Com. v. Steele, C.

J-S75001-19
2020 Pa. Super. 156
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
CHRISTOPHER ALLEN STEELE
Appellant No. 23 WDA 2019
Appeal from the Judgment of Sentence Entered December 18, 2018
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0001105-2018
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
OPINION BY STABILE, J.: FILED JULY 06, 2020
Appellant, Christopher Allen Steele, appeals from his aggregate
judgment of sentence of 66—180 months’ imprisonment for, inter alia,
aggravated assault, reckless endangerment, possession of an instrument of
crime, and criminal use of a communication facility.1 Appellant contends that
the evidence was insufficient to sustain these convictions. We hold that the
evidence was sufficient to sustain Appellant’s convictions for aggravated
assault, reckless endangerment, and possession of an instrument of crime.
The evidence was insufficient, however, to sustain Appellant’s conviction for
criminal use of a communication facility. Accordingly, we reverse Appellant’s
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a)(1) and (4), 2705, 907(b), and 7512(a),
respectively.
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conviction for criminal use of a communication facility and remand for
resentencing on all remaining convictions.
The record reflects that on March 27, 2018, Appellant drove his truck
from his place of business to 23rd and Brandes Streets in Erie, Pennsylvania.
Lydia Vicario, Appellant’s close friend and employee,2 accompanied Appellant
as a passenger in his truck. Appellant exited the truck at 23rd and Brandes
and approached a red Nissan Sentra, while Vicario remained seated in the
truck. Several minutes later, Appellant returned to the truck and stated
angrily that he had been robbed while selling drugs to the Sentra’s occupants.
N.T., 10/16/18, at 36-41, 62.
The Sentra drove away, and Appellant sped after it. As Appellant’s truck
drew closer, he began shooting at the Sentra with a firearm from the driver’s
side window. Id. at 41-46. Prior to trial, Vicario told police that “she had
been shot at,” and that Appellant had “fir[ed] back to protect her.” Id. at 20.
During trial, however, the Commonwealth asked Vicario whether anyone shot
at her. Vicario answered, “That day I did believe that there was something
else that happened, but I feel like there was just so much commotion, I don’t
believe nobody else was shooting.” Id. at 48. Vicario added that she was not
close enough to the Sentra to see if any weapons were inside that vehicle.
Id. The trial court asked, “Let me be clear. You’re chasing the other vehicle,
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2 Appellant ran an establishment called Little Italy’s Trading Post. N.T.
10/17/18, at 72.
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though. It’s not chasing your vehicle, right?” Id. Vicario answered, “Yeah.”
Id.
Several blocks after shooting at the Sentra, Appellant rammed into it
with his truck. The Sentra lost control and crashed into a car (or cars) parked
on the street. A Mitsubishi Mirage was destroyed, and a Dodge Neon suffered
damage.3 Id. at 24-25, 41-46, 72-75.
Appellant drove away from the crash scene. According to Vicario,
Appellant drove away from the scene of the collision and asked her to drive.
At some point after asking her to drive, Appellant turned on a police scanner
app on his iphone in an attempt to avoid detection by the police. Id. At 59-
61.
Neither Appellant nor Vicario called 911. N.T. 10/17/18, at 119. Forty-
five minutes after the crash, Sergeant Onderko of the Erie Police stopped
Appellant’s truck. As the sergeant placed Appellant in handcuffs, he heard his
own voice coming out of Appellant’s pocket. He removed an iphone from
Appellant’s pocket and saw the main screen running a police scanner into Erie
police agencies. Id. at 41-50.
Sergeant Onderko found a .22 caliber Smith & Wesson M&P model
firearm partially underneath the passenger seat whose barrel was still warm
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3 The trial transcript is not clear whether the Sentra itself struck the Mirage,
the Neon, or both vehicles. What is clear, however, is that the Sentra, Mirage
and Neon all suffered damage after Appellant’s truck knocked the Sentra out
of control.
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and whose magazine was empty, indicating that all bullets in the magazine
had been fired. Sergeant Onderko testified that, based on his experience, he
knew that firearm barrels remain warm after being used repeatedly. He also
found shell casings, ammunition cartridges and nine baggies of marijuana
elsewhere in the passenger compartment. The police discovered gunshot
residue on Appellant’s person but did not find any weapons in the Sentra or
any gunshot residue on the Sentra’s occupants. Id. at 11, 21, 28-35, 44-45,
53-60.
Appellant testified in his own defense. He claimed that someone in the
Sentra robbed him at 23rd and Brandes Streets, but as he left that location in
his truck, he came upon a second, independent robbery occurring nearby. The
participants in the second robbery decided to terminate that robbery and
chase him at high speed in a silver minivan. The Sentra blocked Appellant’s
escape from the silver minivan, so Appellant shot at the Sentra to get it out
of his way, either by shooting out its tires or shooting its occupants. Id. at
72-103.
The jury found Appellant guilty of two counts of aggravated assault
under 18 Pa.C.S.A. § 2702(a)(1) and (a)(4), two counts of reckless
endangerment, possession of an instrument of crime, criminal use of a
communication facility, possession of drug paraphernalia, propulsion of a
missile onto a roadway and possession of a controlled substance. On
December 18, 2018, the trial court imposed consecutive sentences of
imprisonment of 54-120 months for aggravated assault, 6-36 months for
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criminal use of communication facility and 6-24 months propulsion of a missile
onto a roadway.4 Appellant filed a motion for reconsideration of sentence,
then a notice of appeal while his motion for reconsideration was pending, and
then a pro se petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§
9541-9546. Ultimately, the trial court denied the Appellant’s motion for
reconsideration and PCRA motion and granted Appellant leave to appeal nunc
pro tunc. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
The trial court filed an opinion stating that Appellant’s claim of insufficient
evidence was “boilerplate” and devoid of merit. Trial Ct. Op., 4/11/19, at 3.
On May 7, 2019, this Court dismissed this appeal due to Appellant’s
failure to file his brief. On July 19, 2019, Appellant filed a motion to reinstate
the appeal. On August 2, 2019, this Court reinstated this appeal, and both
parties have now filed briefs.
Appellant raises two issues in this appeal:
1. Was there insufficient evidence to convict [Appellant] of two
counts of aggravated assault in violation of 18 Pa.C.S.A. §
[2702(a)(1)] and [(a)(4)], and two counts of recklessly
endangering another person in violation of 18 Pa.C.S.A. § 2705?
2. Was there insufficient evidence to convict [Appellant] of
possessing an instrument of a crime in violation of 18 Pa.C.S.A. §
907(b) and criminal use of a communication facility in violation of
18 Pa.C.S.A. § 7512(a)?
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4The court imposed a concurrent sentence of imprisonment for possession of
an instrument of crime. With regard to Appellant’s remaining convictions, the
court either imposed no further sentence or ruled that they merged for
sentencing purposes.
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Appellant’s Brief at 4.
When reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the Commonwealth as verdict
winner, were sufficient to prove every element of the offense beyond a
reasonable doubt. Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa.
2013). “[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Commonwealth v. Colon-
Plaza, 136 A.3d 521, 525–26 (Pa. Super. 2016). It is within the province of
the fact-finder to determine the weight to accord to each witness’s testimony
and to believe all, part or none of the evidence. Commonwealth v. Tejada,
107 A.3d 788, 792–93 (Pa. Super. 2015). The Commonwealth may sustain
its burden of proving every element of the crime by means of wholly
circumstantial evidence. Commonwealth v. Crosley, 180 A.3d 761, 767
(Pa. Super. 2018). As an appellate court, we may not re-weigh the evidence
and substitute our judgment for that of the fact-finder. Commonwealth v.
Rogal, 120 A.3d 994, 1001 (Pa. Super. 2015).
A person is guilty of aggravated assault under 18 Pa.C.S.A. § 2702(a)(1)
when he “attempts to cause serious bodily injury to another . . . under
circumstances manifesting extreme indifference to the value of human life.”
A person is guilty of aggravated assault under Section 2702(a)(4) when he
“attempts to cause . . . bodily injury to another with a deadly weapon.”
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The Crimes Code defines bodily injury as “impairment of physical
condition or substantial pain,” 18 Pa.C.S.A. § 2301, and serious bodily injury
as “bodily injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” Id.
“For aggravated assault purposes, an attempt is found where an
accused who possesses the required, specific intent acts in a manner which
constitutes a substantial step toward perpetrating a serious bodily injury upon
another.” Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013)
(internal quotations omitted). Under the plain language of Sections
2702(a)(1) and (a)(4), the Commonwealth need only show that the defendant
attempted to cause serious bodily injury to another, not that serious bodily
injury actually occurred. Commonwealth v. Galindes, 786 A.2d 1004, 1012
(Pa. Super. 2001) (“[e]ven though [the intended victim] was not struck by
any bullets, the act of firing a gun toward him constitutes an attempt to cause
serious bodily injury” and thus was sufficient to prove aggravated assault).
The Crimes Code defines a “deadly weapon” as “any firearm, whether
loaded or unloaded, or . . . any other device or instrumentality which, in the
manner in which it is used or intended to be used, is calculated or likely to
produce death or serious bodily injury.” 18 Pa.C.S.A. § 2301. Although a
properly used automobile may not be inherently dangerous, it may become a
deadly weapon by being used in a manner calculated or likely to produce death
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or bodily injury. “Motor vehicles still outdistance firearms as the most
dangerous instrumentality in the hands of irresponsible persons in our society
today.” Commonwealth v. Scales, 648 A.2d 1205, 1209 (Pa. Super. 1994);
see also Commonwealth v. Battiato, 619 A.2d 359, 362 (1993), abrogated
on other grounds, 781 A.2d 1136 (Pa. 2001) (upholding conviction under
Section 2702(a)(4) where appellant struck victim and car in which victim was
occupant).
“If a defendant introduces evidence of self-defense, the Commonwealth
bears the burden of disproving the self-defense claim beyond a reasonable
doubt.” Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa. 2011). The
use of force against a person is justified “when the actor believes that such
force is immediately necessary for the purpose of protecting himself against
the use of unlawful force” by the other person. 18 Pa.C.S.A. § 505(a). A self-
defense claim thus entails three elements: (1) the defendant reasonably
believed that he was in imminent danger of death or serious bodily injury and
that it was necessary to use deadly force against the victim to prevent such
harm; (2) the defendant was free from fault in provoking the difficulty which
culminated in his use of deadly force; and (3) the defendant did not violate
any duty to retreat. Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa.
2012).
Viewed in the light most favorable to the Commonwealth, the evidence
was sufficient to sustain Appellant’s convictions for aggravated assault under
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Section 2702(a)(1). The evidence demonstrates that after a drug sale to the
Sentra’s occupants went awry, Appellant became angry and chased the Sentra
at high speed while firing his entire magazine of bullets at its occupants.
Several blocks later, Appellant smashed his truck into the Sentra, causing a
collision between the Sentra and two other vehicles and destroying one of the
other vehicles. Although there was no evidence that the Sentra’s occupants
incurred injury, Appellant’s acts of firing his weapon repeatedly and crashing
his truck into the Sentra demonstrated an “attempt[] to cause serious bodily
injury to another . . . under circumstances manifesting extreme indifference
to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). Galindes, 786 A.2d
at 1012; Battiato, 619 A.2d at 362.
The same evidence was sufficient to sustain Appellant’s conviction under
Section 2702(a)(4), because he attempted to cause bodily injury to the
Sentra’s occupants with two deadly weapons, his firearm and his truck. The
firearm is a deadly weapon under Section 2301. The truck is a deadly weapon
because Appellant drove it into the Sentra violently enough to cause a serious
collision involving two other vehicles, an act calculated to cause death or
serious bodily injury to the Sentra’s occupants.
The evidence also was sufficient to disprove Appellant’s claim of self-
defense. Appellant testified that he was robbed by the Sentra’s occupants,
and as he drove away, a second group of robbers began chasing him in a silver
minivan. Appellant claimed that he had to shoot at the Sentra because it was
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blocking his escape route from the minivan. The Commonwealth countered
Appellant’s testimony with the testimony of Vicario, a passenger in Appellant’s
truck and an eyewitness to the events. Vicario testified that Appellant chased
after the Sentra at high speed, fired at the Sentra with his firearm and rammed
his truck into the Sentra several blocks later. Vicario made no mention at all
of a second robbery, a silver minivan chasing after Appellant’s truck, or of any
need to escape the minivan by shooting at the Sentra. The jury was free to
believe, and clearly did believe, Vicario’s version of the events instead of
Appellant’s which it obviously found to be not credible. Accepting her version
of the events as true, we hold that the evidence does not support Appellant’s
claim of self-defense. Appellant was the instigator of the attack on the
Sentra’s occupants, not a victim entitled to use deadly force to protect himself.
The same evidence was sufficient to sustain Appellant’s conviction for
reckless endangerment under 18 Pa.C.S.A. § 2705, which requires the
Commonwealth to prove that the defendant “recklessly engage[d] in conduct
which place[d] or may [have] place[d] another person in danger of death or
serious bodily injury.” Id. Once again, the evidence shows that Appellant
became angry after the drug sale went awry, chased after the Sentra at high
speed, shot repeatedly at the Sentra with his firearm, and crashed his truck
into the Sentra, causing collisions with other vehicles. This was reckless
conduct that placed the Sentra’s occupants in danger of death or serious bodily
injury. Commonwealth v. Hartzell, 988 A.2d 141, 143-44 (Pa. Super.
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2009) (evidence demonstrated reckless endangerment where from distance
of approximately thirty yards, defendant fired his gun into creek near bridge,
approximately twenty-five to thirty feet away from victims on bridge while
cursing at them); Commonwealth v. Picchianti, 600 A.2d 597, 600 (Pa.
Super. 1992) (evidence that defendant drove at high speed, forced several
vehicles off roadway and refused to stop for police road blocks was sufficient
to demonstrate reckless endangerment).
The evidence also was sufficient to sustain Appellant’s conviction for
possession of an instrument of crime under 18 Pa.C.S.A. § 907(b), which
occurs when the defendant “possesses a firearm . . . with intent to employ it
criminally.” 18 Pa.C.S.A. § 907(b). Angered by the outcome of the drug
transaction, Appellant chased the Sentra at high speed down city streets and
then shot at the Sentra’s occupants repeatedly with his firearm. Although
Appellant testified that he has a license to carry a firearm, this did not entitle
him to use his firearm for criminal purposes.
Finally, Appellant argues that the evidence was insufficient to sustain
his conviction for criminal use of a communication facility under 18 Pa.C.S.A.
§ 7512. We agree.
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The Crimes Code defines this offense as “us[ing] a communication
facility5 to commit, cause or facilitate the commission or the attempt
thereof of any crime which constitutes a felony under this title or
under . . . the Controlled Substance, Drug, Device and Cosmetic Act6.”
18 Pa.C.S.A. § 7512(a) (emphasis added). The bolded language, which we
will call the “felony element,” does not require that the defendant be charged
with the underlying felony, but it does require evidence of conduct that a
communication facility be used to complete or attempt a felony.
The Commonwealth does not argue that Appellant used the scanner to
commit aggravated assault against the Sentra’s occupants. Nor would this
argument have been successful, since the evidence shows that Appellant did
not turn on the scanner until after driving away from the location of the
collision with the Sentra. Instead, the Commonwealth argued during trial that
Appellant used the police scanner to evade the police. Similarly, the court
instructed the jury that it could find Appellant guilty under Section 7512 if
Appellant “us[ed] that cell phone to try to evade the police . . .” N.T.
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5 A communication facility is “a public or private instrumentality used or useful
in the transmission of signs, signals, writing, images, sounds, data or
intelligence of any nature transmitted in whole or in part, including, but not
limited to, telephone, wire, radio, electromagnetic, photoelectronic or photo-
optical systems or the mail.” 18 Pa.C.S.A. § 7512(c). Appellant does not
dispute that a police scanner is a communication facility.
6 35 P.S. §§ 780-101 through 780-144.
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10/18/18, at 77. The felony element, however, requires more. The evidence
must show that evading police with a scanner was done to cause or facilitate
the commission or the attempt of a felony—but the Commonwealth fails to
identify any such felony. Since the evidence did not satisfy the felony element
of Section 7512, we conclude that the evidence was insufficient to sustain
Appellant’s conviction under this statute.
Because reversal of this conviction upsets the trial court’s sentencing
scheme, we will vacate all of Appellant’s sentences and remand for
resentencing on all convictions to give the trial court the opportunity to
restructure its sentencing scheme. Commonwealth v. Goldhammer, 517
A.2d 1280, 1283–84 (Pa. 1986); Commonwealth v. Williams, 871 A.2d
254, 266 (Pa. Super. 2005) (if trial court errs in its sentence on one count in
multi-count case, all sentences for all counts will be vacated so court can
restructure its entire sentencing scheme).
Judgments of sentence on all convictions except for criminal use of
communication facility affirmed. Judgment of sentence for criminal use of
communication facility reversed. Case remanded for resentencing on all
convictions. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2020
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