J-S35025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

BRAHEEM M. HERBERT,

                            Appellant              No. 2663 EDA 2015


        Appeal from the Judgment of Sentence Entered August 20, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006142-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED JUNE 20, 2016

        Appellant, Braheem M. Herbert, appeals from the judgment of

sentence of 10 to 20 years’ incarceration, imposed after he was convicted of

one count each of aggravated assault,1 fleeing or attempting to elude a

police officer,2 simple assault,3 recklessly endangering another person

(REAP),4 and the possession of a controlled substance.5           Appellant


____________________________________________


1
    18 Pa.C.S. § 2702(a).
2
    75 Pa.C.S. § 3733(a).
3
    18 Pa.C.S. § 2701(a).
4
    18 Pa.C.S. § 2705.
5
    35 P.S. § 780-113(a)(16).
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challenges the sufficiency of the evidence to sustain his convictions.    After

careful review, we affirm.

        Appellant’s convictions stem from an incident on March 29, 2014,

where Appellant fled from police while operating a vehicle and ultimately

crashed the vehicle, which resulted in injuries to the passenger. Appellant

was arrested and found guilty of the above-stated charges at a non-jury trial

held on June 18, 2015.          On August 20, 2015, the trial court sentenced

Appellant to 10 to 20 years’ incarceration.          Following his sentencing,

Appellant timely filed a notice of appeal.

        On September 1, 2015, the court issued an order in conformance with

Pa.R.A.P. 1925(b)(3), directing Appellant to file a concise statement of

errors complained of on appeal within 21 days of the date of the order.6

Thus, the deadline to file a Rule 1925(b) statement was September 22,

2015.     Appellant’s concise statement of errors was clearly untimely, as it

was not filed until October 1, 2015.             However, we have previously
____________________________________________


6
    The order also informed Appellant that:

        Failure to comply with this directive may be deemed as a waiver
        of all issues for appellate review. See Commonwealth v.
        Lemon, 804 A.2d 34, 36-37 (Pa. Super. 2002) (finding that
        defendant’s sufficiency of the evidence was waived where the
        1925(b) statement merely stated that the “verdict was against
        the weight of the evidence” because the statement was too
        vague and “the functional equivalent of filing no [c]oncise
        statement at all”).

Pa.R.A.P. 1925(b)(3) Order, 9/1/15.



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determined that when an untimely Rule 1925(b) statement is filed “and the

trial court has addressed those issues[,] we need not remand and may

address   the   merits    of   the   issues   presented.”   Commonwealth v.

Thompson, 39 A.3d 335 (Pa. Super. 2012). Accordingly, to the extent that

Appellant’s issues have been addressed by the trial court in its 1925(a)

opinion, we will overlook the untimeliness of Appellant’s concise statement

and address the merits of the issues contained therein.

      Appellant presents the following two issues for our review:

      1. Should the conviction for aggravated assault be reversed
         because the Commonwealth offered insufficient evidence of
         malice?

      2. Should the convictions for simple assault, recklessly
         endangering another person and fleeing or attempting to
         elude a police officer be discharged on grounds of insufficient
         evidence?

Appellant’s Brief at 4.

      Before addressing Appellant’s sufficiency claims, we review the facts of

the incident which led to Appellant’s convictions, as summarized by the trial

court in the following portion of its Rule 1925(a) opinion:

             On March 29, 2014, Pennsylvania State Trooper Edmond
      Homa was traveling eastbound on the Schuylkill Expressway
      when he observed a GMC Suburban swerving in and out of its
      lane of travel, which was in violation of Section 3309 of the
      Pennsylvania [M]otor [V]ehicle [C]ode. The vehicle also had an
      inoperable left brake light in violation of Section 4303[(b)] of the
      Code. Given these violations and his concern that the driver
      might be driving under the influence, Trooper Homa activated his
      lights and sirens in order to initiate a stop of the vehicle.

            The speed limit for the Schuylkill Expressway is 50 miles
      per hour. At the time he activated his lights and sirens, Trooper

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      Homa was traveling about 60 miles per hour. In response to the
      trooper’s activation of his lights and sirens, [Appellant] initially
      slowed down but then accelerated quickly. [Appellant] also
      drove past a wide left shoulder area where he could have safely
      stopped. During the pursuit, [Appellant’s] vehicle was traveling
      up to 80 miles per hour as well as swerving in and out of its lane
      of travel. He also nearly “took out” a few vehicles that were
      traveling in the same direction and forced those vehicles out of
      their lane or to brake. As [Appellant’s] vehicle approached an
      overpass, it abruptly exited onto the Roberts Avenue exit. As it
      swerved onto the exit, the vehicle rolled over several times.
      During the roll over, [Appellant] was ejected from the driver’s
      side window of the vehicle. Tyrese McDaniels [(McDaniels)], a
      passenger in the vehicle, was also ejected from the vehicle and
      ultimately pinned underneath the vehicle, which came to rest
      upside down.

             Trooper Homa and several other people were able to lift
      the vehicle off of McDaniels.       At this time, McDaniels was
      unconscious, bleeding from the head, and suffering from multiple
      abrasions to his head. He was admitted to the hospital where it
      was determined that he had suffered multiple fractures to his
      right rib and a crushed collarbone. McDaniels was not wearing a
      seat belt at the time of the crash.

Trial Court Opinion (TCO), 10/29/15, at 1-2 (citations to record omitted).

      Appellant first argues that the evidence presented at trial was

insufficient to sustain his conviction of aggravated assault.      Specifically,

Appellant argues that the Commonwealth failed to establish the requisite

malice to uphold an aggravated assault conviction. Appellant’s Brief at 12,

17.

      To begin, we note our standard of review:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact

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     finder. The evidence may be entirely circumstantial as long as it
     links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted).

     It is well-settled that:

     A person may be convicted of [a]ggravated [a]ssault graded as a
     first degree felony if he “attempts to cause serious bodily injury
     to another, or causes such injury intentionally, knowingly or
     recklessly under circumstances manifesting extreme indifference
     to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1).

Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013).

     To prevail on a theory of recklessness in a prosecution for
     aggravated assault, the Commonwealth must show that the
     assailant’s recklessness rose to the level of malice, a crucial
     element of aggravated assault. The malice that is required for
     aggravated assault is the same as that required for third degree
     murder.     Malice consists of a “wickedness of disposition,
     hardness or heart, cruelty, recklessness of consequences, and a
     mind regardless of social duty, although a particular person may
     not be intended to be injured.” Commonwealth v. Pigg, 391
     Pa. Super. 418, 571 A.2d 438, 441 (1990), citing
     Commonwealth v. Drum, 58 Pa. 9, 15 (1868). Motor vehicle
     crashes seldom result in an aggravated assault conviction
     because of this heightened mens rea.         However, in some
     circumstances the malice requirement has been met, and this
     court has not hesitated to uphold an aggravated assault or a
     third degree murder charge depending on the particular facts of
     a motor vehicle crash.

Commonwealth v. Miller, 955 A.2d 419, 422 (Pa. Super. 2008) (citations

omitted).

     Appellant avers that his conviction of aggravated assault should be

reversed due to the Commonwealth’s failure to prove beyond a reasonable

doubt that he acted with malice.      Appellant’s Brief at 12.     Appellant



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acknowledges that he “drove at a high rate of speed” and that “after the

trooper began his pursuit, [he] drove faster.”          Id. at 18.   However,

Appellant avers that his act of speeding and swerving the vehicle amount to

no more than recklessly endangering another person.          Id. at 19.    We

disagree with Appellant’s conclusion.

      In Miller, we dealt solely with the issue of whether the evidence

presented was sufficient to establish that the appellant acted with the

necessary mens rea to be convicted of aggravated assault. Miller, 955 A.2d

at 422.   Similar to the facts in the present case, in Miller, an officer

witnessed the appellant speeding and driving erratically and signaled for him

to pull over. The appellant eventually stopped, but when the officer pulled

up next to him, “he ‘gunned’ the engine of his vehicle and fled the scene at a

high rate of speed.”    Id. at 420.     The appellant continued traveling at

approximately 60 to 70 miles per hour, fishtailing around corners, and

eventually speeding through a red traffic light and colliding with two other

vehicles. Id. at 421.

      As part of our analysis in Miller, we noted that, “[o]ur [S]upreme

[C]ourt has … recently indicated that a conviction based on malice is

appropriate where there is evidence of ‘sustained recklessness by a driver in

the face of an obvious risk of harm to his victims.’”   Miller, 955 A.2d at 422

(quoting Commonwealth v. Kling, 731 A.2d 145, 149 (Pa. Super. 1999)

(emphasis added by Kling)).      In Miller, we concluded that “there was a

sustained pattern of reckless driving on numerous city streets for an

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extended period of time.” Id. at 423. We also stated that the appellant’s

blatant disregard of the officer’s request to pull over and stop prior to the

crash supported a finding of malice.   Id.    Additionally, we noted that “a

motorist’s conduct is more egregious if he does not apply his brakes or

attempt to slow down before a collision than if he attempts to stop.”      Id.

Thus, “[w]e must look at the cumulative facts of appellant’s combined

actions in addressing the sufficiency of evidence for an aggravated assault

conviction.” Id.

     In the instant case, the evidence thoroughly analyzed by the trial court

as summarized in its opinion, clearly supports the court’s finding of

aggravated assault and the required mens rea:

           [Appellant] was aware that Trooper Homa was attempting
     to stop him by the fact that he initially slowed down his vehicle.
     [Appellant’s] sudden and aggressive acceleration to up to 80
     miles per hour—more than 30 miles per hour over the posted
     speed limit—indicates his deliberate intent to attempt to get
     away from Trooper Homa regardless of the risk to his passenger
     who was seated next to him. [Appellant’s] initial slowing down
     and then sudden acceleration of the vehicle confirms that
     [Appellant] had ample time to calculate the risk of driving at an
     excessively high rate of speed on a crowded highway. Additional
     evidence of [Appellant’s] mens rea is that his vehicle swerved in
     and out of his lane and that he made a sudden exit off of the
     highway at an excessively high rate of speed. All of [Appellant’s]
     actions occurred on a busy highway with several other vehicles
     in nearby traffic lanes.     Last, the trial court recalls that
     [Appellant] may have applied the brakes during the initial
     portion of the video, but does not recall any effort by [Appellant]
     to slow down immediately before the crash.

           The aggregate of these circumstances is proof that
     [Appellant] was aware that his reckless conduct was nearly
     certain to result in a serious or fatal vehicle accident. By


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      disregarding the opportunity to safely pull over on a wide left
      shoulder area of the highway, aggressively accelerating to an
      excessively high rate of speed, fishtailing out of control on a
      highway with several other vehicles (requiring those vehicles to
      brake or swerve to avoid contact), disregarding the state
      trooper’s lights and sirens to stop, and then making a sharp turn
      onto an exit, he consciously disregarded the substantial risk of
      causing death or serious bodily injury to McDaniels, who was the
      passenger in his vehicle. Indeed, the foreseeable consequences
      of his actions resulted in McDaniels being ejected out of the
      vehicle and ultimately pinned underneath the vehicle, which had
      rolled upside down. [Appellant’s] “actions indicate the state of
      mind of a person who cares not whether he maims or kills
      another.” Miller, 955 A.2d at 423.

TCO at 4, 5. After careful review, we are likewise satisfied that the evidence

is sufficient to support a conviction of aggravated assault.

      Appellant next challenges the sufficiency of the evidence to support his

convictions for simple assault, REAP, and fleeing or attempting to elude a

police officer. Appellant’s Brief at 4, 12. Preliminarily, we note that “issues

not raised in a Rule 1925(b) statement will be deemed waived for review.”

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011).              See

also Pa.R.A.P. 1925(b)(4)(vii). As we explained in Hansley:

      An appellant’s concise statement must properly specify the error
      to be addressed on appeal. In other words, the Rule 1925(b)
      statement must be specific enough for the trial court to identify
      and address the issue an appellant wishes to raise on appeal. A
      concise statement which is too vague to allow the court to
      identify the issues raised on appeal is the functional equivalent
      of no concise statement at all. The court’s review and legal
      analysis can be fatally impaired when the court has to guess at
      the issues raised. Thus, if a concise statement is too vague, the
      court may find waiver.

Id. at 415 (internal quotation marks, brackets, and citations omitted).



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      Here, Appellant states his second issue in his brief as follows: “Should

the convictions for simple assault, [REAP] and fleeing or attempting to elude

a police officer be discharged on grounds of insufficient evidence?”

Appellant’s Brief at 4.   However, in his Rule 1925(b) statement, Appellant

merely states the following regarding these convictions:

      1. [Appellant] was convicted of aggravated assault, fleeing or
         attempting to flee an officer, knowing and intentional
         possession of a controlled substance, simple assault and
         [REAP].

                                       …

      3. The accident followed a chase by a State trooper. The charge
         of [REAP] relates to other motorists who were on the
         highway. The charge of [REAP] does not relate to the injuries
         sustained by the victim.

Appellant’s Pa.R.A.P. 1925(b) Statement, 10/1/15, at 1-2 (unpaginated).

      Paragraph 1 consists only of a statement of fact that Appellant was

convicted of the above-stated offenses.      Paragraph 3 references only the

REAP charge and fails to assert any sufficiency claim for any of the charges

listed in Appellant’s second claim on appeal.     Thus, we are compelled to

conclude that Appellant’s challenge to the sufficiency of the evidence for his

remaining   convictions   has   been   waived.    See   Commonwealth        v.

Reynolds, 835 A.2d 720, 732 (Pa. Super. 2003) (stating that the failure to

raise an issue in a court ordered Rule 1925(b) statement results in the

waiver of that issue on appeal).

      Nevertheless, even if Appellant had properly preserved the remaining

sufficiency claims, we would conclude that his second issue is meritless. The

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offense of REAP is defined as follows: “A person commits a misdemeanor of

the second degree 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.

      It is well settled that REAP is a lesser included offense of
      aggravated assault,

          Once the prosecution has proved that an individual caused
          or attempted to cause serious bodily injury under
          circumstances manifesting an extreme indifference to
          human life, it also has established that the same person
          recklessly engaged in conduct that placed or may have
          placed another person in danger of death or serious bodily
          injury.   Every element of reckless endangerment is
          subsumed in the elements of aggravated assault.

Commonwealth v. McCalman, 795 A.2d 412, 417 (Pa. Super. 2002)

(quoting Commonwealth v. Dobbs, 682 A.2d 388, 391 (Pa. Super. 1996))

(emphasis in original omitted).        Similarly, we have acknowledged that

“[n]umerous cases state that simple assault is a lesser included offense of

aggravated assault” and REAP. Commonwealth v. Ferrari, 593 A.2d 846,

849 (Pa. Super. 1991); Commonwealth v. Brunson, 938 A.2d 1057,

1061-62 (Pa. Super. 2007) (concluding “simple assault is a lesser included

offense of [REAP] since the elements of simple assault are necessarily

included in the offense of [REAP].”)

      If each and every element of one offense is necessarily an
      element of a greater offense, the former offense is a lesser
      included offense of the latter. In order for one offense to be
      considered a lesser included offense of another, therefore, the
      commission of the greater offense must necessarily involve the
      commission of the lesser.


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Ferrari, 593 A.2d at 848 (internal citations omitted).   Accordingly, having

already determined that the evidence was sufficient to sustain a conviction

of aggravated assault, we also conclude the evidence supports Appellant’s

convictions of REAP and simple assault.

      Finally, the offense of fleeing or attempting to elude a police officer

has been defined, in relevant part, as follows:

      Any driver of a motor vehicle who willfully fails to bring his
      vehicle to a stop, or who otherwise flees or attempts to elude a
      pursuing police officer, when given a visual and audible signal to
      bring the vehicle to a stop, commits an offense as graded in
      subsection (a.2).

75 Pa.C.S. § 3733(a).     Based on the evidence, the trial court reasonably

found Appellant guilty of this charge.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2016




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