Com. v. Singer, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACOB SINGER :
:
Appellant : No. 404 EDA 2021
Appeal from the Judgment of Sentence Entered January 15, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0002391-2019
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 9, 2022
Jacob Singer (Appellant) appeals from the judgment of sentence entered
in the Monroe County Court of Common Pleas following his jury trial in
absentia and convictions of, inter alia, fleeing or attempting to elude a police
officer (fleeing from police).1 The jury found Appellant engaged in a “high
speed chase,” resulting in the higher grading of this offense as a felony of the
third degree (F3). Appellant avers the trial court erred in denying his request
to include, in the jury instructions, language from the opinion in In re R.C.Y.,
27 A.3d 227 (Pa. Super. 2011), which addressed the grading enhancement
and the phrase “high speed chase.” We affirm.
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1 75 Pa.C.S. § 3733(a), (a.2)(2)(iii).
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Appellant’s issue requires a detailed review of the underlying facts. The
trial court aptly summarized:
On September 28, 2019, Trooper [Daniel] Thompson
observed Appellant driving a motorcycle with an expired
registration in the area of Route 209 and Municipal Drive in Middle
Smithfield Township. [N.T., 10/26/20, Courtroom 3, at 24.2]
Trooper Thompson, in a patrol vehicle, attempted to effectuate a
traffic stop by activating his lights and siren. Id. at 25. Appellant
failed to stop. In fact, he continued to travel . . . even as the
trooper pulled his car into the next lane and drove side-by-side
with the motorcycle. Id. at 26. As Appellant fled from the officer,
he accelerated to speeds substantially above the posted speed
limit.
A second police unit, driven by Corporal [Charles] Phelps and
also occupied by Trooper [James] Poliskiewicz, stopped traffic
ahead of Appellant in order to create a safe environment in which
to stop the motorcycle. ·At that point, Appellant was continuing to
flee from Trooper Thompson at 70 miles per hour . . . in a posted
45 mile per hour zone. Id. at 28-29. Corporal Phelps and Trooper
Poliskiewicz exited their car and, by the positioning of their
vehicle, their physical presence, and the use of lights, flashers,
and hand signals attempted to stop Appellant. Id. at 28.
Appellant slowed down for a moment, but then accelerated
towards the two troopers who were forced to move aside to avoid
being struck by the motorcycle. Id.
Corporal Phelps and Trooper Poliskiewicz got back into their
patrol car and went in pursuit. Trooper Thompson also continued
his pursuit.
While continuing at a high rate of speed, Appellant drove
through a steady red light and onto Interstate 80. Id. He then
sped up to 80 miles per hour in a posted 55 mile per hour zone.
Id. at 31. Trooper Thompson was able to drive ahead of the
motorcycle to slow down the other lanes of traffic in an attempt
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2The trial court explained that due to COVID-19 pandemic protocols, “multiple
courtrooms were used for trial[,]” and separate transcripts were produced for
each courtroom’s proceedings. Trial Ct. Op., 4/30/21, at 1-2 n.1.
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to slow the motorcycle and force Appellant to exit the Interstate.
The tactic worked and Appellant exited at Delaware Water Gap.
Id. at 30.
Meanwhile, Corporal Phelps and Trooper Poliskiewicz got
ahead of Appellant on the exit ramp and slowed to a stop in front
of the motorcycle. Id. Even as Corporal Phelps stopped and
began to exit his car, Appella[nt] refused to stop or slow down to
a safer speed. Appellant drove into the door of the patrol vehicle,
fell off his bike, and began to flee on foot. Appellant also failed to
obey repeated verbal commands to stop. Ultimately, the troopers
deployed their Tasers and were able to stop Appellant and take
him into custody. Id. at 31. A search incident to the arrest
revealed that Appellant had a knife, a hypodermic needle, and
controlled substances in his possession. Id.
Trial Ct. Op. at 1-3.
Appellant was charged with fleeing from police, resisting arrest,3 drug
offenses, and summary traffic violations. While fleeing from police is generally
graded as a misdemeanor of the second degree, this count was charged as an
F3, based on the allegation Appellant “endanger[ed] a law enforcement officer
. . . due to . . . engaging in a high-speed chase.” See 75 Pa.C.S. §
3733(a.2)(1), (2)(iii). The case proceeded to a jury trial on October 26, 2020.
The trial court noted, “The trial was held in absentia because Appellant refused
to appear despite being given ample opportunity to do so.” Trial Ct. Op. at 3.
The trial court summarized:
At the beginning of the trial, [Appellant’s counsel] submitted
a point for charge regarding the term “high speed chase,” as used
in 75 Pa.C.S.[ §] 3733(a.2)(2)(iii)[,] the grading enhancement
provision of the Fleeing and Eluding statute[.] Specifically,
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3 18 Pa.C.S. § 5104.
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counsel [requested the trial court] to include language from the
Superior Court’s opinion in In re R.C.Y., 27 A.3d 227 (Pa. Super.
2011). [N.T., 10/26/20, Courtroom 7, at 17-18.]. Counsel
asserted that without the language from R.C.Y. regarding “high
speed chase,” the jury would not sufficiently understand the
meaning of the enhancement language. Id. at 37. Counsel’s
request was discussed several times, including during the
charging conference.
Trial Ct. Op. at 3.
Ultimately, the court denied Appellant’s request to include the language
from In re R.C.Y. in its jury instruction. Following the jury instructions, but
before the jury retired to deliberate, Appellant objected “to the fleeing
instruction as [the trial court] gave it,” again arguing that additional language
from the In re R.C.Y. decision was necessary.4 N.T., 10/26/20, Courtroom
3, at 151. The court declined to include that language. Id. at 152.
The jury found Appellant guilty of fleeing from police, specifically finding
he “[e]ndangered a law enforcement officer . . . by engaging in a high-speed
chase[.]” Verdict, 10/26/20, at 1. Thus, this count carried the enhanced
grading of an F3. The jury also found Appellant guilty of resisting arrest, two
counts of possession of a controlled substance (methamphetamine and
____________________________________________
4 Appellant has thus preserved his challenge to the jury instruction for our
review. See Pa.R.Crim. 647(C) (“No portions of the charge nor omissions
from the charge may be assigned as error, unless specific objections are made
thereto before the jury retires to deliberate. . . .”); Commonwealth v.
Knight, 241 A.3d 620, 634 (Pa. 2020) (“As [the a]ppellant did not challenge
the trial court’s jury instructions or the verdict slip before the jury retired to
deliberate, he has waived his challenge[.]”).
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suboxone), and possession of drug paraphernalia.5 The trial court separately
found him guilty of ten summary traffic offenses.
On January 15, 2021, the trial court imposed an aggregate sentence of
three and a half to nine years’ imprisonment, to be followed by three years’
probation. Appellant did not file any post-sentence motions, but took this
timely appeal. He subsequently complied with the trial court’s order to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal.6
Appellant raises one issue for our review:
Whether the Trial Court erred and abused its discretion in denying
[Apellant’s] Motion to give jury instructions to the jury on In re
R.C.Y., . . . 27 A.3d 227, 230 ([Pa. Super.] 2011) case at trial?
Appellant’s Brief at 8.
We first note the relevant standard of review:
When reviewing a challenge to jury instructions, the reviewing
court must consider the charge as a whole to determine if the
charge was inadequate, erroneous, or prejudicial. The trial court
has broad discretion in phrasing its instructions, and may choose
its own wording so long as the law is clearly, adequately, and
accurately presented to the jury for its consideration. A new trial
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5 35 P.S. § 780-113(a)(16), (32).
6 After Appellant’s counsel filed a notice of appeal and the Rule 1925(b)
statement, Appellant filed, on April 23, 2021, a pro se Post Conviction Relief
Act (PCRA) petition with the trial court, alleging ineffectiveness of counsel.
See 42 Pa.C.S. §§ 9541-9545. On April 28th, the trial court issued notice of
intent to dismiss the petition, properly pointing out that it lacked jurisdiction
to consider it. Order, 4/28/21, at 1. See Commonwealth v. Moran, 823
A.2d 923, 925 (Pa. Super. 2003) (“Once a notice of appeal has been filed, the
trial court generally lacks jurisdiction to modify its sentence.”). Nevertheless,
the trial docket does not indicate any further action on this petition.
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is required on account of an erroneous jury instruction only if the
instruction under review contained fundamental error, misled, or
confused the jury.
Commonwealth v. Barr, 79 A.3d 668, 672-73 (Pa. Super. 2013) (citation
omitted).
The Pennsylvania Vehicle Code7 defines the offense of fleeing or
attempting to elude police officer 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 as graded in
subsection (a.2).
75 Pa.C.S. § 3733(a). This offense is generally graded as a misdemeanor of
the second degree. 75 Pa.C.S. § 3733(a.2)(1). However, Subsection (a.2)
provides:
[a]n offense . . . 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 or controlled substance); [or8]
* * *
(iii) endangers a law enforcement officer or member of
the general public due to the driver engaging in a high-speed
chase.
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7 75 Pa.C.S. §§ 101-9805.
8The jury was also charged with determining whether Appellant was driving
under the influence of a controlled substance; the jury found he was not.
Verdict at 1.
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75 Pa.C.S. § 3733(a.2)(2)(i), (iii). As stated above, in the case sub judice,
the jury found the second circumstance was established — that Appellant
“endanger[ed] a law enforcement officer . . . due to . . . engaging in a high-
speed chase.” Verdict at 1.
On appeal, Appellant avers the trial court abused its discretion in
denying his point for charge to include reference to the decision in In re
R.C.Y., 27 A.3d 227. Appellant avers In re R.C.Y. “clarifies the aggravating
circumstances associated with” fleeing from police, as it “thoroughly discusses
how a high speed chase is a term of art having a practical, legal meaning, and
that it was not closely bound to the literal definition of high speed chase.”
Appellant’s Brief at 14, 15. Appellant states he had argued to the trial court
that “there must be a high level of danger[,] as opposed to regular danger
that possibly occurs when someone fails to immediately stop when signaled
to do so” by police. Id. at 15. Appellant then claims “there was no
testimony . . . that [he] ever put any law enforcement officers or the general
public in danger of serious bodily injury or death[,]” and in fact, the
Commonwealth’s evidence showed that “he wasn’t traveling at a dangerous
rate of speed.” Id. at 16. Appellant observes the Commonwealth did not
“rebut[ ]” his point for charge, and concludes he would have been acquitted
of this count “had the jury been properly instructed.” Id. at 11, 16. No relief
is due.
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Preliminarily, we note the deficiencies in Appellant’s argument. See
Pa.R.A.P. 2119(a) (argument shall include “such discussion and citation of
authorities as are deemed pertinent”). While the crux of his issue is the jury
charge’s lack of reference to In re R.C.Y., Appellant fails to explain what
language or principle from that decision should have been included. Indeed,
he does not provide any further discussion of In re R.C.Y. than what we have
summarized above. Appellant does not explain the facts of In re R.C.Y., the
issues presented, the Superior Court’s analysis, nor the reasons why In re
R.C.Y. should apply to this case. Furthermore, although Appellant’s issue
necessarily includes a detailed review of the facts, his brief fails to make any
mention of the events of September 28, 2019. Instead, his chronological
“statement of the case” begins with the charges filed against him, omitting
any reference to the vehicle chase or his apprehension. See Appellant’s Brief
at 9-10. We remind Appellant’s counsel that the failure to develop an
argument, with citation to and analysis of relevant authority, waives the issue
on review. See Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super.
2006).
In any event, the trial court’s opinion — which Appellant likewise fails to
address on appeal — thoroughly reviewed the In re R.C.Y. decision and
Appellant’s arguments. For ease of review, we first summarize In re R.C.Y.
In that case, a police officer observed a juvenile “drive through [a stop sign]
without stopping.” In re R.C.Y., 27 A.3d at 228. The officer “engaged his
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lights and . . . pursue[d]” the juvenile, who ran through five more stop
signs[.]” Id. A second officer joined the pursuit, and in the juvenile’s
protracted attempt to evade apprehension: the juvenile, in his car, struck one
officer’s car and struck the other officer’s leg, “pinning his leg between the”
juvenile’s car and the officer’s car; one officer managed to break the juvenile’s
driver’s window; the injured officer reached through the broken window in an
attempt to turn off the vehicle; the juvenile continued to drive away, gaining
speed, with the injured officer’s arm still in the car; and the injured officer
“had to roll away from the vehicle to avoid being run over.” Id. Next, “a
short chase” ensued, “involving at least two other officers,” and the juvenile
“was finally apprehended when his vehicle stalled.” Id. Pertinently, the
evidence showed the juvenile had not traveled faster than 35 miles per hour
during the chase. Id. at 229.
The juvenile was charged with, inter alia, fleeing from police, with the
enhanced grading of an F3. In re R.C.Y., 27 A.3d at 228-29. The juvenile
court adjudicated him delinquent on this charge and others. Id. On appeal
to this Court, the juvenile challenged the sufficiency of the evidence, arguing
that his less-than-35-miles-per-hour speeds precluded application of the
enhanced grading provision of Section 3733(a.2)(2)(iii). Id. at 229.
This Court denied relief. First, the panel noted that “high speed” was
not defined in the statute nor decisional authority. In re R.C.Y., 27 A.3d at
230. The panel thus looked to the legislative history of Section
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3733(a.2)(2)(iii), and noted: (1) the grading enhancement was added “in
response to complaints about chases that endangered the public;” and (2)
“the term ‘high-speed chase’ was intentionally left undefined.” Id. The panel
then
conclude[d] that the legislature did not intend for the term “high-
speed chase” to be construed literally. Rather, it intended that
“highspeed chase” be a term of art, having a practical, legal
meaning that was not closely bound by a literal definition. The
term “high-speed chase,” far from being the primary focus of the
subsection, was intended to merely require a different level of
danger from the run-of-the-mill dangers posed by merely failing
to stop when signaled to do so by a police officer. In other words,
the legislature included this term to indicate that the enhanced
penalties applied only in cases where the defendant’s actions
created an extraordinary danger to the public at large or to police
officers.
Id.
The In re R.C.Y. panel then determined the juvenile’s “behavior was
precisely the sort of mischief the legislature intended to remedy by adding
subsection (iii),” and his “driving tactics . . . were anything but a run-of-the-
mill failure to stop.” In re R.C.Y., 27 A.3d at 230-31. The panel thus affirmed
the enhanced grading of the juvenile’s adjudication of delinquency. Id. at
231.
In the case sub judice, the trial court found the facts in In re R.C.Y.
were distinguishable from those in this case: In re R.C.Y. did “not involve a
‘high speed chase’ in the traditional, speed-based sense of that term[,]” and
thus “additional instructions [were] needed.” Trial Ct. Op. at 10. In this case,
however, the court reasoned, “there [was] ample evidence of [Appellant]
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fleeing from and leading the police on a dangerous chase at high speeds[.]”
Id. Accordingly, “the term ‘high speed chase’ [was] easily understood by [the
jury] and [thus did] not need amplification or additional definition.” Id. The
court concluded, “the language from R.C.Y. was unnecessary and would have”
misled or confused the jury. Id.
We agree with the trial court. Appellant’s bald claim — that “there was
no testimony . . . that [he] ever put any law enforcement officers or the
general public in danger of serious bodily injury or death[ and i]n fact, the
testimony [was] that . . . he wasn’t traveling at a dangerous rate of speed” —
is belied by the record. See Appellant’s Brief at 16. The trial court aptly
summarized the evidence that in ignoring the officers’ commands to stop: (1)
Appellant fled at 70 miles per hour in a 45-mile per hour zone, and at 80 miles
per hour in a 55-mile per hour zone; (2) Corporal Phelps and Trooper
Poliskiewicz, who were on foot, “were forced to move aside to avoid being
struck by [Appellant’s] motorcycle;” and (3) Appellant “drove into the door of
[a] patrol vehicle.” See Trial Ct. Op. at 2-3.
Furthermore, we agree with the trial court that in reviewing the jury
instruction as a whole, it “clearly, adequately, and accurately presented [the
law] to the jury.” See Barr, 79 A.3d at 672. The court noted the charge was
consistent with the Suggested Standard Criminal Jury Instruction for fleeing
from police. Trial Ct. Op. at 8; see Pa. SSJI (Crim) 17.3733 (fleeing or
attempting to elude a police officer). The court instructed the jury that four
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elements must be proven beyond a reasonable doubt: (1) Appellant was the
driver of a motor vehicle; (2) he “was given a visual and audible signal by a
police officer to . . . stop[;]” (3) he “failed to refused to bring his vehicle to a
stop or fled or attempted to elude the pursuing police officer[;]” and (4) he
acted “willfully, or in other words, . . . he was aware of the officer’s signal to
stop and refused to do so.” Trial Ct. Op. at 7. The court then explained that
if the jury found the elements of fleeing from police were established beyond
a reasonable doubt, then it must further determine whether it found beyond
a reasonable doubt that Appellant “endangered a law enforcement officer or
member of the general public by engaging in a high speed chase.” Id. On
balance, the instruction did not mislead or confuse the jury, or include any
error in conveying the law. See Barr, 79 A.3d at 672.
Accordingly, we conclude no relief is due on Appellant’s claim, and affirm
the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/09/2022
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