Com. v. Rivest, S. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
STEPHEN PAUL RIVEST,
Appellant No. 503 MDA 2018
Appeal from the Judgment of Sentence Entered August 15, 2017
In the Court of Common Pleas of Mifflin County
Criminal Division at No(s): CP-44-CR-0000357-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: JANUARY 28, 2019
Appellant, Stephen Paul Rivest, appeals from the judgment of sentence
of an aggregate term of 12½-28 years’ incarceration, imposed following his
conviction for aggravated assault (AA), driving under the influence of alcohol
or controlled substance (DUI), fleeing or attempting to elude a police officer
(FAEPO), and multiple counts of recklessly endangering another person
(REAP). Appellant challenges the grading of his DUI offense, and the
sufficiency of the evidence supporting his AA and REAP convictions. After
careful review, we vacate Appellant’s judgment of sentence and remand for
resentencing due to the erroneous grading of his DUI offense, but we affirm
in all other respects.
On June 7, 2016, Appellant, driving a maroon pickup truck, fled from
police officers who were trying to serve a warrant for his arrest. During the
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subsequent high-speed pursuit, various witnesses observed Appellant
violating numerous traffic signals, speeding (at speeds approaching 100
m.p.h.), and, at times, travelling against the flow of traffic. See N.T.,
7/11/17, at 74-90.
Corporal Robert Whisler of the Mifflin County Regional Police
Department was monitoring the police radio for information regarding the
pursuit. He parked his marked patrol vehicle on the side of U.S. 322 outside
of the fog line and turned his emergency lights on. Soon thereafter, he
observed Appellant’s truck, travelling on the wrong side of the highway,
headed toward his position. As it approached at high speed, Appellant’s truck
began to veer toward Corporal Whisler’s vehicle, prompting the officer to take
evasive action. The officer’s quick reaction narrowly avoided an imminent,
head-on collision. Id. at 122-30.
Corporal Jeff Remikas of the Pennsylvania State Police (PSP) was one of
the officers who joined in the pursuit of Appellant’s vehicle. He observed
Appellant veering into oncoming traffic on several occasions, as well as the
incident with Corporal Whisler. At one point, when Corporal Remikas tried to
pull up alongside Appellant’s truck when Appellant began to slow down on a
straightaway, Appellant steered into the corporal’s vehicle and struck it. Id.
at 221-25.
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Trooper Ryan Speece of the PSP heard about the pursuit over the radio,
and, anticipating Appellant’s trajectory, set up Stingers 1 in Appellant’s path
near the Meadowbrook Nursing Home on U.S. 22. When Appellant’s truck
approached, Trooper Speece had to jump out of the way to avoid being hit.
Appellant was so close to hitting Trooper Speece that he severed the rope the
trooper was holding that connected to the Stingers. Id. at 239-48.
Appellant eventually brought his vehicle to a stop on U.S. 22 near a
Dairy Queen in Mount Union, PA. Ashley Shade was approaching a red light
at that location when Appellant swerved around and then in front of her
vehicle, missing her by mere inches. Ms. Shade had to veer into a bank to
avoid being hit. Appellant then abruptly stopped his truck, got out, and
approached Ms. Shade’s vehicle. He pulled on her door handles in an attempt
to get in, but he was unsuccessful, as the doors remained locked. The police
arrived on the scene a few seconds later and took Appellant into custody. Id.
at 45-52.
Once Appellant was apprehended, multiple officers observed that he
emitted a strong odor of alcohol, had bloodshot eyes, and slurred speech.
They also described him as alternating between a manic and calm state.
Appellant admitted to consuming multiple alcoholic beverages and
prescription pills before these events. When he calmed down, Appellant
apologized profusely for endangering others during the chase. Appellant was
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1 Trooper Speece described the “Stingers” as “accordion-style device[s] that
allow [police] to deflate [a vehicle’s ]tires….” Id. at 242.
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then taken to the hospital to test his blood for alcohol and/or other substances,
but he refused. Id. at 90-97; 263-65; 181-83.
Although the Commonwealth initially charged Appellant with thirty-two
offenses, several were withdrawn prior to trial. Appellant faced ten charges
at his jury trial, held on July 11, 2017, including: three counts of AA, 18
Pa.C.S. § 2702(a)(2); one count of FAEPO, 75 Pa.C.S. § 3733; DUI (general
impairment), 75 Pa.C.S. § 3802(a)(1); and five counts of REAP, 18 Pa.C.S. §
2705. The jury found Appellant not guilty of two counts of AA, but guilty of
all the remaining offenses. At the concurrent bench trial for the remaining 17
summary offenses, the trial court found Appellant guilty on all counts.2 On
August 21, 2017, the trial court sentenced Appellant to consecutive terms of
6-12 years’ incarceration for AA, 1-5 years’ incarceration for DUI, 1-2 years’
incarceration for REAP, 1-2 years’ incarceration for REAP, 1-2 years’
incarceration for REAP, 1-2 years’ incarceration for REAP, and 1½-3 years’
incarceration for FAEPO.
Appellant filed a timely post-sentence motion on August 25, 2017. The
trial court denied that motion by order dated February 21, 2018, and Appellant
filed his notice of appeal on March 22, 2018.3 Appellant then filed a timely,
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2 The summary offenses are not at issue in this appeal.
3 A trial court has 120 days to decide a post-sentence motion; if it fails to
decide it in that period, the motion is deemed denied by operation of law. See
Pa.R.Crim.P. 720(B)(3)(a). At that time, “the clerk of courts shall forthwith
enter an order on behalf of the court [denying the post-sentence motion by
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court-ordered Pa.R.A.P. 1925(b) statement on April 9, 2018, and the trial
court issued its Rule 1925(a) opinion on May 14, 2018.
Appellant now presents the following questions for our review:
Question 1: Was the [DUI] offense incorrectly graded at the time
of sentencing?
Question 2: Was the evidence insufficient to sustain the guilty
verdict for [AA]?
Question 3: Was the evidence insufficient to sustain the guilty
verdicts on the two counts of [REAP] which did not specifically
identify the police officers and motorists and their locations in
relationship to [Appellant]’s vehicle?
Appellant’s Brief at 7.
First, Appellant argues that the trial court improperly graded his DUI
conviction as a first-degree misdemeanor,4 instead of a second-degree
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operation of law], and, … forthwith shall serve a copy of the order on the
attorney for the Commonwealth, the defendant’s attorney, or the defendant if
unrepresented, that the post-sentence motion is deemed denied.”
Pa.R.Crim.P. 720(B)(3)(c). Here, the 120-day period to decide Appellant’s
post-sentence motion expired on December 26, 2017, but the clerk of courts
failed to enter an order to that effect. Thus, technically, Appellant’s notice of
appeal, filed on March 22, 2018, is untimely. However, “[t]his Court has
previously held that, where the clerk of courts does not enter an order
indicating that the post-sentence motion is denied by operation of law and
notify the defendant of same, a breakdown in the court system has occurred
and we will not find an appeal untimely under these circumstances.”
Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003). As
Appellant filed his notice of appeal within 30 days of the trial court’s order
dated February 21, 2018—effectively the date when he was notified of the
denial of his post-sentence motion—we decline to quash Appellant’s appeal as
untimely.
4 Appellant mistakenly confuses ‘first-degree’ and ‘third-degree’
misdemeanors in his brief. However, it is clear from the context of the record
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misdemeanor. The trial court concurs, Trial Court Opinion (TCO), 5/14/18, at
1-2, and the Commonwealth “agrees with the position of [Appellant],”
Commonwealth’s Brief at 2. Accordingly, we agree, and we will not discuss
the merits of this claim further.
However, the trial court indicates that it corrected Appellant’s sentence
in response to his Rule 1925(b) statement. A trial court, in general, lacks
jurisdiction to modify an order more than thirty days after it has been entered,
or if an appeal has been filed. See 42 Pa.C.S. § 5505 (“Except as otherwise
provided or prescribed by law, a court upon notice to the parties may modify
or rescind any order within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such order has been taken
or allowed.”). Here, any order correcting Appellant’s judgment of sentence to
reflect the proper grading of his DUI offense occurred more than 30 days after
his judgment of sentence was imposed, and after Appellant filed his appeal
and, as such, constitutes a legal nullity. Thus, we remand this matter for
resentencing, but solely for the purpose of correcting Appellant’s illegal
sentence for DUI.5
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that he intended to argue that his DUI offense should have been graded lower
than what the trial court initially imposed. Clearly, Appellant is not arguing
that he should receive a harsher penalty than initially imposed.
5Given the trial court’s actions, albeit premature, we do not believe that the
correction of Appellant’s illegal sentence for DUI affects the court’s overall
sentencing scheme in this case. Thus, we will vacate Appellant’s judgment of
sentence only with respect to that offense.
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Next, Appellant argues that the evidence was insufficient to convict him
of AA against Corporal Whisler. Specifically, Appellant argues that because
the jury was not instructed “on how malice must be found for an [AA]
conviction even if a specific intent to cause serious bodily injury to the victim
exists, there could not have been a clear finding by the jury that there was
proof beyond a reasonable doubt of each element of the [AA] charge.”
Appellant’s Brief at 15.
Our standard of review of sufficiency claims is well-settled:
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention to
human experience and the laws of nature, then the evidence is
insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
Here, Appellant was charged under the following provision of the AA
statute:
(a) Offense defined.--A person is guilty of aggravated assault if
he:
…
(2) attempts to cause or intentionally, knowingly or
recklessly causes serious bodily injury to any of the officers,
agents, employees or other persons enumerated in
subsection (c) or to an employee of an agency, company or
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other entity engaged in public transportation, while in the
performance of duty;
18 Pa.C.S. § 2702(a)(2).
Appellant’s argument is directed at a perceived deficiency in the jury
instructions, not the sufficiency of the evidence. Thus, this aspect of
Appellant’s sufficiency claim is waived. Appellant did not raise any jury-
instruction claim in his Rule 1925(b) statement, and any “issues not raised in
a 1925(b) statement will be deemed waived.” Commonwealth v. Lord, 719
A.2d 306, 309 (Pa. 1998).6
To the extent Appellant is claiming that the evidence was not sufficient
to demonstrate malice, we disagree. As the trial court stated,
the evidence[,] viewed in the light most favorable to the
Commonwealth[,] establishes that there was sufficient evidence
produced to sustain the verdict of [a]ggravated [a]ssault.
Corporal Whisler testified that on the night in question, he had
parked his police vehicle entirely outside of the travel portion of
U.S. Route 322 East, beyond the white fog line, with his overhead
lights activated. Given the late hour, and the strength of the
police vehicle’s emergency lights, Corporal Whisler indicated that
his vehicle should have been observable from a great distance
away.
Appellant, initially travelling on U.S. Route 322 East,
eventually reversed course and began travelling West on U.S.
Route 322 East, against opposing traffic. Corporal Whisler’s
testimony indicated that Appellant’s vehicle eventually came into
view and that he was observable from some distance away given
the long, straight stretch of highway. Corporal Whisler observed
that the Appellant’s vehicle had initially been straddling the center
line between the right and left lanes. However, as Appellant
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6 Moreover, Appellant has not directed this Court’s attention to where in the
record he objected to the jury instructions given by the trial court, nor has he
set forth a separate jury-instruction claim in his brief.
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approached Corporal Whisler’s position he altered his course and
began to drive straight at Corporal Whisler’s vehicle, outside of
the lanes of travel. As a result, Corporal Whisler was forced to
accelerate rapidly in order to avoid a head-on collision.
TCO at 3.
“[F]or the purpose of third-degree murder or aggravated assault, our
courts have consistently held that malice is present under circumstances
where a defendant did not have an intent to kill, but nevertheless displayed a
conscious disregard for an unjustified and extremely high risk that his actions
might cause death or serious bodily harm.” Commonwealth v. Packer, 168
A.3d 161, 168 (Pa. 2017) (quotations marks and citations omitted). Instantly,
the jury could have reasonably concluded that Appellant demonstrated a
conscious disregard for the life of Corporal Whisler, who easily could have
been killed or seriously injured had he not taken evasive action.
Appellant also asserts that his conviction for AA is inconsistent with the
not-guilty verdicts on the other aggravated assault charges. Generally,
inconsistent verdicts do not present a challenge to the sufficiency of the
evidence. As our Supreme Court has said:
Federal and Pennsylvania courts alike have long recognized that
jury acquittals may not be interpreted as specific factual findings
with regard to the evidence, as an acquittal does not definitively
establish that the jury was not convinced of a defendant’s guilt.
Rather, it has been the understanding of federal courts as well as
the courts of this Commonwealth that an acquittal may merely
show lenity on the jury’s behalf, or that “the verdict may have
been the result of compromise, or of a mistake on the part of the
jury.” United States v. Dunn, 284 U.S. 390, 394, … (1932);
see also [Commonwealth v.] Carter, 282 A.2d [375,] 376 [(Pa.
1971)]. Accordingly, the United States Supreme Court has
instructed that courts may not make factual findings regarding
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jury acquittals and, thus, cannot “upset” verdicts by “speculation
or inquiry into such matters.” Dunn, 284 U.S. at 394…
Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa. 2014).
Here, Appellant does not cite to any of the cases that express an
exception to the general rule on inconsistent verdicts, such as where there is
an acquittal on a predicate offense. See Commonwealth v. Reed, 9 A.3d
1138 (Pa. 2010) (finding evidence insufficient to support higher grading of
unlawful contact with minor where the jury found the defendant not guilty of
the predicate offense for that grading); Commonwealth v. Magliocco, 883
A.2d 479 (Pa. 2005) (finding the evidence insufficient to convict for ethnic
intimidation because where the defendant was acquitted of terroristic threats,
where the latter was a predicate offense at the time of his conviction). Our
review of those cases indicates that they are not analogous to the instant
matter. Moreover, the AA charges in this case involved multiple victims in a
variety of circumstances; thus, it is not even clear that the verdicts were at
all inconsistent. Accordingly, we conclude that, insofar as Appellant’s
sufficiency claim was not waived, it lacks merit.
Next, Appellant claims that the evidence was insufficient to support the
two counts of REAP that did not specifically identify a victim. He asserts that
there was no testimony or evidence demonstrating that he presented a danger
to anyone beyond the victims of the other REAP offenses. Addressing the
officers who followed Appellant during the high-speed chase, Officers Shearer
and Terry and Trooper Bishop, Appellant argues that:
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The actions of these officers in pursuing [Appellant] was
voluntary, and any risk of harm or injury from the voluntary high-
speed pursuit of [Appellant]’s vehicle was a risk assumed by said
officers. There does not appear in the record any evidence that
[Appellant] attempted to collide with, run off the road, or
otherwise inflict harm on these three officers.
Appellant’s Brief at 19.
A person commits the crime of recklessly endangering another
person “if he recklessly engages in conduct which places or may
place another person in danger of death or serious bodily injury.”
18 Pa.C.S. § 2705. This statutory provision was directed against
reckless conduct entailing a serious risk to life or limb out of
proportion to any utility the conduct might have. This Court held,
in Commonwealth v. Trowbridge, … 395 A.2d 1337 (Pa. Super.
1978), that recklessly endangering another person is a crime of
assault which requires the “creation of danger.” As such, the
Court concluded, there must be an “actual present ability to inflict
harm.” Id. at … 1340.
Commonwealth v. Rivera, 503 A.2d 11, 12 (Pa. Super. 1985) (en banc).
We note that Appellant fails to cite any case law suggesting that a
conviction for REAP cannot be based on risks to pursuing officers in a high-
speed chase because their actions are ‘voluntary.’ To the contrary, the REAP
statute does not contain any element addressing the voluntariness, or lack
thereof, of an alleged victim to that offense. Moreover, Appellant should have
known that his actions would almost certainly prompt police pursuit. This is
not a case where a reasonable person would not anticipate police pursuit and
the attendant risks of a high-speed chase. Accordingly, assuming Officers
Shearer and Terry and Trooper Bishop were the victims of the REAP offenses
at issue, we conclude the evidence was sufficient to convict Appellant of those
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offenses. Appellant’s flight undoubtedly put the pursuing officers’ lives at risk
due to his excessive speeds and reckless driving.
Alternatively, we conclude that there were at least two other potential
victims of a REAP offense. As noted by the Commonwealth, see
Commonwealth’s Brief at 9, Trooper Bishop testified as follows:
As [Appellant’s truck] was driving down Narrows going
eastbound, I observed large puffs of black smoke coming from the
exhaust. It would come for a while as the vehicle spe[]d up, ounce
it would hit the limit, the governor … on the vehicle, black smoke
would stop. We would stay … roughly between 95 and a hundred
[m.p.h.] the whole time.
There w[ere] cars that were slowly moving off to the right
of the road or left side of the road depending on how fast we came
upon them. It appeared that [Appellant] gave no regard to
anybody [who] was also on the roadway at all. He continued to
drive between both lanes of travel, whichever way he need to get
past.
N.T. at 154-55. Later during the chase, Trooper Bishop observed Appellant
steer his vehicle toward several tractor-trailers at speeds approaching 100
m.p.h. Id. at 158-59.
Based on this testimony, we alternatively conclude that there was
sufficient evidence of at least two REAP offenses committed by Appellant that
did not involve the pursuing officers. It is clear that, by travelling at extremely
high speeds, at times on the wrong side of the road, Appellant placed
numerous other motorists in serious mortal danger through his reckless
actions.
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Judgment of sentence vacated in part, affirmed in part. Case
remanded for resentencing on Appellant’s DUI conviction. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/28/2019
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