Appeal from the Judgment of Sentence entered June 1, 2011 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0002096-2010
The opinion of the court was delivered by: Olson, J.
BEFORE: MUSMANNO, OLSON and FITZGERALD,*fn1 JJ.
Appellant, Stephen Christopher Bowen, III, appeals from the judgment of sentence entered June 1, 2011, as made final by the denial of his post- sentence motions, sentencing him to an aggregate term of six and one-half to 15 years' incarceration for convictions of fleeing and attempting to elude police, possession of a controlled substance, possession of drug paraphernalia, and driving under the influence ("DUI"). For the following reasons, we affirm.
The trial court summarized the relevant factual and procedural background of this matter as follows:
Karen Lee Todesco Dickey ("Dickey") testified that on February 28, 2010, she was staying at a hotel with her son near Shrewsbury, Pennsylvania. N.T. Trial, 4/4/11-4/5/11 at 41. She left with her son at approximately 6:00 or 7:00 in the evening, after dark, to go to Blockbuster Video. Id. at 45, 49. As she exited the hotel parking lot, she noticed a vehicle following her.
Id. at 42. Dickey continued to Interstate 83 and the car continued to follow. Id. The vehicle was following so closely behind her she reached speeds of 90 miles per hour to try to prevent being hit. Id. at 42-43. When Dickey exited 83 at Shrewsbury, she pulled behind a snow bank in the Walmart parking lot in attempt to hide from the vehicle. Id. at 44. She identified the vehicle as a dark gray Sebring and estimated that the drive from the hotel to the parking lot took 15 minutes. Id. at 43.
Dickey remained parked behind the snow bank approximately five to eight minutes before she saw the car again. Id. at 44. She was able to see it directly in front of her in a well-lit area and determined a man was driving; she could not identify him as Appellant. Id. at 45. The man she saw driving did not exit his car, but screamed at her and her son, made obscene gestures and appeared to be angry. Id. at 45. While sitting in her car, she called 911 and provided the dispatcher with his license plate information. Id. at 47. She watched the Sebring drive away and never saw it again after that night. Id.
Trooper Roberson of the Pennsylvania State Police ("PSP") was on patrol near Interstate 83 in a marked unit and in uniform on February 28, 2010. Id. at 64. Trooper Roberson met Dickey at a McDonald's near the Wal-Mart after she called to report the incident. Id. at 65. Dickey told the trooper that someone was following her, flashing high beams and following too closely, and that she was afraid. Id. at 66. After obtaining a verbal statement and a description of the vehicle and the driver, Trooper Roberson checked the Wal-Mart parking area for the suspect vehicle. Id. at 69. When he located a vehicle matching her description, Trooper Roberson activated his lights and sirens and slowly pulled up behind. Id. The reason for the stop was possible harassment of Ms. Dickey. Id. at 95. Appellant applied his brakes, drifted downhill toward a four-way intersection, and turned onto Interstate 83 without stopping. Id. at 69. Once on the interstate, Appellant accelerated and began driving erratically to flee from the trooper. Id. at 70. The trooper's lights and sirens remained activated and alternating in various visual and audio signals. Id. Appellant was driving [at] speeds between 50 to 100 miles per hour. Id. at 72, 130. They continued south and exited the Interstate in Pennsylvania, and then proceeded into Maryland. Id. at 73. At this time other PSP units joined in the pursuit. Id.
Trooper Roberson never lost sight of Appellant's vehicle during what he estimated to be at least 30 minutes. Id. at 73, 130. Eventually spike strips were deployed to stop Appellant's vehicle. Id. at 76. After Appellant drove over the spike strips, Trooper Roberson attempted to pass his vehicle. While doing so, Appellant swerved toward him as if trying to hit him. Id. at 78, 85. The trooper was able to avoid being hit and moved ahead to block Appellant's vehicle. Id.
Trooper Roberson exited and approached the passenger side of the vehicle with his firearm drawn. Id. at 86. Trooper Burnham approached on the driver's side. Id. at 87. Trooper Roberson broke the passenger's side window to remove Appellant when he saw him making movements to get away from Trooper Burnham. Id. at 88. Appellant resisted the troopers' efforts to remove him from the vehicle. Id. at 89. Once out of the car, Appellant ignored commands to show his hands and continued to resist on the ground. Id. at 90-93. Appellant was kicking and flailing his arms aggressively while trying to get away. Id. Trooper Roberson used hand strikes on his back and arms to try to gain compliance. Id. at 90. Trooper Roberson testified that he did not see a taser being used. Id. at 113. He also did not see anyone strike Appellant in the face. Id. at 118.
Trooper Burnham was also on patrol traveling southbound on Interstate 83 at the time of the pursuit. Id. at 133. He heard the PSP radio transmission and caught up to Trooper Roberson's vehicle in Maryland. Id. at 135. Trooper Burnham recalled traveling [at] speeds of 70 to 75 miles per hour after he joined the chase behind Trooper Roberson. Id. With respect to Appellant's driving, he said he would slow down but then speed back up and drive into oncoming traffic. At one point while still in Maryland, Trooper Roberson attempted to pass Appellant's vehicle to try to stop him. Id. at 136. Appellant made a quick turn and travelled back into Pennsylvania. Id.
When the stop spikes were deployed into the roadway, all three vehicles drove over them. Id. at 137. At that time, Trooper Burnham saw Trooper Roberson attempt to pass Appellant and Appellant tried to aggressively swerve toward him as he did so. Id. at 137-138. Trooper Burnham described the pit maneuver he used to force Appellant's vehicle to stop by pushing the front of his cruiser into the back of Appellant's vehicle to spin it out. Id. at 139. He explained that he felt Trooper Roberson's life was in jeopardy and that PSP troopers are permitted to use this maneuver when deadly force is authorized. Id.
As Trooper Burnham exited his vehicle he drew his firearm because he did not know if Appellant had a weapon or why he was fleeing. Id. at 141. When he first ran to the vehicle, he attempted to open the door but it was locked. Id. at 143. He used his baton to break the window out and smelled the odor of alcoholic beverage emanating from the interior of the car. Id. at 144. Appellant moved toward the passenger's side door, away from Trooper Burnham, and ignored repeated commands to show his hands. Id. at 145. The trooper used his taser as the next level of force before physically attempting to take control of him. Id. at 146, 172. Appellant continued to resist after being struck by the taser and kicked Trooper Burnham in the face. Id. at 148. Trooper Burnham ran to the passenger side and both he and Trooper Roberson dragged Appellant out of the vehicle. Trooper Burnham used his taser a second time and used his baton to gain control of Appellant. Id. at 150-151. The entire incident from the time the vehicle stopped to when Appellant was handcuffed took less than one minute. Id. at 181.
While Appellant was still in custody, Trooper Burnham looked in the window of [Appellant's] car and saw drug paraphernalia, syringe caps and drug packaging, in plain view on the floorboard. Id. at 188-189. Two days later, Trooper Colarusso obtained consent to search the car from its owner, Appellant's girlfriend, at the garage where it was being stored. Id. at 203. It was at that time Troopers Colarusso and Nevitsky searched the interior and seized the drug paraphernalia. Id. at 204-205. A metal spoon was sent to the PSP laboratory for testing and it contained cocaine residue. Id. at 211. An empty bottle of champagne was also on the floorboard of the car. Id. at 215. Appellant's blood was drawn at York Hospital following his arrest. Id. at 199. The toxicology report indicated that his blood alcohol content was .038 percent and he had measurable amounts of cocaine and methadone in his blood within two hours of the stop. Id. at 215.
Appellant's girlfriend, Heather Fowler ("Fowler") testified for the defense. She was the owner of the 1998 Chrysler Sebring that Appellant was driving on February 28, 2010. Id. at 223-223. Fowler said that during the pursuit Appellant called her, frantic, and said he was being chased by the police. Id. He told her he was afraid to pull over because he had a paintball gun in the car. Id. Appellant begged her to call 911 to advise that he had the gun and that he would voluntarily stop. Id. When they hung up, Fowler called 911 and informed the Pennsylvania dispatcher that Appellant had a paintball gun. Id. at 227. Trooper Colarusso clarified that the call from Fowler regarding the paintball gun came in after Appellant's vehicle was stopped by the spike strips. Id. at 246.
Appellant testified that on February 28, 2010, Fowler was at his house packing up her things and moving out after they broke up. Id. at 253. He said that he drove around most of the day and used drugs. Id. at 254. He ingested methadone that day at a clinic for heroin addiction. Id. at 254. Appellant also smoked cocaine using the glass pipes that the police recovered from the car. Id. at 255. He consumed alcohol while he was fleeing the police. Id. at 255.
Appellant was driving around and pulled into what he believed to be an empty parking lot. Id. at 258. He wanted to be by himself to think and cry. Id. at 258. He saw another car in the lot and he thought there were two men in the car drinking beer from a can. Id. Appellant saw the car leave the parking lot five or six minutes after he pulled in and parked. Id. at 259. He turned his vehicle to leave the parking lot and saw the other car again near the hotel driveway and the main road. Id. Appellant said he was intoxicated.
Appellant followed Dickey onto the entry ramp of Interstate 83. Id. at 260. He followed behind her because she was speeding and he also wanted to speed. Id. at 260.
Appellant denied following too closely or cutting her off. Id. at 261. He then followed her off the exit toward his house. Id. After Appellant proceeded through the intersection, he believed the other car was following him into the parking lot. Id. Appellant turned into the parking lot to park his car and sit and he was not paying attention to the other driver. Id. at 262.
As Appellant pulled out of the Wal-Mart parking lot, [he] noticed a police vehicle quickly approaching with its emergency lights activated. Id. at 263. Appellant did not believe he was being pulled over so [he] made a turn and continued to drive. Appellant proceeded to a red traffic light and made another turn, because there was nowhere to pull over to move out of the trooper's way. Id. at 264. The next place to turn was onto Interstate 83 and Appellant realized the trooper was "chasing" him. Id. Appellant had a paintball gun in the car that resembled a machine gun. He wanted to notify the police that he had the gun before he pulled over. Id. at 265.
Appellant said after the vehicles stopped he had his hands in the air. Id. at 175. His hands remained in the air as the police broke his windows. Id. He moved away so he wouldn't get hit and then was tased. Id. at 276. After he was pulled out of the car all he remembered was being stomped, kicked, and beaten. Id. at 281. He was kicked in the face and struck in the face by a metal baton. Id. Appellant denied resisting or showing any form of aggression toward the troopers during the entire incident. Id. at 285.
Appellant was found guilty of fleeing or attempting to elude police and he pled guilty to driving under the influence of a controlled substance.
Trial Court Opinion, 12/12/2011, at 1-7. The trial court sentenced Appellant on June 1, 2011. He thereafter filed post-sentence motions, which the trial court denied on September 19, 2011. This timely appeal followed.*fn2
Appellant presents three issues for appeal:
Whether the verdict in this matter was contrary to the weight and/or sufficiency of the evidence produced at trial?
Whether the trial court abused its discretion in sentencing the Appellant to an aggregate term of six and one-half (6 ½) to fifteen (15) years['] incarceration in a state correctional institution?
Whether the trial court's imposed sentence for [f]leeing or
[a]ttempting to [e]lude a [p]olice [o]fficer was illegal in that [it] exceeded the maximum term for second or subsequent convictions for this offense as provided by statute?
Appellant's Brief at 4.*fn3
Appellant's first issue on appeal asserts that the verdict was contrary to both the weight and sufficiency of the evidence. With regard to Appellant's sufficiency claim, Appellant claims that the Commonwealth presented insufficient evidence to sustain his conviction of fleeing or attempting to elude police. Appellant's Brief at 13-17. We address such challenges under a well-established standard of review:
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 factfinder 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 a 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. Muniz, 5 A.3d 345, 348 (Pa. Super. 2010) (internal citations and quotations omitted), appeal denied, 19 A.3d 1050 (Pa. 2011).
Appellant was convicted of the aggravated level of fleeing or attempting to elude police, 75 Pa.C.S.A. § 3733(a.2)(2), which is defined as follows:
(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.1) Disposition of fines, etc.--The fines imposed and collected under subsection (a) shall not be subject to 42 Pa.C.S. § 3733 (relating to deposits into account). The fines imposed and collected under subsection (a) shall be distributed in the manner provided in 42 Pa.C.S. § 3571(b)(2) and (3) (relating to
Commonwealth portion of fines, etc.).
(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 ...