Com. v. Ishankulov, A. ( 2022 )

J-A03027-22
2022 PA Super 73COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANVAR ISHANKULOV :
:
Appellant : No. 830 EDA 2021
Appeal from the Judgment of Sentence Entered March 17, 2021
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-SA-0000318-2020
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
OPINION BY DUBOW, J.: FILED APRIL 20, 2022
Appellant, Anvar Ishankulov, appeals from the March 17, 2021
Judgment of Sentence of a fine of $10,200 plus additional court costs imposed
following his conviction for violating the Restrictions of Use of Highways and
Bridges statute, 75 Pa.C.S. § 4902. Appellant raises challenges to the
sufficiency of the evidence as well as the imposition of the fine and argues
that the fine was excessive and unconstitutional. Upon review, we affirm.
The relevant procedural and factual history, as gleaned from the trial
court’s Pa.R.A.P. 1925(a) Opinion, is as follows. In 2016, the County Line
Road Bridge (“the Bridge”) in Horsham was experiencing some structural
damage, which prompted the Commonwealth of Pennsylvania to conduct an
engineering study of the Bridge. The engineering study rated the Bridge as
capable of withstanding ten tons, or approximately 20,000 pounds, and
consequently the Commonwealth of Pennsylvania lowered the Bridge weight
J-A03027-22
limit to that amount. Signs indicating the weight limit of the Bridge were
posted both westbound and eastbound in intervals two miles ahead, one mile
ahead, 1000 feet ahead, and within 25 feet of the end of the bridge. On
February 24, 2020, Appellant drove a 56,300-pound tractor-trailer over the
County Line Road bridge heading west. After Appellant crossed the Bridge,
Police Officer Barrington Ramsay from the Horsham Township Police
Department stopped Appellant’s tractor-trailer and directed him to a weighing
station. Upon learning that Appellant’s tractor-trailer weighed 56,300 pounds,
over twice the legal weight limit for the bridge, Officer Ramsay issued a
citation for overweight vehicle.
On March 17, 2021, after the magisterial district judge found Appellant
guilty and Appellant filed a timely summary appeal, the trial court held a non-
jury trial de novo. The trial court heard testimony from Officer Ramsay, who
is a twenty-three-year veteran of the Horsham Township Police Department
and a state certified weight master.1 The Commonwealth also submitted
numerous exhibits without objection, including an engineering report that
deemed the Bridge weight restriction to be necessary because the Bridge was
deteriorating. Appellant testified on his own behalf.
Officer Ramsay testified in accordance with the above-stated facts.
Additionally, Officer Ramsay explained that there was a warning sign at the
____________________________________________
1Officer Ramsay explained that being a state certified weight master “basically
means that I can stop commercial motor vehicles or any vehicle in the
Commonwealth and check their weight if I suspect that these vehicles might
be overweight.” N.T. Trial, 3/17/20, at 4.
-2-
J-A03027-22
intersection of Park Road and County Line Road, visible from Park Road if you
looked left. Appellant testified, in relevant part, that he was traveling on Park
Road when he turned left onto County Line Road and was unable to turn his
53-foot vehicle around, so he proceeded to cross the bridge.
On the same day, the court found Appellant guilty of violating Section
4902(a) pertaining to Restrictions of Use of Highways and Bridges and
imposed a sentence of $10,200 in fines plus additional court costs.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. The evidence was insufficient, as a matter of law, to find
[Appellant] guilty, in a non-jury trial, of violating 75 Pa.C.S. §
4902(a) where the Commonwealth of Pennsylvania failed to
prove, beyond a reasonable doubt, that advance information
signs were erected pursuant to 75 Pa.C.S.[] § 4902(e) at the
intersection nearest [the] end of the [B]ridge in the direction
[Appellant] was traveling.
2. The trial court erred in not imposing a fine pursuant to 75
Pa.C.S.[] § 4902(g)(2) for a violation under 75 Pa.C.S. §
4902(b) of up to $500.
3. The trial [c]ourt erred in imposing a fine of [] $10,200 []
pursuant to 75 Pa.C.S.[] § 4902(g)(1) for a violation of 75
Pa.C.S.[] § 4902(a), as there was no proof as to the basis for
the imposition of said fine. The fine was both incorrect and
excessive.
4. The evidence was insufficient, as a matter of law, to find
[Appellant] guilty, in a non-jury trial, of violating 75 Pa.C.S.[]
§ 4902(a) where the Commonwealth of Pennsylvania failed to
prove, beyond a reasonable doubt, that restriction signs [were]
erected pursuant to 75 Pa.C.S.[] § 4902(e) designating the
restrictions within 25 feet of each end of [the B]ridge of a
-3-
J-A03027-22
portion of highway restricted in the direction Appellant was
traveling.
Appellant’s Br. at 4 (reordered for ease of disposition).2
Our standard of review from an appeal of a summary conviction heard
de novo by the trial court is limited to a determination of whether the trial
court committed an error of law and whether competent evidence supports
the findings of fact. Commonwealth v. Marizzaldi, 814 A.2d 249, 251 (Pa.
Super. 2002). “The adjudication of the trial court will not be disturbed on
appeal absent a manifest abuse of discretion.” Commonwealth v. Parks,
768 A.2d 1168, 1171 (Pa. Super. 2001). “An abuse of discretion exists when
the trial court has rendered a judgment that is manifestly unreasonable,
arbitrary, or capricious, has failed to apply the law, or was motivated by
partiality, prejudice, bias, or ill will.” Id. (citation omitted).
Appellant first challenges the sufficiency of the evidence supporting his
conviction. “When considering a challenge to the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all reasonable
inferences drawn therefrom, when viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to establish every element of
the offense beyond a reasonable doubt.” Commonwealth v. Reaser, 851
A.2d 144, 147 (Pa. Super. 2004) (citation omitted). “In applying the above
test, we may not weigh the evidence and substitute our judgment for the fact-
____________________________________________
2 In his Brief, Appellant has failed to include a section of Argument
corresponding to Question 4 as required by Pa.R.A.P. 2119(a). We, thus,
conclude that he has abandoned this issue and we decline to review it.
-4-
J-A03027-22
finder.” Commonwealth v. Melvin, 103 A.3d 1, 39–40 (Pa. Super. 2014)
(citation omitted). Additionally, the Commonwealth need not establish facts
and circumstances that preclude every possibility of innocence.
Commonwealth v. Estepp, 17 A.3d 939, 943 (Pa. Super. 2011). “Any
doubts regarding a defendant’s guilt may be resolved by the fact-finder 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.” Id. (citation
omitted). Notably, the Commonwealth may sustain its burden by presenting
wholly circumstantial evidence. Melvin, 103 A.3d at 40. “Moreover, in
applying the above test, the entire record must be evaluated[,] and all
evidence actually received must be considered. Finally, the finder of fact while
passing upon the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence.” Id. (citation
omitted).
In his first issue, Appellant avers that the Commonwealth failed to
demonstrate that the placing of the road signs complied with Section 4902(e).
Appellant’s Br. at 11. Specifically, Appellant argues that there was no
testimony that the Commonwealth placed an “advance informational sign at
the intersection nearest each end of the restricted bridge” as required by
Section 4902(e). Id. at 14 (citing 75 Pa.C.S. § 4902(e), emphasis omitted).
Appellant’s argument fails.
-5-
J-A03027-22
Section 4902(a)(1) allows the Commonwealth to impose weight
restrictions on vehicles utilizing highways or bridges after conducting an
appropriate engineering and traffic study, and provides:
The Commonwealth and local authorities with respect to highways
and bridges under their jurisdictions may prohibit the operation of
vehicles and may impose restrictions as to the weight or size of
vehicles operated upon a highway or bridge only when they
determine by conducting an engineering and traffic study as
provided for in the department regulations that the highway or
bridge may be damaged or destroyed unless use by vehicles is
prohibited or the permissible size or weight of vehicles is reduced.
75 Pa.C.S. § 4902(a)(1).
Relevant to this appeal, Section 4902(e) requires the Commonwealth to
erect “restriction signs” designating the restrictions within 25 feet of each end
of the restricted bridge. Id. at § 4902(e). When the restriction does not begin
at an intersection, Section 4902(e) also requires the Commonwealth to place
additional “advance informational signs” at the closest intersection to the
bridge to allow drivers to avoid the restricted bridge. Id. Finally, Section
4902(e) provides that no person can be convicted of violating subsection (a)
unless the restriction sign is posted as required at the ends of the bridge,
but clearly states that “failure to post any advance informational sign shall
not constitute a defense to a violation of this section.” Id. (emphasis added).3
____________________________________________
3 75 Pa.C.S. § 4902(e) provides verbatim:
(e) Erection of signs.--The Commonwealth and local authorities shall erect
or cause to be erected and maintained restriction signs designating the
restrictions within 25 feet of each end of a bridge or portion of highway
(Footnote Continued Next Page)
-6-
J-A03027-22
Here, Appellant argues that he turned from Park Road left onto County
Line Road and did not observe any advance informational signs and, therefore,
the Commonwealth did not meet their burden.
The statute clearly rejects Appellant’s argument as stated. As the trial
court opined: “[Section] 4902(e) makes clear that the failure to post any
advance information sign does not permit a driver to nonetheless drive an
overweight vehicle over a bridge.” Trial Ct. Op., dated 4/28/21, at 4
(unpaginated). We agree.
As stated above, Section 4902(e) clearly provides that “failure to post
any advance informational sign shall not constitute a defense to a violation
of this section.” 75 Pa.C.S. § 4902(e). As the statute bars the absence of an
advance informational sign as a defense, even if the Commonwealth failed to
present any evidence that there was an advance informational sign, or if
Appellant had presented affirmative evidence that there was no advance
____________________________________________
restricted as provided in subsection (a) or (b). In the case of a restriction on
a bridge or on a highway which does not begin or end at an intersection with
an unrestricted highway, the Commonwealth or local authorities shall also
place an advance informational sign at the intersection nearest each end of
the restricted bridge or portion of highway which would allow drivers to avoid
the restricted bridge or portion of highway. No person shall be convicted of
violating subsection (a) or (b) unless the restriction sign designating the
restricted bridge or portion of highway to traffic moving in the direction the
person was driving was posted as required in this subsection. However, failure
to post the restriction sign designating the restricted bridge or portion of
highway to traffic moving in the opposite direction or failure to post any
advance informational sign shall not constitute a defense to a violation of this
section.
-7-
J-A03027-22
informational sign, Appellant would not be entitled to relief on this claim of
error.
Moreover, even if the statute did not bar relief, our review of the record
belies Appellant’s claim that there were no advance informational signs. The
trial court credited Officer Ramsay’s testimony that advance informational
signs were posted both westbound and eastbound in intervals two miles
ahead, one mile ahead, 1000 feet ahead, and were posted visibly at the
intersection of Park Road and County Line Road. The court also credited
Officer Ramsay’s testimony that restriction signs were posted within 25 feet
of the Bridge. Accordingly, Appellant’s claim that the Commonwealth did not
present sufficient evidence to demonstrate that the Commonwealth placed
advanced informational sign at the intersection nearest each end of the
restricted bridge fails.
In his second issue, Appellant avers that the trial court erred in imposing
a fine under Section 4902(g)(1), which applies to violations of weight
restrictions based on the condition of a bridge pursuant to Section 4902(a),
instead of imposing a fine under Section 4902(g)(2), which applies when the
weight restriction is based on traffic conditions pursuant to Section 4902(b).
Appellant’s Br. at 15 (citing 75 Pa.C.S. § 4902(a)-(b), (g)). Appellant argues
that the Commonwealth failed to demonstrate a reason for the Bridge’s weight
restriction and, therefore, the trial court should have imposed a lesser fine of
$500 under subsection (g)(2). Id. at 14-15.
-8-
J-A03027-22
Once again, our review of the record belies Appellant’s claim. The
Commonwealth did, in fact, present testimony from Officer Ramsay that the
Commonwealth imposed weight restrictions on the Bridge due to the Bridge’s
deteriorating condition. N.T. Trial, 3/17/20, at 5-6. The Commonwealth also
entered into evidence, without objection, an engineering study that explained
“[t]his bridge restriction is necessary based on recent inspection findings and
increased deterioration of the stone masonry arch barrel and wingwalls.”
Exhibit C-1. Our review of the record indicates that the Commonwealth
presented sufficient evidence to demonstrate that the Bridge’s weight limit
was based on the condition of the Bridge, and, therefore, the trial court did
not err when it convicted Appellant of violation Section 4902(a) and imposed
of a fine under Section 4902(g)(1).4
In his final issue, Appellant argues that the trial court’s statutorily-
mandated fine was excessive and argues, for the first time on appeal, that the
fine was contrary to both the United States and Pennsylvania constitutions.
Appellant’s Br. at 17. Specifically, Appellant argues that the imposed fine
violates the constitutional prohibition against excessive fines in Article I,
Section 13 of the Pennsylvania Constitution and in the Eighth Amendment to
the United States Constitution. Id. at 18.
____________________________________________
4 Moreover, Appellant fails to explain how the trial court could impose a fine
under Section 4902(g)(2), which applies when the weight restriction is based
on traffic conditions pursuant to Section 4902(b), when the Commonwealth
failed to charge Appellant with a violation of Section 4902(b).
-9-
J-A03027-22
As an initial matter, we must address whether Appellant has preserved
this issue for our review. The Commonwealth argues that this issue is waived
because Appellant failed to raise the issue before the trial court or in his Rule
1925(b) and is raising it for the first time on appeal. Commonwealth Br. at
13-14 (citing Pa.R.A.P. 302(a), 1925(b)). Both assertions are true and would
generally result in waiver of an issue.
However, our Supreme Court has held that a challenge to a statute’s
mandatory fine on grounds that it is unconstitutionally excessive implicates
the legality of the sentence. Commonwealth v. Eisenberg, 98 A.3d 1268,
1277 (Pa. 2014). A legality of sentence challenge is “not subject to the
traditional waiver doctrine” and can be raised for the first time on appeal,
regardless of whether it was included in a Rule 1925(b) Statement.
Commonwealth v. Hodges, 193 A.3d 428, 432 (Pa. Super. 2018) (citation
omitted). Accordingly, we decline to find this issue waived and will proceed
to address its merits.
“Whether a fine is excessive under our Constitution is a question of law,
therefore our standard of review is de novo and our scope of review is
plenary.” Eisenberg, 98 A.3d at 1279. “The Pennsylvania Supreme Court
has consistently held that enactments of the General Assembly enjoy a strong
presumption of constitutionality. All doubts are to be resolved in favor of
sustaining the constitutionality of the legislation.” Commonwealth v.
Barnett, 50 A.3d 176, 196 (Pa. Super. 2012) (citations omitted). “In order
for an act to be declared unconstitutional, the challenging party must prove
- 10 -
J-A03027-22
the act clearly, palpably[,] and plainly violates the constitution.” Id. at 197(citation and internal quotation marks omitted).
Moreover, “Pennsylvania courts have repeatedly and unanimously held
that the Pennsylvania prohibition against cruel and unusual punishment is
coextensive with the Eighth and Fourteenth Amendments to the United States
Constitution, and that the Pennsylvania Constitution affords no broader
protection against excessive sentences than that provided by the Eighth
Amendment to the United States Constitution.” Commonwealth v. Elia, 83
A.3d 254, 267 (Pa. Super. 2013) (citation and internal quotation marks
omitted). Accordingly, we only need to review Appellant’s claim under the
Eighth Amendment. Barnett, 50 A.3d at 197.
The Eighth Amendment to the United States Constitution provides that
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” U.S. Const., Amend. VIII. “The Cruel
and Unusual Punishment clause prohibits not only barbaric punishments, but
also sentences that are disproportionate to the crime committed.” Elia, 83
A.3d at 268 (Pa. Super. 2013) (citation and internal quotation marks omitted).
However, “[t]he Eighth Amendment does not require strict proportionality
between crime and sentence. Rather, it forbids only extreme sentences which
are grossly disproportionate to the crime.” Commonwealth v. Baker, 78
A.3d 1044, 1047 (Pa. 2013) (citation omitted).
In order to determine if a sentence violates the Eighth Amendment, this
Court should apply a three-pronged test, including:
- 11 -
J-A03027-22
(i) the gravity of the offense and the harshness of the penalty; (ii)
the sentences imposed on other criminals in the same jurisdiction;
and (iii) the sentences imposed for commission of the same crime
in other jurisdictions.
Id. (citation omitted). Importantly, we are not obligated to reach the second
and third prongs of the test “unless a threshold comparison of the crime
committed and the sentence imposed leads to an interference of gross
disproportionality.” Commonwealth v. Succi, 173 A.3d 269, 285 (Pa.
Super. 2017) (citation omitted).
Our Supreme Court has explained that “[t]he primary purpose of a fine
or a penalty is twofold: to punish violators and to deter future or continued
violations.” Eisenberg, 98 A.3d at 1283 (citation omitted). Moreover,
“[s]ince it serves not only as a punishment but also as a deterrent, the amount
of the fine can be raised to whatever sum is necessary to discourage future or
continued violations, subject, of course, to any restriction imposed on
the amount of the fine by the enabling statute or the Constitution.” Id.
(citation omitted).
As discussed above, Section 4902(g)(1) establishes the mandatory fines
for a violation of Section 4902(a) and provides, in relevant part: “any person
convicted of operating a vehicle with a gross weight in excess of a posted
weight shall, upon conviction, be sentenced to pay a fine of $150 plus $150
for each 500 pounds, or part thereof, in excess of 3,000 pounds over the
maximum allowable weight.” 75 Pa.C.S. § 4902(g)(1).
Our review of the record reveals that Appellant’s truck weighed
approximately 56,300 pounds and the Bridge’s maximum posted weight was
- 12 -
J-A03027-22
approximately 20,000 pounds, a difference of 36,300 pounds. The statute
imposes a fine of $150 plus $150 for every 500 pounds that exceeds the 3000-
pound allotment. Accordingly, the trial court imposed a fine on 33,300 pounds
(36,300 minus 3000-pound allotment) for a total fine of $10,200.
Appellant argues that the $10,200 imposed fine, although statutorily
mandated, “bears no relationship to the offense charged” and is “grossly
excessive and unduly punitive.” Appellant’s Br. at 21. Our Supreme Court
has repeatedly rejected Appellant’s argument.
In Commonwealth v. Smith, 187 A.2d 267 (Pa. 1963), the
Pennsylvania Supreme Court rejected the same challenge to a prior version of
the overweight provisions of the Motor Vehicle Code and explained:
The purpose of the overweight provision of The Vehicle Code is to
protect the highways of the Commonwealth from damage and to
insure the safety of those traveling upon the highways. The fine
provision, of course, is designed to deter potential violators. It
was quite evident to the 1955 session of the legislature that the
$50 fine for each violation, imposed by the previous act, was not
serving this function since the profits accruing from the excess
loads more than compensated for the penalty inflicted. That
legislature, therefore, decided to increase the amount of the fines
and to graduate them according to the amount of the overweight,
instead of imposing a flat rate for each violation. Such a decision
was not irrational or unreasonable, but on the contrary was quite
sensible, and hence there is no merit to appellant's contention.
Id. at 270 (internal citations omitted, emphasis in original). More recently, in
Commonwealth v. Church, 522 A.2d 30 (Pa. 1987), our Supreme Court held
that a statutorily mandated fine of $13,517.50 pursuant to Section 4902(g)(1)
was not excessive under the Eighth Amendment and remanded to the trial
- 13 -
J-A03027-22
court for resentencing and imposition of the statutorily mandated fine. Id. at
34, 36. The Church Court emphasized that the increase in fines since Smith
was decided was of no moment:
That the amount of the overweight fines, and each increment
thereof, has risen since Smith was decided, does not, in our view,
affect the analysis or alter the result in Smith unless it could
somehow be shown that the amount of the fines was so great as
itself to be confiscatory and beyond the bounds of all reason and
justice. No such showing has been made here. Moreover, the
amount of a fine need not be limited to the cost incurred by the
Commonwealth for each violation.
Church, 522 A.2d at 34. Simply put, the Church Court held “[t]here is no
legitimate argument here to the effect that the rising scale of penalties for the
type of overweight violation at issue is excessive under the Eighth
Amendment.” Id.
We are bound by the precedent discussed above and decline to conclude
that Appellant’s fine was excessive and/or a violation of the Eighth
Amendment. The fine scheme imposed in Church pursuant to Section
4902(g)(1) is identical to the fine scheme imposed in the instant case.
Notably, Appellant’s total fine of $10,200 is significantly less than the $13,517
fine considered in Church over thirty years earlier, lending more support to
the rejection of Appellant’s argument and our conclusion that the fine is
neither confiscatory nor beyond the bounds of all reason. For the foregoing
reasons, Appellant is not entitled to relief on his constitutional challenge.
In conclusion, the Commonwealth presented sufficient evidence to
convict Appellant of a violation of Section 4902(a), the trial court correctly
- 14 -
J-A03027-22
imposed a fine under section 4902(g)(1), and the imposed fine was not
excessive nor unconstitutional.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2022
- 15 -