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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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 afterhours 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 
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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 abovementioned 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.
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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 (F2), 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.
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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 (F2), 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).
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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 
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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 
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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-toten-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 
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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, 
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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 
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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. 
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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 
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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.
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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. 
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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 
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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.”). 
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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”). 
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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.”
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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 
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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