J-S33039-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PATRICK JOSEPH VAUGHN, :
:
Appellant : No. 1828 MDA 2016
Appeal from the Judgment of Sentence August 18, 2016
in the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000002-2016
BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 07, 2017
Patrick Joseph Vaughn (Appellant) appeals from the judgment of
sentence entered August 18, 2016, after he was found guilty of fleeing or
attempting to elude a police officer, driving under the influence (DUI), and
driving with a suspended license. We affirm.
The trial court summarized the pertinent factual and procedural history
as follows.
On December 13, 2015, at approximately 2 a.m.,
Patrolman Eiker of the Cumberland Township Police Department
was on patrol. He was in full uniform and a marked police
vehicle. Patrolman Eiker was traveling northbound on Biglerville
Road when he observed a “grayish color, silverish color Ford
F150” pull out from North Avenue on to Biglerville Road right in
front of the vehicle Patrolman Eiker was behind.1 As the truck
traveled northbound, Patrolman Eiker observed the truck cross
over the white fog line numerous times.
* Retired Senior Judge assigned to the Superior Court
J-S33039-17
______
1
The vehicle Patrolman Eiker was following needed
to use its brakes to avoid an accident with
Appellant’s truck.
Patrolman Eiker testified he activated his emergency lights
before Meadow Drive, right around the Misty Ridge development.
Appellant did not pull over but continued traveling northbound.
Patrolman Eiker testified to the ten locations with parking areas
and/or lighting that Appellant and Patrolman Eiker passed after
he activated his emergency lights but prior to Appellant[’s]
pulling over. Patrolman Eiker activated his emergency sirens3
somewhere between Capital Tristate and Dr. Samuel’s Office and
Church of the Brethren and Myers Electric. Again, Appellant
continued driving. At some point Appellant turned on his right
turn signal appearing, according to Patrolman Eiker, as if he was
going to make a turn or pull over; however, he continued
driving. After Appellant passed Road Rangers Towing he turned
into a private driveway/lane. Appellant traveled approximately
1-1.2 miles from the time Patrolman Eiker activated his
emergency lights until he came to a stop in the private
driveway/lane. Once in the private driveway/lane, [later
identified as the driveway of Appellant’s cousin,] Appellant
traveled about 400 feet before he came to a stop.
______
3
Patrolman Eiker alternated siren levels in an effort
to get Appellant’s attention.
Patrolman Eiker testified the driveway/lane was not well lit
and the house sat about a half mile off the roadway. He also
saw a female sitting along the tree line on the property. When
Appellant stepped out of the vehicle Patrolman Eiker ordered him
to get down on the ground; Appellant ultimately complied.
Patrolman Eiker then handcuffed Appellant and brought him to
his police vehicle. The female approached Appellant, smacked
him in the face, and told him he was going to jail.
He placed Appellant in the back of his police vehicle.
Officer Goodling, Patrolman Eiker’s backup, arrived on the scene
and was told to place the female in custody. While in the back of
Patrolman Eiker’s police vehicle, Appellant kicked at the doors,
head butted the window of the cage, yelled, screamed and acted
belligerently.
-2-
J-S33039-17
***
A jury trial in the above captioned matter was held before
[the trial court] on June 10, 2016. The jury convicted Appellant
of count 1, fleeing or attempting to elude a police officer, graded
as a felony of the third degree and count 2, driving under the
influence of alcohol-general impairment, graded as a
misdemeanor of the first degree. [The trial court] found
Appellant guilty of the summary charge of driving under
suspension, in violation of 75 Pa.C.S.[] § 1543(b)(1.1)(i).
On August 18, 2016, [the trial court] sentenced Appellant
on the fleeing and eluding charge to not less than 12 months nor
more than 36 months in a state correctional institution, not less
than 9 months nor more than 24 months in a state correctional
institution for the DUI charge, and 90 days confinement in a
state correctional institution on the driving under suspension
charge. All sentences ran consecutive[ly].
On August 26, 2016, Appellant filed a post-sentence
motion challenging both the weight and legal sufficiency of the
evidence. [The trial court] denied Appellant’s post-sentence
motion on October 25, 2016. This appeal followed.[1]
Trial Court Opinion, 11/29/2016, at 1-3 (some footnotes omitted).
On appeal, Appellant raises claims challenging the weight and
sufficiency of the evidence to sustain his conviction for fleeing or attempting
to elude a police officer. Appellant’s Brief at 10.
In reviewing Appellant’s sufficiency claim, we are mindful of the
following.
[O]ur standard of review of sufficiency claims requires that we
evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission
1
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
-3-
J-S33039-17
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. 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. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)
(internal citations and quotations omitted). The Commonwealth may sustain
its burden by means of wholly circumstantial evidence, and we must
evaluate the entire trial record and consider all evidence received against the
defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).
A person commits the crime of fleeing or attempting to elude a police
officer when, while driving a motor vehicle, he “willfully fails or refuses to
bring his vehicle to a stop, or who otherwise flees or attempts to elude a
pursuing police officer, when given a visual and audible signal to bring the
vehicle to a stop[.]” 75 Pa.C.S. § 3733(a).
Appellant contends the evidence was insufficient to sustain his
conviction because the Commonwealth failed to prove that he “willfully”
failed to stop.2 Appellant’s Brief at 13. Furthermore, Appellant avers
that because he did not accelerate his speed, maintained around
the speed limit, did not make any evasive maneuvers, and drove
only a mile on a road he could not have pulled over to the side
and been off the roadway, before he came to a stop on his own,
2
As correctly noted by the trial court, and set forth in more detail infra,
whether Appellant was able to prove at trial that he had a good faith concern
for his personal safety, which precluded him from pulling over, thus proving
that he did not “willfully” fail to stop, goes to the weight, not sufficiency of
the evidence. See Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa.
Super. 2012).
-4-
J-S33039-17
makes it clear that there was not sufficient evidence presented
by the Commonwealth to convict Appellant of fleeing or
attempting to elude a police officer.
Id. at 13.
The trial court responded to Appellant’s claim as follows.
A review of the evidence, in the light most favorable to the
Commonwealth as verdict winner, shows Appellant’s sufficiency
of the evidence claim is meritless. The Commonwealth
established Appellant was the driver of the motor vehicle.
Patrolman Eiker was in full uniform and a marked police vehicle.
Patrolman Eiker provided Appellant with a visual signal to pull
over. [Patrolman Eiker] testified he activated his emergency
lights before reaching Meadow Drive. Interestingly, the vehicle
immediately in front of Patrolman Eiker safely pulled over, but
Appellant continued driving. Patrolman Eiker also provided
Appellant with audio signals (siren) to pull over, even alternating
between two to three levels of sound to get Appellant’s
attention. Again, Appellant did not stop but continued driving.
Appellant and Patrolman Eiker passed a total of ten locations
that contained either a parking lot, a parking area, and/or lights
where Appellant could have safely stopped. Further, according
to testimony developed at trial, Appellant traveled anywhere
between 1-1.2 miles from the point Patrolman Eiker turned on
his emergency lights to when Appellant ultimately pulled over.
Moreover, Appellant even concedes he did not stop after noticing
the officer’s signal.
At trial, Appellant argued the affirmative defense of a good
faith concern for his personal safety claiming there was no safe
place to pull over. As in [Commonwealth v. Bowen] discussed
[supra], the issue regarding Appellant’s affirmative defense
actually goes to the weight of the evidence and will be dealt with
in more detail below. In summation, the Commonwealth
presented sufficient evidence to establish Appellant was driving a
motor vehicle and that he willfully failed to bring his vehicle
immediately to a stop after being given visual and audio signals
to stop. Therefore, Appellant’s legal sufficiency of the evidence
claim fails.
Trial Court Opinion, 9/26/2016, at 10-12 (footnotes omitted).
-5-
J-S33039-17
We agree with the trial court’s conclusions. Here, despite Appellant’s
protestations to the contrary, the statute does not mandate that there be
evidence that Appellant was driving recklessly, at a high rate of speed, or
using “evasive maneuvers” to elude police in order to be found guilty of the
aforementioned crime. In this case, Patrolman Eiker testified and Appellant
concedes, that the patrolman gave “sufficient visual and audible signal[s]” to
alert Appellant that he was being pulled over. N.T., 6/10/2016, at 34-42;
Appellant’s Brief at 11. Patrolman Eiker further stated that Appellant passed
ten locations where he could have pulled over safely but did not do so. N.T.,
6/10/2016, at 35-44.3 Based on the foregoing, the testimony, if believed by
the fact-finder, was sufficient to sustain Appellant’s conviction.4 Appellant’s
sufficiency challenge fails.
Next, we begin our review of Appellant’s weight-of-the-evidence
argument by setting forth our standard of review.
The decision of whether to grant a new trial on the basis of a
challenge to the weight of the evidence is necessarily committed
to the sound discretion of the trial court due to the court’s
observation of the witnesses and the evidence. A trial court
should award a new trial on this ground only when the verdict is
so contrary to the evidence as to shock one’s sense of justice. …
3
Notably, Patrolman Eiker testified that the vehicle directly behind Appellant
was able to safely pull over when Patrolman Eiker initiated his lights. N.T.,
6/10/2016, at 31.
4
Furthermore, while Appellant disputes the patrolman’s testimony that he
was able to pull over safely, as stated in more detail infra, we remind
Appellant that “[i]ssues of credibility are properly left to the trier of fact for
resolution, and the finder of fact is free to believe all, part, or none of the
evidence.” Commonwealth v. Chambers, 599 A.2d 630, 642 (Pa. 1991).
-6-
J-S33039-17
Our review on appeal is limited to determining whether the trial
court abused its discretion in denying the motion for a new trial
on this ground.
Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations
omitted). “Not merely an error in judgment, an abuse of discretion occurs
when the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,
as shown by the evidence on record.” Commonwealth v. Handfield, 34
A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29
A.3d 3, 6 (Pa. Super. 2011)).
In support of his claim, Appellant correctly identifies that 75 Pa.C.S. §
3733(d) delineates defenses that may be asserted by a defendant charged
with fleeing or attempt to elude a police officer.
(1) It is a defense to a prosecution under this section that the
pursuing police officer’s vehicle was not clearly identifiable
by its markings or, if unmarked, was not occupied by a
police officer who was in uniform and displaying a badge or
other sign of authority.
(2) It is a defense to prosecution under this section if the
defendant can show by a preponderance of the evidence
that the failure to stop immediately for a police officer’s
vehicle was based upon a good faith concern for personal
safety. In determining whether the defendant has met this
burden, the court may consider the following factors:
(i) The time and location of the event.
(ii) The type of police vehicle used by the police
officer.
(iii) The defendant’s conduct while being followed
by the police officer.
(iv) Whether the defendant stopped at the first
available reasonably lighted or populated area.
-7-
J-S33039-17
(v) Any other factor considered relevant by the
court.
Appellant contends that the conduct exhibited when he failed to pull
over showed that “he had a reasonable concern for his personal safety in not
immediately pulling over.” Appellant’s Brief at 15. As evidence, Appellant
avers Patrolman Eiker testified that “‘a little bit’ of [Appellant’s] truck ‘would
still be in the lane’” of traffic if Appellant decided to pull over on the side of
the road he was travelling. Id. at 16. Appellant acknowledges that the
testimony supports the Commonwealth’s position that Appellant failed to
stop “at the first available reasonably lighted or populated area[,]” 75
Pa.C.S. § 3733(d)(2)(iv). However, Appellant asserts that this position
fails to take into account split decisions and basic human error.
Appellant was driving around the speed limit (40-45 mph), at
night, with no lighting on the roadway, with an officer on his tail
shining his lights into Appellant’s rear view mirror. As
mentioned above, a reasonable person’s first instinct is to pull to
the side of the road, but Appellant had already reasonably
determined that was not safe. … [] Appellant in a stressful
situation with poor sight lines because of the lighting decided to
drive a short distance further to a place he was familiar with and
could safely pull over. Under the totality of the circumstances
that was a reasonable decision and does not contradict his
reasonable concern for his personal safety in not stopping
earlier.
Appellant’s Brief at 16-17 (citations omitted).
In its 1925(a) opinion, the trial court offered the following:
T[he trial c]ourt does not find the jury’s verdict [shocks] one’s
sense of justice. Based on the evidence [], the Commonwealth
presented sufficient evidence to sustain Appellant’s conviction.
Furthermore, the jury, as fact-finder, found the evidence
-8-
J-S33039-17
presented by the Commonwealth and Patrolman Eiker more
credible than Appellant’s. See Bowen, 55 A.3d at 1262 (“The
jury’s choice not to believe Appellant’s version of the events was
purely within its discretion and will not be disturbed on
appeal.”). Consequently, Appellant’s weight of the evidence
claim must fail.
Trial Court Opinion, 11/29/2016, at 8. We discern no abuse of discretion in
the trial court’s conclusion. As the trial court correctly observed, it is within
the province of the jury, sitting as fact-finder, to review the evidence and
assess the credibility of the testifying witnesses. See Chamberlain, 30
A.3d at 396 (“A motion alleging the verdict was against the weight of the
evidence should not be granted where it merely identifies contradictory
evidence presented by the Commonwealth and the defendant.”).
Accordingly, after a thorough review of the record and briefs, we find
Appellant has presented no issue on appeal which would convince us to
disturb his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2017
-9-