Opinion
J-S36034-18 No. 3820 EDA 2016
08-27-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. JOHN W. FULLER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 15, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008744-2014 BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, John W. Fuller, appeals from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following his jury trial convictions for five counts of recklessly endangering another person, two counts each of aggravated assault and driving under the influence of a controlled substance, and one count each of fleeing or attempting to elude an officer, receiving stolen property, unauthorized use of a vehicle, possession of a controlled substance, and possession of drug paraphernalia. We affirm.
18 Pa.C.S.A. §§ 2705, 2702(a)(2), (6); 75 Pa.C.S.A. §§ 3802(d)(1)(i), (iii), 3733(a); 18 Pa.C.S.A. §§ 3925(a), 3928(a); 35 P.S. §§ 780-113(a)(16), (32), respectively.
In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them.
Appellant raises the following issues for our review:
WAS THE EVIDENCE PRODUCED AT TRIAL INSUFFICIENT TO CONVICT APPELLANT OF COUNTS 1 AND 7, AGGRAVATED ASSAULT UPON OFFICER CHRISTOPHER NARKIN?(Appellant's Brief at v).
DID THE TRIAL COURT ERR IN ALLOWING OFFICER CHRISTOPHER NARKIN TO TESTIFY AT TRIAL CONCERNING AND UTILIZING THE REENACTMENT VIDEO PREPARED BY THE COMMONWEALTH'S POST-CRASH MECHANICAL AND TRUCK EXPERT WITNESS?
DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY THAT IMPOSSIBILITY WAS NOT A DEFENSE UTILIZING SUGGESTED STANDARD JURY INSTRUCTION 12.901(B) CRIMINAL ATTEMPT-IMPOSSIBILITY?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Thomas P. Rogers, we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed January 19, 2018, at 14-23) (finding (1) Commonwealth presented testimony of six witnesses who described incident; Mr. Boccella testified he thought Appellant was going to keep driving truck when Mr. Boccella heard truck engine "roaring up," its gears grinding, and saw cab "shaking" and "rocking"; Officer Smith testified it was his opinion that Appellant intended to move vehicle, because Officer Smith heard truck gears grind and saw truck buck and lurch forward toward Officer Narkin; Corporal Detective Dumas and Deputy Forsythe both testified they were concerned for safety of those in path of truck, because they saw truck bucking and lurching, and heard gears grinding; Corporal Detective Dumas testified he saw truck move forward after Appellant lowered his hands from surrender position; Corporal Detective Dumas testified he saw truck move forward three times before Officer Narkin fired his weapon into cab; Mr. Castrejon testified he slid down into seat of his vehicle, because he was afraid as he sat in his vehicle directly in front of Appellant's tractor trailer; Officer Narkin testified he thought Appellant attempted to continue driving truck while Officer Narkin was in path of truck when he saw Appellant drop his hands, heard engine rev up, and heard gears grind; Commonwealth also introduced statement Appellant made on day after incident, in which Appellant stated that he knew the truck was not going but he kept trying to drive it; totality of evidence viewed in light most favorable to Commonwealth demonstrates Appellant intended to cause serious bodily injury and took substantial step toward causing that injury when he continued to engage engine and gears of truck in attempt to drive truck while Officer Narkin was in its path; sufficient evidence supported Appellant's convictions for aggravated assault; (2) short reenactment videos aided jury in understanding testimony of witnesses, particularly Officer Narkin's testimony, who described tractor trailer cab as bucking or lurching; Commonwealth's expert witness, Mr. DeWane, authenticated videos, and Appellant's counsel thoroughly cross-examined both Officer Narkin and Mr. DeWane about conditions when videos were made, as well as repairs that had been made to tractor trailer before videos were filmed; reenactment videos constituted relevant evidence; any potential danger of unfair prejudice from reenactment videos presented did not outweigh probative value of videos; (3) jury could have concluded it was factually impossible for Appellant to cause serious bodily injury to those in path of tractor trailer based upon mechanical condition of truck when it stopped; court included impossibility instruction at Commonwealth's request, because it would have been inappropriate for jury to consider factual impossibility to charges of aggravated assault; court properly exercised its discretion in charging jury on impossibility). The record supports the trial court's rationale. Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed.
Judge Dubow joins this memorandum.
Judge Kunselman concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/27/18
Image materials not available for display.