J-S09016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
               v.                                :
                                                 :
                                                 :
    WILLIAM JOHN RUSSELL                         :
                                                 :
                       Appellant                 :   No. 670 MDA 2017

             Appeal from the Judgment of Sentence March 16, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0004997-2016


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY McLAUGHLIN, J.:                                FILED APRIL 16, 2018

        William John Russell appeals from the judgment of sentence entered

on March 16, 2017, in the Lancaster County Court of Common Pleas, after

the trial court found him guilty of driving under the influence of alcohol

(“DUI”),    driving     under    suspension      (“DUS”)-DUI       related,   driving   an

unregistered        vehicle,    operating      vehicle   without     required    financial

responsibility, driving within single lane and careless driving.1 On appeal,

Russell challenges the sufficiency of the evidence supporting his convictions

for driving within single lane and for careless driving. We affirm.


____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3802(a)(1), 1543(b)(1), 1301(a), 1786(f), 3309(1),
3714(a), respectively.
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     We have gleaned the underlying facts and procedural history from the

trial court’s opinion and the certified record. On June 12, 2016, a dry and

sunny day, Russell was riding his motorized dirt bike through an empty

grass field north of Old Philadelphia Pike in Lancaster County, Pennsylvania.

At some point in the afternoon, Russell stopped riding and consumed several

alcoholic beverages. N.T., 3/2/17, at 23-24. Thereafter, Russell attempted to

return home by leaving the grass field and entering Old Philadelphia Pike.

Russell admitted that his motorized dirt bike, complete with “knobby tires,”

was not suitable for use on the road and therefore claimed that he walked

his bike onto the road. Id. at 22. However, the trial court found that

contention to not be credible, instead concluding that Russell attempted to

drive his bike on the road. See Trial Court Opinion, filed Aug. 4, 2017

(1925(a) Op.), at 6.

     Upon entering the road, Russell lost control of his bike, resulting in a

single-vehicle accident. Eventually, a woman passing by helped remove the

bike, which was on top of Russell, and called an ambulance to transport

Russell   to   Lancaster   General   Hospital   (“LGH”).   N.T.   at   24-25.   At

approximately 2:45 p.m. that afternoon, Pennsylvania State Trooper Harold

Fleming was dispatched to the scene. By the time he arrived, Russell had

already been transported to the hospital. Trooper Fleming observed Russell’s

motor bike laying on the side of the road facing eastbound, with some minor

damage, positioned with the handlebars resting in the grass and the rest of


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the bike in the road. Id. at 7-8. Upon further investigation, Trooper Fleming

noted that the motor bike lacked turn signals, a license plate, and a vehicle

registration. Id. at 15-18.

       Trooper Fleming proceeded to LGH to interview Russell, who sustained

an injury to his left leg and who was in a neck brace with a blood-covered

face. Id. at 9-10. Trooper Fleming could detect a strong odor of alcohol

emanating from Russell. Id. Russell admitted that he had been riding with a

suspended license and Trooper Fleming confirmed that Russell’s license

revocation was in effect at the time of the accident. Id. at 11-12.

       After a bench trial on March 2, 2017, the trial court found Russell

guilty of the aforementioned charges. On March 16, 2017, the court

sentenced Russell, after noting that that the instant case constituted his fifth

overall DUI conviction, to an aggregate term of 120 days to six months’

incarceration, plus fines and costs.2 After Russell filed the instant timely

appeal and a court ordered Pa.R.A.P. 1925(b) statement, the trial court filed

a Pa.R.A.P. 1925(a) opinion on August 4, 2017.

       Russell raises the following issues for our review:

       A. Was the evidence presented by the Commonwealth []
          insufficient to prove beyond a reasonable doubt that Mr.
          Russell committed the offense of failing to drive within a
          single lane, a violation of 75 Pa.C.S. § 3309(1), where there
____________________________________________


2 We note that Russel was assessed over $900 in fines. Most relevant to the
instant case, Russel was fined a combined $50 for the two counts he
challenges here, driving within a single lane and careless driving.



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         was no evidence regarding how or where the accident
         occurred, let alone evidence that having an accident which
         may have involved leaving the lane of travel constituted a
         violation of Section 3309?

      B. Was the evidence presented by the Commonwealth []
         insufficient to prove beyond a reasonable doubt that Mr.
         Russell committed the offense of careless driving, a violation
         of 75 Pa.C.S. § 3714, where there was no evidence as to how
         the accident occurred, or whether he was driving in a manner
         which endangered the safety of others?

Russell’s Brief at 6.

      Both of Russell’s issues concern a challenge to the sufficiency of the

evidence. “Because evidentiary sufficiency is a question of law, our standard

of review is de novo and our scope of review is plenary.” Commonwealth

v. Ballard, 80 A.3d 380, 390 (Pa. 2013) (citation omitted). Specifically, we

must determine whether, when viewed in a light most favorable to the

verdict winner, the evidence at trial and all reasonable inferences therefrom

are sufficient for the trier of fact to find that each element of the crime

charged is established beyond a reasonable doubt. See Commonwealth v.

Dale, 836 A.2d 150, 152 (Pa.Super. 2003). “The Commonwealth may

sustain its burden of proving every element of the crime beyond a

reasonable    doubt     by   means   of    wholly   circumstantial   evidence.”

Commonwealth v. Brown, 23 A.3d 544, 559 (Pa.Super. 2011) (en banc)

(citation omitted).

      Further, “[a]s an appellate court, we do not assess credibility nor do

we assign weight to any of the testimony of record.” Commonwealth v.

Kinney, 863 A.2d 581, 584 (Pa.Super. 2004) (citation omitted). Therefore,


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we will not disturb the verdict “unless the evidence is so weak and

inconclusive that as a matter of law no probability of fact may be drawn

from the combined circumstances.” Commonwealth v. Bruce, 916 A.2d

657, 661 (Pa.Super. 2007) (citation omitted).

      In his first issue, Russell contends that the evidence was insufficient to

support his conviction for failing to drive within a single lane of traffic under

75 Pa.C.S. § 3309(1) because the Commonwealth did not present evidence

regarding exactly how the accident occurred. Further, Russell emphasizes

that even assuming arguendo that he failed to drive within a single lane, the

Commonwealth failed to present any evidence that the safety of anyone

other than himself was endangered. To this end, Russell cites only to this

Court’s decision in Commonwealth v. Feczko, 10 A.3d 1285 (Pa.Super.

2010) (en banc) for the proposition that, in order to be convicted under

Section 3309, the Commonwealth must present evidence that the failure to

remain in a single lane of traffic endangered other vehicles.

      Conversely, the trial court concluded that the testimony at trial, which

established that the accident occurred when Russell was attempting to enter

the roadway from an empty field and pinpointed the location that the bike

was discovered shortly after the accident, sufficiently supported Russell’s

conviction for failure to drive within a single lane. We agree and conclude

Russell’s first issue merits no relief.




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     Section 3309 of the Vehicle Code provides in pertinent part that “[a]

vehicle shall be driven as nearly as practicable entirely within a single lane

and shall not be moved from the lane until the driver has first ascertained

that the movement can be made with safety.” 75 Pa.C.S. § 3309(1).

     In this case, Russell’s reliance on Feczko is inapposite. In Feczko,

this Court concluded, in the context of a review of the denial of a

suppression motion, that a state trooper’s observation of a defendant’s

vehicle making numerous contacts with a fog line, in addition to the

observation of oncoming traffic creating a hazard, was sufficient to provide

the trooper with probable cause to believe that the defendant violated

Section 3309(1). Feczko, 10 A.3d at 1291-92. Here, Russell suggests that

his conviction under Section 3309(1) was not supported by sufficient

evidence because Trooper Fleming could not provide similar testimony

regarding Russell’s alleged breach of a single lane of traffic and any

accompanying safety hazards because the trooper arrived on the scene after

the accident had already occurred.

     However, viewing the evidence in the light must favorable to the

Commonwealth, as we must under our standard of review, we hold that

sufficient circumstantial evidence supported Russell’s conviction under

Section 3309(1). See Dale, 836 A.2d at 152; Brown, 23 A.3d at 559. As

noted by the trial court, Russell’s own testimony established that he

attempted to enter a single lane of traffic in an unsafe manner by driving a


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vehicle not meant for the road, thereby causing an accident. Trooper

Fleming was able to corroborate this series of events by testifying regarding

the placement of Russell’s dirt bike, half-way on the side of the road and

half-way on the grass, at the scene of the accident. Therefore, we conclude

that the trial court did not err by finding that Russell’s conviction under

Section 3309(1) was supported by sufficient evidence.

      Turning to his second issue, Russell contends that the Commonwealth

failed to present sufficient evidence to support his conviction for careless

driving under 75 Pa.C.S. § 3714. Specifically, Russell asserts that because

no one witnessed the accident and the accident only involved himself, the

Commonwealth failed to prove that Russell’s actions showed a “careless

disregard of the rights or safety of others.” We decline to agree and conclude

that Russell’s second issue also lacks merit.

      Section 3714(a) of the Vehicle Code, 75 Pa.C.S.A. § 3714(a), provides

that “[a]ny person who drives a vehicle in careless disregard for the safety

of persons or property is guilty of careless driving, a summary offense.” This

court has defined the mens rea for careless driving, “careless disregard,” as

“less than willful or wanton conduct but more than ordinary negligence.”

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

      In this case, ample evidence supported Russell’s conviction for careless

driving under Section 3714(a). Russell entered the roadway from a

precarious position, having consumed multiple alcoholic beverages, with a


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vehicle that he admitted was dangerously unsuitable for the road. Thus, we

conclude that Russell’s actions demonstrated a careless disregard for the

safety of other potential drivers on the roadway and hold that the trial court

did not err by determining that the evidence was sufficient to support

Russell’s conviction for careless driving under Section 3714(a).

      Judgment of Sentence affirmed.



President Judge Gantman joins the memorandum.

Judge Platt concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/2018




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