Com. v. Fisher, K.

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

-2- J-S70009-17

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.

-3- J-S70009-17

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.

-4- J-S70009-17

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/28/2017

-5- Circulated 11/01/2017 10:43 AM

COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS

: 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 to 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 of two counts of recklessly

endangering another person', and one count of each disorderly conduct, defiant trespass3, criminal

mischief, and careless driving.' On January 17, 2017, Appellant was sentenced to 12 months

probation and a fine of $450. The Appellant was found not guilty of two counts of aggravated

assault6 and one count of terroristic threats.?

A timely notice of appeal was filed on February 1, 2017. In compliance with this Court's

February 8, 2017 Order, a Concise Statement of Errors Complained of on Appeal Pursuant to

Pa.C.S.A. 18 § 2705. 2 Pa,C.S.A. 18 § 5503-(a)(1). 3 Pa.C.S.A. 18 § 3503(b)(1)(i) and (2). 4 Pa.C.S.A. 18 § 3304(a)(5) and (b) 5 Pa.C.S.A. 75 § 3714-A. 6 Pa.C.S.A. 18 § 2702-A4. 718 Pa.C.S.A. § 2706(a)(1).

;.3 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 of 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 of death or serious bodily injury. Specifically, the Commonwealth failed to establish that appellant's actions placed Shanita Little or Alexander Little in danger of death or serious bodily injury when she pulled her car away from the curbs FACTUAL BACKGROUND

The testimony at trial revealed that on August 26, 2015, the conflict between the parties

occurred. Transcript of Proceedings, Bench Trial, Page 11, 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 to an argument where the Victim's parents arrived to 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 a 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 the events on

his cell phone. N.T. at 20. There was commotion that took place between Cynthia Little and the

Appellant in the living room resulting in Cynthia Little calling the police and requesting the

B Concise Statement, paragraph 1. 9 Son at the time of the incident was 16 years of age and a junior in high school. 10 Cynthia Little is the mother of the victim. 11 Appellant and the victim have a son together.

2 Appellant to leave. N.T. at 22, 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

Appellant and her actions. N.T. at 25. At this time, the son attempts to step in 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 a 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 of the car" and then rolled off the side. N.T. at 113. The Victim was struck

on his right leg causing abrasions by the front right tire of the Appellant's car. N.T. at 29, 41. The

Appellant also struck the Victim a second time in the 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, the Appellant and her son left the

scene. Police officers and EMS arrived at the scene to look over both the Victim and Shanita

Little. N.T. at 39, 40. The Appellant's argument was based off of no alternative way to drive the

vehicle and that she was provoked by the Victim and Shanita Little.

DISCUSSION

For the 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 of Recklessly Endangering Another Person. The standard of review, as

indicated by the Pennsylvania Supreme Court, when an appellant challenges the sufficiency of the

evidence is well settled:

3 The applicable standard of review for challenges to the sufficiency of evidence must be determined "whether viewing all the evidence at 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 considered equally when assessing the sufficiency of the evidence." 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 of death or serious bodily injury." 18 Pa.C.S.A. § 2705. "Thus, the crime requires (1)

a mens rea recklessness, (2) an actus reus some 'conduct,' (3) causation 'which places,' and (4)

the achievement of a particular result 'danger,' to another person, of 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 of 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 of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

18 Pa.C.S.A. § 302(6)(3).

The evidence shows that the Appellant did recklessly endanger another person on both

counts. The Appellant made the conscious decision to steer her car towards both victims in a right

handed turn striking both individuals in the process. She had means necessary to prevent the

situation by putting the car in reverse to avoid pedestrians all together, but instead chose to drive

towards both victims in a motor vehicle. Considering the events that led up to these circumstances,

in which the Appellant exited the home visibly angered, spit on multiple vehicles and damaged

4 Cynthia Little's car demonstrates a tendency to escalate the incident. Her conduct is evident

through the injuries sustained to the victims, which placed both in great danger at the time. The

Appellant further demonstrated her willingness to commit such an act by hitting the 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 a weapon against other humans.

The Appellant's only defense was the nature of 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 Appellant put others in danger by driving the car intentionally at

both the Victim and Shanita Little. The Appellant could have put the car in reverse and avoided

the entire situation. Instead she drove towards the Victim and his sister with the vehicle. After

review of the bench trial record, the elements of REAP are met based on the sufficiency of the

evidence and there is enough evidence for the conclusion to be made that all elements were met

beyond a reasonable doubt as was found here.

For the foregoing reasons, it is believed t Appellant' c of 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 of Courts FILE - President Judge Richard A. Lewis

5 ORIGINAL

Appellant, Kelly Fisher ("Appellant" or "Fisher") appeals this Court's judgment of

sentence entered January 17, 2017. This opinion is written pursuant to Pa.R.A.P. 1925(a).

At Dauphin County Docket Number 6436 CR 2015, following a bench trial concluding on

December 19, 2016, Appellant Kelly Fisher was found guilty of 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 to 12 months

probation and a fine of $450. The Appellant was found not guilty of two counts of aggravated

assault6 and one count of terroristic threats.'

A timely notice of appeal was filed on February 1, 2017. In compliance with this Court's

February 8, 2017 Order, a Concise Statement of Errors Complained of on 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) and (2). 4 18 Pa.C.S.A. § 3304(a)(5) and (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),

1 Appellate Rule of Procedure 1925(b) (Concise Statement) was filed raising the following issue for

1. There was insufficient evidence presented during appellant's bench trial on the charges of 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 of death or serious bodily injury. Specifically, the Commonwealth failed to establish that appellant's actions placed Shanita Little or Alexander Little in danger of death or serious bodily injury when she pulled her car away from the curb.9 FACTUAL BACKGROUND

The testimony at trial revealed that on August 26, 2015, the conflict between the parties

occurred. Transcript of Proceedings, Bench Trial, Page 11, 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 to an argument where the Victim's parents arrived to 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.19 This phone call revealed that a 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 the events on

his cell phone. N.T. at 20. There was commotion that took place between Cynthia Little and the

Appellant in the living room resulting in Cynthia Little calling the police and requesting the

8 Concise Statement, paragraph 1. 9 Son at the time of the incident was 16 years of age and a junior in high school. 10 Cynthia Little is the mother of the victim. ll Appellant and the victim have a son together.

2 Appellant to leave. N.T. at 22, 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

Appellant and her actions. N.T. at 25. At this time, the son attempts to step in 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 a 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 of the car" and then rolled off the side. N.T. at 113. The Victim was struck

on his right leg causing abrasions by the front right tire of the Appellant's car. N.T. at 29, 41. The

Appellant also struck the Victim a second time in the 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, the Appellant and her son left the

scene. Police officers and EMS arrived at the scene to look over both the Victim and Shanita

Little. N.T. at 39, 40. The Appellant's argument was based off of no alternative way to drive the

vehicle and that she was provoked by the Victim and Shanita Little.

For the reasons set forth below, this Court finds that Appellant's judgment of sentence

Appellant's challenge is that there was insufficient evidence presented during the bench

trial on the charges of Recklessly Endangering Another Person. The standard of review, as

indicated by the Pennsylvania Supreme Court, when an appellant challenges the sufficiency of the

3 The applicable standard of review for challenges to the sufficiency of evidence must be determined "whether viewing all the evidence at 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 considered equally when assessing the sufficiency of the evidence." Commonwealth v. Hughes, 555 A.2d 1264, 1267 (1989).

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 of death or serious bodily injury." 18 Pa.C.S.A. § 2705. "Thus, the crime requires (1)

a mens rea recklessness, (2) an actus reus some 'conduct,' (3) causation 'which places,' and (4)

the achievement of a particular result 'danger,' to another person, of death or serious bodily

injury." Commonwealth v. Trowbridge, 395 A.2d 1337, 1340 (Pa. Super. 1978). "Recklessly" is

A person acts recklessly with respect to a material element of 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 of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the 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 to steer her car towards both victims in a right

handed turn striking both individuals in the process. She had means necessary to prevent the

situation by putting the car in reverse to avoid pedestrians all together, but instead chose to drive

towards both victims in a motor vehicle. Considering the events that led up to these circumstances,

in which the Appellant exited the home visibly angered, spit on multiple vehicles and damaged

4 Cynthia Little's car demonstrates a tendency to escalate the incident. Her conduct is evident

through the injuries sustained to the victims, which placed both in great danger at the time. The

Appellant further demonstrated her willingness to commit such an act by hitting the 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 a weapon against other humans.

The Appellant's only defense was the nature of 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 Appellant put others in danger by driving the car intentionally at

both the Victim and Shanita Little. The Appellant could have put the car in reverse and avoided

the entire situation. Instead she drove towards the Victim and his sister with the vehicle. After

review of the bench trial record, the elements of REAP are met based on the sufficiency of the

evidence and there is enough evidence for the conclusion to be made that all elements were met

For the foregoing reasons, it is believed that Appellant's of error is without merit.

RICHARD A. LEWIS, PRESIDENT JUDGE Memorandum date: March ,2017 C )

DISTRIBUTION:

Kelly Fisher, Defendant a Christopher Jason, Esq., Dauphin Co. District Attorney's

Paul W. Muller, Esq., Public Defender's Officea,0 Officef8 IN)

Pennsylvania Superior Court Prothonotary ima, fritb- Court Administration - Criminal Division .2.4. Clerk of Courts FILE - President Judge Richard A. Lewisfg