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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRAHEEM M. HERBERT,
Appellant No. 2663 EDA 2015
Appeal from the Judgment of Sentence Entered August 20, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006142-2014
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 20, 2016
Appellant, Braheem M. Herbert, appeals from the judgment of
sentence of 10 to 20 years’ incarceration, imposed after he was convicted of
one count each of aggravated assault,1 fleeing or attempting to elude a
police officer,2 simple assault,3 recklessly endangering another person
(REAP),4 and the possession of a controlled substance.5 Appellant
____________________________________________
1
18 Pa.C.S. § 2702(a).
2
75 Pa.C.S. § 3733(a).
3
18 Pa.C.S. § 2701(a).
4
18 Pa.C.S. § 2705.
5
35 P.S. § 780-113(a)(16).
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challenges the sufficiency of the evidence to sustain his convictions. After
careful review, we affirm.
Appellant’s convictions stem from an incident on March 29, 2014,
where Appellant fled from police while operating a vehicle and ultimately
crashed the vehicle, which resulted in injuries to the passenger. Appellant
was arrested and found guilty of the above-stated charges at a non-jury trial
held on June 18, 2015. On August 20, 2015, the trial court sentenced
Appellant to 10 to 20 years’ incarceration. Following his sentencing,
Appellant timely filed a notice of appeal.
On September 1, 2015, the court issued an order in conformance with
Pa.R.A.P. 1925(b)(3), directing Appellant to file a concise statement of
errors complained of on appeal within 21 days of the date of the order.6
Thus, the deadline to file a Rule 1925(b) statement was September 22,
2015. Appellant’s concise statement of errors was clearly untimely, as it
was not filed until October 1, 2015. However, we have previously
____________________________________________
6
The order also informed Appellant that:
Failure to comply with this directive may be deemed as a waiver
of all issues for appellate review. See Commonwealth v.
Lemon, 804 A.2d 34, 36-37 (Pa. Super. 2002) (finding that
defendant’s sufficiency of the evidence was waived where the
1925(b) statement merely stated that the “verdict was against
the weight of the evidence” because the statement was too
vague and “the functional equivalent of filing no [c]oncise
statement at all”).
Pa.R.A.P. 1925(b)(3) Order, 9/1/15.
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determined that when an untimely Rule 1925(b) statement is filed “and the
trial court has addressed those issues[,] we need not remand and may
address the merits of the issues presented.” Commonwealth v.
Thompson, 39 A.3d 335 (Pa. Super. 2012). Accordingly, to the extent that
Appellant’s issues have been addressed by the trial court in its 1925(a)
opinion, we will overlook the untimeliness of Appellant’s concise statement
and address the merits of the issues contained therein.
Appellant presents the following two issues for our review:
1. Should the conviction for aggravated assault be reversed
because the Commonwealth offered insufficient evidence of
malice?
2. Should the convictions for simple assault, recklessly
endangering another person and fleeing or attempting to
elude a police officer be discharged on grounds of insufficient
evidence?
Appellant’s Brief at 4.
Before addressing Appellant’s sufficiency claims, we review the facts of
the incident which led to Appellant’s convictions, as summarized by the trial
court in the following portion of its Rule 1925(a) opinion:
On March 29, 2014, Pennsylvania State Trooper Edmond
Homa was traveling eastbound on the Schuylkill Expressway
when he observed a GMC Suburban swerving in and out of its
lane of travel, which was in violation of Section 3309 of the
Pennsylvania [M]otor [V]ehicle [C]ode. The vehicle also had an
inoperable left brake light in violation of Section 4303[(b)] of the
Code. Given these violations and his concern that the driver
might be driving under the influence, Trooper Homa activated his
lights and sirens in order to initiate a stop of the vehicle.
The speed limit for the Schuylkill Expressway is 50 miles
per hour. At the time he activated his lights and sirens, Trooper
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Homa was traveling about 60 miles per hour. In response to the
trooper’s activation of his lights and sirens, [Appellant] initially
slowed down but then accelerated quickly. [Appellant] also
drove past a wide left shoulder area where he could have safely
stopped. During the pursuit, [Appellant’s] vehicle was traveling
up to 80 miles per hour as well as swerving in and out of its lane
of travel. He also nearly “took out” a few vehicles that were
traveling in the same direction and forced those vehicles out of
their lane or to brake. As [Appellant’s] vehicle approached an
overpass, it abruptly exited onto the Roberts Avenue exit. As it
swerved onto the exit, the vehicle rolled over several times.
During the roll over, [Appellant] was ejected from the driver’s
side window of the vehicle. Tyrese McDaniels [(McDaniels)], a
passenger in the vehicle, was also ejected from the vehicle and
ultimately pinned underneath the vehicle, which came to rest
upside down.
Trooper Homa and several other people were able to lift
the vehicle off of McDaniels. At this time, McDaniels was
unconscious, bleeding from the head, and suffering from multiple
abrasions to his head. He was admitted to the hospital where it
was determined that he had suffered multiple fractures to his
right rib and a crushed collarbone. McDaniels was not wearing a
seat belt at the time of the crash.
Trial Court Opinion (TCO), 10/29/15, at 1-2 (citations to record omitted).
Appellant first argues that the evidence presented at trial was
insufficient to sustain his conviction of aggravated assault. Specifically,
Appellant argues that the Commonwealth failed to establish the requisite
malice to uphold an aggravated assault conviction. Appellant’s Brief at 12,
17.
To begin, we note our standard of review:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
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finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted).
It is well-settled that:
A person may be convicted of [a]ggravated [a]ssault graded as a
first degree felony if he “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).
Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013).
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. The malice that is required for
aggravated assault is the same as that required for third degree
murder. Malice consists of a “wickedness of disposition,
hardness or heart, cruelty, recklessness of consequences, and a
mind regardless of social duty, although a particular person may
not be intended to be injured.” Commonwealth v. Pigg, 391
Pa. Super. 418, 571 A.2d 438, 441 (1990), citing
Commonwealth v. Drum, 58 Pa. 9, 15 (1868). Motor vehicle
crashes seldom result in an aggravated assault conviction
because of this 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.
Commonwealth v. Miller, 955 A.2d 419, 422 (Pa. Super. 2008) (citations
omitted).
Appellant avers that his conviction of aggravated assault should be
reversed due to the Commonwealth’s failure to prove beyond a reasonable
doubt that he acted with malice. Appellant’s Brief at 12. Appellant
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acknowledges that he “drove at a high rate of speed” and that “after the
trooper began his pursuit, [he] drove faster.” Id. at 18. However,
Appellant avers that his act of speeding and swerving the vehicle amount to
no more than recklessly endangering another person. Id. at 19. We
disagree with Appellant’s conclusion.
In Miller, we dealt solely with the issue of whether the evidence
presented was sufficient to establish that the appellant acted with the
necessary mens rea to be convicted of aggravated assault. Miller, 955 A.2d
at 422. Similar to the facts in the present case, in Miller, an officer
witnessed the appellant speeding and driving erratically and signaled for him
to pull over. The appellant eventually stopped, but when the officer pulled
up next to him, “he ‘gunned’ the engine of his vehicle and fled the scene at a
high rate of speed.” Id. at 420. The appellant continued traveling at
approximately 60 to 70 miles per hour, fishtailing around corners, and
eventually speeding through a red traffic light and colliding with two other
vehicles. Id. at 421.
As part of our analysis in Miller, we noted that, “[o]ur [S]upreme
[C]ourt has … recently indicated that a conviction based on malice is
appropriate where there is evidence of ‘sustained recklessness by a driver in
the face of an obvious risk of harm to his victims.’” Miller, 955 A.2d at 422
(quoting Commonwealth v. Kling, 731 A.2d 145, 149 (Pa. Super. 1999)
(emphasis added by Kling)). In Miller, we concluded that “there was a
sustained pattern of reckless driving on numerous city streets for an
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extended period of time.” Id. at 423. We also stated that the appellant’s
blatant disregard of the officer’s request to pull over and stop prior to the
crash supported a finding of malice. Id. Additionally, we noted 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 stop.” Id.
Thus, “[w]e must look at the cumulative facts of appellant’s combined
actions in addressing the sufficiency of evidence for an aggravated assault
conviction.” Id.
In the instant case, the evidence thoroughly analyzed by the trial court
as summarized in its opinion, clearly supports the court’s finding of
aggravated assault and the required mens rea:
[Appellant] was aware that Trooper Homa was attempting
to stop him by the fact that he initially slowed down his vehicle.
[Appellant’s] sudden and aggressive acceleration to up to 80
miles per hour—more than 30 miles per hour over the posted
speed limit—indicates his deliberate intent to attempt to get
away from Trooper Homa regardless of the risk to his passenger
who was seated next to him. [Appellant’s] initial slowing down
and then sudden acceleration of the vehicle confirms that
[Appellant] had ample time to calculate the risk of driving at an
excessively high rate of speed on a crowded highway. Additional
evidence of [Appellant’s] mens rea is that his vehicle swerved in
and out of his lane and that he made a sudden exit off of the
highway at an excessively high rate of speed. All of [Appellant’s]
actions occurred on a busy highway with several other vehicles
in nearby traffic lanes. Last, the trial court recalls that
[Appellant] may have applied the brakes during the initial
portion of the video, but does not recall any effort by [Appellant]
to slow down immediately before the crash.
The aggregate of these circumstances is proof that
[Appellant] was aware that his reckless conduct was nearly
certain to result in a serious or fatal vehicle accident. By
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disregarding the opportunity to safely pull over on a wide left
shoulder area of the highway, aggressively accelerating to an
excessively high rate of speed, fishtailing out of control on a
highway with several other vehicles (requiring those vehicles to
brake or swerve to avoid contact), disregarding the state
trooper’s lights and sirens to stop, and then making a sharp turn
onto an exit, he consciously disregarded the substantial risk of
causing death or serious bodily injury to McDaniels, who was the
passenger in his vehicle. Indeed, the foreseeable consequences
of his actions resulted in McDaniels being ejected out of the
vehicle and ultimately pinned underneath the vehicle, which had
rolled upside down. [Appellant’s] “actions indicate the state of
mind of a person who cares not whether he maims or kills
another.” Miller, 955 A.2d at 423.
TCO at 4, 5. After careful review, we are likewise satisfied that the evidence
is sufficient to support a conviction of aggravated assault.
Appellant next challenges the sufficiency of the evidence to support his
convictions for simple assault, REAP, and fleeing or attempting to elude a
police officer. Appellant’s Brief at 4, 12. Preliminarily, we note that “issues
not raised in a Rule 1925(b) statement will be deemed waived for review.”
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011). See
also Pa.R.A.P. 1925(b)(4)(vii). As we explained in Hansley:
An appellant’s concise statement must properly specify the error
to be addressed on appeal. In other words, the Rule 1925(b)
statement must be specific enough for the trial court to identify
and address the issue an appellant wishes to raise on appeal. A
concise statement which is too vague to allow the court to
identify the issues raised on appeal is the functional equivalent
of no concise statement at all. The court’s review and legal
analysis can be fatally impaired when the court has to guess at
the issues raised. Thus, if a concise statement is too vague, the
court may find waiver.
Id. at 415 (internal quotation marks, brackets, and citations omitted).
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Here, Appellant states his second issue in his brief as follows: “Should
the convictions for simple assault, [REAP] and fleeing or attempting to elude
a police officer be discharged on grounds of insufficient evidence?”
Appellant’s Brief at 4. However, in his Rule 1925(b) statement, Appellant
merely states the following regarding these convictions:
1. [Appellant] was convicted of aggravated assault, fleeing or
attempting to flee an officer, knowing and intentional
possession of a controlled substance, simple assault and
[REAP].
…
3. The accident followed a chase by a State trooper. The charge
of [REAP] relates to other motorists who were on the
highway. The charge of [REAP] does not relate to the injuries
sustained by the victim.
Appellant’s Pa.R.A.P. 1925(b) Statement, 10/1/15, at 1-2 (unpaginated).
Paragraph 1 consists only of a statement of fact that Appellant was
convicted of the above-stated offenses. Paragraph 3 references only the
REAP charge and fails to assert any sufficiency claim for any of the charges
listed in Appellant’s second claim on appeal. Thus, we are compelled to
conclude that Appellant’s challenge to the sufficiency of the evidence for his
remaining convictions has been waived. See Commonwealth v.
Reynolds, 835 A.2d 720, 732 (Pa. Super. 2003) (stating that the failure to
raise an issue in a court ordered Rule 1925(b) statement results in the
waiver of that issue on appeal).
Nevertheless, even if Appellant had properly preserved the remaining
sufficiency claims, we would conclude that his second issue is meritless. The
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offense of REAP is defined as follows: “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.
§ 2705.
It is well settled that REAP is a lesser included offense of
aggravated assault,
Once the prosecution has proved that an individual caused
or attempted to cause serious bodily injury under
circumstances manifesting an extreme indifference to
human life, it also has established that the same person
recklessly engaged in conduct that placed or may have
placed another person in danger of death or serious bodily
injury. Every element of reckless endangerment is
subsumed in the elements of aggravated assault.
Commonwealth v. McCalman, 795 A.2d 412, 417 (Pa. Super. 2002)
(quoting Commonwealth v. Dobbs, 682 A.2d 388, 391 (Pa. Super. 1996))
(emphasis in original omitted). Similarly, we have acknowledged that
“[n]umerous cases state that simple assault is a lesser included offense of
aggravated assault” and REAP. Commonwealth v. Ferrari, 593 A.2d 846,
849 (Pa. Super. 1991); Commonwealth v. Brunson, 938 A.2d 1057,
1061-62 (Pa. Super. 2007) (concluding “simple assault is a lesser included
offense of [REAP] since the elements of simple assault are necessarily
included in the offense of [REAP].”)
If each and every element of one offense is necessarily an
element of a greater offense, the former offense is a lesser
included offense of the latter. In order for one offense to be
considered a lesser included offense of another, therefore, the
commission of the greater offense must necessarily involve the
commission of the lesser.
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Ferrari, 593 A.2d at 848 (internal citations omitted). Accordingly, having
already determined that the evidence was sufficient to sustain a conviction
of aggravated assault, we also conclude the evidence supports Appellant’s
convictions of REAP and simple assault.
Finally, the offense of fleeing or attempting to elude a police officer
has been defined, in relevant part, as follows:
Any driver of a motor vehicle who willfully fails to bring his
vehicle to a stop, or who otherwise flees or attempts to elude a
pursuing police officer, when given a visual and audible signal to
bring the vehicle to a stop, commits an offense as graded in
subsection (a.2).
75 Pa.C.S. § 3733(a). Based on the evidence, the trial court reasonably
found Appellant guilty of this charge.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2016
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