J-A19033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RICHARD K. ROBINSON
Appellant No. 2785 EDA 2015
Appeal from the Judgment of Sentence August 24, 2015
in the Court of Common Pleas of Chester County Criminal Division
at No(s): CP-15-CR-0002459-2014
BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 21, 2017
Appellant, Richard K. Robinson, appeals from the judgment of
sentence entered in the Chester County Court of Common Pleas, following
his bench trial convictions of two counts of driving under the influence
(“DUI”),1 aggravated assault by vehicle while DUI,2 aggravated assault by
vehicle,3 simple assault,4 and vehicle turning left.5 Appellant challenges the
sufficiency of the evidence. We reverse and remand for resentencing.
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 3802(a)(1) and (b).
2
75 Pa.C.S. § 3735.1(a).
3
75 Pa.C.S. § 3732.1(a).
4
18 Pa.C.S. § 2701(a)(2).
5
75 Pa.C.S. § 3322.
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In its opinion, the trial court summarizes the relevant facts of this case
as follows:
On March 8, 2014 at approximately 3:30 p.m.,
[Appellant] was driving a pick-up truck eastbound on
Hannum Avenue in West Chester, Chester County,
Pennsylvania, which has one lane in each direction. His
car was stopped near the Luk Oil gas station, waiting for
cars travelling in the opposite direction to pass so that he
could turn left into the gas station. After the cars passed
and there were no other vehicles approaching him, he
turned left into the gas station and collided with Luke
Scott, who was traveling westbound on Hannum Avenue
on a bicycle. Mr. Scott suffered numerous injuries as a
result of the accident including a fractured hip, left radius
fracture, right wrist fracture, and a fractured skull. He also
lost all hearing in his right ear.
Tanis Garber-Shaw testified at the trial. She was a
passenger in a van that was travelling eastbound on
Hannum Avenue. The van stopped behind [Appellant’s]
vehicle while [Appellant] waited to make a left-hand turn
into the gas station. She saw a person travelling the
opposite direction on a bicycle approach the gas station.
She assumed the truck would wait until the cyclist passed,
but it began pulling forward into the driveway. She said
“no,” because she could tell the cyclist would be hit. Her
husband, who was driving the van, said “not good.”
[Appellant’s] vehicle then proceeded to turn left and hit the
cyclist. The cyclist did not have time to react. The impact
occurred 1 ½ to 2 seconds after [Appellant] began his
turn. When [Appellant] began his turn, there were no cars
coming from the other direction, there were no hazards in
the roadway and visibility was clear. There was nothing
impeding [Appellant’s] view of Mr. Scott. Following the
accident, Ms. Garber-Shaw heard [Appellant] say “I don't
know what happened.”
Officer Aaron Davis of the Borough of West Chester
Police Department arrived at the scene of the accident.
When he approached [Appellant], he detected an odor of
alcoholic beverages emanating from [Appellant’s] mouth.
[Appellant] told him he had one vodka and iced tea
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approximately 2 hours before the accident. [Appellant]
also told him that he was travelling eastbound on
[Hannum] Avenue waiting to turn left when a vehicle
travelling westbound stopped and waved him on.
Officer Davis asked [Appellant] to perform field sobriety
tests . . . which he could not complete successfully. He
was placed under arrest for DUI and transported to the
hospital for a blood draw. The blood was then sent to the
lab for testing. The results of the test indicated that
[Appellant’s] blood alcohol content (hereinafter “BAC”) was
0.153%.
Trial Ct. Op., 11/2/15, at 2-3.
Following a bench trial, the trial court convicted Appellant on July 1,
2015, of two counts of DUI, aggravated assault by vehicle while DUI,
aggravated assault by vehicle, simple assault, and vehicle turning left. On
August 24, 2015, the court sentenced Appellant to an aggregate sentence of
eleven-and-one-half to twenty-three months’ imprisonment, followed by
eight years’ probation. Appellant timely filed a notice of appeal on
September 4, 2015. 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 issue for our review:
Whether the evidence adduced at trial was sufficient to
support a conviction on the charges of Aggravated Assault
by Vehicle While [DUI], Aggravated Assault by Vehicle, and
Simple Assault. Specifically, whether the evidence
adduced at trial was sufficient to establish the element of
criminal negligence for each of these offenses?
Appellant’s Brief at 4.
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Appellant argues the Commonwealth failed to present sufficient
evidence of criminal negligence to support his convictions of aggravated
assault by vehicle while DUI, aggravated assault by vehicle, and simple
assault. Appellant claims these offenses required that the Commonwealth
prove beyond a reasonable doubt that he caused the victim’s, Mr. Scott,
injuries with criminal negligence. Appellant alleges, however, that the
Commonwealth failed to establish that Appellant’s conduct constituted more
than ordinary civil negligence. Appellant contends Mr. Scott’s collision into
the passenger side of Appellant’s vehicle does not constitute a gross
deviation from the required standard of care for a driver under those
circumstances. Furthermore, Appellant maintains the Commonwealth also
failed to establish that any additional hazards, such as the conditions of the
road or the weather, existed on the day of the accident that would have
required Appellant to exercise extra caution. Appellant concludes this Court
should reverse these convictions. We agree.
Our review of sufficiency of the evidence is governed by the following
principles:
As this case involves a question of law, our scope of review
is plenary. Our standard of review is de novo.
* * *
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
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evidence believed by the fact-finder was sufficient to
support the verdict. [A]ll of the evidence and any
inferences drawn therefrom must be viewed in the light
most favorable to the Commonwealth as the verdict
winner.
* * *
In applying this standard, [the reviewing court must] bear
in mind that: the Commonwealth may sustain its burden
by means of wholly circumstantial evidence; the entire trial
record should be evaluated and all evidence received
considered, whether or not the trial court’s ruling thereon
were correct; and the trier of fact, while passing upon the
credibility of witnesses and the weight of the proof, is free
to believe all, part, or none of the evidence.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)
(quotation marks and citations omitted).
Appellant challenges the sufficiency of the evidence for aggravated
assault by vehicle while DUI, aggravated assault by vehicle, and simple
assault, which are defined, respectively, as follows:
§ 3735.1. Aggravated assault by vehicle while
driving under the influence
(a) Offense defined.―Any person who negligently
causes serious bodily injury to another person as the result
of a violation of section 3802 (relating to driving under the
influence of alcohol or controlled substance) and who is
convicted of violating section 3802 commits a felony of the
second degree when the violation is the cause of the
injury.
75 Pa.C.S. § 3735.1(a).
§ 3732.1. Aggravated assault by vehicle
(a) Offense.―Any person who recklessly or with gross
negligence causes serious bodily injury to another person
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while engaged in the violation of this Commonwealth of
Pennsylvania or municipal ordinance applying to the
operation or use of a vehicle or to the regulation of traffic,
except section 3802 (relating to driving under influence of
alcohol or controlled substance), is guilty of aggravated
assault by vehicle, a felony of the third degree when the
violation is the cause of the injury.
75 Pa.C.S. § 3732.1(a).
§ 2701. Simple assault
(a) Offense defined.―Except as provided under section
2702 (relating to aggravated assault), a person is guilty of
assault if he:
* * *
(2) negligently causes bodily injury to another with
a deadly weapon[.]
18 Pa.C.S. § 2701(a)(2).
All of these offenses contain the element of criminal negligence, which
is present where:
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. § 302(b)(4). When presented with a challenge to the sufficiency
of the evidence for criminal negligence, this Court has stated that we must
determine:
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whether [a]ppellant’s conduct amounted to a gross
deviation from the standard of care:
In determining whether a person’s actions constitute
criminal negligence one must obviously consider the
entire situation; and we hold that the determination
whether those actions qualify as a “gross deviation”
within the meaning of the statute, can depend upon
the nature of the standard applicable to a given
situation.
Commonwealth v. Kutzel, 64 A.3d 1114, 1119 (Pa. Super. 2013) (quoting
Commonwealth v. Lobiondo, 462 A.2d 662, 666 (Pa. 1983)). “While both
criminal negligence and recklessness involve ‘gross’ deviations from
reasonable conduct, recklessness includes conscious disregard of a risk
whereas criminal negligence is accompanied by lack of awareness of a risk.”
Commonwealth v. Heck, 491 A.2d 212, 216 (Pa. Super. 1985). “A
driver’s failure to act with reasonable care or attention in the circumstances
is nothing more than proof of his negligence as that term is used in the civil
law.” Id. at 216-17 (citation omitted).
In Heck, this Court held there was insufficient evidence to support the
appellant’s conviction for vehicular homicide after the appellant’s vehicle
struck and killed a motorcyclist traveling in the opposite direction while the
appellant was making a left-hand turn. Id. at 214-15. The accident
occurred during the morning when “[t]he sun was up and the weather [was]
clear and dry.” Id. at 215. While at an intersection, the appellant made a
left-hand turn when the right front fender of his vehicle collided with a
motorcycle traveling in the opposite direction. Id. Evidence introduced at
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trial indicated that, due to the configuration of the road, the appellant did
not see the motorcycle until it was too late, as the appellant’s car “did not
skid or slide before impact, nor did it speed up; it simply turned in front of
the cycle.” Id. at 217-18 (citation omitted). This Court concluded that,
although the appellant should have known he was violating Section 3322 of
the Motor Vehicle Code (vehicle turning left), there was insufficient evidence
to prove the appellant knew his turn would constitute a hazard “to establish
any degree of culpability higher than ordinary negligence.” Id. at 217. The
appellant’s failure to timely recognize the hazard, therefore, was not a
“‘gross’ deviation from a reasonable standard of care.” Id. at 218.
In contrast, in Commonwealth v. Eichler, 133 A.3d 775 (Pa. Super.
2016), the appellant was convicted of, inter alia, aggravated assault by
vehicle while DUI, and this Court determined there was sufficient evidence
for the conviction. Id. at 791 (citation omitted). In Eichler, the appellant
was operating his vehicle when he swerved off the road, struck the victim
who was in a motorized wheelchair, and left the scene. Id. at 789, 790. A
police sergeant went to the appellant’s home and observed damage to the
right front corner and passenger side door of the appellant’s vehicle. Id. at
790. Upon speaking to the appellant, the sergeant noticed he had bloodshot
eyes, was slurring his speech, and appeared to be highly intoxicated. Id.
The sergeant asked the appellant why he left the scene of the accident, and
the appellant responded that he had been drinking. Id. at 790-91. The
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appellant was arrested and taken to a hospital where his BAC was found to
be .30%. Id. at 791.
At trial, in Eichler, a Pennsylvania state trooper who had conducted
accident reconstruction testified that the accident had occurred at nighttime,
there were no adverse weather or road conditions at the time of the
collision, and that the roadway was dry. Id. at 788. The trooper
determined that based on the conditions and the appellant’s speed, a
“reasonably sober attentive driver would be able to ascertain that there was
a threat in his lane, regardless of what it was . . . and a sober, attentive
driver would have been able to, at least, slow to a reasonable speed and . . .
steer out around the wheelchair, if not stop altogether.” Id. at 789. Thus,
this Court concluded that there was sufficient evidence of criminal
negligence for the jury to have convicted the appellant of aggravated assault
by vehicle while DUI. Id. at 792.
Instantly, we are constrained to conclude that the facts of Appellant’s
case are more analogous to those in Heck than in Eichler. We acknowledge
that although Appellant’s accident occurred during the daytime with no
hazardous weather or road conditions, Appellant was clearly intoxicated.
When Officer Davis arrived on the scene he detected an odor of alcohol on
Appellant’s breath and he administered two field sobriety tests, both of
which Appellant failed. A blood test also revealed Appellant’s BAC to be
0.153%, an amount above the legal limit. Under these circumstances,
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Appellant should have known that his actions would constitute a hazard.
See Heck, 492 A.2d at 217. Nevertheless, considering the entire situation,
the evidence presented at trial was insufficient to prove Appellant knew that
making a left-hand turn while DUI presented a risk to Mr. Scott. See id. at
216. Thus, Appellant’s actions did not constitute a “gross deviation from the
standard of care that a reasonable person would observe in the actor’s
situation.” 18 Pa.C.S. § 302(b)(4). See Kutzel, 64 A.3d at 1119.
Moreover, none of the evidence presented at trial sufficiently proved
Appellant’s actions were “accompanied by [a] lack of awareness of a risk.”
See Heck, 492 A.2d at 216. Garber-Shaw testified that she and her
husband were in a freightliner van directly behind Appellant’s vehicle and,
therefore, could clearly see completely over Appellant’s vehicle at the traffic
coming in the opposite direction. N.T. Trial, 5/18/15, at 38-39. Garber-
Shaw further testified that Appellant’s vehicle waited until the traffic cleared
to make a left-hand turn into the gas station. Id. at 39. Unlike in Eichler,
the Commonwealth failed to present any evidence that Appellant was driving
poorly prior to the accident. Furthermore, the Commonwealth presented no
expert testimony that a reasonably sober and attentive driver would have
been able to appreciate the risk. See Eichler, 133 A.3d at 789. Therefore,
Appellant’s actions did not exhibit more than a mere failure “to act with
reasonable care or attention” for ordinary civil negligence. See Heck, 492
A.2d at 216-17. Accordingly, there was insufficient evidence to support
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Appellant’s convictions for aggravated assault by vehicle while DUI,
aggravated assault by vehicle,6 and simple assault. See 75 Pa.C.S. §§
3735.1(a), 3732.1(a); 18 Pa.C.S. § 2701(a)(2). We reverse Appellant’s
judgment of sentence for these offenses and remand for resentencing.7
Judgment of sentence reversed. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2017
6
We note that Appellant waived any challenge to the element of
“recklessness” in the offense of aggravated assault by vehicle for failing to
provide argument in his brief. See Pa.R.A.P. 2119(a). Nevertheless, even if
properly raised, our disposition precludes a finding of recklessness following
a determination of insufficient evidence of criminal negligence.
7
In reversing Appellant’s judgment of sentence for these offenses, we have
disturbed the court’s overall sentencing scheme. Therefore, we remand for
resentencing on the remaining convictions. See Commonwealth v.
Williams, 871 A.2d 254, 266 (Pa. Super. 2005) (citations omitted).
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