J. S62039/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DEMETRIUS EVANS, : No. 3108 EDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, December 16, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0006303-2013
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 02, 2018
Demetrius Evans appeals the judgment of sentence in which the Court
of Common Pleas of Philadelphia County sentenced him to serve an
aggregate term of one to two years of imprisonment followed by two years’
probation for his convictions for fleeing or attempting to elude an officer and
for recklessly endangering another person.1 After careful review, we affirm.
The facts, as recited by the trial court, are as follows:
On April 27, 2013, Philadelphia Police Officer
Vincent Visco was on patrol in an unmarked police
vehicle, with his partner, Officer Marcolino.[2] At
about 7:25 PM they were in the vicinity of 12th Street
1 75 Pa.C.S.A. § 3733(a) and 18 Pa.C.S.A. § 2705. Appellant was also
convicted of disorderly conduct but received no further penalty.
18 Pa.C.S.A. § 5503(a).
2 The officer is identified as Officer Marcellino in the hearing transcript.
(Notes of testimony, 3/28/14 at 9.)
J. S62039/18
and West Cumberland Avenue (1200 block) when
they encountered [a]ppellant, who was driving a
motorcycle. Appellant was driving approximately
45 miles per hour in a 25 MPH zone, weaving
through the other vehicles and passing vehicles on
the left side, in the parking lane of [] Cumberland,
which [is] one way, with one lane of travel. The
officers activated their vehicle[’]s lights and sirens to
signal [a]ppellant to pull over. Although he looked
back at the police 3-4 times, [a]ppellant did not stop
as the office[r] gave chase, until he finally pulled
over in the vicinity of 9th and Cumberland, where
[a]ppellant was unable to make a high-speed turn
onto 9th Street and instead drove up on to the
sidewalk and into the grass in an abandoned lot,
where the police vehicle cut him off.
The entirety of the pursuit was in a residential area,
where people and other vehicles were present. The
location at 9th and Cumberland where [a]ppellant
missed the turn and drove up on the sidewalk and
into a lot was across from a playground where a lot
of kids were present, and there was a store near
where [a]ppellant drove onto the sidewalk. Adjacent
to the sidewalk and lot that [a]ppellant drove into,
there were residences. There were many people out
at 9th and Cumberland. Appellant struggled with the
officers as the[y] attempted to take him into
custody.
Trial court opinion, 12/18/17 at 2-3 (citations to record omitted).
The trial court also set forth the relevant procedural history:
On March 28, 2014, [appellant] proceeded to trial
before this Court, sitting without a jury. Appellant
was convicted of fleeing or attempting to elude an
officer (75 Pa.C.S.[A.] § 3733), recklessly
endangering another person and disorderly conduct.
Sentencing was deferred.
On December 16, 2014, [a]ppellant was sentenced
to 1-2 years on the conviction under 75 Pa.C.S.[A.]
§ 3733, to run consecutive to any sentence
-2-
J. S62039/18
[a]ppellant was then serving, and a consecutive
sentence of two years[’] probation on the conviction
for recklessly endangering another person. No
further penalty was imposed on the disorderly
conduct conviction.
On January 28, 2015, an untimely notice of appeal
was filed under [sic] by [a]ppellant, pro se. On
March 12, 2015, the Superior Court quashed the
appeal as untimely.
On July 27, 2015, [a]ppellant filed a petition under
the Post[ ]Conviction Relief Act (PCRA). Counsel was
appointed on May 5, 2016. New counsel was
appointed on October 17, 2016.
An amended PCRA petition was filed by new counsel
on January 17, 2017.
On August 8, 2017, the Court granted the PCRA
petition. The Commonwealth filed a motion to
reconsider, which resulted in the August 8, 2017,
order being vacated. A new order granting the PCRA
petition and reinstating [a]ppellant’s direct appeal
rights nunc pro tunc, only, was entered on
August 25, 2017.
A timely notice of appeal was filed on September 18,
2017.
Pursuant to Pa.R.A.P. 1925(b)(2) and (3), the Court
entered an order on September 26, 2017, directing
the filing of a Statement of Errors Complained of on
Appeal, not later than twenty-one (21) days after
entry of the order.
On October 16, 2017, [a]ppellant filed a timely
Statement of Errors Complained of on Appeal.
Trial court opinion, 12/18/17 at 1-2. On December 18, 2017, the trial court
filed an opinion pursuant to Pa.R.A.P. 1925(a).
-3-
J. S62039/18
Appellant contends that the trial court erred when it found that he was
guilty of a felony for fleeing or eluding police. (Appellant’s brief at 4.)
Essentially, appellant contends that the Commonwealth failed to present
sufficient evidence to establish that he committed the felony of fleeing or
eluding police.
In reviewing the sufficiency of the evidence, we view
all evidence admitted at trial in the light most
favorable to the Commonwealth, as verdict winner,
to see whether there is sufficient evidence to enable
[the fact-finder] to find every element of the crime
beyond a reasonable doubt. This standard is equally
applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to a
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”
Moreover, when reviewing the sufficiency of the
evidence, the Court may not substitute its judgment
for that of the fact finder; if the record contains
support for the convictions, they may not be
disturbed.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013), appeal
denied, 89 A.3d 661 (Pa. 2014) (citations omitted).
Moreover, when applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the finder of
fact, while passing upon the credibility of the
witnesses and the weight of the evidence produced,
is free to believe all, part, or none of the evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)
(citations omitted), appeal dismissed, 54 A.3d 22 (Pa. 2012).
-4-
J. S62039/18
Section 3733 of the Vehicle Code, entitled “Fleeing or attempting to
elude police officer,” provides in pertinent part:
(a) Offense defined.--Any driver of a motor
vehicle who 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, commits an offense as
graded in subsection (a.2).
....
(a.2) Grading.--
(1) Except as provided in
paragraph (2), an offense under
subsection (a) constitutes a
misdemeanor of the second
degree. Any driver upon conviction
shall pay an additional fine of
$500. This fine shall be in addition
to and not in lieu of all other fines,
court expenses, jail sentences or
penalties.
(2) An offense under subsection (a)
constitutes a felony of the third
degree if the driver while fleeing or
attempting to elude a police officer
does any of the following:
(i) commits a violation of
section 3802 (relating
to driving under
influence of alcohol or
controlled substance);
(ii) crosses a State line; or
(iii) endangers a law
enforcement officer or
member of the general
-5-
J. S62039/18
public due to the driver
engaging in a
high-speed chase.
75 Pa.C.S.A. § 3733(a) and (a.2).
Appellant does not challenge the fact that he violated Section 3733.
He challenges whether there was sufficient evidence to establish that he
committed a felony as defined in Section 3733(a.2)(2)(iii). (Appellant’s brief
at 8.) Appellant asserts that there is no evidence that he engaged in a
high-speed chase and that there was no evidence presented that either a
law enforcement officer or a member of the general public was endangered.
(Id.)
In In re R.C.Y., 27 A.3d 227 (Pa.Super. 2011), this court addressed
the applicability of Section 3733(a.2)(2)(iii) and concluded:
The legislative history for subsection (iii) reveals that
it was added to the statute in response to complaints
about chases that endangered the public. See PA S.
Jour., 2006 Reg. Sess. No. 46, 1839 (June 27,
2006). Furthermore, the history reveals that the
term “high-speed chase” was intentionally left
undefined. See Id. It was left undefined because it
was believed that “the courts will know them when
they see them.” Id.
From this history, we draw two conclusions. First,
that the legislature intended the enhanced penalties
to protect the safety of the public in general and
police officers in particular. Indeed, the first clause
of the subsection is “endangers a law enforcement
officer or member of the general public. . . .”
Clearly, the “mischief to be remedied” is the danger
presented by certain methods of fleeing or eluding
police officers while driving a motor vehicle at high
speeds.
-6-
J. S62039/18
Second, we conclude that the legislature did not
intend for the term “high-speed chase” to be
construed literally. Rather, it intended that
“high-speed chase” be a term of art, having a
practical, legal meaning that was not closely bound
by a literal definition. The term “high-speed chase,”
far from being the primary focus of the subsection,
was intended to merely require a different level of
danger from the run-of-the-mill dangers posed by
merely failing to stop when signaled to do so by a
police officer. In other words, the legislature
included this term to indicate that the enhanced
penalties applied only in cases where the defendant's
actions created an extraordinary danger to the public
at large or to police officers.
In re R.C.Y., 27 A.3d at 230.
Here, Officer Vince Visco (“Officer Visco”), assigned to the Philadelphia
Highway Patrol, testified that on April 27, 2013, at approximately 7:25 p.m.,
he noticed appellant on a motorcycle and activated his lights for appellant to
come to a stop because appellant was driving at a high rate of speed and
was passing traffic on the left side of a one-way street. (Notes of testimony,
3/28/14 at 10-13.) Officer Visco also activated the siren. Appellant looked
back but continued traveling at approximately 45 miles per hour where the
speed limit was 25. (Id. at 14-16.) Officer Visco testified that appellant
was “passing, weaving in and out to get away from [other vehicles], to get
away from us. (Id. at 16.) Officer Visco described what transpired when
appellant tried to make a left turn at 9th and Cumberland:
[H]e went up onto the sidewalk . . . and went onto
like a grass area and then went out onto the
sidewalk. Luckily, there weren't a lot of people out.
-7-
J. S62039/18
Right across the street was a playground, basketball
courts, and what have you. A lot of kids are out. On
the opposite corner was a corner store. Luckily, no
one was hurt, but there were a lot of people out.
Id. at 19.
It is clear from Officer Visco’s testimony that appellant created more
than just the “run of the mill dangers posed by merely failing to stop when
signaled to do so by a police officer.” In re R.C.Y., 27 A.3d at 230. He
traveled well above the speed limit, weaved in and out of traffic, and went
off the roadway in an attempt to elude police. Further, in In re R.C.Y., this
court determined that the driver of the vehicle engaged in a high-speed
chase when the evidence established that his speed did not exceed 35 miles
per hour. Id. Appellant’s contention that the Commonwealth failed to
present evidence sufficient to establish that he engaged in a high-speed
chase is without merit.
Appellant also asserts that the Commonwealth failed to present
sufficient evidence to establish that he endangered a law enforcement officer
or a member of the general public because of the high-speed chase.
Appellant argues that there were no endangerment factors present as there
were in Commonwealth v. Bowen, 55 A.3d 1254 (Pa.Super. 2012),
appeal denied, 64 A.3d 630 (Pa. 2013). In Bowen, this court affirmed the
conviction of Stephen Christopher Bowen (“Bowen”) for fleeing and
attempting to elude police where Bowen drove at speeds between 70 and
100 miles per hour in a chase that lasted approximately 30 minutes,
-8-
J. S62039/18
endangered other traffic on the roads, and crossed the state line into
Maryland. Id., 55 A.3d at 1261.
A review of Bowen reveals that Bowen was convicted of 75 Pa.C.S.A.
§ 3733(a.2)(2)(ii) for fleeing and eluding police and crossing a state line not
for 75 Pa.C.S.A. § 3733(a.2)(2)(iii) for fleeing and eluding police and
endangering a law enforcement officer or member of the general public
because the driver engaged in a high-speed chase as is the case here. See
Bowen, 55 A.3d at 1261. While Bowen drove at higher speeds than did
appellant, Bowen was not convicted under the same subsection, so his speed
and erratic driving do not serve as the standard for Section 3733(a.2)(2)(iii).
While thankfully, no one was injured or killed, evidence of the acts of
speeding, weaving in and out of traffic, and losing control of the motorcycle
while going off the road in an area where other vehicles and individuals on
foot were nearby is sufficient to establish that the violation of the law
constituted a felony under Section 3733(a.2)(2)(iii).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/18
-9-