Com. v. Skinner, K. ( 2020 )


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  • J-S42015-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                         :
    :
    :
    KHALIF SKINNER                        :
    :
    Appellant            :   No. 3156 EDA 2019
    Appeal from the Judgment of Sentence Entered June 14, 2019
    In the Court of Common Pleas of Lehigh County
    Criminal Division at No(s): CP-39-CR-0004727-2018
    BEFORE: PANELLA, P.J., OLSON, J., and MUSMANNO, J.
    MEMORANDUM BY PANELLA, P.J.:                    FILED NOVEMBER 24, 2020
    Khalif Skinner appeals from the judgment of sentence entered on June
    14, 2019, in the Court of Common Pleas of Lehigh County, made final by the
    denial of post-sentence motions on October 10, 2019. The trial court imposed
    an aggregate term of 13 to 48 months’ incarceration, after a jury convicted
    him of two counts of recklessly endangering another person (“REAP”). 1 The
    court also found him guilty of the following summary offenses – following too
    closely, driving at an unsafe speed, careless driving, and reckless driving.2 On
    appeal, Skinner challenges the sufficiency of the evidence supporting his
    1   18 Pa.C.S.A. § 2705.
    2   18 Pa.C.S.A. §§ 3310(A), 3361, 3714(A), and 3736(A), respectively.
    J-S42015-20
    convictions and the discretionary aspects of his sentence. After careful review,
    we affirm.
    There is very little dispute as to the facts of this disastrous accident. The
    primary conflict in the litigation was whether Skinner’s actions on that fateful
    date were consonant with a criminally culpable state of mind. On October 30,
    2017, at approximately 5:30 p.m., Jeffrey and Chieko Flowers, from
    Chesapeake,      Virginia,   were    traveling    to   their   hotel    in   West
    Allentown/Fogelsville, Pennsylvania on the Route 222 bypass after spending
    time with family in Allentown. Jeffrey was driving the couple’s white Toyota
    Prius and Chieko was sitting in the front passenger seat.
    Traffic became heavier as it was rush hour, and they started to slow
    down in speed, almost coming to a complete stop near the Krocks Road
    intersection area. At that moment, a 16-foot long Penske box truck, driven by
    Skinner, crashed into them from behind. The impact of the crash caused a
    chain reaction, in which the Flowers’ car rear-ended a red Toyota Prius, driven
    by Mary Moran.
    Prior to the accident, Skinner and his employee, Delano Bostic, were en
    route to deliver furniture to a customer in Allentown. While driving, Skinner
    asked Bostic to look for his phone so he could inform the customer of their
    estimated time of arrival. Bostic started looking on his side of the truck when
    he glanced over and saw that Skinner was also looking for the phone. Bostic
    indicated that when he glanced back up, the accident occurred.
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    Witnesses stopped to help or seek assistance for those involved.
    Pennsylvania State Police Trooper James Terry subsequently arrived at the
    scene. He first interviewed Skinner. Skinner stated he thought he was going
    approximately 40 miles per hour, which was below the 45 mile per hour speed
    limit. He believed he had either looked down or reached down to get his cell
    phone so that Bostic could call the customer. Skinner also stated that when
    he looked back up, the traffic had slowed and he attempted to decrease his
    speed but was unable to do so in time to avoid a collision with the Flowers’
    car.
    As a result of the crash, Jeffrey died at the Lehigh Valley Hospital due
    to blunt force trauma. Chieko survived, but suffered from extensive bruises
    on the front of her body as well as cuts and bruises on her hands and feet.
    Skinner was charged with multiple crimes related to the incident,
    including but not limited to homicide by vehicle, involuntary manslaughter,
    and two counts of REAP, one each for the Flowers and Moran. At the jury trial,
    both Chieko and Moran testified, as well as Trooper Terry and an accident
    reconstruction expert, Pennsylvania State Trooper William Hoogerhyde.
    Trooper   Hoogerhyde    testified   that   based   on   pre-crash   data
    approximately five seconds prior to impact, the Flowers’ car was traveling two
    and a half miles per hour and the car was braking. He could not determine if
    the brake lights were on at time of impact because they were destroyed during
    the collision. Furthermore, based on a formula, the trooper was able to
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    ascertain, to a reasonable degree of scientific certainty, that Skinner was
    going a minimum speed of 36.59 miles per hour at the time of impact. Trooper
    Hoogerhyde opined that Skinner’s failure to keep his eyes on the road caused
    the crash. Lastly, he conceded that sun glare would have affected all drivers
    at that location.
    Skinner took the stand and testified. He stated that after he found his
    phone in the center console and handed it to Bostic, he looked back up and
    was confronted with sun glare. Skinner averred that the sun glare obscured
    his vision. In response, he started tapping on his brakes, but he could not see
    the Flowers’ car until he was on top of it. He believed he was going
    approximately 30 to 32 mph at the time. Skinner also indicated that due to
    the weight of the truck, he could not slam on the brakes or swerve the truck
    because such actions would have caused more damage than just trying to
    brake.
    The following day, the jury found Skinner guilty of the two REAP offenses
    and not guilty of vehicular homicide and involuntary manslaughter. The court
    then found him guilty of numerous summary offenses, following too closely,
    driving at an unsafe speed, careless driving, and reckless driving.
    On June 14, 2019, the court sentenced Skinner to a term of one to two
    years’ imprisonment for the REAP conviction concerning the Flowers, and a
    consecutive term of one month to two years’ incarceration for the REAP
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    conviction as to Moran.3 The court imposed fines and costs regarding the
    remaining convictions. Skinner filed a post-sentence motion, which was
    denied on October 10, 2019. This appeal followed.
    In his first issue, Skinner contends there was insufficient evidence to
    support his REAP convictions because the evidence did not demonstrate that
    “he acted with the necessary criminal intent to permit these convictions to
    stand.” Appellant’s Brief, at 19. Specifically, he states:
    The accident occurred in the late afternoon when the setting
    sun was clearly in the eyes of the drivers proceeding southbound
    on Route 222. Mr. Skinner testified to his being nearly blinded by
    the glare as he approached the area where other vehicles were
    slowing or stopped because of the heavy traffic and it was only at
    the last instant that he was able to see the vehicle in front of him.
    The presence of the sun glare was acknowledged in the testimony
    of Trooper Hoogerhyde when he stated that it was present for all
    the drivers at that time of day. The testimony from the same
    witness indicated that the minimum speed for Mr. Skinner’s truck
    at the time of impact was 36.59 miles per hour which was nearly
    10 miles under the applicable 45 mph for that roadway. Further,
    Mr. Skinner’s testimony was that he acted to slow the truck but
    not to swerve out of his lane as he knew the danger that could
    occur from a sudden shift of the truck either to the left or right as
    the contents of the vehicle could shift and overturn it.
    Unfortunately, this led to the impact but his action nonetheless
    showed an awareness of the dangers involved in his operating the
    vehicle and his desire to avoid a possible accident resulting from
    any hard turning of the wheel.
    There was no testimony that the truck was being operated
    in any negligent or otherwise dangerous manner or that it was
    doing nothing more than traveling with the general flow of traffic
    prior to the incident. Mr. Skinner was driving a fully functional
    vehicle with no known defects or limitations in operation.
    3The court ordered that Skinner’s sentence was to be served consecutively to
    a sentence he is currently serving for an unrelated matter. See N.T.,
    6/14/2019, at 17.
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    Id., at 22-23.
    We review challenges to the sufficiency of the evidence with the
    knowledge that the jury is given great leeway in assessing the credibility and
    weight of any evidence presented:
    The determination of whether sufficient evidence exists to support
    the verdict is a question of law; accordingly, our standard of
    review is de novo and our scope of review is plenary. In assessing
    [a] sufficiency challenge, we must determine whether viewing all
    the evidence admitted at trial in the light most favorable to the
    [Commonwealth], there is sufficient evidence to enable the
    factfinder to find every element of the crime beyond a reasonable
    doubt. [T]he facts and circumstances established by the
    Commonwealth need not preclude every possibility of
    innocence.... [T]he 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. Edwards, 
    177 A.3d 963
    , 969-970 (Pa. Super. 2018)
    (quotation marks and citations omitted). Therefore, we will not disturb the
    verdict “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.”
    Commonwealth v. Bruce, 
    916 A.2d 657
    , 661 (Pa. Super. 2007) (citation
    omitted).
    A person commits the crime of 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. “[REAP] requires the creation of danger, so the
    Commonwealth must prove the existence of an actual present ability to inflict
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    harm to another.” Commonwealth v. Shaw, 
    203 A.3d 281
    , 284 (Pa. Super.
    2019) (citation omitted), appeal denied, 
    215 A.3d 964
     (Pa. 2019).
    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).
    Here, the trial judge concluded there was sufficient evidence to support
    Skinner’s REAP convictions:
    Regarding the challenge to the sufficiency of the evidence, I find
    the Commonwealth presented sufficient evidence that [Skinner]
    acted recklessly. Unlike homicide by vehicle and involuntary
    manslaughter – for which [Skinner] was found not guilty –
    recklessly endangering another person does not require [him] to
    engage in an unlawful act. Rather, it requires reckless conduct.
    The Commonwealth presented evidence that [Skinner], while
    operating a box truck, looked down to find his cell phone and
    hand[ed] it to his passenger. In doing so, [Skinner] did not see
    traffic stopped in front of him and he struck Mr. Flowers[’s]
    vehicle, resulting in his death. There was sufficient evidence that
    [Skinner] was engaging in unsafe driving to a degree that placed
    others in danger of death or serious bodily injury. See
    Commonwealth v. Sullivan, 
    864 A.2d 1246
    , 1250 (Pa. Super.
    2004).
    Order, 10/10/2019, at unnumbered 1-2 n.1.
    We agree with the trial court’s analysis concerning the sufficiency of
    Skinner’s REAP convictions. Skinner points to evidence that weighs in his favor
    – he was potentially blinded by the sun glare as he approached a heavy traffic
    area, was driving approximately ten miles under the speed limit, and acted to
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    avoid a greater accident by refraining from swerving into another lane.4
    However, notably missing from Skinner’s argument is the fact that he took his
    eyes off the road to search for his cell phone.
    A review of the record supports this point. Bostic, the passenger in
    Skinner’s truck, testified that he saw Skinner “looking for his phone” and after
    that, Bostic glanced back up and the truck struck the Flowers’ vehicle, which
    then hit Moran’s vehicle. N.T., 5/14/2019, at 76. Moreover, Skinner admitted
    to Trooper Terry that “he had looked down or reached down to get his cell
    phone or find his cell phone so that he could hand it to the passenger of the
    vehicle so that the passenger could make a phone call.” N.T., 5/15/2019, at
    9. Lastly, the expert witness, Trooper Hoogerhyde, opined to a reasonable
    degree of scientific certainty that, based on his review of all the evidence in
    the case, Skinner “looked away from the roadway, and the crash occurred.”
    Id., at 57.
    Viewing this evidence in the light most favorable to the Commonwealth,
    when Skinner looked away from the road to search for his phone while
    operating a loaded box truck in the middle of rush hour, the jury was entitled
    4 To the extent Skinner asks this Court to reweigh the evidence in his favor,
    we decline to do so. See Commonwealth v. Lewis, 
    45 A.3d 405
    , 409 (Pa.
    Super. 2012) (appellant’s “argument that his version of the events was more
    credible than the Commonwealth’s version goes to the weight of the evidence,
    not its sufficiency.”). Additionally, the jury, sitting as the fact-finder, was free
    to assess each witness’s testimony and to believe all, part, or none of the
    evidence. See Commonwealth v. Golphin, 
    161 A.3d 1009
    , 1018 (Pa. Super.
    2017).
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    to find that he consciously disregarded a substantial and unjustifiable risk that
    resulted from his conduct. Moreover, the evidence could reasonably support a
    finding that his actions constituted “a gross deviation from the standard of
    conduct that a reasonable person would observe” under the circumstances.
    18 Pa.C.S.A. §302(b)(3). Accordingly, we conclude there was sufficient
    evidence to support Skinner’s REAP convictions, and Skinner’s argument fails.
    In his second issue, Skinner challenges the discretionary aspects of his
    sentence, claiming that his sentence for Count 3, the REAP conviction as to
    the Flowers couple, exceeded the aggravated range of the Sentencing
    Guidelines.5 He therefore believes the sentence constituted an abuse of
    discretion because the court failed “to set forth appropriate legal or factual
    reasons for the sentence and the guideline deviation.” Appellant’s Brief, at 24.
    Challenges to the discretionary aspects of sentencing do not guarantee
    a petitioner’s right to our review. See Commonwealth v. Allen, 
    24 A.3d 1058
    , 1064 (Pa. Super. 2011).
    An appellant challenging the discretionary aspects of his sentence
    must invoke this Court’s jurisdiction by satisfying a four-part test:
    (1) whether appellant has filed a timely notice of appeal, see
    Pa.R.A.P. 902 and 903; (2) whether the issue was properly
    preserved at sentencing or in a motion to reconsider and modify
    sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
    has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
    substantial question that the sentence appealed from is not
    appropriate under the Sentencing Code.
    5 We note Skinner does not raise any argument concerning his sentence
    regarding the remaining REAP conviction.
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    Commonwealth v. Swope, 
    123 A.3d 333
    , 337 (Pa. Super. 2015) (citation
    omitted).
    In this case, Skinner filed a timely notice of appeal, and his brief included
    a statement of reasons relied upon for allowance of appeal, as is required by
    Pa.R.A.P. 2119(f). See Appellant’s Brief, at 15. He also preserved the issue in
    a post-sentence motion. See Defendant’s Post Sentence Motion, 6/21/2019,
    at ¶¶ 17-24. Therefore, we must determine whether Skinner has raised a
    substantial question.
    “The determination of what constitutes a substantial question must be
    evaluated on a case-by-case basis.” Commonwealth v. Prisk, 
    13 A.3d 526
    ,
    533 (Pa. Super. 2011). “A substantial question exists only when the appellant
    advances a colorable argument that the sentencing judge's actions were
    either: (1) inconsistent with a specific provision of the Sentencing Code; or
    (2) contrary to the fundamental norms which underlie the sentencing
    process.” 
    Id.
     (internal citations omitted).
    Here,   Skinner’s   argument     raises   a   substantial   question.   See
    Commonwealth v. Garcia-Rivera, 
    983 A.2d 777
    , 780 (Pa. Super. 2009)
    (“This [C]ourt has found that a claim the trial court failed to state its reasons
    for deviating from the guidelines presented a substantial question for
    review.”). Thus, we review the merits of Skinner’s claim.
    Skinner argues that “even though he was acquitted of all charges related
    to the death of Mr. Flowers, … the Court nonetheless sentenced him to the
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    maximum sentence … in lieu of any sentence on the more serious charges.”
    Appellant’s Brief, at 24-25. Additionally, he states the trial court “failed to
    adequately state its reasons on the record for imposing a sentence that
    exceeded the Sentencing Guideline[s], that it disregarded relevant mitigating
    facts and factors, and ... whether the factors cited by the [c]ourt for the
    maximum sentence were not factors already considered in establishing the
    Sentencing Guideline[s].” Id., at 25.
    We have a deferential standard of review for discretionary aspects of
    the sentence claims:
    Sentencing is a matter vested in the sound discretion of the
    sentencing judge, and a sentence will not be disturbed on appeal
    absent a manifest abuse of discretion. In this context, an abuse
    of discretion is not shown merely by an error in judgment. Rather,
    the appellant must establish, by reference to the record, that the
    sentencing court ignored or misapplied the law, exercised its
    judgment for reasons of partiality, prejudice, bias or ill will, or
    arrived at a manifestly unreasonable decision.
    Commonwealth v. Shugars, 
    895 A.2d 1270
    , 1275 (Pa. Super. 2006).
    While the court is required to consider the sentence ranges set forth in
    the sentencing guidelines, it is not bound by them. See Commonwealth v.
    Yuhasz, 
    923 A.2d 1111
    , 1118 (Pa. 2007). The court may depart from the
    “guidelines, if necessary, to fashion a sentence which takes into account the
    protection of the public, the rehabilitative needs of the defendant, and the
    gravity of the particular offense as it related to the impact on the life of the
    victim and the community[.]” Commonwealth v. Eby, 
    784 A.2d 204
    , 206
    (Pa. Super. 2001) (citation omitted). If the court imposes a sentence outside
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    the guideline ranges, it must place adequate reasons for the deviation in the
    record. See Commonwealth v. P.L.S., 
    894 A.2d 120
    , 129-130 (Pa. Super.
    2006). Nevertheless, we only vacate an outside-the-guidelines sentence if the
    “sentence is unreasonable[.]" 42 Pa.C.S.A. § 9781(c)(3).
    In making this “unreasonableness” inquiry, we consider:
    (1) The nature and circumstances of the offense and the history
    and characteristics of the defendant.
    (2) The opportunity of the sentencing court to observe the
    defendant, including any presentence investigation.
    (3) The findings upon which the sentence was based.
    (4) The guidelines promulgated by the commission.
    42 Pa.C.S. § 9781(d).
    Here, the sentencing judge had the benefit of a presentence
    investigation report (“PSI”), the victim impact statements, and the probation
    officer’s recommendation of an above-the-aggravated-range sentence. The
    judge also heard Skinner’s own statements during allocution, and argument
    from both parties. See N.T., 6/14/2019, at 2-21.
    Skinner had a prior record score of zero. See N.T. 6/14/2019, at 3. The
    offense gravity score for the REAP offense was a three. See id. The standard
    range was restorative sanctions to one month with a plus or minus of three
    months for the aggravated and mitigated ranges. See id. The sentencing
    judge sentenced Skinner above the aggravated range to a term of one to two
    years’ incarceration for the REAP conviction. See id., at 16.
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    The judge explained his rationale on the record as follows:
    This sentence is in the aggravated range due to the fact that
    the victim, Jeffrey Flowers, died as a result of [Skinner’s] conduct,
    and his passenger, Chieko Flowers, was injured as a result of
    Skinner’s conduct.
    That is my reasoning for it, so if my sentence is in excess -
    - it has to be in excess of the aggravated range. This sentence is
    in excess of the aggravated range for those reasons.
    Id., at 16-17. Furthermore, the judge found that while Skinner accepted
    responsibility, he had to consider “not just the action but the result” in the
    case, which was that one of the victims died due to Skinner’s acts. Id., at 18.
    In its order denying Skinner’s post-sentence motion, the judge
    subsequently opined:
    Regarding the motion to reconsider sentence, I find I did not err
    in sentencing [Skinner]. While the sentence on count 3 was above
    the aggravated range, it was within the statutory limits, and I
    placed my reasons for deviating from the guidelines on the record.
    I considered all requisite factors in determining the sentence, and
    I had the benefit of a pre-sentence investigation report.
    Order, 10/10/2019, at 1-2 n.1 (citations omitted).
    We find Skinner’s assertions are belied by the record. While Skinner
    suggests that the judge disregarded certain mitigating factors, the judge had
    the benefit of the PSI and we can reasonably infer the judge considered those
    factors. See Commonwealth v. Walls, 
    926 A.2d 957
    , 967 n.7 (Pa. Super.
    2007) (“[W]here pre-sentence reports exist, we shall continue to presume
    that the sentencing judge was aware of the relevant information regarding the
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    defendant’s character and weighed those considerations along with mitigating
    statutory factors.”) (citation omitted).
    Our review of the record demonstrates that the judge considered the
    applicable Sentencing Guidelines, and determined that an upward departure
    from the guidelines was proper, particularly given the gravity of the offense
    as it related to the impact on the life of Jeffrey Flowers. We find the judge
    sufficiently stated his reasons on the record for imposing a sentence that
    exceeded the Sentencing Guidelines.
    Furthermore, those reasons are clearly rational reasons to deviate from
    the Guidelines. While the jury acquitted Skinner of the more serious charges
    in this case, there is no dispute that this accident was the cause of Jeffrey
    Flowers’s death. This constitutes the worst possible result of the crime of
    REAP. While this result does not necessarily require a deviation from the
    guidelines, it certainly is sufficient to support one. Accordingly, we cannot
    conclude that the sentence imposed is excessive. Therefore, Skinner’s claim
    that the sentencing judge abused his discretion in sentencing him outside the
    guidelines merits no relief.
    Judgment of sentence affirmed.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/24/2020
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