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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA         :    IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
                 v.                  :
                                     :
BASHEER HAIRSTON,                    :        No. 1118 EDA 2019
                                     :
                      Appellant      :


     Appeal from the Judgment of Sentence Entered March 13, 2019,
          in the Court of Common Pleas of Philadelphia County
            Criminal Division at No. CP-51-CR-0009394-2017



COMMONWEALTH OF PENNSYLVANIA         :    IN THE SUPERIOR COURT OF
                                     :          PENNSYLVANIA
                 v.                  :
                                     :
BASHEER HAIRSTON,                    :        No. 1119 EDA 2019
                                     :
                      Appellant      :


     Appeal from the Judgment of Sentence Entered March 13, 2019,
          in the Court of Common Pleas of Philadelphia County
            Criminal Division at No. CP-51-CR-0009395-2017


BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED JULY 17, 2020

     Basheer Hairston appeals from the judgments of sentence entered on

March 13, 2019, by the Court of Common Pleas of Philadelphia County

following his conviction of two counts of recklessly endangering another

person (“REAP”) and one count each of possessing an instrument of crime
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(“PIC”) and fleeing or attempting to elude an officer, following a bench trial.

The trial court sentenced appellant to an aggregate term of two years’

probation. After careful review, we affirm.

      The trial court provided the following factual history:

            During the underlying trial, Officer [Vincent] Visco
            testified that on June 29, 2017 at approximately
            12:52 pm, he and his partner, Officer [Antoine]
            Wesley, were on routine patrol in a marked police
            vehicle when they observed a silver 2016 BMW 535i
            sedan with dark tinted windows traveling northbound
            on Front Street approaching Allegheny Avenue.
            Officer Visco testified that he and his partner pulled
            the vehicle over for the allegedly illegal tint, and both
            officers approached the vehicle with Officer Visco on
            the driver’s side and his partner on the passenger
            side. Further, Officer Visco testified that the windows
            of the vehicle were up requiring him to yell three (3)
            times for them to be lowered, to which [appellant]
            ultimately complied. Once the windows were lowered,
            Officer Visco noticed [appellant] was alone in the
            vehicle, [appellant’s] hands were shaking and he was
            breathing heavily. Officer Visco stated that he asked
            for [appellant’s] license, registration and insurance;
            [appellant] moved towards the glove box, but instead
            of going into the glovebox, [appellant] pressed the
            ignition button twice to start the vehicle. According
            to Officer Visco, it was after the second push the
            vehicle started, [appellant] turned the wheel to the
            right and abruptly accelerated forward at a high rate
            of speed causing Officer Wesley to step back quickly
            and requiring Officer Visco to release the door handle.
            Officer Visco testified that he and his partner began
            pursuit of [appellant] but were ordered shortly
            thereafter to terminate their pursuit.            Finally,
            Officer Visco stated that a couple of minutes later he
            was notified that the vehicle was located by another
            officer on the 1900 block of West Atlantic Street.




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              Next, there was a stipulation between counsels that
              Officer Avery[1] recovered the vehicle on June 29,
              2017 from the aforementioned location. Following
              this stipulation, Detective [Ryan] Particelli testified, in
              pertinent parts, that on July 1, 2017 at approximately
              11:30 a.m., he executed a search warrant on the
              recovered vehicle in which multiple letters and other
              documents containing [appellant’s] name and/or
              address were found on the floor behind the passenger
              seat.

Trial court opinion, 8/7/19 at 1-2 (citations to the record omitted).

        The Commonwealth charged appellant with one count each of

manufacture, delivery, or possession of a controlled substance with intent to

manufacture or deliver, possession of a controlled substance by person not

registered, PIC, REAP, and fleeing or attempting to elude an officer2 at

Docket No.      CP-51-CR-0009394-2017           (“Docket     No. 9394”).      The

Commonwealth also charged appellant with one count each of PIC, simple

assault, and REAP3 at Docket No. CP-51-CR-0009395-2017 (“Docket

No. 9395”).

        Following a bench trial, the trial court convicted appellant of PIC, REAP,

and fleeing or attempting to elude an officer at Docket No. 9394 and REAP at




1   Officer Avery’s first name does not appear in the record.

235 P.S. §§ 780-113(a)(30) and (16), and 18 Pa.C.S.A. §§ 907(a), 2705, and
3733(a), respectively.

3   18 Pa.C.S.A. §§ 907(a), 2701(a), and 2705, respectively.


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Docket No. 9395.        The trial court subsequently imposed an aggregate

sentence of two years’ probation.

      Appellant filed separate notices of appeal from each judgment of

sentence.    The trial court ordered appellant to file a concise statement of

errors complained of on appeal at each docket number, and appellant timely

complied.        The trial court subsequently filed an opinion pursuant to

Pa.R.A.P. 1925(a) addressing the appeals both docket numbers.         We have

consolidated appellant’s two appeals sua sponte pursuant to Pa.R.A.P. 513.4

      Appellant raises the following issues for our review:

             [1.]    Whether the evidence was sufficient to sustain
                     the conviction of [PIC?]

             [2.]    Whether the evidence was sufficient to sustain
                     the conviction for [REAP?]

Appellant’s brief at Docket No. 9394 at 5 (full capitalization and citation

omitted); appellant’s brief at Docket No. 9395 at 5 (full capitalization

omitted).5

      Our well-settled standard of review for sufficiency of the evidence claims

is as follows:

                     As a general matter, our standard of
                     review of sufficiency claims requires that


4 As noted by the trial court, the charges at both docket numbers arise from
the same incident. (Notes of testimony, 1/9/19 at 63.)

5 Appellant and the Commonwealth filed separate briefs for each docket
number. In order to differentiate between the briefs, we will use the trial
court docket numbers.


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               we evaluate the record in the light most
               favorable to the verdict winner giving the
               prosecution the benefit of all reasonable
               inferences to be drawn from the evidence.
               Evidence will be deemed sufficient to
               support the verdict when it establishes
               each material element of the crime
               charged and the commission thereof by
               the accused, beyond a reasonable doubt.
               Nevertheless, the Commonwealth need
               not establish guilt to a mathematical
               certainty.      Any doubt about the
               defendant’s guilt is to be resolved by the
               fact finder unless the evidence is so weak
               and inconclusive that, as a matter of law,
               no probability of fact can be drawn from
               the combined circumstances.

               The Commonwealth may sustain its
               burden by means of wholly circumstantial
               evidence. Accordingly, [t]he fact that the
               evidence establishing a defendant’s
               participation in a crime is circumstantial
               does not preclude a conviction where the
               evidence coupled with the reasonable
               inferences drawn therefrom overcomes
               the     presumption      of      innocence.
               Significantly, we may not substitute our
               judgment for that of the fact finder; thus,
               so long as the evidence adduced,
               accepted in the light most favorable to the
               Commonwealth,         demonstrates      the
               respective elements of a defendant’s
               crimes beyond a reasonable doubt, the
               appellant’s convictions will be upheld.

          Commonwealth v. Franklin, 69 A.3d 719, 722-723
          (Pa.Super. 2013) (internal quotations and citations
          omitted).   Importantly, “the [fact finder], which
          passes upon the weight and credibility of each
          witness’s testimony, is free to believe all, part, or
          none of the evidence.”         Commonwealth v.
          Ramtahal, [] 33 A.3d 602, 607 ([Pa.] 2011).



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Commonwealth v. Sebolka, 205 A.3d 329, 336-337 (Pa.Super. 2019).

      In his first issue, appellant contends that the Commonwealth failed to

prove beyond a reasonable doubt that he is guilty of PIC. (Appellant’s brief

at Docket No. 9394 at 9.)       In order to obtain a conviction of PIC, the

Commonwealth must prove, beyond a reasonable doubt, that the defendant

possessed an object that is an instrument of crime and that he or she intended

to use the object for a criminal purpose. In re A.V., 48 A.3d 1251, 1253

(Pa.Super. 2012), citing In re A.C., 763 A.2d 889, 890 (Pa.Super. 2000); see

also 18 Pa.C.S.A. § 907(a).     “The Crimes Code defines an “instrument of

crime” as “(1) [a]nything specially made or specially adapted for criminal use

[or] (2) [a]nything used for criminal purposes and possessed by the actor

under circumstances not manifestly appropriate for lawful uses it may have.”

In re A.V., 48 A.3d at 1253, quoting 18 Pa.C.S.A. § 907.            See also

Commonwealth       v.   Vida,   715   A.2d   1180,   1183   (Pa.Super.   1998)

(recognizing that a car could be considered an instrument of crime).

      Here, appellant specifically argues that the Commonwealth failed to

introduce any evidence that the car being driven by appellant was “specially

made or specially adapted for criminal use.”     (Appellant’s brief at Docket

No. 9394 at 9, quoting 18 Pa.C.S.A. § 907(c)(2).) Appellant further argues

that, “there was no basis for the conclusion that an automobile is something

‘commonly used for criminal purposes.’ Therefore, the Commonwealth failed




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to prove all of the elements of [PIC] beyond a reasonable doubt.” (Appellant’s

brief at Docket No. 9394 at 12 (citation omitted).)

      Appellant’s argument misses the mark.6       When viewing the evidence

presented at trial in the light most favorable to the Commonwealth, as the

verdict winner, we find that the Commonwealth met its burden in establishing

the elements of PIC beyond a reasonable doubt. Indeed, the Commonwealth’s

evidence establishes that appellant possessed an instrument of crime as

defined by the Crimes Code and that appellant intended to use the instrument

for a criminal purpose. See In re A.V., 48 A.3d at 1253-1254. Specifically,

the record reflects that appellant used his car to flee and elude Officers Visco

and Wesley after the officers pulled him over.7          We, therefore, find that

appellant acted with the requisite intent to use the car for a criminal purpose.

Accordingly, appellant’s first issue is without merit.

      In his second issue, appellant contends that the Commonwealth failed

to introduce sufficient evidence to warrant a conviction of REAP as it pertains

to Officer Visco.   (Appellant’s brief at Docket No. 9395 at 9.)       “A person

commits [REAP,] a misdemeanor of the second degree if he recklessly engages




6The Commonwealth notes that appellant appears to base his argument on
an outdated version of the PIC statute. (Commonwealth’s brief at Docket
No. 9394 at 9-10, citing Act of July 6, 1995, P.L. 238, No. 27, § 1;
Commonwealth v. Magliocco, 883 A.2d 479, 485-486 (Pa. 2005).)

7 Appellant conceded that he was guilty of fleeing or attempting to elude an
officer. (Notes of testimony, 1/9/19 at 44-45.)


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in conduct which places or may place another person in danger of death or

serious bodily injury.” 18 Pa.C.S.A. § 2705; see also Commonwealth v.

Bullock, 170 A.3d 1109, 1121 (Pa.Super. 2017), appeal denied, 184 A.3d

944 (Pa. 2018). This court has further held as follows:

            The crime of REAP “is a crime of assault which requires
            the ‘creation of danger.’”         [Commonwealth v.
            Rivera, 503 A.2d 11, 12 (Pa.Super. 1985) (en banc)]
            (citation omitted). “As such, . . . there must be an
            ‘actual present ability to inflict harm.’” Id. (citation
            omitted). In [Commonwealth v.] Trowbridge, we
            explained this risk of actual danger as follows:

                  By requiring the creation of danger, we
                  think it is plain under § 2705 that the
                  mere apparent ability to inflict harm is not
                  sufficient. Danger, and not merely the
                  apprehension of danger, must be created.
                  Therefore, we think that § 2705 retains
                  the common law assault requirement of
                  actual present ability to inflict harm. See
                  also Commonwealth v. Goosby, [] 380
                  A.2d 802 ([Pa.Super.] 1977) (where
                  defendant pointed gun and pulled trigger,
                  but one live cartridge in the gun misfired,
                  there is sufficient evidence to convict for
                  recklessly endangering).

            [] 395 A.2d [1337,]        1340   [(Pa.Super.   1978)]
            (citations omitted).

Commonwealth v. Reynolds, 835 A.2d 720, 727-728 (Pa.Super. 2003).

      Here, appellant specifically argues that the Commonwealth failed to

produce sufficient evidence establishing that appellant’s conduct placed

Officer Visco “in danger of death or serious bodily injury.”’ (Appellant’s brief

at Docket No. 9395 at 10.) As noted by appellant, the record reflects that



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Officer Visco’s hand was on the car door handle when appellant sharply turned

the steering wheel to the right and drove away from the officers. (Notes of

testimony, 1/9/19 at 25-26.) Upon viewing the evidence in the light most

favorable to the Commonwealth, we find that the Commonwealth has met its

burden in this case. Indeed, as noted by the trial court:

            [T]here can be no reasonable doubt that a substantial
            danger of serious bodily injury was created by
            [appellant’s] conduct, and but for the officers acting
            as quickly as they did, serious bodily injury or death
            could have easily resulted. Indeed, [appellant] clearly
            could not have been sure Officer Visco was going to
            release the car door or that Officer Wesley was going
            to get out of the way fast enough to avoid being
            struck. [Appellant] acted in conscious disregard for
            what could and probably would have happened to
            either officer had they not retreated as quickly as they
            did.

Trial court opinion, 8/7/19 at 6-7. Accordingly, we find that appellant’s second

issue is without merit.

      Judgments of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 7/17/20




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