Com. v. Craggette, B. ( 2019 )

J-S73042-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN ALLEN CRAGGETTE :
:
Appellant : No. 968 WDA 2018
Appeal from the Judgment of Sentence Entered February 28, 2018
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0004967-2016
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED JANUARY 3, 2019
Appellant, Brian Allen Craggette, appeals from the judgment of sentence
entered on February 28, 2018, following his jury trial convictions for
kidnapping to facilitate a felony or flight, possession with intent to deliver a
controlled substance, fleeing or attempting to elude police officer, unlawful
restraint, tampering with physical evidence, and recklessly endangering
another person.1 We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
[The aforementioned] charges stemmed from an incident that
occurred on September 29, 2016, where confidential informant
Jenny Miller indicated to Detective Sergeant John Swank and
Detective Ray Dupilka that she could assist in arranging a
____________________________________________
1 18 Pa.C.S.A. § 2901(a)(2), 35 P.S. § 780-113(a)(30), 75 Pa.C.S.A. § 3733,
18 Pa.C.S.A. § 2902, 18 Pa.C.S.A. § 4910, and 18 Pa.C.S.A. § 2705,
respectively.
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purchase of cocaine from [Appellant]. With the assistance of
Detective Tony Marcocci, the controlled buy was arranged and set
into motion. However, the purchase did not go as planned when
Jenny Miller proceeded to walk out of Detective Marcocci’s line of
sight and into [Appellant’s] vehicle to complete the purchase.
According to Ms. Miller, [Appellant] proceeded to drive around the
block because he believed that the area was too risky to continue
the purchase. At that point, he realized that Ms. Miller had set
him up and a high-speed chase occurred with [Appellant] fleeing
from officers. The chase ended when [Appellant’s] vehicle, with
Ms. Miller as a passenger, crashed. [Appellant] fled on foot, but
was captured and arrested.
After deliberations, the jury found [Appellant] guilty on all counts.
On February 28, 2018, [the trial c]ourt sentenced [Appellant] to
an aggregate sentence of six to twelve years[’] incarceration.
[Appellant] then filed timely [p]ost-[s]entence [m]otions on
March 7, 2018.
Trial Court Opinion, 6/19/2018, at 1-2.
The trial court, with the Commonwealth’s consent, granted Appellant
additional time to file a brief in support of his post-sentence motion. Appellant
filed a subsequent brief. The trial court denied relief by order and
accompanying opinion on June 19, 2018. This timely appeal resulted.2
On appeal, Appellant raises the following issues for our review:
1. Whether the jury’s verdict [for] kidnapping to facilitate a felony
was based on sufficient evidence?
2. Whether the jury’s verdict [for] kidnapping to facilitate a felony
was against the weight of the evidence?
Appellant’s Brief at 2 (superfluous capitalization omitted).
____________________________________________
2 Appellant filed a notice of appeal on June 22, 2018. On June 26, 2018, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on July
2, 2018. On July 10, 2018, the trial court entered an order relying upon its
earlier opinion as its rationale for denying relief.
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Appellant summarizes his argument as follows:
Although [] Appellant transported [confidential informant] Miller a
substantial distance at a high rate of speed, the intent was not to
commit a kidnapping or any offense against Miller, but to evade
capture. Moreover, [] Appellant’s intent was not shown to be to
commit a kidnapping to assist his flight, but rather that the alleged
‘kidnapping’ occurred incidental to the police chase and not in the
facilitation of an escape. Miller, until the time of the flight, willfully
participated with [] Appellant as a confidential informant. Simply
because she decided to no longer participate when [] Appellant
realized the presence of police does not transform flight into a
kidnapping when [] Appellant refuses to stop his vehicle for
authorities.
[] Appellant’s movement of Miller in this matter was not proven to
be in the facilitation of a felony or flight, but incidental to the flight
itself. Nothing in [] Appellant’s actions demonstrated an intent to
kidnap, but rather solely to escape capture. [] Appellant’s alleged
kidnapping occurred not in the facilitation of a felony or an escape,
but collateral to his refusal to pull over and let Miller out.
Id. at 13 (record citations omitted) (emphasis in original).
Our standard of review regarding the sufficiency of the evidence is as
follows:
In reviewing sufficiency of evidence claims, we must determine
whether the evidence admitted at trial, and all reasonable
inferences drawn therefrom, when viewed in the light most
favorable to the verdict winner, are sufficient to support all the
elements of the offense. Additionally, to sustain a conviction, the
facts and circumstances which the Commonwealth must prove,
must be such that every essential element of the crime is
established beyond a reasonable doubt. Admittedly, guilt must be
based on facts and conditions proved, and not on suspicion or
surmise. However, entirely circumstantial evidence is sufficient so
long as the combination of the evidence links the accused to the
crime beyond a reasonable doubt.
Any doubts regarding a defendant's guilt may be resolved by the
fact-finder unless the evidence is so weak and inconclusive that
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as a matter of law no probability of fact may be drawn from the
combined circumstances. The fact finder is free to believe all, part,
or none of the evidence presented at trial.
Commonwealth v. Eckrote, 12 A.3d 383, 385–386 (Pa. Super. 2010)
(internal citations and quotations omitted).
A person is guilty of “kidnapping if he unlawfully removes another a
substantial distance under the circumstances from the place where he is
found, or if he unlawfully confines another for a substantial period in a place
of isolation, [t]o facilitate commission of any felony or flight thereafter[.]” 18
Pa.C.S.A. § 2901(a)(2).
“The kidnapper must kidnap his victim with the intent to facilitate
commission of a felony; the actual commission of or conviction for a felony is
not an element of the crime of kidnapping.” Commonwealth v. King, 786
A.2d 993, 994 (Pa. Super. 2001). “The statutory language of the crime is
concerned with the state of mind of the kidnapper.” Id. “To successfully
prosecute the crime of kidnapping under [Section 2901(a)], the
Commonwealth must establish appellant kidnapped his victim with the intent
to facilitate the commission of a felony.” Id.
This Court examined the Model Penal Code’s provisions that correspond
with 18 Pa.C.S.A. § 2901(a), in Commonwealth v. Barfield, 768 A.2d 343
(Pa. Super. 2001). Therein, we noted that kidnapping or “the removal or
confinement with intent ‘to facilitate commission of any felony or flight
thereafter’” was enacted because “[t]he underlying perception is that
kidnapping in order to commit or escape from a serious crime is especially
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likely to create risk to the victim.” Barfield, 768 A.2d at 347. Our Court
determined that “this danger will arise if the predictable confrontation with the
police occurs [and, thus, Section 2901(a)2, modeled after Model Penal Code
§ 212.1,] permits conviction, therefore, for kidnapping by a fleeing felon who
commandeers a car and forces the owner to drive somewhere merely for the
sake of the ride.” Id.
In this case, there is no dispute that Ms. Miller was removed a
substantial distance for a substantial amount of time. Hence, the trial court
properly determined that “Ms. Miller was removed from the Greensburg area
[…] a substantial distance to the church parking lot in Crabtree, and that she
was moved to a place where she clearly faced an increased risk of harm due
to the high speeds, oncoming traffic, and eventual crash.” Trial Court Opinion,
6/19/2018, at 4.
The trial court further found:
[I]n viewing the evidence in the light most favorable to the
Commonwealth, the testimony [] support[s] a finding that
[Appellant’s] decision to keep Ms. Miller in the car was done with
the intention to make it easier to flee after committing the felony
of possession with intent to deliver.
Before any police vehicles initiated their lights or a pursuit,
[Appellant] told Ms. Miller that there were cops in the area and
accused her of setting him up. At that point in time, [Appellant]
could have allowed Ms. Miller to exit the vehicle, which does not
support Appellant’s contention that her presence in the vehicle
was incidental to the flight. After [police] initiated pursuit, Ms.
Miller testified that [Appellant] stated he was not going to stop
and that he was not going to jail. This supports a finding that
[Appellant] knew he was fleeing from the commission of a felony
that could result in jail time.
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Furthermore, Ms. Miller testified that she observed what she
suspected to be drugs tossed from [Appellant’s] driver side
window. The tossing of the drugs out of the window would be
evidence that [Appellant] was fleeing the commission of a felony.
To confirm Ms. Miller’s account, the Commonwealth presented the
testimony of [a detective] along with video from the [police
vehicles’] dash cameras[,] and explained how a subsequent
search resulted in the discovery of a [discarded,] knotted bag
containing cocaine.
Id. at 5 (record citations omitted).
Moreover, the trial court further noted:
Multiple witnesses testified that Ms. Miller attempted to exit the
vehicle by opening the door, but she was forced to remain due to
the accelerated speed.
* * *
Ms. Miller testified that she wanted to get out of the car. The only
time it came to a slight stop, she did attempt to open the door,
but [Appellant] sped up before she could safely exit the vehicle.
[Appellant] never expressed a willingness to slow down or let her
out of the vehicle.
Id. at 4 (record citations omitted).
Upon review of the record, applicable law, and the trial court’s decision,
we discern no abuse of discretion or error of law in denying Appellant’s
sufficiency of the evidence claim. Appellant removed the victim in this case a
substantial distance. Appellant intended to sell cocaine to the victim, but
became paranoid that police were following him and accused the victim of
setting him up with the police. Appellant discarded cocaine as he fled at high
speed. Such actions show Appellant knew he was fleeing from the commission
of a felony. Furthermore, the completed sale of narcotics was simply not
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required in order to support the kidnapping conviction. Moreover, the jury’s
conclusion that Appellant intended to kidnap the victim to aid in flight to avoid
police apprehension was supported by the evidence, because Appellant
accused the victim of working with police to get him arrested, refused to stop
when the victim asked to get out, and sped up when she tried to open her
door. Accordingly, there was substantial evidence that the victim was not
“incidentally” riding as a passenger during a police chase, as Appellant
suggests. Appellant held the victim against her will in a moving vehicle and
took her from one location to another, a sizable distance away, while fleeing
from police to avoid felony prosecution for selling drugs. Thus, we conclude
that there was sufficient evidence to support Appellant’s conviction for
kidnapping to facilitate a felony or flight. As such, Appellant’s first issue fails.
In his second issue presented, Appellant claims that his conviction for
kidnapping to facilitate a felony or flight was against the weight of the
evidence. More specifically, Appellant argues, “[t]he jury’s apparent confusion
over the mischaracterization of a flight veiled as a kidnapping without
supporting evidence is a miscarriage of justice.” Id. Appellant again argues
that “[t]he Commonwealth’s evidence demonstrated the alleged kidnapping
occurred incidental to – and not in facilitation of – flight or the commission of
a felony.” Id.
Our standard of review is as follows:
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
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conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
It has often been stated that a new trial should be awarded when
the jury's verdict is so contrary to the evidence as to shock one's
sense of justice and the award of a new trial is imperative so that
right may be given another opportunity to prevail.
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court's determination
that the verdict is against the weight of the evidence.
One of the least assailable reasons for granting or
denying a new trial is the lower court's conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Commonwealth v. Thomas, 194 A.3d 159, 168 (Pa. Super. 2018) (citation
omitted).
As discussed above, however, we have concluded that evidence presented
at trial established that the kidnapping was not merely incidental to the police
chase. Hence, the trial court’s determination that the verdict did not shock its
sense of justice was not an abuse of discretion. Accordingly, Appellant is not
entitled to relief on his weight of the evidence claim as presented.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2019
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