J-S60040-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   Appellee              :
                                         :
                     v.                  :
                                         :
JEREMY IRIS-WILLIAMS,                    :
                                         :
                   Appellant             :     No. 2658 EDA 2015

             Appeal from the Judgment of Sentence August 14, 2015
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-SA-0001182-2015

BEFORE:       SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED OCTOBER 21, 2016

     Jeremy Iris-Williams (Appellant) appeals from the judgment of

sentence imposed following his conviction for reckless driving. Upon review,

we affirm.

     Appellant was cited for the aforementioned offense on January 20,

2015, after Police Officer John Kelly observed Appellant speeding and

changing multiple lanes without signaling on Interstate 95 in Philadelphia.

After Appellant was found guilty in the traffic division of the Philadelphia

municipal court, he filed a notice of appeal to the trial court. On May 20,

2015, both parties appeared before the trial court. Although counsel for the

Commonwealth believed she was appearing for a status conference and the

trial court had the date “listed as a status date,” counsel for Appellant

believed that they were present for trial.    N.T., 5/20/2015, at 4-5.    In



*Retired Senior Judge assigned to the Superior Court.
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support of his position, counsel for Appellant pointed to the hearing notice

on the lower portion of the notice of appeal, which provided as follows:

       A status or settlement conference is scheduled as provided
      below.

       A de novo trial is scheduled as provided below.        Law
      enforcement officer to be subpoenaed. Continuances subject to
      Rule 106.

      5-20-15, at 9 AM[] in Courtroom D, 800 Spring Garden St.,
      Philadelphia, PA 19123.

Notice of Appeal from Summary Conviction — Traffic and Hearing Notice,

4/13/2015. The word “Trial” was also handwritten on the document. Id.

      Based on the above and the fact that the Commonwealth had not

subpoenaed Officer Kelly, Appellant moved for dismissal of the reckless-

driving charge.    N.T., 5/20/2015, at 4.   The Commonwealth, on the other

hand, asked for a continuance, to which Appellant objected. Id. at 5. The

trial court granted the Commonwealth’s request on the basis that the listing

was “the first listing.” Id.

      A trial was eventually held on August 14, 2015,1 prior to which

Appellant “object[ed] to the Commonwealth calling any witnesses in this

case” on the basis that Officer Kelly failed to appear at the May 20, 2015

proceeding.       N.T., 8/14/2015, at 4-5.      Following an off-the-record

discussion, the trial court stated that the “motion to dismiss is denied,”



1
  The judge presiding at the May 20, 2015 proceeding was not the same
judge who presided at the August 14, 2015 trial.

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explaining that “[t]he first listing, in most cases, is a status listing,” that the

court had “a right to have a status listing under [the] rules,”2 and that the

listing “was actually a status listing.”3 Id. at 5-6.

      Following arraignment, Appellant objected to Officer Kelly’s being

called as a witness to no avail.     Officer Kelly then provided the following

testimony, as summarized by the trial court:

             [Officer Kelly] testified that he was traveling northbound
      on Interstate 95 in a police vehicle on January 20, 2015 at
      approximately 6:58 a.m. near the Girard Avenue exit. The
      police vehicle had no overhead lights, but had police decals on
      its side. He noted that Interstate 95 is a multi-lane highway
      with a speed limit of 55 m.p.h., except for a portion in a
      construction area where the speed limit was 45 m.p.h. [Officer
      Kelly] explained that there was heavy traffic and vehicles
      traveling in all lanes. There were, however, gaps in between the
      vehicles.

            It was near the Girard Avenue exit that [Officer Kelly]
      observed [a] gray Lexus pass him on the right at an extremely
      high rate of speed.     [Officer Kelly] then saw the Lexus
      approaching other vehicles from the rear before changing
      multiple lanes in one motion without signaling. At times, the
      Lexus moved from the extreme right lane to the extreme left
      lane without signaling.


2
  See Pa.R.Crim.P. 1037(A) (“When a defendant appeals after the entry of a
guilty plea or a conviction in any Traffic Division summary proceeding, upon
the filing of the transcript and other papers by the Traffic Division, the Court
of Common Pleas may schedule a status or settlement conference prior to
the de novo summary trial.”).
3
  In its opinion issued pursuant to Pa.R.A.P. 1925(a), the trial court further
explained that, although this procedure has since been modified, “all cases
at the time of this case’s first listing were scheduled for a status conference
to see if the Commonwealth was going to make an offer that would be
accepted by a defendant and result in a guilty plea.” Trial Court Opinion,
10/21/2015, at 4 & n.2.

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           After [Officer Kelly] got behind the Lexus, he engaged his
     tracker in pace mode. When he believed that the situation had
     become too dangerous, [Officer Kelly] clicked his tracker out and
     saw that the speed was 90.8 mph. [Officer Kelly] pulled the
     Lexus over near the Betsy Ross Bridge exit. [Appellant] was the
     operator of the Lexus.

Trial Court Opinion, 10/21/2015, at 2-3 (citations omitted). Based on the

foregoing, Appellant was convicted of reckless driving and sentenced to pay

mandatory costs and fines. This appeal followed.

     On appeal, Appellant presents the         following questions for our

consideration:

     1. Whether the trial court erred in denying Appellant’s motion to
        dismiss the charge for the affiant’s failure to appear at the
        first listing or in failing to preclude the police officer from
        testifying at the second listing since the Commonwealth’s
        failure to subpoena the officer was not a valid basis upon
        which a continuance may be granted.

     2. Whether the second trial court erred in denying [Appellant’s]
        demurrer and in adjudicating [Appellant] guilty where the
        Commonwealth failed to establish the elements of reckless
        driving under the totality of the circumstances.

     3. Whether the second trial court erred in denying [Appellant’s]
        demurrer and in adjudicating [Appellant] guilty where the
        police officer testified that the charge of reckless driving was
        predicated upon [Appellant] exceeding the speed limit by 45
        mph where the Commonwealth rested without presenting any
        evidence attesting to the calibration and accuracy of the
        speed timing device and that the device and testing station
        were approved by the Department of Transportation.

Appellant’s Brief at 4 (unnecessary capitalization and answers omitted).

     In his first issue, Appellant takes the position that the matter was

listed for trial, and not a status conference, on May 20, 2015. Appellant’s


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Brief at 8-12.   Appellant further contends that because the May 20, 2015

listing was a trial listing, the trial court erred in denying Appellant’s motion

to dismiss the reckless-driving charge or in failing to preclude Officer Kelly

from testifying at the later trial because Officer Kelly failed to appear and

testify on May 20, 2015 without good cause. Id.

      It is apparent from the record that there was confusion among the

parties and the trial court as to whether they were present for a status

conference or trial on May 20, 2015.          Assuming that the matter was

scheduled for trial and that Pa.R.Crim.P. 1037(C)4 was implicated due to

Officer Kelly’s absence, we conclude that the trial court properly continued

the matter for the reasons set forth below.

      Rule 1037(C) provides, in relevant part, as follows:

      (C) In appeals from Traffic Division summary proceedings, the
      law enforcement officer who observed the alleged offense must
      appear and testify. The failure of a law enforcement officer to
      appear and testify shall result in the dismissal of the charges
      unless:

                                  ***

         (3) the trial judge determines that good cause exists for
         the law enforcement officer’s unavailability and grants a
         continuance.



4
  Although the parties and the trial court cite to Rule 462(c), we note that
Rule 1037 “was adopted in 2009 to provide the procedures for appeals from
the Traffic Division to the Court of Common Pleas of the First Judicial
District. Except as provided in this rule, the procedures of Rules 460, 461,
and 462, governing appeals for a trial de novo in summary cases shall apply
to summary case appeals Traffic Division.” Pa.R.Crim.P. 1037 Cmt.

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Pa.R.Crim.P. 1037(c).

      With respect to the exception listed in Rule 1037(c)(3), Appellant

argues that the Commonwealth’s failure to subpoena Officer Kelly based on

its belief that the matter was scheduled for a status conference rather than

trial on May 20, 2015, does not constitute good cause to grant a

continuance.     Appellant’s Brief at 8-10.       Appellant argues that the

Commonwealth’s belief was contrary to the evidence, as the hearing notice

clearly reflects that a trial was scheduled for that date based on the

appropriate box being checked and the word “trial” being written “in plain

lettering across the face of the notice.”     Id. at 9-10.    Appellant further

argues that any notion that the wrong box on the hearing notice was

mistakenly checked is not supported by the record, and the trial court’s

reasoning as it relates to its prior practice of scheduling all first listings as

status conferences does not provide proper justification for its decision. Id.

at 10-12.

      A review of the May 20, 2015 transcript clearly reveals that the

Commonwealth was under the impression that the matter was listed for a

status conference. Indeed, it explained that it “believe[d May 20, 2015] was

a status date” and that it was not “notified that [May 20, 2015] was a trial

date so [it] did not have [Officer Kelly] subpoenaed.” Id. at 4-5. Perhaps

more importantly, the trial court observed that it also “ha[d May 20, 2015,]

listed as a status date.” Id. at 4. Moreover, it is apparent from the record


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that the listing on May 20, 2015 was the first listing, and that the trial court

had a practice of having the first listing as a status listing. Id. at 4-5; N.T.,

8/14/2015, at 5; TCO, 10/21/2015, at 4 & n.2. Thus, notwithstanding the

information contained in the hearing notice and Appellant’s belief that the

matter was listed for trial based on that notice, we discern no error in the

trial court’s determination that good cause existed for Officer Kelly’s absence

at the May 20, 2015 proceeding. Appellant is not entitled to a windfall due

to a misunderstanding among the parties and the trial court.         No relief is

due.

       In his second and third issues, Appellant claims that the trial court

erred in denying his demurrer and finding him guilty of reckless driving. We

treat Appellant’s issues as a single challenge to the sufficiency of the

evidence to support his conviction.5

       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
       not weigh the evidence or substitute our judgment for that of the
       fact-finder. Additionally, the evidence at trial need not preclude


5
  See Pa.R.Crim.P. 606(A)(1), (7) (permitting challenges to the sufficiency
of the evidence to be presented in numerous ways, including by making a
motion for judgment of acquittal at the close of the Commonwealth’s case-
in-chief and by raising the issue on appeal). Here, Appellant “demur[red]”
at the close of the Commonwealth’s case, and the demurrer was denied.
N.T., 8/14/2015, at 18-20. We note that the term “demurrer” was discarded
in 1993 in favor of the standardized term “motion for judgment of acquittal,”
but that inadvertent use of the word “demurrer” does not affect an otherwise
valid sufficiency challenge. Pa.R.Crim.P. 606 Cmt.

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      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, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(citation omitted).

      Pursuant to 75 Pa.C.S. § 3736(a), “[a]ny person who drives any

vehicle in willful or wanton disregard for the safety of persons or property is

guilty of reckless driving.” This Court has determined that

         the mens rea necessary to support the offense of reckless
         driving is a requirement that Appellant drove in such a
         manner that there existed a substantial risk that injury
         would result from his driving, i.e., 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.

                                      ***

      [R]eckless driving requires driving that not only grossly deviates
      from ordinary prudence but also creates a substantial risk that
      property damage or personal injury will follow. It is also
      necessary that the driving reflect a conscious disregard for the
      danger being created by the reckless driving.

Commonwealth v. Greenberg, 885 A.2d 1025, 1027-30 (Pa. Super. 2005)

(emphasis in original) (quoting Commonwealth v. Bullick, 830 A.2d 998,

1003 (Pa. Super 2003)).


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      Relying upon this Court’s decision in Greenberg, Appellant first

contends that although the Commonwealth could have charged him with

lesser offenses such as failing to use a turn signal and/or careless driving,

the Commonwealth failed to prove that Appellant’s conduct was “willful or

wanton.” Appellant’s Brief at 13-15. We disagree and, in so doing, find this

Court’s decision in Commonwealth v. Fieldler, 931 A.2d 745 (Pa. Super.

2007), to be instructive. Therein, Fieldler was driving a vehicle on a road in

Westmoreland County when he realized that he was going too fast to

negotiate a curve in the road, swerved to the right, skidded across the

center line, and collided with an oncoming vehicle, causing the other vehicle

to roll over several times. Id. at 746. Appellant was charged and convicted

of, inter alia, reckless driving.   Id.   On appeal, Fieldler challenged the

sufficiency of the evidence to support that conviction and, like Appellant,

relied upon Greenberg to argue that his conduct was not “willful or

wanton.” Id. at 747.

      In addressing Fieldler’s claim, this Court stated as follows.

            In Greenberg, the appellant conceded that he was driving
      approximately 20 miles over the speed limit and, therefore,
      could not properly negotiate a sharp turn in the road. In
      attempting to control his vehicle, he spun across two lanes of
      travel and collided with an oncoming car. He was cited for
      reckless driving and, following a de novo nonjury trial, he was
      convicted and fined. On appeal to this Court, we held that
      Appellant’s conduct in driving too fast for the road conditions did
      not rise to the level of recklessness, or mens rea, required by
      the reckless driving statute.



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            In discussing the reckless driving statute, we noted that
     the statute requires “something more than ordinary negligence”
     and that the presence of the separate, lesser offense of careless
     driving in the Motor Vehicle Code demonstrated that, to prove
     that a driver was reckless, it must be shown that his driving was
     “a gross departure from prudent driving standards.” We held,
     based on the facts in that case, that the appellant’s driving “did
     not meet the standard for a finding of willful and wanton
     disregard for the safety of others or property.” We reasoned
     that, although the appellant was proceeding too fast for
     conditions, because he was traveling on a four-lane highway in a
     suburban area, there was no indication that he was traveling so
     fast as to create a high probability that a motor vehicle accident
     would occur. We further opined, particularly in light of the fact
     that the kind of roadway involved frequently possesses a speed
     limit of 55 miles-per-hour, that many drivers travel at that rate
     of speed without a resulting vehicle accident. Thus, we found
     that the appellant’s speed “was not so excessive to qualify as a
     willful and wanton disregard for the safety of others,” and
     determined that, because the appellant’s speed was not so
     excessive as to itself create a high risk of an accident, there was
     insufficient evidence of a “conscious disregard for the danger
     being created”—an essential element to demonstrate willful and
     wanton conduct.

                                    ***

           [Here, t]he trial court reasoned that, in driving at a speed
     of 70 miles-per-hour, far in excess of the posted speed limit of
     45 miles-per-hour, [Fieldler] created a far greater probability
     that an accident would occur than did the appellant in
     Greenberg. We agree.

           We find, as did the trial court, that, in contrast with the
     appellant in Greenberg, [Fieldler] demonstrated willful or
     wanton disregard for the safety of persons or property in driving
     his vehicle at 70 miles-per-hour around a blind curve.

Fieldler, 931 A.2d at 748-49 (citations omitted).

     This case is more akin to Fieldler than to Greenberg.                 As

demonstrated by Officer Kelly’s testimony summarized above, Appellant


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traveled on a multi-lane highway at an extreme speed, at one point reaching

90.8 m.p.h., almost double the speed limit. N.T., 8/14/2015, at 11-12. The

portion of the highway at issue in this case was steady with traffic, as it was

“during the rush hour,” and included construction. Id. While Appellant was

driving, he “approach[ed] other vehicles from the rear at an extremely high

rate of speed” and was changing multiple lanes, sometimes crossing “from

the extreme right lane to the extreme left lane” in one movement, without

signaling. Id. Under these circumstances, Appellant’s conduct demonstrated

a willful or wanton disregard for the safety of persons or property.      See

Commonwealth v. Schmitzer, 428 A.2d 610, 613-14 (Pa. Super. 1981)

(sustaining a reckless driving conviction where the driver testified that he

was going twenty-five miles per hour in what he knew was a school zone

with a speed limit of fifteen miles per hour at a time when children were in

the area and vehicular traffic was heavy).6

      Appellant next challenges the sufficiency of the evidence to support his

conviction on the basis that the Commonwealth failed to present “any

evidence attesting to the calibration and accuracy of the speed timing device

and that the device and testing station were approved by the department of

transportation.” Appellant’s Brief at 16. Appellant’s argument is premised

on 75 Pa.C.S. § 3368(d) (relating to classification, approval and testing of


6
  Moreover, “it is no defense that there was no injury or that appellant’s
reckless driving also constituted a violation of some other section of the
Vehicle Code.” Schmitzer, 428 A.2d at 614.

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mechanical, electrical, and electronic devices), and Commonwealth v.

Kaufman, 849 A.2d 1258, 1259 (Pa. Super. 2004) (explaining that “[t]o

sustain a conviction for speeding, the Commonwealth must show beyond a

reasonable doubt that: … (2) the speed timing device used by the officer was

approved by the Department of Transportation; and (3) the device was

calibrated and tested for accuracy within the prescribed time period by a

station which has been approved by the department.”).

      Appellant essentially contends that because the charge was predicated

in part on Appellant’s having been tracked going 90.8 m.p.h., the

Commonwealth should have the burden to show that the device used by

Officer Kelly was properly approved, calibrated, and tested for accuracy and

that it did not do so herein. Appellant’s Brief at 17. However, we point out,

and Appellant concedes, that he was not charged with a speeding violation.

Moreover, Appellant cites no authority in support of his argument that we

should impose the above requirements regarding speed-timing devices in

relation to the offense of reckless driving. Thus, no relief is due.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 10/21/2016




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