J-A23026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JONATHAN M. WHITE                        :
                                          :
                    Appellant             :   No. 553 WDA 2018

         Appeal from the Judgment of Sentence February 20, 2018
   In the Court of Common Pleas of Crawford County Criminal Division at
                     No(s): CP-20-CR-0001110-2016


BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

MEMORANDUM BY SHOGAN, J.:                       FILED DECEMBER 04, 2018

      Appellant, Jonathan M. White, appeals from the judgment of sentence

entered on February 20, 2018, in the Crawford County Court of Common

Pleas. After review, we affirm.

      The trial court set forth the relevant factual background of this case as

follows:

            The testimony that was presented at trial, taken in the light
      most favorable to the Commonwealth, is that the Pennsylvania
      State Police observed a vehicle traveling on [Interstate 79 (“I-
      79”)] [n]orthbound in Crawford County commencing at
      approximately mile marker 139.1. The Pennsylvania State Police
      vehicle was traveling northbound as was [Appellant’s] vehicle.
      The trooper was working a speed enforcement detail with another
      representative from the State Police, Corporal [John] O’Day, who
      was located on an overpass of Adamsville Road. Corporal O’Day
      was running radar while Trooper [Brendan] Burns was in a vehicle
      stopped on the roadside. Corporal O’Day would radio speeds and
      vehicle information to Trooper Burns at which time the trooper
      would engage in a stop if appropriate.
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             At approximately 12:06 p.m. Corporal O’Day called out a
       description of a vehicle identified as a black sedan traveling at [85
       miles per hour (“m.p.h.”) in a 70 m.p.h.] zone.[1] The direction of
       travel was noted as I-79 North and, almost immediately
       thereafter, the vehicle then passed Trooper Burns in the left hand
       lane. Upon the vehicle passing the trooper he began pursuit and
       the vehicle continued to travel at a high rate of speed. The trooper
       eventually caught up with the vehicle after approximately two
       miles. The suspect vehicle, throughout those two miles, was
       continuing to travel at a high rate of speed and was identified as
       a black Volkswagen and later identified as a [Volkswagen] Jetta.
       The trooper immediately activated his emergency lights and sirens
       when he was within sight of the vehicle. At that point, the Jetta
       began traveling at faster speeds and then began weaving in and
       out of traffic including traveling down the center of the interstate
       straddling the two lanes. The trooper immediately recognized that
       the driver was unlikely to bring the vehicle to a stop and he
       radioed in his pursuit.

             The suspect vehicle’s speeds increased to the point where
       the trooper identified operational speeds of his vehicle around
       135/140 miles per hour in a 70 m.p.h. zone.              The black
       Volkswagen continued to be operated aggressively, changing
       lanes back and forth, on and off and over the fog lines, around
       vehicles on all sides. The vehicle maintained a similar high rate
       of speed throughout and was interacting so closely with other
       vehicles that the trooper stayed back in fear of there being a likely
       crash. Throughout the pursuit the trooper specifically observed
       the vehicle being operated in a manner that forced other vehicles
       off the roadway and literally and figuratively pushed vehicles out
       of the way. Pennsylvania State Police, on multiple occasions
       throughout the pursuit, attempted intervention methods to try to
       stop the vehicle, all of which were unsuccessful. At some point
       during the interaction, the trooper was able to see the registration
       plate and he identified it as Florida plate which was run through
       NCIC and came back as a rental vehicle.

             At no point in time was the trooper able to see inside of the
       Jetta to identify how many occupants there were in the vehicle.
       The vehicle continued at speeds in excess of 100 m.p.h. until
____________________________________________


1 The maximum speed limit on Pennsylvania freeways is 70 miles per hour.
75 Pa.C.S. § 3362(a)(1.1).

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     ultimately the vehicle attempted to exit I-79 North at exit 180,
     Kearsarge Exit, near the Millcreek Mall in Erie, Pennsylvania.

           While on I-79, the Jetta made physical contact with one
     vehicle. The trooper did not actually recognize the crash occurred,
     it was reported to 911 by the driver of the car that was struck.
     The operator of the vehicle that was struck during the high speed
     chase on I-79 testified at the time of trial that an accident
     occurred, but could not identify the driver or determine how many
     people were in the vehicle.

           Just after exiting off I-79, the vehicle made contact with
     another vehicle. The only time the trooper lost sight of the vehicle
     during pursuit was as the vehicle crested from the highway onto
     the exit ramp on Interchange Road. When the trooper brought
     his vehicle up over the crest, he saw the black Volkswagen sitting
     down the road east of the intersection and a damaged red Subaru
     where a crash had occurred. Trooper Burns believed that he lost
     sight of the vehicle for no more than 30 seconds. Both vehicles
     involved in the crash were stopped on Interchange Road, and the
     black Volkswagen appeared disabled. The trooper approached the
     subject vehicle at its final resting place.

           All told, the pursuit of the black Volkswagen on I-79 north
     covered approximately 41 miles with lights and sirens activated
     the entire time. The vehicle only came to a stop after exiting I-
     79 and coming in contact with another vehicle. The entire pursuit
     was recorded on an MVR and played for the jury. The total time
     of the pursuit was 19 minutes and 45 seconds. The evidence
     shows that the black Volkswagen covered 41 miles in
     approximately 20 minutes.

            Trooper Burns came upon the disabled Jetta and not
     knowing the details of who was inside, began to approach on foot.
     The trooper could see that the driver’s side airbag had deployed
     and was covering the driver’s side window so it was impossible to
     immediately see within the vehicle. The trooper approached and
     saw there was no one sitting in the driver’s seat. There was an
     individual in the passenger’s seat who was extricated from the
     vehicle by another trooper. The passenger was an adult female
     named Victoria Pringle.

          Immediately after the troopers cleared the vehicle, they
     began receiving information from bystanders who were

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     attempting to get the trooper’s attention and pointing generally
     towards Max and Erma’s, a restaurant that was over an
     embankment from where the accident occurred. The trooper
     explained that there were multiple lanes of travel on Interchange
     Road and then an embankment leading downhill to the parking lot
     of Max and Erma’s and then the restaurant itself.1 There was a
     change in elevation so that Max and Erma’s and the parking lot
     sat below the roadway. According to witnesses who testified about
     observations made from the Max and Erma’s parking lot, they
     could not see up to the road where the accident occurred.
     Nonetheless, the bystanders on the highway pointed in the
     direction of Max and Erma’s, so the trooper got back in his vehicle
     and proceeded towards the Max and Erma’s plaza and parking lot
     area. Other troopers had already begun going in that direction.
     There was no direct verbal communication with any of the
     individuals at the location of the accident, but the troopers reacted
     to the immediate indications from the bystanders. Seeing the
     vacant driver’s seat and the individuals pointing, Trooper Burns
     deduced that the driver had fled from the vehicle in the direction
     that the individuals were pointing. Based on these observations,
     it seemed logical for the troopers to begin an initial search in that
     vicinity for the driver of the vehicle.

           1  The area in question although located in Erie County
           would be familiar to many individuals as a matter of
           common knowledge in Crawford County as it is
           located near the primary exit to the Millcreek Mall and
           shopping area. The Court notes that only for purposes
           of explaining that the specific area in question would
           likely have been well known to some, if not all, of the
           jurors from a geographic and topography perspective.

            Some of the MVR shows much of the relevant area. As seen
     on the MVR Trooper Burns drives by several restaurants and into
     the entrance to the Millcreek Mall and then ultimately arrives in
     the Max and Erma’s parking lot. It is also visible from the MVR
     that other troopers started to filter towards Max and Erma’s in the
     direction the bystanders had indicated.

           As Trooper Burns was coming towards Max and Erma’s
     parking lot, a witness in the parking lot area was speaking to
     another trooper and provided information about what they had
     observed. The witness testified at trial that the individual had
     been seen coming from the guardrail in the vicinity of the accident

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J-A23026-18


     on Interchange Road. He was an African American male wearing
     white pants, a white shirt, and a gray hoodie. He came down the
     hill and was eventually observed going into the HomeGoods store
     in the plaza. The distance between the location of the accident
     and the entrance to the HomeGoods store and the shopping plaza
     is 200 to 300 yards. The witness indicated the individual was still
     in the store.

            The trooper, along with several other State Police Officers,
     entered the HomeGoods store scanning the isles looking for
     someone that matched the description provided by the witness.
     Trooper Burns quickly identified an individual matching the
     suspect’s description standing in the checkout line. He observed
     an African American male wearing white pants, white shirt and
     gray zip up hoodie. From the outset, as a result of the man
     matching the description, the trooper considered the individual a
     suspect. Approaching the individual, the Trooper noticed that
     [Appellant] had several items in his hand waiting in the checkout
     line. The items were not specifically recalled, but were believed
     to be a drink or some other small miscellaneous items. The
     individual standing in the checkout line had fresh dirt marks on
     the back of his white pants and some blood visible on his hand.

            The troopers approached [Appellant] who indicated that he
     had no idea what was going on. Upon the eventual search of
     [Appellant], it was noted that he did not have a wallet,
     identification, or money on him. [Appellant], when asked by the
     troopers, initially identified himself [as] Jonathan Wright with a
     date of birth of 9/27/84. The trooper asked [Appellant] to spell
     his name for clarification and he spelled it W-R-I-G-H-T.
     Eventually, [Appellant] was taken back to the Pennsylvania State
     Police Barracks in Meadville and was fingerprinted. The Live Scan
     System identified [Appellant] as Jonathan White with a date of
     birth of 9/26/1984. The trooper identified [Appellant] in the
     courtroom as the same individual that he had detained in the
     HomeGoods Store.

           The individual operating the red Subaru that was struck by
     the black Jetta noted that the car that hit him came flying from
     south to north almost like it was in mid-air because it was moving
     so fast over the crest of the hill. He could not identify any details
     of the driver or any other individuals in the car.




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J-A23026-18


           The witness who observed the happenings from the Max and
     Erma’s parking lot testified that she was leaving Max and Erma’s
     after having lunch. Just as she got into her vehicle she heard a
     loud crash, but could not actually see anything. She then
     immediately heard sirens. She considered this odd because she
     heard sirens so quickly after the crash. She specifically indicated
     that the area of the crash and the sirens was on Interchange Road
     above her location [in] the parking lot [of] Max and Erma’s.
     Interchange Road itself was not visible from the parking lot.
     However, the crash and the sirens caused her to immediately look
     in the general direction up the hill. She could see up to the
     guardrail from the parking lot, which was a distance of 20 to 30
     feet (with the parking lot being downhill from the guardrail).
     Looking up immediately after the crash, she saw an African
     American male jumping over the guardrail and sliding down the
     hill. She found that odd as she is familiar with the area and
     familiar with Interchange Road and has never seen anyone coming
     over the guardrail from that direction. The African American male
     jumped over the guardrail and came into view within seconds of
     the sound of the crash. He slid down the hill and then ran towards
     the shopping plaza. No one else jumped over the guardrail, and
     she did not observe any other people running in that general area.
     She described the individual who jumped over the guardrail as
     having white pants, a white shirt, and a gray zip-up hoodie with
     tan work boots. As he ran through the parking lot towards the
     plaza, she saw him again jump over another guardrail and then
     go down another slope to the plaza. Upon arriving in the vicinity
     of the plaza where other patrons were shopping, he stopped
     running and started walking. Making these observations, she
     called 911 and told them that she had seen the individual go into
     HomeGoods. While on the phone with 911, the dispatcher
     requested that she go down to the area where the individual was
     observed. She then drove to that area and parked in front of
     HomeGoods. The troopers arrived shortly thereafter and she
     gestured where she had seen the individual go.

            When the troopers brought the African American male out
     of HomeGoods, they walked by the witness. The trooper looked
     at her and she nodded her head yes, intending to indicate that the
     trooper had the man she had seen. At trial she confirmed that
     the person that she saw jump over the guardrail, slide down the
     hill, and then go over another guardrail and into HomeGoods was
     in fact the individual that the troopers had brought out of the
     HomeGoods store. Throughout her entire time in the parking lot

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J-A23026-18


       of Max and Erma’s and then when she drove to the area of the
       HomeGoods store where she waited for the troopers to bring
       [Appellant] out, the witness never saw anyone else running.

Trial Court Opinion, 5/30/18, at 1-4.

       A jury found Appellant guilty of fleeing or attempting to elude police

officers, recklessly endangering another person (“REAP”), false identification

to law enforcement, and two counts of accidents involving damage to attended

vehicles.2 Following the jury’s verdict, the trial court found Appellant guilty of

drivers required to be licensed, obedience to traffic-control devices, driving on

roadways laned for traffic, following too closely, turning movements and

required signals, driving vehicle at safe speed, and careless driving.3

       On February 20, 2018, the trial court sentenced Appellant to an

aggregate term of forty-eight to ninety-six months of incarceration, in addition

to restitution, costs, and fines. On February 23, 2018, Appellant filed a post-

sentence motion seeking judgment of acquittal on all counts except for false

identification to law enforcement.         The trial court denied Appellant’s post-

sentence motion on April 4, 2018. On April 10, 2018, Appellant filed a timely

appeal. Both the trial court and Appellant have complied with Pa.R.A.P. 1925.




____________________________________________


2 75 Pa.C.S. § 3733(a), 18 Pa.C.S. § 2705, 18 Pa.C.S. § 4914, and 75 Pa.C.S.
§ 3743(a), respectively.

3 75 Pa.C.S. §§ 1501(a), 3111(a), 3309(1), 3310(a), 3334(a), 3361, and
3714, respectively.

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      On appeal, Appellant raises the following issue for this Court’s

consideration: “Whether there was sufficient evidence to prove Appellant was

the driver of the Volkswagen Jetta beyond a reasonable doubt, a necessary

element of each Count he was convicted of except for Count 3, False

Identification to Law Enforcement?” Appellant’s Brief at 4. Thus, Appellant is

not challenging any elements of the aforementioned crimes or violations of

the motor vehicle code; he is challenging only the sufficiency of the evidence

proving his identity as the perpetrator.

      We begin our discussion of Appellant’s challenge to the sufficiency of the

evidence with our standard of review:

      The standard we apply in reviewing the sufficiency of the 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 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 finder 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. Thomas, ___ A.3d ___, 2018 PA Super 221, *5 (Pa.

Super. filed August 3, 2018) (emphasis added; citation omitted).        “As an

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J-A23026-18


appellate court, we do not assess credibility nor do we assign weight to any

of the testimony of record.” Commonwealth v. Vogelsong, 90 A.3d 717,

719 (Pa. Super. 2014).           Further, we note, “[C]ircumstantial evidence is

reviewed by the same standard as direct evidence—a decision by the trial

court will be affirmed so long as the combination of the evidence links the

accused to the crime beyond a reasonable doubt.”            Commonwealth v.

Bricker, 882 A.2d 1008, 1014 (Pa. Super. 2005) (citation omitted).

      It is well settled that:

      [e]vidence of identification need not be positive and certain to
      sustain a conviction. Although common items of clothing and
      general physical characteristics are usually insufficient to support
      a conviction, such evidence can be used as other circumstances
      to establish the identity of a perpetrator.             Out-of-court
      identifications are relevant to our review of sufficiency of the
      evidence claims, particularly when they are given without
      hesitation shortly after the crime while memories were fresh.
      Given additional evidentiary circumstances, any indefiniteness
      and uncertainty in the identification testimony goes to its weight.

Commonwealth v. Ovalles, 144 A.3d 957, 970 (Pa. Super. 2016) (internal

citations and quotation marks omitted).         Moreover, although evidence of

flight, by itself, is not sufficient to convict an individual of a crime, such

evidence is relevant and admissible to establish an inference of guilt.

Commonwealth v. Rolan, 964 A.2d 398, 410 (Pa. Super. 2008).

      Appellant argues that:

             [a]t best, the evidence presented allows the inference that
      Appellant was in the vehicle and knew of the crimes committed.
      However, no witnesses could identify Appellant as the driver, how
      many persons were in the car, where Appellant was seated, or
      testify that no other persons ran from the vehicle. Based on what

                                         -9-
J-A23026-18


      was presented, no fact-finder could determine beyond a
      reasonable doubt anything other than Appellant was found fleeing
      from the area of the crime and then attempted to conceal his
      identity to law enforcement.

Appellant’s Brief at 14. After review, we disagree.

      In essence, Appellant wanted the jury to disregard the reasonable

inferences that flowed from the evidence presented at trial.      Appellant’s

argument on appeal ignores the aforementioned standards, which, among

other things, obligate this Court to view the evidence in the light most

favorable to the Commonwealth. The record reflects that there was a high-

speed police pursuit on I-79. N.T., 1/16/18, at 45. The pursuit covered more

than forty miles, and it ended when the fleeing vehicle crashed at the

intersection of I-79 and Interchange Road.        Id. at 64.    When police

approached the stopped vehicle, the driver was gone. Id. at 76. Bystanders

attracted the attention of police, and they pointed in the direction of a Max

and Erma’s restaurant that was at the bottom of the embankment from where

the crash occurred. Id. Witnesses described the person fleeing the crash as

an African-American male wearing white pants, a white shirt, and a gray

hooded sweatshirt. Id. at 81, 124. One witness noted that the person who

fled the crash scene ran, jumped over the guardrail, and slid down the

embankment toward the restaurant.       Id. at 125.    Troopers at the scene

located a man matching the description of the fleeing man at a nearby store

standing in line to purchase items.    Id. at 83-84.   This person’s clothing

matched the description given to police, and the suspect’s clothes had fresh

                                    - 10 -
J-A23026-18


dirt on them; the suspect also had blood on his hands. Id. at 84. Although

this man was standing in the checkout line with a drink and other small items

in his hands, it was discovered that the suspect had no means to pay for these

items. Id. at 86. This suspect was positively identified as the man who was

seen fleeing from the scene of the car crash by an eyewitness, and he was

identified as Appellant. Id. at 91, 130.

      When the evidence is reviewed in the light most favorable to the

Commonwealth as verdict winner, we conclude that it was entirely reasonable

for the jury to find that Appellant was the driver of the fleeing vehicle.

Accordingly, there was sufficient evidence to support Appellant’s convictions,

and we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2018




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