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 Entered 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, J., and STRASSBURGER, J.*

OPINION BY BENDER, P.J.E.:                            FILED JUNE 05, 2018

        Appellant, Kaelin Thomas Ant Weber, appeals from the judgment of

sentence of 9-18 months’ incarceration and a consecutive term of 3 years’

probation, imposed following his conviction for fleeing or attempting to elude

police (hereafter, “fleeing or eluding police”), 75 Pa.C.S. § 3733, and related

summary offenses.        Appellant contends that the trial court erred when it

precluded him from presenting evidence in support of an available statutory

defense and, relatedly, that the court erred by refusing to instruct the jury on




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A06032-18



that defense.1      After careful review, we vacate Appellant’s judgment of

sentence and remand for a new trial.

       Just before 10:00 a.m. on January 7, 2015, Officers Ryan Carr and

Lawrence Huber of the Pittsburgh Bureau of Police observed Appellant’s silver

Lincoln travel through an intersection at a high rate of speed. N.T., 5/4/18,

at 36-37. The uniformed officers were driving a marked police vehicle. Id.

They followed Appellant and, soon thereafter, observed that his vehicle’s

registration sticker had expired. When Appellant stopped at an intersection,

the officers “pulled up alongside the vehicle[,]” where Officer Carr was able to

observe that its inspection and emission stickers were “valid[,]” but expired.

Id. at 37.

       Based on these observations, Officers Carr and Huber decided to

conduct a traffic stop in order to “check for documents and ask why all the

stuff was expired.”      Id.   They activated their emergency lights and siren.

Appellant eventually brought his vehicle to a stop in a parking lot. Id. at 38.

The officers exited their patrol car, and approached the silver Lincoln from

behind.    Id.    Officer Huber approached the driver’s side door to engage

Appellant while Officer Carr approached the vehicle from the passenger side

and “stayed at the rear back door of the vehicle looking in.” Id.


____________________________________________


1 See 75 Pa.C.S. § 3733(c)(2)(“It is a defense to prosecution under this
section if the defendant can show by a preponderance of the evidence that
the failure to stop immediately for a police officer's vehicle was based upon a
good faith concern for personal safety.”).

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      Officer Huber described his initial interaction with Appellant as follows:

      I walked up to the vehicle, identified myself, said my name is
      Officer Huber with the Pittsburgh Police. The reason we're
      stopping you -- and I told him about the expired registration and
      expired inspection stickers. I asked him for his driver's license,
      registration and insurance card. He tells me he does not have a
      license in this country. I said, "What do you mean you don't have
      a license in this country?"

             "I don't have a license in this country."

            So I ask him for his name, date of birth, the last four of his
      Social Security, which he does provide. He provides me with
      name, date of birth, and Social Security number. Now I go back
      to my police vehicle at this point. I went to run the information
      to see if I could get anything back on him. Name comes back,
      date of birth comes back, in NCIC system when I run someone by
      name and date of birth with all your information, your Social
      Security number comes up. So I know this is who I'm talking to.

Id. at 66-67.

      While Officer Huber ran Appellant’s information, Officer Carr observed

Appellant

      continuously reach[ing] from the front seat to the back seat,
      across the front seat, down underneath the seat where there were
      boxes. He was not still at all the entire time. So much so that as
      my partner was running the information, because there was so
      much movement in the vehicle, I asked him and he called for an
      additional unit to come and back us up.

Id. at 40.

      After Officer Huber verified that Appellant did not have a Pennsylvania

Driver’s License, he returned to speak to Appellant:

            At that point as we approached the car, Officer Carr already
      told me about all of the movement going on. So as I approached
      the vehicle, I approached it with a little more caution at this point.
      As we go up, I'm starting to look at him and I notice a big bulge.
      He's wearing an open zippered flannel or light jacket. But it was

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       a hoodie sweatshirt. And I noticed this big bulge. And he kept
       reaching for it. That's why I kept telling him, "Quit reaching for
       that. Keep your hands where I can see them."

Id. at 68-69.

       Appellant pulled out a pack of cigarettes from the vicinity of the bulge

and threw them down. However, Officer Huber could still observe a bulge that

he believed, based on his training and experience, to be consistent with the

presence of a concealed firearm. Id. at 70. Officer Huber asked Appellant,

“Do you have any weapons or anything in this vehicle that can harm me?” Id.

Officer Huber recalled:

       When I asked that question, that is when he gets, like, called on
       the carpet, now he knew. He just started getting very agitated.
       Now he starts to appear more nervous that I'm asking him about
       what is in his waistband and I'm asking him specifically about a
       weapon.

Id.   Appellant then told Officer Huber, “I don't like your tone. I feel very

threatened.” Id. at 80.

       In response to this, as well as to Appellant’s continued fidgeting, Officer

Huber instructed him to keep his hands where he could see them. Id. at 71.

Officer Huber also decided at that point to “open the vehicle and get

[Appellant] out of the vehicle to gain control of him … to do a pat down.” Id.

He asked Appellant, “[f]or your safety as well as mine would you please step

out of the vehicle?” Id. at 72.2


____________________________________________


2Officer Huber maintained that he was not yelling, but instead spoke in a
measured tone. Id. at 72. He also stated that did not have his firearm drawn
when he asked Appellant to step out of his vehicle. Id.

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       As Officer Huber said this, he simultaneously attempted to open the

front, driver’s side door. Id. In response, Appellant put the vehicle in drive,

stepped on the accelerator, and sped away.       Id.   Officers Huber and Carr

quickly returned to their vehicle, activated their lights and siren, and began

pursuit. Id. They observed Appellant cross four lanes of traffic, and then run

a red light, “forcing people off the road.” Id. at 73. The officers were having

trouble keeping up with Appellant, despite reaching speeds during the pursuit

of up to 60 m.p.h.,3 in an area where the maximum speed limit was 25 m.p.h.

Id. at 74. Soon after the chase began, however, the officers received an order

from their shift supervisor to terminate the pursuit due to safety concerns.

Id. at 73. Police later found Appellant’s abandoned silver Lincoln. On June

23, 2015, more than five months after the incident, police peacefully arrested

Appellant pursuant to a warrant. Id. at 90.

       Appellant testified in his own defense at trial.    His account largely

corresponded with that of the officers; however, he stated that Officer Huber

became increasingly “belligerent” as the encounter progressed. Id. at 114.

He also testified that Officer Huber was punching or striking his driver’s side

window in the moment just before he fled. Id. at 116.




____________________________________________


3 At the preliminary hearing, Officer Huber had testified that the maximum
speed of the chase was “50 [m.p.h.] or so.” Id. at 86.




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       The Commonwealth charged Appellant by criminal information with, at

count 1, fleeing or eluding police, and also with numerous summary offenses

(counts 2-7).4 A mixed jury/bench trial convened on November 3, 2016. That

same day, the jury returned a verdict of guilty as to count 1. The trial judge

returned a verdict of guilty with respect to counts 2-7.       On December 19,

2016, the trial court sentenced Appellant at count 1 to 9-18 months’

incarceration, and a consecutive term of 3 years’ probation. With respect to

the summary offenses, the court ordered Appellant to pay several fines.

       Appellant filed a timely notice of appeal, and then filed a timely, court-

ordered Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a)

opinion on June 6, 2017.         Appellant now presents the following, two-part

question for our review:

       I.    (a) Did the trial court commit reversible error by granting
       the Commonwealth's motion in limine and barring [Appellant]
       from presenting any testimony about his state of mind where such
       testimony would have [been] probative of an available statutory
       defense that was [his] burden to prove?

              (b) Notwithstanding the excluded evidence of [Appellant]’s
       state of mind, did the trial court commit reversible error by failing
       to instruct the jury on the available sta[t]utory defense based on
       the existing evidence of record?

Appellant’s Brief at 6 (unnecessary capitalization omitted).

____________________________________________


4 The Commonwealth charged Appellant with the following summary offenses:
reckless driving, 75 Pa.C.S. § 3736; driving without a license, 75 Pa.C.S. §
1501(a); traffic control signals, 75 Pa.C.S. § 3112; failure to drive on right
side of the road, 75 Pa.C.S. § 3301; operating a vehicle without valid
inspection, 75 Pa.C.S. § 4703(a); and evidence of emission inspection, 75
Pa.C.S. § 4706(c)(5).

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     Appellant’s related claims concern the trial court’s refusal to allow

Appellant to present a defense pursuant to 75 Pa.C.S. § 3733(c)(2)

(hereinafter, the “personal safety defense” and/or “statutory defense”).

            The Constitution guarantees to state criminal defendants “a
     meaningful opportunity to present a complete defense.” Crane
     v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146, 90
     L.Ed.2d 636 (1986) (internal quotation marks omitted). Hence,
     “[w]here a defendant requests a jury instruction on a defense, the
     trial court may not refuse to instruct the jury regarding the
     defense if it is supported by evidence in the record,”
     [Commonwealth v.] DeMarco, 570 Pa. [263,] 271, 809 A.2d
     [256,] 261 [(2002)]; it is “for the trier of fact to pass upon that
     evidence and improper for the trial judge to exclude such
     consideration by refusing the charge.”         Commonwealth v.
     Lightfoot, 538 Pa. 350, 355, 648 A.2d 761, 764 (1994) (internal
     quotation marks omitted); see also Commonwealth v.
     Borgella, 531 Pa. 139, 142, 611 A.2d 699, 700 (1992) (“A
     defendant is entitled to an instruction on any recognized defense
     which has been requested, which has been made an issue in the
     case, and for which there exists evidence sufficient for a
     reasonable jury to find in his or her favor.”); Commonwealth v.
     Weiskerger, 520 Pa. 305, 312–13, 554 A.2d 10, 14 (1989)
     (same).

Commonwealth v. Markman, 916 A.2d 586, 607 (Pa. 2007).

     Moreover:

     “The admissibility of evidence is solely within the discretion of the
     trial court and will be reversed only if the trial court has abused
     its discretion.” Commonwealth v. Cunningham, 805 A.2d 566,
     572 (Pa. Super. 2002), appeal denied, 573 Pa. 663, 820 A.2d 703
     (2003). “An abuse of discretion is not merely an error of
     judgment, but is rather the overriding or misapplication of the law,
     or the exercise of judgment that is manifestly unreasonable, or
     the result of bias, prejudice, ill-will or partiality, as shown by the
     evidence of record.” Commonwealth v. Cameron, 780 A.2d
     688, 692 (Pa. Super. 2001).

Commonwealth v. Dent, 837 A.2d 571, 577 (Pa. Super. 2003).


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      The offense of fleeing or eluding police is defined by statute as follows:

“Any 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 visual and audible signal to bring the vehicle to a stop, commits

an offense.” 75 Pa.C.S. § 3733(a). Section 3733(c)(2) provides that:

      It is a defense to prosecution under this section if the defendant
      can show by a preponderance of the evidence that the failure to
      stop immediately for a police officer's vehicle was based upon a
      good faith concern for personal safety. In determining whether
      the defendant has met this burden, the court may consider the
      following factors:

         (i) The time and location of the event.

         (ii) The type of police vehicle used by the police officer.

         (iii) The defendant's conduct while being followed by the
         police officer.

         (iv) Whether the defendant stopped at the first available
         reasonably lighted or populated area.

         (v) Any other factor considered relevant by the court.

75 Pa.C.S. § 3733(c)(2).

      Initially, we note that this is a case of first impression. The statutory

defense in question was added by amendment to the fleeing or eluding police

statute nearly two decades ago, in 2001. See 2001 Pennsylvania Legislative

Service Act No. 2001-75 (H.B. 155).        Nevertheless, our research has not

revealed any pertinent case law addressing the personal safety defense during

the intervening 17 years.

      The instant matter first arose in the trial judge’s chambers prior to trial.

N.T. at 3. Essentially, Appellant’s trial counsel sought to introduce evidence,

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through cross-examination of the Commonwealth’s witnesses, and/or through

Appellant’s testimony, in order to set forth a factual basis for the personal

safety defense. The trial court issued a statement about the matter at the

commencement of trial, ostensibly ruling conditionally in the Commonwealth’s

favor. Id. at 3-4. Specifically, the court stated:

      It came to my attention this morning that [Appellant] intends to
      raise a defense to the fleeing charge.

            Having read the statute related to that offense, based upon
      the facts that I know at this point, I would not charge the jury on
      that defense and I would not allow the defense to raise that
      defense. So[,] certainly, with regard to opening arguments you
      may not go into that area. Only if you're able to place on the
      record facts to support the defense would I reconsider.

             I was very clear in chambers that I think there is absolutely
      nothing in that statute that applies to this case as I am aware of
      at this point in time.

Id.   The Commonwealth also formally placed an objection to Appellant’s

invocation of the defense on the record at that time. Id. at 4.

      The matter arose again just prior to Appellant’s testimony, when the

following discussion occurred:

      [Prosecutor]: At the beginning of the trial, it was the Court's
      position that it would not be an appropriate defense to be raised
      that there was any sort of fear on the part of this defendant as a
      justifiable defense for him leaving the traffic stop.

      While I understand there is typically great latitude afforded when
      the defendant chooses to testify in a trial, I believe that all of the
      rules of evidence would apply to the testimony, meaning it would
      have to be relevant.

      It would be my position that any testimony about the state of mind
      and whether or not he was in fear during the course of the traffic
      stop would not be relevant in any way [or] probative [as] to


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J-A06032-18


     whether or not he committed the offense of fleeing and eluding.
     And therefore, I would at this time motion in limine for defense
     counsel to not ask for defendant to not offer any testimony about
     state of mind and whether or not he was in fear at any point during
     the traffic stop.

     THE COURT: It's not relevant to a defense. I've already made
     that ruling. You have not demonstrated based on the testimony
     on the record to this point that any of the factors contained in that
     defense apply to your client.

            Specifically, this was not a circumstance that the police
     initiated a traffic stop and he is charged with not stopping because
     he was concerned about his safety. He did, in fact, stop.

           Beyond that, the defendant would have to prove by a
     preponderance of the evidence that his failure to stop initially was
     a good faith concern for his personal safety. Even assuming that
     there would be case law which you have not presented to me and
     I have not found in my limited research. Even assuming he had
     met that initial showing, the second part then indicates that in
     considering whether or not this defense applies, we should look at
     time and location.

            It was 10:00 a.m. It was broad daylight in a city location
     specifically in a parking lot. The police were in a marked vehicle
     and they were in uniform. The defendant's conduct, once he fled,
     was, in fact, to drive at a high rate of speed based on the
     testimony, putting other people's lives in danger in the oncoming
     traffic through red lights and so on.

            The defendant did not then stop at the first available
     location where it was a populated area and he could feel safe. In
     fact, he was in that type of location when he fled. And there have
     been no other relevant factors brought out on direct testimony to
     indicate that he would be able to raise this defense.

          So I will not permit him to testify with regard to his fleeing
     based on a good faith concern for his personal safety.

     [Assistant Public Defender Heath Leff, hereinafter, “Defense
     counsel”]: If I may, I guess this would be lodging an objection to
     an objection. But Title 75 Pennsylvania Consolidated Statute
     Section 3733 (c)(2) states it is a defense to prosecution under the
     section if a defendant can show by a preponderance of the



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J-A06032-18


     evidence that the failure to stop immediately for a police officer's
     vehicle was based upon the good faith concern for personal safety.

           In determining whether the defendant met this burden, the
     Court may consider the following factors: Time and location of the
     event. The type of police vehicle. Defendant's conduct while
     being followed by the police officer. Whether the defendant
     stopped at the first available reasonably lighted or populated area
     or any other factor considered relevant by the Court.

            This is not subject to Your Honor's decision. This is a jury
     trial. It is whether the jury finds that he met this burden or not.

     THE COURT: Do you have case law on that? Because in a self-
     defense case it is up to the defendant to demonstrate to the Court
     that the defense in question applies.

     [Defense counsel]: How could you or any Court possibly make a
     ruling on this before the defendant has had an opportunity to
     testify?

     THE COURT: Because none of the other factors apply here. You
     have told us in your opening statement to the jury that the only
     point, essential point that you would be disputing would be those
     5 to 10 seconds' worth of time where your client claims that he
     had a legitimate good faith concern for his personal safety under
     the facts that were already testified to.

           And all of those facts include the factors that I have just
     recited that you then re-recited about time and location, type of
     vehicle, uniformed officers, his conduct, when he fled the scene,
     including that he did not pull over and in a police station or other
     place where he would have felt safe. In fact, he was in that type
     of an area already.

            And you have not pointed out any other relevant factor that
     I believe would legitimately raise this defense. And because it
     would be an affirmative defense, you need to place on the record
     something other than your client's statement that he felt
     threatened in that moment with his car doors locked and his
     window most of the way up.

     [Defense counsel]: So Officer Huber testified in his examination,
     I think on direct and cross, that he said he felt threatened.

     THE COURT: Your client said that, yes. I could tell you my hair is
     green.

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     [Defense counsel]: No. Officer Huber said my client said that.

     THE COURT: Your client could say anything. He could say that
     he's from the planet Mars. That doesn't make it true.

     [Defense counsel]: You're right.

     THE COURT: It also doesn't make it meet the statutory
     requirement that it's a good faith concern for his safety.

     [Defense counsel]: By not letting me argue this, you're essentially
     cutting the legs out from our only line of defense.

     THE COURT: I told you that well in advance. I told you that in
     chambers when you raised it. I told you that before we began the
     trial on the record. And this should not come in any way as a
     surprise to you.

     [Defense counsel]: Your Honor's position this morning was that
     you needed to see how the facts played out --

     THE COURT: Again, Mr. Leff, we're done arguing this point
     because the facts have played out exactly as you said they would,
     exactly. When you stipulated to the jury in your opening that the
     only point in question was that five to ten seconds of time --

     [Defense counsel]: Facts but not legal argument.

     THE COURT: No, Mr. Leff. You've made your legal argument. I've
     ruled on it. Your client is able to testify but not about a defense
     that would involve good faith concern for his personal safety
     because I've made the ruling that you haven't met even the most
     basic criteria for that defense.

     [Defense counsel]: Your Honor, the officer is trying to get him out
     of the car --

     THE COURT: Please move on. I've made my ruling.

     [Defense counsel]: I can't. How can I move on when I can't ask
     my client how he felt when this was going on.

     THE COURT: Mr. Leff, I've told you all of this already. Your client
     can take the stand and testify to any other dispute he may have,
     but he cannot take the stand and testify with regard to his fear.
     His statement to that effect is already before the jury.

N.T. at 98-106 (emphasis added).


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      During Appellant’s subsequent testimony, and without solicitation by

defense counsel, Appellant stated that he “felt like these people were trying

to kill me or something.” Id. at 116. The prosecutor objected on the basis

that Appellant’s state of mind was irrelevant. Id. The court sustained the

objection, and ordered the statement stricken from the record. Id.

      Later, defense counsel specifically asked Appellant, “did you feel like it

was going to turn into a violent episode?” Id. at 119. The prosecutor again

objected on relevance grounds, and the trial court sustained the objection on

that basis.   Id.   Defense counsel then asked Appellant, “Were you ever

concerned about any of your interactions with the police for your personal

safety?” Id. Again, the prosecutor objected on relevance grounds, and the

trial court sustained the objection. Id.

      Appellant contends that the trial court’s actions, detailed above,

deprived him “of his rights under the State and Federal Constitutions to due

process, to a fair trial, to testify in his own defense[,] and to present a

defense.” Appellant’s Brief at 20. Appellant specifically challenges the trial

court’s granting of the Commonwealth’s oral motion in limine immediately

prior to Appellant’s testimony. He argues that the court’s ruling effectively

foreclosed his ability to present any evidence in support of the statutory

defense set forth in Section 3733(c)(2).        Additionally or alternatively,

Appellant contends that his statement to Officer Huber, which was admitted

through Huber’s testimony during cross-examination, itself was a sufficient




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factual basis with which to permit the court to issue a jury instruction based

on the personal safety defense.

        The Commonwealth appears to concede these issues, stating:

                The prosecutor appears to have misunderstood the court's
        initial ruling and then confused the trial court as to its initial ruling.
        The trial court made its decision concerning whether [A]ppellant
        had met his burden, prior to [A]ppellant[’s] presenting his case.
        This Court might find that the grant of the motion in limine was
        an error. The trial court's decision not to charge on the defense
        was skewed by the limitations that were placed on [A]ppellant's
        ability to make an attempt to prove the defense. Under these
        facts, the trial court's refusal to instruct is questionable, since it
        was founded on an erroneous understanding of what was relevant
        and what evidence could be introduced to prove the defense.

Commonwealth’s Brief at 2.5

        In its opinion, the trial court largely relied on the reasoning it expressed

during the course trial, as detailed, supra. The court then stated that a guilty

verdict was upheld “under similar facts” in Commonwealth v. Robertson,

2017 WL 929412 (Pa. Super. 2018) (unpublished memorandum) (filed March

8, 2017). Finally, the court stated:

        Typically, a defense based on 75 Pa.C.S. § 3733(c)[(2)], 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 the 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.
        Appellant's subjective assertion of fear is not supported by any
        other evidence. As this [c]ourt correctly concluded that the facts
        did not support a defense based on 75 Pa.C.S. § 3733(c), this


____________________________________________


5   We appreciate the Commonwealth’s candor before this tribunal.

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      [c]ourt did not err in precluding Appellant from presenting that
      defense.

Trial Court Opinion, 6/6/17, at 5.

      The trial court’s reasoning for granting the Commonwealth’s motion in

limine, and later refusing to issue a personal safety defense instruction, is not

sound. First, we reject the trial court’s citation of Robertson for support, as

it is a non-precedential memorandum decision.

      An unpublished memorandum decision shall not be relied upon or
      cited by a Court or a party in any other action or proceeding,
      except that such a memorandum decision may be relied upon or
      cited (1) when it is relevant under the doctrine of law of the case,
      res judicata, or collateral estoppel, and (2) when the
      memorandum is relevant to a criminal action or proceeding
      because it recites issues raised and reasons for a decision affecting
      the same defendant in a prior action or proceeding.

210 Pa. Code § 65.37. Neither exception applies to this case. In any event,

Robertson is inapposite; it did not cite, discuss, or otherwise make any

decision premised on or applying Section 3733(c)(2). Instead, Robertson

dealt only with a sufficiency claim based on the primary elements of the fleeing

or eluding police offense.    Thus, even if Robertson were a precedential

decision, it provides no insight regarding the statutory defense at issue and,

therefore, could not have provided the trial court with any basis for its

decision.

      Second, we consider whether Appellant’s subjective belief was relevant

to the personal safety defense. The trial court repeatedly ruled that it was not

during the course of Appellant’s trial.




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      “All relevant evidence is admissible, except as otherwise provided by

law. Evidence that is not relevant is not admissible.” Pa.R.E. 402. “Evidence

is relevant if: (a) it has any tendency to make a fact more or less probable

than it would be without the evidence; and (b) the fact is of consequence in

determining the action.” Pa.R.E. 401.

      Here, the pertinent fact at issue is whether Appellant’s “failure to stop

immediately for a police officer's vehicle was based upon a good faith

concern for personal safety.” 75 Pa.C.S. § 3733(c)(2) (emphasis added).

The trial court concluded that Appellant’s fearful state of mind was not a

relevant consideration for the personal safety defense, as evidenced by its

instruction to defense counsel that: “Your client is able to testify but not about

a defense that would involve good faith concern for his personal safety

because I've made the ruling that you haven't met even the most basic criteria

for that defense.” N.T. at 106.   While a good faith concern may, on occasion,

be established through indirect or circumstantial evidence, the most direct and

relevant evidence of a “good faith concern” must be a statement and/or

testimony by a defendant regarding his or her state of mind at the time he or

she failed to stop for police. Thus, the personal safety defense requires, as a

minimum prerequisite, a showing regarding the defendant’s state of mind.

Thus, the ‘most basic criteria’ for the personal safety defense is whether a

defendant’s “failure to stop immediately” is based on a “concern for personal

safety.” 75 Pa.C.S. § 3733(c)(2).




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       Whether that subjective viewpoint constitutes a “good faith” concern is

a matter for the factfinder, to be judged by a “preponderance of the evidence”

standard. 75 Pa.C.S. § 3733(c)(2). To determine whether a defendant can

overcome that evidentiary standard, the factfinder

       may consider the following factors:

       (i) The time and location of the event.

       (ii) The type of police vehicle used by the police officer.

       (iii) The defendant's conduct while being followed by the police
       officer.

       (iv) Whether the defendant stopped at the first available
       reasonably lighted or populated area.

       (v) Any other factor considered relevant by the court.

Id. (emphasis added).

       Here, the trial court mistakenly took these objective factors as the

prerequisites for a prima facie showing of the applicability of the personal

safety defense. See N.T. at 100 (“You have not demonstrated based on the

testimony on the record to this point that any of the factors contained in that

defense apply to your client.” The court then went on to evaluate the five

factors set forth in Section 3733(c)(2)(i)-(v) as they pertained to the facts of

this case).6 To the contrary, a prima facie showing for the statutory defense

____________________________________________


6 We also note that the trial court appeared, at times, to confuse when the
fleeing or eluding police offense actually occurred in her discussion of relevant
Section 3733(c)(2)(i)-(v) factors. The alleged crime did not occur during the
stop, nor at the precise moment when Appellant fled, but soon thereafter when
he refused to stop during the brief pursuit that followed. Thus, the court’s



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is instead established by evidence of a defendant’s subjective concern for his

safety. The factors set forth in Section 3733(c)(2)(i)-(v) (hereinafter, “good

faith factors”) only come into play when the evidence demonstrates a

defendant’s subjective concern for his safety; in other words, those factors

are intended to be the framework in which the factfinder evaluates whether a

defendant’s subjective fear is held in “good faith.” 75 Pa.C.S. § 3733(c)(2).

       Hence, the statutory defense is not available to a defendant who lacks

a subjective fear for his or her own safety, even if all the objective good faith

factors resolve in his favor. For instance, a defendant who asserts the defense

that he was not aware that police were trying to initiate a stop cannot

simultaneously assert the personal safety defense, because a defendant’s lack

of knowledge of the pursuit cannot coexist with a fear of stopping in light of

that pursuit.7    Similarly, the defense is not available to a defendant who

testifies that he was not afraid for his personal safety when he failed to stop

for police.

       The trial court’s analysis appears to have judged the weight and/or

credibility of Appellant’s subjective concern for his own safety, in order to

determine its admissibility. See N.T. at 104 (“Your client could say anything.
____________________________________________


comment, that Appellant “was [already] in [a safe, populated area] when he
fled[,]” was somewhat irrelevant, as Appellant had already departed that
location when the officers gave chase and activated their lights and sirens,
which is when the fleeing and eluding police offense occurred. N.T. at 101.

7The fleeing or eluding police statute’s mens rea element requires proof that
a defendant “willfully fails or refuses to bring his vehicle to a stop[.]” 75
Pa.C.S. § 3733(a) (emphasis added).

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He could say that he’s from the planet Mars. That doesn't make it true.”). As

we have explained, that is putting the proverbial cart before the horse. The

legal question before the court was whether Appellant expressed a subjective

concern     for   his   own   safety,   and   any   determination    regarding    the

reasonableness of that subjective concern was the exclusive province of the

jury.

        An imperfect analogy can be drawn to our decision in Commonwealth

v. Baronner, 471 A.2d 104 (Pa. Super. 1984).               In that rape case, the

defendant intended to present a consent defense.            In support thereof, he

sought to testify as to his prior consensual sexual relations with the victim,

which is an exception to Pennsylvania’s Rape Shield Law. See 18 Pa.C.S. §

3104 (prohibiting “evidence of specific instances of the alleged victim's past

sexual conduct, opinion evidence of the alleged victim's past sexual conduct,

and reputation evidence of the alleged victim's past sexual conduct[,]” except

for “evidence of the alleged victim's past sexual conduct with the defendant

where consent of the alleged victim is at issue”).

                The trial court held an in camera hearing at which [the]
        appellant's testimony was countered by testimony from the
        alleged victim that although she and appellant had dated on prior
        occasions, they had not previously engaged in sexual intercourse.
        Based on this testimony, [the] appellant's offer of proof was
        rejected, and he was not permitted to give trial testimony of [the
        victim’s] prior sexual conduct with [him]. The reason given by the
        trial court for the evidentiary ruling was: “The matter reduces
        itself to a matter of credibility and this Court elects to believe [the
        victim].”




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Baronner, 471 A.2d at 105–06. We held that the trial court erred, because

“[t]he credibility of [the] appellant's consent defense … was for the jury. It

was not for the trial judge to reject relevant trial testimony and keep it from

the jury merely because he did not believe it.” Id. at 106.

      Likewise, here, the trial court rejected Appellant’s attempt to offer

evidence of his personal safety defense because, based on the attendant

circumstances of his encounter with police, the court did not believe that

Appellant’s concern for his own safety was credible, or that it was not made

in good faith. This was clear legal error. Accordingly, we conclude that the

trial court abused its discretion when it granted the Commonwealth’s motion

in limine that precluded Appellant’s testimony that he was concerned for his

personal safety when he refused to stop.

      We also conclude that, based on the admitted testimony, the trial court

erred by refusing to issue the requested instruction based on the personal

safety defense. Appellant’s statement to police during the encounter, “I don't

like your tone. I feel very threatened[,]” was memorialized in Officer Huber’s

police report, and introduced into evidence through Officer Huber’s testimony

during both direct- and cross-examination.      Nevertheless, the trial court

refused to issue an instruction regarding the personal safety defense. See

N.T. at 124.    The statement was itself sufficient to invoke the statutory

defense, as it demonstrated Appellant’s actual subjective concern for his own

safety during his encounter with Officers Huber and Carr, just prior to the

alleged fleeing and eluding police offense.

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       The Commonwealth argues that the statement was hearsay, which it

is.8   Commonwealth’s Brief at 16.             However, Officer Huber recited an

incomplete version of Appellant’s statement to him during direct-examination

by the prosecutor. N.T. at 71. Neither party objected. Later, during cross-

examination, Officer Huber acknowledged a more accurate version of the

same statement. Id. at 80. Again, neither party objected. Thus, Appellant’s

statement that he felt threatened, made at the time of his encounter with

police, was already part of the evidentiary record when the trial court denied

Appellant’s request for an instruction on the personal safety defense.

Accordingly, we conclude that the trial court abused its discretion by failing to

issue, per Appellant’s request, a jury instruction regarding the personal safety

defense. “Where a defendant requests a jury instruction on a defense, the

trial court may not refuse to instruct the jury regarding the defense if it is

supported by evidence in the record.” DeMarco, 809 A.2d at 261.

       In sum, we hold that the trial court deprived Appellant of his

constitutional right to present a defense by refusing to allow him to testify at

trial regarding his fear when he fled from police, and by denying his request

for a personal safety jury instruction based on the evidence of record.

Accordingly, he is entitled to a new trial. See Commonwealth v. Lesher,

373 A.2d 1088, 1093 (Pa. 1977) (holding that jury instruction error

____________________________________________


8The statement was made out of court, and ostensibly admitted for the truth
of the matter asserted, i.e., that Appellant felt threatened. If it was not
admitted for the truth of the matter asserted, then it was not hearsay.

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constitutes reversible error, requiring a new trial, where correct instruction

may have caused the jury to reach a different verdict).

      Judgment of sentence vacated.          Case remanded for a new trial.

Jurisdiction relinquished.

      Judge Shogan joins this opinion.

      Judge Strassburger files a dissenting opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2018




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