J-S13001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NINO PIETRO PETROCELLI
Appellant
No. 814 WDA 2012
Appeal from the Judgment of Sentence April 18, 2012
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-020CR0018206-2009
BEFORE: PANELLA, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY PANELLA, J.:
FILED: April 9, 2014
Appellant, Nino Pietro Petrocelli, appeals from the judgment of
sentence entered April 18, 2012, in the Court of Common Pleas of Allegheny
County.
After review, we affirm Petrocelli’s convictions, but vacate the
judgment of sentence and remand for resentencing.
The trial court summarized the evidence adduced at trial as follows:
This matter arises out of [Petrocelli’s] arrest on September
2, 2009[,] after police from the City of Pittsburgh attempted to
initiate a traffic stop of a box truck being driven by [Petrocelli] in
the Fineview area of the city because the vehicle did not have an
appropriate registration plate. [Petrocelli] refused to stop and
[led] the police on [a] 16 mile chase through several sections of
the City of Pittsburgh, ending when [Petrocelli] crashed the
vehicle in Millvale, Pa. At trial, the Commonwealth called Officer
Robert Plata who testified that at approximately 11:44 p.m. on
September 2, 2009[,] he was on routine patrol with his partner
when he noted [Petrocelli’s] vehicle did not have a registration
plate.
At that time he activated his lights and sirens but
[Petrocelli] refused to pull over. Instead, [Petrocelli] proceeded
through Fineview across the Fort Duquesne Bridge and into
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McKees Rocks. During the pursuit, Officer Plata broadcast that
he was pursuing [Petrocelli’s] vehicle and other officers joined in
the pursuit. As the pursuit proceeded to Perrysville Avenue
[Petrocelli’s] vehicle went into the oncoming lane of travel in the
direction of an approaching police vehicle being driven by Officer
Braden Seese. [Petrocelli] made no attempt avoid Officer Seese,
who had to swerve onto the sidewalk to avoid being struck by
[Petrocelli’s] vehicle. Officer Plata also testified to a second
incident during the pursuit when [Petrocelli’s] vehicle was on
Carrington Street approaching a vehicle being driven by Officer
Daniel Strangrecki who also [testified] that he had to swerve to
avoid being struck by [Petrocelli’s] truck. Officer Plata testified
to other efforts made to try to stop [Petrocelli’s] vehicle until a
command decision was given to cease the pursuit. Later, Officer
Plata saw the vehicle again after it had crashed in Millvale.
The Commonwealth also called Officer Braden Seese and
Officer Strangecki who both testified that they heard the
dispatch concerning the pursuit and attempted to aid Officer
Plata. Officer Seese testified as follows:
“Q.
What did you do?
A.
I headed towards their direction, made a left on
Perrysville [Avenue] towards their direction.
Q.
What path did your vehicle take?
A.
Well, I was driving north on Perrysville Avenue
towards their direction, and Perrysville Avenue is
a very windy road. As I was coming around one
of the curves, I was in my lane of traffic. I
observed as I was coming around one of the
curves around Buena Vista Street that a box truck
was in my lane of traffic and it was coming
directly towards me.”
Officer Seese testified that he had to swerve onto the sidewalk
to avoid [Petrocelli’s] vehicle, stating, “I was in fear of my life. I
thought he’s in a box truck, I’m in a small cruiser, patrol car. I
knew it would definitely kill me if it was a head-on collision.[”]
Officer Strangrecki testified that he was on Carrington
Street when he saw [Petrocelli’s] vehicle approaching, driving
down the middle of the roadway.
He testified that as
[Petrocelli’s] vehicle approached him it stayed in the middle of
the roadway and he had to swerve onto the curb to avoid a
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collision. Officer Strangrecki testified that “I thought I was going
to lose my life.”
The commonwealth called Officer Bruce Williams who
testified that during the pursuit he deployed spoke strips on
Brighton Road in an effort to stop [Petrocelli’s] vehicle. At that
point, [Petrocelli’s] vehicle made a hard left and went up on the
sidewalk between a building and a utility pole and [struck] a
vehicle.
The Commonwealth called Officer Michael Vith of the
Millvale Police Department who testified that when he heard that
the pursuit was headed toward Millvale, he positioned his vehicle
on Route 28 to monitor traffic. As [Petrocelli’s] vehicle passed
him on Route 28, he followed the vehicle into Millvale where
[Petrocelli] ultimately crashed into two parked cars. [Petrocelli]
was then removed from the vehicle and arrested.
The
Commonwealth also presented the 911 tapes from the incident
as well as a videotape which reenacted the route taken on the
night of the chase.
In his defense [Petrocelli] called Robert Jones who testified
that he observed the white box truck on Perrysville Avenue with
the police vehicle behind it. Mr. Jones testified that he saw the
box truck swerve to miss the police vehicle and also gave an
opinion that [Petrocelli’s] truck was travelling about 15 to 20
miles an hour.
Trial Court Opinion, 5/7/13 at 4-6 (record citations omitted).
Following a jury trial, Petrocelli was convicted of two counts of
Recklessly Endangering Another Person (“REAP”)1 and one count each of
Fleeing or Attempting to Elude a Police Officer,2 Accident Involving Damage
to an Attended Vehicle,3 and Driving While License Suspended or Revoked.4
____________________________________________
1
2
3
18 Pa.C.S. § 2705.
75 Pa.C.S. § 3733.
75 Pa.C.S. § 3743.
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On February 9, 2012, the trial court sentenced Petrocelli to an aggregate
term of 33 to 60 months’ imprisonment.
Petrocelli filed a Motion for
Reconsideration and Modification of Sentence on February 21, 2012.
Thereafter, on April 18, 2012, the trial court resentenced Petrocelli to an
aggregate term of 36 to 66 months’ incarceration.
This timely appeal
followed.5
On appeal, Petrocelli raises the following issues for our review:
I.
Was the evidence insufficient to support the convictions for
recklessly endangering another person where the officers
were never placed in danger of death or serious bodily
injury?
II.
Was the sentence imposed following a motion to modify
vindictive where the overall sentence increased and no
justifiable reasons for the increase were placed on the
record?
III.
Was the sent[e]nce imposed manifestly excessive,
unreasonable, and an abuse of discretion where a sentence
of total confinement was imposed without consideration of
the defendant’s rehabilitative needs, or his nature and
characteristics and the court imposed a harsher sentence
despite lowered guidelines and ran all sentences
consecutive for a total sentence of 35-66 months for
misdemeanor convictions?
Appellant’s Brief at 5 (all-capitalized typeface removed).
(Footnote Continued)
_______________________
4
75 Pa.C.S. § 1543(b)(1). The trial court further convicted Petrocelli of
summary offenses in violation of 75 Pa.C.S. §§ 1332, 1501, 1543, 3301 and
3736.
5
Both Petrocelli and the trial court have complied with Pa.R.A.P. 1925.
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Petrocelli’s first issue challenges the sufficiency of the evidence to
support his convictions for REAP. When determining if evidence is sufficient
to sustain a conviction, our standard of review is well-settled:
A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Commonwealth v. Kendricks, 30 A.3d 499, 508 (Pa. Super. 2011)
(citation omitted).
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute
our judgment for that of the fact-finder. The Commonwealth's
burden may be met by wholly circumstantial evidence and any
doubt about the defendant’s guilt is to be resolved by the fact
finder unless the evidence is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011) (quoting
Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa. Super. 2011)).
“[T]he entire record must be evaluated and all evidence actually received
must be considered.” Id. at 854 (citation omitted).
The Crimes Code defines the offense of recklessly endangering another
person as follows:
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A person commits a misdemeanor of the second degree 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. § 2705.
present
evidence
Petrocelli argues that the Commonwealth failed to
that
his
actions
placed
Officer
Seese
and Officer
Strangrecki in danger of death or serious bodily injury. We disagree.
Here, the testimony presented by the Commonwealth established that
Petrocelli was operating a box truck in the middle of the roadway in
opposing traffic in an effort to evade police apprehension, forcing two
officers who attempted to stop him to swerve onto sidewalks in order to
avoid a direct collision with Petrocelli’s vehicle. After repeatedly refusing to
stop for police, Petrocelli ultimately crashed into two parked vehicles before
he was apprehended.
Although Petrocelli maintains that he “travelled at
safe speeds, and was driving in a manner allowing … the officers to take safe
evasive action,” we find the fact that his actions necessitated that police
officers take emergency evasive action to avoid a head-on collision
constituted sufficient evidence to establish that the officers were placed in
danger of death or serious bodily injury. Accordingly, Petrocelli’s challenge
to the sufficiency of the evidence to support his REAP convictions fails.
Petrocelli next argues that the trial court vindictively increased his
sentence after he filed post-sentence motions seeking modification of his
sentence.
Appellant’s Brief at 28.
This claim raises a challenge to the
discretionary aspects of Petrocelli’s sentence. See Commonwealth v.
Robinson, 931 A.2d 15, 21 (Pa. Super. 2007) (en banc).
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A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004) (citation
omitted).
When challenging the discretionary aspects of the sentence
imposed, an appellant must present a substantial question as to the
inappropriateness of the sentence.
See Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be met before
we will review this challenge on its merits.”
McAfee, 849 A.2d at 274.
“First, an appellant must set forth in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
aspects of a sentence.” Id. “Second, the appellant must show that there is
a substantial question that the sentence imposed is not appropriate under
the Sentencing Code.” Id. That is, “the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.”
870 A.2d at 365.
Tirado,
We examine an appellant’s Rule 2119(f) statement to
determine whether a substantial question exists. See id. “Our inquiry must
focus on the reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the appeal on the
merits.” Id.
In the present case, Petrocelli’s appellate brief contains the requisite
2119(f) concise statement, and, as such, is in technical compliance with the
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requirements to challenge the discretionary aspects of a sentence. Petrocelli
argues in his 2119(f) statement that the sentence imposed was “the product
of vindictiveness where the overall sentence increased from 33-60 months to
35-66 months following a motion seeking modification and where the [c]ourt
noted that it had no sympathy for Mr. Petrocelli and that he had been
‘nothing but a pain since he has come into the courtroom.’” Appellant’s Brief
at 26. A claim of vindictiveness in sentencing raises a substantial question
for our review. See Commonwealth v. Tapp, 997 A.2d 1201, 1203 (Pa.
Super. 2010), appeal denied, 608 Pa. 654, 12 A.3d 752 (2010). This Court
has previously noted that
a resentence following a motion for modification may not exceed
the previous sentence without justification. Where a subsequent
sentence imposes a greater penalty than previously was
imposed, a presumption of vindictiveness attaches. [W]henever
a judge imposes a more severe sentence upon a defendant ...
the reasons for doing so must affirmatively appear. In order to
overcome the presumption of vindictiveness, the sentencing
court's reasons must be based upon objective information which
justifies the increased sentence.
Commonwealth v. Hernandez, 783 A.2d 784, 787 (Pa. Super. 2001)
(emphasis and citations omitted).
Herein,
on
February
21,
2012,
Petrocelli
filed
a
Motion
for
Reconsideration and Modification of Sentence, on the grounds that the trial
court had calculated his guideline ranges on an incorrect prior record score
of RFEL, rather than as a 5. Upon resentencing, the trial court increased the
sentence imposed at Count 6, Accident Involving Damage to Attended
Vehicle or Property, from three to six months’ incarceration to six to twelve
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months’ incarceration.
The court also decreased a sentence imposed at a
summary conviction by 30 days. As a result, Petrocelli’s aggregate sentence
increased from 33-60 months to 35-66 months, and a presumption of
vindictiveness attaches. See Hernandez, 783 A.2d at 787. However, when
defense counsel objected that the trial court had imposed a greater sentence
at count 6 than originally imposed on more serious guideline ranges, the trial
court merely noted the objection for the record, without articulating a reason
for its upward increase in Petrocelli’s sentence. N.T., Resentencing Hearing,
4/18/12 at 7.
Although we do not find any evidence of record to suggest that the
trial court acted vindictively in increasing Petrocelli’s sentence after
consideration of his post-sentence motion, we are constrained to find that in
failing to provide “objective information which justifies the increased
sentence,” the trial court failed to rebut a presumption of vindictiveness.6
Accordingly, although we affirm Petrocelli’s convictions, we are constrained
to vacate the judgment of sentence and remand for resentencing, with
instructions that the trial court articulate its justification for any increase in
the sentence imposed.7
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6
In its Rule 1925(a) opinion, the trial court states without further elucidation
that the increased sentence was “the result of an overall plan designed to
appropriately sentence Defendant.” Trial Court Opinion, 5/7/13 at 13.
7
Based on our disposition of this issue we need not reach the merits of
Petrocelli’s third issue raised on appeal.
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Judgment of sentence vacated. Convictions affirmed. Case remanded
for resentencing consistent with this memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/2014
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