Com. v. Mays, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOSEPH MAYS
Appellant No. 955 EDA 2013
Appeal from the Judgment of Sentence March 11, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010618-2011
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and STABILE, J.
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 23, 2014
Appellant, Joseph Mays, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial conviction for resisting arrest or other lawful enforcement.1 We affirm.
The relevant facts and procedural history of this case are as follows.
During the early morning hours of June 17, 2011, Philadelphia Police Officers
Patrick Biles and Christopher Rommel received a police radio report of a
shooting at Marlowe and Dyre Streets in Northeast Philadelphia. Shortly
thereafter, the officers received another report from Officer Christopher
Lewis, describing a silver Chevrolet SUV that was possibly involved in the
shooting. Officer Lewis indicated the SUV was traveling northbound on the
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18 Pa.C.S.A. § 5104.
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4900 block of Frankford Avenue. Officer Lewis also stated, “Use caution.
They may be armed.” (N.T. Trial, 3/6/13, at 68). At the time of the call,
Officers Biles and Rommel were traveling westbound on Pratt Street, headed
toward the intersection with Frankford Avenue.
At that point, Officers Biles and Rommel observed the SUV execute a
right-turn into the eastbound lane of Pratt Street. The officers activated the
lights and sirens on their vehicle and maneuvered into the eastbound lane in
an attempt to stop the SUV. The SUV avoided a collision with the officers’
vehicle by jumping the curb, driving on the sidewalk, and cutting through a
shopping center parking lot. The officers pursued the SUV for several
blocks. The back window of the SUV was tinted, and the officer could not
determine the number of occupants in the vehicle. Additionally, the officers
heard gunshots during the pursuit, but they could not determine whether
the shots had originated from the SUV.
Ultimately, the SUV stopped in an alley. The officers exited their
patrol car, drew their firearms, and approached the SUV. Officer Rommel
approached the driver’s side and Officer Biles approached the passenger
side. The officers yelled at the occupants of the SUV, “Get your hands up.
Let me see your hands.” (Id. at 44). Specifically, Officer Biles was
concerned for his safety, as he was unsure whether the occupants were
armed. Officer Biles looked into the SUV and saw Appellant sitting in the
passenger seat. Officer Biles commanded Appellant to exit the SUV, but
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Appellant did not comply. Officer Biles opened the door, grabbed Appellant’s
shirt, and tried to remove Appellant from the vehicle. Appellant reached out
and clutched Officer Biles’ wrist. Officer Biles holstered his firearm,
struggled with Appellant, and took Appellant to the ground. While on the
ground, Appellant flailed his arms. Ultimately, Officer Biles applied a
“control hold” to subdue Appellant and place him in handcuffs. (Id. at 104).
Following trial, a jury convicted Appellant of resisting arrest or other
lawful enforcement. On March 11, 2013, the court sentenced Appellant to
one (1) to two (2) years’ imprisonment. On March 13, 2013, Appellant
timely filed a post-sentence motion. In it, Appellant argued the court
imposed an aggravated range sentence without considering mitigating
factors.2 Specifically, Appellant alleged he “had no prior record involving
crimes of violence, as well as strong community and family support.” (Post-
Sentence Motion, filed 3/13/13, at 4-5). The court denied Appellant’s post-
sentence motion on March 19, 2013.
Appellant timely filed a notice of appeal on March 26, 2013. On March
20, 2014, this Court dismissed the appeal due to Appellant’s failure to file a
brief. Appellant filed an application to reinstate the appeal on March 25,
2014, which this Court granted on March 31, 2014. On May 25, 2014,
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With a prior record score of five (5) and an offense gravity score of two
(2), the standard range for Appellant’s resisting arrest or other law
enforcement conviction was one (1) to nine (9) months, plus or minus three
(3) months for aggravating or mitigating circumstances.
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Appellant filed a concise statement of errors complained of on appeal,
pursuant to Pa.R.A.P. 1925(b).
Appellant now raises two issues for our review:
WAS NOT THE EVIDENCE INSUFFICIENT TO ESTABLISH
APPELLANT’S GUILT AS A MATTER OF LAW, TO THE
CHARGE OF RESISTING ARREST?
WAS NOT THE SENTENCE IMPOSED EXCESSIVE AND
CONSTITUTE[S] AN ABUSE OF DISCRETION, WHERE THE
COURT FAILED TO LIST THE REASONS FOR AN
AGGRAVATED SENTENCE AND THE COURT SEEMINGLY
INTENDED TO PUNISH [APPELLANT] FOR EXERCISING HIS
RIGHT TO A JURY TRIAL?
(Appellant’s Brief at 4).
In his first issue, Appellant contends the Commonwealth’s evidence
demonstrated he was merely a passenger in a vehicle driven by his co-
defendant. Appellant asserts the Commonwealth did not produce evidence
“to suggest that Appellant played any role in the…co-defendant’s actions in
evading and fleeing from police on June 17, 2011.” (Appellant’s Brief at 10).
Absent more, Appellant argues the officers did not have probable cause to
arrest him. On this basis, Appellant concludes the Commonwealth presented
insufficient evidence to support his conviction for resisting arrest or other
law enforcement. We disagree.
When examining a challenge to the sufficiency of the evidence, our
standard of review is:
[W]hether 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
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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 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), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).
Section 5104 of the Crimes Code defines the offense of resisting arrest
or other law enforcement as follows:
§ 5104. Resisting arrest or other law enforcement
A person commits a misdemeanor of the second degree
if, with the intent of preventing a public servant from
effecting a lawful arrest or discharging any other duty,
the person creates a substantial risk of bodily injury to the
public servant or anyone else, or employs means justifying
or requiring substantial force to overcome the resistance.
18 Pa.C.S.A. § 5104 (emphasis added).
Instantly, the trial court evaluated Appellant’s sufficiency challenge as
follows:
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At the time Police Officer Biles approached Appellant on
the passenger side of the vehicle, he was justified in
initiating a safety frisk for weapons, a duty as a law
enforcement officer. While on routine patrol, Officer Biles
received a radio call at approximately 2:00 a.m. regarding
gunshots. He subsequently received information leading
him to encounter the target vehicle and possible suspects.
During the ensuing vehicle chase, Officer Biles heard
gunshots of unknown origin. Additionally, Officer Biles
received a cautionary radio alert that the suspects may be
armed. The evidence pertaining to the discharge of a
firearm suggested that Officer Biles had a reasonable
concern that Appellant may have had a weapon in his
possession. Accordingly, the jury was warranted in finding
that effectuating a weapons frisk was a legitimate duty at
the time Officer Biles approached Appellant. Officer Biles
stated, “[W]e were yelling at them in loud voices, ‘get your
hands up, let me see your hands,” for our safety, [to]
make sure they didn’t have any weapons.” The evidence
therefore sufficiently established that Appellant intended to
prevent Officer Biles from performing a weapons frisk by
grabbing him and initiating a struggle on the ground.
Appellant seemingly ignores the disjunctive clause
discharging any other duty of Section 5104, implicitly
arguing that the lawful arrest clause is a necessary
element of the offense. The plain reading of the statute
does not support Appellant’s characterization.
(See Trial Court Opinion, filed June 13, 2014, at 2-3) (emphasis in original)
(internal footnote and citations to the record omitted). We agree with the
court and emphasize that Officer Biles provided particular facts from which
he reasonably inferred Appellant was armed and dangerous, thereby
justifying a frisk for weapons. See Commonwealth v. Preacher, 827 A.2d
1235, 1239 (Pa.Super. 2003) (explaining officer can conduct pat-down of
suspect’s outer garments for weapons if, during course of valid investigatory
stop, officer reasonably believes suspect may be armed and dangerous).
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See also Commonwealth v. Coleman, 19 A.3d 1111 (Pa.Super. 2011)
(holding sufficient evidence supported defendant’s conviction for resisting
arrest or other law enforcement where defendant struggled with officer who
attempted to remove defendant’s hand from pocket; officer received police
radio call for armed robbery in progress, officer drove to location of robbery
and observed defendant, who matched description of robber, and defendant
refused to comply with officer’s request that defendant remove his hand
from his pocket). Consequently, sufficient evidence supported Appellant’s
conviction for resisting arrest or other law enforcement. See Hansley,
supra.
In his second issue, Appellant contends the sentencing court imposed
an aggravated range sentence without considering mitigating factors,
specifically the fact that Appellant’s criminal history included non-violent
offenses. Appellant concludes the court abused its discretion by imposing an
excessive sentence. Appellant’s challenge is to the discretionary aspects of
his sentence. See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super.
2002) (stating claim that sentence is manifestly excessive challenges
discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
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[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a motion to modify
the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d
788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).3
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The requirement that an appellant separately set forth the
reasons relied upon for allowance of appeal ‘furthers the purpose evident in
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In his statement of issues presented, Appellant mentions that the sentence
imposed by the court “seemingly intended to punish [Appellant] for
exercising his right to a jury trial[.]” (Appellant’s Brief at 4). Appellant,
however, failed to preserve this claim in his post-sentence motion. See
Mann, supra.
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the Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision
to exceptional cases.’” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S. Ct. 2450, 174 L. Ed. 2d
240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387
(Pa.Super. 1989) (en banc) (emphasis in original)).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra at 912-13. “A substantial question is
raised where an appellant alleges the sentencing court erred by imposing an
aggravated range sentence without consideration of mitigating
circumstances.” Commonwealth v. Hyland, 875 A.2d 1175, 1183
(Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005).
Instantly, Appellant properly preserved his claim regarding the court’s
purported error in imposing an aggravated range sentence without
consideration of mitigating circumstances. As presented, Appellant’s claim
appears to raise a substantial question as to the discretionary aspects of his
sentence. See id.
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Our standard of review concerning the discretionary aspects of
sentencing is as follows:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed
on appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish,
by reference to the record, that the sentencing court
ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or arrived at
a manifestly unreasonable decision.
Id. at 1184 (quoting Commonwealth v. Rodda, 723 A.2d 212, 214
(Pa.Super. 1999) (en banc)).
“[A] court is required to consider the particular circumstances of the
offense and the character of the defendant.” Commonwealth v. Griffin,
804 A.2d 1, 10 (Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S. Ct.
2984, 162 L. Ed. 2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal characteristics and his
potential for rehabilitation.” Id.
Instantly, the record belies Appellant’s contention that the court failed
to consider the mitigating factors at issue. Immediately following the
announcement of the jury’s verdict, Appellant waived his right to a pre-
sentence investigation report and proceeded to sentencing. At that time,
the Commonwealth emphasized Appellant’s extensive criminal history:
[THE COMMONWEALTH]: Your Honor, the
Commonwealth is asking for one to two.
[Appellant]―I guess I’ll―since we don’t have a pre-
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sentence report, I’ll just inform the court―and the court
can look at his record―it’s extensive.
[Appellant’s] been convicted of [possession of a controlled
substance with intent to deliver (“PWID”)] in 2000
on―one, two, three, four―four separate PWIDs that he
consolidated in 2000 before Judge Wood-Skipper. He has
a separate PWID before Judge Hughes in 2003. There’s
the case that he’s on right now, which is another PWID
with Judge Bronson, from 2010. Then there is―he has a
juvenile record. He also has another PWID conviction in
2000 before Judge Nyfield (ph). Another PWID conviction
in 2000 before Judge Gehret. He has a PWID conviction in
2007 before Judge Meehan.
THE COURT: Are they all separate
PWIDs?
[THE COMMONWEALTH]: The 2007 before Judge
Meehan is actually―
[DEFENSE COUNSEL]: He consolidated several
PWIDs.
[THE COMMONWEALTH]: Two PWIDs and a DUI
consolidated.
(See N.T. Trial and Sentencing, 3/11/13, at 32-33.) The Commonwealth
also detailed Appellant’s history while on probation, which included multiple
violations.
Defense counsel, however, requested the court to impose a
probationary sentence. The court asked defense counsel, “Who gets
probation when you’ve been convicted ten times or more?” (Id. at 36).
Defense counsel conceded Appellant had a “major problem with the state
parole board with this case.” (Id.) Consequently, defense counsel revised
his request, asking for “a sentence within the guideline range.” (Id.)
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Thereafter, the court and defense counsel discussed the applicability of
various aggravating circumstances. At the conclusion of the hearing, the
court imposed the sentence of one to two years’ imprisonment.
Despite Appellant’s protests that the court failed to appreciate the
non-violent nature of his prior offenses, the court emphasized its concerns
over the volume of crimes Appellant had committed. Significantly, the court
considered the nature and circumstances of the offense at issue. The court
also observed Appellant and considered the statements from Appellant’s
counsel. Under these circumstances, we see no abuse of discretion. See
Hyland, supra. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
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