Com. v. Hattar, S. ( 2022 )

J-A20016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
SAMER SALEH HATTAR
Appellant No. 483 EDA 2022
Appeal from the Judgment of Sentence Entered January 20, 2022
In the Court of Common Pleas of Monroe County
Criminal Division at No.: CP-45-SA-0000091-2021
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 9, 2022
Appellant, Samer Saleh Hattar, pro se appeals from the January 20,
2022 judgment of sentence entered in the Court of Common Pleas of Monroe
County (“trial court”), following his summary conviction for violating Section
3334(a) of the Vehicle Code (“Code”), 75 Pa.C.S.A. § 3334(a), relating to
turning movements and required signals. Upon review, we affirm.
The facts and procedural history of this case are undisputed. Briefly,
after a magisterial district judge (“MDJ”) found Appellant guilty under Section
3334(a), Appellant filed a summary appeal to the trial court. On October 6,
2020, the trial court conducted a de novo hearing at which both the
Commonwealth and Appellant presented testimony. Trooper, Richard
Willhardt, a thirteen-year veteran of the Pennsylvania State Police, testified
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* Retired Senior Judge assigned to the Superior Court.
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for the Commonwealth. He testified that he observed Appellant changing
lanes back and forth during moderate to heavy traffic on Route 33, Hamilton
Township, Monroe County, where the posted speed limit is 55 miles per hour.
N.T., Trial, 1/20/20, at 4-7. Trooper Willhardt, who was in a marked cruiser
six or seven vehicles ahead of Appellant’s Tesla Model S, explained:
I then observed [Appellant’s] vehicle making lane changes back
and forth within this heavy traffic, at times, causing the other
drivers to have to slow down or apply some form of brakes to
avoid and/or let [Appellant] within the lane of travel.
....
When I observed [Appellant’s] lane changes, they were abrupt,
they were nonspecific, meaning they would not had [sic] created
any further distance or allowed [Appellant’s] vehicle to travel any
faster or further down the road; and as I stated, they were unsafe
and that I was observing other drivers in vehicles having to slow
down or apply their brakes in the abrupt lane changes that were
occurring.
Id. at 6-8, 12. Trooper Willhardt stated that Appellant changed lanes both
“with and without” the lane change indicator lit. Id. at 8. Trooper Willhardt
relied upon his extensive training and experience in explaining why Appellant’s
lane changes were hazardous. Id. He stated that, based on the amount of
traffic on Route 33, the speed at which vehicles were traveling, and the
distance between vehicles at the time of the incident, Appellant’s abrupt lane
changes put Appellant and other motorists at risk because of the amount of
time it would have required for other drivers to react. Id. at 8-10.
In response, Appellant took the stand in his own defense. He essentially
proffered his version of the events that seemingly contradicted Trooper
Willhardt’s testimony and questioned his credibility. Indeed, Appellant
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testified that he was behind the wheel of his Tesla on October 6, 2020 on
Route 33, with his wife in the passenger seat, and that the vehicle was on
auto pilot. Id. at 17. Appellant explained:
I’m driving on the right, on auto pilot, so I’m not even driving, I’m
just holding the steering wheel. And then all of the sudden—the
traffic flowing very beautifully—I see—very slow traffic. And I saw
the trooper six cars ahead of me, but when I—because the traffic
slowed down, the auto pilot stop the brake and the person behind
me became very close to me. And I was telling my wife, this
person is very close in the back, so the minute there’s a chance,
I’m just going to give the signal. And the Tesla always change the
lane, it’s auto pilot. I gave the signal. Tesla change the lane.
[Because] he was driving slow, I passed him.
Id. at 17-18.
At the conclusion of the hearing, the trial court stated that it found
Trooper Willhardt’s “testimony to be credible about what his observations
were, in that [Appellant was] changing lanes in an unreasonable fashion
without using a proper signal.” Id. at 23-24. The court then found Appellant
guilty of violating Section 3334(a) and imposed upon him a fine of $25 plus
court costs, totaling $143. Appellant timely appealed. Both Appellant and the
trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant essentially challenges the weight of the evidence
underlying his conviction under Section 3334(a),1 which provides:
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1 Appellant questions: (1) Trooper Willhardt’s observations in light of the fact
that he was six vehicles in front of him, (2) Trooper Willhardt’s judgment under
the circumstances, (3) Trooper Willhardt’s bias toward a Tesla driver, and (4)
the reasonableness of Trooper Willhardt’s determination that Appellant made
an unsafe lane change “when the traffic was moving nicely and the flow was
not hindered.” Appellant’s Brief at 7.
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Upon a roadway no person shall turn a vehicle or move from one
traffic lane to another or enter the traffic stream from a parked
position unless and until the movement can be made with
reasonable safety nor without giving an appropriate signal in the
manner provided in this section.
75 Pa.C.S.A. § 3334(a).
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).
With respect to weight of the evidence claims, we have explained:
On this issue, our role is not to consider the underlying question
of whether the verdict was against the weight of the evidence.
Rather, we are to decide if the trial court palpably abused its
discretion when ruling on the weight claim. When doing so, we
keep in mind that the initial determination regarding the weight
of the evidence was for the factfinder. The factfinder was free to
believe all, some or none of the evidence. Additionally, a court
must not reverse a verdict based on a weight claim unless that
verdict was so contrary to the evidence as to shock one’s sense of
justice.
Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa. Super. 2007)
(internal citations omitted), appeal denied, 954 A.2d 575 (Pa. 2008). “[A]
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trial court’s denial of a post-sentence motion ‘based on a weight of the
evidence claim is the least assailable of its rulings.’” Commonwealth v.
Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting Commonwealth v.
Diggs, 949 A.2d 873, 880 (Pa. 2008)).
Instantly, as stated, Appellant essentially attacks the trial court’s weight
and credibility determinations, and invites us to accept his version of events.2
We decline the invitation. It is settled that we may not substitute our
judgment for that of the factfinder—whether a jury or the trial court—because
it is the province of the factfinder to assess the credibility of the witnesses and
evidence. See Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004);
Commonwealth v. Johnson, 668 A.2d 97, 101 (Pa. 1995) (“an appellate
court is barred from substituting its judgment for that of the finder of fact.”);
Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa. Super. 2005) (stating
that “[t]he weight of the evidence is exclusively for the finder of fact[,] who
is free to believe all, part, or none of the evidence and to determine the
credibility of witnesses. An appellate court cannot substitute its judgment for
that for the finder of fact.”). As the trial court was free to believe all, part or
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2 A review of the record herein indicates that Appellant was not informed of
his right to file post-sentence motions. As a result, we do not find the instant
weight claim waived under Pa.R.Crim.P. 607, which provides that a challenge
to the weight of the evidence be preserved in a post-sentence motion.
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none of the Commonwealth’s evidence, Appellant’s claim lacks merit.
Accordingly, Appellant’s weight claim fails.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/09/2022
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3 Insofar as the Commonwealth, in its brief, challenges the trial court’s
decision to permit Appellant to appeal his summary conviction nunc pro tunc,
we decline to address this issue. Commonwealth’s Brief at 7. The
Commonwealth did not file a cross-appeal, and thus, we are without
jurisdiction to address this claim. See Commonwealth v. Moser, 476 A.2d
980, 982 (Pa. Super. 1984) (this Court lacks jurisdiction to address additional
claims from an appellee where they did not file a cross-appeal).
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