J-A25016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

EDWIN OTERO

                            Appellant                   No. 2295 EDA 2013


           Appeal from the Judgment of Sentence of March 28, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0808951-2005


BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                           FILED NOVEMBER 14, 2014

       Edwin Otero appeals from the judgment of sentence entered March 28,

2013, following his waiver trial and conviction of aggravated assault, simple

assault, recklessly endangering another person, accidents involving injury

while not properly licensed, and accidents involving damage to property.1

We affirm.

       The trial court set forth the following recitation of facts:

       At a bifurcated waiver trial . . . , the Commonwealth presented
       the testimony of Ms. Donna Floody, Mr. John Foley, and Ms. Lisa
       Foley. [Otero] presented testimony from [himself] and Mr.
       Kareem Shabazz[, an investigator for the defense]. Additionally,
       two retired Philadelphia Police Officers were unable to be located
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
     18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705; 75 Pa.C.S.A. §§ 3742.1(a),
and 3743(a), respectively.
J-A25016-14


     for trial. Therefore, the notes of testimony from two preliminary
     hearings were introduced in lieu of testimony from Officer Henry
     Gehring and Officer Robert Byrne.

     On September 11, 2004, at approximately 2:45 a.m., Ms. Lisa
     Foley was in the area of Frankford Avenue and Glenwood Avenue
     in the city and county of Philadelphia. Ms. Foley arrived at the
     area in a car with her cousins, Donna Floody and Helena Floody,
     as well as her brother, John Foley. The group was coming from
     Ms. Foley’s mother’s birthday party and were going to an after-
     hours club on Frankford Ave. Ms. Foley exited the rear of the
     driver’s side of the vehicle and proceeded to cross Frankford
     Ave. in the middle of the block. Once Ms. Foley had reached the
     bicycle lane on the opposite side of the street, a white vehicle
     with tinted windows came down Frankford Ave. at a very high
     rate of speed and struck Ms. Foley. Witnesses testified that the
     vehicle had run a red light at the intersection of Frankford and
     Glenwood, was going approximately sixty miles per hour, did not
     honk or [brake] prior to striking Ms. Foley, and hit several
     parked cars on Frankford Ave. John Foley chased after the
     vehicle, but the driver did not stop. At the time of the incident,
     it was dark, but there was no traffic on the street[;] it was a
     clear night, and the street was dry.

     Ms. Foley was thrown approximately twenty feet after being
     struck by the vehicle and suffered several serious injuries, which
     were stipulated to by both parties.           Ms. Foley does not
     remember the actual impact. Following the incident, she was
     taken to Hahnemann Hospital, where part of her skull was
     removed and several rods were inserted into her leg. After two
     weeks in the hospital, Ms. Foley was transported to Moss Rehab,
     where she remained for four weeks, followed by lengthy
     outpatient physical therapy. Ms. Foley’s injuries are mostly
     healed, but she still suffers pains in her leg and headaches. Ms.
     Foley testified to having several drinks throughout the evening
     and admitted that she was drunk at the time of the incident.

     Officer Henry Gehring responded to the scene of the incident at
     3:15 a.m. on September 11, 2004. Officer Gehring found and
     photographed several car parts at the scene, including[:] pieces
     of a headlight, a plastic rain deflector, and a chrome windshield
     wiper arm. Officer Gehring also observed white paint that had
     transferred onto a parked car at the scene. On September 30,
     2004, Officer Robert Byrne of the Philadelphia Police
     Department’s Accident Investigation Division received a tip that

                                   -2-
J-A25016-14


       a white Toyota had been involved in a hit and run. Officer Byrne
       went to 1895 Haworth Street to investigate and was told by
       [Otero’s] mother that her son owned the vehicle. Officer Byrne
       matched the car parts found at the scene to [Otero’s] vehicle.
       One headlight was visibly dirtier than [the] other, leading Officer
       Byrne to conclude that one had been replaced. The vehicle’s
       windshield and wiper blade had also been replaced. The rain
       protectors had been removed, but there was visible glue residue
       where they had been mounted on the vehicle. The vehicle also
       had soft contact damage, meaning that there were dents in the
       vehicle without paint on them, so they had not been caused by
       metal on metal contact. Officer Byrne had the car towed and
       returned the next day to speak with [Otero].

       [Otero] testified during trial that he had been driving in the area
       of the incident and did not think that he had hit anyone, but
       believed that someone had thrown a rock at his vehicle. He
       testified that there was damage to his windshield and he
       replaced it the following day. He testified that he had not run a
       red light at the intersection of Frankford and Glenwood Avenues.

Trial Court Opinion (“T.C.O.”), 2/5/2014, at 2-4 (record citations omitted).2

       On February 4, 2013, the court found Otero guilty of the above-

mentioned charges.          On March 28, 2013, Otero was sentenced to an

aggregate of not less than seven nor more than seventeen years’




____________________________________________


2
      The passage of time between the incident and Otero’s trial is
attributable to two interlocutory appeals filed by the Commonwealth
pursuant to Pa.R.A.P. 311(d) regarding the admissibility of a statement
Otero made to police that his nephew translated, and the officers’ notes of
that translated admission. See Commonwealth v. Otero, No. 130 EDA
2010 (Pa. Super. filed Jul. 2, 2010); Commonwealth v. Otero, No. 1296
EDA 2007 (Pa. Super. filed Feb. 2, 2009). Ultimately, although it was
determined that the officers could testify as to their memory of Otero’s
admissions, the officers could not be located and did not testify at trial.




                                           -3-
J-A25016-14



incarceration.3 Otero timely filed a post-sentence motion, which was denied

by operation of law on August 5, 2013. Otero timely filed a notice of appeal,

and pursuant to the trial court’s order, filed a statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on September 18,

2013. The trial court entered an opinion pursuant to Pa.R.A.P. 1925(a) on

February 5, 2014.

       Otero presents the following three questions for our review:

       1.    Did the [trial court] abuse [its] discretion in sentencing Mr.
       Otero to 7 to 17 years of incarceration plus 2 years[’] probation
       and was this sentence extremely excessive? Did [the court’s]
       sentence of 5 to 10 years on the Aggravated Assault charge (18
       Pa.C.S.A. [§] 2702)(F-2) exceed without reason the guideline
       range of 27 to 33 months based on offense gravity score of 8
       and a prior record score of 5? Did the sentence of 2 to 7 years
       consecutive on the charge of Leaving the Scene of a Crime (75
       Pa.C.S.A. [§] 3742)(F-3) far exceed the sentencing guidelines of
       12 to 18 months for an offense gravity score of 5 and a prior
       record score of 5? Did [the court] further abuse [its] discretion
       by making both sentences consecutive for an extremely
       excessive sentence of 7 to 17 years of incarceration? Did [the
       court] fail to state adequate reasons for the excessive sentence?

       2.    Were the verdicts for the crimes of Aggravated Assault (F-
       2), Simple Assault (M-2), Recklessly Endangering Another
       Person (M-2) and Leaving the Scene of an Accident (F-3) when
       someone was injured not supported by sufficient evidence? Was
       the evidence conflicting and confusing, and was this case only an
____________________________________________


3
      Specifically, the court sentenced Otero to not less than five nor more
than ten years for aggravated assault, not less than two nor more than
seven years for accidents involving injury while not properly licensed, and
two years’ probation for recklessly endangering another person, all to run
consecutively. The court did not impose further penalty for simple assault or
accidents involving damage to property. See Sentencing Order, 3/28/2013,
at 1.



                                           -4-
J-A25016-14


      automobile accident without criminal negligence, particularly
      since the victim was extremely intoxicated crossing the middle of
      the street in the dark in the early morning hours?

      3.    Were the verdicts for the crimes of Aggravated Assault (F-
      2), Simple Assault and Recklessly Endangering Another Person
      (M-2) and leaving the Scene of an Accident (F-3) against the
      weight of the evidence? Did the evidence not show criminal
      negligence, particularly since the victim was extremely
      intoxicated? Was the evidence also conflicting? Did the verdicts
      shock the conscience?

Otero’s Brief at 9-10.

      Otero’s first issue is a challenge to the discretionary aspects of his

sentence.     Specifically, Otero alleges that his sentence exceeded the

guideline ranges and that the court abused its discretion by ordering his

sentences to run consecutively and by failing to state adequately on the

record its reasons for imposing the sentence. We disagree.

      A challenge to the discretionary aspects of a sentence must be
      considered a petition for permission to appeal, as the right to
      pursue such a claim is not absolute. Two requirements must be
      met before we will review this challenge on its merits. First, an
      appellant must set forth in his brief a concise statement of the
      reasons relied upon for allowance of appeal with respect to the
      discretionary aspects of a sentence. Second, the appellant must
      show that there is a substantial question that the sentence
      imposed is not appropriate under the Sentencing Code. The
      determination of whether a particular issue raises a substantial
      question is to be evaluated on a case-by-case basis. In order to
      establish a substantial question, the appellant must show actions
      by the trial court inconsistent with the Sentencing Code or
      contrary to the fundamental norms underlying the sentencing
      process.

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)

(citations omitted).


                                    -5-
J-A25016-14



        In the present case, Otero’s brief contains a concise statement in

compliance with Pa.R.A.P. 2119(f).       Otero’s Brief at 5-8, 25-26.      Otero

asserts that the trial court failed to consider his acceptance of responsibility,

his expression of remorse, and the likelihood that he would benefit from

treatment without a long period of incarceration. Id. at 7-8. Consequently,

Otero alleges that the sentence of five to ten years for aggravated assault as

a second-degree felony and two to seven years for leaving the scene of an

accident was extremely excessive and that the trial court abused its

discretion by running the sentences concurrently. Id. at 8.

        To the extent that Otero claims the trial court abused its discretion by

ordering the two sentences to run consecutively, we observe the following:

        Long[-]standing precedent of this Court recognizes that

           42 Pa.C.S.A. section 9721 affords the sentencing court
           discretion to impose its sentence concurrently or
           consecutively to other sentences being imposed at the
           same time or to sentences already imposed.             Any
           challenge to the exercise of this discretion . . . does not
           raise a substantial question.

Commonwealth v. Pass, 914 A.2d 442, 446-447 (Pa. Super. 2006) (case

citation omitted). Thus, Otero is not entitled to relief on this claim.

        However, we have held that a substantial question is raised where an

appellant alleges that the sentencing court erred by imposing an aggravated

range     sentence   without   consideration   of   mitigating    circumstances.

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en




                                      -6-
J-A25016-14



banc).   Thus, we will address the merits of Otero’s challenge to the

discretionary aspects of his sentence.

      Our standard of review is as follows:

         Sentencing is a matter vested in the sound discretion of
         the sentencing judge, and a sentence will not be disturbed
         on appeal absent a manifest abuse of discretion. An abuse
         of discretion is more than just an error in judgment and,
         on appeal, the trial court will not be found to have abused
         its discretion unless the record discloses that the judgment
         exercised was manifestly unreasonable, or the result of
         partiality, prejudice, bias, or ill-will.

      Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.
      Super. 2002) (citations omitted). More specifically, 42 Pa.C.S.A.
      § 9721(b) offers the following guidance to the trial court’s
      sentencing determination:

         [T]he sentence imposed should call for confinement that is
         consistent with the protection of the public, the gravity of
         the offense as it relates to the impact on the life of the
         victim and on the community, and the rehabilitative needs
         of the defendant.

      42 Pa.C.S.A. § 9721(b).

      In every case where a sentencing court imposes a sentence
      outside of the sentencing guidelines, the court must provide in
      open court a contemporaneous statement of reasons in support
      of its sentence.         42 Pa.C.S.A. § 9721; see also
      Commonwealth v. Eby, 784 A.2d 204, 205-06 (Pa. Super.
      2001).

         The statute requires a trial [court] who intends to sentence
         a defendant outside of the guidelines to demonstrate on
         the record, as a proper starting point, [its] awareness of
         the sentencing guidelines. Having done so, the sentencing
         court may deviate from the guidelines, if necessary, to
         fashion a sentence which takes into account the protection
         of the public, the rehabilitative needs of the defendant,
         and the gravity of the particular offense as it relates to the
         impact on the life of the victim and the community, so long
         as [it] also states of record the factual basis and specific

                                     -7-
J-A25016-14


         reasons which compelled [it] to deviate from the guideline
         range.

      Commonwealth v. Gibson, 716 A.2d 1275, 1276-77 (Pa.
      Super. 1998) (internal quotations omitted).

      When evaluating a challenge to the discretionary aspects of
      sentence such as the one advanced by [the a]ppellant, it is
      important to remember that the sentencing guidelines are
      advisory in nature. Id. at 1277. If the sentencing court deems
      it appropriate to sentence outside of the guidelines, it may do so
      as long as it offers reasons for this determination. Id. “[O]ur
      Supreme Court has indicated that if the sentencing court proffers
      reasons indicating that its decision to depart from the guidelines
      is not unreasonable, we must affirm a sentence that falls outside
      those guidelines.” Id. (citations omitted, emphasis in original).

Commonwealth v. Bowen, 55 A.3d 1254, 1263-64 (Pa. Super. 2012)

(citations modified).

      Otero contends that his sentences were excessive and that the trial

court failed to state adequate reasons on the record or consider mitigating

evidence. Otero’s Brief at 25. Preliminarily, we observe that Otero’s five-to-

ten-year sentence for aggravated assault as a second-degree felony and his

two-to-seven-year sentence for accidents involving injury without a license

as a third-degree felony are both within the statutory maximums of ten and

seven years, respectively. See 18 Pa.C.S.A. § 1103(2), (3). At sentencing,

the trial court stated that it had “read the presentence investigative report

[and] the prior record score.”      Notes of Testimony (“N.T.”) Sentencing,

3/28/2013, at 4-5.      Therefore, the court was entitled to deviate from the

guidelines and to fashion a sentence which accounted for the sentencing

factors at 42 Pa.C.S.A. § 9721(b), “so long as [it] also state[d] of record the



                                      -8-
J-A25016-14



factual basis and specific reasons which compelled [it] to deviate from the

guideline range.”   Commonwealth v. Gibson, 716 A.2d at 1276-77.            On

the record, the trial court stated as follows:

      Sir, I have reviewed everything. I was present during the trial
      itself, obviously, and your testimony was simply incredible. It’s
      taken ten years to get here today, and I know that the family
      has waited patiently and I appreciate that. And your attorney
      has asked for mercy.

      Shakespeare once said, “Nothing emboldens sin so much as
      mercy.” And the mercy that has been shown to you all along by
      other Judges hasn’t emboldened you to the point that I am
      cognizant of the fact that it was on July 12th of 2012, you picked
      up a new DUI after all of this.

      Clearly, you’re not getting the point. I know a lot of time has
      gone by, but I also like to read poetry and Nathaniel Hawthorne
      once said that, “Time flies over us but leaves a shadow behind.”
      The shadow that you left behind is the shattered life that is in
      this courtroom today, and it is just incomprehensible that you
      leave believe [sic] somebody by the side of the road even if it
      was a dog during one of the four versions you had of this
      accident.

      Clearly, based upon your testimony you have no remorse.

      [The trial court then announced Otero’s sentence.]

      In doing this, I have read the presentence investigative report. I
      have gone over the prior record score. I find a complete lack of
      remorse. I find a complete disregard for human life. And I find
      that you are a menace to society.         It is just very tragic
      everything that has occurred here.

      But it’s clear that you need to be kept off the roadway, sir, and
      that is my sentence.

N.T. Sentencing at 33-35.

      Accordingly, the trial court’s stated reasons for sentencing Otero in the

aggravated range included protection of the public, gravity of the offense,

                                      -9-
J-A25016-14



and its impact upon the victim, Lisa Foley, as well as Otero’s rehabilitative

needs. See 42 Pa.C.S.A. § 9721(b). As the trial court observed, it “did not

ignore mitigating factors during sentencing; it simply did not see any.”

T.C.O. at 5.        We conclude that the trial court’s departure from the

sentencing guidelines was considered and not unreasonable, and thus, we

affirm the judgment of sentence on this ground. See Bowen, 55 A.3d at

1263-64. Otero’s challenge to the discretionary aspects of his sentence does

not merit relief.

      In his second issue, Otero contends that the verdicts for aggravated

assault, recklessly endangering another person, and leaving the scene of an

accident where someone was injured were not supported by sufficient

evidence. See Otero’s Brief at 41. Specifically, Otero contends that “[t]here

is nothing in the records that would support a finding of recklessness and

criminal negligence by Mr. Otero.” Id. at 48. Thus, he asserts that “there

was no premeditation or intentional conduct” and “the elements of the crime

of Aggravated Assault, which requires attempt to cause or intentionally or

knowingly causing bodily injury, have not been met.”                Id. at 52.

Furthermore, “[a]s to Leaving the Scene of the Accident, one has to know

there is an accident before they can leave the scene.” Id. at 53.

      We analyze Otero’s arguments under the following parameters:

      Our standard when reviewing the sufficiency of the evidence is
      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in the light most favorable to
      the Commonwealth as verdict-winner, are sufficient to establish
      all elements of the offense beyond a reasonable doubt. We may

                                    - 10 -
J-A25016-14


     not weigh the evidence or substitute our judgment for that of the
     fact-finder. Additionally, the evidence at trial need not preclude
     every possibility of innocence, and the fact-finder is free to
     resolve any doubts regarding a defendant’s guilt 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. When evaluating the credibility and weight of
     the evidence, the fact-finder is free to believe all, part or none of
     the evidence. For purposes of our review under these principles,
     we must review the entire record and consider all of the
     evidence introduced.

Commonwealth v. Trinidad, 90 A.3d 721, 728 (Pa. Super. 2014) (citation

omitted).

     In his first argument, Otero contends that there is insufficient evidence

of his mens rea to sustain his conviction for aggravated assault. See Otero’s

Brief at 52. We disagree.

     Aggravated assault, in relevant part, is defined by statute as follows:

     § 2702. Aggravated assault.

     (a) Offense defined. —A person is guilty of aggravated assault
     if he:

           (1) 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).    As to the Commonwealth’s burden of eliciting

sufficient evidence of a defendant’s mens rea to commit aggravated assault,

we have stated:

     When a victim actually sustains serious bodily injury, the
     Commonwealth can, but does not necessarily have to, establish
     specific intent to cause such harm.       As we noted in
     [Commonwealth v. Patrick, 933 A.2d 1043 (Pa. Super.


                                    - 11 -
J-A25016-14


      2007)], the statute’s intent requirement can be met if the
      defendant acts recklessly under circumstances manifesting an
      extreme indifference to human life.

Commonwealth v. Burton, 2 A.3d 598, 602 (Pa. Super. 2010).

      Otero argues that the Commonwealth cannot show that he was

reckless inasmuch as witnesses provided “no reliable testimony of excessive

speed because both the cousin and the brother of the victim did not observe

Mr. Otero’s car long enough to be in a position to note whether he was

driving and speeding excessively” and “[n]one of the victims could refute

that Mr. Otero did not turn left on to Glenwood Street.”          Id. at 46, 50.

Preliminarily, we observe that Otero’s challenge to the credibility of Donna

Floody, John Foley, and Lisa Foley’s testimony contests the weight of the

evidence, not its sufficiency, and we will not disturb a trial court’s credibility

determinations. See Trinidad, 90 A.3d at 728. Furthermore, the parties

stipulated to the extent of Ms. Foley’s injuries. See N.T. Trial, 12/20/2012,

at 49-51.    Thus, our inquiry is whether the evidence and all reasonable

inferences derived therefrom were sufficient to establish that Otero acted

“recklessly under circumstances manifesting an extreme indifference to

human life.” Burton, 2 A.3d at 602.

         To prevail on a theory of recklessness in a prosecution for
         aggravated assault, the Commonwealth must show that
         the assailant’s recklessness rose to the level of malice, a
         crucial element of aggravated assault. 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. Motor vehicle crashes seldom
         result in an aggravated assault conviction because of the

                                      - 12 -
J-A25016-14


        heightened mens rea. However, in some circumstances
        the malice requirement has been met, and this court has
        not hesitated to uphold an aggravated assault or a third
        degree murder charge depending on the particular facts of
        a motor vehicle crash.

     This Court additionally concluded that a motorist’s conduct is
     more egregious if he does not apply his [brakes] or attempt to
     slow down before a collision than if he attempts to flee.

Commonwealth v. Riggs, 63 A.3d 780, 784-85 (Pa. Super. 2012)

(citations omitted) (concluding that appellant’s actions in disregarding red

lights and stop signs, crashing into parked cars, fleeing the scene of the

accident, and exhibiting “clearly indifferent” behavior upon apprehension

manifested “evidence of sustained recklessness”).

     This Court has summarized our Supreme Court’s precedents on

aggravated assault in motor vehicle crashes as follows:

     In [Commonwealth v. O’Hanlon, 653 A.2d 616 (Pa. 1995)], a
     driver ran a red light and struck another vehicle, causing serious
     injury to another driver. Our Supreme Court reversed the
     appellant’s conviction for aggravated assault on the basis that he
     was guilty only of mere recklessness, stating that “serendipity,
     not intention, placed the victim in his path when he drove
     through the red light.” O’Hanlon, 653 A.2d at 618. More
     recently, in [Commonwealth v. Comer, 716 A.2d 593 (Pa.
     1998)], our Supreme Court reversed a conviction for aggravated
     assault where the appellant, who had ingested alcohol and
     barbiturates, drove his car at an excessive rate of speed. As he
     was driving, the right tire of the appellant’s car rubbed the curb,
     and then the vehicle left the highway, crashed into a bus stop,
     and eventually struck a brick wall. One person was killed and
     another was severely injured as a result of the appellant’s
     actions. Our Supreme Court held that the appellant’s conduct,
     while criminally reprehensible, was nonetheless insufficient to
     establish the state of mind equivalent to that which seeks to
     cause injury.



                                   - 13 -
J-A25016-14


      As we noted in [Commonwealth v. Kling, 731 A.2d 145, 147
      (Pa. Super. 1999)], however, in both O’Hanlon and Comer, our
      Supreme      Court   distinguished    this  Court’s    holding   in
      Commonwealth v. Scofield, 521 A.2d 40 (Pa. Super. 1987),
      appeal denied, 535 A.2d 82, wherein we upheld the appellant’s
      conviction for aggravated assault. In Scofield, the appellant
      was driving his car and scraped it against the bumper of another
      vehicle parked on the street.        Although sparks emanated,
      Scofield drove another ten feet, swerved onto the sidewalk and
      struck a building. A passing cabdriver, who realized Scofield had
      struck a pedestrian and trapped him under the fender of the
      vehicle, approached Scofield’s car and told him to turn off the
      car. The cabdriver even attempted to reach into the car and
      remove the keys. Scofield, however, became belligerent and
      assaulted the cabdriver. He then tried to put his car into
      reverse, but a flat tire prevented his flight. We concluded that
      Scofield’s behavior prior to and after the accident established his
      awareness of the risk of serious injury, and, therefore, we
      upheld his aggravated assault conviction.

      In distinguishing this Court’s holding in Scofield from the case
      in Comer, our Supreme Court opined that the “circumstances [in
      Scofield] demonstrated a higher degree of recklessness than
      those presented in [Comer],” noting that in Comer, the
      appellant “sped past another vehicle, his car rubbed the curb of
      the sidewalk and the accident ensued immediately thereafter.”
      Comer, 716 A.2d at 597.            As we noted in Kling, “the
      cornerstone of this conclusion rested with the notion [that]
      Scofield considered, then disregarded, the threat to the life of
      the victim;” and, in Comer, our Supreme Court “indicated 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.” Kling, 731
      A.2d at 149 (emphasis original).

Commonwealth v. Allen, 833 A.2d 800, 803-04 (Pa. Super. 2003)

(citations modified).

      Here, at trial, Donna Floody testified that on September 11, 2004, Lisa

Foley was in the bike lane when “a white vehicle came speeding through the

red light. He was going approximately 60 miles an hour when he hit Lisa.

                                    - 14 -
J-A25016-14



She [l]anded on the vehicle and she bounced off the vehicle onto a parked

car. She was thrown 25 or 30 feet and she landed . . . on her back.” N.T.

Trial, 12/20/2012, at 11).     She did not hear the screeching of brakes or

tires, and when John Foley chased after the white car, “the person driving

took off.”   Id. at 12.   John Foley affirmed that Lisa Foley was in the bike

lane, and stated that he saw the car run the red light at high speed and

strike three or four parked cars before hitting Lisa Foley.    Id. at 37-39.

Foley said he “chased the car and [the driver] hit the brake, tapped the

brakes and went up another street [while] I was screaming and hollering[.]”

Id. at 28-29.    Police investigating the accident found debris from the car,

and paint transfer and damage on the parked cars hit by the white car. N.T.

Preliminary Hearing, 8/15/2005, at 17. After receiving a tip regarding the

location of the white car on September 30, 2004, the officers matched the

damage on it to the accident debris and observed that the windshield and a

headlight had been replaced. Id. at 21-22; N.T. Motions, 4/13/2007, at 42,

59.     As observed by the trial court, Otero gave at least four different

explanations for what he thought he had hit, but never stopped to render

assistance. See N.T. Sentencing, 3/28/2013, at 34-35.

        The evidence shows that Otero ran a red light, drove into the bicycle

lane, hit several parked cars, then struck Ms. Foley so hard that she was

thrown at least twenty feet. Otero did not apply his brakes until after he hit

Ms. Foley, but instead of stopping to determine what happened, he drove

away.     Afterward, Otero did not report the accident, but immediately

                                     - 15 -
J-A25016-14



repaired the damage to his car. Thus, the circumstances of this case are in

line with our holding in Scofield, supra. Based upon Otero’s conduct before,

during, and after the incident, the Commonwealth adduced sufficient

evidence of “sustained recklessness by a driver in the face of an obvious risk

of harm to his victims.”   Kling, 731 A.2d at 149; Burton, 2 A.3d at 602.

Accordingly, the Commonwealth sustained its burden of proof of Otero’s

mens rea of recklessness to affirm his conviction for aggravated assault.

Trinidad, 90 A.3d 721, 728; Riggs, 63 A.3d at 784-85.

      Second, Otero argues that there is insufficient evidence to support his

conviction for leaving the scene of an accident because “one has to know

there is an accident before they can leave the scene.” Otero’s Brief at 53.

This contention lacks arguable merit.

      Contrary to his assertion, Otero was not convicted of leaving the scene

of an accident, 75 Pa.C.S.A. § 3742 (“The driver of any vehicle involved in

an accident resulting in injury or death of any person shall immediately stop

the vehicle at the scene of the accident . . . .”).    Otero was convicted of

accidents involving death or personal injury while not properly licensed, 75

Pa.C.S.A. § 3742.1(a) (“A person whose operating privilege was disqualified,

canceled, recalled, revoked or suspended and not restored or who does not

hold a valid driver’s license . . . commits an offense under this section if the

person was the driver of any vehicle and caused an accident resulting in

injury or death of any person.”).




                                     - 16 -
J-A25016-14



       It is well-settled that “the mens rea for a violation of 75 Pa.C.S.A.

§ 3742.1 is criminal negligence.” Commonwealth v. Hurst, 889 A.2d 624,

630 (Pa. Super. 2005). Our legislature has defined criminal negligence as

follows:

       A person acts negligently with respect to a material element of
       an offense when he should be aware of 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
       that the actor’s failure to perceive it, considering the nature and
       intent of his conduct and the circumstances known to him,
       involves a gross deviation from the standard of care that a
       reasonable person would observe in the actor’s situation.

18 Pa.C.S.A. § 302(b)(4).        Thus, the Commonwealth was only required to

show that Otero acted with criminal negligence, not that he “[knew] there

[was] an accident,” as he contends. Compare Otero’s Brief at 53, with 75

Pa.C.S.A. § 3742.1(a); 18 Pa.C.S.A. § 302(b)(4).

       As   previously    discussed,   the   Commonwealth        adduced     sufficient

evidence of Otero’s recklessness, which would also suffice to support a

finding of criminal negligence.         “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. Grimes, 842

A.2d    432,   434   (Pa.    Super.    2004)      (citation   omitted);     see   also

Commonwealth v. Heck, 535 A.2d 575, 580 (Pa. 1987) (concluding that

appellee’s conviction requiring finding of criminal negligence “may be

sustained only if the Commonwealth’s evidence established that he acted

recklessly, or criminally negligently”).

                                       - 17 -
J-A25016-14



      Moreover, the Commonwealth adduced circumstantial evidence in the

form of the repairs to Otero’s car to show that he knew he had been in an

accident.   N.T. Preliminary Hearing, 8/15/2005, at 21-22; N.T. Motions,

4/13/2007, at 42, 59. Critically, Otero himself testified that he was driving

on the night of the incident and admitted that he “felt like they threw a rock

at me,” N.T. Trial, 1/22/2013, at 27, and, as the court noted, gave at least

four versions of what he thought he had hit. N.T. Sentencing, 3/28/2013, at

34-35. Thus, Otero cannot reasonably claim that he did not know he had

been in an accident, and the Commonwealth adduced sufficient evidence to

support this conviction.   75 Pa.C.S.A. § 3742.1(a); Trinidad, 90 A.3d at

728. Otero’s second issue does not merit relief.

      Third, Otero contends that the verdicts were against the weight of the

evidence. Otero’s Brief at 56-57. We disagree.

      Our standard of review is well-settled:

      The finder of fact is the exclusive judge of the weight of the
      evidence as the fact finder is free to believe all, part, or none of
      the evidence presented and determines the credibility of the
      witnesses.

      As an appellate court, we cannot substitute our judgment for
      that of the finder of fact. Therefore, we will reverse a [trial
      court’s] verdict and grant a new trial only where the verdict is so
      contrary to the evidence as to shock one’s sense of justice. A
      verdict is said to be contrary to the evidence such that it shocks
      one’s sense of justice when “the figure of Justice totters on her
      pedestal,” or when “the jury’s verdict, at the time of its
      rendition, causes the trial judge to lose his breath, temporarily,
      and causes him to almost fall from the bench, then it is truly
      shocking to the judicial conscience.”



                                     - 18 -
J-A25016-14


      Furthermore, where the trial court has ruled on the weight claim
      below, an appellate court’s role is not to consider the underlying
      question of whether the verdict is against the weight of the
      evidence. Rather, appellate review is limited to whether the trial
      court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super. 2007)

(citations omitted).

      Here, Otero incorporates by reference the arguments he set forth

above under his challenge to the sufficiency of the evidence and contends

that “[t]hese convictions should shock the conscience.” Otero’s Brief at 55-

56.   In addressing this issue, the trial court provided the following

reasoning:

      [Otero] argues that this was nothing more than an unfortunate
      accident that did not rise to the level of criminal negligence.
      This court wholeheartedly disagrees with that assertion and
      believes that [Otero] could easily have been guilty of vehicular
      homicide . . . . Ms. Foley would have been killed by [Otero’s]
      reckless actions had her cousin, a registered nurse, not been on
      the scene to administer life[-]saving medical aid. [Otero] claims
      he did not run a red light and that he made a left hand turn onto
      Frankford Ave. However, several witnesses claimed he ran a red
      light and some estimated his speed at sixty miles per hour.
      While he may not have been going that fast, he was going fast
      enough to launch Ms. Foley twenty feet in the air. Witnesses
      also claimed that Ms. Foley was struck approximately three car
      lengths from the intersection. There is no way that [Otero]
      could have made a turn onto Frankford Ave[.] and been going
      fast enough to launch Ms. Foley that far in just three car lengths.
      He had to have been going straight on Frankford Ave[.] and run
      a red light.

      [Otero] also seeks to blame the victim for contributing to her
      injuries through intoxication. However, Ms. Foley’s admitted
      intoxication is of absolutely no moment here. All witnesses
      agreed that she had crossed into the bicycle lane before being
      struck and that the vehicle side swiped several parked cars. This


                                    - 19 -
J-A25016-14


      means that [Otero] had to cross over a solid white line while
      driving. His recklessness caused his vehicle to leave the lane of
      travel before striking Ms. Foley. Her intoxication is completely
      irrelevant since she was in the bicycle lane (where cars are not
      allowed to travel) when she was struck. It is no different than if
      she had been intoxicated and walking down the sidewalk when
      struck. Ms. Foley’s intoxication has no bearing on the situation
      and her severe injuries were solely the result of [Otero’s] gross
      recklessness.

      There is absolutely nothing in evidence that would call this
      court’s findings of fact into question. [Otero] acted recklessly
      and this court’s finding of guilt should not be disturbed.

T.C.O. at 6-7.

      As previously stated, we will not disturb the trial court’s determination

of the credibility of the witnesses, and likewise, its finding that Otero’s

version of events was incredible.     See Trinidad, 90 A.3d at 728.        We

therefore cannot conclude that the trial court’s reasoning represents an

abuse of discretion. Cruz, 919 A.2d at 281-82. Accordingly, Otero’s third

issue merits no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2014




                                    - 20 -
