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HomeMy WebLinkAboutCP-21-SA-0000002-2018COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CHARGES: (1) REQUIREMENT FOR COM WRCIAL DRIVER'S LICENSE (4 COUNTS) (2) UNLAWFUL ACTIVITIES V. (6 COUNTS) (3) REGISTRATION AND CERTIFICATE OF TITLE REQUIRED (4) IDENTIFICATION MARKERS : & LICENSE OR ROAD TAX REGISTRATION CARD REQUIRED EDWIN GIANG : CP -21 -SA -2-2018 IN RE: OPINION PURSUANT TO PA. RA.P.1925. OLER, S.J., August 14, 2018. In this summary offense case, Defendant has appealed from a judgment of sentence for various Vehicle Code offenses! The basis for the appeal has been expressed in a statement of errors complained of on appeal as follows: The verdict of guilt as to all summary traffic violations was based upon insufficient evidence and the verdict of the Court should be set aside as to each and every charge? This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As a result of two traffic stops on September 24, 2017, Defendant was cited for driving a commercial vehicle without a commercial driver's license (four counts),3 'Defendant's Notice of Appeal to Superior Court, filed May 21, 2018. 2 Defendant's Concise Statement of Matters Complained of on Appeal, filed June 28, 2018. 3 See Citation No. T5765453-1, Docket No. MJ -09201 -TR -0005111-2017; Citation No. T5765457-5, Docket No. MJ -09201 -TR -0005115-2017; Citation No. T5765458-6, Docket No. MJ -09201 -TR - 0005116 -2017; and Citation No. T5765460-.1, Docket No. MJ=09201-TR-0005118-2017. unlawful activities (six counts),4 registration and certificate of title required,5 and identification markers and license or road tax registration card required.6 Following a trial at which he did not appear, he was found guilty of all charges and fined by a magisterial district judge on December 5, 2017.7 From the convictions, Defendant filed appeals to this court on January 4, 2018,8 and a de novo trial at which he appeared and was represented by counsel was held on April 20, 2018. At the de novo trial, Defendant conceded that he had been the driver involved in the first traffic stop, but a resolution of the balance of the case depended upon a credibility determination as between the affiant, who testified that Defendant had also been the driver on the second occasion,9 and Defendant, who testified that neither he- nor his vehicle had been present at the second stop.'0 Interestingly, the affiant vouched for the accuracy of his identification of Defendant by stating that he would "bet on my two sons' lives,""' and Defendant maintained his denial "on my newborn's life."12 The testimony of the- affiant, Pennsylvania State Trooper Michael Primrose, on behalf of the Commonwealth may be summarized as follows. On Sunday, September 24, 2017, Trooper Penrose was a member of the state police motor carrier inspection detail and at 5:35 a.m. clocked a 2016 Ford Truck, towing an open 2016 Kaufman car trailer with motor vehicles on it, traveling north near mile marker 52 on Interstate Route 81 in a See Citation No. T5765454-2, Docket No. MJ -09201 -TR -0005112-2017; Citation No. T5765459-0, Docket No. MJ -09201 -TR -0005117-2017; Citation No. T5765461-2, Docket No. MJ -09201 -TR - 0005119 -2017; Citation No. T5765463-4, Docket No. MJ -09201 -TR -0005121-2017; and Citation No. T5765466-0, Docket No. MJ -09201 -TR -0005124-2017. S See Citation No. T5765464-5, Docket No. MJ -09201 -TR -0005122-2017. "See Citation No. T5765465-6, Docket No. MJ -09201 -TR -0005123-2017. See Verifications of Disposition and Orders Imposing Sentence, Magisterial District Judge 09-2-01 Traffic Dockets, filed January 22, 2018. g Defendant's Notices of Appeal from Summary Criminal Convictions, filed January 4, 2018. 9 N.T. 7-13, 19, Trial, April 20, 2018 (hereinafter N.T. �. 10 N.T. 36-38,42-43. "N.T. 21. 12 N.T. 38. 2 Cumberland County at a rate of 69 miles an hour in a 55 -mile -per -hour zone. 13 A traffic stop resulted in the identification of Defendant as the sole occupant and driver. 14 The trooper detected numerous Vehicle Code violations associated with the driver and apparatus. Defendant had not been issued a commercial driver's license, as required for operation of vehicles of the combined weight (32,000 pounds) involved.15 He was driving a commercial vehicle unequipped with a valid operator's medical certificate,16 a current federal vehicle inspection certificate, 17 a fire extinguisher,18 and an operable registration light,19 and he was in violation of out -of -service criteria due to the absence of a logbook .20 Finally, he was operating a vehicle subject to apportioned registration in Pennsylvania without such registration21 and. without road/fuel tax registration and identification decals.22 In an exercise of leniency,23 Trooper Primrose issued only two citations to Defendant '24 one for operating a commercial vehicle without a commercial driver's license 25 and one for unlawful activity in the form of driving a commercial vehicle 13 N.T. 3-4, 7, 14. 14 N.T. 4, 15. 15 N.T. 5; see 75 Pa. C.S. §1606(a)(1). 16 N.T. 5; see 75 Pa. C.S. §4107(b)(2). i7 N.T. 5; see 75 Pa. C.S. §4107(b)(2). is NJ. 5; see 75 Pa. C.S. §4107(bx2). 19 N.T. 5; see 75 Pa. C.S. §4107(b)(2). 20 N.T. 5, 16; see 75 Pa. C.S. §4107(b.1). 21 N.T. 5,24; see 75 Pa. C.S. §1301(a). 22 N.T. 24; see 75 Pa. C.S. §2102(a)(3). The trooper also noted other violations in the form of the presence of a radar detector and a detachment of the emergency breakaway cable. N.T. 5. 23 N.T. 17, 21, 23. 14 N.T. 17. 2s N.T. 22. 3 unequipped with a valid operator's medical certificate.26 He also issued eight warnings,27 declared Defendant out -of -service generally for not having a commercial driver's license and particularly for a 10 -hour -period for lack of a duty status record ,28 and, at 6:15 a.m.,29 left Defendant parked at a truck stop off Exit 52 of the highway.30 At 7:18 a.m., at mile marker 53 on Route 81 Trooper Primrose observed Defendant driving the same- truck and trailer, with the same license plate, northbound, and executed a traffic stop at the next exit ramp.31 In recounting the circumstances of his observation of Defendant as Defendant passed by him on the highway, the trooper described the weather as bright and sunny,32 the period of observation as five or six seconds '33 the sole occupant of the front seat as Defendant '34 and the line -of --sight between them as at an even level .35 According to the trooper's testimony, A. ... He looked directly at me and had the deer in the headlights look like he wasn't expecting me to be sitting there. I can positively identify him as the same individual that I interacted with an hour previous36 A. He had the same clothes on as he had on that day. He hadn't changed clothing.37 A It was the same truck, same lettering, same decals. On the stop the registration plate on the trailer was identical to the one that I previously had. 38 2s N.T. 23. 27 N.T. 17. 28 N.T. 5-6. 29 N.T. 7. 30 N.T. 6-7, " N.T. 7. 32 N.T. 9, 33 N.T. 12. 34 N.T. 13. 35 N.T. 12. 3s N.T. 12-13. 37 N.T. 12. 4 A. I've been employed with the Pennsylvania State Police since January of 2007. If I have any inclination that what I'm doing is not correct, I don't follow through with it.... Mr. Giang was driving that truck when he proceeded past me.39 At this second stop, before making contact with the driver, Trooper Primrose found his attention diverted by a work truck with two men in it that pulled up behind his patrol car .40 He left his car to determine their purpose, with the following result: There were two gentlemen in a work truck who advised that they were going to take Mr. Giang's trailer for him, that they had met at the truck stop; however, they didn't really know each other. During my brief interaction with them, again for officer safety issues, finding out who's parked behind me, as I turned to look forward again, W. Giang had fled the scene and left in that buck and trailer. I immediately broke contact with the two individuals that I was with and traveled attempting to find Mr. Giang, which I was unsuccessful... " A search by additional state police failed to locate driver, truck or trailer. 42 Trooper Primrose thereafter filed ten additional traffic citations against Defendant. 43 Thus, in addition to the initial two charges arising out of his driving prior to the first stop, Defendant was cited for again driving without a commercial driver's license, for doing so in violation of an out -of -service declaration based upon the absence of a commercial driver's license, for doing so in violation of an out -of -service declaration based upon the absence of a record of duty hours, for unlawful activities related to the aforementioned absence of a medical certificate, federal vehicle inspection certificate, fire extinguisher, operable registration light, and logbook, for operating without a ss N.T. 46. 39 N.T. 46. 40 N.T. 8. 41 N.T. 8. 42 N.T. 20, 43 N.T. 8. E Pennsylvania apportioned registration, and for operating without a road/fuel tax registration and identification decals. The testimony of Defendant on his own behalf may be summarized as follows. A Maine resident, 45 Defendant obtained a temp job with a Massachusetts company to drive its truck and trailer to Greencastle, Pennsylvania, pick up some vehicles, and haul them to Massachusetts.46 A commercial driver's license was not a prerequisite for the employment, which was "kind of why [he] took the job, 47 and he did not realize he needed one.48 Defendant found himself grateful to the trooper for his initial leniency, including the issuance of warnings in lieu of citations 49 He understood that he had been declared out -of -service due to the lack of a commercial driver's license, 50 and he immediately called his employer from the truck stop to advise of the situation." The following transpired: Q what did your employer say? A They said they would try to call someone else locally in the area and get them over to me. Q Did they do that? A They did. i Q Who did they tell you was coming? A A gentleman named Jose Montano. Q And where was Jose coming from? A I'm not too sure. He actually got Ubered or like a taxi and Uber. I think it was Uber. 44 N.T. 22-25. 4s N_T. 27. 46 N.T. 26-30. O N.T. 30. 48 N.T. 40. 49 N.T. 30. so N.T. 26. si N.T. 31. C.1 Q So Jose came to the truck stop. A Correct. -12 Mr. Montario arrived within about an hour of Defendant's call to his employer.53 This gentleman was light -skinned, with "dread hair, kind of braided back,"54 had only a backpack's led Defendant to assume that he was probably from the Boston area,56 and said that he had a commercial driver's license. 57 Within about five minutes of his arrival, Mr. Montario was driving them to Massachusetts;58 during the course of the journey, they made only two brief stops, one in Connecticut and one in Massachusetts,59 and were never pulled over." Defendant was paid by his employer for the job and then fired.61 Defendant was unsuccessful in trying to arrange through the employer for Mr. Montario to be present at the trial .62 His assessment of the situation involving the "second stop" was that the trooper must have stopped another vehicle that resembled the one he had been operating, and that he was the victim of a misidentification. 63 DISCUSSION "In evaluating a challenge to the sufficiency of the evidence, [a court] must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was 12 N.T. 31. 13 N.T. 40. sa N.T. 33. '-'N.T. 42. 16NT.41. 57 N.T. 34. 58 N.T. 36, 41, 43, "N.T. 36, 41. 60 N.T. 35-36, 43. 61 N.T. 41, 43. 62 N.T. 43-44. 63 N.T. 35. 7 established beyond a reasonable doubt.... This standard ... is not altered in cases involving a bench trial, because `the province of a trial judge sitting without a jury is to do what a jury is required to do."' Commonwealth v. Lee, 2008 PA Super 205, 17, 956 A.2d 1024, 1027 (citations omitted). "A mere conflict in the testimony of witnesses does not render the evidence insufficient because `it is within the province of the factf nder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence." Commonwealth v. Rabold, 2007 PA Super 62, ¶6, 920 A.2d 857, 859 (citation omitted). In the present case, a resolution of the question of Defendant's guilt with respect to the charges he contested depended upon an assessment of the credibility of the two witnesses who testified at trial. The court in its capacity as trier -of -fact determined this credibility issue adversely to Defendant. Erin Marie Alleman, CLI Courtney Hair LaRue, Esq. Chief Deputy District Attorney For the Commonwealth Michael O. Palermo, Esq. 3300 Trindle Road Camp Hill, PA 17011 For the Defendant 0 BY THE COURT, Wesley , Jr., S .