J-A03029-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    NICHOLAS RYAN LAMPHERE

                             Appellant                 No. 558 MDA 2019


              Appeal from the Judgment of Sentence March 6, 2019
               In the Court of Common Pleas of Lancaster County
                Criminal Division at No: CP-36-SA-0000313-2018

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY STABILE, J.:                     FILED: APRIL 6, 2020

        Appellant, Nicholas Ryan Lamphere, appeals from his judgment of

sentence of $25.00 plus court costs for driving at an unsafe speed.1 Appellant

raises challenges to the sufficiency of the evidence and weight of the evidence.

We affirm.

        The trial court accurately summarized the factual and procedural history

as follows:

        On May 9, 2018, a vehicle crash occurred at the intersection of
        West Swartzville Road and North Reading Road in East Cocalico
        Township. Prior to the crash, Thomas Rupp was driving his Ford
        F-350 down Swartzville Road when [Appellant], driving a
        motorcycle, pulled out in front of him very quickly. Mr. Rupp was
        forced to slam on his brakes to prevent a crash. [Appellant] sped
        down the road in the same direction Mr. Rupp had been travelling.
        Angry, Mr. Rupp sped after [Appellant] “hoping [to] catch him at
        the light” and “give [him] a piece of [his] mind.” Although the
        speed limit on Swartzville Road is 40 miles per hour[,] and despite
____________________________________________


1   75 Pa.C.S.A. § 3361.
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      traveling at 50 miles per hour, Mr. Rupp was unable to catch up
      with [Appellant] and in fact fell further and further behind. Mr.
      Rupp saw [Appellant] crest the hill just before the intersection
      with North Reading Road and then lost sight of him.

      Kristy Hernandez was driving the opposite direction on Swartzville
      Road and moved into the turning lane to turn left at the
      intersection with North Reading Road. On the other side of the
      intersection, there is a slight hill that levels out before the light.
      Mrs. Hernandez waited in the intersection for several oncoming
      cars to pass. As the light turned yellow, Mrs. Hernandez checked
      to ensure the roadway, including the hill, was clear before turning
      left. The road was clear and nothing obstructed her view. After
      she began her turn, [Appellant] crested the hill, sped toward the
      intersection, and crashed into the rear passenger side of Mrs.
      Hernandez’s vehicle.      Police were called to the scene and
      emergency medical personnel attended to [Appellant]. After
      speaking with three witnesses, Officer Steven Walsh of the East
      Cocalico Township Police Department issued a citation to
      [Appellant] for Driving at Safe Speed.

      A hearing was held in front of Magisterial District Judge Nancy
      Hamill who found [Appellant] guilty of the offense. [Appellant]
      subsequently filed a summary appeal and following a hearing on
      the same, confirmed Judge Hamill’s decision. [Appellant]
      thereafter filed a timely appeal of my decision.

Trial Court Opinion, 6/27/19, at 1-2 (citations omitted). Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following issues in this appeal:

      A. DID THE LOWER COURT ERR IN FINDING [APPELLANT] GUILTY
      OF 75 PA.C.S.A. § 3361, DRIVING VEHICLE AT SAFE SPEED,
      WHERE THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW
      TO ESTABLISH BEYOND A REASONABLE DOUBT THAT [HE]
      OPERATED HIS VEHICLE AT A SPEED GREATER THAN WAS
      REASONABLE AND PRUDENT UNDER THE CONDITIONS AT WEST
      SWARTZVILLE ROAD AT NORTH READING ROAD, AS ALLEGED IN
      THE CITATION, WHERE THE ONLY EVIDENCE CONCERNING [HIS]
      SPEED AT THAT LOCATION ESTABLISHED THAT [HE] WAS
      DRIVING CAREFULLY, AT “NORMAL SPEED,” AND THE OPPOSING
      VEHICLE TURNED ACROSS [HIS] TRAVEL LANE?

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      B ALTERNATIVELY, DID THE LOWER COURT ABUSE ITS
      DISCRETION IN REVIEWING THE WEIGHT OF THE EVIDENCE BY
      RENDERING    CONCLUSIONS    THAT   WERE    MANIFESTLY
      UNREASONABLE, NOT SUPPORTED BY COMPETENT EVIDENCE
      AND RESULTED IN A VERDICT THAT SHOCKS ONE’S SENSE OF
      JUSTICE?

Appellant’s Brief at 5.

      Appellant first challenges the sufficiency of the evidence underlying his

conviction for driving at an unsafe speed. In reviewing the sufficiency of the

evidence, we must determine whether the evidence admitted at trial and all

reasonable inferences drawn therefrom, viewed in the light most favorable to

the Commonwealth as verdict winner, were sufficient to prove every element

of the offense beyond a reasonable doubt. Commonwealth v. Diamond, 83

A.3d 119, 126 (Pa. 2013). “[T]he facts and circumstances established by the

Commonwealth      need    not   preclude   every   possibility   of   innocence.”

Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–26 (Pa. Super. 2016).

It is within the province of the fact-finder to determine the weight to be

accorded to each witness’s testimony and to believe all, part, or none of the

evidence. Commonwealth v. Tejada, 107 A.3d 788, 792–93 (Pa. Super.

2015). The Commonwealth may sustain its burden of proving every element

of the crime by means of wholly circumstantial evidence. Commonwealth

v. Crosley, 180 A.3d 761, 767 (Pa. Super. 2018). As an appellate court, we

may not re-weigh the evidence and substitute our judgment for that of the




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fact-finder.   Commonwealth v. Rogal, 120 A.3d 994, 1001 (Pa. Super.

2015).

      The Vehicle Code prescribes:

      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 a
      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.

75 Pa.C.S.A. § 3361 (emphasis added). It is well-settled that

      drivers owe each other a duty to drive carefully, and the “assured
      clear distance rule,” based upon 75 Pa.C.S.A. § 3361, requires a
      driver to be able to stop safely within the distance the driver can
      clearly see. Levey v. DeNardo, 725 A.2d 733, 735 ([Pa.] 1999)
      (“[T]he assured clear distance ahead rule ... requires a driver to
      control the speed of his or her vehicle so that he or she will be
      able to stop within the distance of whatever may reasonably be
      expected to be within the driver's path”).

Davis v. Wright, 156 A.3d 1261, 1271 (Pa. Super. 2017).

      Viewed in the light most favorable to the Commonwealth, the evidence

demonstrates that Rupp was driving behind Appellant at fifty miles per hour,

ten miles per hour over the speed limit, yet he fell further and further behind

Appellant. Rupp last saw Appellant as Appellant’s motorcycle crested the hill

and continued toward the intersection.     Officer Walsh of the East Cocalico

Police Department testified that the distance from the crest of the hill to the


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intersection was 200 to 250 feet. At the intersection, Hernandez checked that

the roadway, including the hill approaching the intersection, was clear before

turning left. Despite Hernandez’s precautions, Appellant crashed into the rear

of her vehicle, causing substantial vehicle damage.

         This evidence demonstrates a clear violation of Section 3361. Rupp’s

testimony establishes that Appellant was driving well above the speed limited

as he crested the hill. Hernandez’s testimony establishes that the oncoming

lane (Appellant’s lane of travel) was clear when she began her turn at the

intersection. Despite Hernandez’s precautions, Appellant’s motorcycle struck

her vehicle, causing substantial vehicle damage. This evidence shows that

Appellant was not “able to stop safely within the distance [he could] clearly

see” when he crested the hill and approached the intersection. Davis, 156

A.3d at 1271.       Under Section 3361, he was not driving at a “safe and

appropriate speed when approaching . . . [the] intersection.” Id.

         Accordingly, Appellant’s challenge to the sufficiency of the evidence

fails.

         Appellant also contends that the verdict is against the weight of the

evidence. We disagree.

         Preliminarily, we address whether Appellant preserved his weight claim

for appeal. Pa. R.Crim.P. 607(A) provides that a claim a verdict was against

the weight of the evidence shall be raised a) orally, on the record, at any time

before sentencing, b) by a written motion at any time before sentencing, or


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c) in a post-sentence motion. However, Pa.R.Crim.P. 720(D) provides that

there shall be no post-sentence motions in summary case appeals following a

trial de novo in the court of common pleas. The imposition of sentence

immediately following a guilt determination at the conclusion of the trial de

novo constitutes a final order for purposes of appeal. Id. Here, Appellant had

no opportunity to challenge the weight of the evidence prior to or during

sentencing, because at the conclusion of trial, the court announced the

verdict, immediately imposed sentence, and adjourned the proceedings. N.T.,

3/6/19, at 67 (“I've come to the conclusion that based on the circumstances

then and there existing that the defendant has been proven guilty beyond a

reasonable doubt for a violation of the unsafe speed statute, and the fine is

$25. Fine plus costs. Thank you”). Appellant challenged the weight of the

evidence in his concise statement of matters complained of on appeal, the first

opportunity he had to raise this challenge.        The trial court proceeded to

address this weight claim in its 1925(a) opinion, thus providing this Court a

basis for appellate review. Under these circumstances, principles of

fundamental fairness and equal administration of justice demand that

Appellant, like similarly situated litigants in other criminal cases, be treated in

the same fashion and be afforded an opportunity to raise a weight claim before

the trial court. See In re J.B., 106 A.3d 76 (Pa. 2014)(appellant did not

waive his weight claim in juvenile court proceedings where juvenile rules were

utterly silent as to how the claim must be presented to a juvenile court and


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the weight claim was raised in appellant’s Pa.R.A.P. 1925(b) statement). It

would be unjust to deprive appellant of the right to raise his weight claim

following conviction at a trial de novo for summary offense on grounds he

failed to file a motion he was not entitled to file.         Commonwealth v.

Dougherty, 679 A.2d 779 (Pa. Super. 1996). Accordingly, we conclude that

Appellant preserved his objection to the weight of the evidence.

     Our Supreme Court has instructed:

     An appellate court’s standard of review when presented with a
     weight of the evidence claim is distinct from the standard of review
     applied by the trial court:

        Appellate review of a weight claim is a review of the exercise
        of discretion, not of the underlying question of whether the
        verdict is against the weight of the evidence. Because the
        trial judge has had the opportunity to hear and see the
        evidence presented, an appellate court will give the gravest
        consideration to the findings and reasons advanced by the
        trial judge when reviewing a trial court’s determination that
        the verdict is against the weight of the evidence. One of the
        least assailable reasons for granting or denying a new trial
        is the lower court’s conviction that the verdict was or was
        not against the weight of the evidence and that a new trial
        should be granted in the interest of justice.

Commonwealth       v.   Clay,   64   A.3d     1049,   1055   (Pa.   2013)   (citing

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)).

     The trial court stated in its opinion:

     Here, the verdict does not shock any sense of justice. Testimony
     from two civilian witnesses corroborate that [Appellant] was
     driving faster than was safe on West Swartzville Road. Based on
     Mr. Rupp’s testimony, shortly before the accident [Appellant] was
     driving over 50 miles per hour, 10 miles per hour over the speed
     limit. Mrs. Hernandez checked for a clear road before making her
     turn, and the severe damage to her vehicle supports the finding

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      that [Appellant] was driving at an unsafe speed. The only
      evidence presented in support of [Appellant]’s claim was that of
      Mr. DiMatteo, who did not have a clear view of the road before
      witnessing the crash. Based on this, and all other evidence
      presented at trial, my finding that [Appellant] was not driving at
      a safe speed is reasonable and does not shock any sense of justice
      such that the verdict should be overturned.

Trial Court Opinion, 6/27/19, at 5.

      Having considered the trial court’s findings and reasoning, we conclude

that it acted within its discretion by rejecting Appellant’s challenge to the

weight of the evidence. Appellant’s second issue fails.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/06/2020




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