J-S33013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES FLEETRO THOMAS                       :
                                               :
                       Appellant               :   No. 1531 MDA 2018

          Appeal from the Judgment of Sentence Entered June 20, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                        No(s): CP-36-CR-0000599-2017

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES FLEETRO THOMAS                       :
                                               :
                       Appellant               :   No. 1532 MDA 2018

          Appeal from the Judgment of Sentence Entered June 20, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                        No(s): CP-36-CR-0000600-2017


BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 02, 2019

        James Fleetro Thomas appeals from the judgments of sentence, entered

in the Court of Common Pleas of Lancaster County, after a jury convicted him

of one count each of burglary1 and recklessly endangering another person2

____________________________________________


1   18 Pa.C.S.A. § 3502(a)(1)(ii).
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(REAP), and three counts of receiving stolen property3 (RSP).4 Upon careful

review, we affirm in part and vacate in part.

        On January 17, 2017, Kennith Cauler awoke at his home, 15 Susquaw

Place, to discover his back door open, his drawers rifled through, and his blue

Subaru Forester (“the Subaru”) missing.            Cauler reported to the police an

Xbox, an Xbox controller, an antique glass bowl with change, an iPad, and an

iPhone 6 had been taken from his house, and a Gibson guitar and an iPhone

4 were inside the stolen Subaru.

        The   Manheim      Township      Police   Department   suspected   Thomas’

involvement with the break-in at 15 Susquaw Place and sent detectives to

surveil 1343 Glen Moore Circle, which they believed to be Thomas’ residence.5
____________________________________________


2   18 Pa.C.S.A. § 2705.

3   18 Pa.C.S.A. § 3925(a).

4 Thomas’ trial encompassed charges filed under docket numbers CP-36-CR-
0000599-2017 and CP-36-CR-0000600. In addition to the five above
mentioned convictions, the jury found Thomas not guilty of one count of
burglary under docket number CP-36-CR-0000600. Thomas also pleaded
guilty to burglary, theft, and criminal mischief under docket number CP-36-
CR-0001651-2017, for a negotiated sentence of two to five years’
incarceration running concurrent to the sentences imposed on the two above-
mentioned docket numbers.

5 The trial testimony, the parties’ briefs, and the trial court’s opinions all fail
to mention why Thomas was a suspect or why 1343 Glen Moore Circle was
under surveillance. It appears Manheim Township Detectives Brent Shultz
and Brian Freysz were investigating a series of local thefts, and noticed
similarities to a series of thefts in 2014 for which the two detectives had
arrested Thomas. See Affidavit of Probable Cause, 1/18/17, at 5. A records
search revealed Thomas was, at the time, under the supervision of Lancaster



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On January 18, 2017, around 1:00 a.m., Detective Steven Newman observed

a blue Subaru park in front of 1343 Glen Moore Circle, and watched as Thomas

exited the car, opened the back of the vehicle, and took a large flat-screen

television into the house. The detectives then determined from the license

plate that the Subaru was the car stolen from 15 Susquaw Place the previous

day. Thomas got back in the Subaru and headed west on Fruitville Pike.

       Shortly thereafter, an officer attempted to pull Thomas over. Instead

of stopping, Thomas slowed down, leapt from the Subaru, and fled on foot.

Meanwhile, the Subaru rolled down Fruitville Pike, heading toward the lanes

designated for oncoming traffic. Detective Newman pursued Thomas on foot

and eventually took him into custody. Officer John Donnelly ran the Subaru

down on foot, managing to jump into the moving vehicle and put it in park

after it had rolled approximately fifty feet.

       Following Thomas’ arrest in the early morning of January 18, 2017,

Officers searched the Subaru and found an iPhone charger belonging to

Cauler, as well as a purse and checkbook belonging to Lynn Niehaus. Soon

after, officers executed a search warrant on 1343 Glen Moore Circle,

discovering two iPhones and an iPad belonging to Cauler. The officers also

discovered a flat-screen television, a laptop computer, and a key fob.


____________________________________________


County Adult Probation, and in a relationship with a woman living at 1343
Glen Moore Circle. Id. Three detectives then proceeded to surveil the
property in the early morning of January 18, 2017. Id.


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       At 5:10 a.m. that same day, Adam Fry awoke at his 103 Red Oak Road

home, along with Niehaus, his girlfriend. Fry noticed the back door was open,

and his flat-screen television, his laptop, two sets of car keys, and Niehaus’

iPad were missing. Niehaus discovered her purse, which contained makeup,

a laser measure, a tape measure, and a checkbook, was missing. These items

were all discovered in Thomas’ possession following searches of his person,

the stolen Subaru, and 1343 Glen Moore Circle.      Prior to trial, the parties

stipulated that no fingerprint, DNA, or trace evidence linked Thomas to the

crimes committed at 103 Red Oak Road or 15 Susquaw Place, and that there

were no witnesses that could link him with either location.

       On March 13, 2018, following a two day trial before the Honorable

Donald R. Totaro, the jury rendered the following verdict: on docket number

CP-36-CR-0000599-2017,6 guilty of one count of burglary and one count of

RSP; on docket number CP-36-CR-0000600-2017,7 guilty of two counts of

receiving stolen property and one count of REAP, and not guilty of burglary.

On June 20, 2018, the court sentenced Thomas as follows: ten to twenty

years’ incarceration for burglary, with RSP merging for sentencing purposes

on docket number CP-36-CR-0000599-2017; and three to seven years’

incarceration for both counts of RSP and one to two years’ incarceration for

____________________________________________


6The Commonwealth prosecuted charges connected to events at 103 Red Oak
Road under docket number CP-36-CR-0000599-2017.

7 The Commonwealth prosecuted charges connected to events at 15 Susquaw
Place under docket number CP-36-CR-0000600-2017.

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REAP, set to run concurrently on docket number CP-36-CR-0000600-2017,

but consecutively to Thomas’ sentence for burglary on docket number CP-36-

CR-0000599-2017.

       On June 27, 2018, Thomas filed post-sentence motions challenging the

sufficiency of the evidence, which the court denied on August 17, 2018.

Thomas timely filed notices of appeal,8 followed by a court-ordered concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

He raises the following issues for our review:

       1) Was the evidence presented by the Commonwealth insufficient
          to prove beyond a reasonable doubt that [] Thomas committed
          [the] burglary of 103 Red Oak Road, where there was no
          evidence that [] Thomas entered 103 Red Oak Road?

       2) Was the evidence presented by the Commonwealth insufficient
          to prove beyond a reasonable doubt that [] Thomas received
          more than $2000 in stolen property from 15 Susquaw Place;
          thus, on [docket number CP-36-CR-0000600-2017], should
          [Thomas] have been convicted of receiving stolen property
          graded as a first[-]degree misdemeanor?

       3) Was the evidence presented by the Commonwealth insufficient
          to prove beyond a reasonable doubt that [] Thomas recklessly
          endangered another person where there was no evidence that
          [] Thomas placed any person in danger of death or serious
          bodily injury by fleeing from his vehicle without first placing the
          vehicle in park?


____________________________________________


8 Thomas filed separate notices of appeal under both docket numbers in
compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Both
parties consented to consolidate Thomas’ appeals pursuant to Pa.R.A.P. 513.
See Stipulation for Consolidation, 9/27/18, at 1–3. Consequently, we review
issues arising under both docket numbers together. See Pa.R.A.P. 513
(appeals may be consolidated by stipulation of parties to multiple appeals).

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Brief of Appellant, at 7.

      Thomas’ claims all attack the sufficiency of the evidence underpinning

his convictions. Our standard of review with regard to such claims is well-

settled:

      We review claims regarding the sufficiency of the evidence by
      considering 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. Further, a conviction may be
      sustained wholly on circumstantial evidence, and the trier of fact—
      while passing on the credibility of the witnesses and the weight of
      the evidence—is free to believe all, part, or none of the evidence.
      In conducting this review, the appellate court may not weigh the
      evidence and substitute its judgment for the fact-finder.

Commonwealth v. Strafford, 194 A.3d 168, 174 (Pa. Super. 2018)

(citations and quotations omitted).

      Thomas first claims his burglary conviction rests on insufficient

evidence, as there was no direct evidence he entered Fry and Niehaus’ home.

Brief of Appellant, at 17.

      The Crimes Code, in relevant part, defines burglary as follows:

      § 3502. Burglary

      (a)   Offense defined.--A person commits the offense of burglary
            if, with the intent to commit a crime therein, the person:

            [(1)](ii) enters a building or occupied structure, or
            separately secured or occupied portion thereof that is
            adapted for overnight accommodations in which at the time
            of the offense any person is present[.]

18 Pa.C.S.A. § 3502(a)(1)(ii); see also Commonwealth v. Cooper, 941

A.2d 655, 666 (Pa. 2007) (“[T]he Commonwealth is required to prove beyond

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a reasonable doubt that the offender entered the premises, with the

contemporaneous intent of committing a crime, at a time when he was not

licensed or privileged to enter.”)

      In addition to furnishing the finder of fact with sufficient evidence to

prove every element of each crime beyond a reasonable doubt, the

Commonwealth must establish, beyond a reasonable doubt, the identity of the

defendant as the individual who perpetrated the crimes. Strafford, supra at

174. Evidence of identification, however, “need not be positive and certain to

sustain a conviction.” Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super.

2011) (en banc). Further, “[t]he Commonwealth may sustain its burden by

proving every element of the crime beyond a reasonable doubt by means of

wholly circumstantial evidence.” Commonwealth v. Callen, 198 A.3d 1149,

1167 (Pa. Super. 2018).

      Our courts have acknowledged, in finding a defendant guilty beyond a

reasonable doubt, finders of fact occasionally must rely on inferential

reasoning, expounding on the relationship between inference and reasonable

doubt as follows:

      An inference is permissive; it allows, but does not require, the
      factfinder to infer the elemental fact from proof of the basic fact
      and places no burden of persuasion on the defendant. Inasmuch
      as the trier of fact may either accept or reject the inference, the
      question of whether the elemental fact is properly inferred from
      the basic facts rests on the connection between the facts in the
      context of an evidentiary record, not on an analysis of the
      relationship between the facts in the abstract. Thus, an inference
      does not relieve the [Commonwealth] of its burden of persuasion
      because it still requires the [Commonwealth] to persuade the jury

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      that the suggested conclusion should be inferred based on the
      predicate facts proved. Accordingly, an inference is not more than
      a logical tool enabling the trier of fact to proceed from one fact to
      another if the trier believes that the weight of the evidence
      warrants the conclusion sought. Because the inference leaves the
      trier of fact free to credit or reject the inference and does not shift
      the burden of proof, it affects the application of the [] reasonable
      doubt standard, only if, under the facts of the case there is no
      rational way the trier [of fact] could make the connection
      permitted by the inference.

Commonwealth v. Salter, 858 A.2d 610, 615 (Pa. Super. 2004) (emphasis

added) (citations and quotations omitted).

      In Commonwealth v. Owens, 271 A.2d 220 (Pa. 1970), our Supreme

Court found it impermissible to presume an individual knew property had been

stolen when that individual possessed recently stolen goods. See id. at 322.

In doing so, Owens thus precluded unconstitutional burden-shifting, wherein

the defendant was forced to prove his own innocence. See id. at 235 (stating

previously used presumption as:       “Where property has been stolen and is

speedily found in possession of [someone], the law puts upon him the burden

of its explanation. Otherwise, he is deemed to have been the thief.”)

      The Owens rationale, however, is inapplicable where “guilt is based

upon an evidentiary inference rather than a burden[-]shifting presumption.”

Commonwealth v. Brosko, 365 A.2d 867, 869 (Pa. Super. 1976). Instead,

the constitutionality of an evidentiary inference is determined by evaluating

whether the inferred fact “is more likely than not to flow from the proved fact

on which it is made to depend.       Where the inference allowed is tenuously

connected to facts proved by the Commonwealth, due process is lacking.”

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Commonwealth v. McFarland, 308 A.2d 592, 594 (Pa. 1973) (citations

omitted); see also Commonwealth v. Turner, 317 A.2d 298 (Pa. 1974)

(holding possession of recently stolen property could justify conclusion

possessor was thief where additional facts established rational nexus sufficient

to establish guilt beyond reasonable doubt). Our Supreme Court delineated

the following factors for determining whether the Commonwealth’s evidence

“more likely than not” gives rise to the inference that an individual participated

in a burglary: “the lapse of time between the crime and the discovery of the

property; the type and kind of property; the amount and volume of property;

and the ease in which it may be assimilated into trade channels.” McFarland,

supra at 594. (citation omitted).

      In Commonwealth v. Shaffer, 228 A.2d 727 (Pa. 1972), on facts

where the appellant was apprehended twenty-four hours after two burglaries

in possession of twenty-five pieces of jewelry bearing individuals’ names and

initials, our Supreme Court applied the above-mentioned factors and found

“the inference of complicity in the burglary could ‘more likely than not’ flow

from the proved fact of possession of recently stolen, non-negotiable

property.”   McFarland, supra at 594 (citing Shaffer, supra at 737).           In

contrast, under circumstances where the police arrested an individual in

possession of bonds that had been stolen from a private home eleven months

earlier, the Court concluded it improper to infer his participation in the




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burglary because “the possibilities of acquisition which do not involve

complicity in the [] burglary are numerous.” McFarland, supra at 595.

     Here, Thomas argues it was improper for the jury to infer his

participation in the burglary of Fry and Niehaus’ home from his possession of

their property. See Brief of Appellant, at 17, 21. Moreover, he argues the

trial court substituted the requirement that the Commonwealth prove each

element of burglary beyond a reasonable doubt for one merely requiring it be

“more likely than not” that Thomas committed the burglary. See id. at 21.

      Thomas’ arguments misconstrue the role inferential reasoning plays in

a fact finder’s conclusions. See Salter, supra at 615. The Commonwealth

is always required to prove each element of a crime beyond a reasonable

doubt, however it may do so by drawing on evidence to support inferences,

which the trier of fact may then credit or reject. See id. The “more likely

than not” standard is instead used to evaluate whether or not an evidentiary

inference, upon which a jury based a finding of guilt beyond a reasonable

doubt, is constitutionally infirm. See McFarland, supra at 439.

       Thomas precipitated his own arrest by taking Fry and Niehaus’

television into 1343 Glen Moore Circle in plain view of three detectives at

12:15 a.m.—approximately two hours after Fry and Niehaus went to sleep.

See N.T. Trial, 3/12/18, at 105; 136–37.       Additionally, after executing

warrants on the Subaru and 1343 Glen Moore Circle, the police recovered

several other items belonging to the couple, including their car keys,


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computer, iPad, and Niehaus’ purse. Id. at 119–22. Fry confirmed his and

Niehaus’ ownership of these items by entering valid passcodes into the devices

and showing the police duplicate car keys matching those taken from their

house. Id. 120–22. The police confirmed Niehaus’ ownership of the purse

from the checkbook, which had her name on it and was inside the purse. Id.

at 129.

      Taken together, these facts meet the quantum of evidence necessary to

allow the jury to infer from possession of stolen goods that Thomas entered

Fry and Niehaus’ home, and that he did so with the intent to commit theft.

See McFarland, supra at 594 (including time between theft and arrest, and

type and kind of property as factors in analysis). Unlike McFarland, the facts

outlined above, particularly the uniqueness of the items stolen and the

proximity in time between theft and arrest, serve to rule out “possibilities of

acquisition which do not involve complicity in [] burglary[.]” Id.         The

Commonwealth further demonstrated neither Fry nor Niehaus gave Thomas

permission to enter their house or to take their property. N.T. Trial, 3/12/18

at 122; 131. Consequently, Thomas’ burglary conviction rests on sufficient

evidence. See Cooper, supra at 666.

      Next, Thomas argues the Commonwealth failed to prove he possessed

over $2,000 of stolen property—the amount necessary for grading his RSP

conviction under count two of docket number CP-36-CR-0000600 as a third-

degree felony. Brief of Appellant, at 23. Thomas acknowledges “receiving all


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of the property stolen from 15 Susquaw Place which was found in the Subaru

he was driving, or the residence at 1343 Glen More Circle.” Id. at 24. He,

however, denies possessing Cauler’s guitar, valued at $2,000, without which

his RSP conviction would have been graded as a first-degree misdemeanor.9

Id.

       RSP is graded as a third-degree felony when the stolen goods at issue

are valued at over $2,000, and as a first-degree misdemeanor when the value

is between $200 and $2,000. 18 Pa. C.S.A. § 3903(a.1), (b). 10 The Crimes

Code defines RSP, in relevant part, as follows:

       § 3925. Receiving stolen property

       (a) Offense defined.--A person is guilty of theft if he
       intentionally receives, retains, or disposes of movable property of
       another knowing that it has been stolen, or believing that it has
       probably been stolen, unless the property is received, retained, or
       disposed with intent to restore it to the owner.

18 Pa.C.S.A. § 3925; see also Commonwealth v. Morrissey, 654 A.2d

1049, 1054 (Pa. 1995) (“[T]he Commonwealth must establish possession of

a stolen item and that the possessor knew, or had reason to know, that the

item was stolen.”).




____________________________________________


9Thomas does not challenge the fact that the guitar was stolen, or its $2,000
valuation. See Brief of Appellant, at 25 n.3.

10Limited exceptions, delineated in 18 Pa.C.S.A. § 3903(a) and (a.2), are not
applicable to the instant case.

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      The Commonwealth need not prove actual possession, instead being

free to establish defendant’s receipt, retention, or disposition of stolen

property under a theory of constructive possession.        Commonwealth v.

Brady, 560 A.2d 802, 806 (Pa. Super. 1989); see also Commonwealth v.

Davis, 280 A.2d 119, 121 (Pa. 1971) (“Absent literal possession, a defendant

can be said to be in possession of stolen goods only when it is proved that he

exercised conscious control or dominion over those goods”). In doing so, the

Commonwealth must show the defendant had “the power to control the

contraband and the intent to exercise that control.”       Commonwealth v.

Grekis, 601 A.2d 1275, 1281 (Pa. Super. 1992); compare Commonwealth

v. Walters, 378 A.2d 1232, 1235–36 (allowing inference of control over

stolen goods where contraband was found near appellant’s trailer and

appellant   was    present   at   trailer    during   four-day   period)   with

Commonwealth v. Brady, 560 A.2d 802 (rejecting inference of control over

where appellant was passenger in car he did not own and stolen goods were

found in trunk).

      At trial, Cauler testified that on January 16, 2018, he drove his son home

from guitar lessons, and his son left the guitar at issue in the Subaru. N.T.

Trial, 3/12/18, at 72–76. Later that night, the Subaru was stolen. Id. at 75.

On January 18, 2018, shortly after 1:00 a.m., police apprehended Thomas

driving Cauler’s Subaru and recovered Cauler’s video game controller and

phone chargers inside the vehicle. Id. at 196–99. Police later discovered


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Cauler’s iPhone 4, iPhone 6, and iPad inside 1343 Glen Moore Circle, the

residence outside of which detectives observed Thomas unloading Fry and

Niehaus’ television. Id. at 187–90. Detectives later discovered Cauler’s guitar

had been sold to a local Guitar Center by a woman named Bridget Boyer, but

the Commonwealth did not offer any evidence connecting Boyer to Thomas,

or provide direct evidence of Thomas possessing the guitar. Id. at 213.

      The jury, acting as the finder of fact, was free to find Thomas not guilty

of burglarizing Cauler’s home. See Strafford, supra at 174. The jury was

also free to infer from the facts that Thomas intended to exercise conscious

dominion over Cauler’s guitar, especially under circumstances where Thomas

was apprehended in the vehicle where Cauler stored the guitar one day after

the Subaru was reported stolen, and he possessed goods stolen from two

different homes.    See Walters, supra at 1235–36 (finding constructive

possession based on appellant’s control over location where stolen goods were

stored); see also Salter, supra at 615 (allowing inferences unless “under

the facts of the case there is no rational way the trier [of fact] could make the

connection permitted by the inference.”).      Consequently, we find Thomas’

conviction for RSP, graded as a third-degree felony, rests on sufficient

evidence; to hold otherwise would afford those dealing in stolen goods a

license to possess stolen property so long as he or she managed to find an

opportunity to offload ill-gotten property before arrest. See Walters, supra

at 1235–36.


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      Lastly, Thomas claims his conviction for REAP rests on insufficient

evidence, arguing the Commonwealth failed to prove he placed any other

person in danger of death or serious bodily injury. Brief of Appellant, at 29.

      The Crimes Code defines REAP as follows:

      § 2705. Recklessly endangering another person

      A person commits a misdemeanor of the second degree if he
      recklessly engages in conduct which places or may place another
      person in danger of death or serious bodily injury.

18 Pa.C.S.A. § 2705; see Commonwealth v. Vogelsong, 90 A.3d 717, 719

(Pa. Super. 2014) (“[T]o support a conviction, the evidence must establish

that the defendant acted recklessly in a manner than endangered another

person.”). Serious bodily injury is defined as, “[b]odily injury which creates a

substantial risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.” 18 Pa.C.S.A. § 2301.

      Consequently, “the Commonwealth must prove that the defendant had

an actual present ability to inflict harm and not merely the apparent ability to

do so. Danger, not merely the apprehension of danger, must be created.”

Commonwealth v. Cianci, 130 A.3d 780, 782 (Pa. Super. 2015).                 An

individual can recklessly place another in danger of serious bodily injury

without consciously attempting to cause serious bodily injury.             See

Vogelsong, supra at 720 (affirming REAP conviction where defendant let her

horse twice wander unattended onto busy roadway, disregarding risk of injury


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to passing motorists). REAP, however, “requires the element of actual danger

of death or serious bodily injury.” Cianci, supra at 783.

      In the instant case, Thomas argues the Commonwealth failed to elicit

any evidence showing that anyone was actually endangered after he

abandoned the Subaru.          Brief of Appellant, at 31.   In response, the

Commonwealth argues two separate bases for affirming Thomas’ REAP

conviction: first, the Commonwealth argues by abandoning the Subaru in gear

on Fruitville Pike, Thomas created an unjustified risk of striking another

vehicle; second, the Commonwealth argues Thomas ignored the substantial

risk faced by the officers who were forced to bring the Subaru to a halt. See

Brief of Appellee, at 13–14.

      In stating its first argument, the Commonwealth admitted “the roadway

was not busy” at the time of Thomas’ flight from the authorities.     Brief of

Appellee, at 14.   At trial, Officer Donnelly confirmed no other vehicles or

pedestrians were present on Fruitville Pike during Thomas’ flight. See N.T.

Trial, 3/12/18, at 172–73.     Moreover, Officer Donnelley stated the Subaru

never crossed into the lane designated for opposing traffic.     Id. at 174.

Though actual injury is not a requirement in proving REAP, danger to an actual

person is a required element. See Cianci, supra at 783. Thomas’ conviction

for REAP cannot rest on the danger presented to a potential motorist or

pedestrian. Id.




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       In addition to a real individual, a conviction for REAP also requires risk

of “death or serious bodily injury.” 18 Pa.C.S.A § 2705. The Commonwealth

argues Officer Donnelly and Detective Fritz—the two officers who stopped the

Subaru—were exposed to the danger of sustaining a serious bodily injury while

stopping a vehicle described by Officer Donnelly as “rolling” down an empty

road for fifty feet in approximately ten seconds.11 See N.T. Trial, 3/12/18, at

174. Detective Newman, also involved in the chase, described the scene as

follows:    “Officer Donnelly [attempted] to initiate a traffic stop on [the

Subaru]. At that point, the Subaru Forester began to slow down. I’m not sure

if came to a complete stop or not, but as the vehicle was slowing down, the

driver of the vehicle hopped out[.]” Id. at 142. On these facts, we cannot

find that the officers were exposed to the danger of death or serious bodily

injury while chasing down a car that was rolling so slowly that it was mistaken

for being at a complete stop. See Cianci, supra at 782 (requiring “an actual

present ability to inflict harm[.]”).

       As we cannot find support for the notion that Thomas’ actions placed

“another person in actual danger of death or serious bodily injury” we are

constrained to vacate his conviction for REAP. Cianci, supra at 782. Here,

the trial court imposed his one to two year term of incarceration for REAP to


____________________________________________


11 Officer Donnelly’s estimates of time and distance would equate to the
Subaru traveling at approximately three-and-one-half miles per hour. The
unit conversion is as follows: (50 feet / 10 seconds) × (1 mile / 5,280 feet)
× (3,600 seconds / 1 hour) = 3.4090909 miles per hour.

                                          - 17 -
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be served consecutively to his ten to twenty year term of incarceration for

burglary, and concurrently with his three to seven year terms of incarceration

for both RSP convictions. Vacating his conviction for REAP will not affect the

length of his aggregate term of imprisonment or overall sentencing scheme,

making remand unnecessary. See Commonwealth v. Thur, 906 A.2d 552,

570 (Pa. Super. 2006) (“[I]f our decision does not alter the overall scheme,

there is no need for a remand.”).

      Judgment of sentence for REAP vacated. Judgment of sentence affirmed

for all other counts.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/2/2019




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