J-S69005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

STEPHEN PAUL RIVEST,

                          Appellant                  No. 503 MDA 2018


      Appeal from the Judgment of Sentence Entered August 15, 2017
               In the Court of Common Pleas of Mifflin County
           Criminal Division at No(s): CP-44-CR-0000357-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:              FILED: JANUARY 28, 2019

      Appellant, Stephen Paul Rivest, appeals from the judgment of sentence

of an aggregate term of 12½-28 years’ incarceration, imposed following his

conviction for aggravated assault (AA), driving under the influence of alcohol

or controlled substance (DUI), fleeing or attempting to elude a police officer

(FAEPO), and multiple counts of recklessly endangering another person

(REAP).    Appellant challenges the grading of his DUI offense, and the

sufficiency of the evidence supporting his AA and REAP convictions.      After

careful review, we vacate Appellant’s judgment of sentence and remand for

resentencing due to the erroneous grading of his DUI offense, but we affirm

in all other respects.

      On June 7, 2016, Appellant, driving a maroon pickup truck, fled from

police officers who were trying to serve a warrant for his arrest. During the
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subsequent high-speed pursuit,       various witnesses observed Appellant

violating numerous traffic signals, speeding (at speeds approaching 100

m.p.h.), and, at times, travelling against the flow of traffic.        See N.T.,

7/11/17, at 74-90.

      Corporal   Robert   Whisler   of   the   Mifflin   County   Regional   Police

Department was monitoring the police radio for information regarding the

pursuit. He parked his marked patrol vehicle on the side of U.S. 322 outside

of the fog line and turned his emergency lights on.          Soon thereafter, he

observed Appellant’s truck, travelling on the wrong side of the highway,

headed toward his position. As it approached at high speed, Appellant’s truck

began to veer toward Corporal Whisler’s vehicle, prompting the officer to take

evasive action. The officer’s quick reaction narrowly avoided an imminent,

head-on collision. Id. at 122-30.

      Corporal Jeff Remikas of the Pennsylvania State Police (PSP) was one of

the officers who joined in the pursuit of Appellant’s vehicle.       He observed

Appellant veering into oncoming traffic on several occasions, as well as the

incident with Corporal Whisler. At one point, when Corporal Remikas tried to

pull up alongside Appellant’s truck when Appellant began to slow down on a

straightaway, Appellant steered into the corporal’s vehicle and struck it. Id.

at 221-25.




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       Trooper Ryan Speece of the PSP heard about the pursuit over the radio,

and, anticipating Appellant’s trajectory, set up Stingers 1 in Appellant’s path

near the Meadowbrook Nursing Home on U.S. 22. When Appellant’s truck

approached, Trooper Speece had to jump out of the way to avoid being hit.

Appellant was so close to hitting Trooper Speece that he severed the rope the

trooper was holding that connected to the Stingers. Id. at 239-48.

       Appellant eventually brought his vehicle to a stop on U.S. 22 near a

Dairy Queen in Mount Union, PA. Ashley Shade was approaching a red light

at that location when Appellant swerved around and then in front of her

vehicle, missing her by mere inches. Ms. Shade had to veer into a bank to

avoid being hit.      Appellant then abruptly stopped his truck, got out, and

approached Ms. Shade’s vehicle. He pulled on her door handles in an attempt

to get in, but he was unsuccessful, as the doors remained locked. The police

arrived on the scene a few seconds later and took Appellant into custody. Id.

at 45-52.

       Once Appellant was apprehended, multiple officers observed that he

emitted a strong odor of alcohol, had bloodshot eyes, and slurred speech.

They also described him as alternating between a manic and calm state.

Appellant    admitted      to   consuming      multiple   alcoholic   beverages   and

prescription pills before these events.          When he calmed down, Appellant

apologized profusely for endangering others during the chase. Appellant was
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1 Trooper Speece described the “Stingers” as “accordion-style device[s] that
allow [police] to deflate [a vehicle’s ]tires….” Id. at 242.

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then taken to the hospital to test his blood for alcohol and/or other substances,

but he refused. Id. at 90-97; 263-65; 181-83.

        Although the Commonwealth initially charged Appellant with thirty-two

offenses, several were withdrawn prior to trial. Appellant faced ten charges

at his jury trial, held on July 11, 2017, including: three counts of AA, 18

Pa.C.S. § 2702(a)(2); one count of FAEPO, 75 Pa.C.S. § 3733; DUI (general

impairment), 75 Pa.C.S. § 3802(a)(1); and five counts of REAP, 18 Pa.C.S. §

2705. The jury found Appellant not guilty of two counts of AA, but guilty of

all the remaining offenses. At the concurrent bench trial for the remaining 17

summary offenses, the trial court found Appellant guilty on all counts.2 On

August 21, 2017, the trial court sentenced Appellant to consecutive terms of

6-12 years’ incarceration for AA, 1-5 years’ incarceration for DUI, 1-2 years’

incarceration for REAP, 1-2 years’ incarceration for REAP, 1-2 years’

incarceration for REAP, 1-2 years’ incarceration for REAP, and 1½-3 years’

incarceration for FAEPO.

        Appellant filed a timely post-sentence motion on August 25, 2017. The

trial court denied that motion by order dated February 21, 2018, and Appellant

filed his notice of appeal on March 22, 2018.3 Appellant then filed a timely,
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2   The summary offenses are not at issue in this appeal.

3 A trial court has 120 days to decide a post-sentence motion; if it fails to
decide it in that period, the motion is deemed denied by operation of law. See
Pa.R.Crim.P. 720(B)(3)(a). At that time, “the clerk of courts shall forthwith
enter an order on behalf of the court [denying the post-sentence motion by



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court-ordered Pa.R.A.P. 1925(b) statement on April 9, 2018, and the trial

court issued its Rule 1925(a) opinion on May 14, 2018.

       Appellant now presents the following questions for our review:

       Question 1: Was the [DUI] offense incorrectly graded at the time
       of sentencing?

       Question 2: Was the evidence insufficient to sustain the guilty
       verdict for [AA]?

       Question 3: Was the evidence insufficient to sustain the guilty
       verdicts on the two counts of [REAP] which did not specifically
       identify the police officers and motorists and their locations in
       relationship to [Appellant]’s vehicle?

Appellant’s Brief at 7.

       First, Appellant argues that the trial court improperly graded his DUI

conviction as a first-degree misdemeanor,4 instead of a second-degree
____________________________________________


operation of law], and, … forthwith shall serve a copy of the order on the
attorney for the Commonwealth, the defendant’s attorney, or the defendant if
unrepresented, that the post-sentence motion is deemed denied.”
Pa.R.Crim.P. 720(B)(3)(c). Here, the 120-day period to decide Appellant’s
post-sentence motion expired on December 26, 2017, but the clerk of courts
failed to enter an order to that effect. Thus, technically, Appellant’s notice of
appeal, filed on March 22, 2018, is untimely. However, “[t]his Court has
previously held that, where the clerk of courts does not enter an order
indicating that the post-sentence motion is denied by operation of law and
notify the defendant of same, a breakdown in the court system has occurred
and we will not find an appeal untimely under these circumstances.”
Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003). As
Appellant filed his notice of appeal within 30 days of the trial court’s order
dated February 21, 2018—effectively the date when he was notified of the
denial of his post-sentence motion—we decline to quash Appellant’s appeal as
untimely.

4  Appellant mistakenly confuses ‘first-degree’ and ‘third-degree’
misdemeanors in his brief. However, it is clear from the context of the record



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misdemeanor. The trial court concurs, Trial Court Opinion (TCO), 5/14/18, at

1-2, and the Commonwealth “agrees with the position of [Appellant],”

Commonwealth’s Brief at 2. Accordingly, we agree, and we will not discuss

the merits of this claim further.

       However, the trial court indicates that it corrected Appellant’s sentence

in response to his Rule 1925(b) statement. A trial court, in general, lacks

jurisdiction to modify an order more than thirty days after it has been entered,

or if an appeal has been filed. See 42 Pa.C.S. § 5505 (“Except as otherwise

provided or prescribed by law, a court upon notice to the parties may modify

or rescind any order within 30 days after its entry, notwithstanding the prior

termination of any term of court, if no appeal from such order has been taken

or allowed.”). Here, any order correcting Appellant’s judgment of sentence to

reflect the proper grading of his DUI offense occurred more than 30 days after

his judgment of sentence was imposed, and after Appellant filed his appeal

and, as such, constitutes a legal nullity.       Thus, we remand this matter for

resentencing, but solely for the purpose of correcting Appellant’s illegal

sentence for DUI.5


____________________________________________


that he intended to argue that his DUI offense should have been graded lower
than what the trial court initially imposed. Clearly, Appellant is not arguing
that he should receive a harsher penalty than initially imposed.

5Given the trial court’s actions, albeit premature, we do not believe that the
correction of Appellant’s illegal sentence for DUI affects the court’s overall
sentencing scheme in this case. Thus, we will vacate Appellant’s judgment of
sentence only with respect to that offense.

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      Next, Appellant argues that the evidence was insufficient to convict him

of AA against Corporal Whisler. Specifically, Appellant argues that because

the jury was not instructed “on how malice must be found for an [AA]

conviction even if a specific intent to cause serious bodily injury to the victim

exists, there could not have been a clear finding by the jury that there was

proof beyond a reasonable doubt of each element of the [AA] charge.”

Appellant’s Brief at 15.

      Our standard of review of sufficiency claims is well-settled:

             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).

      Here, Appellant was charged under the following provision of the AA

statute:

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

                                         …

           (2) attempts to cause or intentionally, knowingly or
           recklessly causes serious bodily injury to any of the officers,
           agents, employees or other persons enumerated in
           subsection (c) or to an employee of an agency, company or

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          other entity engaged in public transportation, while in the
          performance of duty;

18 Pa.C.S. § 2702(a)(2).

       Appellant’s argument is directed at a perceived deficiency in the jury

instructions, not the sufficiency of the evidence.           Thus, this aspect of

Appellant’s sufficiency claim is waived.         Appellant did not raise any jury-

instruction claim in his Rule 1925(b) statement, and any “issues not raised in

a 1925(b) statement will be deemed waived.” Commonwealth v. Lord, 719

A.2d 306, 309 (Pa. 1998).6

       To the extent Appellant is claiming that the evidence was not sufficient

to demonstrate malice, we disagree. As the trial court stated,

       the evidence[,] viewed in the light most favorable to the
       Commonwealth[,] establishes that there was sufficient evidence
       produced to sustain the verdict of [a]ggravated [a]ssault.
       Corporal Whisler testified that on the night in question, he had
       parked his police vehicle entirely outside of the travel portion of
       U.S. Route 322 East, beyond the white fog line, with his overhead
       lights activated. Given the late hour, and the strength of the
       police vehicle’s emergency lights, Corporal Whisler indicated that
       his vehicle should have been observable from a great distance
       away.

             Appellant, initially travelling on U.S. Route 322 East,
       eventually reversed course and began travelling West on U.S.
       Route 322 East, against opposing traffic. Corporal Whisler’s
       testimony indicated that Appellant’s vehicle eventually came into
       view and that he was observable from some distance away given
       the long, straight stretch of highway. Corporal Whisler observed
       that the Appellant’s vehicle had initially been straddling the center
       line between the right and left lanes. However, as Appellant

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6 Moreover, Appellant has not directed this Court’s attention to where in the
record he objected to the jury instructions given by the trial court, nor has he
set forth a separate jury-instruction claim in his brief.

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      approached Corporal Whisler’s position he altered his course and
      began to drive straight at Corporal Whisler’s vehicle, outside of
      the lanes of travel. As a result, Corporal Whisler was forced to
      accelerate rapidly in order to avoid a head-on collision.

TCO at 3.

      “[F]or the purpose of third-degree murder or aggravated assault, our

courts have consistently held that malice is present under circumstances

where a defendant did not have an intent to kill, but nevertheless displayed a

conscious disregard for an unjustified and extremely high risk that his actions

might cause death or serious bodily harm.” Commonwealth v. Packer, 168

A.3d 161, 168 (Pa. 2017) (quotations marks and citations omitted). Instantly,

the jury could have reasonably concluded that Appellant demonstrated a

conscious disregard for the life of Corporal Whisler, who easily could have

been killed or seriously injured had he not taken evasive action.

      Appellant also asserts that his conviction for AA is inconsistent with the

not-guilty verdicts on the other aggravated assault charges.         Generally,

inconsistent verdicts do not present a challenge to the sufficiency of the

evidence. As our Supreme Court has said:

      Federal and Pennsylvania courts alike have long recognized that
      jury acquittals may not be interpreted as specific factual findings
      with regard to the evidence, as an acquittal does not definitively
      establish that the jury was not convinced of a defendant’s guilt.
      Rather, it has been the understanding of federal courts as well as
      the courts of this Commonwealth that an acquittal may merely
      show lenity on the jury’s behalf, or that “the verdict may have
      been the result of compromise, or of a mistake on the part of the
      jury.” United States v. Dunn, 284 U.S. 390, 394, … (1932);
      see also [Commonwealth v.] Carter, 282 A.2d [375,] 376 [(Pa.
      1971)]. Accordingly, the United States Supreme Court has
      instructed that courts may not make factual findings regarding


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      jury acquittals and, thus, cannot “upset” verdicts by “speculation
      or inquiry into such matters.” Dunn, 284 U.S. at 394…

Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa. 2014).

      Here, Appellant does not cite to any of the cases that express an

exception to the general rule on inconsistent verdicts, such as where there is

an acquittal on a predicate offense. See Commonwealth v. Reed, 9 A.3d

1138 (Pa. 2010) (finding evidence insufficient to support higher grading of

unlawful contact with minor where the jury found the defendant not guilty of

the predicate offense for that grading); Commonwealth v. Magliocco, 883

A.2d 479 (Pa. 2005) (finding the evidence insufficient to convict for ethnic

intimidation because where the defendant was acquitted of terroristic threats,

where the latter was a predicate offense at the time of his conviction). Our

review of those cases indicates that they are not analogous to the instant

matter. Moreover, the AA charges in this case involved multiple victims in a

variety of circumstances; thus, it is not even clear that the verdicts were at

all inconsistent.   Accordingly, we conclude that, insofar as Appellant’s

sufficiency claim was not waived, it lacks merit.

      Next, Appellant claims that the evidence was insufficient to support the

two counts of REAP that did not specifically identify a victim. He asserts that

there was no testimony or evidence demonstrating that he presented a danger

to anyone beyond the victims of the other REAP offenses.       Addressing the

officers who followed Appellant during the high-speed chase, Officers Shearer

and Terry and Trooper Bishop, Appellant argues that:



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      The actions of these officers in pursuing [Appellant] was
      voluntary, and any risk of harm or injury from the voluntary high-
      speed pursuit of [Appellant]’s vehicle was a risk assumed by said
      officers. There does not appear in the record any evidence that
      [Appellant] attempted to collide with, run off the road, or
      otherwise inflict harm on these three officers.

Appellant’s Brief at 19.

      A person commits the crime of recklessly endangering another
      person “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. This statutory provision was directed against
      reckless conduct entailing a serious risk to life or limb out of
      proportion to any utility the conduct might have. This Court held,
      in Commonwealth v. Trowbridge, … 395 A.2d 1337 (Pa. Super.
      1978), that recklessly endangering another person is a crime of
      assault which requires the “creation of danger.” As such, the
      Court concluded, there must be an “actual present ability to inflict
      harm.” Id. at … 1340.

Commonwealth v. Rivera, 503 A.2d 11, 12 (Pa. Super. 1985) (en banc).

      We note that Appellant fails to cite any case law suggesting that a

conviction for REAP cannot be based on risks to pursuing officers in a high-

speed chase because their actions are ‘voluntary.’ To the contrary, the REAP

statute does not contain any element addressing the voluntariness, or lack

thereof, of an alleged victim to that offense. Moreover, Appellant should have

known that his actions would almost certainly prompt police pursuit. This is

not a case where a reasonable person would not anticipate police pursuit and

the attendant risks of a high-speed chase.     Accordingly, assuming Officers

Shearer and Terry and Trooper Bishop were the victims of the REAP offenses

at issue, we conclude the evidence was sufficient to convict Appellant of those




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offenses. Appellant’s flight undoubtedly put the pursuing officers’ lives at risk

due to his excessive speeds and reckless driving.

      Alternatively, we conclude that there were at least two other potential

victims of a REAP offense.          As noted by the Commonwealth, see

Commonwealth’s Brief at 9, Trooper Bishop testified as follows:

            As [Appellant’s truck] was driving down Narrows going
      eastbound, I observed large puffs of black smoke coming from the
      exhaust. It would come for a while as the vehicle spe[]d up, ounce
      it would hit the limit, the governor … on the vehicle, black smoke
      would stop. We would stay … roughly between 95 and a hundred
      [m.p.h.] the whole time.

            There w[ere] cars that were slowly moving off to the right
      of the road or left side of the road depending on how fast we came
      upon them. It appeared that [Appellant] gave no regard to
      anybody [who] was also on the roadway at all. He continued to
      drive between both lanes of travel, whichever way he need to get
      past.

N.T. at 154-55. Later during the chase, Trooper Bishop observed Appellant

steer his vehicle toward several tractor-trailers at speeds approaching 100

m.p.h. Id. at 158-59.

      Based on this testimony, we alternatively conclude that there was

sufficient evidence of at least two REAP offenses committed by Appellant that

did not involve the pursuing officers. It is clear that, by travelling at extremely

high speeds, at times on the wrong side of the road, Appellant placed

numerous other motorists in serious mortal danger through his reckless

actions.




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     Judgment of sentence vacated in part, affirmed in part.     Case

remanded for resentencing on Appellant’s DUI conviction.   Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/28/2019




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