Com. v. Knox, J. ( 2016 )

J-A10005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMAL KNOX
Appellant No. 1136 WDA 2014
Appeal from the Judgment of Sentence February 21, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003870-2013
CP-02-CR-0004264-2013
CP-02-CR-0006621-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED AUGUST 02, 2016
Appellant, Jamal Knox, appeals from the judgment of sentence entered
after the trial court, sitting without a jury, convicted him of multiple offenses
arising from three separate criminal incidents. On appeal, Knox challenges
the legality of a traffic stop of his vehicle, as well as the sufficiency of the
evidence supporting his convictions for intimidation of witnesses and
terroristic threats. After careful review, we conclude that none of Knox’s
arguments on appeal merit relief. We therefore affirm.
This is an appeal from a bench trial over charges arising from three
separate criminal incidents. However, only two of these incidents are
relevant to the issues on appeal, and we therefore need not detail the
factual or procedural history relevant to only the third incident.
J-A10005-16
In April 2012, Pittsburgh police officers Michael Kosko and David
Derbish stopped Knox’s vehicle after they had observed that he had not
properly utilized his turn signal while parallel parking. After Knox indicated
that he did not have a valid driver’s license, the officers asked him to step
outside his vehicle. Rather than comply, Knox sped away in his vehicle
before striking a parked car and a fence, leaving Knox’s vehicle inoperable.
Knox proceeded to run from his vehicle, but was quickly apprehended. A
seach of Knox’s vehicle revealed heroin, a large sum of cash, and a loaded
firearm. Co-defendant Rashee Beasley was a front seat passenger in Knox’s
vehicle, and was also arrested.
Both Knox and Beasley were charged with multiple offenses, most
significantly narcotics and firearms offenses. While these charges were
pending, Beasley and Knox recorded a rap video entitled “Fuck the Police.”
The song had three verses, with Knox rapping the first verse by himself,
Beasley rapping the second by himself, and Knox rapping the third verse.1
The first verse:
This first verse is for Officer Zeltner and all you fed force
bitches/and Mr. Kosko, you can suck my dick you keep on
knocking my riches/ you want beef, well cracker I’m wit it/ that
whole department can get it/ all these soldiers in my committee
gone fuck over you bitches/ fuck the police, bitch I said it loud/
____________________________________________
1
Some evidence of record indicates that both Beasley and Knox rapped the
third verse together. However, in his brief, Knox claims that he performed
the third verse solo. Whatever the case may be, it does not affect the
ultimate resolution of this appeal.
-2-
J-A10005-16
the fuckin’ city can’t stop me, y’all gone need Jesus tryin’ to
break me down/ and he ain’t fuckin’ with you dirty devils/ we
making prank calls, as soon as you bitches come we bustin’
heavy metal/ they chase me through these streets/ and I’m a
jam this rusty knife all in his guts and trust its beef/ you taking
money away from Beaz and all my shit away from me/ well your
shift over at three/ and I’m gone fuckup where you sleep/ Hello
Breezos got you watching my moves and talkin’ ‘bout me to your
partner/ I’m watchin’ you too, bitch I see better when it’s
darker/ Highland Park gone be Jurassic Park keep fuckin’ wit me/
ayo Beaz call Dre and Sweet and get them 2 23s.
See Appellant’s Brief, at 8.2 Beasley then shared their creation with the
public. He uploaded the video to YouTube, and also posted a link to the
video on his Facebook profile.
In November 2012, a Pittsburgh Police Department officer came across
the video on YouTube. The use of Detective Zeltner’s and Officer Kosko’s
names, in conjunction with the violent language, caught her attention and
the video was referred for further review. Knox and Beasley were
subsequently charged with intimidation of witnesses and terroristic threats.
Knox filed a motion to suppress the evidence seized during the April
2012 traffic stop, which the trial court denied. Knox waived his right to a
jury trial, and the trial court found him guilty of possession with intent to
distribute controlled substances, fleeing and eluding, false statements,
possession of controlled substances, intimidation of witnesses, terroristic
____________________________________________
2
The transcription of the lyrics in Appellant’s Brief is substantially similar to
the transcription utilized by the police in their applications for search
warrants. Knox does not raise any challenge regarding the transcription of
the lyrics of the song.
-3-
J-A10005-16
threats, and criminal conspiracy. The trial court imposed an aggregate
sentence of two to six years’ imprisonment to be followed by two years of
probation. Knox’s post-sentence motions were denied, and this timely appeal
followed.
On appeal, Knox first argues that the trial court erred in denying his
motion to suppress. Specifically, Knox contends that Officer Kosko did not
have sufficient reasonable suspicion to perform the stop, and therefore all
the fruits of the subsequent arrest and search should have been suppressed.
We review a challenge to a trial court’s refusal to suppress evidence
pursuant to the following well established standard of review.
[W]e are limited to determining whether the factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. We may consider the
evidence of the witnesses offered by the prosecution, as verdict
winner, and only so much of the defense evidence that remains
uncontradicted when read in the context of the record as a
whole.
Commonwealth v. McAliley, 919 A.2d 272, 275-276 (Pa. Super. 2007)
(citation omitted). “Moreover, if the evidence supports the factual findings of
the suppression court, this Court will reverse only if there is an error in the
legal conclusions drawn from those findings.” Commonwealth v. Powell,
994 A.2d 1096, 1101 (Pa. Super. 2010) (citation omitted).
The quantum of proof necessary to make a vehicle stop on suspicion of
a violation of the motor vehicle code is governed by 75 Pa.C.S.A. § 6308(b),
which states:
-4-
J-A10005-16
(b) Authority of police officer.—Whenever a police officer is
engaged in a systematic program of checking vehicles or drivers
or has reasonable suspicion that a violation of this title is
occurring or has occurred, he may stop a vehicle, upon request
or signal, for the purpose of checking the vehicle’s registration,
proof of financial responsibility, vehicle identification number or
engine number or the driver’s license, or to secure such other
information as the officer may reasonably believe to be
necessary to enforce the provisions of this title.
(emphasis supplied).
Traffic stops based upon suspicion of a violation of the motor vehicle
code under § 6308(b) “must serve a stated investigatory purpose.”
Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en
banc).
Mere reasonable suspicion will not justify a vehicle stop when the
driver’s detention cannot serve an investigatory purpose relevant
to the suspected violation. In such an instance, ‘it is encumbent
[sic] upon the officer to articulate specific facts possessed by
him, at the time of the questioned stop, which would provide
probable cause to believe that the vehicle or the driver was in
violation of some provision of the Code.’
Id. (emphasis and citation omitted).
At the suppression hearing, the Commonwealth presented the
testimony of Officer David Derbish. Officer Derbish testified that on the night
in question, he was on patrol with his partner, Officer Kosko. See N.T.,
Suppression Hearing, 6/5/13, at 16-17. He observed Knox pull his vehicle
into a parking space without utilizing his turn signal. See id., at 17. The
officers pulled beside Knox’s parked vehicle and questioned Knox briefly.
When Knox indicated that he did not have a valid driver’s license, Officer
-5-
J-A10005-16
Kosko instructed him to stop. See id., at 18. Officer Kosko began to open
his door to investigate further when Knox pulled his vehicle out of the
parking space and fled. See id.
Knox argues that these observations were insufficient to justify the
traffic stop. However, the Pennsylvania Motor Vehicle Code provides that a
driver must utilize a turn signal when changing lanes. See 75 Pa.C.S.A. §
3334(a). Knox does not dispute that Officer Derbish’s testimony was
sufficient to establish that he didn’t use a turn signal while pulling over into a
parking space, but merely argues that this constituted a “minor and
momentary” infraction insufficient to provide probable cause, citing
Commonwealth v. Garcia, 859 A.2d 820 (Pa. Super. 2001).
Garcia is easily distinguishable. In Garcia, the relevant sections of the
vehicle code pertained to driving within a single lane and driving on the right
side of the roadway. See id., at 822 n.1. These violations necessarily
involve a certain amount of discretionary judgment regarding duration and
amount of deviance from the lane of travel, especially when a driver may be
reacting to a perceived hazard in the roadway. The Garcia decision notes
that the deviations at issue were minor and brief, and in reaction to
oncoming traffic. See id., at 823. Thus, the Garcia panel held that the
observations did not provide probable cause to believe the relevant sections
of the vehicle code had been violated.
-6-
J-A10005-16
This case stands in stark contrast to Garcia. Here, there is no
discretion involved in section 3334(a); either the turn signal is used when
changing lanes, or it is not. Knox does not dispute that he changed lanes.
Nor does he argue that he merely was late in using his turn signal. Garcia is
plainly inapplicable. The suppression court did not abuse its discretion in
refusing to suppress the evidence gained from the stop.
Next, Knox argues that the evidence at trial was insufficient to support
his convictions for intimidation of a witness and terroristic threats. In
particular, Knox contends that the evidence at trial was insufficient to
establish that he knowingly transmitted the threats in the YouTube video in
a manner whereby the officers named in the video would receive the threats.
Knox relies upon the definitions of the two offenses to argue that the
Commonwealth was required to prove that he knowingly communicated the
threats to the victimized officers. For intimidation of a witness, the
Commonwealth charged Knox with intimidating the officers while they were
witnesses in a case against him, “with the intent to or with the knowledge
that [he] would obstruct, impede, impair, prevent, or interfere with the
administration of criminal justice.” Criminal Information, filed 4/11/13, at 1.
Under terroristic threats, the Commonwealth charged Knox with
“communicat[ing] a threat, either directly or indirectly, to commit a crime of
-7-
J-A10005-16
violence with the intent to terrorize” the officers. Id.3 Pursuant to these
charges, we agree with Knox that the Commonwealth was required to
establish that he acted at least knowingly with respect to each element of
the crimes.
We therefore must evaluate whether the evidence presented by the
Commonwealth was sufficient to prove that Knox knowingly communicated
the threats contained in the YouTube video. In reviewing a challenge to the
sufficiency of the evidence, we evaluate the record “in the light most
favorable to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.” Commonwealth v.
Bibbs, 970 A.2d 440, 445 (Pa. Super. 2009) (citation omitted).
Evidence will be deemed sufficient to support the verdict when it
established each element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty, and may sustain its burden by means of
wholly circumstantial evidence. Significantly, [we] may not
substitute [our] judgment for that of the factfinder; if the record
contains support for the convictions they may not be disturbed.
Id. (citation and quotation marks omitted). “Any doubt about the
defendant’s guilt is to be resolved by the factfinder unless the evidence is so
____________________________________________
3
The Commonwealth argues that under Commonwealth v. Kelley, 664
A.2d 123 (Pa. Super. 1995), it was only required to prove that Knox acted
recklessly to sustain the conviction for terroristic threats. However, the
Commonwealth did not charge Knox with a violation of § 2706(a)(3), which
provides for a conviction if the defendant acted with a “reckless disregard of
the risk of causing” terror or inconvenience.
-8-
J-A10005-16
weak and inconclusive that, as a matter of law, no probability of fact can be
drawn from the combined circumstances.” Commonwealth v. Scott, 967
A.2d 995, 998 (Pa. Super. 2009).
Knox essentially argues that while he knowingly rapped the
threatening lyrics in the “Fuck the Police” video, the Commonwealth did not
prove that he ever had knowledge that the videos would be made available
to the public. He therefore contends that the Commonwealth never proved
that he knowingly communicated the threat to the officers, either directly or
indirectly.
It is clear from our review that the Commonwealth did not prove that
Knox ever directly communicated the threats to the officers. However, as the
Commonwealth notes, this is not fatal to the conviction. Communications
with third parties in a manner consistent with an intention of transmitting
the threat to the victim is sufficient to sustain a conviction. See Kelley, 664
A.2d at 127-128.
To establish knowing or intentional indirect communication of the
threatening lyrics, the Commonwealth presented evidence that Knox and
Beasley had performed several rap videos together. See N.T., Trial,
11/13/13, at 180-181, 186-187; N.T., Trial, 11/18/13, at 258.4 These videos
____________________________________________
4
The Notes of Testimony cover several days of testimony, but are
consecutively numbered such that testimony from 11/12/13 is recorded at
(Footnote Continued Next Page)
-9-
J-A10005-16
were not merely performed live, but recorded for posterity. See id. Beasley
posted these videos online to YouTube and Facebook accounts that were
accessible by the public. See id., at 180-190, 317-318. “Fuck the Police”
was posted several days after the first of these rap videos had been posted.
See id., at 257-258.
Viewing this evidence in a light most favorable to the Commonwealth,
as we must, we conclude that this evidence is sufficient to establish that
Knox knew his lyrics would be made publicly available. “Fuck the Police” was
not a one-off live performance. It was the third in a string of rap videos
produced by the duo, all of which were posted to publicly available websites.
The trial court, sitting as a fact-finder, was permitted to infer from this
evidence that Knox knew that these lyrics would be seen by the police or by
third parties who would then notify the police. We therefore conclude that
Knox’s second issue on appeal merits no relief.
In his final issue, Knox argues that the trial court erred in admitting
the “Fuck the Police” video into evidence, as the conduct was protected
conduct under the First Amendment. This issue is waived, as Knox did not
raise this, or any, objection at trial when the video was entered into
evidence. See N.T., Trial, 11/13/13, at 203; Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
_______________________
(Footnote Continued)
pages 1-100, testimony from 11/13/13 at pages 101-233, and testimony
from 11/18/13 at pages 242-398.
- 10 -
J-A10005-16
on appeal.”). We decline to accept Knox’s invitation to address this issue
despite this waiver. Knox is not precluded, based upon the arguments before
us, from raising this issue in a collateral proceeding.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2016
- 11 -