J-S05029-15

NON-PRECEDENTIAL DECISION-SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                       Appellee        :
                                       :
           v.                          :
                                       :
ROBSON JORGE DEPAULA,                  :
                                       :
                       Appellant       :     No. 1304 WDA 2014


       Appeal from the Judgment of Sentence Entered June 24, 2014,
            In the Court of Common Pleas of Allegheny County,
            Criminal Division, at No. CP-02-CR-0001025-2014.


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED MARCH 17, 2015

     Appellant, Robson Jorge Depaula, appeals from the judgment of

sentence of two years of probation entered June 24, 2014. For the following

reasons, we affirm.

     The trial court summarized the relevant factual background of this

matter as follows:

            Corporal Christopher Robbins of the Pennsylvania State
     Police was on traffic patrol on October 6, 2013 on Route 28 near
     Etna, Pennsylvania. This area of Route 28 contained a posted
     speed limit of 45 miles per hour. At approximately 10:16 p.m.,
     he had just completed a traffic stop of another vehicle and began
     monitoring traffic with the use of a stationary radar gun. As he
     was clocking the speed of vehicles, a motorcycle driving in the
     right lane of traffic passed by Corporal Robbins[‛s] stationary
     position. Corporal Robbins clocked the speed of the motorcycle
     at 70 miles per hour. Corporal Robbins noted that the
     defendant’s motorcycle was a “high-performance” motorcycle
     engineered for high speeds. Corporal Robbins immediately pulled
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     out after the motorcycle and activated his emergency overhead
     lights.1 The lights were extremely bright and they illuminated
     the various street signs on Route 28 as Corporal Robbins’[s]
     cruiser approached them. As Corporal Robbins pulled out to
     begin chase, the defendant’s motorcycle moved to the left lane
     of traffic and accelerated. The defendant’s motorcycle pulled
     away from Corporal Robbins’[s] police cruiser. Corporal Robbins
     accelerated to speeds exceeding 120 miles per hour but he was
     still unable to catch the defendant’s motorcycle. Although traffic
     was light, the defendant’s motorcycle sped past other vehicles
     on Route 28. This Court observed the video of the chase and it
     was clear from the video that there were other vehicles on Route
     28 who were passed by both the defendant’s motorcycle and
     Corporal Robbins’[s] cruiser at very high rates of speed. Corporal
     Robbins continued his efforts to effect a traffic stop but due to
     the speed of the defendant’s motorcycle and the fact that he
     continued to encounter regular traffic, Corporal Robbins
     deactivated his overhead lights. He did, however, continue to
     proceed north on Route 28 at a high rate of speed hoping that
     the defendant would slow down believing that the pursuit had
     ended.      Corporal Robbins’[s] hunch was correct and he
     encountered the defendant approximately three miles from
     where he first attempted to conduct the traffic stop.         The
     defendant did pull over after Corporal Robbins took the
     necessary steps to conduct the traffic stop. After the defendant
     was detained, Corporal Robbins learned that the defendant
     possessed a learner’s permit to drive the motorcycle which
     prohibited him from driving at night. The registration of the
     motorcycle was also expired.
           1
              Activation of the overhead lights also activated the
           dashboard video camera that recorded relevant
           portions of the incident. That video was played at
           trial and admitted as evidence as Commonwealth’s
           Exhibit I .

Trial Court Opinion, 9/17/14, at 2–3.

     On December 17, 2013, Appellant was charged with fleeing or

attempting to elude a police officer, 75 Pa.C.S. § 3733(a), recklessly

endangering another person, 18 Pa.C.S. § 2705, driving an unregistered

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vehicle, 75 Pa.C.S. § 1301(a), Learner must be accompanied—at least 18/21

years old, 75 Pa.C.S. § 1505(b)(1), and a maximum speed limit violation, 75

Pa.C.S. § 3362(a)(3)-(25), stemming from the events that occurred on

October 6, 2013.

      After a nonjury trial on June 24, 2014, Appellant was found guilty of

fleeing or attempting to elude an officer and the unregistered vehicle and

speeding offenses. On that same date, the trial court sentenced Appellant to

two years of probation on the fleeing and eluding conviction and ordered him

to pay the costs of prosecution. Additionally, the trial court imposed a fine

of $50.00 for the speeding offense.

      Appellant filed a post-sentence motion on June 25, 2014, which the

trial court denied on July 10, 2014. Appellant filed a timely notice of appeal

on August 8, 2014.      Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant raises the following three issues for appellate review:

      I. Was the evidence insufficient to prove, beyond a reasonable
      doubt, that [Appellant] intended to flee or attempted to elude[]
      a police officer, where the evidence failed to establish that
      [Appellant] saw Corporal Robbins, and that he had notice of a
      visual and audible signal to stop?


      II. Was the evidence insufficient to prove, beyond a reasonable
      doubt, that [Appellant] committed the felony enhanced fleeing or
      eluding a police officer, where the evidence failed to prove that
      [Appellant] endangered members of the general public, and that
      the incident involved a high-speed chase?


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      III. Did the trial court abuse[] its discretion when it denied
      [Appellant’s] post-sentence motion that the verdict was against
      the weight of the evidence, where the evidence against
      [Appellant] was based upon surmise and conjecture?

Appellant’s Brief at 5.

      When confronted with an appellate challenge to the sufficiency of

evidence, we assess all of the evidence in the light most favorable to the

verdict winner to determine whether the fact-finder, either judge or jury,

could have determined that each element of the crime was established

beyond a reasonable doubt. Commonwealth v. Lewis, 45 A.3d 405, 408

(Pa. Super. 2012). We do not re-weigh evidence or substitute our judgment

for that of the fact-finder and the facts and circumstances established need

not preclude every possibility of innocence. Id. “[T]he Commonwealth may

sustain its burden by means of wholly circumstantial evidence, and ‘the trier

of fact, while passing upon the credibility of witnesses and the weight of the

evidence,   is   free   to   believe   all,    part,   or   none   of   the   evidence.’”

Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa. 2013) (quoting

Commonwealth v. Cousar, 928 A.2d 1025, 1032–1033 (Pa. 2007)). We

will disturb the fact finder’s conclusions only if the evidence is so weak and

inconclusive that no probability of fact may be drawn from that evidence.

Lewis, 45 A.3d at 408.

      Appellant first argues that the Commonwealth presented insufficient

evidence to sustain his conviction of fleeing or attempting to elude police


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because it failed to prove a willful intent to flee or elude. Appellant claims

that he did not see Corporal Robbins pursuing him and did not have notice of

a visual and audible signal to stop.

      To sustain a conviction for fleeing and eluding, the Commonwealth

must prove that a person willfully failed or refused to bring his vehicle to a

stop, or otherwise attempted to flee or elude police officers, after being

given a visual and audible signal to stop.              75 Pa.C.S. § 3733(a);

Commonwealth v. Bowen, 55 A.3d 1254, 1261 (Pa. Super. 2012). The

actor’s    willfulness   can   be   demonstrated   directly   or   circumstantially.

Commonwealth v. Bellini, 482 A.2d 997, 1000 (Pa. Super. 1984) (citation

omitted).

     The trial court rejected Appellant’s assertion that he did not have

notice of a visual or audible signal to stop his motorcycle, finding instead as

follows:

      [T]he evidence demonstrated that Corporal Robbins issued a
      visual sign to the defendant to stop his motorcycle by activating
      his overhead lights. This Court believes that [Appellant] knew
      he was speeding and was operating with an expired registration
      at a time when he was not licensed to drive. In this Court’s
      view, [Appellant] endeavored to elude Corporal Robbins to avoid
      any repercussions for his various violations of the vehicle code.

Trial Court Opinion, 9/17/14, at 6–7.

      After careful review of the record, we agree with the trial court that

the evidence presented at trial, viewed favorably to the Commonwealth, was




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sufficient to   establish that    Appellant willfully intended to       flee   from

Corporal Robbins.    The trooper testified that he was in plain sight in a

marked vehicle when his radar gun registered Appellant’s motorcycle

exceeding the speed limit.         N.T., 6/24/14, at 7.        Corporal Robbins

immediately began pursuit and, in approximately nine seconds, he activated

his overhead lights. At that point, the trooper estimated that Appellant was

200 yards ahead of him, and he observed the motorcycle “[jump] into the

left lane and [take] off at a high rate of speed.”        Id. at 8.   The trooper

followed Appellant with his lights flashing for about one minute, and closed

the gap between the vehicles to 100 yards at one point during the pursuit.

Id. at 24.

      The    video   from   the   cruiser’s   dashboard    camera     corroborates

Corporal Robbins’s testimony.     Commonwealth’s Ex. A; Defendant’s Ex. 1.

The recording reveals that when the lights from the cruiser were initially

activated, Appellant’s motorcycle was within view of the patrol car.           The

video verifies that the overhead lights illuminated the roadway and reflected

off of the road signs ahead of the motorcycle. The video also confirms that

Appellant’s motorcycle was within the trooper’s line of vision for several

seconds before Appellant accelerated out of view. Appellant acknowledged

that on the date of the incident he was unsure of his rate of speed and was




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not in compliance with the restriction on his operator’s license.         N.T.,

6/24/14, at 41-42, 44.

      We recognize that the time and distance of the instant pursuit were

brief, see e.g. Commonwealth v. Bowen, 55 A.3d at 1260 (evidence of

failing to stop when given visual and audible signals, combined with thirty-

minute high speed pursuit that crossed state lines, can establish attempt to

flee or elude); however, the brevity of the incident does not exonerate

Appellant from his deliberate behavior. Appellant’s acceleration and change

of lanes after the cruiser’s lights were activated, the video evidence that the

lights from the cruiser illuminated road signs in front of Appellant’s

motorcycle, Appellant’s increased speed of travel, and his awareness that he

was operating his motorcycle in violation of his restricted license directly

contradict Appellant’s claim that he was unaware that he was being pursued

by Corporal Robbins.     The credibility of Appellant’s representations is a

matter far removed from the purview of an appellate court given the

constricted nature of our review. Accordingly, we conclude that Appellant’s

sufficiency of the evidence challenge is unavailing.

      We turn to Appellant’s claim that 75 Pa.C.S. § 3733(a) requires both

an audible and visual signal to stop1 and that the record is devoid of any




1
  We note some inconsistency in the statute. Whereas 75 Pa.C.S. § 3733(a)
refers to one’s failure to stop after being given a visual and audible signal,

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evidence that he had audible notice of Corporal Robbins’s pursuit.         We

conclude that this argument has not been preserved for appellate review.

      First, there was no testimony from either Corporal Robbins or

Appellant regarding an audible signal, and there was no mention of such a

signal in defense counsel’s closing argument.      Next, Appellant’s Pa.R.A.P.

1925(b) statement framed the sufficiency of the evidence issue as whether

the Commonwealth failed to prove that Appellant “saw Corporal Robbins,

had notice of a visual or audible signal to stop, and thus had the requisite

intent to flee or elude an officer.”        Appellant’s 1925(b) Statement at

unnumbered 3 (emphasis added).        Finally, and understandably given the

non-specificity of Appellant’s 1925(b) statement, the trial court’s Pa.R.A.P.

1925(a) opinion does not address the presence or absence of an audible

signal.

      Pa.R.A.P. 1925(b)(4)(ii) provides that an appellant’s statement of

errors complained of on appeal must “concisely identify each ruling or error

that the appellant intends to challenge with sufficient detail to identify all

pertinent issues for the judge.”   See also Commonwealth v. Dowling,

778 A.2d 683, 687 (Pa. Super. 2001) (appellant’s concise statement must

properly specify error to be addressed on appeal). In other words, the Rule

1925(b) statement must be “specific enough for the trial court to identify


75 Pa.C.S. § 3733(b) informs that the signal given by the police officer may
be by hand, voice, emergency lights, or siren.

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and      address   the    issues    an    appellant   wishes    to   raise   on   appeal.”

Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006) (quoting

Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006)). A “[c]oncise

[s]tatement which is too vague to allow the court to identify the issues

raised on appeal is the functional equivalent of no [c]oncise [s]tatement at

all.”    Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011)

(quoting Reeves, 907 A.2d at 2). If a concise statement is too imprecise,

the court may find waiver. Hansley, 24 A.3d at 415.

         Appellant’s Rule 1925(b) statement states that the Commonwealth did

not proffer sufficient evidence to prove that Appellant had notice of a visual

or audible signal.        Because the specific issue of the requirement of the

audible signal was not presented to the trial court to give it a chance to

address the claim in its opinion, the issue has been waived.2

         Appellant next assails the sufficiency of the evidence to support the

felony grading of his fleeing and eluding conviction. A conviction for fleeing

or eluding a police officer is graded as a third-degree felony if the defendant

“endangers a law enforcement officer or member of the general public due

to      the   driver     engaging    in    a   high-speed      chase.”       75   Pa.C.S.

§ 3733(a.2)(2)(iii); In re R.C.Y., 27 A.3d 227, 230 (Pa. Super. 2011).



2
   In any event, the video of the incident, which is part of the record,
demonstrates that Corporal Robbins activated his siren when pursuing
Appellant. Commonwealth’s Ex. A; Defendant’s Ex. 1.

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      This Court has discussed the felony gradation of a fleeing or eluding

offense. In R.C.Y., 27 A.3d at 231, we affirmed application of the enhanced

penalty provision in a juvenile adjudication.     While being chased by two

police officers, the juvenile driver committed numerous Motor Vehicle Code

infractions and hit both a police car and a police officer while trying to avoid

apprehension. The question on appeal was whether the enhanced penalty

provision was correctly applied when the juvenile never travelled at a speed

greater that thirty-five miles per hour. Id. at 229.

      The R.C.Y. majority began its analysis by noting that “high speed

chase” is not defined in the statute, and it referenced the legislative history

revealing that the term was left undefined because “the courts will know

[high speed chases] when they see them.” R.C.Y., 27 A. 3d at 230 (quoting

Pa S. Jour., 2006 Reg. Sess. No. 46, 1839 (June 27, 2006)). The majority

then declined to define the term literally, concluding that the legislature:

      intended that “high-speed chase” be a term of art, having a
      practical, legal meaning that was not closely bound by a literal
      definition. The term “high-speed chase,” far from being the
      primary focus of the subsection, was intended to merely require
      a different level of danger from the run-of-the-mill dangers
      posed by merely failing to stop when signaled to do so by a
      police officer. In other words, the legislature included this term
      to indicate that the enhanced penalties applied only in cases
      where the defendant’s actions created an extraordinary danger
      to the public at large or to police officers.

Id.   Accordingly, and despite the fact that the juvenile never drove at an

excessive rate of speed, the R.C.Y. majority decided that his behavior was


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“precisely the sort of mischief the legislature intended to remedy” when it

enacted 75 Pa.C.S. § 3733(a.2)(2)(iii) and affirmed the adjudication of

delinquency. Id. at 230-231.

      In Bowen, 55 A.3d at 1261, testimony from state troopers involved in

a pursuit established that the driver refused to stop after the police visually

and audibly signaled for him to pull over.     The troopers related that the

pursuit lasted approximately thirty minutes and crossed state lines.      Their

testimony also established that the vehicle involved was driven erratically “at

speeds between 70 and 100 miles per hour, endangering other traffic on the

roads.” Id. at 1261. The Bowen Court agreed with the trial court that this

evidence supported a conviction of the aggravated level of fleeing and

eluding. Id.

      In rendering its decision on the grading enhancement in the instant

matter, the trial court specifically found that while Appellant’s conduct did

not endanger Corporal Robbins, the evidence established that Appellant did

endanger the general public during the pursuit.     N.T., 6/24/14, at 57, 61.

The court explained the reasons for its conclusion in its 1925(a) opinion:

      [Appellant] was clocked at 70 miles per hour (25 miles per hour
      over the legal limit) at the inception of the pursuit. Corporal
      Robbins testified that [Appellant] continued to accelerate after
      he activated his lights and Corporal Robbins[’s] own speed
      exceeded 120 miles per hour during the chase. For all the
      reasons set forth herein, this Court believes that a high speed
      chase occurred. As reflected in the video and in the testimony of
      Corporal Robbins, the chase proceeded in traffic and


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        [Appellant’s] motorcycle actually came within close proximity to
        other vehicles at a high rate of speed. The risk of a serious
        accident was high.       This Court believes that [Appellant’s]
        conduct rose to a level of a felony. . . .

Trial Court Opinion, 9/17/14, at 8.

        Viewing the evidence of the pursuit favorably to the Commonwealth,

there is no reason to disturb the trial court’s conclusion in this regard. While

the chase at issue here lacked some of the drama detailed in R.C.Y. and

Bowen, Appellant’s behavior was not a routine failure to stop. It involved

an accelerated getaway with lane changes and speeds estimated to be over

one hundred miles per hour. Other vehicles were travelling on the roadway

during the chase. Furthermore, Corporal Robbins was required to accelerate

to   a high      speed to   pursue    Appellant.    It    is   also   significant   that

Corporal Robbins abandoned the pursuit in part because he “didn’t want to

endanger anybody else . . . .” N.T., 6/24/14, at 16. Given these facts, the

trial court decided correctly that Appellant’s high risk conduct was a danger

to the public that justified the enhanced penalty.

        Appellant’s final argument is that the verdict was against the weight of

the evidence.       “When the challenge to the weight of the evidence is

predicated on the credibility of trial testimony, our review of the trial court’s

decision is extremely limited. Generally, unless the evidence is so unreliable

and/or contradictory as to make any verdict based thereon pure conjecture,

these    types    of   claims   are   not    cognizable    on    appellate    review.”


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Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004)

(quoting Commonwealth v. Hunter, 554 A.2d 550, 555 (Pa. Super.

1989)).    “Moreover, where the trial court has ruled on the weight claim

below, an appellate court’s role is not to consider the underlying question of

whether the verdict is against the weight of the evidence.” Commonwealth

v. Champney, 832 A.2d 403, 408 (Pa. 2003). “Rather, appellate review is

limited to whether the trial court palpably abused its discretion in ruling on

the weight claim.”   Id. (citing Commonwealth v. Tharp, 830 A.2d 519,

528 (Pa. Super. 2003)) (citations omitted).

      The trial court dismissed Appellant’s weight of the evidence claim as

follows:

             As a matter of law, [Appellant’s] claim on this appeal that
      the verdict was against the weight of the evidence is a
      concession that the evidence was sufficient to convict him.
      Essentially, [Appellant] claims that the testimony of Corporal
      Robbins was not credible and this Court should have credited the
      testimony of [Appellant]. The trial evidence presented by the
      Commonwealth has been recounted herein and was credible,
      competent and reliable. Credibility attacks do not warrant any
      reconsideration of the weight of the evidence in this case. The
      trial evidence supported the verdict. This Court has reviewed
      the trial record and believes that the verdict does not shock any
      rational sense of justice and, therefore, the verdict was not
      against the weight of the evidence.

Trial Court Opinion, 9/17/14, at 10.

     Appellant offers four reasons why the judge’s verdict was so unreliable

as to shock the conscience: the trial court did not consider the short time




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interval when Appellant’s motorcycle was in Corporal Robbins’s view; the

mathematical improbability of the trooper’s assessment of the speed of

Appellant’s motorcycle; the complete dashboard video credited his testimony

and discredited Corporal Robbins’s testimony; and that he stopped without

incident when Corporal Robbins conducted the second induced stop.          In

essence, Appellant’s weight of the evidence argument is a combination of a

re-statement of his sufficiency of the evidence challenge and an attack on

the credibility of the Commonwealth’s witness.

        None of Appellant’s allegations presents a meritorious affront to the

weight of the evidence. Neither the short time that the motorcycle was in

view in the video nor Appellant’s behavior attendant to the second stop

render the verdict shocking. Additionally, the trial court’s choice to accept

Corporal Robbins’s version of the speed of the pursuit and its assessment of

the video evidence were purely within its discretion and will not be disturbed

on appeal. Clearly, the verdict is supported by evidence of record and does

not in any way shock one’s sense of justice. Accordingly, the trial court did

not abuse its discretion, and Appellant’s weight of the evidence claim must

fail.

        Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2015




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