J-A02027-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GARY V. DAMARIO
Appellant No. 1101 MDA 2015
Appeal from the Judgment of Sentence May 27, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-SA-0000016-2015
BEFORE: PANELLA, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED APRIL 22, 2016
Appellant, Gary V. Damario, appeals from the judgment of sentence
entered May 27, 2015, in the Court of Common Pleas of York County. 1 On
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
On April 20, 2016, counsel for Damario, Kaitlyn S. Clarkson, Esquire, filed
a “Notice of Death,” informing this Court that Damario passed away on April
3, 2016. The Notice is more properly titled, “Suggestion of Death of
Appellant.” See G. RONALD DARLINGTON, KEVIN J. MCKEON, DANIEL R. SCHUCKERS
& KRISTEN W. BROWN, PENNSYLVANIA APPELLATE PRACTICE § 502:2 (2015-2016).
See also Pa.R.A.P. 502. “[T]he death of an appellant pending appeal does
not moot the appeal.” Commonwealth v. Bizzaro, 535 A.2d 1130, 1132
(Pa. Super. 1987). We therefore proceed to dispose of this appeal on the
merits and affirm the judgment of sentence. See Commonwealth v.
Walker, 288 A.2d 741 (Pa. 1972) (affirming judgment of sentence where
appellant died during pendency of appeal).
J-A02027-16
appeal, Damario argues that his conviction of reckless driving2 was against
the sufficiency and weight of the evidence. No relief is due.
At approximately 3:15 p.m. on September 8, 2014, Scott Harper was
driving eastbound on West Market Street in the City of York when the door
to a car parked alongside the street abruptly opened. See N.T., Summary
Conviction Appeal Hearing, 5/27/15 at 4. When Harper swerved to avoid
hitting the car door, he observed that the man driving the car in the
adjacent lane darted forward and “started shaking his fists … and yelling.”
Id. at 5. The man, who Harper identified as Damario, then maneuvered his
vehicle into Harper’s lane and starting repeatedly “brake checking” so that
Harper had to activate his own brakes in order to avoid a collision. Id. at 5,
11. Although Harper moved his vehicle into another lane to avoid Damario,
Damario also switched lanes and again pulled in front of Harper’s vehicle.
See id. at 6.
When the vehicles eventually came to a stop at a red light Damario
put his car in reverse and began backing up towards Harper’s vehicle. See
id. Harper estimated that Damario’s vehicle came within approximately five
to ten feet from his. See id. When the very same thing happened at the
next red light, Harper was able to get a picture of the license plate on
Damario’s vehicle with his cell phone. See id. at 6-7. Damario thereafter
____________________________________________
2
75 Pa.C.S.A. § 3736.
-2-
J-A02027-16
sped off, squealing his tires. See id. at 7. Harper estimated that the entire
incident occurred over a span of five to seven blocks. See id. at 15.
Damario was cited for reckless driving. At a trial de novo held on May
27, 2015, the Commonwealth presented the testimony of Harper. Damario
testified in his own defense. At the close of the hearing, the trial court
credited Harper’s testimony and convicted Damario of reckless driving. This
timely appeal followed.
On appeal, Damario challenges both the sufficiency and weight of the
evidence in support of his conviction. We review a challenge to the
sufficiency of the evidence as follows.
The standard we apply when reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial 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
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. Furthermore, when reviewing a sufficiency claim, our
Court is required to give the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
-3-
J-A02027-16
However, the inferences must flow from facts and circumstances
proven in the record, and must be of such volume and quality as
to overcome the presumption of innocence and satisfy the jury
of an accused’s guilt beyond a reasonable doubt. The trier of fact
cannot base a conviction on conjecture and speculation and a
verdict which is premised on suspicion will fail even under the
limited scrutiny of appellate review.
Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)
(citations omitted).
Conversely, a challenge to the weight of the evidence “concedes that
the evidence is sufficient to sustain the verdict, but seeks a new trial on the
ground that the evidence was so one-sided or so weighted in favor of
acquittal that a guilty verdict shocks one’s sense of justice.”
Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014), appeal
denied, 99 A.3d 925 (Pa. 2014) (citation omitted). 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.” Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.
Super. 2004) (citations omitted), aff’d, 938 A.2d 198 (Pa. 2007).
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear
and see the evidence presented, an appellate court will
-4-
J-A02027-16
give the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial court's
determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
This does not mean that the exercise of discretion by the trial
court in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court's discretion, we have
explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for
the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason,
as opposed to prejudice, personal motivations, caprice or
arbitrary actions. Discretion is abused where the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where
the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill-will.
Orie, 88 A.3d at 1015-1016 (citation omitted).
The Vehicle Code defines the offense of reckless driving as “driv[ing]
any vehicle in willful or wanton disregard for the safety of persons or
property.” 75 Pa.C.S.A. § 3736. This Court has determined that
the mens rea necessary to support the offense of reckless
driving is a requirement that Appellant drove in such a manner
that there existed a substantial risk that injury would result from
his driving, i.e., a high probability that a motor vehicle accident
would result from driving in that manner, that he was aware of
that risk and yet continued to drive in such a manner, in
essence, callously disregarding the risk he was creating by his
own reckless driving.
Commonwealth v. Bullick, 830 A.2d 998, 1002 (Pa. Super 2003).
-5-
J-A02027-16
Appellant argues, relying on our decision in Commonwealth v.
Greenburg, 885 A.2d 1025 (Pa. Super. 2005), that the evidence was
insufficient to establish that his conduct was “willful or wanton.” Appellant’s
Brief at 17-18. In Greenburg, the appellant was driving 20 miles over the
speed limit and was therefore unable to properly negotiate a sharp turn in
the road. See 885 A.2d at 1026. Appellant spun across two lanes of travel
and crashed into an oncoming car. See id. Appellant was cited for reckless
driving and, following a de novo nonjury trial, was convicted and fined.
In discussing the reckless driving statute on direct appeal, this Court
noted that the statute requires “something more than ordinary negligence”
and that in order to prove that a driver was reckless, it must be shown that
his driving was “a gross departure from prudent driving standards.” Id. at
1027. Based on the facts of that case, we held that appellant’s conduct in
driving too fast for the road conditions did not arise to the level of
recklessness. See id. at 1028. The panel reasoned that because the
roadway was a four-lane highway in a suburban area, there was no
indication that appellant was traveling so fast as to create a high probability
that a motor vehicle accident would occur. See id. Correspondingly, the
panel determined that there was insufficient evidence of a “conscious
disregard for the danger being created.” Id. at 1030.
Damario argues that that facts of the instant case are similar in that
there is no evidence that he acted in conscious disregard for the danger his
conduct created. See Appellant’s Brief at 18. Damario asserts that he was
-6-
J-A02027-16
not speeding, and essentially argues that the five block distance over which
the incident occurred was such that he had no time to recognize the risk his
conduct might have created. See id. at 19.
Damario points to no case law or other support for his contention that
reckless driving must occur over a sufficient distance or time so that the
driver is able to appreciate the danger of his conduct. That is, of course,
because such a requirement does not exist. All that our case law requires is
that there is sufficient evidence of a conscious disregard for the danger
being created. In contrast to the facts presented in Greenberg, Damario
acted in willful or wanton disregard for the safety of persons or property in
repeatedly brake-checking his vehicle and then suddenly reversing his
vehicle towards the car behind him. Although Damario was not speeding, he
concedes in his brief that the traffic at the time and place in which the
incident occurred was “heavy.” Appellant’s Brief at 19.
Damario’s intentional conduct clearly evidenced a conscious disregard
for the danger of a collision he created not only with respect to Harper, the
direct object of his irrational ire, but also to those travelling the city roadway
around him. Viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, we find that the evidence was sufficient to
support Damario’s conviction of reckless driving.
We similarly find no merit to Damario’s claim that his conviction was
against the weight of the evidence. The figure of Justice is firmly rooted to
her pedestal in this case. Nothing about the verdict is contrary to the
-7-
J-A02027-16
evidence to shock one’s sense of justice. Damario’s argument amounts to
nothing more than an attack on the trial court’s decision to credit the
testimony of Harper over Damario’s own countervailing testimony. This we
cannot do. See Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 (Pa.
2007) (“The Superior Court cannot deem incredible that which the fact-
finder deemed worthy of belief.”). Thus, we agree that Damario’s weight of
the evidence claim is wholly frivolous.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/2016
-8-