Com. v. Pearson, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MICHAEL ALLEN PEARSON
Appellant No. 1522 WDA 2016
Appeal from the Judgment of Sentence August 19, 2016
In the Court of Common Pleas of Cameron County
Criminal Division at No(s): CP-12-CR-0000056-2015
BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 12, 2017
Michael Allen Pearson appeals from the judgment of sentence of an
aggregate fine of $650 plus court costs imposed following his bench
conviction of five summary offenses: reckless driving; driving vehicle at
unsafe speed; driving on roadways laned for traffic; driving without a
license; drivers required to be licensed; and driving while operating privilege
suspended or revoked. We affirm.
On the evening of September 10, 2015, Emporium Borough Police
Officer Patrick Straub engaged Appellant in a high-speed vehicle pursuit in
Cameron County, Pennsylvania. The chase terminated when Officer Straub
lost control of his vehicle on a mountain road and collided with an
embankment. The road, known, alternatively, as State Route 3001, South
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Mountain Road, and Whittimore Hill Road, follows the tortuous contours of
South Mountain, which is a ridge that forms the southern border of the
Borough of Emporium. Officer Straub apprehended Appellant the following
day at his place of employment and charged him with seven violations of the
vehicle code, including fleeing or attempting to elude a police officer graded
as a felony of the third degree. While a jury acquitted Appellant of the
felony offense, the trial court convicted him of the five summary violations
listed above.
Although Officer Straub’s pursuit of Appellant was brief, we look at it
from the perspective of three separate witnesses: Emporium Borough Police
Chief David Merritt, Pennsylvania State Police Trooper Josiah Reiner, and
Officer Straub. First, Chief Merritt testified that, on the evening of
September 10, 2015, he observed Appellant, whom he has known for
approximately fifteen years, operating a vehicle on Sycamore Street in
Emporium. See N.T., 8/19/16, at 24. Chief Merritt lived on the corner of
Sycamore Street and South Wood Street and from his front porch, he
noticed Appellant drive down Sycamore, park in the middle of the street, exit
the vehicle, enter a nearby residence, return to the vehicle, and drive away.
Id at 26. There was no question in his mind that Appellant was the person
operating the automobile. Id. at 25-26. The witness was familiar with
Appellant’s driving history and knew that Appellant’s driving privileges had
been suspended. Id. at 26. Chief Merritt immediately contacted Officer
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Straub, who was patrolling the area, advised him that Appellant was driving
a gold or beige colored SUV, and informed the officer of Appellant’s location
so that Officer Straub could initiate a traffic stop for the violation. Id. at 27.
From his perspective of the ensuing chase, Chief Merritt observed Appellant
“turn right onto South Broad Street . . . and travel south, and immediately
behind him [he] saw [Officer Straub’s] marked patrol car and heard both
vehicles accelerate” down South Broad Street, across the South Street
Bridge, and begin the steep ascent up South Mountain Road. Id. at 28. The
witness observed the pursuit down Broad Street, but, his view was blocked
intermittently by houses located on Broad Street. Id. at 29-30, 31-33.
Next, Officer Straub testified that on September 10, 2015, he was
traveling northbound on South Broad Street in Emporium, when he received
the call from Chief Merritt advising him that he observed Appellant operating
a motor vehicle near the intersection of Second Street and South Broad
Street. Id. at 35. As Chief Merritt was describing Appellant’s vehicle and
reporting its location, Officer Straub viewed in his rearview mirror
Appellant’s car turn onto South Broad Street and precede south toward
South Mountain. Id. at 36. Officer Straub executed a U-turn and initiated
pursuit. Id. at 37. As Officer Straub approached Appellant’s car, he
observed Appellant travel into the oncoming lane of traffic in order to
negotiate a turn. Id. When Officer Straub illuminated his emergency lights,
Appellant accelerated away from the pursuit. Id. Officer Straub radioed Elk
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County Control to advise of the situation, activated his siren, and pursued
Appellant’s vehicle for approximately one-half mile as it started the ascent
up South Mountain Road. Id. at 37-38. He periodically lost direct sight of
the vehicle as Appellant maneuvered the sharp curves, but he was able to
follow the illumination of Appellant’s headlights and taillights as he traveled
up South Mountain Road. Id. at 52-53. Officer Straub explained that
Appellant would drive on the wrong side of the road in order to maintain
speed through curves. Id. at 62. Shortly thereafter, Officer Straub failed to
negotiate a hairpin turn and crashed the patrol vehicle. Id. at 39. According
to Officer Straub, the incident occurred on a clear night and the roads were
dry. Id. at 62.
When Appellant was apprehended the following day, he volunteered to
Officer Straub that he had been driving the previous night due to necessity.
Id. at 43-46. “He stated that his license was suspended and that he had to
drive because he had children.” Id. at 43. He continued “that his wife
would drop him off at work, but during his shift she would drop the vehicle
off so he could drive home at the end of his shift.” Id. at 44. He also
contested that the police officer activated his emergency lights in an attempt
to initiate a stop. Officer Straub recounted, “He stated that my lights and
siren weren't on, and I stated to him that they were and I pursued him up
South Mountain Road.” Id. at 46.
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Pennsylvania State Police Trooper Josiah Reiner witnessed part of the
chase, and he was present when Appellant volunteered the incriminating
statement. He testified that he was patrolling in Emporium near the
intersection of East Second Street and Broad Street when he observed a
vehicle turn from West Second Street on to southbound Broad Street. He
continued, “a few seconds [later] I observed the Emporium Borough police
car” follow the vehicle, and activate its lights in order to initiate a traffic
stop. Id. at 67. At that point, the vehicle accelerated across the South
Broad Street bridge and started up the hill. Id. Officer Straub activated the
siren on his patrol vehicle and followed, “and [Trooper Reiner] in turn
followed that police car.” Id. at 67. He heard Officer’s Straub’s radio call to
Elk County Control advising of the chase, and then heard an aborted
transmission that was apparently terminated by the collision. Id. at 69.
As it relates to the pre-Miranda statements Appellant made to officer
Straub, Trooper Reiner recalled “Officer Straub notified [Appellant] again of
the reason why he was arrested. And [Appellant] made several incriminating
remarks about how he needs to drive to do work every day; he needs to
support his family; he needs to do this, that and the other thing.” Id. at 73.
The trial court denied the ensuring motion to suppress the
incriminating statements and a related motion in limine. As noted, supra, a
jury acquitted Appellant of attempting to elude a police officer, and the trial
court convicted him of five summary traffic violations. Appellant filed a
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timely appeal challenging the sufficiency of the evidence supporting three of
the five convictions.
Appellant presents the following question for our review: “Whether . . .
the evidence was insufficient for the trial court to find [Appellant] guilty of
the summary offenses of reckless driving, driving vehicle at [un]safe speed,
and driving on roadways laned for traffic?” Appellant’s brief at 7. Appellant
does not challenge the sufficiency of the evidence supporting his convictions
for driving without a license and driving with a suspended license. For the
following reasons, no relief is due.
We apply the following standard of review of Appellant’s assertion that
the evidence was insufficient to sustain the verdicts against him:
[W]e examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury’s finding of all the elements of the offense beyond a
reasonable doubt. The Commonwealth may sustain its burden
by means of wholly circumstantial evidence.
Commonwealth v. Lloyd, 151 A.3d 662, 664 (Pa.Super. 2016).
Appellant’s first argument relates to identification. Stated plainly, he
argues that the Commonwealth failed to adduce evidence to demonstrate
beyond a reasonable doubt that he was operating the motor vehicle on the
evening of September 10, 2015. The crux of this contention is that Officer
Straub did not positively identify Appellant as the driver. This claim fails for
at least two reasons. First and foremost, Appellant admitted to operating
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the vehicle on the night in question, and Officer Straub and Trooper Reiner
both confirmed Appellant’s admission. Second, Police Chief Merritt did, in
fact, positively identify Appellant, whom he has known for approximately
fifteen years. He identified Appellant both inside and outside of the vehicle,
and relayed all of the pertinent information to Officer Straub. Indeed, Chief
Merritt confirmed that he was certain Appellant was the person operating the
automobile. Moreover, Chief Merritt testified that he not only witnessed
Appellant drive from Sycamore Street to South Broad Street, he also
observed a portion of Officer Straub’s pursuit of Appellant on South Broad
Street and heard both vehicles accelerate across the bridge. We reject
Appellant’s contention that the forgoing identification evidence was deficient
notwithstanding the fact that Officer Straub did not positively identify
Appellant during the chase and that Chief Merritt’s view of the action was
obstructed intermittently.
Appellant’s second argument relates to the reckless driving conviction.
That offense is defined as follows: “(a) General rule.—Any person who
drives any vehicle in willful or wanton disregard for the safety of persons or
property is guilty of reckless driving.” 75 Pa.C.S. § 3736(a). Appellant
contends that the Commonwealth failed to adduce evidence concerning the
nature of his driving. Again, we disagree.
During the trial, Officer Straub testified that Appellant accelerated
away from him when he attempted to initiate a traffic stop and that he
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crossed into the oncoming lane of traffic when he attempted to navigate a
curve prior to their ascent up South Mountain. Indeed, the officer explained
that, while he was able to stay on the right side of the twisty roadway
(except for the one hairpin turn he could not), “[Appellant] was driving on
the wrong side of the road to maneuver the curves faster.” N.T., at 62.
Appellant clearly disregarded the possibility of encountering oncoming traffic
or an unforeseen obstacle behind the next curve in the roadway. Under the
totality of the circumstances, and viewed in the light most favorable to the
Commonwealth as verdict winner, we find that the evidence is sufficient to
demonstrate the reckless nature of Appellant’s driving. See
Commonwealth v. Best, 120 A.3d 329 (Pa.Super. 2015) (testimony that
driver admitted entering opposite lane of travel, is sufficient to support
conviction for reckless driving). Hence, no relief is due.
Appellant’s next argument relates to the crime of driving at an unsafe
speed. That offense entails,
No person shall drive a vehicle at a speed greater than is
reasonable and prudent under the conditions and having regard
to the actual and potential hazards then existing, nor at a speed
greater than will permit the driver to bring his vehicle to a stop
within the assured clear distance ahead. Consistent with the
foregoing, every person shall drive at a safe and appropriate
speed when approaching and crossing an intersection or railroad
grade crossing, when approaching and going around curve, when
approaching a hill crest, when traveling upon any narrow or
winding roadway and when special hazards exist with respect to
pedestrians or other traffic or by reason of weather or highway
conditions
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75 Pa.C.S. § 3361.
Appellant argues that the Commonwealth did not present evidence to
establish the posted speed limits or the condition of the roadways when the
chase occurred. The Commonwealth counters that its evidence established
that Appellant drove his vehicle at a speed that exceeded what was
reasonable and prudent under the circumstances. We agree.
Contrary to Appellant’s protestations, the posted speed limit is
irrelevant under § 3361. In Commonwealth v. Heberling, 678 A.2d 794(Pa.Super. 1996), we noted that the focus of the § 3361 inquiry is on the
circumstances surrounding the operation of a vehicle and not excessive
speed per se. Id. at 796. We explained, “[t]here must be proof of speed
that is unreasonable or imprudent under the circumstances (of which there
must also be proof), which are the ‘conditions’ and ‘actual and potential
hazards then existing’ of the roadway.” Id. We identified the conditions
regarding the roadway itself as the most relevant consideration, “e.g.,
whether four-lane, interstate, or rural, flat and wide, or narrow and winding
over hilly terrain; smooth-surfaced, or full of potholes; clear, or under
construction with abrupt lane shifts.”
Instantly, Officer Straub testified at length about Appellant’s
acceleration up the tortuous mountain road that was inundated with
dangerous curves, which Appellant elected to navigate on the wrong side of
the road for the sake of maintaining his speed. While Officer Straub also
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testified that it was a clear, dry night, those conditions did not negate the
fact that, despite being the more cautious of the two drivers, he collided with
an embankment on a hairpin turn. We are satisfied that the
Commonwealth’s evidence sustained the conclusion that Appellant drove his
vehicle at a speed greater than a reasonable and prudent person would
under the existing conditions.
Finally, we address Appellant’s assertion that the evidence will not
sustain the finding that he violated what the Motor Vehicle Code defines as
driving on roadways laned for traffic. Pursuant to that section:
Whenever any roadway has been divided into two or more
clearly marked lanes for traffic the following rules in addition to
all others not inconsistent therewith shall apply:
(1) Driving within single lane.—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.
Appellant complains that the Commonwealth failed to prove beyond a
reasonable doubt that the pertinent roadways were marked with lanes or
that Appellant created a safety hazard by crossing into the lane designated
for oncoming traffic. No relief is due. First, Appellant does not cite any
legal authority for his proposition that the Commonwealth was required to
demonstrate, as an element of the offense, that South Broad Street and/or
State Route 3001, a/k/a South Mountain Road a/k/a Whittimore Hill Road,
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are in fact marked. “[W]here an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.” In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011). As Appellant
failed to cite relevant case law, develop his legal argument, or apply the law
to the facts of the case regarding this contention, it is waived.
Commonwealth v. Wise, 2017 WL 4079782, at *5 (issue waived where
appellant provided vague, undeveloped argument and neglected to cite to
controlling case law).
While Appellant also failed to support with relevant legal authority the
component of his argument relating to the nature of the transgression, i.e.,
whether he left the lane in an unsafe manner, we are cognizant that our
jurisprudence would not permit sanction for a de minimis offense. Thus, we
address the merits of this contention and reject it.
As the Commonwealth accurately observes, the certified record
highlights the danger Appellant created by choosing to drive against the
right of way simply in order to maintain his speed up the twisty mountain
road. As we noted, supra, Appellant clearly disregarded the possibility of
oncoming traffic or encountering an unforeseen obstacle in the roadway.
Under the totality of the circumstances, and viewed in the light most
favorable to the Commonwealth as verdict winner, the evidence is sufficient.
See Best, supra at 344 (testimony that appellant admitted entering the
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opposite lane of travel, is sufficient to support appellant's conviction for
driving on roadways laned for traffic).
For all of foregoing reasons, we find that the Commonwealth adduced
sufficient evidence to sustain the summary offenses of reckless driving,
driving vehicle at unsafe speed, and driving on roadways laned for traffic.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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