J-A07003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

WILLIAM HENRY DEGOUNETTE,

                            Appellant               No. 749 WDA 2016


             Appeal from the Judgment of Sentence of April 7, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0013436-2015


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                            FILED MARCH 08, 2017

        Appellant, William Henry Degounette, appeals from the judgment of

sentence imposed on April 7, 2016 after the trial court convicted him of a

misdemeanor of the third degree for violating 18 Pa.C.S.A. § 5507,

obstructing highways. As the Commonwealth concedes the insufficiency of

the evidence introduced in support of Appellant’s conviction, we reverse the

conviction and vacate the judgment of sentence.

        On September 20, 2015, Appellant was charged with one count of

defiant trespass1 and one count of obstructing highways.2            The case

proceeded to a bench trial at which the Commonwealth stipulated to the
____________________________________________


1
    18 Pa.C.S.A. § 3503(b)(1)(i).
2
    18 Pa.C.S.A. § 5507(a).



*Retired Senior Judge assigned to the Superior Court.
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affidavit of probable cause and the testimony elicited at the preliminary

hearing which established as follows.

       Sergeant Stephen Matakovich of the Pittsburgh Police Department was

the only witness called by the Commonwealth. Sergeant Matakovich testified

that, on September 20, 2015, he was working as a plain-clothes officer at

Heinz Field for a Pittsburgh Steelers’ game. At approximately 11:00 a.m.,

Sergeant Matakovich received a report of a male on a bicycle stopping traffic

on the Reedsdale Street exit off-ramp from the Parkway North in order to

scalp tickets.    When Sergeant Matakovich arrived on the scene, Appellant

had left the exit ramp and was down the street away from the ramp. When

questioned by Sergeant Matakovich, Appellant was verbally confrontational.

Sergeant Matakovich advised Appellant at that time that he had been

warned on numerous occasions in the past that he was not permitted on the

Heinz Field property and that he was not permitted to stop traffic. 3

Appellant responded that he was still going to scalp tickets at which time he

was arrested and charged with the aforementioned crimes.

       The trial court found Appellant not guilty of defiant trespass but

convicted him of a third degree misdemeanor for obstructing highways. The

court proceeded to sentence Appellant to one year of probation. Appellant
____________________________________________


3
  Sergeant Matakovich testified that he personally warned Appellant about
his repeated behavior on May 30, 2015, June 6, 2015, June 20, 2015,
August 2, 2015, August 23, 2015, September 3, 2015, and September 5,
2015. N.T., 10/27/15, at 4.



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filed a timely post-sentence motion which was denied on April 25, 2016.

Appellant filed a timely notice of appeal raising one issue:           Did the

Commonwealth fail to present sufficient evidence to convict Appellant of

obstructing highways? 4

       A claim impugning the sufficiency of the evidence presents us with a

question of law. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

2000). Our standard of review is well-established:

       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 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. Estepp, 17 A.3d 939, 943–944 (Pa. Super. 2011),

citing Commonwealth v. Brooks, 7 A.3d 852, 856–857 (Pa. Super. 2010).

____________________________________________


4
 Appellant and the trial court complied with the requirements of Rule 1925
of the Pennsylvania Rules of Appellate Procedure.



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      The statute prohibiting the obstruction of a highway provides:

      § 5507. Obstructing highways and other public passages

      (a) Obstructing.—A person, who, having no legal privilege to
      do so, intentionally or recklessly obstructs any highway, railroad
      track or public utility right-of-way, sidewalk, navigable waters,
      other public passage, whether alone or with others, commits a
      summary offense, or, in case he persists after warning by a law
      officer, a misdemeanor of the third degree….

      (c) Definition.—As used in this section, the word “obstructs”
      means render impassable without unreasonable inconvenience
      or hazard.

18 Pa.C.S.A. §5507.     In finding Appellant guilty of this offense, the trial

court stated:

      The evidence presented was clearly sufficient to support the
      conviction for [o]bstructing [h]ighways. [Appellant] had stopped
      traffic on a highway off-ramp with his bicycle while soliciting
      each vehicle to scalp tickets to that day[’]s Steeler[s’] game.
      The fact that [Appellant] was found on the sidewalk matters not;
      [h]is stopping of traffic on a public highway off-ramp was
      sufficient to establish the elements of the crime of [o]bstructing
      [h]ighways.

Trial Court Opinion, 8/30/16, at 3. Appellant argues that the record fails to

establish that he obstructed the highway as there was no evidence that he

rendered the Reedsdale Street ramp impassable without unreasonable

inconvenience or hazard.    As support, Appellant cites Commonwealth v.

Battaglia, 725 A.2d 192 (Pa. Super. 1999) in which this Court determined

that the evidence did not support a finding that the defendant, who had

blown a “cloud”     of leaves onto     the   street, violated Section 5507.

Specifically, this Court concluded:


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     We cannot find proof appellant committed this offense. The only
     evidence offered was the abbreviated testimony of the officer,
     who saw automobiles travelling both ways “swerving
     dangerously” to avoid the leaves appellant and the other
     individual were blowing towards the street. This evidence,
     disputed by appellant, does not establish a violation of Section
     5507, which requires a finding appellant intentionally or
     recklessly rendered the roadway impassable.

     If cars swerved, there is no evidence they were forced to do so
     in order to pass. The record does not show how long the officer
     watched in order to see traffic in both directions swerve, nor is
     there testimony of the vantage point from which he estimated
     the danger. There is no testimony about the speed of the
     swerving cars, the nature of the roadway, or whether there were
     parked cars or pedestrians nearby.

     There is no evidence establishing the volume of leaves involved,
     except the testimony of appellant, who estimated there were
     about 30 to 40 gallons, enough to fill “a garbage bag”. If this
     made a cloud, it was a small cloud. While one need not compile
     a wall of leaves to violate the statute, the record here has no
     evidence of quantity sufficient to amount to an impassable
     obstruction.

     As a result, we are left with the officer's opinion the road was
     impassable without hazard, but without underlying facts
     sufficient to allow the finder of fact to reach the same
     conclusion, and appellant's conviction for obstructing highways
     cannot stand.

Id. at 194.   As in Battaglia, Appellant argues, and the Commonwealth

agrees, that the scant testimony offered by Sergeant Matakovich does not

support the conclusion that Appellant rendered the Reedsdale Street

off-ramp   impassable   without   unreasonable   inconvenience   or   hazard.

Although, Sergeant Matakovich testified that he saw Appellant earlier in the

day “up on the ramp”, N.T., 10/27/15, at 7, there was no testimony as to

where Appellant stood at that time and whether he caused the ramp to be

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impassable.     Moreover, the only testimony as to Appellant’s location when

he was on the exit ramp was that, “[h]e was on the side of the road, and he

was stopping the cars as they came down the ramp.”         Id. at 6.    As the

Commonwealth concedes,

       It is unclear how [A]ppellant actually rendered the roadway
       impassable, either recklessly or intentionally. Although it can be
       inferred that [A]ppellant was stationed on the ramp while trying
       to sell tickets, stopping traffic in the process and creating a
       situation where drivers would place themselves and/or others at
       risk by trying to navigate the ramp, the Commonwealth submits
       that this inference is questionable based upon the testimony of
       record.

Commonwealth’s Brief at 6. We agree. The evidentiary record in this case

is woefully inadequate in establishing that Appellant caused the exit ramp to

be impassable without unreasonable inconvenience or hazard.5           As such,

the evidence was insufficient to find Appellant guilty of violating Section

5507.6

____________________________________________


5
   In Battaglia, there was some testimony that vehicles swerved
“dangerously” in order to avoid the leaves that were blown onto the street.
Yet, this Court found that testimony insufficient to convict under Section
5507 since there was no evidence as to whether the road was impassable
without hazard.    Despite cars having to swerve in order to pass, we
concluded the evidence was insufficient where there was no proof
demonstrating the speed of the swerving cars, the nature of the roadway, or
the location of parked cars or pedestrians. Battaglia, 725 A.2d at 194.
Here, there is even less evidence. All that the record establishes is that
Appellant “was on the side of the road, and he was stopping cars as they
came down the ramp.” N.T., 10/27/15, at 6.
6
  As we find that the evidence was insufficient to convict Appellant of
obstructing the highway in violation of 18 Pa.C.S.A. § 5507, we need not
(Footnote Continued Next Page)


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      Conviction reversed.          Judgment of sentence vacated.   Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2017




                       _______________________
(Footnote Continued)

determine whether the trial court erred in finding Appellant guilty of a
misdemeanor of the third degree as opposed to a summary offense.



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