J-S55022-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW MARSHALL MURPHY

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 641 WDA 2020

Appeal from the Judgment of Sentence Entered October 17, 2019

In the Court of Common Pleas of Westmoreland County Criminal Division 

at No(s): CP-65-CR-0000885-2017

BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.: FILED: MARCH 26, 2021

Matthew Marshall Murphy (Appellant) appeals from the judgment of 

sentence entered in the Westmoreland County Court of Common Pleas, 

following his jury convictions of three counts of aggravated assault by motor 

vehicle1 and related offenses. Appellant avers: (1) the trial court erred in 

denying his request for a jury instruction that the Commonwealth bore the 

burden to show his actions were not caused by a seizure; and (2) the 

sufficiency and weight of the evidence did not establish his actions were 

voluntary. We affirm.

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 3732.1(a). The trial court also found Appellant guilty of 

summary traffic violations, discussed infra.
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This matter arose from a vehicle accident on May 8, 2016, at 

approximately 10:30 a.m., at an intersection on state route 119 in Youngwood 

Borough, Westmoreland County. It was not disputed that Appellant “was 

driving his Dodge Ram 2500 pickup truck in excess of 70 miles per hour in a 

35-mile-per hour zone, [and] he collided with a Hyundai Elantra, injuring all 

its occupants:” W.S., V.S., and their two children, one-year old A.S. and twoyear old. G.S (collectively, the victims). See Trial Ct. Op., 5/26/20, at 1; N.T. 

Jury Trial at 91. The Elantra “flipped over.” N.T. Jury Trial at 77. After impact, 

Appellant’s truck “proceeded to jump over the curb and [proceed] through the 

parking lot of the shopping plaza,” hitting a parked car. Id.at 149, 150, 209. 

As we discuss infra, eyewitnesses who approached Appellant immediately 

after the accident observed he appeared to be having a seizure. See id. at 

151, 162.

Appellant was charged with three counts of aggravated assault by motor 

vehicle, one count each of simple assault and recklessly endangering another 

person2 (REAP), and multiple Vehicle Code violations. The matter proceeded 

to a four-day jury trial on July 15, 2019. V.S. and W.S. testified.3

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2 18 Pa.C.S. §§ 2701(a)(1), 2705.

3 V.S. described her injuries: she broke “almost [her] entire back[,] had brain 

bleeds[,] dislocated [her] shoulder, tore [her] labrum[, and] had a collapsed 

lung[.]” N.T. Jury Trial, 7/15-18/19, at 92-93. At the time of trial, she was 

no longer working and had a permanent disability. Id.at 94-95. W.S. suffered 

“a broken clavicle and collar bone, tor[n] shoulder blade, a brain injury 

and . . . nerve damage in [his] arm.” Id. at 104. Two year-old G.S. “broke 
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The Commonwealth also called eyewitness4 Joni Allison, who testified to 

the following. She was driving in the right lane and “coming to a stop.” N.T. 

Jury Trial at 132, 134. The victims’ car was in front of her. See id. In her 

rearview mirror, Allison observed Appellant’s truck “coming up behind [her] 

at a very fast rate of speed.” Id. at 132-33. Allison explained: “The truck 

moved from directly behind me, swerved into the left-hand lane,”

“immediately cutback in front of [me],” and hit the victims’ car. Id. at 133, 

135. Allison did not see Appellant’s brake lights illuminated. Id. at 135.

The Commonwealth presented the following testimony of additional 

eyewitnesses, Brandon and Tyler Wainwright, brothers. They were each 

driving a vehicle, and Brandon was behind Tyler. Id. at 147, 159. Brandon 

testified Tyler was next to the victims’ car.5 Id. at 148. Brandon heard “a 

vehicle approaching that [was] bouncing off rev limiter [sic,]” or, as he 

explained, he heard “the high RPMs of the vehicle just behind [him], audibly 

approaching.” Id. After the crash, Brandon observed Appellant’s truck go 

into the parking lot. Id. at 149. Brandon went to Appellant’s truck in order 

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his femurs[,] had a punctured lung[,] broke his jaw,” and suffered a traumatic 

brain injury that “requires shots for the rest of his life.” Id. at 95. One yearold A.S. “had some contusions on the side of his head,” and was “fine” by the 

time of trial. Id.

4 The Commonwealth called a total of seven eyewitnesses to testify at trial. 

5 Tyler, however, denied any car was next to him, and instead, when he heard 

a crash, looked in his rearview mirror, and saw debris behind him. N.T. Jury 

Trial at 161.
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to “check on” him, and Tyler followed Brandon. Id. at 150, 162. Brandon 

testified: “[Appellant] appeared to be having some type of seizure. He wasn’t 

coherent. Hardly responsive. [H]e was appearing to be having some type of 

medical emergency.” Id. at 151. Tyler likewise stated he saw Appellant 

“having a seizure,” describing him as “[s]louched over to the right[,] 

convulsing and drooling.” Id. at 162.

Paramedic James Lenhart, who responded to the scene, testified to the 

following. At 10:33 a.m., Appellant was in the driver’s seat, and a bystander 

was “holding stabilization of his head in case there was a neck injury.” N.T. 

Jury Trial at 177-78. Bystanders told Paramedic Lenhart they “may have seen 

[Appellant] seize.” Id. Appellant was saying “mostly incomprehensible 

words.” Id. at 179. At 10:51, however, Appellant was “alert and oriented”

and stated “he believes his brakes went out causing the accident.” Id. at 180-

81. Paramedic Lenhart believed Appellant may have suffered a head injury. 

Id. at 181.

Pennsylvania State Corporal Bradley Poole testified as an expert in crash 

investigation and reconstruction. N.T. Jury Trial at 191. A post-accident 

examination of Appellant’s truck revealed “the two driver side brakes were 

working.” Id. at 219. The officer could not examine the right front brakes 

due to damage to the truck. Id. at 218. Additionally, the manual transmission 

gear was “in fifth gear,” or the highest gear for speed. Id. at 217.
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Appellant did not dispute the above evidence, but testified to the 

following. He remembered “getting on 70 in New Stanton.” N.T. Jury Trial at 

312. He has no memory of the accident, and the next thing he remembers is 

waking up in the hospital at approximately 2:00 or 3:00 p.m. Id. at 312-13. 

A hospital report, however, shows Appellant was evaluated at 11:40 that day, 

and that he stated both that he “struck [his] head and [thought] he may have 

lost consciousness,” and that he was “not able to brake fast enough and [thus] 

hit another car.” Id. at 321. At trial, Appellant stated he did not recall making 

these statements, nor telling Paramedic Lenhart he believed his brakes caused 

the accident. Id. at 318, 321. At the hospital, Appellant underwent “several 

CAT scans” of his head, face, chest, and lumbar spine, all of which were 

“negative.” Id. at 313, 321. Appellant was discharged the same day with a 

diagnosis of “motor vehicle collision with closed-head injury.” Id. at 313, 319. 

There was no mention in the hospital records of “some type of medical incident 

prior to the crash.” Id. at 322 (emphasis added).

Three weeks after the accident, in an interview with Corporal Poole, 

Appellant stated he did not “remember the crash and . . . sustained a 

concussion as a result of the crash. N.T. Jury Trial at 320. Appellant did not

tell the officer that he believed the “crash was caused by some type of medical 

incident.” Id. After the accident, Appellant visited a neurologist and heart, 

stress, and sleep doctors, to determine “what happened,” as he felt 

“something happened to [him] during the accident.” Id. at 314. The doctors 
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advised him not to drive for a month or go to work “[u]ntil they ran tests.” 

Id. Appellant then agreed there were no “medical restrictions” on his driver’s 

license.6 Id. at 314-17. Appellant also testified he did not have any seizures 

prior to or after the accident. Id. at 315.

Appellant requested an “Involuntary Act” jury instruction — that the 

Commonwealth bore the burden to prove his actions were voluntary and were 

not the result of a seizure. See N.T. Jury Trial at 306. This instruction would 

provide that if the jury found “the Commonwealth has failed to disprove that 

[Appellant] was having a seizure prior to the accident, [the jury] may . . . find 

he was incapable of forming the relevant mental state to act in a reckless or 

grossly negligent manner . . . as his actions were involuntary.” Id. The 

Commonwealth responded Appellant bore — and failed to meet — the burden 

of presenting some evidence that he had “a seizure prior to the crash, not a 

seizure as a result of a closed-head injury after the crash.” Id. at 299 

(emphases added). The Commonwealth argued: “[T]here has to be some 

type of diagnosis. [I]f the defense is going to raise this type of argument, 

they bear the production of establishing some evidence. They can’t simply 

say that the symptoms observed after the crash are both consistent with a 

closed-head injury and maybe a seizure disorder.” Id. at 291.

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6 Appellant was precluded from stating, on hearsay grounds, whether he was 

provided a “medical conclusion about what might have happened.” N.T. Jury 

Trial at 315.
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The trial court denied Appellant’s request, but stated it would provide 

the “general instruction about the Requirement of a Voluntary Act:” “A person 

is not guilty of an offense unless his liability is based on conduct, which 

includes a voluntary act or the omission to perform an act of which is physically 

capable.” N.T. Jury Trial at 306-07.

The trial court instructed the jury consistent with our summary above. 

See N.T. Jury Trial at 367. Pertinent to this appeal, we note Appellant raised 

no objection during or after the jury charge. See id. at 378. Instead, at the 

conclusion of the jury charge, the court asked both parties, “[A]ny additional 

instructions I need to give?” Id. at 377. The Commonwealth and Appellant’s 

counsel both responded, “No, Your Honor.” Id. at 377-78.

The jury found Appellant guilty of three counts of aggravated assault by 

motor vehicle and one count each of simple assault and REAP. At sentencing 

on October 17, 2019, the trial court further found Appellant guilty of seven 

summary traffic violations.7 For each count of aggravated assault by motor 

vehicle, the court imposed a term of three to 23 months’ imprisonment, all to 

run concurrently.

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7 See 75 Pa.C.S. §§ 3303(a)(1) (improper passing), 3309(1) (disregarding 

traffic lane), 3310(a) (following too closely), 3361 (failure to drive at safe 

speed), 3362(a)(3) (exceeding maximum speed limit by 36 mph), 3714(a) 

(careless driving), 3736(a) (reckless driving).
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On October 25, 2019, Appellant filed a timely post-sentence motion, 

challenging the sufficiency and weight of the evidence, as well as the denial 

of his requested jury instruction. The court denied the motion seven months 

later, on May 26, 2020. Appellant filed a notice of appeal on June 22nd.

8

 In 

response to the trial court’s order to file a Pa.R.A.P. 1925(b) statement of 

errors complained of on appeal, Appellant timely filed a statement, which 

raised the following issues, verbatim:

1. The Court erred in determining the jury’s verdicts in this matter 

were supported by sufficient evidence.

2. The Court erred in determining the jury’s verdicts in this matter 

were not against the weight of the evidence.

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8 We observe Appellant’s post-sentence motion should have been denied by 

operation of law on Monday, February 24, 2020 — the 120th day after 

Appellant filed it. See Pa.R.Crim.P. 720(B)(3)(a) (if trial judge does not 

decide post-sentence motion within 120 days, the motion shall be deemed 

denied by operation of law). However, there was no order entered by the 

clerk of courts denying by operation of law, as required by Rule 720(B)(3)(c). 

See Pa.R.Crim.P. 720(B)(3)(c) (when a post-sentence motion is denied by 

operation of law, the clerk of courts shall enter an order and serve it on 

Commonwealth and defendant). Instead, as stated above, the trial court 

denied the motion on May 26, 2020. See Trial Ct. Op. at 2; Appellant’s Brief 

at 8 n.1 (both citing the COVID 19-statewide judicial emergency as the reason 

for trial court’s belated ruling).

Under these circumstances, we deem Appellant’s notice of appeal, filed 

within 30 days of the court’s order, as timely filed. See Commonwealth v. 

Parrish, 191 A.3d 31, 35 n.9 (Pa. Super. 2018) (a court breakdown occurs 

when the clerk of court fails to enter an order notifying the appellant his postsentence motion was denied by operation of law, and if trial court 

subsequently issues a denial order, we may deem timely a notice of appeal 

filed within 30 days of that order).
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Appellant’s Concise Statement of Errors Complained of on Appeal, 7/10/20.9

On appeal, Appellant presents the following issues for our review:

1. Whether the Court erred in denying the Appellant’s request for 

a jury instruction outlining the Commonwealth’s evidentiary 

burden of proving the Appellant’s actions were voluntary and not 

the result of a seizure?

2. Whether Court erred in determining the guilty verdicts were 

supported by sufficient evidence when the Commonwealth failed 

to prove the Appellant possessed the requisite mens rea for 

criminal conduct?

3 Whether the Court erred in determining the jury’s verdicts were 

supported by the weight of the evidence when the Commonwealth 

failed to conclusively prove the Appellant’s actions were 

voluntary?

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9 We note the vagueness of Appellant’s Rule 1925(b) issues, which merely 

refer to “the jury’s verdicts in this matter.” See Appellant’s Concise Statement 

of Errors Complained of on Appeal. Appellant was found guilty by the jury of 

three counts of aggravated assault by motor vehicle, and one count each of 

simple assault and REAP; he was also found guilty by the trial court of seven 

Vehicle Code violations. We remind Appellant’s counsel that such deficiencies 

may result in waiver:

In order to preserve a challenge to the sufficiency of the evidence 

on appeal, an appellant’s Rule 1925(b) statement must state with 

specificity the element or elements upon which the appellant 

alleges that the evidence was insufficient. “Such specificity is of 

particular importance in cases where, as here, the appellant was 

convicted of multiple crimes each of which contains numerous 

elements that the Commonwealth must prove beyond a 

reasonable doubt.” Here, as is evident, [the a]ppellant not only 

failed to specify which elements he was challenging in his Rule 

1925(b) statement, he also failed to specify which conviction he 

was challenging. Thus, we find [the a]ppellant’s sufficiency claim 

waived on this basis.

See Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) 

(citations omitted).
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Appellant’s Brief at 3.

In his first issue, Appellant avers the trial court erred in denying his 

request for a jury instruction that the Commonwealth bore the burden of 

showing his actions were voluntary and were not the result of a seizure. 

Appellant relies on Commonwealth v. Fierst, 620 A.2d 1196 (Pa. Super. 

1993), which addressed a claim “that trial counsel was ineffective for failing 

to request a jury charge that [the defendant] could not be liable for third 

degree murder and aggravated assault[, arising from the defendant’s 

swerving his car into incoming traffic,] because his involuntary actions would 

not suffice to prove malice.” See Fierst, 620 A.2d at 1205. In Fierst, police 

responding to the scene noticed the defendant “seemed to be suffering from 

a seizure.” Id. at 1199. Appellant summarizes Fierst to hold an involuntaryaction “instruction is appropriate when an involuntariness defense is raised 

due to a seizure event.” Appellant’s Brief at 11. Appellant also relies on 

Rehaif v. United States, 139 S.Ct. 2191 (2019), which he summarizes to 

hold “the word ‘knowingly[,]’ in the context of the knowing possession and 

prohibition from possessing a firearm,” to be “comprehensive, applying to 

each element of the offense.” Appellant’s Brief at 12. Appellant extrapolates 

from Rehaif the principle that “it remains the Commonwealth’s burden to 

prove scienter, even if that means disproving that the Defendant in this 

matter had a seizure.” Id. at 13. Finally, Appellant analogizes the 
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Commonwealth’s alleged burden in this case, to disprove he had a seizure, to 

the Commonwealth’s burden to disprove a claim of self-defense. Id.

We conclude Appellant has waived this issue. First, although he 

requested the jury instruction, Appellant failed to object to the jury charges 

that were given. See Pa.R.Crim.P. 647(C) (“No portions of the charge nor 

omissions from the charge may be assigned as error, unless specific objections 

are made thereto before the jury retires to deliberate. All such objections 

shall be made beyond the hearing of the jury.”); Commonwealth v. Knight, 

241 A.3d 620, 634 (Pa. 2020) (appellant did not challenge the trial court’s 

jury instructions before the jury retired to deliberate, and thus waived this 

challenge). Furthermore, Appellant did not include this issue in his courtordered Rule 1925(b) statement. See Pa. R.A.P. 1925(b)(4)(vii) (“Issues not 

included in the Statement . . . are waived.”); Knight, 241 A.3d at 634 (“[I]n 

order to preserve a claim for appellate review, an appellant must comply 

whenever the trial court orders him to file a Statement of Matters Complained 

of on Appeal pursuant to Pa.R.A.P. 1925, and any issue not raised in a 1925(b) 

statement will be deemed waived.”).

Moreover, even if Appellant had not waived this issue, no relief would 

be due. The trial court distinguished Fierst, which specifically addressed the 

mens rea element of malice, with respect to third-degree murder and 

aggravated assault. Trial Ct. Op. at 3. Appellant’s offenses — aggravated 

assault by motor vehicle, simple assault, and REAP — however, include the 
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relevant element of recklessness. Id.; see 18 Pa.C.S. §§ 2701(a)(1), 2705; 

75 Pa.C.S. § 3732.1(a). The court also distinguished Rehaif, whose 

“discussion and ruling [were] particular to the statutory language at issue in 

that case and resolving whether the presumption-in-favor-of-scienter

interpretive maximum applied. This is inapplicable in the present matter.” 

Trial Ct. Op. at 4. On appeal, Appellant fails to address the court’s reasoning, 

let alone explain why it was in error. Instead, Appellant merely reasserts the 

same claims already disposed of by the trial court. Accordingly, no relief would 

be due.

Appellant’s second claim is that evidence was insufficient to establish 

aggravated assault by motor vehicle and REAP, “as the Commonwealth failed 

to prove [he] possessed the requisite mens rea.” Appellant’s Brief at 15. He 

states, “[T]he alleged instance here, an epileptic seizure while driving and an 

ensuing accident is a classic law school textbook example to distinguish cases 

in which there is no criminal culpability[.]” Id. at 16. Appellant contends:

The Commonwealth’s evidence, that [he] drove . . . at a high rate 

of speed recklessly or intentionally into the [victims’s] vehicle

without apparent braking or distraction, when balanced against 

the more plausible theory — that . . . Appellant suffered a novel 

medical event, namely a seizure — cannot meet even the low bar 

of sufficiency for conviction beyond a reasonable doubt.

Id. at 18-19. Appellant reiterates the Commonwealth’s burden to “prove the 

voluntariness of [his] actions” included the burden to disprove he had a 

seizure at the time of the accident. Id. at 20.
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Appellant’s final claim is that the jury’s verdict was against the weight 

of the evidence. In support, he argues:

[T]he grievous injuries suffered by the [victims] were not the 

result of his choice. . . . Appellant did not know he would lose 

consciousness on May 8, 2016, causing irreversible debilitation to 

the [victims.] Indeed, he was given no more choice to control his 

vehicle as the [victims] were to avoid the ensuing horror.

Appellant’s Brief at 23. No relief is due.

Appellant conflates the ideas of sufficiency and weight of the evidence. 

Despite his characterizing his second issue as a challenge to the sufficiency of 

the evidence, his supporting discussion goes to the weight of the evidence. 

See Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003) (“A 

motion for new trial on the grounds that the verdict is contrary to the weight 

of the evidence, concedes that there is sufficient evidence to sustain the 

verdict.”). Appellant acknowledges “[t]he Commonwealth’s evidence[ ] that 

[he] drove his vehicle at a high rate of speed recklessly or intentionally into 

the [victims’] vehicle,” but maintains “the more plausible theory” is that he 

suffered from a seizure.” Appellant’s Brief at 18-19. 

We note the relevant standard of review:

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 substitute its 

judgment for that of the finder of fact. Thus, we may 

only reverse the . . . verdict if it is so contrary to the 

evidence as to shock one’s sense of justice.

Moreover, where the trial court has ruled on the weight claim 

below, an appellate court’s role is not to consider the underlying 
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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. Orr, 38 A.3d 868, 873 (Pa. Super. 2011) (en banc)

(citations omitted).

The offense of aggravated assault by motor vehicle is defined as follows:

Any person who recklessly or with gross negligence causes serious 

bodily injury to another person while engaged in the violation of 

any law of this Commonwealth or municipal ordinance applying to 

the operation or use of a vehicle or to the regulation of traffic, 

except section 3802 (relating to driving under influence of alcohol 

or controlled substance), is guilty of aggravated assault by 

vehicle, a felony of the third degree when the violation is the cause 

of the injury.

75 Pa.C.S. § § 3732.1(a). REAP is defined, in pertinent part, as follows: “A 

person commits a misdemeanor of the second degree 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.

The trial court addressed Appellant’s issue as follows:

On approach to the accident scene, [Appellant’s] engine was 

redlining, he was travelling approximately 71 miles per hour, he 

quickly switched lanes twice, passing and nearly striking Joni 

Allison’s vehicle, before accelerating through the collision with the 

[victim’s] Elantra without ever braking. . . .

To be sure, the evidence presented could have supported a 

finding that [Appellant’s] conduct was involuntary. That question, 

however, is not before the Court. As presented to the jury, the 

evidence was certainly sufficient to support a conclusion that 

[Appellant] suffered a concussion during the accident which 

caused the symptoms that followed. In the court’s view, the jury’s 

verdict does not represent a denial of justice against the weight 

of the evidence presented at trial, but instead the jury’s 
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considered judgment following a clear and thorough presentation 

of the facts and voluntariness issue.

Trial Ct. Op. at 4-5. The court also reasoned Appellant’s ‘involuntariness was 

before the jury for consideration as [the jury] was instructed[:] ‘A person is 

not guilty of an offense unless his liability is based on conduct which includes 

a voluntary act or the omission to perform an act of which is physically 

capable.’” Id. at 4. “Having received this instruction and the question of 

[Appellant’s] voluntariness being clearly made the critical issue of trial by the 

parties’ presentation of the evidence and arguments, the Court believes the 

jury’s deliberations were well guided.” Id. at 5.

Again, Appellant does not address the trial court’s discussion nor present 

any claim of trial court error. Instead, he merely re-iterates the same 

argument presented to the jury at trial — that the jury should accept his 

theory of the case over the Commonwealth’s theory. Appellant’s request for 

relief would have this Court reweigh the evidence in his favor and supplant 

the jury’s findings of fact with our own. This we cannot do. See Orr, 38 A.3d 

at 873. The jury was free to believe all, part, or none of the Commonwealth’s 

evidence and Appellant’s own testimony. See id. Thus, we decline to disturb 

the trial court’s denial of his post-sentence motion.

Concluding none of Appellant’s issues merit relief, we affirm the 

judgment of sentence.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/26/2021