J-S46035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    LANCE LESTER HAWKES                        :
                                               :
                      Appellant                :   No. 98 MDA 2017

             Appeal from the Judgment of Sentence January 9, 2017
                 In the Court of Common Pleas of Adams County
              Criminal Division at No(s): CP-01-CR-0001330-2015


BEFORE:       BOWES, OLSON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED AUGUST 29, 2017

        Appellant Lance Lester Hawkes appeals the judgment of sentence

entered by the Court of Common Pleas of Adams County after the trial court

convicted Appellant of Aggravated Assault.          Appellant raises challenges to

the sufficiency and weight of the evidence. We affirm.

        On March 3, 2010, at midnight, Officer Richard Henry Phillips

attempted to initiate a traffic stop of Appellant’s vehicle, which was traveling

eastbound on York Road. Officer Phillips activated the overhead lights of his

patrol car and began to follow Appellant’s vehicle. Appellant refused to pull

over, fled an excessive rate of speed (approximately 80 to 100 miles per

hour), and ran a red light at the Cross Keys intersection. Just three to four


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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seconds later, while pursuing Appellant through the intersection, Officer

Phillips’s patrol car collided with a tractor-trailer. As a result of the accident,

Officer Phillips sustained traumatic brain injury, broken facial bones, and a

broken leg.

      Appellant fled the scene of the accident and was able to avoid

apprehension for five years. On November 12, 2015, Appellant was charged

with aggravated assault of a police officer under 18 Pa.C.S.A. § 2702(a)(2).

Following a stipulated bench trial, Appellant was convicted of Aggravated

Assault on November 3, 2016. Appellant filed a post-trial motion, which was

subsequently denied.       The lower court sentenced Appellant to 5½ to 11

years’ incarceration on January 9, 2017. Appellant filed a timely notice of

appeal and complied with the lower court’s direction to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant raises two issues for our review on appeal:

      1. Whether there was sufficient evidence, as a matter of law, to
         support a verdict of guilty of the crime of aggravated assault?

      2. Whether the lower court abused its discretion when it denied
         Appellant’s motion for a new trial because the verdict was
         against the weight of the evidence?

Appellant’s Brief, at 4.

      In reviewing Appellant’s challenge to the sufficiency of the evidence

supporting his aggravated assault conviction, we are guided by the following

standard:




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          The standard of review for a challenge to the sufficiency of
          the evidence is to determine whether, when viewed in a light
          most favorable to the verdict winner, the evidence at trial and
          all reasonable inferences therefrom is sufficient for the trier of
          fact to find that each element of the crimes charged is
          established beyond a reasonable doubt. The Commonwealth
          may sustain its burden of proving every element beyond a
          reasonable doubt by means of wholly circumstantial evidence.

          The    facts   and    circumstances    established    by   the
          Commonwealth need not preclude every possibility of
          innocence. Any doubt raised as to the accused's guilt is to be
          resolved by the fact-finder. As an appellate court, we do not
          assess credibility nor do we assign weight to any of the
          testimony of record. Therefore, we will not disturb the verdict
          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.

Commonwealth v. Wanner, 158 A.3d 714, 717–18 (Pa.Super. 2017)

(quoting Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super.

2014)).

     Appellant was convicted of Aggravated Assault pursuant to Section

2702(a)(2) of the Crimes Code which provides that “[a] person is guilty of

aggravated assault if he … attempt[ed] to cause or intentionally, knowingly

or recklessly cause[d] serious bodily injury to any of the officers, agents,

employees or other persons enumerated in subsection (c) … while in the

performance of duty.”       18 Pa.C.S.A. § 2702(a)(2).        Police officers are

included in the category of individuals enumerated in Section 2702(c).

     Appellant specifically argues that there is insufficient evidence to show

that he acted with the requisite recklessness.      To sustain a conviction for

aggravated assault based on the theory of recklessness, the Commonwealth



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must prove a heightened mens rea and show the defendant’s recklessness

rose to the level of malice. Commonwealth v. Kling, 731 A.2d 145, 147

(Pa.Super. 1999).

      Malice exists where there is 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. Where malice is based on a
      reckless disregard of consequences, it is not sufficient to show
      mere recklessness; rather, it must be shown the defendant
      consciously disregarded an unjustified and extremely high risk
      that his actions might cause death or serious bodily injury. A
      defendant must display a conscious disregard for almost certain
      death or injury such that it is tantamount to an actual desire to
      injure or kill; at the very least, the conduct must be such that
      one could reasonably anticipate death or serious bodily injury
      would likely and logically result.

Id. at 147–48 (citations omitted).

      Although this Court has recognized that motor vehicle crashes seldom

warrant a conviction for aggravated assault due to the heightened mens rea

requirement, “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.” Commonwealth v. Kling, 731

A.2d 145, 149 (Pa.Super. 1999) (citing Commonwealth v. Comer, 552 Pa.

527, 716 A.2d 593 (1998)). See Commonwealth v. Riggs, 63 A.3d 780,

784–85 (Pa.Super. 2012) (finding this Court has not hesitated in upholding

an aggravated assault conviction for a motor vehicle crash when the

particular facts support a finding of malice).




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      In Riggs, this Court affirmed the appellant’s aggravated assault

conviction, when the defendant ran a red light, traveled at a high rate of

speed through an intersection without applying his brakes, collided with

another vehicle, and fled from the scene of the accident. This Court found

these circumstances, along with the fact that Appellant had been previously

involved in three high-speed chases with police, supported the finding of

sustained recklessness.    Id. at 785.     In Kling, this Court upheld the

appellant’s conviction for aggravated assault as the appellant caused a fatal

accident when racing on a curvy mountain road at speeds in excess of eighty

m.p.h.   The record showed that just moments before the crash, the

appellant nearly hit a minivan traveling in the opposite direction, but

continued his reckless conduct and disregarded the risk that his conduct

could result in serious disaster. Thereafter, the appellant sped into a double

blind curve, where he crossed the center line, killing an oncoming driver and

seriously injuring her ten-year-old son.     As result, this Court found the

appellant exhibited sustained recklessness as he “had adequate time to

calculate and reflect upon the consequences of his reckless conduct, thus

rendering the choice to continue it malicious.” Kling, 731 A.2d at 150.

      In the case sub judice, we find sufficient evidence to demonstrate that

Appellant acted with sustained recklessness in the face of an obvious risk of

harm to Officer Phillips and the public at large.    Although Officer Phillips

attempted to pull over Appellant’s vehicle for a traffic stop and activated the

overhead lights of his patrol car, Appellant disregarded the officer’s request

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and initiated a high-speed chase in which Appellant reached speeds between

80 and 100 m.p.h. Appellant continued at this high rate of speed through

the red light at an intersection in an attempt to avoid apprehension. Officer

Phillips, in pursuit of Appellant, passed through the intersection just seconds

later, and was hit by a tractor-trailer.         As this evidence shows Appellant

blatantly disregarded the risk that his conduct could cause death or serious

bodily injury to another person, we conclude there is sufficient evidence to

support Appellant’s aggravated assault conviction.1

       Appellant also raises a challenge to the weight of the evidence

supporting his aggravated assault conviction.         In reviewing a challenge to

the weight of the evidence, our standard of review is as follows:

       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 lower court's verdict if it is so
       contrary to the evidence as to shock one's sense of justice.
       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.
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1
  Although Appellant asserts in his appellate brief that the Commonwealth
failed to prove that his conduct caused the serious bodily injury to Officer
Phillips, Appellant does not cite any authority or develop any analysis to
support a challenge to the causation element. Thus, this issue is waived.
See Commonwealth v. Woodard, 129 A.3d 480, 509 (Pa. 2015) (holding
that “[w]here an appellate brief fails to ... develop an issue in any other
meaningful fashion capable of review, that claim is waived. It is not the
obligation of an appellate court to formulate appellant's arguments for him”).



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Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003). “A trial court's denial of a weight claim is the least assailable of its

rulings. Conflicts in the evidence and contradictions in the testimony of any

witnesses are for the fact finder to resolve.” Commonwealth v. Lofton, 57

A.3d 1270, 1273 (Pa.Super. 2012), appeal denied, 620 Pa. 721, 69 A.3d 601

(2013) (internal citations omitted).

      Appellant argues that the trial court erred in making certain factual

determinations.   First, although the driver of the tractor-trailer told police

that Appellant ran a red light, Appellant argues that another eyewitness told

officers Appellant had a green light when he passed through the intersection.

Second, Appellant objects to the trial court’s characterization of the

intersection as “busy” when the crash occurred at midnight. Third, Appellant

argues that the trial court erred in finding that he was traveling 80 and 100

m.p.h. when one of the witnesses “correctly predicted” Appellant was driving

between 80 and 90 m.p.h.

      Appellant’s challenge to the weight of the evidence is meritless as “a

new trial should not be granted because of a mere conflict in the testimony

or because the judge on the same facts would have arrived at a different

conclusion.” Commonwealth v. Widmer, 560 Pa. 308, 319–20, 744 A.2d

745, 752 (2000) (citation omitted).      We will not disturb the trial court’s

credibility determinations as factfinder and discern no abuse of discretion by

the trial court in concluding that the verdict was not against the weight of

the evidence.

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     For the foregoing reasons, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

     Bowes, J. join the memorandum.

     Olson, J. Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2017




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