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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________


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


____________________________________________


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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