Com. v. Thompson, K. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KENNETH THOMPSON :
:
Appellant : No. 1599 MDA 2018
Appeal from the Judgment of Sentence Entered August 27, 2018
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004014-2017
BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED MAY 14, 2019
Kenneth Thompson appeals from the judgment of sentence imposed on
August 27, 2018, in the Court of Common Pleas of Dauphin County, following
his jury conviction of one count of flight to avoid apprehension.1 The trial
court sentenced him to 18 to 36 months’ imprisonment. On appeal, Thompson
challenges the sufficiency of the evidence. Based upon the following, we
affirm.
We take the underlying facts and procedural history in this matter from
our independent review of the certified record. On May 18, 2017, Harrisburg
Police Detective Nicholas Ishman was on patrol in the Hall Manor housing
complex in Harrisburg, a high-crime, high-drug area, when he observed
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1 18 Pa.C.S.A. § 5126(a).
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Thompson walking with a group of five or six men. N.T. Trial, 6/25/2018, at
5-6. Ishman was aware that there were outstanding warrants for Thompson,
so he radioed for backup and followed Thompson in his vehicle. Id. at 7-10.
One of the officers who responded to Ishman’s request for backup was
Harrisburg Police Officer Anthony Fiore. Id. at 30-31. At trial, Fiore testified
that he observed Thompson walking with a group of five or six men, he saw
Thompson look back over his shoulder towards Ishman, and begin to walk
deliberately in the opposite direction. Id. at 34-35. Thompson, Ricky
Lambert, who also had outstanding warrants, and, possibly, a third, unknown
man split from the group and started first jogging, then running. Id. at 11-
13, 40-42. When Fiore activated his emergency lights and drove towards
Thompson, he again changed direction and continued to run away. Id. at 24,
37. The police followed Thompson and Lambert and ultimately found them
hiding in one of the residences in the complex. Id. at 19. The owner of the
residence testified that they did not have her permission to enter. Id. at 55.
A jury trial took place on June 25 and 26, 2018. At trial, the parties
stipulated that there were two outstanding warrants for Thompson, including
one felony warrant, at the time of the incident. N.T. Trial, 6/25/2018, at 6.
The jury found Thompson guilty of the aforementioned offense but not guilty
of criminal trespass.2 On August 27, 2018, the trial court sentenced
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2 18 Pa.C.S.A. § 3503(a)(1)(i).
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Thompson as noted above; Thompson did not file any post-sentence motions.
The instant, timely appeal followed.
On September 26, 2018, the court ordered Thompson to file a concise
statement of errors complained of on appeal. On October 12, 2018, Thompson
filed his Rule 1925(b) statement challenging the sufficiency of the evidence.
On December 4, 2018, the trial court issued an opinion stating it was unable
to address Thompson’s claim because he did not make a request for
transcripts. Trial Court Opinion, 12/04/2018, at unnumbered page 1.3
In his only issue, Thompson argues that the evidence is insufficient to
sustain his conviction for fleeing and eluding because the Commonwealth did
not prove he was aware of the existence of the warrants. Thompson’s Brief,
at 8-10. Our standard of review for a claim of insufficient evidence is as
follows:
The determination of whether sufficient evidence exists to support
the verdict is a question of law; accordingly, our standard of
review is de novo and our scope of review is plenary. In assessing
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3 We note that, initially, the trial court did not forward a trial transcript to this
Court, and we were unable to find a request for transcripts in the certified
record. It is the appellant’s responsibility to make certain that the certified
record contains all items necessary to ensure that this Court is able to review
his claims. See Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super.
2008) (en banc); Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super.
2006) (en banc), appeal denied, 916 A.2d 632 (Pa. 2007) (citation omitted).
Given this, this Court could have found that Thompson waived all issues on
appeal. See Commonwealth v. Martz, 926 A.2d 514, 524-525 (Pa. Super.
2007), appeal denied, 940 A.2d 363 (Pa. 2008). However, since Thompson
sent a copy of the notice of appeal to the court reporter, and in the interest of
justice, this Court’s Prothonotary made enquiry of the trial court and was
ultimately able to obtain a copy of the transcript.
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[a] sufficiency challenge, we must determine whether viewing all
the evidence admitted at trial in the light most favorable to the
[Commonwealth], there is sufficient evidence to enable the
factfinder to find every element of the crime beyond a reasonable
doubt. [T]he facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
. . . [T]he finder 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. Edwards, 177 A.3d 963, 969-970 (Pa. Super. 2018)
(quotation marks and citations omitted). Moreover, “[t]he Commonwealth
may sustain its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence.”
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citation
omitted), appeal denied, 32 A.3d 1275 (Pa. 2011).
The Commonwealth charged Thompson with violating 18 Pa.C.S.A. §
5126. Section 5126 states, in relevant part:
(a) Offense defined.--A person who willfully conceals himself or
moves or travels within or outside this Commonwealth with the
intent to avoid apprehension, trial or punishment commits a
felony of the third degree when the crime which he has been
charged with or has been convicted of is a felony and commits a
misdemeanor of the second degree when the crime which he has
been charged with or has been convicted of is a misdemeanor.
18 Pa.C.S.A. § 5126(a) (emphasis added). Our Court has stated that in order
to prove the intent element of the statute, “[i]t is sufficient for the defendant
to intentionally elude law enforcement to avoid apprehension[.]”
Commonwealth v. Steffy, 36 A.3d 1109, 1112 (Pa. Super. 2012).
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Here, Thompson complains that the Commonwealth failed to prove that
he was aware that there were active warrants for his arrest. Thompson’s
Brief, at 7. However, Thompson fails to provide any legal support for grafting
such a requirement onto the statute. Id. at 8-10.
In this matter, the parties agreed that, at the time of the incident, there
were two outstanding warrants for Thompson’s arrest. Viewing the evidence
in the light most favorable to the Commonwealth, the testimony at trial
demonstrated that Thompson was walking with a group of five to six men
when he spotted the police. Thompson, along with another man who had
outstanding warrants, immediately split from the group, changed direction,
and walked away from the police. When Thompson realized the police were
coming from multiple directions, he picked up the pace and fled, changing
directions multiple times. He ultimately ran into a residence that he did not
have permission to be in and hid from the police. This evidence demonstrated
that Thompson was intentionally attempting to elude the police to avoid
apprehension, thus, it was sufficient to sustain Thompson’s conviction for
fleeing and eluding. See Steffy, supra at 1112; Hansley, supra at 416.
Thompson also argues, “a person may run from the police for any
number of reasons. . . . it is just as likely that [he] ran because he was
following his companion. . ..” Thompson’s Brief, at 10. However, it was well
within the province of the jury as finder-of-fact to reject Thompson’s theory
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and conclude that he ran to avoid apprehension on the outstanding warrants.
Edwards, supra at 970. Thompson’s claim fails.
For all the foregoing reasons, we affirm Thompson’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/14/2019
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