J-S61041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
YASSIR GAYLE,
Appellant No. 230 EDA 2016
Appeal from the Judgment of Sentence August 10, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0003418-2012
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 30, 2017
Appellant, Yassir Gayle, appeals from the judgment of sentence imposed
after his jury conviction of two counts of aggravated assault, and one count
each of criminal conspiracy, firearms not to be carried without a license,
carrying firearms in public in Philadelphia, and fleeing or attempting to elude
a police officer.1 We affirm.
We take the following background facts and procedural history from the
trial court’s July 8, 2016 opinion and our independent review of the certified
record.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S.A. §§ 2702(a), 903, 6106(a)(1) and 6108; and 75 Pa.C.S.A. §
3733(a), respectively.
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On January 10, 2012, at approximately 7:00 p.m., Officer
Christopher Culver and his partner, Officer Don Williams, patrolled
the 2800 block of Ruth Street in Philadelphia in full uniform and in
a marked police car. (See N.T. Trial, 6/03/15, at 29-30, 44). An
unidentified white female ran towards their car, pointed to a silver
Impala with tinted windows that was driving away, and said she
had been robbed. (See id. at 30, 40, 42). The officers pursued
the car and activated their lights and sirens. (See id. at 31).
They ran the tag and found that it was registered to a different
vehicle. (See id. at 41). The car properly stopped before
suddenly driving away at a high speed. (See id. at 31-32).
During the pursuit, the car almost struck a police car from the
24th District and sped through all stop signs and stop lights. (See
id. at 42-43, 46). The car struck a barrier at Front Street, but
continued to drive down the wrong way on Huntingdon Street with
a blown tire. (See id. at 33, 40-44). It turned onto Emerald
Street when the front seat passenger, later identified as the
Appellant, leaned out and shot twice at the officers’ car. (See id.
at 33, 46; N.T. Trial, 6/05/15, at 164-66). The officers radioed
for help while a police helicopter unit continued to track the
suspects from the air. (See N.T. Trial, 6/03/15, at 32, 47).
Officer Culver saw sparks that were consistent with a gunshot.
(See id. at 49). Officers Ryan Teaford and Chris Clemens from
the helicopter unit also witnessed the shooting. (See N.T. Trial,
6/04/16, at 12, 124). Officers later recovered projectiles on the
2500 block of Emerald Street and from the trunk area of the
Impala. (See id. at 181; N.T. Trial, 6/05/15, at 47).
The Appellant and the backseat passenger, later identified
as Eric Livingston, ran out of the car on the 2100 block of
Frankford Avenue. (See N.T. Trial, 6/03/15, at 51-53, 84). They
then ducked between two cars and tried to stash two guns
underneath a car. (See id. at 84). Officers Culver and Williams,
with their guns drawn, ordered them to raise their hands. (See
id. at 53-54). The defendants did not comply. (See id.) Instead,
they resisted arrest by punching and kicking at the officers. (See
id. at 55). During the struggle, a gun fell from the Appellant’s
body. (See id. at 55, 85-86). Sergeant John Hoyt testified that
he also heard and saw the gun fall from the Appellant and later
recovered the gun and placed it on property receipt. (See N.T.
Trial, 6/05/15, at 17, 21, 37-38). A dozen other officers
converged on the scene and eventually apprehended the
defendants. (See N.T. Trial, 6/03/15, at 84). Officers Williams
and Culver later recovered the other two guns that the defendants
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attempted to stash and placed them on property receipts. (See
N.T. Trial, 6/03/15, at 56; N.T. Trial, 6/05/15, at 184).
After the two defendants ran out of the car, the driver of the
Impala, later identified as Michael Williams, jumped out of the car,
before it crashed on Memphis Street. (See N.T. Trial, 6/04/15, at
13). Williams fled into someone’s home through an alleyway.
(See id. at 18). He later exited the home and was subsequently
apprehended by the police. (See id. at 74). Counsel[] stipulated
that [Appellant], Williams, and Livingston did not have a valid
license to carry on the night of the incident. (See N.T. Trial,
6/05/15, at 206-07).
(Trial Court Opinion, 7/08/16, at 2-4) (footnotes omitted; some record
citations and formatting provided).
On June 9, 2015, a jury found Appellant guilty of the aforementioned
crimes. The court deferred sentencing for the preparation of a mental health
evaluation and a presentence investigation report. On August 10, 2015, it
sentenced Appellant to an aggregate term of not less than twenty nor more
than forty years’ incarceration plus nineteen years of reporting probation.
Appellant filed a motion to reconsider sentence and a post-sentence motion
on August 18, 2015. The court denied the motion to reconsider sentence on
August 28, 2015. The post-sentence motion was denied on January 19, 2016.
Appellant timely appealed. On May 19, 2016, after being granted multiple
extensions, he filed a timely statement of errors complained of on appeal
pursuant to the court’s order. See Pa.R.A.P. 1925(b). The court filed an
opinion on July 8, 2016. See Pa.R.A.P. 1925(a).
Appellant raises one issue for our review: “Was the evidence insufficient
to support [his] conviction for fleeing and eluding the police, where the
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undisputed evidence at trial was that [he] was not driving the vehicle that
drove away from the police?” (Appellant’s Brief, at 4).
Our standard of review of this matter is well-settled:
The standard we apply in reviewing the sufficiency of
evidence is whether, viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for that
of the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the trier
of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Sauers, 159 A.3d 1, 11 (Pa. Super. 2017) (citation
omitted).
In this case, Appellant argues that the evidence was insufficient to
convict him of fleeing or attempting to elude a police officer because he was
not the driver of the car in question. (See Appellant’s Brief, at 6-8). We
disagree.
Pursuant to section 3733(a) of the Vehicle Code, “[a]ny 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
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visual and audible signal to bring the vehicle to a stop, commits” the crime of
fleeing or attempting to elude a police officer. 75 Pa.C.S.A. § 3733(a).
“Driver” is defined as “[a] person who drives or is in actual physical control of
a vehicle.” 75 Pa.C.S.A. § 102.
In the present matter, there is no dispute that Appellant was the front
seat passenger in the subject vehicle, not the driver. However, this does not
end our inquiry, because the jury also convicted him of criminal conspiracy.
Although Appellant did not challenge the sufficiency of the evidence to support
the conviction, we conclude that evidence was sufficient to support a finding
of criminal conspiracy.
“A person is guilty of conspiracy with another person to commit a crime
if with the intent of promoting or facilitating its commission he . . . agrees to
aid another person in the planning or commission of such crime[.]” 18
Pa.C.S.A. § 903(a)(2).
Circumstantial evidence may provide proof of the
conspiracy. The conduct of the parties and the circumstances
surrounding such conduct may create a web of evidence linking
the accused to the alleged conspiracy beyond a reasonable doubt.
Additionally:
An agreement can be inferred from a variety of
circumstances including, but not limited to, the
relation between the parties, knowledge of and
participation in the crime, and the circumstances and
conduct of the parties surrounding the criminal
episode. These factors may coalesce to establish a
conspiratorial agreement beyond a reasonable doubt
where one factor alone might fail.
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Furthermore, flight, along with other circumstantial
evidence, supports the inference of a criminal conspiracy.
Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011), appeal
denied, 42 A.3d 1059 (Pa. 2012) (citations and quotation marks omitted).
Further:
Once there is evidence of the presence of a conspiracy,
conspirators are liable for acts of co-conspirators committed in
furtherance of the conspiracy. Even if the conspirator did not act
as a principal in committing the underlying crime, he is still
criminally liable for the actions of his co-conspirators taken in
furtherance of the conspiracy.
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002),
appeal denied, 805 A.2d 521 (Pa. 2002) (citations omitted).
Here, the evidence established that Appellant and his co-conspirators
led the police on a high-speed chase in the City of Philadelphia. During the
pursuit, Appellant fired at the officers with a semi-automatic handgun. Once
the car was disabled, Appellant and the two other individuals ran away,
attempting to elude police officers on foot. We conclude that the jury properly
found that this “web of evidence” linked Appellant to the conspiracy, beyond
a reasonable doubt. Devine, supra at 1147 (citation omitted).
Based on the foregoing, Appellant was “liable for acts of co-conspirators
committed in furtherance of the conspiracy.” Lambert, supra at 1016
(citation omitted). Hence, we conclude that, although Appellant was not the
driver of the vehicle, the evidence supported the jury’s conviction of fleeing
or attempting to elude a police officer where it was part of a criminal
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conspiracy in which he was a participant. See Sauers, supra at 11.
Appellant’s issue lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2017
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Com. v. Gayle, Y.
Combined Opinion