J-A23037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEREMY PAUL LEFEVER

                            Appellant                No. 1488 WDA 2014


             Appeal from the Judgment of Sentence March 6, 2014
                 In the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0001314-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED OCTOBER 2, 2015

       Appellant, Jeremy Paul Lefever, appeals from the judgment of

sentence entered in the Butler County Court of Common Pleas, following his

jury trial convictions of recklessly endangering another person (“REAP”) and

fleeing or attempting to elude a police officer, and his bench trial convictions

of reckless driving, driving while operating privilege is suspended or

revoked—driving under the influence of alcohol or a controlled substance

(“DUI”), and failure to stop at a red signal.1 We affirm.

       The relevant facts and procedural history of this case are as follows.

On July 11, 2012, at approximately 1:00 a.m., Lieutenant James Hollobaugh

____________________________________________


1
  18 Pa.C.S.A. § 2705, 75 Pa.C.S.A. §§ 3733(a), 3736(a), 1543(b)(1) (3802
related), and 3112(a)(3)(i), respectively.
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of the City of Butler Police Department saw a lone driver operating a small,

dark, hatchback-type vehicle run a steady red light in Butler.     Lieutenant

Hollobaugh activated his police cruiser’s lights and attempted to initiate a

traffic stop of the vehicle. The vehicle failed to stop, accelerated, and fled

from Lieutenant Hollobaugh, who pursued the vehicle in his police cruiser

and called for backup.     The pursuit continued for several blocks when

Lieutenant Hollobaugh activated his police cruiser’s siren.     The pursued

vehicle then proceeded to turn onto a one-way street in the wrong direction

and nearly struck an oncoming vehicle. Lieutenant Hollobaugh lost sight of

the vehicle for approximately fifteen (15) seconds. He then saw a tall, white

man wearing a dark tank top running from the pursued vehicle, which was

parked in a private driveway about two blocks from where Lieutenant

Hollobaugh lost sight of the vehicle. Lieutenant Hollobaugh parked behind

the vehicle and discovered it was registered to Ms. Alicia Kniess. Lieutenant

Hollobaugh knew from prior incidents that Appellant lived at the same

address as Ms. Kniess.

      Meanwhile, Patrolman David Villotti of the Butler Police Department

responded to Lieutenant Hollobaugh’s call for backup.       Patrolman Villotti

observed a tall, white man in a dark tank top walking approximately one

block from where Lieutenant Hollobaugh located the parked vehicle.

Patrolman Villotti stopped the man and identified him as Appellant.      Keys

matching the pursued vehicle were found on Appellant’s person.


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     Appellant filed an omnibus pretrial motion on October 10, 2012, to

suppress the keys found on his person. The court conducted a hearing and

denied Appellant’s motion on February 14, 2013. Thereafter, on January 29,

2014, a jury convicted Appellant of REAP and fleeing or attempting to elude

a police officer, and the court convicted Appellant of the summary offenses

of reckless driving, driving while operating privilege is suspended or

revoked—DUI, and failure to stop at a red signal. Appellant filed a motion

for judgment of acquittal on February 10, 2014, which the court denied on

February 12, 2014.   The court sentenced Appellant on March 6, 2014, to

sixty (60) days’ to twelve (12) months’ imprisonment for fleeing or

attempting to elude a police officer, plus a consecutive ninety (90) days’

imprisonment for driving while operating privilege is suspended, followed by

twelve (12) months’ probation for REAP.

     Appellant timely filed a post-sentence motion on Monday, March 17,

2014, which was denied by operation of law on August 15, 2014. Appellant

timely filed a notice of appeal on September 12, 2014. 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 issues for our review:

        WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS
        INSUFFICIENT TO SUPPORT THE JURY AND TRIAL
        COURT’S FINDING THAT APPELLANT WAS THE ACCUSED,
        THE DRIVER OF THE PURSUED VEHICLE.

        WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS

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         INSUFFICIENT TO SUPPORT THE JURY AND TRIAL
         COURT’S FINDING THAT THE UNNAMED VICTIM WAS
         PLACED [IN] ACTUAL DANGER OF DEATH OR SERIOUS
         BODILY INJURY.

         WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
         DISCRETION IN FINDING THAT THE VERDICTS WERE NOT
         AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED AT
         TRIAL.

(Appellant’s Brief at 4).

      In issues one and two combined, Appellant argues there was

insufficient evidence to sustain his bench and jury trial convictions.

Appellant contends the Commonwealth failed to prove beyond a reasonable

doubt that Appellant was the driver of the pursued vehicle and that Ms.

Kniess’ vehicle was the pursued vehicle. Appellant alleges the fact finders’

assumptions that the parked car was the pursued vehicle, that Appellant was

the man seen running from the parked car, and that Appellant had been

driving the parked car during the pursuit were all based solely on

circumstantial evidence. Appellant claims Lieutenant Hollobaugh was unable

to provide any details which would have positively identified the vehicle he

pursued, such as the license plate information or the make, model or color of

the pursued vehicle.        Appellant also contends Lieutenant Hollobaugh’s

description of the man the Lieutenant saw running from the parked car was

insufficient because he saw the individual for only a brief second, at night,

from a block away.

      Appellant also argues the Commonwealth failed to prove REAP beyond


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a reasonable doubt because the alleged victim was not in actual danger of

death or serious bodily injury from the pursued vehicle.    Appellant claims

Lieutenant Hollobaugh’s testimony that Appellant nearly struck an oncoming

vehicle on a one-way street was the only evidence that Appellant allegedly

placed another individual in danger of death or serious bodily injury.

Appellant alleges the surrounding circumstances were not so inherently

dangerous to prove actual danger or to suggest that a risk was created when

Appellant allegedly drove recklessly down a one-way street.        Appellant

maintains the Commonwealth’s evidence was insufficient to bear the burden

of proving every element of the charges against him beyond a reasonable

doubt.   Appellant concludes this Court should reverse the judgment of

sentence. We disagree.

     Initially, we observe:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted…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

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          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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

     Section 2705 of the Crimes Code provides:

          § 2705. Recklessly endangering another person

          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.A. § 2705.

          Thus, [this] crime requires (1) a mens rea of recklessness,
          (2) an actus reus some “conduct,” (3) causation “which
          places,” and (4) the achievement of a particular result
          “danger,” to another person, of death or serious bodily
          injury.

Commonwealth v. Reynolds, 835 A.2d 720, 727 (Pa.Super. 2003)

(quoting Commonwealth v. Trowbridge, 395 A.2d 1337, 1340 (Pa.Super.

1978)).   See Commonwealth v. Klein, 795 A.2d 424 (Pa.Super. 2002)

(indicating mens rea for REAP is conscious disregard of known risk of death

or great bodily harm to another person, and serious bodily injury is bodily

injury which creates substantial risk of death or causes serious, permanent

disfigurement or protracted loss or impairment of function of any bodily

member or organ). Significantly, REAP “is a crime of assault which requires


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the creation of danger” so “there must be an actual present ability to inflict

harm.” Reynolds, supra at 727-28 (quoting Commonwealth v. Rivera,

503 A.2d 11, 12 (Pa.Super. 1985) (en banc)) (internal quotation marks

omitted).

      Instantly, the trial court concluded:

         On January 29, 2014, [Appellant] was convicted by a jury
         of [REAP], 18 Pa.C.S.A. § 2705, and fleeing/attempting to
         elude police, 75 Pa.C.S.A § 3733(a). On the same date,
         [the] [c]ourt found [Appellant] guilty of the summary
         charges of reckless driving, driving under suspension, DUI
         related, and failure to stop at a red signal. [Appellant]
         contends that at trial, the Commonwealth’s witnesses
         never identified the driver of vehicle being pursued as
         [Appellant] and that the affiant, Lt. James Hollobaugh of
         the Butler City Police Department, could not confirm the
         color, make, model and license plate of the vehicle.

         Lt. Hollobaugh testified at trial that on July 11, 2012, just
         before 1:00 a.m., he was following a “smaller,
         darker/black hatchback-type vehicle” occupied by the
         driver only when he observed the vehicle proceed through
         a steady red signal northbound on Main Street at the
         intersection with Jefferson Street in the city of Butler. This
         traffic violation led to a chase within an area comprised of
         a few blocks.

         Lt. Hollobaugh further testified that he turned on his
         vehicle’s overhead lights and attempted to initiate a traffic
         stop.    The operator of the vehicle accelerated quickly
         whereupon the Lt. activated his vehicle’s siren.        The
         operator turned south onto McKean Street, which is a one-
         way northbound street, one block east of Main Street. The
         operator of the small dark vehicle nearly collided with a
         northbound vehicle on McKean Street. Lt. Hollobaugh lost
         sight of the vehicle briefly when he saw a tall, white man
         wearing a dark tank top running and observed the vehicle
         [the Lieutenant] was following parked in a private
         driveway nearby. Lt. Hollobaugh parked his vehicle behind
         the pursued vehicle and ran the plate through PennDOT.

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       The tall, white man was detained by Patrolman Villotti less
       than one block from the parked vehicle. Lt. Hollobaugh
       testified that the person he observed running was the
       same individual detained by Patrolman Villotti.

       Patrolman Villotti testified at trial that he was responding
       to Lt. Hollobaugh’s call for backup just after 1:00 a.m. and
       as [Patrolman Villotti] was turning onto the 200 block of
       East Brady Street, he observed a male walking towards
       him. At that moment, Lt. Hollobaugh radioed to stop the
       male walking down East Brady Street. Patrolman Villotti
       detained the tall, white man wearing a dark tank top who
       was identified as [Appellant]. The car keys found on
       [Appellant’s] person belonged to the small, dark hatchback
       parked in the private driveway. The patrolman testified
       that there were no other people in that area at that time.

       At trial, the Commonwealth introduced the dashboard
       camera video recording of the pursuit in question from Lt.
       Hollobaugh’s patrol vehicle, Commonwealth’s Exhibit “3”.
       It was admitted without objection and viewed by the jury.
       The Commonwealth also introduced Commonwealth’s
       Exhibit “4” and “5”. Exhibit “4” is a map of downtown
       Butler and Exhibit “5” is the same map with arrow
       markings to show the route of the pursuit. Both were
       admitted without objection. The maps clearly point out the
       short distance traveled during the pursuit as well as
       [Appellant’s] proximity to the parked car pursued during
       the chase.     Additionally, the events of this incident
       occurred within a very short period of time. From the
       moment Lt. Hollobaugh first observed the small dark
       hatchback vehicle on Main Street to the time at which
       [Appellant] was detained was a matter of minutes.

       [The] [c]ourt concurs with the jury verdicts that each
       material element of the crimes charged and the
       commission thereof by [Appellant] was proven beyond a
       reasonable doubt. The direct evidence provided by the
       officers’ eyewitness accounts, as well as the circumstantial
       evidence of the exhibits links [Appellant] to the crime[s]
       beyond a reasonable doubt. [The] [c]ourt believes that
       the jury could determine the presence of that quantum of
       evidence necessary to establish the elements of the
       crimes. Further, the trial court may not change a verdict

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         based upon a redetermination of credibility or a
         reevaluation of the evidence. [The] [c]ourt also found that
         the evidence presented at trial, as it relates to the
         summary offenses, proved those offenses beyond a
         reasonable doubt.

(Trial Court Opinion, filed December 3, 2014, at 3-4) (internal citations and

quotation marks omitted). The record supports the trial court’s conclusions.

Moreover, Appellant’s conduct placed another individual in actual danger of

death or serious bodily injury when Appellant recklessly turned onto a one-

way street in the wrong direction, causing him almost to hit another vehicle

headed in the opposite direction. See Reynolds, supra. Thus, there was

sufficient evidence to support the finding that Appellant was the driver of the

pursued vehicle and that he put another in danger of death or serious bodily

injury when Appellant drove the wrong way on a one-way street and almost

hit the oncoming vehicle.    See Hansley, supra.      Accordingly, Appellant’s

sufficiency of the evidence issues merit no relief.

      In his final issue, Appellant argues his verdicts were against the weight

of the evidence.      Appellant claims his presumption of innocence was

discarded in favor of Lieutenant Hollobaugh’s insufficiently corroborated

testimony. Appellant contends Lieutenant Hollobaugh’s testimony lacked the

adequate indicia of reliability to be considered as more than mere conclusory

testimony.    Appellant maintains there was no direct evidence or reliable

testimony that proved he was driving the pursued vehicle.            Appellant

concludes this Court should reverse the judgment of sentence. We disagree.


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      The following principles apply to our review of a weight of the evidence

claim:

            The weight of the evidence is exclusively for the
            finder of fact who is free to believe all, part, or none
            of the evidence and to determine the credibility of
            the witnesses. An appellate court cannot substitute
            its judgment for that of the finder of fact. Thus, we
            may only reverse the…verdict if it is so contrary to
            the evidence as to shock one’s sense of justice.

          Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
          666, 672-73 (1999). Moreover, where the trial court has
          ruled on the weight claim below, an appellate court’s role
          is not to consider the underlying question of whether the
          verdict is against the weight of the evidence. Rather,
          appellate review is limited to whether the trial court
          palpably abused its discretion in ruling on the weight
          claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted).

      Instantly, the court relied on its sufficiency analysis and determined:

          [T]he fact finders’ guilty verdicts are not against the
          weight of the evidence as the verdicts are not “so contrary
          to the evidence as to shock one’s sense of justice.” It is
          clear from the verdicts rendered that the fact finders found
          the direct and circumstantial evidence presented at trial to
          be credible and established the elements of the offenses
          charged.

(Trial Court Opinion at 4).   We accept the court’s conclusions.       Therefore,

Appellant’s weight of the evidence issue merits no relief.     Accordingly, we

affirm.

      Judgment of sentence affirmed.


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J-A23037-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2015




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