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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SAMUEL KEMP : : Appellant : No. 873 EDA 2016

Appeal from the Judgment of Sentence February 1, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013505-2014

BEFORE: OTT, SOLANO, and JENKINS, JJ. MEMORANDUM BY OTT, J.: FILED FEBRUARY 17, 2017 Samuel Kemp appeals from the judgment of sentence imposed February 1, 2016, in the Philadelphia County Court of Common Pleas. The trial court sentenced Kemp to an aggregate term of nine to 18 years’ imprisonment, plus nine years’ consecutive probation, following his non-jury conviction of aggravated assault,1 driving under the influence of alcohol or controlled substance (“DUI”) – combined impairment,2 and related charges after he crashed his vehicle into the complainant who was standing behind his own disabled car. On appeal, Kemp challenges both the sufficiency and weight of the evidence supporting his conviction of aggravated assault, and ____________________________________________

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the medic boards. [Kemp’s] Jeep Cherokee was directly behind the Complainant’s car. He immediately notified the Accident Investigation Division (“AID”) due to the severity of the Complainant’s injuries. [Kemp] told Officer Flynn that he was the person who operated the vehicle and that his brakes failed. Officer Flynn testified that he did not observe any bleeding on [Kemp] nor a right turn signal or hazard lights on [Kemp’s] vehicle. Officer Gary Harrison responded to the scene as an AID officer. He testified that he noticed that “[Kemp’s] eyes were watering, staring, he was stuporous, incoherent, and when he spoke to [him], his speech was slurred. And when [he] saw [Kemp] walking, he was swaying and he was sagging as well.” Officer Harrison administered the Standard Field Sobriety Test and [Kemp] failed the “walk and turn” test. [Kemp] also admitted to consuming Xanax, Seroquel, and Lithium. Based upon all of Officer Harrison’s observation[s], he determined that [Kemp] was incapable of safely operating a motor vehicle. Officer Jamanda Smith also testified that when she saw [Kemp] at the AID headquarters, [Kemp] was drowsy and responded slowly.

Counsels stipulated that Dr. Cone’s[3] drug scan report indicates that [Kemp] ha[d] Cocaine, Oxycodone, and Morphine in his system. The drugs were taken in close time proximity to one another [and] in significant dosage amounts. Dr. Cone concluded to a reasonable degree of certainty that [Kemp] was impaired by psycho active oxycodone and morphine, which was aggravated by the cocaine and that he was unfit to operate a vehicle on the highway. Counsels also stipulated that [Kemp’s] car pushed the Complainant’s car several feet before the vehicle came to a final rest. [Kemp’s] car sustained damages to the front of the vehicle with a missing grill and headlights. The front bumper was dented with white paint transfer and both airbags were deployed. The rear of Complainant’s car sustained damages to the bumpers and right rear taillight. The rear window was shattered and the trunk was crushed, while the right rear quarter panel was crushed inwards.

Trial Court Opinion, 4/20/2016, at 2-5 (record citations omitted). ____________________________________________

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Kemp was subsequently arrested and charged with the following offenses: aggravated assault, possessing an instrument of crime (“PIC”), simple assault, recklessly endangering another person (“REAP”) (two counts), conspiracy, criminal mischief, aggravated assault by vehicle while DUI (“aggravated assault-DUI”), accidents involving death/injury, DUI – general impairment, DUI – controlled substances (three counts), driving without a license, and driving while operating privilege is suspended.^[4] The case proceeded to a nonjury trial, and on November 6, 2015, the trial court found Kemp guilty of all charges, save for conspiracy, criminal mischief and driving while operating privilege is revoked, of which crimes he was acquitted.5 Prior to sentencing, on January 14, 2016, Kemp filed a pro se motion requesting new counsel. The court did not consider the motion before sentencing. Rather, on February 1, 2016, the trial court sentenced Kemp as follows: (1) a term of nine to 18 years’ imprisonment, plus two years’ probation for aggravated assault; (2) a consecutive term of seven years’ probation for aggravated assault by DUI; and (3) a concurrent term of ____________________________________________

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90 days to five years’ imprisonment for DUI-combined impairment.^[6] With regard to the remaining counts, the court determined they either merged for sentencing purposes or warranted no further punishment. Thereafter, on February 4, 2016, the trial court granted Kemp’s motion for the appointment of new counsel, and extended the time period for filing a post-sentence motion. On February 9, 2016, new counsel filed a post-sentence motion challenging the sufficiency and weight of the evidence, as well as the discretionary aspects of Kemp’s sentence. The court denied the motion on February 19, 2016, and this timely appeal followed.7 In his first issue on appeal, Kemp challenges the sufficiency of the evidence supporting his conviction of aggravated assault.8 In reviewing the sufficiency of the evidence, we consider whether the evidence presented at trial, and all reasonable inferences drawn therefrom, viewed in a light most favorable to the Commonwealth as the verdict winner, support the [fact finder’s] beyond a reasonable doubt. Commonwealth v. Murray, [623] Pa. [506], 83 A.3d 137, 150–51 (2013). Whether sufficient evidence exists to support the verdict is a question of law; thus, our standard of review is de novo and our scope of review is plenary. Id. at 151. ____________________________________________

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Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014), cert. denied, 135 S.Ct. 1400 (U.S. 2015). Aggravated assault is defined in the Crimes Code, in relevant part as follows: A person is guilty of aggravated assault if he: (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.] 18 Pa.C.S. § 2702(a)(1). In the context of motor vehicle accidents, and particular those resulting from a defendant’s alcohol or drug impairment, the courts of this Commonwealth have wrestled with the determination of whether the impaired defendant possessed the sufficient mens rea to support a conviction of aggravated assault. Compare Commonwealth v. O’Hanlon, 653 A.2d 616 (Pa. 1995); Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998); Commonwealth v. McHale, 858 A.2d 1209 (Pa. Super. 2004); and Commonwealth v. Dellavecchia, 725 A.2d 186 (Pa. Super. 1998) (en banc), with Commonwealth v. Packer, 146 A.3d 1281 (Pa. Super. 2016), appeal granted, ___ A.3d ___ (Pa. 2016); Commonwealth v. Miller, 955 A.2d 419 (Pa. Super. 2008); and Commonwealth v. Kling, 731 A.2d 145 (Pa. Super. 1999), appeal denied, 745 A.2d 1219 (Pa. 1999). The common thread in the case law, first announced in O’Hanlon, is that the recklessness required for an aggravated assault conviction is a

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“higher degree of culpability” than mere recklessness. O’Hanlon, supra, 653 A.2d at 618. The O’Hanlon Court explained: [T]he offensive act must be performed under circumstances which almost assure that injury or death will ensue. The recklessness must, therefore, be such that life threatening injury is essentially certain to occur. This state of mind is, accordingly, equivalent to that which seeks to cause injury. Examples of such behavior make the distinction clear. In Commonwealth v. Daniels, 467 Pa. 35, 354 A.2d 538 (1976), appellant had fired a gun into a crowd; in Commonwealth v. Laing, 310 Pa.Super. 105, 456 A.2d 204 (1983), appellant drove his car into a crowd, after having aimed it at an individual; in [Commonwealth v.] Scofield, [521 A.2d 40 (Pa. Super. 1987), appeal denied, 535 A.2d 82 (Pa. 1987),] the appellant drove at a pedestrian. See also, Commonwealth v. Hlatky, 426 Pa.Super. 66, 626 A.2d 575 (1993); Commonwealth v. Rohach, 344 Pa.Super. 229, 496 A.2d 768 (1985). In each of these instances, the defendant could reasonably anticipate that serious bodily injury or death would be the likely and logical consequence of his actions. In each case, the consequence was ignored. Id. The Court further stated aggravated assault is “the functional equivalent of murder in which, for some reason, death fails to occur.” Id. The Supreme Court repeated this standard in Comer, supra, explaining the requisite state of mind is “equivalent to that which seeks to cause injury.” Comer, supra, 716 A.2d at 596. A panel of this Court went one step further in Kling, supra. In that case, in which the defendant was convicted of both third degree murder and aggravated assault following a vehicle crash, the panel stated the mens rea for both crimes involves malice.^[9] Kling, supra, 731 A.2d at 147. The panel observed: “In view of ____________________________________________

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this heightened mens rea, motor vehicle crashes seldom give rise to proof of the malice needed to sustain a conviction for third degree murder or aggravated assault.” Id. at 148. With this background in mind, we proceed to consideration of Kemp’s argument on appeal. Kemp does not dispute the complainant suffered serious bodily injury as a result of his negligent actions. See Kemp’s Brief at 22. Rather, Kemp argues the evidence presented by the Commonwealth was “insufficient to establish the element of recklessness necessary to establish the crime of aggravated assault as set forth in [Section] 2702(a)(1).” Id. at 25. He further states: “Simply put, the factual record in the case sub judice is lacking in both the quantity and the quality of facts necessary to support a finding beyond a reasonable doubt that [] Kemp acted with malice.” Id. at 30. For the reasons below, we are constrained to agree. _______________________ (Footnote Continued) Malice exists where there is a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” Where malice is based on a reckless disregard of consequences, it is not sufficient to show mere recklessness; rather, it must be shown the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury. Kling, supra, 731 A.2d at 147–148 (quotations omitted).

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The trial court found the following evidence demonstrated that Kemp “exhibited extreme indifference to the value of human life”10 when he struck the complainant with his motor vehicle: (1) Kemp “ingested drugs before he went on the highway to purchase more drugs with a female friend[;]” (2) Kemp drove “knowing that he was incapable of operating the vehicle” and stated as much to his friend; (3) Kemp “testified that he eventually fell asleep behind the wheels and did not hit the brakes when his car came into contact with the Complainant[;]” (4) the responding police officer described Kemp as “incoherent, spoke with a slurred speech, swayed and swaged, while his eyes were watering and staring[;]” and (5) Kemp’s vehicle was “moving at a high rate of speed” as evidenced by the 42-foot skid mark prior to impact, as well as the severe damage to both vehicles. Trial Court Opinion, 4/20/2016, at 7-9. The court further summarized the following: The evidence of [Kemp’s] actions leading up [to] the car accident, along with the officers’ testimony of [their] observations of [Kemp] and Dr. Cone’s report that [Kemp] ingested a significant amount of drugs before operating his car to purchase more drugs, indicates that [Kemp] was in the state of mind of not caring whether death or serious bodily injury would ensue to another person. Id. at 9. However, our review of the relevant case law leads to a different result. As noted above, this Court has found that “motor vehicle crashes ____________________________________________

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seldom give rise to proof of the malice needed to sustain a conviction for … aggravated assault.” Kling, supra, 731 A.2d at 148. In both of the leading decisions of the Pennsylvania Supreme Court, O’Hanlon and Comer, the Court determined the evidence presented by the Commonwealth was insufficient to support a conviction for aggravated assault. First, in O’Hanlon, the Court found that the defendant’s actions in running a red light, when driving while inebriated, did not support the mens rea for a conviction of aggravated assault. O’Hanlon, supra, 653 A.2d at 618 (stating “[s]erendipity, not intention, placed the victim in his path when he drove through the red light.”). Second, in Comer the facts presented were even more egregious. In that case, the defendant drank beer and took “downers” at a party before driving his car on Roosevelt Boulevard in Northeast Philadelphia. Comer, supra, 716 A.2d at 595. One eyewitness estimated the defendant was travelling in excess of 70 m.p.h. See id. The defendant’s right tire rubbed the curb before the car left the road and hit two pedestrians waiting at a bus stand, before finally coming to a stop when it struck a brick wall. See id. In concluding the evidence was insufficient to support the mens rea required for aggravated assault, the Comer Court distinguished the Superior Court’s decision in Commonwealth v. Scofield, 521 A.2d 40 (Pa. Super. 1987), appeal denied, 535 A.2d (Pa. 1987). In Scofield, the defendant repeatedly scraped his car against parked vehicles, causing sparks to fly, drove ten more feet before striking a pedestrian, and was belligerent and - 10 - J-S90009-16 tried to flee when a witness attempted to stop him and while the victim was still under his car. See Scofield, supra, 521 A.2d at 41.11 The Comer Court explained: “In contrast, [here the defendant] sped past another vehicle, his car rubbed the curb of the sidewalk and the accident ensued immediately thereafter.” Comer, supra, 716 A.2d at 597. Accordingly, the Court concluded the Commonwealth failed to “establish that [defendant] possessed the state of mind equivalent to that which seeks to cause injury.” Id. at 596. See also McHale, supra, 858 A.2d at 1216-1217 (finding evidence insufficient to establish mens rea for aggravated assault when intoxicated defendant, without license or insurance, got in his vehicle after leaving bar, revved the engine, sped out of the parking lot, and hit a parked car and two pedestrians before fleeing the scene); Dellavecchia, supra, 725 A.2d at 189 (finding evidence insufficient to establish mens rea for aggravated assault when intoxicated defendant drove “at an excessive rate over congested city streets, weaving in and out of traffic, prior to crash,” and did apply brakes “in an effort to avoid impact.”). ____________________________________________