Com. v. Enos, S.

J-S71038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEWART ENOS :
:
Appellant : No. 440 EDA 2018
Appeal from the Judgment of Sentence June 30, 2016
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001049-2015
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED JANUARY 15, 2019
Appellant Stewart Enos appeals from the judgment of sentence following
a jury trial and his convictions for fleeing or attempting to elude police 1 and
related offenses. On appeal, Appellant purports to challenge the sufficiency
of the evidence, specifically that the testimony of the witnesses identifying
him as the offender were allegedly contradictory. We affirm.
We state the facts and procedural history as set forth by the trial court:
Officer Anthony Fisher of the Pottstown Police Department
testified that on August 22, 2014, at approximately 11 p.m., he
was responding to a call for suspicious activity in the 400 block of
Johnson Street, Pottstown, Montgomery County. His patrol
vehicle was equipped with a dash camera that captured video and
also displayed speed, direction of travel, time and date. The video
depicts Officer Fisher turning onto Johnson Street, proceeding
south, at which point a spotlight on a fellow officer’s vehicle is
visible. A small sedan pulls out from the curb, and begins driving
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1 75 Pa.C.S. § 3733(a).
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toward Officer Fisher, north on Johnson Street, momentarily
without headlights. At this point, Officer Fisher activates his lights
and sirens in an attempt to stop the vehicle. The car then turns
in front of the Officer into a dead-end, private driveway. Officer
Fisher followed the car and exited his patrol vehicle, in anticipation
of a foot pursuit, with his weapon in a “low ready” position. At
this point, Officer Fisher shouted verbal commands to [Appellant]
to stop action; [Appellant] did not stop and began to drive the
vehicle towards the officer. The officer, now fearing for his safety,
aimed his weapon at the driver of the vehicle, at which time he
was within a couple feet of the car and had a clear view of
[Appellant’s] face. [Appellant] then puts the vehicle in reverse
and drives over a lawn to get back on to 8th Street. Officer Fisher
gets back in his vehicle and begins a high speed pursuit of
[Appellant]. The pursuit reached speeds over 60 miles per hour,
in a residential area. Officer Fisher ultimately called off the pursuit
out of concern for community safety.
On September 15, 2014, Officer Fisher was on patrol when he saw
[Appellant] standing outside of a vehicle on Chestnut Street in
Pottstown, Montgomery County, approximately a mile from where
the chase began on August 22, 2014. Without hesitation, Officer
Fisher recognized [Appellant] and called for backup. [Appellant]
was arrested without incident. [Officer Fisher identified Appellant
at trial. N.T. Trial, 4/6/16, at 20.]
Officer Eric Weber also testified at trial. He responded to a call of
a suspicious vehicle on Johnson Street. He testified that as he
arrived at the location indicated in the call, he observed a vehicle
fitting the description of that in the call parked at the curb; an
individual later identified as Melvin Hampton got out of the back
passenger seat. The vehicle then pulled away from the curb and
Officer Weber activated his emergency lights. The vehicle did not
stop. Officer Weber followed the car and Officer Fisher’s patrol
vehicle into the private driveway. Like Officer Fisher, he exited
his vehicle and approached the vehicle. At that point, the driver
began backing up towards Officer Fisher. Officer Weber drew his
weapon and began to run toward the car, identifying himself as a
police officer and giving verbal commands to stop. Officer Weber
testified that he was unable to identify the driver of the vehicle.
[Appellant] testified in his own defense. He testified that he was
not the driver of the car. He also testified that on the date of the
incident, August 22, 2014, his driver’s license was suspended.
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Trial Ct. Op., 6/11/18, at 1-3 (citations omitted).
Following a jury trial, Appellant was convicted, and the trial court
sentenced him to one to seven years’ incarceration. Id. at 3. Appellant filed,
and the court denied, a timely post-sentence motion, which did not challenge
the weight of the evidence. After a lengthy procedural history, Appellant’s
right to file a direct appeal nunc pro tunc was reinstated, and Appellant timely
appealed. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b)
statement.2
Appellant raises the following question on appeal:
1. Was the verdict unsupported by sufficient evidence because the
evidence as to the identity of the driver of the fleeing car was such
that rational[,] beyond a reasonable doubt finding could not be
made and the jury could only guess at the identity of the
perpetrator?
Appellant’s Brief at 3.
Appellant begins by summarizing testimony that, in Appellant’s view,
was conflicting as to whether he was the driver. Id. at 7-10. Appellant’s
argument appears to be that Officer Fisher, who identified Appellant, had just
three years’ experience as a police officer in contrast to Officer Weber, who
was more experienced than Fisher but could not identify Appellant. Id. at 8-
9. Appellant also discusses portions of Officer Weber’s testimony that, in
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2The record does not include the court’s Rule 1925(b) directive, although the
docket reflects entry of such an order.
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Appellant’s view, establishes Officer Fisher was not in a position to identify
him. Id. at 9-10. In sum, Appellant contends that because “Officer Fisher
and Weber contradicted each other on the critical issue of Officer Fisher’s
ability to observe, there was no rational way to determine which officers’
testimony to credit or discredit,” we must vacate his convictions. Id. at 11.
The standard of review for a challenge to the sufficiency of evidence is
well-settled:
A claim challenging the sufficiency of the evidence presents a
question of law. We must determine whether the evidence is
sufficient to prove every element of the crime beyond a
reasonable doubt. We must view evidence in the light most
favorable to the Commonwealth as the verdict winner, and accept
as true all evidence and all reasonable inferences therefrom upon
which, if believed, the fact finder properly could have based its
verdict.
Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017)
(citation omitted). 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. Orr, 38 A.3d 868, 873 (Pa.
Super. 2011) (en banc) (citation omitted). “[E]vidence of identification need
not be positive and certain to sustain a conviction. . . . Given additional
evidentiary circumstances, any indefiniteness and uncertainty in the
identification testimony goes to its weight.” Id. at 874 (citations and
quotation marks omitted). Thus, allegations of conflicts in evidence regarding
identification are more properly classified as challenges to the weight of the
evidence. Commonwealth v. Furness, 153 A.3d 397, 404 (Pa. Super.
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2016); Commonwealth v. Gibbs, 981 A.2d 274, 281-82 (Pa. Super. 2009)
(holding, “[a]n argument that the finder of fact should have credited one
witness’ testimony over that of another witness goes to the weight of the
evidence, not the sufficiency of the evidence.” (citations omitted)). A
challenge to the weight of the evidence, however, must first be raised with
the trial court. Pa.R.Crim.P. 607(A).
Here, Appellant’s argument—that the testimony of Officers Fisher and
Weber were allegedly contradictory—is a challenge to the weight of the
evidence. See Furness, 153 A.3d at 404; Gibbs, 981 A.2d at 281-82.
Appellant, however, has waived any challenge to the weight of the evidence
by failing to raise it with the trial court. See Pa.R.Crim.P. 607(A).
To the extent that Appellant’s challenge may be construed as a
sufficiency challenge, it lacks merit. It was for the jury to evaluate the
credibility of the witnesses, and it concluded that Officer Fisher’s identification
of Appellant was credible. See Orr, 38 A.3d at 873-84. We add that
Appellant’s characterization of Officer Weber’s testimony as contradictory is
not supported by the record. The trial transcript reflects that Officer Weber
testified that Officer Fisher was “getting behind” Appellant’s vehicle, but never
testified that Officer Fisher was not in a position to view Appellant. See N.T.
Trial, 4/6/16, at 90. For these reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/19
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