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.
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. After careful review, we
vacate Appellant's judgment of sentence and remand for a
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.
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.
Huber described his initial interaction with Appellant as
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
"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.
Officer Huber ran Appellant's information, Officer Carr
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.
Officer Huber verified that Appellant did not have a
Pennsylvania Driver's License, he returned to speak to
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
Id. at 68-69.
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.
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
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.,  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.
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.
Commonwealth charged Appellant by criminal information with,
at count 1, fleeing or eluding police, and also with numerous
summary offenses (counts 2-7). 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.
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
Appellant's Brief at 6 (unnecessary capitalization
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.
"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.
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
(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).
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.
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 ...