Com. v. Cousar, R.

J-S69008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT E. COUSAR

Appellant No. 327 EDA 2015

Appeal from the Judgment of Sentence December 3, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003053-2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 03, 2016

Appellant, Robert E. Cousar, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

conviction of accidents involving death or personal injury.1 We affirm.

In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

Appellant raises the following issues for our review:

WHETHER THE TRIAL COURT ERRED IN FAILING TO

CONSIDER APPELLANT’S “SUBSTANTIAL COMPLIANCE”

WITH THE HIT-AND-RUN STATUTES[?]

WHETHER THE EVIDENCE WAS INSUFFICIENT TO

____________________________________________

1

75 Pa.C.S.A. § 3742.

J-S69008-15

SUPPORT THE TRIAL COURT’S VERDICT[?]

WHETHER THE TRIAL COURT’S VERDICT WAS AGAINST

THE WEIGHT OF THE EVIDENCE[?]

(Appellant’s Brief at 4).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Giovanni

Campbell, we conclude Appellant’s issues on appeal merit no relief. The trial

court opinion comprehensively discusses and properly disposes of those

questions. (See Trial Court Opinion, filed April 7, 2015, at 5-10) (finding:

(issues 1 and 2) evidence established Appellant was driver of vehicle that

struck and injured victim, and Appellant failed to remain at scene of accident

until he fulfilled requirements of 75 Pa.C.S.A. § 3744; Appellant’s argument

that he met his statutory obligation because his father called police to report

Appellant’s involvement in accident fails because Appellant’s own conduct

did not constitute substantial compliance with hit-and-run statute;

specifically, Appellant did not supply his name, address, and vehicle

registration number to anyone at scene, or provide anyone opportunity to

request Appellant’s driver’s license and information relating to financial

responsibility; further, Appellant failed to render reasonable assistance to

victim or make arrangements for transport of victim to hospital when it was

apparent that victim required medical treatment; Appellant also did not wait

for police to arrive at accident scene, even though Appellant knew police

were responding to 911 call placed by victim’s friend; additionally, Appellant,

-2-

J-S69008-15

failed to report his involvement in accident promptly and give his pertinent

information to police by phone or in person; under these circumstances,

evidence was sufficient to establish Appellant’s non-compliance with hit-and-

run statute and to support Appellant’s conviction of accidents involving death

or personal injury; (issue 3) Appellant was non-compliant with hit-and-run

statute in several ways; Appellant fled scene of accident and while he might

have experienced remorse, this did not compel Appellant to return to scene

of accident, present himself promptly to police, or call police to report

accident as required by hit-and-run statute; instead, Appellant left his father

to call police while Appellant went to sleep and then went to work in

morning; Appellant’s actions demonstrated complete disregard of duties

imposed on drivers by law; based on these facts, court finds no basis to

conclude that verdict was against weight of evidence). Accordingly, we

affirm on the basis of the trial court’s opinion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/3/2016

-3-

Circulated 02/08/2016 03:19 PM

IN THE COURT OF COMMON PLEAS

FOR THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

TRIAL DIVISION - CRIMINAL

COMMONWEALTH OF PA CP-51-CR-0003053-2012

v. FILED

ROBERT COUSAR APR O 7 2015

Criminal Appeals Unit

MEMORANDUM OPINION First Judicial District of PA

CAMP BELL, J. April 1 . , 2015

Procedural History

On September 30, 2014, Defendant Robert Cousar proceeded to trial before this Court,

sitting without a jury. Defendant was convicted of accident involving death or personal injury

(75 Pa.C.S. § 3742(A)), as a felony of the third degree. Sentencing was deferred for preparation

of a presentence investigation report.

On October 10, 2014, Defendant filed a motion to reconsider.

On December 3, 2014, the motion to reconsider was denied and Defendant was sentenced

to 6-23 months to be served on house arrest, followed by five years probation

On December 15, 2014, a Defendant filed a post-sentence motion, which motion was

denied on December 17, 2014.

A timely Notice of Appeal was filed on January 16, 2015.

On February 9, 2015, the Court entered an order directing the filing of a Statement of

Matters Complained of on Appeal, pursuant to Pa.R.A.P. l 925(b).

On March 2, 2015, appellate counsel filed a Rule 1925(b) statement.

On March 17, 2015, the Court entered an order directing the filing of an Amended

Statement of Matters Complained of on Appeal.

On March 30, 2015, Defendant filed an amended Rule 1925(b) statement.

Factual History

On July 4th weekend in 2011, Coralee Jackson and her husband Terry Crantshaw were

their friend Anthony Kelley and Mr. Crantshaw's brother Dwight, returning home from watching

fireworks and visiting the Sugar House Casino. N.T. 9/30/14, pp. 11-14, 29, 47-48. Anthony

Kelley, was crossing the street in the vicinity of 2"d and Spring Garden Streets in Philadelphia

when he was struck by a car. N.T. 9/30/14, pp. 15-17, 37, 48-49. The driver of the car was

· Defendant, Robert Cousar. N.T. 9/30/14, p. 17. Defendant stopped and exited his vehicle as Ms.

Jackson came over to see Mr. Kelley, then she called 911. N.T. 9/30/14, pp. 21-23, 40-41, 51,

57. Mr. Kelley was lying on the side of the roadway with his leg twisted, glass and gravel in his

head and leg, and bleeding from the head. N.T. 9/30/14, pp. 21, 25, 52.

At some point the passenger in Mr. Cousar's car exited the vehicle and started hollering

at Mr. Cousar telling him "this looks bad" and saying "we got to go". N.T. 9/30/14, pp. 23, 41,

44, 45. Defendant and his passenger then got back in the car and Defendant drove off. N.T.

9/30/14, pp. 23-24, 50-52, 57.

Police Officer Jimmy Brown testified that he was the assigned accident investigator.

N.T. 9/30/14, p. 59. On July 4, 2011, Office Brown received a message from Defendant's father

that his son had been involved in an accident. N.T. 9/30/14, pp. 67-68. The call came in about

12 hours after the accident. N.T. 9/30/14, pp. 70-71. Officer Brown went to 4168 Poplar

Avenue, where he observed the vehicle and took photographs. N.T. 9/30/14, pp. 63-64. The car

windshield was smashed. N.T. 9/30/14, p, 68.

On July 7, 2011, Defendant met with Officer Brown at police headquarters and gave a

statement. N.T. 9/30/14, p. 65. His statement (Exhibit C-13) was, in relevant part:

2

I WAS TRAVELING W/B ON SPRING GARDEN IN THE LEFT LANE WHEN ALL

OF A SUDDEN A B/M DARTED IN FRONT OF ME. I TRIED TO STOP BY

SLAMMING ON MY BRAKES AND SWEARVING (sic) TO THE RIGHT BECAUSE

I THOUGHT I WOULD BE ABLE TO MISS HIM. ONCE CONTACT WAS MADE,

HE HIT THE WINDSHIELD AND ROLLED OFF INTO THE ST. I STOPPED

IMMEDIATLEY, SET THE HAND BRAKES AND GOT OUT. I WENT TO THE

. GUY AND TRIED TO GET A RESPONSE FROM HIM BY SHACKING (sic) HIM.

HE DIDN'T RESPOND, SO I TRIED TO LIFT HIM UP AND PUT HIM IN THE CAR

AND TAKE HIM TO THE HOSPITAL. THEN PEOPLE BEGAN TO GATHER

AROUND AND SAID, DON'T MOVE HIM AND AT THAT TIME I STOOD BACK

AND STARTED TELLING PEOPLE TO CALL 911. I WAITED AROUND FOR

ABOUT 5 MIN AND MY FRIEND DOUG SAID, YO WHAT ARE YOU GOING TO

DO? IT'S NOT LOOKING GOOD. I TOLD HIM I NEEDED TO GET THE CAR

BACK TO MY FATHER. AT THAT POINT WE JUMPED IN THE CAR AND LEFT. I

CALLED MY DAD AND TOLD HIM WHAT HAD HAPPENED. DOUG WANTED

TO GET OUT A FEW BLOCKS A WAY, SO I DROPPED HIM OFF AND I TRIED TO

MAKE IT HOME BECAUSE MY WINDSHIELD WAS COMPLETELY

SHATTERED. I MADE IT TO 33RD & GIRARD AVE WHEN I SIDE SWIPED A

TREE STUMP THAT WAS HANGING OUT INTO THE STREET FROM THE CURB.

AT THAT POINT THE CAR WOULDN'T MOVE. I CALLED MY DAD AGAIN AND

TOLD HIM THAT THE CAR WOULDN'T MOVE. A SHORT TIME LATER MY

DAD SHOWED UP IN MY AUNTS CAR AND TOOK ME HOME. ONCE WE

ARRIVED HOME MY DAD CALLED A TOW TRUCK TO GO PICK UP THE CAR. I

WENT TO SLEEP BECAUSE I HAD TO GO TO WORK THAT MORNING lOAM

Defendant's statement also stated that he did not call the police because his father said he would

do so.

Complainant Kelley testified that that the last thing he remembers was crossing the street,

about to step up on to the median, and the next thing he recalls was waking up in the hospital.

N.T. 9/30/14, pp. 77-78. His injuries included skin and scalp injuries, fractured left shoulder,

torn/scraped skin on his shoulder, elbows, forearm and knees, a fractured vertebra, multiple leg

and ankle fractures. N.T. 9/30/14, pp. 78-80. He underwent surgery, was hospitalized for a

week, and then stayed in a rehabilitation center for approximately 2 Y2 months until his insurance

ran out. N.T. 9/30/14, p. 80-81. Mr. Kelley's Thomas Jefferson University Hospital medical

records were introduced as business records through an appropriate custodian. C-14, N.T.

3

9/30/14, pp. 85-86. Kelley testified that he had a total of three surgeries on his right leg, that he

walks with a cane, that he is no longer able to play sports, and he requires help from family

members for basic tasks such as grocery shopping. N.T. 9/30/14, p. 82.

Defendant's father, Robert Cousar, Jr., testified that Defendant called him following the

accident at approximately 2:40 in the morning on July 3, 2011. Defendant told his father that he

had been involved in an accident at 2"d and Spring Garden that he had hit a person with the car.

N.T. 9/30/14, p. 108.

He then called again to say he could not get home and asked to be picked up. Mr. Cousar

went to get Defendant and made arrangements for the car to be towed. N.T. 9/30/14, pp. 99-100.

After they got home, Mr. Cousar got information about the incident from Defendant, after which

Defendant went to sleep because he had to work in the morning. Mr. Cousar made multiple

calls, ultimately leaving a message for Officer Brown. N.T. 9/30/14, pp. 101-102.

Discussion

Defendant's Amended Statement of Errors Complained of on Appeal purports to raise 10

errors. However, on close examination, Defendant's challenge is to: the sufficiency of the

evidence; whether it was error to admit evidence of the extent of the complainant's injuries; and

1

whether the verdict was against the weight of the evidence.

1 Within his challenges to the sufficiency and weight of the evidence, Defendant also criticizes

the verdict for lack of a description of evidence considered, explanation or justification for the

verdict by the Court. There is no such requirement in the law. Whether a judge or a jury, a

factfinder simply renders a verdict of guilty or not guilty on the crimes charged. "[T]here is no

authority for special verdicts in criminal trials, and '[t]he proposal of special verdicts in criminal

trials to determine what issues the jury actually resolved has been almost universally

condemned.' Commonwealth v. Samuel, 599 Pa. 166, 961 A.2d 57, 64 (Pa. 2008)."

Commonwealth v. Jacobs, 614 Pa. 664, 681, 39 A.3d 977, 987 (Pa. 2012). Although there may

be circumstances where the factfinder will answer special interrogatories (see Commonwealth v.

4

1. The evidence was sufficient to support Defendant's conviction.

A claim challenging the sufficiency of the evidence presents a question of law.

Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000). We must determine "whether

the evidence is sufficient to prove every element of the crime beyond a reasonable doubt."

Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1267 (1989). We "must view evidence

in the light most favorable to the Commonwealth as the verdict winner, and accept as true all

evidence and all reasonable inferences therefrom upon which, if believed, the fact finder

properly could have based its verdict." Id.

Our Supreme Court has instructed:

[TJhe 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. Moreover, in applying the above test, the entire record

must be evaluatedand all evidence actually received must be considered. Finally,

the trier 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. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1236 n. 2 (2007).

Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa.Super. 2013).

The statute for which Defendant stands convicted, § 3742, relating to accidents involving

death or personal injury, provides:

Baker, 72 AJd 652, 656 (Pa. Super. 2013), this is not such a circumstance, nor were any special

interrogatories requested. Defendant also complains that the court erred in denying his post-trial

motion for reconsideration as a matter of law and for failing to respond. First, we note that there

is no such motion for reconsideration of a verdict under the Pennsylvania Rules of Criminal

Procedure. If the motion was intended to be for extraordinary relief pursuant to Pa.R.Crim.P.

704(b ), then it did not conform to the requirements of that rule. Moreover, it is axiomatic that

"Where a trial court refuses to reconsider an order, appeal lies only from the underlying order

and not from the refusal to reconsider. City of Philadelphia v. Glim, 613 A.2d 613 (Pa. Cmmw.

1992).

5

(a) General rule. -- The driver of any vehicle involved in an accident resulting in injury

or death of any person shall immediately stop the vehicle at the scene of the accident or

as close thereto as possible but shall then forthwith return to and in every event shall

remain at the scene of the accident until he has fulfilled the requirements of section 3744

(relating to duty to give information and render aid). Every stop shall be made without

obstructing traffic more than is necessary.

75 Pa.C.S. § 3742

§ 3744, relating to duty to give information and render aid, provides, in pertinent part:

(a) General rule. -- The driver of any vehicle involved in an accident resulting in

injury to or death of any person or damage to any vehicle or other property which is

driven or attended by any person shall give his name, address and the registration number

of the vehicle he is driving, and shall upon request exhibit his driver's license and

information relating to financial responsibility to any person injured in the accident or to

the driver or occupant of or person attending any vehicle or other property damaged in

the accident and shallgive the information and upon request exhibit the license and

information relating to financial responsibility to any police officer at the scene of the

accident or who is investigating the accident and shall render to any person injured in the

accident reasonable assistance, including the making of arrangements for the carrying of

the injured person to a physician, surgeon or hospital for medical or surgical treatment if

it is apparent that treatment is necessary or if requested by the injured person.

(b) Report of accident to police. -- In the event that none of the persons specified are

in condition to receive the information to which they otherwise would be entitled under

subsection (a) and no police officer is present, the driver of any vehicle involved in the

accident after fulfilling all other requirements of section 3742 (relating to accidents

involving death or personal injury) and subsection (a), insofar as possible on his part to

be performed, shall forthwith report the accident to the nearest office of a duly authorized

police department and submit to the police department the information specified in

subsection (a).

75 Pa.C.S. § 3744.

Here, the evidence, viewed in the light most favorable to the Commonwealth as verdict

winner, and granting it the benefit of all reasonable inferences, establishes that:

1. Defendant was the driver of a vehicle involved in an accident resulting in injury to

another person;

2. Defendant did not remain at the scene of the accident until he had fulfilled the

requirements of section 3 7 44;

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3. Defendant did not give his name, address and the registration number of the vehicle was

driving, to any person at the scene, or provide the opportunity to request of him his

driver's license and information relating to financial responsibility;

4. Did not render reasonable assistance to Mr. Kelley, and did not make arrangements for

the carrying of the injured Mr. Kelley for medical treatment;

5. It was apparent to Defendant that treatment for Mr. Kelley was necessary;

6. Mr. Kelley was not in condition to receive Defendant's name, address and the registration

number of the vehicle he was driving;

7. Defendant did not wait for police which he knew were responding to the 911 call;

8. Defendant did not forthwith report the accident to the nearest office of a duly authorized

police department and submit to the police department his name, address and the

registration number of the vehicle was driving, or provide the opportunity to request of

him his driver's license and information relating to financial responsibility; and

9. Defendant did not call the police to provide department his name, address and the

registration number of the vehicle was driving, or provide the opportunity to request of

him his driver's license and information relating to financial responsibility.

Despite having failed to comply with any of these statutory requirements, Defendant

nonetheless argued at trial, and implicitly in his Rule 1925(b) Statement, that because he told his

father about the accident, after having fled the scene, and his father made calls to the police, this

somehow satisfied Defendant's obligations. It did not.

Essentially, Defendant fled the scene without leaving any identifying information, left the

man he struck bleeding and unconscious on the road without rendering aid, and then left it to his

father to report the accident while he went off to bed and thence to work the next morning.

Defendant's conduct was not within the letter or the spirit of the statute, nor did it constitute

substantial compliance. Compare Commonwealth v. Latshaw, 555 A.2d 1350 (Pa. Super. 1989)

(substantial compliance found when driver left accident scene after other party refused to accept

7

identification information); Commonwealth v. Gosnell, 476 A.2d 46, 47 (Pa. Super. 1984)

(substantial compliance found when appellant stopped and aided victim and provided name and

address, but failed to reveal that it was he who hit the victim, until six or seven hours after the

accident); Commonwealth Dep't of Transp. v. Stamoolis, 297 A.2d 532 (Pa. Cmwlth. 1972)

(substantial compliance found when appellant drove one and one-half miles down the road after

the accident occurred to find a suitable place to park, and then returned to the accident scene).

But see Commonwealth v. Long, 831 A.2d 737, 739 (Pa. Super. 2003) (Long believed he had hit

a garbage bag on the highway, but later returned and found the victim's body. He reported the

accident anonymously, but did not come forward with full information about himself and the fact

that he was the driver until several days later).

The evidence was clearly sufficient to demonstrate that Defendant completely disregarded

his obligations under the law to remain at the scene until medical aid was provided to the

severely injured victim, and to provide his information at the scene or in person to police.

2. It was not error to admit evidence as to the extent of the complainant's injuries.

The admissibility of evidence is solely within the discretion of the trial court and will be

reversed only if the trial court has abused its discretion. Commonwealth v. Seilhamer, 862 A.2d

1263, 1270 (Pa. Super. 2004). Admission of probative and relevant evidence of the extent of Mr.

Kelley's injuries was an appropriate exercise of the Court's discretion.

The statute under which Defendant was prosecuted provides, in relevant part:

(b) Penalties.

(1) Except as otherwise provided in this section, any person violating this section

commits a misdemeanor of the first degree.

8

(2) If the victim suffers serious bodily injury, any person violating subsection (a)

commits a felony of the third degree,

75 Pa.C.S. § 3742. The Vehicle Code defines "serious bodily injury" as follows:

"Serious bodily injury." =Any bodily injury which creates a substantial risk of death or

which causes serious, permanent disfigurement or protracted loss or impairment of the

function of any bodily member or organ.

75 Pa.C.S. § 102

Here, whether the injuries constituted serious bodily injury was a fact in dispute. N.T.

9/30/14, p. 75. Accordingly, the burden was on the Commonwealth to establish this element

beyond a reasonable doubt, in order to prove the offense as a felony of the third degree.

Evidence from Mr. Kelley and the medical records established the severity of the injuries

2

and protracted loss or impairment. This evidence, which went to an essential element of the

offense charged was admissible and relevant.

3. The verdict was not against the weight of the evidence.

Defendant asserts that the verdict was against the weight of the evidence.

The Pennsylvania Supreme Court has explained:

A motion for new trial on the grounds that the verdict is contrary to the weight of

the evidence, concedes that there is sufficient evidence to sustain the verdict.

Commonwealth v. Whiteman, 336 Pa. Super. 120, 485 A.2d 459 (Pa. Super. 1984). Thus,

the trial court is under no obligation to view the evidence in the light most favorable to

the verdict winner. Tibbs, 457 U.S. at 38 n. 11. [footnote omitted] An allegation that the

verdict is against the weight of the evidence is addressed to the discretion of the trial

court. Commonwealth v. Brown, 53 8 Pa. 410, 648 A.2d 1177 (Pa. 1994 ). A new trial ·

should not be granted because of a mere conflict in the testimony or because the judge on

the same facts would have arrived at a different conclusion. Thompson, supra. A trial

judge must do more than reassess the credibility of the witnesses and allege that he would

not have assented to the verdict ifhe were a juror. Trial judges, in reviewing a claim that

the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather,

2 In a related ground Defendant alleges that it was error to permit Mr. Kelley to testify about his injuries (Amended

1925(b) Statement, 15), while conceding that even if it were error, it was harmless in light of the testimony of the

hospital record custodian

9

the role of the trial judge is to determine that "notwithstanding all the facts, certain facts

are so clearly of greater weight that to ignore them or to give them equal weight with all

the facts is to deny justice. 11 Id.

Commonwealth v. Widmer, 560 Pa. 308, 319-320, 744 A.2d 745, 751-752 (Pa. 2000). Further:

The decision of whether to grant a new trial on the basis of a challenge to the weight of

the evidence is necessarily committed to the sound discretion of the trial court due to the

court's observation of the witnesses and the evidence. Brown, 538 Pa. 410, 648 A.2d

1177. A trial court should award a new trial on this ground only when the verdict is so

contrary to the evidence as to shock one's sense of justice. Commonwealth v. Whitney,

511 Pa. 232, 512 A.2d 1152 (Pa. 1986). A motion alleging the verdict was against the

weight of the evidence should not be granted where it merely identifies contradictory

evidence presented by the Commonwealth and the defendant.

Commonwealth v. Chamberlain, 612 Pa. 107, 133-134, 30 A.3d 381, 396 (Pa. 2011).

Here, the evidence clearly established that Defendant in several ways violated his

statutory obligations, and his attempts to excuse his wrongful conduct by asserting substantial

compliance were without merit. Defendant fled the scene. While he may have experienced

remorse, he was not compelled by that remorse to return to the scene, promptly present himself

to the police, or even call the police himself. Leaving the call to his father while going to sleep,

then going to work the next morning, demonstrates only his complete disregard of the duties

imposed upon a driver by the law. We find no basis on which to conclude that the verdict was

contrary to the evidence and our sense of justice is not shocked by the verdict.

Accordingly, the judgment of sentence should be affirmed.

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Commonwealth v. Robert Cousar Case Number: CP-51-CR-3053-2012

PROOF OF SERVICE

I hereby certify that I am this day serving the foregoing upon the person( s), and in the

manner indicated above, which service satisfies the requirements of Pa.R.Crim.P.114:

Defense Counsel/Party:

Edward Wiley, Esquire

2449 Golf Rd Ste 12

Philadelphia, PA 19131

Type of Service: (X) First Class Mail

District Attorney:

Hugh Burns, Esquire

Office of the District Attorney

Three South Penn Square

Philadelphia, PA 19107

Type of Service (X) First Class Mail

Dated: April 7, 2015

~es{. ~

anessaA.Montone

Judicial Secretary to

Honorable Giovanni 0. Campbell