J-A23037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JEREMY PAUL LEFEVER Appellant No. 1488 WDA 2014

Appeal from the Judgment of Sentence March 6, 2014 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0001314-2012

BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J

. MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 2, 2015 Appellant, Jeremy Paul Lefever, appeals from the j udgment of sentence entered in the Butler County Court of Comm on Pleas, following his jury trial convictions of recklessly endangering an other person (“REAP”) and fleeing or attempting to elude a police officer, an d his bench trial convictions of reckless driving, driving while operating privil ege is suspended or revoked—driving under the influence of alcohol or a controlled substance (“DUI”), and failure to stop at a red signal. 1 We affirm. The relevant facts and procedural history of this case are as follows. On July 11, 2012, at approximately 1:00 a.m., Lieut enant James Hollobaugh

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1 18 Pa.C.S.A. § 2705, 75 Pa.C.S.A. §§ 3733(a), 3736 (a), 1543(b)(1) (3802 related), and 3112(a)(3)(i), respectively.J-A23037-15

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of the City of Butler Police Department saw a lone driver operating a small, dark, hatchback-type vehicle run a steady red light in Butler. Lieutenant Hollobaugh activated his police cruiser’s lights an d attempted to initiate a traffic stop of the vehicle. The vehicle failed to stop, accelerated, and fled from Lieutenant Hollobaugh, who pursued the vehicle in his police cruiser and called for backup. The pursuit continued for s everal blocks when Lieutenant Hollobaugh activated his police cruiser’ s siren. The pursued vehicle then proceeded to turn onto a one-way stree t in the wrong direction and nearly struck an oncoming vehicle. Lieutenant Hollobaugh lost sight of the vehicle for approximately fifteen (15) seconds. He then saw a tall, white man wearing a dark tank top running from the pursue d vehicle, which was parked in a private driveway about two blocks from where Lieutenant Hollobaugh lost sight of the vehicle. Lieutenant H ollobaugh parked behind the vehicle and discovered it was registered to Ms. Alicia Kniess. Lieutenant Hollobaugh knew from prior incidents that Appellant lived at the same

address as Ms. Kniess. Meanwhile, Patrolman David Villotti of the Butler Police Department responded to Lieutenant Hollobaugh’s call for backu p. Patrolman Villotti observed a tall, white man in a dark tank top walki ng approximately one block from where Lieutenant Hollobaugh located the parked vehicle. Patrolman Villotti stopped the man and identified h im as Appellant. Keys matching the pursued vehicle were found on Appellan t’s person.J-A23037-15

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Appellant filed an omnibus pretrial motion on Octo ber 10, 2012, to suppress the keys found on his person. The court c onducted a hearing and denied Appellant’s motion on February 14, 2013. Th ereafter, on January 29, 2014, a jury convicted Appellant of REAP and fleein g or attempting to elude a police officer, and the court convicted Appellant of the summary offenses of reckless driving, driving while operating privil ege is suspended or revoked—DUI, and failure to stop at a red signal. A ppellant filed a motion for judgment of acquittal on February 10, 2014, whi ch the court denied on February 12, 2014. The court sentenced Appellant o n March 6, 2014, to sixty (60) days’ to twelve (12) months’ imprisonmen t for fleeing or attempting to elude a police officer, plus a consec utive ninety (90) days’ imprisonment for driving while operating privilege is suspended, followed by twelve (12) months’ probation for REAP. Appellant timely filed a post-sentence motion on M onday, March 17, 2014, which was denied by operation of law on Augus t 15, 2014. Appellant timely filed a notice of appeal on September 12, 20 14. The court ordered Appellant to file a concise statement of errors com plained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied. Appellant raises the following issues for our revi ew:

WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT THE JURY AND TRIAL COURT’S FINDING THAT APPELLANT WAS THE ACCUSED, THE DRIVER OF THE PURSUED VEHICLE.

WHETHER THE EVIDENCE PRESENTED AT TRIAL WASJ-A23037-15

- 4 - INSUFFICIENT TO SUPPORT THE JURY AND TRIAL COURT’S FINDING THAT THE UNNAMED VICTIM WAS PLACED [IN] ACTUAL DANGER OF DEATH OR SERIOUS BODILY INJURY.

WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION IN FINDING THAT THE VERDICTS WERE NOT AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL. (Appellant’s Brief at 4). In issues one and two combined, Appellant argues t here was insufficient evidence to sustain his bench and jury trial convictions. Appellant contends the Commonwealth failed to prove beyond a reasonable doubt that Appellant was the driver of the pursued vehicle and that Ms. Kniess’ vehicle was the pursued vehicle. Appellant alleges the fact finders’ assumptions that the parked car was the pursued veh icle, that Appellant was the man seen running from the parked car, and that Appellant had been driving the parked car during the pursuit were all based solely on circumstantial evidence. Appellant claims Lieutena nt Hollobaugh was unable to provide any details which would have positively identified the vehicle he pursued, such as the license plate information or t he make, model or color of the pursued vehicle. Appellant also contends Lieut enant Hollobaugh’s description of the man the Lieutenant saw running f rom the parked car was insufficient because he saw the individual for only a brief second, at night, from a block away. Appellant also argues the Commonwealth failed to p rove REAP beyondJ-A23037-15

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a reasonable doubt because the alleged victim was n ot in actual danger of death or serious bodily injury from the pursued veh icle. Appellant claims Lieutenant Hollobaugh’s testimony that Appellant ne arly struck an oncoming vehicle on a one-way street was the only evidence t hat Appellant allegedly placed another individual in danger of death or ser ious bodily injury. Appellant alleges the surrounding circumstances wer e not so inherently dangerous to prove actual danger or to suggest that a risk was created when Appellant allegedly drove recklessly down a one-way street. Appellant

maintains the Commonwealth’s evidence was insuffici ent to bear the burden of proving every element of the charges against him beyond a reasonable doubt. Appellant concludes this Court should rever se the judgment of sentence. We disagree. Initially, we observe:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitt ed...in the light most favorable to the verdict winner, the re is sufficient evidence to enable the fact-finder to fi nd every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evi dence and substitute our judgment for the fact-finder. I n addition, we note that the facts and circumstances established by the Commonwealth need not preclude e very possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finde r 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. The Commonwealth may susta in its burden of proving every element of the crime be yond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, th e entire record must be evaluated and all evidence actuallyJ-A23037-15

- 6 - received must be considered. Finally, the [trier] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Hansley , 24 A.3d 410, 416 (Pa.Super. 2011), appeal

denied , 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

Jones , 874 A.2d 108, 120-21 (Pa.Super. 2005)). Section 2705 of the Crimes Code provides:

§ 2705. Recklessly endangering another person A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or ma y place another person in danger of death or serious bodily injury. 18 Pa.C.S.A. § 2705.

Thus, [this] crime requires (1) a mens rea of recklessness, (2) an actus reus some “conduct,” (3) causation “which places,” and (4) the achievement of a particular re sult “danger,” to another person, of death or serious bo dily injury. Commonwealth v. Reynolds , 835 A.2d 720, 727 (Pa.Super. 2003) (quoting Commonwealth v. Trowbridge , 395 A.2d 1337, 1340 (Pa.Super. 1978)). See Commonwealth v. Klein , 795 A.2d 424 (Pa.Super. 2002) (indicating mens rea for REAP is conscious disregard of known risk of d eath or great bodily harm to another person, and serious bodily injury is bodily injury which creates substantial risk of death or c auses serious, permanent disfigurement or protracted loss or impairment of f unction of any bodily member or organ). Significantly, REAP “is a crime of assault which requiresJ-A23037-15

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the creation of danger” so “there must be an actual present ability to inflict

harm.” Reynolds, supra at 727-28 (quoting Commonwealth v. Rivera , 503 A.2d 11, 12 (Pa.Super. 1985) ( en banc )) (internal quotation marks omitted). Instantly, the trial court concluded:

On January 29, 2014, [Appellant] was convicted by a jury of [REAP], 18 Pa.C.S.A. § 2705, and fleeing/attempt ing to elude police, 75 Pa.C.S.A § 3733(a). On the same d ate, [the] [c]ourt found [Appellant] guilty of the summa ry charges of reckless driving, driving under suspensi on, DUI related, and failure to stop at a red signal. [App ellant] contends that at trial, the Commonwealth’s witnesse s never identified the driver of vehicle being pursue d as [Appellant] and that the affiant, Lt. James Holloba ugh of the Butler City Police Department, could not confir m the color, make, model and license plate of the vehicle

. Lt. Hollobaugh testified at trial that on July 11, 2012, just before 1:00 a.m., he was following a “smaller, darker/black hatchback-type vehicle” occupied by th e driver only when he observed the vehicle proceed th rough a steady red signal northbound on Main Street at th e intersection with Jefferson Street in the city of B utler. This traffic violation led to a chase within an area com prised of a few blocks. Lt. Hollobaugh further testified that he turned on his vehicle’s overhead lights and attempted to initiate a traffic stop. The operator of the vehicle accelerated quic kly whereupon the Lt. activated his vehicle’s siren. T he operator turned south onto McKean Street, which is a oneway northbound street, one block east of Main Stree t. The operator of the small dark vehicle nearly collided with a northbound vehicle on McKean Street. Lt. Hollobaug h lost sight of the vehicle briefly when he saw a tall, wh ite man wearing a dark tank top running and observed the ve hicle [the Lieutenant] was following parked in a private driveway nearby. Lt. Hollobaugh parked his vehicle behind the pursued vehicle and ran the plate through PennD OT.J-A23037-15

- 8 - The tall, white man was detained by Patrolman Villo tti less than one block from the parked vehicle. Lt. Hollob augh testified that the person he observed running was t he same individual detained by Patrolman Villotti.

Patrolman Villotti testified at trial that he was r esponding to Lt. Hollobaugh’s call for backup just after 1:00 a.m. and as [Patrolman Villotti] was turning onto the 200 bl ock of East Brady Street, he observed a male walking towar ds him. At that moment, Lt. Hollobaugh radioed to sto p the male walking down East Brady Street. Patrolman Vil lotti detained the tall, white man wearing a dark tank to p who was identified as [Appellant]. The car keys found on [Appellant’s] person belonged to the small, dark ha tchback parked in the private driveway. The patrolman test ified that there were no other people in that area at tha t time. At trial, the Commonwealth introduced the dashboard camera video recording of the pursuit in question f rom Lt. Hollobaugh’s patrol vehicle, Commonwealth’s Exhibit “3”. It was admitted without objection and viewed by the jury. The Commonwealth also introduced Commonwealth’s Exhibit “4” and “5”. Exhibit “4” is a map of downt own Butler and Exhibit “5” is the same map with arrow markings to show the route of the pursuit. Both we re admitted without objection. The maps clearly point out the short distance traveled during the pursuit as well as [Appellant’s] proximity to the parked car pursued d uring the chase. Additionally, the events of this incide nt occurred within a very short period of time. From the moment Lt. Hollobaugh first observed the small dark hatchback vehicle on Main Street to the time at whi ch [Appellant] was detained was a matter of minutes. [The] [c]ourt concurs with the jury verdicts that e ach material element of the crimes charged and the commission thereof by [Appellant] was proven beyond a reasonable doubt. The direct evidence provided by the officers’ eyewitness accounts, as well as the circu mstantial evidence of the exhibits links [Appellant] to the c rime[s] beyond a reasonable doubt. [The] [c]ourt believes that the jury could determine the presence of that quant um of evidence necessary to establish the elements of the crimes. Further, the trial court may not change a verdictJ-A23037-15

- 9 - based upon a redetermination of credibility or a reevaluation of the evidence. [The] [c]ourt also f ound that the evidence presented at trial, as it relates to t he summary offenses, proved those offenses beyond a reasonable doubt. (Trial Court Opinion, filed December 3, 2014, at 3- 4) (internal citations and quotation marks omitted). The record supports the trial court’s conclusions. Moreover, Appellant’s conduct placed another indivi dual in actual danger of death or serious bodily injury when Appellant reckl essly turned onto a oneway street in the wrong direction, causing him almo st to hit another vehicle headed in the opposite direction. See Reynolds, supra . Thus, there was sufficient evidence to support the finding that App ellant was the driver of the pursued vehicle and that he put another in danger o f death or serious bodily injury when Appellant drove the wrong way on a one- way street and almost hit the oncoming vehicle. See Hansley, supra . Accordingly, Appellant’s sufficiency of the evidence issues merit no relief. In his final issue, Appellant argues his verdicts were against the weight of the evidence. Appellant claims his presumption of innocence was discarded in favor of Lieutenant Hollobaugh’s insuf ficiently corroborated testimony. Appellant contends Lieutenant Hollobaug h’s testimony lacked the adequate indicia of reliability to be considered as more than mere conclusory testimony. Appellant maintains there was no direct evidence or reliable testimony that proved he was driving the pursued ve hicle. Appellant concludes this Court should reverse the judgment of sentence. We disagree.J-A23037-15

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The following principles apply to our review of a weight of the evidence

claim: The weight of the evidence is exclusively for the

finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitut e its judgment for that of the finder of fact. Thus, we may only reverse the...verdict if it is so contrary t o the evidence as to shock one’s sense of justice.

Commonwealth v. Small , 559 Pa. 423, [435,] 741 A.2d 666, 672-73 (1999). Moreover, where the trial cour t has ruled on the weight claim below, an appellate court ’s role is not to consider the underlying question of wheth er the verdict is against the weight of the evidence. Rat her, appellate review is limited to whether the trial co urt palpably abused its discretion in ruling on the wei ght claim. Commonwealth v. Champney , 574 Pa. 435, 444, 832 A.2d 403, 408 (2003), cert. denied , 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (20 04) (most internal citations omitted). Instantly, the court relied on its sufficiency ana lysis and determined:

[T]he fact finders’ guilty verdicts are not against the weight of the evidence as the verdicts are not “so contrary to the evidence as to shock one’s sense of justice. ” It is clear from the verdicts rendered that the fact find ers found the direct and circumstantial evidence presented at trial to be credible and established the elements of the off enses charged. (Trial Court Opinion at 4). We accept the court’s conclusions. Therefore, Appellant’s weight of the evidence issue merits no relief. Accordingly, we

affirm. Judgment of sentence affirmed.J-A23037-15

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/2/2015