Com. v. Mangone, F.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
FREDERICK J. MANGONE, :
:
Appellant : No. 1270 WDA 2014
Appeal from the Judgment of Sentence July 29, 2014,
Court of Common Pleas, Fayette County,
Criminal Division at No. CP-26-CR-0002312-2013
BEFORE: DONOHUE, SHOGAN and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 06, 2015
Frederick J. Mangone (“Mangone”) appeals from the July 29, 2014
judgment of sentence entered by the Fayette County Court of Common Pleas
following his conviction by a jury of accidents involving death or personal
injury (75 Pa.C.S.A. § 3742(a)), and his convictions by the trial court of
improper class of license (75 Pa.C.S.A. § 1504), failure to stop and render
aid (75 Pa.C.S.A. § 3744(a)), and failure to notify police of accidental injury
or death (75 Pa.C.S.A. § 3746(a)(1)).1
On appeal, he claims that “the Commonwealth fail[ed] to establish
that [Mangone] did not leave the scene in order to go for aid for the injured
person[.]” Mangone’s Brief at 7. It is not clear whether Mangone intended
1
On July 29, 2014, the trial court sentenced Mangone to one to two years
of incarceration for accidents involving death or personal injury. The trial
court imposed no additional penalty on the remaining convictions.
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to challenge the weight or the sufficiency of the evidence to support one or
more of his convictions. In his appellate brief, he argues that “the record
shows that the Commonwealth presented no evidence that [Mangone] was
not attempting to go for help,” which would suggest a challenge to the
sufficiency of the evidence. Mangone’s Brief at 11-12. He subsequently
states, however, that “the jury’s verdict is one that would shock the
conscience,” and requests a new trial, which suggests a challenge to the
weight of the evidence. Id. at 12. The scope and standard of review
included in his appellate brief does not provide any guidance, as it is a
generic statement of the manner an appellate court reviews a case without
citation to authority. See Mangone’s Brief at 5. Nor does the prayer for
relief in the conclusion of the brief provide clarity, as Mangone seeks “an
arrest of judgment and/or a new trial.” Id. at 13; see Commonwealth v.
Ruffin, 463 A.2d 1117, 1118 n.5 (Pa. Super. 1983) (stating that the
appropriate remedy for insufficient evidence to support a conviction is
dismissal and discharge of the defendant; the remedy for a verdict against
the weight of the evidence is a new trial).
As we have previously explained, weight and sufficiency of the
evidence are distinct arguments:
Weight and sufficiency of the evidence are not
one and the same legal concepts. As our Court has
summarized in a prior case: Weight of the evidence
and sufficiency of the evidence are discrete
inquiries[.] In reviewing the sufficiency of the
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evidence, we must view the evidence presented and
all reasonable inferences taken therefrom in the light
most favorable to the Commonwealth, as verdict
winner. The test is whether the evidence, thus
viewed, is sufficient to prove guilt beyond a
reasonable doubt[.]
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. Whether a new
trial should be granted on grounds that the verdict is
against the weight of the evidence is addressed to
the sound discretion of the trial judge, and his
decision will not be reversed on appeal unless there
has been an abuse of discretion. The test is not
whether the court would have decided the case in
the same way but whether the verdict is so contrary
to the evidence as to make the award of a new trial
imperative so that right may be given another
opportunity to prevail.
Commonwealth v. Davis, 799 A.2d 860, 864-65 (Pa. Super. 2002)
(citation omitted).
Our review of the record reveals that Mangone did not preserve a
challenge to the weight of the evidence at sentencing or in a post-sentence
motion, resulting in waiver of this claim. See Pa.R.Crim.P. 607(A). We
therefore treat his issue as a challenge to the sufficiency of the evidence.
Further complicating appellate review, however, is Mangone’s failure to
identify which of his convictions he is attacking. Mangone does not cite to
any statute or indicate how, if at all, the question of whether he left the
scene to summon aid for his injured passenger would require reversal of his
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conviction. He simply states: “In the instant case, the Commonwealth was
required to prove that [Mangone] did not render aid or leave the appropriate
information after an accident occurred.” Mangone’s Brief at 10. Although
we could find waiver of his argument on this basis, see Pa.R.A.P. 2119(a)-
(b), we decline to do so. Our research reveals that this contention relates to
his convictions of accidents involving death or personal injury and failure to
stop and render aid. See 75 Pa.C.S.A. §§ 3742(a), 3744(a)-(b).2 Upon
2
The Pennsylvania Motor Vehicle Code defines accidents involving death or
personal injury, in relevant part, as follows:
The driver of any vehicle involved in an accident
resulting in injury or death of any person shall
immediately stop the vehicle at the scene of the
accident or as close thereto as possible but shall
then forthwith return to and in every event shall
remain at the scene of the accident until he has
fulfilled the requirements of section 3744 (relating to
duty to give information and render aid).
75 Pa.C.S.A. § 3742(a). Section 3744 of the Motor Vehicle Code states, in
relevant part:
(a) General rule.--The driver of any vehicle
involved in an accident resulting in injury to or death
of any person or damage to any vehicle or other
property which is driven or attended by any person
shall give his name, address and the registration
number of the vehicle he is driving, and shall upon
request exhibit his driver’s license and information
relating to financial responsibility to any person
injured in the accident or to the driver or occupant of
or person attending any vehicle or other property
damaged in the accident and shall give the
information and upon request exhibit the license and
information relating to financial responsibility to any
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reviewing the record and the law, we find Mangone’s sufficiency claim to be
without merit and affirm.
Appellate review of a challenge to the sufficiency of the evidence is de
novo. Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014). “[O]ur
scope of review is limited to considering the evidence of record, and all
reasonable inferences arising therefrom, viewed in the light most favorable
to the Commonwealth as the verdict winner.” Id. at 420-21. “The
Commonwealth may sustain its burden by means of wholly circumstantial
evidence.” Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014)
police officer at the scene of the accident or who is
investigating the accident and shall render to any
person injured in the accident reasonable assistance,
including the making of arrangements for the
carrying of the injured person to a physician,
surgeon or hospital for medical or surgical treatment
if it is apparent that treatment is necessary or if
requested by the injured person.
(b) Report of accident to police.--In the event
that none of the persons specified are in condition to
receive the information to which they otherwise
would be entitled under subsection (a) and no police
officer is present, the driver of any vehicle involved
in the accident after fulfilling all other requirements
of section 3742 (relating to accidents involving death
or personal injury) and subsection (a), in so far as
possible on his part to be performed, shall forthwith
report the accident to the nearest office of a duly
authorized police department and submit to the
police department the information specified in
subsection (a).
75 Pa.C.S.A. § 3744(a)-(b).
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(citation and quotation omitted). “Further, we note that the entire trial
record is evaluated and all evidence received against the defendant is
considered, being cognizant that the trier of fact is free to believe all, part,
or none of the evidence.” Id. It is for the finder of fact to pass upon the
credibility of the witnesses and weight of the evidence presented.
Commonwealth v. Melvin, 103 A.3d 1, 40 (Pa. Super. 2014).
The trial court accurately summarized the facts presented at trial,
viewed in the light most favorable to the Commonwealth as verdict winner:
On July 18, 2013, Susan Riffle was a passenger
on a motorcycle being operated by [Mangone]. The
motorcycle hit some loose gravel and went down and
Riffle, who sustained numerous injuries as a result of
the accident, was “Life Flighted.”[] When Riffle saw
[Mangone] leave the scene of the accident, her belief
was that he was going for help because she told him
that help was needed.
Andrew Franko, a first responder, responded to
the scene and observed a female, who was not in
good condition, lying on the roadway. Observing
[Mangone] going towards his motorcycle, Franko
said to him that “she is hurt. You can’t go nowhere.”
Franko also advised [Mangone] that he was a first
responder and could provide help. Nonetheless,
[Mangone] picked up his motorcycle and left.
Also providing testimony was Summer Prinkey, a
first responder who arrived at the accident scene
with Franko. After the brush truck from the fire
department arrived, and firemen were helping Riffle,
Prinkey observed Franko and [Mangone] having a
disagreement. Although Franko tried to stop
[Mangone] from leaving the scene of the accident,
[Mangone] pushed Franko aside and left on his
motorcycle.
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When Trooper Adam Sikorski arrived at the scene,
he immediately tried to find the operator of the
vehicle and discovered that the operator and his
motorcycle were not at the scene of the accident.
Further, the operator of the motorcycle had not left
any needed information with anyone at the scene.
Four days later, the [t]rooper found the motorcycle
at issue. On the sixth day after the accident, the
[t]rooper spoke with [Mangone] who admitted that
he was driving the vehicle[,] [] that Riffle was a
passenger[,] and that he did not stay at the scene of
the accident.
Trial Court Opinion, 10/6/14, at 2-3 (record citations omitted).
Our review of the record reveals that apart from Riffle’s unconfirmed
belief that Mangone left the scene of the accident to secure aid, only
Mangone testified that he left the scene to “get help.” N.T., 5/6-7/14, at 33,
82, 86. Mangone’s testimony on this issue was of dubious credibility,
however, because he further testified that he had “no recollection of what
happened” because he “was hit so hard” during the accident. Id. at 82. He
did not remember speaking with Riffle at the scene of the accident and
stated that he could only testify to what others told him occurred; he had no
independent recollection because he “was knocked out.” Id. at 84.
As stated above, the factfinder passes upon the credibility of witnesses
and is free to believe all, part or none of the testimony presented. Martin,
101 A.3d at 718; Melvin, 103 A.3d at 40. Despite Mangone’s testimony to
the contrary, the record, when viewed in the light most favorable to the
Commonwealth, supports a finding that he did not leave the scene with the
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intention of summoning aid for Riffle. Rather, the record when so viewed
reflects that Mangone was the driver of a vehicle that was in an accident
resulting in his passenger’s serious injury. Although first responders and
firefighters were present to render aid and informed him that he could not
leave the scene, he left in violation of section 3742(a) without providing the
information required by section 3744(a) or reporting the accident to the
police as required by section 3744(b). See supra n.2. We therefore affirm
the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2015
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