J-A04016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

MATT IRA TOWNSEND

                        Appellant                  No. 662 WDA 2013


         Appeal from the Judgment of Sentence of March 26, 2013
            In the Court of Common Pleas of Crawford County
            Criminal Division at No.: CP-20-SA-0000036-2012


BEFORE: BOWES, J., WECHT, J., and STABILE, J.

MEMORANDUM BY WECHT, J.:                           FILED AUGUST 1, 2014



judgment of sentence, following a summary appeal, upon his convictions of

careless driving, 75 Pa.C.S. § 3714(a), and operating without a valid

inspection sticker, 75 Pa.C.S. § 4703(a). We affirm.

     The evidence, viewed in the light most favorable to the Commonwealth

as verdict-winner, supports the following factual account. In the afternoon

of May 14, 2012, Pennsylva

(presumably off-duty at the time, although the record is unclear) drove his

personal vehicle from the driveway of his home onto Blooming Valley Road

in West Mead Township, Crawford County.       Before entering the roadway,

Cox observed no traffic approaching from either direction. Cox then pulled

onto the roadway, proceeded approximately 180 feet down the road at a
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slow rate of speed, activated his turn signal, and pulled into the driveway of

his girlfriend. As Cox pulled in, he heard what sounded to him like a vehicle

skidding, and then, when he had pulled almost all the way into the driveway,

observed Townsend and his motorcycle slide by him, both lying on the road.

                                                          ion Townsend was

traveling, Blooming Valley Road proceeds through a residential area, curves

sharply, and then descends steeply into a stretch of road lined with houses

that are separated from each other by approximately twenty feet, among




believed1 that he had insufficient time and distance to stop his motorcycle

                                                            ed his rear brake

into a skid, laid his motorcycle down, and, finally, he and the motorcycle slid




driveway by the time Townsend slid past.

       After the accident, Cox summoned police and emergency medical




Cox had pulled out in front of him, leaving Townsend insufficient space to

____________________________________________


1
       This is our inference. Townsend did not testify on his own behalf.




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stop. Townsend made the same assertion to Officer Rod Wise of the West

Mead Township Police Department when Officer Wise arrived on the scene.

Once he had secured the scene and seen to Townsend, Officer Wise began

his accident investigation. He measured a skid that was 135 feet in length,

followed by an additional forty-nine feet of gouge marks in the pavement.

       Two days later, Cox retained an accident reconstructionist, Kevin

Forcier, a former PSP trooper who once had supervised Cox and who

considered Cox a personal friend, to conduct an investigation. 2          Forcier

worked part-time as a crash reconstructionist for the Conneaut Lake

Regional Police Department and maintained his own consulting business.

Forcier investigated the scene and took measurements.3              According to




testified that Townsend was traveling at approximately forty-two to forty-six

miles per hour in a section of Blooming Valley Road where the speed limit is

forty-five miles per hour.         Notably, this calculation was based upon the

unlikely proposition that Townsend had applied only his rear brake as he
                          4
approac                       which was confirmed by a skid mark that was 153
____________________________________________


2
                                 see Notes of Testimony, 3/26/2013, at 3-11.
3
                                   see Notes of Testimony, 3/26/2013, at 23-42.
4
     The Pennsylvania Motorcycle Operator Manual promulgated by the
Pennsylvania Department of Transportation directs operators always to use
(Footnote Continued Next Page)


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feet in length. Because there was no skid mark that could be conclusively



refused Forcier access to the motorcycle for purposes of inspection, the

available data necessitated the assumption that Townsend applied only the

rear brake.5

driveway, approximately 450 feet beyond where Townsend could have

observed Cox fu

      On or about May 23, 2012, Officer Wise issued citations to Townsend

for careless driving and for operating without a valid inspection sticker,

                                                                pired in June

2010.6    The fines for the violations totaled $93 and $45, respectively.
                       _______________________
(Footnote Continued)


up to three-                                                   See Motorcycle
Operator Manual, Pub. 147 (4-14), at 10.
5

was made by the front wheel under heavy braking. However, he did not
testify to a reasonable degree of scientific certainty that the front brake had
be
common sense to recognize that if Townsend in fact had applied his front
brake, the length of the skid mark would strongly suggest if not necessitate
the conclusion that Townsend was operating at a speed in excess of the
forty-two to forty-six mile per hour range calculated by Forcier based upon
the assumption that Townsend had applied only his rear brake. We make
this observation merely to note that Forcier granted Townsend the benefit of
an assumption favorable to his defense.
6
     As noted, Townsend does not challenge his citation for operating
without a valid inspection sticker. The Commonwealth adduced no evidence

accident, and having an invalid inspection sticker is not an element of
(Footnote Continued Next Page)


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Townsend pleaded not guilty and proceeded to a July 16, 2012 summary



charges, fined him a total of $50.00, and imposed costs and fees of $220.

On the same day, Townsend filed a summary appeal to the court of common

pleas. On March 26, 2013, following a summary appeal hearing in the court

of common pleas, the trial court found Townsend guilty of both charges and

imposed the same fines and costs as were imposed by the MDJ, as well as

fees and costs incurred in connection with his summary appeal.

      On April 18, 2013, Townsend filed a timely notice of appeal of his

conviction.    On April 19, 2013, the trial court filed an order directing

Townsend to file a concise statement of the errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).              On May 10, 2013, Townsend timely

complied, and the trial court issued a brief Rule 1925(a) opinion on May 16,

2013, ripening this case for our review.

      Townsend appeals only the sufficiency of the evidence to sustain his

conviction for careless driving:

      Did the Commonwealth present sufficient evidence to sustain a
      conviction of [c]areless [d]riving when it was [Townsend] who
      avoided an accident after a motorist pulled out in front of him
      from a blind driveway at an extraordinarily slow speed, and
      when [Townsend] was traveling under the speed limit?

                       _______________________
(Footnote Continued)


invalid sticker, both at the summary appeal hearing and before this Court, is
irrelevant to the charge of careless driving.



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Brief for Townsend at 4.7

       Our standard of review, and the Commonwealt

applicable to a careless driving citation, are as follows:


       evidence is whether[,] 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-            Commonwealth v. Abed,
       989 A.2d 23, 26 (Pa. Super. 2010) (quoting Commonwealth v.
       Hutchinson, 947 A.2d 800, 805-06 (Pa. Super. 2008)). The

       person who drives a vehicle in careless disregard for the safety
       of persons or property is guilty of careless driving, a summary
                                 3714.     The mens rea requirement
       applicable to §
       willful or wanton conduct but more than ordinary negligence or
       the mere absence of care                               Matter of
____________________________________________


7
       Before this Court, as stated and argued, Townsend challenges the


issue waived due to his failure to raise it in his Rule 1925(b) statement. See
Pa.R.A.P.
challenge as one to both the weight and the sufficiency of the evidence,
explicitly rejected both. Moreover, the Commonwealth does not assert

conflation of these issues presents any impediment to our review of the

challenge to the sufficiency of the evidence waived. See Pa.R.A.P. 105(a)
(affording an appellate court the prerogative to overlook violations of the
rules). However, we find any intended argument regarding the weight of the
evidence to be waived. His statement of the question presented identifies
only the sufficiency of the evidence, his argument is consistent with that

than a boilerplate assertion that his conviction was contrary to the weight of
the evidence.



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     Huff, 582 A.2d 1093, 1097 (Pa. Super. 1990) (en banc), aff'd,
     604 A.2d 1026 (Pa. 1992) (per curiam) (partially quoting
     Commonwealth        v.  Podrasky,  378    A.2d   450    (Pa.
     Super. 1977)); see also Commonwealth v. Wood, 475
     A.2d 834, 836 (Pa. Super. 1984).1
        1
           In Huff, Podrasky, and Wood, the charge was
                  driving            mens rea under the pertinent
                                   careless
        of reckless driving now appears at 75 Pa.C.S. § 3736 and
        requir
                                              Huff, Podrasky, and
        Wood                                              careless
                            mens rea appears in the offense now
        called careless driving. The definition of the t  careless

        valid.

Commonwealth v. Gezovich, 7 A.3d 300, 301 (Pa. Super. 2010) (citations

modified).



encapsulated

these factors combine to create a scenario that is nothing short of

extraordinary. Why must a citation be issued for a summary traffic offense

                                                 Of course, this cri de coeur



conviction for careless driving. While we appreciate that Townsend might be

frustrated that the PSP opted to heap insult (in the form of a motor vehicle

violation) upon injury (the presumptive harms to person and property

Townsend sustained) in an accident in which Townsend appears to have

been the only true victim, whether the evidence was sufficient to support his



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conviction beyond a reasonable doubt is a question we must answer subject

to the above-stated deferential standard of review.

     Emphasizing correctly that the mens rea



mere absence of ca                                    Huff, 582 A.2d at 1097,




Townsend at 8. Townsend also correctly underscores the fact

happening of an accident does not prove that the motorist was even slightly

              Id. (citing Flagiello v. Crilly, 187 A.2d 289 (Pa. 1963)

(granting non-suit in negligence action where there was no evidence of

                   -collision behavior of child who was struck, duration of



Commonwealth v. Stosny, 31 A.2d 582 (Pa. Super.

happening of the accident does not prove that appellant was even slightly

              see Gezovich, 7 A.3d at 302 (citing cases).

     The principal case upon which Townsend relies is Gezovich, supra. In

Gezovich, the appellant was convicted of careless driving after her vehicle

struck another vehicle. The only Commonwealth witness was a state trooper

who did not observe the collision, but merely responded to the scene of the

accident.   When he arrived, the trooper observed two damaged vehicles,

both of which had been moved from the point of impact to the roadside, and




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vehicle she struck, in front of her too late. She slammed on the brakes but

s

indicate to the officer what the car she struck had been doing in the

moments before the accident. Id. The trial court convicted the appellant of

careless driving.   Emphasizing that evidence of an accident does not, by

itself, prove negligence, we vacated the judgment of sentence and

discharged the appellant for want of sufficient evidence. Id. at 301-02.

      As set forth above in greater detail, the evidence reviewed by the trial

court sitting as the fact-finder in this case was not so anemic as that in

Gezovich. Cox testified that he looked both ways before pulling out into the




driveway.     Cox heard the sound of a vehicle skidding, whereafter a




unlike in Gezovich, the trial court had the benefit of an eyewitness to

certain incidents to the accident, whose testimony, viewed in tandem with




his bike. Indeed, the testimony of Cox and Officer Wise alone constituted a

greater degree of evidence in support of conviction than the Commonwealth

presented   in   Gezovich.    In   addition   to   those   two   witnesses,   the

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Commonwealth presented the testimony of Forcier, who indicated to a

reasonable degree of scientific certainty that it was not possible that Cox had

pulled out in front of Townsend when Townsend was too close to stop, or

even when Townsend was in a position to observe Cox doing so, as

Townsend had claimed to both Cox and Officer Wise at the time of the

accident.

         As noted, supra

vehicl

75 Pa.C.S. § 3714.        Careless disregard implies less than willful or wanton

conduct but more than ordinary negligence or the mere absence of care

under the circumstances.          See Gezovich, supra.           Moreover, even if

Townsend was not exceeding the speed limit in the moments before the

accident, this was not sufficient by itself to satisfy his obligation of care. To

the contrary, in any given situation, a driver is obligated to make a

judgment      regarding    how    to   operate   his   vehicle   safely   under   the

circumstances presented, which may at times require proceeding at a speed

below the posted limit. See 75 Pa.C.S. §

shall drive a vehicle at a speed greater than is reasonable and prudent under

the conditions and having regard to the actual and potential hazards then

existing, nor at a speed greater than will permit the driver to bring his



             e at a safe and appropriate speed . . . when approaching and

                                                                           see also

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MacDougall v. Chalmers, 162 A.2d 51, 53 (Pa. Super.

of established speed limits . . ., no person is privileged to drive except at a

careful and prudent speed with his car under reasonable control; . . . and it

                                                        accord Winward v.

Rhodewalt, 182 A.2d 111, 112 (Pa. Super. 1962).

        As noted, just before the accident, Townsend had passed through a

residential area, rounded a tight, blind curve, and was descending down a

steep grade into a residential area      all reasons for Townsend to have

slowed down in anticipation of a variety of potential hazards and surprises.

Towns

testimony contradicts this claim, inasmuch as he concluded that Cox would



                                                e hill and Cox came into his

view.     On this basis, the fact-finder was free to conclude that when



should have seen) a car with its turn signal activated that was traveling at a

slow rate of speed over a short distance before turning into a driveway.

Taken in isolation, precisely as Forcier testified it would have appeared to

Townsend as he approached, this was anything but an extraordinary event.

A car slowing as it approaches a driveway in a residential area is common

and hence foreseeable. And even if Cox was proceeding slowly relative to a



miles-per-hour was not so unusual or unpredictable that Townsend should

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be excused from responsibility for his inability to stop or take evasive action

without accident or injury. Thus, the evidence that Townsend failed utterly

to do so, viewed in its totality and in the light most favorable to the

Commonwealth as verdict-winner, more than sufficed to entitle the fact-

finder to conclude beyond a reasonable doubt that Townsend was operating

his motorcycle with careless disregard for the safety of persons and

property, not least his own.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/1/2014




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