J-A21044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RONALD POLLACK,

                            Appellant            No. 3000 EDA 2013


           Appeal from the Judgment of Sentence October 11, 2013
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-SA-0000634-2013

BEFORE: BOWES, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                     FILED AUGUST 27, 2014

       Ronald Pollack (Appellant) appeals from the judgment of sentence

entered October 11, 2013, following his conviction for the summary offense

of overtaking a school bus in violation of 75 Pa.C.S. § 3345(a). We affirm.

       The trial court summarized the factual background of the case as

follows.

              The facts of this matter are rather simple.    The incident

       approximately 6:55 A.M. The Commonwealth first presented
       [the testimony of school bus driver Michelle Force (the Bus
       Driver)] at the summary appeal hearing.

             The Bus Driver testified that she activated the yellow lights
       [on the school bus] upon her approach to the bus stop. Then,
       the Bus Driver testified that she secured the vehicle by putting
       on the emergency brake, activated the red lights and extended
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A21044-14


      the signal arm. After she did those things, she said [Appellant]
      drove past the bus in the opposite lane of traffic. The Bus Driver
      said she knew that the lights were actuated since an indicator on
      the bus was working and she had checked that the lights were
      working earlier in the day. Finally, the Bus Driver testified that

      li

      testified that she was approached by Officer Koreck after
      finishing her bus route and was asked about the incident
      involving [Appellant]. The Bus Driver later wrote an incident
      report and filed it with her dispatcher.

            Next, the Commonwealth called Officer Koreck.            He

      [t]estimony.   Officer Koreck testified that he observed the
      incident
      school bus approximately four to five seconds after the red lights

      vehicle over and went on to describe how [Appellant] became

      citation immediately after pulling [Appellant] over so he could
      first confer with the Bus Driver. He did, however, testify that he
      clearly saw the incident take place and later filed the citation
      based on his observations.

             After the Commonwealth finished presenting evidence,
      [Appellant moved] for [j]udgment of [a]cquittal on several
      grounds that [the trial court] found unpersuasive and denied.
      [Appellant] took the stand, presented a multitude of photos in
      support of his case and testified to facts contradicting the
      testimony of the Bus Driver and Officer Koreck. [Appellant]
      testified that he passed the school bus when it was slowly
      coming to a stop, had yellow lights actuated and had not yet
      extended the signal arm. Ultimately [the trial court] determined


      [the trial court] determined that [Appellant] was guilty of
      overtaking a school bus.

Trial Court Opinion, 12/23/2012, at 2-3 (citations to the record omitted).




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J-A21044-14


       Following sentencing,1 Appellant timely filed a notice of appeal. Both

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

presents the following questions to this Court on appeal.

       I.     Did the [t]rial [c]ourt commit an error as a matter of law
              and/or abuse its discretion when it both failed to dismiss
              the charges against [Appellant] and found [Appellant]
              guilty for the alleged violation of 75 Pa.C.S.[ § 3345], as
              both the Commonwealth and the bus operator failed to
              comply with [subsection 3345(a.1)] relative to producing
              the written report allegedly signed and prepared by the
              [B]us [D]river relative to the alleged violation?

       II.    Did the [t]rial [c]ourt commit an error as a matter of law
              and/or abuse its discretion when it failed to dismiss the
              charges against [Appellant] for the alleged violation of 75
              Pa.C.S.[ § 3345], when the Commonwealth failed to prove
              the necessary elements of the statutory violation, including

              any evidence to prove that the amber signals were
              actuated by the driver of the school bus not more than 300
              feet nor less than 150 feet prior to making a stop for the
              purpose of receiving or discharging school children, as
              mandated by the statute?

       III.   Did the [t]rial [c]ourt commit an error as a matter of law
              and/or abuse its discretion found [Appellant] guilty of
              violating 75 Pa.C.S.[ § 3345], as the Commonwealth failed
              to prove that the amber signals were actuated by the
              driver of the school bus no more than 300 feet, nor less
              than 150 feet, prior to making a stop for the purpose of
              receiving or discharging school children, and as the
              uncontradicted evidence submitted and admitted in this
              case showed that the [B]us [D]river actuated the amber

____________________________________________


1

magisterial district judge was reimposed by the trial court following the
conviction. However, a copy of that order does not appear in the certified
record.



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J-A21044-14


            lights at a distance greatly outside and beyond the
            requisite actuation zone required by the statute?



      We begin by examining the statute at issue.       Section 3345 of the

vehicle code provides as follows, in relevant part.

      (a) Duty of approaching driver when red signals are
      flashing.--[Except on divided highways,] the driver of a vehicle
      meeting or overtaking any school bus stopped on a highway or
      trafficway shall stop at least ten feet before reaching the school
      bus when the red signal lights on the school bus are flashing and

      proceed until the flashing red signal lights are no longer
      actuated. In no event shall a driver of a vehicle resume motion
      of the vehicle until the school children who may have alighted
      from the school bus have reached a place of safety. The driver
      of a vehicle approaching an intersection at which a school bus is
      stopped shall stop his vehicle at that intersection until the
      flashing red signal lights are no longer actuated.

      (a.1) Reports by school bus operators.--

            (1) The operator of a school bus who observes a violation
            of subsection (a) may prepare a signed, written report
            which indicates that a violation has occurred. To the
            extent possible, the report shall include the following
            information:

                  (i) Information, if any, pertaining to the identity of
                  the alleged violator.

                  (ii) The license number and color of the vehicle
                  involved in the violation.

                  (iii) The time and approximate location at which the
                  violation occurred.

                  (iv) Identification of the vehicle as an automobile,
                  station wagon, motor truck, motor bus, motorcycle
                  or other type of vehicle.


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J-A21044-14


           (2) Within 48 hours after the violation occurs, the school
           bus operator shall deliver a copy of the report to a police
           officer having authority to exercise police power in the
           area where the violation occurred. If the police officer
           believes that the report establishes a sufficient basis for
           the issuance of a citation, the officer shall file a citation
           and the report with the issuing authority. If the issuing
           authority determines that the report and citation establish
           a sufficient basis for the issuance of a summons, a
           summons shall be issued in accordance with general rules
           governing the institution of proceedings in summary traffic
           offense cases.      The issuing authority shall send the
           defendant a copy of the citation, together with a statement
           that it was filed by the police officer named in the citation
           on the basis of information received.

                                   ***

     (b) Duty of approaching driver when amber signals              are
     flashing.-- The driver of a vehicle meeting or overtaking      any
     school bus shall proceed past the school bus with caution      and
     shall be prepared to stop when the amber signal lights         are
     flashing.

                                   ***

     (d) Use of amber signals.--The amber visual signals shall be
     actuated by the driver of every school bus not more than 300
     feet nor less than 150 feet prior to making a stop for the
     purpose of receiving or discharging school children and shall
     remain in operation until the red visual signals are actuated.
     Amber signals shall not be used unless the red visual signals are
     to be actuated immediately following.

75 Pa.C.S. § 3345.




with a report from the Bus Driver in compliance with subsection (a.1). In

support,   Appellant   r


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J-A21044-14


Commonwealth v. Fulmer, 621 A.2d 146 (Pa. Super. 1993). In Fulmer,

a citation was issued after the supervisor of the bus driver who witnessed

the violation orally communicated the incident to the police.        This Court

reversed the conviction and discharged Fulmer based upon the following

reasoning.

             The statute, when read in its entirety, indicates to us that
       the procedure by which the operator of a school bus must relay
       information to the proper authorities is mandatory.            The

       to mean simply that a school bus operator who observes a
       violation has the initial discretion as to whether or not to act on
       the violation, but that if he or she does choose to act in a
       manner consistent with bringing the violator to justice, he or she
       has no discretion in the manner in which he or she
       communicates the information upon which the violation is based
       to the proper authorities.

              Therefore, we now hold that a school bus driver who
       initiates legal action against the violator of § 3345(a) must do so
       by filing a signed, written report which includes the information
       enumerated in sub-sections (i) through (iv) of § 3345(a.1).

Id. at 148.

       Regarding this argument, Appellant fails to acknowledge, let alone

                                                              Commonwealth

v. Dasilva, 655 A.2d 568 (Pa. Super. 1995), which is on point and directly

adverse to his position.2


____________________________________________


2
 We remind Appellant that, as a member of the Pennsylvania bar, he owes a
duty of candor to this tribunal under Rule 3.3(a)(2) of the Pennsylvania
Rules of Professional Conduct.



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J-A21044-14


          [I]n the instant case, the police received a report of the incident
          from a private citizen. They contacted the school bus driver
          merely for confirmation that the incident had occurred. At trial,
          the school bus operator testified that she saw a white van
          approaching the school bus from the opposite side of the street.
          She then stated that the reason that she did not report the


          instructed not to file a report. Therefore, the citation filing
          procedure found in 75 Pa.C.S.A. § 3345(a.1), as interpreted by
          Commonwealth v. Fulmer, is inapplicable because the incident
          from which the charge arose had been reported by a private
          citizen and not the schoo
          issue is without merit.

Id. at 573 (citations omitted).



of the incident, and not from the report of the school bus driver.              That

Officer Koreck consulted with the driver, as an additional witness, before he

issued the citation does not convert this case into one initiated by the bus

driver. It was initiated by the police officer based upon his own observations

and suspicion that Appellant violated subsection 3345(a). Thus, Fulmer is

inapplicable, Dasilva

relief.



Bus Driver activated the amber lights more than 300 feet from the bus stop,

in violation of subsection 3345(d). Appellant argues that the only evidence

of the distance over which the bus traveled with its amber lights flashing



Driver activated the amber lights prematurely, Appellant argues, he was

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J-A21044-14


relieved of his duty to stop when she activated the red lights.    We discern



      Appellant was charged with, and convicted of, violating subsection (a)

of the statute for failing to stop when the red lights of the bus were

actuated. This appeal does not involve any alleged violation of subsection

(b) for failure to approach with caution and to be prepared to stop when

approaching a bus flashing yellow lights. The excessive distance over which

the amber lights of the bus were flashing simply bears no relation to



persuaded that Appellant was relieved of his duty to stop more than 10 feet

in front of a school bus with red lights flashing and the stop arm extended




11.

                                                  ense if he claimed that he

was given too little notice that he was required to stop. However, even that

argument was rejected by this Court in Dasilva:


      failed to activate the amber lights no less than one hundred, fifty
      feet prior to making a stop he cannot be found guilty, is
      meritless. The reason for requiring school bus drivers to activate
      their amber lights no less than one hundred, fifty feet prior to
      stopping the school bus to receive or discharge children is simply
      to provide a warning to other drivers on the road of the
      imminent stop which will be made by the school bus and must
      consequently be made by the other drivers.


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J-A21044-14


Dasilva, 655 A.2d at 575.     Thus, we have declined to hold that a bus



absolves a motorist of his or her duty to stop when the red lights are

actuated and the stop arm is extended. The trial court did not commit any

error of law or abuse of discretion in convicting Appellant for violation of

subsection 3345(a) based upon its acceptance of the testimony of the bus

driver and Officer Koreck.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2014




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