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Commonwealth v. Wise

Superior Court of Pennsylvania

September 15, 2017

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
SHERRY LYNN WISE, Appellant

         Appeal from the Judgment of Sentence September 13, 2016 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0006928-2015

          BEFORE: SHOGAN and MOULTON, JJ., and STEVENS, P.J.E. [*]

          OPINION

          SHOGAN, J

         Appellant, Sherry Lynn Wise, appeals from the judgment of sentence of two years of probation, payment of costs and fines, plus 100 hours of community service imposed on September 13, 2016, following her conviction by a jury that same day of Fleeing or Attempting to Elude a Police Officer, 75 Pa.C.S. § 3733.[1] We affirm.

         The trial court summarized the facts as follows:

[Appellee, t]he Commonwealth[, ] presented one witness, Officer Holly Rowland ("Officer Rowland") of the Southwestern Regional Police Department. Officer Rowland was on duty on September 24, 2015. At approximately 6:15 p.m. that day, Officer Rowland was in the area of York Road and Jacobs Mill Road in York County. She was in this area due to a minor vehicle accident, and she was standing on the Jacob Mill side of the road (by the stop sign) talking to witnesses and determining whether there were injuries.
At that time of day, it was still sunny, and the lights on Officer Rowland's marked patrol unit vehicle were on. While she was talking to witnesses, Officer Rowland observed "a green Mustang with a convertible top that was down approach ... the intersection" from the direction of Jacobs Mill Road. She observed that "the vehicle was coming up to make a right-hand turn on York Road." Officer Rowland testified that she "was able to make contact with the driver of the Green Mustang, who she did identify as the Appellant."
Officer Rowland recognized the Appellant as the driver of the vehicle that day. Officer Rowland testified that she knew Appellant did not have a valid driver's license due to previous dealings with the Appellant. Upon seeing the vehicle, Officer Rowland "approached the vehicle and ... said to the Appellant, Sherry, what's going on? And the Appellant said, what do you mean? And Officer Rowland said, you don't have a driver's license, I'm going to need you to pull over, please." This interaction between Officer Rowland and Appellant had occurred at the intersection while Appellant sat in the driver seat and Officer Rowland spoke standing just outside of the passenger side of the car. Officer Rowland was in full uniform at that time, including a vest, full duty belt, badge, and patches on the arms.
After instructing the Appellant to pull over, Officer Rowland "pointed in the direction that Officer Rowland wanted Appellant to . . . turn onto York Road, and Officer Rowland pointed out that there is a driveway that Appellant could pull into safely and wait for Officer Rowland to come over to speak with her." In response to these instructions, Appellant "asked, where, and Officer Rowland again motioned to the Appellant . . . in the direction that Officer Rowland wanted her to travel, and Officer Rowland again stated, the driveway shoulder area located on York Road. To motion to the Appellant, Officer Rowland "[u]sed her arms as a signal for the Appellant to follow that direction." Importantly, Officer Rowland had specifically told [Appellant] to pull over. According to Officer Rowland's testimony, the Appellant did not ask any further questions, or express any other concern or reason about why Appellant could not stop at that time.
After the instructions, Appellant turned right down York Road and drove away instead of stopping in the area that Officer Rowland instructed her to. In fact, according to Officer Rowland's testimony, after Appellant pulled out into the intersection, Appellant "accelerated at a very fast speed out of the area" and did not stop at any point, which was not following the directions Officer Rowland had given. In addition, there was more than one place along the roadway that Appellant was driving near the officer that Appellant could have pulled over but did not do so. At the time, Officer Rowland was not able to pursue the Appellant since the officer was still on the scene of the car accident and because the officer needed to stay at the scene of the car accident for the tow companies to arrive. The Appellant did not come back to Officer Rowland or contact the police department that evening.
In response to Appellant not pulling over and driving away, Officer Rowland "radioed to . . . York Dispatch to let them know that this vehicle had left the scene and to notify future [sic] departments." Officer Rowland had "noted to . . . York County Dispatch to note that the vehicle had fled the scene."

Trial Court Opinion, 12/2/16, at 2-6 (footnotes omitted).

         As noted, on September 13, 2016, a jury convicted Appellant of fleeing or attempting to elude a police officer, the court convicted her of driving without a license, and she was sentenced as described supra. Appellant filed a timely post-sentence motion, which the trial court denied on September 22, 2016. Appellant filed a timely notice of appeal on October 11, 2016, and both Appellant and the trial court complied with Pa.R.A.P. 1925.

         Appellant raises the following two issues on appeal:

1. Whether the trial court erred in failing to present a complete jury instruction on the elements of the offense of Fleeing or Attempting to Elude a Police Officer when the trial court denied Appellant's request to include the language "pursuing police officer" in the jury instruction?
2. Whether the Commonwealth failed to present sufficient evidence in order to convict Appellant beyond a reasonable doubt because the Commonwealth failed to prove the Appellant was fleeing or attempting to elude a pursuing police officer?

Appellant's Brief at 5.

         In reviewing a jury charge, we determine "whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case." Commonwealth v. Brown, 911 A.2d 576, 582-583 (Pa. Super. 2006). We must view the charge as a whole; the trial court is free to use its own form of expression in creating the charge. Commonwealth v. Hamilton, 766 A.2d 874, 878 (Pa. Super. 2001). "[Our] key inquiry is whether the instruction on a particular issue adequately, accurately and clearly presents the law to the jury, and is sufficient to guide the jury in its deliberations." Id. Moreover,

[i]t is well-settled that "the trial court has wide discretion in fashioning jury instructions. The trial court is not required to give every charge that is requested by the parties[, ] and its refusal to give a requested charge does not require reversal unless the appellant was prejudiced by that refusal."

Commonwealth v. Scott, 73 A.3d 599, 602 (Pa. Super. 2013) (quoting Brown, 911 A.2d at 583).

         The jury was charged, in relevant part, as follows:

[Appellant] has been charged with the offense of fleeing or attempting to elude a police officer. To find [Appellant] guilty of this offense, you must find the following elements ...

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