J-S54043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARCHAL D. THOMPSON                        :
                                               :
                       Appellant               :   No. 105 MDA 2019

       Appeal from the Judgment of Sentence Entered December 18, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-SA-0000082-2018


BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                            FILED NOVEMBER 13, 2019

        Appellant, Marchal D. Thompson, appeals from the Judgment of

Sentence entered in the Dauphin County Court of Common Pleas following his

conviction after a bench trial for Careless Driving (Unintentionally Causing the

Death of Another Person).1 He challenges the sufficiency of evidence

supporting his conviction. After careful review, we affirm.

        We glean the following facts from the trial court’s Opinion and certified

record. On December 26, 2017, Appellant was operating a truck-tractor/semi-

trailer combination vehicle in the left lane of Interstate 81 in West Hanover

Township, when he collided with the rear of a passenger SUV vehicle traveling

in the same direction. The rear-end impact caused the SUV to be propelled




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1   75 Pa.C.S. § 3714(b).
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forward and sideways, sideswiping a nearby commercial vehicle and a

passenger vehicle in the adjacent lane.

      The SUV’s driver sustained a broken nose, and the victim, a passenger

in the SUV, suffered serious injuries, including multiple spinal fractures, and

was taken to Hershey Medical Center. Several days later, she passed away

while undergoing surgery to treat the injuries sustained in the accident.

      At the scene of the accident, Pennsylvania State Police Trooper Jared

Troutman had spoken with all the vehicle operators involved and performed

an investigation. He concluded that Appellant’s truck-tractor/semi-trailer

combination vehicle was the sole cause of the accident.

      Appellant was charged with the summary offense of Careless Driving

(Unintentionally Causing the Death of Another Person). On March 21, 2018,

Appellant pleaded guilty to that charged offense in municipal court. The court

sentenced Appellant to pay the statutory $500 fine and court costs. Appellant

appealed to the Court of Common Pleas.

      The court held a de novo bench trial on December 18, 2018. The sole

witness at trial was Trooper Troutman who testified that Appellant told him at

the scene of the accident that, at the time of the accident, there was a glare

from the sun on his windshield that had inhibited his ability to see.

      Trooper Troutman further testified regarding the report he completed

pertaining to the accident, in which he indicated that the environmental factor

of sun glare contributed to the accident. However, he testified that he also

specified in the report that the “prime” factor contributing to the accident was

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driver action—that Appellant was driving too fast for the conditions. Trooper

Troutman could not recall the exact speed of Appellant’ s vehicle at the time

of the crash, but he testified that the type of severe vehicle damage to the

SUV observed at the accident scene strongly suggested that Appellant was

traveling at a high speed at the time of the collision. Trooper Troutman

testified that Appellant had not been driving his vehicle at an “assured clear

distance”2 from the SUV.

        Trooper Troutman informed the court that New Jersey law enforcement

authorities conducted an inspection of the braking system in Appellant’s

tractor-trailer, which indicated a possible defect with one of the axles in

Appellant’s braking system.3 However, the parties did not introduce other

evidence relating to Appellant’s braking system.

        At the conclusion of the trial, the court found Appellant guilty of Careless

Driving, and sentenced him to pay the statutory $500 fine and court costs.

Appellant did not file a post-sentence motion.

        Appellant timely appealed. Both Appellant and the trial court complied

with Pa. R.A.P. 1925.




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2 The “assured clear distance ahead rule,” which is codified in the Vehicle
Code, 75 Pa.C.S. § 3361, requires a motorist to be capable of stopping within
the distance that he or she can clearly see. Davis v. Wright, 156 A.3d 1261,
1271 (Pa. Super. 2017).

3   Appellant resides in the state of New Jersey.

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       Appellant    raises   the    following    issue   for   our   review:   “Did   the

Commonwealth fail to present sufficient evidence to sustain a conviction as to

careless driving?” Appellant’s Br. at 6. Specifically, he argues that the court

erroneously relied on the “assured clear distance” rule and failed to adequately

consider    the    exculpatory     evidence—that     glare     was   the   number     one

environmental factor associated with the accident and that there may have

been a defect with Appellant’s braking system.4 Id. at 12-14.

       Our standard of review applicable to challenges to the sufficiency of

evidence is well settled. “Viewing the evidence in the light most favorable to

the Commonwealth as the verdict winner, and taking all reasonable inferences

in favor of the Commonwealth, the reviewing court must determine whether

the evidence supports the fact-finder’s determination of all of the elements of

the crime beyond a reasonable doubt.” Commonwealth v. Hall, 830 A.2d

537, 541-42 (Pa. 2003). Further, a conviction may be sustained wholly on

circumstantial evidence, and the trier of fact—while passing on the credibility

of the witnesses and the weight of the evidence—is free to believe all, part, or

none of the evidence. Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa.

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4Appellant purports to challenge only the sufficiency of evidence against him.
However, Appellant’s argument that the court failed to adequately consider
certain evidence raises a weight of evidence challenge. To the extent that
Appellant asserts a challenge to the weight of evidence, this issue is waived
because he did not challenge the weight of evidence either orally or in writing
before sentencing or in a post-sentence motion. Commonwealth v. Bryant,
57 A.3d 191, 196-97 (Pa. Super. 2012); Pa.R.Crim.P. 607.



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Super. 2014). In conducting this review, the appellate court may not weigh

the evidence and substitute its judgment for that of the fact-finder. Id.

       The summary offense of Careless Driving is defined as “[a]ny person

who drives a vehicle in careless disregard for the safety of persons or

property[.]” 75 Pa.C.S. § 3714(a).5 “The mens rea requirement applicable to

[section] 3714, careless disregard, implies less than willful or wanton conduct

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

circumstances.” Commonwealth v. Gezovich, 7 A.3d 300, 301 (Pa. Super.

2010) (citation and internal quotations omitted).

       As noted above, the Commonwealth presented Trooper Troutman’s

testimony that the “prime” factor which caused the accident was driver

action—that Appellant was driving too fast for the conditions, conditions which

included glare. He opined that the severe damage to the SUV strongly

suggested that Appellant was traveling at a high speed at the time of the

collision and that Appellant was unable to stop within the distance that he

could clearly see. Trooper Troutman also testified that Appellant’s vehicle was

the sole cause of the accident and that the victim passed away while

undergoing surgery to treat the injuries she sustained in the accident.

Applying our standard of review, i.e., “viewing the evidence in the light most



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5A person who unintentionally causes the death of another person as a result
of Careless Driving shall be sentenced to pay a fine of $500. 75 Pa.C.S. §
3714(b).

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favorable to the Commonwealth as the verdict winner, and taking all

reasonable inferences in favor of the Commonwealth,” we conclude that the

evidence supports the trial court's determination that the Commonwealth

proved all of the elements of Careless Driving (Unintentionally Causing the

Death of Another Person). Accordingly, Appellant’s sufficiency challenge to his

Careless Driving conviction is meritless.

      Judgment of Sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2019




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