J-S62001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ZACHARY T. MOORE,

                            Appellant                No. 119 EDA 2013


       Appeal from the Judgment of Sentence entered December 5, 2012,
                in the Court of Common Pleas of Chester County,
             Criminal Division, at No(s): CP-15-SA-0000428-2012


BEFORE: ALLEN, OLSON, and OTT, JJ.

MEMORANDUM BY ALLEN, J.:                          FILED OCTOBER 08, 2014

        Zachary T. Moore (“Appellant”) appeals from the judgment of sentence

imposed after the trial court convicted him of reckless driving 1, a summary

offense.

        The trial court explained:

               On September 13, 2012, [Appellant] was cited for Reckless
        Driving, 75 Pa.C.S.A. §3736(a), by Corporal Andrew Zinger of
        the North Coventry Township Police Department, Chester
        County. A hearing before Magisterial District Judge James V.
        Deangelo took place on September 24, 2012, where [Appellant]
        pled Guilty. Subsequently, on October 15, 2012, [Appellant]
        filed a summary appeal.

              The de novo Summary Appeal was before this court on
        December 5, 2012 whereby, after an evidentiary hearing,
        [Appellant] was found Guilty of Reckless Driving under 75
        Pa.C.S.A. § 3736(a). A timely Notice of Appeal from this verdict
____________________________________________


1
    75 Pa.C.S.A. § 3736(a).
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      was filed on December 31, 2012. We issued our Pa.R.A.P.
      1925(b) Order on January 7, 2012 and [Appellant] filed his
      Statement of Errors Complained of on Appeal on January 14,
      2012.

Trial Court Opinion, 1/18/13, at 1-2.

      Appellant presents a single issue for our review:

            Whether the trial court erred in convicting appellant for
      reckless driving when there was no indication that appellant was
      traveling at an excessive rate of speed, that his actions would
      create a high probability that an accident would occur, and no
      testimony was elicited to conclude that appellant was willfully
      and wantonly disregarding the safety of others on the roadway
      at the time of the arrest.

Appellant’s Brief at 4.

      Appellant challenges the sufficiency of the evidence to support his

conviction. The essence of Appellant’s argument is that “while appellant did

perform a wheelie … no other motorist or pedestrian on the roadway at the

time was in danger or had to take any type of evasive action as a result of

appellant’s conduct.” Id. at 6. Appellant contends:

      It is asserted that appellant’s operation of the motorcycle with a
      wheelie may constitute some violation of the motor vehicle code,
      but a review of the elements of reckless driving highlights that
      appellant’s conduct did not rise to the level of recklessness that
      is required under the Pennsylvania Statute.

Id. at 7.

      In contrast, the Commonwealth maintains that the evidence was

sufficient   to   support   Appellant’s    reckless   driving   conviction   because

Appellant performed the wheelie during heavy traffic with several cars




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behind him, and for a distance of 308 feet, creating “substantial risk” to the

vehicles and their drivers behind Appellant. Commonwealth Brief at 8.

      We     initially   recognized   our   well-settled   standard   of   review   in

sufficiency challenges:

      The standard for reviewing the sufficiency of the evidence is
      whether the evidence admitted at trial and all reasonable
      inferences drawn therefrom, when viewed in the light most
      favorable to the Commonwealth as verdict winner, is sufficient to
      support all the elements of the offense beyond a reasonable
      doubt.

Commonwealth v. Greenberg, 885 A.2d 1025, 1026 (Pa. Super. 2005)

citing Commonwealth v. DeJesus, 787 A.2d 394, 398 (Pa. 2001).

      With regard to reckless driving, the Vehicle Code provides:

      Any person who drives any vehicle in willful or wanton disregard
      for the safety of persons or property is guilty of reckless driving.

75 Pa.C.S.A. § 3736(a).

      To satisfy the elements of reckless driving, the offender’s driving must

be “a gross departure from prudent driving standards.” Greenberg, 885 at

1027. Reckless driving requires the mens rea of willful and wanton conduct.

Commonwealth v. Bullick, 830 A.2d 998 (Pa. Super. 2003).                            We

explained:

      The mens rea necessary to support the offense of reckless
      driving is a requirement that Appellant drove in such a manner
      that there existed a substantial risk that injury would result from
      his driving, i.e., a high probability that a motor vehicle accident
      would result from driving in that manner, that he was aware of
      that risk and yet continued to drive in such a manner, in



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      essence, callously disregarding the risk he was creating by his
      own reckless driving.

Id. at 1003. We have further concluded:

      Reckless driving requires driving that not only grossly deviates
      from ordinary prudence, but also creates a substantial risk that
      property damage or personal injury will follow.       It is also
      necessary that the driving reflect a conscious disregard for the
      danger being created by the reckless driving.

Greenberg, 885 A.2d at 1029-30 (emphasis in original).

      Here, our review of the notes of testimony from the de novo trial,

where Corporal Andrew Zinger was the sole witness, reveals the following:

On September 13, 2012, at approximately 3:00 p.m., Corporal Zinger was

driving his police car when he observed Appellant on “a red motorcycle

riding on its rear wheel only, what we refer to on the street as a wheelie.”

N.T., 12/5/12, at 4. The motorcycle was traveling on a two-lane roadway

with no passing, which was also a residential area.     Id. at 6-7.   Corporal

Zinger testified, “[Appellant and the motorcycle] actually passed me

traveling north towards Pottstown upgrade on a hill to a blind crest.        I

observed the vehicle go over the crest.” Id. Corporal Zinger stated that the

motorcycle was traveling “on a major thoroughfare for traffic” and, “Traffic

was heavy at the time. [The m]otorcycle was the first vehicle in the pack of

northbound traffic.” Id. at 5.

      Corporal Zinger further testified:

      Actually I went back, physically measured the distance that I
      observed the vehicle with my tracker speed timing device,
      [which] also calculates distance. I counted 308 feet I visibly saw


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      the vehicle [doing a wheelie for the entire distance] as it went
      over the blind crest.

Id. Corporal Zinger stated that he saw vehicles take “evasive” action and

change direction as a result of Appellant’s operation of the motorcycle. Id.

at 7. Corporal Zinger testified, “I cited [Appellant] for reckless driving due

to traffic, as well as doing a wheelie over a blind crest.” Id. at 6.

      The trial court concluded that Appellant’s “conduct revealed his clear

disregard for the safety of the persons and property travelling behind him,

as well as oncoming traffic, in violation of 75 Pa.C.S.A. §3736(a), (Reckless

Driving).” Trial Court Opinion, 1/18/13, at 6. The trial court reasoned:

      This case comes down to – all of the cases, all case law comes
      down to individual cases. It’s very, very, very fact specific and
      detail specific.

             In this particular case I am going to find [Appellant] guilty
      of reckless driving. There are many factors which lead to that
      decision. I think that if he were only endangering himself I don’t
      think that I could find him guilty of reckless driving. I think
      there has to be others in danger. In my mind it’s obvious he
      willfully made the conscious decision to drive on the rear wheel.
      In doing so, he had very little control over his vehicle while he
      was traveling. The area that he was traveling in, given that he
      was driving up a hill, that there was a good amount of traffic
      behind him, obviously there was traffic coming towards him,
      [the] police officer being one of them, one of those vehicles, the
      fact that he has a learner’s permit for a motorcycle, he doesn’t
      have a ton of experience on a motorcycle, the distance of the
      wheelie being over three hundred feet, I think all of that adds up
      to a willful – obviously he was disregarding his own safety by
      that behavior, but he was also being very – he was disregarding
      the safety of those behind him because being in that position he
      was in a much – he placed himself in great danger of an
      accident. All of those behind him would have been impacted by
      that, whether they struck him, whether there were a number of
      rear-ending accidents behind it. So for those reasons I am going


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      to find him guilty of the reckless driving. I think that that kind of
      behavior is nothing but willful.

N.T., 12/5/12, at 10-11.

      Because the record supports the trial court’s reasoning, we find no

merit to Appellant’s sufficiency claim. As the sole witness, Corporal Zinger

testified to facts (Appellant executing a wheelie for a distance of 308 feet in

heavy traffic and over a blind crest) which support the trial court’s

conclusion that Appellant created a substantial risk of damage or injury, and

possessed a willful and conscious disregard for the safety of persons or

property. 75 Pa.C.S.A. § 3736(a); Greenberg, supra. We therefore affirm

the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/8/2014




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