J-A22036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EBERHARD FABER

Appellant No. 339 MDA 2016

Appeal from the Judgment of Sentence February 10, 2016

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-SA-0000333-2015

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. 

MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 21, 2016

Appellant, Eberhard Faber, appeals from the judgment of sentence 

entered in the Luzerne County Court of Common Pleas, following his 

conviction of the summary offense of reckless driving.1 We affirm. 

In its opinion, the trial court fully and correctly sets forth the relevant 

facts of this case. Therefore, we have no reason to restate them. 

Procedurally, police cited Appellant for reckless driving after he disregarded 

an accident scene on December 8, 2015. On December 11, 2015, Appellant 

pled guilty to reckless driving, and the district judge imposed a $303.50 fine. 

Appellant timely filed a summary appeal for trial de novo in the Luzerne 

County Court of Common Pleas on December 29, 2015. On February 10, 

____________________________________________

1 75 Pa.C.S.A. § 3736(a). 
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2016, the court held a summary appeal hearing. At the conclusion of the 

hearing, the court convicted Appellant of reckless driving and imposed a 

$200.00 fine plus costs. Appellant timely filed a notice of appeal on 

February 19, 2016. On February 29, 2016, the court ordered Appellant to 

file a concise statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b), and Appellant timely complied on March 14, 2016. 

Appellant raises the following issue for our review: 

WHETHER THE TRIAL COURT ERRED IN FINDING 

[APPELLANT] GUILTY OF RECKLESS DRIVING WHERE THE 

EVIDENCE INTRODUCED AT TRIAL WAS INSUFFICIENT TO 

SUPPORT ALL THE ELEMENTS OF RECKLESS DRIVING 

BEYOND A REASONABLE DOUBT?

(Appellant’s Brief at 2). 

A challenge to the sufficiency of the evidence implicates the following 

legal principles: 

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying [the above] test, we may not weigh the evidence 

and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder 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 sustain 

its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually 
J-A22036-16

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received must be considered. Finally, the [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) 

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 

2003)). 

The Vehicle Code defines reckless driving as follows: 

§ 3736. Reckless driving

(a) General rule.—Any person who drives any vehicle 

in willful or wanton disregard for the safety of persons or 

property is guilty of reckless driving. 

(b) Penalty.—Any person who violates this section 

commits a summary offense and shall, upon conviction, be 

sentenced to pay a fine of $200. 

75 Pa.C.S.A. § 3736. The offense of reckless driving has two elements: (1) 

an actus reus of driving a vehicle; and (2) a mens rea of willful or wanton 

disregard for the safety of persons or property. Bullick, supra at 1001. To 

satisfy the elements of reckless driving, the offender’s driving must be a 

gross departure from prudent driving standards. Commonwealth v. 

Greenberg, 885 A.2d 1025, 1027-28 (Pa.Super. 2005). “[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.” Id. at 1029-30 

(emphasis in original). 
J-A22036-16

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After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Fred A. 

Pierantoni, III, we conclude Appellant’s issue on appeal merits no relief. The 

trial court opinion fully discusses and properly disposes of the question 

presented. (See Trial Court Opinion, filed April 7, 2016, at 6-8) (finding: 

court resolved issue of credibility in favor of Commonwealth witnesses; 

evidence established that Appellant drove up to accident scene where police 

had blocked traffic by positioning emergency vehicles in roadway with lights 

activated; when Appellant arrived at scene, two uniformed police officers 

stood near emergency vehicles and directed traffic away from accident 

scene; under these circumstances, presence and purpose of emergency 

vehicles and police officers should have been obvious to Appellant; 

nevertheless, Appellant ignored emergency vehicles blocking traffic and 

directives yelled by police officers; Appellant proceeded into intersection, 

drove his vehicle over median strip in roadway, and narrowly avoided 

collision with emergency responders; Appellant’s conscious disregard of 

police directives at accident scene established requisite mens rea of 

recklessness; thus, sufficient evidence existed to sustain Appellant’s 

conviction of reckless driving). Accordingly, we affirm on the basis of the 

trial court opinion. 
J-A22036-16

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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2016
cc: Daniel Hollander, A.D.A. 

James Barr, Esq. 

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same to the Superior Court of Pennsylvania. 

DIRECTED to docket this Order and Opinion and to forthwith transmit 

2. The Clerk of Courts of Luzerne County is ORDERED AND 

to Pennsylvania Rule of Criminal Procedure No. 114. 

serve a copy of this Order and Opinion on all Counsel of Record pursuant 

1. The Clerk of Courts of Luzerne County is ORDERED AND DIRECTED to 

DECREED: 

ORDER 

AND NOW, this =: of April, 2016, it is hereby ORDERED, AND 

Defendant 

EBERHARD FABER, : No. 333-SA-2015 

V. CRMINAL DIVISION 

COMMONWEALTH OF PENNSLV ANIA :IN THE COURT OF COMMON PLEAS 

DEPARTMENT OF TRANSPORTATION, 

BUREAU OF DRIVER LICENSING, OF LUZERNE COUNTY 

Circulated 11/07/2016 04:28 PM 
1 

elements of Reckless Driving beyond a reasonable doubt." 

where the evidence introduced at the Hearing was insufficient to support all the 

that this Honorable Court erred in finding Defendant guilty of Reckless Driving 

Counsel for appellant presently asserts "Defendant respectfully represents 

submitted a response on March 22, 2016. 

Statement was subsequently received on March 14, 2016 and the Commonwealth 

Order issued to 'Pa.R.~-r .. 1925 (b) on February 29, 2016. Appellant's Concise 

An appeal from that determination was filed on February 19, 2016 and an 

consists of 30 pages, the undersigned rendered a verdict of guilty. 

driving. (75 Pa.C.S.A.§3736 (a)). Subsequent to a hearing, the transcript of which 

captioned matter in which the Commonwealth cited the defendant for reckless 

On February 10, 2016 this Court considered a summary appeal in the above 

OPINION 

Defendant 

EBERHARD FABER, : No. 333-SA-2015 

V. CRMINAL DIVISION 

COMMONWEALTH OF PENNSLV ANIA; : IN THE COURT OF COMMON PLEAS 

DEPARTMENT OF TRANSPORTATION, 

BUREAU OF DRIVER LICENSING, OF LUZERNE COUNTY 
2 

The witness responded and was positioned in the middle of the northbound 

lane of Wilkes-Barre Boulevard at the Scott Street intersection. Additionally 

present and deployed were a Wilkes-Barre City fire engine, and two patrol 

vehicles. These vehicles were positioned so that the northbound lane of travel 

would be blocked since the light post had fallen across two lanes of travel. All 

vehicles had their emergency lights activated. (N.T. 6). 

Officer Magagna initially indicated that on December 8, 2015 at 

approximately 7:30 p.m. he was dispatched to the scene of a traffic accident in 

which a vehicle hit a traffic signal, knocking it down, causing the northbound lanes 

of Wilkes-Barre Boulevard to be blocked. Responders at the scene requested 

Officer Magagna's presence since it was necessary to close the northbound lane as 

well as the eastbound lane of Scott Street. 

The Commonwealth presented the testimony of Wilkes-Barre City Police 

Officer Bernard Magagna and the "outside supervisor" on the day in question, 

Officer Richard Harding. We will briefly summarize their testimony. 

At the conclusion of the hearing defense counsel, referencing 

Commonwealth v. Greenberg, 885 A.2d 1025(Pa. Super. 2005), argued that the 

Commonwealth's evidence was insufficient to support the mens rea of 

recklessness. 
3 

Richard Harding, has been employed by the Wilkes-Barre City Police 

Department in excess of twenty years. On the day in question he was the "outside 

supervisor", 

On cross-examination the officer described a considerable amount of debris 

·present as a result of the initial accident. 

The defendant's vehicle was in the eastbound turning lane which would 

ordinarily allow him to proceed north on Wilkes-Barre Boulevard. The witness 

and an additional officer were literally in the middle of the street "indicating that 

there were no left turns, all traffic was to tum right". ( Id. N.T. 7). As the traffic 

control signal changed the defendant proceeded to tum left, "by-passing the two 

patrol vehicles and the fire engine". The defendant drove by the two police 

vehicles, fire truck and responders at the scene. Prior to doing so the defendant 

drove over the aforementioned median separating the lanes of travel. (Id. N.T. 7, 

8). The witness, stated, the defendant passed the firefighters and city electrician 

who were present in the area where the defendant turned "to proceed past the live 

wire pole, downed pole". (Id. N.T. 8). 

Officer Magagna also described a raised median, several feet wide, 

separating the lanes of travel. 
4 

Officer Harding also described the positioning of the marked police vehicles 

with their emergency overhead lights activated as well as "Rescue 7", a large fire 

truck with its lights activated, all in the intersection physically blocking the 

Officer Harding observed the defendant in the northbound lane ofWilkesBarre Boulevard and heard "both officers shouting at the vehicle that was making a 

left-hand tum". The defendant was operating a silver Lexus. The witness further 

observed the defendant's vehicle crossing north Wilkes-Barre Boulevard in the 

southbound lane, travel up and over the median and into the northbound lane of 

Wilkes-Barre Boulevard where Officer Harding was standing. There were 

additional first responders in Officer Harding's immediate area. 

Officer Harding described the deployment of Officers Magagna and Kane 

who were actually in the intersection next to the fire truck, and near their patrol 

vehicles, directing traffic. Officer Harding further indicated that the northbound 

lane, both lanes of Wilkes-Barre Boulevard, and the eastbound lane of Scott Street 

were all closed for "public safety". 

Officer Harding described the initial incident involving a one-car crash into 

a pole at the intersection of Wilkes-Barre Boulevard and Scott Street. The vehicle 

struck a light stanchion which fell across the northbound lanes of Wilkes-Barre 

Boulevard along with a substantial amount of debris. 
5 

The defendant testified that as he approached the accident scene "I assumed, 

wrongly as it turned out, I assumed that the police had pulled over a driver for 

some sort of violation". (Id. N.T. 22). He additionally indicated he thought he 

could go around the police vehicle but realized there wasn't enough room, "[S]o I 

had to continue going the wrong way on the Boulevard until I could cross the 

median strip". (Id. N.T. 23). 

In Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) our Supreme 

Court summarized the framework to be employed in considering an insufficiency 

argument. A claim challenging the sufficiency of evidence is a question of law. 

Officer Harding estimated the defendant's speed at approximately 15 mph. 

During cross-examination Officer Harding stated the defendant's vehicle 

came within a foot or two of where he was standing. "I was actually stepping out 

of the way, and I was shouting at him as well to stop; and he continued to go". ( Id. 

N.T. 19). 

In response to a question posed by the assistant district attorney regarding 

whether the defendant's conduct "put your life or others in jeopardy or in danger at 

least?" the witness responded" Absolutely. It most certainly did". (Id. N.T. 15). 

roadway "for public safety and also for our safety as first responders inside the 

accident scene." (Id. N.T. 14). 
In arriving at the verdict in this matter, to the extent it was necessary, we 

resolved the issue of credibility in favor of the Commonwealth witnesses and 

against the defendant. 

Superior Court, in the case of Commonwealth v. Jeter, 937 A.2d 466 (Pa. 

Super. 2007), considered, in part, whether the evidence was sufficient to support a 

conviction for reckless driving. In order to establish a conviction for this offense, 

the Jeter court instructs, the Commonwealth must prove that the defendant 

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

opinion further notes that a person acts recklessly if he or she "consciously 

disregards a substantial and unjustifiable risk" of injury to others", referencing 

18Pa.C.S.A. §302 (b)(3). Jeter examined what it described as "tangible indicia of 

unsafe driving" to determine whether the defendant exhibited a conscious 

disregard of the substantial risk of harm to others on the roadway. As defense 

6 

Evidence will be deemed sufficient to support the verdict when it establishes each 

material element of the crime charged and its commission 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 thus 

the laws of nature, then the evidence is insufficient as a matter of law. Alternately 

stated, the inquiry involves whether the believable evidence was sufficient to 

support the verdict. Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 (Pa. 2007). 
7 

The defendant, while operating his vehicle, came upon an accident scene 

where multiple police and fire vehicles, all with their emergency lights activated, 

were positioned in such a manner as to block continued travel in a portion of the 

roadway. Additionally, present in the immediate area of the aforementioned 

response vehicles were two uniformed police officers directing traffic away from 

the accident scene. The presence and purpose of the vehicles and law enforcement 

officers should have been obvious to anyone with a modicum of common sense. 

The defendant ignored the "yelled" directives of the officers as well as the 

emergency apparatus and literally drove his vehicle over the median strip of the 

roadway where he thereafter narrowly avoided striking responders present at the 

scene, including Officer Harding. 

Examining the indicia of unsafe driving in the instant matter in a light most 

favorable to the Commonwealth as verdict winner we observe the following. 

counsel correctly pointed out during closing argument in the instant matter the 

offense presently considered requires a mens rea of recklessness. The evidence of 

recklessness considered in Jeter included the defendant's vehicle weaving in and 

out the roadway for several miles; other drivers on the roadway at the time; Jeter's 

BAC of 0.21 and the fact that Jeter ultimately lost control of his vehicle, striking 

the center barrier. 
8 

END OF OPIINION 

ORDER ATIACHED AS PAGE 9 

If the defendant's conduct in consciously disregarding the directives and 

commands of the officers and then driving over a median into a patently obvious 

accident scene narrowly avoiding striking the responders present does not establish 

the mens rea of recklessness we fail to discern what would.