J-A25016-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWIN OTERO
Appellant No. 2295 EDA 2013
Appeal from the Judgment of Sentence of March 28, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0808951-2005
BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 14, 2014
Edwin Otero appeals from the judgment of sentence entered March 28,
2013, following his waiver trial and conviction of aggravated assault, simple
assault, recklessly endangering another person, accidents involving injury
while not properly licensed, and accidents involving damage to property.1
We affirm.
The trial court set forth the following recitation of facts:
At a bifurcated waiver trial . . . , the Commonwealth presented
the testimony of Ms. Donna Floody, Mr. John Foley, and Ms. Lisa
Foley. [Otero] presented testimony from [himself] and Mr.
Kareem Shabazz[, an investigator for the defense]. Additionally,
two retired Philadelphia Police Officers were unable to be located
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705; 75 Pa.C.S.A. §§ 3742.1(a),
and 3743(a), respectively.
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for trial. Therefore, the notes of testimony from two preliminary
hearings were introduced in lieu of testimony from Officer Henry
Gehring and Officer Robert Byrne.
On September 11, 2004, at approximately 2:45 a.m., Ms. Lisa
Foley was in the area of Frankford Avenue and Glenwood Avenue
in the city and county of Philadelphia. Ms. Foley arrived at the
area in a car with her cousins, Donna Floody and Helena Floody,
as well as her brother, John Foley. The group was coming from
Ms. Foley’s mother’s birthday party and were going to an after-
hours club on Frankford Ave. Ms. Foley exited the rear of the
driver’s side of the vehicle and proceeded to cross Frankford
Ave. in the middle of the block. Once Ms. Foley had reached the
bicycle lane on the opposite side of the street, a white vehicle
with tinted windows came down Frankford Ave. at a very high
rate of speed and struck Ms. Foley. Witnesses testified that the
vehicle had run a red light at the intersection of Frankford and
Glenwood, was going approximately sixty miles per hour, did not
honk or [brake] prior to striking Ms. Foley, and hit several
parked cars on Frankford Ave. John Foley chased after the
vehicle, but the driver did not stop. At the time of the incident,
it was dark, but there was no traffic on the street[;] it was a
clear night, and the street was dry.
Ms. Foley was thrown approximately twenty feet after being
struck by the vehicle and suffered several serious injuries, which
were stipulated to by both parties. Ms. Foley does not
remember the actual impact. Following the incident, she was
taken to Hahnemann Hospital, where part of her skull was
removed and several rods were inserted into her leg. After two
weeks in the hospital, Ms. Foley was transported to Moss Rehab,
where she remained for four weeks, followed by lengthy
outpatient physical therapy. Ms. Foley’s injuries are mostly
healed, but she still suffers pains in her leg and headaches. Ms.
Foley testified to having several drinks throughout the evening
and admitted that she was drunk at the time of the incident.
Officer Henry Gehring responded to the scene of the incident at
3:15 a.m. on September 11, 2004. Officer Gehring found and
photographed several car parts at the scene, including[:] pieces
of a headlight, a plastic rain deflector, and a chrome windshield
wiper arm. Officer Gehring also observed white paint that had
transferred onto a parked car at the scene. On September 30,
2004, Officer Robert Byrne of the Philadelphia Police
Department’s Accident Investigation Division received a tip that
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a white Toyota had been involved in a hit and run. Officer Byrne
went to 1895 Haworth Street to investigate and was told by
[Otero’s] mother that her son owned the vehicle. Officer Byrne
matched the car parts found at the scene to [Otero’s] vehicle.
One headlight was visibly dirtier than [the] other, leading Officer
Byrne to conclude that one had been replaced. The vehicle’s
windshield and wiper blade had also been replaced. The rain
protectors had been removed, but there was visible glue residue
where they had been mounted on the vehicle. The vehicle also
had soft contact damage, meaning that there were dents in the
vehicle without paint on them, so they had not been caused by
metal on metal contact. Officer Byrne had the car towed and
returned the next day to speak with [Otero].
[Otero] testified during trial that he had been driving in the area
of the incident and did not think that he had hit anyone, but
believed that someone had thrown a rock at his vehicle. He
testified that there was damage to his windshield and he
replaced it the following day. He testified that he had not run a
red light at the intersection of Frankford and Glenwood Avenues.
Trial Court Opinion (“T.C.O.”), 2/5/2014, at 2-4 (record citations omitted).2
On February 4, 2013, the court found Otero guilty of the above-
mentioned charges. On March 28, 2013, Otero was sentenced to an
aggregate of not less than seven nor more than seventeen years’
____________________________________________
2
The passage of time between the incident and Otero’s trial is
attributable to two interlocutory appeals filed by the Commonwealth
pursuant to Pa.R.A.P. 311(d) regarding the admissibility of a statement
Otero made to police that his nephew translated, and the officers’ notes of
that translated admission. See Commonwealth v. Otero, No. 130 EDA
2010 (Pa. Super. filed Jul. 2, 2010); Commonwealth v. Otero, No. 1296
EDA 2007 (Pa. Super. filed Feb. 2, 2009). Ultimately, although it was
determined that the officers could testify as to their memory of Otero’s
admissions, the officers could not be located and did not testify at trial.
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incarceration.3 Otero timely filed a post-sentence motion, which was denied
by operation of law on August 5, 2013. Otero timely filed a notice of appeal,
and pursuant to the trial court’s order, filed a statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b) on September 18,
2013. The trial court entered an opinion pursuant to Pa.R.A.P. 1925(a) on
February 5, 2014.
Otero presents the following three questions for our review:
1. Did the [trial court] abuse [its] discretion in sentencing Mr.
Otero to 7 to 17 years of incarceration plus 2 years[’] probation
and was this sentence extremely excessive? Did [the court’s]
sentence of 5 to 10 years on the Aggravated Assault charge (18
Pa.C.S.A. [§] 2702)(F-2) exceed without reason the guideline
range of 27 to 33 months based on offense gravity score of 8
and a prior record score of 5? Did the sentence of 2 to 7 years
consecutive on the charge of Leaving the Scene of a Crime (75
Pa.C.S.A. [§] 3742)(F-3) far exceed the sentencing guidelines of
12 to 18 months for an offense gravity score of 5 and a prior
record score of 5? Did [the court] further abuse [its] discretion
by making both sentences consecutive for an extremely
excessive sentence of 7 to 17 years of incarceration? Did [the
court] fail to state adequate reasons for the excessive sentence?
2. Were the verdicts for the crimes of Aggravated Assault (F-
2), Simple Assault (M-2), Recklessly Endangering Another
Person (M-2) and Leaving the Scene of an Accident (F-3) when
someone was injured not supported by sufficient evidence? Was
the evidence conflicting and confusing, and was this case only an
____________________________________________
3
Specifically, the court sentenced Otero to not less than five nor more
than ten years for aggravated assault, not less than two nor more than
seven years for accidents involving injury while not properly licensed, and
two years’ probation for recklessly endangering another person, all to run
consecutively. The court did not impose further penalty for simple assault or
accidents involving damage to property. See Sentencing Order, 3/28/2013,
at 1.
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automobile accident without criminal negligence, particularly
since the victim was extremely intoxicated crossing the middle of
the street in the dark in the early morning hours?
3. Were the verdicts for the crimes of Aggravated Assault (F-
2), Simple Assault and Recklessly Endangering Another Person
(M-2) and leaving the Scene of an Accident (F-3) against the
weight of the evidence? Did the evidence not show criminal
negligence, particularly since the victim was extremely
intoxicated? Was the evidence also conflicting? Did the verdicts
shock the conscience?
Otero’s Brief at 9-10.
Otero’s first issue is a challenge to the discretionary aspects of his
sentence. Specifically, Otero alleges that his sentence exceeded the
guideline ranges and that the court abused its discretion by ordering his
sentences to run consecutively and by failing to state adequately on the
record its reasons for imposing the sentence. We disagree.
A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to
pursue such a claim is not absolute. Two requirements must be
met before we will review this challenge on its merits. First, an
appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence. Second, the appellant must
show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code. The
determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis. In order to
establish a substantial question, the appellant must show actions
by the trial court inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying the sentencing
process.
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)
(citations omitted).
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In the present case, Otero’s brief contains a concise statement in
compliance with Pa.R.A.P. 2119(f). Otero’s Brief at 5-8, 25-26. Otero
asserts that the trial court failed to consider his acceptance of responsibility,
his expression of remorse, and the likelihood that he would benefit from
treatment without a long period of incarceration. Id. at 7-8. Consequently,
Otero alleges that the sentence of five to ten years for aggravated assault as
a second-degree felony and two to seven years for leaving the scene of an
accident was extremely excessive and that the trial court abused its
discretion by running the sentences concurrently. Id. at 8.
To the extent that Otero claims the trial court abused its discretion by
ordering the two sentences to run consecutively, we observe the following:
Long[-]standing precedent of this Court recognizes that
42 Pa.C.S.A. section 9721 affords the sentencing court
discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the
same time or to sentences already imposed. Any
challenge to the exercise of this discretion . . . does not
raise a substantial question.
Commonwealth v. Pass, 914 A.2d 442, 446-447 (Pa. Super. 2006) (case
citation omitted). Thus, Otero is not entitled to relief on this claim.
However, we have held that a substantial question is raised where an
appellant alleges that the sentencing court erred by imposing an aggravated
range sentence without consideration of mitigating circumstances.
Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en
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banc). Thus, we will address the merits of Otero’s challenge to the
discretionary aspects of his sentence.
Our standard of review is as follows:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed
on appeal absent a manifest abuse of discretion. An abuse
of discretion is more than just an error in judgment and,
on appeal, the trial court will not be found to have abused
its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will.
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.
Super. 2002) (citations omitted). More specifically, 42 Pa.C.S.A.
§ 9721(b) offers the following guidance to the trial court’s
sentencing determination:
[T]he sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the
victim and on the community, and the rehabilitative needs
of the defendant.
42 Pa.C.S.A. § 9721(b).
In every case where a sentencing court imposes a sentence
outside of the sentencing guidelines, the court must provide in
open court a contemporaneous statement of reasons in support
of its sentence. 42 Pa.C.S.A. § 9721; see also
Commonwealth v. Eby, 784 A.2d 204, 205-06 (Pa. Super.
2001).
The statute requires a trial [court] who intends to sentence
a defendant outside of the guidelines to demonstrate on
the record, as a proper starting point, [its] awareness of
the sentencing guidelines. Having done so, the sentencing
court may deviate from the guidelines, if necessary, to
fashion a sentence which takes into account the protection
of the public, the rehabilitative needs of the defendant,
and the gravity of the particular offense as it relates to the
impact on the life of the victim and the community, so long
as [it] also states of record the factual basis and specific
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reasons which compelled [it] to deviate from the guideline
range.
Commonwealth v. Gibson, 716 A.2d 1275, 1276-77 (Pa.
Super. 1998) (internal quotations omitted).
When evaluating a challenge to the discretionary aspects of
sentence such as the one advanced by [the a]ppellant, it is
important to remember that the sentencing guidelines are
advisory in nature. Id. at 1277. If the sentencing court deems
it appropriate to sentence outside of the guidelines, it may do so
as long as it offers reasons for this determination. Id. “[O]ur
Supreme Court has indicated that if the sentencing court proffers
reasons indicating that its decision to depart from the guidelines
is not unreasonable, we must affirm a sentence that falls outside
those guidelines.” Id. (citations omitted, emphasis in original).
Commonwealth v. Bowen, 55 A.3d 1254, 1263-64 (Pa. Super. 2012)
(citations modified).
Otero contends that his sentences were excessive and that the trial
court failed to state adequate reasons on the record or consider mitigating
evidence. Otero’s Brief at 25. Preliminarily, we observe that Otero’s five-to-
ten-year sentence for aggravated assault as a second-degree felony and his
two-to-seven-year sentence for accidents involving injury without a license
as a third-degree felony are both within the statutory maximums of ten and
seven years, respectively. See 18 Pa.C.S.A. § 1103(2), (3). At sentencing,
the trial court stated that it had “read the presentence investigative report
[and] the prior record score.” Notes of Testimony (“N.T.”) Sentencing,
3/28/2013, at 4-5. Therefore, the court was entitled to deviate from the
guidelines and to fashion a sentence which accounted for the sentencing
factors at 42 Pa.C.S.A. § 9721(b), “so long as [it] also state[d] of record the
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factual basis and specific reasons which compelled [it] to deviate from the
guideline range.” Commonwealth v. Gibson, 716 A.2d at 1276-77. On
the record, the trial court stated as follows:
Sir, I have reviewed everything. I was present during the trial
itself, obviously, and your testimony was simply incredible. It’s
taken ten years to get here today, and I know that the family
has waited patiently and I appreciate that. And your attorney
has asked for mercy.
Shakespeare once said, “Nothing emboldens sin so much as
mercy.” And the mercy that has been shown to you all along by
other Judges hasn’t emboldened you to the point that I am
cognizant of the fact that it was on July 12th of 2012, you picked
up a new DUI after all of this.
Clearly, you’re not getting the point. I know a lot of time has
gone by, but I also like to read poetry and Nathaniel Hawthorne
once said that, “Time flies over us but leaves a shadow behind.”
The shadow that you left behind is the shattered life that is in
this courtroom today, and it is just incomprehensible that you
leave believe [sic] somebody by the side of the road even if it
was a dog during one of the four versions you had of this
accident.
Clearly, based upon your testimony you have no remorse.
[The trial court then announced Otero’s sentence.]
In doing this, I have read the presentence investigative report. I
have gone over the prior record score. I find a complete lack of
remorse. I find a complete disregard for human life. And I find
that you are a menace to society. It is just very tragic
everything that has occurred here.
But it’s clear that you need to be kept off the roadway, sir, and
that is my sentence.
N.T. Sentencing at 33-35.
Accordingly, the trial court’s stated reasons for sentencing Otero in the
aggravated range included protection of the public, gravity of the offense,
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and its impact upon the victim, Lisa Foley, as well as Otero’s rehabilitative
needs. See 42 Pa.C.S.A. § 9721(b). As the trial court observed, it “did not
ignore mitigating factors during sentencing; it simply did not see any.”
T.C.O. at 5. We conclude that the trial court’s departure from the
sentencing guidelines was considered and not unreasonable, and thus, we
affirm the judgment of sentence on this ground. See Bowen, 55 A.3d at
1263-64. Otero’s challenge to the discretionary aspects of his sentence does
not merit relief.
In his second issue, Otero contends that the verdicts for aggravated
assault, recklessly endangering another person, and leaving the scene of an
accident where someone was injured were not supported by sufficient
evidence. See Otero’s Brief at 41. Specifically, Otero contends that “[t]here
is nothing in the records that would support a finding of recklessness and
criminal negligence by Mr. Otero.” Id. at 48. Thus, he asserts that “there
was no premeditation or intentional conduct” and “the elements of the crime
of Aggravated Assault, which requires attempt to cause or intentionally or
knowingly causing bodily injury, have not been met.” Id. at 52.
Furthermore, “[a]s to Leaving the Scene of the Accident, one has to know
there is an accident before they can leave the scene.” Id. at 53.
We analyze Otero’s arguments under the following parameters:
Our standard when reviewing the sufficiency of the evidence is
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to
the Commonwealth as verdict-winner, are sufficient to establish
all elements of the offense beyond a reasonable doubt. We may
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not weigh the evidence or substitute our judgment for that of the
fact-finder. Additionally, the evidence at trial need not preclude
every possibility of innocence, and the fact-finder is free to
resolve any doubts regarding a defendant’s guilt 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. When evaluating the credibility and weight of
the evidence, the fact-finder is free to believe all, part or none of
the evidence. For purposes of our review under these principles,
we must review the entire record and consider all of the
evidence introduced.
Commonwealth v. Trinidad, 90 A.3d 721, 728 (Pa. Super. 2014) (citation
omitted).
In his first argument, Otero contends that there is insufficient evidence
of his mens rea to sustain his conviction for aggravated assault. See Otero’s
Brief at 52. We disagree.
Aggravated assault, in relevant part, is defined by statute as follows:
§ 2702. Aggravated assault.
(a) Offense defined. —A person is guilty of aggravated assault
if he:
(1) attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of
human life[.]
18 Pa.C.S.A. § 2702(a)(1). As to the Commonwealth’s burden of eliciting
sufficient evidence of a defendant’s mens rea to commit aggravated assault,
we have stated:
When a victim actually sustains serious bodily injury, the
Commonwealth can, but does not necessarily have to, establish
specific intent to cause such harm. As we noted in
[Commonwealth v. Patrick, 933 A.2d 1043 (Pa. Super.
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2007)], the statute’s intent requirement can be met if the
defendant acts recklessly under circumstances manifesting an
extreme indifference to human life.
Commonwealth v. Burton, 2 A.3d 598, 602 (Pa. Super. 2010).
Otero argues that the Commonwealth cannot show that he was
reckless inasmuch as witnesses provided “no reliable testimony of excessive
speed because both the cousin and the brother of the victim did not observe
Mr. Otero’s car long enough to be in a position to note whether he was
driving and speeding excessively” and “[n]one of the victims could refute
that Mr. Otero did not turn left on to Glenwood Street.” Id. at 46, 50.
Preliminarily, we observe that Otero’s challenge to the credibility of Donna
Floody, John Foley, and Lisa Foley’s testimony contests the weight of the
evidence, not its sufficiency, and we will not disturb a trial court’s credibility
determinations. See Trinidad, 90 A.3d at 728. Furthermore, the parties
stipulated to the extent of Ms. Foley’s injuries. See N.T. Trial, 12/20/2012,
at 49-51. Thus, our inquiry is whether the evidence and all reasonable
inferences derived therefrom were sufficient to establish that Otero acted
“recklessly under circumstances manifesting an extreme indifference to
human life.” Burton, 2 A.3d at 602.
To prevail on a theory of recklessness in a prosecution for
aggravated assault, the Commonwealth must show that
the assailant’s recklessness rose to the level of malice, a
crucial element of aggravated assault. Malice consists of 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. Motor vehicle crashes seldom
result in an aggravated assault conviction because of the
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heightened mens rea. However, in some circumstances
the malice requirement has been met, and this court has
not hesitated to uphold an aggravated assault or a third
degree murder charge depending on the particular facts of
a motor vehicle crash.
This Court additionally concluded that a motorist’s conduct is
more egregious if he does not apply his [brakes] or attempt to
slow down before a collision than if he attempts to flee.
Commonwealth v. Riggs, 63 A.3d 780, 784-85 (Pa. Super. 2012)
(citations omitted) (concluding that appellant’s actions in disregarding red
lights and stop signs, crashing into parked cars, fleeing the scene of the
accident, and exhibiting “clearly indifferent” behavior upon apprehension
manifested “evidence of sustained recklessness”).
This Court has summarized our Supreme Court’s precedents on
aggravated assault in motor vehicle crashes as follows:
In [Commonwealth v. O’Hanlon, 653 A.2d 616 (Pa. 1995)], a
driver ran a red light and struck another vehicle, causing serious
injury to another driver. Our Supreme Court reversed the
appellant’s conviction for aggravated assault on the basis that he
was guilty only of mere recklessness, stating that “serendipity,
not intention, placed the victim in his path when he drove
through the red light.” O’Hanlon, 653 A.2d at 618. More
recently, in [Commonwealth v. Comer, 716 A.2d 593 (Pa.
1998)], our Supreme Court reversed a conviction for aggravated
assault where the appellant, who had ingested alcohol and
barbiturates, drove his car at an excessive rate of speed. As he
was driving, the right tire of the appellant’s car rubbed the curb,
and then the vehicle left the highway, crashed into a bus stop,
and eventually struck a brick wall. One person was killed and
another was severely injured as a result of the appellant’s
actions. Our Supreme Court held that the appellant’s conduct,
while criminally reprehensible, was nonetheless insufficient to
establish the state of mind equivalent to that which seeks to
cause injury.
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As we noted in [Commonwealth v. Kling, 731 A.2d 145, 147
(Pa. Super. 1999)], however, in both O’Hanlon and Comer, our
Supreme Court distinguished this Court’s holding in
Commonwealth v. Scofield, 521 A.2d 40 (Pa. Super. 1987),
appeal denied, 535 A.2d 82, wherein we upheld the appellant’s
conviction for aggravated assault. In Scofield, the appellant
was driving his car and scraped it against the bumper of another
vehicle parked on the street. Although sparks emanated,
Scofield drove another ten feet, swerved onto the sidewalk and
struck a building. A passing cabdriver, who realized Scofield had
struck a pedestrian and trapped him under the fender of the
vehicle, approached Scofield’s car and told him to turn off the
car. The cabdriver even attempted to reach into the car and
remove the keys. Scofield, however, became belligerent and
assaulted the cabdriver. He then tried to put his car into
reverse, but a flat tire prevented his flight. We concluded that
Scofield’s behavior prior to and after the accident established his
awareness of the risk of serious injury, and, therefore, we
upheld his aggravated assault conviction.
In distinguishing this Court’s holding in Scofield from the case
in Comer, our Supreme Court opined that the “circumstances [in
Scofield] demonstrated a higher degree of recklessness than
those presented in [Comer],” noting that in Comer, the
appellant “sped past another vehicle, his car rubbed the curb of
the sidewalk and the accident ensued immediately thereafter.”
Comer, 716 A.2d at 597. As we noted in Kling, “the
cornerstone of this conclusion rested with the notion [that]
Scofield considered, then disregarded, the threat to the life of
the victim;” and, in Comer, our Supreme Court “indicated 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.” Kling, 731
A.2d at 149 (emphasis original).
Commonwealth v. Allen, 833 A.2d 800, 803-04 (Pa. Super. 2003)
(citations modified).
Here, at trial, Donna Floody testified that on September 11, 2004, Lisa
Foley was in the bike lane when “a white vehicle came speeding through the
red light. He was going approximately 60 miles an hour when he hit Lisa.
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She [l]anded on the vehicle and she bounced off the vehicle onto a parked
car. She was thrown 25 or 30 feet and she landed . . . on her back.” N.T.
Trial, 12/20/2012, at 11). She did not hear the screeching of brakes or
tires, and when John Foley chased after the white car, “the person driving
took off.” Id. at 12. John Foley affirmed that Lisa Foley was in the bike
lane, and stated that he saw the car run the red light at high speed and
strike three or four parked cars before hitting Lisa Foley. Id. at 37-39.
Foley said he “chased the car and [the driver] hit the brake, tapped the
brakes and went up another street [while] I was screaming and hollering[.]”
Id. at 28-29. Police investigating the accident found debris from the car,
and paint transfer and damage on the parked cars hit by the white car. N.T.
Preliminary Hearing, 8/15/2005, at 17. After receiving a tip regarding the
location of the white car on September 30, 2004, the officers matched the
damage on it to the accident debris and observed that the windshield and a
headlight had been replaced. Id. at 21-22; N.T. Motions, 4/13/2007, at 42,
59. As observed by the trial court, Otero gave at least four different
explanations for what he thought he had hit, but never stopped to render
assistance. See N.T. Sentencing, 3/28/2013, at 34-35.
The evidence shows that Otero ran a red light, drove into the bicycle
lane, hit several parked cars, then struck Ms. Foley so hard that she was
thrown at least twenty feet. Otero did not apply his brakes until after he hit
Ms. Foley, but instead of stopping to determine what happened, he drove
away. Afterward, Otero did not report the accident, but immediately
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repaired the damage to his car. Thus, the circumstances of this case are in
line with our holding in Scofield, supra. Based upon Otero’s conduct before,
during, and after the incident, the Commonwealth adduced sufficient
evidence of “sustained recklessness by a driver in the face of an obvious risk
of harm to his victims.” Kling, 731 A.2d at 149; Burton, 2 A.3d at 602.
Accordingly, the Commonwealth sustained its burden of proof of Otero’s
mens rea of recklessness to affirm his conviction for aggravated assault.
Trinidad, 90 A.3d 721, 728; Riggs, 63 A.3d at 784-85.
Second, Otero argues that there is insufficient evidence to support his
conviction for leaving the scene of an accident because “one has to know
there is an accident before they can leave the scene.” Otero’s Brief at 53.
This contention lacks arguable merit.
Contrary to his assertion, Otero was not convicted of leaving the scene
of an accident, 75 Pa.C.S.A. § 3742 (“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 . . . .”). Otero was convicted of
accidents involving death or personal injury while not properly licensed, 75
Pa.C.S.A. § 3742.1(a) (“A person whose operating privilege was disqualified,
canceled, recalled, revoked or suspended and not restored or who does not
hold a valid driver’s license . . . commits an offense under this section if the
person was the driver of any vehicle and caused an accident resulting in
injury or death of any person.”).
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It is well-settled that “the mens rea for a violation of 75 Pa.C.S.A.
§ 3742.1 is criminal negligence.” Commonwealth v. Hurst, 889 A.2d 624,
630 (Pa. Super. 2005). Our legislature has defined criminal negligence as
follows:
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.A. § 302(b)(4). Thus, the Commonwealth was only required to
show that Otero acted with criminal negligence, not that he “[knew] there
[was] an accident,” as he contends. Compare Otero’s Brief at 53, with 75
Pa.C.S.A. § 3742.1(a); 18 Pa.C.S.A. § 302(b)(4).
As previously discussed, the Commonwealth adduced sufficient
evidence of Otero’s recklessness, which would also suffice to support a
finding of criminal negligence. “The concept of gross negligence is
encompassed within the concept of recklessness as set forth in
Section 302(b)(3) [of the Crimes Code].” Commonwealth v. Grimes, 842
A.2d 432, 434 (Pa. Super. 2004) (citation omitted); see also
Commonwealth v. Heck, 535 A.2d 575, 580 (Pa. 1987) (concluding that
appellee’s conviction requiring finding of criminal negligence “may be
sustained only if the Commonwealth’s evidence established that he acted
recklessly, or criminally negligently”).
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Moreover, the Commonwealth adduced circumstantial evidence in the
form of the repairs to Otero’s car to show that he knew he had been in an
accident. N.T. Preliminary Hearing, 8/15/2005, at 21-22; N.T. Motions,
4/13/2007, at 42, 59. Critically, Otero himself testified that he was driving
on the night of the incident and admitted that he “felt like they threw a rock
at me,” N.T. Trial, 1/22/2013, at 27, and, as the court noted, gave at least
four versions of what he thought he had hit. N.T. Sentencing, 3/28/2013, at
34-35. Thus, Otero cannot reasonably claim that he did not know he had
been in an accident, and the Commonwealth adduced sufficient evidence to
support this conviction. 75 Pa.C.S.A. § 3742.1(a); Trinidad, 90 A.3d at
728. Otero’s second issue does not merit relief.
Third, Otero contends that the verdicts were against the weight of the
evidence. Otero’s Brief at 56-57. We disagree.
Our standard of review is well-settled:
The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none of
the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment for
that of the finder of fact. Therefore, we will reverse a [trial
court’s] verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one’s sense of justice. A
verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice when “the figure of Justice totters on her
pedestal,” or when “the jury’s verdict, at the time of its
rendition, causes the trial judge to lose his breath, temporarily,
and causes him to almost fall from the bench, then it is truly
shocking to the judicial conscience.”
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Furthermore, 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.
Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super. 2007)
(citations omitted).
Here, Otero incorporates by reference the arguments he set forth
above under his challenge to the sufficiency of the evidence and contends
that “[t]hese convictions should shock the conscience.” Otero’s Brief at 55-
56. In addressing this issue, the trial court provided the following
reasoning:
[Otero] argues that this was nothing more than an unfortunate
accident that did not rise to the level of criminal negligence.
This court wholeheartedly disagrees with that assertion and
believes that [Otero] could easily have been guilty of vehicular
homicide . . . . Ms. Foley would have been killed by [Otero’s]
reckless actions had her cousin, a registered nurse, not been on
the scene to administer life[-]saving medical aid. [Otero] claims
he did not run a red light and that he made a left hand turn onto
Frankford Ave. However, several witnesses claimed he ran a red
light and some estimated his speed at sixty miles per hour.
While he may not have been going that fast, he was going fast
enough to launch Ms. Foley twenty feet in the air. Witnesses
also claimed that Ms. Foley was struck approximately three car
lengths from the intersection. There is no way that [Otero]
could have made a turn onto Frankford Ave[.] and been going
fast enough to launch Ms. Foley that far in just three car lengths.
He had to have been going straight on Frankford Ave[.] and run
a red light.
[Otero] also seeks to blame the victim for contributing to her
injuries through intoxication. However, Ms. Foley’s admitted
intoxication is of absolutely no moment here. All witnesses
agreed that she had crossed into the bicycle lane before being
struck and that the vehicle side swiped several parked cars. This
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means that [Otero] had to cross over a solid white line while
driving. His recklessness caused his vehicle to leave the lane of
travel before striking Ms. Foley. Her intoxication is completely
irrelevant since she was in the bicycle lane (where cars are not
allowed to travel) when she was struck. It is no different than if
she had been intoxicated and walking down the sidewalk when
struck. Ms. Foley’s intoxication has no bearing on the situation
and her severe injuries were solely the result of [Otero’s] gross
recklessness.
There is absolutely nothing in evidence that would call this
court’s findings of fact into question. [Otero] acted recklessly
and this court’s finding of guilt should not be disturbed.
T.C.O. at 6-7.
As previously stated, we will not disturb the trial court’s determination
of the credibility of the witnesses, and likewise, its finding that Otero’s
version of events was incredible. See Trinidad, 90 A.3d at 728. We
therefore cannot conclude that the trial court’s reasoning represents an
abuse of discretion. Cruz, 919 A.2d at 281-82. Accordingly, Otero’s third
issue merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2014
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