J-S07001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAMES P. IRVIN, III                      :
                                          :
                   Appellant              :   No. 1603 MDA 2018

       Appeal from the Judgment of Sentence Entered August 3, 2018
   In the Court of Common Pleas of Lancaster County Criminal Division at
                     No(s): CP-36-CR-0003603-2017


BEFORE:   OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY OLSON, J.:                              FILED APRIL 15, 2019

     Appellant, James P. Irvin, III, appeals from the judgment of sentence

entered on August 3, 2018, as made final by the denial of his post-sentence

motion on August 30, 2018. We affirm.

     The trial court made the following findings of fact:

     On the morning of May 17, 2017, [Appellant] was driving east on
     Lincoln Highway East in East Lampeter Township. Testimony
     revealed that [Appellant] was weaving in and out of traffic leading
     up to the accident. Upon approaching the intersection at Route
     896 (Hartman Bridge Road), [Appellant] pulled into a right-turn
     only lane, [] proceeded straight through the intersection [and
     passed a rear escort vehicle on the right] and a [tractor-trailer]
     carrying a wide load[.] [Appellant then swerved] back into the
     lane of travel. [Next, Appellant] swung out to the left to pass the
     lead escort vehicle for the wide load. [He proceeded on the left
     to pass an 18-wheeler, another escort vehicle, and another
     tractor-trailer carrying a wide load. In so doing, he traveled in the
     center turning lane, and as the two eastbound lanes became one,
     he used the westbound lane to pass the second wide load vehicle.]
     [Appellant] then suddenly swerved back into the eastbound lane
     of travel and, in doing so, struck the right rear bumper of the lead

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* Retired Senior Judge assigned to the Superior Court.
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        escort vehicle for the wide load. The data from [Appellant’s]
        vehicle revealed that a[t] five (5) seconds prior to impact,
        [Appellant] was traveling at one hundred percent (100%) throttle
        and at three (3) seconds prior he reached his maximum speed of
        seventy-one (71) miles per hour. The speed limit in that area is
        forty (40) miles per hour. The data also showed that [Appellant]
        engaged the brake just prior to impact with his speed decreasing
        from seventy (70) miles per hour to twenty-nine (29) miles per
        hour between two (2) seconds and one (1) second prior to impact.

        The impact of the collision spun the escort vehicle into the
        westbound lane of travel [and] into oncoming traffic where it
        struck the side of a school bus. The impact of the second collision
        caused the school bus to rotate into the [east]bound lane of travel
        where it struck the front corner of the wide load [tractor-trailer]
        that was traveling behind the escort vehicle. The impact from that
        third collision caused the school bus to turn over onto its side.
        [Appellant] did not stop following the collision and fled from the
        scene. He eventually turned himself in on May 23, 2017.

        As a result of the accident, two (2) of the children on the school
        bus suffered serious bodily injury and several others, including
        children, the school bus driver[,] and the driver of the struck
        escort vehicle, suffered bodily injury. The injuries that are the
        subject of the instant appeal were sustained by six[-]year[-]old
        N.W. and sixteen[-]year[-]old J.C.[.] N.W. was found trapped
        beneath the school bus. He suffered a rib fracture, a fractured left
        clavicle, a fractured right humerus, a fractured right sacroiliac
        joint, a pulmonary contusion, hemopneumothorax and acute
        respiratory failure. J.C. suffered a compression fracture of the
        T12 vertebra.

Trial Court Opinion, 11/1/18, at 1-4 (internal citations omitted).

        The procedural history of this case is as follows. At the conclusion of a

bench trial, the court found Appellant guilty at docket number 3603-2017 of

two counts of aggravated assault,1 one count of aggravated assault - victim

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1   18 Pa.C.S.A. § 2702(a)(1).



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less than 13 and defendant 18 or older,2 two counts of aggravated assault by

vehicle,3 eleven counts of simple assault,4 twenty counts of recklessly

endangering another person,5 one count of reckless driving,6 one count of

failure to obey traffic control devices,7 and one count of unsafe passing.8 At

docket number 2813-2017, the court found Appellant guilty of twenty-six

counts of accidents involving death or personal injury,9 one count of accident

involving damage to attended vehicle/property,10 one count of driving while

operating privileges are suspended or revoked,11 and one count of

disregarding traffic lanes.12 On August 3, 2018, the court sentenced Appellant

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2   18 Pa.C.S.A. § 2702(a)(9).

3   75 Pa.C.S.A. § 3732.1(a).

4   18 Pa.C.S.A. § 2701(a)(1).

5   18 Pa.C.S.A. § 2705.

6   75 Pa.C.S.A. § 3736(a).

7   75 Pa.C.S.A. § 3111(a).

8   75 Pa.C.S.A. § 3305.

9   75 Pa.C.S.A. § 3742(a); 3742.1(a).

10   75 Pa.C.S.A. § 3743(a).

11   75 Pa.C.S.A. § 1543(a).

12   75 Pa.C.S.A. § 3309(2).




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to an aggregate term of five to 20 years of incarceration at each docket

number, the sentences to be served concurrently.

       Appellant filed a post-sentence motion on August 7, 2018, which was

denied by order dated August 30, 2018. Thereafter, Appellant filed a notice

of appeal that referred to both docket numbers.           Appellant later withdrew

appeal at docket number 2813-2017 and, on September 25, 2018, filed a

timely notice of appeal challenging only the convictions entered at docket

number 3603-2017.13

       Appellant raises the following issue for our review:

       1. Did the trial court err by failing to find that insufficient evidence
          was presented at trial to prove causation of aggravated assault
          pursuant to [Pa.C.S.A. §] 2702(a)(1)?14

Appellant’s Brief at 4.




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13Appellant filed a concise statement of errors complained of on appeal on
October 2, 2018. The trial court filed its Pa.R.A.P. 1925(a) opinion on
November 1, 2018.

14 In his concise statement, Appellant challenged the sufficiency of the
evidence offered to prove counts 1, 2, and 3 of docket number 3603-2017,
which charged two counts of aggravated assault, codified at 18 Pa.C.S.A.
§ 2702(a)(1) and one count of aggravated assault of a person under 13 by a
person over 18, codified at 18 Pa.C.S.A. § 2702(a)(9). Appellant’s brief and
his statement of questions involved, however, refer only to counts 1 and 2,
codified at 18 Pa.C.S.A. § 2702(a)(1). Since Appellant’s claims on appeal
challenge the sufficiency of the evidence offered to prove causation, and
because the causation requirement for counts 1, 2, and 3 are essentially the
same, we read Appellant’s objection as a challenge to all three aggravated
assault convictions.

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      Appellant argues that the evidence was insufficient to convict him of

aggravated assault. Specifically, he contends that evidence of causation was

lacking. “The determination of whether sufficient evidence exists to support

the verdict is a question of law; accordingly, our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Johnson, 160 A.3d

127, 136 (Pa. 2017) (citation omitted). To consider Appellant’s sufficiency

challenge properly, 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. Grays, 167 A.3d 793, 806

(Pa. Super. 2017) (citation omitted).        “[T]he facts and circumstances

established by the Commonwealth need not preclude every possibility of

innocence. . . . [T]he finder 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.” Commonwealth v. Waugaman, 167 A.3d

153, 155–156 (Pa. Super. 2017) (citation omitted).

      A person commits aggravated assault if the Commonwealth can prove

beyond a reasonable doubt that he or she (1) caused, or attempted to cause,

serious bodily injury to another (2) intentionally, knowingly or recklessly under

circumstances manifesting extreme indifference to the value of human life.

18 Pa.C.S.A. § 2702(a)(1).      Appellant’s brief labels his issue as one of

causation. Appellant’s Brief at 4. He contends that the trial court mistakenly


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relied on the definition of causation as set forth in 18 Pa. C.S.A. § 303(c)

instead of 18 Pa. C.S.A. § 303(b). Appellant asserts that his intent on May

17, 2017, was not to injure anyone but, instead, merely to arrive at work on

time. Accordingly, Appellant maintains that the evidence of causation, when

evaluated under section 303(b), was insufficient because the result of the May

17, 2017, collision was not within his intent or contemplation.

      Pennsylvania’s causation statute states the following.

      (a)   General rule.--Conduct is the cause of a result when:

      (1) it is an antecedent but for which the result in question would
      not have occurred; and

      (2) the relationship between the conduct and result satisfies any
      additional causal requirements imposed by this title or by the law
      defining the offense.

      (b) Divergence between result designed or contemplated
      and actual result.--When intentionally or knowingly causing a
      particular result is an element of an offense, the element is not
      established if the actual result is not within the intent or the
      contemplation of the actor unless:

      (1) the actual result differs from that designed or contemplated
      as the case may be, only in the respect that a different person or
      different property is injured or affected or that the injury or harm
      designed or contemplated would have been more serious or more
      extensive than that caused; or

      (2) the actual result involves the same kind of injury or harm as
      that designed or contemplated and is not too remote or accidental
      in its occurrence to have a bearing on the actor's liability or on the
      gravity of his offense.

      (c) Divergence between probable and actual result.--When
      recklessly or negligently causing a particular result is an element
      of an offense, the element is not established if the actual result is


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      not within the risk of which the actor is aware or, in the case of
      negligence, of which he should be aware unless:

      (1) the actual result differs from the probable result only in the
      respect that a different person or different property is injured or
      affected or that the probable injury or harm would have been more
      serious or more extensive than that caused; or

      (2) the actual result involves the same kind of injury or harm as
      the probable result and is not too remote or accidental in its
      occurrence to have a bearing on the liability of the actor or on the
      gravity of his offense.

18 Pa.C.S.A. § 303 (emphasis added).

      To fully assess Appellant’s claim that the Commonwealth’s evidence of

causation was insufficient, we begin with the general rule set forth in

section 303(a). Here, section 303(a)(1)’s “but - for” test is certainly satisfied.

Were it not for Appellant’s reckless driving and illegal passing maneuvers,

none of the injury-causing collisions at issue would have taken place. See

Commonwealth v. Spotti, 94 A.3d 367 (Pa. Super. 2014)(causation

satisfied in aggravated assault case involving a motor vehicle accident where

appellant’s swerving and braking forced another driver to veer off the road

into a disabled vehicle).

      The second part of the test is also met. Section 303(a)(2) calls for any

additional requirements of the law defining the offense to be satisfied. In this

case, 18 Pa.C.S.A. § 2702(a)(1) requires that the injury be caused “recklessly

under circumstances manifesting extreme indifference to the value of human




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life[.]” It was established at trial that Appellant is an experienced driver,15

was familiar with the area,16 and was aware that the two eastbound lanes on

Lincoln Highway East become one lane after the intersection with SR 896.17

Therefore, it cannot reasonably be argued that he was not aware of the risk

of collision and great bodily injury he created by exceeding the speed limit by

30 miles per hour and traveling east in the westbound lane of traffic in order

to pass an 86-foot-long18 tractor-trailer carrying a 16-foot-wide load.19

Appellant’s only excuse for his erratic and dangerous driving was that he

wanted to get to work on time. Appellant’s Brief at 10. He put his punctuality

ahead of the safety of everyone else on the road that day.        Additionally,

Appellant did not even bother to stop after he struck the escort vehicle.

Instead, he maintained his reckless driving and passing in order to flee the

scene.20      Taken together, these circumstances manifest an extreme

indifference to the value of human life. See Commonwealth v. Riggs, 63

A.3d 780 (Pa. Super. 2012)(sustained recklessness and an indifference to the



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15   N.T., 5/15/2018, at 346-349.

16   N.T., 5/15/2018, at 349-350.

17   N.T., 5/15/2018, at 349-350.

18   N.T., 5/15/2018, at 378.

19   N.T., 5/14/2018, at 101.

20   N.T., 5/14/2018, at 109.

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value of human life found where appellant, who had a history of involvement

in high speed police chases, attempted to evade a traffic stop by speeding

through a red light and caused a violent collision with another vehicle). There

was sufficient evidence of causation under section 303(a) to support

convictions for aggravated assault.

      We are unconvinced by Appellant’s claim that the trial court erred in

applying section 303(c), rather than section 303(b). Section 2702 authorizes

a conviction where the Commonwealth proves, beyond a reasonable doubt,

that a defendant’s conduct caused serious bodily injury and was so reckless,

under the circumstances, that it manifested a disregard for the value of human

life. See 18 Pa.C.S.A. § 2702(a)(1). Where, as here, the Commonwealth’s

theory is one of recklessness, section 303(b) does not apply because that

provision addresses causation only where knowing or intentional conduct is

alleged. Instead, section 303(c) governs the issue of causation. It provides

that causation is established where the result falls within a risk that is known

to the defendant. See 18 Pa.C.S.A. § 303(c). Because the evidence adduced

by the Commonwealth was more than sufficient to establish that Appellant

was subjectively aware of the concomitant risks of collision and severe injury

stemming from reckless driving, no relief is due.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/15/2019




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