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HomeMy WebLinkAboutCP-21-CR-0000442-2012 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : DORA GAY VOGELSONG : CP-21-CR-0442-2012 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., June , 2013:-- Defendant, Dora Gay Vogelsong, was found guilty of recklessly endangering another person after a bench trial on January 22, 2013. Following her sentencing on March 12, 2013, the Defendant filed this timely appeal contending that the Commonwealth failed to present sufficient evidence. I. Facts On November 19, 2011 about 3:20 a.m., a dark-colored horse was 1 discovered wandering on Wertzville Road. When Officer Jared Huff of the Silver Spring Township Police Department responded to the scene, the horse ran in 2 front of his patrol car. Officer Huff requested assistance in finding the owner of the horse from Officer David Jenkins, also from the Silver Spring Township 3 Police Department. After Officer Jenkins located the owner, Officer Huff went to 4 talk to the Defendant, who admitted that the horse on the road was hers. Officer Huff then took Defendant to the horse and lectured her “about the dangers of the horse being on the roadway . . . and [the] need [for it] to be 1 Notes of Testimony, Jan. 22, 2013 at 5 (hereafter N.T. at ). 2 N.T. at 5. 3 N.T. at 5. 4 N.T. at 7-8. CP-21-CR-0442-2012 5 restrained on her property.” Defendant then walked her horse back through the 6 woods to her property. Officer Huff testified that Wertzville Road is a busy state 7 road with a speed limit of 45. Later that same day, at 6:41 p.m., Officer Jenkins received a call from Sarah Hale informing him that she had struck a dark-colored horse with her 8 vehicle on Wertzville Road. Officer Jenkins testified that the traffic on Wertzville 9 Road after 6:00 p.m. is “medium” but “consistent,” with few breaks in the flow. After hearing of the accident, Officer Jenkins went to Defendant’s property and 10 was informed that the horse that Ms. Hale hit was Defendant’s. A non-jury trial was held on January 22, 2013, at which the Defendant was found guilty of one of 11 the three charges filed. II. Standard of Review The standard for reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offense beyond a reasonable doubt. Commonwealth v. Strouse, 909 A.2d 368, 268-69 (Pa. Super. 2006). The Commonwealth does not need to preclude every possibility of innocence or 5 N.T. at 7. 6 N.T. at 21. 7 N.T. at 9. 8 N.T. at 22, 23. 9 N.T. at 26, 27. 10 N.T. at 24, 25. 11 The court found the Defendant not guilty of Cruelty to Animals, 18 Pa.C.S. § 5511(c), because her conduct, though reckless, was not cruel or wanton. Defendant was found not guilty of Driving While Operating Privilege is Suspended or Revoked (DUI-related), 75 Pa.C.S. § 1543(b)(1), because the Commonwealth failed to prove notice. We stressed to her then, and remind her now, we merely found her not guilty – she was far from innocent. -2- CP-21-CR-0442-2012 establish the defendant’s guilt to a mathematical certainty. Commonwealth v. Brotherson, 888 A.2d 901, 904 (Pa. Super. 2005). The finder of fact exclusively weighs the evidence, assesses the credibility of witnesses, and may choose to believe all, part, or none of the evidence. Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011) (internal citations omitted). III. Analysis: Recklessly Endangering Another Person This Court holds the evidence presented at trial, when viewed in the light most favorable to the Commonwealth, was sufficient to support a finding that all elements of the offense of recklessly endangering another person had been proven beyond a reasonable doubt. At trial the Commonwealth introduced the testimony of Officer Huff and Officer Jenkins, all of which this Court found to be credible. A person is guilty of recklessly endangering another person if the Commonwealth proves the following elements beyond a reasonable doubt: “(1) a mens rea [of] recklessness, (2) an actus reus [or] some conduct, (3) causation which places, and (4) the achievement of a particular result [namely] danger to another person, of death or serious bodily injury.” Commonwealth v. Reynolds, 835 A.2d 720, 727 (Pa. Super. 2003) (internal citations and quotation marks omitted). A. Recklessness A mens rea of recklessness requires “a conscious disregard of a known risk of death or great bodily harm to another person.” Commonwealth v. Klein, 795 A.2d 424, 428 (Pa. Super. 2002).Here, earlier that morning, Defendant’s -3- CP-21-CR-0442-2012 12 horse was running loose on Wertzville Road. Police informed her about the obvious dangers of a horse walking on a busy road with a speed limit of 45 miles 13 an hour. The Defendant knew of this manifest risk. Furthermore, she consciously disregarded this risk by not taking steps to prevent her horse from escaping again. There was no evidence presented at trial to show that she had taken any steps to secure her horse properly. In short, Defendant had a mens rea of recklessness. B. Actus Reus The actus reus requirement is that the party’s conduct is“a voluntary act or the omission to perform an act of which he is physically capable.” 18 Pa.C.S. § 301. An omission can fulfill the actus reus requirement if, “a duty to perform the omitted act is otherwise imposed by law.” Id. The Commonwealth must therefore prove that the Defendant had a duty imposed by law to prevent her horse from getting onto the road, and that her failure to act breached that duty. There is a duty imposed by law that requires an owner of a horse to control their horse and prevent it from escaping. 3 P.S. § 584 (“[N]o stallion shall be permitted to run at large on the public highways of this commonwealth.”); Bender v. Welsh, 25 A.2d 182, 185 (Pa. 1942) (stating that an owner of livestock has a duty to make an earnest endeavor to control their livestock’s movements); Tassoni v. LeBoutillier, 196 A. 534, 536 (Pa. Super. 1938) (stating that an owner of a horse had a duty to prevent it from straying). Manifestly, Defendant 12 N.T. at 7. 13 N.T. at 27. -4- CP-21-CR-0442-2012 14 breached this duty by having her horse escape and end up on Wertzville Road. By failing to control her horse, Defendant satisfied the actus reus requirement breaching her duty imposed by law. Furthermore, Defendant’s act of placing the horse back into the habitat, from which it previously escaped, was a voluntary act that also satisfies the actus reus requirement. Thus, based on both omission and commission, we were satisfied that the Commonwealth proved the actus reus requirement beyond a reasonable doubt. C. Causation The causation requirement is that the party’s conduct was the “but for” and the proximate cause of the result. For the conduct to be the “but for” cause, it must be shown in the absence of the Defendant’s act the result would not have occurred. 18 Pa.C.S. § 303. Here, had Defendant not secured her horse poorly (if she secured it at all), the horse would not have been on the road and the car accident would have been avoided. Furthermore, it is clear that the actual result was well “within the risk of which the [Defendant] is aware.” Id. The probable result of a driver hitting a horse on a busy road, with a speed limit of 45 miles per hour, is serious bodily injury or death. Fortunately, the harm that resulted was less extensive then the probable result. Defendant earns no credit for this good fortune. In short, her acts fulfill the proximate cause requirement beyond a reasonable doubt and thereby satisfy the third element. D. Achievement of a Particular Result The last element of recklessly endangering another person is the achievement of a particular result. This element requires “creation of danger [,] . 14 N.T. at 8. -5- CP-21-CR-0442-2012 . . the mere apparent ability to inflict harm is not sufficient. Danger, and not merely the apprehension of danger, must be created.” Commonwealth v. Reynolds, 835 A.2d 720, 728 (Pa. Super. 2003). Here, it is clear that there was a creation of danger. A large animal on a busy roadway that has a speed limit of 45 miles an hour creates the danger of a car accident, in which multiple members of the motoring public are placed at risk. Thus, we concluded that the Commonwealth had proven the fourth element beyond a reasonable doubt. IV. Conclusion In short, this Court concludes that the evidence admitted at trial by the Commonwealth was sufficient to support a finding, beyond a reasonable doubt, that Defendant was guilty of recklessly endangering another person. Accordingly, Defendant’s conviction should be affirmed. By the Court, Albert H. Masland, J. Matthew P. Smith, Esquire Assistant District Attorney Linda S. Hollinger, Esquire For Defendant :sal -6-