J-S27036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER BROWN                          :
                                               :
                       Appellant               :   No. 1901 EDA 2017

              Appeal from the Judgment of Sentence May 4, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0001218-2017


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                           FILED SEPTEMBER 06, 2018

       Appellant Christopher Brown appeals from the Judgment of Sentence

entered in the Delaware County Court of Common Pleas after a bench trial of

Driving Under the Influence (“DUI”), Reckless Driving, and Careless Driving.1

He challenges the sufficiency of the evidence supporting the Reckless and

Careless Driving convictions, and avers that the summary driving offenses

merged for purposes of sentencing. After careful review, we conclude that

sufficient evidence supported the convictions, but because the offenses

merged for purposes of sentencing, we vacate the Judgments of Sentence and

remand for resentencing.

       We glean the following facts from the Notes of Testimony.              At

approximately 5:50 A.M. on December 11, 2016, Officers Stephen O’Hara and
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1 75 Pa.C.S. § 3802(c); 75 Pa.C.S. § 3736(a); and 75 Pa.C.S. § 3714(a),
respectively.
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Edward Mongelluzzo of the Darby Township Police Department responded to

a report of a motor vehicle accident on the 1100 block of Clifton Avenue.

Officer O’Hara, who had been at the nearby police station, arrived within 30

seconds of the radio dispatch. The weather was clear, the traffic was light,

and the road had no impediments.        At the scene, Officer O’Hara saw an

unoccupied, parked minivan that had been hit by a vehicle and pushed into

the car parked in front of it. Officer O’Hara also saw a two-door Chevrolet

Trailblazer off the roadway and stuck over the curb at an angle. The officer

observed the Trailblazer’s operator make repeated, failing efforts to drive the

vehicle in reverse back over the sidewalk curb, which caused the rear tires to

spin without gaining traction, leaving holes in the dirt of the adjoining grassy

area.

        Officer O’Hara parked his police car and approached the Trailblazer’s

driver’s side. The Trailblazer had damage to its front end and to the driver’s

side door, damage that complemented the damage that the two nearby

parked, unoccupied vehicles sustained.      Appellant attempted to push the

damaged door open with his shoulder but was unsuccessful because the door

was bent. Officer O’Hara pulled hard on the door and extracted Appellant.

Officer Mongeluzzo roused a sleeping passenger from the back seat who told

the officer that they had been drinking at the firehouse just before departure.

See Incident Report, Exhibit C-2.       Neither Appellant nor his passenger

suffered injuries in the crash.




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       Once Appellant was out of the vehicle, Officer O’Hara noticed that he

was unsteady on his feet.           He also noticed that Appellant’s eyes were

bloodshot, his speech was slurred, and from his body emanated an odor of

alcohol. An open, unfinished beer bottle sat in the center console. Appellant

told Officer O’Hara that he had come from a party at the nearby firehouse that

Officer O’Hara knew regularly had Saturday evening parties at which

participants could purchase alcoholic beverages. Appellant told the officer that

the Trailblazer was his mother’s car, and provided Officer O’Hara with his

home address that matched the vehicle’s registration. Officer O’Hara did not

conduct field sobriety tests on Appellant. Once transported to the hospital,

Appellant refused to provide blood for testing.      See N.T., 4/4/17, at 6-74

(Testimony of Officer O’Hara).

       The Commonwealth charged Appellant with numerous driving offenses.

On May 4, 2017, a bench trial proceeded on the above three charges only.

Officer O’Hara testified for the Commonwealth.         The court admitted the

incident report filed by Officers O’Hara and Mongelluzzo without objection. At

Appellant’s behest, the court admitted the transcript from Appellant’s

preliminary hearing into evidence.

       After counsel’s closing arguments, the court found Appellant guilty, and

sentenced him to 30 days’ to 6 months’ incarceration for the DUI,2 fines of

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2 Appellant received credit for the 30 days of time he had already served and
the court immediately released him on parole.



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$200 and $25 for the summary offenses of reckless driving and careless

driving, respectively, and restitution.3

        Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

        Appellant raises the following issues for our review:

        1. Whether the evidence is insufficient to sustain the convictions
           for reckless driving and the lesser-included offense of careless
           driving since the Commonwealth failed to prove, beyond a
           reasonable doubt, that Appellant recklessly or careless
           disregarded the safety of persons or property?

        2. Whether the separate sentence imposed for careless driving is
           illegal since that offense should have merged with reckless
           driving for sentencing purposes?

Appellant’s Brief at 5.

        In his first issue, Appellant avers that the Commonwealth failed to

produce sufficient evidence to support his convictions for careless driving and

reckless driving. Appellant’s Brief at 10.4      He speculates that “[t]here are

numerous possible explanations (unrelated to carelessness or recklessness)

for how the collision could have occurred,” and baldly states that “[w]ithout

eyewitness or expert testimony or an admission from [Appellant], the



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3 The court imposed $25 in restitution after noting that Appellant’s mother’s
automobile insurance had covered some of the costs the owners of the parked
cars had incurred because of the accident. See N.T., 5/4/17, at 104-106.

4   Appellant has not challenged his DUI conviction before this Court.

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government could not establish how the accident occurred” or that Appellant

“acted with the mens rea required to sustain the convictions.” Id. at 14.

      Our standard of review applicable to challenges to the sufficiency of

evidence is well settled. “Viewing the evidence in the light most favorable to

the Commonwealth as the verdict winner, and taking all reasonable inferences

in favor of the Commonwealth, the reviewing court must determine whether

the evidence supports the fact-finder's determination of all of the elements of

the crime beyond a reasonable doubt.” Commonwealth v. Hall, 830 A.2d

537, 541–42 (Pa. 2003). Further, a conviction may be sustained wholly on

circumstantial evidence, and the trier of fact—while passing on the credibility

of the witnesses and the weight of the evidence—is free to believe all, part, or

none of the evidence. Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa.

Super. 2014). In conducting this review, the appellate court may not weigh

the evidence and substitute its judgment for that of the fact-finder. Id.

      Careless driving requires that the driver operate “a vehicle in careless

disregard for the safety of persons or property.” 75 Pa.C.S. § 3714. Reckless

driving requires a driver to drive in “willful or wanton disregard for the safety

of persons or property.” 75 Pa.C.S. § 3736; Commonwealth v. Greenberg,

885 A.2d 1025, 1027 (Pa. Super. 2005). Careless driving is a lesser-included

offense of reckless driving. Commonwealth v. Cathey, 645 A.2d 250, 253

(Pa. Super. 1994).




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      To prove a “willful or wanton disregard,” the Commonwealth must show

that the driver had a “conscious disregard of a substantial and unjustifiable

risk.” Commonwealth v. Bullick, 830 A.2d. 998, 1002 (Pa. Super. 2003)

(citation omitted). See also 18 Pa.C.S. § 302(b)(3) (providing that a person

acts recklessly if he or she “consciously disregards a substantial and

unjustifiable risk” of injury to others.).   A driver will be found reckless when

he drives in such a manner that there is “a high probability that a motor

vehicle accident would result from driving in that manner, that he was aware

of that risk and yet continued to drive in such a manner, in essence, callously

disregarding the risk he was creating by his own reckless driving.” Bullick,

supra at 1003.

      We are mindful that “driving under the influence of an intoxicating

substance does not establish recklessness per se.”          Commonwealth v.

Jeter, 937 A.2d 466, 468 (Pa. Super. 2007) (citation omitted). Rather, “there

must be other tangible indicia of unsafe driving to a degree that creates a

substantial risk of injury that is consciously disregarded.”   Id.

      Here, Appellant contends that the “evidence presented here falls short

of proving that [he] drove carelessly, let alone recklessly.” Appellant’s Brief

at 13. Relying on cases with distinguishable facts, he argues that because

there is no evidence that he was driving on a freeway or at a high rate of

speed, and his blood alcohol content was unknown, the Commonwealth failed

to carry its burden of proof.    Id., citing Jeter, supra; Bullick, supra; and


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Commonwealth v. Gezovich, 7 A.3d 300, 301 (Pa. Super. 2010). Appellant

omits from his analysis the well-settled case law that holds that the

Commonwealth may prove the elements of a crime with circumstantial

evidence and the reasonable inferences drawn from it.       Our review of the

record indicates that, contrary to Appellant’s contention, the evidence

supports the court’s determination that Appellant drove carelessly and

recklessly.

      First, as the court found, Appellant drove while under the influence to a

degree that rendered him incapable of safe driving. Appellant has not

challenged his DUI conviction before this Court. Moreover, Appellant admitted

to the police officer that he had just left a party at the firehouse.    In the

totality of the circumstances, driving while inebriated is one piece of evidence

supporting a conclusion that Appellant acted in willful and wanton disregard

for the safety of others.   However, it was not the only piece of evidence

presented in the instant case.

      The crash itself provides “other tangible indicia of unsafe driving.”

Jeter, supra. The evidence supports a reasonable inference that Appellant

caused the crash. Officer O’Hara arrived within a minute of the radio dispatch

to see Appellant inside his damaged vehicle trying to reverse from the curb

where it had ended up askew near two other damaged vehicles. Combined

with Appellant’s being in the driver’s seat still trying to operate the vehicle,

and the damage to the vehicle that complemented the damage that the two


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unoccupied, parked, cars sustained, we conclude that the Commonwealth

proved beyond a reasonable doubt that Appellant caused the crash resulting

in property damage.

       Moreover, Appellant’s continuing attempt to operate the vehicle, even

after causing damage, shows his “callous[ ] disregard” of a “substantial and

unjustifiable risk.” Bullick, supra at 1003.

       Applying our standard of review, “viewing the evidence in the light most

favorable to the Commonwealth as the verdict winner, and taking all

reasonable inferences in favor of the Commonwealth,” we conclude that the

evidence supports the court’s determination that the Commonwealth proved

all of the elements of careless and reckless driving beyond a reasonable doubt.

Accordingly, we affirm the convictions.

       Appellant next contends that the offenses of careless driving and

reckless driving merge for purposes of sentencing, and the court’s imposition

of two separate sentences of $25 and $200, respectively, comprises an illegal

sentence. We agree.5

       Whether offenses merge for sentencing purposes “depend[s] on

whether the crimes involved are greater and lesser included offenses; if so,

the sentences merge, if not, merger is not required.” Commonwealth v.



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5We note that both the trial court and the Commonwealth recognize that the
offenses merged for purposes of resentencing. See Trial Ct. Op., 12/12/17,
at 14; Commonwealth’s Brief at 10.

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Everett, 705 A.2d 837, 839 (Pa. 1998). As noted above, this Court previously

held that careless driving is a lesser-included offense of reckless driving.

Cathey, 645 A.2d at 253.

      Accordingly, the trial court here erred in imposing separate sentences

on each conviction. We, thus, vacate the Judgment of Sentence and remand

for resentencing.

      Convictions affirmed; Judgments of Sentence vacated; case remanded

for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/18




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