J-S05014-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
FREDERICK J. MANGONE,                     :
                                          :
                  Appellant               : No. 1270 WDA 2014

           Appeal from the Judgment of Sentence July 29, 2014,
                 Court of Common Pleas, Fayette County,
             Criminal Division at No. CP-26-CR-0002312-2013

BEFORE: DONOHUE, SHOGAN and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED FEBRUARY 06, 2015

      Frederick J. Mangone (“Mangone”) appeals from the July 29, 2014

judgment of sentence entered by the Fayette County Court of Common Pleas

following his conviction by a jury of accidents involving death or personal

injury (75 Pa.C.S.A. § 3742(a)), and his convictions by the trial court of

improper class of license (75 Pa.C.S.A. § 1504), failure to stop and render

aid (75 Pa.C.S.A. § 3744(a)), and failure to notify police of accidental injury

or death (75 Pa.C.S.A. § 3746(a)(1)).1

      On appeal, he claims that “the Commonwealth fail[ed] to establish

that [Mangone] did not leave the scene in order to go for aid for the injured

person[.]” Mangone’s Brief at 7. It is not clear whether Mangone intended



1
   On July 29, 2014, the trial court sentenced Mangone to one to two years
of incarceration for accidents involving death or personal injury. The trial
court imposed no additional penalty on the remaining convictions.
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to challenge the weight or the sufficiency of the evidence to support one or

more of his convictions. In his appellate brief, he argues that “the record

shows that the Commonwealth presented no evidence that [Mangone] was

not attempting to go for help,” which would suggest a challenge to the

sufficiency of the evidence.   Mangone’s Brief at 11-12.    He subsequently

states, however, that “the jury’s verdict is one that would shock the

conscience,” and requests a new trial, which suggests a challenge to the

weight of the evidence.     Id. at 12.    The scope and standard of review

included in his appellate brief does not provide any guidance, as it is a

generic statement of the manner an appellate court reviews a case without

citation to authority.   See Mangone’s Brief at 5.   Nor does the prayer for

relief in the conclusion of the brief provide clarity, as Mangone seeks “an

arrest of judgment and/or a new trial.” Id. at 13; see Commonwealth v.

Ruffin, 463 A.2d 1117, 1118 n.5 (Pa. Super. 1983) (stating that the

appropriate remedy for insufficient evidence to support a conviction is

dismissal and discharge of the defendant; the remedy for a verdict against

the weight of the evidence is a new trial).

       As we have previously explained, weight and sufficiency of the

evidence are distinct arguments:

               Weight and sufficiency of the evidence are not
            one and the same legal concepts. As our Court has
            summarized in a prior case: Weight of the evidence
            and sufficiency of the evidence are discrete
            inquiries[.] In reviewing the sufficiency of the



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            evidence, we must view the evidence presented and
            all reasonable inferences taken therefrom in the light
            most favorable to the Commonwealth, as verdict
            winner. The test is whether the evidence, thus
            viewed, is sufficient to prove guilt beyond a
            reasonable doubt[.]

                A motion for new trial on grounds that the verdict
            is contrary to the weight of the evidence concedes
            that there is sufficient evidence to sustain the verdict
            but contends, nevertheless, that the verdict is
            against the weight of the evidence. Whether a new
            trial should be granted on grounds that the verdict is
            against the weight of the evidence is addressed to
            the sound discretion of the trial judge, and his
            decision will not be reversed on appeal unless there
            has been an abuse of discretion. The test is not
            whether the court would have decided the case in
            the same way but whether the verdict is so contrary
            to the evidence as to make the award of a new trial
            imperative so that right may be given another
            opportunity to prevail.

Commonwealth v. Davis, 799 A.2d 860, 864-65 (Pa. Super. 2002)

(citation omitted).

      Our review of the record reveals that Mangone did not preserve a

challenge to the weight of the evidence at sentencing or in a post-sentence

motion, resulting in waiver of this claim.    See Pa.R.Crim.P. 607(A).         We

therefore treat his issue as a challenge to the sufficiency of the evidence.

      Further complicating appellate review, however, is Mangone’s failure to

identify which of his convictions he is attacking. Mangone does not cite to

any statute or indicate how, if at all, the question of whether he left the

scene to summon aid for his injured passenger would require reversal of his




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conviction. He simply states: “In the instant case, the Commonwealth was

required to prove that [Mangone] did not render aid or leave the appropriate

information after an accident occurred.”    Mangone’s Brief at 10. Although

we could find waiver of his argument on this basis, see Pa.R.A.P. 2119(a)-

(b), we decline to do so. Our research reveals that this contention relates to

his convictions of accidents involving death or personal injury and failure to

stop and render aid.    See 75 Pa.C.S.A. §§ 3742(a), 3744(a)-(b).2      Upon



2
  The Pennsylvania Motor Vehicle Code defines accidents involving death or
personal injury, in relevant part, as follows:

            The driver of any vehicle involved in an accident
            resulting in injury or death of any person shall
            immediately stop the vehicle at the scene of the
            accident or as close thereto as possible but shall
            then forthwith return to and in every event shall
            remain at the scene of the accident until he has
            fulfilled the requirements of section 3744 (relating to
            duty to give information and render aid).

75 Pa.C.S.A. § 3742(a). Section 3744 of the Motor Vehicle Code states, in
relevant part:

            (a) General rule.--The driver of any vehicle
            involved in an accident resulting in injury to or death
            of any person or damage to any vehicle or other
            property which is driven or attended by any person
            shall give his name, address and the registration
            number of the vehicle he is driving, and shall upon
            request exhibit his driver’s license and information
            relating to financial responsibility to any person
            injured in the accident or to the driver or occupant of
            or person attending any vehicle or other property
            damaged in the accident and shall give the
            information and upon request exhibit the license and
            information relating to financial responsibility to any


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reviewing the record and the law, we find Mangone’s sufficiency claim to be

without merit and affirm.

     Appellate review of a challenge to the sufficiency of the evidence is de

novo. Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014). “[O]ur

scope of review is limited to considering the evidence of record, and all

reasonable inferences arising therefrom, viewed in the light most favorable

to the Commonwealth as the verdict winner.”            Id. at 420-21.   “The

Commonwealth may sustain its burden by means of wholly circumstantial

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



             police officer at the scene of the accident or who is
             investigating the accident and shall render to any
             person injured in the accident reasonable assistance,
             including the making of arrangements for the
             carrying of the injured person to a physician,
             surgeon or hospital for medical or surgical treatment
             if it is apparent that treatment is necessary or if
             requested by the injured person.

             (b) Report of accident to police.--In the event
             that none of the persons specified are in condition to
             receive the information to which they otherwise
             would be entitled under subsection (a) and no police
             officer is present, the driver of any vehicle involved
             in the accident after fulfilling all other requirements
             of section 3742 (relating to accidents involving death
             or personal injury) and subsection (a), in so far as
             possible on his part to be performed, shall forthwith
             report the accident to the nearest office of a duly
             authorized police department and submit to the
             police department the information specified in
             subsection (a).

75 Pa.C.S.A. § 3744(a)-(b).


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(citation and quotation omitted).          “Further, we note that the entire trial

record is evaluated and all evidence received against the defendant is

considered, being cognizant that the trier of fact is free to believe all, part,

or none of the evidence.” Id. It is for the finder of fact to pass upon the

credibility   of   the   witnesses   and    weight   of   the   evidence   presented.

Commonwealth v. Melvin, 103 A.3d 1, 40 (Pa. Super. 2014).

      The trial court accurately summarized the facts presented at trial,

viewed in the light most favorable to the Commonwealth as verdict winner:

                  On July 18, 2013, Susan Riffle was a passenger
              on a motorcycle being operated by [Mangone]. The
              motorcycle hit some loose gravel and went down and
              Riffle, who sustained numerous injuries as a result of
              the accident, was “Life Flighted.”[] When Riffle saw
              [Mangone] leave the scene of the accident, her belief
              was that he was going for help because she told him
              that help was needed.

                 Andrew Franko, a first responder, responded to
              the scene and observed a female, who was not in
              good condition, lying on the roadway. Observing
              [Mangone] going towards his motorcycle, Franko
              said to him that “she is hurt. You can’t go nowhere.”
              Franko also advised [Mangone] that he was a first
              responder and could provide help.        Nonetheless,
              [Mangone] picked up his motorcycle and left.

                  Also providing testimony was Summer Prinkey, a
              first responder who arrived at the accident scene
              with Franko. After the brush truck from the fire
              department arrived, and firemen were helping Riffle,
              Prinkey observed Franko and [Mangone] having a
              disagreement.      Although Franko tried to stop
              [Mangone] from leaving the scene of the accident,
              [Mangone] pushed Franko aside and left on his
              motorcycle.



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               When Trooper Adam Sikorski arrived at the scene,
            he immediately tried to find the operator of the
            vehicle and discovered that the operator and his
            motorcycle were not at the scene of the accident.
            Further, the operator of the motorcycle had not left
            any needed information with anyone at the scene.
            Four days later, the [t]rooper found the motorcycle
            at issue. On the sixth day after the accident, the
            [t]rooper spoke with [Mangone] who admitted that
            he was driving the vehicle[,] [] that Riffle was a
            passenger[,] and that he did not stay at the scene of
            the accident.

Trial Court Opinion, 10/6/14, at 2-3 (record citations omitted).

      Our review of the record reveals that apart from Riffle’s unconfirmed

belief that Mangone left the scene of the accident to secure aid, only

Mangone testified that he left the scene to “get help.” N.T., 5/6-7/14, at 33,

82, 86.   Mangone’s testimony on this issue was of dubious credibility,

however, because he further testified that he had “no recollection of what

happened” because he “was hit so hard” during the accident. Id. at 82. He

did not remember speaking with Riffle at the scene of the accident and

stated that he could only testify to what others told him occurred; he had no

independent recollection because he “was knocked out.” Id. at 84.

      As stated above, the factfinder passes upon the credibility of witnesses

and is free to believe all, part or none of the testimony presented. Martin,

101 A.3d at 718; Melvin, 103 A.3d at 40. Despite Mangone’s testimony to

the contrary, the record, when viewed in the light most favorable to the

Commonwealth, supports a finding that he did not leave the scene with the



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intention of summoning aid for Riffle.    Rather, the record when so viewed

reflects that Mangone was the driver of a vehicle that was in an accident

resulting in his passenger’s serious injury.   Although first responders and

firefighters were present to render aid and informed him that he could not

leave the scene, he left in violation of section 3742(a) without providing the

information required by section 3744(a) or reporting the accident to the

police as required by section 3744(b). See supra n.2. We therefore affirm

the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/6/2015




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