J-S45003- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. LEROY C. JOHNSON, Appellant No. 2155 EDA 2012

Appeal from the Judgment of Sentence July 20 , 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR -0010278-2011
BEFORE: BOWES, WECHT, and FITZGERALD, * JJ. MEMORANDUM BY BOWES, J.: FILED AUGUST 08, 2014 Leroy Johnson appeals from the judgment of sentence of five to ten years imprisonment followed by six years probation. Se ntence was imposed after a jury convicted Appellant of involuntary mansla ughter, homicide by vehicle while driving under the influence of alcohol, homicide by vehicle, aggravated assault by vehicle while DUI, and four coun ts each of simple assault and reckless endangerment. We reject Appellant ’s challenge to the sufficiency of the evidence supporting two of his convicti ons and affirm. Appellant’s offenses all arise from a traffic accident t hat occurred at approximately 8:15 p.m. on February 26, 2011. At t hat time, Appellant was traveling southbound in his silver SUV on Broad Stree t, which is a heavily

____________________________________________

* Former Justice specially assigned to the Superior Court.J-S45003- 14

- 2 -

trafficked four-lane roadway in Philadelphia. Since Appellant wanted to go northbound on Broad Street, he crossed over a median strip near the intersection of Broad and Venango Streets and made a U -turn into the northbound lanes of Broad Street. Esther Davis was driving her Ford Escort in the left l ane of northbound traffic of Broad Street between Venango Street and E rie Avenue. She had her two daughters and four grandchildren in the car. As Appellant made the illegal U-turn, he crashed into the driver’s side of Ms. Davis’ car. The impact pushed Ms. Davis’ vehicle into the right lane of the no rthbound traffic of Broad Street. Her vehicle was then struck by another v ehicle traveling in the right lane of the northbound traffic. That second impact propelled the Ford Escort across the median strip and into the southbou nd lanes of Broad Street. Ms. Davis’ car then hit two pedestrians, Inia Withers and her boyfriend Devin Whye, who were in the process of crossi ng Broad Street. Ms. Davis’ ve hicle struck a parked car, parking meters, and a tree b efore it came to a stop. Mr. Whye died as a result of the accide nt,while Ms. Withers was seriously injured and sustained a broken leg and p elvis. Appellant remained at the scene, and Philadelphia Pol ice Officer Deborah Kiker, a member of the accident investigation unit, immediately responded to the report of the accident. Appellant w as identified as the driver of the silver SUV that made the U- turn and struck Ms. Davis’ Escort. While Officer Kiker was interviewing Appellant, Appel lant displayed signs of intoxication. Appellant denied that he hit Ms. Davis’ car in the first instanceJ-S45003- 14

- 3 -

and claimed that another vehicle struck Ms. Davis’ Esco rt and that vehicle, which left the scene of the accident, caus ed her Escort to impact Appellant’s SUV. Ms. Davis and one of her daughters, Regina Brown, contr adicted that version of events. They both testified that Appellant ’s SUV struck Ms. Davis’ car when that SUV was making the U-turn from the south bound lanes into the oncoming northbound traffic. The SUV’s impact on the Davis car caused it to enter the right hand lane of northbound traff ic, where it was then struck by the car that left the scene. The collision with the second car caused the Escort to travel into the oncoming lane of southbound traffic and the pedestrians crossing Broad Street. Officer Kiker examine d the damage sustained by the Escort and SUV and determined that it did not support Appellant’s version of events, and, instead, was consistent with the description of the accident provided by Ms. Davis and Ms. Brown. After Appellant admitted to consuming alcohol prior to driving his vehicle, Officer Kiker transported Appellant to have h is blood drawn. Dr. Richard Cohn, a forensic toxicologist, reviewed the results of the blood alcohol content test. He opined that Appellant’s BAC at 8:15 p.m. on February 26, 2011, was .230%. Based upon this evidence presented by the Commonwealth , a jury convicted Appellant of the above-delineated offenses. In this appeal from the judgment of sentence, Appellant raises a challenge t o the sufficiency ofJ-S45003- 14

- 4 -

the evidence as to causation in connection with the two o ffenses pertaining to the pedestrians:

Where the defendant, while operating a vehicle, was alleged to have struck another vehicle which, in turn, struck pedestrians and property, was the evidence insufficient t o prove the defendant guilty beyond a reasonable doubt of al l charges pertaining to injuries and damage resulting from the other vehicle striking pedestrians and property because the evi dence failed to prove that the defendant’s conduct, and not the conduct of the driver of the other vehicle, was the direct cause of the injuries to the pedestrians and property struck by the o ther vehicle. Appellant’s bri ef at 5. We review a sufficiency argument pursuant to the follo wing principles: The standard we apply when reviewing the sufficiency of the evidence is whether viewing all the evidence admit ted at trial in the light most favorable to the verdict winn er, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In a pplying the above test, we may not weigh the evidence and subst itute our judgment for the fact-finder. In addition, we n ote that the facts and circumstances established by the Commonwealth n eed 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 f rom 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 evid ence. Moreover, in applying the above test, the entire reco rd must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing u pon the credibility of witnesses and the weight of the evidence produced is free to believe all, part or none of the evidence. Furthermore, when reviewing a sufficiency claim, our Court is requ ired to give the prosecution the benefit of all reasonable inferen ces to be drawn from the evidence.J-S45003- 14

- 5 -

Commonwealth v. Slocum , 86 A.3d 272, 275 (Pa.Super. 2014) (citation omitted). On appeal, Appellant does not contest that the evidence presented by the Commonwealth was sufficient to establish that he str uck Ms. Davis’ Escort while he was making the U-turn from the southbo und into the northbound lanes of Broad Street. Nor does Appellant suggest that he was not driving while under the influence of alcohol. In stead, he focuses on
Ms. Davis’ conduct after her Escort was struck by his SUV. Appellant claims that Ms. Davis’ driving behavior after her car was hit rendered her culpable for striking the two pedestrians. Appellant presented the testimony of an expert witness who opined that, after the impact from Appellant’s SUV, Ms

. Davis should have been able to stop her car prior to hi tting Ms. Withers and Mr. Whye. Appellant thus contends his convictions for homicide by vehicle while DUI and aggravated assault by vehicle while DUI are infirm. Appellant correctly observes that the evidence establishe d that
Ms. Davis struck the two pedestrians. Appellant’s brief at 28. Appellant continues that “insufficient evidence was presented at tria l to prove beyond a reasonable doubt that his actions caused the accident whi ch resulted in the death and injury” to the pedestrians at issue in the pre sent action. Id . at 29. He insists that his conduct was not the “direct cause of the i njuries to the pedestrians and property struck by [Ms. Davis’] vehicle.” Id

.J-S45003- 14

- 6 -

To resolve this contention, we first examine the test imony of
Ms. Davis, who described the events that followed the impact of Appellant’s SUV into her Escort. Ms. Davis related that she was h it very hard by Appellant’s SUV, was pushed into the right lane, and st ruck by another car. N.T. Trial, 4/24/12, at 175. The impact caused her t o lose control of the car. Id . at 177; N.T. Trial, 4/25/12, at 38. As a result, t he witness panicked. N.T. Trial, 4/24/12, at 180. Her Escort had a clutch , and she did not recall attempting to brake. When her car came to rest after striking the people, another car, and a tree, her left foot was on the ped al to change gears and her right foot was on the accelerator. Ms. Davis said she placed her other foot on the clutch “trying to take my car out of gear to see if it would stop.” Id . Her other foot already was on the accelerator at t he time of the first crash. Ms. Davis explained, “[A]ll I know is just it happened so fast. I didn’t really have time to do anything, because we were alre ady in the flow of traffic, and my foot was already on the accelerator as we was driving up the street.” Id . at 180. Ms. Davis further stated that when Ap pellant’s vehicle hit her car, “I guess I just went in shock, and all I coul d recall is trying not to hit these people.” Id . Ms. Davis insisted that the events occurred so quickly “there was really not time that I could do any thing,” but she tried “to

no t hit these people.” Id . at 181. Ms. Brown, Ms. Davis’ daughter,J-S45003- 14

- 7 -

confirmed that the entire accident happened in a matte r of seconds and that, as a result of the impact, Ms. Davis lost control over the Escort. Appellant was convicted of homicide by vehicle while D UI, 75 Pa.C.S. § 3735, in connection with Mr. Whye’s death. A person is guilty of that offense if he “unintentionally causes the death of another person as the result of a violation of section 3802 (relating to dri ving under influence of alcohol or controlled substance) and who is convicted of v iolating section 3802 is guilty . . . when the violation is the cause of death[.]” 75 Pa.C.S. § 3735(a) (emphasis added). The other offense challen ged by Appellant, aggravated assault by vehicle while DUI, occurs when a person “negligently

causes serious bodily injury to another person as the result o f a violation of section 3802 (relating to driving under influence of a lcohol or controlled substance) and who is convicted of violating section 3802 . . . when the violation is the cause of the injury.” 75 Pa.C.S. § 373 5.1(a) (emphasis added). Thus, both crimes concern an outcome, either dea th or serious bodily injury, that is unintended by the actor. As noted, Appellant contests that his conduct of DUI caus ed the death of Mr. Whye and the injury to Ms. Withers. Since the injuries in question were unintentional outcomes of Appellant’s actions, the definition of causation is outlined as follows: (a) General rule.

— Conduct is the cause of a result when: (1) it is an antecedent but for which the result in question would not have occurred; andJ-S45003- 14

- 8 - (2) the relationship between the conduct and result satisfies any additional causal requirements imposed by this title or by the law defining the offense.

. . . . (c) Divergence between probable and actual result.

— When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the act ual result is not within the risk of which the actor is aware or, i n the cas e of negligence, of which he should be aware unless: (1) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or (2) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a bearing on the liability of the actor or on the gravity of his offense. 18 Pa.C.S. § 303(a); (c). Herein, Appellant’s conduct met these mandates. Appella nt made a U

turn on a four-lane, heavily traveled highway in Ph iladelphia while driving with a BAC over twice the legal limit. Both vehicl es were traveling in opposite directions and Appellant hit the car hard. Th e fact that the vehicle Appellant struck would lose control and cause death or i njury to a pedestrian on that roadway was a probable and natural result of his grossly negligent actions. Furthermore, the fact that a car that he struc k with his vehicle would lose control and hit pedestrians was not too remot e or accidental in itsJ-S45003- 14

- 9 -

occurrence so as to relieve Appellant’s liability. Inde ed, it was highly foreseeable.
In a recent en banc decision, we discussed criminal causation in an analogous circumstance involving a traffic accident. Commonwealth v. Spotti , 2014 WL 2535265 (Pa.Super. 2014) ( en banc ). In that case, an accident occurred on a four lane highway. Police had r eceived numerous reports that the defendant’s vehicle was driving erratically. One m otorist was asked to follow the defendant with her hazard lig hts flashing. She complied, and police located her and then the defendan t’s car. Police started to follow the defendant’s vehicle, which w as in the left lane. Another motorist, Steven Chung, was traveling in the right la ne of the highway. When police activated their sirens, the defendant swerve d into the right lane and then suddenly braked. That action caused Mr. Chun g to veer right to

av oid colliding with the defendant’s vehicle. When Mr. Chung swerved to avoid the defendant, he str uck a van that was disabled and sitting on the side of the road. As a result of this second collision, two people helping to change the tire of t he van were severely injured. The defendant’s blood alcohol content while driving was . 203%. He was charged and convicted of two counts of aggravated assa ult with a vehicle while DUI in connection with the injuries caused to the two people changing the tire.J-S45003- 14

- 10 -

On appeal, the defendant challenged those convictions b ased upon the same ground as that raised herein: causation. The defe ndant in Spotti insisted that Mr. Chung’s “ actions were a sufficiently independent cause of the accident, which broke the chain of legal causation required to support Appellant's convictions.” Id . at * 6. We disagreed. We observed that to establish causation in the criminal context, “the Commonw ealth must prove that the defendant's conduct was so directly and substanti ally linked to the actual result as to give rise to the imposition of crim inal liability.” Id . at * 7. Referencing § 303, we noted that there is a “two -part test for determining criminal causation. First, the defendant's conduct must be an antecedent, but for which the r esult in question would not have occurred.” Id . In other words, a victim's injuries cannot be “entire ly attributable to other factors; rather, there must exist a causal connecti on between the conduct and the result of conduct; and causal connection re quires something more than mere coincidence as to time and place.” Id . Secondly, the outcome of “the defendant's actions cannot be so extraordi narily remote or attenuated that it would be unfair to hold the defe ndant criminally responsible.” Id . (citations and quotation marks omitted). This second aspect of the causation matrix is established if the victi m’s injuries are the natural or foreseeable consequence of the defendant’s a ctions. Id

. We observed that it is not necessary that the defendant’ s cond uct be the sole cause of the victim’s injuries to establish criminal causation forJ-S45003- 14

- 11 -

unintended injuries to another. We observed: “Crimin al responsibility may be properly assessed against an individual whose conduct w as a direct and substantial factor in producing the death even though other factors combined with that conduct to achieve the result.” Id . (citation omitted). We concluded with the observation that a defendant is co nsidered the direct cause of the victim’s injuries and criminal responsibility is established when “the defendant's conduct started the chain of causation wh ich led to the victim's death[.]” Id . at *8 (quoting Commonwealth v. Fabian , 60 A.3d 146, 152 (Pa.Super. 2013)). Spotti’s position was that he did not cause the injuri es to the people located on the side of the road because he did not colli de either with them or Mr. Chung’s car. Spotti maintained that Mr. Chung’s b ehavior was reckless and unforeseeable and could not be attributed to him. He accused Mr. Chung of following his vehicle too closely and ac ting as a vigilante. We rejected his positions based upon the testimony of Mr. Chung, who explained that he was in the right lane when the def endant’s car swerved into his lane of travel and braked violently. Mr. C hung denied trying to follow the defendant’s vehicle or driving too closely to it. Mr. Chung explained that when the defendant swerved, Mr. Chung only had two options: either to strike the defendant’s car or trave l onto the berm. Other witnesses confirmed Mr. Chung’s version of events. We concluded that,J-S45003- 14

- 12 -

under the circumstances, Spotti’s conduct was the legal cause of the injuries to the people who were struck by Mr. Chung’s car. The present case cannot be reasonably distinguished from Spotti

. When Appellant’s SUV hit Ms. Davis’ car, the impact wa s so violent she lost control of her vehicle. Despite her best efforts to avo id striking the pedestrians, she was unable to do so. Appellant’s acti on of hitting Ms. Davis’ car was the direct and substantive cause of the chain of e vents that led to her striking the pedestrians. Ms. Davis’ driving was f ar from the sole cause of the pedestrian’s injuries. Moreover, another accid ent was a natural, probable, and foreseeable consequence of Appellant’s att empt to make a U

turn into a heavily trafficked two- lane road. Hence, we reject Appellant’s challenge to the sufficiency of the evidence supporting his convictions. Judgment of sentence affirmed. Judge Wecht Concurs in the Result. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/8/2014