Com. v. Shroyer, L.

J-S36043-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY W. SHROYER :
:
Appellant : No. 18 WDA 2020
Appeal from the Judgment of Sentence Entered December 9, 2019
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000628-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY WAYNE SHROYER :
:
: No. 19 WDA 2020
Appeal from the Judgment of Sentence Entered December 5, 2019
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000620-2017
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 19, 2020
Larry Wayne Shroyer seeks review of two judgments of sentence
entered against him by the Court of Common Pleas of McKean County (trial
court) on the grounds of insufficient evidence. After a jury trial, he was
convicted of numerous drug related offenses, including the two counts now at
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* Retired Senior Judge assigned to the Superior Court.
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issue: flight to avoid apprehension (18 Pa.C.S. § 5126) and reckless
endangerment (18 Pa.C.S. § 2705).1 He was sentenced to an aggregate
prison term of 53 to 106 months. As we find that the evidence was legally
sufficient,2 the judgments of sentence are affirmed.
I.
This case stems from a fatal drug overdose by George Duke, Jr. (Duke)
in 2015. Shortly after his death, the Commonwealth linked the substances
found in Duke’s system to narcotics distributed by Shroyer.
Officer Christopher Lucco testified that he spoke with Shroyer on the
day of Duke’s death. According to the officer, Shroyer said that Duke was
friends with his own son and that he had gone to check on Duke after hearing
that police vehicles were parked at his home. Despite telling Officer Lucco
that he was “trying to keep him clean,” Shroyer had admitted to one of his
associates, Kyle Dweyer, that he had sold drugs to Duke shortly before his
death. See Trial Transcript, 10/31/2019, at p. 45; Trial Transcript,
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1 Shroyer was also convicted of possession with intent to distribute heroin;
possession with intent to distribute a designer drug; conspiracy to distribute
a designer drug; and possession of a controlled substance. These convictions
are not at issue here. The two related cases at the above-captioned docket
numbers have been consolidated into this one appeal.
2 The facts discussed in this memorandum are taken from the record and the
trial court’s 1925(a) opinion.
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10/29/2019, at p. 160. Shroyer was also heard telling his family members
around that time to keep those drug sales to Duke a secret.
Further, after Duke’s overdose, Shroyer admitted to several individuals
that he was aware that the narcotics he was selling were of a very high
potency. In fact, he was selling high-grade heroin, mixed with the opioid
hydrochloride. Shroyer and his associates kept an inventory of especially
potent drugs to meet their clients’ demand for it. See Trial Transcript,
10/29/2019, at p. 203. At trial, the jury heard Shroyer’s former cellmate
recount that Shroyer had bragged about selling the “good stuff” to Duke. Id.
at p. 251.
Several witnesses confirmed at trial that at the time of Duke’s death,
the heroin/hydrochloride mixture could be highly potent and that its potency
varied unpredictably. It was also clear from the evidence that Shroyer knew
Duke had severe addiction problems, having been previously committed to
rehabilitation facilities.
Officer Lucco contacted Shroyer on November 16, 2017, to notify him
that there was a warrant out for his arrest in connection with Duke’s death.
Shroyer was asked to turn himself in and he indicated that he would do so.
When Shroyer did not appear, Officer Lucco tried to contact Shroyer at his
residence in Foster Township, but did not find him there; nor could Shroyer
be reached by phone or through local family members.
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Shroyer was not found until November 21, 2017, at a friend’s home in
McKean County. Once police arrived there, Shroyer initially did not cooperate,
refusing to come out after police had requested his surrender. Moments later,
however, once the police had surrounded the home, Shroyer came out with
his hands above his head. Officer Lucco then arrested Shroyer, at which point
he said, “Jeez, [Officer Lucco], couldn't you have given me a couple days?”
Trial Transcript, 10/31/2019, at p. 77.
After Shroyer was tried and convicted, he filed post-sentence motions
disputing the sufficiency of the evidence as to the counts of flight to avoid
apprehension and reckless endangerment. The trial court denied all of
Shroyer’s post-sentence claims.
In its 1925(a) opinion, the trial court summarized the evidence of flight
to avoid apprehension as follows:
This evidence, taken together, was sufficient to demonstrate that:
1) the Defendant was aware that the police were investigating the
death of George Duke, Jr.; 2) he knew was the subject of that
investigation; 3) he knew charges had been filed against him and
the police were looking for him; [4] he had been asked to go to
the police station and indicated that he would do so in a few hours;
[5] he never went to the police station and took efforts to conceal
his whereabouts. Specifically, he avoided his residence, shut
down his phone and went to a different location; 6) he refused to
leave the home where he was apprehended and, at one point,
attempted to run. He avoided being apprehended for 5 days. His
intent to avoid apprehension was made clear when he told Chief
Lucco when he was apprehended: “Jeez, Christ, couldn’t you have
given me a couple days?” Therefore, there is sufficient evidence
to demonstrate that he had the intent to avoid being
apprehended; and the Defendant is not entitled to relief on appeal.
Trial Court Opinion, 2/10/2020, at 2-6.
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The trial court did not address Shroyer’s post-trial motion challenging
the sufficiency of the evidence as to the reckless endangerment count.
However, Shroyer had raised this issue in a 1925(b) statement, preserving it
for appeal.3
Shroyer now presents the following two issues in his appellate brief:
I. Whether the evidence sufficiently sustains the jury’s conviction
for the offense of Flight to Avoid Apprehension where the only
evidence presented was that Defendant was asked to come to the
Bradford City Police Department over the phone, that Defendant
did not go to the Bradford City Police Department, and that
Defendant was arrested on November 21, 2017 in McKean
County?
II. Whether the evidence sufficiently sustains the jury’s conviction
for the offense of Recklessly Endangering Another Person where
there was no evidence presented that Defendant was aware that
the substance he was found to have given to the Decedent
contained Butyryl Fentanyl or that Defendant was otherwise aware
of the “potency” of the substance he gave to the victim?
Appellant’s Brief, at 9 (suggested answers omitted).
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3 This Court may consider this issue on appeal even though the trial judge did
not discuss it in its Rule 1925(a) opinion. See Commonwealth v. Hood, 872
A.2d 175, 178 (Pa. Super. 2005) (noting that while the purpose of a Rule
1925(a) opinion is “to provide the appellate court with a statement of reasons
for the order . . . to permit effective and meaningful review,” failure to file a
Rule 1925(a) opinion does not necessarily preclude our consideration of an
appellate issue’s merits). Because the sufficiency of the evidence supporting
the reckless endangerment conviction may be determined from review of the
record, it is unnecessary to remand the case to the trial court for further
elaboration. See id.
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II.
A.
Shroyer argues that the evidence was insufficient to sustain his
convictions for flight to avoid apprehension and reckless endangerment.
Our inquiry for such claims is limited to assessing whether the fact-
finder heard evidence sufficient to satisfy each element of the subject offenses
beyond a reasonable doubt. See Commonwealth v. Sunealitis, 153 A.3d
414, 419 (Pa. Super. 2016). In that review, the evidence must be construed
in a light most favorable to the prevailing party, and any doubts regarding
guilt are to be resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law, the verdict cannot stand. Id.
A conviction may be sustained where the elements are proven
circumstantially, and credibility is an issue resolved by the fact-finder, who
may believe all, part or none of a witness’s testimony. See Commonwealth
v. Strafford, 194 A.3d 168, 174 (Pa. Super. 2018). “Because evidentiary
sufficiency is a matter of law, our standard of review is de novo and our scope
of review is plenary.” Commonwealth v. Brooker, 103 A.3d 325, 330 (Pa.
Super. 2014).
B.
First, we consider whether the Commonwealth presented evidence
satisfying each element of the offense of flight to avoid apprehension. A
person commits this crime if he has been charged with a crime and “willfully
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conceals himself or moves or travels within or outside this Commonwealth
with the intent to avoid apprehension, trial or punishment.” 18 Pa.C.S.
§ 5126(a).
Shroyer argues that the evidence was lacking because nothing in the
record shows that he attempted to conceal himself or avoid detection after
police informed him of new criminal charges. However, based on our review
of the record, the Commonwealth produced sufficient evidence to sustain
Shroyer’s conviction as to each element of this offense, including the intent to
elude.
The testimony of numerous witnesses established that Shroyer knew he
was charged with crimes related to Duke’s fatal overdose the day it occurred.
Shroyer advised his friends and family to keep his drug sales to Duke a secret.
Five days after learning that the police had put out a warrant for his arrest
and agreeing to turn himself in, Shroyer was located at a friend’s home,
appearing to be hiding or at least reluctant to be taken into custody. His
comments to police suggested that Shroyer had no intention of turning himself
in as he had agreed to do days earlier.
On these facts, the jury could infer that Shroyer intended to elude the
police. See Commonwealth v. Steffy, 36 A.3d 1109, 1112 (Pa. Super.
2012) (sustaining conviction where defendant fled from police after becoming
aware of outstanding arrest warrant). Accordingly, the trial court did not err
in denying Shroyer’s sufficiency claim on that count.
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C.
We now consider the sufficiency of the evidence to support Shroyer’s
reckless endangerment conviction.
A person commits this offense if he “recklessly engages in conduct which
places or may place another person in danger of death or serious bodily
injury.” 18 Pa.C.S. § 2705. When committing this offense, the perpetrator
must have a “conscious disregard of a known risk of death or great bodily
injury[.]” Commonwealth v. Klein, 795 A.2d 424, 428 (Pa Super. 2002)
(citation omitted). “Reckless” conduct is defined in the Crimes Code as a
disregard for a risk “of such nature and degree that, considering the nature
and intent of the actor’s conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct that a
reasonable person would observe in the actor’s situation.” 18 Pa.C.S.
§ 302(b)(3).
We have held that the sale and use of heroin is so inherently dangerous
that it may constitute “reckless” conduct. See Commonwealth v.
Kakhankham, 132 A.3d 986, 995-96 (Pa. Super. 2015) (holding that drug
seller could be liable for customer’s fatal overdose on count of reckless
endangerment); see also Minn. Fire and Cas. Co. v. Greenfield, 805 A.2d
622, 629 (Pa. Super. 2002) (describing heroin’s potential for abuse and the
fact that using it is “inherently dangerous” and akin to a game of “Russian
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roulette.”); Commonwealth v. Carr, 227 A.3d 11, 15-17 (Pa. Super. 2020)
(same).
Here, there was ample evidence that Shroyer knew he was selling
opioids to Duke which were potentially of very high potency, exposing Duke
to severe physical harm. He knew that Duke suffered from addiction and that
he was entered into rehabilitation facilities on multiple occasions. Duke died
soon after ingesting the drugs Shroyer had sold to him. All of this was
evidence from which the jury could conclude that Shroyer knew of but
disregarded the risks that the drugs posed to Duke. Thus, the evidence was
sufficient and the trial court did not err in denying Shroyer’s post-sentence
motion as to this count.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2020
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