Com. v. Sands, A. ( 2015 )

J-A19001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY SANDS,
Appellant No. 633 WDA 2014
Appeal from the Judgment of Sentence Entered February 20, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004798-2013
BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 27, 2015
Appellant, Anthony Sands, appeals from the judgment of sentence of 6
to 23 months’ incarceration, imposed after he was convicted of fleeing or
attempting to elude a police officer, 75 Pa.C.S. § 3733(a), recklessly
endangering another person (REAP), 18 Pa.C.S. § 2705, hindering
apprehension, 18 Pa.C.S. § 5105, and obstructing administration of law, 18
Pa.C.S. § 5101. On appeal, Appellant challenges the sufficiency and weight
of the evidence to sustain his convictions. We affirm.
The trial court summarized the evidence presented at Appellant’s trial,
as follows:
On December 25, 2012, Officer Lance Hoyson of the City
of Pittsburgh Bureau of Police was dispatched to a residence
located at 611 Mellon Street in the Highland Park section of the
City of Pittsburgh to investigate the whereabouts of Bennie
Wilson, the defendant's brother. Bennie Wilson was the subject
of various arrest warrants and police officers received
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information that Bennie Wilson was inside that residence. Officer
Hoyson proceeded to the residence to conduct surveillance.
While he was watching the residence, Officer Hoyson observed a
dark-colored, late model sedan drive from the driveway adjacent
to the residence. This vehicle began to circle the area and Officer
Hoyson testified that the driver of the vehicle was showing some
interest in Officer Hoyson's vehicle. Officer Hoyson was
concerned that the driver of the vehicle may have identified him
as a police officer or that the driver was acting as a lookout for
Bennie Wilson. Officer Hoyson moved his vehicle down the street
while still maintaining a clear view of 611 Mellon Street. The
dark-colored sedan continued to circle the area. While at his new
vantage point, Officer Hoyson observed Bennie Wilson run from
the front porch of 611 Mellon Street and enter the passenger
side of the dark-colored sedan. Officer Hoyson had known
Bennie Wilson from prior encounters.
Officer Hoyson radioed Officer Aaron Spangler, who was in
a different surveillance position near the residence, to advise of
his observations. Officer Spangler radioed back that he saw the
vehicle and Officer Spangler began pursuit. Officer Spangler
followed the vehicle and maintained radio communication with
Officer Hoyson.
Officer Spangler testified that he was part of the
surveillance team conducting surveillance at 611 Mellon Street.
While Officer Hoyson was located near the residence, Officer
Spangler located himself on East Liberty Boulevard right before
the intersection with Mellon Street. He heard Officer Hoyson's
radio call about Bennie Wilson entering the dark-colored sedan.
The dark-colored sedan proceeded toward Officer Spangler's
direction and Officer Spangler began pursuit in his unit. He
activated the emergency lights and siren. The dark-colored
sedan stopped and Officer Spangler exited his police vehicle and
approached the driver's side of the dark-colored sedan. Other
police units responded to the scene. Officer Kevin Swimkowsky
arrived on scene and approached the passenger side of the
vehicle.
As he approached the driver's side window, Officer
Spangler observed Bennie Wilson sitting in the passenger seat.
Officer Spangler ordered the driver to shut the vehicle off. The
driver was sitting back with his hands still on the wheel. The
driver did not comply with Officer Spangler's commands to shut
the vehicle off. Officer Spangler began shouting at the driver. At
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this point, Officer Spangler could not see Bennie Wilson's hands
and the driver persisted in his refusal to shut the vehicle off.
Officer Spangler then drew his service firearm. The driver looked
at Officer Spangler and quickly accelerated the vehicle. The
vehicle headed directly toward a police patrol wagon that had
been parked to the right front side of the dark-colored sedan in
an effort to block it in. Officer Steven Schueler was standing
outside the patrol wagon. As the dark-colored sedan approached
him, Officer Schueler fired his service firearm toward the driver's
side windshield of the dark-colored sedan. The dark-colored
sedan made slight contact with the patrol wagon. The dark-
colored sedan then sped off. At trial, Officer Spangler identified
[Appellant] as the driver of the dark-colored sedan.
After the dark-colored sedan sped off, Officer Spangler and
other officers began pursuit. Officer Spangler reached speeds
between 50-60 miles per hour during the chase. The posted
speed limit was 25 miles per hour. The police officers eventually
lost pursuit and the defendant's vehicle avoided capture that
evening.
Officer Spangler was shown a photo array the day after the
incident to help him identify the driver of the dark-colored
sedan. Upon viewing the array, Officer Spangler pointed to a
person in the array that [was not Appellant].[1] Officer Spangler
credibly explained that the person in the array looked similar to
the driver of the dark-colored sedan but he testified that he [was
not] 100[ percent] certain. He was shown another photo array
on January 23, 2013 and he positively identified [Appellant] as
the driver when shown that photo array. He also identified
[Appellant] as the driver during the trial.
Neither [Appellant] nor Bennie Wilson were apprehended
on the night of the incident. However, the vehicle was recovered
that night. Trial evidence established that there were bloodstains
on the emergency brake in the center console area of
[Appellant’s] vehicle. There was blood on the passenger door,
the passenger seat and the passenger door threshold. DNA
evidence confirmed that the blood on the passenger's seat and
____________________________________________
1
The Commonwealth noted in closing argument that Appellant’s photograph
was not included in the array shown to Officer Spangler the day after the
incident. N.T. Trial, 12/2/13, at 98.
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inside door handle matched the DNA sample extracted from
[Appellant’s] blood. DNA testing indicated that [Appellant] could
not be excluded as a contributor of the DNA found on the inside
door handle from the driver's side door, on the steering wheel
and on the gear shift of the vehicle. Fingerprint evidence
determined that Bennie Wilson's fingerprints were located on the
driver's side door of the vehicle. Trial evidence also established
that Bennie Wilson did not have any injuries consistent with a
gunshot wound.
[Appellant] was arrested on January 17, 2013 on charges
unrelated to this case. [Appellant] had, though, been developed
as a potential suspect in this case. While [Appellant] was being
transported to the Allegheny County Jail after his arrest, police
officers noticed that he had an injury to his right hand which was
wrapped in a bandage. [Appellant] would not disclose the nature
of his injury to the police officers. After consulting with the
officers involved in the January 17th arrest, the officers involved
in this case arrested [Appellant] for his actions in this case.
[Appellant] also testified in this case. [Appellant] said that
he was sitting in the passenger seat of the vehicle and that his
brother, Bennie Wilson, was the driver. [Appellant] said that
after the police stopped the vehicle, his brother, Bennie Wilson,
pulled off, attempting to elude the police. [Appellant] testified
that the police fired two shots into the vehicle, one of which hit
his right hand. [Appellant] also testified that sometime after he
and his brother got away from the police, he was interviewed by
police officers. [Appellant] admitted that during that interview,
he told the police officers that the injury to his hand was an old
injury. [Appellant] testified that the reason he told the police
that the injury to his hand was an old injury was that he was
"scared for [his] life" of the interviewing police officers, even
though they had not threatened him in any way because
"[e]very police officer is the same to [him]."
Trial Court Opinion (TCO), 9/24/14, at 2-6.
Based on this evidence, the jury convicted Appellant of the above-
stated offenses. It acquitted him of a charge of aggravated assault. On
February 20, 2014, the court sentenced Appellant to 6 to 23 months’
incarceration for the conviction of fleeing or attempting to allude a police
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officer. The court did not impose any further penalty for Appellant’s
remaining offenses. Appellant filed a timely post-sentence motion, which
was denied on March 20, 2014. He then filed a timely notice of appeal, as
well as a timely Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. Herein, Appellant presents three questions for our review:
1. Was the evidence sufficient to establish beyond a reasonable
doubt that [Appellant] fled or attempted to elude officers, and
recklessly endangered another person, by his actions while
driving a vehicle?
2. Was the evidence sufficient to establish beyond a reasonable
doubt that [Appellant] obstructed the administration of law by
thwarting attempts to serve warrants upon his brother?
3. Were the verdicts of guilty so contrary to the weight of the
evidence as to shock the conscience and require a new trial?
Appellant’s Brief at 5 (unnecessary capitalization omitted).
Appellant first challenges the sufficiency of the evidence to sustain his
convictions of REAP and fleeing or attempting to elude a police officer.
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Here, Appellant attacks both of these convictions by arguing that the
evidence failed to prove “that he was the person driving the vehicle on the
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evening of December 25, 2012, that sped away from a roadside stop and
nearly hit an officer, causing the officer to shoot twice at the car.”
Appellant’s Brief at 15. Initially, two of Appellant’s arguments in support of
this issue do not qualify as challenges to the sufficiency of the evidence;
instead, they properly are considered as weight-of-the-evidence claims.
Specifically, Appellant maintains that the testimony of “the nine law
enforcement officers” who took the stand at trial was so contradictory that it
could not support the trial court’s conclusion that he was the driver of the
vehicle. Appellant also attacks the reliability of certain of those officers’ out-
of-court, and in-court, identifications of him as the person driving the vehicle
on December 25, 2012. This Court has found that each of these types of
claims go to the weight, not the sufficiency, of the evidence. See
Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa. Super. 2003) (“A
sufficiency of the evidence review … does not include an assessment of the
credibility of the testimony offered by the Commonwealth. Such a claim is
more properly characterized as a weight of the evidence challenge.”)
(citations omitted); Commonwealth v. Brown, 23 A.3d 544, 557-558 (Pa.
Super. 2011) (assessing an argument that a witness’ identification of the
defendant “was tainted and unreliable” as a challenge to the weight of the
evidence). Accordingly, we will not address these two arguments in
reviewing Appellant’s challenge to the sufficiency of the evidence.
Appellant also argues, however, that “[t]here are … issues surrounding
the sufficiency of the physical evidence[]” presented by the Commonwealth.
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He essentially maintains that the DNA, blood, and fingerprint evidence
discovered in the car did not necessarily prove he was the driver of the
vehicle. Appellant intertwines this argument with his claim that the officers’
testimony was not credible. See Appellant’s Brief at 25-26 (“Taken together
with the inconsistent and contradictory nature of the identification testimony
in this matter, the DNA/blood evidence and fingerprint evidence combine to
establish that the evidence [was] insufficient to support the verdicts of guilt
beyond a reasonable doubt.”). Standing alone, Appellant’s assertion that
the physical evidence did not prove his guilt is unconvincing. We reiterate
the well-established principle that the Commonwealth’s evidence “may be
entirely circumstantial as long as it links the accused to the crime beyond a
reasonable doubt.” Koch, 39 A.3d at 1001 (emphasis added) (citing
Moreno, 14 A.3d at 136); see also Commonwealth v. Haight, 50 A.3d
137, 140 (Pa. Super. 2012) (“The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence.”). Thus, even if Appellant is correct that
the physical evidence did not demonstrate his guilt, that fact alone would
not render the totality of the evidence insufficient to support his convictions.
We also point out that the trial court did not rely on the physical
evidence to conclude, beyond a reasonable doubt, that Appellant was the
driver of the vehicle. Instead, the court cited the following evidence to
support that determination:
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Officer Spangler specifically identified [Appellant] as the
driver of the vehicle during the incident in question. Officer
Spangler testified that he was able to observe [Appellant] during
the incident that he subsequently selected [Appellant] from a
photo array. This Court found the testimony of Officer Spangler
to be credible. He had an opportunity to observe [Appellant]
during the incident, albeit for a short period of time. His
observations came from a vantage point that was only feet away
from [Appellant] while he was standing near the driver’s side
window of the vehicle. During the initial photo array, which did
not include [Appellant’s picture], Officer Spangler was not
certain of the identity of the driver. After reviewing a second
photo array that included [Appellant’s picture], Officer Spangler
positively identified [Appellant]. Moreover, the evidence was
clear that Officer Schueler fired shots through the windshield
toward the driver’s side of the vehicle. [Appellant] admitted he
was shot during the incident. Numerous police officers testified
that Bennie Wilson was in the passenger seat during the incident
and trial evidence established that Bennie Wilson did not suffer
any gunshot wounds during the incident. This Court believes the
evidence was more than sufficient to establish that [Appellant]
was the driver of the vehicle.
TCO at 7-8. We agree with the trial court. Accordingly, we conclude that
Appellant’s challenge to the sufficiency of the evidence to sustain his
convictions of REAP and fleeing or attempting to elude a police officer is
meritless.
In Appellant’s next issue, he avers that the evidence was insufficient to
sustain his conviction of obstructing administration of law, defined in 18
Pa.C.S. § 5101, as follows:
A person commits a misdemeanor of the second degree if he
intentionally obstructs, impairs or perverts the administration of
law or other governmental function by force, violence, physical
interference or obstacle, breach of official duty, or any other
unlawful act, except that this section does not apply to flight by
a person charged with crime, refusal to submit to arrest, failure
to perform a legal duty other than an official duty, or any other
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means of avoiding compliance with law without affirmative
interference with governmental functions.
Appellant argues that to prove the offense of obstructing the
administration of law, the Commonwealth had to demonstrate that he
“knowingly interfere[d] or obstruct[ed] the officers from carrying out their
purpose.” Appellant’s Brief at 27. He maintains (without citation to any
legal authority) that to meet this burden, the Commonwealth was required
to demonstrate that Appellant knew the officers were attempting to execute
arrest warrants for Wilson on December 25, 2012. Appellant avers that the
Commonwealth did not proffer any evidence to prove this fact.
In response, the Commonwealth provides a detailed summary of the
circumstantial evidence which proved that Appellant knew Wilson was
wanted by police, and that Appellant intentionally, and physically, interfered
with Wilson’s apprehension:
As set forth in detail in the previous argument, the
evidence sufficiently established that [A]ppellant, Wilson’s
brother, was the driver of the suspect vehicle, a black Mazda
sedan with out-of-state plates. The Commonwealth submits the
above evidence would allow a fact finder to reasonably infer that
[A]ppellant knew police were looking for his brother. When
[A]ppellant, as the driver of the suspect vehicle, pulled out of
the driveway beside 611 Mellon it is reasonable to conclude that
he saw Officer Hoyson’s vehicle. At the time, there was still
daylight and [A]ppellant drove directly toward the marked patrol
car which was parked only a half block from the residence.
Within a short period, [A]ppellant drove past the patrol car two
more times before the officer moved to a different, but nearby,
location. Plainly, [A]ppellant did not believe police were looking
for him since the patrol car made no move to follow him when he
originally left, and he elected to continue to pass Officer
Hoyson’s vehicle instead of simply leaving the area.
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Further support for a finding that [A]ppellant knew Wilson
was wanted by police is the fact that upon his final return to
Mellon Street, after the officer had moved his car to the second
position, [Appellant] briefly stopped in front of 611 where Wilson
ran across the porch and jumped into the waiting vehicle which
immediately drove off. Such evidence allows for the logical
inference that while circling, [A]ppellant contacted his brother
and alerted Wilson to the officer’s presence and made an
arrangement to pick him up in order to get him out of the area.
Soon thereafter, however, Officer Spangler attempted to
initiate a traffic stop of the suspect vehicle by activating his
lights and sirens and pulling directly behind [A]ppellant, who was
planning to make a left turn. At the time, a vehicle unrelated to
the case was in front of [A]ppellant. As he approached the
driver’s side, Officer Spangler both recognized Wilson as the
passenger and noticed that the vehicle had not been placed in
park which caused him to begin shouting at the driver to turn off
the car and remove the keys. Rather than comply with the
officer’s orders, [A]ppellant looked at the officer, revved the
engine and accelerated in the direction of another officer,
causing [that officer] to fire at the vehicle. Although [A]ppellant
was shot in the hand, he still managed to flee from the scene
and avoid capture by engaging in a high-speed chase. The
Commonwealth submits that if [A]ppellant had no knowledge
that his brother was wanted by police, there would have been no
reason for him to ignore Officer Spangler’s orders, drive toward
another officer and flee from the attempted stop.
Most of [A]ppellant’s conduct, as described above, likewise
demonstrated his intentional interference with the officers’
apprehension of his brother. Appellant provided Wilson with a
means of leaving the residence, which [Appellant] knew to be
under police surveillance. He also disobeyed one officer’s
repeated orders to turn off the vehicle, instead electing to
accelerate toward another officer to thwart any attempt to
apprehend Wilson during the traffic stop. Even the fact that this
officer was forced to fire his weapon at the vehicle, causing
[A]ppellant to be shot in the hand, did not deter him from
preventing his brother’s capture. Based on the foregoing, the
evidence was sufficient to establish that [A]ppellant had
obstructed the administration of law by physical interference. As
a result, his conviction for a violation of [section] 5101 should be
affirmed.
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Commonwealth’s Brief at 26-28 (footnote and citation to record omitted).
We agree with the Commonwealth that, assessing the totality of the
evidence presented at trial, in the light most favorable to the
Commonwealth, it was reasonable for the fact-finder to infer that Appellant
knew the officers were attempting to apprehend Wilson, and that Appellant
intentionally and physically interfered with the officers’ efforts to do so. We
conclude that this was sufficient evidence to support Appellant’s conviction
of obstructing administration of law.
Lastly, Appellant challenges the weight of the evidence to support his
convictions.
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court's discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the jury is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and a new trial
based on a weight of the evidence claim is only warranted where
the jury's verdict is so contrary to the evidence that it shocks
one's sense of justice. In determining whether this standard has
been met, appellate review is limited to whether the trial judge's
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations
and internal quotation marks omitted).
Appellant presents a lengthy argument in support of his weight-of-the
evidence claim; however, only two of his specific arguments were preserved
in his Rule 1925(b) statement and addressed by the trial court in its opinion.
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Accordingly, we will confine our review to those claims. See Pa.R.A.P.
1925(b)(4)(ii) (“The Statement shall concisely identify each ruling or error
that the appellant intends to challenge with sufficient detail to identify all
pertinent issues for the judge.”); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.”).
First, Appellant argues that Officer Spangler’s identification of
Appellant as the driver was unreliable, as he identified another individual in
the initial photo array. Appellant emphasizes that Officer Spangler’s initial
identification “was made within a day of the events, without hesitation, [and
was] based on the facial markings of the individual….” Appellant’s Brief at
32. Appellant maintains that, consequently, that initial identification was
“unquestionably more reliable than the subsequent identification of
[Appellant], and [it] should have been the basis for the trial court to
reasonably doubt the identification of [Appellant].” Id.
In rejecting this claim, the trial court reasoned that,
the trial evidence does not indicate that Officer Spangler
positively identified anyone as the driver during the original
presentation of a photo array. Rather, as Officer Spangler
testified, he wasn’t certain that anyone in the photo array was
the driver when he viewed the first array. This Court believes
that Officer Spangler’s in-court identification was credible and it
was buttressed by the identification of [Appellant] during the
presentation of the second photo array.
TCO at 12.
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The trial court’s decision is supported by the record. During cross-
examination of Officer Spangler at trial, he was shown a copy of the initial
photo array and was asked if it was “fair to say that [he] identified the male,
number seven, in that photo array, a gentleman named Melvin Washington?”
N.T. Trial, 11/25-27/13, at 75. Officer Spangler replied, “No.” Id. at 76.
The officer then explained, “My correct statement was this gentleman looks
familiar, he has distinguishing face marks, but I can’t be 100 percent sure
that I told Detectives Rush and Sattler that the face marks look similar to
the person that I saw driving….” Id. Officer Spangler was later asked about
the second photo array he was shown, which contained a picture of
Appellant. Officer Spangler testified that “[a]s soon as they showed me this
photo array, … I pinpointed the face, the nose. He turned and looked right
at me as I had him -- my weapon was already drawn. I had him in my
sight.” Id. at 78. Officer Spangler also identified Appellant, in court, as the
person he saw driving the vehicle. Id. at 68.
Based on this record, we ascertain no abuse of discretion in the trial
court’s rejecting Appellant’s weight-of-the-evidence claim regarding the
reliability of Officer Spangler’s identification. The court heard testimony
about Officer Spangler’s out-of-court identifications of Appellant, and
observed the officer identify Appellant during the course of trial. The court
was free to determine the credibility of those identifications, and it did not
abuse its discretion in believing Officer Spangler’s two identifications naming
Appellant as the driver.
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Next, Appellant attacks the weight of the evidence by arguing that the
blood and DNA evidence placed him in the passenger seat of the vehicle.
Appellant maintains that “[m]uch speculation on the record occurred as to
how exactly blood got on the passenger seat and passenger door
handle/armrest from [Appellant] if [Appellant] was, in actual fact, the
driver.” Appellant’s Brief at 31. Appellant asserts that, amidst all of this
speculation, “the trial court [did] not and cannot account for the blood spots
on the threshold of the passenger side door.” Id. at 32. Appellant inquires,
“How could [Appellant], if he was driving while shot in his right hand, and
escaping a police chase at high speed, have bled onto an area that requires
the passenger door to be open?” Id. Appellant goes on to claim that the
trial court gave “no weight whatsoever” to the “uncontradicted expert
opinion [of Detective Adams] that the fingerprints of Benny Wilson found on
the outside of the driver’s door were consistent with someone sitting in the
driver’s seat and reaching over the door frame and holding the door.” Id. at
32.
In rejecting this argument, the trial court stated:
While there was evidence presented at trial that [Appellant’s]
blood and DNA were found in the passenger compartment of the
vehicle, [Appellant] was also not excluded as a contributor to
DNA found on the driver’s side door handle, the steering wheel
and the gear shift. Officer Schueler testified that he fired his
weapon toward the driver’s side area. [Appellant] himself
admitted he had been shot. The trial evidence in this case
supported the verdict.
TCO at 12-13.
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Again, we cannot conclude that the court abused its discretion in
denying Appellant’s weight-of-the-evidence argument. While some of the
physical evidence indicated that Appellant was the driver of the vehicle,
there were other aspects of that evidence which indicated he was the
passenger. However, the court did not consider the physical evidence in a
vacuum, but assessed it in conjunction with the officers’ testimony, which
the court found to be credible. In light of the totality of all of the evidence
presented by the Commonwealth, the trial court’s verdict does not shock
one’s sense of justice, and the court did not palpably abuse its discretion in
rejecting Appellant’s challenge to the weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2015
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