J-S73024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HARRY YALETSKO

                            Appellant                 No. 607 MDA 2014


           Appeal from the Judgment of Sentence of March 12, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No.: CP-40-SA-0000032-2014


BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                          FILED DECEMBER 19, 2014

       Harry Yaletsko (“Appellant”) challenges the judgment of sentence

entered by the trial court following his appeal from a summary conviction

before a magisterial district judge. We affirm.

       On March 12, 2014, following a hearing, the trial court affirmed

Appellant’s summary conviction for a violation of 75 Pa.C.S. 3309(a)

(“Driving on roadways laned for traffic”). On the same day, the trial court

entered judgment of sentence.1 This timely appeal followed. The trial court

did not direct Appellant to file a concise statement of errors complained of



____________________________________________


1
      The sentence consisted of a citation. The amount of the penalty is not
readily apparent, but closer scrutiny is not required: Appellant challenges
only the verdict, not the levy.
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on appeal pursuant to Pa.R.A.P. 1925(b), but the court has furnished a brief

Rule 1925(a) opinion for our reference.

      As best we can glean from the record before us, Appellant was

overtaking a vehicle that had made a wrong turn and was starting and

stopping as it proceeded down the road, the driver searching for an

opportunity to turn around.     Appellant came upon the other vehicle and

attempted to pass on the left just as the other driver began to turn left, thus

blocking Appellant and resulting in a collision.

      Appellant raises the following issues:

      1.   Whether it is a viable legal defense for a driver to cross
      over into another lane of travel when faced with a sudden
      emergency?

      2.    Whether the court erred in concluding that the defense had
      not established [that] a sudden emergency existed[?]

Brief for Appellant at 4.

      Appellant’s first issue pertains to the “sudden emergency doctrine,”

which may provide a defense to a citation arising from driving behavior

arising when “a party . . . suddenly and unexpectedly finds him or herself

confronted with a perilous situation [that] permits little or no opportunity to

apprehend the situation and act accordingly.” Lockhart v. List, 665 A.2d

1176, 1180 (Pa. 1995). Although Appellant offers a modicum of argument

that “evidence” of the sudden emergency somehow was excluded, see Brief

for Appellant at 7-8, he directs us to nothing in the certified record to

support that premise, and the trial court’s account reflects not exclusion but


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rather that the principles underlying the doctrine were considered and

rejected.   If Appellant intends to maintain that any such evidence was

excluded, whatever it might have been, he must direct this Court to where in

the record he attempted to enter evidence that the court refused to accept,

and Appellant also must direct us to evidence that he properly objected to

such a ruling. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”);

Pa.R.A.P. 2117(c) (“Where under the applicable law an issue is not

reviewable on appeal unless raised or preserved below, the statement of the

case shall . . . specify [t]he method of raising them . . . [and t]he way in

which they were passed upon by the court.”); Pa.R.A.P. 2119(c) (“If

reference is made to the pleadings, evidence, charge, opinion or order, or

any other matter appearing in the record, the argument must set forth, in

immediate connection therewith, or in a footnote thereto, a reference to the

place in the record where the matter referred to appears.”).     Appellant’s

failure to do so provides us with no basis upon which to grant relief.

Accordingly this issue fails.

      In his second issue, Appellant turns to what we perceive to be the

main contention of his appeal—that the trial court entered a judgment at

odds with the weight of the evidence. See Brief for Appellant at 8 (“In the

present matter it is evident that Appellant was presented with a sudden

emergency, and did not deviate from the standard of conduct that a




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reasonable      person   would   employ   when   confronted   with   Appellant’s

situation.”).

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the
      verdict winner. An allegation that the verdict is against the
      weight of the evidence is addressed to the discretion of the trial
      court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. A trial judge must
      do more than reassess the credibility of the witnesses and allege
      that he would not have assented to the verdict if he were a
      juror. Trial judges, in reviewing a claim that the verdict is
      against the weight of the evidence do not sit as the thirteenth
      juror. Rather, the role of the trial judge is to determine that
      notwithstanding all the facts, certain facts are so clearly of
      greater weight that to ignore them or to give them equal weight
      with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations,

internal quotation marks, and footnote omitted). A weight of the evidence

claim is addressed to the trial court, and we review the trial court’s

consideration of the weight of the evidence only for an abuse of the trial

court’s discretion in ruling upon that issue. Commonwealth v. Rivera, 983

A.2d 1211, 1225 (Pa. 2009).

      Appellant’s entire argument on this point consists of one paragraph:

      [The other driver] admitted that he was lost and in search of an
      area in which he could turn his vehicle around. Additionally, [the
      other driver] was operating his vehicle in a stop and go manner,
      driving for about two hundred yards at a time and then
      slamming on his breaks [sic]. Furthermore, when Appellant got
      up to the crest of the hill in which he was traveling, [the other
      driver’s] vehicle was stopped in the middle of the road, brake


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         lights on, with no turning signal activated.       At that point
         Appellant was faced with three options: run off the road and into
         the trees, hit the back of [the stopped] vehicle, or try to go
         around [the] vehicle. Trying to go around [the] vehicle was the
         best option presented to Appellant, and it required him to travel
         in the opposite lane of traffic.

Brief for Appellant at 8-9.

         To this, the trial court responds:

         This Court noted that counsel for [Appellant] implied in his cross-
         examination of Jacobson, that he was driving erratically.
         Although that characterization was denied, the combined
         testimony of Jacobson and [Appellant] presents a driver who has
         made a wrong turn, [and who is] looking for a place to turn
         around, driving slowly, braking and then rolling for 200 yards.
         Following such a vehicle is not unknown to the average driver.
         Certainly attempting to pass such a vehicle without first giving
         notice by horn is taking a significant risk.        In so doing,
         [Appellant] created what he now calls a sudden emergency.

Trial Court Opinion at 2 (unnumbered).         In its two-page opinion, the trial

court reviewed this and other evidence, and specifically noted that it did not

find Appellant’s testimony credible.

         Appellant does not contest the evidentiary predicates to which the trial

court alluded, and our review of the record does not suggest that the trial

court’s account is inconsistent with the evidence presented at Appellant’s

trial.    We discern no more than Appellant’s disagreement with the trial

court’s weighing of the evidence, which is insufficient to warrant relief under

the circumstances of this case.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2014




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