Com. v. Vasquez, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAMON VASQUEZ
Appellant No. 1171 MDA 2015
Appeal from the Judgment of Sentence April 29, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004704-2013
BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED MARCH 23, 2016
Ramon Vasquez appeals from his judgment of sentence, imposed in
the Court of Common Pleas of Berks County, after a jury found him guilty of
flight to avoid apprehension1 and related offenses. Upon careful review, we
affirm.
Around 3:00 p.m. on June 19, 2013, Vasquez entered the office of
Magisterial District Judge Wally Scott to turn himself in on an outstanding
warrant. N.T. Trial, 4/15/14, at 51. At the time, Vasquez believed that the
outstanding warrant was for a summary offense. Id. After discovering that
Vasquez had an outstanding warrant for misdemeanor theft, Judge Scott
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 5126.
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called Vasquez into his courtroom and informed him of this fact. Id. at 55-
56. Judge Scott informed Vasquez of his rights and read him the affidavit of
probable cause and complaint from the bench. Id. When Judge Scott had
finished and handed Vasquez the arraignment information sheet, Vasquez
told the judge that there had been a mistake and that his girlfriend had
contacted the police department to drop the charges against him. Id. at 59-
60. Judge Scott agreed to call Vasquez’s girlfriend to ask if she wanted to
go forward with the charges. Id. at 60-61.
Vasquez testifies that, at this point, he told the guard, Kyley Scott,
that he was going to use the bathroom. Id. at 120. As Judge Scott hung up
the phone, Vasquez stood up from his chair and put on his backpack and
hat, as if preparing to leave. Id. at 62. Judge Scott repeatedly directed
Vasquez to retake his seat and walked out from behind the bench and stood
at the top of the courtroom’s exit ramp. As Vasquez approached the
courtroom door, Judge Scott positioned himself between Vasquez and the
threshold, blocking Vasquez’s exit. Kyley Scott grabbed Vasquez and
attempted to pull him back into the courtroom. Vasquez shook off Kyley
Scott’s grasp, pushed past Judge Scott, and exited the courtroom. Id. at
121.
Vasquez then exited the building and ran towards his motorcycle,
which was parked outside on the street. Luis Negron, who was taking a
cigarette break outside of a business across the street, witnessed Vasquez
fleeing from the building, with Judge Scott and Kyley Scott trailing behind
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him. Id. at 100-01. Negron ran across the street and grabbed Vasquez by
the back of the shoulders as he attempted to start his motorcycle. Vasquez
then revved the engine suddenly and reared back on the bike, freeing
himself of Negron’s grip. Vasquez then took off down the street at a high
rate of speed. Id. at 101-02. Shortly thereafter, Vasquez crashed his
motorcycle into a guardrail. Id. at 109. As Vasquez attempted to restart
the motorcycle, he was approached by off-duty Reading Police Officer
Christian Morar, who had been pursuing him since he left Magisterial Judge
Scott’s office. Id. at 110. After identifying himself as a police officer,
Officer Morar approached Vasquez with his firearm drawn and ordered him
to stop. When Officer Morar came within arm’s length of Vasquez, he
reached out with his hand and pushed Vasquez away from the motorcycle.
The push caused Vasquez to fall backwards, allowing Officer Morar to grab
the keys from the ignition. N.T. Omnibus Pretrial Hearing, 1/10/14, at 44.
After securing his own vehicle and grabbing his taser, Officer Morar then
pursued Vasquez on foot, but soon lost sight of him. Id. at 45. Vasquez
later turned himself in to his bail bondsman and was taken to Berks County
Prison. Id. at 127.
The trial court gave the following account of the procedural history of
this case:
On April 15, 2014, following a jury trial, [Vasquez] was found
guilty of flight to avoid apprehension, trial or punishment and
other related offenses. On April 29, 2014, [Vasquez] was
sentenced to nine months to two years of incarceration in a state
correctional facility. [Vasquez] was represented at trial and
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sentencing by Holly B. Freeney, Esquire, of the Berks County
Public Defender’s Office.
On April 29, 2014, this court granted Ms. Feeney’s Motion
for Leave to Withdraw as Counsel, and appointed Nicholas
Stroumbakis, Esquire, to represent [Vasquez] on Appeal. On or
about November 19, 2014, [Vasquez] filed a pro se Motion for
Withdrawal of Counsel and Appointment of Replacement
Counsel, which this court interpreted to be a petition filed
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541-
9546. Accordingly, on December 2, 2014, this court appointed
Osmer S. Deming, Esquire, to represent [Vasquez].
On June 11, 2015, Attorney Deming filed an Amended
Petition for Post Conviction Collateral Relief in which he sought to
have [Vasquez’s] direct appellate rights reinstated, nunc pro
tunc. This court granted [Vasquez’s] Amended Petition that
same day, and on July 9, 2015, Attorney Deming filed a Notice
of Appeal on [Vasquez’s] behalf. On July 13, 2015 the court
ordered [Vasquez] to file a Concise Statement of Errors
Complained of on Appeal. [Vasquez] complied with this court’s
order on August 3, 2015.
Trial Court Opinion, 9/18/15, at 1-2. The trial court filed its Pa.R.A.P.
1925(a) memorandum opinion on September 18, 2015. Vasquez raises the
following two issues on appeal:
1. Was the evidence sufficient to support the conviction for flight
to avoid apprehension?
2. Was the verdict against the weight of the evidence to support
the conviction for flight to avoid apprehension?
Appellant’s Brief, at 5.
Vasquez claims the evidence was insufficient to prove beyond a
reasonable doubt that he acted with the intent to avoid apprehension, trial
or punishment or that he intentionally attempted to elude law enforcement.
Appellant’s Brief, at 14-15. Vasquez argues that he arrived at Magisterial
Judge Scott’s office with the intent to turn himself in to authorities and then
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only fled after being attacked by Judge Scott and his staff. He also asserts
that his flight cannot be characterized as an intentional attempt to elude law
enforcement because Judge Scott and his security guard are not law
enforcement and he did not know that Officer Morar was an off-duty police
officer. Id. at 15.
Our standard of review in assessing a challenge to the sufficiency of
the evidence is well-settled. “The standard we apply in reviewing the
sufficiency of the evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the crime beyond
a reasonable doubt.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.
Super. 2013). “Any doubts concerning an appellant’s guilt [are] to be
resolved by the trier of fact unless the evidence was so weak and
inconclusive that no probability of fact could be drawn therefrom.”
Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007). “[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. Perez, 931 A.2d 703, 707 (Pa. Super.
2007).
Section 5126 of the Crimes Code defines the crime of flight to avoid
apprehension, trial or punishment as:
(a) Offense defined.—A person who willfully conceals himself
or moves or travels within or without the Commonwealth with
the intent to avoid apprehension, trial or punishment commits a
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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 he has been
charged with or has been convicted of is a misdemeanor.
18 Pa.C.S. § 5126(a). This Court has elaborated on the intent prong of
section 5126 as follows:
[T]he plain language of the statute requires that the defendant
intend to avoid apprehension, trial or punishment. The statute
does not mandate that the defendant have knowledge of the
precise grading of the offense for which he is attempting to avoid
capture. The intent element of the crime is separate and apart
from whether the person has been convicted or is charged with a
felony. Furthermore, nothing in the statutory language requires
that police have knowledge of the underlying charge or
conviction. It is sufficient for the defendant to intentionally
elude law enforcement to avoid apprehension, trial or
punishment on a charge or conviction.
Commonwealth v. Steffy, 36 A.3d 1109, 1111-12 (Pa. Super. 2012).
Here, the trial court concluded that the Commonwealth proved beyond
a reasonable doubt that Vasquez had the specific intent to support a
conviction for flight to avoid apprehension, trial or punishment. According to
Vasquez’s own testimony, he fled from Magisterial Judge Scott’s office on his
motorcycle after learning that there was a warrant for his arrest. Trial Court
Opinion, 9/18/15, at 3. Vasquez then fled a second time, this time on foot,
after Officer Morar identified himself as an off-duty police officer and ordered
Vasquez to stop. Id.In addition to the evidence cited by the trial court, the Commonwealth
presented testimony from the only other two people in the courtroom
besides Vasquez, Judge Scott and his guard, Kyley Scott; their testimony
refuted Vasquez’s testimony that he had asked to go to the bathroom to call
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his lawyer. The Commonwealth also offered testimony from Judge Scott and
Kyley Scott, as well as Officer Morar and Negron, that Vasquez did not go to
the bathroom, nor did he call his lawyer, but instead ran from the office and
rode away very quickly on his motorcycle.
Accordingly, we agree with the trial court that the evidence, viewed in
the light most favorable to the Commonwealth, was sufficient to sustain
Vasquez’s conviction under section 5126(a). Garland, supra.Next, Vasquez argues that he must be awarded a new trial because
the verdict was against the weight of the evidence. Appellant’s Brief, at 16.
An allegation that the verdict is against the weight of the evidence is
addressed to the sound discretion of the trial court. Commonwealth v.
Dupre, 866 A.2d 1089, 1101 (Pa. Super. 2005) (citations omitted).
Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008). A verdict is
against the weight of the evidence only where the Commonwealth’s evidence
is so fundamentally inconsistent, unreliable, or tenuous that it shocks one’s
sense of justice to imagine that a factfinder could have credited it and used
it to convict someone. Commonwealth v. Widmer, 744 A.2d 745 (Pa.
2000). Moreover:
[o]ur purview [with respect to a weight-of-the-evidence claim] is
extremely limited and is confined to whether the trial court
abused its discretion in finding that the jury verdict did not shock
its conscience. Thus, appellate review of a weight claim consists
of a review of the trial court’s exercise of discretion, not a review
of the underlying question of whether the verdict is against the
weight of the evidence.
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Commonwealth v. Knox, 50 A.3d 732, 738 (Pa. Super. 2012) (citations
omitted).
Before we address the merits of Vasquez’s weight claim, we must first
determine whether Vasquez has preserved his weight challenge. Pursuant to
Pa.R.Crim.P. 607, a challenge to the weight of the evidence “shall be raised
with the trial judge in a motion for a new trial . . . orally, on the record, at
any time before sentencing[,] by written motion at any time before
sentencing[,] or in a post-sentence motion.” Pa.R.Crim. 607(A)(1), (2), &
(3). Moreover, a post-sentence motion “shall be filed no later than 10 days
after imposition of sentence.” Pa.R.Crim.P. 720(A)(1).
Instantly, the trial court reinstated only Vasquez’s direct appeal rights
nunc pro tunc. Where the court reinstates direct appeal rights nunc pro
tunc, the appellant is not automatically entitled to reinstatement of his post-
sentence rights nunc pro tunc as well. Commonwealth v. Liston, 977
A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a defendant’s
post-sentence rights nunc pro tunc if the defendant requested such relief
from the PCRA court and if the court held an evidentiary hearing on the
issue. Commonwealth v. Fransen, 986 A.2d 154 (Pa. Super. 2009).
In Commonwealth v. Corley, 31 A.3d 293 (Pa. Super. 2011), we
explained that where the appellant was denied counsel entirely throughout
the post-sentence and direct appeal period when he was constitutionally
entitled to counsel, reinstatement of his appellate rights nunc pro tunc
should have included the right to file a post-sentence motion nunc pro tunc,
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because the appellant was without counsel at the time the post-sentence
motion was due. Accordingly, we determined in Corley that the appellant
did not waive his discretionary challenge to his sentence on direct appeal
nunc pro tunc, even though his post-sentence rights were not reinstated
nunc pro tunc. Id. at 297.
Here, as in Corley, Vasquez’s direct appeal rights were reinstated on
the basis that he had been denied the right to counsel in pursuing a direct
appeal. Trial Court Order, 6/11/15. The trial court does not recognize,
however, that immediately after imposing sentence on April 29, 2014, the
court granted trial counsel’s motion for leave to withdraw.2 Notably, the
court did not appoint Vasquez new counsel, for the purpose of filing post-
sentence motions and an appeal, until May 7, 2014 – 8 days following
sentencing. Accordingly, Vazquez was unrepresented 80% of the time
within which he had to file timely post-sentence motions under Rule 720. In
fact, Vasquez submitted a handwritten document entitled “Post Sentence
Motion for Judgment of Acquittal” to the Clerk of Courts, dated May 7, 2014
and postmarked May 15, 2014. In the document, Vasquez requested to
proceed with his post-sentence motion pro se until the court could appoint
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2
At this time, Holly Freeney, Esquire, reviewed the procedure for filing post-
sentence motions and appeals with Vasquez and had him sign the
“Defendant’s Acknowledgement of Post Sentence Procedures Following
Trial.” See Defendant’s Acknowledgement of Post Sentence Procedures
Following Trial, 4/29/14, at 3.
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replacement counsel. A copy of the letter was sent to Attorney Stroumbakis
on May 19, 2014, well after the time period for filing timely post-sentence
motions had expired. Additionally, Vasquez contends that he made several
attempts to get in touch with Attorney Stroumbakis regarding the filing of
post-sentence motions, both by mail and phone, but was unable to establish
contact.
As in Corley, Vasquez’s PCRA claim was based on appointed counsel’s
failure to file a post-sentence motion or appeal on his behalf, and Vasquez
raises no other claims of ineffectiveness of counsel in his petition. In
reliance on Corley, we decline to find waiver of Vasquez’s weight challenge
on the basis that he failed to preserve the claim in a post-sentence motion
where: He was effectively denied the right to counsel during the time when
he could file timely post-sentence motions and where he attempted to
preserve those rights by objecting at sentencing and filing pro se post-
sentence motions raising a weight of the evidence claim.3 See Defendant’s
Post Sentence Motion for Judgement of Acquittal, 5/16/14, at 3.
Vasquez contends that the weight of the credible testimony establishes
that he fled Judge Scott’s office in order to escape the attacks of Judge Scott
and Kyley Scott and not to avoid apprehension, trial, or punishment.
Appellant’s Brief at 16-17. First, Vasquez argues that his voluntary presence
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3
Vasquez acknowledges in his PCRA petition that he submitted a post-
sentence motion.
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at Judge Scott’s office establishes that he “was trying to do the opposite of
avoiding apprehension.” Id. at 16. Second, Vasquez argues that the jury
should have credited his testimony that he asked Kyley Scott for permission
to “go to the bathroom to call a lawyer” before getting up to leave the
courtroom and was then the victim of unprovoked attacks by Judge Scott
and Kyley Scott. Id.
Whether or not Vasquez asked for permission to leave Judge Scott’s
courtroom, both Judge Scott and Kyley Scott testified that Vasquez ignored
Judge Scott’s repeated demands that he return to his seat and then
physically pushed past Judge Scott to exit the courtroom. N.T. Trial,
4/15/14, at 62-66, 82-85. As the trial court noted in its Rule 1925(a)
opinion, the jury “obviously found the testimony of [Judge] Scott, Kyley
Scott, and Officer Morar to be credible.” Trial Court Opinion, 9/18/15, at 4.
Vasquez’s own testimony largely corroborates the Commonwealth’s account
of his flight from Judge Scott’s office. Once outside the building, the
evidence shows that Vasquez ran to his motorcycle and rode off at a high
rate of speed, crashing the vehicle shortly thereafter. Id. at 125. As
Vasquez attempted to restart his motorcycle, Officer Morar approached him
with his weapon drawn, identified himself as a police officer, and ordered
him to get down. Id. at 110; 126. Vasquez ignored Officer Morar’s orders
and fled the scene on foot. Id. at 126.
Vasquez contends that he did not hear Officer Morar identify himself
and, therefore, did not recognize him as a police officer. Id. However, the
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evidence shows that Officer Morar approached Vasquez within moments of
his flight from Judge Scott’s office, drew his firearm, and ordered Vasquez to
get on the ground. Taken together with the testimony of Judge Scott and
Kyley Scott, these facts would support a conviction under section 5126.
After careful review, we find that the trial court did not abuse its
discretion. Knox, supra.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2016
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