A.2d 876 (1975).           When
                     reviewing a sufficiency claim the court is
                     required to view the evidence in the light
                     most favorable to the verdict winner
                     giving the prosecution the benefit of all
                     reasonable inferences to be drawn from
                     the evidence.       Commonwealth v.
                     Chambers, 528 Pa. 558, 599 A.2d 630
                     (1991).

              Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

        With respect to the December 24, 2013 citation,2 appellant asserts

that there was no testimony that he was not operating his bicycle at a safe

and reasonable speed. He also argues that there was no evidence that he

failed to use reasonable efforts so as not to impede the flow of traffic.

        Section 3364(b)(2) of the Vehicle Code, 75 Pa.C.S.A. § 3364(b)(2),

provides:

              § 3364 Minimum speed regulation

              ....

              (b)    Slow  moving       vehicle    to    drive    off
                     roadway.--

2
    This court has foregone the sequence of appellant’s arguments.


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                    ....

                    (2)    A pedalcycle may be operated at a
                           safe   and     reasonable   speed
                           appropriate for the pedalcycle. A
                           pedalcycle operator shall use
                           reasonable efforts so as not to
                           impede the normal and reasonable
                           movement of traffic.

      In order to sustain a conviction under 75 Pa.C.S.A. § 3364(b)(2), the

Commonwealth must establish either that the bicycle or pedalcycle was not

operated at a safe and reasonable speed appropriate for that pedalcycle or

that the pedalcycle operator failed to use reasonable efforts so as not to

impede the normal and reasonable movement of traffic.

      Trooper Beam credibly3 testified that appellant stopped in the middle

of the road on the crest of a hill and that his action forced Trooper Beam to

stop his vehicle.     (Notes of testimony, 2/18/15 at 35.)         Trooper Beam

testified that he cited appellant “[b]ecause he impeded traffic by coming to a

complete stop in the middle of the road.” (Id. at 38.)

      At the time appellant stopped in the middle of the road, the only other

vehicle on the roadway was Trooper Beam.           However, it stands to reason

that stopping a bicycle in the middle of a two-lane road at the crest of a hill

impeded traffic in the form of Trooper Beam. Also, before appellant turned,



3
  Regarding issues of credibility, it is not this court’s function to substitute its
judgment for that of the trial court. Issues of credibility are the province of
the finder-of-fact.    Commonwealth v. Zugay, 745 A.2d 639, 645
(Pa.Super. 1990). In this case, the finder-of-fact was the trial court.


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he had traffic backed up behind him. Appellant admitted that he stopped in

the middle of the road. While appellant testified that he stopped because he

was concerned that a vehicle was following him, he would have had to avoid

road hazards, and he possibly would have had to avoid deer crossing the

roadway, the trial court did not find him credible.

      With respect to the May 13, 2014 citations, appellant raises the same

argument concerning Section 3364(b)(2).           Trooper Bell testified that

appellant was on his bicycle and was weaving back and forth within the right

lane for approximately one mile while he was traveling at a rate that was

less than the speed limit. Trooper Bell testified that because of the weaving,

it was not safe for other vehicles behind him, of which there were five to ten,

to safely pass.   (Notes of testimony, 2/18/15 at 10-11.)      The trial court

found Trooper Bell credible. While appellant testified that he was forced to

move within the lane because of an accumulation of loose gravel, glass, and

debris on the roadway, the trial court did not credit this testimony. Given

that a bicyclist must not impede traffic under Section 3364(b)(2), the

weaving within the lane which prevented faster moving automobiles from

passing him did impede the flow of traffic.

      With respect to the violation of Section 3301(c)(1), appellant argues

that on a two-lane road with vehicles traveling in one lane in each direction,

a pedalcycle can travel and have full use of the right-hand lane but need not




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travel as close to the shoulder as possible in order to allow motor vehicles to

squeeze by in the same or partially in the same lane as the pedalcycle.

      Section 3301(c)(1) of the Vehicle Code, 75 Pa.C.S.A. § 3301(c)

provides:

            § 3301 Driving on right side of roadway

            (c)   Pedalcycles.--

                  (1)   Upon all roadways, any pedalcycle
                        operating in accordance with Chapter 35,
                        proceeding at less than the normal speed
                        of traffic at the time and place and under
                        the conditions then existing shall be
                        driven in the right-hand lane then
                        available for traffic, or as close as
                        practicable to the right-hand curb or
                        edge of the roadway, except when
                        overtaking and passing another vehicle
                        proceeding in the same direction or when
                        preparing for a left turn at an
                        intersection or into an alley, private road
                        or driveway.

                  (2)   This subsection does not apply to:

                        (i)    A    pedalcycle    using   any
                               portion   of    an    available
                               roadway     due    to    unsafe
                               surface conditions.

                        (ii)   A pedalcycle using a roadway
                               that has a width of not more
                               than one lane of traffic in
                               each direction.

      On cross-examination, Trooper Bell testified that appellant was

operating his pedalcycle or bicycle in the right-hand lane of a two-lane road.

(Notes of testimony, 2/18/15 at 21.)


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      Given that Section 3301(c)(2)(ii) states that Subsection (c)(1) does

not apply when the pedalcycle is using a roadway that has a width of not

more than one lane of traffic in each direction and Trooper Bell testified that

he stopped appellant on a two-lane road with one lane of traffic in each

direction, we agree with appellant that the trial court erred when it found

him guilty of Section 3301(c)(1) as that section did not apply to appellant.

      Judgment    of   sentence   affirmed   as   to   the   two   citations   for

Section 3364(b)(2).    Judgment of sentence reversed as to the citation for

Section 3301(c)(1). Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date:4/15/2016




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