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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                     :
                                          :
DEMETRIUS EVANS,                          :          No. 3108 EDA 2017
                                          :
                        Appellant         :


        Appeal from the Judgment of Sentence, December 16, 2014,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0006303-2013


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED NOVEMBER 02, 2018

      Demetrius Evans appeals the judgment of sentence in which the Court

of Common Pleas of Philadelphia County sentenced him to serve an

aggregate term of one to two years of imprisonment followed by two years’

probation for his convictions for fleeing or attempting to elude an officer and

for recklessly endangering another person.1 After careful review, we affirm.

      The facts, as recited by the trial court, are as follows:

            On April 27, 2013, Philadelphia Police Officer
            Vincent Visco was on patrol in an unmarked police
            vehicle, with his partner, Officer Marcolino.[2] At
            about 7:25 PM they were in the vicinity of 12th Street

1 75 Pa.C.S.A. § 3733(a) and 18 Pa.C.S.A. § 2705. Appellant was also
convicted of disorderly conduct but received no further penalty.
18 Pa.C.S.A. § 5503(a).

2 The officer is identified as Officer Marcellino in the hearing transcript.
(Notes of testimony, 3/28/14 at 9.)
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            and West Cumberland Avenue (1200 block) when
            they encountered [a]ppellant, who was driving a
            motorcycle.     Appellant was driving approximately
            45 miles per hour in a 25 MPH zone, weaving
            through the other vehicles and passing vehicles on
            the left side, in the parking lane of [] Cumberland,
            which [is] one way, with one lane of travel. The
            officers activated their vehicle[’]s lights and sirens to
            signal [a]ppellant to pull over. Although he looked
            back at the police 3-4 times, [a]ppellant did not stop
            as the office[r] gave chase, until he finally pulled
            over in the vicinity of 9th and Cumberland, where
            [a]ppellant was unable to make a high-speed turn
            onto 9th Street and instead drove up on to the
            sidewalk and into the grass in an abandoned lot,
            where the police vehicle cut him off.

            The entirety of the pursuit was in a residential area,
            where people and other vehicles were present. The
            location at 9th and Cumberland where [a]ppellant
            missed the turn and drove up on the sidewalk and
            into a lot was across from a playground where a lot
            of kids were present, and there was a store near
            where [a]ppellant drove onto the sidewalk. Adjacent
            to the sidewalk and lot that [a]ppellant drove into,
            there were residences. There were many people out
            at 9th and Cumberland. Appellant struggled with the
            officers as the[y] attempted to take him into
            custody.

Trial court opinion, 12/18/17 at 2-3 (citations to record omitted).

      The trial court also set forth the relevant procedural history:

            On March 28, 2014, [appellant] proceeded to trial
            before this Court, sitting without a jury. Appellant
            was convicted of fleeing or attempting to elude an
            officer  (75   Pa.C.S.[A.]    §   3733),   recklessly
            endangering another person and disorderly conduct.
            Sentencing was deferred.

            On December 16, 2014, [a]ppellant was sentenced
            to 1-2 years on the conviction under 75 Pa.C.S.[A.]
            § 3733, to run consecutive to any sentence


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           [a]ppellant was then serving, and a consecutive
           sentence of two years[’] probation on the conviction
           for recklessly endangering another person.        No
           further penalty was imposed on the disorderly
           conduct conviction.

           On January 28, 2015, an untimely notice of appeal
           was filed under [sic] by [a]ppellant, pro se. On
           March 12, 2015, the Superior Court quashed the
           appeal as untimely.

           On July 27, 2015, [a]ppellant filed a petition under
           the Post[ ]Conviction Relief Act (PCRA). Counsel was
           appointed on May 5, 2016.          New counsel was
           appointed on October 17, 2016.

           An amended PCRA petition was filed by new counsel
           on January 17, 2017.

           On August 8, 2017, the Court granted the PCRA
           petition.  The Commonwealth filed a motion to
           reconsider, which resulted in the August 8, 2017,
           order being vacated. A new order granting the PCRA
           petition and reinstating [a]ppellant’s direct appeal
           rights nunc pro tunc, only, was entered on
           August 25, 2017.

           A timely notice of appeal was filed on September 18,
           2017.

           Pursuant to Pa.R.A.P. 1925(b)(2) and (3), the Court
           entered an order on September 26, 2017, directing
           the filing of a Statement of Errors Complained of on
           Appeal, not later than twenty-one (21) days after
           entry of the order.

           On October 16, 2017, [a]ppellant filed a timely
           Statement of Errors Complained of on Appeal.

Trial court opinion, 12/18/17 at 1-2. On December 18, 2017, the trial court

filed an opinion pursuant to Pa.R.A.P. 1925(a).




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      Appellant contends that the trial court erred when it found that he was

guilty of a felony for fleeing or eluding police.   (Appellant’s brief at 4.)

Essentially, appellant contends that the Commonwealth failed to present

sufficient evidence to establish that he committed the felony of fleeing or

eluding police.

            In reviewing the sufficiency of the evidence, we view
            all evidence admitted at trial in the light most
            favorable to the Commonwealth, as verdict winner,
            to see whether there is sufficient evidence to enable
            [the fact-finder] to find every element of the crime
            beyond a reasonable doubt. This standard is equally
            applicable to cases where the evidence is
            circumstantial rather than direct so long as the
            combination of the evidence links the accused to a
            crime beyond a reasonable doubt.           Although a
            conviction must be based on “more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.”

            Moreover, when reviewing the sufficiency of the
            evidence, the Court may not substitute its judgment
            for that of the fact finder; if the record contains
            support for the convictions, they may not be
            disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013), appeal

denied, 89 A.3d 661 (Pa. 2014) (citations omitted).

            Moreover, when 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 the
            witnesses and the weight of the evidence produced,
            is free to believe all, part, or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted), appeal dismissed, 54 A.3d 22 (Pa. 2012).


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      Section 3733 of the Vehicle Code, entitled “Fleeing or attempting to

elude police officer,” provides in pertinent part:

            (a)    Offense defined.--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 as
                   graded in subsection (a.2).

            ....

            (a.2) Grading.--

                   (1)   Except      as       provided       in
                         paragraph (2), an offense under
                         subsection    (a)    constitutes     a
                         misdemeanor       of   the    second
                         degree. Any driver upon conviction
                         shall pay an additional fine of
                         $500. This fine shall be in addition
                         to and not in lieu of all other fines,
                         court expenses, jail sentences or
                         penalties.

                   (2)   An offense under subsection (a)
                         constitutes a felony of the third
                         degree if the driver while fleeing or
                         attempting to elude a police officer
                         does any of the following:

                         (i)     commits a violation of
                                 section 3802 (relating
                                 to     driving    under
                                 influence of alcohol or
                                 controlled substance);

                         (ii)    crosses a State line; or

                         (iii)   endangers    a     law
                                 enforcement officer or
                                 member of the general


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                                public due to the driver
                                engaging       in      a
                                high-speed chase.

75 Pa.C.S.A. § 3733(a) and (a.2).

        Appellant does not challenge the fact that he violated Section 3733.

He challenges whether there was sufficient evidence to establish that he

committed a felony as defined in Section 3733(a.2)(2)(iii). (Appellant’s brief

at 8.)    Appellant asserts that there is no evidence that he engaged in a

high-speed chase and that there was no evidence presented that either a

law enforcement officer or a member of the general public was endangered.

(Id.)

        In In re R.C.Y., 27 A.3d 227 (Pa.Super. 2011), this court addressed

the applicability of Section 3733(a.2)(2)(iii) and concluded:

             The legislative history for subsection (iii) reveals that
             it was added to the statute in response to complaints
             about chases that endangered the public. See PA S.
             Jour., 2006 Reg. Sess. No. 46, 1839 (June 27,
             2006). Furthermore, the history reveals that the
             term “high-speed chase” was intentionally left
             undefined. See Id. It was left undefined because it
             was believed that “the courts will know them when
             they see them.” Id.

             From this history, we draw two conclusions. First,
             that the legislature intended the enhanced penalties
             to protect the safety of the public in general and
             police officers in particular. Indeed, the first clause
             of the subsection is “endangers a law enforcement
             officer or member of the general public. . . .”
             Clearly, the “mischief to be remedied” is the danger
             presented by certain methods of fleeing or eluding
             police officers while driving a motor vehicle at high
             speeds.


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            Second, we conclude that the legislature did not
            intend for the term “high-speed chase” to be
            construed literally.        Rather, it intended that
            “high-speed chase” be a term of art, having a
            practical, legal meaning that was not closely bound
            by a literal definition. The term “high-speed chase,”
            far from being the primary focus of the subsection,
            was intended to merely require a different level of
            danger from the run-of-the-mill dangers posed by
            merely failing to stop when signaled to do so by a
            police officer.      In other words, the legislature
            included this term to indicate that the enhanced
            penalties applied only in cases where the defendant's
            actions created an extraordinary danger to the public
            at large or to police officers.

In re R.C.Y., 27 A.3d at 230.

      Here, Officer Vince Visco (“Officer Visco”), assigned to the Philadelphia

Highway Patrol, testified that on April 27, 2013, at approximately 7:25 p.m.,

he noticed appellant on a motorcycle and activated his lights for appellant to

come to a stop because appellant was driving at a high rate of speed and

was passing traffic on the left side of a one-way street. (Notes of testimony,

3/28/14 at 10-13.) Officer Visco also activated the siren. Appellant looked

back but continued traveling at approximately 45 miles per hour where the

speed limit was 25.   (Id. at 14-16.)    Officer Visco testified that appellant

was “passing, weaving in and out to get away from [other vehicles], to get

away from us. (Id. at 16.) Officer Visco described what transpired when

appellant tried to make a left turn at 9th and Cumberland:

            [H]e went up onto the sidewalk . . . and went onto
            like a grass area and then went out onto the
            sidewalk. Luckily, there weren't a lot of people out.



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             Right across the street was a playground, basketball
             courts, and what have you. A lot of kids are out. On
             the opposite corner was a corner store. Luckily, no
             one was hurt, but there were a lot of people out.

Id. at 19.

      It is clear from Officer Visco’s testimony that appellant created more

than just the “run of the mill dangers posed by merely failing to stop when

signaled to do so by a police officer.”    In re R.C.Y., 27 A.3d at 230. He

traveled well above the speed limit, weaved in and out of traffic, and went

off the roadway in an attempt to elude police. Further, in In re R.C.Y., this

court determined that the driver of the vehicle engaged in a high-speed

chase when the evidence established that his speed did not exceed 35 miles

per hour.    Id.   Appellant’s contention that the Commonwealth failed to

present evidence sufficient to establish that he engaged in a high-speed

chase is without merit.

      Appellant also asserts that the Commonwealth failed to present

sufficient evidence to establish that he endangered a law enforcement officer

or a member of the general public because of the high-speed chase.

Appellant argues that there were no endangerment factors present as there

were in Commonwealth v. Bowen, 55 A.3d 1254 (Pa.Super. 2012),

appeal denied, 64 A.3d 630 (Pa. 2013). In Bowen, this court affirmed the

conviction of Stephen Christopher         Bowen   (“Bowen”) for fleeing and

attempting to elude police where Bowen drove at speeds between 70 and

100 miles per hour in a chase that lasted approximately 30 minutes,


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endangered other traffic on the roads, and crossed the state line into

Maryland. Id., 55 A.3d at 1261.

      A review of Bowen reveals that Bowen was convicted of 75 Pa.C.S.A.

§ 3733(a.2)(2)(ii) for fleeing and eluding police and crossing a state line not

for 75 Pa.C.S.A. § 3733(a.2)(2)(iii) for fleeing and eluding police and

endangering a law enforcement officer or member of the general public

because the driver engaged in a high-speed chase as is the case here. See

Bowen, 55 A.3d at 1261.       While Bowen drove at higher speeds than did

appellant, Bowen was not convicted under the same subsection, so his speed

and erratic driving do not serve as the standard for Section 3733(a.2)(2)(iii).

      While thankfully, no one was injured or killed, evidence of the acts of

speeding, weaving in and out of traffic, and losing control of the motorcycle

while going off the road in an area where other vehicles and individuals on

foot were nearby is sufficient to establish that the violation of the law

constituted a felony under Section 3733(a.2)(2)(iii).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 11/2/18




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