J-S65028-18

                              2019 PA Super 35

 COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                          Appellee

                     v.

 MATTHEW JUSTIN ODOM

                          Appellant                   No. 617 MDA 2018


       Appeal from the Judgment of Sentence Entered March 16, 2018
               In the Court of Common Pleas of Adams County
             Criminal Division at No.: CP-01-CR-0001268-2017


BEFORE: SHOGAN, STABILE, MCLAUGHLIN, JJ.

OPINION BY STABILE, J.:                          FILED FEBRUARY 11, 2019

       Appellant Matthew Justin Odom appeals from the March 16, 2018

judgment of sentence entered in the Court of Common Pleas of Adams County

(“trial court”), following his bench conviction for accidents involving damage

to attended vehicle or property under Section 3743(a) of the Vehicle Code, 75

Pa.C.S.A. § 3743(a). Upon review, we vacate the judgment of sentence.

       The facts and procedural history of this case are undisputed. Briefly,

after Appellant was charged with the foregoing crime, he proceeded to a non-

jury trial.

       Christal Keller testified that on June 18, 2017 around 10:00 a.m.
       she was present at a 24-hour coin operated laundromat located in
       McSherrystown Borough, Adams County, Pennsylvania. Appellant
       was also present at the laundromat that morning. While Ms. Keller
       and several other people were inside the commercial laundromat,
       Appellant left the premises and Ms. Keller almost immediately
       heard a loud bang and crashing, shattering glass. As she turned,
       she saw a pole coming through the front plate glass window of the
       laundromat. She also observed Appellant driving his motor
       vehicle. Ms. Keller saw Appellant look back to the inside of the
       building when he saw the damage he had caused and drove away.
       In addition to Ms. Keller, at least two other patrons were present
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     inside the laundromat at the time of the incident. Following the
     crash, Ms. Keller walked to the window to look at the damage that
     had been caused. Appellant’s car was still there at the time and
     Appellant was clearly the driver of the motor vehicle. [A]ppellant
     sat in his running motor vehicle for a few seconds, looked back at
     the pole and the people standing inside the broken, shattered
     window and drove away.

            Thirty minutes later Appellant came back to the laundromat
     to move his clothes from the washer to a dryer and again left. At
     that time the awning pole that was struck by Appellant was still
     protruding through the front window of the laundromat.

           Approximately thirty minutes later Appellant came back yet
     again, got his laundry from the dryer and left the premises in the
     same vehicle he was operating when he struck the awning. The
     undisputed testimony was that Appellant never talked to anyone
     inside the laundromat or made any communication concerning the
     accident. Appellant never left a note at the premises or provided
     any information to anyone about his identity and never provided
     any insurance or contact information. He never called the police.
     Appellant never checked on the wellbeing of the other patrons
     inside the building or offered any assistance or rendered any care.

           The commercial coin operated 24-hour laundromat is owned
     by David Liberator who resides outside of Adams County. On the
     date in question, Mr. Liberator received a telephone call at his
     home in Cumberland County concerning an accident causing a
     pole to break through the front window of his laundromat. Neither
     Mr. Liberator nor any employee of the laundromat w[ere] present
     at the time of the accident.       Testimony elicited on cross-
     examination of Mr. Liberator indicated that there was video
     surveillance both inside and outside of the laundromat.

           Shortly after the incident, Sergeant Gary Baumgardner of
     the Conewago Township Police Department received a dispatch to
     the laundromat on Third Street in McSherrystown Borough,
     Conewago Township, Adams County. On arrival he saw a steel
     pole pushed through the front plate glass windows of the
     laundromat.      Witnesses, including Ms. Keller, provided to
     Sergeant Baumgardner license plate information of the vehicle
     that caused the damage. The registration for the vehicle came
     back to the Appellant. Sergeant Baumgardner pulled a JNET
     photograph of Appellant which was used by patrons at the scene
     to specifically identify Appellant as the operator of the motor
     vehicle. Sergeant Baumgardner then went to Appellant’s father’s
     home in McSherrystown Borough in an effort to try to track down
     Appellant. Sergeant Baumgardner left his business card for the
     Appellant. Days later Appellant finally replied, leaving Sergeant
     Baumgardner’s card with the Appellant’s cellphone number on it
     at the Conewago Township Police Station.
           Appellant left no contact information on the day of the
     accident. Law Enforcement Officers did not have an opportunity

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       to interview Appellant on the date of the accident as he fled the
       scene. According to Mr. Liberator his phone number and contact
       information is on the coin and change machine and lists three
       different contact numbers. Appellant never called any of the
       numbers to provide any contact information concerning his
       culpability in causing the damage despite the fact that the phone
       numbers were conspicuously posted immediately across from the
       area where Appellant was doing his laundry.

              The undisputed testimony at trial was that Appellant was
       the operator of the motor vehicle which struck a steel awning pole,
       driving it through the front plate glass window of a commercial
       laundromat which was then occupied by at least three patrons.
       The undisputed testimony further revealed that Appellant never
       provided any information to any of the patrons present just feet
       away from the shattering plate glass window, never provided
       information to law enforcement officers, failed to remain at the
       window, never provided information to law enforcement officers,
       failed to remain at the scene following the accident and failed to
       use any of the posted emergency numbers to contact owners of
       the laundromat to notify them of the damage he caused or to
       provide information for their future reference.

Trial Court Opinion, 5/14/18, at 2-4. Following the bench trial, the trial court

found Appellant guilty of, inter alia, accidents involving damage to attended

vehicle or property under Section 3743(a) of the Vehicle Code,1 and sentenced

him to twelve months’ probation.2 Appellant timely appealed to this Court.

Both the trial court and Appellant complied with Pa.R.A.P. 1925.

       On appeal, Appellant presents a single issue for our review: “Does an

unsupervised laundromat constitute ‘attended’ property within the meaning of

[Section 3743(a)] where only customers were present at the time of the



____________________________________________


1 Although not relevant to the disposition of this appeal, the trial court also
found Appellant guilty of failure to give information and render aid (75
Pa.C.S.A. § 3744(a)) and careless driving (75 Pa.C.S.A. § 3714(a)). The trial
court, however, did not impose any additional penalties for these convictions.
2The trial court also directed Appellant to pay a $2,500.00 fine, court costs
and $1,414.12 in restitution.

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accident, and not the owner or employees of the property?” Appellant’s Brief

at 4 (emphasis in original).

      Section 3743 provides in relevant part:

      (a)   General rule.—The driver of any vehicle involved in an
            accident resulting only in damage to a vehicle or other
            property which is driven or attended by any person shall
            immediately stop the vehicle at the scene of the accident or
            as close thereto as possible but shall forthwith return to and
            in every event shall remain at the scene of the accident until
            he has fulfilled the requirements of section 3744 (relating to
            duty to give information and render aid).

75 Pa.C.S.A. § 3743(a) (emphasis added).

      As Appellant notes, Commonwealth v. Cornell, 607 A.2d 801 (Pa.

Super. 1992) controls the outcome here. There, the appellant’s vehicle struck

a truck that had been parked by James Householder in a driveway with a

portion of the truck protruding into the roadway.        The truck, which the

appellant’s vehicle hit, was owned by Coca Cola Bottling Company.            Mr.

Householder, as an employee of Coca Cola, used the truck to drop off his

girlfriend at her home. In so doing, Mr. Householder parked the truck in the

driveway with the engine running and parking lights on, while he went into his

girlfriend’s house to see her off. When he and his girlfriend heard the crash,

they grabbed a flashlight and went outside. They determined that a vehicle

had collided with a neighboring house, but the driver was no longer at the

scene.

      Subsequently in Cornell the appellant was found and charged with,

among other things, leaving the scene of an accident with an “attended”



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vehicle in violation of Section 3743.            The trial court found him guilty,

concluding that

       [a]ttended for this purpose is not synonymous with ‘occupied’
       but means present and available to take care of the vehicle. When
       an operator leaves the lights on and is a short distance away in a
       house saying goodnight to a friend, that is at the outermost limit
       of the meaning of ‘attended.’

Cornell, 607 A.2d at 802 (emphasis added). On appeal, a panel of this Court

reversed and vacated the trial court’s decision. In so doing, we defined the

term “attended,” as referenced in Section 3743.

       As the trial court observed, and we agree, Section 3743 does not
       require that the damaged vehicle be driven or occupied. It must,
       however, be attended.

             A vehicle is “unattended,” according to Webster’s Third New
       International Dictionary, if it is “lacking a guard, escort, caretaker
       or other watcher.” To “attend” is to “look after: take care of:
       watch over the working of.”

Id. at 803 (emphasis added).           Applying the definition, we concluded that

“[t]he vehicle in the instant case was not attended. No one was looking after

it or watching over it. The operator was not present but in a nearby residence

saying good night to a friend. As to the vehicle, there was neither guard,

escort, caretaker or other watcher present.”3 Id.
____________________________________________


3 We also observed in Cornell that Section 3745, instead of Section 3743, of
the Vehicle Code was applicable. Section 3745 provides:
       The driver of any vehicle which collides with or is involved in an
       accident with any vehicle or other property which is unattended
       resulting in any damage to the other vehicle or property shall
       immediately stop the vehicle at the scene of the accident or as
       close thereto as possible and shall then and there either locate
       and notify the operator or owner of the damaged vehicle or other
       property of his name, address, information relating to financial



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       Here, consistent with Cornell, the 24-hour, coin-operated laundromat

was not attended within the meaning of Section 3743(a) of the Vehicle Code

when Appellant’s vehicle backed into a pole, causing it to crash through the

front window of the laundromat. As the trial testimony established, although

it was occupied by three patrons, neither the owners nor any employees or

agents of the owners were present at the laundromat at the time of the

accident. It is not sufficient that a property is occupied for purposes of Section

3743(a). As explained in Cornell, the term “attended” under Section 3743(a)

is not synonymous with occupied but means present and available to take care

of the property. The laundromat here was not looked after, watched over or

otherwise guarded by an owner, employee, or agent. As a result, we conclude

that the trial court erred in finding Appellant guilty of violating Section 3743(a)

of the Vehicle Code because the laundromat was not attended at the time of

the accident.

       Judgment of sentence vacated. Jurisdiction relinquished.


____________________________________________


       responsibility and the registration number of the vehicle being
       driven or shall attach securely in a conspicuous place in or on
       the damaged vehicle or other property a written notice giving his
       name, address, information relating to financial responsibility and
       the registration number of the vehicle being driven and shall
       without unnecessary delay notify the nearest office of a duly
       authorized police department
75 Pa.C.S.A. § 3745(a) (emphasis added).                We reasoned that
Mr. Householder, as the operator of the Coca Cola truck, was not present at
the time of the accident; he was inside a nearby house. As a result, we
reasoned that the appellant could not have given him the information required
by Section 3743 “unless he first went in search for him and ‘located’ him as
required by” Section 3745. Cornell, 607 A.2d at 803.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/11/2019




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