Opinion
J-S24043-15 No. 3429 EDA 2014
05-12-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. BENJAMIN N. BORAKOVE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered on September 24, 2014 in the Court of Common Pleas of Northampton County, Criminal Division, No. CP-48-SA-0000145-2014 BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Benjamin N. Borakove ("Borakove"), pro se, appeals from the judgment of sentence imposed after he was convicted of the summary offense of careless driving. We affirm.
See 75 Pa.C.S.A. § 3714(a).
At approximately 7:45 a.m. on March 27, 2014, Charlotte Frankenfield ("Frankenfield") was driving a school van, transporting two children, on William Penn Highway in Northampton County. Traffic was very congested and moving slowly. While the van was coasting in the heavy traffic, at approximately 5 to 7 miles per hour ("m.p.h."), it was forcefully struck from behind by a small car, which was operated by Borakove. The force of the impact was significant, such that it pushed the much heavier van forward approximately ten to fifteen feet. Borakove testified that he was traveling at approximately 20 to 25 m.p.h. prior to the collision. Immediately after the impact, Frankenfield forcibly applied both of her feet on the brake pedal, in order to prevent Borakove's car from pushing the van further and striking the vehicle in front of her. Borakove admitted that he was driving behind the van and collided with it, stating that he did not react quickly enough to stop in time. The posted speed limit along the section of highway in question was 35 m.p.h.
Borakove was seventeen-years-old at the time, and was driving to school. He was the only occupant in the car.
Officer Keith Border ("Officer Border") responded to the scene after the accident. None of the occupants in the vehicles sustained any injuries. The van sustained $1,777.61 in damage. Borakove's car was rendered a total loss, however, having sustained $11,726.63 in damage. While the van was drivable after the accident, Borakove's car had to be towed due to the extensive damage. Officer Border cited Borakove with careless driving at the scene.
There was no accident reconstruction performed.
After the Magisterial District Judge ("MDJ") found Borakove guilty of careless driving, and imposed a $25 fine, Borakove, pro se, filed a de novo appeal. At the beginning of the de novo trial, Borakove's father (hereinafter "Father") asked the trial court judge to permit Father to represent Borakove at trial. N.T., 9/24/14, at 3. Father is an attorney, but is not admitted to the Bar of Pennsylvania, and was not admitted pro hac vice to represent Borakove. Id . at 4; see also Pa.R.P.C. 5.5(a) (Rule of Professional Conduct governing the unauthorized practice of law); see also id . cmt. 1 (providing that "[a] lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice."). Accordingly, the judge denied Father's request and advised Borakove that he could choose to either proceed pro se or postpone the trial in order to secure counsel. N.T., 9/24/14, at 4-5. After the judge advised Borakove of what would be required of him at trial if he decided to proceed pro se, and provided him an opportunity to discuss the decision with Father, Borakove stated that he wanted to proceed pro se. Id. at 4-6. Thereafter, the trial court heard testimony from Frankenfield, Officer Border, and Borakove. At the close of trial, the trial court determined that Borakove's conviction of careless driving was proper, and ordered him to pay a fine of $25 and court costs. Borakove timely filed a pro se Notice of Appeal.
Borakove instantly presents the following issues for our review:
1. Whether [Borakove] was denied due process in that he was denied requested representation by his parent/guardian[?]Brief for Appellant at 4.
2. Whether the trial court erred in applying an improper standard of culpability[?]
Borakove first argues that the trial court erred and deprived him of due process at the de novo trial by refusing his request to be represented by Father. Id . at 7. Borakove points out that he was a minor until shortly before the de novo trial, and that Father appeared on Borakove's behalf before the MDJ, and prepared Borakove's de novo appeal from the MDJ's decision. Id .
Initially, we observe that, in his single paragraph of argument advanced in support of this claim, Borakove does not cite to any legal authorities, and otherwise fails to develop his claim in a meaningful fashion. See id .
The argument portion of an appellate brief must be developed with a pertinent discussion of the point[,] which includes citation to relevant authority. When the appellant fails to adequately develop his argument, meaningful appellate review is not possible. This Court will not act as new counsel.Commonwealth v. Long , 753 A.2d 272, 279 (Pa. Super. 2000); see also Pa.R.A.P. 2119(a) (requiring that the argument portion of the brief include a relevant discussion of points raised along with citation to pertinent authorities). On this basis, we could deem Borakove's issue waived.
Nevertheless, we determine that his claim fails on the merits. Not only has Borakove failed to cite to any legal authority for the proposition that an accused has a due process right to be represented by a parent or guardian in a criminal trial, but our research discloses no such law. Moreover, at the time of the de novo trial, (1) Borakove was an adult; (2) Father was not licensed in to practice law Pennsylvania; and (3) the trial court gave Borakove an opportunity to postpone the trial to secure counsel, but Borakove chose instead to proceed pro se. Therefore, we conclude that there was no violation of Borakove's due process rights.
Additionally, the presiding trial judge commended Borakove's self-representation at the conclusion of the de novo trial, stating, "[y]ou did a good job on your own." N.T., 9/24/14, at 37-38.
Next, Borakove argues that the evidence was insufficient to convict him of careless driving. See Brief for Appellant at 7-8. Specifically, Borakove contends that the Commonwealth failed to prove the element of careless disregard. Id . at 8.
We apply the following standard of review when considering a challenge to the sufficiency of the evidence:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. 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. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. 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.Commonwealth v. Melvin , 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation omitted).
Section 3714 of the Motor Vehicle Code defines the offense of careless driving, in pertinent part, as follows: "Any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of careless driving, a summary offense." 75 Pa.C.S.A. § 3714(a) (emphasis added). This Court has explained that "[t]he mens rea requirement applicable to [section] 3714, careless disregard, implies less than willful or wanton conduct but more than ordinary negligence or the mere absence of care under the circumstances." Commonwealth v. Gezovich , 7 A.3d 300, 301 (Pa. Super. 2010) (citations and quotation marks omitted).
Borakove argues that the Commonwealth failed to establish that he acted with careless disregard, since he was traveling well below the posted speed limit at the time of the accident, and, according to Borakove, there was no evidence presented that he was driving carelessly aside from the mere occurrence of the accident. Brief for Appellant at 7-8. Borakove contends that "[t]he mere fact that [he] rear-ended the van is not determinative of culpability under [section 3714]." Id . at 8 (citing Gezovich , 7 A.3d at 302 (stating that "[i]t is well established that the mere occurrence of an accident does not prove negligence.")).
Here, the evidence adduced at the de novo trial establishes that Borakove was driving too fast for the congested traffic conditions. Whereas Frankenfield was traveling only approximately 5 to 7 m.p.h. prior to the collision, Borakove was traveling well above this speed, at approximately 20 to 25 m.p.h. N.T., 9/24/14, at 9, 32. Borakove conceded he was aware that traffic was particularly congested on the morning in question. Id . at 29; Brief for Appellant at 7. The force of the impact was so significant that it pushed Frankenfield's van forward, requiring her to slam both feet on the brakes to prevent it from being pushed further into the vehicle in front of her. N.T., 9/24/14, at 9, 12, 14. Additionally, the damage to Borakove's car was so significant that it was inoperable and rendered a total loss. Id . at 21, 24. The fact-finder could reasonably infer from this evidence that an accident involving such a forceful collision might not have occurred had Borakove been driving 5 to 7 m.p.h., commensurate with the speed at which the van in front of him was traveling.
Though Borakove was not traveling in excess of the posted speed limit of 35 m.p.h., this alone was not sufficient to satisfy his obligation of driving prudently under the congested, slow-moving traffic conditions. To the contrary, a motorist must use his or her judgment concerning how to operate his or her vehicle safely under the particular circumstances presented, which may at times require driving at a speed well below the posted speed limit. See 75 Pa.C.S.A. § 3361 (providing that "[n]o 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 stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when ... special hazards exist with respect to ... other traffic or by reason of ... highway conditions.") (emphasis added); see also Platts v. Driscoll , 369 A.2d 381, 383 (Pa. Super. 1976) (stating that "a person driving a vehicle on a highway must always keep his vehicle under such control that he can stop within the assured clear distance."); MacDougall v. Chalmers , 162 A.2d 51, 53 (Pa. Super. 1960) (stating that "[r]egardless of established speed limits ..., no person is privileged to drive except at a careful and prudent speed with his car under reasonable control; ... and it is for [the fact-finder] to say whether he has done so.").
As stated above, we are required to view the evidence of record in the light most favorable to the Commonwealth, thereby giving it the benefit of the reasonable inferences derived therefrom. See Melvin , supra . Here, we conclude that the evidence and reasonable inferences from the evidence establishes that Borakove was imprudently driving, with careless disregard, at a speed in excess of what was reasonable and safe under the congested, slow-moving traffic conditions, and which did not permit him to stop his vehicle within the assured clear distance ahead. 75 Pa.C.S.A. § 3714(a); id . § 3361; see also Platts , supra; Trial Court Opinion, 12/22/14, at 2 (unnumbered) (stating that "[Borakove] rear-ended a school van transporting students hard enough to total his own car, despite [his] being aware that traffic was particularly heavy and required additional caution.").
Moreover, we determine that the principal case upon which Borakove relies, Gezovich , supra , is distinguishable. In Gezovich , unlike the instant case, the record was devoid of any evidence that the defendant was driving too fast under the particular driving conditions. Gezovich , 7 A.3d at 303.
Additionally, the panel in Gezovich explained that in that case, "[t]he trial court ... was under the belief that there was no mens rea requirement for careless driving ...." Gezovich , 7 A.3d at 301. To the contrary, in the instant case, the trial court was aware of the mens rea requirement.
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Therefore, viewing the evidence in the light favorable to the Commonwealth, and giving it the benefit of the reasonable inferences derived therefrom, we conclude that the trial court did not err in convicting Borakove of careless driving.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2015