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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AARON GABRIEL MUMMERT
Appellant No. 1218 MDA 2014
Appeal from the Judgment of Sentence of June 26, 2014
In the Court of Common Pleas of Adams County
Criminal Division at No.: CP-01-CR-0000831-2013
BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED APRIL 06, 2015
Aaron Gabriel Mummert appeals from the judgment of sentence that
was imposed following his jury convictions of fleeing or attempting to elude
a police officer and tampering with or fabricating physical evidence.1
Counsel for Mummert has petitioned for leave to withdraw as counsel on the
ground that Mummert’s issues on direct appeal are wholly frivolous. We
grant the petition for leave to withdraw as counsel, and we affirm the
judgment of sentence.
The trial court set forth the underlying history of this case as follows:
On June 11, 2013, at approximately 4:00 p.m., Trooper George
Ross (“Trooper Ross”) of the Pennsylvania State Police,
Gettysburg Barracks, was in a marked patrol car positioned in
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1
75 Pa.C.S.A. § 3733 and 18 Pa.C.S.A. § 4910, respectively.
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the area of State Route 234 and Route 15 in Adams County,
Pennsylvania. Trooper Ross received a bulletin reporting that a
sport bike style motorcycle was traveling at a high rate of speed
with an operator who was not wearing a shirt or a helmet. A few
minutes after receiving the bulletin, Trooper Ross heard a sport
bike approaching before seeing it through his rearview mirror as
it approached a stop sign, failed to stop, and made a right turn
onto S.R. 234. During the approximately one second during
which the Trooper was able to observe the front and side of the
bike, he noted that the motorcycle was dark blue and the
operator was a white male with short dark hair, that he was not
wearing a shirt, and that he was wearing riding glasses.
Upon making these observations, Trooper Ross turned on his
police cruiser’s lights and sirens and followed the sport bike in an
effort to make a traffic stop. The bike was traveling faster than
the trooper, who was going 35 to 50 miles per hour. Trooper
Ross saw the motorcycle again when it was about 100 yards
ahead of him before the motorcycle “increased speed
significantly” and passed two or three vehicles on a curve. The
trooper gave chase and his cruiser reached speeds of 115 to 120
miles per hour, yet the motorcycle continued to pull away.
Trooper Ross testified that, at the closest, he was 100 to 150
yards from the motorcycle. Trooper Ross then met up with
Officer Greg Morehead (“Officer Morehead”) of the Reading
Township Police Department and the two pulled their vehicles to
the side of the road. After Trooper Ross provided a description
of the motorcycle and the rider to Officer Morehead, Officer
Morehead mentioned the name Aaron Mummert and Trooper
Ross testified that the name “clicked in [his] head” as matching
the description of the operator.
Trooper Ross and Officer Morehead then traveled to where they
knew [Mummert] to be living, at 8 Ewell Drive in Lake Meade,
arriving at approximately 4:20 p.m. When Trooper Ross arrived,
he noted that there was a blue motorcycle in the driveway that
did not look like the sport bike he had attempted to stop. Before
Trooper Ross had exited his vehicle, [Mummert] came out of the
house, wearing a black t-shirt, dark jeans, boots, and dark riding
glasses on top of his head. Upon interacting with Trooper Ross,
[Mummert] appeared nervous, as evidenced by the fact that he
was pacing and the veins in his face and neck were pulsing.
Without being questioned about a motorcycle or the reason
officers were at his house, [Mummert] pointed to the motorcycle
in the driveway and said, “that’s my bike.” When asked about
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his sport bike,4 [Mummert] initially stated that it was at his
grandmother’s house in Hanover, Pennsylvania, before
eventually admitting that he had placed it in the house to keep it
out of the rain, despite the fact that it was not raining and there
was no testimony that rain was forecasted that day.
4
Officer Morehead had recently interacted with
[Mummert] on an earlier occasion when he was riding his
sport bike.
The officers recovered a sport bike from [Mummert’s] basement
around 5 p.m. which Trooper Ross stated was “exactly” the bike
that he had seen in his rear view mirror. The basement smelled
of exhaust fumes and the bike’s engine was hot to the touch.
The officers then placed [Mummert] under arrest and seized the
bike as evidence. Later, as Trooper Ross was typing up charges,
[Mummert] stated, “all this for $107;” Trooper Ross testified that
$107 is the approximate cost of a stop sign violation after
accounting for fines, fees, and other costs.
On cross examination, Trooper Ross testified that Officer
Morehead had asked [Mummert] to take off his shirt.
[Mummert] complied and turned around to show his entire torso
and Trooper Ross said “I don’t know about that” because he did
not recall the rider having tattoos to the extent that he observed
on [Mummert].5 Officer Morehead then testified that he had
previously interacted with [Mummert] approximately two weeks
before the incident at issue, on May 22, 2013, on which occasion
[Mummert] was riding his sport bike without a shirt and with a
backwards baseball cap. Officer Morehead also routinely patrols
Ewell Drive in Lake Meade and had seen motorcycles in
[Mummert’s] driveway while it was raining.
5
Trooper Ross testified: “For that second that he went
by, I wasn’t able to observe the tattoos as the distance
and things it was quick. I just knew it was a white male
who operated a motorcycle that was dark blue with that
detailing. There was radio traffic going between
Pennsylvania State Police, Adams County, even to the
guard shack, and to local PDs where somewhere tattoos”
were mentioned.
* * *
The jury returned a verdict of guilty on counts of fleeing or
attempting to elude a police officer and tampering with or
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fabricating physical evidence. On June 26, 2014, [Mummert]
was sentenced to fifteen (15) to thirty (30) months on his
conviction of fleeing or attempting to elude [a] police officer and
three (3) to six (6) months for tampering with or fabricating
physical evidence, to run concurrently to his sentence on Count
1. On July 7, 2013, [Mummert] filed his Motion for Post-Trial
Relief, . . . which was denied by th[e trial c]ourt. On July 8,
2013, [Mummert] filed a Motion to Order Bail Pending
Defendant’s Motion for Post-Trial Relief, which th[e trial c]ourt
also denied. [Mummert] filed his Notice of Appeal on July 21,
2014. His Concise Statement of Matters Complained of on
Appeal Pursuant to Pa.[R.A.P.] 1925(b) followed on August 14,
2014.
Trial Court Opinion (“T.C.O.”), 9/22/2014, at 1-4, 7-8. On September 22,
2014, the trial court entered its Pa.R.A.P. 1925(a) opinion.
On December 9, 2014, counsel for Mummert filed an Anders brief in
which he presented issues that might arguably support an appeal. 2 Counsel
filed his petition for leave to withdraw as counsel on the same day, stating
that, after a conscientious examination of the record, he determined that the
appeal would be wholly frivolous. See Petition for Leave to Withdraw as
Counsel, 12/9/2014, at unnumbered page 2 ¶ 4. Attached to the petition is
a copy of his letter to Mummert advising him of counsel’s intent to seek
withdrawal as his counsel and of Mummert’s right to retain new counsel or to
proceed with his appeal pro se, and providing him with a copy of the Anders
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2
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), abrogated in part by
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
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brief filed with this Court. See id. at Attachment. Mummert has not
responded to counsel’s petition for leave to withdraw.
[I]n the Anders brief that accompanies . . . counsel’s petition to
withdraw, counsel must: (1) provide a summary of the
procedural history and facts, with citations to the record; (2)
refer to anything in the record that counsel believes arguably
supports the appeal; (3) set forth counsel’s conclusion that the
appeal is frivolous; and (4) state counsel’s reasons for
concluding that the appeal is frivolous. Counsel should articulate
the relevant facts of record, controlling case law, and/or statutes
on point that have led to the conclusion that the appeal is
frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Anders counsel must also provide a copy of the Anders petition
and brief to the appellant, advising the appellant of the right to
retain new counsel, proceed pro se or raise any additional points
worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and
remand the case with appropriate instructions (e.g., directing
counsel either to comply with Anders or file an advocate’s brief
on Appellant’s behalf). By contrast, if counsel’s petition and
brief satisfy Anders, we will then undertake our own review of
the appeal to determine if it is wholly frivolous. If the appeal is
frivolous, we will grant the withdrawal petition and affirm the
judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)
(citations omitted).
In the instant case, counsel has complied substantially with the
Anders and Santiago requirements. Counsel has submitted a brief that
summarizes the case and cites to the record, see Anders Brief at 5-9;
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refers to anything that might arguably support the appeal, id. at 10; and
sets forth his reasoning and conclusion that the appeal is frivolous, id. at 10-
14. See Santiago, 978 A.2d at 361. Counsel has filed a petition for leave
to withdraw as counsel, sent Mummert a letter advising him that counsel
found no non-frivolous issues, provided Mummert with a copy of the Anders
brief, and notified Mummert of his right to retain new counsel or proceed pro
se. Mummert has not responded.
“Once counsel has satisfied the [Anders] requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)
(citation omitted).
In the Anders brief, counsel identified four potential questions for our
review:
1. Was the weight of the evidence at trial not sufficient for
verdicts of guilty on fleeing or attempting to elude a police
officer and tampering with or fabricating physical evidence?
2. Did the [t]rial [c]ourt err in allowing the Commonwealth to
show a photograph of [Mummert’s] motorcycle that they saw,
and allowing the Commonwealth to put a similar motorcycle in
the courtroom for the witnesses to testify that it was similar to
the one they saw?
3. Did the [t]rial [c]ourt err by not allowing [Mummert] to
remove his shirt to show his large tattoo to the jury, when none
of the witnesses referenced that the driver of the motorcycle had
a tattoo?
4. Did the [t]rial [c]ourt err in denying [Mummert’s] Post-
Sentence Motion on these issues?
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Anders Brief at 4.
In the first issue presented in the Anders brief, counsel asserts that
“the weight of the evidence was not sufficient for convictions of fleeing or
attempting to elude a police officer and tampering with or fabricating
physical evidence.” Id. at 11. We disagree.
Our Supreme Court has held that:
[t]he weight of the evidence is exclusively for the finder of fact
who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact.
Thus, we may only reverse the lower court’s verdict if it is so
contrary to the evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 409 (Pa. 2003).
In reviewing Mummert’s weight claim, the trial court stated:
Here, the guilty verdicts rendered after [Mummert’s] jury trial
clearly cannot be characterized as so contrary to the weight of
the evidence so as to shock one’s sense of justice. ...
Throughout [Mummert’s] trial, numerous witnesses credibly
testified that they observed a blue sport bike which looked at
least similar to the photograph they were shown of [Mummert’s]
bike. Nearly all of the eyewitnesses gave a description of the
rider that matched [Mummert’s] general physical appearance
and the matter in which he was dressed on June 11, 2013,
including testimony that the rider had short and dark hair, was
not wearing a shirt, was wearing riding glasses, and was wearing
dark pants. Trooper Ross testified that he activated his lights
and sirens upon seeing a blue sport bike meeting the description
of the speeding vehicle in the bulletin fail to stop at a stop sign
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and several witnesses testified that that they observed the rider
looking behind him in the direction of following police cruisers.
T.C.O. at 9. The trial court also identified inconsistencies in the evidence,
including “the fact that virtually none of the witnesses mentioned that the
shirtless driver had significant tattoos, as [Mummert] does,” and “confusion
in witness testimony regarding whether the rider was wearing a shirt and the
fact that [Mummert] had a normal and somewhat lengthy conversation with
Ms. Glass at the Lake Meade guard shack before proceeding into the housing
development.” Id. at 11, 11 n.9. The record demonstrates, however, that
the motorcycle was traveling at high speeds, Notes of Testimony (“N.T.”),
4/3/2014, at 24, and that Carol Glass talked to Mummert on his sport
motorcycle at the gatehouse less than five minutes before the police arrived,
id. at 119. Therefore, considering the motorcycle’s high rate of speed, it is
not unreasonable that eyewitnesses were unable to clearly identify whether
the rider had tattoos on his torso, nor that Mummert would arrive at the
gatehouse to have enough time to converse with Carol Glass before taking
his bike into his basement before the police arrived.
It is well-settled that “[w]here the evidence is conflicting, it is the
province of the fact finder to determine credibility; it is the prerogative of
the fact finder to believe all, part or none of the evidence presented.”
Commonwealth v. Ellis, 549 A.2d 1323, 1334 (Pa. Super. 1988) (citation
omitted). Here, the jury weighed the evidence and drew its own conclusions
regarding its credibility. The trial court, in reviewing that determination,
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assessed the strengths and weaknesses of the Commonwealth’s case against
Mummert and determined that the verdicts of guilt did not shock the court’s
conscience. Mummert points to no evidence which was “so clearly of greater
weight [than those accepted by the jury] that to ignore them, or to give
them equal weight with all the facts, is to deny justice.” Commonwealth v.
Lewis, 911 A.2d 558, 565 (Pa. Super. 2006). Accordingly, the trial court
did not abuse its discretion, and we determine that Mummert’s claim that
the verdicts were against the weight of the evidence is frivolous.
In his second issue, Mummert would contend that the trial court “erred
in allowing the Commonwealth to show a photograph of [Mummert’s]
motorcycle to each witness without any prior motorcycle line-up, or the
motorcycle they saw, and allowing the Commonwealth to put a similar
motorcycle in the courtroom for the witnesses to testify that it was similar to
the one they saw.” Anders Brief at 11-12. We disagree.
“In reviewing a trial court’s ruling on the admissibility of evidence, our
standard of review is one of deference. Questions concerning the
admissibility of evidence are within the sound discretion of the trial court,
and its discretion will not be reversed absent a clear abuse of discretion.”
Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super. 2014)
(citations and internal quotation marks omitted).
Preliminarily, we observe that Mummert failed to object to the
admission of the identification of his motorcycle at trial, and has thus waived
this issue on appeal. See Pa.R.A.P. 302(a); Commonwealth v. Olsen, 82
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A.3d 1041, 1050 (Pa. Super. 2013) (“A defendant must make a timely and
specific objection at trial or face waiver of [his] issue on appeal.”) (citation
omitted).
Moreover, it is well-settled that identification of inanimate objects does
not require the Commonwealth to proffer a line-up in order to be admissible:
[T]here is no basis for applying the identification
procedures applicable to suspects to testimony identifying
inanimate objects and we decline to extend cases
protecting the accused’s rights to a fair pre-trial
identification to the pre-trial identification of physical
evidence. There is a difference between an identification
of a defendant and of an inanimate object. The due
process concerns implicated in identification of a defendant
are not implicated in the identification of a vehicle.
Identification of an accused tends to be direct proof of the
case against him, while that of an inanimate object is only
indirect proof of the defendant’s guilt. . . .
Thus[, in Commonwealth v. Chmiel, 889 A.2d 501, 523-24
(Pa. 2005),] the Court found that “the risks inherent in
identification of inanimate objects go to the weight and
sufficiency of the evidence instead of admissibility,” and such
identification evidence is properly submitted to the jury.
Commonwealth v. Crork, 966 A.2d 585, 588-89 (Pa. Super. 2009).
Accordingly, even if Mummert had preserved this issue for our review,
the trial court did not err by permitting witnesses to identify Mummert’s
motorcycle without conducting a “motorcycle line-up.” This issue is frivolous
and would not merit relief.
In his third issue, Mummert contends that the trial court “erred by not
allowing [Mummert] to remove his shirt to show his large tattoo to the jury,
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when none of the witnesses referenced that the driver of the motorcycle had
a tattoo.” Anders Brief at 12. We disagree.
As previously stated, on review of questions of admissibility of
evidence, we defer to the trial court’s discretion. See Thompson, 106 A.3d
at 754.
Before evidence may be admitted, it must be authenticated.
Pennsylvania Rule of Evidence 901 governs the authentication of
evidence. Rule 901 states, “The requirement of authentication
or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” Pa.R.E.
901(a).
Commonwealth v. Smith, 47 A.3d 862, 865 (Pa. Super. 2012) (case
citations omitted); see also Pa.R.E. 901, Comment (“In some cases, real
evidence may not be relevant unless its condition at the time of trial is
similar to its condition at the time of the incident in question. In such cases,
the party offering the evidence must also introduce evidence sufficient to
support a finding that the condition is similar.”).
Here, the trial court determined that Mummert had failed to
demonstrate that his tattoos at the time of trial were the same since June
11, 2013, when he was riding the sport bike without a shirt. N.T. at 145.
Absent such proof, the court concluded that evidence of what his tattoos
looked like at trial could not be authenticated and was, therefore, unreliable
and inadmissible. Id.; see T.C.O. at 15. Nonetheless, Mummert introduced
the fact that he had tattoos on his torso at trial by specifically describing
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them, which would further make the request to remove his shirt for the jury
duplicative. N.T. at 158-59. Meanwhile, many of the eyewitnesses testified
that they did not remember whether or not the operator of the sport bike
had tattoos, so a specific showing of his tattoos where none of the witnesses
denied that he had them would not be relevant to whether they were able to
identify him as the operator. See N.T. at 63-64. Accordingly, the trial court
did not abuse its discretion by not allowing Mummert to remove his shirt.
This issue is frivolous and without merit.
Finally, Mummert contends that the trial court erred in denying his
post-sentence motion. Anders Brief at 12. Specifically, Mummert
challenges the denial of his post-sentence motion for an arrest of judgment
or a new trial for the same reasons argued now on appeal. Id. at 12-13.
We disagree.
We review a trial court’s denial of a post-sentence motion for an abuse
of discretion. See Commonwealth v. Moore, 978 A.2d 988, 993 (Pa.
Super. 2009). “An abuse of discretion is not merely an error of judgment,
but is rather the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-
will or partiality, as shown by the evidence of record.” Commonwealth v.
Belknap, 105 A.3d 7, 10 (Pa. Super. 2014) (citation omitted).
As previously discussed, we have reviewed the trial court’s disposition
of Mummert’s issues raised in his post-sentence motion and on appeal, and
conclude that the trial court did not abuse its discretion where the issues he
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raised are frivolous and without merit. Furthermore, upon independent
review, we find no other non-frivolous basis for appeal. Therefore, we
conclude that Mummert’s appeal is wholly frivolous. O’Malley, 957 A.2d at
1266.
Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2015
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