J-S45003-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LEROY C. JOHNSON,

                            Appellant                 No. 2155 EDA 2012


             Appeal from the Judgment of Sentence July 20, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010278-2011


BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 08, 2014

       Leroy Johnson appeals from the judgment of sentence of five to ten

years imprisonment followed by six years probation. Sentence was imposed

after a jury convicted Appellant of involuntary manslaughter, homicide by

vehicle while driving under the influence of alcohol, homicide by vehicle,

aggravated assault by vehicle while DUI, and four counts each of simple



sufficiency of the evidence supporting two of his convictions and affirm.



approximately 8:15 p.m. on February 26, 2011. At that time, Appellant was

traveling southbound in his silver SUV on Broad Street, which is a heavily

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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trafficked four-lane roadway in Philadelphia. Since Appellant wanted to go

northbound on Broad Street, he crossed over a median strip near the

intersection of Broad and Venango Streets and made a U-turn into the

northbound lanes of Broad Street.

      Esther Davis was driving her Ford Escort in the left lane of northbound

traffic of Broad Street between Venango Street and Erie Avenue. She had

her two daughters and four grandchildren in the car. As Appellant made the

illegal U-turn, he crashed



Broad Street.   Her vehicle was then struck by another vehicle traveling in

the right lane of the northbound traffic. That second impact propelled the

Ford Escort across the median strip and into the southbound lanes of Broad



boyfriend Devin Whye, who were in the process of crossing Broad Street.

              hicle struck a parked car, parking meters, and a tree before it

came to a stop. Mr. Whye died as a result of the accident,while Ms. Withers

was seriously injured and sustained a broken leg and pelvis.

      Appellant remained at the scene, and Philadelphia Police Officer

Deborah Kiker, a member of the accident investigation unit, immediately

responded to the report of the accident.     Appellant was identified as the

driver of the silver SUV that made the U-

While Officer Kiker was interviewing Appellant, Appellant displayed signs of




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which left the scene of the accident, caus

SUV.

       Ms. Davis and one of her daughters, Regina Brown, contradicted that



car when that SUV was making the U-turn from the southbound lanes into



it to enter the right hand lane of northbound traffic, where it was then struck

by the car that left the scene. The collision with the second car caused the

Escort to travel into the oncoming lane of southbound traffic and the

pedestrians crossing Broad Street.      Officer Kiker examined the damage

sustained by the Escort and SUV and determined that it did not support

                                                                           the

description of the accident provided by Ms. Davis and Ms. Brown.

       After Appellant admitted to consuming alcohol prior to driving his

vehicle, Officer Kiker transported Appellant to have his blood drawn.

Dr. Richard Cohn, a forensic toxicologist, reviewed the results of the blood



February 26, 2011, was .230%.

       Based upon this evidence presented by the Commonwealth, a jury

convicted Appellant of the above-delineated offenses.     In this appeal from

the judgment of sentence, Appellant raises a challenge to the sufficiency of




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the evidence as to causation in connection with the two offenses pertaining

to the pedestrians:

           Where the defendant, while operating a vehicle, was
     alleged to have struck another vehicle which, in turn, struck
     pedestrians and property, was the evidence insufficient to prove
     the defendant guilty beyond a reasonable doubt of all charges
     pertaining to injuries and damage resulting from the other
     vehicle striking pedestrians and property because the evidence

     of the driver of the other vehicle, was the direct cause of the
     injuries to the pedestrians and property struck by the other
     vehicle.

              ef at 5.

     We review a sufficiency argument pursuant to the following principles:

            The standard we apply when reviewing the sufficiency of
     the evidence is whether viewing all the evidence admitted at
     trial in the light most favorable to the verdict winner, there is
     sufficient evidence to enable the fact-finder to find every
     element of the crime beyond a reasonable doubt. In applying
     the above test, we may not weigh the evidence and substitute
     our judgment for the fact-finder. In addition, we note that the
     facts and circumstances established by the Commonwealth need
     not preclude every possibility of innocence.           Any doubts
     regarding a defendant's guilt may be resolved by the fact-finder
     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. The Commonwealth may sustain its
     burden of proving every element of the crime beyond a
     reasonable doubt by means of wholly circumstantial evidence.
     Moreover, in applying the above test, the entire record must be
     evaluated and all evidence actually received must be
     considered. Finally, the trier 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. Furthermore,
     when reviewing a sufficiency claim, our Court is required to give
     the prosecution the benefit of all reasonable inferences to be
     drawn from the evidence.



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Commonwealth v. Slocum, 86 A.3d 272, 275 (Pa.Super. 2014) (citation

omitted).

      On appeal, Appellant does not contest that the evidence presented by



Escort while he was making the U-turn from the southbound into the

northbound lanes of Broad Street. Nor does Appellant suggest that he was

not driving while under the influence of alcohol.        Instead, he focuses on

Ms.                                               by his SUV. Appellant claims



for striking the two pedestrians.    Appellant presented the testimony of an

                                                                                  .

Davis should have been able to stop her car prior to hitting Ms. Withers and

Mr. Whye.   Appellant thus contends his convictions for homicide by vehicle

while DUI and aggravated assault by vehicle while DUI are infirm.

      Appellant   correctly   observes   that   the   evidence   established   that

Ms.



reasonable doubt that his actions caused the accident which resulted in the

                                                                        Id. at 29.



                                                             Id.




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      To resolve this contention, we first examine the testimony of

Ms.

SUV into her Escort.    Ms. Davis related that she was hit very hard by



N.T. Trial, 4/24/12, at 175. The impact caused her to lose control of the car.

Id. at 177; N.T. Trial, 4/25/12, at 38.   As a result, the witness panicked.

N.T. Trial, 4/24/12, at 180. Her Escort had a clutch, and she did not recall

attempting to brake. When her car came to rest after striking the people,

another car, and a tree, her left foot was on the pedal to change gears and

her right foot was on the accelerator. Ms. Davis said she placed her other



Id. Her other foot already was on the accelerator at the time of the first

crash.



really have time to do anything, because we were already in the flow of

traffic, and my foot was already on the accelerator as we was driving up the

         Id. at 180. Ms. Davis further stated that when Ap



                       Id.   Ms. Davis insisted that the events occurred so



no                        Id




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confirmed that the entire accident happened in a matter of seconds and that,

as a result of the impact, Ms. Davis lost control over the Escort.

      Appellant was convicted of homicide by vehicle while DUI, 75 Pa.C.S.

§

                                causes the death of another person as the

result of a violation of section 3802 (relating to driving under influence of

alcohol or controlled substance) and who is convicted of violating section



§ 3735(a) (emphasis added).         The other offense challenged by Appellant,

aggravated assault by vehicle while

causes serious bodily injury to another person as the result of a violation of

section 3802 (relating to driving under influence of alcohol or controlled

substance) and who is convicted of violating section 3802 . . . when the



added).   Thus, both crimes concern an outcome, either death or serious

bodily injury, that is unintended by the actor.

      As noted, Appellant contests that his conduct of DUI caused the death

of Mr. Whye and the injury to Ms. Withers.        Since the injuries in question



causation is outlined as follows:

      (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

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            (2) the relationship between the conduct and result
            satisfies any additional causal requirements imposed
            by this title or by the law defining the 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 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. § 303(a); (c).

                                                                             -

turn on a four-lane, heavily traveled highway in Philadelphia while driving

with a BAC over twice the legal limit.      Both vehicles were traveling in

opposite directions and Appellant hit the car hard. The fact that the vehicle

Appellant struck would lose control and cause death or injury to a pedestrian

on that roadway was a probable and natural result of his grossly negligent

actions.   Furthermore, the fact that a car that he struck with his vehicle

would lose control and hit pedestrians was not too remote or accidental in its




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foreseeable.

      In a recent en banc decision, we discussed criminal causation in an

analogous circumstance involving a traffic accident.    Commonwealth v.

Spotti, 2014 WL 2535265 (Pa.Super. 2014) (en banc).         In that case, an

accident occurred on a four lane highway.     Police had received numerous

reports that

was asked to follow the defendant with her hazard lights flashing.       She



                                                 as in the left lane. Another

motorist, Steven Chung, was traveling in the right lane of the highway.

When police activated their sirens, the defendant swerved into the right lane

and then suddenly braked. That action caused Mr. Chung to veer right to

av

      When Mr. Chung swerved to avoid the defendant, he struck a van that

was disabled and sitting on the side of the road. As a result of this second

collision, two people helping to change the tire of the van were severely

                                                                  203%. He

was charged and convicted of two counts of aggravated assault with a

vehicle while DUI in connection with the injuries caused to the two people

changing the tire.




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     On appeal, the defendant challenged those convictions based upon the

same ground as that raised herein: causation.     The defendant in Spotti

                           actions were a sufficiently independent cause of

the accident, which broke the chain of legal causation required to support

                          Id. at * 6. We disagreed. We observed that to



that the defendant's conduct was so directly and substantially linked to the

                                                                 Id. at * 7.

                                                              -part test for

determining criminal causation. First, the defendant's conduct must be an

antecedent, but for which the r

Id

other factors; rather, there must exist a causal connection between the

conduct and the result of conduct; and causal connection requires something

                                                        Id.   Secondly, the



attenuated that it would be unfair to hold the defendant criminally

               Id. (citations and quotation marks omitted).     This second



                                                               Id.

                                                                  uct be the




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be properly assessed against an individual whose conduct was a direct and

substantial factor in producing the death even though other factors

                                                         Id. (citation omitted).

We concluded with the observation that a defendant is considered the direct

                                                           is established when



                    Id. at *8 (quoting Commonwealth v. Fabian, 60 A.3d

146, 152 (Pa.Super. 2013)).

                                                                            people

located on the side of the road because he did not collide either with them or



and unforeseeable and could not be attributed to him.              He accused

Mr. Chung of following his vehicle too closely and acting as a vigilante.

      We rejected his positions based upon the testimony of Mr. Chung, who



into his lane of travel and braked violently.     Mr. Chung denied trying to



explained that when the defendant swerved, Mr. Chung only had two



                                    version of events.     We concluded that,




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      The present case cannot be reasonably distinguished from Spotti.



control of her vehicle.    Despite her best efforts to avoid striking the



car was the direct and substantive cause of the chain of events that led to




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turn into a heavily trafficked two-

challenge to the sufficiency of the evidence supporting his convictions.

      Judgment of sentence affirmed.

      Judge Wecht Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2014




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