Com. v. Carothers, J. ( 2015 )

J-S11011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH ANTHONY CAROTHERS
Appellant No. 1303 MDA 2014
Appeal from the Judgment of Sentence March 19, 2014
In the Court of Common Pleas of Lebanon County
Criminal Division at No: CP-38-CR-0000130-2013
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 07, 2015
Joseph Anthony Carothers (“Appellant”) appeals from the judgment of
sentence entered after a jury convicted him of recklessly endangering
another person1 in connection with a road rage incident. We affirm.
The facts, as set forth by the trial court, are as follows.
On December 5, 2012, Jason Burrows was working on a vehicle
with his roommate, Nick Fulton at their residence located at
2102 Allegheny Avenue [in] Lebanon[.] Burrows and Fulton left
the residence to purchase oil at AutoZone for the vehicle. While
traveling down East Street, Burrows’ 1988 Ford Ranger was
struck from behind. The collision occurred as both vehicles were
traveling approximately 15 miles per hour. Burrows identified
[Appellant] as the driver of the vehicle that struck his truck.
After the collision, [Appellant] attempted to flee by driving
around Burrows' truck and speeding down the road. Burrows and
____________________________________________
1
18 Pa.C.S.A. § 2705.
J-S11011-15
Fulton pursued [Appellant] to try to get him to stop his vehicle
and confront him regarding the collision.
During the pursuit, the vehicles turned onto King Street. Burrows
testified that [Appellant] slowed down and sped up his vehicle
multiple times during the pursuit. At one point, [Appellant]
slammed on his brakes. This caused Burrows to rear end
[Appellant]'s vehicle at approximately 30-35 m.p.h. As a result,
Burrows was charged with Recklessly Endangering Another
Person. Burrows pled guilty to this charge and was sentenced to
a period of probation. 18 Pa.[C.S.] § 2705. Burrows was further
required to pay fines, costs, and restitution for the damage to
[Appellant]'s vehicle.
After this second collision, Burrows and Fulton continued to
pursue [Appellant]. They followed [Appellant] down Prescott
Road. [Appellant] continued to speed up and slow down as the
vehicles traveled down the road. At some point, [Appellant]'s
vehicle ended up in the grass bordering the road. When
[Appellant] slowed to a stop, Fulton exited the truck and
approached [Appellant]’s vehicle. However, [Appellant] then
continued to drive in the grass. Burrows continued to follow
[Appellant] in the truck while Fulton chased both vehicles on
foot. At some point, [Appellant] stopped his vehicle in the grass
and Burrows stopped his truck next to the road. [Appellant]
suddenly pulled his vehicle back onto the road, striking Burrows
truck from behind. This impact caused [Appellant]’s vehicle to
stall and become inoperable. Fulton approached [Appellant]'s
vehicle and tried to enter through the sunroof. As a result of this
conduct, Fulton was charged with and pled guilty to Disorderly
Conduct.
After this third collision, [Appellant] exited his vehicle and
continued down the street on foot. Burrows and Fulton ceased
pursuing [Appellant]. They returned to the residence and notified
the police of the incident. [Appellant] also contacted 911
emergency services during the incident.
Trial Court Opinion, dated 7/21/14, at 3-5, citing N.T., 12/3/13, at 13-23,
40-42, and 89-91 (internal citations omitted).
-2-
J-S11011-15
The trial court also noted that Sergeant Kenneth Zimmerman, the
police officer responding to Appellant’s 911 call, had found physical evidence
that corroborated Burrows’s testimony. He found parts of Burrows’s tail light
and parts of Appellant’s front grill at the intersection of Jackson and Prescott
Roads. The officer followed a fluid trail from Appellant’s radiator to the site
of Appellant’s disabled vehicle. The location where the officer found the
debris is located approximately 1.7 miles before where Appellant claims the
front of his vehicle impacted the back of Burrows’s vehicle. See Trial Court
Opinion at 9-10. Appellant was charged with recklessly endangering another
person and the summary offense of Careless Driving.
A jury trial ensued, at which Burrows, a police officer, and Appellant
testified. The jury found Appellant guilty of recklessly endangering another
person, and he was sentenced.2 After the denial of his post-sentence
motion, Appellant timely appealed to this Court.
Appellant raises the following issues:
a. Whether the evidence presented at trial was insufficient to
sustain [Appellant]’s conviction of recklessly endangering
another person?
b. Whether [Appellant]’s conviction was against the weight of
the evidence?
The standard of review of challenges to the sufficiency of the evidence
is firmly established.
____________________________________________
2
The trial court found Appellant guilty of the careless driving.
-3-
J-S11011-15
There is sufficient evidence to sustain a conviction when the
evidence admitted at trial, and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as verdict-winner, are sufficient to enable the
fact-finder to conclude that the Commonwealth established all of
the elements of the offense beyond a reasonable doubt. The
Commonwealth may sustain its burden by means of wholly
circumstantial evidence[.] … The trier of fact is free to believe
all, part, or none of the evidence.
Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014) (citations
omitted).
“A person commits a misdemeanor of the second degree 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.A. § 2705. The mens
rea for the crime of recklessly endangering another person is a “conscious
disregard of a known risk of death or great bodily injury to another person.”
Commonwealth v. Fabian, 60 A.3d 146, 155 (Pa. Super. 2013), appeal
denied, 69 A.3d 600 (Pa. 2013) (citation omitted).
In his first issue, Appellant avers that because both Burrows and the
police officer allegedly contradicted themselves at trial, the evidence
supporting the verdict was “inherently unreliable” and thus “insufficient as a
matter of law.” Appellants Brief at 11, 14. This issue is without merit.
Contradictions in testimony speak to the weight of the evidence, not
its sufficiency. See, e.g., Commonwealth v. Trinidad, 96 A.3d 1031, 1038
(Pa. Super. 2014), appeal denied, 99 A.3d 925 (Pa. 2014). As
demonstrated by his nearly word-for-word recitation of the same argument
-4-
J-S11011-15
presented here as that provided in support his Issue “b” weight challenge,
Appellant has shown that he is aware of this well-settled principle.
Secondly, Appellant’s self-serving, out-of-context reiteration of
testimony that pertains to matters other than the elements of the crime
does not render the evidence upon which the verdict was based unreliable or
insufficient.3 As noted above, in reviewing sufficiency challenges, we view
the totality of the evidence admitted at trial “in the light most favorable to
the Commonwealth as verdict-winner.” Martin, supra at 718.
In the instant case, as the trial court observed, the evidence showed
that Appellant initiated the incident by rear-ending Burrows’s truck and
speeding away. When Appellant realized Burrows was chasing him, he
slowed down and sped up his vehicle multiple times during the pursuit. At
one point, Appellant slammed on his brakes, causing Burrows to rear end
Appellant’s vehicle at approximately 30-35 m.p.h. See Trial Court Opinion
at 3.
After that second collision, Appellant again left the scene with Burrows
and Fulton in pursuit, and continued to speed up and slow down as the
vehicles traveled down the road. See id. at 4. At one point, Appellant
stopped his vehicle in the grass bordering the road, and Burrows stopped his
truck next to the road. Appellant then suddenly pulled his vehicle back onto
____________________________________________
3
See Appellant’s Brief at 11-13.
-5-
J-S11011-15
the road, striking Burrows’s truck from behind. See id. As the trial court
concluded, “the physical evidence presented at trial significantly refutes
[Appellant’s] story.” Trial Court Opinion at 2. We agree. Because sufficient
evidence supports the jury’s determination that Appellant “conscious[ly]
disregard[ed] … a known risk of death or great bodily injury to another
person” when he drove his vehicle in a reckless manner, this issue has no
merit. Fabian, supra at 155.4
Appellant also avers that the verdict is against the weight of the
evidence. As noted, he essentially repeats, nearly word-for-word, the same
argument regarding allegedly contradictory testimony that he provided in
support of his sufficiency challenge.
In raising a weight claim, an appellant “concedes that the evidence is
sufficient to sustain the verdict, but seeks a new trial on the ground that the
evidence was so one-sided or so weighted in favor of acquittal that a guilty
verdict shocks one’s sense of justice.” Commonwealth v. Lyons, 79 A.3d
1053, 1067 (Pa. 2013), cert. denied, 134 S. Ct. 1792 (U.S. 2014). The
____________________________________________
4
The trial court also observed that the evidence showed that Appellant had
motive to cause damage to Burrows’s truck because just prior to date of the
incident, Appellant had ended a relationship with Tracy Barney, Fulton’s
sister-in-law. Burrows testified that he was in a relationship with Tracy at
the time of the accident. In addition, Burrows and Sergeant Zimmerman
each testified that there were several incidents of vandalism at the property
where Barney lived with Burrows and Fulton, property that is located in a
small neighborhood off the nearby main roads. Appellant “coincidentally
took this detour from the main road on his drive home from work.” Trial
Court Opinion at 11.
-6-
J-S11011-15
general rule in our Commonwealth is that “a weight of the evidence claim is
primarily addressed to the discretion of the judge who actually presided at
trial.” Armbruster v. Horowitz, 813 A.2d 698, 702 (Pa. 2002);
Commonwealth v. Edwards, 903 A.2d 1139, 1148 (Pa. 2006).
Accordingly,
[a]ppellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the weight of the
evidence.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis
in original; citations omitted).
Discretion is abused “where the judgment is manifestly unreasonable
or where the law is not applied or where the record shows that the action is
a result of partiality, prejudice, bias or ill-will.” Id. (citation omitted).
Here, as the trial court observed:
Burrows testified that [Appellant] initially rear[-]ended his truck
on East Street before speeding off on East King Street towards
Prescott Road. Thereafter, Burrows stated that he rear[-]ended
[Appellant] at the intersection of East King Street and Prescott
Road. After [Appellant]’s vehicle left the roadway into the grass
near Reistville Road, he rear[-]ended Burrows’ truck a second
time in an attempt to regain access to the roadway.
[Appellant] told a different story at trial. [Appellant] alleged that
he did not strike the rear of Burrows’ truck until near the end of
the pursuit when he attempted to pull his vehicle back onto the
road. He explained that Burrows’ truck struck his vehicle two
times before he was forced into the grass. It was only then,
-7-
J-S11011-15
[Appellant] alleged, that the front of his vehicle made contact
with the rear of Burrows’ truck.
Sergeant Kenneth Zimmerman also testified at trial. Sergeant
Zimmerman has a total of 21 years of experience in police
enforcement. On December 5, 2012, he responded to a 911 call
made by [Appellant]. He explained how [Appellant] described
the events to him on the day of the incident. According to
Sergeant Zimmerman, [Appellant] initially told him that the front
of his vehicle was damaged because Burrows backed his truck
into [Appellant]’s vehicle after he had stalled near Reistville
Road. This statement clearly differed from what [Appellant]
testified to at trial, thus called into question [Appellant]’s
credibility.
In addition, Sergeant Zimmerman located physical evidence that
corroborated Burrows’ testimony. … The location where
Sergeant Zimmerman found the debris is located approximately
1.7 miles before where [Appellant] claims the front of his vehicle
impacted the back of Burrows’ vehicle.
***
The evidence presented at trial is simply not in line with
Appellant’s story, and we therefore find that the jury afforded
appropriate weight to [the] testimony.
Trial Court Opinion at 10-11.
Based on our review of the record and the trial court’s opinion
rendered on Appellant’s post-sentence motion, we conclude that that court
did not abuse its discretion in determining that the verdict was supported by
the weight of the evidence. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
-8-
J-S11011-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2015
-9-