*1 McEWEN, Judge, and President Before POPOVICH, KELLY, SOLE, FORD DEL MUSMANNO, JOYCE, ORIE ELLIOTT, SCHILLER, JJ. MELVIN and JOYCE, J.: judgment appeal from post- sentence, by the denial of final made motions,1 Appellant, after entered aggra- assault,3 recklessly assault,2 en- simple vated driving un- person4 and dangering another (DUI).5 For the of alcohol the influence der below, part, we affirm in forth reasons set and remand for part reverse in of Appellant’s merits Chamberlain, 2702(a)(1). 1.See Commonwealth v. § Pa.Su 2. 18 Pa.C.S.A. per. (1995), appeal quashed, 2701(a)(1). Pa.C.S.A.§ 3. 18 (provid Pa.R.Crim.P. 1410 and comment thereto ing sentence becomes final for 4. 18 purposes disposes when the trial court post-sentencing motion). defendant’s 3731(a)(1). 5. 75 Pa.C.S.A.
claims, pertinent Appellant we will recount the The trial court sentenced to five (5/t) (15) underlying years this and one-half to fifteen regard imprisonment ag- with each of his During evening August hours of convictions; gravated assault these sentences (16) year Cynthia sixteen old Harrison concurrently. were to run He directed also passenger sat the front seat a 1988 (1) an received additional sentence one by father, boyfriend’s Camaro owned her (2) years Appel- two for DUI conviction. Joseph Fiscaro. eighteen Ms. Harrison’s timely post-sentencing lant filed motions (18) niece, Nina, old month sat on Ms. Harri- by Appel- which were denied the trial court. lap. parked son’s The Camaro was in the timely appealed8 presents lant the fol- parking lane Mr. outside of Fiscaro’s busi- (1) lowing issues review: whether the ness. Appel- evidence was sufficient to show requisite lant had the mens rea to sustain his As stepped Mr. Fiscaro and his son out- assault; (2) convictions for side, they a noticed truck black whether the court abused its dis- parking lane at a inwell excess of by failing Appellant cretion to credit for the posted thirty-five limit of miles time served under house arrest trial. truck, hour. The by Ap- which was driven pellant, Camaro, collided with the became addressing the merits of these is airborne, on Toyota Camry landed a that was sues, three-judge panel we note that a of this parked Camaro, in front of flipped initially a authored memorandum that finally landed on its roof. Police and Appellant’s aggravated reversed assault con personnel medical were thereafter sum- Dellavecchia, victions. Commonwealth v. moned scene. Philadelphia (Pa.Super. filed memorandum). 9, 1997) (unpublished October transported The victims hospi- were The Commonwealth filed a petition rear- tal investigating police The treatment.6 gument peti before the court en banc. officer detected an odor of emanating granted. Accordingly, panel’s tion was Consequently, Ap- breath. prior disposition was withdrawn and the mat pellant was transported arrested and ter reargued was before the court en banc. police Testing station. Appel- revealed opinion affirming We issued lant had a blood-alcohol content .194%.As of sentence. result, a charged he was with of- various Philadelphia (Pa.Super. No. 926 filed arising fenses out of this incident. banc). (en 31, 1998) days Dec. Within
Appellant initially pled guilty filing crimes of our en banc November, later was Court announced its decision Common permitted plea. withdraw his (1998). right by
waived his
a jury.
be tried
Fol-
dispositive,
Because Comer is
lowing
August
in May
bench trial held
withdrew our en banc
and direct
1995,Appellant
was
parties
supplemental
ed
to file
briefs
offenses.7
have
Comer. Briefs
now been
Although
judge
6.Nina was
Appel-
rendered unconscious and had
the trial
also convicted
stopped breathing as a result of the collision.
possession
lant
offense of
an instrument
police
Due to the fortuitous arrival of a former
crime,
907, judgment
18 Pa.C.S.A.
on this
performed cardiopulmonary
officer who
resusci-
sponte.
conviction was vacated
court
sua
tation, the child was revived. The record does
any
not indicate that the child suffered
further
trial,
represented during
was
sen-
Harrison, however,
injury. Ms.
was
so fortu-
tencing
post-sentencing proceedings by pri-
nate and sustained a broken
neck
crash.
counsel,
Lyons, Esquire. Attorney
vate
result,
required
painful
aAs
she was
to wear a
Lyons
permitted
Although Ap-
was
to withdraw.
immobilizing
device called
“halo”
was
se,
appeal pro
bolted to her skull.
vice
commenced this
new coun-
Ms. Harrison wore the de-
(3ii)
Jr.,
sel,
Brown,
Esquire,
appointed
for three
to three and one-half
healed,
Although
injuries
months.
her
had
she
represent Appellant.
experience pain
continued to
and weakness in
her back and neck at the time of trial.
i.e.,
ity,
which considers and then
ripe
matter is
for resolu-
necessarily posed
disregards
tion.
the threat
offending
human life
conduct.
initially challenges the
There must be
element of deliberation
*3
sufficiency
aggravated
of the
evidence
pres-
danger not
disregard
or
of
conscious
as it relates to the mens rea
assault insofar
in, e.g.,
to
same extent
reckless
ent
the
element.
driving
endangerment..
while intoxi-
.or
determining
the
In
whether
Common-
degree
cated.
...
the
of reckless-
[F]or
proof,
has
its
of
the test
wealth
met
burden
aggravated
assault
ness contained
[w]hether,
applied
viewing the
is:
be
occur,
must
statute to
the offensive act
be
light
evidence in the
most favorable
under
which al-
performed
circumstances
Commonwealth,
drawing
all reason-
injury
or
will en-
most assure
death
able inferences favorable
Common-
therefore,
must,
The recklessness
be
sue.
wealth,
to find
there is sufficient evidence
threatening injury
life
is essen-
such that
beyond
every
of the
a rea-
element
crime
tially
of mind
certain to occur.
may
doubt.
Commonwealth
sonable
is, accordingly, equivalent
that which
every
proving
its
of
ele-
sustain
burden
injury.
seeks to cause
beyond a
ment of the crime
reasonable
527, 532,
v.
552 Pa.
Commonwealth
wholly
of
circumstantial
doubt
means
593,
(quoting
716 A.2d
596
Common-
applying
evidence.
478, 482,
O’Hanlon,
539
653
test, the
trial
must
evalu-
entire
record
be
(1995)).10
616,
A.2d
618
actually
ated and all evidence
Finally,
trier of
must be considered.
the
Pursuant
to Commonwealth
Com
credibility
the
of
passing
fact while
er,
to conclude that the
we are constrained
weight
witnesses and the
of the evidence
here is
to establish the
evidence
insufficient
all, part
or
produced,
is free
believe
Appel
element needed to sustain
rea
none of
evidence.
aggravated
In
lant’s convictions
388,
Valette,
384,
531 Pa.
ingested alcohol
the defendant
(1992)(citations
548,
quota-
613 A.2d
549
or
relaxants” while at
“downers”
“muscle
omitted).
tion marks
We shall consider
530,
tending
party.
552 Pa. at
arguments in
pellant’s
accordance with
companion
A.2d at
The defendant and a
standard.
go
party
and decided
another
left
aggravated
the crime of
person
A
commits
defendant,
Id. The
who drove
bar.
bodily
attempts
if he
to cause serious
assault
speed,
caused his vehicle to
excessive rate
injury
injury inten-
to another or causes such
roadway
and crash into a bus stand.
leave
recklessly
knowingly
cir-
tionally,
or
related that Comer’s vehicle
Id. Witnesses
manifesting
indifference
cumstances
extreme
cut off
as
“out
control” and
other cars
value
human life.
thoroughfare.
busy
sped along a
urban
2702(a)(1).9
rea
construing
the mens
Id.,
716 A.2d at
recklessness,
Supreme
our
Court
element
fact,
drove at such
595 and 600.
Comer
repeatedly held:
light pole
strike the
velocity
to sever a
crashing
stop
pedestrians before
into
sup-
bus
recklessness is insufficient
[M]ere
Id.,
assault,
716 A.2d
552 Pa.
a brick wall.
port
aggravated
a conviction
Testing revealed
the defendant
requires
higher degree
culpabil-
aggravated
(defining
crime
in 1995 and 1996.
C.S.A. 3735.1
9. The statute was amended
DUI).
pertained
portions to other
The amendments
vehicle while
assault
applicable
23,
addi-
are not
hére.
the statute and
tion,
go
April
into effect until
statute did not
or
elements of intentional
the mens rea
21,
8,
February
§9
P.L.
Act of
See
Accordingly,
knowing conduct are not at issue.
sixty
effective in
(providing that
act was
on
element
we will focus our attention
days).
crime occurred
instant
recklessness.
date,
statute does not affect
to the effective
disposition and will not be further addressed.
may
superseded
be
Comer and O’Hanlon
legislature’s
light
of 75
enactment
Id.,
had a
552 of
blood-alcohol content
sentence on
convic-
resentencing
tions and remand for
thereon.12
Ward,
48, 52,
See Commonwealth v.
challenged
sufficiency
The defendant
(1990) (where
appel-
relating
of the evidence
to the mens rea
late court
determines
a sentence
ille-
element
Id. Our
gal
improper,
or
proper
otherwise
reme-
that while the
determined
defendant’s con-
dy is to vacate the sentence and remand the
criminally reprehensible,
evi-
duct was
trial
matter
court for
dence was insufficient to establish that he
appellate disposition).
accordance with the
possessed the
state of mind
that which seeks to cause
of sentence for
as-
*4