J-A02027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GARY V. DAMARIO

                            Appellant                 No. 1101 MDA 2015


              Appeal from the Judgment of Sentence May 27, 2015
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-SA-0000016-2015


BEFORE: PANELLA, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                              FILED APRIL 22, 2016

        Appellant, Gary V. Damario, appeals from the judgment of sentence

entered May 27, 2015, in the Court of Common Pleas of York County. 1 On




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  On April 20, 2016, counsel for Damario, Kaitlyn S. Clarkson, Esquire, filed
a “Notice of Death,” informing this Court that Damario passed away on April
3, 2016. The Notice is more properly titled, “Suggestion of Death of
Appellant.” See G. RONALD DARLINGTON, KEVIN J. MCKEON, DANIEL R. SCHUCKERS
& KRISTEN W. BROWN, PENNSYLVANIA APPELLATE PRACTICE § 502:2 (2015-2016).
See also Pa.R.A.P. 502. “[T]he death of an appellant pending appeal does
not moot the appeal.” Commonwealth v. Bizzaro, 535 A.2d 1130, 1132
(Pa. Super. 1987). We therefore proceed to dispose of this appeal on the
merits and affirm the judgment of sentence. See Commonwealth v.
Walker, 288 A.2d 741 (Pa. 1972) (affirming judgment of sentence where
appellant died during pendency of appeal).
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appeal, Damario argues that his conviction of reckless driving2 was against

the sufficiency and weight of the evidence. No relief is due.

        At approximately 3:15 p.m. on September 8, 2014, Scott Harper was

driving eastbound on West Market Street in the City of York when the door

to a car parked alongside the street abruptly opened. See N.T., Summary

Conviction Appeal Hearing, 5/27/15 at 4. When Harper swerved to avoid

hitting the car door, he observed that the man driving the car in the

adjacent lane darted forward and “started shaking his fists … and yelling.”

Id. at 5. The man, who Harper identified as Damario, then maneuvered his

vehicle into Harper’s lane and starting repeatedly “brake checking” so that

Harper had to activate his own brakes in order to avoid a collision. Id. at 5,

11. Although Harper moved his vehicle into another lane to avoid Damario,

Damario also switched lanes and again pulled in front of Harper’s vehicle.

See id. at 6.

        When the vehicles eventually came to a stop at a red light Damario

put his car in reverse and began backing up towards Harper’s vehicle. See

id. Harper estimated that Damario’s vehicle came within approximately five

to ten feet from his. See id. When the very same thing happened at the

next red light, Harper was able to get a picture of the license plate on

Damario’s vehicle with his cell phone. See id. at 6-7. Damario thereafter


____________________________________________


2
    75 Pa.C.S.A. § 3736.



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sped off, squealing his tires. See id. at 7. Harper estimated that the entire

incident occurred over a span of five to seven blocks. See id. at 15.

      Damario was cited for reckless driving. At a trial de novo held on May

27, 2015, the Commonwealth presented the testimony of Harper. Damario

testified in his own defense. At the close of the hearing, the trial court

credited Harper’s testimony and convicted Damario of reckless driving. This

timely appeal followed.

      On appeal, Damario challenges both the sufficiency and weight of the

evidence in support of his conviction. We review a challenge to the

sufficiency of the evidence as follows.

      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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      However, the inferences must flow from facts and circumstances
      proven in the record, and must be of such volume and quality as
      to overcome the presumption of innocence and satisfy the jury
      of an accused’s guilt beyond a reasonable doubt. The trier of fact
      cannot base a conviction on conjecture and speculation and a
      verdict which is premised on suspicion will fail even under the
      limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citations omitted).

      Conversely, a challenge to the weight of the evidence “concedes that

the evidence is sufficient to sustain the verdict, but seeks a new trial on the

ground that the evidence was so one-sided or so weighted in favor of

acquittal     that   a   guilty   verdict   shocks   one’s   sense   of   justice.”

Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014), appeal

denied, 99 A.3d 925 (Pa. 2014) (citation omitted). A verdict is said to be

contrary to the evidence such that it shocks one’s sense of justice when “the

figure of Justice totters on her pedestal,” or when “the jury’s verdict, at the

time of its rendition, causes the trial judge to lose his breath, temporarily,

and causes him to almost fall from the bench, then it is truly shocking to the

judicial conscience.” Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.

Super. 2004) (citations omitted), aff’d, 938 A.2d 198 (Pa. 2007).

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question of
            whether the verdict is against the weight of the evidence.
            Because the trial judge has had the opportunity to hear
            and see the evidence presented, an appellate court will


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        give the gravest consideration to the findings and reasons
        advanced by the trial judge when reviewing a trial court's
        determination that the verdict is against the weight of the
        evidence. One of the least assailable reasons for granting
        or denying a new trial is the lower court’s conviction that
        the verdict was or was not against the weight of the
        evidence and that a new trial should be granted in the
        interest of justice.

     This does not mean that the exercise of discretion by the trial
     court in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court's discretion, we have
     explained:

        The term “discretion” imports the exercise of judgment,
        wisdom and skill so as to reach a dispassionate conclusion
        within the framework of the law, and is not exercised for
        the purpose of giving effect to the will of the judge.
        Discretion must be exercised on the foundation of reason,
        as opposed to prejudice, personal motivations, caprice or
        arbitrary actions. Discretion is abused where the course
        pursued represents not merely an error of judgment, but
        where the judgment is manifestly unreasonable or where
        the law is not applied or where the record shows that the
        action is a result of partiality, prejudice, bias or ill-will.

Orie, 88 A.3d at 1015-1016 (citation omitted).

     The Vehicle Code defines the offense of reckless driving as “driv[ing]

any vehicle in willful or wanton disregard for the safety of persons or

property.” 75 Pa.C.S.A. § 3736. This Court has determined that

     the mens rea necessary to support the offense of reckless
     driving is a requirement that Appellant drove in such a manner
     that there existed a substantial risk that injury would result from
     his driving, i.e., a high probability that a motor vehicle accident
     would result from driving in that manner, that he was aware of
     that risk and yet continued to drive in such a manner, in
     essence, callously disregarding the risk he was creating by his
     own reckless driving.

Commonwealth v. Bullick, 830 A.2d 998, 1002 (Pa. Super 2003).

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      Appellant argues, relying on our decision in Commonwealth v.

Greenburg, 885 A.2d 1025 (Pa. Super. 2005), that the evidence was

insufficient to establish that his conduct was “willful or wanton.” Appellant’s

Brief at 17-18. In Greenburg, the appellant was driving 20 miles over the

speed limit and was therefore unable to properly negotiate a sharp turn in

the road. See 885 A.2d at 1026. Appellant spun across two lanes of travel

and crashed into an oncoming car. See id. Appellant was cited for reckless

driving and, following a de novo nonjury trial, was convicted and fined.

      In discussing the reckless driving statute on direct appeal, this Court

noted that the statute requires “something more than ordinary negligence”

and that in order to prove that a driver was reckless, it must be shown that

his driving was “a gross departure from prudent driving standards.” Id. at

1027. Based on the facts of that case, we held that appellant’s conduct in

driving too fast for the road conditions did not arise to the level of

recklessness. See id. at 1028. The panel reasoned that because the

roadway was a four-lane highway in a suburban area, there was no

indication that appellant was traveling so fast as to create a high probability

that a motor vehicle accident would occur. See id. Correspondingly, the

panel determined that there was insufficient evidence of a “conscious

disregard for the danger being created.” Id. at 1030.

      Damario argues that that facts of the instant case are similar in that

there is no evidence that he acted in conscious disregard for the danger his

conduct created. See Appellant’s Brief at 18. Damario asserts that he was

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not speeding, and essentially argues that the five block distance over which

the incident occurred was such that he had no time to recognize the risk his

conduct might have created. See id. at 19.

      Damario points to no case law or other support for his contention that

reckless driving must occur over a sufficient distance or time so that the

driver is able to appreciate the danger of his conduct. That is, of course,

because such a requirement does not exist. All that our case law requires is

that there is sufficient evidence of a conscious disregard for the danger

being created. In contrast to the facts presented in Greenberg, Damario

acted in willful or wanton disregard for the safety of persons or property in

repeatedly brake-checking his vehicle and then suddenly reversing his

vehicle towards the car behind him. Although Damario was not speeding, he

concedes in his brief that the traffic at the time and place in which the

incident occurred was “heavy.” Appellant’s Brief at 19.

      Damario’s intentional conduct clearly evidenced a conscious disregard

for the danger of a collision he created not only with respect to Harper, the

direct object of his irrational ire, but also to those travelling the city roadway

around him. Viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, we find that the evidence was sufficient to

support Damario’s conviction of reckless driving.

      We similarly find no merit to Damario’s claim that his conviction was

against the weight of the evidence. The figure of Justice is firmly rooted to

her pedestal in this case. Nothing about the verdict is contrary to the

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evidence to shock one’s sense of justice. Damario’s argument amounts to

nothing more than an attack on the trial court’s decision to credit the

testimony of Harper over Damario’s own countervailing testimony. This we

cannot do. See Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 (Pa.

2007) (“The Superior Court cannot deem incredible that which the fact-

finder deemed worthy of belief.”). Thus, we agree that Damario’s weight of

the evidence claim is wholly frivolous.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/2016




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