Com. v. Brown, C.

J-S27036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER BROWN :
:
Appellant : No. 1901 EDA 2017
Appeal from the Judgment of Sentence May 4, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001218-2017
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 06, 2018
Appellant Christopher Brown appeals from the Judgment of Sentence
entered in the Delaware County Court of Common Pleas after a bench trial of
Driving Under the Influence (“DUI”), Reckless Driving, and Careless Driving.1
He challenges the sufficiency of the evidence supporting the Reckless and
Careless Driving convictions, and avers that the summary driving offenses
merged for purposes of sentencing. After careful review, we conclude that
sufficient evidence supported the convictions, but because the offenses
merged for purposes of sentencing, we vacate the Judgments of Sentence and
remand for resentencing.
We glean the following facts from the Notes of Testimony. At
approximately 5:50 A.M. on December 11, 2016, Officers Stephen O’Hara and
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1 75 Pa.C.S. § 3802(c); 75 Pa.C.S. § 3736(a); and 75 Pa.C.S. § 3714(a),
respectively.
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Edward Mongelluzzo of the Darby Township Police Department responded to
a report of a motor vehicle accident on the 1100 block of Clifton Avenue.
Officer O’Hara, who had been at the nearby police station, arrived within 30
seconds of the radio dispatch. The weather was clear, the traffic was light,
and the road had no impediments. At the scene, Officer O’Hara saw an
unoccupied, parked minivan that had been hit by a vehicle and pushed into
the car parked in front of it. Officer O’Hara also saw a two-door Chevrolet
Trailblazer off the roadway and stuck over the curb at an angle. The officer
observed the Trailblazer’s operator make repeated, failing efforts to drive the
vehicle in reverse back over the sidewalk curb, which caused the rear tires to
spin without gaining traction, leaving holes in the dirt of the adjoining grassy
area.
Officer O’Hara parked his police car and approached the Trailblazer’s
driver’s side. The Trailblazer had damage to its front end and to the driver’s
side door, damage that complemented the damage that the two nearby
parked, unoccupied vehicles sustained. Appellant attempted to push the
damaged door open with his shoulder but was unsuccessful because the door
was bent. Officer O’Hara pulled hard on the door and extracted Appellant.
Officer Mongeluzzo roused a sleeping passenger from the back seat who told
the officer that they had been drinking at the firehouse just before departure.
See Incident Report, Exhibit C-2. Neither Appellant nor his passenger
suffered injuries in the crash.
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Once Appellant was out of the vehicle, Officer O’Hara noticed that he
was unsteady on his feet. He also noticed that Appellant’s eyes were
bloodshot, his speech was slurred, and from his body emanated an odor of
alcohol. An open, unfinished beer bottle sat in the center console. Appellant
told Officer O’Hara that he had come from a party at the nearby firehouse that
Officer O’Hara knew regularly had Saturday evening parties at which
participants could purchase alcoholic beverages. Appellant told the officer that
the Trailblazer was his mother’s car, and provided Officer O’Hara with his
home address that matched the vehicle’s registration. Officer O’Hara did not
conduct field sobriety tests on Appellant. Once transported to the hospital,
Appellant refused to provide blood for testing. See N.T., 4/4/17, at 6-74
(Testimony of Officer O’Hara).
The Commonwealth charged Appellant with numerous driving offenses.
On May 4, 2017, a bench trial proceeded on the above three charges only.
Officer O’Hara testified for the Commonwealth. The court admitted the
incident report filed by Officers O’Hara and Mongelluzzo without objection. At
Appellant’s behest, the court admitted the transcript from Appellant’s
preliminary hearing into evidence.
After counsel’s closing arguments, the court found Appellant guilty, and
sentenced him to 30 days’ to 6 months’ incarceration for the DUI,2 fines of
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2 Appellant received credit for the 30 days of time he had already served and
the court immediately released him on parole.
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$200 and $25 for the summary offenses of reckless driving and careless
driving, respectively, and restitution.3
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Whether the evidence is insufficient to sustain the convictions
for reckless driving and the lesser-included offense of careless
driving since the Commonwealth failed to prove, beyond a
reasonable doubt, that Appellant recklessly or careless
disregarded the safety of persons or property?
2. Whether the separate sentence imposed for careless driving is
illegal since that offense should have merged with reckless
driving for sentencing purposes?
Appellant’s Brief at 5.
In his first issue, Appellant avers that the Commonwealth failed to
produce sufficient evidence to support his convictions for careless driving and
reckless driving. Appellant’s Brief at 10.4 He speculates that “[t]here are
numerous possible explanations (unrelated to carelessness or recklessness)
for how the collision could have occurred,” and baldly states that “[w]ithout
eyewitness or expert testimony or an admission from [Appellant], the
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3 The court imposed $25 in restitution after noting that Appellant’s mother’s
automobile insurance had covered some of the costs the owners of the parked
cars had incurred because of the accident. See N.T., 5/4/17, at 104-106.
4 Appellant has not challenged his DUI conviction before this Court.
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government could not establish how the accident occurred” or that Appellant
“acted with the mens rea required to sustain the convictions.” Id. at 14.
Our standard of review applicable to challenges to the sufficiency of
evidence is well settled. “Viewing the evidence in the light most favorable to
the Commonwealth as the verdict winner, and taking all reasonable inferences
in favor of the Commonwealth, the reviewing court must determine whether
the evidence supports the fact-finder's determination of all of the elements of
the crime beyond a reasonable doubt.” Commonwealth v. Hall, 830 A.2d
537, 541–42 (Pa. 2003). Further, a conviction may be sustained wholly on
circumstantial evidence, and the trier of fact—while passing on the credibility
of the witnesses and the weight of the evidence—is free to believe all, part, or
none of the evidence. Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa.
Super. 2014). In conducting this review, the appellate court may not weigh
the evidence and substitute its judgment for that of the fact-finder. Id.
Careless driving requires that the driver operate “a vehicle in careless
disregard for the safety of persons or property.” 75 Pa.C.S. § 3714. Reckless
driving requires a driver to drive in “willful or wanton disregard for the safety
of persons or property.” 75 Pa.C.S. § 3736; Commonwealth v. Greenberg,
885 A.2d 1025, 1027 (Pa. Super. 2005). Careless driving is a lesser-included
offense of reckless driving. Commonwealth v. Cathey, 645 A.2d 250, 253
(Pa. Super. 1994).
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To prove a “willful or wanton disregard,” the Commonwealth must show
that the driver had a “conscious disregard of a substantial and unjustifiable
risk.” Commonwealth v. Bullick, 830 A.2d. 998, 1002 (Pa. Super. 2003)
(citation omitted). See also 18 Pa.C.S. § 302(b)(3) (providing that a person
acts recklessly if he or she “consciously disregards a substantial and
unjustifiable risk” of injury to others.). A driver will be found reckless when
he drives in such a manner that there is “a high probability that a motor
vehicle accident would result from driving in that manner, that he was aware
of that risk and yet continued to drive in such a manner, in essence, callously
disregarding the risk he was creating by his own reckless driving.” Bullick,
supra at 1003.
We are mindful that “driving under the influence of an intoxicating
substance does not establish recklessness per se.” Commonwealth v.
Jeter, 937 A.2d 466, 468 (Pa. Super. 2007) (citation omitted). Rather, “there
must be other tangible indicia of unsafe driving to a degree that creates a
substantial risk of injury that is consciously disregarded.” Id.
Here, Appellant contends that the “evidence presented here falls short
of proving that [he] drove carelessly, let alone recklessly.” Appellant’s Brief
at 13. Relying on cases with distinguishable facts, he argues that because
there is no evidence that he was driving on a freeway or at a high rate of
speed, and his blood alcohol content was unknown, the Commonwealth failed
to carry its burden of proof. Id., citing Jeter, supra; Bullick, supra; and
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Commonwealth v. Gezovich, 7 A.3d 300, 301 (Pa. Super. 2010). Appellant
omits from his analysis the well-settled case law that holds that the
Commonwealth may prove the elements of a crime with circumstantial
evidence and the reasonable inferences drawn from it. Our review of the
record indicates that, contrary to Appellant’s contention, the evidence
supports the court’s determination that Appellant drove carelessly and
recklessly.
First, as the court found, Appellant drove while under the influence to a
degree that rendered him incapable of safe driving. Appellant has not
challenged his DUI conviction before this Court. Moreover, Appellant admitted
to the police officer that he had just left a party at the firehouse. In the
totality of the circumstances, driving while inebriated is one piece of evidence
supporting a conclusion that Appellant acted in willful and wanton disregard
for the safety of others. However, it was not the only piece of evidence
presented in the instant case.
The crash itself provides “other tangible indicia of unsafe driving.”
Jeter, supra. The evidence supports a reasonable inference that Appellant
caused the crash. Officer O’Hara arrived within a minute of the radio dispatch
to see Appellant inside his damaged vehicle trying to reverse from the curb
where it had ended up askew near two other damaged vehicles. Combined
with Appellant’s being in the driver’s seat still trying to operate the vehicle,
and the damage to the vehicle that complemented the damage that the two
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unoccupied, parked, cars sustained, we conclude that the Commonwealth
proved beyond a reasonable doubt that Appellant caused the crash resulting
in property damage.
Moreover, Appellant’s continuing attempt to operate the vehicle, even
after causing damage, shows his “callous[ ] disregard” of a “substantial and
unjustifiable risk.” Bullick, supra at 1003.
Applying our standard of review, “viewing the evidence in the light most
favorable to the Commonwealth as the verdict winner, and taking all
reasonable inferences in favor of the Commonwealth,” we conclude that the
evidence supports the court’s determination that the Commonwealth proved
all of the elements of careless and reckless driving beyond a reasonable doubt.
Accordingly, we affirm the convictions.
Appellant next contends that the offenses of careless driving and
reckless driving merge for purposes of sentencing, and the court’s imposition
of two separate sentences of $25 and $200, respectively, comprises an illegal
sentence. We agree.5
Whether offenses merge for sentencing purposes “depend[s] on
whether the crimes involved are greater and lesser included offenses; if so,
the sentences merge, if not, merger is not required.” Commonwealth v.
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5We note that both the trial court and the Commonwealth recognize that the
offenses merged for purposes of resentencing. See Trial Ct. Op., 12/12/17,
at 14; Commonwealth’s Brief at 10.
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Everett, 705 A.2d 837, 839 (Pa. 1998). As noted above, this Court previously
held that careless driving is a lesser-included offense of reckless driving.
Cathey, 645 A.2d at 253.
Accordingly, the trial court here erred in imposing separate sentences
on each conviction. We, thus, vacate the Judgment of Sentence and remand
for resentencing.
Convictions affirmed; Judgments of Sentence vacated; case remanded
for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/18
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