J-A29014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAMON M. MORALES                           :
                                               :
                        Appellant              :   No. 3084 EDA 2017

              Appeal from the Judgment of Sentence July 25, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005264-2016


BEFORE:       OTT, J., DUBOW, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 26, 2019

        Ramon M. Morales appeals from the judgment of sentence imposed on

July 25, 2017, in the Court of Common Pleas of Philadelphia County, following

his conviction by jury on the charges of Accidents Involving Death or Personal

Injury    –   Leaving    the   Scene, Homicide     by Vehicle, and Involuntary

Manslaughter.1 Morales received an aggregate sentence of five to 17 years’

incarceration. In this timely appeal,2 Morales claims there was insufficient
____________________________________________


   Former Justice specially assigned to the Superior Court.

175 Pa.C.S. §§ 3742(a), 3732(a), and 18 Pa.C.S. § 2504(a), respectively.
The jury acquitted Morales of 3rd Degree Murder, 18 Pa.C.S. § 2502.

2 After being granted several extensions of time to file the Pa.R.A.P. 1925(b)
statement, counsel for Morales filed the document five days late. However,
the trial court addressed the merits of the issues in its Trial Court Opinion.
Accordingly, we may address the merits of the appeal. Commonwealth v.
Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en banc) ([I]f there has been
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evidence to support his convictions on Homicide by Vehicle and Involuntary

Manslaughter, and those convictions were also against the weight of the

evidence.3 After a thorough review of the submissions by the parties, relevant

law, and the certified record, we affirm.

       We rely upon the trial court’s extensive   factual   recitation   found   at

pages 4-14 of the January 30, 2018, Pa.R.A.P. 1925(a) opinion. However, for

context, we highlight the following facts.

       The victim, Thomas Dunbar, was killed in a hit and run incident on April

13, 2016, at the intersection of Aramingo and Lehigh Avenues in Philadelphia,

Pennsylvania. Dunbar was driving a Vespa scooter at the time of the incident.

He was stopped on Aramingo Avenue, waiting to make a right hand turn onto

Lehigh Avenue. His lights were on.

       Ramon Morales was driving a Pontiac Aztek when he attempted to make

a right hand turn from Aramingo Avenue onto Lehigh Avenue.               The front

passenger side bumper of the Aztek struck the scooter, knocking Dunbar to

the ground. Because of the positioning of the vehicles, no witness actually

saw the impact between the Aztek and the scooter, although witnesses

testified at trial they heard the impact between the Aztek and the scooter.


____________________________________________


an untimely filing [of a 1925(b) statement], this Court may decide the appeal
on the merits if the trial court had adequate opportunity to prepare an opinion
addressing the issues being raised on appeal.)

3Morales does not challenge his conviction on Accidents Involving Death or
Personal Injury.

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Dunbar became trapped under the Aztek as it continued through the turn onto

Lehigh Avenue. Dunbar was dragged under the vehicle for at least 239 feet.

      A number of witnesses attempted to catch Morales’ attention as he

dragged Dunbar.     Morales stopped his car, put it into reverse, dislodging

Dunbar and backing over him in the process. Morales then left the scene

travelling at approximately 40-50 miles per hour. One witness to the incident

followed Morales, finally confronting him. The witness told Morales he had to

return to the scene because he had hit someone. Morales replied he would

turn himself in the next day.

      The witness who followed Morales returned to the scene of the accident

and gave the police the license tag number of the Aztek. Police found the car

shortly thereafter and attempted to contact the people who lived at the

address where the car was parked and registered.         The police noticed the

curtains moving when they knocked on the door, but no one responded. The

police obtained an arrest warrant for Morales and served it the following day.

Morales’ suitcases were on his bed and packed when the police arrived. The

police later learned that Morales had asked someone to watch his dogs

because he was going to be away.

      Morales’ first claim is that there was insufficient evidence to support his

convictions   on   homicide     by   vehicle   and   involuntary   manslaughter.

Specifically, both crimes require a mens rea of recklessness or gross

negligence.   Morales argues the evidence produced at trial demonstrates




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nothing more than mere negligence. Accordingly, Morales contends Thomas

Dunbar’s death was a tragic accident, but was not criminal.

      In relevant part, the statute addressing homicide by vehicle states:

      (a) Offense.--Any person who recklessly or with gross
      negligence causes the death of another person while engaged in
      the violation of any law of this Commonwealth 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 homicide
      by vehicle, a felony of the third degree, when the violation is the
      cause of death.

75 Pa.C.S. § 3732(a).

      The statute addressing involuntary manslaughter states:

      (a) General rule.--A person is guilty of involuntary manslaughter
      when as a direct result of the doing of an unlawful act in a reckless
      or grossly negligent manner, or the doing of a lawful act in a
      reckless or grossly negligent manner, he causes the death of
      another person.

18 Pa.C.S. § 2504(a).


      The scope and standard of review for a challenge to the sufficiency of

the evidence is well-settled.

      “Whether sufficient evidence exists to support the verdict is a
      question of law; our standard of review is de novo and our scope
      of review is plenary.” Commonwealth v. Giron, 155 A.3d 635,
      638 (Pa. Super. 2017) (citation omitted). In assessing Appellant's
      sufficiency challenge, we must determine “whether viewing all the
      evidence admitted at trial in the light most favorable to the
      [Commonwealth], there is sufficient evidence to enable the fact–
      finder to find every element of the crime beyond a reasonable
      doubt.” Commonwealth v. Williams, 153 A.3d 372, 375 (Pa.
      Super. 2016) (citation omitted). “The evidence need not preclude
      every possibility of innocence and the fact-finder is free to believe


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     all, part, or none of the evidence presented.” Commonwealth v.
     Kennedy, 151 A.3d 1117, 1121 (Pa. Super. 2016) (citation
     omitted).

Commonwealth v. Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017).

     The trial court accurately analyzed Morales’ claims:

     18 Pa.C.S. § 2504(a) defines “Involuntary Manslaughter” as
     follows: “a person is guilty of involuntary manslaughter when as
     a direct result of the doing of an unlawful act in a reckless or
     grossly negligent manner, or the doing of a lawful act in a reckless
     or grossly negligent manner, he causes the death of another
     person.”

     “Recklessness and gross negligence are no longer treated as
     disparate mental states for the crimes charged; but, rather, gross
     negligence is encompassed by recklessness.” Com. v. Martinez,
     2017 WL 1163045, citing Com. v. Grimes, 842 A.2d 432, 434
     (Pa. Super. 2004) (citing Commonwealth v. Higgins, 575 Pa.
     395, 836 A.2d 862 (2003)). Section 302, which pertains to the
     “General requirements of culpability,” states that:

        []A person acts recklessly with respect to a material
        element of an offense when he consciously disregards 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, considering the nature and
        intent of the actor’s conduct and the circumstances known
        to him, its disregard involves a gross deviation from the
        standard of conduct that a reasonable person would
        observe in the actor’s situation.[]

     18 Pa.C.S.A. § 302(b)(3).

     To be convicted of ‘Homicide by Vehicle,’ the Defendant must be
     engaged in the violation of any law of this Commonwealth or
     municipal ordinance applying to the operation or use of a vehicle
     or the regulation of traffic when recklessly or with gross
     negligence causing the death of another. The Defendant in the
     instant matter was in violation of 75 Pa.C.S. § 3323(c) and 75
     Pa.C.S. § 3736(a) of the Pennsylvania Motor Vehicle Code.

     75 Pa.C.S. § 3323(c) states the following:

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        “The driver of a vehicle approaching a yield sign shall
        in obedience to the sign slow down to a speed
        reasonable for the existing conditions and, if
        required for safety to stop, shall stop before entering
        a crosswalk on the near side of the intersection or, if
        none, then at the point nearest the intersecting
        roadway where the driver has a view of approaching
        traffic on the intersecting roadway before entering.
        After slowing down or stopping, the driver shall yield
        the right-of-way to any vehicle in the intersection or
        approaching on another roadway so closely as to
        constitute a hazard during the time the driver is
        moving across or within the intersection of
        roadways. If a driver is involved in a collision with a
        vehicle in the intersection or junction of roadways
        after driving past a yield sign, the collision shall be
        deemed prima facie evidence of failure of the driver
        to yield the right-of-way.”

     75 Pa.C.S. § 3736(a) states the following:

        “Any person who drives any vehicle in willful or
        wanton disregard for the safety of persons or
        property is guilty of reckless driving.”

     The jury found that there was sufficient evidence to support the
     charge of ‘Homicide by Vehicle.’ Police Officer Hughes, from the
     Accident Investigation Division, testified that he is an expert in
     accident reconstruction and investigated the scene of this
     incident. He opined that the front-right bumper of the Defendant’s
     vehicle struck the decedent’s scooter from behind as the scooter
     was stopped at a yield sign. The impact ejected the decedent off
     of the scooter and under the Defendant’s vehicle. Thereafter, the
     Defendant continued driving with the decedent’s body lodged
     under his vehicle for two-hundred-and-thirty-nine (239) feet.
     Other witnesses testified that the Defendant continued driving
     with the decedent’s body lodged under his vehicle despite multiple
     horns blaring and witnesses screaming for the Defendant to stop.
     When the Defendant finally stopped his vehicle, it was only to
     reverse it to dislodge the decedent’s body and then proceed
     forward, crushing the decedent as he fled the scene. Dr. Brown
     testified that virtually all of the decedent’s ribs had been broken,
     which is indicative of being crushed. The broken ribs lacerated

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      the decedent’s liver and lungs, which would have resulted in his
      death. The skin on the decedent’s arm and hand was worn
      through to the bone as a result of being dragged such a distance.
      It strains credulity that one could find that the Defendant was
      unaware of the presence of the body of a five (5) foot, ten (10)
      inch man, weighing one-hundred-and eighty-eight (188) pounds,
      underneath his vehicle for two-hundred-and-thirty-nine (239)
      feet. Furthermore, the Defendant can no longer feign ignorance
      once he is approached by Efrain Diaz and told that he had hit
      someone, yet flees again. Such conduct by the Defendant was
      clearly a violation of both 75 Pa.C.S. § 3323(c) and 75 Pa.C.S. §
      3736(a) and constituted the mens rea of recklessness sufficient to
      sustain the conviction of ‘Homicide by Vehicle.’

      As to the conviction for ‘Involuntary Manslaughter,’ the same
      analysis applies. The defendant’s conduct was the direct cause of
      the decedent’s death and was most certainly reckless, showing a
      gross deviation from the standard of conduct that a reasonable
      person would observe in the actor’s situation.

Trial Court Opinion, 1/30/2018, at 16-18 (bold in original).

      Additionally, while arresting Morales the next day, officers observed, at

his residence, a suitcase, passport and a notation regarding a flight on JetBlue.

A friend testified that Morales asked her to take care of his dog as he was

going on a trip.   It is well-settled that “flight can constitute circumstantial

evidence of consciousness of guilt.” Commonwealth v. Housman, 986 A.2d

822, 931 (Pa. 2009) (distinguished on other grounds).

      In light of the foregoing, we agree with the trial court there was

sufficient evidence to prove beyond a reasonable doubt that Morales

possessed the requisite mens rea to have committed both involuntary

manslaughter and homicide by vehicle and that his actions constituted more

than mere negligence.




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      Morales’ next claim is that the guilty verdicts on the charges of

involuntary manslaughter and homicide by vehicle were against the weight of

the evidence. A challenge to the weight of the evidence must be raised either

orally, any time prior to sentencing; by written motion, prior to sentencing;

or in a post-sentence motion. See Pa.R.Crim.P. 607(A)(1)-(3). See also

Commonwealth v. Bryant, 57 A.3d 191, 196 (Pa. Super. 2012) (Failure to

challenge the weight of the evidence presented at trial in an oral or written

motion prior to sentencing or in a post-sentence motion will result in waiver

of the claim.). Morales did not abide by Rule 607; therefore, he has waived

this issue.

      Accordingly, Morales is not entitled to relief on this claim.

      Judgment of sentence affirmed.        Morales’ Application for Leave to

Present the within Post-Submission Argument is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/19




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