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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JOSEPH ANTHONY CAROTHERS

                            Appellant                    No. 1303 MDA 2014


             Appeal from the Judgment of Sentence March 19, 2014
               In the Court of Common Pleas of Lebanon County
               Criminal Division at No: CP-38-CR-0000130-2013


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                                FILED APRIL 07, 2015

        Joseph Anthony Carothers (“Appellant”) appeals from the judgment of

sentence entered after a jury convicted him of recklessly endangering

another person1 in connection with a road rage incident. We affirm.

        The facts, as set forth by the trial court, are as follows.

        On December 5, 2012, Jason Burrows was working on a vehicle
        with his roommate, Nick Fulton at their residence located at
        2102 Allegheny Avenue [in] Lebanon[.] Burrows and Fulton left
        the residence to purchase oil at AutoZone for the vehicle. While
        traveling down East Street, Burrows’ 1988 Ford Ranger was
        struck from behind. The collision occurred as both vehicles were
        traveling approximately 15 miles per hour. Burrows identified
        [Appellant] as the driver of the vehicle that struck his truck.
        After the collision, [Appellant] attempted to flee by driving
        around Burrows' truck and speeding down the road. Burrows and


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1
    18 Pa.C.S.A. § 2705.
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     Fulton pursued [Appellant] to try to get him to stop his vehicle
     and confront him regarding the collision.

     During the pursuit, the vehicles turned onto King Street. Burrows
     testified that [Appellant] slowed down and sped up his vehicle
     multiple times during the pursuit. At one point, [Appellant]
     slammed on his brakes. This caused Burrows to rear end
     [Appellant]'s vehicle at approximately 30-35 m.p.h. As a result,
     Burrows was charged with Recklessly Endangering Another
     Person. Burrows pled guilty to this charge and was sentenced to
     a period of probation. 18 Pa.[C.S.] § 2705. Burrows was further
     required to pay fines, costs, and restitution for the damage to
     [Appellant]'s vehicle.

     After this second collision, Burrows and Fulton continued to
     pursue [Appellant]. They followed [Appellant] down Prescott
     Road. [Appellant] continued to speed up and slow down as the
     vehicles traveled down the road. At some point, [Appellant]'s
     vehicle ended up in the grass bordering the road. When
     [Appellant] slowed to a stop, Fulton exited the truck and
     approached [Appellant]’s vehicle. However, [Appellant] then
     continued to drive in the grass. Burrows continued to follow
     [Appellant] in the truck while Fulton chased both vehicles on
     foot. At some point, [Appellant] stopped his vehicle in the grass
     and Burrows stopped his truck next to the road. [Appellant]
     suddenly pulled his vehicle back onto the road, striking Burrows
     truck from behind. This impact caused [Appellant]’s vehicle to
     stall and become inoperable. Fulton approached [Appellant]'s
     vehicle and tried to enter through the sunroof. As a result of this
     conduct, Fulton was charged with and pled guilty to Disorderly
     Conduct.

     After this third collision, [Appellant] exited his vehicle and
     continued down the street on foot. Burrows and Fulton ceased
     pursuing [Appellant]. They returned to the residence and notified
     the police of the incident. [Appellant] also contacted 911
     emergency services during the incident.

Trial Court Opinion, dated 7/21/14, at 3-5, citing N.T., 12/3/13, at 13-23,

40-42, and 89-91 (internal citations omitted).




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        The trial court also noted that Sergeant Kenneth Zimmerman, the

police officer responding to Appellant’s 911 call, had found physical evidence

that corroborated Burrows’s testimony. He found parts of Burrows’s tail light

and parts of Appellant’s front grill at the intersection of Jackson and Prescott

Roads. The officer followed a fluid trail from Appellant’s radiator to the site

of Appellant’s disabled vehicle. The location where the officer found the

debris is located approximately 1.7 miles before where Appellant claims the

front of his vehicle impacted the back of Burrows’s vehicle. See Trial Court

Opinion at 9-10. Appellant was charged with recklessly endangering another

person and the summary offense of Careless Driving.

        A jury trial ensued, at which Burrows, a police officer, and Appellant

testified. The jury found Appellant guilty of recklessly endangering another

person, and he was sentenced.2                 After the denial of his post-sentence

motion, Appellant timely appealed to this Court.

        Appellant raises the following issues:

        a. Whether the evidence presented at trial was insufficient to
           sustain [Appellant]’s conviction of recklessly endangering
           another person?

        b. Whether [Appellant]’s conviction was against the weight of
           the evidence?

        The standard of review of challenges to the sufficiency of the evidence

is firmly established.
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2
    The trial court found Appellant guilty of the careless driving.



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      There is sufficient evidence to sustain a conviction when the
      evidence admitted at trial, and all reasonable inferences drawn
      therefrom, viewed in the light most favorable to the
      Commonwealth as verdict-winner, are sufficient to enable the
      fact-finder to conclude that the Commonwealth established all of
      the elements of the offense beyond a reasonable doubt. The
      Commonwealth may sustain its burden by means of wholly
      circumstantial evidence[.] … The trier of fact is free to believe
      all, part, or none of the evidence.

Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014) (citations

omitted).

      “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. The mens

rea for the crime of recklessly endangering another person is a “conscious

disregard of a known risk of death or great bodily injury to another person.”

Commonwealth v. Fabian, 60 A.3d 146, 155 (Pa. Super. 2013), appeal

denied, 69 A.3d 600 (Pa. 2013) (citation omitted).

      In his first issue, Appellant avers that because both Burrows and the

police officer allegedly contradicted themselves at trial, the evidence

supporting the verdict was “inherently unreliable” and thus “insufficient as a

matter of law.” Appellants Brief at 11, 14. This issue is without merit.

      Contradictions in testimony speak to the weight of the evidence, not

its sufficiency. See, e.g., Commonwealth v. Trinidad, 96 A.3d 1031, 1038

(Pa. Super. 2014), appeal denied, 99 A.3d 925 (Pa. 2014).                  As

demonstrated by his nearly word-for-word recitation of the same argument


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presented here as that provided in support his Issue “b” weight challenge,

Appellant has shown that he is aware of this well-settled principle.

        Secondly,    Appellant’s     self-serving,   out-of-context   reiteration   of

testimony that pertains to matters other than the elements of the crime

does not render the evidence upon which the verdict was based unreliable or

insufficient.3   As noted above, in reviewing sufficiency challenges, we view

the totality of the evidence admitted at trial “in the light most favorable to

the Commonwealth as verdict-winner.” Martin, supra at 718.

        In the instant case, as the trial court observed, the evidence showed

that Appellant initiated the incident by rear-ending Burrows’s truck and

speeding away. When Appellant realized Burrows was chasing him, he

slowed down and sped up his vehicle multiple times during the pursuit. At

one point, Appellant slammed on his brakes, causing Burrows to rear end

Appellant’s vehicle at approximately 30-35 m.p.h. See Trial Court Opinion

at 3.

        After that second collision, Appellant again left the scene with Burrows

and Fulton in pursuit, and continued to speed up and slow down as the

vehicles traveled down the road.           See id. at 4.   At one point, Appellant

stopped his vehicle in the grass bordering the road, and Burrows stopped his

truck next to the road. Appellant then suddenly pulled his vehicle back onto

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3
    See Appellant’s Brief at 11-13.



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the road, striking Burrows’s truck from behind. See id. As the trial court

concluded, “the physical evidence presented at trial significantly refutes

[Appellant’s] story.” Trial Court Opinion at 2. We agree. Because sufficient

evidence supports the jury’s determination that Appellant “conscious[ly]

disregard[ed] … a known risk of death or great bodily injury to another

person” when he drove his vehicle in a reckless manner, this issue has no

merit. Fabian, supra at 155.4

       Appellant also avers that the verdict is against the weight of the

evidence. As noted, he essentially repeats, nearly word-for-word, the same

argument regarding allegedly contradictory testimony that he provided in

support of his sufficiency challenge.

       In raising a weight claim, an appellant “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. Lyons, 79 A.3d

1053, 1067 (Pa. 2013), cert. denied, 134 S.Ct. 1792 (U.S. 2014). The
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4
  The trial court also observed that the evidence showed that Appellant had
motive to cause damage to Burrows’s truck because just prior to date of the
incident, Appellant had ended a relationship with Tracy Barney, Fulton’s
sister-in-law. Burrows testified that he was in a relationship with Tracy at
the time of the accident. In addition, Burrows and Sergeant Zimmerman
each testified that there were several incidents of vandalism at the property
where Barney lived with Burrows and Fulton, property that is located in a
small neighborhood off the nearby main roads. Appellant “coincidentally
took this detour from the main road on his drive home from work.” Trial
Court Opinion at 11.



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general rule in our Commonwealth is that “a weight of the evidence claim is

primarily addressed to the discretion of the judge who actually presided at

trial.”    Armbruster        v.   Horowitz,    813   A.2d   698,    702   (Pa.   2002);

Commonwealth            v.    Edwards,    903    A.2d   1139,      1148   (Pa.   2006).

Accordingly,

          [a]ppellate 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 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.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis

in original; citations omitted).

          Discretion is abused “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.” Id. (citation omitted).

          Here, as the trial court observed:

          Burrows testified that [Appellant] initially rear[-]ended his truck
          on East Street before speeding off on East King Street towards
          Prescott Road. Thereafter, Burrows stated that he rear[-]ended
          [Appellant] at the intersection of East King Street and Prescott
          Road. After [Appellant]’s vehicle left the roadway into the grass
          near Reistville Road, he rear[-]ended Burrows’ truck a second
          time in an attempt to regain access to the roadway.

          [Appellant] told a different story at trial. [Appellant] alleged that
          he did not strike the rear of Burrows’ truck until near the end of
          the pursuit when he attempted to pull his vehicle back onto the
          road. He explained that Burrows’ truck struck his vehicle two
          times before he was forced into the grass. It was only then,

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     [Appellant] alleged, that the front of his vehicle made contact
     with the rear of Burrows’ truck.

     Sergeant Kenneth Zimmerman also testified at trial. Sergeant
     Zimmerman has a total of 21 years of experience in police
     enforcement. On December 5, 2012, he responded to a 911 call
     made by [Appellant]. He explained how [Appellant] described
     the events to him on the day of the incident. According to
     Sergeant Zimmerman, [Appellant] initially told him that the front
     of his vehicle was damaged because Burrows backed his truck
     into [Appellant]’s vehicle after he had stalled near Reistville
     Road. This statement clearly differed from what [Appellant]
     testified to at trial, thus called into question [Appellant]’s
     credibility.

     In addition, Sergeant Zimmerman located physical evidence that
     corroborated Burrows’ testimony.        … The location where
     Sergeant Zimmerman found the debris is located approximately
     1.7 miles before where [Appellant] claims the front of his vehicle
     impacted the back of Burrows’ vehicle.

                                     ***
     The evidence presented at trial is simply not in line with
     Appellant’s story, and we therefore find that the jury afforded
     appropriate weight to [the] testimony.

Trial Court Opinion at 10-11.

     Based on our review of the record and the trial court’s opinion

rendered on Appellant’s post-sentence motion, we conclude that that court

did not abuse its discretion in determining that the verdict was supported by

the weight of the evidence.      Accordingly, we affirm the judgment of

sentence.

     Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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