Com. v. Hawkes, L.

J-S46035-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LANCE LESTER HAWKES :
:
Appellant : No. 98 MDA 2017
Appeal from the Judgment of Sentence January 9, 2017
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0001330-2015
BEFORE: BOWES, OLSON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 29, 2017
Appellant Lance Lester Hawkes appeals the judgment of sentence
entered by the Court of Common Pleas of Adams County after the trial court
convicted Appellant of Aggravated Assault. Appellant raises challenges to
the sufficiency and weight of the evidence. We affirm.
On March 3, 2010, at midnight, Officer Richard Henry Phillips
attempted to initiate a traffic stop of Appellant’s vehicle, which was traveling
eastbound on York Road. Officer Phillips activated the overhead lights of his
patrol car and began to follow Appellant’s vehicle. Appellant refused to pull
over, fled an excessive rate of speed (approximately 80 to 100 miles per
hour), and ran a red light at the Cross Keys intersection. Just three to four
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*
Former Justice specially assigned to the Superior Court.
J-S46035-17
seconds later, while pursuing Appellant through the intersection, Officer
Phillips’s patrol car collided with a tractor-trailer. As a result of the accident,
Officer Phillips sustained traumatic brain injury, broken facial bones, and a
broken leg.
Appellant fled the scene of the accident and was able to avoid
apprehension for five years. On November 12, 2015, Appellant was charged
with aggravated assault of a police officer under 18 Pa.C.S.A. § 2702(a)(2).
Following a stipulated bench trial, Appellant was convicted of Aggravated
Assault on November 3, 2016. Appellant filed a post-trial motion, which was
subsequently denied. The lower court sentenced Appellant to 5½ to 11
years’ incarceration on January 9, 2017. Appellant filed a timely notice of
appeal and complied with the lower court’s direction to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises two issues for our review on appeal:
1. Whether there was sufficient evidence, as a matter of law, to
support a verdict of guilty of the crime of aggravated assault?
2. Whether the lower court abused its discretion when it denied
Appellant’s motion for a new trial because the verdict was
against the weight of the evidence?
Appellant’s Brief, at 4.
In reviewing Appellant’s challenge to the sufficiency of the evidence
supporting his aggravated assault conviction, we are guided by the following
standard:
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The standard of review for a challenge to the sufficiency of
the evidence is to determine whether, when viewed in a light
most favorable to the verdict winner, the evidence at trial and
all reasonable inferences therefrom is sufficient for the trier of
fact to find that each element of the crimes charged is
established beyond a reasonable doubt. The Commonwealth
may sustain its burden of proving every element beyond a
reasonable doubt by means of wholly circumstantial evidence.
The facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubt raised as to the accused's guilt is to be
resolved by the fact-finder. As an appellate court, we do not
assess credibility nor do we assign weight to any of the
testimony of record. Therefore, we will not disturb the verdict
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.
Commonwealth v. Wanner, 158 A.3d 714, 717–18 (Pa.Super. 2017)
(quoting Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super.
2014)).
Appellant was convicted of Aggravated Assault pursuant to Section
2702(a)(2) of the Crimes Code which provides that “[a] person is guilty of
aggravated assault if he … attempt[ed] to cause or intentionally, knowingly
or recklessly cause[d] serious bodily injury to any of the officers, agents,
employees or other persons enumerated in subsection (c) … while in the
performance of duty.” 18 Pa.C.S.A. § 2702(a)(2). Police officers are
included in the category of individuals enumerated in Section 2702(c).
Appellant specifically argues that there is insufficient evidence to show
that he acted with the requisite recklessness. To sustain a conviction for
aggravated assault based on the theory of recklessness, the Commonwealth
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must prove a heightened mens rea and show the defendant’s recklessness
rose to the level of malice. Commonwealth v. Kling, 731 A.2d 145, 147
(Pa.Super. 1999).
Malice exists where there is a wickedness of disposition,
hardness of heart, cruelty, recklessness of consequences, and a
mind regardless of social duty, although a particular person may
not be intended to be injured. Where malice is based on a
reckless disregard of consequences, it is not sufficient to show
mere recklessness; rather, it must be shown the defendant
consciously disregarded an unjustified and extremely high risk
that his actions might cause death or serious bodily injury. A
defendant must display a conscious disregard for almost certain
death or injury such that it is tantamount to an actual desire to
injure or kill; at the very least, the conduct must be such that
one could reasonably anticipate death or serious bodily injury
would likely and logically result.
Id. at 147–48 (citations omitted).
Although this Court has recognized that motor vehicle crashes seldom
warrant a conviction for aggravated assault due to the heightened mens rea
requirement, “a conviction based on malice is appropriate where evidence
demonstrates the element of sustained recklessness by a driver in the face
of an obvious risk of harm to his victims.” Commonwealth v. Kling, 731
A.2d 145, 149 (Pa.Super. 1999) (citing Commonwealth v. Comer, 552 Pa.
527, 716 A.2d 593 (1998)). See Commonwealth v. Riggs, 63 A.3d 780,
784–85 (Pa.Super. 2012) (finding this Court has not hesitated in upholding
an aggravated assault conviction for a motor vehicle crash when the
particular facts support a finding of malice).
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In Riggs, this Court affirmed the appellant’s aggravated assault
conviction, when the defendant ran a red light, traveled at a high rate of
speed through an intersection without applying his brakes, collided with
another vehicle, and fled from the scene of the accident. This Court found
these circumstances, along with the fact that Appellant had been previously
involved in three high-speed chases with police, supported the finding of
sustained recklessness. Id. at 785. In Kling, this Court upheld the
appellant’s conviction for aggravated assault as the appellant caused a fatal
accident when racing on a curvy mountain road at speeds in excess of eighty
m.p.h. The record showed that just moments before the crash, the
appellant nearly hit a minivan traveling in the opposite direction, but
continued his reckless conduct and disregarded the risk that his conduct
could result in serious disaster. Thereafter, the appellant sped into a double
blind curve, where he crossed the center line, killing an oncoming driver and
seriously injuring her ten-year-old son. As result, this Court found the
appellant exhibited sustained recklessness as he “had adequate time to
calculate and reflect upon the consequences of his reckless conduct, thus
rendering the choice to continue it malicious.” Kling, 731 A.2d at 150.
In the case sub judice, we find sufficient evidence to demonstrate that
Appellant acted with sustained recklessness in the face of an obvious risk of
harm to Officer Phillips and the public at large. Although Officer Phillips
attempted to pull over Appellant’s vehicle for a traffic stop and activated the
overhead lights of his patrol car, Appellant disregarded the officer’s request
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and initiated a high-speed chase in which Appellant reached speeds between
80 and 100 m.p.h. Appellant continued at this high rate of speed through
the red light at an intersection in an attempt to avoid apprehension. Officer
Phillips, in pursuit of Appellant, passed through the intersection just seconds
later, and was hit by a tractor-trailer. As this evidence shows Appellant
blatantly disregarded the risk that his conduct could cause death or serious
bodily injury to another person, we conclude there is sufficient evidence to
support Appellant’s aggravated assault conviction.1
Appellant also raises a challenge to the weight of the evidence
supporting his aggravated assault conviction. In reviewing a challenge to
the weight of the evidence, our standard of review is as follows:
The weight of the evidence is exclusively for the finder of fact
who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact.
Thus, we may only reverse the lower court's verdict if it is so
contrary to the evidence as to shock one's sense of justice.
Moreover, where the trial court has ruled on the weight claim
below, an appellate court's role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
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1
Although Appellant asserts in his appellate brief that the Commonwealth
failed to prove that his conduct caused the serious bodily injury to Officer
Phillips, Appellant does not cite any authority or develop any analysis to
support a challenge to the causation element. Thus, this issue is waived.
See Commonwealth v. Woodard, 129 A.3d 480, 509 (Pa. 2015) (holding
that “[w]here an appellate brief fails to ... develop an issue in any other
meaningful fashion capable of review, that claim is waived. It is not the
obligation of an appellate court to formulate appellant's arguments for him”).
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Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003). “A trial court's denial of a weight claim is the least assailable of its
rulings. Conflicts in the evidence and contradictions in the testimony of any
witnesses are for the fact finder to resolve.” Commonwealth v. Lofton, 57
A.3d 1270, 1273 (Pa.Super. 2012), appeal denied, 620 Pa. 721, 69 A.3d 601(2013) (internal citations omitted).
Appellant argues that the trial court erred in making certain factual
determinations. First, although the driver of the tractor-trailer told police
that Appellant ran a red light, Appellant argues that another eyewitness told
officers Appellant had a green light when he passed through the intersection.
Second, Appellant objects to the trial court’s characterization of the
intersection as “busy” when the crash occurred at midnight. Third, Appellant
argues that the trial court erred in finding that he was traveling 80 and 100
m.p.h. when one of the witnesses “correctly predicted” Appellant was driving
between 80 and 90 m.p.h.
Appellant’s challenge to the weight of the evidence is meritless as “a
new trial should not be granted because of a mere conflict in the testimony
or because the judge on the same facts would have arrived at a different
conclusion.” Commonwealth v. Widmer, 560 Pa. 308, 319–20, 744 A.2d
745, 752 (2000) (citation omitted). We will not disturb the trial court’s
credibility determinations as factfinder and discern no abuse of discretion by
the trial court in concluding that the verdict was not against the weight of
the evidence.
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For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Bowes, J. join the memorandum.
Olson, J. Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2017
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