J-S60011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JULIO CESAR MARTINEZ-OCASIO

                            Appellant               No. 61 MDA 2014


           Appeal from the Judgment of Sentence October 21, 2013
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0002495-2012


BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                             FILED APRIL 21, 2015

       Julio Cesar Martinez-Ocasio appeals from the judgment of sentence

imposed on October 21, 2013, in the Court of Common Pleas of York County.

Martinez-Ocasio was tried by a jury and convicted on charges of aggravated

assault by vehicle and recklessly endangering another person (REAP).1

Martinez-Ocasio received a sentence of nine to 23 months’ incarceration

followed by 24 months of probation.2 In this timely appeal, Martinez-Ocasio

____________________________________________


1
  75 Pa.C.S. § 3732.1 and 18 Pa.C.S. § 2705, respectively. Additionally, the
trial court found Martinez-Ocasio guilty of the summary traffic offenses of
reckless driving, careless driving, and failure to drive at a safe speed. 75
Pa.C.S. §§ 3736, 3714, and 3361, respectively. He was charged with, but
acquitted of, illegal racing. 75 Pa.C.S. § 3367.
2
  There were two trials. The first, held in January 2013, resulted in
Martinez-Ocasio’s conviction on the above stated charges. However, the
jury could not reach a verdict on the additional charge of aggravated
(Footnote Continued Next Page)
J-S60011-14




claims his convictions of aggravated assault by vehicle and REAP were

against both the weight and sufficiency of the evidence.       After a thorough

review of the submissions by the parties, relevant law, and the certified

record, we affirm.

      With one clarification, we adopt the factual and procedural history as

recited by the trial court in its Pa.R.A.P. 1925(a) opinion:

      On August 10, 2011 at approximately 6:30 p.m., Dana Briggs
      (the “Victim”) suffered serious bodily injury as a result of an
      automobile collision occurring along Route 30 in East York,
      Pennsylvania. The Victim was traveling eastbound in Route 30
      en route to her residence when a BMW collided with a Mercedes
      in the westbound lane, thereby causing the Mercedes to cross
      the center median and strike the Victim’s Chevrolet. [Martinez-
      Ocasio] was the operator of said BMW.            The Victim lost
      consciousness as a result of the collision, and she remained in a
      coma for approximately one month thereafter. The Victim spent
      the following two months in a hospital and rehabilitation facility,
      and symptoms of her injuries persisted through the date of trial.

      The speed limit governing the stretch of roadway in question is
      forty (40) miles per hour. The evidence presented at trial shows
      a number of speed limit and other warning signs were
      prominently posted and would have been visible to [Martinez-
      Ocasio] as he traveled westbound on Route 30. The evidence
                       _______________________
(Footnote Continued)

assault. 18 Pa.C.S. § 2702. He was retried in September 2013, and was
acquitted of aggravated assault. For reasons that are unclear from the
official record, the prior charges of which he was convicted, were again
submitted to the jury, which acquitted him on aggravated assault by vehicle
but convicted him of reckless endangerment. Counsel for Martinez-Ocasio
clarifies in the appellate brief that, “This appeal addresses only the first trial
and the verdict thereof.” Appellant’s Brief at 12, n. 2.




                                            -2-
J-S60011-14




       also indicates the collision occurred on a roadway that is highly
       congested most evenings. More specifically, the collision ensued
       as [Martinez-Ocasio’s] vehicle approached the congested
       intersection of Route 30 and North Hills Road, adjacent to North
       Hills Elementary School and various retail stores.

       At trial, Timothy K[ie]hl testified he witnessed the collision while
       traveling westbound on Route 30. Mr. K[ie]hl observed the BMW
       pass him in a “flash”, traveling at a speed he estimated to be
       one hundred (100) miles per hour. Similarly, Constance Arnold,
       another eyewitness to the collision, testified that she heard “a
       loud sound, like a whiz, fly by” her just prior to the collision.
       The expert reconstructionist who testified at trial was unable to
       form any conclusions with regard to the speed at which
       [Martinez-Ocasio’s] vehicle was traveling.

       Mr. K[ie]hl’s opinion was that the drivers of the BMW and
       Mercedes were racing each other. Anthony Miller, the driver of
       the Mercedes, admitted to police that it probably appeared as
       though the cars were racing. A written statement signed by
       [Martinez-Ocasio] describes the Mercedes as “the car that was
       racing previously against me.” The testimony clearly indicates
       the vehicles weaved in and out of traffic just prior to impact.
       Kathy Ermolovich provided eyewitness testimony that the impact
       was a result of [Martinez-Ocasio’s] attempt to “wedge’” his BMW
       between two vehicles traveling in close proximity to one another
       in the left lane. [Martinez-Ocasio’s] vehicle collided with the
       Mercedes as a result, and the Mercedes then crossed the median
       and struck the Victim’s vehicle. An on-scene inspection of the
       vehicles failed to uncover any obvious mechanical defects in any
       of the vehicles other than those caused by the collision itself.

Trial Court Opinion, 4/30/2014, at 2-3 (record citations omitted). 3
____________________________________________


3
  In his brief, Martinez-Ocasio correctly notes Ermolovich actually testified it
was the convertible, that is, Miller’s Mercedes Benz, which tried to wedge
itself between two other vehicles. See Martinez-Ocasio’s Brief at 10. This
testimony will be discussed when we address the weight of the evidence
claim.




                                           -3-
J-S60011-14




        In consideration of the above, Martinez-Ocasio argues his conviction of

aggravated assault by vehicle is against the weight4 and sufficiency of the

evidence.     Our standard of review for such claims is well-settled and oft-

repeated.

        In reviewing the sufficiency of the evidence, we must determine
        “whether the evidence introduced at trial and all reasonable
        inferences derived from that evidence, viewed in the light most
        favorable to the Commonwealth as verdict winner, was sufficient
        to establish beyond a reasonable doubt all of the elements of
        first-degree murder.” Evidentiary sufficiency is a question of law,
        and thus, our standard of review is de novo and our scope of
        review is plenary.

Commonwealth v. Burno, 94 A.3d 956, 969 (Pa. 2014) (citation omitted).

        The weight given to trial evidence is a choice for the factfinder. If
        the factfinder returns a guilty verdict, and if a criminal defendant
        then files a motion for a new trial on the basis that the verdict
        was against the weight of the evidence, a trial court is not to
        grant relief unless the verdict is so contrary to the evidence as to
        shock one’s sense of justice.

        When a trial court denies a weight-of-the-evidence motion, and
        when an appellant then appeals that ruling to this Court, our
        review is limited. It is important to understand we do not reach
        the underlying question of whether the verdict was, in fact,
        against the weight of the evidence. We do not decide how we
        would have ruled on the motion and then simply replace our own
        judgment for that of the trial court. Instead, this Court
        determines whether the trial court abused its discretion in
        reaching whatever decision it made on the motion, whether or
        not that decision is the one we might have made in the first
        instance.

____________________________________________


4
    This claim was preserved by post-sentence motion.



                                           -4-
J-S60011-14




       Moreover, when evaluating a trial court’s ruling, we keep in mind
       that an abuse of discretion is not merely an error in judgment.
       Rather, it involves bias, partiality, prejudice, ill-will, manifest
       unreasonableness or a misapplication of the law. By contrast, a
       proper exercise of discretion conforms to the law and is based on
       the facts of record.

Commonwealth v. Ferguson, 107 A.3d 206, 212-13 (Pa. Super. 2015)

(citations omitted).

       Also regarding the weight of the evidence, “the finder of fact may

believe all, some or none of a witness’s testimony.”       Commonwealth v.

Sloan, 67 A.3d 808, 814 (Pa. Super. 2013) (citation omitted). Finally, “[i]t

is the responsibility of the factfinder to reconcile conflicts in the evidence.”

Commonwealth v. Fant, 398 A.2d 704, 708 (Pa. Super. 1979) (citation

omitted).

       The statutory requirements to be convicted of aggravated assault by

vehicle are found at 75 Pa.C.S. §3732.1.

       (a) Offense.--Any 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. §3732.1(a).5

____________________________________________


5
  For purposes of Section 3732.1, a person acts recklessly if he, engages in
conduct that violates a law or ordinance governing the operation of motor
(Footnote Continued Next Page)


                                           -5-
J-S60011-14




      The statutory requirements for REAP are:

      A person commits a misdemeanor of the second degree if he
      recklessly engages in conduct which places or may place another
      person in danger of death or serious bodily injury.

18 Pa.C.S. § 2705.

      For purposes of REAP, a person acts recklessly when he or she acts in

“conscious disregard of a known risk of death or great bodily injury to

another person.”        See Commonwealth v. Klein, 795 A.2d 424, 427-28

(Pa. Super. 2002)(citation omitted).

      Finally, “[a]s with other elements of crime, the trier of fact may infer

criminal intent, knowledge and recklessness from circumstantial evidence.”

Commonwealth v. Moore, 395 A.2d 1328, 1332 (Pa. Super. 1978).



                       _______________________
(Footnote Continued)

vehicles and consciously disregards a substantial and unjustifiable risk that
the driving conduct will cause death, the nature and degree of the risk being
such that it is grossly unreasonable for him to disregard it. See Pa.SSJI
(Crim) 17.3732.1(3).

Similarly, a person acts in a grossly negligent manner if he or she is driving
in violation of applicable traffic laws and should be aware of a substantial
and unjustifiable risk that the driving conduct will cause death, the nature
and degree of the risk being that it is grossly unreasonable for him or her to
fail to recognize the risk. See Pa.SSJI (Crim) 17.3732.1(4). Jurors are
further instructed to consider all relevant facts and circumstances, including
the nature and intent of the driving conduct and the circumstance known to
the driver. Id.




                                            -6-
J-S60011-14




      The parties stipulated that the victim suffered serious bodily injury as

a result of the accident. Accordingly, the question at issue was whether

Martinez-Ocasio engaged in reckless or grossly negligent conduct which

caused the victim’s injuries.     Specifically, Martinez-Ocasio argues the

Commonwealth failed to prove causation, in that the other driver (Anthony

D. Miller) was the sole cause of the accident. We disagree.

      The central failure of Martinez-Ocasio’s argument is that it relies upon

an interpretation of the evidence that is most favorable to him, not to the

Commonwealth, as verdict winner.      Viewed through the proper standard,

there is sufficient evidence to support the verdict on both aggravated assault

by vehicle and REAP.

      We note,

      [c]riminal responsibility is properly assessed against one whose
      conduct was a direct and substantial factor in producing the
      death even though other factors combined with that conduct to
      achieve the result.

      Thus, “[a] defendant cannot escape the natural consequences of
      his act merely because of foreseeable complications.” So long as
      the defendant's conduct started the chain of causation which led
      to the victim's death, criminal responsibility for the crime of
      homicide may properly be found.

Commonwealth v. Shoup, 620 A.2d 15, 18-19 (Pa. Super. 1993) (citations

omitted).

      The evidence presented at trial demonstrated that Miller and Martinez-

Ocasio were engaged in racing-type behavior, on a heavily traveled road, at

                                    -7-
J-S60011-14




approximately 6:30 p.m. This conduct took place in a 40 M.P.H. speed limit

zone that was well posted, with additional signs warning drivers of traffic

congestion. All relevant witnesses testified how both cars sped past them.

One witness, Timothy Kiehl, testified he was driving in the left hand lane

when Martinez-Ocasio’s BMW sped past him on the right, travelling at

approximately 100 miles per hour. The Mercedes Benz sped by next, and

passed the BMW.     It appeared to Kiehl that the two cars were racing.

Although at trial he could not remember seeing the BMW and Mercedes Benz

colliding, he concluded they did based upon the scrape marks he saw on the

BMW immediately after the accident. N.T. Trial, 1/7-10/2013, at 109-113.

Photographic evidence, Commonwealth Exhibit 53, shows scrape marks on

the rear driver’s side wheel well and quarter panel of Martinez-Ocasio’s

BMW, just as Kiehl described.     Another witness, Constance Arnold, was

alerted to the sound of the cars as they sped past. Sergeant Brian Wilbur of

the Springettsbury Township Police Department testified that Martinez-

Ocasio described Miller’s Mercedes Benz as “the car that was previously

racing against me.” See N.T. Trial, 1/7-10/2013, at 174. The handwritten

note and diagram provided to Sergeant Wilbur by Martinez-Ocasio stated he

slowed to 40+ miles per hour, the posted speed limit, and attempted to




                                   -8-
J-S60011-14




change lanes to avoid hitting the car in front of him. See Commonwealth

Exhibit 776 (emphasis added). Further, the note and diagram both indicate

that as a result of the attempted lane change, the Mercedes Benz and

Martinez-Ocasio’s BMW collided, after which the Mercedes Benz crossed the

median and struck the victim’s car. Id. Miller told the police at the scene,

and testified at trial, that he lost control of his car after Martinez-Ocasio tried

to change lanes in front of him, and in doing so, struck the front of his car.

N.T. Trial, 1/7-10/2013, at 181, 369. Finally, the expert report authored by

Corporal Gary W. Mainzer, Pennsylvania State Police, indicated that the

Mercedes Benz was travelling between 57 and 73 miles per hour when Miller

lost control of it.7 N.T. Trial, 1/7-10/2013, at 297, Commonwealth Exhibit

73.

       Our review of the certified record confirms the presentation of

evidence demonstrating Martinez-Ocasio drove in a reckless manner, which

____________________________________________


6
  The exhibit numbers on the evidence provided in the certified record
correspond to the second trial. The statement and diagram were marked as
Commonwealth Exhibit 18 at the first trial. See N.T. Trial, 1/7-10/2013, at
182-83. We refer to the exhibit numbers as marked in the certified record.
7
  Although Corporal Miller had no physical evidence by which to estimate
Martinez-Ocasio’s speed, the jury would have been entitled to infer that he
was travelling at a similar speed, based upon the other eyewitness
testimony presented at trial as well as Martinez-Ocasio’s statement given to
Sergeant Wilbur.




                                           -9-
J-S60011-14




forced him to change lanes to avoid hitting the car in front of him, which

caused him to clip Miller’s Mercedes Benz, sending it into oncoming traffic.

There was clearly sufficient evidence to support a determination of

causation. Martinez-Ocasio is not entitled to relief on this claim.

      Martinez-Ocasio’s final claim is that the guilty verdicts were against

the weight of the evidence. As noted previously, our task is to determine

whether the trial court abused its discretion in denying Martinez-Ocasio’s

post-trial motion, not to reweigh the evidence ourselves. Ferguson, supra.

Our review of the certified record requires us to find no abuse of discretion in

this regard.

      The evidence, as recounted above, provides ample support for the

verdict, and accordingly, we find no fault with the trial court’s conclusion the

verdict does not shock one’s sense of justice.      We noted previously that

Kathy Ermolovich testified, “It almost seemed like it [the black convertible]

wedged itself in between the car that was in front and behind it.” N.T. Trial,

1/7-10/2013, at 128. See Footnote 3, supra. However, the fact-finder is

responsible for reconciling any conflict in testimony. All the other evidence

produced at trial indicates it was Martinez-Ocasio’s BMW that was changing

lanes. The photographs of the BMW demonstrate scrapes along the driver’s

side rear quarter–panel.    This evidence permitted the jury to reasonably

infer it was the BMW that was attempting to change from the middle lane to

the left most lane when it struck the front of Miller’s Mercedes Benz.

                                     - 10 -
J-S60011-14




Further, as already noted, Martinez-Ocasio confirmed both in his statement

to the police after the accident and in his hand drawn diagram of the

accident it was he who was changing lanes.

      The jurors were free to believe all, some or none of the evidence

presented.   Here, in light of the evidence presented, the verdict does not

shock one’s sense of justice. Accordingly, the denial of the post-trial motion

regarding weight of the evidence must be affirmed.     Because all elements of

both REAP and aggravated assault by vehicle were proven beyond a

reasonable doubt and the verdict was not against the weight of the

evidence, Martinez-Ocasio is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2015




                                     - 11 -
