J-S55020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT
                                                                    OF
                                                               PENNSYLVANIA


                        v.

    SHAWN N. MCCOY

                             Appellant                      No. 1713 MDA 2016


           Appeal from the Judgment of Sentence September 7, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0003462-2015


BEFORE: DUBOW, RANSOM, and STRASSBURGER, JJ.*

MEMORANDUM BY RANSOM, J.:                                FILED OCTOBER 19, 2017

        Appellant, Shawn N. McCoy, appeals from the judgment of sentence of

twenty-eight to sixty years, imposed September 7, 2016, following a jury trial

resulting in his conviction for two counts of robbery, and one count each of

criminal conspiracy, assault of a law enforcement officer, carrying firearms

without a license, and escape.1                We affirm in part, vacate Appellant’s

conviction for escape, and remand for resentencing.

        Late in the evening of April 7, 2015, Appellant, driving a white Hyundai

Sonata, picked up his girlfriend, Sharayne Cook, to go out for drinks. See

Notes of Testimony (N.T.), 6/22/16, at 141-45. They stopped at a gas station,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1  See 18 Pa.C.S. §§ 3701, 903(a), 2702.1(a)(2), 6106, and 5121,
respectively.
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where they bought fruit punch and ginger ale. See N.T., 6/22/16, at 145-47;

N.T., 6/23/16, at 13. Ms. Cook wore sunglasses to cover a black eye she had

received days earlier when Appellant hit her in the face with a gun. See N.T.,

6/22/16, at 143-44. They went to Shady McGrady’s bar, located on the 200

block of Verbeke Street, in the City of Harrisburg, Pennsylvania, where they

met an acquaintance, Yusuf Blake. Id. at 147-48. All three left at closing

time. Id. at 147-48. Appellant gave Ms. Cook the keys to the car, and she

sat in the driver’s seat. Id. at 152.

      At 9:30 p.m., Jamie Jones and Duane Dunlap also visited Shady

McGrady’s. See N.T., 6/21/16, at 97-99; N.T., 6/22/16, at 33-35. They drank

there until closing. See N.T., 6/21/16, at 100; N.T., 6/22/16, at 34. As they

walked back to Mr. Dunlap’s Mercedes Benz, Ms. Cook called out to them;

they stopped to speak to her, but upon seeing Appellant and Mr. Blake get out

of the car, Mr. Jones ran. See N.T., 6/21/16, at 100-101; N.T., 6/22/16, at

34-35, 152.    Appellant chased Mr. Jones while Mr. Blake approached Mr.

Dunlap. See N.T., 6/22/16, at 35.

      Mr. Blake pointed his gun at Mr. Dunlap’s chest and demanded his

valuables.   See N.T., 6/22/16, at 36-37.     He took Mr. Dunlap’s earrings,

watch, rosary chain, ring, money, car keys, ID, and bank card. See N.T.,

6/22/16, at 37. When Mr. Jones heard Mr. Dunlap ask, “My earrings too, bro?”

he ran back towards the car. See N.T., 6/21/16, at 101-103. Appellant hit

Mr. Jones twice in the head with a gun. See N.T., 6/21/16, at 103-04. After

knocking Mr. Jones to the ground, Appellant took his hat, Polo jacket, $250.00,

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and a bag of marijuana. See N.T., 6/21/16, at 104-05. While he was handing

over his belongings, Mr. Jones observed that Appellant was a light-skinned

black man with a tattoo on his neck. See N.T., 6/21/16, at 107, 144. During

the robbery, Mr. Blake referred to Appellant as “Shizz.” Id. at 100-106; N.T.,

6/22/16, at 158.

     Around 2:30 a.m., a local resident was awakened by loud yelling from

the street, observed the robbery in progress, and called 911 to describe what

he saw. See N.T., 6/21/16, at 19-21, 27. As he watched, Appellant got into

the front passenger seat, and Mr. Blake into the back seat of the waiting

Hyundai, which made a U-turn and fled east. See N.T., 6/21/16, at 22-23;

N.T. 6/22/16, at 153-54.

     Police Officer Angel Diaz, on patrol in a marked car, responded to the

radio call regarding the robbery. See N.T., 6/21/16, at 36-37. Within two

minutes, Officer Diaz and two other marked police cars saw the Sonata

traveling northbound; Officer Diaz made a U-turn to follow it.     See N.T.,

6/21/16, at 38-39; N.T., 6/22/16, at 153-55. When the Sonata sped up and

went through a red light, Officer Diaz activated his lights and sirens, and a

high-speed chase ensued. See N.T., 6/21/16, at 39-40; N.T. 6/22/16, at 155.

Officer Diaz saw Appellant, a light-skinned black male wearing a dark top,

hang out of the passenger side window and fire a gun at the police car. See

N.T., 6/21/16, at 42; N.T., 6/22/16, at 156-57. Officer Diaz gave chase, and

Appellant continued to fire, damaging the transmission of the police car. See

N.T., 6/21/16, at 43-45; N.T., 6/22/16, at 156-57. Eventually, Officer Diaz

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lost track of the Hyundai but was advised by radio that suspects had fled

eastbound on foot. See N.T., 6/21/16, at 40-44. Thereafter, Officer Diaz

apprehended and arrested Mr. Blake and Ms. Cook. See N.T., 6/21/16, at 44.

Officer Diaz observed Mr. Blake was of a darker complexion than the shooter.

See N.T., 6/21/16, at 45-47.

      After their arrest, Ms. Cook and Mr. Blake identified Appellant as the

third person in the vehicle, and police began to search for him. See N.T.,

6/23/16, at 122-24. Eventually, Appellant turned himself in to the custody of

the police. Id. at 124-26.

      Mr. Jones later identified Appellant as the man who had robbed him.

See N.T., 6/21/16, at 109-112.        At trial, Mr. Jones equivocated on his

identification testimony and denied receiving threats. See N.T., 6/21/16, at

140-45.    Subsequently, the Commonwealth presented the testimony of

Assistant District Attorney Jennifer Hartlep to establish that Mr. Jones had

experienced witness intimidation and threats on his life prior to trial and that

he had previously stated that he was “100%” sure that Appellant was the

robber. See N.T., 6/22/16, at 8-14.

      Jade Harris testified that, in March 2015, she helped her friend, Autumn

Sloane, rent a white Hyundai Sonata. See N.T., 6/21/16, at 147-50. Ms.

Sloane did not return the car on time, and Ms. Harris subsequently discovered

the Sonata had been used in a robbery. Id. at 150-51. The parties stipulated

that, in March 2015, Autumn Sloane purchased a .40 caliber Taurus pistol.

See N.T., 6/22/16, at 60-61. At trial, Ms. Sloane admitted that she bought

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the gun for Appellant, who picked out the specific gun he wanted and took a

picture of it with Ms. Sloane’s telephone. See N.T., 6/22/16, at 64-70. Ms.

Sloane also admitted that Appellant’s nickname was “Shizz.”         See N.T.,

6/22/16, at 77.

      The Commonwealth presented additional evidence at trial. Mercedes

Benz keys and a rosary belonging to Mr. Dunlap were recovered from the

Hyundai, as well as an iPhone from the front passenger seat.        See N.T.,

6/23/16, at 54-57. The iPhone contained photographs of Appellant with a

semi-automatic pistol tucked into his waistband and a tattoo visible on his

neck, and of Appellant pointing a semi-automatic pistol. See N.T., 6/22/16,

at 72-75.

      Bullets and cartridge cases recovered from the scene were fired from

the same gun; were consistent with bullets fired from a .40 caliber pistol; and

could have been fired from a gun made by a number of manufacturers,

including a Taurus. See N.T., 6/22/16, at 83-85. An empty case for a Taurus

pistol was recovered from Ms. Sloane’s house; paperwork within the case bore

Appellant’s fingerprints. See N.T., 6/23/16, at 77-80. Mixed DNA profiles

were present on bottles recovered from the Hyundai; the major component

on the ginger ale was consistent with Ms. Cook’s DNA, and the major

component on the fruit punch matched Appellant’s DNA. See N.T., 6/22/16,

at 121-23.

      Following trial, the jury convicted Appellant of the aforementioned

charges and acquitted him of criminal attempt–homicide and aggravated

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assault.2 The charge of possession of a firearm prohibited was nolle prossed,

and the charge of flight to avoid apprehension was withdrawn. 3 The court

sentenced Appellant to an aggregate of twenty-eight to sixty years of

incarceration, including a twenty-year mandatory minimum sentence.

Appellant filed a motion for modification of sentence, which the court denied.

        Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.          The trial court issued a

responsive opinion.

        On appeal, Appellant raises the following questions for our review:

        I. Whether the imposition of the mandatory 20 – 40 year
        sentence, under 42 Pa.C.S.A. § 9719.1, for assault of a law
        enforcement officer, under 18 Pa.C.S.A § 2702.1(a), was
        constitutional under [Alleyne v. United States] and
        Apprendi?[4]

        II. Whether the trial court erred in admitting Commonwealth’s
        exhibits 70 and 71 depicting Appellant with a firearm, as unduly
        prejudicial and irrelevant?

        III. Whether the trial court erred in permitting Attorney Hartlep
        to testify regarding Mr. Jones’ statements to her prior and after
        the preliminary hearing as such testimony, inter alia, was
        impermissible rebuttal testimony regarding Mr. Jones’ trial
        testimony?

        IV. Whether the Commonwealth failed to present sufficient
        evidence to sustain Appellant’s conviction for the two (2) counts
____________________________________________


2   18 Pa.C.S. §§ 901(a) and 2702(a)(2).

3   18 Pa.C.S. §§ 6105(a)(1) and 5126(a).

4 Alleyne v. United States, 133 S. Ct. 2151 (2013); Apprendi v. New
Jersey, 120 S. Ct. 2348 (2000).

                                           -6-
J-S55020-17


      of robbery and conspiracy to robbery [sic] where the
      Commonwealth did not prove that the Appellant, inter alia, was
      the person who committed the acts?

      V.   Whether the Commonwealth failed to present sufficient
      evidence to sustain Appellant’s convictions for assault on a law
      enforcement officer where the Commonwealth did not prove that
      the Appellant, inter alia, was the person who fired the shots?

      VI. Whether the Commonwealth failed to present sufficient
      evidence to sustain Appellant’s conviction for carrying a firearm
      without a license where the Commonwealth did not prove that the
      Appellant, inter alia, possessed a firearm?

      VII. Whether the Commonwealth failed to present sufficient
      evidence to sustain Appellant’s conviction for escape where the
      Commonwealth did not prove that the Appellant, inter alia, left
      official detention?

      VIII. Whether the [trial court] erred in denying Appellant’s post-
      sentence motion where the Appellant’s sentence of 28-60 years
      was unreasonable and constitutes too severe a punishment in light
      of the gravity of the offense, the impact on the community, and
      Appellant’s rehabilitative needs?

Appellant’s Brief at 5-6 (underlining, unnecessary capitalization, and

suggested answers omitted).

      First, Appellant contends that his sentence of twenty to forty years of

incarceration for assaulting a law enforcement officer is unconstitutional under

Alleyne. See Appellant’s Brief at 25. Appellant argues that the statute in

the instant case is no different than other statutes imposing mandatory

minimum sentences and that no verdict slip or special instruction can cure its

illegality. Id. at 27.

      The Sentencing Code provides that a person convicted of assaulting a

law enforcement officer, 18 Pa.C.S. § 2702.1(a), shall be sentenced to a


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mandatory term of imprisonment of not less than twenty years.             See 42

Pa.C.S. § 9719.1.      Appellant’s argument is meritless, as our Court has

previously held that this mandatory sentence provision does not implicate

Alleyne.    See Commonwealth v. Reid, 117 A.3d 777, 785 (Pa. Super.

2015).

       In Reid, we held that Section 9719.1 does not require proof of any

additional elements beyond those already required to convict a defendant of

assault on a law enforcement officer under the Crimes Code.          Id. at 785.

Further, the statute does not permit the court to apply a mandatory minimum

sentence if the Commonwealth establishes the triggering fact by a mere

preponderance of the evidence, which we have held unconstitutional under

Alleyne.     Reid, 117 A.3d at 785.          The statute “simply describes the

legislatively-required sentence” for an offender convicted of this crime. Id. at

786.   Thus, we decline to find 42 Pa.C.S. § 9719.1 unconstitutional under

Alleyne, and hold that Appellant’s claim is meritless. Id. at 785.

       Second, Appellant claims that the court erred in admitting photographs

depicting Appellant with a firearm. See Appellant’s Brief at 28. Appellant

contends that the evidence was unduly prejudicial and irrelevant, as the

firearm was not recovered. Id. at 28, 30.

       With regard to these claims,

       [t]he admission of evidence is solely within the discretion of the
       trial court, and a trial court's evidentiary rulings will be reversed
       on appeal only upon an abuse of that discretion. An abuse of
       discretion will not be found based on a mere error of judgment,
       but rather occurs where the court has reached a conclusion that

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J-S55020-17


     overrides or misapplies the law, or where the judgment exercised
     is manifestly unreasonable, or the result of partiality, prejudice,
     bias or ill-will.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (quotation

marks and citations omitted).

     Generally, all relevant evidence is admissible, and evidence is relevant

if it has “any tendency to make a fact more or less probable then it would be

without the evidence.”   See Pa.R.E. 401-02.      Relevant evidence may be

excluded where its probative value is outweighed by the danger of unfair

prejudice. See Pa.R.E. 403. While a weapon not specifically linked to a crime

is generally inadmissible, the fact that “the accused had a weapon or

implement suitable to the commission of the crime charged . . . is always a

proper ingredient of the case for prosecution.”    See Commonwealth v.

Robinson, 721 A.2d 344, 351 (Pa. 1999). The Pennsylvania Supreme Court

has noted further that

     [a]ny uncertainty that the weapon is the actual weapon used in
     the crime goes to the weight of such evidence. The only burden
     on the prosecution is to lay a foundation that would justify an
     inference by the finder of fact of the likelihood that the weapon
     was used in the commission of the crime . . . .

     Possession of a handgun may be relevant even if the particular
     gun possessed cannot be proven to be the one used in the crime.
     That it was possessed may allow the inference it could have been
     used.

Commonwealth v. Christine, 125 A.3d 394, 400 (Pa. 2015).

     Exhibits 70 and 71 were photographs depicting 1) Appellant pointing a

semi-automatic pistol with his hands obscuring the grip, part of the trigger,



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and the trigger guard; 2) Appellant with a semi-automatic pistol tucked into

his waistband, with the grip and slide visible. Although no gun was recovered

in the instant case the ballistic evidence introduced at trial established that

bullets and casings recovered at the scene were fired from the same .40

caliber pistol and that Taurus was a potential manufacturer.       Testimonial

evidence established that Ms. Sloane purchased a semi-automatic Taurus .40

caliber pistol for Appellant. Appellant’s fingerprints were present on papers

inside of the pistol case recovered from Ms. Sloane’s home.

      Appellant relies on two cases, Robinson and Commonwealth v.

Stokes, 78 A.3d 644 (Pa. Super. 2013), to support his argument that the

photographs were not properly admitted. However, both of these cases are

distinguishable on their facts.     In Robinson, the Supreme Court of

Pennsylvania ruled that the trial court had erroneously admitted photographs

of a 9mm Star gun where, though the murder had been committed with a

9mm gun, Star had been specifically excluded as a manufacturer.           See

Robinson, 721 A.2d at 351. In Stokes, the victim was shot with a .44 caliber

gun, and the Commonwealth attempted to introduce an empty box of 9mm

ammunition and four loose rounds of .32 caliber ammunition. See Stokes,

78 A.3d at 655. This Court held that the trial court erred in admitting the

photographs to show that the defendant had a general familiarity with

firearms, access to firearms, and skill in shooting. Id.

      By contrast, in the instant case, the gun partially depicted in the

photographs cannot be excluded as the gun used in the crime and, insofar as

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it is visible, is consistent with other testimony and evidence introduced in the

case. Accordingly, the trial court did not err in admitting the photographs, as

the jury could reasonably infer the firearm was used during the commission

of the crime. See Woodard, 129 A.3d at 494; Christine, 125 A.3d at 400.

      Third, Appellant claims that the trial court erred in permitting Attorney

Hartlep to testify regarding Mr. Jones’ statements to her prior to and after the

preliminary hearing, concerning 1) threats to his life, 2) his identification of

Appellant, and 3) observations about Appellant’s tattoo. See Appellant’s Brief

at 30. Essentially, Appellant contends that because the evidence was

introduced to rebut the testimony of the Commonwealth’s witness, it was

improperly admitted as rebuttal. Id. at 30-31. In contrast, Commonwealth

contends that the testimony regarding intimidation was properly admitted as

impeachment evidence under Pa.R.E. 607, and that the testimony regarding

identification was admissible as a prior statement of identification under

Pa.R.E. 803.1(2). See Commonwealth’s Brief at 14-17.

      Initially, Appellant has waived his objection to Attorney Hartlep’s

testimony regarding his tattoos, as counsel stated during testimony that he

“had no objection” if Attorney Hartlep wanted to testify that Mr. Jones told her

that Appellant had a tattoo across his neck.      See N.T., 6/22/16, at 6-7.

Additionally, Appellant has waived his challenge to admission of Attorney

Hartlep’s testimony regarding threats to Mr. Jones’ life due to his failure to

specifically object during oral argument. Id.; Pa.R.A.P. 302(a). However,




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Appellant challenges Attorney Hartlep’s testimony regarding Mr. Jones’

identification.

      We first address Appellant’s arguments. The admission of evidence is

within the discretion of the trial court; the same is true for rebuttal evidence.

See Woodard, 129 A.3d at 494; see also Commonwealth v. Feflie, 581

A.2d 636, 643 (Pa. Super. 1990). An abuse of that discretion by the trial

court, and a showing of resulting prejudice, constitutes reversible error. See

Commonwealth v. Glass, 50 A.3d 720, 724-25. Where an error is harmless,

reversal is not warranted. Robinson, 721 A.2d at 350.

      Here, the trial court opined that it was within its discretion to allow

rebuttal evidence as to Mr. Jones’ recollection of the identity of the perpetrator

along with the tattoo identification. See Trial Court Opinion (TCO), 3/7/17,

at 9. This conclusion is incorrect, however, as rebuttal evidence is properly

admitted to rebut testimony elicited from an opponent’s witness on cross-

examination, and is limited to matters material to the issues presented in the

case. See Commonwealth v. Kuder, 62 A.3d 1038, 1054 (Pa. Super. 2013).

Nevertheless, we may affirm a valid judgment based on any reason appearing

of record. See Commonwealth v. Parker, 919 A.2d 943, 948 (Pa. 2007).

      Turning to the Commonwealth’s arguments, we address its assertion

that the testimony regarding Mr. Jones’ prior statement of identification was

admissible under Pa.R.E. 803.1(2), an exception to the rule against hearsay.

Hearsay is an out of court statement offered to prove the truth of the matter

asserted. See Pa.R.E. 801. Hearsay is inadmissible, subject to exceptions

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provided by the Rules of Evidence.      See Pa.R.E. 802.     Pa.R.E. 803.1(2)

provides that “a prior statement by a declarant-witness identifying a person

or thing, made after perceiving the person or thing,” is admissible, “provided

that the declarant testifies to the making of the prior statement.” See Pa.R.E.

803.1(2). In the instant case, Mr. Jones testified that he had previously told

police he was 100% certain the robber was Appellant. See N.T., 6/21/16, at

109. A recording of his statement to police was played for the jury. Id. at

110. However, he did not testify that he had previously told Attorney Hartlep

that he was 100% certain the robber was Appellant. Thus, this testimony was

not properly admissible under Pa.R.E. 803.1(2).

      Even so, the admission of the testimony was harmless error, as it was

duplicative   of   the   recorded   statement   already   introduced.     See

Commonwealth v. Hardy, 918 A.2d 766, 778 (Pa. Super. 2007) (noting that

where evidence was already properly admitted, admission of the same

testimony from another witness, even if in error, is harmless). Accordingly,

we decline to grant Appellant relief. Id.

      Appellant’s next four issues challenge the sufficiency of the evidence.

Initially, we note that in several of these issues, Appellant does not identify

the elements of the crimes for which he was charged, and accordingly risks

waiver. See, e.g., Commonwealth v. Williams, 959 A.2d 1252, 1257-58

(Pa. Super. 2008). However, as he generally challenges the sufficiency of the

evidence to prove either identity or possession, we decline to find waiver in




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this instance. We review a challenge to the sufficiency of the evidence as

follows.

      In determining whether there was sufficient evidentiary support
      for a jury’s finding [], the reviewing court inquires whether the
      proofs, considered in the light most favorable to the
      Commonwealth as a verdict winner, are sufficient to enable a
      reasonable jury to find every element of the crime beyond a
      reasonable doubt.          The court bears in mind that: the
      Commonwealth may sustain its burden by means of wholly
      circumstantial evidence; the entire trial record should be
      evaluated and all evidence received considered, whether or not
      the trial court’s rulings thereon were correct; 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. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations omitted).

      In his fourth issue, Appellant claims that the evidence was insufficient

to sustain his conviction for robbery. See Appellant’s Brief at 33. Appellant

contends that because neither of the victims was able to identify Appellant as

the robber and none of the items taken from the victims were found at the

time of his arrest, the evidence was insufficient. Id. at 34.

      A person is guilty of robbery if, in the course of committing a theft, he

threatens another with fear of immediate serious bodily injury.           See 18

Pa.C.S. § 3701(a)(1)(ii). Ms. Cook testified that Mr. Blake and Appellant got

out of the car and walked towards the victims and later fled in the getaway

car with her. Mr. Dunlap heard one of the robbers refer to the other as “Shizz,”

Appellant’s nickname.     Despite his later equivocation, Mr. Jones made a

statement to the police that he was “100%” sure that Appellant was the man

who had robbed him at gunpoint.        Several witnesses testified consistently


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regarding Appellant’s clothing, complexion, and neck tattoos. Appellant’s DNA

was found on bottles inside the getaway car. Accordingly, the evidence was

sufficient to establish that Appellant was the person responsible for

committing the robbery. See Diggs, 949 A.2d at 877.

      Fifth, Appellant claims that the evidence was insufficient to sustain his

convictions for assault on a law enforcement officer where the Commonwealth

did not prove that Appellant was the person who fired the shots.           See

Appellant’s Brief at 34.   Essentially, Appellant contends that because the

firearm was never found, no gunpowder was found on his hands, and because

Ms. Cook’s testimony was biased, the evidence was insufficient. Id. at 35.

      We have held that the Commonwealth must prove:

      (1) the defendant attempted to cause, or intentionally or
      knowingly caused, bodily injury, (2) the victim was a law
      enforcement officer acting in the performance of his duty, (3) the
      defendant had knowledge the victim was a law enforcement
      officer, and (4) in attempting to cause, or intentionally or
      knowingly causing such bodily injury, the defendant discharged a
      firearm.

Commonwealth v. Landis, 48 A.3d 432, 445 (Pa. Super. 2012) (en banc)

(citation omitted); see also 18 Pa.C.S. § 2702.1(a).

      Here, the evidence established that Appellant fired multiple shots at

Officer Diaz during pursuit following the robbery. Officer Diaz was in a marked

police car with active lights and sirens.    Officer Diaz described a man of

Appellant’s general description as the shooter, Appellant’s DNA was found on




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a bottle inside the Hyundai, and Ms. Cook testified that Appellant leaned out

the passenger seat window and fired a gun.

      Insofar as Appellant challenges Ms. Cook’s testimony, that challenge

goes to weight rather than sufficiency and is within the sound discretion of the

fact-finder.   See, e.g., Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa.

Super. 2014) (noting that a challenge to the credibility of a witness is a

challenge to the weight of the evidence); see also Commonwealth v.

Houser, 18 A.3d 1128-1135-36 (Pa. 2011) (noting that a claim alleging the

verdict was against the weight of the evidence is limited to whether the

factfinder’s discretion was properly exercised). The jury was free to believe

or disbelieve Ms. Cook’s testimony, and it found her credible.

      Accordingly, the evidence was sufficient to sustain Appellant’s conviction

for assault on a law enforcement officer, because it established that Appellant

attempted to cause injury to Officer Diaz, who was acting in the performance

of his duty, and that Appellant was aware Officer Diaz was a police officer.

See Diggs, 949 A.2d at 877; Martuscelli, 54 A.3d at 948; Landis, 48 A.3d

at 445.

      Sixth, Appellant claims the evidence was insufficient to sustain his

conviction for possession of a firearm without a license, as the Commonwealth

did not prove that Appellant possessed a firearm. See Appellant’s Brief at 35.

Appellant contends that because the firearm was never recovered, the

photographs introduced were undated, the testimony of the witnesses was not

credible, and it could not be proven that the bullets and casings were fired

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from the firearm purchased by Ms. Sloane, the evidence was insufficient. Id.

at 35-36.

      We again note that Appellant’s challenges to the credibility of Ms. Sloane

and Ms. Cook are inappropriate in a sufficiency argument and more properly

couched as a weight claim. See Melvin, 103 A.3d at 43; Houser, 18 A.3d at

1135-36. Appellant was able to cross-examine both Ms. Cook and Ms. Sloane,

and the jury was free to believe or disbelieve their testimony. We decline to

re-weigh the evidence in this case. Id.

      The statute provides, in relevant part, that any person who carries a

firearm in any vehicle or concealed on or about his person, except in his place

of abode or fixed place of business, without a valid and lawfully issued license,

commits a felony of the third degree.         See 18 Pa.C.S. § 6106; see also

Commonwealth v. Lopez, 57 A.3d 74 (Pa. Super. 2012). In the instant

case, the evidence was sufficient to sustain Appellant’s conviction. Testimony

established that Ms. Sloane purchased a .40 caliber Taurus pistol for

Appellant’s use. Photographs showed Appellant holding and wielding a semi-

automatic pistol.   Mr. Jones testified that Appellant threatened him with a

firearm and hit him with it. Ms. Cook testified that Appellant held a gun and

fired it from the window of the getaway car. Appellant’s fingerprints were

found on papers inside the case of the Taurus pistol. The bullets and casings

recovered from the scene were consistent with being fired from a .40 caliber

pistol and could have been fired from a Taurus. The parties stipulated that

Appellant did not have a license to possess a firearm.         Accordingly, the

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evidence was sufficient to establish that Appellant possessed a firearm outside

of his place of abode and did not have a license to do so. See Lopez, 57 A.3d

at 74.

         Seventh, Appellant claims the evidence was insufficient to sustain his

conviction for escape where the Commonwealth did not prove that Appellant

left official detention.   See Appellant’s Brief at 37. Appellant argues that,

although there were police sirens and a police chase, the vehicle in which

Appellant was a passenger did not pull over or acquiesce to commands, it was

accordingly never in official detention. See Appellant’s Brief at 39. Appellant

distinguishes Commonwealth v. Stewart, 648 A.2d 797 (Pa. Super. 1994),

and relies upon Commonwealth v. Woody, 939 A.2d 359 (Pa. Super. 2007),

to support his argument.

         “A person commits [the offense of escape] if he unlawfully removes

himself from official detention . . . .” See 18 Pa.C.S. § 5121(a). Escape is a

felony where the actor was under arrest for or detained on a charge of felony

and employs a deadly weapon to effect the escape. See 18 Pa.C.S. § 5121(d).

“Official detention” means “arrest . . . . or any other detention for law

enforcement purposes.”       See 18 Pa.C.S. § 5121(e).     We have previously

determined that official detention, in the context of escape, means “a seizure

in which the police have restrained the liberty of a person by show of authority

or physical force.” See Commonwealth v. Santana, 959 A.2d 450, 452 (Pa.

Super. 2008) (internal citations and quotations omitted). Determination of




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whether a seizure occurred is based upon the totality of circumstances and

whether a reasonable person would have believed he was free to leave. Id.

      In Stewart, police officers responded to a domestic dispute, in uniform

and in a marked car. See Stewart, 648 A.2d at 797. After being informed

that the appellant had a weapon, a police officer pulled his vehicle alongside

the appellant’s and ordered him to put his hands on the dashboard. Id. The

appellant drove away and was taken into custody shortly thereafter. Id. Our

Court upheld the appellant’s conviction for escape and found that the show of

authority was sufficient to establish official detention, reasoning that “no

reasonable person would believe he or she is free to leave when a uniformed

officer with a gun drawn has requested that person turn the car off and to

place his or her hands on the dashboard.” Id. at 798.

      In Woody, a police officer attempted to initiate a traffic stop by turning

on his lights and sirens, but the appellant fled on foot. See Woody, 939 A.2d

at 360-61. The police officer gave chase, yelling for him to stop. Id. at 361.

The appellant was apprehended and charged with escape. Id. at 361. Our

Court vacated his conviction for escape, noting that in Stewart there was a

“momentary period in which the officer was able to demonstrate a show of

authority to the appellant” as to suggest to him that he was officially detained.

Id. at 362. The Woody Court found that, unlike in Stewart, the charge of

escape was based solely on the appellant’s failure to comply with instructions

to stop and get on the ground.       Id. at 363.   This command, without an




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additional show of authority or force, was insufficient to establish that the

appellant had been detained. Id.

      In the instant case, Officer Diaz effectuated a pursuit of Appellant with

his lights and sirens activated, in uniform, in a marked police car. He did not

speak with Appellant, order him to stop, or inform Appellant he was under

arrest. Due to the emergent circumstances of the crime and flight, no warrant

had been issued for Appellant’s arrest. Essentially, whether Appellant was

under official detention hinges on whether pursuit with lights and sirens is

sufficient to establish pre-arrest detention.

      The trial court and the Commonwealth contend that, because Officer

Diaz pursued Appellant with lights and sirens, the jury could reasonably infer

that Appellant knew he was not free to leave.       This is not consistent with

current Pennsylvania law. See, e.g., Commonwealth v. Woody, 974 A.2d

1163 (Pa. 2009) (per curiam) (Eakin, J., dissenting) (affirming Superior Court;

J. Eakin in dissent noting that lights and sirens should be sufficient to alert a

reasonable person that he or she is being detained).       Without some other

show of authority, the Commonwealth cannot establish that Appellant was

officially detained.   See, e.g., Commonwealth v. Colon, 719 A.2d 1099,

1101 (Pa. Super. 1998) (noting that a warrant for arrest completes a required

element of official detention); see also Santana, 959 A.2d at 453 (noting

that the warrant to detain appellant, officers ordering appellant to stop

running, and officers informing appellant he was under arrest were sufficient

to establish detention).

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      Accordingly, we vacate Appellant’s conviction for escape, as the

evidence was insufficient to support the contention that he was under official

detention at the time of his flight. See Woody, 939 A.2d at 363. Further,

our disposition of this issue may disturb the court’s overall sentencing scheme.

See Commonwealth v. Goldhammer, 517 A.2d 1280, 1283-84 (Pa. 1986)

(stating, “When a defendant challenges one of several interdependent

sentences, he, in effect, challenges the entire sentencing plan.”); see also

Commonwealth v. Williams, 871 A.2d 254, 266-67 (Pa. Super. 2005)

(noting that, where this Court disturbs the court’s overall sentencing scheme,

it is appropriate to remand for resentencing). Accordingly, we remand for

resentencing, and decline to address Appellant’s claim regarding the

discretionary aspects of his sentence.

      Judgement of sentence for escape reversed. For all remaining charges,

Appellant’s convictions are affirmed. Judgment of sentence for the remaining

convictions vacated. Remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2017




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