Com. v. Goral, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JOHN M. GORAL
Appellant No. 1105 WDA 2018
Appeal from the Judgment of Sentence Entered July 17, 2018
In the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-SA-0000840-2018
BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ.
DISSENTING MEMORANDUM BY STABILE, J.: FILED OCTOBER 03, 2019
The Learned Majority concludes that sufficient evidence supports
Appellant’s summary conviction for failure to stop at a stop sign.1 In so
concluding, the Majority defers to the trial court’s factual findings and
credibility determinations. I respectfully disagree with the Majority’s
conclusion because this is one of those rare cases where a dash cam video,
included in the certified record, contradicts the trial court’s findings and
credibility determinations. Contrary to the trial court’s findings, as adopted
by the Majority, my review of the video clearly reveals that Appellant’s vehicle
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1 75 Pa.C.S.A. § 3323(b). Appellant also was charged and convicted of driving
without wearing a seat belt under 75 Pa.C.S.A. § 4581(a)(2)(ii). To the extent
the record reflects that Appellant was convicted under subsection (a)(2)(i) for
the seat belt violation, it appears to be a typographical error, as subsection
(a)(2)(i) applies only to minors.
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came to a complete stop at the intersection in question. As a result, I would
vacate Appellant’s conviction under Section 3323(b) for want of sufficient
evidence.2
At Appellant’s de novo trial, the Commonwealth offered the testimony
of Officer Christopher Arthur, Cheswick Borough Police Department. Officer
Arthur testified that he observed Appellant’s vehicle leaving a Sunoco gas
station parking lot and turning right to proceed onto Cheswick Avenue. N.T.
Trial, 7/17/18, at 6. Officer Arthur further testified that Appellant’s vehicle
“came to the stop sign and quickly decelerated and failed to come to a
complete stop at the stop sign at Spruce and Cheswick Avenue. It continued
through the intersection sharply.” Id. Officer Arthur elaborated:
[The vehicle] was speeding up as it was leaving the parking lot.
So, it was traveling pretty quickly down the roadway. It did
decelerated [sic] very quickly as though the brake was being
pressed and then released without coming to a complete stop. It
looked to me from behind the vehicle that it rolled through the
stop sign without coming to a complete stop.
Id. at 7. When asked by the trial court after he had watched the dash cam
video3 whether Appellant’s vehicle came to full stop, Officer Arthur replied:
“No, Your Honor. It appears that he decelerated sharply and failed to come
to a complete stop and continued driving forward again.” Id. at 13.
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2As discussed below, I also would vacate Appellant’s conviction for driving
without wearing a seat belt under Section 4581(2)(ii).
3 As the Majority observes, Appellant introduced into evidence his own dash
cam video from the night of the incident in question. Maj. Mem. at 2.
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In his defense, Appellant testified that his dash cam video depicts that
his vehicle did come to a complete stop. Id. at 10-11. Appellant pointed out
that
if you listen not only can you see and reflected at the stop sign
the reflection in the headlight of the car that’s parked facing me
on the right-hand side of the road that I 100 percent stopped. You
can also hear the deceleration of the engine. And my foot going
from the gas pedal to the brake pedal at the stop and back to the
gas to reaccelerate.
Id. at 10(sic). Following trial, the court found that Appellant’s vehicle did not
come to a complete stop, but rather rolled through the stop sign. The court
stated:
Well, I saw the video and I also believe that you rolled through it.
Slowly. But you did roll through it. I find you guilty. You did not
stop. . . . Your video does not prove that you stopped. It shows
me that you rolled through it slowly. I agree you did decelerate.
Deceleration is not stopping.
Id. at 14. Appellant pro se timely appealed. Both Appellant and the trial
court complied with Pa.R.A.P. 1925. The crux of Appellant’s argument on
appeal is that his conviction for the stop sign violation is unsupported by
sufficient evidence, because the dash cam video shows that he fully stopped
at the stop sign at the intersection of Cheswick Avenue and Spruce Street.4
In reviewing the sufficiency of the evidence, we must determine whether
the evidence admitted at trial and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the Commonwealth as verdict winner,
were sufficient to prove every element of the offense beyond a reasonable
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4 Like the Majority, I too decline to find waiver based on Appellant’s
noncompliance with Pa.R.A.P. 2116(a).
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doubt. Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013). “[T]he
facts and circumstances established by the Commonwealth need not preclude
every possibility of innocence.” Commonwealth v. Colon-Plaza, 136 A.3d
521, 525–26 (Pa. Super. 2016). It is within the province of the fact-finder to
determine the weight to be accorded to each witness’s testimony and to
believe all, part, or none of the evidence. Commonwealth v. Tejada, 107
A.3d 788, 792–93 (Pa. Super. 2015). The Commonwealth may sustain its
burden of proving every element of the crime by means of wholly
circumstantial evidence. Commonwealth v. Crosley, 180 A.3d 761, 767
(Pa. Super. 2018). As an appellate court, we may not re-weigh the evidence
and substitute our judgment for that of the fact-finder. Commonwealth v.
Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015).
Nonetheless, “[w]here the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human experience and
laws of nature, then the evidence is insufficient as a matter of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000); see
Commonwealth v. Santana, 333 A.2d 876, 878 (Pa. 1975) (“It is settled
law in Pennsylvania that testimony in conflict with the incontrovertible physical
facts and contrary to human experience and the laws of nature must be
rejected.”).
In Commonwealth v. Griffin, 116 A.3d 1139 (Pa. Super. 2015), the
appellant argued that the trial court abused its discretion in denying his
suppression motion where the illegal nature of the seized evidence was not
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immediately apparent to the police officer without further manipulation. We
agreed, concluding that the immediately apparent requirement of the plain
feel doctrine was not met in that case. We noted that the officer’s testimony
at the hearing was inconsistent with what was depicted on the police dash
cam video. Specifically, we explained that “the video clearly depicts the officer
repeatedly manipulating appellant’s pocket. This is one of those rare cases
where a dash cam video, which was made a part of the certified record, can
contradict a trial court’s factual finding often based on its credibility
determinations.” Id. at 1143.
Section 3323 of the Vehicle Code provides in relevant part:
Except when directed to proceed by a police officer or
appropriately attired persons authorized to direct, control or
regulate traffic, every driver of a vehicle approaching a stop sign
shall stop at a clearly marked stop line or, if no stop line is present,
before entering a crosswalk on the near side of the intersection
or, if no crosswalk is present, then at the point nearest the
intersecting roadway where the driver has a clear view of
approaching traffic on the intersecting roadway before entering.
75 Pa.C.S.A. § 3323(b).
As recited above and recounted by the Majority, the trial court found
Appellant guilty of the stop sign violation because of Officer Arthur’s
testimony, which the court found credible, and the dash cam video.
Specifically, the trial court found:
On March 19, 2018, Officer [Arthur], of the Cheswick Borough
Police Department, was in a marked vehicle when he observed
[Appellant] fail to stop at a stop sign. Officer Arthur testified that
[Appellant] “came to the stop sign and quickly decelerated and
failed to come to a complete stop.” He elaborated that
[Appellant’s] vehicle “decelerated very quickly as though the
brake was being pressed and then released without coming to a
complete stop.” Additionally, Officer Arthur observed [Appellant]
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put on his seat belt after he initiated the traffic stop and
approached the vehicle.
....
The credible testimony of Officer Arthur was sufficient to establish
that [Appellant] violated [Section] 3323 by failing to stop at the
stop sign and violated [Section] 4581 by failing to wear his seat
belt.
Trial Court Opinion, 11/14/18, at 1-2.
Instantly, upon my careful review of the dash cam video, and consistent
with Griffin, I am constrained to agree with Appellant. Contrary to Officer
Arthur’s testimony, at timestamp 08:42:50-52, the video depicts that
Appellant’s vehicle came to a complete two-second stop at the intersection.
First, the video features sounds consistent with Appellant’s pressing the
vehicle’s brakes to decelerate and releasing the same after the stop for
purposes of accelerating. Second, the video confirms that Appellant’s vehicle
stopped because the movement of Appellant’s vehicle, or the lack thereof in
this case, can be gauged vis-à-vis the road and the overhead streetlights.
Finally, the reflection of the headlights of Appellant’s vehicle on the parked
vehicles confirms that the vehicle stopped at the intersection. The video in
this case is not only the best evidence, but it also clearly rebuts Officer Arthur’s
testimony regarding the events surrounding the traffic stop at issue. Similar
to Griffin, this too is one of those rare cases where a dash cam video belies
the trial court’s findings and credibility determination. Accordingly, I would
vacate Appellant’s conviction for failure to stop at a stop sign under Section
3323(b).
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Additionally, Appellant’s conviction pursuant to Section 4581(a)(2)(ii),
which provides in relevant part that “each driver and front seat occupant of a
passenger car . . . operated in this Commonwealth shall wear a properly
adjusted and fastened safety seat belt system,” also must be set aside. Under
Section 4581(b), “[n]o person shall be convicted of a violation of subsection
(a)(2)(ii) unless the person is also convicted of another violation of [the
Vehicle Code] which occurred at the same time.” 75 Pa.C.S.A. § 4581(b).
Because I conclude that Appellant’s summary conviction for failure to stop at
a stop sign was unsupported by sufficient evidence, because the dash cam
video depicts his vehicle coming to a complete stop, his summary conviction
for driving without wearing a seat belt cannot be sustained under Section
4581(b). I, therefore, respectfully dissent and would vacate Appellant’s
judgment of sentence.
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