J-A08038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                        OF PENNSYLVANIA
                             Appellee

                        v.

    JOHN M. GORAL

                             Appellant                 No. 1105 WDA 2018


         Appeal from the Judgment of Sentence Entered July 17, 2018
             In the Court of Common Pleas of Allegheny County
              Criminal Division at No.: CP-02-SA-0000840-2018


BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ.

DISSENTING MEMORANDUM BY STABILE, J.:               FILED OCTOBER 03, 2019

        The Learned Majority concludes that sufficient evidence supports

Appellant’s summary conviction for failure to stop at a stop sign.1       In so

concluding, the Majority defers to the trial court’s factual findings and

credibility determinations.         I respectfully disagree with the Majority’s

conclusion because this is one of those rare cases where a dash cam video,

included in the certified record, contradicts the trial court’s findings and

credibility determinations. Contrary to the trial court’s findings, as adopted

by the Majority, my review of the video clearly reveals that Appellant’s vehicle

____________________________________________


1 75 Pa.C.S.A. § 3323(b). Appellant also was charged and convicted of driving
without wearing a seat belt under 75 Pa.C.S.A. § 4581(a)(2)(ii). To the extent
the record reflects that Appellant was convicted under subsection (a)(2)(i) for
the seat belt violation, it appears to be a typographical error, as subsection
(a)(2)(i) applies only to minors.
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came to a complete stop at the intersection in question. As a result, I would

vacate Appellant’s conviction under Section 3323(b) for want of sufficient

evidence.2

       At Appellant’s de novo trial, the Commonwealth offered the testimony

of Officer Christopher Arthur, Cheswick Borough Police Department. Officer

Arthur testified that he observed Appellant’s vehicle leaving a Sunoco gas

station parking lot and turning right to proceed onto Cheswick Avenue. N.T.

Trial, 7/17/18, at 6. Officer Arthur further testified that Appellant’s vehicle

“came to the stop sign and quickly decelerated and failed to come to a

complete stop at the stop sign at Spruce and Cheswick Avenue. It continued

through the intersection sharply.” Id. Officer Arthur elaborated:

       [The vehicle] was speeding up as it was leaving the parking lot.
       So, it was traveling pretty quickly down the roadway. It did
       decelerated [sic] very quickly as though the brake was being
       pressed and then released without coming to a complete stop. It
       looked to me from behind the vehicle that it rolled through the
       stop sign without coming to a complete stop.

Id. at 7. When asked by the trial court after he had watched the dash cam

video3 whether Appellant’s vehicle came to full stop, Officer Arthur replied:

“No, Your Honor. It appears that he decelerated sharply and failed to come

to a complete stop and continued driving forward again.” Id. at 13.




____________________________________________


2As discussed below, I also would vacate Appellant’s conviction for driving
without wearing a seat belt under Section 4581(2)(ii).
3 As the Majority observes, Appellant introduced into evidence his own dash
cam video from the night of the incident in question. Maj. Mem. at 2.

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       In his defense, Appellant testified that his dash cam video depicts that

his vehicle did come to a complete stop. Id. at 10-11. Appellant pointed out

that

       if you listen not only can you see and reflected at the stop sign
       the reflection in the headlight of the car that’s parked facing me
       on the right-hand side of the road that I 100 percent stopped. You
       can also hear the deceleration of the engine. And my foot going
       from the gas pedal to the brake pedal at the stop and back to the
       gas to reaccelerate.


Id. at 10(sic). Following trial, the court found that Appellant’s vehicle did not

come to a complete stop, but rather rolled through the stop sign. The court

stated:

       Well, I saw the video and I also believe that you rolled through it.
       Slowly. But you did roll through it. I find you guilty. You did not
       stop. . . . Your video does not prove that you stopped. It shows
       me that you rolled through it slowly. I agree you did decelerate.
       Deceleration is not stopping.

Id. at 14. Appellant pro se timely appealed. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.            The crux of Appellant’s argument on

appeal is that his conviction for the stop sign violation is unsupported by

sufficient evidence, because the dash cam video shows that he fully stopped

at the stop sign at the intersection of Cheswick Avenue and Spruce Street.4

       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
____________________________________________


4 Like the Majority, I too decline to find waiver based on Appellant’s
noncompliance with Pa.R.A.P. 2116(a).

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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 fact-finder. Commonwealth v.

Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015).

      Nonetheless, “[w]here the evidence offered to support the verdict is in

contradiction to the physical facts, in contravention to human experience and

laws of nature, then the evidence is insufficient as a matter of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000); see

Commonwealth v. Santana, 333 A.2d 876, 878 (Pa. 1975) (“It is settled

law in Pennsylvania that testimony in conflict with the incontrovertible physical

facts and contrary to human experience and the laws of nature must be

rejected.”).

      In Commonwealth v. Griffin, 116 A.3d 1139 (Pa. Super. 2015), the

appellant argued that the trial court abused its discretion in denying his

suppression motion where the illegal nature of the seized evidence was not

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immediately apparent to the police officer without further manipulation. We

agreed, concluding that the immediately apparent requirement of the plain

feel doctrine was not met in that case. We noted that the officer’s testimony

at the hearing was inconsistent with what was depicted on the police dash

cam video. Specifically, we explained that “the video clearly depicts the officer

repeatedly manipulating appellant’s pocket. This is one of those rare cases

where a dash cam video, which was made a part of the certified record, can

contradict a trial court’s factual finding often based on its credibility

determinations.” Id. at 1143.

      Section 3323 of the Vehicle Code provides in relevant part:

      Except when directed to proceed by a police officer or
      appropriately attired persons authorized to direct, control or
      regulate traffic, every driver of a vehicle approaching a stop sign
      shall stop at a clearly marked stop line or, if no stop line is present,
      before entering a crosswalk on the near side of the intersection
      or, if no crosswalk is present, then at the point nearest the
      intersecting roadway where the driver has a clear view of
      approaching traffic on the intersecting roadway before entering.

75 Pa.C.S.A. § 3323(b).

      As recited above and recounted by the Majority, the trial court found

Appellant guilty of the stop sign violation because of Officer Arthur’s

testimony, which the court found credible, and the dash cam video.

Specifically, the trial court found:

      On March 19, 2018, Officer [Arthur], of the Cheswick Borough
      Police Department, was in a marked vehicle when he observed
      [Appellant] fail to stop at a stop sign. Officer Arthur testified that
      [Appellant] “came to the stop sign and quickly decelerated and
      failed to come to a complete stop.”             He elaborated that
      [Appellant’s] vehicle “decelerated very quickly as though the
      brake was being pressed and then released without coming to a
      complete stop.” Additionally, Officer Arthur observed [Appellant]

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      put on his seat belt after he initiated the traffic stop and
      approached the vehicle.
       ....
      The credible testimony of Officer Arthur was sufficient to establish
      that [Appellant] violated [Section] 3323 by failing to stop at the
      stop sign and violated [Section] 4581 by failing to wear his seat
      belt.


Trial Court Opinion, 11/14/18, at 1-2.

      Instantly, upon my careful review of the dash cam video, and consistent

with Griffin, I am constrained to agree with Appellant. Contrary to Officer

Arthur’s testimony, at timestamp 08:42:50-52, the video depicts that

Appellant’s vehicle came to a complete two-second stop at the intersection.

First, the video features sounds consistent with Appellant’s pressing the

vehicle’s brakes to decelerate and releasing the same after the stop for

purposes of accelerating. Second, the video confirms that Appellant’s vehicle

stopped because the movement of Appellant’s vehicle, or the lack thereof in

this case, can be gauged vis-à-vis the road and the overhead streetlights.

Finally, the reflection of the headlights of Appellant’s vehicle on the parked

vehicles confirms that the vehicle stopped at the intersection. The video in

this case is not only the best evidence, but it also clearly rebuts Officer Arthur’s

testimony regarding the events surrounding the traffic stop at issue. Similar

to Griffin, this too is one of those rare cases where a dash cam video belies

the trial court’s findings and credibility determination. Accordingly, I would

vacate Appellant’s conviction for failure to stop at a stop sign under Section

3323(b).



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      Additionally, Appellant’s conviction pursuant to Section 4581(a)(2)(ii),

which provides in relevant part that “each driver and front seat occupant of a

passenger car . . . operated in this Commonwealth shall wear a properly

adjusted and fastened safety seat belt system,” also must be set aside. Under

Section 4581(b), “[n]o person shall be convicted of a violation of subsection

(a)(2)(ii) unless the person is also convicted of another violation of [the

Vehicle Code] which occurred at the same time.” 75 Pa.C.S.A. § 4581(b).

Because I conclude that Appellant’s summary conviction for failure to stop at

a stop sign was unsupported by sufficient evidence, because the dash cam

video depicts his vehicle coming to a complete stop, his summary conviction

for driving without wearing a seat belt cannot be sustained under Section

4581(b).   I, therefore, respectfully dissent and would vacate Appellant’s

judgment of sentence.




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