J-S61041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    YASSIR GAYLE,

                             Appellant                No. 230 EDA 2016


            Appeal from the Judgment of Sentence August 10, 2015
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0003418-2012


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED OCTOBER 30, 2017

        Appellant, Yassir Gayle, appeals from the judgment of sentence imposed

after his jury conviction of two counts of aggravated assault, and one count

each of criminal conspiracy, firearms not to be carried without a license,

carrying firearms in public in Philadelphia, and fleeing or attempting to elude

a police officer.1 We affirm.

        We take the following background facts and procedural history from the

trial court’s July 8, 2016 opinion and our independent review of the certified

record.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S.A. §§ 2702(a), 903, 6106(a)(1) and 6108; and 75 Pa.C.S.A. §
3733(a), respectively.
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           On January 10, 2012, at approximately 7:00 p.m., Officer
     Christopher Culver and his partner, Officer Don Williams, patrolled
     the 2800 block of Ruth Street in Philadelphia in full uniform and in
     a marked police car. (See N.T. Trial, 6/03/15, at 29-30, 44). An
     unidentified white female ran towards their car, pointed to a silver
     Impala with tinted windows that was driving away, and said she
     had been robbed. (See id. at 30, 40, 42). The officers pursued
     the car and activated their lights and sirens. (See id. at 31).
     They ran the tag and found that it was registered to a different
     vehicle. (See id. at 41). The car properly stopped before
     suddenly driving away at a high speed. (See id. at 31-32).
     During the pursuit, the car almost struck a police car from the
     24th District and sped through all stop signs and stop lights. (See
     id. at 42-43, 46). The car struck a barrier at Front Street, but
     continued to drive down the wrong way on Huntingdon Street with
     a blown tire. (See id. at 33, 40-44). It turned onto Emerald
     Street when the front seat passenger, later identified as the
     Appellant, leaned out and shot twice at the officers’ car. (See id.
     at 33, 46; N.T. Trial, 6/05/15, at 164-66). The officers radioed
     for help while a police helicopter unit continued to track the
     suspects from the air. (See N.T. Trial, 6/03/15, at 32, 47).
     Officer Culver saw sparks that were consistent with a gunshot.
     (See id. at 49). Officers Ryan Teaford and Chris Clemens from
     the helicopter unit also witnessed the shooting. (See N.T. Trial,
     6/04/16, at 12, 124). Officers later recovered projectiles on the
     2500 block of Emerald Street and from the trunk area of the
     Impala. (See id. at 181; N.T. Trial, 6/05/15, at 47).

            The Appellant and the backseat passenger, later identified
     as Eric Livingston, ran out of the car on the 2100 block of
     Frankford Avenue. (See N.T. Trial, 6/03/15, at 51-53, 84). They
     then ducked between two cars and tried to stash two guns
     underneath a car. (See id. at 84). Officers Culver and Williams,
     with their guns drawn, ordered them to raise their hands. (See
     id. at 53-54). The defendants did not comply. (See id.) Instead,
     they resisted arrest by punching and kicking at the officers. (See
     id. at 55). During the struggle, a gun fell from the Appellant’s
     body. (See id. at 55, 85-86). Sergeant John Hoyt testified that
     he also heard and saw the gun fall from the Appellant and later
     recovered the gun and placed it on property receipt. (See N.T.
     Trial, 6/05/15, at 17, 21, 37-38).       A dozen other officers
     converged on the scene and eventually apprehended the
     defendants. (See N.T. Trial, 6/03/15, at 84). Officers Williams
     and Culver later recovered the other two guns that the defendants

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     attempted to stash and placed them on property receipts. (See
     N.T. Trial, 6/03/15, at 56; N.T. Trial, 6/05/15, at 184).

           After the two defendants ran out of the car, the driver of the
     Impala, later identified as Michael Williams, jumped out of the car,
     before it crashed on Memphis Street. (See N.T. Trial, 6/04/15, at
     13). Williams fled into someone’s home through an alleyway.
     (See id. at 18). He later exited the home and was subsequently
     apprehended by the police. (See id. at 74). Counsel[] stipulated
     that [Appellant], Williams, and Livingston did not have a valid
     license to carry on the night of the incident. (See N.T. Trial,
     6/05/15, at 206-07).

(Trial Court Opinion, 7/08/16, at 2-4) (footnotes omitted; some record

citations and formatting provided).

     On June 9, 2015, a jury found Appellant guilty of the aforementioned

crimes. The court deferred sentencing for the preparation of a mental health

evaluation and a presentence investigation report. On August 10, 2015, it

sentenced Appellant to an aggregate term of not less than twenty nor more

than forty years’ incarceration plus nineteen years of reporting probation.

Appellant filed a motion to reconsider sentence and a post-sentence motion

on August 18, 2015. The court denied the motion to reconsider sentence on

August 28, 2015. The post-sentence motion was denied on January 19, 2016.

Appellant timely appealed. On May 19, 2016, after being granted multiple

extensions, he filed a timely statement of errors complained of on appeal

pursuant to the court’s order.   See Pa.R.A.P. 1925(b).    The court filed an

opinion on July 8, 2016. See Pa.R.A.P. 1925(a).

     Appellant raises one issue for our review: “Was the evidence insufficient

to support [his] conviction for fleeing and eluding the police, where the

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undisputed evidence at trial was that [he] was not driving the vehicle that

drove away from the police?” (Appellant’s Brief, at 4).

     Our standard of review of this matter is well-settled:

            The standard we apply in reviewing the sufficiency of
     evidence is whether, viewing all the evidence admitted at trial in
     the light most favorable to the verdict winner, there is sufficient
     evidence to enable the fact-finder to find every element of the
     crime beyond a reasonable doubt. In applying the above test, we
     may not weigh the evidence and substitute our judgment for that
     of the fact-finder. In addition, we note that the facts and
     circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant’s guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt by
     means of wholly circumstantial evidence. Moreover, in applying
     the above test, the entire record must be evaluated and all
     evidence actually received must be considered. Finally, the trier
     of fact while passing upon the credibility of witnesses and the
     weight of the evidence produced, is free to believe all, part or none
     of the evidence.

Commonwealth v. Sauers, 159 A.3d 1, 11 (Pa. Super. 2017) (citation

omitted).

     In this case, Appellant argues that the evidence was insufficient to

convict him of fleeing or attempting to elude a police officer because he was

not the driver of the car in question. (See Appellant’s Brief, at 6-8). We

disagree.

     Pursuant to section 3733(a) of the Vehicle Code, “[a]ny driver of a motor

vehicle who 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

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visual and audible signal to bring the vehicle to a stop, commits” the crime of

fleeing or attempting to elude a police officer.      75 Pa.C.S.A. § 3733(a).

“Driver” is defined as “[a] person who drives or is in actual physical control of

a vehicle.” 75 Pa.C.S.A. § 102.

      In the present matter, there is no dispute that Appellant was the front

seat passenger in the subject vehicle, not the driver. However, this does not

end our inquiry, because the jury also convicted him of criminal conspiracy.

Although Appellant did not challenge the sufficiency of the evidence to support

the conviction, we conclude that evidence was sufficient to support a finding

of criminal conspiracy.

      “A person is guilty of conspiracy with another person to commit a crime

if with the intent of promoting or facilitating its commission he . . . agrees to

aid another person in the planning or commission of such crime[.]”            18

Pa.C.S.A. § 903(a)(2).

            Circumstantial evidence may provide proof of the
      conspiracy. The conduct of the parties and the circumstances
      surrounding such conduct may create a web of evidence linking
      the accused to the alleged conspiracy beyond a reasonable doubt.
      Additionally:

                   An agreement can be inferred from a variety of
            circumstances including, but not limited to, the
            relation between the parties, knowledge of and
            participation in the crime, and the circumstances and
            conduct of the parties surrounding the criminal
            episode. These factors may coalesce to establish a
            conspiratorial agreement beyond a reasonable doubt
            where one factor alone might fail.




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            Furthermore, flight, along with other circumstantial
      evidence, supports the inference of a criminal conspiracy.

Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011), appeal

denied, 42 A.3d 1059 (Pa. 2012) (citations and quotation marks omitted).

Further:

            Once there is evidence of the presence of a conspiracy,
      conspirators are liable for acts of co-conspirators committed in
      furtherance of the conspiracy. Even if the conspirator did not act
      as a principal in committing the underlying crime, he is still
      criminally liable for the actions of his co-conspirators taken in
      furtherance of the conspiracy.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002),

appeal denied, 805 A.2d 521 (Pa. 2002) (citations omitted).

      Here, the evidence established that Appellant and his co-conspirators

led the police on a high-speed chase in the City of Philadelphia. During the

pursuit, Appellant fired at the officers with a semi-automatic handgun. Once

the car was disabled, Appellant and the two other individuals ran away,

attempting to elude police officers on foot. We conclude that the jury properly

found that this “web of evidence” linked Appellant to the conspiracy, beyond

a reasonable doubt. Devine, supra at 1147 (citation omitted).

      Based on the foregoing, Appellant was “liable for acts of co-conspirators

committed in furtherance of the conspiracy.”       Lambert, supra at 1016

(citation omitted). Hence, we conclude that, although Appellant was not the

driver of the vehicle, the evidence supported the jury’s conviction of fleeing

or attempting to elude a police officer where it was part of a criminal


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conspiracy in which he was a participant.   See Sauers, supra at 11.

Appellant’s issue lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2017




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