J-A23037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEREMY PAUL LEFEVER
Appellant No. 1488 WDA 2014
Appeal from the Judgment of Sentence March 6, 2014
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0001314-2012
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 2, 2015
Appellant, Jeremy Paul Lefever, appeals from the judgment of
sentence entered in the Butler County Court of Common Pleas, following his
jury trial convictions of recklessly endangering another person (“REAP”) and
fleeing or attempting to elude a police officer, and his bench trial convictions
of reckless driving, driving while operating privilege is suspended or
revoked—driving under the influence of alcohol or a controlled substance
(“DUI”), and failure to stop at a red signal.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On July 11, 2012, at approximately 1:00 a.m., Lieutenant James Hollobaugh
____________________________________________
1
18 Pa.C.S.A. § 2705, 75 Pa.C.S.A. §§ 3733(a), 3736(a), 1543(b)(1) (3802
related), and 3112(a)(3)(i), respectively.
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of the City of Butler Police Department saw a lone driver operating a small,
dark, hatchback-type vehicle run a steady red light in Butler. Lieutenant
Hollobaugh activated his police cruiser’s lights and attempted to initiate a
traffic stop of the vehicle. The vehicle failed to stop, accelerated, and fled
from Lieutenant Hollobaugh, who pursued the vehicle in his police cruiser
and called for backup. The pursuit continued for several blocks when
Lieutenant Hollobaugh activated his police cruiser’s siren. The pursued
vehicle then proceeded to turn onto a one-way street in the wrong direction
and nearly struck an oncoming vehicle. Lieutenant Hollobaugh lost sight of
the vehicle for approximately fifteen (15) seconds. He then saw a tall, white
man wearing a dark tank top running from the pursued vehicle, which was
parked in a private driveway about two blocks from where Lieutenant
Hollobaugh lost sight of the vehicle. Lieutenant Hollobaugh parked behind
the vehicle and discovered it was registered to Ms. Alicia Kniess. Lieutenant
Hollobaugh knew from prior incidents that Appellant lived at the same
address as Ms. Kniess.
Meanwhile, Patrolman David Villotti of the Butler Police Department
responded to Lieutenant Hollobaugh’s call for backup. Patrolman Villotti
observed a tall, white man in a dark tank top walking approximately one
block from where Lieutenant Hollobaugh located the parked vehicle.
Patrolman Villotti stopped the man and identified him as Appellant. Keys
matching the pursued vehicle were found on Appellant’s person.
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Appellant filed an omnibus pretrial motion on October 10, 2012, to
suppress the keys found on his person. The court conducted a hearing and
denied Appellant’s motion on February 14, 2013. Thereafter, on January 29,
2014, a jury convicted Appellant of REAP and fleeing or attempting to elude
a police officer, and the court convicted Appellant of the summary offenses
of reckless driving, driving while operating privilege is suspended or
revoked—DUI, and failure to stop at a red signal. Appellant filed a motion
for judgment of acquittal on February 10, 2014, which the court denied on
February 12, 2014. The court sentenced Appellant on March 6, 2014, to
sixty (60) days’ to twelve (12) months’ imprisonment for fleeing or
attempting to elude a police officer, plus a consecutive ninety (90) days’
imprisonment for driving while operating privilege is suspended, followed by
twelve (12) months’ probation for REAP.
Appellant timely filed a post-sentence motion on Monday, March 17,
2014, which was denied by operation of law on August 15, 2014. Appellant
timely filed a notice of appeal on September 12, 2014. The court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises the following issues for our review:
WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS
INSUFFICIENT TO SUPPORT THE JURY AND TRIAL
COURT’S FINDING THAT APPELLANT WAS THE ACCUSED,
THE DRIVER OF THE PURSUED VEHICLE.
WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS
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INSUFFICIENT TO SUPPORT THE JURY AND TRIAL
COURT’S FINDING THAT THE UNNAMED VICTIM WAS
PLACED [IN] ACTUAL DANGER OF DEATH OR SERIOUS
BODILY INJURY.
WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
DISCRETION IN FINDING THAT THE VERDICTS WERE NOT
AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED AT
TRIAL.
(Appellant’s Brief at 4).
In issues one and two combined, Appellant argues there was
insufficient evidence to sustain his bench and jury trial convictions.
Appellant contends the Commonwealth failed to prove beyond a reasonable
doubt that Appellant was the driver of the pursued vehicle and that Ms.
Kniess’ vehicle was the pursued vehicle. Appellant alleges the fact finders’
assumptions that the parked car was the pursued vehicle, that Appellant was
the man seen running from the parked car, and that Appellant had been
driving the parked car during the pursuit were all based solely on
circumstantial evidence. Appellant claims Lieutenant Hollobaugh was unable
to provide any details which would have positively identified the vehicle he
pursued, such as the license plate information or the make, model or color of
the pursued vehicle. Appellant also contends Lieutenant Hollobaugh’s
description of the man the Lieutenant saw running from the parked car was
insufficient because he saw the individual for only a brief second, at night,
from a block away.
Appellant also argues the Commonwealth failed to prove REAP beyond
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a reasonable doubt because the alleged victim was not in actual danger of
death or serious bodily injury from the pursued vehicle. Appellant claims
Lieutenant Hollobaugh’s testimony that Appellant nearly struck an oncoming
vehicle on a one-way street was the only evidence that Appellant allegedly
placed another individual in danger of death or serious bodily injury.
Appellant alleges the surrounding circumstances were not so inherently
dangerous to prove actual danger or to suggest that a risk was created when
Appellant allegedly drove recklessly down a one-way street. Appellant
maintains the Commonwealth’s evidence was insufficient to bear the burden
of proving every element of the charges against him beyond a reasonable
doubt. Appellant concludes this Court should reverse the judgment of
sentence. We disagree.
Initially, we observe:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted…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
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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.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).
Section 2705 of the Crimes Code provides:
§ 2705. Recklessly endangering another person
A person commits a misdemeanor of the second degree if
he recklessly engages in conduct which places or may
place another person in danger of death or serious bodily
injury.
18 Pa.C.S.A. § 2705.
Thus, [this] crime requires (1) a mens rea of recklessness,
(2) an actus reus some “conduct,” (3) causation “which
places,” and (4) the achievement of a particular result
“danger,” to another person, of death or serious bodily
injury.
Commonwealth v. Reynolds, 835 A.2d 720, 727 (Pa.Super. 2003)
(quoting Commonwealth v. Trowbridge, 395 A.2d 1337, 1340 (Pa.Super.
1978)). See Commonwealth v. Klein, 795 A.2d 424 (Pa.Super. 2002)
(indicating mens rea for REAP is conscious disregard of known risk of death
or great bodily harm to another person, and serious bodily injury is bodily
injury which creates substantial risk of death or causes serious, permanent
disfigurement or protracted loss or impairment of function of any bodily
member or organ). Significantly, REAP “is a crime of assault which requires
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the creation of danger” so “there must be an actual present ability to inflict
harm.” Reynolds, supra at 727-28 (quoting Commonwealth v. Rivera,
503 A.2d 11, 12 (Pa.Super. 1985) (en banc)) (internal quotation marks
omitted).
Instantly, the trial court concluded:
On January 29, 2014, [Appellant] was convicted by a jury
of [REAP], 18 Pa.C.S.A. § 2705, and fleeing/attempting to
elude police, 75 Pa.C.S.A § 3733(a). On the same date,
[the] [c]ourt found [Appellant] guilty of the summary
charges of reckless driving, driving under suspension, DUI
related, and failure to stop at a red signal. [Appellant]
contends that at trial, the Commonwealth’s witnesses
never identified the driver of vehicle being pursued as
[Appellant] and that the affiant, Lt. James Hollobaugh of
the Butler City Police Department, could not confirm the
color, make, model and license plate of the vehicle.
Lt. Hollobaugh testified at trial that on July 11, 2012, just
before 1:00 a.m., he was following a “smaller,
darker/black hatchback-type vehicle” occupied by the
driver only when he observed the vehicle proceed through
a steady red signal northbound on Main Street at the
intersection with Jefferson Street in the city of Butler. This
traffic violation led to a chase within an area comprised of
a few blocks.
Lt. Hollobaugh further testified that he turned on his
vehicle’s overhead lights and attempted to initiate a traffic
stop. The operator of the vehicle accelerated quickly
whereupon the Lt. activated his vehicle’s siren. The
operator turned south onto McKean Street, which is a one-
way northbound street, one block east of Main Street. The
operator of the small dark vehicle nearly collided with a
northbound vehicle on McKean Street. Lt. Hollobaugh lost
sight of the vehicle briefly when he saw a tall, white man
wearing a dark tank top running and observed the vehicle
[the Lieutenant] was following parked in a private
driveway nearby. Lt. Hollobaugh parked his vehicle behind
the pursued vehicle and ran the plate through PennDOT.
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The tall, white man was detained by Patrolman Villotti less
than one block from the parked vehicle. Lt. Hollobaugh
testified that the person he observed running was the
same individual detained by Patrolman Villotti.
Patrolman Villotti testified at trial that he was responding
to Lt. Hollobaugh’s call for backup just after 1:00 a.m. and
as [Patrolman Villotti] was turning onto the 200 block of
East Brady Street, he observed a male walking towards
him. At that moment, Lt. Hollobaugh radioed to stop the
male walking down East Brady Street. Patrolman Villotti
detained the tall, white man wearing a dark tank top who
was identified as [Appellant]. The car keys found on
[Appellant’s] person belonged to the small, dark hatchback
parked in the private driveway. The patrolman testified
that there were no other people in that area at that time.
At trial, the Commonwealth introduced the dashboard
camera video recording of the pursuit in question from Lt.
Hollobaugh’s patrol vehicle, Commonwealth’s Exhibit “3”.
It was admitted without objection and viewed by the jury.
The Commonwealth also introduced Commonwealth’s
Exhibit “4” and “5”. Exhibit “4” is a map of downtown
Butler and Exhibit “5” is the same map with arrow
markings to show the route of the pursuit. Both were
admitted without objection. The maps clearly point out the
short distance traveled during the pursuit as well as
[Appellant’s] proximity to the parked car pursued during
the chase. Additionally, the events of this incident
occurred within a very short period of time. From the
moment Lt. Hollobaugh first observed the small dark
hatchback vehicle on Main Street to the time at which
[Appellant] was detained was a matter of minutes.
[The] [c]ourt concurs with the jury verdicts that each
material element of the crimes charged and the
commission thereof by [Appellant] was proven beyond a
reasonable doubt. The direct evidence provided by the
officers’ eyewitness accounts, as well as the circumstantial
evidence of the exhibits links [Appellant] to the crime[s]
beyond a reasonable doubt. [The] [c]ourt believes that
the jury could determine the presence of that quantum of
evidence necessary to establish the elements of the
crimes. Further, the trial court may not change a verdict
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based upon a redetermination of credibility or a
reevaluation of the evidence. [The] [c]ourt also found that
the evidence presented at trial, as it relates to the
summary offenses, proved those offenses beyond a
reasonable doubt.
(Trial Court Opinion, filed December 3, 2014, at 3-4) (internal citations and
quotation marks omitted). The record supports the trial court’s conclusions.
Moreover, Appellant’s conduct placed another individual in actual danger of
death or serious bodily injury when Appellant recklessly turned onto a one-
way street in the wrong direction, causing him almost to hit another vehicle
headed in the opposite direction. See Reynolds, supra. Thus, there was
sufficient evidence to support the finding that Appellant was the driver of the
pursued vehicle and that he put another in danger of death or serious bodily
injury when Appellant drove the wrong way on a one-way street and almost
hit the oncoming vehicle. See Hansley, supra. Accordingly, Appellant’s
sufficiency of the evidence issues merit no relief.
In his final issue, Appellant argues his verdicts were against the weight
of the evidence. Appellant claims his presumption of innocence was
discarded in favor of Lieutenant Hollobaugh’s insufficiently corroborated
testimony. Appellant contends Lieutenant Hollobaugh’s testimony lacked the
adequate indicia of reliability to be considered as more than mere conclusory
testimony. Appellant maintains there was no direct evidence or reliable
testimony that proved he was driving the pursued vehicle. Appellant
concludes this Court should reverse the judgment of sentence. We disagree.
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The following principles apply to our review of a weight of the evidence
claim:
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…verdict if it is so contrary to
the evidence as to shock one’s sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672-73 (1999). 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.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(most internal citations omitted).
Instantly, the court relied on its sufficiency analysis and determined:
[T]he fact finders’ guilty verdicts are not against the
weight of the evidence as the verdicts are not “so contrary
to the evidence as to shock one’s sense of justice.” It is
clear from the verdicts rendered that the fact finders found
the direct and circumstantial evidence presented at trial to
be credible and established the elements of the offenses
charged.
(Trial Court Opinion at 4). We accept the court’s conclusions. Therefore,
Appellant’s weight of the evidence issue merits no relief. Accordingly, we
affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2015
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