J-S40016-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
              v.                          :
                                          :
JONET ROMAINE WHEELER,                    :
                                          :
                   Appellant              : No. 1336 WDA 2014

              Appeal from the Judgment of Sentence July 15, 2014,
                   Court of Common Pleas, Allegheny County,
                Criminal Division at No. CP-02-CR-0008061-2013

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED JULY 8, 2015

        Jonet Romaine Wheeler (“Wheeler”) appeals from the judgment of

sentence entered following her convictions of accidents involving damage to

attended vehicle or property, reckless driving, careless driving, failure to

notify police of accident, overtaking a vehicle on the right, and driving on

roadways laned for traffic.1    Following our review, we affirm in part and

reverse in part.

        The trial court summarized the facts underlying Wheeler’s convictions

as follows:

                    On February 8, 2013, Jarrett Deluca was on
              the Forward Avenue onramp to Interstate 376 on his
              way to work. This onramp initially is two lanes[;]
              however, it narrows down to one lane as it
              approaches Interstate 376. As he was approaching
              Interstate 376, Deluca heard a vehicle approach him


1
    75 Pa.C.S.A. §§ 3743(a), 3736(a), 3714(a), 3746(a)(2), 3304(a)(1), 3309.

*Retired Senior Judge assigned to the Superior Court.
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          from the right-hand side traveling on the rumble
          strips outside of the lane of travel in an attempt to
          pass him and get back in to the onramp lane of
          travel.   The appellant, Wheeler, drove the other
          vehicle and that vehicle struck the passenger side,
          right fender above the tire. Deluca pulled his vehicle
          over and retrieved his owner, operator and insurance
          information and attempted to talk to Wheeler to
          exchange information; however, she was yelling at
          him about causing the accident.         Deluca had a
          cellular phone with a camera capability and took
          pictures of her vehicle so that he could obtain the
          license number of that vehicle. Deluca then got in
          his car and went to work and called the Pennsylvania
          State Police, notifying them of the accident.

                 Pennsylvania State Trooper Daniel Acklin was
          notified by his supervisor that Deluca had reported a
          hit and run accident. Acklin met with Deluca and
          Deluca provided Acklin with several pictures that he
          had taken approximately one hour prior to their
          meeting. Acklin obtained the license plate number
          from one of the photographs taken by Deluca and
          ran that information through the PennDot computer
          and established that the owners of that vehicle were
          [Wheeler] and Kelly A. Wheeler.          Acklin then
          proceeded to obtain driver’s license photos of both of
          the Wheelers and showed those photos to Deluca.
          Deluca identified [Wheeler] as the individual who
          was operating the vehicle that struck his vehicle.
          Acklin also viewed Deluca’s vehicle and identified the
          damaged area as being the right front side tire area,
          indicating that there were scrapes and the actual
          body of the vehicle was crunched in.

                Wheeler testified that there was no damage to
          her vehicle or to Deluca’s vehicle and, accordingly,
          there was no need to stop and exchange
          information. She also maintained that Deluca was
          irate and was insulting her and using racial slurs
          against her. Wheeler also testified that this accident
          occurred at 8:05 a.m. and that she was required to
          start work at 8:00 [a].m.



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Trial Court Opinion, 3/2/15, at 2-4.

      At the conclusion of a non-jury trial, the trial court convicted Wheeler

of the above-mentioned offenses. It imposed a sentence of three months of

probation on the conviction for accidents involving damage to attended

vehicle or property and no further penalty on the remaining convictions.

Wheeler filed a timely post-sentence motion, which the trial court denied.

This timely appeal followed.

      On appeal, Wheeler challenges the sufficiency of the evidence as to

three of her convictions.      See Wheeler’s Brief at 6.   When 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.” Commonwealth v. Cox, 72 A.3d 719,

721 (Pa. Super. 2013) (quoting Commonwealth v. Koch, 39 A.3d 996,

1001 (Pa. Super. 2011)).        When performing this review, “we may not

reweigh the evidence or substitute our own judgment for that of the fact

finder.” Id.

      Wheeler first argues that the evidence was insufficient to support her

conviction of accidents involving damage to attended vehicle or property.

This offense is defined as follows:

            The driver of any vehicle involved in an accident
            resulting only in damage to a vehicle or other



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           property which is driven or attended by any person
           shall immediately stop the vehicle at the scene of the
           accident or as close thereto as possible but shall
           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). Every stop shall be
           made without obstructing traffic more than is
           necessary.

75 Pa.C.S.A. § 3743(a). Wheeler argues that because she did not know an

accident had occurred, she cannot be found to have violated this provision.

Wheeler’s Brief at 12-14.   She acknowledges that she pulled her car over

and engaged with Mr. Deluca, but she argues that she did not see any

damage to either vehicle.   She argues, “[s]ince there is no evidence that

proved beyond a reasonable doubt that [] Wheeler knew or should have

reasonably known that an accident happened, the Commonwealth failed to

prove every element of the offense beyond a reasonable doubt.” Id. at 15.

We disagree. The evidence, when viewed in the light most favorable to the

Commonwealth, as verdict winner, establishes that on the morning in

question, Wheeler drove her vehicle on rumble strips, around Mr. Deluca’s

vehicle, striking it as she did so.      N.T., 7/15/14, at 4-5.      Wheeler

immediately pulled her vehicle to the side of the road, exited it and began

yelling at Mr. Deluca for causing an accident.   Id. at 4,10.   At that time,

while both parties were pulled over, Mr. Deluca took photographs of damage

to his car that Wheeler caused. Id. at 4. Wheeler was present while Mr.

Deluca examined his car and took pictures of the damage.            Id.   This



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evidence is sufficient to support a finding that Wheeler was aware that an

accident occurred and that Mr. Deluca’s vehicle was damaged by that

accident.

     Wheeler next argues that the evidence was insufficient to support her

conviction of careless driving.   The relevant statute provides that “[a]ny

person who drives a vehicle in careless disregard for the safety of persons or

property is guilty of careless driving, a summary offense.”     75 Pa.C.S.A.

§ 3714(a).    It is Wheeler’s contention that the Commonwealth failed to

prove that she acted with careless disregard for the safety of persons or

property; she maintains that she was simply trying to merge into traffic, and

that “[f]or whatever reason, Mr. Deluca decided to not let [her] car merge,

resulting in contact between the vehicles.” Wheeler’s Brief at 18.

     Although Wheeler does not bother to define the term, “careless

disregard” for purposes of this offense “implies less than willful or wanton

conduct but more than ordinary negligence or the mere absence of care

under the circumstances.” Commonwealth v. Gezovich, 7 A.3d 300, 301

(Pa. Super. 2010) (internal citations omitted). To establish this offense,

“there must be evidence of negligent acts, amounting to a careless disregard

of the rights or safety of others, the consequences of which could reasonably

have been foreseen by the driver of the vehicle.”        Commonwealth v.




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Evelyn, 136 A.2d 158, 159 (Pa. Super. 1957).2 The evidence, when viewed

in the light most favorable to the Commonwealth, establishes that Wheeler

drove outside of the lane of travel, on a narrowing stretch of road, in an

attempt to pass Mr. Deluca’s vehicle before merging on to an interstate, and

that in doing so, she damaged Mr. Deluca’s car. N.T., 7/15/14, at 4-5. This

evidence supports a finding that Wheeler acted negligently and without

regard for the risks her actions posed to Mr. Deluca or his property.

Furthermore, without question, the resulting damage was reasonably

foreseeable.   As such, the evidence was sufficient to support Wheeler’s

conviction of careless driving.

      Finally, Wheeler challenges the sufficiency of the evidence with regard

to her conviction of failure to notify police of accident. This relevant statute

provides as follows:

            The driver of a vehicle involved in an accident shall
            immediately     by    the    quickest   means     of
            communication give notice to the nearest office of a
            duly authorized police department if the accident
            involves:
                                     ***
            (2) damage to any vehicle involved to the extent
            that it cannot be driven under its own power in its


2
  In Wood, the charge under review was “reckless driving,” but the mens
rea under the pertinent statute at the time that case was decided was
“careless disregard.” The offense of reckless driving now appears at 75
Pa.C.S. § 3736 and requires “willful or wanton disregard for the safety of
persons or property.” However, Wood interpreted the meaning of the term
“careless disregard,” which mens rea appears in the offense of careless
driving. Accordingly, the definition of the term “careless disregard” outlined
in Wood case continues to be valid. Gezovich, 7 A.3d at 302 n.1.


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            customary manner without further damage or hazard
            to the vehicle, other traffic elements, or the
            roadway, and therefore requires towing.


75 Pa.C.S.A. § 3746(a)(2).

      Wheeler argues that there is no evidence that either her or Mr.

Deluca’s vehicle was damaged to the extent described in the definition of the

offense. Wheeler’s Brief at 19.    The trial court agrees with Wheeler.        Trial

Court Opinion, 3/2/15, at 6-7. Our review of the record comports with their

assessments.     Accordingly, we vacate Wheeler’s conviction for failure to

notify police of accident.3

      Judgment     of   sentence   affirmed   in   part   and   vacated   in   part.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/8/2015




3
    Because the trial court did not impose a penalty on this conviction,
vacating this conviction does not disturb the sentencing scheme, and there
is no need for resentencing. Cf. Commonwealth v. Barton-Martin, 5 A.3d
363, 370 (Pa. Super. 2010) (providing that where vacating a sentence
disrupts a trial court’s overall sentencing scheme, this Court will remand to
the trial court for resentencing).


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