J-S31010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

KENNETH GAILYN HIXON, III,

                            Appellant                        No. 29 MDA 2015


            Appeal from the Judgment of Sentence August 5, 2014
                In the Court of Common Pleas of Perry County
             Criminal Division at No(s): CP-50-CR-0000410-2012


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                                     FILED JUNE 10, 2016

       Appellant, Kenneth Gailyn Hixon, III, appeals from the judgment of

sentence1 entered following his convictions of one count each of homicide by

vehicle, aggravated assault, aggravated assault by vehicle, involuntary

manslaughter,      three    counts     each    of   simple   assault   and   recklessly

endangering another person (“REAP”), and one count each of the summary


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Although Appellant purported to appeal from the December 18, 2014 order
denying his post-sentence motion by operation of law, the appeal properly
lies from the judgment of sentence entered on August 5, 2014. We have
corrected the caption accordingly. See Commonwealth v. Shamberger,
788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (explaining that in a
criminal action, appeal properly lies from the judgment of sentence made
final by the denial of post-sentence motions).
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offenses of disregarding traffic lane, driving at a safe speed, careless driving,

and reckless driving. We affirm.

      We summarize the tragic history of this case as follows. On November

11, 2011, Appellant was driving his 1999 Jeep Grand Cherokee on

Landisburg Road in Caroll Township, Pennsylvania, after imbibing alcohol.

Appellant failed to navigate a sharp curve in the road and traveled into the

opposing lane of traffic.     While in the opposite lane of traffic, Appellant

struck, head on, a Suzuki Sidekick being driven by Nathan Aaron Lukens.

Mr. Lukens had two passengers in his vehicle, i.e., his four-year-old son

Logan Lukens, and Logan’s mother, Brandy Mutzabaugh.                The accident

resulted in the death of Mr. Lukens.           Both Logan and Ms. Mutzabaugh

suffered injuries from the head-on collision.       On November 2, 2012, the

Commonwealth      filed   a   criminal   information   charging   Appellant   with

numerous crimes related to the accident.

      The case proceeded to a nonjury trial on February 11, 2014.              On

February 14, 2014, the trial court rendered its verdict finding Appellant

guilty of the crimes stated above.         The trial court initially scheduled a

sentencing hearing for April 4, 2014. However, on April 4, 2014, Appellant

argued in open court that various crimes should merge for sentencing

purposes. As a result, the trial court postponed sentencing and directed the

parties to file briefs on the matter. In addition to filing a brief as directed by

the trial court, Appellant filed a motion to vacate the judgment of guilt on


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May 12, 2014. On June 18, 2014, the trial court entered an order granting

Appellant’s motion to vacate the judgment of guilt with regard to the

convictions of aggravated assault and aggravated assault by vehicle.         On

June 30, 2014, the Commonwealth filed a motion to reconsider the order

vacating the judgment of guilt, which the trial court initially denied on July 7,

2014. On August 5, 2014, the trial court sentenced Appellant to serve an

aggregate term of incarceration of thirty-six to seventy-two months. Also on

August 5, 2014, in light of the Commonwealth’s motion to reconsider the

June 18, 2014 order vacating two convictions, the trial court entered an

order rescinding the order of June 18, 2014, and reinstating the original

verdict of February 14, 2014. Appellant filed a timely post-sentence motion

on August 12, 2014.       The trial court failed to act on Appellant’s post-

sentence motion, and an order was entered on December 18, 2014,

indicating that the motion was denied by operation of law. Appellant filed

this timely appeal on January 2, 2015.      Both Appellant and the trial court

have complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our consideration:

      1. Was insufficient evidence presented to establish the required
      mens rea of malice as required to sustain a conviction of
      aggravated assault, 18 Pa.C.S.A §2702?

      2. Was insufficient evidence presented to establish the required
      mens rea of recklessness or gross negligence as required to
      sustain a conviction of aggravated assault by vehicle, 75
      Pa.C.S.A §3732.1, homicide by vehicle, 75 Pa.C.S.A §3732,
      involuntary manslaughter, 18 Pa.C.S.A §2504, simple assault,


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      18 Pa.C.S.A §2701, recklessly endangering another person, 18
      Pa.C.S.A §2705 and reckless driving, 75 Pa.C.S.A §3736?

Appellant’s Brief at 4.

      Appellant’s issues each challenge the sufficiency of the evidence to

support his convictions.   We analyze such arguments under the following

parameters:

             Our standard when reviewing the sufficiency of the
      evidence is whether the evidence at trial, and all reasonable
      inferences derived therefrom, when viewed in the light most
      favorable to the Commonwealth as verdict-winner, are sufficient
      to establish all elements of the offense beyond a reasonable
      doubt.     We may not weigh the evidence or substitute our
      judgment for that of the fact-finder. Additionally, the evidence
      at trial need not preclude every possibility of innocence, and the
      fact-finder is free to resolve any doubts regarding a defendant’s
      guilt 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. When evaluating the credibility and
      weight of the evidence, the fact-finder is free to believe all, part
      or none of the evidence. For purposes of our review under these
      principles, we must review the entire record and consider all of
      the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super.

2006)).

      In his first argument, Appellant argues that there is insufficient

evidence of his mens rea to sustain his conviction of aggravated assault.

Appellant’s Brief at 9-14. Specifically, Appellant contends that there was no

evidence of malice required to support such a conviction.




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      Aggravated assault is defined in the crimes code, in relevant part, as

follows:

      § 2702. Aggravated assault.

      (a) Offense defined. —A person is guilty of aggravated assault
      if he:

            (1) 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. § 2702(a)(1).

      With regard to the Commonwealth’s burden of eliciting sufficient

evidence of a defendant’s mens rea to commit aggravated assault, we have

stated the following:

      When a victim actually sustains serious bodily injury, the
      Commonwealth can, but does not necessarily have to, establish
      specific intent to cause such harm.        As we noted in
      [Commonwealth v. Patrick, 933 A.2d 1043 (Pa. Super.
      2007)], the statute’s intent requirement can be met if the
      defendant acts recklessly under circumstances manifesting an
      extreme indifference to human life.

Commonwealth v. Burton, 2 A.3d 598, 602 (Pa. Super. 2010). Thus, our

inquiry is whether the evidence and all reasonable inferences derived

therefrom were sufficient to establish that Appellant acted “recklessly under

circumstances manifesting an extreme indifference to human life.” Burton,

2 A.3d at 602.

            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

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           element of aggravated assault. Malice consists of
           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.
           Motor vehicle crashes seldom result in an aggravated
           assault conviction because of the 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.

     This Court additionally concluded 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 flee.”

Commonwealth v. Riggs, 63 A.3d 780, 784-785 (Pa. Super. 2012)

(citations omitted) (emphases added).

     Moreover, this Court has summarized our Supreme Court’s precedents

on aggravated assault in motor vehicle crashes as follows:

           In [Commonwealth v. O’Hanlon, 653 A.2d 616 (Pa.
     1995)], a driver ran a red light and struck another vehicle,
     causing serious injury to another driver. Our Supreme Court
     reversed the appellant’s conviction for aggravated assault on the
     basis that he was guilty only of mere recklessness, stating that
     “serendipity, not intention, placed the victim in his path when he
     drove through the red light.” O’Hanlon, 653 A.2d at 618. More
     recently, in [Commonwealth v. Comer, 716 A.2d 593 (Pa.
     1998)], our Supreme Court reversed a conviction for aggravated
     assault where the appellant, who had ingested alcohol and
     barbiturates, drove his car at an excessive rate of speed. As he
     was driving, the right tire of the appellant’s car rubbed the curb,
     and then the vehicle left the highway, crashed into a bus stop,
     and eventually struck a brick wall. One person was killed and
     another was severely injured as a result of the appellant’s
     actions. Our Supreme Court held that the appellant’s conduct,
     while criminally reprehensible, was nonetheless insufficient to


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     establish the state of mind equivalent to that which seeks to
     cause injury.

           As we noted in [Commonwealth v. Kling, 731 A.2d 145,
     147 (Pa. Super. 1999)], however, in both O’Hanlon and
     Comer, our Supreme Court distinguished this Court’s holding in
     Commonwealth v. Scofield, 521 A.2d 40 (Pa. Super. 1987),
     appeal denied, 535 A.2d 82, wherein we upheld the appellant’s
     conviction for aggravated assault. In Scofield, the appellant
     was driving his car and scraped it against the bumper of another
     vehicle parked on the street.        Although sparks emanated,
     Scofield drove another ten feet, swerved onto the sidewalk and
     struck a building. A passing cabdriver, who realized Scofield had
     struck a pedestrian and trapped him under the fender of the
     vehicle, approached Scofield’s car and told him to turn off the
     car. The cabdriver even attempted to reach into the car and
     remove the keys. Scofield, however, became belligerent and
     assaulted the cabdriver. He then tried to put his car into
     reverse, but a flat tire prevented his flight. We concluded that
     Scofield’s behavior prior to and after the accident established his
     awareness of the risk of serious injury, and, therefore, we
     upheld his aggravated assault conviction.

           In distinguishing this Court’s holding in Scofield from the
     case in Comer, our Supreme Court opined that the
     “circumstances [in Scofield] demonstrated a higher degree of
     recklessness than those presented in [Comer],” noting that in
     Comer, the appellant “sped past another vehicle, his car rubbed
     the curb of the sidewalk and the accident ensued immediately
     thereafter.” Comer, 716 A.2d at 597. As we noted in Kling,
     “the cornerstone of this conclusion rested with the notion [that]
     Scofield considered, then disregarded, the threat to the life of
     the victim;” and, in Comer, our Supreme Court “indicated 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.” Kling, 731
     A.2d at 149 (emphasis original).

Commonwealth v. Allen, 833 A.2d 800, 803-804 (Pa. Super. 2003).

     Our review of the certified record, in the light most favorable to the

Commonwealth, reflects ample evidence of Appellant’s           mens rea of


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recklessness rising to the level of malice to support his conviction of

aggravated assault. At trial, the Commonwealth presented testimony from

Pennsylvania State Trooper Jeremy Baluh. N.T., 2/11/14, at 54-61. Trooper

Baluh testified that he spoke with Appellant in a hospital room after the

accident, and Appellant admitted to the officer that he had been at the White

Oaks Bar prior to the accident. Id. at 61. In addition, the Commonwealth

presented testimony from Cynthia Womer, an ambulance worker who

responded to the scene of the accident. Id. at 39-44. Ms. Womer stated

that Appellant admitted to her that he had consumed alcohol that evening,

but that Appellant did not know how much he had to drink. Id. at 42. The

Commonwealth also presented testimony from Trooper Jeffrey Vitek of the

Pennsylvania State Police, who responded to the accident.      Id. at 62-79,

124-128. Trooper Vitek testified that he interviewed Appellant outside of the

ambulance at the scene of the accident and that Appellant was incoherent

and had an odor of alcohol on his breath. Id. at 69, 71. Trooper Vitek also

stated that when he investigated the scene of the accident he saw a crushed

empty beer can immediately outside of the driver’s door of Appellant’s

vehicle and a cardboard case of beer with a few beers remaining in it on the

floorboard of the front passenger side of Appellant’s vehicle.    Id. at 70.

Trooper Vitek testified that it was his opinion, that on the night of the

accident, Appellant was impaired and incapable of safely driving his vehicle.

Id. at 125-126.


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      Further, the Commonwealth presented the testimony of Gary Schmahl.

Id. at 28-38. Mr. Schmahl indicated that he happened to be driving behind

Appellant prior to the accident. Id. at 29-40. Mr. Schmahl testified that he

was following Appellant just before the accident and that, even though there

is a traffic warning sign urging drivers to slow down approaching the curve in

the road, he did not see Appellant apply his brakes prior to approaching the

curve where the accident occurred.      Id. at 33.    The Commonwealth also

presented the testimony of Corporal Andrew Thierwechter, an expert with

the Pennsylvania State Police Collision Analysis and Reconstruction Specialist

Unit, regarding his analysis of the accident scene. Id. at 79-114. Corporal

Thierwechter explained that the weather on the night of the accident was

cold but dry, and there were no adverse weather conditions.          Id. at 98.

Corporal Thierwechter stated that upon initial investigation of the scene he

observed a crushed empty “Miller High Life” beer can on the ground outside

of Appellant’s vehicle.   Id. at 89. He further testified that he later saw a

“Miller High Life” thirty-pack case in the front passenger area of Appellant’s

vehicle that contained only four full beer cans.     Id.   In addition, Corporal

Thierwechter observed an empty uncrushed beer can in the foot-well of the

vehicle. Id. He stated that the beer cans and the case were all stamped

with the same expiration date. Id.

      Regarding the accident, Corporal Thierwechter opined that Appellant

had been traveling between forty-nine and fifty-four miles per hour at the


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time of impact. Id. at 103. He also stated that there is a warning sign with

a suggested speed limit of thirty miles per hour through the curved area of

the roadway where the accident occurred. Id. at 99. Corporal Thierwechter

also opined that the maximum speed at which the curve could be navigated

was no more than forty-three miles per hour. Id. at 94. He stated that his

calculations indicated that the other vehicle involved in the accident was

traveling eight to sixteen miles per hour at the time of impact, and there

were no skid marks from the other vehicle. Id. at 102, 110.

      This evidence establishes that Appellant was driving while impaired

from alcohol, exceeded the posted speed limit as well as the posted reduced

advisory speed limit, failed to apply his brakes in approaching a dangerous

curve in the roadway or at any time prior to the accident, passed into the

opposing lane of traffic, and struck another vehicle in a head-on collision

causing death to the driver and serious bodily injury to the passengers.

Hence, the Commonwealth sustained its burden of proof of Appellant’s mens

rea of sustained recklessness rising to the level of malice necessary for a

conviction of aggravated assault. Thus, Appellant’s contrary claim fails.

      In his second issue, Appellant argues that the Commonwealth failed to

present sufficient evidence to support his convictions of aggravated assault

by vehicle, homicide by vehicle, involuntary manslaughter, simple assault,

REAP, and reckless driving. Appellant’s Brief at 14-19. Appellant contends

that each of these crimes requires that the Commonwealth prove Appellant


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acted with recklessness or gross negligence, and the Commonwealth failed

in presenting such evidence to support the convictions. We disagree.

      Aggravated assault by vehicle is defined in the Motor Vehicle Code as

follows:

      (a) Offense. — Any person who recklessly or with gross
      negligence causes serious bodily injury to 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 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 (emphasis added).

      Homicide by vehicle is defined in the Motor Vehicle Code as follows:

      (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 (emphasis added).

      The crime of involuntary manslaughter is defined in the Crimes Code

as follows:

      (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 (emphases added).


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      The crime of simple assault is defined, in pertinent part, as follows:

      (a) Offense defined. — [A] person is guilty of assault if he:

           (1)   attempts to cause or intentionally, knowingly or
      recklessly causes bodily injury to another[.]

18 Pa.C.S. § 2701(a)(1) (emphasis added).

      The crime of REAP is defined in the Crimes Code 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 (emphasis added).

      Finally, reckless driving is defined in the Motor Vehicle Code as follows:

      (a) General rule. — Any person who drives any vehicle in
      willful or wanton disregard for the safety of persons or
      property is guilty of reckless driving.

75 Pa.C.S. § 3736 (emphasis added). We have explained that the language

of “willful or wanton disregard for the safety of persons or property” is

synonymous with recklessness as it is defined in the Crimes Code, and as

the title “reckless driving” implies.    Commonwealth v. Bullick, 830 A.2d

998, 1002 (Pa. Super. 2003).       Thus, each of the aforementioned crimes

requires a proof of conduct that is reckless or grossly negligent. Appellant

specifically claims that the Commonwealth failed to establish that his

conduct was reckless or grossly negligent.

      We have reviewed the briefs of the parties, the relevant law, the

certified record before us on appeal, and the opinion of the trial court. The




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trial court addressed Appellant’s argument with the following apt analysis,

which we adopt as our own:

     [T]he Commonwealth may prove recklessness by circumstantial
     evidence; however, “the pieces of evidence must fit together so
     tightly as to establish guilt beyond a reasonable doubt.” See
     Com. v. Hogan, 468 A.2d 493, 496 (Pa. Super. Ct. 1983).
     While case law is clear that alcohol or drug impairment is not
     reckless, per se, it is relevant in determining whether Appellant’s
     recklessness was malicious. Id. This impairment, coupled with
     “tangible indicia” of unsafe driving, evidences a conscious
     disregard of the substantial risk of harm that make be caused to
     others on the roadway. Com. v. Jeter, 937 A.2d 466, 468 (Pa.
     Super. Ct. 2007).        This indicia includes failing to brake or
     refusing to slow down before a collision. Com. v. Dellavecchia,
     725 A.2d 186, 189 (Pa. Super. Ct. 1998).

            In this case, the Commonwealth first presented Gary
     Schmahl, who testified that on the night in question, [Appellant]
     turned in front of him onto Rte 850. He followed and noted that
     he saw no brake lights as [Appellant] crested the hill and turned
     the corner at Gibson’s Rock. Cynthia Womer, the EMT on the
     scene, testified that when she asked [Appellant] if he had
     consumed alcohol, he responded that he had and he did not
     know the exact amount he consumed. In addition, Trooper Vitek
     who was also present at the scene testified to smelling an odor
     of alcohol on [Appellant] and noted that [Appellant’s] responses
     were incoherent when he was questioned. The Trooper further
     testified that he found a case of beer in the vehicle with six cans
     remaining. Another officer, Trooper Baluh, was present at the
     hospital with [Appellant]. He testified that [Appellant] admitted
     during that conversation to having been at the White Oaks bar
     prior to the accident. Finally, Corporal Thierwechter testified as
     an expert witness regarding the accident reconstruction and
     analysis. He testified that [Appellant] must have been traveling
     at 49-54 mph around a curve that could only be traveled at 43
     mph in order to remain in the proper lane.                Corporal
     Thierwechter testified that in his opinion, the accident was a
     direct result of [Appellant’s] excessive speed.

           There is some case law which presents similar facts to the
     case at hand while also establishing negative authority on these
     issues. See Com. v. Hutchins, 42 A.3d 302 (Pa. Super. Ct.

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     2012); See Com. v. Bullick, 830 A.2d 998 (Pa. Super. Ct.
     2003).     However, upon careful review, these cases are
     distinguishable from nuances of this particular case.

            The [a]ppellant [in] Hutchins argued that insufficient
     evidence was presented to prove that the car accident was
     caused by [the a]ppellant’s impairment.        Id. at 307. The
     Trooper on the scene suspected [the a]ppellant was under the
     influence. Id. at 304. He then inquired whether he was under
     the influence to which [the a]ppellant confessed that he had
     smoked marijuana earlier in the day. Id. While the Court held
     that there was sufficient evidence to establish [the a]ppellant[’]s
     conviction of a DUI, it also ruled that there was insufficient
     evidence to establish a conviction for [REAP]. Id. at 312. In
     ruling, the Court stated that the Commonwealth was required to
     present evidence of recklessness in addition to [the a]ppellant’s
     intoxication. Id. It further noted, the only other relevant
     evidence presented in this matter is that an accident occurred.
     Id. There was no additional evidence of recklessness except
     [the a]ppellant’s own admission to having smoked marijuana
     earlier. Id.

            Although the facts are very similar, there was more
     testimony elicited in this case concerning [Appellant’s] actions
     than in Hutchins. In addition to Appellant’s own admission that
     he was at the White Oaks Bar immediately prior to this incident,
     the Commonwealth supplied testimony from multiple trained
     individuals stating that Appellant possessed several indications of
     intoxication. The Trooper further testified he also discovered a
     half-consumed case of beer in Appellant’s car.

           This evidence was bolstered by additional evidence of
     unsafe driving. An eye witness driving behind Appellant testified
     that Appellant was not adhering to the speed limit and the
     witness did not see any braking from Appellant’s car as it crested
     the hill immediately prior to the incident.          Finally, the
     Commonwealth’s expert witness concluded that Appellant’s
     excessive speed directly resulted in this accident occurring.
     These facts clearly present more evidence than what was offered
     in Hutchins.

           In Bullick, the Court also found there was insufficient
     evidence to support [the] defendant’s convictions. Bullick, at
     1003.    The Court acknowledged that while circumstantial

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     evidence can be sufficient, the Commonwealth’s evidence was
     limited to skid marks allegedly leading to a damaged vehicle and
     the assumption that [the a]ppellant was drinking before the
     accident. Id. The Court noted that no expert witness was
     produced and no eyewitnesses existed to corroborate the
     Commonwealth’s theory. Id. at 1004. It further observed that
     the Commonwealth failed to even establish an applicable speed
     limit on the road in question. Id. at 1005.

            Once again these facts are different than those presented
     in this case. As previously mentioned, an eye witness testified
     to Appellant’s speed and lack of braking immediately prior to the
     incident.   Several other individuals testified to the signs of
     Appellant’s apparent intoxication and alcohol was found in
     Appellant’s car. Moreover, the Commonwealth established the
     applicable speed limit as 45 mph, however it also presented
     evidence of an advisory sign recommending a speed limit of no
     more than 30 mph.          Following this, the expert witness
     established Appellant must have been going 49-54 mph, in
     order to cross the yellow line in such a way. The expert
     concluded that the collision was a direct result of Appellant’s
     excessive speed. Thus, the Commonwealth presented much
     further evidence supporting Appellant’s convictions than Bullick.

           In light of the evidence presented at trial, the [c]ourt
     found that Appellant’s actions evidenced a conscious disregard of
     the substantial and unjustified risk that he would be involved in
     a traffic accident causing death.        [Appellant’s] cumulative
     conduct was consciously reckless, and the evidence supports the
     [c]ourt’s finding that he possessed the requisite mens rea to
     commit these offenses. As such, the [c]ourt did not err in its
     ruling.

Trial Court Opinion, 9/25/15, at 2-5 (emphasis in original). On the basis of

the analysis stated above and our review of the certified record, we conclude

that Appellant’s claim that the Commonwealth failed to establish that his

conduct was reckless lacks merit.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2016




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                                                                            Circulated 05/25/2016 02:37 PM


                                           :IN THE COURT OF COMMON
COMMONWEALTH
                                           :PLEAS
                                           :OF THE 41sT JUDICIAL
                                           :DISTRICT
       v.                                  :OF PENNSYLVANIA -
                                           :PERRY COUNTY BRANCH
KENNETH GAILYN HIXON
                                           : CP-50-CR-0000410-2012


                          FINAL MEMORANDUM

       Kenneth Gailyn Hixon (hereinafter "Appellant") appeals from the
Order denying his Post Sentence Motion on December 18, 2014. Following a
Non-Jury trial on February 11, 2014, Appellant was found guilty of one (1)
count Aggravated Assault, a Felony of the First Degree, in violation of Title
18 § 2702(a)(l) and one (1) count Simple Assault, a Misdemeanor of the
Second Degree, in violation of Title 18 § 2701(a)(l). Appellant filed a Motion
to Vacate Judgment of Guilt on May 12, 2014. Following a. Hearing on June
18, 2014, the Court granted Appellant's Motion, vacating one (l) count
Aggravated Assault and one (I) count of Aggravated Assault by Vehicle. On
June 30, 2014, the Commonwealth filed a Motion to Reconsider Vacation of
Judgment, which the Court denied on ,July 7, 2014. However, on August 5,
2014, the Court reversed that decision, ruling that after review of the record
and relevant case law, the June 18, 2014, Order was rescinded and the verdict
of February 14, 2014, was reinstated. On .that same day, the Court sentenced
Appellant to a total sentence of minimum of thirty-six (36) months, maximum
seventy-two (72) months period of incarceration in a State Correctional
Institution, Appellant subsequently filed a Post Sentence Motion on August
12, 2014. This Motion was denied by operation of law on December 18, 2014.
Appellant filed an appeal with the Superior Court and by Order dated
,January 2, 2015, this Court directed that he file a Concise Statement of
Matters Complained of on Appeal. On February 12, 2015, Appellant filed his
Statement, alleging insufficient evidence was presented to establish Appellant
possessed a mens rea of malice, gross negligence or recklessness as required
by the offenses for which Appellant was found guilty.
                                     Al{GUMENT


         Appellant argues that the Commonwealth failed to provide sufficient
evidence to establishthat Appellant acted with the required mens rea for any
of the charges of which he was found guilty. More specifically, Appellant
asserts that the Commonwealth failed to prove that be exhibited malice as
required by Aggravated assault, 18 Pa.C.S. § 2702. Moreover, Appellant             '
                                                                                   I
suggests that insufficient evidence was presented to prove he acted recklessly
or with gross negligence as required by Aggravated Assault by vehicle, 75
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Pa.C.S. § 3732.1, Homicide by Vehicle, 75 Pa.C.S. § 3732, Involuntary
Manslaughter, 18 Pa.C.S. § 2504, Simple Assault, 18 Pa.C.S. § 2701,
Recklessly Endangering Another Person, 18 Pa.C.S. § 2705, and Reckless
Driving, 75 Pa.C.S. § 3736i
         A person is guilty of aggravated assault if he causes serious bodily
injury    intentionally, knowingly     or   recklessly under     circumstances
manifesting extreme indifference to the value of human life. 18 Pa.C.S. §
2702. To prevail on a theory of recklessness, the Commonwealth must prove
Appellant's recklessness rose to the level of malice. Com. v. Miller, 955 A.2d
419, 422 (Pa. Super. Ct. 2008). "Malice consists of 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." Id. Courts have also found that a conviction based
on malice is appropriate where there is evidence of "sustained recklessness"
of a driver in the "face of an obvious risk of harm to his victims." Id. at 422~
423.
         In addition, the Commonwealth may prove recklessness by
circumstantial evidence; however, "the pieces of evidence must fit together so
tightly as to establish guilt beyond areasonable doubt." See Com. v. Hogan,
468 A.2d 493, 496 (Pa. Super. Ct. 1983). While case law is clear that alcohol
or drug impairment is not reckless, per se, it is relevant in determining
whether Appellant's recklessness was malicious. Id. This impairment,
coupled with "tangible    indicia"   of unsafe · driving, evidences a conscious
disregard of the substantial risk of harm that make be caused to others on the
roadway. Com. v. Jeter, 937 A.2d 466, 468 (Pa. Super. Ct. 2007). This indicia
includes failing to brake or refusing to slow down before a collision. Com. v.
Dellavecchia, 725 A.2d 186, 189. (Pa. Super. Ct.1998).
       In this case, the Commonwealth first presented Gary Schmahl, who
testified that on the night in question, Defendant turned in front of him onto
Rte 850. He followed and noted that be saw no brake lights as Defendant
crested the hill and turned the comer at Gibson's Rock. Cynthia Womer, the
EMT on the scene, testified that when she asked the Defendant if he had
consumed alcohol, he responded that be had and he did not know the exact
amount he consumed. In addition, Trooper Vitek who was also present at the
scene testified to smelling an odor of alcohol on the Defendant and noted that
Defendant's responses were incoherent when he was questioned. The Trooper
further testified that he found a case of beer in the vehicle with six cans
remaining. Another officer, Trooper Baluh, was present at the h.ospital with
Defendant. He testified that Defendant admitted during that conversation to
having been at the White Oaks bar prior to the accident. Finally, Corporal
Thierwechter testified as an expert witness regarding th.e accident
reconstruction and analysis. He testified that Defendant must have been
traveling at 49-54 mph around a curve that could only be traveled at 43 mph
in order to remain in the proper lane. Corporal Thierwechter testified that in
his opinion, the accident was a direct result of Defendant's excessive speed.
       There is some case law which presents similar facts to the case at hand
while also establishing negative authority on these issues. See Com. v.
Hutchins, 42 A.3d 302 (Pa. Super. Ct. 2012); See Com. v. Bu/lick, 830 A.2d
998 (Pa. Super. Ct. 2003). However, upon careful review, these cases are
distinguishable from nuances of this particular case.
       The Appellant Huictuns argued. that insufficient evidence was
presented to prove that the car accident was caused by Appeilant's
impairment. Id. at 307. The Troeper on the scene suspected Appellant was
under the influence. Id. at 304. He then inquired whether he was under the
influence to which Appellant confessed that he had smoked marijuana earlier
in the day. Id. While the Court held that there was sufficient evidence to
establish Appellants conviction of a DUI, it also ruled that there was
insufficient evidence to establish a conviction for Recklessly Endangering
Another Person. Id. at 312. In ruling, the Court stated that the
Commonwealth was required to present evidence of recklessness in addition
to Appellant's intoxication. Id. It further noted, the only other relevant
evidence presented in this matter is that an accident occurred. Id. There was
no additional evidence of recklessness except Appellant's own admission to
having smoked marijuana earlier. Id.
       Although the facts are very similar, there was more testimony elicited
in this case concerning Defendant's actions than in Hutchins. In addition to
Appellant's own admissi.on that he was at the White Oaks Bar hnmcdiately
prior to this incident, the Commonwealth supplied testimony from multiple
trained individuals stating that Appellant possessed several indications of          "'
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intoxication. The Trooper further testified he also discovered a balf-
consumed case of beer in Appellant's car.
       This evidence was bolstered by additional evidence of unsafe driving.
An eye witness driving behind Appell.ant testified that Appellant was not
adhering to the speed Hmit and the witness did not see any braking from
Appellant's car as it crested the hilJ immediately prior to the incident. Finally,
the Commonwealth's expert witness concluded that Appellant's excessive
speed directly resulted in this accident occurring. These facts clearly present
more evidence than what was offered in Hutchins.
       In Bullick, the Court also found there was insufficient evidence to
support defendant's convictions. Bu/lick, at 1003. The Court acknowledged
that while circumstantial evidence can be sufficient, the Commonwealth's
evidence was limited to skid marks allegedly leading to a damaged vehicle
and the assumption that Appellant was drinking before the accident. Id. The
Court noted that no expert witness was produced and no eyewitnesses existed
        to corroborate the Commonwealth's       theory. Id. at 1004. It further observed
        that the Commonwealth failed to even establish an applicable speed limit on
        the road in question. Id. at 1005.
                Once again these facts are different than those presented in this case.
        As previously mentioned, an eye witness testified to Appellant's speed and
        lack of braking immediately prior to the incident. Several other individuals
        testified to the signs of Appellant's apparent intoxication and alcohol was
        found in Appellant's car. Moreover, the Commonwealth established the
        applicable speed limit as 45 mph, however it also presented evidence of an
        advisory sign recommending a speed limit of no more than 30 mph. Following
        this, the expert witness established Appellant must have been going 49-54
        mph, in order to cross the yellow line in such a way. The expert concluded
        that the collision was a direct result of Appellant's excessive speed. Thus, the
        Commonwealth presented much further evidence supporting Appellant's
        convictions than Bullick
               In light of the evidence presented at trial, the Court found that
        Appellant's actions evidenced a conscious disregard of the substantial and
        unjustified risk that he would he involved in a traffic accident causing death.
        His cumulative conduct was consciously reckless, and the evidence supports
        the Court's finding that he possessed the requisite mens rea to commit these
        offenses. As such, the Court did not err in its ruling.
                                                                                           \


                                                         BY THE COURT,                     I
                                          RICHARD N. SAXTON, .JR., S.J.
                                          25·rn Judicial District, Specially Presiding


Date: September __ , 2015


cc:   District Attorney
      Edward Spreha, Esq.
