J-A02034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BENJAMIN MILES LONG

                            Appellant                  No. 70 MDA 2015


      Appeal from the Judgment of Sentence entered November 14, 2014
                 In the Court of Common Pleas of York County
               Criminal Division at No: CP-67-CR-0005848-2013




COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

BENJAMIN MILES LONG

                            Appellee                   No. 150 MDA 2015


      Appeal from the Judgment of Sentence entered November 14, 2014
                 In the Court of Common Pleas of York County
               Criminal Division at No: CP-67-CR-0005848-2013


BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J:                               FILED JUNE 20, 2016



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A02034-16



      The Commonwealth and Defendant Benjamin Miles Long (“Long” or

“Defendant”) appeal from the judgment of sentence the Court of Common

Pleas of York County entered November 14, 2014.          The Commonwealth

challenges the discretionary aspects of the sentence, alleging, in essence,

the sentence is too lenient. Long challenges the sufficiency of the evidence

supporting his aggravated assault conviction.    Upon review, we affirm the

judgment of sentence.

      The trial court summarized the relevant background as follows:

      On June 19, 2013, [Long] was involved in a car accident. Prior
      to the crash, [Long] was seen engaging in aggressive driving for
      several miles, consistent with someone experiencing road rage.
      [Long] was observed tailgating another vehicle at an unsafe
      distance almost hitting the vehicle several times.     On one
      occasion, [Long] pulled his car along the vehicle and shined a
      flashlight at the driver.

      When a vehicle two cars ahead of [Long]’s vehicle stopped to
      make a turn, [Long] swerved left and crossed the center line to
      avoid a rear end collision with the turning vehicle. As a result,
      [Long] hit an oncoming vehicle head-on. The driver of the
      oncoming vehicle suffered several major injuries. Notably, the
      two drivers between [Long] and the turning vehicle were able to
      stop and pull to the berm of the road to avoid hitting the turning
      car.

      A jury trial was held from September 29 to October 1, 2014.
      The jury found [Long] guilty of [a]ggravated [a]ssault,
      [r]ecklessly [e]ndangering [a]nother [p]erson, and [c]areless
      [d]riving [c]ausing [s]erious bodily [i]njury.      The [c]ourt
      additionally found [Long] guilty of [r]ecklessly [d]riving and
      [f]ollowing [t]oo [c]losely. On November 14, 2014, the [trial
      c]ourt sentenced [Long] [to 12 months minus 1 day to 24
      months minus 2 days in the York County Prison on the
      aggravated assault conviction. This appeal followed].

Trial Court Opinion, 3/20/15, at 1-2 (citations and footnotes omitted).

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      As noted, the Commonwealth challenges the discretionary aspects of

the sentence imposed. The Commonwealth argues the sentence is too

lenient.

      Before we reach the merits of this [issue], we must engage in a
      four part analysis to determine: (1) whether the appeal is
      timely; (2) whether [a]ppellant preserved his issue; (3) whether
      [a]ppellant’s brief includes a concise statement of the reasons
      relied upon for allowance of appeal with respect to the
      discretionary aspects of sentence; and (4) whether the concise
      statement raises a substantial question that the sentence is
      appropriate under the sentencing code. The third and fourth of
      these requirements arise because Appellant’s attack on his
      sentence is not an appeal as of right. Rather, [appellant] must
      petition this Court, in [appellant’s] concise statement of reasons,
      to grant consideration of [appellant’s] appeal on the grounds
      that there is a substantial question.        Finally, if the appeal
      satisfies each of these four requirements, we will then proceed to
      decide the substantive merits of the case.

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006)

(citations omitted).

      Relevant to our analysis is Pa.R.Crim.P. 721, which governs the

Commonwealth’s appeal. Section 721, in relevant part, provides:

      (A) Commonwealth Challenges to Sentence

      (1) The Commonwealth may challenge a sentence by filing a
      motion to modify sentence, by filing an appeal on a preserved
      issue, or by filing a motion to modify sentence followed by an
      appeal.
      (2) Sentencing issues raised by the Commonwealth at the
      sentencing proceeding shall be deemed preserved for appeal
      whether or not the Commonwealth elects to file a motion to
      modify sentence on those issues.

      (B) Timing



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       (1) Motion for Modification of Sentence. A Commonwealth
       motion for modification of sentence shall be filed no later than
       10 days after imposition of sentence.

Pa.R.Crim.P. 721(A)-(B)(1).

       Additionally,

       Under Rule 721, the Commonwealth’s motion for modification of
       sentence is optional, as long as any discretionary sentencing
       issue is properly preserved at the time sentence was imposed.
       Before forgoing trial court review and proceeding with a direct
       appeal, the attorney for the Commonwealth must therefore be
       sure that the record created at the sentencing proceeding is
       adequate for appellate review of the issue, or the issue may be
       waived.

Id., Comment (citation omitted).

       A review of the record reveals the Commonwealth failed to timely

and/or properly challenge the discretionary aspects of the sentence. Here,

the record reveals that the trial court imposed the sentence at issue on

November 14, 2014.         A review of the transcript of the sentencing hearing

reveals the Commonwealth did not object to or otherwise challenge the

discretionary aspects of the sentence imposed.1        Additionally, the record

____________________________________________


1
  In its brief, the Commonwealth stated that it made an objection to the
sentence at the time of sentencing. Commonwealth’s Brief at 7 (citing to
N.T. Sentencing, 11/14/14, at 21). There is no Commonwealth objection to
the sentence that can be found on page 21 of the transcript or any objection
made by the Commonwealth. The so-called objection is merely a comment
made by the trial court, which cannot be read, by any stretch, as
Commonwealth’s objection to the sentence. The comment reads as follows:
“The basis for this [c]ourt’s determination, which I am certain will be
appealed by the Commonwealth, is that [Long] does appear to be an
individual who was a good candidate for rehabilitation and who honestly rues
his poor choices on the day in question.” N.T. Sentencing, 11/14/14, at 21.



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shows that the Commonwealth filed its motion for modification of sentence

on December 17, 2014, which was 33 days after the imposition of the

sentence.     The motion is, therefore, facially untimely.        Because the

Commonwealth failed to challenge the discretionary aspects of the sentence

at the time of sentencing and failed to file a timely motion for modification of

sentence, the Commonwealth waived its challenge to the discretionary

aspects of the sentence. See Pa.R.Crim.P. 721.

      Long, as noted, challenges the sufficiency of the evidence supporting

the aggravated assault conviction. Long argues the Commonwealth did not

present sufficient evidence to show he acted with the required mens rea

(recklessness).   Specifically, Long points out that the evidence shows that

the accident at issue here was unavoidable, due to other drivers’ fault. We

disagree.

      We review a sufficiency claim pursuant to the following standard:

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof 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 the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).



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      A person is guilty of aggravated assault “if he attempts to cause

serious bodily injury to another, or causes such injury intentionally,

knowingly     or   recklessly   under    circumstances   manifesting   extreme

indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). Where

the Commonwealth’s theory of the case for aggravated assault is based on

defendant’s recklessness, the Commonwealth must show that the assailant’s

recklessness rose to the level of malice.      Commonwealth v. Kling, 731

A.2d 145, 147-48 (Pa. Super. 1999).        Malice consists of a “wickedness of

disposition, hardness of heart, cruelty, recklessness of consequences, and a

mind regardless of social duty, although a particular person may not be

intended to be injured.” Commonwealth v. Pigg, 571 A.2d 438, 441 (Pa.

Super. 1990).       “Where malice is based on a reckless disregard of

consequences, it is not sufficient to show mere recklessness; rather, it must

be shown the defendant consciously disregarded an unjustified and

extremely high risk that his actions might cause death or serious bodily

injury.”    Kling, 731 A.2d at 148.       Regarding malice in the context of

automobile accidents, “a conviction based on malice is appropriate where

evidence demonstrates the element of sustained recklessness by a driver in

the face of an obvious risk of harm to his victims.” Id. at 149 (emphasis in

original) (discussing Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998)).

      The trial court first addressed the matter at the post-sentence motions

hearing. In response to Long’s argument, the trial court noted:




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        [The accident] was avoidable had he not been following so
        closely and engaging in the behavior that he was, in fact,
        engaging in[,] and the two vehicles in front of him were able to
        stop and they did not strike the vehicle in front of them. The
        Defendant was, at least arguably from the evidence, so close
        behind that he actually couldn’t stop safely. He had to pull out
        in the opposite lane of travel, okay, presumably to avoid the
        collision with the vehicle in front of him, and I think with regard
        to all of the evidence that was presented at trial, he was
        certainly reckless in engaging in his conduct.

        [Regarding malice], there was sufficient evidence elucidated at
        trial, you know, that the behavior he was engaging in – I mean,
        he was very aggressive. He was trying to intimidate the vehicle
        in front of him, and this was ongoing for a long period of time,
        and continuously engaging in that type of behavior, he was, you
        know, reckless, and so reckless, under the circumstances, that
        resulted in the serious injuries to the victim.

N.T. Post-Sentence Hearing, 12/26/14, at 7-8.

        The driver of the vehicle being targeted by Long also provided other

details of Long’s “very aggressive,” “intimidat[ing]” behavior.        Id.    She

testified that Long kept slowing down and then going fast toward her car and

getting so close to her car that she thought Long would hit her. N.T. Trial,

9/29-10/1/14, at 86-7. She also testified that Long would swerve to either

side of her car, multiple times. Id. Finally, she testified that he shined a

flashlight from his vehicle into the mirrors of her car for approximately 2

minutes,2 the last two minutes just before the crash. Id. at 88-89.



____________________________________________


2
    The accident took place around 10:30 p.m.




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       The whole ordeal lasted approximately 15-20 minutes, stretched for

about 9 miles, during which Long repeatedly engaged in the aforementioned

reckless conduct.        Id.    Eventually it ended with Long swerving into the

opposite lane, and colliding head-on with a driver coming from the opposite

direction, in an attempt to avoid a collision with the car right in front of him.

Trial Court Opinion, 3/20/15, at 2 (citations omitted). The driver of the car

Long hit suffered serious bodily injury, id., and two cars,3 in addition to

Long’s, were damaged as a result of the accident. N.T. Trial, 9/29-10/1/14,

at 114-15.

       The accident was not only foreseeable, it was also bound to happen,

considering the length in time and space, and the number of times he took

the chance in rear-ending the preceding car, or otherwise provoking an

accident, as he did. A review of the facts and circumstances surrounding the

accident, viewed in the light most favorable to the Commonwealth, reveals

that Long engaged in sustained recklessness in the face of an obvious risk of

harm to his victims.           We conclude, therefore, Long’s challenge to the

sufficiency of the evidence is without merit.

       Long cites a few cases where our Court found that a driver was not

acting recklessly, pointing to the similarities of the instant case with those

cases. To this end, Long notes that he was not impaired at the time of the
____________________________________________


3
 In addition, Appellant’s vehicle, after hitting the first vehicle, kept spinning
and crashed into another vehicle.



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J-A02034-16


accident, he was not speeding, and that he attempted to prevent the

accident by slamming on the brakes just before the crash.

     While he asks this Court to consider the totality of the circumstances

in order to determine whether he acted recklessly, in his totality of the

circumstances analysis, Long omits the evidence against him, points to

absent evidence as evidence he did not commit the crime, and asks this

Court to view the facts in the light most favorable to him, the losing party

below. We decline to follow Long’s approach.

     In light of the foregoing, we conclude the evidence was sufficient to

support Long’s aggravated assault conviction.

     Judgment of sentence affirmed.




     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2016




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