J-A06032-18
                                  2018 PA Super 150

    COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                    Appellee                   :
                                               :
                        v.                     :
                                               :
    KAELIN THOMAS ANT WEBER,                   :
                                               :
                    Appellant                  : No. 118 WDA 2017


           Appeal from the Judgment of Sentence December 19, 2016
               in the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000456-2016

BEFORE:      BENDER, P.J.E., SHOGAN, and STRASSBURGER, JJ.*

DISSENTING OPINION BY STRASSBURGER, J.:                 FILED JUNE 05, 2018

        Because the trial court did not err in precluding Appellant from

presenting the statutory defense, I respectfully dissent.

        In considering Appellant’s issue, we first point out that there is only one

published opinion from this Court addressing this subsection of the statute.

That case, Commonwealth v. Bowen, 55 A.3d 1254 (Pa. Super. 2012),

presents an example of a “typical” situation under this statute.1 Bowen was


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1   The trial court explained the following in support of its conclusion.

        Typically, a defense based on 75 Pa.C.S. § 3733(c), is used when
        the police initiate a traffic stop and a defendant is charged with
        not stopping because he had a reasonable concern for his safety.
        This scenario is not what happened with Appellant, who did
        initially stop for police. Appellant did not move from an unsafe
        location to a safe one, he did just the opposite by crossing several
        lanes of a busy highway at a high rate of speed.

Trial Court Opinion, 6/6/2017, at 5.

*Retired Senior Judge assigned to the Superior Court.
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convicted of, inter alia, fleeing and eluding, when he did not stop his vehicle

once a police car activated its lights and sirens, but instead proceeded to drive

erratically at between 70 and 100 miles per hour for approximately 30

minutes. “Eventually spike strips were deployed to stop [Bowen’s] vehicle.”

Id. at 1257. Bowen drove over the spike strips, and an officer was able to

maneuver in front of Bowen’s vehicle in order to stop it.

      Bowen testified in his defense, explaining that he had a good faith

concern for his safety because he “had a paintball gun in the car that

resembled a machine gun [and] wanted to notify the police that he had the

gun before he pulled over.” Id. at 1259. The trial court instructed the jury on

the subsection 3733(c)(2) defense. Nevertheless, the jury convicted Bowen

of fleeing and eluding. On appeal, Bowen argued “that the Commonwealth

insufficiently disproved his affirmative defense,” contending that “he carried

his burden by demonstrating that his failure to stop was based upon a good

faith concern for his personal safety.” Id. at 1261-62. This Court concluded

that Bowen’s argument was a challenge to the weight of the evidence, not the

sufficiency of the evidence, because he was claiming that the jury should have

believed his testimony. Thus, this Court concluded that Bowen’s sufficiency-

of-the-evidence claim was without merit.

      While Bowen is instructive, it does not answer the question of whether

the trial court erred in precluding the defense. The court of appeals for the

District of Columbia considered a similar situation.


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       In that case, a Metro Transit Officer “observed a vehicle blocking the

flow of traffic.” Barnhardt v. U.S., 954 A.2d 973, 975 (D.C. Ct. App. 2008).

The engine was running, but the vehicle did not proceed when the light turned

green and remained parked through two cycles of the light.           The officer

sounded his emergency air horn and activated his emergency lights, but the

vehicle did not move. Other officers in uniform arrived on the scene in marked

police vehicles. It appeared the driver of the vehicle, Barnhardt, was asleep.

An officer “banged his flashlight on the window, [and] Barnhardt sat up and

looked around.” Id. When Barnhardt woke up, he began to reach for the

center console, and all officers drew their service weapons and pointed them

at Barnhardt. One officer “called out ‘crossfire’ to warn the other officers not

to shoot one another.” Id. Barnhardt continued to “reach for something” and

an officer “unsuccessfully tried to break the driver’s side window with his asp.”

Id. Barnhardt then put his vehicle in reverse, backed up at a high rate of

speed, and fled the scene in a dangerous fashion. A chase ensued, and “police

were finally able to box [] Barnhardt in and apprehend him.” Id.

       Barnhardt was charged with, inter alia, fleeing and eluding a police

officer. At trial, Barnhardt’s defense was that “he failed to stop because he

was afraid for his life.”2 Id. Barnhardt’s counsel requested that the jury be

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2 Barnhardt did not testify, but offered testimony from his sister about
Barnhardt calling her while fleeing and sounding “scared and upset.” Id. at
975.



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instructed “on the affirmative defense provided by the statute.”3 Id. The trial

court denied that request because Barnhardt himself did not testify, and

Barnhardt was convicted. On appeal, Barnhardt claimed the trial court erred

in failing to instruct the jury on this defense.

          The D.C. Court of Appeals affirmed Barnhardt’s judgment of sentence.

In doing so, the court disagreed with the trial court that the reason the defense

failed was because Barnhardt did not testify. Rather, it concluded that the

defense did not apply under the circumstances presented in the case. Relying

on the language of the statute, the court began its “analysis at the point when

the police officers pursue and follow [] Barnhardt and signal him to stop.” Id.

at 977.

       [T]here was no mistaking that [Barnhardt] was being pursued by
       police officers who wore uniforms, drove marked cars, and used
       emergency lights and horns to demonstrate authority and
       urgency. Most notably, [] Barnhardt never voluntarily stopped for
       the police…. While no one factor is dispositive to be entitled to
       assert the defense, [] Barnhardt failed to satisfy any of the factors.

                                           ***

       Even assuming without concluding that [] Barnhardt had a
       “reasonable fear” when he initially fled the police officer, no jury
       could reasonably conclude that [] Barnhardt failed to stop because
       he lacked a safe place and/or method to pull over. Instead, this
       was a situation where he was recklessly trying to elude police
       officers whose identities were not in question.

Id. at 977-78.


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3That defense, codified D.C. Code § 50-2201.05b, is the exact same defense
provided for in 75 Pa.C.S. § 3733(c)(2).

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       Similarly, in this case at bar, Appellant has failed to satisfy any factors

set forth in section 3733(c)(2). Furthermore, and even more compelling in

this case, is the fact that Appellant never stopped for police at any point.   In

fact, he did not even turn himself into police at a later time; rather, he was

arrested months later by chance. I conclude that this statute applies to those

who fail to stop immediately,4 but do stop at some point thereafter.

       Based on the foregoing, I would conclude that the trial court did not err

in precluding this defense,5 and would affirm Appellant’s judgment of

sentence.




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4 See Commonwealth v. Morris, 958 A.2d 569, 579 (Pa. Super. 2008) (“A
presumption … exists that the legislature placed every word, sentence and
provision in the statute for some purpose and therefore courts must give effect
to every word.”).

5 I recognize that the trial court’s rationale was different. However, “[t]his
Court is not bound by the rationale of the trial court, and we may affirm the
trial court on any basis.” Commonwealth v. Williams, 73 A.3d 609, 620 n.4
(Pa. Super. 2013).

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