J-S84013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
MAURICE DERICK EDWARDS                   :
                                         :
                    Appellant            :   No. 908 MDA 2017

           Appeal from the Judgment of Sentence May 18, 2017
  In the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0001022-2014


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.:                       FILED FEBRUARY 23, 2018

      Appellant, Maurice Derick Edwards, appeals from the judgment of

sentence entered on May 18, 2017, in the York County Court of Common

Pleas. We affirm.

      The trial court set forth the facts and procedural history of this matter

as follows:

             On January 10, 2014 around 9:00 p.m., Officer Benjamin
      Smith and Officer Vogel were on patrol in the area of South
      George Street and Princess Street in York in a marked police car.
      The intersection was well lit by street lights and other business
      lights surrounding.

            While they were yielding to northbound traffic, Officer
      Smith saw a vehicle without its headlights on at night on the
      east side of the intersection on Princess Street. As the officers
      turned onto Princess Street toward that vehicle, the officer
      looked at the driver, who was within four to five feet of him.
      Officer Smith made eye contact with the driver and described the
      look at the driver as extremely well, noting that Officer Smith
      was not driving faster than five, ten miles an hour. Then, Officer
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     Smith turned around to pull the driver over for the equipment
     violation. By the time the officers caught up with the vehicle, the
     vehicle still did not have its headlights on, and, so, Officer Vogel
     ran the information for the vehicle. When the vehicle turned onto
     Jackson Street, Officer Smith turned on the red and blue
     emergency lights, and the police car chirped. The vehicle did not
     pull over and continued east on East Jackson, without stopping
     at several safe, well-lit spots.

           Then, Officer Smith turned on the sirens. The vehicle
     turned on a couple turn signals and turned right onto McKenzie
     Street from Jackson Street. While the driver’s speed started to
     increase after the turn onto McKenzie Street, the speeds were
     not that excessive. However, the vehicle had gotten a lead on
     the officers. Because of weather and time, the officer’s
     supervisor then ordered the officers to terminate the pursuit,
     and they stopped on McKenzie Street. Officer Smith observed
     the vehicle increase speed, run through a stop sign and turn
     onto another road, where they lost sight of the vehicle.

            The police car was equipped with a dashboard camera
     which automatically starts recording thirty seconds before an
     officer turns on the emergency lights. The recording of the
     pursuit with the vehicle was played during trial.

           During the pursuit, Officer Vogel had run the license plate
     of the vehicle, and found out that the registered owner was Lori
     (or Laura) Keys. Then, Officer Vogel ran a MISSILE warrant
     check on Keys’ address and discovered that [Appellant] lived
     there and had an outstanding warrant. Officer Vogel ran a
     warrant check during that time and pulled up Appellant’s JNet,
     driver’s license, photos, based on that warrant information. At
     the time, Officer Smith identified the man in the photo from the
     JNet, drivers license as the driver of the vehicle. Officer Smith
     was one hundred percent certain about that identification that
     night and during trial. The officer identified the photo as
     [Appellant].

           An officer was sent out to the registered vehicle owner’s
     address, but [Appellant] was not there. Officer Smith noted that
     he did not feel the need to follow up with Laura Keys since then.

          During the trial, Appellant testified that on January 10,
     2014, he was at a bar from around 8:00 p.m. until around 11:30

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      p.m. with another woman. Appellant testified that Laura Keys is
      his mother and that he uses Laura Keys’ address for mail.
      However, he stated during trial that [he] did not live there at the
      time or stay there that evening.

             Appellant testified that at the time, his mother was in a
      relationship with Derick Speller who, like [Appellant], was a
      dark-skinned man, with a beard, nice hair, and good-trim hair.
      Speller was about two years older than the Appellant, and
      Speller’s picture was introduced at trial. Appellant stated that on
      that date, he was not aware of any arrest warrant, though he did
      find out about a ticket warrant later on.

             The Appellant’s mother, Laura Keys, also testified during
      trial. She testified that on that date and time, Derick Speller was
      driving the vehicle, and she was a passenger in the car. She
      stated the following:

            a police vehicle turned his lights on . . . . She kind of
            assumed they were in the officer’s way. She wasn’t
            quite sure, so they kind of tried to stop, tried to wait
            to see if someone was getting out, but felt like they
            were in the way, so what she instructed the driver to
            do because . . . it was not clear whether they were
            being pulled over or not, was to turn onto this one
            side street. If the vehicle would have turned, she
            would have asked the driver to stop. The officer
            proceeded to just go by and there was no speeding,
            no fleeing, no eluding.

      [N.T., 5/18/17, at 42]

            When an officer arrived at her home that night, she told
      him that Appellant was not driving the vehicle. Several years
      later, Keys wrote a statement and gave it to the Public
      Defenders’ Office.

Trial Court Opinion, 7/14/17, 2-7 (internal quotation marks and footnotes

omitted).
      Appellant was charged with fleeing or attempting to elude police

officers, careless driving, duties at stop sign, and failure to display lighted



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lamps.1    Following a nonjury trial, the trial court found Appellant guilty of

fleeing or attempting to elude police officers, duties at stop sign, and the

headlamp violation.       N.T., 5/18/17, at 62.       The trial court found Appellant

not guilty of careless driving.       Id.      On the fleeing or attempting to elude

count, the trial court sentenced Appellant to a term of sixty days to twenty-

two months of incarceration.         The trial court imposed $25.00 fines on the

convictions for duties at stop sign and the headlamp violation. This timely

appeal followed.       Both the trial court and Appellant have complied with

Pa.R.A.P. 1925.

        On appeal, Appellant raises the following issue for this Court’s

consideration:

        Whether the Commonwealth[] presented sufficient evidence at
        trial to sustain the trial court’s verdict finding [Appellant] guilty
        of Fleeing or Attempting to Elude a Police Officer, Duties at Stop
        Sign, and Period For Requiring Lighted Lamps, specifically
        whether the police officer’s momentary and fleeting glance at the
        eyes of the vehicle driver was sufficient to identify the Appellant
        as the driver, despite the testimony from the Appellant’s mother
        that her then-boyfriend and not the Appellant was driving the
        vehicle that evening?

Appellant’s Brief at 3 (footnotes omitted).

        In 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
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1   75 Pa.C.S. §§ 3733(a), 3714(a), 3323(b), and 4302(a)(1), respectively.




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verdict winner, were sufficient to prove every element of the offense beyond

a reasonable doubt.     Commonwealth v. Diamond, 83 A.3d 119 (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,   525-526   (Pa.   Super.   2016)    (quoting

Commonwealth v. Robertson–Dewar, 829 A.2d 1207, 1211 (Pa. Super.

2003)). It is within the province of the fact-finder to determine the weight

to be accorded to each witness’s testimony and to believe all, part, or none

of the evidence. Commonwealth v. Tejada, 107 A.3d 788, 792-793 (Pa.

Super. 2015). The Commonwealth may sustain its burden of proving every

element of the     crime     by   means   of wholly   circumstantial   evidence.

Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa. Super. 2016).

Moreover, 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 (Pa. Super. 2015).

      Appellant does not argue that the Commonwealth failed to establish

the elements of fleeing or attempting to elude police officers, duties at a

stop sign, and failure to display lighted lamps. The entirety of Appellant’s

argument focuses only on Officer Smith’s identification of Appellant as the

driver. Appellant’s Brief at 6-11.

      This Court has recognized that:

      [e]vidence of identification need not be positive and certain to
      sustain a conviction. Although common items of clothing and

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      general physical characteristics are usually insufficient to support
      a conviction, such evidence can be used as other circumstances
      to establish the identity of a perpetrator. Out-of-court
      identifications are relevant to our review of sufficiency of the
      evidence claims, particularly when they are given without
      hesitation shortly after the crime while memories were fresh.
      Given additional evidentiary circumstances, any indefiniteness
      and uncertainty in the identification testimony goes to its weight.

Commonwealth v. Ovalles, 144 A.3d 957, 969-970 (Pa. Super. 2016)

(quoting Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en

banc)) (internal quotation marks and citations omitted).           Moreover, “[a]

challenge to the weight of the evidence is distinct from a challenge to the

sufficiency   of   the   evidence   in   that   the   former   concedes   that   the

Commonwealth has produced sufficient evidence of each element of the

crime, but questions which evidence is to be believed.” Commonwealth v.

Charlton, 902 A.2d 554, 561 (Pa. Super. 2006).

      Appellant asserts that the Commonwealth’s evidence failed to prove

that Appellant was the driver of the vehicle.             Appellant’s Brief at 9.

Specifically, Appellant avers that because Officer Smith “only caught a

fleeting glimpse at the driver,” the Commonwealth failed to prove that

Appellant was the driver beyond a reasonable doubt. Appellant’s Brief at 9.

In support of his argument, Appellant points to his statement that he was

not in his mother’s car that night, and his mother’s testimony that her then-

boyfriend, Derick Speller, was driving the car at the time of the infractions

and pursuit. Id. at 8-9. After review, we are constrained to conclude that

Appellant’s claim of error is directed entirely to the credibility of the

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testimony presented at trial, and as such, it is a challenge to the weight, not

the sufficiency, of the evidence. Commonwealth v. Palo, 24 A.3d 1050,

1055 (Pa. Super. 2011).2

       The record reveals, however, that Appellant failed to preserve this

issue. Appellant was required to raise before the trial court any challenge to

the weight of the evidence in either an oral or written motion pursuant to

Pa.R.Crim.P. 607.        Accordingly, Appellant has waived this claim.       See

Commonwealth v. Lopez, 57 A.3d 74, 80-81 (Pa. Super. 2012) (holding

that, pursuant to Pa.R.Crim.P. 607, a challenge to the weight of the evidence

must be raised with the trial judge or it will be deemed waived).

       Because Appellant has waived his sole issue on appeal, he is not

entitled to appellate relief. Accordingly, we affirm Appellant’s judgment of

sentence.3

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2 While the trial court opinion addressed Appellant’s claim of error based on
the sufficiency of the evidence, because Appellant did not properly present
the trial court a challenge to the weight of the evidence, we may affirm the
decision of a trial court on any correct basis. See Commonwealth v.
Wilcox, 174 A.3d 670, 674 n.4 (Pa. Super. 2017) (explaining that the
Superior Court is not bound by the rationale of the trial court, and we may
affirm the trial court’s order on any basis) (citation omitted).

3  Assuming, for the sake of argument, that Appellant had preserved his
weight claim, he would be entitled to no relief. “The weight of the evidence
is exclusively for the finder of fact, which is free to believe all, part, or none
of the evidence, and to assess the credibility of the witnesses.... An
appellate court cannot substitute its judgment for that of the jury on issues
of credibility.” Lopez, 57 A.3d at 80-81 (internal citations omitted). Herein,
the trial court found Officer Smith’s testimony more credible than that of
(Footnote Continued Next Page)


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      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2018




(Footnote Continued) _______________________

Appellant or Appellant’s mother. Trial Court Opinion, 7/14/17, at 8-9.
Officer Smith testified he was “one hundred percent” certain Appellant was
operating the vehicle. N.T., 5/18/17, at 22. Because we may not disturb
the trial court’s credibility determinations, Appellant’s challenge to the
weight of the evidence, if preserved, would have failed.



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