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Commonwealth v. Weber

Superior Court of Pennsylvania

June 5, 2018


          Appeal from the Judgment of Sentence Entered December 19, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000456-2016

          BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J. [*]


          BENDER, P.J.E.

         Appellant, Kaelin Thomas Ant Weber, appeals from the judgment of sentence of 9-18 months' incarceration and a consecutive term of 3 years' probation, imposed following his conviction for fleeing or attempting to elude police (hereafter, "fleeing or eluding police"), 75 Pa.C.S. § 3733, and related summary offenses. Appellant contends that the trial court erred when it precluded him from presenting evidence in support of an available statutory defense and, relatedly, that the court erred by refusing to instruct the jury on that defense.[1] After careful review, we vacate Appellant's judgment of sentence and remand for a new trial.

         Just before 10:00 a.m. on January 7, 2015, Officers Ryan Carr and Lawrence Huber of the Pittsburgh Bureau of Police observed Appellant's silver Lincoln travel through an intersection at a high rate of speed. N.T., 5/4/18, at 36-37. The uniformed officers were driving a marked police vehicle. Id. They followed Appellant and, soon thereafter, observed that his vehicle's registration sticker had expired. When Appellant stopped at an intersection, the officers "pulled up alongside the vehicle[, ]" where Officer Carr was able to observe that its inspection and emission stickers were "valid[, ]" but expired. Id. at 37.

         Based on these observations, Officers Carr and Huber decided to conduct a traffic stop in order to "check for documents and ask why all the stuff was expired." Id. They activated their emergency lights and siren. Appellant eventually brought his vehicle to a stop in a parking lot. Id. at 38. The officers exited their patrol car, and approached the silver Lincoln from behind. Id. Officer Huber approached the driver's side door to engage Appellant while Officer Carr approached the vehicle from the passenger side and "stayed at the rear back door of the vehicle looking in." Id.

         Officer Huber described his initial interaction with Appellant as follows:

I walked up to the vehicle, identified myself, said my name is Officer Huber with the Pittsburgh Police. The reason we're stopping you -- and I told him about the expired registration and expired inspection stickers. I asked him for his driver's license, registration and insurance card. He tells me he does not have a license in this country. I said, "What do you mean you don't have a license in this country?"
"I don't have a license in this country."
So I ask him for his name, date of birth, the last four of his Social Security, which he does provide. He provides me with name, date of birth, and Social Security number. Now I go back to my police vehicle at this point. I went to run the information to see if I could get anything back on him. Name comes back, date of birth comes back, in NCIC system when I run someone by name and date of birth with all your information, your Social Security number comes up. So I know this is who I'm talking to.

Id. at 66-67.

         While Officer Huber ran Appellant's information, Officer Carr observed Appellant

continuously reach[ing] from the front seat to the back seat, across the front seat, down underneath the seat where there were boxes. He was not still at all the entire time. So much so that as my partner was running the information, because there was so much movement in the vehicle, I asked him and he called for an additional unit to come and back us up.

Id. at 40.

         After Officer Huber verified that Appellant did not have a Pennsylvania Driver's License, he returned to speak to Appellant:

At that point as we approached the car, Officer Carr already told me about all of the movement going on. So as I approached the vehicle, I approached it with a little more caution at this point. As we go up, I'm starting to look at him and I notice a big bulge. He's wearing an open zippered flannel or light jacket. But it was a hoodie sweatshirt. And I noticed this big bulge. And he kept reaching for it. That's why I kept telling him, "Quit reaching for that. Keep your hands where I can see them."

Id. at 68-69.

         Appellant pulled out a pack of cigarettes from the vicinity of the bulge and threw them down. However, Officer Huber could still observe a bulge that he believed, based on his training and experience, to be consistent with the presence of a concealed firearm. Id. at 70. Officer Huber asked Appellant, "Do you have any weapons or anything in this vehicle that can harm me?" Id. Officer Huber recalled:

When I asked that question, that is when he gets, like, called on the carpet, now he knew. He just started getting very agitated. Now he starts to appear more nervous that I'm asking him about what is in his waistband and I'm asking him specifically about a weapon.

Id. Appellant then told Officer Huber, "I don't like your tone. I feel very threatened." Id. at 80.

         In response to this, as well as to Appellant's continued fidgeting, Officer Huber instructed him to keep his hands where he could see them. Id. at 71. Officer Huber also decided at that point to "open the vehicle and get [Appellant] out of the vehicle to gain control of him … to do a pat down." Id. He asked Appellant, "[f]or your safety as well as mine would you please step out of the vehicle?" Id. at 72.[2]

         As Officer Huber said this, he simultaneously attempted to open the front, driver's side door. Id. In response, Appellant put the vehicle in drive, stepped on the accelerator, and sped away. Id. Officers Huber and Carr quickly returned to their vehicle, activated their lights and siren, and began pursuit. Id. They observed Appellant cross four lanes of traffic, and then run a red light, "forcing people off the road." Id. at 73. The officers were having trouble keeping up with Appellant, despite reaching speeds during the pursuit of up to 60 m.p.h., [3] in an area where the maximum speed limit was 25 m.p.h. Id. at 74. Soon after the chase began, however, the officers received an order from their shift supervisor to terminate the pursuit due to safety concerns. Id. at 73. Police later found Appellant's abandoned silver Lincoln. On June 23, 2015, more than five months after the incident, police peacefully arrested Appellant pursuant to a warrant. Id. at 90.

         Appellant testified in his own defense at trial. His account largely corresponded with that of the officers; however, he stated that Officer Huber became increasingly "belligerent" as the encounter progressed. Id. at 114. He also testified that Officer Huber was punching or striking his driver's side window in the moment just before he fled. Id. at 116.

         The Commonwealth charged Appellant by criminal information with, at count 1, fleeing or eluding police, and also with numerous summary offenses (counts 2-7).[4] A mixed jury/bench trial convened on November 3, 2016. That same day, the jury returned a verdict of guilty as to count 1. The trial judge returned a verdict of guilty with respect to counts 2-7. On December 19, 2016, the trial court sentenced Appellant at count 1 to 9-18 months' incarceration, and a consecutive term of 3 years' probation. With respect to the summary offenses, the court ordered Appellant to pay several fines.

         Appellant filed a timely notice of appeal, and then filed a timely, court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a) opinion on June 6, 2017. Appellant now presents the following, two-part question for our review:

I. (a) Did the trial court commit reversible error by granting the Commonwealth's motion in limine and barring [Appellant] from presenting any testimony about his state of mind where such testimony would have [been] probative of an available statutory defense that was [his] burden to prove?
(b) Notwithstanding the excluded evidence of [Appellant]'s state of mind, did the trial court commit reversible error by failing to instruct the jury on the available sta[t]utory defense based on the existing evidence of record?

Appellant's Brief at 6 (unnecessary capitalization omitted).

         Appellant's related claims concern the trial court's refusal to allow Appellant to present a defense pursuant to 75 Pa.C.S. § 3733(c)(2) (hereinafter, the "personal safety defense" and/or "statutory defense").

The Constitution guarantees to state criminal defendants "a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986) (internal quotation marks omitted). Hence, "[w]here a defendant requests a jury instruction on a defense, the trial court may not refuse to instruct the jury regarding the defense if it is supported by evidence in the record, " [Commonwealth v.] DeMarco, 570 Pa. [263, ] 271, 809 A.2d [256, ] 261 [(2002)]; it is "for the trier of fact to pass upon that evidence and improper for the trial judge to exclude such consideration by refusing the charge." Commonwealth v. Lightfoot, 538 Pa. 350, 355, 648 A.2d 761, 764 (1994) (internal quotation marks omitted); see also Commonwealth v. Borgella, 531 Pa. 139, 142, 611 A.2d 699, 700 (1992) ("A defendant is entitled to an instruction on any recognized defense which has been requested, which has been made an issue in the case, and for which there exists evidence sufficient for a reasonable jury to find in his or her favor."); Commonwealth v. Weiskerger, 520 Pa. 305, 312-13, 554 A.2d 10, 14 (1989) (same).

Commonwealth v. Markman, 916 A.2d 586, 607 (Pa. 2007).


"The admissibility of evidence is solely within the discretion of the trial court and will be reversed only if the trial court has abused its discretion." Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 2002), appeal denied, 573 Pa. 663, 820 A.2d 703 (2003). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Commonwealth v. Cameron, 780 A.2d 688, 692 (Pa. Super. 2001).

Commonwealth v. Dent, 837 A.2d 571, 577 (Pa. Super. 2003).

         The offense of fleeing or eluding police is defined by statute as follows: "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." 75 Pa.C.S. § 3733(a). Section 3733(c)(2) provides that:

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.
(v) Any other factor considered relevant by the court.

75 Pa.C.S. § 3733(c)(2).

         Initially, we note that this is a case of first impression. The statutory defense in question was added by amendment to the fleeing or eluding police statute nearly two decades ago, in 2001. See 2001 Pennsylvania Legislative Service Act No. 2001-75 (H.B. 155). Nevertheless, our research has not revealed any pertinent case law addressing the personal safety defense during the intervening 17 years.

         The instant matter first arose in the trial judge's chambers prior to trial. N.T. at 3. Essentially, Appellant's trial counsel sought to introduce evidence, through cross-examination of the Commonwealth's witnesses, and/or through Appellant's testimony, in order to set forth a factual basis for the personal safety defense. The trial court issued a statement about the matter at the commencement of trial, ostensibly ruling conditionally in the Commonwealth's favor. Id. at 3-4. Specifically, the court stated:

It came to my attention this morning that [Appellant] intends to raise a defense to ...

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