J-S15020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

AARON GABRIEL MUMMERT

                            Appellant                  No. 1218 MDA 2014


            Appeal from the Judgment of Sentence of June 26, 2014
               In the Court of Common Pleas of Adams County
              Criminal Division at No.: CP-01-CR-0000831-2013


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                                FILED APRIL 06, 2015

       Aaron Gabriel Mummert appeals from the judgment of sentence that

was imposed following his jury convictions of fleeing or attempting to elude

a police officer and tampering with or fabricating physical evidence.1

Counsel for Mummert has petitioned for leave to withdraw as counsel on the

ground that Mummert’s issues on direct appeal are wholly frivolous.           We

grant the petition for leave to withdraw as counsel, and we affirm the

judgment of sentence.

       The trial court set forth the underlying history of this case as follows:

       On June 11, 2013, at approximately 4:00 p.m., Trooper George
       Ross (“Trooper Ross”) of the Pennsylvania State Police,
       Gettysburg Barracks, was in a marked patrol car positioned in
____________________________________________


1
       75 Pa.C.S.A. § 3733 and 18 Pa.C.S.A. § 4910, respectively.
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     the area of State Route 234 and Route 15 in Adams County,
     Pennsylvania. Trooper Ross received a bulletin reporting that a
     sport bike style motorcycle was traveling at a high rate of speed
     with an operator who was not wearing a shirt or a helmet. A few
     minutes after receiving the bulletin, Trooper Ross heard a sport
     bike approaching before seeing it through his rearview mirror as
     it approached a stop sign, failed to stop, and made a right turn
     onto S.R. 234. During the approximately one second during
     which the Trooper was able to observe the front and side of the
     bike, he noted that the motorcycle was dark blue and the
     operator was a white male with short dark hair, that he was not
     wearing a shirt, and that he was wearing riding glasses.

     Upon making these observations, Trooper Ross turned on his
     police cruiser’s lights and sirens and followed the sport bike in an
     effort to make a traffic stop. The bike was traveling faster than
     the trooper, who was going 35 to 50 miles per hour. Trooper
     Ross saw the motorcycle again when it was about 100 yards
     ahead of him before the motorcycle “increased speed
     significantly” and passed two or three vehicles on a curve. The
     trooper gave chase and his cruiser reached speeds of 115 to 120
     miles per hour, yet the motorcycle continued to pull away.
     Trooper Ross testified that, at the closest, he was 100 to 150
     yards from the motorcycle. Trooper Ross then met up with
     Officer Greg Morehead (“Officer Morehead”) of the Reading
     Township Police Department and the two pulled their vehicles to
     the side of the road. After Trooper Ross provided a description
     of the motorcycle and the rider to Officer Morehead, Officer
     Morehead mentioned the name Aaron Mummert and Trooper
     Ross testified that the name “clicked in [his] head” as matching
     the description of the operator.

     Trooper Ross and Officer Morehead then traveled to where they
     knew [Mummert] to be living, at 8 Ewell Drive in Lake Meade,
     arriving at approximately 4:20 p.m. When Trooper Ross arrived,
     he noted that there was a blue motorcycle in the driveway that
     did not look like the sport bike he had attempted to stop. Before
     Trooper Ross had exited his vehicle, [Mummert] came out of the
     house, wearing a black t-shirt, dark jeans, boots, and dark riding
     glasses on top of his head. Upon interacting with Trooper Ross,
     [Mummert] appeared nervous, as evidenced by the fact that he
     was pacing and the veins in his face and neck were pulsing.
     Without being questioned about a motorcycle or the reason
     officers were at his house, [Mummert] pointed to the motorcycle
     in the driveway and said, “that’s my bike.” When asked about

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     his sport bike,4 [Mummert] initially stated that it was at his
     grandmother’s house in Hanover, Pennsylvania, before
     eventually admitting that he had placed it in the house to keep it
     out of the rain, despite the fact that it was not raining and there
     was no testimony that rain was forecasted that day.
        4
           Officer Morehead had recently interacted with
        [Mummert] on an earlier occasion when he was riding his
        sport bike.

     The officers recovered a sport bike from [Mummert’s] basement
     around 5 p.m. which Trooper Ross stated was “exactly” the bike
     that he had seen in his rear view mirror. The basement smelled
     of exhaust fumes and the bike’s engine was hot to the touch.
     The officers then placed [Mummert] under arrest and seized the
     bike as evidence. Later, as Trooper Ross was typing up charges,
     [Mummert] stated, “all this for $107;” Trooper Ross testified that
     $107 is the approximate cost of a stop sign violation after
     accounting for fines, fees, and other costs.

     On cross examination, Trooper Ross testified that Officer
     Morehead had asked [Mummert] to take off his shirt.
     [Mummert] complied and turned around to show his entire torso
     and Trooper Ross said “I don’t know about that” because he did
     not recall the rider having tattoos to the extent that he observed
     on [Mummert].5 Officer Morehead then testified that he had
     previously interacted with [Mummert] approximately two weeks
     before the incident at issue, on May 22, 2013, on which occasion
     [Mummert] was riding his sport bike without a shirt and with a
     backwards baseball cap. Officer Morehead also routinely patrols
     Ewell Drive in Lake Meade and had seen motorcycles in
     [Mummert’s] driveway while it was raining.
        5
           Trooper Ross testified: “For that second that he went
        by, I wasn’t able to observe the tattoos as the distance
        and things it was quick. I just knew it was a white male
        who operated a motorcycle that was dark blue with that
        detailing.    There was radio traffic going between
        Pennsylvania State Police, Adams County, even to the
        guard shack, and to local PDs where somewhere tattoos”
        were mentioned.

                               *     *     *

     The jury returned a verdict of guilty on counts of fleeing or
     attempting to elude a police officer and tampering with or

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       fabricating physical evidence. On June 26, 2014, [Mummert]
       was sentenced to fifteen (15) to thirty (30) months on his
       conviction of fleeing or attempting to elude [a] police officer and
       three (3) to six (6) months for tampering with or fabricating
       physical evidence, to run concurrently to his sentence on Count
       1. On July 7, 2013, [Mummert] filed his Motion for Post-Trial
       Relief, . . . which was denied by th[e trial c]ourt. On July 8,
       2013, [Mummert] filed a Motion to Order Bail Pending
       Defendant’s Motion for Post-Trial Relief, which th[e trial c]ourt
       also denied. [Mummert] filed his Notice of Appeal on July 21,
       2014. His Concise Statement of Matters Complained of on
       Appeal Pursuant to Pa.[R.A.P.] 1925(b) followed on August 14,
       2014.

Trial Court Opinion (“T.C.O.”), 9/22/2014, at 1-4, 7-8. On September 22,

2014, the trial court entered its Pa.R.A.P. 1925(a) opinion.

       On December 9, 2014, counsel for Mummert filed an Anders brief in

which he presented issues that might arguably support an appeal. 2 Counsel

filed his petition for leave to withdraw as counsel on the same day, stating

that, after a conscientious examination of the record, he determined that the

appeal would be wholly frivolous.              See Petition for Leave to Withdraw as

Counsel, 12/9/2014, at unnumbered page 2 ¶ 4. Attached to the petition is

a copy of his letter to Mummert advising him of counsel’s intent to seek

withdrawal as his counsel and of Mummert’s right to retain new counsel or to

proceed with his appeal pro se, and providing him with a copy of the Anders



____________________________________________


2
     See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), abrogated in part by
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).




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brief filed with this Court.   See id. at Attachment.      Mummert has not

responded to counsel’s petition for leave to withdraw.

      [I]n the Anders brief that accompanies . . . counsel’s petition to
      withdraw, counsel must: (1) provide a summary of the
      procedural history and facts, with citations to the record; (2)
      refer to anything in the record that counsel believes arguably
      supports the appeal; (3) set forth counsel’s conclusion that the
      appeal is frivolous; and (4) state counsel’s reasons for
      concluding that the appeal is frivolous. Counsel should articulate
      the relevant facts of record, controlling case law, and/or statutes
      on point that have led to the conclusion that the appeal is
      frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      Anders counsel must also provide a copy of the Anders petition
      and brief to the appellant, advising the appellant of the right to
      retain new counsel, proceed pro se or raise any additional points
      worthy of this Court’s attention.

      If counsel does not fulfill the aforesaid technical requirements of
      Anders, this Court will deny the petition to withdraw and
      remand the case with appropriate instructions (e.g., directing
      counsel either to comply with Anders or file an advocate’s brief
      on Appellant’s behalf). By contrast, if counsel’s petition and
      brief satisfy Anders, we will then undertake our own review of
      the appeal to determine if it is wholly frivolous. If the appeal is
      frivolous, we will grant the withdrawal petition and affirm the
      judgment of sentence.        However, if there are non-frivolous
      issues, we will deny the petition and remand for the filing of an
      advocate’s brief.

Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)

(citations omitted).

      In the instant case, counsel has complied substantially with the

Anders and Santiago requirements.        Counsel has submitted a brief that

summarizes the case and cites to the record, see Anders Brief at 5-9;

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refers to anything that might arguably support the appeal, id. at 10; and

sets forth his reasoning and conclusion that the appeal is frivolous, id. at 10-

14. See Santiago, 978 A.2d at 361. Counsel has filed a petition for leave

to withdraw as counsel, sent Mummert a letter advising him that counsel

found no non-frivolous issues, provided Mummert with a copy of the Anders

brief, and notified Mummert of his right to retain new counsel or proceed pro

se. Mummert has not responded.

      “Once counsel has satisfied the [Anders] requirements, it is then this

Court’s duty to conduct its own review of the trial court’s proceedings and

render an independent judgment as to whether the appeal is, in fact, wholly

frivolous.” Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)

(citation omitted).

      In the Anders brief, counsel identified four potential questions for our

review:

      1.     Was the weight of the evidence at trial not sufficient for
      verdicts of guilty on fleeing or attempting to elude a police
      officer and tampering with or fabricating physical evidence?

      2.    Did the [t]rial [c]ourt err in allowing the Commonwealth to
      show a photograph of [Mummert’s] motorcycle that they saw,
      and allowing the Commonwealth to put a similar motorcycle in
      the courtroom for the witnesses to testify that it was similar to
      the one they saw?

      3.    Did the [t]rial [c]ourt err by not allowing [Mummert] to
      remove his shirt to show his large tattoo to the jury, when none
      of the witnesses referenced that the driver of the motorcycle had
      a tattoo?

      4.   Did the [t]rial [c]ourt err in denying [Mummert’s] Post-
      Sentence Motion on these issues?

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Anders Brief at 4.

     In the first issue presented in the Anders brief, counsel asserts that

“the weight of the evidence was not sufficient for convictions of fleeing or

attempting to elude a police officer and tampering with or fabricating

physical evidence.” Id. at 11. We disagree.

     Our Supreme Court has held that:

     [t]he weight of the evidence is exclusively for the finder of fact
     who is free to believe all, part, or none of the evidence and to
     determine the credibility of the witnesses. An appellate court
     cannot substitute its judgment for that of the finder of fact.
     Thus, we may only reverse the lower court’s verdict if it is so
     contrary to the evidence as to shock one’s sense of justice.
     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. Rather, appellate review is limited to whether the trial
     court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 409 (Pa. 2003).

     In reviewing Mummert’s weight claim, the trial court stated:

     Here, the guilty verdicts rendered after [Mummert’s] jury trial
     clearly cannot be characterized as so contrary to the weight of
     the evidence so as to shock one’s sense of justice.            ...
     Throughout [Mummert’s] trial, numerous witnesses credibly
     testified that they observed a blue sport bike which looked at
     least similar to the photograph they were shown of [Mummert’s]
     bike. Nearly all of the eyewitnesses gave a description of the
     rider that matched [Mummert’s] general physical appearance
     and the matter in which he was dressed on June 11, 2013,
     including testimony that the rider had short and dark hair, was
     not wearing a shirt, was wearing riding glasses, and was wearing
     dark pants. Trooper Ross testified that he activated his lights
     and sirens upon seeing a blue sport bike meeting the description
     of the speeding vehicle in the bulletin fail to stop at a stop sign



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      and several witnesses testified that that they observed the rider
      looking behind him in the direction of following police cruisers.

T.C.O. at 9. The trial court also identified inconsistencies in the evidence,

including “the fact that virtually none of the witnesses mentioned that the

shirtless driver had significant tattoos, as [Mummert] does,” and “confusion

in witness testimony regarding whether the rider was wearing a shirt and the

fact that [Mummert] had a normal and somewhat lengthy conversation with

Ms. Glass at the Lake Meade guard shack before proceeding into the housing

development.” Id. at 11, 11 n.9. The record demonstrates, however, that

the motorcycle was traveling at high speeds, Notes of Testimony (“N.T.”),

4/3/2014, at 24, and that Carol Glass talked to Mummert on his sport

motorcycle at the gatehouse less than five minutes before the police arrived,

id. at 119. Therefore, considering the motorcycle’s high rate of speed, it is

not unreasonable that eyewitnesses were unable to clearly identify whether

the rider had tattoos on his torso, nor that Mummert would arrive at the

gatehouse to have enough time to converse with Carol Glass before taking

his bike into his basement before the police arrived.

      It is well-settled that “[w]here the evidence is conflicting, it is the

province of the fact finder to determine credibility; it is the prerogative of

the fact finder to believe all, part or none of the evidence presented.”

Commonwealth v. Ellis, 549 A.2d 1323, 1334 (Pa. Super. 1988) (citation

omitted). Here, the jury weighed the evidence and drew its own conclusions

regarding its credibility.   The trial court, in reviewing that determination,



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assessed the strengths and weaknesses of the Commonwealth’s case against

Mummert and determined that the verdicts of guilt did not shock the court’s

conscience. Mummert points to no evidence which was “so clearly of greater

weight [than those accepted by the jury] that to ignore them, or to give

them equal weight with all the facts, is to deny justice.” Commonwealth v.

Lewis, 911 A.2d 558, 565 (Pa. Super. 2006). Accordingly, the trial court

did not abuse its discretion, and we determine that Mummert’s claim that

the verdicts were against the weight of the evidence is frivolous.

      In his second issue, Mummert would contend that the trial court “erred

in allowing the Commonwealth to show a photograph of [Mummert’s]

motorcycle to each witness without any prior motorcycle line-up, or the

motorcycle they saw, and allowing the Commonwealth to put a similar

motorcycle in the courtroom for the witnesses to testify that it was similar to

the one they saw.” Anders Brief at 11-12. We disagree.

      “In reviewing a trial court’s ruling on the admissibility of evidence, our

standard of review is one of deference.             Questions concerning the

admissibility of evidence are within the sound discretion of the trial court,

and its discretion will not be reversed absent a clear abuse of discretion.”

Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super. 2014)

(citations and internal quotation marks omitted).

      Preliminarily, we observe that Mummert failed to object to the

admission of the identification of his motorcycle at trial, and has thus waived

this issue on appeal. See Pa.R.A.P. 302(a); Commonwealth v. Olsen, 82

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A.3d 1041, 1050 (Pa. Super. 2013) (“A defendant must make a timely and

specific objection at trial or face waiver of [his] issue on appeal.”) (citation

omitted).

      Moreover, it is well-settled that identification of inanimate objects does

not require the Commonwealth to proffer a line-up in order to be admissible:

         [T]here is no basis for applying the identification
         procedures applicable to suspects to testimony identifying
         inanimate objects and we decline to extend cases
         protecting the accused’s rights to a fair pre-trial
         identification to the pre-trial identification of physical
         evidence. There is a difference between an identification
         of a defendant and of an inanimate object. The due
         process concerns implicated in identification of a defendant
         are not implicated in the identification of a vehicle.
         Identification of an accused tends to be direct proof of the
         case against him, while that of an inanimate object is only
         indirect proof of the defendant’s guilt. . . .

      Thus[, in Commonwealth v. Chmiel, 889 A.2d 501, 523-24
      (Pa. 2005),] the Court found that “the risks inherent in
      identification of inanimate objects go to the weight and
      sufficiency of the evidence instead of admissibility,” and such
      identification evidence is properly submitted to the jury.

Commonwealth v. Crork, 966 A.2d 585, 588-89 (Pa. Super. 2009).

      Accordingly, even if Mummert had preserved this issue for our review,

the trial court did not err by permitting witnesses to identify Mummert’s

motorcycle without conducting a “motorcycle line-up.” This issue is frivolous

and would not merit relief.

      In his third issue, Mummert contends that the trial court “erred by not

allowing [Mummert] to remove his shirt to show his large tattoo to the jury,




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when none of the witnesses referenced that the driver of the motorcycle had

a tattoo.” Anders Brief at 12. We disagree.

      As previously stated, on review of questions of admissibility of

evidence, we defer to the trial court’s discretion. See Thompson, 106 A.3d

at 754.

      Before evidence may be admitted, it must be authenticated.
      Pennsylvania Rule of Evidence 901 governs the authentication of
      evidence. Rule 901 states, “The requirement of authentication
      or identification as a condition precedent to admissibility is
      satisfied by evidence sufficient to support a finding that the
      matter in question is what its proponent claims.”      Pa.R.E.
      901(a).

Commonwealth v. Smith, 47 A.3d 862, 865 (Pa. Super. 2012) (case

citations omitted); see also Pa.R.E. 901, Comment (“In some cases, real

evidence may not be relevant unless its condition at the time of trial is

similar to its condition at the time of the incident in question. In such cases,

the party offering the evidence must also introduce evidence sufficient to

support a finding that the condition is similar.”).

      Here, the trial court determined that Mummert had failed to

demonstrate that his tattoos at the time of trial were the same since June

11, 2013, when he was riding the sport bike without a shirt. N.T. at 145.

Absent such proof, the court concluded that evidence of what his tattoos

looked like at trial could not be authenticated and was, therefore, unreliable

and inadmissible. Id.; see T.C.O. at 15. Nonetheless, Mummert introduced

the fact that he had tattoos on his torso at trial by specifically describing



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them, which would further make the request to remove his shirt for the jury

duplicative. N.T. at 158-59. Meanwhile, many of the eyewitnesses testified

that they did not remember whether or not the operator of the sport bike

had tattoos, so a specific showing of his tattoos where none of the witnesses

denied that he had them would not be relevant to whether they were able to

identify him as the operator. See N.T. at 63-64. Accordingly, the trial court

did not abuse its discretion by not allowing Mummert to remove his shirt.

This issue is frivolous and without merit.

      Finally, Mummert contends that the trial court erred in denying his

post-sentence motion.       Anders Brief at 12.        Specifically, Mummert

challenges the denial of his post-sentence motion for an arrest of judgment

or a new trial for the same reasons argued now on appeal.        Id. at 12-13.

We disagree.

      We review a trial court’s denial of a post-sentence motion for an abuse

of discretion.   See Commonwealth v. Moore, 978 A.2d 988, 993 (Pa.

Super. 2009). “An abuse of discretion is not merely an error of judgment,

but is rather the overriding or misapplication of the law, or the exercise of

judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-

will or partiality, as shown by the evidence of record.” Commonwealth v.

Belknap, 105 A.3d 7, 10 (Pa. Super. 2014) (citation omitted).

      As previously discussed, we have reviewed the trial court’s disposition

of Mummert’s issues raised in his post-sentence motion and on appeal, and

conclude that the trial court did not abuse its discretion where the issues he

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raised are frivolous and without merit.      Furthermore, upon independent

review, we find no other non-frivolous basis for appeal.      Therefore, we

conclude that Mummert’s appeal is wholly frivolous. O’Malley, 957 A.2d at

1266.

        Judgment of sentence affirmed.     Petition for leave to withdraw as

counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




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