Case Information
*1 J-S70009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA Appellee :
:
v. :
:
KELLY FISHER :
:
Appellant : No. 258 MDA 2017 Appeal from the Judgment of Sentence January 17, 2017 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0006436-2015 BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 28, 2017
Appellant, Kelly Fisher, appeals from the judgment of sentence entered in the Dauphin County Court of Common Pleas, following her bench trial convictions of two counts of recklessly endangering another person (“REAP”), one count each of disorderly conduct, defiant trespass, criminal mischief, and careless driving. 1 We affirm.
The relevant facts and procedural history of this case are as follows. On August 26, 2015, Appellant went to her ex-boyfriend’s mother’s house to pick up Appellant’s teenage son, whose father is Appellant’s ex-boyfriend “Victim.” Their son had been suspended from school the day before for ____________________________________________
1 18 Pa.C.S.A. §§ 2705, 5503(a)(1), 3503(b)(1)(i) and (2), 3304(a)(5) and (b), 75 Pa.C.S.A. § 3714(a), respectively
J-S70009-17
stealing a Gatorade from the school’s cafeteria. Appellant made arrangements with Victim to pick up their son on the day in question. Appellant entered the home, and Victim began recording events on his cell phone. A commotion took place between Appellant and Victim’s mother inside the home which led Victim’s mother to call the police and ask Appellant to leave. Appellant exited the home with the help of her son and proceeded to damage and spit on Victim mother’s car. Victim and Victim’s sister exited the home to video record Appellant outside the home. Appellant entered her vehicle, made a right turn, and struck Victim and Victim’s sister. Victim’s sister folded onto the hood of Appellant’s car and rolled off to the side. Appellant struck Victim with the front right tire causing abrasions to his right leg. Appellant struck Victim for a second time in the upper arm area causing chest pain, which lasted a week. Appellant and her son then drove away.
On December 9, 2016, the court found Appellant guilty of two counts of REAP, one count each of disorderly conduct, defiant trespass, criminal mischief, and careless driving. The court sentenced Appellant on January 17, 2017, to 12 months’ probation and ordered her to pay a fine of $450.00. Appellant timely filed a notice of appeal on February 1, 2017. On February 8, 2017, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on February 24, 2017.
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Appellant raises the following issues for our review: WHETHER THE EVIDENCE PRESENTED AT APPELLANT’S BENCH TRIAL WAS INSUFFICIENT TO PROVE THE CHARGE OF RECKLESSLY ENDANGERING ANOTHER PERSON WHERE THE COMMONWEALTH FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT APPELLANT RECKLESSLY ENGAGED IN CONDUCT WHICH PLACED OR MAY HAVE PLACED [VICTIMS] IN DANGER OF DEATH OR SERIOUS BODILY INJURY WHEN SHE PULLED HER CAR AWAY FROM THE CURB?
(Appellant’s Brief at 10).
When examining a challenge to the sufficiency of the evidence our standard of review is as follows:
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 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.
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2003)).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Richard A. Lewis, P.J., we conclude Appellant’s issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed March 27, 2017, at 3-5) (finding Appellant made conscious decision to steer her car toward Victims and strike them; Appellant had means necessary to prevent this situation by putting her car in reverse to avoid Victims; instead, Appellant chose to drive into Victims; considering events which led up to this incident, in which Appellant had exited residence visibly angered, spat on multiple vehicles and damaged her ex-boyfriend’s mother’s car, record showed Appellant’s intent to escalate incident; Appellant’s conduct placed Victims in great danger; Appellant further demonstrated her willingness to commit this act by hitting one Victim twice with her vehicle; reasonable person in Appellant’s situation would have realized danger vehicle presented when used as weapon; Appellant’s proffered defense of provocation is meritless; Commonwealth presented sufficient evidence to sustain REAP convictions). Accordingly, we affirm on the basis of the court opinion.
Judgment of sentence affirmed.
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J-S70009-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2017
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Circulated 11/01/2017 10:43 AM : IN THE COURT OF COMMON PLEAS COMMONWEALTH OF PENNSYLVANIA
: DAUPHIN COUNTY, PENNSYLVANIA v.
: NO. 6436 CR 2015 (258 MDA 2017) KELLY E. FISHER : CRIMINAL ACTION (APPEAL)
MEMORANDUM OPINION Appellant, Kelly Fisher ("Appellant" or "Fisher") appeals this Court's judgment of sentence entered January 17, 2017. This opinion is written pursuant Pa.R.A.P. 1925(a).
PROCEDURAL HISTORY At Dauphin County Docket Number 6436 CR 2015, following bench trial concluding on December 19, 2016, Kelly Fisher was found guilty of two counts of recklessly endangering another person', one count each disorderly conduct, defiant trespass3, criminal mischief, and careless driving.' On January 17, 2017, Appellant was sentenced 12 months probation and a fine of $450. The Appellant was found not guilty two counts of aggravated assault6 and one count terroristic threats.?
A timely notice appeal was filed on February 1, In compliance with this Court's February 2017 Order, Concise Statement Errors Complained Appeal Pursuant to
18 Pa.C.S.A. § 2705.
[2] 18 Pa,C.S.A. § 5503-(a)(1).
[3] 18 Pa.C.S.A. § 3503(b)(1)(i) (2).
[4] 18 Pa.C.S.A. § 3304(a)(5) (b)
[5] 75 Pa.C.S.A. § 3714-A.
[6] 18 Pa.C.S.A. § 2702-A4.
718 Pa.C.S.A. § 2706(a)(1).
;.3 *7 Appellate Rule Procedure 1925(b) (Concise Statement) was filed raising the following issue for review:
1. There was insufficient evidence presented during appellant's bench trial on the charges Recklessly Endangering Another Person (2), where the Commonwealth failed to establish beyond a reasonable doubt that the appellant recklessly engaged in conduct which placed or may have placed another person in danger death or serious bodily injury. Specifically, the Commonwealth failed to establish that appellant's actions placed Shanita Little or Alexander Little in danger death or serious bodily injury when she pulled her car away from the curbs
FACTUAL BACKGROUND The testimony at trial revealed that August 26, 2015, the conflict between the parties occurred. Transcript Proceedings, Bench Trial, Page December 9, 2016 (hereinafter "N.T. at .2). Alexander Little's (hereinafter "Victim") son had been suspended at school the day prior for stealing a Gatorade at the school's cafeteria.9 N.T. at 9. The Victim discussed punishment with his son, which ultimately led an argument where the Victim's parents arrived defuse the situation. N.T. at 11. The Victim then received a phone call from his sister ("Shanita Little") who was at Cynthia Little's home.3° This phone call revealed that caseworker from Children and Youth was at the mother's home on a reported child abuse claim from an anonymous tip. N.T. at 15. The Appellant had made arrangements pick her son up at Cynthia Little's house on the day in question." N.T. at 16.
At some point, Appellant enters house Victim begins recording the events on his cell phone. N.T. There was commotion that took place between Cynthia Little and the living room resulting in Cynthia Little calling the police and requesting B Concise Statement, paragraph 1.
[9] Son at the time the incident was 16 years of age junior high school.
[10] Cynthia Little is mother victim.
[11] Appellant the victim have son together.
Appellant to leave. N.T. at 22, 23. With the help of the Victim and Appellant's son, the Appellant exited the home proceeded to damage Cynthia Little's car and spit on the Victim's car. N.T. at 22, 143. At this time, both the Victim Shanita Little go outside to begin recording the Appellant and her actions. N.T. at 25. At this time, the son attempts to step between the Appellant and the Victim as they engaged in a verbal argument. N.T. at 25-27.
The Appellant proceeded to re-enter her vehicle, made right turn, and struck both the Victim and Shanita Little. N.T. at 111. Shanita Little, an individual with dialysis, was struck and "folded onto the hood the car" then rolled off the side. N.T. at 113. The Victim was struck on his right leg causing abrasions by front right tire the Appellant's car. N.T. at 29, 41. The also struck Victim second time in the upper arm area causing chest pain lasting a week. N.T. The Appellant began yelling at witnesses to mind their own business and also her son, "get your shit, lets go!" N.T. at 38. At this time, Appellant and her son left the scene. Police officers and EMS arrived at the scene look over both the Victim and Shanita Little. N.T. at 39, 40. The Appellant's argument was based off no alternative way drive the vehicle and that she was provoked by the Victim and Shanita Little.
DISCUSSION
For reasons set forth below, this Court finds that Appellant's judgment of sentence should stand.
Appellant's challenge is that there was insufficient evidence presented during the bench trial on the charges Recklessly Endangering Another Person. The standard review, as indicated by the Pennsylvania Supreme Court, when an appellant challenges the sufficiency evidence is well settled:
The applicable standard of review for challenges to the sufficiency of evidence must be determined "whether viewing all the evidence trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, there exists sufficient evidence to enable the trier of fact to find every element of the crime proved beyond a reasonable doubt. Commonwealth v. Santiago, 382 A.2d 1200, 1201 (1978). "Both direction and circumstantial can be the sufficiency of the evidence." considered equally when assessing Commonwealth v. Hughes, 555 A.2d 1264, 1267 (1989).
Commonwealth v. French, 578 A.2d 1294 (1990).
The Pennsylvania Criminal Code defines Recklessly Endangering Another Person (Hereinafter REAP) "if he recklessly engages in conduct which places or may place another person in danger death or serious bodily injury." 18 Pa.C.S.A. § "Thus, the crime requires (1) a mens rea recklessness, (2) an actus reus some 'conduct,' (3) causation 'which places,' and (4) the achievement a particular result 'danger,' to another person, death or serious bodily injury." Commonwealth v. Trowbridge, 395 A.2d 1337, 1340 (Pa. Super. 1978). "Recklessly" is defined as follows:
A person acts recklessly with respect to a material element an offense when he consciously disregards a substantial unjustifiable risk that the material element exists or will result from his conduct. The risk must be such a nature degree that, considering the nature and intent the actor's conduct circumstances known to him, its disregard involves gross deviation from the standard conduct that a reasonable person would observe in actor's situation.
18 Pa.C.S.A. § 302(6)(3).
The evidence shows that did recklessly endanger another person both counts. The Appellant made conscious decision to steer her car towards both victims in right handed turn striking both individuals in process. She had means necessary to prevent situation by putting the car reverse avoid pedestrians all together, but instead chose drive towards both victims in motor vehicle. Considering the events that led up these circumstances, which the Appellant exited the home visibly angered, spit on multiple vehicles and damaged *10 Cynthia Little's car demonstrates tendency to escalate the incident. Her conduct is evident through the injuries sustained to victims, which placed both great danger at the time. The Appellant further demonstrated her willingness commit such an act by hitting Victim a second time with her vehicle. A reasonable person in the Appellant's situation would have realized the danger that a vehicle can present when used as weapon against other humans.
The Appellant's only defense was the nature both Victims surrounding the vehicle with their cell phones in her face recording situation provoking into action. This defense is meritless because the Appellant put others in danger by driving car intentionally at both the Victim Shanita Little. The Appellant could have put the car reverse avoided the entire situation. Instead she drove towards the Victim and his sister with the vehicle. After review the bench trial record, the elements REAP are met based on the sufficiency evidence and there is enough evidence for the conclusion be made that all elements were met beyond reasonable doubt as was found here.
For the foregoing reasons, it is believed t Appellant' c error is without merit. RICHARD A. LEWIS, PRESIDENT JUDGE Memorandum date:
March , 2017
DISTRIBUTION:
Christopher Jason, Esq., Dauphin Co. District Attorney's Office
Kelly Fisher, Defendant
Paul W. Muller, Esq., Public Defender's Office
Pennsylvania Superior Court Prothonotary eati,frine--- Court Administration - Criminal Division
Clerk Courts FILE - President Judge Richard A. Lewis
ORIGINAL : IN THE COURT OF COMMON PLEAS COMMONWEALTH OF PENNSYLVANIA
: DAUPHIN COUNTY, PENNSYLVANIA v.
: NO. 6436 CR 2015 (258 MDA 2017) : CRIMINAL ACTION (APPEAL) KELLY E. FISHER MEMORANDUM OPINION Appellant, Kelly Fisher ("Appellant" or "Fisher") appeals this Court's judgment of sentence entered January 17, 2017. This opinion is written pursuant Pa.R.A.P. 1925(a).
PROCEDURAL HISTORY At Dauphin County Docket Number 6436 CR 2015, following a bench trial concluding on December 19, 2016, Appellant Kelly Fisher was found guilty two counts of recklessly endangering another person, and one count of each disorderly conduct2, defiant trespass3, criminal mischief, and careless driving.' On January 17, 2017, Appellant was sentenced 12 months probation and fine $450. The was found not guilty two counts of aggravated assault6 and one count terroristic threats.'
A timely notice appeal was filed on February 1, In compliance with this Court's February 2017 Order, Concise Statement Errors Complained Appeal Pursuant to 118 Pa.C.S.A. § 2705.
218 Pa.C.S.A. § 5503-(a)(1).
318 Pa.C.S.A. § 3503(b)(1)(i) (2). [4] 18 Pa.C.S.A. § 3304(a)(5) (b).
[5] 75 Pa.C.S.A. § 3714-A.
[6] [18] Pa.C.S.A. § 2702-A4.
718 Pa.C.S.A. § 2706(a)(1), *12 Appellate Rule of Procedure 1925(b) (Concise Statement) was filed raising the following issue for review:
1. There was insufficient evidence presented during appellant's bench trial on the charges Recklessly Endangering Another Person (2), where Commonwealth failed establish beyond a reasonable doubt that the appellant recklessly engaged in conduct which placed or may have placed another person in danger death or serious bodily injury. Specifically, the Commonwealth failed to establish that appellant's actions placed Shanita Little or Alexander Little danger death or serious bodily injury when she pulled her car away from the curb.9
FACTUAL BACKGROUND The testimony at trial revealed that August 26, 2015, the conflict between the parties occurred. Transcript Proceedings, Bench Trial, Page 11, December 2016 (hereinafter "N.T. at .2). Alexander Little's (hereinafter "Victim") son had been suspended at school day prior for stealing a Gatorade at the school's cafeteria.9 N.T. at 9. The Victim discussed punishment with his son, which ultimately led an argument where the Victim's parents arrived defuse the situation. N.T. 11. The Victim then received phone call from his sister ("Shanita Little") who was at Cynthia Little's home.19 This phone call revealed that caseworker from Children and Youth was at the mother's home on a reported child abuse claim from an anonymous tip. N.T. at 15. The Appellant had made arrangements to pick her son up at Cynthia Little's house on the day in question." N.T. at 16,
At some point, Appellant enters the house and the Victim begins recording events on his cell phone. N.T. at There was commotion that took place between Cynthia Little and the in the living room resulting Cynthia Little calling police requesting the [8] Concise Statement, paragraph 1.
[9] Son at the time the incident was 16 years age and a junior in high school.
[10] Cynthia Little is mother the victim.
ll Appellant and victim have son together. *13 Appellant to leave. N.T. at 23. With the help of the Victim and Appellant's son, the Appellant exited the home and proceeded to damage Cynthia Little's car and spit on the Victim's car. N.T. at 22, 143, At this time, both the Victim and Shanita Little go outside to begin recording the and her actions. N.T. at 25. At this time, the son attempts to step between the Appellant and the Victim as they engaged in a verbal argument. N.T. at 25-27.
The Appellant proceeded re-enter her vehicle, made right turn, and struck both the Victim and Shanita Little. N.T. at 111. Shanita Little, an individual with dialysis, was struck and "folded onto the hood the car" then rolled off side. N.T. at 113. The Victim was struck on his right leg causing abrasions by the front right tire the Appellant's car. N.T. at 29, 41. The Appellant also struck the Victim second time upper arm area causing chest pain lasting a week. N.T. at 31. The Appellant began yelling at witnesses to mind their own business and also to her son, "get your shit, lets go!" N.T. at 38. At this time, Appellant and her son left the scene. Police officers and EMS arrived at scene look over both the Victim Shanita Little. N.T. 39, The Appellant's argument was based off no alternative way drive the vehicle and that she was provoked by the Victim Shanita Little.
DISCUSSION
For the reasons set forth below, this Court finds that Appellant's judgment sentence should stand.
Appellant's challenge is that there was insufficient evidence presented during the bench trial the charges Recklessly Endangering Another Person. The standard of review, as indicated by the Pennsylvania Supreme Court, when an appellant challenges sufficiency evidence is well settled:
The applicable standard of review for challenges to the sufficiency of evidence must be determined "whether viewing all the evidence trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, there exists sufficient evidence to enable the trier of fact to find every element of the crime proved beyond a reasonable doubt. Commonwealth v. Santiago, 382 A.2d 1201 (1978). "Both direction and circumstantial can be the sufficiency of the evidence." considered equally when assessing Commonwealth v. Hughes, 555 A.2d 1264, 1267 (1989).
Commonwealth v. French, 578 A.2d 1292, 1294 (1990).
The Pennsylvania Criminal Code defines Recklessly Endangering Another Person (Hereinafter REAP) "if he recklessly engages in conduct which places or may place another person in danger death or serious bodily injury." 18 Pa.C.S.A. § "Thus, the crime requires (1) a mens rea recklessness, (2) an actus reus some 'conduct,' (3) causation 'which places,' and (4) achievement a particular result 'danger,' to another person, death or serious bodily injury." Commonwealth v. Trowbridge, 395 A.2d 1337, 1340 (Pa. Super. 1978). "Recklessly" is defined as follows:
A person acts recklessly with respect a material element an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be such nature degree that, considering the nature and intent actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard conduct that a reasonable person would observe in actor's situation.
18 Pa.C.S.A. § 302(b)(3).
The evidence shows that the Appellant did recklessly endanger another person on both counts. The Appellant made the conscious decision steer her car towards both victims in right handed turn striking both individuals in the process. She had means necessary prevent situation by putting the car in reverse to avoid pedestrians all together, but instead chose to drive towards both victims motor vehicle. Considering the events that led up to these circumstances, which the Appellant exited the home visibly angered, spit multiple vehicles damaged *15 Cynthia Little's car demonstrates a tendency escalate the incident. Her conduct is evident through injuries sustained to the victims, which placed both great danger the time. The Appellant further demonstrated her willingness commit such an act by hitting the Victim a second time with her vehicle. A reasonable person in Appellant's situation would have realized the danger that vehicle can present when used as weapon against other humans.
The Appellant's only defense was the nature both Victims surrounding the vehicle with their cell phones in her face recording the situation and provoking the Appellant into action. This defense is meritless because the put others in danger by driving the car intentionally at both the Victim Shanita Little. The Appellant could have put the car reverse avoided entire situation. Instead she drove towards Victim and his sister with the vehicle. After review the bench trial record, elements REAP are met based on the sufficiency evidence and there is enough evidence for the conclusion to be made that all elements were met beyond reasonable doubt as was found here. error is without merit.
For the foregoing reasons, it is believed that Appellant's RICHARD A. LEWIS, PRESIDENT JUDGE Memorandum date:
March ,2017 ) C Kelly Fisher, Defendant a DISTRIBUTION: Christopher Jason, Esq., Dauphin Co. District Attorney's Officef8 IN)
Paul W. Muller, Esq., Public Defender's Officea,0 Pennsylvania Superior Court Prothonotary ima, fritb- Court Administration - Criminal Division .2.4.
Clerk Courts FILE - President Judge Richard A. Lewisfg