J-S33039-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   Appellee              :
                                         :
          v.                             :
                                         :
PATRICK JOSEPH VAUGHN,                   :
                                         :
                   Appellant             :     No. 1828 MDA 2016

              Appeal from the Judgment of Sentence August 18, 2016
                 in the Court of Common Pleas of Adams County
               Criminal Division at No(s): CP-01-CR-0000002-2016

BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED JULY 07, 2017

      Patrick Joseph Vaughn (Appellant) appeals from the judgment of

sentence entered August 18, 2016, after he was found guilty of fleeing or

attempting to elude a police officer, driving under the influence (DUI), and

driving with a suspended license. We affirm.

      The trial court summarized the pertinent factual and procedural history

as follows.

            On December 13, 2015, at approximately 2 a.m.,
      Patrolman Eiker of the Cumberland Township Police Department
      was on patrol. He was in full uniform and a marked police
      vehicle. Patrolman Eiker was traveling northbound on Biglerville
      Road when he observed a “grayish color, silverish color Ford
      F150” pull out from North Avenue on to Biglerville Road right in
      front of the vehicle Patrolman Eiker was behind.1 As the truck
      traveled northbound, Patrolman Eiker observed the truck cross
      over the white fog line numerous times.




* Retired Senior Judge assigned to the Superior Court
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          ______
          1
            The vehicle Patrolman Eiker was following needed
          to use its brakes to avoid an accident with
          Appellant’s truck.

            Patrolman Eiker testified he activated his emergency lights
     before Meadow Drive, right around the Misty Ridge development.
     Appellant did not pull over but continued traveling northbound.
     Patrolman Eiker testified to the ten locations with parking areas
     and/or lighting that Appellant and Patrolman Eiker passed after
     he activated his emergency lights but prior to Appellant[’s]
     pulling over. Patrolman Eiker activated his emergency sirens3
     somewhere between Capital Tristate and Dr. Samuel’s Office and
     Church of the Brethren and Myers Electric. Again, Appellant
     continued driving. At some point Appellant turned on his right
     turn signal appearing, according to Patrolman Eiker, as if he was
     going to make a turn or pull over; however, he continued
     driving. After Appellant passed Road Rangers Towing he turned
     into a private driveway/lane. Appellant traveled approximately
     1-1.2 miles from the time Patrolman Eiker activated his
     emergency lights until he came to a stop in the private
     driveway/lane. Once in the private driveway/lane, [later
     identified as the driveway of Appellant’s cousin,] Appellant
     traveled about 400 feet before he came to a stop.
            ______
            3
              Patrolman Eiker alternated siren levels in an effort
            to get Appellant’s attention.

           Patrolman Eiker testified the driveway/lane was not well lit
     and the house sat about a half mile off the roadway. He also
     saw a female sitting along the tree line on the property. When
     Appellant stepped out of the vehicle Patrolman Eiker ordered him
     to get down on the ground; Appellant ultimately complied.
     Patrolman Eiker then handcuffed Appellant and brought him to
     his police vehicle. The female approached Appellant, smacked
     him in the face, and told him he was going to jail.

            He placed Appellant in the back of his police vehicle.
     Officer Goodling, Patrolman Eiker’s backup, arrived on the scene
     and was told to place the female in custody. While in the back of
     Patrolman Eiker’s police vehicle, Appellant kicked at the doors,
     head butted the window of the cage, yelled, screamed and acted
     belligerently.



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                                      ***

              A jury trial in the above captioned matter was held before
        [the trial court] on June 10, 2016. The jury convicted Appellant
        of count 1, fleeing or attempting to elude a police officer, graded
        as a felony of the third degree and count 2, driving under the
        influence of alcohol-general impairment, graded as a
        misdemeanor of the first degree.         [The trial court] found
        Appellant guilty of the summary charge of driving under
        suspension, in violation of 75 Pa.C.S.[] § 1543(b)(1.1)(i).

               On August 18, 2016, [the trial court] sentenced Appellant
        on the fleeing and eluding charge to not less than 12 months nor
        more than 36 months in a state correctional institution, not less
        than 9 months nor more than 24 months in a state correctional
        institution for the DUI charge, and 90 days confinement in a
        state correctional institution on the driving under suspension
        charge. All sentences ran consecutive[ly].

              On August 26, 2016, Appellant filed a post-sentence
        motion challenging both the weight and legal sufficiency of the
        evidence. [The trial court] denied Appellant’s post-sentence
        motion on October 25, 2016. This appeal followed.[1]

Trial Court Opinion, 11/29/2016, at 1-3 (some footnotes omitted).

        On appeal, Appellant raises claims challenging the weight and

sufficiency of the evidence to sustain his conviction for fleeing or attempting

to elude a police officer. Appellant’s Brief at 10.

        In reviewing Appellant’s sufficiency claim, we are mindful of the

following.

        [O]ur standard of review of sufficiency claims requires that 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

1
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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      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.

Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)

(internal citations and quotations omitted). The Commonwealth may sustain

its burden by means of wholly circumstantial evidence, and we must

evaluate the entire trial record and consider all evidence received against the

defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).

      A person commits the crime of fleeing or attempting to elude a police

officer when, while driving a motor vehicle, he “willfully fails or refuses to

bring his vehicle to a stop, or who otherwise flees or attempts to elude a

pursuing police officer, when given a visual and audible signal to bring the

vehicle to a stop[.]” 75 Pa.C.S. § 3733(a).

      Appellant contends the evidence was insufficient to sustain his

conviction because the Commonwealth failed to prove that he “willfully”

failed to stop.2 Appellant’s Brief at 13. Furthermore, Appellant avers

      that because he did not accelerate his speed, maintained around
      the speed limit, did not make any evasive maneuvers, and drove
      only a mile on a road he could not have pulled over to the side
      and been off the roadway, before he came to a stop on his own,

2
  As correctly noted by the trial court, and set forth in more detail infra,
whether Appellant was able to prove at trial that he had a good faith concern
for his personal safety, which precluded him from pulling over, thus proving
that he did not “willfully” fail to stop, goes to the weight, not sufficiency of
the evidence. See Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa.
Super. 2012).


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      makes it clear that there was not sufficient evidence presented
      by the Commonwealth to convict Appellant of fleeing or
      attempting to elude a police officer.

Id. at 13.

      The trial court responded to Appellant’s claim as follows.

             A review of the evidence, in the light most favorable to the
      Commonwealth as verdict winner, shows Appellant’s sufficiency
      of the evidence claim is meritless.           The Commonwealth
      established Appellant was the driver of the motor vehicle.
      Patrolman Eiker was in full uniform and a marked police vehicle.
      Patrolman Eiker provided Appellant with a visual signal to pull
      over. [Patrolman Eiker] testified he activated his emergency
      lights before reaching Meadow Drive. Interestingly, the vehicle
      immediately in front of Patrolman Eiker safely pulled over, but
      Appellant continued driving.      Patrolman Eiker also provided
      Appellant with audio signals (siren) to pull over, even alternating
      between two to three levels of sound to get Appellant’s
      attention. Again, Appellant did not stop but continued driving.
      Appellant and Patrolman Eiker passed a total of ten locations
      that contained either a parking lot, a parking area, and/or lights
      where Appellant could have safely stopped. Further, according
      to testimony developed at trial, Appellant traveled anywhere
      between 1-1.2 miles from the point Patrolman Eiker turned on
      his emergency lights to when Appellant ultimately pulled over.
      Moreover, Appellant even concedes he did not stop after noticing
      the officer’s signal.

             At trial, Appellant argued the affirmative defense of a good
      faith concern for his personal safety claiming there was no safe
      place to pull over. As in [Commonwealth v. Bowen] discussed
      [supra], the issue regarding Appellant’s affirmative defense
      actually goes to the weight of the evidence and will be dealt with
      in more detail below.         In summation, the Commonwealth
      presented sufficient evidence to establish Appellant was driving a
      motor vehicle and that he willfully failed to bring his vehicle
      immediately to a stop after being given visual and audio signals
      to stop. Therefore, Appellant’s legal sufficiency of the evidence
      claim fails.

Trial Court Opinion, 9/26/2016, at 10-12 (footnotes omitted).




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      We agree with the trial court’s conclusions. Here, despite Appellant’s

protestations to the contrary, the statute does not mandate that there be

evidence that Appellant was driving recklessly, at a high rate of speed, or

using “evasive maneuvers” to elude police in order to be found guilty of the

aforementioned crime. In this case, Patrolman Eiker testified and Appellant

concedes, that the patrolman gave “sufficient visual and audible signal[s]” to

alert Appellant that he was being pulled over. N.T., 6/10/2016, at 34-42;

Appellant’s Brief at 11. Patrolman Eiker further stated that Appellant passed

ten locations where he could have pulled over safely but did not do so. N.T.,

6/10/2016, at 35-44.3 Based on the foregoing, the testimony, if believed by

the fact-finder, was sufficient to sustain Appellant’s conviction.4 Appellant’s

sufficiency challenge fails.

      Next, we begin our review of Appellant’s weight-of-the-evidence

argument by setting forth our standard of review.

      The decision of whether to grant a new trial on the basis of a
      challenge to the weight of the evidence is necessarily committed
      to the sound discretion of the trial court due to the court’s
      observation of the witnesses and the evidence. A trial court
      should award a new trial on this ground only when the verdict is
      so contrary to the evidence as to shock one’s sense of justice. …

3
 Notably, Patrolman Eiker testified that the vehicle directly behind Appellant
was able to safely pull over when Patrolman Eiker initiated his lights. N.T.,
6/10/2016, at 31.
4
  Furthermore, while Appellant disputes the patrolman’s testimony that he
was able to pull over safely, as stated in more detail infra, we remind
Appellant that “[i]ssues of credibility are properly left to the trier of fact for
resolution, and the finder of fact is free to believe all, part, or none of the
evidence.” Commonwealth v. Chambers, 599 A.2d 630, 642 (Pa. 1991).


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      Our review on appeal is limited to determining whether the trial
      court abused its discretion in denying the motion for a new trial
      on this ground.

Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations

omitted). “Not merely an error in judgment, an abuse of discretion occurs

when the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,

as shown by the evidence on record.” Commonwealth v. Handfield, 34

A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29

A.3d 3, 6 (Pa. Super. 2011)).

      In support of his claim, Appellant correctly identifies that 75 Pa.C.S. §

3733(d) delineates defenses that may be asserted by a defendant charged

with fleeing or attempt to elude a police officer.

      (1)   It is a defense to a prosecution under this section that the
            pursuing police officer’s vehicle was not clearly identifiable
            by its markings or, if unmarked, was not occupied by a
            police officer who was in uniform and displaying a badge or
            other sign of authority.

      (2)   It is a defense to prosecution under this section if the
            defendant can show by a preponderance of the evidence
            that the failure to stop immediately for a police officer’s
            vehicle was based upon a good faith concern for personal
            safety. In determining whether the defendant has met this
            burden, the court may consider the following factors:

               (i)       The time and location of the event.
               (ii)      The type of police vehicle used by the police
                         officer.
               (iii)     The defendant’s conduct while being followed
                         by the police officer.
               (iv)      Whether the defendant stopped at the first
                         available reasonably lighted or populated area.


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               (v)       Any other factor considered relevant by the
                         court.


      Appellant contends that the conduct exhibited when he failed to pull

over showed that “he had a reasonable concern for his personal safety in not

immediately pulling over.”    Appellant’s Brief at 15. As evidence, Appellant

avers Patrolman Eiker testified that “‘a little bit’ of [Appellant’s] truck ‘would

still be in the lane’” of traffic if Appellant decided to pull over on the side of

the road he was travelling.     Id. at 16.    Appellant acknowledges that the

testimony supports the Commonwealth’s position that Appellant failed to

stop “at the first available reasonably lighted or populated area[,]” 75

Pa.C.S. § 3733(d)(2)(iv). However, Appellant asserts that this position

      fails to take into account split decisions and basic human error.
      Appellant was driving around the speed limit (40-45 mph), at
      night, with no lighting on the roadway, with an officer on his tail
      shining his lights into Appellant’s rear view mirror.           As
      mentioned above, a reasonable person’s first instinct is to pull to
      the side of the road, but Appellant had already reasonably
      determined that was not safe. … [] Appellant in a stressful
      situation with poor sight lines because of the lighting decided to
      drive a short distance further to a place he was familiar with and
      could safely pull over. Under the totality of the circumstances
      that was a reasonable decision and does not contradict his
      reasonable concern for his personal safety in not stopping
      earlier.

Appellant’s Brief at 16-17 (citations omitted).

      In its 1925(a) opinion, the trial court offered the following:

      T[he trial c]ourt does not find the jury’s verdict [shocks] one’s
      sense of justice. Based on the evidence [], the Commonwealth
      presented sufficient evidence to sustain Appellant’s conviction.
      Furthermore, the jury, as fact-finder, found the evidence


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      presented by the Commonwealth and Patrolman Eiker more
      credible than Appellant’s. See Bowen, 55 A.3d at 1262 (“The
      jury’s choice not to believe Appellant’s version of the events was
      purely within its discretion and will not be disturbed on
      appeal.”). Consequently, Appellant’s weight of the evidence
      claim must fail.

Trial Court Opinion, 11/29/2016, at 8. We discern no abuse of discretion in

the trial court’s conclusion. As the trial court correctly observed, it is within

the province of the jury, sitting as fact-finder, to review the evidence and

assess the credibility of the testifying witnesses.     See Chamberlain, 30

A.3d at 396 (“A motion alleging the verdict was against the weight of the

evidence should not be granted where it merely identifies contradictory

evidence presented by the Commonwealth and the defendant.”).

      Accordingly, after a thorough review of the record and briefs, we find

Appellant has presented no issue on appeal which would convince us to

disturb his judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/7/2017




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