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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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 SMITH,                              :          No. 1980 WDA 2015
                                          :
                          Appellant       :


        Appeal from the Judgment of Sentence, November 13, 2015,
          in the Court of Common Pleas of Westmoreland County
              Criminal Division at No. CP-65-SA-0000230-2015


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED DECEMBER 21, 2016

       David Smith appeals the November 13, 2015 judgment of sentence of

the Court of Common Pleas of Westmoreland County that fined him $25 plus

costs for careless driving in violation of Section 3714(a) of the Vehicle Code,

75 Pa.C.S.A. § 3714(a).

       On April 10, 2015 at approximately 5:20 p.m., Pennsylvania State

Trooper Robert G. Karinchak (“Trooper Karinchak”) was operating a marked

unit   traveling   east    on   State   Route   30   in   Hempfield   Township.

Trooper Karinchak observed a backlog of about 20 or 25 vehicles. He moved

into the left lane and noticed appellant operating his bicycle in the center of

the right lane impeding traffic. (Notes of testimony, 11/13/15 at 7-10.)




* Retired Senior Judge assigned to the Superior Court.
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        As Trooper Karinchak passed, appellant:

             extended both arms up taking his hands off his
             handlebars and extended his middle finger on both
             hands as he’s driving down the highway.         As I
             passed, I observed that. And I got back into the
             right lane after I passed him and set myself up in
             order to make a traffic stop. He pulled over. I
             explained to him why I stopped him, and I released
             him to go. He left in front of me and continued down
             Route 30 continuing the same behavior as he was
             before. He did the same motion with his hands
             again.

Id. at 10. Trooper Karinchak issued a traffic citation for careless driving.1

(Id.)

        Appellant was found guilty of careless driving by the magisterial

district judge. He appealed to the trial court. The trial court held a de novo

hearing on November 13, 2015. Trooper Karinchak testified regarding the

events of April 10, 2015.     Trooper Karinchak explained the basis for the

citation:

                   I filed the charge of careless driving because
             as he’s operating on a heavily traveled highway,
             divided highway one of the busiest highways in
             Westmoreland County at a busy time when
             there’s [sic] lots of people on the highway, he
             removed his hands from the handle bars, which is his
             mechanism to steer his vehicle.

                  Also, . . . he removed    his hands from the
             handlebars and extended        them however to
             communicate, whatever he       was attempting to
             communicate and at that        time, he had no

1
  Trooper Karinchak issued a second citation for which appellant was found
not guilty before the magisterial district judge. That citation is not before
this court.


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             mechanism to stop the vehicle nor did he have any
             mechanism to steer the vehicle.

                   In my estimation, that’s careless driving. He
             can’t stop his vehicle nor can he take evasive action
             if there is any kind of hazard. He’s endangering
             himself and/or other people on the highway which is
             a definition of careless driving.

Id. at 11.

      Appellant testified that he could steer a bicycle without placing his

hands on the handlebars by “leaning, placing pressure on the left pedal or

the right pedal or by using your knees, your thighs to lean to the left or the

right with the top of the bike to make it lean left or right.”           (Id. at 22.)

Appellant explained that the road ahead of him was in good condition when

he pulled his hands off the bike. (Id. at 23-24.) He further explained the

reason for his action:

             To give the finger to Trooper Karinchak because he
             had been leering at me. He had been gawking at
             me.    He had been following me over my left
             shoulder, and he was not driving at a normal
             improving speed but he was creating a hazard by his
             gawking at me, and I felt that I was going to be
             again cited for some misinterpretation that he has
             about where I can ride on the road.

Id. at 24.

      The trial court found appellant guilty of careless driving “based on

testimony    taken   and   the   finding   of   credibility   of   the   prosecuting

Pennsylvania State Police trooper.” (Trial court order, 2/11/16 at 1.)




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      Appellant contends that the evidence was insufficient to sustain a

conviction for careless driving.

            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
                  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).

      Appellant asserts that Trooper Karinchak’s testimony failed to establish

that appellant committed careless driving because Trooper Karinchak did not

testify that there would be a probability of an accident but only that there

was a possibility of an accident if there were any hazards on the roadway.


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Appellant argues that such a remote connection made by someone who is

not an expert is not sufficient to convict him of careless driving.        He also

asserts that Trooper Karinchak violated his right to free speech under the

First Amendment of the United States Constitution when he cited him for

making the obscene gesture when his hands were not on the handlebars.

      Section 3714(a) of the Vehicle Code, 75 Pa.C.S.A. § 3714(a), provides

that “[a]ny person who drives a vehicle in careless disregard for the safety

of persons or property is guilty of careless driving, a summary offense.”2

This court has defined “careless disregard” as less than willful or wanton

conduct but more than ordinary negligence.             See Commonwealth v.

Gezovich, 7 A.3d 300, 301 (Pa.Super. 2010).

      Here, Trooper Karinchak credibly3 testified that appellant was riding

his bicycle on a four to six-lane road, depending on the exact location, with

20 to 25 cars behind him. He further credibly testified that appellant took

his hands off the handlebars so that he had no means of steering or braking

until he put his hands back on the handlebars. The trial court did not find

credible appellant’s testimony that he could effectively steer by leaning and

using his legs and feet.    This court is satisfied that the trial court did not


2
 Appellant does not challenge that his bicycle constitutes a vehicle under
Section 3714 of the Vehicle Code.
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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commit an error of law when it determined that appellant was guilty of

careless driving.4

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/21/2016




4
  With respect to the constitutional argument, this court finds no merit.
Appellant was not cited for careless driving because he made an obscene
gesture to Trooper Karinchak. Rather, he was cited because he took his
hands off the handlebars so he could not steer or brake quickly. While he
took his hands off the handlebars to make the gesture, the gesture was not
the basis of the citation.


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