Com. v. Johnson, L.

J-S45003-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEROY C. JOHNSON,
Appellant No. 2155 EDA 2012
Appeal from the Judgment of Sentence July 20, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010278-2011
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED AUGUST 08, 2014
Leroy Johnson appeals from the judgment of sentence of five to ten
years imprisonment followed by six years probation. Sentence was imposed
after a jury convicted Appellant of involuntary manslaughter, homicide by
vehicle while driving under the influence of alcohol, homicide by vehicle,
aggravated assault by vehicle while DUI, and four counts each of simple
sufficiency of the evidence supporting two of his convictions and affirm.
approximately 8:15 p.m. on February 26, 2011. At that time, Appellant was
traveling southbound in his silver SUV on Broad Street, which is a heavily
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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trafficked four-lane roadway in Philadelphia. Since Appellant wanted to go
northbound on Broad Street, he crossed over a median strip near the
intersection of Broad and Venango Streets and made a U-turn into the
northbound lanes of Broad Street.
Esther Davis was driving her Ford Escort in the left lane of northbound
traffic of Broad Street between Venango Street and Erie Avenue. She had
her two daughters and four grandchildren in the car. As Appellant made the
illegal U-turn, he crashed
Broad Street. Her vehicle was then struck by another vehicle traveling in
the right lane of the northbound traffic. That second impact propelled the
Ford Escort across the median strip and into the southbound lanes of Broad
boyfriend Devin Whye, who were in the process of crossing Broad Street.
hicle struck a parked car, parking meters, and a tree before it
came to a stop. Mr. Whye died as a result of the accident,while Ms. Withers
was seriously injured and sustained a broken leg and pelvis.
Appellant remained at the scene, and Philadelphia Police Officer
Deborah Kiker, a member of the accident investigation unit, immediately
responded to the report of the accident. Appellant was identified as the
driver of the silver SUV that made the U-
While Officer Kiker was interviewing Appellant, Appellant displayed signs of
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which left the scene of the accident, caus
SUV.
Ms. Davis and one of her daughters, Regina Brown, contradicted that
car when that SUV was making the U-turn from the southbound lanes into
it to enter the right hand lane of northbound traffic, where it was then struck
by the car that left the scene. The collision with the second car caused the
Escort to travel into the oncoming lane of southbound traffic and the
pedestrians crossing Broad Street. Officer Kiker examined the damage
sustained by the Escort and SUV and determined that it did not support
the
description of the accident provided by Ms. Davis and Ms. Brown.
After Appellant admitted to consuming alcohol prior to driving his
vehicle, Officer Kiker transported Appellant to have his blood drawn.
Dr. Richard Cohn, a forensic toxicologist, reviewed the results of the blood
February 26, 2011, was .230%.
Based upon this evidence presented by the Commonwealth, a jury
convicted Appellant of the above-delineated offenses. In this appeal from
the judgment of sentence, Appellant raises a challenge to the sufficiency of
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the evidence as to causation in connection with the two offenses pertaining
to the pedestrians:
Where the defendant, while operating a vehicle, was
alleged to have struck another vehicle which, in turn, struck
pedestrians and property, was the evidence insufficient to prove
the defendant guilty beyond a reasonable doubt of all charges
pertaining to injuries and damage resulting from the other
vehicle striking pedestrians and property because the evidence
of the driver of the other vehicle, was the direct cause of the
injuries to the pedestrians and property struck by the other
vehicle.
ef at 5.
We review a sufficiency argument pursuant to the following principles:
The standard we apply when reviewing the sufficiency of
the evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
the above test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note that the
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. Any doubts
regarding a defendant's guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire record must be
evaluated and all evidence actually received must be
considered. Finally, the trier of fact 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. Furthermore,
when reviewing a sufficiency claim, our Court is required to give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
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Commonwealth v. Slocum, 86 A.3d 272, 275 (Pa.Super. 2014) (citation
omitted).
On appeal, Appellant does not contest that the evidence presented by
Escort while he was making the U-turn from the southbound into the
northbound lanes of Broad Street. Nor does Appellant suggest that he was
not driving while under the influence of alcohol. Instead, he focuses on
Ms. by his SUV. Appellant claims
for striking the two pedestrians. Appellant presented the testimony of an
.
Davis should have been able to stop her car prior to hitting Ms. Withers and
Mr. Whye. Appellant thus contends his convictions for homicide by vehicle
while DUI and aggravated assault by vehicle while DUI are infirm.
Appellant correctly observes that the evidence established that
Ms.
reasonable doubt that his actions caused the accident which resulted in the
Id. at 29.
Id.
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To resolve this contention, we first examine the testimony of
Ms.
SUV into her Escort. Ms. Davis related that she was hit very hard by
N.T. Trial, 4/24/12, at 175. The impact caused her to lose control of the car.
Id. at 177; N.T. Trial, 4/25/12, at 38. As a result, the witness panicked.
N.T. Trial, 4/24/12, at 180. Her Escort had a clutch, and she did not recall
attempting to brake. When her car came to rest after striking the people,
another car, and a tree, her left foot was on the pedal to change gears and
her right foot was on the accelerator. Ms. Davis said she placed her other
Id. Her other foot already was on the accelerator at the time of the first
crash.
really have time to do anything, because we were already in the flow of
traffic, and my foot was already on the accelerator as we was driving up the
Id. at 180. Ms. Davis further stated that when Ap
Id. Ms. Davis insisted that the events occurred so
no Id
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confirmed that the entire accident happened in a matter of seconds and that,
as a result of the impact, Ms. Davis lost control over the Escort.
Appellant was convicted of homicide by vehicle while DUI, 75 Pa.C.S.
§
causes the death of 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
§ 3735(a) (emphasis added). The other offense challenged by Appellant,
aggravated assault by vehicle while
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 . . . when the
added). Thus, both crimes concern an outcome, either death or serious
bodily injury, that is unintended by the actor.
As noted, Appellant contests that his conduct of DUI caused the death
of Mr. Whye and the injury to Ms. Withers. Since the injuries in question
causation is outlined as follows:
(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
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(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).
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turn on a four-lane, heavily traveled highway in Philadelphia while driving
with a BAC over twice the legal limit. Both vehicles were traveling in
opposite directions and Appellant hit the car hard. The fact that the vehicle
Appellant struck would lose control and cause death or injury to a pedestrian
on that roadway was a probable and natural result of his grossly negligent
actions. Furthermore, the fact that a car that he struck with his vehicle
would lose control and hit pedestrians was not too remote or accidental in its
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foreseeable.
In a recent en banc decision, we discussed criminal causation in an
analogous circumstance involving a traffic accident. Commonwealth v.
Spotti, 2014 WL 2535265 (Pa.Super. 2014) (en banc). In that case, an
accident occurred on a four lane highway. Police had received numerous
reports that
was asked to follow the defendant with her hazard lights flashing. She
as in the left lane. Another
motorist, Steven Chung, was traveling in the right lane of the highway.
When police activated their sirens, the defendant swerved into the right lane
and then suddenly braked. That action caused Mr. Chung to veer right to
av
When Mr. Chung swerved to avoid the defendant, he struck a van that
was disabled and sitting on the side of the road. As a result of this second
collision, two people helping to change the tire of the van were severely
203%. He
was charged and convicted of two counts of aggravated assault with a
vehicle while DUI in connection with the injuries caused to the two people
changing the tire.
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On appeal, the defendant challenged those convictions based upon the
same ground as that raised herein: causation. The defendant in Spotti
actions were a sufficiently independent cause of
the accident, which broke the chain of legal causation required to support
Id. at * 6. We disagreed. We observed that to
that the defendant's conduct was so directly and substantially linked to the
Id. at * 7.
-part test for
determining criminal causation. First, the defendant's conduct must be an
antecedent, but for which the r
Id
other factors; rather, there must exist a causal connection between the
conduct and the result of conduct; and causal connection requires something
Id. Secondly, the
attenuated that it would be unfair to hold the defendant criminally
Id. (citations and quotation marks omitted). This second
Id.
uct be the
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be properly assessed against an individual whose conduct was a direct and
substantial factor in producing the death even though other factors
Id. (citation omitted).
We concluded with the observation that a defendant is considered the direct
is established when
Id. at *8 (quoting Commonwealth v. Fabian, 60 A.3d
146, 152 (Pa.Super. 2013)).
people
located on the side of the road because he did not collide either with them or
and unforeseeable and could not be attributed to him. He accused
Mr. Chung of following his vehicle too closely and acting as a vigilante.
We rejected his positions based upon the testimony of Mr. Chung, who
into his lane of travel and braked violently. Mr. Chung denied trying to
explained that when the defendant swerved, Mr. Chung only had two
version of events. We concluded that,
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The present case cannot be reasonably distinguished from Spotti.
control of her vehicle. Despite her best efforts to avoid striking the
car was the direct and substantive cause of the chain of events that led to
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turn into a heavily trafficked two-
challenge to the sufficiency of the evidence supporting his convictions.
Judgment of sentence affirmed.
Judge Wecht Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2014
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