Com. v. Hairston, B.

J. S23033/20
J. S23034/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BASHEER HAIRSTON, : No. 1118 EDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered March 13, 2019,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0009394-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BASHEER HAIRSTON, : No. 1119 EDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered March 13, 2019,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0009395-2017
BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 17, 2020
Basheer Hairston appeals from the judgments of sentence entered on
March 13, 2019, by the Court of Common Pleas of Philadelphia County
following his conviction of two counts of recklessly endangering another
person (“REAP”) and one count each of possessing an instrument of crime
J. S23033/20
J. S23034/20
(“PIC”) and fleeing or attempting to elude an officer, following a bench trial.
The trial court sentenced appellant to an aggregate term of two years’
probation. After careful review, we affirm.
The trial court provided the following factual history:
During the underlying trial, Officer [Vincent] Visco
testified that on June 29, 2017 at approximately
12:52 pm, he and his partner, Officer [Antoine]
Wesley, were on routine patrol in a marked police
vehicle when they observed a silver 2016 BMW 535i
sedan with dark tinted windows traveling northbound
on Front Street approaching Allegheny Avenue.
Officer Visco testified that he and his partner pulled
the vehicle over for the allegedly illegal tint, and both
officers approached the vehicle with Officer Visco on
the driver’s side and his partner on the passenger
side. Further, Officer Visco testified that the windows
of the vehicle were up requiring him to yell three (3)
times for them to be lowered, to which [appellant]
ultimately complied. Once the windows were lowered,
Officer Visco noticed [appellant] was alone in the
vehicle, [appellant’s] hands were shaking and he was
breathing heavily. Officer Visco stated that he asked
for [appellant’s] license, registration and insurance;
[appellant] moved towards the glove box, but instead
of going into the glovebox, [appellant] pressed the
ignition button twice to start the vehicle. According
to Officer Visco, it was after the second push the
vehicle started, [appellant] turned the wheel to the
right and abruptly accelerated forward at a high rate
of speed causing Officer Wesley to step back quickly
and requiring Officer Visco to release the door handle.
Officer Visco testified that he and his partner began
pursuit of [appellant] but were ordered shortly
thereafter to terminate their pursuit. Finally,
Officer Visco stated that a couple of minutes later he
was notified that the vehicle was located by another
officer on the 1900 block of West Atlantic Street.
-2-
J. S23033/20
J. S23034/20
Next, there was a stipulation between counsels that
Officer Avery[1] recovered the vehicle on June 29,
2017 from the aforementioned location. Following
this stipulation, Detective [Ryan] Particelli testified, in
pertinent parts, that on July 1, 2017 at approximately
11:30 a.m., he executed a search warrant on the
recovered vehicle in which multiple letters and other
documents containing [appellant’s] name and/or
address were found on the floor behind the passenger
seat.
Trial court opinion, 8/7/19 at 1-2 (citations to the record omitted).
The Commonwealth charged appellant with one count each of
manufacture, delivery, or possession of a controlled substance with intent to
manufacture or deliver, possession of a controlled substance by person not
registered, PIC, REAP, and fleeing or attempting to elude an officer2 at
Docket No. CP-51-CR-0009394-2017 (“Docket No. 9394”). The
Commonwealth also charged appellant with one count each of PIC, simple
assault, and REAP3 at Docket No. CP-51-CR-0009395-2017 (“Docket
No. 9395”).
Following a bench trial, the trial court convicted appellant of PIC, REAP,
and fleeing or attempting to elude an officer at Docket No. 9394 and REAP at
1 Officer Avery’s first name does not appear in the record.
235 P.S. §§ 780-113(a)(30) and (16), and 18 Pa.C.S.A. §§ 907(a), 2705, and
3733(a), respectively.
3 18 Pa.C.S.A. §§ 907(a), 2701(a), and 2705, respectively.
-3-
J. S23033/20
J. S23034/20
Docket No. 9395. The trial court subsequently imposed an aggregate
sentence of two years’ probation.
Appellant filed separate notices of appeal from each judgment of
sentence. The trial court ordered appellant to file a concise statement of
errors complained of on appeal at each docket number, and appellant timely
complied. The trial court subsequently filed an opinion pursuant to
Pa.R.A.P. 1925(a) addressing the appeals both docket numbers. We have
consolidated appellant’s two appeals sua sponte pursuant to Pa.R.A.P. 513.4
Appellant raises the following issues for our review:
[1.] Whether the evidence was sufficient to sustain
the conviction of [PIC?]
[2.] Whether the evidence was sufficient to sustain
the conviction for [REAP?]
Appellant’s brief at Docket No. 9394 at 5 (full capitalization and citation
omitted); appellant’s brief at Docket No. 9395 at 5 (full capitalization
omitted).5
Our well-settled standard of review for sufficiency of the evidence claims
is as follows:
As a general matter, our standard of
review of sufficiency claims requires that
4 As noted by the trial court, the charges at both docket numbers arise from
the same incident. (Notes of testimony, 1/9/19 at 63.)
5 Appellant and the Commonwealth filed separate briefs for each docket
number. In order to differentiate between the briefs, we will use the trial
court docket numbers.
-4-
J. S23033/20
J. S23034/20
we evaluate the record in the light most
favorable to the verdict winner giving the
prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Evidence will be deemed sufficient to
support the verdict when it establishes
each material element of the crime
charged and the commission thereof by
the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need
not establish guilt to a mathematical
certainty. Any doubt about the
defendant’s guilt is to be resolved by the
fact finder unless the evidence is so weak
and inconclusive that, as a matter of law,
no probability of fact can be drawn from
the combined circumstances.
The Commonwealth may sustain its
burden by means of wholly circumstantial
evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s
participation in a crime is circumstantial
does not preclude a conviction where the
evidence coupled with the reasonable
inferences drawn therefrom overcomes
the presumption of innocence.
Significantly, we may not substitute our
judgment for that of the fact finder; thus,
so long as the evidence adduced,
accepted in the light most favorable to the
Commonwealth, demonstrates the
respective elements of a defendant’s
crimes beyond a reasonable doubt, the
appellant’s convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-723
(Pa.Super. 2013) (internal quotations and citations
omitted). Importantly, “the [fact finder], which
passes upon the weight and credibility of each
witness’s testimony, is free to believe all, part, or
none of the evidence.” Commonwealth v.
Ramtahal, [] 33 A.3d 602, 607 ([Pa.] 2011).
-5-
J. S23033/20
J. S23034/20
Commonwealth v. Sebolka, 205 A.3d 329, 336-337 (Pa.Super. 2019).
In his first issue, appellant contends that the Commonwealth failed to
prove beyond a reasonable doubt that he is guilty of PIC. (Appellant’s brief
at Docket No. 9394 at 9.) In order to obtain a conviction of PIC, the
Commonwealth must prove, beyond a reasonable doubt, that the defendant
possessed an object that is an instrument of crime and that he or she intended
to use the object for a criminal purpose. In re A.V., 48 A.3d 1251, 1253
(Pa.Super. 2012), citing In re A.C., 763 A.2d 889, 890 (Pa.Super. 2000); see
also 18 Pa.C.S.A. § 907(a). “The Crimes Code defines an “instrument of
crime” as “(1) [a]nything specially made or specially adapted for criminal use
[or] (2) [a]nything used for criminal purposes and possessed by the actor
under circumstances not manifestly appropriate for lawful uses it may have.”
In re A.V., 48 A.3d at 1253, quoting 18 Pa.C.S.A. § 907. See also
Commonwealth v. Vida, 715 A.2d 1180, 1183 (Pa.Super. 1998)
(recognizing that a car could be considered an instrument of crime).
Here, appellant specifically argues that the Commonwealth failed to
introduce any evidence that the car being driven by appellant was “specially
made or specially adapted for criminal use.” (Appellant’s brief at Docket
No. 9394 at 9, quoting 18 Pa.C.S.A. § 907(c)(2).) Appellant further argues
that, “there was no basis for the conclusion that an automobile is something
‘commonly used for criminal purposes.’ Therefore, the Commonwealth failed
-6-
J. S23033/20
J. S23034/20
to prove all of the elements of [PIC] beyond a reasonable doubt.” (Appellant’s
brief at Docket No. 9394 at 12 (citation omitted).)
Appellant’s argument misses the mark.6 When viewing the evidence
presented at trial in the light most favorable to the Commonwealth, as the
verdict winner, we find that the Commonwealth met its burden in establishing
the elements of PIC beyond a reasonable doubt. Indeed, the Commonwealth’s
evidence establishes that appellant possessed an instrument of crime as
defined by the Crimes Code and that appellant intended to use the instrument
for a criminal purpose. See In re A.V., 48 A.3d at 1253-1254. Specifically,
the record reflects that appellant used his car to flee and elude Officers Visco
and Wesley after the officers pulled him over.7 We, therefore, find that
appellant acted with the requisite intent to use the car for a criminal purpose.
Accordingly, appellant’s first issue is without merit.
In his second issue, appellant contends that the Commonwealth failed
to introduce sufficient evidence to warrant a conviction of REAP as it pertains
to Officer Visco. (Appellant’s brief at Docket No. 9395 at 9.) “A person
commits [REAP,] a misdemeanor of the second degree if he recklessly engages
6The Commonwealth notes that appellant appears to base his argument on
an outdated version of the PIC statute. (Commonwealth’s brief at Docket
No. 9394 at 9-10, citing Act of July 6, 1995, P.L. 238, No. 27, § 1;
Commonwealth v. Magliocco, 883 A.2d 479, 485-486 (Pa. 2005).)
7 Appellant conceded that he was guilty of fleeing or attempting to elude an
officer. (Notes of testimony, 1/9/19 at 44-45.)
-7-
J. S23033/20
J. S23034/20
in conduct which places or may place another person in danger of death or
serious bodily injury.” 18 Pa.C.S.A. § 2705; see also Commonwealth v.
Bullock, 170 A.3d 1109, 1121 (Pa.Super. 2017), appeal denied, 184 A.3d
944 (Pa. 2018). This court has further held as follows:
The crime of REAP “is a crime of assault which requires
the ‘creation of danger.’” [Commonwealth v.
Rivera, 503 A.2d 11, 12 (Pa.Super. 1985) (en banc)]
(citation omitted). “As such, . . . there must be an
‘actual present ability to inflict harm.’” Id. (citation
omitted). In [Commonwealth v.] Trowbridge, we
explained this risk of actual danger as follows:
By requiring the creation of danger, we
think it is plain under § 2705 that the
mere apparent ability to inflict harm is not
sufficient. Danger, and not merely the
apprehension of danger, must be created.
Therefore, we think that § 2705 retains
the common law assault requirement of
actual present ability to inflict harm. See
also Commonwealth v. Goosby, [] 380
A.2d 802 ([Pa.Super.] 1977) (where
defendant pointed gun and pulled trigger,
but one live cartridge in the gun misfired,
there is sufficient evidence to convict for
recklessly endangering).
[] 395 A.2d [1337,] 1340 [(Pa.Super. 1978)]
(citations omitted).
Commonwealth v. Reynolds, 835 A.2d 720, 727-728 (Pa.Super. 2003).
Here, appellant specifically argues that the Commonwealth failed to
produce sufficient evidence establishing that appellant’s conduct placed
Officer Visco “in danger of death or serious bodily injury.”’ (Appellant’s brief
at Docket No. 9395 at 10.) As noted by appellant, the record reflects that
-8-
J. S23033/20
J. S23034/20
Officer Visco’s hand was on the car door handle when appellant sharply turned
the steering wheel to the right and drove away from the officers. (Notes of
testimony, 1/9/19 at 25-26.) Upon viewing the evidence in the light most
favorable to the Commonwealth, we find that the Commonwealth has met its
burden in this case. Indeed, as noted by the trial court:
[T]here can be no reasonable doubt that a substantial
danger of serious bodily injury was created by
[appellant’s] conduct, and but for the officers acting
as quickly as they did, serious bodily injury or death
could have easily resulted. Indeed, [appellant] clearly
could not have been sure Officer Visco was going to
release the car door or that Officer Wesley was going
to get out of the way fast enough to avoid being
struck. [Appellant] acted in conscious disregard for
what could and probably would have happened to
either officer had they not retreated as quickly as they
did.
Trial court opinion, 8/7/19 at 6-7. Accordingly, we find that appellant’s second
issue is without merit.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/20
-9-