J-S22003-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PETER JOSEPH KOCHER                        :
                                               :
                       Appellant               :   No. 1043 MDA 2019

         Appeal from the Judgment of Sentence Entered August 30, 2019
      In the Court of Common Pleas of Bradford County Criminal Division at
                        No(s): CP-08-CR-0000090-2018

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PETER JOSEPH KOCHER                        :
                                               :
                       Appellant               :   No. 1548 MDA 2019

         Appeal from the Judgment of Sentence Entered August 30, 2019
      In the Court of Common Pleas of Bradford County Criminal Division at
                        No(s): CP-08-CR-0000090-2018


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.:                                  FILED JUNE 24, 2020

        Appellant, Peter Joseph Kocher, appeals from the August 30, 2019

judgment of sentence ordering him to serve an aggregate 22 to 108 months’

incarceration and to pay an aggregate fine of $5,025, as well as costs, after a


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S22003-20



jury convicted Appellant of aggravated assault by vehicle while driving under

the influence (“DUI”), aggravated assault by vehicle, and recklessly

endangering another person (“REAP”).1 We affirm.

       The trial court summarized the factual history as follows:

       On December 1, 2017[,] at approximately 10:00 p.m., Appellant
       was traveling in the [southbound] lane on Route 220 in Bradford
       County[, Pennsylvania,] in a pick-up truck hauling an enclosed
       trailer when he crossed the [centerline, drove] over a concrete
       barrier[,] and collided with a vehicle driven by [the victim], who
       was traveling in the [northbound] lane. The [s]outhbound lane in
       this area is [a single] lane [that] divides with a concrete barrier
       into [two] lanes. The left southbound lane is marked for [use in]
       taking a left[-]hand turn only at the intersection. The right
       southbound lane is [marked] for [use in] continuing to travel
       south on Route 220. Upon arrival by the Pennsylvania State
       Police, Appellant was unable to pass the field sobriety tests. Beer
       bottles were found in Appellant's vehicle. Appellant agreed to
       have his blood tested[,] which resulted in a [blood alcohol
       concentration (“BAC”)] of 0.145%. He was arrested and charged
       with [the aforementioned crimes. The v]ictim was severely
       injured and was required to undergo surgery as a result of the
       accident. During his last surgery, [the v]ictim suffered aspiration
       of gastric contents during the induction of anesthesia and died.


____________________________________________


1 75 Pa.C.S.A. §§ 3735(a) and 3732.1, and 18 Pa.C.S.A. § 2705, respectively.
In a bench trial, the trial court convicted Appellant of two counts of DUI,
pursuant to 75 Pa.C.S.A. §§ 3802(a)(1) and (b), for which no sentence or fine
was imposed because the convictions merged into the aggravated assault by
vehicle while DUI conviction for sentencing purposes. The trial court also
convicted Appellant of the summary offenses of driving on the right side of
the roadway, driving on one way roadways, driving with disregard of traffic
lane, driving on divided highways, vehicle entering or crossing roadway, and
reckless driving, for which individual fines were imposed and included in the
aforementioned aggregate fine. 75 Pa.C.S.A. §§ 3301(a), 3308(b), 3309(a),
3311(a), 3324, and 3736(a), respectfully. The trial court convicted Appellant
of the summary offense of disobedience to traffic-control device, for which no
sentence or fine was imposed. 75 Pa.C.S.A. § 3111(a).

                                           -2-
J-S22003-20



Trial Court Opinion, 12/5/19, at 1. As a result of the accident, Appellant was

charged with one count each of aggravated assault by vehicle while DUI,

REAP, and the aforementioned summary offenses, as well as two counts of

DUI.

       On March 26, 2018, Appellant filed an omnibus pretrial motion to compel

discovery, to dismiss the charge of aggravated assault by vehicle while DUI,

and to suppress the evidence recovered from Appellant’s truck on the grounds

that the Pennsylvania state troopers lacked probable cause to search the

vehicle. Appellant’s Omnibus Pretrial Motion, 3/26/18. After the victim died,

the Commonwealth filed a motion to amend the charges filed against Appellant

to include one count each of homicide by vehicle while DUI, homicide by

vehicle, and aggravated assault by vehicle. 75 Pa.C.S.A. §§ 3735, 3732, and

3732.1, respectively; see also Commonwealth’s Motion to Amend the

Information, 3/29/18.    After conducting a hearing, the trial court granted

Appellant’s motion to compel discovery and the Commonwealth’s motion to

amend the criminal complaint, but denied Appellant’s motion to dismiss the

charge of aggravated assault by vehicle while DUI and motion to suppress the

evidence. Trial Court Order, 6/20/18.

       On July 11, 2018, Appellant filed a motion to dismiss all charges on the

grounds, inter alia, that the Commonwealth failed to preserve the victim’s

vehicle as material evidence. Appellant’s Motion to Dismiss, 7/11/18. The

trial court subsequently denied Appellant’s motion to dismiss all charges. Trial

Court Order, 11/8/18.

                                     -3-
J-S22003-20



      On March 21, 2019, the jury found Appellant guilty of aggravated

assault by vehicle while DUI, aggravated assault by vehicle, and REAP. In a

bench trial, the trial court convicted Appellant of two counts of DUI and the

aforementioned summary offenses. Appellant filed a motion for a new trial

arguing that the verdict was against the weight of the evidence and a motion

for judgment of acquittal alleging insufficient evidence to support the

convictions. Appellant’s Motion for New Trial, 3/29/19; see also Appellant’s

Motion for Judgment of Acquittal, 3/29/19. On May 17, 2019, the trial court

denied Appellant’s motion for a new trial and his motion for judgment of

acquittal.

      The trial court sentenced Appellant, on May 30, 2019, to 18 to 60

months’ incarceration for aggravated assault by vehicle while DUI, 3 to 24

months’ incarceration for aggravated assault by vehicle, and 1 to 24 months’

incarceration for REAP with sentences to run consecutively. Appellant was

ordered to pay fines and costs for the aforementioned convictions, as well as

fines for the summary convictions. The aggregate sentence was 22 to 108

months’ incarceration, as well as $5,025 in fines plus costs. Trial Court Order,

5/30/19. On May 31, 2019, the Commonwealth filed a post-sentence motion

pursuant to Pa.R.Crim.P. 721 in which the Commonwealth requested the trial

court modify the sentence to impose 22 to 108 months’ incarceration for

aggravated assault by vehicle while DUI and run the other two sentences

concurrent for an aggregate sentence of 22 to 108 months’ incarceration.

Commonwealth’s Post-Sentence Motion under Rule 721, 5/31/19.             In the

                                     -4-
J-S22003-20



alternative, the Commonwealth requested the trial court modify Appellant’s

sentence to increase the minimum sentences for aggravated assault by vehicle

while DUI and aggravated assault by vehicle to 24 months and 9 months,

respectively, for an aggregate sentence of 34 to 108 months’ incarceration.

Id.

        On June 27, 2019, Appellant filed a notice of appeal.2 The trial court,

on July 3, 2019, ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed his

Rule 1925(b) statement on July 17, 2019.

        On August 2, 2019, in a per curiam order, this Court directed Appellant

to show cause why the appeal should not be dismissed on the grounds that

the Commonwealth’s post-sentence motion remained unresolved. Per Curiam

Order, 8/2/19.      In an August 7, 2019 response, Appellant stated he was

unaware of the Commonwealth’s post-sentence motion until after filing his

notice of appeal.       On August 30, 2019, the trial court, in granting the

Commonwealth’s post-sentence motion, in part, and denying it, in part,

modified Appellant’s sentence as follows: 22 to 108 months’ incarceration for

aggravated assault by vehicle while DUI; 3 to 24 months’ incarceration for

aggravated assault by vehicle; and 1 to 24 months’ incarceration for REAP

with sentences to run concurrently.              Trial Court Order, 8/30/19.   The

____________________________________________


2   This Court docketed Appellant’s appeal at 1043 MDA 2019.




                                           -5-
J-S22003-20



aggregate sentence imposed was 22 to 108 months’ incarceration and

Appellant was ordered to pay an aggregate fine of $5,025 and costs.3 Id.

       On September 24, 2019, this Court granted Appellant leave to file a new

notice of appeal from the August 30, 2019 judgment of sentence on or before

September 27, 2019.4 Per Curiam Amended Order, 9/24/19. Appellant filed

an amended notice of appeal on September 24, 2019.5 On December 5, 2019,

the trial court subsequently filed its Rule 1925(a) opinion.

       Appellant raises the following issues for our review:

       [1.]   [Did t]he [trial c]ourt [err] in not dismissing the case when
              the Commonwealth allowed evidence to be lost and
              spoiled[?]

       [2.]   [Did t]he [trial c]ourt [err] when it denied [Appellant’s
              m]otion for [j]udgment of acquittal for lack of sufficient
              evidence[?]


____________________________________________


3 On June 10, 2019, the trial court, sua sponte, modified Appellant’s sentence
to impose a $200 fine for the summary offense of reckless driving. In
modifying Appellant’s sentence on August 30, 2019, the trial court did not
impose a fine for reckless driving.

4 The September 24, 2019 per curiam order erroneously stated that the trial
court imposed Appellant’s judgment of sentence on August 28, 2019. The
order granting the Commonwealth’s post-sentence motion, in part, and
modifying Appellant’s sentence was dated August 28, 2019, but not entered
on the docket until August 30, 2019. Appellant had 30 days from entry of the
order in which to file a notice of appeal. See Pa.R.Crim.P. 720(A)(4) (stating,
“If the Commonwealth files a timely motion to modify sentence pursuant to
Rule 721, the defendant's notice of appeal shall be filed within 30 days of the
entry of the order disposing of the Commonwealth's motion”).

5This Court docketed Appellant’s notice of appeal at 1548 MDA 2019. In a
per curiam order, this Court consolidated, sua sponte, Appellant’s appeals at
1043 MDA 2019 and 1548 MDA 2019.

                                           -6-
J-S22003-20


      [3.]   [Did t]he [trial c]ourt [err] when it denied [Appellant’s
             m]otion for [n]ew [t]rial on the issue of weight of [the]
             evidence[?]

Appellant’s Brief at IV (for ease of disposition, we have renumbered

Appellant’s issues).

      In his first issue, Appellant argues that the trial court erred in denying

his motion to dismiss all charges on the grounds that the Commonwealth failed

to preserve physical evidence, namely the victim’s vehicle, in violation of his

due process rights. Id. at 11-16.

      The trial court is vested with the sound discretion to grant or deny a

pretrial motion to dismiss criminal charges, and this Court reviews the trial

court’s decision for an abuse of discretion or error of law. Commonwealth

v. Free, 902 A.2d 565, 567 (Pa. Super. 2006) (citation omitted).

      The Due Process Clause of the Fourteenth Amendment of the United

States Constitution

      requires defendants be provided access to certain kinds of
      evidence prior to trial, so they may “be afforded a meaningful
      opportunity to present a complete defense.” This guarantee of
      access to evidence requires the prosecution to turn over, if
      requested, any evidence [that] is exculpatory and material to guilt
      or punishment, see Brady v. Maryland, 373 U.S. 83[] (1963),
      and to turn over exculpatory evidence [that] might raise a
      reasonable doubt about a defendant's guilt, even if the defense
      fails to request it, see United States v. Agurs, 427 U.S. 97[]
      (1976). If a defendant asserts a Brady or Agurs violation, he is
      not required to show bad faith.

      There is another category of constitutionally guaranteed access to
      evidence, which involves evidence that is not materially
      exculpatory, but is potentially useful, that is destroyed by the
      [Commonwealth] before the defense has an opportunity to
      examine it. When the [Commonwealth] fails to preserve evidence

                                     -7-
J-S22003-20


      that is “potentially useful,” there is no federal due process
      violation “unless a criminal defendant can show bad faith on the
      part of the [Commonwealth].” Potentially useful evidence is that
      of which “no more can be said than that it could have been
      subjected to tests, the results of which might have exonerated the
      defendant.” In evaluating a claim that the Commonwealth's
      failure to preserve evidence violated a criminal defendant's federal
      due process rights, a [trial] court must first determine whether
      the missing evidence is materially exculpatory or potentially
      useful.

Commonwealth v. Ward, 188 A.3d 1301, 1308-1309 (Pa. Super. 2018)

(citations and original brackets omitted), appeal denied, 199 A.3d 341 (Pa.

2018).    “Exculpatory evidence is evidence [that] extrinsically tends to

establish a defendant's innocence of the crimes charged.” Ward, 188 A.3d at

1309 (citation and original quotation marks omitted).         “A claim that a

defendant was denied access to exculpatory evidence must be supported; it

cannot be based on a mere assertion.” Id. (citation and original quotation

marks omitted). “Evidence that possibly could have been exculpatory had it

been available to be tested is potentially useful evidence, not exculpatory

evidence.”    Id. (citation omitted).     Appellant must establish that the

Commonwealth acted in bad faith in failing to preserve potentially useful

evidence. Id.

      Here, Appellant argues that the Commonwealth failed to preserve the

victim’s vehicle, which he asserts was exculpatory evidence, in violation of his

due process rights under Brady and Agurs. Appellant’s Brief at 13. Appellant

contends the Commonwealth “knew or should have known of the importance”

and materiality of the victim’s vehicle and “had the duty to preserve [the


                                     -8-
J-S22003-20



victim’s vehicle] for the defense because it was reasonable to foresee the

significance this evidence most likely had on the entire case.”       Id. at 15.

Appellant avers that he was not required to establish the Commonwealth’s

bad faith, but even if it were required, the Commonwealth acted in bad faith

because it “made no effort to assist in finding or retrieving [the victim’s

vehicle] and allowed it to be destroyed.” Id. at 16.

      After conducting a hearing on Appellant’s motion to dismiss all charges

for failure by the Commonwealth to preserve the victim’s vehicle, the trial

court determined that the victim’s vehicle was only potentially useful evidence

because any benefit Appellant could derive from evaluating the victim’s vehicle

was purely hypothetical. Trial Court Order, 11/8/18. The trial court explained,

      The subject accident occurred on December 1, 2017. Appellant
      was arrested on December 2, 2017.              Appellant retained a
      reconstruction expert on []March 15, 2018[.] The reconstruction
      expert examined the scene [and] Appellant's truck on April 4,
      2018[,] and examined [] Appellant's trailer [two] weeks later. On
      May 22, 2018, the reconstruction expert notified [Appellant’s]
      counsel that he could not locate [the] victim's [vehicle] that was
      involved in the accident and that examination of it was required
      in order to "make a proper determination as to the principal
      direction of force and in order to complete a comprehensive speed
      analysis."     [The r]econstruction expert also reviewed the
      Pennsylvania State Police crash report. [Appellant’s] counsel then
      authored a letter to the Commonwealth on June 5, 2018[,]
      requesting assistance in obtaining information as to where the
      [victim’s vehicle was] located. It had been at a garage, but was
      no longer there. It was [discovered] that the []victim's insurance
      company removed the [victim’s vehicle]. Appellant was unable to
      obtain cooperation from the insurance company as to [the]
      location of [the victim’s vehicle]. [Appellant averred] that the
      [victim’s vehicle was] necessary for inspection [in order] to
      argue[, at trial,] that the accident and injuries were not the direct


                                      -9-
J-S22003-20


      fault of []Appellant and also that another reason[,] other than
      alcohol[,] caused the accident.

      [T]he evidence sought by Appellant was readily available to him
      while it was at the garage.          He did not request the
      Commonwealth[’s] assistance until [six] months after the arrest
      [and after] the victim’s vehicle was taken by the insurance
      company. There was no evidence of bad faith presented on the
      part of the Commonwealth.         Any benefit to Appellant by
      preserving the [victim’s vehicle] is purely hypothetical[ and,
      thus,] does not violate due process.

Trial Court Opinion, 12/5/19, at 2-4 (record citation omitted).

      A review of the record supports the trial court’s determination that the

victim’s vehicle was potentially useful evidence and not exculpatory evidence.

Appellant’s accident reconstruction expert testified that based upon his

evaluation of Appellant’s truck and the attached trailer, the trailer did not have

a functioning brake system.      N.T., 9/5/18, at 18-20.     The reconstruction

expert identified this as a possible contributory factor in the cause of the

accident.   Id. at 34.   The reconstruction expert opined that the trailer’s

inability to stop when Appellant applied his truck brakes seconds before the

accident, and the resulting impact of the trailer on the rear of Appellant’s

truck, may have caused Appellant’s truck to cross the median of the roadway

and collide with the victim’s vehicle. Id. at 18 and 27. An alternate theory

of causation suggested that Appellant “just turned [his truck] into the

opposing lane” and collided with the victim’s vehicle. Id. The reconstruction

expert also stated that he wanted to examine the victim’s vehicle in order to

calculate its rate of speed to determine if that speed was a contributing factor

in the cause of the accident. Id. at 14-15. Based upon our review of the

                                     - 10 -
J-S22003-20



record, we concur with the trial court that any alleged exculpatory benefit

Appellant may have derived from examination of the victim’s vehicle was

hypothetical and, therefore, the victim’s vehicle was potentially useful

evidence, not exculpatory evidence.

      Thus, Appellant was required to demonstrate bad faith on the part of

the Commonwealth in failing to preserve the potentially useful evidence. We

concur with the trial court that the record is devoid of evidence demonstrating

that the Commonwealth acted in bad faith in failing to preserve the victim’s

vehicle. Appellant waited until March 15, 2018, more than three months after

the accident and his subsequent arrest, to retain an accident reconstruction

expert.   On April 4, 2018, the reconstruction expert was able to visit the

garage where the victim’s vehicle was believed to have been stored. After

discovering that the victim’s vehicle was not available for evaluation, the

reconstruction export attempted to locate the victim’s vehicle, but was

unsuccessful. The reconstruction expert notified Appellant, in a May 22, 2018

letter, that he was unable to author an accident reconstruction report because

he could not physically examine the victim’s vehicle.         Appellant’s counsel

contacted the district attorney on June 5, 2018, requesting assistance in

locating the victim’s vehicle and stating, “I don’t understand why the [victim’s

vehicle] was not held by your office after the [Pennsylvania] State Police

finished their investigation or at least have my office notified that the [victim’s

vehicle] was not going to be held for our investigation.” Appellant, however,

failed to present evidence that he asked the Commonwealth to retain the

                                      - 11 -
J-S22003-20



victim’s   vehicle    after   the   Pennsylvania       State   Police   completed   their

investigation so Appellant could conduct his own accident reconstruction

investigation. Appellant also failed to demonstrate that the Commonwealth

disposed of the victim’s vehicle while aware that Appellant intended to conduct

his own investigation. We find no merit to Appellant’s contentions that the

Commonwealth was obligated to notify him that it would not retain the victim’s

vehicle once the Pennsylvania State Police completed their investigation or

that the Commonwealth’s alleged failure to assist in locating the victim’s

vehicle several months after the accident amounted to an act of bad faith.

Commonwealth v. Natividad, 938 A.2d 310, 331 n.15 (Pa. 2007) (holding,

“[i]t is well-settled that the Commonwealth is not obligated to provide

evidence    that     is   readily   obtainable    by    the    defendant”);   see   also

Commonwealth v. Williams, 154 A.3d 336, 341 (Pa. Super. 2017) (holding,

police officer did not act in bad faith when he inadvertently erased potentially

useful video evidence); Commonwealth v. Snyder, 963 A.2d 396, 401

(Pa. 2009) (noting, the Commonwealth’s “duty to preserve evidence is

triggered only where the evidence has clear exculpatory value”).

      Based upon the record before us, we find no abuse of discretion or error

of law in the trial court’s denial of Appellant’s motion to dismiss all criminal




                                         - 12 -
J-S22003-20



charges on the grounds the Commonwealth failed to preserve the potentially

useful evidence. Consequently, Appellant’s issue is without merit.6

       Appellant’s second issue raises a claim that the trial court erred in

denying his motion for judgment of acquittal on the grounds that the evidence

was insufficient to support the convictions of aggravated assault by vehicle

and REAP. Appellant’s Brief at 22-26.

       A motion for judgment of acquittal challenges the sufficiency of the

evidence to sustain a conviction on a particular charge and is granted only in

cases in which the Commonwealth has failed to carry its burden regarding that

charge. Commonwealth v. Packer, 146 A.3d 1281, 1285 (Pa. Super. 2016)

(citation omitted), aff’d, 168 A.3d 161 (Pa. 2017). In addressing a sufficiency

claim, our standard of review and scope of review are well-settled.

       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
       established 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
____________________________________________


6 To the extent Appellant argues the trial court erred in failing to exclude the
evidence from the Commonwealth’s examination, see Appellant’s Brief at 16,
we find this issue moot. Moreover, Appellant waived this issue for failure to
raise it in his Rule 1925(b) statement. Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998) (holding, “[a]ny issues not raised in a 1925(b) statement
will be deemed waived”).

                                          - 13 -
J-S22003-20


      may sustain its burden of proving every element of a 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 received must be considered.
      Finally, the [fact-finder,] while passing on the credibility of
      witnesses and the weight of the evidence produced, is free to
      believe all, part or none of the evidence.

Packer, 146 A.3d at 1285 (citation omitted).

      Pursuant to Section 3732.1 of the Pennsylvania Vehicle Code, a person

who

      recklessly or with gross negligence causes serious bodily injury to
      another person while engaged in the violation of any law of this
      Commonwealth or municipal ordinance applying to the operation
      or use of a vehicle or to the regulation of traffic, except section
      3802 (relating to driving under influence of alcohol or controlled
      substance), is guilty of aggravated assault by vehicle, a felony of
      the third degree when the violation is the cause of the injury.

75 Pa.C.S.A. § 3732.1. A person is guilty of REAP when the person “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 concept of gross negligence is encompassed within the concept of

recklessness as set forth in Section 302(b)(3) of the Crimes Code.”

Commonwealth v. Matroni, 923 A.2d 444, 448 (Pa. Super. 2007) (citation

and original brackets omitted), appeal denied, 952 A.2d 675 (Pa. 2008).

Section 302(b)(3) of the Crimes Code defines the concept of recklessness as

follows:

      A person acts recklessly with respect to a material element of an
      offense when he consciously disregards a substantial and
      unjustifiable risk that the material element exists or will result
      from his conduct. The risk must be of such a nature and degree

                                    - 14 -
J-S22003-20


      that, considering the nature and intent of the actor's conduct and
      the circumstances known to him, its disregard involves a gross
      deviation from the standard of conduct that a reasonable person
      would observe in the actor's situation.

18 Pa.C.S.A. § 302(b)(3).

      Evidence of DUI “does not create legal recklessness per se but must be

accompanied with other tangible indicia of unsafe driving to a degree that

creates a substantial risk of injury which is consciously disregarded.”

Commonwealth v. Hutchins, 42 A.3d 302, 311 (Pa. Super. 2012), citing

Commonwealth v. Mastromatteo, 719 A.2d 1081, 1082 (Pa. Super. 1998),

appeal denied, 56 A.3d 396 (Pa. 2012). “What is material is actual reckless

driving or conduct, for any reason, for it is this conduct which creates the peril

in question.”    Mastromatteo, 719 A.2d at 1082.            Proof that a driver

committed a summary offense under the Vehicle Code alone does not establish

the mens rea of recklessness. Commonwealth v. Karner, 193 A.3d 986,

993 (Pa. Super. 2018).

      Here, Appellant challenges the sufficiency of the evidence to support the

element of recklessness necessary for a conviction of aggravated assault by

vehicle and REAP.        Appellant’s Brief at 23.      Appellant contends the

Commonwealth failed to prove beyond a reasonable doubt that Appellant

acted in a sufficiently reckless manner other than DUI.         Id.   Appellant’s

accident reconstruction expert theorized that because the brake system on

the trailer attached to Appellant’s truck was non-functioning, the trailer and

the truck acted as one mass when Appellant attempted to apply the truck



                                     - 15 -
J-S22003-20



brakes and avert the accident. Id. at 24. The combined mass of the trailer

and the truck7 required a greater distance to bring the truck and trailer to rest

prior to the collision with the victim’s vehicle and Appellant was unable to

overcome the momentum of the combined mass by applying his truck brakes.

Id. at 24-25. Appellant asserts that the Commonwealth’s evidence, namely

the testimony of two Pennsylvania state troopers, was insufficient to

contradict his expert’s theory of causation and the laws of physics. Id. at

24-26.

       The Commonwealth argues that Appellant’s reconstruction expert’s

explanation of what caused the accident, which was contradicted by the

troopers’ testimony, “does not render the evidence insufficient because it is

within the province of the fact[-]finder, the jury, to determine the weight [and

credibility] to be given to the testimony[.]” Commonwealth’s Brief at 19. The

Commonwealth        contends      Appellant    drove   an   unfamiliar   route   while

intoxicated, failed to adhere to the traffic signs that indicated all traffic in

Appellant’s lane of travel must turn left at the intersection, and drove over a

clearly marked concrete barrier with yellow pipe markers on it before entering

____________________________________________


7 Appellant’s truck was a Ford F150 pickup truck, which had a gross weight of
4,000 pounds, and the trailer was an eight and one-half foot by twenty foot
enclosed box trailer with a gross weight of 1,700 pounds. N.T., 3/20/19
(Afternoon Session), at 9; see also N.T., 3/21/19 (Morning Session), at
34-35. The truck could tow a maximum of 11,100 pounds. N.T., 3/20/19
(Morning Session), at 134. Pursuant to Section 4502 of the Vehicle Code, a
trailer having a gross weight of less than 3,000 pounds is not required to be
equipped with its own braking system. 75 Pa.C.S.A. § 4502(b); see also
N.T., 3/21/19 (Morning Session), at 33.

                                          - 16 -
J-S22003-20



the opposing lane of traffic and colliding with the victim’s vehicle.   Id. at

20-21. The evidence sufficiently demonstrates, the Commonwealth submits,

that Appellant was driving at approximately 60 miles per hour (“MPH”) within

two seconds of the accident, and he did not engage his brakes until one second

prior to the collision with the victim’s vehicle. Id. at 20.

      In denying Appellant’s motion for judgment of acquittal and finding

sufficient evidence to establish the element of recklessness, the trial court

stated,

      Appellant's argument hinges on whether or not the
      Commonwealth proved beyond a reasonable doubt the gross
      negligence or recklessness required for [a]ggravated [a]ssault by
      vehicle and [REAP]. Here, the jury found[,] and properly so, that
      gross negligence existed. As stated above, Appellant crossed not
      only [the centerline], but a concrete barrier while being in the
      incorrect lane (Appellant told officers he was continuing to travel
      south on Route 220) and collided into an oncoming vehicle.
      Appellant[’s] argument simply is that the jury should have
      believed his expert. The jury obviously rejected the expert's
      opinion that the brakes on the trailer failed causing the truck to
      jack[-]knife. The jury obviously believed that [Appellant] was
      grossly negligent in being in the incorrect lane and then further
      crossing a concrete barrier into oncoming traffic. Such behavior
      does rise to the level of gross negligence.

Trial Court Opinion, 12/5/19, at 6.




                                      - 17 -
J-S22003-20



       For ease of understanding, a portion of Commonwealth Exhibit 32, which

depicts the section of the roadway where the accident occurred, is reproduced

as follows:




Commonwealth Exhibit 32 (depicted so the top of the exhibit image is North

and the bottom South).

       The record demonstrates            that Appellant was driving his   truck

southbound on US 220 in a lane of traffic designated for a left turn only. N.T.,

3/19/19 (Morning Session), at 51. Although two signs, posted prior to the

intersection, identified the lane as a left-turn-only lane8, Appellant believed


____________________________________________


8 In addition to the two signs, the roadway had painted arrows on it
designating the lane for left turn only, as depicted in Commonwealth Exhibit
32, supra. See Commonwealth Exhibit 32, 58, 59, and 60.


                                          - 18 -
J-S22003-20



his lane of travel continued southbound, or straight-ahead.       N.T., 3/20/19

(Morning Session), at 7 and 9; see also Commonwealth Exhibits 53 and 56.

Shortly before Appellant approached the portion of the roadway where he was

required to make a left turn, Appellant hit a yellow pole marker on the concrete

median with his truck, crossed a concrete median separating Appellant’s lane

of traffic from the opposing lane of traffic, and collided with the victim’s

vehicle. N.T., 3/20/19 (Morning Session), at 24-29; see also Commonwealth

Exhibit 3. After the accident, Appellant did not recall hitting the pole marker

or crossing the concrete median, and repeatedly asked the Pennsylvania state

troopers how his truck drove into the opposing lane of traffic. Id. at 5-29 and

31.

       At 1.5 seconds before impact with the victim’s vehicle, Appellant’s truck,

as it approached the left-turn-only intersection, was traveling 59.3 MPH.9

N.T., 3/20/19 (Morning Session), at 121; see also Commonwealth Exhibit 10.

The anti-lock braking system (“ABS”) on Appellant’s truck engaged at 1.5

seconds before impact, indicating that Appellant attempted to stop his truck

quickly.    Commonwealth Exhibit 10; see also N.T., 3/20/19 (Morning

Session), at 118-119; N.T., 3/21/19 (Morning Session), at 79-81. Prior to

engaging the ABS 1.5 seconds before impact, Appellant did not apply the

____________________________________________


9 The US 220 roadway is zoned for a maximum speed of 55 MPH.
Commonwealth Exhibit 9. Although Appellant’s speed was only 4.3 MPH
greater than the maximum permitted speed 1.5 seconds before the collision,
the jury could infer that Appellant’s speed was grossly negligent for someone
required to make a left turn.

                                          - 19 -
J-S22003-20



brakes on his truck in an attempt to slow his truck, in anticipation of making

the required left turn, or avoid the accident. Commonwealth Exhibit 10. A

witness testified that she saw Appellant’s truck “kind of drifting towards the

intersection like he was [going to] turn, but [Appellant] never had a turn signal

on.” N.T., 3/19/19 (Morning Session), at 51.

      The   Pennsylvania     state   troopers,   upon   interviewing    Appellant

immediately after the accident, detected alcohol on Appellant’s person and

asked Appellant if he had been drinking. N.T., 3/20/19 (Morning Session), at

5-6, 35, and 46-47. Appellant first denied he had consumed alcohol and later

admitted he had one beer several hours before the accident but could not

remember where. Id. at 6, 8, and 34-35. Two half-consumed, open beer

cans were discovered in the compartment of the driver’s-side front door and

within Appellant’s reach when he sat in the driver’s seat. Id. at 19-20. A

state trooper administered several field sobriety tests that Appellant was

unable to satisfactorily complete. Id. at 9-11, 13-17, and 38-46. Suspecting

DUI, Appellant had his blood drawn at the hospital and test results revealed a

0.145% BAC. N.T., 3/19/19 (Afternoon Session), at 74.

      Appellant’s accident reconstruction expert offered the opinion that the

accident was caused, in part, by Appellant losing control of his truck, as he

drove through a right-angled curve on a downward graded roadway, due to

the force the trailer applied to the rear of Appellant’s truck because the trailer

had a non-functioning brake system. N.T., 3/20/19 (Afternoon Session), at

44-48, 61-62. Appellant’s reconstruction expert attributed three factors to

                                      - 20 -
J-S22003-20



the cause of the accident, namely a confusing intersection, the influence of

the trailer on the dynamics of Appellant’s truck, and Appellant’s alcohol

consumption. N.T., 3/20/19 (Afternoon Session), at 49-50. Trooper Richard

Rachkowski, a collision analysist and reconstruction specialist with the

Pennsylvania State Police,10 disagreed with Appellant’s reconstruction expert’s

opinion on causation of the accident and explained,

        [i]n a right[-]angle curve, [Appellant’s truck] is moving in a right
        direction, [his] trailer is following also in a right direction, if that
        trailer was to jack-knife, it would be in a counterclockwise
        direction. It would push straight forward and it would push the
        rear end of [Appellant’s truck] straight, not in the opposite
        direction; it’s a physical impossibility, it goes against the laws of
        physics.

N.T., 3/21/19 (Morning Session), at 58. In other words, the force of the trailer

against the rear of Appellant’s truck would not have pushed his truck into the

opposing lane of traffic, the left-most lane of the roadway, while Appellant

navigated a right-angled curve in the roadway.

        Based upon the totality of the circumstances, the jury could infer,

beyond a reasonable doubt, that Appellant consciously disregarded a

substantial and unjustifiable risk that serious bodily harm would result when

Appellant disregarded the left-turn-only designation of his lane of travel,

crossed the concrete median after hitting a pole marker, and drove into the

opposing lane of traffic. In navigating the right-angle curve of the downward

graded roadway, Appellant failed to observe several signs indicating Appellant
____________________________________________


10   N.T., 3/20/19 (Morning Session), at 109.

                                          - 21 -
J-S22003-20



was driving in a left-turn-only lane. Prior to impacting the victim’s vehicle,

Appellant was driving under the influence of alcohol and at a rate greater than

the speed limit when his truck hit a pole marker, crossed a concrete barrier,

and entered the opposing lane of traffic. Appellant only applied his truck’s

brakes 1.5 seconds before impact. In considering the conflicting opinions as

to the cause of the accident offered by Appellant’s reconstruction expert and

Trooper Rachkowski, the jury, while passing on the credibility of these

witnesses and the weight to be given to their testimony, was free to believe

all, part, or none of the evidence.      Viewing all of the evidence and the

inferences drawn from that evidence in the light most favorable to the

Commonwealth, as the verdict winner, we concur with the trial court that there

was sufficient evidence for the jury, as fact-finder, to find that Appellant acted

recklessly or with gross negligence in the operation of his truck in violation of

the summary offenses under the Vehicle Code for which Appellant was

convicted. Therefore, Appellant’s sufficiency claim is without merit.

      Appellant’s final issue raises a claim that the verdict was against the

weight of the evidence to support his convictions for aggravated assault by

vehicle and REAP. Appellant’s Brief at 17-21.

      Appellate 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
      []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 [or is not] against the
      weight of the evidence. One of the least assailable reasons for
      granting or denying a new trial is the [trial] court’s conviction that

                                     - 22 -
J-S22003-20


      the verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Commonwealth v. Horne, 89 A.3d 277, 285 (Pa. Super. 2014), citing

Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000).                 The trial court

abuses its discretion “where the course pursued represents not merely an

error of judgment, but 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.”   Horne, 89 A.3d at 285-286

(citation omitted).   In order for an appellant to prevail on a weight of the

evidence claim, “the evidence must be so tenuous, vague and uncertain that

the verdict shocks the conscience of the [trial] court.” Commonwealth v.

Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003) (citation and internal

quotation marks omitted), appeal denied, 833 A.2d 143 (Pa. 2003).

      Here, Appellant repeats his sufficiency argument in challenging the

weight of the evidence, namely that the evidence, which he alleges the

Commonwealth did not dispute, demonstrated the non-functioning brake

system on the trailer attached to Appellant’s truck caused the trailer to push

Appellant’s truck into the opposing lane of traffic where it collided with the

victim’s vehicle. Appellant’s Brief at 18. Appellant contends, “the jury gave

no weight to this overwhelming evidence and found him guilty regardless of

the jury instructions that advised” the jury that evidence of DUI cannot be

used to establish gross negligence or a reckless act, which are elements

necessary to sustain a conviction for aggravated assault by vehicle and REAP.



                                       - 23 -
J-S22003-20



Id. at 18-19. Appellant asserts that “[a]t best, the Commonwealth presented

ordinary negligence that []Appellant was driving approximately six [MPH] over

the speed limit.” Id. at 19.

      The trial court, in denying Appellant’s post-trial motion, found the

verdict was not against the weight of the evidence and did not shock the trial

court’s sense of justice. The trial court reasoned,

      Appellant's argument ignores that he crossed not only [the
      centerline], but a concrete barrier while being in the incorrect lane
      (Appellant told officers he was continuing to travel south on Route
      220) and collided into an oncoming vehicle. Appellant's argument
      simply is that the jury should have believed his expert. The jury
      obviously rejected the expert's opinion that the brakes on the
      trailer failed causing the truck to jack[-]knife. The jury obviously
      believed that Appellant was grossly negligent in being in the
      incorrect lane and then further crossing a concrete barrier into
      oncoming traffic. Such behavior does rise to the level of gross
      negligence.

Trial Court Opinion, 12/5/19, at 5.

      Appellant’s argument invites this Court to do nothing more than

reassess the witnesses’ credibility and reweigh the evidence, in particular

Appellant’s accident reconstruction expert’s testimony, in an attempt to

convince us to reach a result different than the one reached by the jury, as

fact-finder. We decline Appellant’s invitation. Commonwealth v. Clay, 64

A.3d 1049, 1056 (Pa. 2013) (holding, the role of the appellate court when

addressing a weight claim is to determine if the trial court exceeded its limit

of judicial discretion or invaded province of the jury). Based upon the record

before us, we discern no abuse of discretion on the part of the trial court in


                                      - 24 -
J-S22003-20



denying Appellant’s request for a new trial based on his claim that the verdict

was against the weight of the evidence. Therefore, Appellant’s claim is without

merit.

      Judgment of sentence affirmed.

      Judge Murray joins.

      Judge Colins notes dissent.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/24/2020




                                    - 25 -
