J-A19033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

RICHARD K. ROBINSON

                               Appellant              No. 2785 EDA 2015


            Appeal from the Judgment of Sentence August 24, 2015
       in the Court of Common Pleas of Chester County Criminal Division
                       at No(s): CP-15-CR-0002459-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 21, 2017

        Appellant, Richard K. Robinson, appeals from the judgment of

sentence entered in the Chester County Court of Common Pleas, following

his bench trial convictions of two counts of driving under the influence

(“DUI”),1 aggravated assault by vehicle while DUI,2 aggravated assault by

vehicle,3 simple assault,4 and vehicle turning left.5 Appellant challenges the

sufficiency of the evidence. We reverse and remand for resentencing.



*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a)(1) and (b).
2
    75 Pa.C.S. § 3735.1(a).
3
    75 Pa.C.S. § 3732.1(a).
4
    18 Pa.C.S. § 2701(a)(2).
5
    75 Pa.C.S. § 3322.
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      In its opinion, the trial court summarizes the relevant facts of this case

as follows:

            On March 8, 2014 at approximately 3:30 p.m.,
         [Appellant] was driving a pick-up truck eastbound on
         Hannum Avenue in West Chester, Chester County,
         Pennsylvania, which has one lane in each direction. His
         car was stopped near the Luk Oil gas station, waiting for
         cars travelling in the opposite direction to pass so that he
         could turn left into the gas station. After the cars passed
         and there were no other vehicles approaching him, he
         turned left into the gas station and collided with Luke
         Scott, who was traveling westbound on Hannum Avenue
         on a bicycle. Mr. Scott suffered numerous injuries as a
         result of the accident including a fractured hip, left radius
         fracture, right wrist fracture, and a fractured skull. He also
         lost all hearing in his right ear.

         Tanis Garber-Shaw testified at the trial.       She was a
         passenger in a van that was travelling eastbound on
         Hannum Avenue. The van stopped behind [Appellant’s]
         vehicle while [Appellant] waited to make a left-hand turn
         into the gas station. She saw a person travelling the
         opposite direction on a bicycle approach the gas station.
         She assumed the truck would wait until the cyclist passed,
         but it began pulling forward into the driveway. She said
         “no,” because she could tell the cyclist would be hit. Her
         husband, who was driving the van, said “not good.”
         [Appellant’s] vehicle then proceeded to turn left and hit the
         cyclist. The cyclist did not have time to react. The impact
         occurred 1 ½ to 2 seconds after [Appellant] began his
         turn. When [Appellant] began his turn, there were no cars
         coming from the other direction, there were no hazards in
         the roadway and visibility was clear. There was nothing
         impeding [Appellant’s] view of Mr. Scott. Following the
         accident, Ms. Garber-Shaw heard [Appellant] say “I don't
         know what happened.”

            Officer Aaron Davis of the Borough of West Chester
         Police Department arrived at the scene of the accident.
         When he approached [Appellant], he detected an odor of
         alcoholic beverages emanating from [Appellant’s] mouth.
         [Appellant] told him he had one vodka and iced tea


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         approximately 2 hours before the accident. [Appellant]
         also told him that he was travelling eastbound on
         [Hannum] Avenue waiting to turn left when a vehicle
         travelling westbound stopped and waved him on.

            Officer Davis asked [Appellant] to perform field sobriety
         tests . . . which he could not complete successfully. He
         was placed under arrest for DUI and transported to the
         hospital for a blood draw. The blood was then sent to the
         lab for testing. The results of the test indicated that
         [Appellant’s] blood alcohol content (hereinafter “BAC”) was
         0.153%.

Trial Ct. Op., 11/2/15, at 2-3.

      Following a bench trial, the trial court convicted Appellant on July 1,

2015, of two counts of DUI, aggravated assault by vehicle while DUI,

aggravated assault by vehicle, simple assault, and vehicle turning left. On

August 24, 2015, the court sentenced Appellant to an aggregate sentence of

eleven-and-one-half to twenty-three months’ imprisonment, followed by

eight years’ probation.      Appellant timely filed a notice of appeal on

September 4, 2015. The court ordered Appellant to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and

Appellant timely complied.

      Appellant raises the following issue for our review:

         Whether the evidence adduced at trial was sufficient to
         support a conviction on the charges of Aggravated Assault
         by Vehicle While [DUI], Aggravated Assault by Vehicle, and
         Simple Assault.      Specifically, whether the evidence
         adduced at trial was sufficient to establish the element of
         criminal negligence for each of these offenses?

Appellant’s Brief at 4.



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      Appellant argues the Commonwealth failed to present sufficient

evidence of criminal negligence to support his convictions of aggravated

assault by vehicle while DUI, aggravated assault by vehicle, and simple

assault.   Appellant claims these offenses required that the Commonwealth

prove beyond a reasonable doubt that he caused the victim’s, Mr. Scott,

injuries with criminal negligence.      Appellant alleges, however, that the

Commonwealth failed to establish that Appellant’s conduct constituted more

than ordinary civil negligence. Appellant contends Mr. Scott’s collision into

the passenger side of Appellant’s vehicle does not constitute a gross

deviation from the required standard of care for a driver under those

circumstances.     Furthermore, Appellant maintains the Commonwealth also

failed to establish that any additional hazards, such as the conditions of the

road or the weather, existed on the day of the accident that would have

required Appellant to exercise extra caution. Appellant concludes this Court

should reverse these convictions. We agree.

      Our review of sufficiency of the evidence is governed by the following

principles:

           As this case involves a question of law, our scope of review
           is plenary. Our standard of review is de novo.

                                   *    *    *

           [T]he critical inquiry on review of the sufficiency of the
           evidence to support a criminal conviction . . . does not
           require a court to ask itself whether it believes that the
           evidence at the trial established guilt beyond a reasonable
           doubt. Instead, it must determine simply whether the


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         evidence believed by the fact-finder was sufficient to
         support the verdict.    [A]ll of the evidence and any
         inferences drawn therefrom must be viewed in the light
         most favorable to the Commonwealth as the verdict
         winner.

                                  *    *    *

         In applying this standard, [the reviewing court must] bear
         in mind that: the Commonwealth may sustain its burden
         by means of wholly circumstantial evidence; the entire trial
         record should be evaluated and all evidence received
         considered, whether or not the trial court’s ruling thereon
         were correct; and the trier of fact, while passing upon the
         credibility of witnesses and the weight of the proof, is free
         to believe all, part, or none of the evidence.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)

(quotation marks and citations omitted).

      Appellant challenges the sufficiency of the evidence for aggravated

assault by vehicle while DUI, aggravated assault by vehicle, and simple

assault, which are defined, respectively, as follows:

         § 3735.1.    Aggravated assault by vehicle while
         driving under the influence

         (a) Offense defined.―Any person who negligently
         causes serious bodily injury to another person as the result
         of a violation of section 3802 (relating to driving under the
         influence of alcohol or controlled substance) and who is
         convicted of violating section 3802 commits a felony of the
         second degree when the violation is the cause of the
         injury.

75 Pa.C.S. § 3735.1(a).

         § 3732.1. Aggravated assault by vehicle

         (a) Offense.―Any person who recklessly or with gross
         negligence causes serious bodily injury to another person


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        while engaged in the violation of this Commonwealth of
        Pennsylvania 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(a).

        § 2701. Simple assault

        (a) Offense defined.―Except as provided under section
        2702 (relating to aggravated assault), a person is guilty of
        assault if he:

                                 *    *    *

             (2) negligently causes bodily injury to another with
             a deadly weapon[.]

18 Pa.C.S. § 2701(a)(2).

     All of these offenses contain the element of criminal negligence, which

is present where:

        A person acts negligently with respect to a material
        element of an offense when he should be aware of 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 the actor’s failure to
        perceive it, considering the nature and intent of his
        conduct and the circumstances known to him, involves a
        gross deviation from the standard of care that a
        reasonable person would observe in the actor’s situation.

18 Pa.C.S. § 302(b)(4). When presented with a challenge to the sufficiency

of the evidence for criminal negligence, this Court has stated that we must

determine:




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           whether [a]ppellant’s conduct amounted          to    a   gross
           deviation from the standard of care:

             In determining whether a person’s actions constitute
             criminal negligence one must obviously consider the
             entire situation; and we hold that the determination
             whether those actions qualify as a “gross deviation”
             within the meaning of the statute, can depend upon
             the nature of the standard applicable to a given
             situation.

Commonwealth v. Kutzel, 64 A.3d 1114, 1119 (Pa. Super. 2013) (quoting

Commonwealth v. Lobiondo, 462 A.2d 662, 666 (Pa. 1983)). “While both

criminal   negligence   and   recklessness   involve   ‘gross’   deviations   from

reasonable conduct, recklessness includes conscious disregard of a risk

whereas criminal negligence is accompanied by lack of awareness of a risk.”

Commonwealth v. Heck, 491 A.2d 212, 216 (Pa. Super. 1985).                      “A

driver’s failure to act with reasonable care or attention in the circumstances

is nothing more than proof of his negligence as that term is used in the civil

law.” Id. at 216-17 (citation omitted).

      In Heck, this Court held there was insufficient evidence to support the

appellant’s conviction for vehicular homicide after the appellant’s vehicle

struck and killed a motorcyclist traveling in the opposite direction while the

appellant was making a left-hand turn.         Id. at 214-15.        The accident

occurred during the morning when “[t]he sun was up and the weather [was]

clear and dry.” Id. at 215. While at an intersection, the appellant made a

left-hand turn when the right front fender of his vehicle collided with a

motorcycle traveling in the opposite direction. Id. Evidence introduced at


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trial indicated that, due to the configuration of the road, the appellant did

not see the motorcycle until it was too late, as the appellant’s car “did not

skid or slide before impact, nor did it speed up; it simply turned in front of

the cycle.”   Id. at 217-18 (citation omitted).   This Court concluded that,

although the appellant should have known he was violating Section 3322 of

the Motor Vehicle Code (vehicle turning left), there was insufficient evidence

to prove the appellant knew his turn would constitute a hazard “to establish

any degree of culpability higher than ordinary negligence.” Id. at 217. The

appellant’s failure to timely recognize the hazard, therefore, was not a

“‘gross’ deviation from a reasonable standard of care.” Id. at 218.

      In contrast, in Commonwealth v. Eichler, 133 A.3d 775 (Pa. Super.

2016), the appellant was convicted of, inter alia, aggravated assault by

vehicle while DUI, and this Court determined there was sufficient evidence

for the conviction. Id. at 791 (citation omitted). In Eichler, the appellant

was operating his vehicle when he swerved off the road, struck the victim

who was in a motorized wheelchair, and left the scene. Id. at 789, 790. A

police sergeant went to the appellant’s home and observed damage to the

right front corner and passenger side door of the appellant’s vehicle. Id. at

790. Upon speaking to the appellant, the sergeant noticed he had bloodshot

eyes, was slurring his speech, and appeared to be highly intoxicated.     Id.

The sergeant asked the appellant why he left the scene of the accident, and

the appellant responded that he had been drinking.      Id. at 790-91.    The



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J-A19033-16


appellant was arrested and taken to a hospital where his BAC was found to

be .30%. Id. at 791.

      At trial, in Eichler, a Pennsylvania state trooper who had conducted

accident reconstruction testified that the accident had occurred at nighttime,

there were no adverse weather or road conditions at the time of the

collision, and that the roadway was dry.         Id. at 788.     The trooper

determined that based on the conditions and the appellant’s speed, a

“reasonably sober attentive driver would be able to ascertain that there was

a threat in his lane, regardless of what it was . . . and a sober, attentive

driver would have been able to, at least, slow to a reasonable speed and . . .

steer out around the wheelchair, if not stop altogether.” Id. at 789. Thus,

this Court concluded that there was sufficient evidence of criminal

negligence for the jury to have convicted the appellant of aggravated assault

by vehicle while DUI. Id. at 792.

      Instantly, we are constrained to conclude that the facts of Appellant’s

case are more analogous to those in Heck than in Eichler. We acknowledge

that although Appellant’s accident occurred during the daytime with no

hazardous weather or road conditions, Appellant was clearly intoxicated.

When Officer Davis arrived on the scene he detected an odor of alcohol on

Appellant’s breath and he administered two field sobriety tests, both of

which Appellant failed.   A blood test also revealed Appellant’s BAC to be

0.153%, an amount above the legal limit.        Under these circumstances,



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Appellant should have known that his actions would constitute a hazard.

See Heck, 492 A.2d at 217. Nevertheless, considering the entire situation,

the evidence presented at trial was insufficient to prove Appellant knew that

making a left-hand turn while DUI presented a risk to Mr. Scott. See id. at

216. Thus, Appellant’s actions did not constitute a “gross deviation from the

standard of care that a reasonable person would observe in the actor’s

situation.” 18 Pa.C.S. § 302(b)(4). See Kutzel, 64 A.3d at 1119.

       Moreover, none of the evidence presented at trial sufficiently proved

Appellant’s actions were “accompanied by [a] lack of awareness of a risk.”

See Heck, 492 A.2d at 216.          Garber-Shaw testified that she and her

husband were in a freightliner van directly behind Appellant’s vehicle and,

therefore, could clearly see completely over Appellant’s vehicle at the traffic

coming in the opposite direction.    N.T. Trial, 5/18/15, at 38-39.     Garber-

Shaw further testified that Appellant’s vehicle waited until the traffic cleared

to make a left-hand turn into the gas station. Id. at 39. Unlike in Eichler,

the Commonwealth failed to present any evidence that Appellant was driving

poorly prior to the accident. Furthermore, the Commonwealth presented no

expert testimony that a reasonably sober and attentive driver would have

been able to appreciate the risk. See Eichler, 133 A.3d at 789. Therefore,

Appellant’s actions did not exhibit more than a mere failure “to act with

reasonable care or attention” for ordinary civil negligence. See Heck, 492

A.2d   at 216-17.   Accordingly, there was insufficient evidence to support



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Appellant’s convictions for aggravated assault by vehicle while DUI,

aggravated assault by vehicle,6 and simple assault.       See 75 Pa.C.S. §§

3735.1(a), 3732.1(a); 18 Pa.C.S. § 2701(a)(2).        We reverse Appellant’s

judgment of sentence for these offenses and remand for resentencing.7

      Judgment of sentence reversed.         Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/21/2017




6
   We note that Appellant waived any challenge to the element of
“recklessness” in the offense of aggravated assault by vehicle for failing to
provide argument in his brief. See Pa.R.A.P. 2119(a). Nevertheless, even if
properly raised, our disposition precludes a finding of recklessness following
a determination of insufficient evidence of criminal negligence.
7
  In reversing Appellant’s judgment of sentence for these offenses, we have
disturbed the court’s overall sentencing scheme. Therefore, we remand for
resentencing on the remaining convictions.        See Commonwealth v.
Williams, 871 A.2d 254, 266 (Pa. Super. 2005) (citations omitted).



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