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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
COY D. TUTT,                            :         No. 3293 EDA 2015
                                        :
                       Appellant        :


         Appeal from the Judgment of Sentence, August 12, 2015,
          in the Court of Common Pleas of Northampton County
             Criminal Division at No. CP-48-SA-0000289-2014


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 07, 2016

     Coy D. Tutt appeals the August 12, 2015 judgment of sentence of the

Court of Common Pleas of Northampton County that fined him $250 plus

costs for violating Section 3714 of the Vehicle Code, careless driving--

unintentional death, 75 Pa.C.S.A. § 3714, and $25 plus costs for violating

Section 3322 of the Vehicle Code, vehicles turning left, 75 Pa.C.S.A. § 3322.

Appellant was initially convicted by a magisterial district judge.   He then

appealed to the trial court which conducted a trial de novo.

     The facts as recounted by the trial court are as follows:

           [O]n or about June 2, 2014, at approximately
           4 p.m., [appellant] was operating a tractor trailer
           eastbound on Silvercrest Road. [Appellant] was in
           the center lane of the three lane roadway,
           attempting to turn left (north).     The weather
           conditions were clear and sunny. Simultaneously, a
           motorcycle operated by the decedent, Nicolas Aronis
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            [(“Aronis”)], was traveling westbound on Silvercrest
            Road.      Video footage showing the interior of
            [appellant’s] truck cab, as well as through the
            windshield of the truck, show [appellant] begin
            making the left turn without looking for oncoming
            traffic. [Appellant] had papers in his hands. Further
            testimony demonstrated that [appellant] was
            attempting to turn into the wrong address. As a
            result of the collision between the truck and the
            motorcycle, Mr. Aronis died at the scene. Thus, the
            evidence was clearly sufficient to sustain the guilty
            verdicts for both charges.

Trial court opinion, 12/30/15 at 2 (citations to record omitted).

      Appellant raises the following issues for this court’s review:

            1.    Whether the evidence was insufficient to
                  support a finding that [appellant] possessed
                  the mens rea necessary to support a
                  conviction for careless driving unintentionally
                  causing the death of another person, Title 75
                  Pa.C.S.A. § 3714(B)?

            2.    Whether the evidence was insufficient to
                  support the conviction for careless driving
                  unintentionally causing the death of another
                  person, 75 Pa.C.S.A. § 3714(B)?

            3.    Whether the evidence was insufficient to prove
                  beyond a reasonable doubt that your
                  [appellant] unintentionally caused the death of
                  another person where no autopsy was
                  performed on the victim by the Northampton
                  County Coroner’s Office?

            4.    Whether the evidence was insufficient to
                  support a finding that [appellant] initiated a
                  turn where there was no vehicle “so close as to
                  constitute a hazard in violation of vehicle
                  turning left”, Title 75 Pa.C.S.A. §3322?

Appellant’s brief at 3 (capitalization omitted).



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                  A claim challenging the sufficiency of the
            evidence is a question of law. Commonwealth v.
            Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751
            (2000). In that case, our Supreme Court set forth
            the sufficiency of the evidence standard:

                     Evidence will be deemed sufficient to
                     support the verdict when it establishes
                     each material element of the crime
                     charged and the commission thereof by
                     the accused, beyond a reasonable doubt.
                     Commonwealth v. Karkaria, 533 Pa.
                     412, 625 A.2d 1167 (1993). Where the
                     evidence offered to support the verdict is
                     in contradiction to the physical facts, in
                     contravention to human experience and
                     the laws of nature, then the evidence is
                     insufficient as a matter of law.
                     Commonwealth v. Santana, 460 Pa.
                     482, 333 A.2d 876 (1975).           When
                     reviewing a sufficiency claim the court is
                     required to view the evidence in the light
                     most favorable to the verdict winner
                     giving the prosecution the benefit of all
                     reasonable inferences to be drawn from
                     the evidence.       Commonwealth v.
                     Chambers, 528 Pa. 558, 599 A.2d 630
                     (1991).

            Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

      Section 3714 of the Vehicle Code, entitled “Careless driving,” provides

in pertinent part:

            (a)      General rule.--Any person who drives a
                     vehicle in careless disregard for the safety of
                     persons or property is guilty of careless
                     driving, a summary offense.

            (b)      Unintentional death.--If the person who
                     violates this section unintentionally causes the


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                    death of another person as a result of the
                    violation, the person shall upon conviction, be
                    sentenced to pay a fine of $500.

75 Pa.C.S.A. § 3714.

      Initially, appellant contends that while his conduct constituted criminal

negligence, it did not rise to the level of careless disregard for the safety of

persons or property as required by the Vehicle Code.

      “Careless disregard” is not defined in the Vehicle Code.               See

Commonwealth v. Wood, 475 A.2d 834, 836 (Pa.Super. 1984).                      In

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

stated that the term “careless disregard” implied less than willful or wanton

conduct but implied more than ordinary negligence or the absence of care.

      Here,       Pennsylvania     State     Trooper      Christopher      Maner

(“Trooper Maner”) testified that he was dispatched to the crash involving

appellant and Nicolas Aronis.      As part of his investigation, Trooper Maner

obtained a copy of the video that was taken from the inside of the vehicle.

There was one view of the inside of the cab and one view that was looking

out at the road, essentially the same view that appellant had.          (Notes of

testimony, 7/29/15 at 11.) Trooper Maner explained what he observed on

the video:

              [W]hat I saw was [appellant], he was looking down
              the road, east down Silvercrest, then looked left to
              see where he was turning into, and then began to
              turn and still keep his head turned left without
              having -- without turning his head back to recheck to
              see if it was still clear from traffic going westbound.


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Id. at 15.

      Trooper Maner also observed that appellant held a piece of paper in his

left hand as he was turning left. (Id. at 15.) Trooper Maner believed that

appellant may have been confused as to where he was turning because he

was turning into an address which was different from the address he told

Trooper Maner he sought. (Id. at 16.)

      The trial court, as fact finder, accepted this testimony. “It is within the

province of the fact finder to determine the weight to be accorded each

witnesses' testimony and to believe all, part, or none of the evidence

introduced at trial.”    Commonwealth v. Petroll, 696 A.2d 817, 823

(Pa.Super. 1997), citing Commonwealth v. Molinaro, 631 A.2d 1040,

1042 (Pa.Super. 1993).     As a result of this testimony and the trial court’s

own observation of the video, the trial court determined that appellant

began to turn left across the oncoming lane of traffic.      The video and the

testimony of Trooper Maner were sufficient for the trial court to conclude

that appellant’s failure to look at the lane of traffic before he crossed it and

the fact that he was driving with one hand constituted careless disregard.

See Gezovich.

      Appellant also contends that the Commonwealth failed to establish

that appellant unintentionally caused Aronis’s death where no autopsy was

performed.   Jason Nicholas (“Nicholas”), deputy coroner for the County of

Lehigh, investigated the death of Aronis.       While he did not perform an


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autopsy, he viewed the body and spoke with Trooper Maner. As a result of

his investigation, Nicholas concluded that the impact of the tractor-trailer

caused multiple traumatic injuries which led to Aronis’s death.        (Notes of

testimony, 7/29/15 at 42.) Nicholas explained on cross-examination that it

was the coroner’s office’s policy to not perform an autopsy if “they are going

to be summary offenses.” (Id. at 44.) Once again, the trial court accepted

the testimony of the Commonwealth’s witness. At trial, appellant’s attorney

attempted to question Nicholas as to whether Aronis suffered a heart attack

or an aneurysm prior to the collision, but the trial court sustained the

Commonwealth’s objections to this line of questioning. Appellant points to

no statute that required an autopsy.        Nicholas’s testimony and report

provide sufficient evidence for the conclusion that appellant’s driving caused

Aronis’ death and that appellant violated Section 3714.

      Finally, appellant contends that the evidence was insufficient to

support a finding that he initiated a turn when there was a vehicle “so close

as to constitute a hazard.” (Appellant’s brief at 12.)

      Section 3322 of the Vehicle Code provides,

            § 3322. Vehicle turning left

            The driver of a vehicle intending to turn left within an
            intersection or into an alley, private road or driveway
            shall yield the right-of-way to any vehicle
            approaching from the opposite direction which is so
            close as to constitute a hazard.

75 Pa.C.S.A. § 3322.



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      Trooper Dennis E. Sims, Jr., formerly a collision analyst reconstruction

specialist with the Pennsylvania State Police, testified that based on his

examination of the video, Aronis was not speeding.      (Notes of testimony,

7/29/15 at 39.) Trooper Maner testified that, based on the video, appellant

looked left into where he was turning and then turned without looking back

to the other lane of the road to see whether it was still clear. (Id. at 15.)

Given that appellant’s tractor-trailer collided with a motorcycle that was not

speeding when he turned and that appellant was not watching for oncoming

traffic when he turned, the trial court had sufficient evidence to conclude

that appellant violated Section 3322.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/7/2016




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