Com. v. Taylor, P. ( 2022 )

J-S35017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICK L. TAYLOR :
:
Appellant : No. 138 MDA 2022
Appeal from the Judgment of Sentence Entered September 21, 2021
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0001033-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: DECEMBER 20, 2022
Patrick Taylor appeals from the judgment of sentence entered following
his convictions for flight to avoid apprehension, trial or punishment (“flight to
avoid apprehension”), fleeing or attempting to elude police officer, reckless
driving, registration and certificate of title required, and stop signs and yield
signs.1 Taylor challenges the sufficiency and weight of the evidence, as well
as discretionary aspects of his sentence. We affirm.
Taylor was arrested and charged after leading police on a chase. In
October 2020, Taylor’s then-counsel moved to dismiss the flight to avoid
apprehension charge, arguing the statute required that the defendant must
have fled to avoid apprehension for a current criminal charge, and avoiding
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* Former Justice specially assigned to the Superior Court.
118 Pa.C.S.A § 5126(a), 75 Pa.C.S.A. §§ 3733(a), 3736(a), 1301(a), and
3323(b), respectively.
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apprehension for a potential parole violation was not sufficient. The trial court
did not rule on the motion before trial. During trial, Taylor re-raised the issue
in a motion for judgment of acquittal, which the trial court denied. The
following day, the trial court declared a mistrial because a juror failed to
appear due to the COVID-19 pandemic. Prior to his second trial, Taylor, with
new counsel, again raised a motion to dismiss the flight to avoid apprehension
charge in an omnibus pre-trial motion. The court denied the motion.2
The trial court summarized the evidence presented at trial as follows:
The Commonwealth presented the testimony of Officer Ryan
Scott McClure of the Camp Hill Police Department, who was
sitting in his marked patrol vehicle on the side of Route 15
South in Camp Hill, Cumberland County on July 19, 2019
around dusk. Officer McClure said [Taylor], the sole
occupant of a silver Jeep, drove by him on Route 15 South,
passing by the Capital City Mall. Officer McClure ran the
Jeep’s license plate and learned the registration was
expired. Officer McClure pulled out onto Route 15 in his
police vehicle and attempted to initiate a traffic stop on
[Taylor] by activating his vehicle’s lights and sirens. [Taylor]
slowed as if he intended to stop as he approached an exit,
but continued driving and took the exit, at the end of which
he drove “straight through” a stop sign without coming to a
complete stop before making a right turn. [Taylor]
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2 The trial court stated:
[I]t appears that [the prior trial judge] previously ruled on
this issue in a trial that occurred in 2020 that resulted in a
mistrial due to a juror being sick, and such ruling is binding
on this Court. To the extent he didn’t specifically rule on the
Motion to Quash Count 1 of the Information, and following
argument by both counsel, the Motion to Quash Count 1 of
the Information is hereby denied[.]
Order, dated July 13, 2021.
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subsequently made a left turn to take him back to Route 15
North “so as to turn around.” As Officer McClure followed,
his lights and sirens remained activated. On Route 15 North,
[Taylor] accelerated in his Jeep at a higher rate of speed,
exceeding the posted speed limit of 50 mph in a heavy-
traffic area, which Officer McClure described as “pretty
crowded” with “a lot of cars on the road.” Officer McClure
decided to cease pursuing [Taylor’s] vehicle without ever
effecting the stop for safety and department policy reasons,
given the speed and traffic conditions.
Officer McClure did not know the identity of [Taylor] at the
time of the pursuit, but noted at the time that the driver was
a “light skinned male with afro style hair and a large scrip[t]
style writing tattoo on his right arm,” which he could see
because [Taylor’s] window was rolled down as he drove by
Officer McClure and Officer McClure had an unobstructed
view of [Taylor].31 Later, upon further investigation of the
driver’s identity, Officer McClure learned that the Jeep was
registered to a Caprice King and that a few months prior,
Caprice King and [Taylor] were the subjects of a traffic stop
in that Jeep by Lower Swatara Police Department in Dauphin
County. Officer McClure identified [Taylor] in the courtroom
as the driver of the Jeep at issue here, noting that [Taylor]
had a short haircut and no longer had a “large afro style
haircut” at the time of trial. The Commonwealth also
presented the testimony of Officer Patrick Ribec, who
conducted the traffic stop in Lower Swatara Township on the
Jeep at issue in March 2019. He said [Taylor] was driving
the Jeep at the time of the traffic stop with its owner,
Caprice King, as a passenger.
31Officer McClure’s window was up, but he said his
windows have no tint so he had a clear view.
The Commonwealth also presented the testimony of state
parole agent Allen Shipley, who testified about the details of
[Taylor’s] parole and parole conditions imposed following a
felony conviction. Agent Shipley said he was assigned to
[Taylor] when he absconded from a halfway house in April
2019 . . . . He said when [Taylor] entered the halfway house,
[Taylor’s] parole agent would have required [Taylor] to sign
a piece of paper “stating that this is your home plan and this
is your approved address. If you leave this address, you are
subject to violation of your parole.” Agent Shipley explained
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that when [Taylor] absconded from the halfway house, his
agency obtained a felony parole warrant for [Taylor’s] arrest
which was still active on July 19, 2019, the date of Officer
McClure’s attempted traffic stop. Agent Shipley did not
personally notify [Taylor] of the warrant for his arrest,
however, and he was assigned to [Taylor’s] supervision only
after [Taylor] absconded from the halfway house. He did not
know whether [Taylor] knew about the warrant during the
attempted traffic stop. [Taylor] turned himself in to the
parole office in May 2020 on the warrant.
Finally, the Commonwealth presented recordings of four
phone calls which were stipulated by defense counsel to
have been made by [Taylor] in the months of May or June
2020. In the first call, placed on May 22, 2020, [Taylor] is
on the telephone telling someone on the other end,
I need you to go talk to Caprice . . . . Tell her they’re
trying to charge me with all this shit about from that
time in her truck. I need her to at least see if she can
come to court for me on Wednesday . . . . They gave
me all these goddamn charges for a goddamn car and
some bullshit that I can get taken care of Wednesday
if she show[s] up and say[s] it wasn’t me. . . . Try to
get in contact with Caprice A.S.A.P. . . . Get in contact
with her, tell her I need to talk to her A.S.A.P., it’s
important. . . . ``Cause if she show[s] up, and she can
get in contact with my lawyer then she can show up
and say he wasn’t the one driving at that point in time.
. . . I’ll be good, they gotta throw this shit out.
In the second call, placed on May 23, 2020, [Taylor] tells
the other person on the phone,
I tried to call Caprice. . . . I need to talk to her. It’s
very important. . . . I might need her to come to court
Wednesday to say that it wasn’t me driving, it was
somebody else. I don’t give a fuck who[se] name she
say[s,] . . . just tell them it wasn’t me. . . . The cop
tried to get behind me when I was going to the mall.
. . . I told myself I ain’t going to jail so I put gas on
his ass. You know I ain’t going to jail. . . . My radar
said go, I go.
In the third call, placed the same day, [Taylor] said,
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I might need her to show up and say it wasn’t me
driving her truck. If she show[s] up and say[s] it
wasn’t me driving, I’m gravy. They gotta throw all that
shit out. Remember last year before I went to Florida
the second time, [unintelligible], that’s why I took ‘em
on a chase. . . . I had thought I caught a
[unintelligible], and I went on that chase. . . . That’s
what they charged me with.
In the fourth call, placed May 24, 2020, which defense
stipulated is a call [Taylor] made to Caprice King, [Taylor]
said the following,
The second time when I was driving . . . you know
that situation. . . . If you can show up and tell them it
wasn’t me, you know what I’m saying, you see what
I’m saying?
Caprice King responded, “I do see what you're saying.”
Trial Court Opinion, filed May 5, 2022, at 7-11 (citations and most footnotes
omitted) (some alterations in original).
A jury found Taylor guilty of flight to avoid apprehension (count 1) and
fleeing or attempting to elude a police officer (count 2). The court found him
guilty of reckless driving, registration and certificate of title required, and stop
signs and yield signs.
At sentencing, Taylor told the court that his 16-year-old daughter had
lupus, he had been helping to take care of her, and he hoped to continue to
do so when he returned from prison. N.T., Sept. 21, 2021, at 5. The
Commonwealth informed the court that 48 hours after Taylor was released on
bail pending sentencing, he cut off his GPS ankle monitor and fled. Id. at 7.
The Commonwealth stated it “had to use tremendous resources in order to
have Mr. Taylor in custody for th[e] sentencing.” Id. It argued that
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“throughout this case, through his criminal history, [Taylor] has shown he
absolutely will not listen to any court order.” Id. at 7. It asked the court to
impose the maximum sentence at each count, which would be three and a
half to seven years at count 1 and one to two years at count 2, and asked that
they run consecutive to each other and to any other sentence Taylor received.
Id. at 8.
The trial court stated it had received a presentence investigation report
(“PSI”), and that the standard range guidelines for the fleeing to avoid
apprehension conviction were 12 to 18 months. It sentenced Taylor to 21 to
42 months’ imprisonment for the flight to avoid apprehension conviction and
a consecutive nine to 24 months’ imprisonment for the fleeing or attempting
to elude a police officer conviction. The court ordered the sentences to run
consecutively to any other sentence Taylor was then serving. The court gave
the following reasons for the sentence:
The sentence imposed at Count 1 is in the aggravated range
of the sentencing guidelines and is given in consideration
that it appears that [Taylor’s] prior record and his behavior,
and the facts of the instant case combined with his cutting
off a GPS ankle monitoring bracelet when th[e c]ourt
allowed him to remain free on bail pending sentencing, and
fleeing from State Parole at that time, provides information
to this Court that [Taylor] is not amendable to rehabilitation.
Th[e c]ourt further notes that the sentence imposed at
Count 2 is in the standard range of the sentencing
guidelines.
Id. at 11-12.
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Taylor filed a post-sentence motion challenging the sufficiency and
weight of the evidence, and the discretionary aspects of his sentence. In
challenging the sentence, Taylor argued “[t]he sentence imposed by the Court
at Count 1 was in the aggravated range, at Count 2 was at the top of the
standard range, with the sentence at Count 2 running consecutively to the
sentence imposed at Count 1 and any other sentences [Taylor] was currently
serving, with both being excessive and unduly harsh.” Post-Sentence Motion,
filed Sept. 30, 2021, at ¶ 24. The trial court denied the motion. Taylor filed a
timely notice of appeal.
Taylor raises the following issues:
I. Whether the trial court erred in denying [Taylor’s]
omnibus pretrial motion, with respect to the portion denying
[Taylor’s] request to quash count I of the Information?
II. Whether the evidence was insufficient to sustain the
verdict of guilt?
III. Whether the verdicts were against the weight of the
evidence?
IV. Whether the trial court abused its discretion in imposing
sentences in the aggravated range, at the top of the
standard range, and in running the sentence at Count II
consecutively to the sentence imposed at Count I and both
sentences consecutively to any other sentence [Taylor] was
serving?
Taylor’s Br. at 6.
In his first issue, Taylor argues that the court erred in denying his pre-
trial motion to quash the flight to avoid apprehension charge. The pre-trial
motion to quash is moot, as the jury found Taylor guilty of flight to avoid
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apprehension. Commonwealth v. Haney, 131 A.3d 24, 36 (Pa. 2015)
(citations omitted); see also Commonwealth v. Lee, 662 A.2d 645, 650
(Pa. 1995) (“[Defendant’s] adjudication of guilt renders moot any allegation
that the Commonwealth failed to establish a prima facie case with respect to
the homicide [at the preliminary hearing]”). After a verdict is entered, a
defendant may challenge the sufficiency of the evidence to support the
conviction. Taylor raises such a claim, which we address next.
When reviewing a challenge to the sufficiency of the evidence, we “must
determine whether the evidence admitted at trial, and all reasonable
inferences drawn therefrom, when viewed in a light most favorable to the
Commonwealth as verdict winner, support the conviction beyond a reasonable
doubt.” Commonwealth v. Feliciano, 67 A.3d 19, 23 (Pa.Super. 2013) (en
banc) (quoting Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa.Super.
2011)). We review the evidence de novo, but do not substitute our weighing
of the evidence for that of the factfinder, who is free to believe all, part, or
none of the evidence. Commonwealth v. Hall, 199 A.3d 954, 960 (Pa.Super.
2018).
Taylor argues that the evidence did not support the flight to avoid
apprehension conviction, graded as a third-degree felony. To support such a
conviction, the Commonwealth had to prove that at the time of the incident,
Taylor had a new, pending felony charge or was awaiting sentencing on a
felony conviction. Taylor maintains that neither condition existed here. He
further argues the Commonwealth failed to prove he had notice of the state
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parole warrant and failed to present evidence he had notice of the conditions
of his parole. He points out that although Parole Agent Shipley testified that
Taylor had absconded from a halfway house he was required to live in and a
felony parole warrant was issued, Agent Shipley did not know whether Taylor
was notified of the warrant. He further claims the Commonwealth did not
present documentation signed by Taylor that alerted him to his conditions of
parole or testimony of a parole officer who informed Taylor of the conditions.
A person commits the crime of flight to avoid apprehension if he “willfully
conceals himself or moves or travels within or outside this Commonwealth
with the intent to avoid apprehension, trial or punishment.” 18 Pa.C.S.A. §
5126(a). The crime is a felony of the third degree if the crime with which the
defendant was charged or of which he was convicted is a felony. Id. “Section
5126 ‘requires that a person has been charged with a crime’ at the time he or
she flees from law enforcement.” In Int. of P.S., 158 A.3d 643, 652
(Pa.Super. 2017) (quoting Commonwealth v. Phillips, 129 A.3d 513, 518
(Pa.Super. 2015)).
Several precedents guide our decision here. In Commonwealth v.
Steffy, 36 A.3d 1109 (Pa.Super. 2012), the police stopped the defendant for
speeding. They learned he had an outstanding arrest warrant for violation of
probation and informed the defendant of the warrant. The defendant fled when
a police officer attempted to handcuff him. Id. at 1110. The Commonwealth
charged the defendant with a felony violation of Section 5126 because the
outstanding warrant was for violation of probation on a felony charge. The
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defendant challenged the sufficiency of the evidence, claiming he did not know
that the outstanding bench warrant was related to a felony. Id. at 1111. This
Court rejected the defendant's argument, reasoning that the statute does not
require knowledge of the grade of offense for which he is attempting to avoid
apprehension. Id. at 1111-12. In addition, we rejected the defendant’s claim
that he did not know that the warrant was premised on his violations of
probation, concluding that “[k]nowledge of his probation conditions must also
be attributed to him; therefore, he would be aware of whether . . . he was in
violation of those terms and conditions.” Id. at 1112.
In In Interest of P.S., the police attempted to effectuate a traffic stop
of a vehicle that had been reported stolen. The driver of the vehicle, later
determined to be the defendant, fled and did not stop until the vehicle collided
with a tree. The defendant was on the juvenile equivalent of probation at the
time he fled but there was no outstanding warrant, he had not been charged
with a crime, and he was not awaiting sentencing. 158 A.3d at 652. We
concluded the evidence was insufficient to support the adjudication of
delinquency for flight to avoid apprehension. We explained that “the statute
says nothing about fleeing to avoid apprehension for potential probation
violations.” Id.In Commonwealth v. Schuster, 2021 WL 2624685, at *1 (Pa.Super.
June 25, 2021),3 an arrest warrant had been issued for the defendant after he
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3Unpublished non-precedential decisions of the Superior Court filed after May
1, 2019, may be cited for their persuasive value. See Pa.R.A.P. 126(b)
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absconded from probation. The defendant stipulated that he was aware he
was on probation. The defendant also told a probation officer he was aware of
the warrant because he saw a post on the sheriff’s department’s Facebook
page. Police officers responded to a call that the defendant had been seen
walking down a street and, when they approached the defendant, he ran and
attempted to hide. Id. We concluded the evidence supported the flight to
avoid apprehension conviction because the defendant had stipulated that
there was a warrant for his arrest for a violation of probation and that he knew
the terms of his supervision, and a probation officer testified the defendant
told her he knew there was a warrant out for his arrest. Id., at *3. We
concluded that “when a defendant has knowledge of a pending probation
violation, if the defendant absconds from supervision it may serve as a basis
for a charge of flight to avoid apprehension.” Id.
Here, the trial court concluded sufficient evidence supported a finding
that Taylor was aware he was wanted because he knew the terms of his
probation and knew absconding from the halfway house was a violation of
probation. Agent Shipley testified that Taylor would have been informed he
had to remain at the half-way house as a term of his parole, and he absconded
therefrom. Further, Taylor made statements during the phone calls that
support a finding he was aware he was wanted for violating his parole,
including Taylor’s statement that he “told himself [he] ain’t going to jail so
[he] put gas on his ass.” Trial Ct. Op. at 12 (citation omitted). Unlike the
defendant in P.S., Taylor was not fleeing because he was committing a new
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crime at the time of the chase, such that the underlying crime was a
“potential” violation. Rather, the evidence supported findings that Taylor was
fleeing to avoid arrest on a warrant for a known parole violation, and that he
knew he was wanted for absconding from parole.
Taylor also challenges the sufficiency of the evidence for all convictions,
arguing the Commonwealth failed to establish he was driving the car. He
points out that Officer McClure followed the vehicle and attempted to stop it
but ended the pursuit before the vehicle stopped. He notes that the incident
occurred “around dusk,” at about 8:30 p.m., the road was crowded, and
Officer McClure described the driver only as a light-skinned man with afro-
style hair and a large script style tattoo on his right arm. He points out the
officer determined the car belonged to Caprice King, who had prior contact
with the police while Taylor was in the vehicle. He argues Officer McClure made
the identification at trial based on an event that occurred two years earlier
where he “casually observ[ed]” the vehicle drive by. Taylor’s Br. at 26-27.
“[E]vidence of identification need not be positive and certain to sustain
a conviction.” Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa.Super.
2008). Common items of clothing and general physical characteristics are
usually insufficient to support a conviction, but “such evidence may be
considered to establish identity along with other circumstances and the
proffered identification testimony.” Commonwealth v. Minnis, 458 A.2d
231, 233 (Pa.Super. 1983). “[A]ny indefiniteness and uncertainty in the
identification testimony goes to its weight.” Id.- 12 -
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The trial court rejected Taylor’s claim because “Officer McClure had an
unobstructed view of [Taylor], who was driving with his window down, and
identified [Taylor] as the driver of the Jeep at trial.” Trial Ct. Op. at 13. The
court noted that Officer McClure initially identified Taylor because a few
months before the traffic stop at issue, Taylor had been stopped in the same
Jeep with its owner during a traffic stop. Further, during the phone calls, Taylor
identified himself as the driver, including stating, “[t]he second time I was
driving . . . you know that situation” and “[r]emember last year . . . that’s
why I took ‘em up on a chase.” Id. (citation omitted) (alterations in original).
We agree with the trial court that the Commonwealth presented
sufficient evidence to identify Taylor as the driver of the vehicle. Officer
McClure identified Taylor, and testified he was able to see the driver. Taylor’s
statements during the phone calls further support a finding he was driving the
vehicle at the time of the traffic stop.
Taylor next claims the trial court erred in denying his challenge to the
weight of the evidence. He argues King’s testimony contradicted and raised
questions regarding the validity of Officer McClure’s identification of Taylor.
He points out that King owned the vehicle and testified she did not give Taylor
permission to use it and he did not have access to her home or car keys. He
claims this contradicts Officer McClure’s testimony, as he made only a “brief,
casual observation of a person driving by on a busy road with many cars
driving by at the same time.” Taylor’s Br. at 30.
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When reviewing a challenge to the weight of the evidence, we review
“the trial court’s exercise of discretion.” Commonwealth v. Johnson, 192
A.3d 1149, 1152-53 (Pa.Super. 2018) (citing Commonwealth v. Hicks, 151
A.3d 216, 223 (Pa.Super. 2016)). A reversal of a verdict is not necessary
“unless it is so contrary to the evidence as to shock one’s sense of justice.”
Id. at 1153. “The weight of the evidence is exclusively for the finder of fact,
who is free to believe all, none or some of the evidence and to determine the
credibility of the witnesses.” Commonwealth v. Cramer, 195 A.3d 594, 600
(Pa.Super. 2018) (citation omitted). The fact-finder also has the responsibility
of “[r]esolving contradictory testimony and questions of credibility.” Id.(citation omitted). We give great deference to the trial court’s decision
regarding a weight of the evidence claim because it “had the opportunity to
hear and see the evidence presented.” Id. at 601. (citation omitted).
The trial court concluded the verdict was not against the weight of the
evidence:
We did not find the Commonwealth’s evidence so tenuous,
vague, or uncertain such that any of the guilty verdicts
shocked our sense of justice. We will review some
contradictory evidence to more fully respond to this claim.
At cross-examination, [Taylor’s] counsel attempted to
undercut Officer McClure’s direct examination testimony
that he could clearly see [Taylor] in the Jeep, given that
both the officer and [Taylor] were in vehicles and [Taylor]
was driving by at the point of identification. Officer McClure,
however, said that though his own vehicle’s window was up,
the window was not tinted, and he therefore had an
unobstructed view of [Taylor] as he drove by. He also
pointed out that the sun was still out and light enough to
see. Officer McClure conceded he could not identify what
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color shirt [Taylor] was wearing while driving or if he had
facial hair or earrings, for example. However, we did not find
such evidence compelling enough to outweigh the
Commonwealth’s evidence, which we have summarized
herein, which included [Taylor] discussing the chase in
telephone recordings at length, strongly suggesting he was
the driver.
We also note that defense produced Caprice King to testify.
She testified that she had always been friends with [Taylor]
since they were children. She said that on the morning of
July 19, 2019, she left her Jeep and keys at her sister’s
house while she was at work. She said [Taylor] did not live
with her, nor have keys to the residence where her keys
were, and that other people in the house had access to her
Jeep keys. She said she never gave anyone permission to
drive her Jeep that day and did not know that anyone did
drive her Jeep that day. Ms. King said she recalled [Taylor]
asking her to come to court to testify about July 19, 2019,
but generally appeared reluctant to say what exactly
[Taylor] wished her to say about the incident. The
Commonwealth presented Ms. King with the recording of her
phone call with [Taylor], during which he said, “The second
time when I was driving ... you know that situation,” and,
later, “If you can show up and tell them it wasn’t me, you
know what I’m saying, you see what I’m saying?”
Questioning ensued ad nauseum about the effect of this
recording on her testimony, but the essential result was that
she said she thought he was referring to an earlier time
when he had permission to drive her car, but was not sure
what he was referencing. The Commonwealth ultimately
impeached Ms. King via admission of a 2016 prior conviction
for False Identification to Law Enforcement. Ms. King’s
testimony did little to aid defense, as Ms. King did not know
whether or not [Taylor] drove her vehicle on July 19, 2019,
and, frankly, the main effect of her testimony was that she
appeared to be nervously attempting to say as little as
possible on the matter.
We note that much of the evidence was undisputed outside
of identification of the driver of the Jeep and whether
[Taylor] knew he was wanted by law enforcement while
fleeing. On these points, too, we found the weight of the
evidence to be in the Commonwealth’s favor. We reiterate
that [Taylor] was undisputedly on parole, that a condition of
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same was to remain at the halfway house, that he
absconded therefrom, and that he fled from Officer McClure
attempting to conduct a traffic stop. [Taylor’s] recorded
phone calls reveal him pleading with someone to get in
touch with Ms. King in an attempt to have her testify he was
not driving, in addition to other statements indicating that
he was in fact driving and that he led Officer McClure on a
chase because he did not want to go to jail. We cannot
reasonably conclude from this evidence that [Taylor] did not
intend to avoid apprehension. The remaining counts, more
straightforward in their elements, were met with ample
credible evidence, and the weight of the same went largely
unchecked by contrary evidence or cross-examination. We
did not find the verdicts against the weight of the evidence.
Trial Ct. Op. at 16-19.
This was not an abuse of discretion. The credibility of the witnesses was
for the fact-finder, who chose to believe Officer McClure. King’s testimony did
not outweigh the evidence supporting Taylor’s guilt, including Officer’s
McClure’s testimony and the phone calls.
In his final claim, Taylor argues the trial court abused its discretion when
it imposed sentences in the aggravated range and at the top of the standard
range, and that ran consecutively. He claims the trial court erred by imposing
a sentence in the aggravated range while relying on impermissible factors,
giving insufficient reasons, and failing to consider the sentencing factors,
including protection of the public, impact on the victims, and impact on the
community. He argues the court’s errors resulted in an excessive and harsh
aggregate sentence. Taylor claims the court provided no reasons for imposing
a top standard range sentence at count II, which it ran consecutive, and no
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reasons as to why it ran the sentences consecutive to other sentences Taylor
was serving.
There is no absolute right to appeal the discretionary aspects of a
sentence. Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super.
2013) (en banc). Rather, we employ a four-part analysis before addressing a
challenge to discretionary aspects of sentence. We must determine whether
the appellant: (1) filed a timely notice of appeal; (2) properly preserved the
sentencing issue at sentencing or in a motion to reconsider or modify
sentence; (3) included in the appellate brief a concise statement of the
reasons relied upon for allowance of appeal; and (4) has asserted a substantial
question that the sentence is not appropriate under the Sentencing Code. See
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013); 42 Pa.C.S.A.
§ 9781(b). “[I]f the appeal satisfies each of these four requirements, we will
then proceed to decide the substantive merits of the case.” Austin, 66 A.3d
at 808 (citation omitted).
Taylor filed a timely notice of appeal and preserved in a post-sentence
motion a claim the court imposed an excessive sentence that included an
aggravated range sentence and consecutive sentences without considering
the factors set forth in the Sentencing Code. However, his post-sentence
motion did not preserve his claim the court relied in impermissible factors. He
therefore waived that claim on appeal. See Commonwealth v. Moury, 992
A.2d 162, 172 (Pa.Super. 2010) (finding claim waived when not raised in post-
sentence motion or at sentencing).
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Taylor’s claim that the court imposed an excessive sentence, including
consecutives sentences, without considering the factors set forth in the
Sentencing Code and other relevant factors raises a substantial question. See
Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super. 2003) (en
banc) (stating that a substantial question is raised where appellant claims the
sentencing court imposed an aggravated range sentence without considering
mitigating circumstances); Commonwealth v. Riggs, 63 A.3d 780, 786
(Pa.Super. 2012) (finding that appellant raised a substantial question when
he argued that “the trial court failed to consider relevant sentencing criteria,
including the protection of the public, the gravity of the underlying offense
and the rehabilitative needs of [a]ppellant, as 42 Pa.C.S.A. § 9721(b)
requires”). We will therefore review the merits of this claim.
“Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa.Super.
2018) (citation omitted). An abuse of discretion occurs where “the sentencing
court ignored or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable
decision.” Id. (citation omitted). In imposing a sentence, the sentencing court
must consider “the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). Where a PSI
exists, we “presume that the sentencing judge was aware of relevant
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information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Rush, 162 A.3d 530, 545 n.12 (Pa.Super. 2017) (quoting Commonwealth
v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009)).
Here, the trial court considered the PSI, the fact that Taylor removed
his GPS monitoring anklet after his conviction, and other factors in imposing
the sentence. It set forth its reasons for imposing an aggregate range
sentence on count I, finding Taylor was not amendable to rehabilitation. It
reasoned that Taylor’s prior record, the facts of this case, and his removing
the GPS ankle monitoring bracelet while awaiting sentencing support that he
is not amendable. We conclude the court considered all appropriate factors
and did not impose an excessive or harsh sentence. The court did not abuse
its discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2022
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