J-S47009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BRYAN E. COEN,

                            Appellant                 No. 91 MDA 2015


      Appeal from the Judgment of Sentence entered December 19, 2014,
               in the Court of Common Pleas of Franklin County,
             Criminal Division, at No(s): CP-28-SA-0000209-2014


BEFORE: ALLEN, OTT and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                               FILED JULY 24, 2015

        Bryan E. Coen (“Appellant”) appeals from the judgment of sentence

imposed after his non-jury trial conviction for driving at an unsafe speed for

road conditions.1 We affirm.

        The trial court summarized the procedural posture as follows:

              The instant matter arises out of a car crash that occurred
        on January 5, 2014. On June 19, 2014, a Citation was filed
        against [Appellant] alleging a violation of 75 Pa.C.S. § 3361,
        Driving Vehicle at Safe Speed.       On September 17, 2014,
        [Appellant] was found guilty of violating 75 Pa.C.S. § 3361 by
        the Hon. Todd R. Williams, Magisterial District Court Judge.
        [Appellant] filed a Notice of Summary Appeal on October 21,
        2014.   On November 18, 2014, the Commonwealth filed a
        Motion to Continue hearing in the matter. This Court granted
        said Motion on the same date and scheduled the matter for
        hearing on December 19, 2014.
____________________________________________


1
    75 Pa.C.S.A. § 3361.


*Retired Senior Judge assigned to Superior Court.
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Trial Court Opinion, 2/25/15, at 2 (footnote omitted).

      The trial court additionally detailed the testimony adduced at the

December 19, 2014 hearing:

             The    Commonwealth     presented    the    testimony    of
      Pennsylvania State Police Trooper George A. Durst, as well as
      expert testimony related to accident reconstruction performed by
      Corporal Eric Campbell of the Pennsylvania State Police. The
      incident in this matter occurred shortly after 3:00 p.m. on
      January 5, 2014, on the south-bound side of Interstate 81 (I-
      81). Tr. at 4 - 5. At the time of the incident, the roads were
      slick and icy, the sky was an overcast with ice/freezing rain. Tr.
      at 5 - 6.      Furthermore, Trooper Durst testified that these
      conditions began in the morning hours of January 5, 2014. Tr.
      at 8.      Trooper Durst testified that while driving an[d]
      approaching the scene of the incident, he “could tell through
      braking, and normal driving acceleration from different points of
      stopping or slowing that the tires would spin.” Tr. at 7 - 8.
      Because of the conditions of the road, Trooper Durst drove in a
      prudent manner and below the speed limit. Tr. at 8, 20.

            On Corporal Campbell's approach to the incident site, he
      noticed that the roads were “icy. Not just a little bit. I mean,
      they were really icy.” Tr. at 27. Additionally, Corporal Campbell
      noted that he had seen six or seven cars that had slid off the
      road or were stuck because of the road conditions. Tr. at 27.
      The road conditions were so treacherous; Corporal Campbell
      drove approximately 20 - 25 miles per hour even though when
      the speed limit was 65 miles per hour. Tr. at 27.

            Trooper Durst testified that he interviewed [Appellant] at
      the hospital; [Appellant] stated that as he was driving, a vehicle
      pulled in front of him, which caused him to slow down suddenly
      and cross into the median. Tr. at 10. At this point [Appellant’s]
      vehicle rolled over. Tr. at 11. Corporal Campbell's expert
      testimony on the matter corroborated [Appellant’s] version of
      the vehicle’s crash trajectory. See Tr. at 30 - 32.

            Corporal Campbell further testified that he came to a
      conclusion about [Appellant’s] true speed through the aid of a
      Computer Aided Drafting Program. Tr. at 47. From a yaw point
      of view, [Appellant’s] true speed was calculated at 54.54 miles


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      per hour. Tr. at 47. Additionally, Corporal Campbell testified
      that this was on the low end of the calculation. Tr. at 49.
      Furthermore, Corporal Campbell did a secondary calculation
      where he analyzed the rotational spin, positioning the vehicle
      along the yaw marks, taking certain distances, measuring the
      angle the vehicle was facing away from its path of travel, and
      analyzed the speed using a subjectively estimated impact speed
      to get a speed between 60.56 miles an hour and 65.66 miles per
      hour to correlate with the yaw speed. Tr. at 47 - 48; see also
      Tr. at 42 - 46.

            Corporal Campbell testified that he performed an
      inspection of [Appellant’s] vehicle after the crash and found
      “nothing that would indicate a defect in the vehicle” and that
      “absent any damage that would have been considered impact-
      related, there was no mechanical defect that would have
      attributed to this crash.” Tr. at 45.

Trial Court Opinion, 2/25/15, at 4-6.

      The trial court explained:

      [] At the close of the evidence, the [trial c]ourt found [Appellant]
      guilty as charged and imposed the sentence as imposed by the
      Magisterial District Judge. On January 2, 2015, [Appellant] filed
      a Notice of Appeal and a Motion for Transcription and Filing of
      Trial Transcript. On January 6, 2015, the Court entered an
      Order directing [Appellant] to file a statement of matters
      complained of on appeal pursuant to Pa.R.A.P. 1925(b)(2). On
      January 12, 2015, the Court entered an Order denying
      [Appellant’s] Motion for Transcription and Filing of Trial
      Transcript as moot and directed [Appellant] to comply with
      Pa.R.A.P. 1911. [Appellant] timely filed a Concise Statement of
      the Matters Complained of on Appeal. On February 17, 2015, a
      Transcript was lodged and subsequently filed on February 22,
      2015.

Trial Court Opinion, 2/25/15, at 2-3.      The trial court issued its opinion

pursuant to Pa.R.A.P. 1925 on February 25, 2015.

      Appellant presents a single issue on appeal:



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      1. Whether the evidence was sufficient to convict the Appellant
         of driving at an unsafe speed for conditions, 75 Pa.C.S.A.
         Section 3361, when the Appellant was traveling at or lower
         than the speed limit, no evidence exists of the road conditions
         at the actual time of the accident, and the Appellant was
         forced to take evasive action due to an emergent situation
         caused by another vehicle?

Appellant’s Brief at 5.

      In reviewing a sufficiency claim, we determine:

      [W]hether 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. Jones, 886 A.2d 689, 704 (Pa. Super. 2005) (internal

citations omitted).

      In a tripartite argument, Appellant first asserts that the “evidence was

insufficient to convict the Appellant due to the sudden emergency doctrine.”

Appellant’s Brief at 13. In support of this assertion, Appellant cites a civil

case, Lockhart v. List, 665 A.2d 1176, 1180 (Pa. 1995).            Appellant’s


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invocation of the sudden emergency doctrine is unavailing and his reliance

on Lockhart is misplaced. We specifically explained in the criminal case of

Commonwealth v. Matroni, 923 A.2d 444 (Pa. Super. 2007):

      The trial court erred in instructing the jury on the sudden
      emergency doctrine because that doctrine, a civil concept, is not
      a recognized defense to which [appellant] was entitled to a jury
      instruction. As [appellant] himself acknowledges, “the trial court
      is under a duty to instruct the jury on the correct legal principles
      applicable to the facts presented at trial.” Commonwealth v.
      Cox, 546 Pa. 515, 530, 686 A.2d 1279, 1286 (1996) (emphasis
      added). Here, the sudden emergency doctrine is not a legal
      principle applicable to the Vehicle Code charges in question.

                                      ***

      Extensive research has revealed no cases wherein a defendant
      has been permitted to successfully employ the sudden
      emergency doctrine as a defense to criminal charges, and we
      decline to allow [appellant] to do so in this case.

Id. at 452.    Here, we likewise reject Appellant’s invocation of the civil

affirmative   defense   of   the   sudden   emergency   doctrine   in   reviewing

Appellant’s criminal conviction for driving at an unsafe speed for road

conditions.

      Appellant additionally argues that the “evidence was insufficient to

establish [that] Appellant failed to comply with the assured clear distance

ahead rule.” Appellant’s Brief at 15. Again, Appellant’s argument fails. As

reiterated in Matroni, “the assured clear distance ahead rule applies to

essentially static or static objects including vehicles moving in the same

direction[.]” Matroni, 932 A.2d at 453 citing Cunningham v. Byers, 732

A.2d 655, 658 (Pa. Super. 1999) (additional citations omitted).         Instantly,


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Appellant’s conviction was not premised on his failure to abide by the

assured clear distance ahead rule.        Rather, the trial court convicted

Appellant of failing to drive “at a safe and appropriate speed when … special

hazards exist … by reason of weather or highway conditions.” 75 Pa.C.S.A.

§ 3361; see also Trial Court Opinion, 2/25/15, at 8 (“The [trial c]ourt found

beyond a reasonable doubt [Appellant] did not operate at a reasonable or

prudent speed for the prevailing weather conditions.”).

      In his tertiary argument, Appellant asserts that the evidence was

“woefully” insufficient “when viewed in the light most favorable to the

Commonwealth as verdict winner.”      Appellant’s Brief at 17.   We disagree.

The trial court explained:

            In Commonwealth v. Heberling, the Court held that
      “speeding alone does not constitute a violation of [§ 3361].
      There must be proof of speed that is unreasonable or imprudent
      under the circumstances (of which there must also be proof),
      which are the “conditions” and “actual and potential hazards
      then existing” of the roadway. Commonwealth v. Heberling, 678
      A.2d 794, 795 – 96 (Pa. Super. 1996). Furthermore, the Court
      held that “[i]t is these circumstances under which one’s speed
      may be found sufficiently unreasonable and imprudent to
      constitute a violation of section 3361, even if the driver has
      adhered to the posted speed limit.” Id. at 796.

            In Commonwealth v. Hoke, the Court held that “it is not
      necessary to allege or prove any specific speed at which [the]
      defendant was driving.” Commonwealth v. Hoke, 298 A.2d 913,
      915 (Pa. Super. 1972). The primary inquiry in such cases is not
      the speed, but the speed relative to the conditions. Id. The
      circumstances in this matter are to be determined by the fact-
      finder to conclude whether the Defendant is guilty. See id.

            As detailed above, both Trooper Durst and Corporal
      Campbell testified to the icy conditions of the roads at the time
      of the incident. Based upon the expert opinion of Corporal

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     Campbell, [Appellant] was traveling at a lowest possible speed of
     54.54 miles per hour on a “really” icy interstate. Tr. at 27, 47,
     49. While [Appellant] was not per se speeding, the law is clear
     that it is not necessary that [Appellant] be traveling in excess of
     the posted speed limit in order to violate § 3361. See
     Commonwealth v. Heberling, 678 A.2d 794, 795 - 96 (Pa. Super.
     1996); Commonwealth v. Hoke, 298 A.2d 913, 915 (Pa. Super.
     1972).

            Furthermore, as the Commonwealth was the verdict
     winner in the instant matter, the [trial c]ourt must view the
     evidence admitted at trial in the light most favorable to the
     Commonwealth. Both Trooper Durst and Corporal Campbell
     testified that the conditions of the road did not allow either of
     them to safely operate their vehicle at the speed limit. Tr. at 6,
     20, 27. Corporal Campbell testified that he did not drive faster
     than 25 miles per hour because of the poor road conditions. Tr.
     at 27. Corporal Campbell further testified that he observed six
     or seven other vehicles slide off of 1-81 as he traveled to the
     accident scene. Tr. at 27.

            These poor road conditions combined with [Appellant’s]
     speed rendered [Appellant] unable to maintain control of his
     vehicle, which led to a car crash involving three separate
     vehicles. The Court found the testimony of Trooper Durst and
     Corporal Campbell credible regarding the icy and rainy conditions
     of the road.      The Court found beyond a reasonable doubt
     [Appellant] did not operate at a reasonable or prudent speed for
     the prevailing weather conditions. Driving over 54 miles per
     hour on an icy road in the freezing rain is extraordinarily
     dangerous.      The evidence in this matter was sufficient to
     conclude beyond a reasonable doubt that [Appellant]
     disregarded these hazardous weather conditions, which led to a
     multiple vehicle crash. Therefore, the Court found [Appellant]
     guilty of violating 75 Pa.C.S. § 3361.

Trial Court Opinion, 2/25/15, at 6-8 (footnote omitted).

     Our review of the record, viewed in the light most favorable to the

Commonwealth, supports the trial court’s determination that Appellant

violated § 3361. Again, we note that:



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      [I]t is within the province of the [fact-finder] to assess the worth
      of the testimony, which it may then accept or reject. We agree
      that the [fact-finder] is free to believe all, some or none of the
      testimony presented by a witness.

Neison v. Heimes, 653 A.2d 634, 636-37 (Pa. 1995) (citations omitted).

Our careful scrutiny of the record does not reflect that the trial court’s

determination that Appellant violated § 3361 was “so disproportionate to the

uncontested evidence as to defy common sense and logic.”           Id.   Further,

Appellant’s sufficiency argument would require us to re-weigh the testimony

adduced at trial, which we may not do. See Commonwealth v. Hawkins,

701 A.2d 492, 501 (Pa. 1997) (the credibility of witnesses is “solely for the

[fact finder] to determine”); see also Commonwealth v. Dougherty, 860

A.2d 31, 36 (Pa. Super. 2004) (citations omitted) (“This Court cannot

substitute its judgment for that of the [fact finder] on issues of credibility.”).

Moreover, we recognize that “[i]t is the function of the [fact finder] to

evaluate evidence adduced at trial to reach a determination as to the facts,

and where the verdict is based on substantial, if conflicting evidence, it is

conclusive on appeal.” Commonwealth v. Reynolds, 835 A.2d 720, 726

(Pa. Super. 2003) (citation omitted).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/24/2015

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