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Commonwealth of Pennsylvania v. Bysheer Riggs

September 6, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
BYSHEER RIGGS, APPELLANT



Appeal from the Judgment of Sentence June 15, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0015069-2009

The opinion of the court was delivered by: Stevens, P.J.

J-S44004-12

BEFORE: STEVENS, P.J., GANTMAN, J., and OLSON, J.

OPINION BY STEVENS, P.J.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County for an aggregate sentence of twelve (12) to thirty (30) years incarceration for Driving Under the Influence*fn1 ,

Possession of Marijuana*fn2 , three counts of Recklessly Endangering Another Person*fn3 , three counts of Aggravated Assault*fn4 , and three counts of Aggravated Assault by Vehicle While Driving Under the Influence.*fn5 Appellant raises two issues on appeal: 1) Appellant contends that the evidence presented at trial was insufficient to establish guilt beyond a reasonable doubt on any of the three counts of Aggravated Assault; 2) Appellant next argues that his sentence of 12 to 30 years was an abuse of the trial court's discretion. We affirm.

The facts of this case are as follows:

On January 24, 2011, at the conclusion of the non-jury trial, [Appellant] was found guilty by the Court on the above- recited charges. On June 15, 2011, [Appellant] was sentenced on each of the three counts of Aggravated Assault to a period of confinement of 4 to 10 years to be served at a state correctional institution. These sentences were to run consecutively for a total of 12 to 30 years. [Appellant] was sentenced on each of the three counts of DUI-related Aggravated Assault to 4 to 10 years each, to be served concurrent with the Aggravated Assault sentences. [Appellant] was sentenced on each of the three counts of Recklessly Endangering the Life of Another Person to a period of confinement of 1 to 2 years each, to be served concurrent with the Aggravated Assault sentences. [Appellant] was sentenced on the count of Driving Under the Influence (DUI) to a period of confinement of 1 to 6 months at a state correctional institution, to be served concurrent with the Aggravated Assault sentences. [Appellant] was sentenced on the count of Possession of Marijuana to a period of confinement of 30 days at a state correctional institution, to be served concurrent with the Aggravated Assault sentences.

Police Officer Dimitry Sokora testified that in the early morning of July 19, 2009, he and his partner, Officer Charles James, were stopped and doing paperwork at the intersection of Hutchinson Street and Bigler Street in Philadelphia. Officer Sokora "heard an engine rev loudly," and observed a "dark- colored Pontiac" traveling at a "high rate of speed" on Bigler towards the intersection of Bigler and 10th Street. Officer Sokora pulled out on Bigler Street, activated his lights, and followed the Pontiac towards the intersection of Bigler and 10th Street. Officer Sokora then observed the Pontiac continue through the red light at the intersection, "without any brake lights," and collide with "a vehicle that was traveling southbound on 10th Street." The vehicle spun around, ran over a fire hydrant, "knocked down a fence, " and "ended up on the sidewalk... resting on the fence." Officer Sokora testified that "two, three ambulances, as well as rescue equipment, Jaws of Life" were required to treat the occupants. Police Officer William Lackman, an expert witness in accident reconstruction, testified that [Appellant] could not have been traveling at a speed "less than 50 miles per hour" at the time of impact.

Officer Sokora testified that after the Pontiac came to rest, he observed the [Appellant] "reach out, [grab] the top of the driver's side window, pull himself out and run basically over the back of the vehicle." Officer Sokora identified [Appellant] from prior dealings with him. Officer James testified that he "jumped out of [his] car, [and] started chasing the [Appellant] through an alleyway." After Officer James lost sight of the [Appellant] for five or six minutes, he returned to the scene of the incident and sent out a description of the [Appellant] ("flash") over police radio.

Police Officer Raphael McGough testified that, upon arrival to the scene and receipt of the information, he recognized [Appellant's] name and knew "that the [Appellant] may be at a location that [he is] familiar with the [Appellant] being at, [an] address on South 8th." When Officer McGough arrived at the address, he observed the [Appellant] "sitting on a stoop." When Officer McGough walked toward him, [Appellant] tossed away a sandwich bag filled with a substance that "tested positive for marijuana." Officer McGough then apprehended [Appellant], transported him to the original scene of the accident, and "The officers that were originally on the job... identified him as the person we were looking for." There was a stipulation between the parties that the "blood analysis conducted" on [Appellant] the night of the incident showed that "he did have marijuana in his system to an extent that would make him unable to drive safely."

The complaining witness, Ms. Gwendolyn Rabautino, testified that in the early morning of July 19, 2009, she and her thirteen-year-old daughter, Gianna Rabautino, were passengers in a Hyundai Accent driven by Mr. James Rosemann. They were stopped at a red light at 10th and Bigler Street in Philadelphia. Ms. Rabautino doesn't "remember anything after" being stopped at the red light. Ms. Rabautino's next memory is waking up at Jefferson Hospital, where she remained for "eight or nine days." She testified to numerous injuries, including a "dislocated shoulder, neck brace, back brace, fractured front tooth, [and] some scars. Ms. Rabautino testified that her daughter suffered broken legs, as well as a broken collar bone [and] two scars on her face."

The complaining witness, Mr. Rosemann, testified that he was the driver of the vehicle and only remembers "proceeding across the intersection and being impacted." He has no further memory until he woke up in the hospital sometime in November, at least three months after the incident. He testified that he suffered spinal fractures, broken ribs, pelvis fractures, and a broken femur as a result of the collision. All three victims underwent substantial physical therapy for their injuries, and both Ms. Rabautino and Mr. Rosemann were unable to keep their jobs due to the injuries suffered during the incident.

Police Officer David Burns testified that on June 23, 2009, approximately 11 months before the matter at hand, he and his partner pulled [Appellant] and a female over for a tinted window violation at the intersection of 5th Street and Oregon Avenue. The vehicle involved in that incident was the same "'97 Pontiac Grand Prix, green in color" involved in the instant matter. Police Officer Phillip Muscareno testified that on June 27, 2008, approximately 13 months before the matter at hand, when he "attempted to stop the vehicle" driven by [Appellant], [Appellant] "took off at a high rate ...


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