J-A22036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

EBERHARD FABER

                            Appellant                   No. 339 MDA 2016


           Appeal from the Judgment of Sentence February 10, 2016
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-SA-0000333-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                       FILED NOVEMBER 21, 2016

        Appellant, Eberhard Faber, appeals from the judgment of sentence

entered in the Luzerne County Court of Common Pleas, following his

conviction of the summary offense of reckless driving.1 We affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts of this case.         Therefore, we have no reason to restate them.

Procedurally, police cited Appellant for reckless driving after he disregarded

an accident scene on December 8, 2015. On December 11, 2015, Appellant

pled guilty to reckless driving, and the district judge imposed a $303.50 fine.

Appellant timely filed a summary appeal for trial de novo in the Luzerne

County Court of Common Pleas on December 29, 2015.               On February 10,
____________________________________________


1
    75 Pa.C.S.A. § 3736(a).
J-A22036-16


2016, the court held a summary appeal hearing. At the conclusion of the

hearing, the court convicted Appellant of reckless driving and imposed a

$200.00 fine plus costs.      Appellant timely filed a notice of appeal on

February 19, 2016. On February 29, 2016, 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 on March 14, 2016.

      Appellant raises the following issue for our review:

         WHETHER THE TRIAL COURT ERRED IN FINDING
         [APPELLANT] GUILTY OF RECKLESS DRIVING WHERE THE
         EVIDENCE INTRODUCED AT TRIAL WAS INSUFFICIENT TO
         SUPPORT ALL THE ELEMENTS OF RECKLESS DRIVING
         BEYOND A REASONABLE DOUBT?

(Appellant’s Brief at 2).

      A challenge to the sufficiency of the evidence implicates the following

legal principles:

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

                                     -2-
J-A22036-16


          received must be considered. Finally, the [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

      The Vehicle Code defines reckless driving as follows:

          § 3736. Reckless driving

          (a) General rule.—Any person who drives any vehicle
          in willful or wanton disregard for the safety of persons or
          property is guilty of reckless driving.

          (b) Penalty.—Any person who violates this section
          commits a summary offense and shall, upon conviction, be
          sentenced to pay a fine of $200.

75 Pa.C.S.A. § 3736. The offense of reckless driving has two elements: (1)

an actus reus of driving a vehicle; and (2) a mens rea of willful or wanton

disregard for the safety of persons or property. Bullick, supra at 1001. To

satisfy the elements of reckless driving, the offender’s driving must be a

gross departure from prudent driving standards.           Commonwealth v.

Greenberg, 885 A.2d 1025, 1027-28 (Pa.Super. 2005). “[R]eckless driving

requires driving that not only grossly deviates from ordinary prudence but

also creates a substantial risk that property damage or personal injury will

follow. It is also necessary that the driving reflect a conscious disregard

for the danger being created by the reckless driving.”         Id. at 1029-30

(emphasis in original).

                                      -3-
J-A22036-16


      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Fred A.

Pierantoni, III, we conclude Appellant’s issue on appeal merits no relief. The

trial court opinion fully discusses and properly disposes of the question

presented.   (See Trial Court Opinion, filed April 7, 2016, at 6-8) (finding:

court resolved issue of credibility in favor of Commonwealth witnesses;

evidence established that Appellant drove up to accident scene where police

had blocked traffic by positioning emergency vehicles in roadway with lights

activated; when Appellant arrived at scene, two uniformed police officers

stood near emergency vehicles and directed traffic away from accident

scene; under these circumstances, presence and purpose of emergency

vehicles and police officers should have been obvious to Appellant;

nevertheless, Appellant ignored emergency vehicles blocking traffic and

directives yelled by police officers; Appellant proceeded into intersection,

drove his vehicle over median strip in roadway, and narrowly avoided

collision with emergency responders; Appellant’s conscious disregard of

police directives at accident scene established requisite mens rea of

recklessness;   thus,   sufficient   evidence   existed   to   sustain   Appellant’s

conviction of reckless driving).     Accordingly, we affirm on the basis of the

trial court opinion.




                                       -4-
J-A22036-16


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2016




                                 -5-
                                                                                                 Circulated 11/07/2016   04:28 PM




    COMMONWEALTH OF PENNSLV ANIA                                        :IN THE COURT OF COMMON PLEAS
    DEPARTMENT OF TRANSPORTATION,
    BUREAU OF DRIVER LICENSING,                                                  OF LUZERNE COUNTY

                                         V.                                        CRMINAL DIVISION



    EBERHARD FABER,                                                     : No.   333-SA-2015
                                               Defendant



                                                                   ORDER




    DECREED:
                AND NOW, this                      =:          of April, 2016, it is hereby ORDERED, AND




                1.                       The Clerk of Courts of Luzerne County is ORDERED AND DIRECTED to

                                         serve a copy of this Order and Opinion on all Counsel of Record pursuant

                                         to Pennsylvania Rule of Criminal Procedure No. 114.

                2.                       The Clerk of Courts of Luzerne County is ORDERED AND

                                         DIRECTED to docket this Order and Opinion and to forthwith transmit

                                         same to the Superior Court of Pennsylvania.

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    cc: Daniel Hollander, A.D.A.
        James Barr, Esq.
COMMONWEALTH OF PENNSLV ANIA;             : IN THE COURT OF COMMON PLEAS
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING,                          OF LUZERNE COUNTY

            V.                                      CRMINAL DIVISION



EBERHARD FABER,                           : No.   333-SA-2015

                   Defendant



                                       OPINION


       On February 10, 2016 this Court considered a summary appeal in the above

captioned matter in which the Commonwealth cited the defendant for reckless

driving. (75 Pa.C.S.A.§3736 (a)). Subsequent to a hearing, the transcript of which

consists of 30 pages, the undersigned rendered a verdict of guilty.


      An appeal from that determination was filed on February 19, 2016 and an

Order issued to 'Pa.R.~-r.. 1925 (b) on February 29, 2016. Appellant's Concise

Statement was subsequently received on March 14, 2016 and the Commonwealth

submitted a response on March 22, 2016.


      Counsel for appellant presently asserts "Defendant respectfully represents

that this Honorable Court erred in finding Defendant guilty of Reckless Driving

where the evidence introduced at the Hearing was insufficient to support all the

elements of Reckless Driving beyond a reasonable doubt."



                                          1
      At the conclusion of the hearing defense counsel, referencing

Commonwealth v. Greenberg, 885 A.2d 1025(Pa. Super. 2005), argued that the

Commonwealth's evidence was insufficient to support the mens rea of

recklessness.


      The Commonwealth presented the testimony of Wilkes-Barre City Police

Officer Bernard Magagna and the "outside supervisor" on the day in question,

Officer Richard Harding. We will briefly summarize their testimony.


      Officer Magagna initially indicated that on December 8, 2015 at

approximately 7:30 p.m. he was dispatched to the scene of a traffic accident in

which a vehicle hit a traffic signal, knocking it down, causing the northbound lanes

of Wilkes-Barre Boulevard to be blocked. Responders at the scene requested

Officer Magagna's presence since it was necessary to close the northbound lane as

well as the eastbound lane of Scott Street.


      The witness responded and was positioned in the middle of the northbound

lane of Wilkes-Barre Boulevard at the Scott Street intersection. Additionally

present and deployed were a Wilkes-Barre City fire engine, and two patrol

vehicles. These vehicles were positioned so that the northbound lane of travel

would be blocked since the light post had fallen across two lanes of travel. All

vehicles had their emergency lights activated. (N.T. 6).


                                          2
       Officer Magagna also described a raised median, several feet wide,

separating the lanes of travel.


       The defendant's vehicle was in the eastbound turning lane which would

ordinarily allow him to proceed north on Wilkes-Barre Boulevard. The witness

and an additional officer were literally in the middle of the street "indicating that

there were no left turns, all traffic was to tum right". ( Id. N.T. 7). As the traffic

control signal changed the defendant proceeded to tum left, "by-passing the two

patrol vehicles and the fire engine". The defendant drove by the two police

vehicles, fire truck and responders at the scene. Prior to doing so the defendant

drove over the aforementioned median separating the lanes of travel. (Id. N.T. 7,

8). The witness, stated, the defendant passed the firefighters and city electrician

who were present in the area where the defendant turned "to proceed past the live

wire pole, downed pole". (Id. N.T. 8).

       On cross-examination the officer described a considerable amount of debris

·present as a result of the initial accident.


       Richard Harding, has been employed by the Wilkes-Barre City Police

Department in excess of twenty years. On the day in question he was the "outside

supervisor",




                                                3
       Officer Harding described the initial incident involving a one-car crash into

a pole at the intersection of Wilkes-Barre Boulevard and Scott Street. The vehicle

struck a light stanchion which fell across the northbound lanes of Wilkes-Barre

Boulevard along with a substantial amount of debris.


       Officer Harding described the deployment of Officers Magagna and Kane

who were actually in the intersection next to the fire truck, and near their patrol

vehicles, directing traffic. Officer Harding further indicated that the northbound

lane, both lanes of Wilkes-Barre Boulevard, and the eastbound lane of Scott Street

were all closed for "public safety".


      Officer Harding observed the defendant in the northbound lane ofWilkes-

Barre Boulevard and heard "both officers shouting at the vehicle that was making a

left-hand tum".   The defendant was operating a silver Lexus. The witness further

observed the defendant's vehicle crossing north Wilkes-Barre Boulevard in the

southbound lane, travel up and over the median and into the northbound lane of

Wilkes-Barre Boulevard where Officer Harding was standing. There were

additional first responders in Officer Harding's immediate area.


      Officer Harding also described the positioning of the marked police vehicles

with their emergency overhead lights activated as well as "Rescue 7", a large fire

truck with its lights activated, all in the intersection physically blocking the


                                            4
roadway "for public safety and also for our safety as first responders inside the

accident scene." (Id. N.T. 14).


      In response to a question posed by the assistant district attorney regarding

whether the defendant's conduct "put your life or others in jeopardy or in danger at

least?" the witness responded" Absolutely. It most certainly did". (Id. N.T. 15).


      During cross-examination Officer Harding stated the defendant's vehicle

came within a foot or two of where he was standing. "I was actually stepping out

of the way, and I was shouting at him as well to stop; and he continued to go". ( Id.

N.T. 19).


      Officer Harding estimated the defendant's speed at approximately 15 mph.


      The defendant testified that as he approached the accident scene "I assumed,

wrongly as it turned out, I assumed that the police had pulled over a driver for

some sort of violation". (Id. N.T. 22). He additionally indicated he thought he

could go around the police vehicle but realized there wasn't enough room, "[S]o I

had to continue going the wrong way on the Boulevard until I could cross the

median strip". (Id. N.T. 23).


      In Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) our Supreme

Court summarized the framework to be employed in considering an insufficiency

argument. A claim challenging the sufficiency of evidence is a question of law.

                                          5
Evidence will be deemed sufficient to support the verdict when it establishes each

material element of the crime charged and its commission by the accused, beyond

a reasonable doubt. Where the evidence offered to support the verdict is in

contradiction to the physical facts, in contravention to human experience and thus

the laws of nature, then the evidence is insufficient as a matter of law. Alternately

stated, the inquiry involves whether the believable evidence was sufficient to

support the verdict. Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 (Pa. 2007).


      In arriving at the verdict in this matter, to the extent it was necessary, we

resolved the issue of credibility in favor of the Commonwealth witnesses and

against the defendant.

       Superior Court, in the case of Commonwealth v. Jeter, 937 A.2d 466 (Pa.

Super. 2007), considered, in part, whether the evidence was sufficient to support a

conviction for reckless driving. In order to establish a conviction for this offense,

the Jeter court instructs, the Commonwealth must prove that the defendant

exhibited a willful or wanton disregard for the safety of persons or property. The

opinion further notes that a person acts recklessly if he or she "consciously

disregards a substantial and unjustifiable risk" of injury to others", referencing

18Pa.C.S.A. §302 (b)(3). Jeter examined what it described as "tangible indicia of

unsafe driving" to determine whether the defendant exhibited a conscious

disregard of the substantial risk of harm to others on the roadway. As defense

                                           6
counsel correctly pointed out during closing argument in the instant matter the

offense presently considered requires a mens rea of recklessness. The evidence of

recklessness considered in Jeter included the defendant's vehicle weaving in and

out the roadway for several miles; other drivers on the roadway at the time; Jeter's

BAC of 0.21 and the fact that Jeter ultimately lost control of his vehicle, striking

the center barrier.


      Examining the indicia of unsafe driving in the instant matter in a light most

favorable to the Commonwealth as verdict winner we observe the following.


       The defendant, while operating his vehicle, came upon an accident scene

where multiple police and fire vehicles, all with their emergency lights activated,

were positioned in such a manner as to block continued travel in a portion of the

roadway. Additionally, present in the immediate area of the aforementioned

response vehicles were two uniformed police officers directing traffic away from

the accident scene. The presence and purpose of the vehicles and law enforcement

officers should have been obvious to anyone with a modicum of common sense.

The defendant ignored the "yelled" directives of the officers as well as the

emergency apparatus and literally drove his vehicle over the median strip of the

roadway where he thereafter narrowly avoided striking responders present at the

scene, including Officer Harding.



                                           7
      If the defendant's conduct in consciously disregarding the directives and

commands of the officers and then driving over a median into a patently obvious

accident scene narrowly avoiding striking the responders present does not establish

the mens rea of recklessness we fail to discern what would.




                                END OF OPIINION


ORDER ATIACHED AS PAGE 9




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