Com. v. Burns, K. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KRISTIAN CHARLES BURNS :
:
Appellant : No. 1356 MDA 2020
Appeal from the Judgment of Sentence Entered June 1, 2020
In the Court of Common Pleas of Union County Criminal Division at
No(s): CP-60-CR-0000074-2019
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 29, 2021
Appellant, Kristian Charles Burns, appeals from the judgment of
sentence entered in the Court of Common Pleas of Union County after a jury
convicted him of aggravated assault by vehicle while driving under the
influence (“DUI”), aggravated assault by vehicle, DUI—highest rate, accidents
involving death or injury while not licensed, and driving while suspended DUI-
related with alcohol in his system.1 Herein, Appellant challenges a pre-trial
ruling of the court, the discretionary aspects of his sentence, and the weight
and sufficiency of the evidence. After careful review, we affirm.
On May 12, 2018, Appellant encountered two old high school friends,
Kara Eberle and Tessy Aikey, at a bar in Milton, Pa. and spent the remainder
of the night consuming alcohol, marijuana, and cocaine. N.T., 3/2/20, at 45,
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3735.1, 3732.1, 3802(c), 3742.1(a), and 1543.
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48-51, 68-69. In the early morning hours, Eberle, who had volunteered to be
the designated driver for Aikey earlier that evening, agreed to drive Appellant
home as well. N.T. at 47. After she dropped off Aikey, she continued toward
the rural home of Appellant’s father, but she was having some difficulty
because she did not know the way. N.T. at 52-54. According to Eberle, she
accepted Appellant’s offer to take over, and Appellant eventually crashed the
car into a tree at a high rate of speed causing the two to be ejected from the
car and sustain serious injury. N.T. at 56-59.
Appellant was charged as indicated supra, and a pivotal issue at the jury
trial regarded the identity of the driver at the time of the accident. The
Commonwealth presented evidence intended to prove Appellant caused the
accident by reckless operation of the vehicle, as Appellant had turned down a
"loose gravel” road with a posted 40 mile per hour speed limit and accelerated
to between 74 and 80 miles per hour in disregard of Eberle’s panicked pleas
for him to slow down. N.T. at 56-57, 147. Eberle claimed she was so afraid
at that moment that she undid her seatbelt and prepared to jump from the
vehicle. N.T. at 56.
The Commonwealth also presented both DNA test results of blood
recovered from inside the vehicle and expert testimony on accident
reconstruction analysis to establish Appellant’s location in the driver’s seat at
the time of the accident. N.T. at 145-146, 155. Additionally, post-accident
BAC results and toxicology screenings were offered to corroborate Eberle’s
testimony that Appellant drove recklessly and without due regard for the
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dangerous conditions. Specifically, Appellant’s BAC of .284% and positive
results for marijuana and cocaine in his toxicology screening provided
evidence of his impairment, while, in contrast, Eberle’s BAC was .074%, below
the legal limit. N.T. at 67-69.
In his defense, Appellant presented an expert witness, Justin P. Schorr,
Ph.D., whose accident reconstruction analysis led him to offer his opinion to a
reasonable degree of professional certainty that Eberle was the driver.
A jury found Appellant guilty of aggravated assault by vehicle while DUI
(“AA-DUI”), aggravated assault by vehicle, DUI—highest rate, accidents
involving death or injury while not licensed, and driving while suspended DUI-
related with alcohol in his system.
The trial court imposed an aggregate sentence of 54 months plus 90
days to 132 months’ incarceration, which comprised a standard range
sentence of 54 to 120 months for AA-DUI, a concurrent sentence of 16 to 84
months for accidents involving death or injury while not licensed, and a
consecutive sentence of 90 days to 12 months for driving while suspended
while greater than .02% BAC. This timely appeal followed.
Appellant presents the following questions for our consideration:
1. The trial court denied Burns’ motion to continue on the eve of
trial. The continuance request was based on the
Commonwealth’s providing new discovery on the Friday before
trial was to begin on Monday. Due to the late proved discovery,
Burns did not have adequate time to prepare a defense. Did
the judge abuse his discretion by failing to grant Burns’ motion
to continue?
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2. The trial court sentenced Burns to an aggregate sentence of 57
months to 132 months. Based on Burns[’] individual
circumstances in light of his own serious injury and required
medical treatment, this sentence is akin to cruel and unusual
punishment. Did the court err in imposing an excessive
sentence?
3. Burns was found guilty of aggravated assault by vehicle while
DUI. To convict a driver of this offense, the Commonwealth
must prove that Burns’ intoxication was the direct and
proximate cause of the accident which resulted in serious bodily
injury to the victim. Here there was no evidence presented
that the Burns intoxication was the direct and proximate cause
of the injury. Did the Commonwealth fail to present sufficient
evidence to find Burns guilty?
4. Burns was found guilty of aggravate[d] assault while DUI,
aggravated assault by vehicle, accident involving death or
injury, DUI impaired ability, and Driving While Suspended with
a greater than .02% BAC. There was credible evidence
presented by a qualified expert witness that Burns could not
have been the driver of the car. Was the verdict as to each of
the above-listed charges against the weight of the evidence?
Appellant’s brief at 6-7.
Appellant first asserts that the trial court erroneously denied his Friday,
February 28, 2020, written motion for a continuance to permit adequate
review of approximately 95 crash scene photographs that the Commonwealth
had just turned over to the defense a day earlier. The motion asserted that
with an anticipated two-day trial scheduled to begin on Monday morning,
March 2, 2020, there was insufficient time for the defense team and its
collision reconstruction expert to review properly the newly provided
discovery. He argues the photographs were essential to the expert’s ability
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to evaluate the scene and draw a conclusion as to who was driving at the time
of the accident.
Our Supreme Court has held that “[t]he grant or denial of a motion for
a continuance is within the sound discretion of the trial court and will be
reversed only upon a showing of an abuse of discretion.” Commonwealth v.
Brooks, 104 A.3d 466, 469 (Pa. 2014). An abuse of discretion is not merely
an error of judgment; rather, discretion is abused when “the law is overridden
or misapplied, or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the
record.” Id. (citation omitted).
“A bald allegation of an insufficient amount of time to prepare will not
provide a basis for reversal of the denial of a continuance motion.”
Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012). “Instead, an
appellant must be able to show specifically in what manner he was unable to
prepare his defense or how he would have prepared differently had he been
given more time.” Id. (quotation omitted).
The trial court’s March 2, 2020, written order denying Appellant’s motion
for a continuance specified “the motion is denied at this time, without
prejudice to renew.” Order, 2/28/20 (emphasis added). The opportunity to
renew tracked both an earlier in-chambers conference on the motion and the
court’s subsequent formal announcement from the bench “not to grant the
motion at this time at least.” N.T., 2/2/20, at 5.
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Prior to entering its order, the court asked defense counsel if he wanted
“to add anything before I do that or qualify what you want to have happen?”
Defense counsel responded, “I don’t think it’s necessary, Your Honor. I may
renew the motion later on in the day; but at this point, I certainly respect the
Judge’s – Your Honor’s ruling.” Id.During a break in Day 1 testimony, defense counsel updated the court
regarding the prospect of a renewed motion:
Defense counsel: For what it’s worth, Your Honor, just as
sort of a housecleaning matter; having conferred with my expert,
I do not believe that I will be resuming my motion for continuance.
I think we’re okay in proceeding.
N.T. at 118. Accordingly, defense expert Justin Schorr, Ph.D., testified on the
following day.
In its Pa.R.A.P. 1925 Opinion, the trial court explains that it entered the
order without prejudice to renew because “we wanted to determine if in fact
the late receipt of discovery compromised or prejudiced the defense expert’s
presentation since the motion was speculative as to whether the expert might
be incapable of reviewing the materials over the weekend before the start of
trial.” TCO, 11/12/2020, at 2. Given both counsel’s Monday notice to the
court that it would not renew its motion and the expert’s Tuesday testimony
evaluating the photographs without complaint of insufficient time to prepare,
the trial court found that Appellant waived his right to raise this claim on
appeal. We agree.
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By indicating at Monday’s pretrial conference its willingness to consider
a renewed motion as the time for the expert’s Tuesday testimony drew closer,
which would allow better assessment by all of whether prior Thursday’s
discovery of the photographs provided adequate time for the expert to
prepare, the court stopped short of definitively ruling on the motion. It was
only when counsel later advised the court that after conferring with his expert
there was no need to renew and that he would be “okay in proceeding” that
the issue was settled, as counsel effectively withdrew his motion at such time.
We, thus, conclude waiver applies under the particular facts of the case. Cf.
Blumer v. Ford Motor Co., 20 A.3d 1222, 1232 (Pa.Super. 2011)
(“Consistent with . . . F.R.E. 103, a motion in limine may preserve an
objection for appeal without any need to renew the objection at trial, but only
if the trial court clearly and definitively rules on the motion. . . . [See] F.R.E.
103, Advisory Committee Notes—2000 Amendments (‘[W]hen the trial court
appears to have reserved its ruling or to have indicated that the ruling is
provisional, it makes sense to require the party to bring the issue to the court's
attention subsequently.’)”) (emphasis added).2
In Appellant’s second issue, Appellant challenges the court’s exercise of
sentencing discretion when it declared an aggravated range sentence for the
charge of AA-DUI was warranted because this was Appellant’s fourth DUI
____________________________________________
2 In the alternative, even if we did not find waiver, we discern no merit to
Appellant’s claim, as Dr. Schorr testified on the following day without claiming
any impairment to his ability to evaluate the photographs.
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conviction.3 Appellant maintains the court therefore double-counted
Appellant’s prior record score, which is already contemplated in guideline
calculations.
It is not disputed, however, that the court learned while reviewing post-
sentence motions that because the presentence investigation report had
contained miscalculated scores and, consequently, understated guideline
ranges, the court’s sentence actually fell within the standard guideline range
when proper calculations were applied. Rather than resentence Appellant to
a new aggravated range sentence the court elected to retain what was now a
standard range sentence. Appellant, nevertheless, complains that the court
abused its discretion in imposing a guideline sentence that focused on the
seriousness of the offense and the injury to the victim rather than on
Appellant’s rehabilitative needs.
It is well-settled that “[c]hallenges to the discretionary aspects of
sentencing do not entitle an appellant to review as of right.” Commonwealth
v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016) (citation omitted). Rather,
before reaching the merits of such claims, we must determine:
(1)whether the appeal is timely; (2) whether Appellant preserved
his issue; (3) whether Appellant's brief includes a concise
statement of the reasons relied upon for allowance of appeal with
____________________________________________
3 Appellant concedes that despite his reference to his sentence being “akin to
cruel and unusual punishment” he is not raising a challenge to the legality of
his sentence but is, instead, asserting the court failed to consider that his
injuries and need for rehabilitation would be best addressed at the county
level within the context of a probationary sentence with extensive restrictions.
See infra.
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respect to the discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question that the
sentence is appropriate under the sentencing code.
Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013)
(citation omitted).
Appellant filed a timely notice of appeal, properly preserved his claim by
filing a post-sentence motion for reconsideration, and includes a concise
statement of the reasons relied upon for allowance of appeal under Pa.R.A.P.
2119(f). The only issue remaining then is whether he has raised a substantial
question that the sentence is not appropriate under the Sentencing Code.
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. A substantial question
exists only when the appellant advances a colorable argument
that the sentencing judge's actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.
Commonwealth v. Ali, 197 A.3d 742, 760 (Pa. Super. 2018) (internal
citations and quotations omitted).
The crux of Appellant’s Rule 2119(f) Statement asserts as follows:
Appellant alleges that the trial court violated the sentencing
guidelines by failing to consider his individual circumstances and
imposing a sentence within the sentencing guidelines. The
sentencing court erred by focusing [instead] solely on the
seriousness of the offense and the injury to the victim rather than
[on Appellant’s] rehabilitative needs. Therefore, a substantial
question has been raised failed to consider his individual
circumstances and imposed a sentence.
Appellant’s brief (Pa.R.A.P. 2119(f) Statement), at 20-21. Appellant raises a
substantial question. See Commonwealth v. Caldwell, 117 A.3d 763, 770
(Pa. Super. 2015) (en banc) (stating an excessive sentence claim, in
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conjunction with an assertion that the court failed to consider mitigating
factors, raises a substantial question).
Pertinent law is well-settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. A sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law, exercised
its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision. We must accord
the sentencing court's decision great weight because it was in the
best position to review the defendant's character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Nevels, 203 A.3d 229, 247 (Pa. Super. 2019) (citation
omitted).
The Sentencing Code provides that on appeal, this Court “shall vacate
the sentence and remand the case to the sentencing court with instructions if
it finds: ... the sentencing court sentenced within the sentencing guidelines
but the case involves circumstances where the application of the guidelines
would be clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2). In determining
whether a sentence is “clearly unreasonable,”
the appellate court must consider the defendant's background and
characteristics as well as the particular circumstances of the
offense involved, the trial court's opportunity to observe the
defendant, the presentence investigation report, if any, the
Sentencing Guidelines as promulgated by the Sentencing
Commission, and the ‘findings’ upon which the trial court based
its sentence.
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Commonwealth v. Coulverson, 34 A.3d 135, 147 (Pa. Super. 2011)
(citation omitted). See also 42 Pa.C.S.A. 9781(d). Furthermore, “[w]here,
as here, the sentencing court has the benefit of reviewing a pre-sentence
investigation report, we can assume the sentencing court was aware of
relevant information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (internal quotation marks and
citation omitted).
After careful review, we find that the record belies Appellant’s claim.
Specifically, the court devoted the initial part of the sentencing hearing to the
findings and recommendations contained in Appellant’s presentence
investigation report with respect to Appellant’s rehabilitative needs:
I have before me a Presentence Report concerning you dated May
21, 2020, prepared by Probation Officer Sean Madden; and I have
reviewed it. I want to verify, we’re going to talk about the
contents here in a minute, but I want to make sure that you’ve
had a chance to review it as well.
...
We have treatment assessment recommendations from
Northumberland County’s program, Behavioral Health and
Intellectual Development Services Program; and they state, based
on the information provided by [Appellant], he does not meet
criteria for D&A [drug and alcohol] treatment at this time, which I
think is kind of interesting.
There is a CRN report prepared by our probation office which does
identify you as a problem drinker and does say that – well, you
are going to go to the Alcohol Highway Safety School anyway;
and, of course, it recommends the alcohol assessment and drug
assessment which we just referred to.
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...
Then on the – just to follow further, the report also includes as an
attachment a computerized assessment and referral system
report concerning you which does an evaluation of your mental
health and other issues. It’s a screening tool only, identifies you
as having two mental health problems and recommends seeking
a professional mental health screening which did occur.
And going on through the report, it -- on page 7 you had a positive
screen for two mental health conditions. Further assessment is
needed to confirm whether he qualifies for these disorders.
Referrals to the five closest resources for additional substance use
and/or mental health screening are listed below. So, generally,
since this is going to end up in state prison, we are hoping that
perhaps the state prison system can address some of these issues.
Sentencing Hearing, 6/1/20, at 3-4.
The court also heard defense counsel zealously advocate for a
probationary sentence with restrictive conditions not only because Appellant’s
serious injuries and his overall poor physical condition enhanced his
vulnerability to Covid-19 exposures in prison, but also because Appellant’s
compliance with Union County Adult Probation had been excellent and the
Probation Office’s treatment program is a nationally recognized mentor team.
N.T. at 12-13.
Therefore, the trial court had an opportunity to review and discuss
openly the presentence report and to consider Appellant’s argument for
mitigation before it imposed its sentence.
Under these circumstances demonstrating the court’s consideration of
rehabilitative needs and mitigating circumstances, and in light of controlling
decisional law, we decline to find Appellant’s standard range sentence
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unreasonable. See Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.
Super. 2011) (“Where the sentencing court imposed a standard-range
sentence with the benefit of a presentence report, we will not consider the
sentence excessive.”).
In addition, Appellant concedes his sentence is in the standard range,
Appellant's Brief at 28, and “where a sentence is within the standard range of
the guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.
Super. 2010).
In Appellant’s third issue, he argues that the Commonwealth failed to
present evidence sufficient to establish that his intoxication was the direct and
proximate cause of his passenger’s injuries. We disagree.
We are mandated to frame our sufficiency review of
Appellant's AA–DUI convictions by viewing “all the evidence
admitted at trial in the light most favorable to the verdict winner,”
to determine whether “there is sufficient evidence to enable the
fact-finder to find every element of the crime beyond a reasonable
doubt.” Commonwealth v. Nunn, 947 A.2d 756, 759
(Pa.Super.2008) (internal citations omitted). “We may not weigh
the evidence and substitute our judgment for the fact-finder ... [
] [who] 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.” Id.The offense of AA–DUI is defined as follows.
Any person who negligently causes serious bodily
injury to another person as the result of a violation of
section 3802 (relating to driving under influence of
alcohol or controlled substance) and who is convicted
of violating section 3802 commits a felony of the
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second degree when the violation is the cause of the
injury.
75 Pa.C.S. § 3735.1.
The offense at Section 3735.1 contains the element of criminal
negligence, which is present where:
A person acts negligently with respect to a material element of an
offense when he should be aware of 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 that the
actor's failure to perceive it, considering the nature and intent of
his conduct and the circumstances known to him, involves a gross
deviation from the standard of care that a reasonable person
would observe in the actor's situation.
18 Pa.C.S. § 302(b)(4). When presented with a challenge to the sufficiency
of the evidence for criminal negligence, this Court has stated that we must
determine “whether [a]ppellant's conduct amounted to a gross deviation from
the standard of care:
In determining whether a person's actions constitute criminal
negligence one must obviously consider the entire situation; and
we hold that the determination whether those actions qualify as a
“gross deviation” within the meaning of the statute, can depend
upon the nature of the standard applicable to a given situation.
Commonwealth v. Kutzel, 64 A.3d 1114, 1119 (Pa. Super. 2013) (quoting
Commonwealth v. Lobiondo, 462 A.2d 662, 666 (Pa. 1983)). “While both
criminal negligence and recklessness involve ‘gross’ deviations from
reasonable conduct, recklessness includes conscious disregard of a risk
whereas criminal negligence is accompanied by lack of awareness of a risk.”
Commonwealth v. Heck, 491 A.2d 212, 216 (Pa. Super. 1985). “A driver's
failure to act with reasonable care or attention in the circumstances is nothing
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more than proof of his negligence as that term is used in the civil law.” Id.at 216–17 (citation omitted).
Additionally, the following definitions are germane to our analysis:
(a) General rule.—Conduct is the cause of a result
when:
(1) it is an antecedent but for which the result in
question would not have occurred; and
(2) the relationship between the conduct and result
satisfies any additional causal requirements imposed
by this title or by the law defining the offense.
***
(c) Divergence between probable and actual
result.—When recklessly or negligently causing a
particular result is an element of an offense, the
element is not established if the actual result is not
within the risk of which the actor is aware or, in the
case of negligence, of which he should be aware
unless:
(1) the actual result differs from the probable result
only in the respect that a different person or different
property is injured or affected or that the probable
injury or harm would have been more serious or more
extensive than that caused; or
(2) the actual result involves the same kind of injury
or harm as the probable result and is not too remote
or accidental in its occurrence to have a bearing on
the liability of the actor or on the gravity of his
offense.
18 Pa.C.S. § 303(a); (c).
In Nunn, we reiterated:
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To establish criminal causation, the
Commonwealth must prove that the defendant's
conduct was so directly and substantially linked to the
actual result as to give rise to the imposition of
criminal liability. Commonwealth v. Long, 425
Pa.Super. 170, 624 A.2d 200, 203–204 (1993),
appeal denied, 535 Pa. 645, 633 A.2d 150 (1993)
(citing Commonwealth v. Rementer, 410 Pa.Super.
9, 598 A.2d 1300, 1304 (1991), appeal denied, 533
Pa. 599, 617 A.2d 1273 (1992)).
In Rementer, we set forth a two-part test for
determining criminal causation. First, the defendant's
conduct must be an antecedent, but for which the
result in question would not have occurred.
Rementer, 598 A.2d at 1305; 18 Pa.C.S.A. §
303(a)(1). A victim's death cannot be entirely
attributable to other factors; rather, there must exist
a “causal connection between the conduct and the
result of conduct; and causal connection requires
something more than mere coincidence as to time and
place.” Rementer, 598 A.2d at 1305, n. 3 (quoting
LaFave and Scott, Substantive Criminal Law, Vol. 1,
Ch. 3., at 391–392 (1986)). Second, the results of
the defendant's actions cannot be so extraordinarily
remote or attenuated that it would be unfair to hold
the defendant criminally responsible. Rementer, 598
A.2d at 1305.
As to the first part of the test, the defendant's
conduct need not be the only cause of the victim's
death in order to establish a causal connection.
Rementer, 598 A.2d at 1305. “Criminal
responsibility may be properly assessed against an
individual whose conduct was a direct and substantial
factor in producing the death even though other
factors combined with that conduct to achieve the
result.” Long, 624 A.2d at 203 (citing
Commonwealth v. Skufca, 457 Pa. 124, 321 A.2d
889 (1974), appeal dismissed, 419 U.S. 1028, 95
S.Ct. 510, 42 L.Ed.2d 304 (1974)). The second part
of the test is satisfied when the victim's death is the
natural or foreseeable consequence of the defendant's
actions. Id. (citing Rementer and Commonwealth
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v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973)).
“Where the fatal result was an unnatural or obscure
consequence of the defendant's actions, justice would
prevent us from allowing the result to have an impact
upon a finding of the defendant's guilt.” Id. at 204,
624 A.2d 200 (citing Rementer, 598 A.2d at 1306–
1307).
Nunn, 947 A.2d at 760.
[I]n Commonwealth v. Fabian, 60 A.3d 146 (Pa.Super.
2013), we expressed:
In seeking to define the requirement that a criminal
defendant's conduct be a direct factor in the death of
another, the courts of this Commonwealth have held
that ‘so long as the defendant's conduct started the
chain of causation which led to the victim's death,
criminal responsibility ... may be properly found.’
Fabian, supra, at 152 citing Commonwealth v. McCloskey,
835 A.2d 801, 808 (Pa.Super. 2003).
Commonwealth v. Spotti, 94 A.3d 367, 374–76 (Pa.Super. 2014)
In Commonwealth v. Eichler, 133 A.3d 775 (Pa. Super. 2016), the
appellant was convicted of, inter alia, AA-DUI and this Court determined there
was sufficient evidence for the conviction. Id. at 791 (citation omitted).
Eichler was operating his vehicle when he swerved off the road, struck the
victim who was in a motorized wheelchair, and left the scene. Id. at 789,
790.
An investigating police sergeant went to Eichler’s home and observed
damage to the right front corner and passenger side door of the appellant's
vehicle. Id. at 790. Upon speaking to Eichler, the sergeant noticed he had
bloodshot eyes, was slurring his speech, and appeared to be highly
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intoxicated. Id. The sergeant asked Eichler why he left the scene of the
accident, and he responded that he had been drinking. Id. at 790–91. Eichler
was arrested and taken to a hospital where his BAC was found to be .30%.
Id. at 791.
At trial, a Pennsylvania state trooper who had conducted accident
reconstruction testified that the accident had occurred at nighttime, there
were no adverse weather or road conditions at the time of the collision, and
that the roadway was dry. Id. at 788. The trooper determined that based on
the conditions and the appellant's speed, a “reasonably sober attentive driver
would be able to ascertain that there was a threat in his lane, regardless of
what it was ... and a sober, attentive driver would have been able to, at least,
slow to a reasonable speed and ... steer out around the wheelchair, if not stop
altogether.” Id. at 789. Thus, this Court concluded that there was sufficient
evidence of criminal negligence for the jury to have convicted the appellant of
aggravated assault by vehicle while DUI. Id. at 792.
We find the case at bar analogous to Eichler. Here, Kara Eberle testified
that she witnessed Appellant drinking at four bars that night, and Appellant’s
post-accident BAC results were .28% and a toxicity screen showed the
presence of marijuana and cocaine in his blood.
Moreover, according to Eberle, the Appellant began to drive “very, very,
very rapidly” on a “loose gravel road,” where “you could feel the car didn’t
have good traction.” N.T. at 56. Eberle noted further that it was very dark
and there was “a little bit of fog” and some precipitation that she described as
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a “spritzing.” N.T. at 78-79. She testified that she asked him quite
hysterically to “‘please slow down.’ My car was brand new. I said, ‘You know,
you’re going way too fast.’ And he did, he did slow down.” Id.Within a few minutes, however, he was going faster again, which was
when Eberle unbuckled her belt and considered jumping from the car until the
very high speed deterred her. She “was just begging him to ‘please stop, stop
the car. I’m a single mom.’ I asked him, ‘let me out.’ And he wasn’t phased
by my requests at all. He just, just stared out the windshield like I wasn’t –
like I wasn’t even in there.” N.T. at 56-57. Moments later, they crashed.
The Commonwealth also presented the testimony of accident
reconstruction expert, Pennsylvania State Trooper Gary Beadle, who
explained Eberle’s vehicle was traveling between 74 miles per hour and 80
miles per hour, in a 40 mile per hour zone, five seconds before impact. N.T.
at 147. The vehicle “failed to negotiate a left curve and struck a speed limit
sign” before striking several trees causing both passengers to be thrown from
the vehicle. N.T. at 147-48. Notably, Trooper Beadle testified that there were
no braking marks at the scene, and an analysis of the vehicle’s module
indicated the brake pedal wasn’t pressed until approximately one second
before impact. N.T. at 173.
The jury thus received the testimony of Eberle—whose post-accident
BAC level was below the legal limit—explaining that she was in such fear of
the high speed of travel combined with the reduced visibility and sensation of
poor traction that she hysterically begged Appellant to slow down. She was so
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dismayed at the prospect of a serious accident that she removed her seat belt
and prepared to jump from the speeding vehicle despite appreciating the great
risk associated with that option.
Eberle said that Appellant, in contrast, seemed insensible to or uncaring
about the grave danger he was creating. Though he momentarily honored
her distressed request to slow down, he soon resumed driving at a
frighteningly high speed without any outward sign of regard for either the
posted speed limit, the challenging conditions, or her crying plea for reason.
This testimony, combined with Trooper Beadle’s reconstruction
testimony identifying the vehicle’s 74-80 mile per hour speed of travel and
the lack of braking as the late model car failed to negotiate a curve allowed
the jury to conclude that a sober, attentive driver would have appreciated the
circumstances, slowed to a reasonable speed, and managed the curve
appropriately.
Thus, as we did in Eichler, we conclude there was sufficient evidence
of criminal negligence for the jury to have convicted the appellant of AA-DUI.
See also Commonwealth v. Ketterer, 725 A.2d 801, 804 (Pa.Super. 1999)
(sustaining conviction for AA-DUI for accident while traveling 65 m.p.h. in a
45 m.p.h. zone; speeding was particularly negligent because “minimal
visibility caused by severe weather conditions” led other drivers to travel at
approximately 25 m.p.h.).
In Appellant’s final issue, Appellant raises a challenge to the weight of
the evidence with respect to the identity of the driver at the time of the
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accident. Our standard of review for a weight of the evidence issue is well-
settled:
We adhere to the following standard of review:
[A]ppellate review of a weight claim is a review of the [trial
court's] 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. One of the least assailable
reasons for granting or denying a new trial is the lower court's
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.
We stress that if there is any support in the record for the trial
court's decision to deny the appellant's motion for a new trial
based on weight of the evidence, then we must affirm. An
appellant is not entitled to a new trial where the evidence
presented was conflicting and the fact-finder could have decided
in favor of either party.
Corvin v. Tihansky, 184 A.3d 986, 992–993 (Pa. Super. 2018) (internal
citations omitted).
Appellant contends the court erred in concluding the jury’s verdict of
guilty on the charge of AA-DUI did not shock the conscience, as the verdict
necessarily relied on finding either Eberle credible or that the Commonwealth’s
experts’ combined analyses proved identity beyond a reasonable doubt. Not
only were Eberle’s and the experts’ testimonies insufficient proof, whether
viewed independently or in conjunction with one another, Appellant argues,
they were disproved by the testimony of defense expert Dr. Schorr, who
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testified that in his expert opinion Eberle was driving at the time of the
accident.
Specifically, Appellant contends that Eberle’s testimony is unreliable
and contradictory because it:
shocks one’s sense of justice to believe that this woman, a single
mom with a good job and an advanced degree, who was the
designated driver that night, would allow this man, who[m] she
hadn’t seen in many years and who was intoxicated, to drive her
brand-new car simply because he knew the way better than she
did. Further, her bias and motivation to lie is evident. Upon being
ejected from the vehicle, [Appellant] was outside the passenger
door of the car and was nonresponsive. Eberle’s brand new car
was totaled and she was scared that she had just crashed and
possibly killed someone. She needed not to be the driver in order
to protect herself, and her child.
Appellant’s brief, at 40.
Initially, we observe that the present weight of the evidence claim differs
from the weight claim raised in Appellant’s post-sentence motion, which
asked, instead, “Was the verdict against the weight of the evidence in that
there was no way to establish that the accident at issue occurred as a result
of substance abuse, erratic driving or some combination and thus any
conclusions drawn therefrom were impermissibly speculative?” Motion for
Post-Sentence Relief, 6/11/20, at 2. Accordingly, we find the present weight
of the evidence claim waived.4
____________________________________________
4 Appellant’s post-sentence motion also raised a challenge to the sufficiency
of the evidence in which he claimed the “verdict was not supported by
sufficient evidence [because] even when reviewing the facts in the light most
favorable to the prosecution, the expert witness proffered by the defense
(Footnote Continued Next Page)
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Even if we were to find this claim preserved and reviewable, we would
find it fails to disprove Eberle’s testimony as Appellant claims. At trial, defense
counsel attempted to impeach her credibility, first on cross-examination and
then through Dr. Schorr’s testimony, but it does not shock one’s sense of
justice that the jury believed her testimony that she switched seats with
Appellant, whom she said displayed unimpaired speech and movement,
because she was having trouble navigating the dark and unfamiliar road to
Appellant’s father’s rural home.
Nor was Dr. Schorr’s testimony dispositive, as he opined instead in
terms of possibilities and probabilities. He testified that unbuckled passengers
often fly chaotically inside a cabin upon impact while traveling at high speeds,
and Appellant and Eberle may have crisscrossed in the cabin, which could have
____________________________________________
showed it was impossible that [Appellant] was the driver while simultaneously
explaining all alternatives offered by the prosecution.” Motion for Post-
Sentence Relief at 1. He now attempts to rebrand this challenge as one
directed to the weight of the evidence. By questioning the validity of the
verdict, however, Appellant was, as he claimed in his post-sentence motion,
challenging the sufficiency of the evidence. Such arguments are improper in
the weight context. See Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa.
Super. 2011) (“A motion for new trial on grounds that the verdict is contrary
to the weight of the evidence concedes that there is sufficient evidence to
sustain the verdict but contends, nevertheless, that the verdict is against the
weight of the evidence.”) (quotation marks and citation omitted). The only
real weight argument is that Dr. Schorr disagreed with Trooper Beadle’s
conclusions. Obviously, it cannot be that the existence of competing expert
opinions precludes a verdict, which is what Appellant contended both in his
motion and in the present appeal. This challenge as raised in Appellant’s post-
sentence motion, therefore, may not be viewed as one directed to the weight
of the evidence.
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accounted for Appellant’s blood stain on the driver’s side visor. N.T., 3/3/20,
at 47. He also conceded that Appellant’s right hip injury could be consistent
with his having collided with the gear shift from the driver’s seat position just
as Eberle’s could have occurred from impacting the vehicle’s passenger side
pillar. N.T., 3/3/20, at 81-82.
For these reasons, even if Appellant’s final claim were not waived, we
would find it meritless, as it would not shock the conscience for the trial court
to have understood the jury’s verdict as one which credited Eberle’s testimony
while viewing the conflicting expert testimony as either inconclusive or in favor
of the Commonwealth.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2021
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