J-A23005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ALBERT WILLIAMS

                            Appellant                     No. 547 WDA 2015


            Appeal from the Judgment of Sentence October 27, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0008206-2014


BEFORE: LAZARUS, J., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                           FILED DECEMBER 30, 2016

        Albert Williams appeals from the judgment of sentence, entered in the

Court of Common Pleas of Allegheny County, based upon his convictions for

general     impairment      driving    under   the   influence   (DUI),1   recklessly

endangering another person (REAP),2 and fleeing or attempting to elude

police.3 We affirm in part, reverse in part, vacate the judgment of sentence,

and remand for resentencing.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a)(1).
2
    18 Pa.C.S. § 2705.
3
    75 Pa.C.S. § 3733(a).
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      On April 23, 2014, at approximately 2:20 a.m., City of Pittsburgh

Police Officer Lee Myers observed a Dodge Durango driven by Williams make

a left turn through a red light. Officer Myers began to follow Williams, and

while he was doing so, Williams crashed into a concrete barrier.       Before

Officer Myers could get to the site of the crash, Williams backed up the car

and then began to drive the wrong way down the road, a one-way street.

Officer Myers activated his lights and sirens and began to pursue Williams,

who was traveling at over 25 miles per hour based on Office Myers’

estimation.   While Williams continued to travel in the wrong direction, he

drove through several intersections with stop signs.      Williams eventually

crashed the car again, which disabled it, and then fled on foot before Officer

Myers arrested him at gunpoint.

      Officer Myers observed signs that Williams was intoxicated, including

that he had glassy, bloodshot eyes, slurred speech, and the odor of alcohol

emanated from his body and breath. He had difficulty standing and walking

without swaying.   Williams was taken to a nearby hospital, where City of

Pittsburgh Police Officer Craig Sullivan observed that Williams appeared to

be intoxicated, advised him of his rights, and requested his consent to test

his blood alcohol content. Officer Sullivan asked for Williams’ consent

multiple times, but Williams did not consent to a blood draw. Williams was




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charged with general impairment DUI with refusal to submit to chemical

testing,4 along with several summary offenses,5 REAP, and fleeing the police.

       Following a non-jury trial on October 27, 2014, the trial court

convicted Williams of the aforementioned offenses and sentenced him to 18

months’ probation for fleeing police and 6 months’ probation for general

impairment DUI, to be served concurrently.       Williams filed a timely post-

sentence motion, which the court denied on March 6, 2015.         On April 2,

2015, Williams filed a timely notice of appeal, followed by a court-ordered

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). On appeal, Williams raises the following issues for our review:

       1. Did the trial court err, and violate the prohibition on double
          jeopardy, by convicting Mr. Williams of three separate DUI
          offenses based upon a single instance of conduct, where two
          of those offenses were not separate crimes but, rather,
          merely sentencing factors?

____________________________________________


4
  In total, Williams was charged with and convicted of three separate counts
of general impairment DUI in this matter.         Count 4 of the criminal
information was a charge of general impairment DUI in which the actor
refused chemical testing of blood alcohol content, in violation of 75 Pa.C.S.
§§ 3802(a)(1), 3804(c). Count 5 was for general impairment DUI involving
an accident resulting in bodily injury, serious bodily injury or death of
another person or in damage to a vehicle or other property, in violation of 75
Pa.C.S. §§ 3802(a)(1), 3804(b). Count 6 was for general impairment DUI
without additional sentencing factors. See Criminal Information, at 2.
5
  Williams was charged with and convicted of reckless driving, 75 Pa.C.S. §
3736, driving the wrong way on a one-way road, 75 Pa.C.S. § 3308(b), and
failure to stop at a red signal, 75 Pa.C.S. § 3112(a)(3). Williams was not
sentenced to an additional penalty for these summary offenses.




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      2. Was the evidence insufficient at Count 3, recklessly
         endangering another person, because the Commonwealth
         failed to prove, beyond a reasonable doubt, that Mr. Williams’
         conduct placed or may have placed Officer Myers in danger of
         death or serious bodily injury?

Brief for Appellant, at 5.

      We begin by addressing Williams’ second claim, that the evidence was

insufficient to convict him of REAP.      In considering sufficiency of the

evidence claims,

      we must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in the
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. . . . Where
      there is sufficient evidence to enable the trier of fact to find
      every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.
      Of course, the evidence established at trial need not preclude
      every possibility of innocence and the fact-finder is free to
      believe all, part or none of the evidence presented.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc).

The Commonwealth can satisfy its          burden via wholly circumstantial

evidence. Id.

      Pennsylvania law specifies that a person is guilty of REAP 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.   The crime

requires proof of a mens rea of recklessness and corresponding conduct that

places another person in danger.     Commonwealth v. Trowbridge, 395

A.2d 1337, 1340 (Pa. Super. 1978).           Recklessness is the “conscious

disregard of a substantial and unjustifiable risk.”     Commonwealth v.



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Wood, 475 A.2d 834, 836 (Pa. Super. 1984). “Danger, and not merely the

apprehension of danger, must be created.” Commonwealth v. Reynolds,

835 A.2d 720, 728 (Pa. Super. 2003) (quoting Trowbridge, supra at

1340).

     Williams claims that the Commonwealth did not present sufficient

evidence that he possessed the requisite mens rea of recklessness or that

Officer Myers was placed in danger of death or serious bodily injury.   We

disagree.

     The evidence presented by the Commonwealth, and deemed to be

credible by the trial court, sitting as fact-finder, showed that Williams’

driving behavior caused a police chase to occur going the wrong way down a

one-way street at speeds over 25 miles per hour.          The recklessness

exhibited by Williams and the danger Officer Myers encountered as a result

were summarized by the trial court as follows:

     It was Williams’ conscious decision to blow past several stop
     signs and travel the wrong way on a street that traverses a
     major intersection. [Officer] Myers described it best: “[y]ou go
     through an intersection the wrong way, it’s very dangerous.”
     Williams created a vortex of circumstances that placed Officer
     Myers in the danger zone of death or serious bodily injury.

Trial Court Opinion, 12/17/15, at 5 (citation omitted).   On this basis, we

agree with the trial court that the Commonwealth provided sufficient

evidence of the elements of REAP. Trowbridge, supra.

     In his remaining issue on appeal, Williams asserts that the trial court

violated the prohibition against double jeopardy and erred by convicting him


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of three separate DUI offenses based on one occurrence, where two of the

offenses were not separate crimes but merely involved additional sentencing

factors.

      As we stated in Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super.

2011),

      [t]he trial court convicted [the defendant] of two separate
      counts of DUI—general impairment arising out of the same
      incident, with one count alleging [the defendant] refused the
      breath/blood test. . . . Since refusal of a breath/blood test is
      not an element of the criminal offense that pertains to guilt, the
      court should not have convicted [the defendant] of the same
      criminal offense, DUI—general impairment, arising out of the
      identical criminal episode. Instead, [the defendant] should have
      been convicted of one count of DUI—general impairment and
      been subject to the sentencing enhancement provided by statute
      relative to a blood or breath test refusal.

Id. at 891 (citations and footnotes omitted).      We went on to note that

“[c]harging the identical criminal offense twice in the criminal information to

indicate that one count is alleging that a breath test/blood test refusal

transpired constitutes duplication of counts and creates possible double

jeopardy implications if the individual is sentenced on each count.”    Id. at

894 (citation omitted).   However, because the trial court did not sentence

the defendant to both counts, no violation of double jeopardy occurred. Id.

      In the instant matter, the trial court erred in convicting Williams of

three counts of DUI based on the same conduct. However, since Williams

was sentenced under only one DUI count, no double jeopardy violation was

committed pursuant to Mobley.         Nevertheless, the multiple convictions



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could have collateral consequences in the future regarding Williams’ prior

record score. Additionally, as the trial court points out, the court imposed

sentence “at Count 4, when now in retrospect, it should have been imposed

at Count 6. The [c]ourt’s sentencing scheme has been disrupted[.]” Trial

Court Opinion, 12/17/15, at 9-10. On this basis, we reverse as to two of the

general impairment DUI convictions, vacate the judgment of sentence, and

remand this matter for resentencing.   See Commonwealth v. Williams,

997 A.2d 1205, 1210 (Pa. Super. 2010) (where appellate court’s disposition

upsets trial court’s original sentencing scheme, remanding for resentencing

is appropriate disposition).

      Judgment of sentence vacated.      Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2016




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