J-S73042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRIAN ALLEN CRAGGETTE                      :
                                               :
                       Appellant               :   No. 968 WDA 2018

        Appeal from the Judgment of Sentence Entered February 28, 2018
    In the Court of Common Pleas of Westmoreland County Criminal Division
                       at No(s): CP-65-CR-0004967-2016


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY OLSON, J.:                               FILED JANUARY 3, 2019

       Appellant, Brian Allen Craggette, appeals from the judgment of sentence

entered on February 28, 2018, following his jury trial convictions for

kidnapping to facilitate a felony or flight, possession with intent to deliver a

controlled substance, fleeing or attempting to elude police officer, unlawful

restraint, tampering with physical evidence, and recklessly endangering

another person.1 We affirm.

       The trial court summarized the facts and procedural history of this case

as follows:

       [The aforementioned] charges stemmed from an incident that
       occurred on September 29, 2016, where confidential informant
       Jenny Miller indicated to Detective Sergeant John Swank and
       Detective Ray Dupilka that she could assist in arranging a
____________________________________________


1 18 Pa.C.S.A. § 2901(a)(2), 35 P.S. § 780-113(a)(30), 75 Pa.C.S.A. § 3733,
18 Pa.C.S.A. § 2902, 18 Pa.C.S.A. § 4910, and 18 Pa.C.S.A. § 2705,
respectively.
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       purchase of cocaine from [Appellant]. With the assistance of
       Detective Tony Marcocci, the controlled buy was arranged and set
       into motion. However, the purchase did not go as planned when
       Jenny Miller proceeded to walk out of Detective Marcocci’s line of
       sight and into [Appellant’s] vehicle to complete the purchase.
       According to Ms. Miller, [Appellant] proceeded to drive around the
       block because he believed that the area was too risky to continue
       the purchase. At that point, he realized that Ms. Miller had set
       him up and a high-speed chase occurred with [Appellant] fleeing
       from officers. The chase ended when [Appellant’s] vehicle, with
       Ms. Miller as a passenger, crashed. [Appellant] fled on foot, but
       was captured and arrested.

       After deliberations, the jury found [Appellant] guilty on all counts.
       On February 28, 2018, [the trial c]ourt sentenced [Appellant] to
       an aggregate sentence of six to twelve years[’] incarceration.
       [Appellant] then filed timely [p]ost-[s]entence [m]otions on
       March 7, 2018.

Trial Court Opinion, 6/19/2018, at 1-2.

       The trial court, with the Commonwealth’s consent, granted Appellant

additional time to file a brief in support of his post-sentence motion. Appellant

filed a subsequent brief.          The trial court denied relief by order and

accompanying opinion on June 19, 2018. This timely appeal resulted.2

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

       1. Whether the jury’s verdict [for] kidnapping to facilitate a felony
          was based on sufficient evidence?

       2. Whether the jury’s verdict [for] kidnapping to facilitate a felony
          was against the weight of the evidence?

Appellant’s Brief at 2 (superfluous capitalization omitted).
____________________________________________


2 Appellant filed a notice of appeal on June 22, 2018. On June 26, 2018, the
trial court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on July
2, 2018. On July 10, 2018, the trial court entered an order relying upon its
earlier opinion as its rationale for denying relief.

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      Appellant summarizes his argument as follows:

      Although [] Appellant transported [confidential informant] Miller a
      substantial distance at a high rate of speed, the intent was not to
      commit a kidnapping or any offense against Miller, but to evade
      capture. Moreover, [] Appellant’s intent was not shown to be to
      commit a kidnapping to assist his flight, but rather that the alleged
      ‘kidnapping’ occurred incidental to the police chase and not in the
      facilitation of an escape. Miller, until the time of the flight, willfully
      participated with [] Appellant as a confidential informant. Simply
      because she decided to no longer participate when [] Appellant
      realized the presence of police does not transform flight into a
      kidnapping when [] Appellant refuses to stop his vehicle for
      authorities.

      [] Appellant’s movement of Miller in this matter was not proven to
      be in the facilitation of a felony or flight, but incidental to the flight
      itself. Nothing in [] Appellant’s actions demonstrated an intent to
      kidnap, but rather solely to escape capture. [] Appellant’s alleged
      kidnapping occurred not in the facilitation of a felony or an escape,
      but collateral to his refusal to pull over and let Miller out.

Id. at 13 (record citations omitted) (emphasis in original).

      Our standard of review regarding the sufficiency of the evidence is as

follows:

      In reviewing sufficiency of evidence claims, we must determine
      whether the evidence admitted at trial, and all reasonable
      inferences drawn therefrom, when viewed in the light most
      favorable to the verdict winner, are sufficient to support all the
      elements of the offense. Additionally, to sustain a conviction, the
      facts and circumstances which the Commonwealth must prove,
      must be such that every essential element of the crime is
      established beyond a reasonable doubt. Admittedly, guilt must be
      based on facts and conditions proved, and not on suspicion or
      surmise. However, entirely circumstantial evidence is sufficient so
      long as the combination of the evidence links the accused to the
      crime beyond a reasonable doubt.

      Any doubts regarding a defendant's guilt may be resolved by the
      fact-finder unless the evidence is so weak and inconclusive that


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      as a matter of law no probability of fact may be drawn from the
      combined circumstances. The fact finder is free to believe all, part,
      or none of the evidence presented at trial.

Commonwealth v. Eckrote, 12 A.3d 383, 385–386 (Pa. Super. 2010)

(internal citations and quotations omitted).

      A person is guilty of “kidnapping if he unlawfully removes another a

substantial distance under the circumstances from the place where he is

found, or if he unlawfully confines another for a substantial period in a place

of isolation, [t]o facilitate commission of any felony or flight thereafter[.]” 18

Pa.C.S.A. § 2901(a)(2).

      “The kidnapper must kidnap his victim with the intent to facilitate

commission of a felony; the actual commission of or conviction for a felony is

not an element of the crime of kidnapping.” Commonwealth v. King, 786

A.2d 993, 994 (Pa. Super. 2001). “The statutory language of the crime is

concerned with the state of mind of the kidnapper.”        Id.    “To successfully

prosecute   the   crime    of   kidnapping     under   [Section   2901(a)],   the

Commonwealth must establish appellant kidnapped his victim with the intent

to facilitate the commission of a felony.” Id.

      This Court examined the Model Penal Code’s provisions that correspond

with 18 Pa.C.S.A. § 2901(a), in Commonwealth v. Barfield, 768 A.2d 343

(Pa. Super. 2001).    Therein, we noted that kidnapping or “the removal or

confinement with intent ‘to facilitate commission of any felony or flight

thereafter’” was enacted because “[t]he underlying perception is that

kidnapping in order to commit or escape from a serious crime is especially


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likely to create risk to the victim.”   Barfield, 768 A.2d at 347.    Our Court

determined that “this danger will arise if the predictable confrontation with the

police occurs [and, thus, Section 2901(a)2, modeled after Model Penal Code

§ 212.1,] permits conviction, therefore, for kidnapping by a fleeing felon who

commandeers a car and forces the owner to drive somewhere merely for the

sake of the ride.” Id.

      In this case, there is no dispute that Ms. Miller was removed a

substantial distance for a substantial amount of time. Hence, the trial court

properly determined that “Ms. Miller was removed from the Greensburg area

[…] a substantial distance to the church parking lot in Crabtree, and that she

was moved to a place where she clearly faced an increased risk of harm due

to the high speeds, oncoming traffic, and eventual crash.” Trial Court Opinion,

6/19/2018, at 4.

      The trial court further found:

      [I]n viewing the evidence in the light most favorable to the
      Commonwealth, the testimony [] support[s] a finding that
      [Appellant’s] decision to keep Ms. Miller in the car was done with
      the intention to make it easier to flee after committing the felony
      of possession with intent to deliver.

      Before any police vehicles initiated their lights or a pursuit,
      [Appellant] told Ms. Miller that there were cops in the area and
      accused her of setting him up. At that point in time, [Appellant]
      could have allowed Ms. Miller to exit the vehicle, which does not
      support Appellant’s contention that her presence in the vehicle
      was incidental to the flight. After [police] initiated pursuit, Ms.
      Miller testified that [Appellant] stated he was not going to stop
      and that he was not going to jail. This supports a finding that
      [Appellant] knew he was fleeing from the commission of a felony
      that could result in jail time.

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      Furthermore, Ms. Miller testified that she observed what she
      suspected to be drugs tossed from [Appellant’s] driver side
      window. The tossing of the drugs out of the window would be
      evidence that [Appellant] was fleeing the commission of a felony.
      To confirm Ms. Miller’s account, the Commonwealth presented the
      testimony of [a detective] along with video from the [police
      vehicles’] dash cameras[,] and explained how a subsequent
      search resulted in the discovery of a [discarded,] knotted bag
      containing cocaine.

Id. at 5 (record citations omitted).

      Moreover, the trial court further noted:

      Multiple witnesses testified that Ms. Miller attempted to exit the
      vehicle by opening the door, but she was forced to remain due to
      the accelerated speed.

                           *            *          *

      Ms. Miller testified that she wanted to get out of the car. The only
      time it came to a slight stop, she did attempt to open the door,
      but [Appellant] sped up before she could safely exit the vehicle.
      [Appellant] never expressed a willingness to slow down or let her
      out of the vehicle.

Id. at 4 (record citations omitted).

      Upon review of the record, applicable law, and the trial court’s decision,

we discern no abuse of discretion or error of law in denying Appellant’s

sufficiency of the evidence claim. Appellant removed the victim in this case a

substantial distance.   Appellant intended to sell cocaine to the victim, but

became paranoid that police were following him and accused the victim of

setting him up with the police. Appellant discarded cocaine as he fled at high

speed. Such actions show Appellant knew he was fleeing from the commission

of a felony.   Furthermore, the completed sale of narcotics was simply not



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required in order to support the kidnapping conviction.       Moreover, the jury’s

conclusion that Appellant intended to kidnap the victim to aid in flight to avoid

police apprehension was supported by the evidence, because Appellant

accused the victim of working with police to get him arrested, refused to stop

when the victim asked to get out, and sped up when she tried to open her

door.    Accordingly, there was substantial evidence that the victim was not

“incidentally” riding as a passenger during a police chase, as Appellant

suggests. Appellant held the victim against her will in a moving vehicle and

took her from one location to another, a sizable distance away, while fleeing

from police to avoid felony prosecution for selling drugs. Thus, we conclude

that there was sufficient evidence to support Appellant’s conviction for

kidnapping to facilitate a felony or flight. As such, Appellant’s first issue fails.

        In his second issue presented, Appellant claims that his conviction for

kidnapping to facilitate a felony or flight was against the weight of the

evidence. More specifically, Appellant argues, “[t]he jury’s apparent confusion

over the mischaracterization of a flight veiled as a kidnapping without

supporting evidence is a miscarriage of justice.” Id. Appellant again argues

that “[t]he Commonwealth’s evidence demonstrated the alleged kidnapping

occurred incidental to – and not in facilitation of – flight or the commission of

a felony.” Id.

        Our standard of review is as follows:

        A motion for a new trial based on a claim that the verdict is against
        the weight of the evidence is addressed to the discretion of the
        trial court. A new trial should not be granted because of a mere

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      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. Rather, the role of
      the trial judge is to determine that notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.
      It has often been stated that a new trial should be awarded when
      the jury's verdict is so contrary to the evidence as to shock one's
      sense of justice and the award of a new trial is imperative so that
      right may be given another opportunity to prevail.

      An appellate court's standard of review when presented with a
      weight of the evidence claim is distinct from the standard of review
      applied by the trial court:

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question
            of whether the verdict is against the weight of the
            evidence. Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court's determination
            that the verdict is against the weight of the evidence.
            One of the least assailable reasons for granting or
            denying a new trial is the lower court's conviction that
            the verdict was or was not against the weight of the
            evidence and that a new trial should be granted in the
            interest of justice.

Commonwealth v. Thomas, 194 A.3d 159, 168 (Pa. Super. 2018) (citation

omitted).

    As discussed above, however, we have concluded that evidence presented

at trial established that the kidnapping was not merely incidental to the police

chase. Hence, the trial court’s determination that the verdict did not shock its

sense of justice was not an abuse of discretion. Accordingly, Appellant is not

entitled to relief on his weight of the evidence claim as presented.

    Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2019




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