Com. v. Krock, S. ( 2019 )

J-S38043-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHELDON LINDLEY KROCK :
:
Appellant : No. 2668 EDA 2018
Appeal from the Judgment of Sentence Entered July 26, 2018
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0001295-2017
BEFORE: OTT, J., DUBOW, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED AUGUST 06, 2019
Appellant, Sheldon Lindley Krock, appeals from the aggregate judgment
of sentence of 16 to 32 years of confinement, which was imposed, after a trial,
for: three counts of endangering welfare of children – parent, guardian or
other person commits an offense (“EWOC”); 11 counts of recklessly
endangering another person (“REAP”); one count of driving under the
influence of alcohol or controlled substance (“DUI”) – general impairment,
incapable of safely driving (first offense); one count of DUI -- high rate of
alcohol, blood alcohol concentration at least 0.10% but less than 0.16% (first
offense); and one count each of speeding, careless driving, and reckless
driving.1 We affirm.
____________________________________________
118 Pa.C.S. §§ 4304(a)(1) and 2705 and 75 Pa.C.S. §§ 3802(a)(1), 3802(b),
3361, 3714(a), and 3736(a), respectively.
* Retired Senior Judge assigned to the Superior Court.
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In its memorandum opinion dated August 28, 2018, the trial court fully
and correctly set forth the relevant facts of this case:
[O]n August 19, 2016, at approximately 11:40 P.M.,
Michael Johnson, Sr., a tractor trailer driver who hauls cement and
makes daily trips to Keystone Cement located in Bath,
Northampton County, Pennsylvania, was traveling westbound on
Route 22.1 There was construction on the highway, and an
associated right lane closure that was posted on the roadway.2
[Commonwealth Exhibits 2, 35 (photographs of road signage);
N.T., 6/19/2018, at 57]. Therefore, Mr. Johnson moved his
tractor trailer to the left lane of travel. At that time, a red
Chevrolet Cruz[e] sedan was in front of Mr. Johnson’s tractor
trailer. He witnessed a red Ford F-150, dual-cab pick-up truck
and a couple of other vehicles pass him in the right lane of travel
that was going to end as a result of the road work. Suddenly, the
red Ford F-150 pick-up truck moved into the left lane of travel and
struck the side of the 2014 red Chevrolet Cruz[e].3 The red Ford
F-150 pick–up truck consequently flipped over and pushed the
Chevrolet Cruz[e] into the concrete wall barrier.4
C[ommonwealth] Ex. 39. The Ford F-150 pick-up truck rolled over
several times and came to rest on the roof.
1 Route 22 is a divided, four (4) lane highway.
2 The traffic was light and the night was clear; consequently,
the signs were clearly visible. The sign read, “Warning.
Right lane closed ahead.” The speed limit was 45 mph in
the construction zone.
3 Prior to the red Ford F-150 pick-up truck moving into the
left lane of travel, Mr. Johnson did not notice anything
unusual about it.
4 The Chevrolet Cruz[e], occupied by William and Traci Fritz,
sustained heavy damage. Mrs. Fritz was the operator of the
vehicle. Their red Chevrolet Cruz[e] was shoved into the
concrete median by the Ford F-150 pick-up truck. The
passenger side door was crushed, and consequently they
had to exit the vehicle through the driver’s side door.
Mrs. Fritz was sore, stiff, and her ribs hurt. She was not
taken to the hospital as a result of the injuries that she
sustained. Similarly, Mr. Fritz suffered a bruise on his leg,
but did not go to the hospital for treatment.
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After the collision, Mr. Johnson heard children yelling from the red
Ford F-150 pick-up truck, so he exited his tractor trailer and ran
over to the rear of the pick-up truck to render assistance. There
were three (3) children in the Ford F-150 pick-up truck, appearing
to range in approximate age from two (2) to seven (7) years old.
. . . At approximately 11:40 P.M., Trooper Joseph Mitzak of the
Pennsylvania State Police, Bethlehem Barracks, was requested to
respond in full uniform and a marked police cruiser to this crash
site on Route 22 westbound near the Fullerton Avenue exit,
Hanover Township, Lehigh County, Pennsylvania. Upon arriving,
Trooper Mitzak observed a chaotic scene. [Commonwealth
Exhibits 1–35 (photographs)]. Specifically, there were four (4)
vehicles involved in the crash, including a red Ford F-150 pick-up
truck that was on its roof facing in a southern direction, a
Chevrolet Cruz[e] occupied by William and Traci Fritz, a Mazda 3,5
and a Volvo.6 [Commonwealth Exhibits 40–45 (photographs
showing damage to the F-150, where the roof collapsed, and to
the Volvo S40); N.T., 6/19/2018, at 68-70.]. At the time that
Trooper Mitzak arrived on scene, two (2) people remained inside
the Ford F-150 pick-up truck: [Appellant, who was the] registered
owner of the Ford F-150 pick-up truck[,] and a female,
Renee Tenasse.7 [Appellant] was trapped in the driver seat of the
vehicle.8 In addition, three (3) young children were sitting on the
berm of the highway near the guardrail.9 Trooper Mitzak engaged
[Appellant] in general conversation in an effort to keep him calm
before the extrication process began. [Appellant] stated that he
was the driver of the vehicle. Ultimately, [Appellant] was
extricated from the vehicle with the help of members of the Han-
Le Company Fire and Rescue,10 the Bethlehem EMS, and the
Pennsylvania State Police. Paramedic Jason Hadinger of the
Bethlehem EMS transported [Appellant] to the Lehigh Valley
Hospital - Cedar Crest Campus for medical attention. When
Paramedic Hadinger was tending to [Appellant]’s medical care, he
detected a strong odor of alcohol emanating from his person.11
Upon [Appellant]’s arrival at the Lehigh Valley Hospital trauma
unit, Michelle Greis, R.N., drew blood from [Appellant] in
accordance with hospital policy, as all trauma patients are
subjected to a blood draw. [Appellant]’s blood was drawn at
12:34 A.M. on August 20, 2016. [Commonwealth Exhibit 46
(blood alcohol and toxicology report – chain of custody)]. This
blood draw is part of a kit in which nine (9) tubes of blood are
drawn. The medical purpose for the blood draw is to determine if
there is alcohol or controlled substances in a patient’s system
which could mask an injury. Two (2) of the nine (9) tubes were
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set aside in the event that blood was needed for legal purposes,
and was not immediately tested.
5 The white Mazda was operated by Corinne Salter, and her
five and a half (5 ½) year old daughter was a rear seat
passenger in the vehicle at the time of the crash. This
vehicle sustained heavy damage, as the Ford F-150 pick-up
truck landed on the trunk of her car. Ms. Salter blacked out
briefly, and then she regained consciousness. She had a
sore hip and knee, for which she sought medical treatment.
Similarly, her young daughter had cuts on her legs from the
broken glass from the windows, and both went to Lehigh
Valley Hospital - Muhlenberg Campus for medical attention.
6 The Volvo S40, which was operated by teenager
Kaylyn Simpson, a student at Penn State University,
sustained damage to the rear of the vehicle. The Volvo S40
was rear-ended by the white Mazda 3 in this chain reaction
crash. Ms. Simpson was shaken up, but did not require any
medical treatment.
7 Robert Pierce, Andre Johnson, and Renee Tenasse were
passengers in [Appellant]’s vehicle, as were Ms. Tenasse’s
three (3) minor children. Ms. Tenasse was partially ejected
from the front passenger side door, as her upper body was
in the pick-up truck, but her legs were sticking out of the
pick-up truck. She was unresponsive, unconscious, and
barely [breathing] when the Pennsylvania State Police
arrived on scene. [N.T., 6/19/2018, at 39.] Corporal
Jason Troutman of the Pennsylvania State Police attempted
to pull Ms. Tenasse out of the vehicle. He had to crawl inside
the Ford F-150 pick-up truck to get her out, along with the
assistance of other Pennsylvania State Troopers on scene.
Corporal Troutman performed CPR on Ms. Tenasse to try to
resuscitate her to no avail.
Selvin Allonzo, a paramedic with the Cetronia Ambulance
Company, responded to the scene and provided medical
care to Mr. Robert Pierce . . . whose right lower leg was
injured, as it had been slightly trapped under the flatbed of
the Ford F-150 pick-up truck. Mr. Pierce also complained of
lower back pain. Paramedic Allonzo stabilized the leg
fracture and Mr. Pierce’s neck so that he could be
transported to the trauma unit of Lehigh Valley Hospital -
Cedar Crest Campus. . . .
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Mr. Pierce was uncooperative, as he was concerned about
Ms. Tenasse.
Mr. Pierce was admitted to Lehigh Valley Hospital and
remained there for three (3) days. He had three (3)
surgeries on his right ankle and still cannot walk without the
aid of crutches. The ankle had become infected due to the
pins that were placed therein to stabilize it, and therefore it
keeps leaking. He was hospitalized in Dubois Hospital in
western Pennsylvania and transferred to Pittsburgh
Hospital, where he remained for one (1) month. He had
surgery on his ankle and then he was transferred to a
nursing home for rehabilitation purposes for one (1) month.
All passengers in [Appellant]’s vehicle were injured,
including Ms. Tenasse who succumbed to her injuries and
was pronounced dead at the scene. Her cause of death was
blunt force trauma to the head and neck as a result of the
car accident. [Commonwealth Exhibit 37 (autopsy report
for Renee Tenasee from Lehigh County Coroner’s Office and
Forensics Center)]. The toxicology report indicated that
Ms. Tenasse did not have any alcohol or drugs present in
her system. [Id.]
8 [Appellant] was still strapped in with his seatbelt.
9The three (3) children of Renee Tenasse were all rear seat
passengers in the red Ford F-150 pick-up truck. They did
not sustain any significant injuries.
10 Garren Knoll, the Volunteer Assistant Chief of the Han-Le
Company Fire and Rescue, assisted in stabilizing the Ford F-
150 pick-up, and the cutting apart of the metal between the
Ford F-150 pick-up truck and the white Mazda 3 in order to
allow for the extrication of [Appellant] from the vehicle. In
addition, Paramedic Nicholas Marlowe, another volunteer
with the Han-Le Company Fire and Rescue, relieved
Corporal Troutman and tried to resuscitate Ms. Tenasse.
Paramedic Marlowe also assisted in the extrication of
[Appellant] from the vehicle.
11 During the transport, [Appellant] stated to
Paramedic Hadinger that he had consumed six (6) beers
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earlier that evening.[2 Appellant] also told
Paramedic Hadinger that he became distracted when two
(2) of the passengers in his vehicle had an argument, and
he lost focus.
Approximately two (2) to three (3) hours after the accident, at
2:40 A.M., Trooper Mitzak applied for and obtained a search
warrant for [Appellant]’s blood in order to obtain a blood alcohol
content analysis. At 3:05 A.M. on August 20, 2016, a separate
blood draw was performed at Lehigh Valley Hospital - Cedar Crest
Campus. The results of this blood draw revealed a blood alcohol
content of .06%. Trooper Mitzak was unaware that blood had
previously been drawn from [Appellant] by Michelle Greis, R.N.
Additionally, Trooper Mitzak had an opportunity to speak with
[Appellant] at Lehigh Valley Hospital - Cedar Crest Campus. At
that time, Trooper Mitzak advised [Appellant] that he was not in
custody and that he did not have to speak with him. Nevertheless,
[Appellant] agreed to speak with Trooper Mitzak. [Appellant] told
Trooper Mitzak that he had hosted a barbecue at his house in
Easton and he had consumed a few alcoholic beverages the
evening in question. He also admitted to being the operator of
the vehicle and he stated that two (2) of the passengers had an
argument in the vehicle before the crash.
On September 8, 2016, Trooper Mitzak applied for and obtained a
second search warrant for [Appellant]’s blood that was drawn at
12:34 A.M. on August 20, 2016.12 [Appellant]’s blood alcohol
content at that time was .11%.13 [Commonwealth Exhibit 47
(laboratory analysis form for blood alcohol/controlled substance).]
12 Trooper Mitzak did not request that this blood be drawn.
13 Nadine Koenig, an expert in the area of toxicology and
toxicological chemistry, opined that alcohol can cause
people to have slower reactions, poor judgment, visual
impairment, and lack of coordination.
Trooper William Hoogerhyde of the Pennsylvania State Police,
Troop M, Fogelsville Barrack, an expert in the area of Accident
Reconstruction, arrived on scene around 1:06 A.M. in order to
____________________________________________
2 During trial, Pierce testified that he had seen Appellant drinking beer earlier
that day. N.T., 6/19/2018, at 136; Trial Court Opinion, filed August 28, 2018,
at 9.
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perform an accident reconstruction. [Commonwealth Exhibit 36
(Trooper Hoogerhyde’s curriculum vitae)]. Based on his analysis
of the scene, as well as having performed a mechanical inspection
of the vehicles involved, Trooper Hoogerhyde found that there was
no defect in the Ford F-150 pick-up or red Chevrolet Cruz[e] that
would have contributed to the collision. He opined that the crash
occurred when the Ford F-150 pick-up truck moved into the left
lane of travel and struck the red Chevrolet Cruz[e], pushing that
vehicle into the concrete barrier. The Ford F-150 pick-up
continued to move forward, hit the barrier, and rolled on the right
side, and flew up in the air, impacting the rear of the white
Mazda 3. As a result of this impact, the white Mazda 3 struck the
Volvo.
Trial Court Opinion (“TCO”), filed August 28, 2018, at 4-9 (some formatting).
At trial, Pierce testified that, for about 15 to 20 minutes prior to the
collision, Appellant was “swerving in between lanes” and “going pretty fast[,]”
causing Pierce to “yell[] out, . . . ‘Can you stop or pull over, or let
Renee [Tenasse] drive[?]’” N.T., 6/19/2018, at 138-39; see also TCO,
August 28, 2018, at 9. When asked if Tenasse had drunk any alcohol that
evening, Pierce answered negatively. N.T., 6/19/2018, at 138; see also TCO,
August 28, 2018, at 6 n.7 & 9. He continued that, immediately prior to the
collision, he heard Tenasse say to Appellant, while she was seated in the front
passenger seat of Appellant’s car, that “she don’t want to die, if you can pull
over.” N.T., 6/19/2018, at 139; see also TCO, August 28, 2018, at 9.
Trooper Hoogerhyde, as an expert in accident reconstruction, opined
“[t]hat the pickup truck was actually traveling in the right lane of westbound
[Route] 22[,]” while the other vehicles involved in the collision – the Chevrolet
Cruze, the Mazda 3, and the Volvo S40 – “were traveling in the left lane of
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[Route] 22[.] . . . For unknown reasons the pickup truck went into the left
lane.” N.T., 6/19/2018, at 165.
On June 21, 2018, a jury convicted Appellant of the aforementioned
EWOC, REAP, and DUI charges, and the trial court convicted Appellant of the
summary counts of speeding, careless driving, and reckless driving. The trial
court ordered a pre-sentence investigation report, which was completed on
July 23, 2018. TCO, August 28, 2018, at 15. Appellant was sentenced three
days later.3
On August 3, 2018, Appellant filed post-sentence motions, including a
motion for a new trial claiming that the verdict was against the weight of the
evidence and a motion for reconsideration of sentence. Post-sentence
Motions, 8/3/2018, at ¶¶ 23-44. On August 28, 2018,4 the trial court denied
Appellant’s post-sentence motions and explained its reasoning in an
accompanying opinion. Order, 8/28/2018; TCO, August 28, 2018, at 2-17.
On September 13, 2018, Appellant filed this timely direct appeal
pursuant to Pa.R.A.P. 902 and 903. The next day, the trial court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) within 21 days of the date of the order. The
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3 Appellant’s “minimum sentences were within the standard range of the
guidelines, and the maximum sentences were set within the statutory
maximum.” TCO, filed August 28, 2018, at 13.
4The order was dated August 27, 2018, but filed with the Clerk of Judicial
Records and docketed on August 28, 2018.
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order warned: “Any issue not properly included in the concise statement of
the errors complained of on appeal timely filed and served shall be deemed
waived.” Order, 9/14/2018.
On October 1, 2018, Appellant filed his statement of errors complained
of on appeal, reproduced in its entirety below:
AND NOW, comes the Defendant/Appellant,
SHELDON LINDLEY KROCK, by and through Counsel,
Michael E. Brunnabend, Esquire, and respectfully submits this
Statement of Matters Complained of on Appeal pursuant to Pa.
R.A.P. 1925(b), and pursuant to the Court’s Order requesting the
same, as follows:
1. The Court erred by failing to grant the Defense request
to suppress from using the blood test results which were
taken without consent or appropriate probable cause. The
Defendant incorporates by reference all other basis for
suppression as are also set forth in the Defendant’s Pretrial
Motion to Suppress, as if it is set forth more fully herein.
2. The Court erred by permitting the pre-accident
statements of the decedent passenger to be entered as
substantive evidence through the testimony of the third-
party passenger.
3. The Court erred in permitting various photos to go out
with the jury on request of the Commonwealth even though
the photos were never published to the jury during Trial nor
was cross-examination allowed or occurred to distinguish
the limited purpose for which the photos could be used.
4. The verdict of the jury was not supported by sufficient
evidence to prove that the defendant’s actions or inactions
were the cause of the accident or that the accident was the
direct result of the defendant’s actions or state of mind.
5. The evidence was insufficient as to the Endangering the
Welfare of Children as there was no evidence presented to
support the legal or factual requirement that the defendant
was the guardian of, had the control over the welfare of the
children, or was supervising them so as to sustain a change
of Endangering the Welfare.
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6. The verdict of the jury was against the weight of the
evidence for all of the reasons as are set forth in paragraph
4 and paragraph 5 as if those factual or legal basis are more
fully set forth herein.
Concise Statement of Matters Complained on Appeal (“Rule 1925(b)
Statement”), 10/1/2018, at 1-2. On October 3, 2018, the trial court entered
its opinion pursuant to Pa.R.A.P. 1925(a).
Appellant now presents the following issues for our review:
A. Whether the evidence was sufficient to sustain Appellant’s
convictions for [REAP] and [EWOC]?
B. Was the verdict against the weight of all the evidence in
regards to proof of whether or not the [Appellant] was properly
convicted of [REAP] and [EWOC]?
C. Whether the trial court erred when it permitted the entry of
the statement of the decedent passenger through another witness
deeming it to be an[] excited utterance?
D. Whether the [trial] court abused its discretion in imposing
manifestly excessive and unreasonable sentences the most
serious of which were at the statutory maximum limit and all were
imposed consecutively when the court failed to consider any
significant mitigating factors, failed to apply and review all the
necessary factors as set forth in 42 Pa.C.S.A. § 9721(b) and 42
Pa.C.S.A. § 9781(c) and (d) or otherwise failed to set forth
appropriate reasons for its decision that the maximum sentences
were the only appropriate sentences?
Appellant’s Brief at 9-10 (trial court’s answers and unnecessary capitalization
omitted) (some additional formatting).
Sufficiency of the Evidence
Appellant “believes that his convictions for the multiple counts of [REAP]
and [EWOC] were not supported by sufficient evidence to permit those
convictions.” Appellant’s Brief at 24.
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This Court’s standard for reviewing sufficiency of the evidence
claims is as follows:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the trier
of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe
all, part, or none of the evidence presented. It is not within
the province of this Court to re-weigh the evidence and
substitute our judgment for that of the fact-finder. The
Commonwealth’s burden may be met by wholly
circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the fact-finder unless
the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super.
2016) (quoting Commonwealth v. Tarrach, 42 A.3d 342, 345
(Pa.Super. 2012)).
Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017) (internal
brackets omitted).
REAP
Appellant was convicted of REAP pursuant to 18 Pa.C.S. § 2705: “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.”
A person acts recklessly with respect to a material element of an
offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
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that, considering the nature and intent of the actor’s conduct and
the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a reasonable person
would observe in the actor’s situation.
Id. § 302(b)(3). Our law defines “[s]erious bodily injury” as “[b]odily injury
which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” Id. § 2301.
Preliminarily, we note:
[I]n order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant’s Pa.R.A.P. 1925(b) statement
must state with specificity the element or elements upon which
the appellant alleges that the evidence was insufficient. See []
Pa.R.A.P. 1925(b)(4)(ii) (“The Statement shall concisely identify
each ruling or error that the appellant intends to challenge with
sufficient detail to identify all pertinent issues for the judge.”).
Such specificity is of particular importance in cases where, as
here, Appellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must prove
beyond a reasonable doubt. Therefore, when an appellant’s
1925(b) statement fails to specify the element or elements upon
which the evidence was insufficient, the sufficiency issue is waived
on appeal.
Commonwealth v. Ellison, 2019 PA Super 193, *14-*15 (filed June 20,
2019) (internal brackets and ellipsis and some internal citations and quotation
marks omitted).
Only Paragraphs 4 and 5 of the 1925(b) Statement, reproduced in its
entirety above, refer to the sufficiency of the evidence. Rule 1925(b)
Statement, 10/1/2018, at 2 ¶¶ 4-5. In Paragraph 4, Appellant not only failed
to specify which elements he was challenging, he also failed to specify which
conviction he was challenging. Id. at ¶ 4. Paragraphs 4 and 5 of the Rule
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1925(b) Statement made no explicit mention of REAP, let alone stating with
specificity the element or elements that Appellant was alleging were not
proven to support his 11 REAP convictions. Id. at ¶¶ 4-5. Not only does
Appellant’s Rule 1925(b) Statement not explicitly reference REAP, no language
from 18 Pa.C.S. § 2705, § 302(b)(3), or § 2301, defining the elements of
REAP, is included in the Rule 1925(b) Statement, either. See Rule 1925(b)
Statement, 10/1/2018, at 2 ¶¶ 4-5. We thereby find Appellant’s challenge to
the sufficiency of the evidence to find REAP waived on that basis. See Ellison,
2019 PA Super 193, *14.
Assuming we interpret the Rule 1925(b) Statement extremely
generously, we could consider Appellant’s references in Paragraph 4 of his
Rule 1925(b) Statement to his “actions” and “state of mind” to be equivalent
to the “conduct” and “reckless” elements in 18 Pa.C.S. § 2705, respectively.
We thus would find that his sufficiency claim as to his REAP convictions had
not been waived, but we would still hold said challenge to be meritless.
Appellant contends that the undisputed fact that he drove under the
influence of an intoxicating substance alone cannot establish the element of
recklessness for REAP but that there must be “other tangible indicia of unsafe
driving[.]” Appellant’s Brief at 27 (quoting Commonwealth v.
Mastromatteo, 719 A.2d 1081, 1083 (Pa. Super. 1998)).
Appellant is correct that “[d]riving under the influence of intoxicating
substances does not create legal recklessness per se but must be accompanied
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with other tangible indicia of unsafe driving to a degree that creates a
substantial risk of injury which is consciously disregarded.” Commonwealth
v. Hutchins, 42 A.3d 302, 311 (Pa. Super. 2012) (quoting Mastromatteo,
719 A.2d at 1082)).
For example, in Mastromatteo, police observed the defendant
driving in a very slow fashion and, while she never came close to
other vehicles, she crossed the centerline on several occasions.
Id. at 1082. As a result, the police initiated a traffic stop for
suspicion of drunk driving. Id. It was then discovered that the
defendant had consumed alcohol and marijuana, had a glass in
the front seat, which appeared to contain alcohol, and had her
young son in the car with her. Id. at 1081–1084. The defendant
was convicted of both DUI and REAP. Id. at 1081.
On appeal, we affirmed the defendant’s judgment of sentence for
DUI, but reversed the REAP conviction. Id. at 1084. In that
matter we noted that, while we do not condone driving while
intoxicated, “undoubtedly there are certain drivers who will exhibit
safer driving conduct while legally intoxicated than certain drivers
do when they are sober.” Id. at 1083 n. 4. Rather, we explained,
“[w]hat is material is actual reckless driving or conduct [other
than just intoxication] ... for it is this conduct which creates the
peril in question.” Id. at 1083. Because in Mastromatteo there
was no evidence of reckless driving or conduct, other than the
defendant’s intoxication, we were constrained to reverse
defendant’s REAP conviction. Id. at 1084.
Id.In the current action, in addition to evidence of Appellant’s intoxication,
Pierce testified that, for about 15 to 20 minutes prior to the collision, Appellant
was “swerving in between lanes” and “going pretty fast[,]” causing Pierce to
“yell[] out, . . . ‘Can you stop or pull over, or let Renee drive,’” as she had not
consumed any alcohol that evening. N.T., 6/19/2018, at 138-39; see also
TCO, August 28, 2018, at 6 n.7 (citing Commonwealth Exhibit 37) & 9. Pierce
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further testified that he heard Tenasse say “she don’t want to die, if you can
pull over.” N.T., 6/19/2018, at 139; see also TCO, August 28, 2018, at 9.
The fact that Appellant was swerving between lanes was corroborated
by the expert testimony of Trooper Hoogerhyde “[t]hat the pickup truck was
actually traveling in the right line of westbound [Route] 22[,]” while the other
vehicles involved in the collision – the Chevrolet Cruze, the Mazda 3, and the
Volvo – “were traveling in the left lane of [Route] 22[.]” N.T., 6/19/2018, at
165. Accordingly, “the pickup truck” had to have gone “into the left lane” in
order to hit the other three vehicles. Id.; see also TCO, August 28, 2018, at
8.
Hence, unlike in Mastromatteo, 719 A.2d at 1081-84, the evidence
admitted at Appellant’s trial included “other tangible indicia of unsafe driving
to a degree that creates a substantial risk of injury which is consciously
disregarded[,]” Hutchins, 42 A.3d at 311, thereby establishing the mens rea
of recklessness for REAP. See 18 Pa.C.S. § 2705. Thus, assuming Appellant’s
claim that the evidence was insufficient to fulfill this element of REAP had been
properly preserved, Appellant’s Brief at 27, we would still find that it merits
no relief.
EWOC
Only Appellant’s sufficiency challenge for EWOC was properly preserved
for our consideration. Rule 1925(b) Statement, 10/1/2018, at 2 ¶ 5.
Appellant was convicted of three counts of EWOC pursuant to 18 Pa.C.S.
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§ 4304(a)(1): “A parent, guardian or other person supervising the welfare of
a child under 18 years of age, or a person that employs or supervises such a
person, commits an offense if he knowingly endangers the welfare of the child
by violating a duty of care, protection or support.”
This Court has employed a three-prong test to determine whether
the Commonwealth’s evidence is sufficient to prove that a
defendant knowingly violated a duty of care under Section
4304(a)(1): (1) the accused must be aware of his or her duty to
protect the child; (2) the accused must be aware that the child is
in circumstances that could threaten the child’s physical or
psychological welfare; and (3) the accused either must have failed
to act, or must have taken action so lame or meager that such
actions cannot reasonably be expected to protect the child’s
welfare.
Commonwealth v. Sebolka, 205 A.3d 329, 337 (Pa. Super. 2019) (citation
omitted) (some formatting).
Appellant concedes “that he had been drinking and that he was above
the legal limit at the time of the accident” and that he “was certainly aware of
his duty to the children but does not believe that the evidence sufficiently
proved that he would[ ha]ve been aware that the children were in
circumstances that could threaten their physical well-being.” Appellant’s Brief
at 27, 30. In other words, Appellant is only challenging the mens rea – i.e.,
that he must “knowingly endanger the welfare of the child[.]” 18 Pa.C.S.
§ 4304(a)(1) (emphasis added). However, in his Rule 1925(b) statement,
Appellant challenged a different element of EWOC – i.e., whether he “was the
guardian of, had the control over the welfare of the children, or was
supervising them so as to sustain a cha[r]ge of Endangering the Welfare.”
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Rule 1925(b) Statement, 10/1/2018, at 2 ¶ 5. Appellant hence failed to
preserve a challenge to the sufficiency of the evidence to support the finding
of a “knowingly” mens rea for the EWOC charges, and this claim is therefore
waived. Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived”); Ellison, 2019 PA Super 193, *14-*15.
Weight of the Evidence
Next, Appellant contends “that the verdict was against the weight of all
the evidence and as such should not be permitted to survive.” Appellant’s
Brief at 31.5
When reviewing a challenge to the weight of the evidence, we
review the trial court’s exercise of discretion. A reversal of a
verdict is not necessary unless it is so contrary to the evidence as
to shock one’s sense of justice. The weight of the evidence is
exclusively for the finder of fact, who is free to believe all, none
or some of the evidence and to determine the credibility of the
witnesses. The fact-finder also has the responsibility of resolving
contradictory testimony and questions of credibility. We give
great deference to the trial court’s decision regarding a weight of
the evidence claim because it had the opportunity to hear and see
the evidence presented.
Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super. 2019) (internal
citations and quotation marks omitted).
In the current appeal,
[Appellant] believes that a review of the evidence will not support
a finding that [he] acted in such a manner as to violate his duty
____________________________________________
5 We note that the remedy for a successful challenge to the weight of the
evidence is a new trial, not a judgment of acquittal. Commonwealth v.
Widmer, 744 A.2d 745, 751-52 (Pa. 2000).
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of care for the children. Even if Mr. Pierce[’s] testimony is believed
in full it is still not enough to support a belief that [Appellant] was
driving recklessly or in such a disregard for those children by the
safe operation of the motor vehicle. In cases where there was
evidence of some reckless driving the seriousness and
dangerousness of that conduct far exceeds [Appellant]’s actions
on that evening. Compare Commonwealth v[]. Jeter, 2007 PA
Super 328, 937 A.2[]d. 466 (PA. Super. 2007) or Commonwealth
v[]. Sullivan, 2004 PA Super 481, 864 A.2[]d. 1246 (PA. Super.
2004).
Appellant’s Brief at 32 (some formatting).
Nevertheless, this claim is not a challenge to the weight of the evidence;
by alleging that the evidence was “not enough,” Appellant is insisting that the
evidence was insufficient. That is to say, Appellant is conflating challenges to
the weight of the evidence with challenges to the sufficiency of the evidence.
For example, Appellant is not challenging Pierce’s credibility, which would be
a potential basis for a weight challenge. See Commonwealth v. Wilson,
825 A.2d 710, 713-14 (Pa. Super. 2003) (“A sufficiency of the evidence review
. . . does not include an assessment of the credibility of the testimony offered
by the Commonwealth. Such a claim is more properly characterized as a
weight of the evidence challenge.” (citation omitted)). Instead, Appellant
acknowledges that Pierce’s testimony could be believed in full. Appellant’s
Brief at 32. Additionally, in the first case cited by Appellant, Commonwealth
v. Jeter, 937 A.2d 466 (Pa. Super. 2007), the appellant “raise[d] one issue
on appeal: whether the evidence at trial was sufficient to support his
conviction for reckless driving[,]” id. at 467 (emphasis added); accordingly,
the case involved a sufficiency challenge, not a weight challenge. As for the
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second case referenced by Appellant, Commonwealth v. Sullivan, 864 A.2d
1246 (Pa. Super. 2004), the appellant therein asserted that “his convictions
were against the weight of the evidence[,]” id. at 1247, but this Court found
his weight of the evidence claims waived, id. at 1248, “because none of [the
a]ppellant’s cited authority addresses any weight of the evidence issues.
Rather, the cited authority addresses sufficiency of the evidence claims.” Id.
at 1249 (emphasis in original) (citing Commonwealth v. Mercado, 649 A.2d
946, 954 (Pa. Super. 1994) (stating that failure to provide support for an issue
may result in waiver of the claim)). Consequently, instead of supporting
Appellant’s weight claim, Sullivan emphasizes Appellant’s failure to
appreciate the difference between weight and sufficiency claims, as his cited
authority likewise fails to address any weight of the evidence issues.
Appellant’s claim is more properly characterized as a sufficiency of the
evidence challenge, but he has once again failed to specify which convictions
or elements thereof he is contesting, thereby waiving any claim. Ellison,
2019 PA Super 193, *14-*15.
To the extent that we can consider Appellant’s references to “a finding
that [he] acted in such a manner as to violate his duty of care for the
children” relate to his EWOC convictions, compare Appellant’s Brief at 32
(emphasis added) with 18 Pa.C.S. § 4304(a)(1) (“. . . endangers the welfare
of the child by violating a duty of care, protection or support” (emphasis
added)), Appellant conceded elsewhere in his brief to this Court that he “was
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certainly aware of his duty to the children[,]” Appellant’s Brief at 30, and has
otherwise failed to develop his claim. Neither of the cases cited by Appellant
-- Jeter, 937 A.2d 466, and Sullivan, 864 A.2d 1246 -- concern EWOC
convictions.6 The failure to support an argument with pertinent authority is a
violation of our briefing rules which results in waiver of the unsupported issue.
See, e.g., Commonwealth v. Spotz, 18 A.3d 244, 281 n.21 (Pa. 2011)
(without a “developed, reasoned, supported, or even intelligible argument[,
t]he matter is waived for lack of development”); In re Estate of Whitley, 50
A.3d 203, 209 (Pa. Super. 2012) (“The argument portion of an appellate brief
must include a pertinent discussion of the particular point raised along with
discussion and citation of pertinent authorities[; t]his Court will not consider
the merits of an argument which fails to cite relevant case or statutory
authority” (internal citations and quotation marks omitted)); Lackner v.
Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (explaining appellant’s
arguments must adhere to rules of appellate procedure, and arguments which
are not appropriately developed are waived on appeal; arguments not
appropriately developed include those where party has failed to cite any
authority in support of contention); Sullivan, 864 A.2d at 1248-49 (citing
____________________________________________
6 In Jeter, 937 A.2d at 467, the appellant was convicted of DUI, false
identification to law enforcement, driving on roadways laned for traffic, driving
under suspension, and reckless driving. In Sullivan, 864 A.2d at 1247, the
appellant was convicted of DUI, aggravated assault by vehicle while DUI,
REAP, and simple assault.
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Mercado, 649 A.2d at 954 (failure to provide support for an issue may result
in waiver of the claim)) (claims waived, “because none of [the a]ppellant’s
cited authority addresses” issue raised). Given Appellant’s failure to support
his argument with citations to the record or to any legal authority, we find any
challenge relating to proof of the element of EWOC of a violation of a duty of
care to be waived.
To the extent that we can consider Appellant’s references to “driving
recklessly or in such a disregard for those children by the safe operation of
the motor vehicle” relate to his REAP convictions, compare Appellant’s Brief
at 32 (emphasis added) with 18 Pa.C.S. § 2705 (“person commits a
misdemeanor of the second degree if he recklessly engages . . .” (emphasis
added)) and id. § 302(b)(3) (“. . . when he consciously disregards a
substantial and unjustifiable risk . . .” (emphasis added)), we have already
analyzed the evidence in support of the requisite mens rea of recklessness for
Appellant’s REAP convictions, above, and concluded that the evidence
admitted at trial, when viewed in a light most favorable to the Commonwealth
as verdict winner, supported a finding of recklessness. See Izurieta, 171
A.3d at 806.
Assuming arguendo we were to consider Appellant’s challenge
preserved as a weight claim, we would observe that:
Appellate 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. . . .
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The term “discretion” imports the exercise of judgment, wisdom
and skill so as to reach a dispassionate conclusion within the
framework of the law, and is not exercised for the purpose of
giving effect to the will of the judge. . . . Discretion is abused
where the course pursued represents not merely an error of
judgment, but 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.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in
original) (citations omitted); see also Roane, 204 A.3d at 1001 (“When
reviewing a challenge to the weight of the evidence, we review the trial court’s
exercise of discretion.”). Appellant makes no claims that the trial court or the
jury, as fact-finder, acted unreasonably, misapplied the law, or exhibited
partiality, prejudice, or ill will. See Clay, 64 A.3d at 1055. Appellant has thus
not raised any genuine weight issue. See Appellant’s Brief at 31-32.
Evidentiary Ruling – Excited Utterance
Appellant urges this Court to conclude that the trial court erred by
allowing Pierce to testify about statements made by Tenasse immediately prior
to the collision. Appellant’s Brief at 32-35; N.T., 6/19/2018, at 139; TCO,
August 28, 2018, at 9.
The admissibility of evidence is a matter within the sound
discretion of the trial court and will be reversed only where there
is a clear abuse of discretion. . . . Evidence is admissible if it is
relevant—that is, if it tends to establish a material fact, makes a
fact at issue more or less probable, or supports a reasonable
inference supporting a material fact—and its probative value
outweighs the likelihood of unfair prejudice.
Commonwealth v. Clemons, 200 A.3d 441, 474 (Pa. 2019) (citations
omitted).
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The trial court allowed Tenasse’s statements to be admitted as an
exception to the rule against hearsay pursuant to Pa.R.E. 803(2):
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness: . . .
(2) Excited Utterance. A statement relating to a
startling event or condition, made while the declarant was
under the stress of excitement that it caused. When the
declarant is unidentified, the proponent shall show by
independent corroborating evidence that the declarant
actually perceived the startling event or condition.
The official comment to Pa.R.E. 803(2) further explains:
This exception has a more narrow base than the exception for a
present sense impression [pursuant to Pa.R.E. 803(1)], because
it requires an event or condition that is startling. However, it is
broader in scope because an excited utterance (1) need not
describe or explain the startling event or condition; it need only
relate to it, and (2) need not be made contemporaneously with,
or immediately after, the startling event. It is sufficient if the
stress of excitement created by the startling event or condition
persists as a substantial factor in provoking the utterance.
Comment to Pa.R.E. 803(2) (emphasis in original).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable
Maria L. Dantos, we conclude that Appellant’s issue merits no relief. The trial
court opinion filed October 3, 2018, comprehensively discusses and properly
disposes of that question:
In the instant case, Ms. Tenasse’s statement was spontaneously
made while she was emotional due to the unexpected stress of
the shocking situation in which she found herself. The
Commonwealth established the foundation that the statement was
uttered while Ms. Tenasse was overcome by the events, and it was
not calculated nor a result of mental reflection. For this reason,
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th[e trial c]ourt legally and appropriately allowed this statement
to be admitted into evidence.
Trial Court Opinion, filed October 3, 2018, at 4.
Ergo, we find that the trial court did not abuse its discretion in permitting
Tenasse’s statements to be admitted into evidence through Pierce’s
testimony. See Clemons, 200 A.3d at 474.
Sentencing
Finally, Appellant challenges the discretionary aspects of his sentence.
Appellant’s Brief at 35-39. Nonetheless, Appellant did not include any
sentencing challenges in his Rule 1925(b) Statement. Hence, this issue is
waived. Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived”).7
* * *
Based on the foregoing, Appellant is not entitled to relief. Accordingly,
we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
____________________________________________
7 The trial court order directing Appellant to file a concise statement of errors
had cautioned: “Any issue not properly included in the concise statement of
the errors complained of on appeal timely filed and served shall be deemed
waived.” Order, 9/14/2018. Thus, the order complied with Pa.R.A.P.
1925(b)(3)(iv) (“The judge’s order directing the filing and service of a
Statement shall specify: . . . that any issue not properly included in the
Statement timely filed and served pursuant to subdivision (b) shall be deemed
waived.”). Had the order not conformed to Pa.R.A.P. 1925(b)(3)(iv) and,
hence, had Appellant not had proper warning that any issues not included in
his Rule 1925(b) Statement would be waived, we would have declined to find
waiver. Commonwealth v. Jones, 193 A.3d 957, 962 (Pa. Super. 2018).
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Judge Ott joins in the memorandum.
Judge Dubow concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/19
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