Com. v. Battiato

• Decision Date: 21 January 1993
• Citation: 422 Pa.Super. 285,619 A.2d 359
• Parties: COMMONWEALTH of Pennsylvania v. James BATTIATO, Appellant.
• Court: Pennsylvania Superior Court

Page 359

619 A.2d 359

422 Pa.Super. 285

COMMONWEALTH of Pennsylvania v. James BATTIATO, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 23, 1992.

Filed Jan. 21, 1993.

Joseph T. Bambrick, West Reading, for appellant.

Narcy L. Hughes, Asst. Dist. Atty., Reading, for Com., appellee.

Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.

WIEAND, Judge:

James A. Battiato was tried by jury and was found guilty of two counts of aggravated assault, ¹ and also of recklessly endangering another person ² and criminal mischief. ³ Post-trial and supplemental post-trial motions were filed and denied following an evidentiary hearing. Battiato was thereafter sentenced on the first count of aggravated assault to a term of imprisonment for not less than eight (8) years nor more than sixteen (16) years. ⁴ On his conviction for criminal mischief, which was graded as a summary offense, Battiato was sentenced to pay a fine of two hundred ($200.00) dollars. ⁵ On direct appeal from the judgment of sentence, Battiato argues that there was insufficient evidence to sustain his convictions and that he was denied a fair trial because of numerous instances of prosecutorial misconduct. Finding no merit in any of these contentions, we affirm the judgment of sentence.

In reviewing a challenge to the sufficiency of the evidence, we must determine "whether, viewing all the evidence admitted at trial, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth as the verdict winner, the jury could have found that each and every element of the charged offenses was proved beyond a reasonable doubt." Commonwealth v. Sanchez, 416 Pa.Super. 160, 166, 610 A.2d 1020, 1023 (1992). See also: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). "[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence." Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). See also: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). The facts and circumstances established by the Commonwealth "need not be absolutely incompatible with [the] defendant's innocence, but the question of any doubt is for the jury unless the evidence 'be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.' " Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943). See also: Commonwealth v. Kravitz, 400 Pa. 198, 215, 161 A.2d 861, 869 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).

So viewed, the evidence at appellant's trial established the following. On February 23, 1991, at or about 7:30 a.m., Donna Miller was taken by her friend, Vicki Thomas, together with Thomas's boyfriend, Dane Skinner, to pick up her automobile, which had been involved in an accident earlier that morning. After Miller picked up her own vehicle, she drove along Route 61 and was headed to the home of Richard Gerner, with whom she had begun a relationship. After driving for a while, Miller pulled her vehicle off to the side of the road, and Vicki Thomas and Dane Skinner, who had been following her in Thomas's vehicle, stopped to the rear of her vehicle. While they were stopped, the appellant, Battiato, appeared in a large maroon automobile, which he pulled off the road and parked in front of Miller's vehicle. Miller had been living with appellant, but was in the process of breaking up with him. Appellant approached Miller and asked her if she was going to come with him, and if she didn't want to be with him anymore, to which Miller replied, "No. Just leave me alone."

After this brief conversation, Miller pulled her vehicle back onto Route 61 and continued her journey, again followed by Thomas and Skinner. Appellant entered his vehicle and followed the Miller and Thomas vehicles. A short time later, appellant passed Miller's vehicle, pulled in front of her, and slammed his brakes on. Miller slowed her vehicle, moved it into the left lane and passed appellant. When Thomas also attempted to pass, appellant swerved his vehicle toward the Thomas vehicle as it passed. After both Miller and Thomas had passed appellant, they approached and stopped for the traffic signal at the intersection of Routes 61 and 662 in Shoemakersville. Miller stopped in the right lane and Thomas pulled her vehicle alongside Miller's in the left lane. Appellant then also stopped his vehicle a short distance behind Miller's. While the traffic light was still red, Dane Skinner began to open the passenger side door of Thomas's vehicle, intending to get out of the car to confront appellant and ask him why he had been trying to run them off the road. However, as Skinner was opening the passenger side door, appellant accelerated his vehicle and struck both Skinner and the door of Vicki Thomas's vehicle, a black Chevrolet Beretta. After striking Skinner, appellant backed up his vehicle and parked it in a nearby parking lot. Donna Miller went to Skinner's aid, while Vicki Thomas went to call for help. As Skinner lay on the road, appellant approached him and yelled "Fuck with me some more." Appellant then brought his foot back, appearing to be ready to kick the prone Skinner, but when Miller asked appellant what he was doing, he entered his car and drove away.

As a result of being struck by appellant's vehicle, Dane Skinner suffered a compound fracture of the left tibia, which was broken in four places, along with two torn ligaments and a broken tibia in his right leg. At trial, the defense stipulated that appellant had been the driver of the vehicle which struck Skinner, but contended that it had been an accident. Appellant testified that he had been asked by Donna Miller's parents to take her car away from her because it had been damaged in an accident. ⁶ According to appellant, Miller refused to come with him and, after a brief conversation, drove away. While stopped at the traffic light, appellant testified that he had started to back up his vehicle, but that he must have hit the gear shift, and, that, as his car lunged forward, he accidentally hit the accelerator pedal instead of the brake. Appellant said he fled the scene of the accident because he was frightened.

Appellant was charged with two counts of aggravated assault under 18 Pa.C.S. §§ 2702(a)(1) and (a)(4), which provide as follows:

(a) Offense defined.--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; [and]

....

(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon....

Appellant argues that the evidence at trial failed to show that he had acted with the requisite malice. What occurred, he suggests, was a simple traffic accident. In support of this contention, appellant asserts that there had been no previous contact between him and Vicki Thomas or Dane Skinner and that he had had no reason, therefore, for hitting Skinner or Thomas's vehicle with his car.

The evidence at trial disclosed that appellant and Donna Miller had been living together at the time of the incident, but that Miller had been planning to leave appellant. Prior to the incident, appellant and Miller had engaged in a brief conversation in which Miller had refused to return home with appellant and had told him to leave her alone. Thereafter, appellant continued to follow the Miller and Thomas vehicles. In one instance, he cut in front of Donna Miller's car and applied his brakes, forcing her to slow down. When Miller and Vicki Thomas subsequently passed appellant's vehicle, he swerved his car at the Thomas vehicle. Indeed, it was when Dane Skinner attempted to get out of the Thomas vehicle to confront him that appellant accelerated his vehicle forward and struck both Skinner and the Thomas vehicle. After striking Skinner, appellant approached his injured victim and yelled at him, "Fuck with me some more." He then fled the scene in his car. From his conduct, both prior to and immediately following the striking of Dane Skinner, a jury could reasonably infer that appellant had acted intentionally when he struck Skinner. At the very least, it could conclude that appellant acted recklessly with extreme indifference to the value of human life. The evidence, therefore, was sufficient to sustain appellant's convictions for aggravated assault.

Appellant also argues that extending the crime of recklessly endangering another person to mere traffic accidents is to read 18 Pa.C.S. § 2705 ⁷ in an overly broad manner. This contention is wholly lacking in merit, for, as we have already observed, the evidence was sufficient to permit a jury to find that appellant's actions toward Dane Skinner had been intentional, rather than the result of an accident. By such conduct, appellant not only placed another person in danger of being killed or seriously injured, but actually caused serious bodily injury to Dane Skinner. The evidence, therefore, was sufficient also to sustain appellant's conviction for recklessly endangering another person.

The crime of criminal mischief is defined by statute as follows:

(a) Offense defined.--A person is guilty of criminal mischief if he:

(1) damages tangible property of another intentionally, recklessly, or by negligence in the employment of fire explosives, or other dangerous means listed in section 3302(a) of this title ...