Com. v. Schuster, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY M. SCHUSTER, II :
:
: No. 1088 WDA 2020
Appeal from the Judgment of Sentence Entered October 12, 2020,
in the Court of Common Pleas of McKean County,
Criminal Division at No(s): CP-42-CR-0000400-2019.
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: JUNE 25, 2021
Timothy M. Schuster, II, appeals from the judgment of sentence
imposed after a jury convicted him of flight to avoid apprehension, trial, or
punishment.1 We affirm.
The trial court summarized the facts as the following:
[Schuster] was previously convicted of resisting arrest, a
misdemeanor 2 offense [at 235 CR 2018]. He was sentenced
to undergo a period of incarceration for a period of not less
than [eight] months to no more than twenty-three and a
half months with twenty-four months of concurrent
probation. He was released from incarceration on February
28, 2019. Following his release, he was subject to a period
of county supervision.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 5126.
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On July 29, 2019, a bench warrant was issued for
[Schuster’s] arrest at case number 235 CR 2018 for absconding
from probation. The Commonwealth and [Schuster] agreed to a
stipulation that [Schuster] was aware that he was on supervision
at case number 235 CR 2018. Commonwealth's Exhibit 1. He was
also aware on August 6, 2019, when officers Christopher Lucco
and Richard Obermeyer attempted to apprehend him, that there
was a pending bench warrant for his arrest, a warrant that was
issued due to absconding from his supervision. [Schuster]
indicated to McKean County Probation Officer, Alexandria
Johnson, that he was aware of the warrant for his arrest because
he saw a post on the McKean County Sheriff Department's page
indicating that there was a warrant for his arrest. This post is set
up to advise law enforcement and the public of individuals that
are wanted by law enforcement; and, to obtain information about
their whereabouts. [Schuster] told Officer Johnson that he had
been avoiding her for the past month and half, that he was using
"some substances." He told her that he was going to contact her
and report to adult probation once he "got clean." He then viewed
the warrant on Facebook.
On August 6, 2019, officers Lucco and Obermeyer
responded to a call reporting that [Schuster] was observed
walking down Congress [S]treet in the City of Bradford. The
officers spotted a male who they believed may be [Schuster]
walking towards their marked patrol car on Jefferson Street. As
the officers drove towards [Schuster], he attempted to shield his
face with his hood, and looked down and away from the officers.
As the officers got closer, Officer Lucco identified the male as
[Schuster] and opened the door of the patrol car, at which point
[Schuster] turned the other direction and began to run. Officer
Lucco pursued [Schuster] on foot and advised him to "stop or he
was under arrest." [Schuster] eventually ran into an area of thick
vegetation. The officers had to climb through the thick vegetation
and search for [Schuster]. They found him laying down and trying
to conceal himself.
Trial Court Opinion, 12/14/20, at 1-3 (citations, footnotes and unnecessary
capitalizations omitted).
On September 1, 2020, a jury convicted Schuster of flight to avoid
apprehension. On October 12, 2020, the trial court sentenced Schuster to
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eight (8) months to twenty-four (24) months. Schuster filed a timely notice
of appeal, challenging (1) the sufficiency of the evidence for the flight to avoid
apprehension, trial, or punishment conviction and (2) the judge’s refusal to
give Schuster’s requested jury instruction. Both Schuster and the trial court
complied with Pa.R.A.P. 1925.
Our standard and scope of review for a sufficiency challenge is well-
established:
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. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the [trier]
of fact while passing upon the credibility of the witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations
omitted).
Flight to avoid apprehension, trial, or punishment occurs when:
A person who willfully conceals himself or moves or travels
within or outside this Commonwealth with the intent to avoid
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apprehension, trial or punishment commits a 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 which he has been charged with or
has been convicted of is a misdemeanor.
18 Pa.C.S.A. § 5126.
Schuster asserts that the evidence to convict him under § 5126 was
insufficient because “the evidence only supports a finding that [Schuster] was
fleeing to avoid potential probation violations.” Schuster’s Brief at 5.
Schuster argues that he was not charged with a new crime or awaiting
sentencing when he fled and therefore the evidence was insufficient. Id.
Schuster relies on In Interest of P.S., 158 A.3d 643 (Pa. Super. 2017) for
his argument. However, as the trial court opinion explains, P.S. is
distinguishable. Trial Court Opinion, 12/10/19, at 4.
In P.S., the defendant did not know he was facing a revocation of his
juvenile delinquency disposition at the time he was involved in a high speed
chase with the police. After the defendant stole a jeep with his friends and
rode around, police began to follow the jeep but then the defendant “took off”
and crashed the vehicle. P.S., 158 A.3d at 646. In that case, this Court
vacated P.S’s conviction of flight to avoid apprehension because there was no
showing that P.S knew there was a pending revocation of his disposition when
he fled and crashed the Jeep; “[t]he plain language of the statute says nothing
about fleeing to avoid apprehension for potential probation violations.” Id. at
652. P.S’s flight was solely because he stole and crashed the Jeep.
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Here, it was stipulated that Schuster was convicted of a prior resisting
arrest charge, 235 CR 2018, that there was a warrant out for his arrest for
violation of probation / supervision from 235 CR 2018, and that Schuster knew
the terms of his supervision. N.T at 12. Additionally, Officer Johnson testified
that Schuster told her that he knew there was a warrant out for his arrest.
N.T at 29. As noted by the trial court, in Commonwealth v. Steffy, 36 A.3d
1109 (Pa. Super. 2012), this Court found, “the offense of flight to avoid
apprehension was proper when the defendant fled from police after being told
there was an outstanding warrant for his arrest for a violation of probation.”
Trial Court Opinion, 12/10/19, at 3 (unnecessary capitalizations omitted).
Thus, 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. at 6.
Similarly, in Commonwealth v. Baker, 2019 WL 7173300, this Court
upheld a conviction of flight from police when the defendant knew of a bench
warrant for an alleged probation violation.2 As such, we agree with the trial
court that there was sufficient evidence to convict Schuster for this crime.
Schuster’s first issue is without merit.
In his second appellate issue, Schuster challenges the trial court’s denial
of his suggested jury instruction. When considering the denial of a jury
____________________________________________
2 We note that Schuster correctly states this is not binding, but we find Baker
persuasive and may rely on it as persuasive authority. See Pa. R.A.P.
126(b)(2); Schuster’s Brief at 20.
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instruction, our standard of review is one of deference: “[A]n appellate court
will reverse a court's decision only when it abused its discretion or committed
an error of law.” Commonwealth v. Leaner, 202 A.3d 749, 782–783 (Pa.
Super. 2019) (citation omitted)). When a trial court refuses to deliver a
specific jury instruction “it is the function of [this] Court to determine whether
the record supports the trial court’s decision.” Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1257 (Pa. Super. 2014) (en banc) (citation
omitted). “The relevant inquiry for this Court . . . is whether such charge was
warranted by the evidence in the case.” Commonwealth v. Baker, 963 A.2d
495, 506 (Pa. Super. 2008). “[I]t has long been the rule in this
Commonwealth that a trial court should not instruct the jury on legal principles
which have no application to the facts presented at trial.” Commonwealth
v. McCloskey, 656 A.2d 1369, 1374 (Pa. Super. 1995) (citation omitted).
“The trial court is not required to give every charge that is requested by the
parties and its refusal to give a requested charge does not require reversal
unless the Appellant was prejudiced by that refusal.” Commonwealth v.
Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013).
If a defendant requests a jury instruction on a defense to a crime, “the
trial court may not refuse to instruct the jury regarding the defense if it is
supported by evidence in the record.” Commonwealth’s Brief at 23 (quoting
Commonwealth v. DeMarco, 809 A.2d 256, 261 (Pa. Super. 2002)). The
charge as a whole must be considered when reviewing a challenge to a jury
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instruction. Commonwealth v. Brown, 786 A.2d 961, 966 (Pa. Super.
2001)
Here, Schuster proposed the following instruction:
Flight to avoid apprehension, trial or punishment requires
the Commonwealth to prove beyond a reasonable doubt that
[Schuster] fled or concealed himself from law enforcement to
avoid standing trial after he has already been charged with a
crime, or to avoid sentencing after conviction. A person does
not commit the crime of flight to avoid apprehension trial
or punishment if he is fleeing to avoid apprehension for
potential probation violations. In Interest of P.S., 158 A.3d
643, 652 (Pa. Super. 2017).
Defendant’s request for instructions, September 1, 2020 (emphasis added).
As mentioned above, a pending revocation proceeding for absconding
from supervision may serve as a basis for the charge of flight to avoid
apprehension if the defendant is aware of a pending proceeding or a bench
warrant. Steffy, supra. Schuster’s proposed instruction only applies in
situations where a defendant has no knowledge of an outstanding violation or
warrant.
Therefore, the trial court was correct in denying Schuster’s proposed
instruction because the instruction did not apply under the facts of the case.
The court instead instructed the following:
[Schuster] has been charged with flight to avoid
apprehension. To find [Schuster] guilty of this offense, you must
find that the following elements have been proven beyond a
reasonable doubt: First, that [Schuster] willfully concealed or
moved or traveled within or outside the Commonwealth. Second,
that [Schuster] did so with the intent to avoid apprehension, trial,
or punishment. And third, that the crime which [Schuster] was
charged or convicted of was either a felony or a misdemeanor.
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Trial Court Opinion, 12/10/19, at 5 (citations and unnecessary capitalizations
omitted). Although the given instruction did not mention a probation violation,
this information was not necessary for the jury to reach a verdict on the
charges Schuster faced. Additionally, because Schuster’s proposed instruction
was not supported by the record, we find the trial court did not abuse its
discretion, commit an error of law, or prejudice Schuster when it denied
Schuster’s request. DeMarco, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/25/2021
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