J-A20029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NOEL ANTIONIO LOPEZ SANTIAGO               :
                                               :
                       Appellant               :   No. 1590 MDA 2018

         Appeal from the Judgment of Sentence Entered August 9, 2018
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0005957-2017


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED DECEMBER 06, 2019

        Noel Antionio Lopez Santiago appeals from judgment of sentence

entered after a jury convicted him of fleeing or attempting to elude police.1

He challenges the weight and sufficiency of the evidence, as well as the

discretionary aspects of his sentence. We affirm.

        The relevant evidence from trial is as follows. Officer Richard Schreiner

testified that Lopez Santiago’s vehicle passed him playing loud music that the

officer described as “deafening.” N.T., Trial, 8/1/18, at 55, 58-59. Officer

Schreiner activated his lights and sirens and testified that he intended “[t]o

stop the vehicle and ID occupant and possibly inquire why he was blasting

music so loud.” Id. at 59. During Officer Schreiner’s pursuit, Lopez Santiago

“motioned out the window and he looked at me and said, like, I’m going to

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1   75 Pa.C.S.A. § 3733(a).
J-A20029-19



pull over (indicating).” Id. at 60. However, instead of pulling over, Lopez

Santiago “gunned it down there easily going well past the speed limit, 25

[m.p.h.] residential community, at least when I look, probably 40 to 50 mile[s]

an hour, easy.” Id. at 61. He also failed to stop at a stop sign. Id. at 62. When

he finally stopped his vehicle, he parked in front of his house. Id. at 75. Officer

Schreiner continued pursuing Lopez Santiago and pulled in behind him when

he finally stopped. Officer Schreiner’s lights and sirens were activated during

the entire chase. Id. at 81.

      Officer Schreiner charged Lopez Santiago with fleeing or attempting to

elude an officer, and a jury found him guilty. The trial court sentenced him to

one to two years’ incarceration. He filed a post-sentence motion, which the

trial court denied. This timely appeal followed.

      Lopez Santiago raises the following issues on appeal:

         A. Whether the verdict of guilty to Cou[n]t 1, Fleeing or
            Attempting to Elude Police Officer (M2), 75 Pa.C.S.A. §
            3733(a), was in error as the evidence presented at trial
            was insufficient to prove beyond a reasonable doubt that
            [Lopez Santiago] willfully failed or refused to bring his
            vehicle to a stop, but in fact stopped his vehicle in front
            of his house?

         B. Whether the verdict of guilty to count 1, Fleeing or
            Attempting to Elude Police (M2), 75 Pa.C.S.A. § 3733(a),
            was in error and against the weight of the evidence.
            Specifically, [Lopez Santiago] signaled to police his
            direction of travel, pulled his vehicle over when he
            reached his home, and drove for less than a few minutes
            after being given visual or audible signals to bring his
            vehicle to a stop?

         C. Whether the trial court erred and abused its discretion in
            sentencing [Lopez Santiago] to a term of incarceration of

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             1 to 2 years when it relied on impermissible factors to
             sentence [Lopez Santiago] in the aggravated range?

Lopez Santiago’s Br. at 9 (unnecessary capitalization omitted).

   A. Sufficiency of the Evidence

      Our standard of review for a sufficiency claim is de novo and “our scope

of review is limited to considering the evidence of record, and all reasonable

inferences arising therefrom, viewed in the light most favorable to the

Commonwealth as verdict winner.” Commonwealth v. Rushing, 99 A.3d

416, 420-21 (Pa. 2014). The fact-finder may resolve any doubts regarding the

defendant’s guilt “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.” Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa.Super.

2011) (citing Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.

2001)).

      In order to obtain a conviction for fleeing an officer, the Commonwealth

must prove that upon a visual or audible signal to stop by a police officer, the

driver willfully failed or refused to stop, fled, or attempted to elude the

pursuing officer. See Commonwealth v. Wise, 171 A.3d 784, 790

(Pa.Super. 2017); see also 75 Pa.C.S.A. § 3733(a). “[T]he ‘statute is clear

and unambiguous on its face as to the elements necessary to trigger its

violation: an operator’s ‘willful’ failure to bring his/her vehicle to a stop in the

face of an audibly or visually identifiable police officer’s signal to do so.’” Wise,




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171 A.3d at 790 (quoting Commonwealth v. Scattone, 672 A.2d 345, 347

(Pa.Super. 1996)).

      Although there is a statutory defense for a good faith failure to stop out

of concern about the safety of stopping in a given location, Lopez Santiago

does not argue that here.

      Lopez Santiago maintains that the evidence was insufficient to sustain

a conviction for fleeing because “the Commonwealth did not prove, beyond a

reasonable doubt, that [Lopez Santiago] ‘willfully’ failed or refused to bring

his vehicle to a stop or otherwise fled or attempted to elude a pursuing police

officer.” Lopez Santiago’s Br. at 28. He points out it was uncontested that he

motioned out the window to the officer, and according to his testimony, he

meant to signal the officer to follow him. Despite not pulling over immediately,

he maintains that he intended to cooperate with the police, which he says is

bolstered by the fact that he was arrested without incident once another officer

arrived on the scene. Id. at 28.

      Here, the trial court concluded that it was undisputed that Lopez

Santiago, even though he was aware of the police vehicle’s lights and sirens,

did not promptly bring his vehicle to a stop and after numerous opportunities

to stop, did not stop. Trial Court Opinion (“TCO”), filed 10/12/18, at 4. We

agree.

      Viewing the evidence in the light most favorable to the Commonwealth,

it was sufficient to prove that Lopez Santiago acted willfully. Officer Schreiner

signaled for Lopez Santiago to stop with his vehicle’s lights and sirens. Lopez

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Santiago did not stop and instead continued driving to his house before

stopping his vehicle. See Wise, 171 A.3d at 791 (holding that where a police

officer gave a visual and audible signal to defendant to pull over and defendant

continued to drive, the evidence was sufficient for fleeing or attempting to

elude). Lopez Santiago’s contentions go to the weight, and not the sufficiency

of the evidence.

   B. Weight of the Evidence

      Our standard of review for challenges to the weight of the evidence is

well settled:

         As an appellate court, we cannot substitute our judgment
         for that of the finder of fact. Therefore, we will reverse a
         jury’s verdict and grant a new trial only where the verdict is
         so contrary to the evidence as to shock one’s sense of
         justice. A verdict is said to be contrary to the evidence such
         that it shocks one’s sense of justice when the figure of
         Justice totters on her pedestal, or when the jury’s verdict,
         at the time of its rendition, causes the trial judge to lose his
         breath, temporarily, and causes him to almost fall from the
         bench, then it is truly shocking to the judicial conscience.

Commonwealth v. Cruz, 919 A.2d 279, 282 (Pa.Super. 2007) (quotation

marks and internal citations omitted). Further, when the trial court, as here,

has ruled on the weight of the evidence claim, “an appellate court’s role is not

to consider the underlying question of whether the verdict is against the

weight of the evidence. Rather, appellate review is limited to whether the trial

court palpably abused its discretion in ruling on the weight claim.” Id. (quoting

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)).




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      Lopez Santiago maintains that the trial court did not consider the

reasons why he did not immediately stop when signaled to do so. Lopez

Santiago’s Br. at 33. He contends that he was concerned that police would

arrest him and tow his car, and that he wanted to pull over near his house

because he was afraid of what the police might do to him. Id. at 32. Lastly,

he claims that the trial court did not take into consideration the fact that once

another officer arrived on the scene, his demeanor changed and he was

arrested without further incident.

      In reviewing the trial court’s denial of Lopez Santiago’s weight claim, we

discern no abuse of discretion. Lopez Santiago testified that he saw Officer

Schreiner’s signal commanding him to pull his vehicle over. Lopez Santiago

testified why he failed to stop and the court instructed the jury on the defense

of fleeing. However, the jury was free to believe all, part or none of Lopez

Santiago’s testimony and here it did not believe his testimony. We cannot say

that the trial court abused its discretion in denying Lopez Santiago’s claim.

   C. Discretionary Aspects of the Sentence

      Lastly, Lopez Santiago challenges the discretionary aspects of his

sentence. He claims that the trial court abused its discretion by considering

impermissible factors. Lopez Santiago’s Br. at 36.

      Challenges to the discretionary aspects of a sentence do not entitle an

appellant to review as of right. Commonwealth v. Moury, 992 A.2d 162,

170 (Pa.Super. 2010) (citing Commonwealth v. Sierra, 752 A.2d 910, 912




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(Pa.Super. 2000)). Thus, before we may address the merits of such a

challenge, we must first determine:

          (1) whether appellant has filed a timely notice of appeal,
          see Pa.R.A.P. 902 and 903;

          (2) whether the issue was properly preserved at sentencing
          or in a motion to reconsider and modify sentence, see
          Pa.R.Crim.P. [720];

          (3) whether appellant’s brief has a fatal defect, Pa.R.A.P.
          2119(f); and

          (4) whether there is a substantial question that the sentence
          appealed from is not appropriate under the Sentencing
          Code, 42 Pa.C.S.A. § 9781(b).

Id. (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super.

2006)).

      Lopez Santiago has complied with the first three requirements. We now

determine whether he has raised a substantial question.

      Lopez Santiago maintains that the sentencing court considered

impermissible factors, which raises a substantial question. Commonwealth

v. Simpson, 829 A.2d 334, 338 (Pa.Super. 2003) (citing Commonwealth v.

McNabb, 819 A.2d 54, 56 (Pa.Super. 2003)). As such, we address the merits

of his claim.

      “[T]he proper standard of review when considering whether to affirm

the sentencing court’s determination is an abuse of discretion.” Moury, 992

A.2d at 169 (quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007)). “[A]n abuse of discretion is more than a mere error of judgment; thus,

a sentencing court will not have abused its discretion unless the record

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discloses that the judgment exercised was manifestly unreasonable, or the

result of partiality, prejudice, bias or ill-will.” Moury, 992 A.2d at 169-70

(quoting Walls, 926 A.2d at 961). A sentencing court must consider the

gravity of the offense, the protection of the public, the rehabilitative needs of

the defendant, and the sentencing guidelines. See Commonwealth v.

Feucht, 955 A.2d 377, 383 (Pa.Super. 2008); 42 Pa.C.S.A. § 9721(b).

Additionally, when the sentencing court had the benefit of a presentence

investigation report (“PSI”), we presume that the court was aware of all

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating factors. Moury, 992 A.2d at 171.

      Lopez Santiago claims that the trial court considered impermissible

factors of speed, danger, and the “mendacity” of his testimony. Lopez

Santiago’s Br. at 23. Regarding his “mendacity,” he refers to the trial court’s

comments during sentencing:

         The other factor that the [c]ourt considers is the defendant
         took the witness stand on his own behalf, which, of course,
         is his right. But the tale that he told was incredible and was,
         in fact, rejected by the jury. The defendant’s mendacity is a
         factor that the court can take into account. And given his
         lengthy record, both criminal and driving, the [c]ourt is
         taking it into account.

N.T., Sentencing, 8/9/18, at 6.

      Relying on false testimony for sentencing purposes can only be justified

if certain requisites are satisfied. Commonwealth v. Thurmond, 407 A.2d




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1357, 1359 (Pa.Super. 1979). This Court set forth those requisites in

Thurmond, which we summarize as follows:

         (1) the misstatement must be willful;

         (2) the misstatement must be material;

         (3) the finder of fact must have determined, beyond a
         reasonable doubt, that the testimony was willfully false;

         (4) the verdict of guilt must be supported by sufficient
         credible evidence;

         (5) the sentencing court, if not acting as the trier of fact,
         must observe the allegedly false testimony so as to
         determine whether the defendant’s testimony demonstrated
         a character not likely susceptible to rehabilitation; and

         (6) the sentencing court may consider the defendant’s lying
         only as one fact among many bearing on sentencing.

See id. at 1359-60.

      The Commonwealth argues that Lopez Santiago’s testimony was false

and material because he testified that he motioned to Officer Schreiner to

follow him home and drove in that direction within the speed limit, but the

jury found that Lopez Santiago willfully failed or refused to bring his vehicle

to a stop, or otherwise fled or attempted to elude Officer Schreiner.

Commonwealth’s Br. at 14. The Commonwealth claims that this renders Lopez

Santiago’s testimony false and material because “simply requesting the officer

to follow him to his home would not have satisfied the elements of this

offense.” Id.

      Here, there is no indication that the jury found beyond a reasonable

doubt that Lopez Santiago’s testimony was willfully false. The verdict does not


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necessarily establish that he lied during his testimony because, as both the

Commonwealth and the sentencing court stated, even if his testimony was

completely true, he still could have been found guilty.2

       Nonetheless, “[e]ven if a sentencing court relies on a factor that should

not have been considered, there is no abuse of discretion when the sentencing

court has significant other support for its departure from the sentencing

guidelines.” Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa.Super.

2008). When justifying imposing the sentence in the aggravated range, the

court not only considered the alleged mendacity, but also considered the

nature of Lopez Santiago’s conduct and his lengthy criminal record. The

sentencing court also had the benefit of the PSI. Moreover, the court provided

an explanation of its reasoning for imposing an aggravated sentence, citing

factors other than Lopez Santiago’s alleged mendacity:

          I have reviewed the PSI. I’ve also taken into account, of
          course, the testimony that I heard during the trial of the
          case, part of which was the certified record from the
          Department of Transportation, which is an impressive multi-
          page document. I believe that [Lopez Santiago] - - at the
          time of this offense, [Lopez Santiago] was already
          suspended through April 15 of 2026. I’ve taken into account

____________________________________________


2  See N.T., Trial, at 137 (Commonwealth in closing argument stating, “Even
if you believe him, even if you believe every single word that came out of Noel
Santiago’s mouth, you still have to find him guilty based on the jury
instruction”); see also TCO at 6 (“[E]ven if the jury believed that [Lopez
Santiago] signaled the police his direction of his travel and pulled over when
he reached his home, it does not change the fact that [Lopez Santiago] did
not promptly bring his vehicle to a stop when he was aware of the patrol car
with lights and sirens activated behind him”).


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         as part of that - - I’ve also taken into account the sentencing
         guidelines. And under ordinary circumstances, offenses of
         this nature merit - - if they merit a sentence of incarceration
         - - merit a county sentence.

         There are interesting additional factors in this case. First of
         all, was the nature of [Lopez Santiago’s] attempts to elude
         and the speed at which he drove through crowded
         neighborhood streets. Fortunately, there apparently was
         little or no activity on the street, even though it was around
         noon. But there is certainly the existence of danger to the
         local residents when this all occurred.

                                      ***

         I also note from the PSI that between the year 2000 and the
         year 2013, [Lopez Santiago] was sentenced to sentences in
         the county jail every one of those years, and in some of
         those years he was sentenced to more than one sentence to
         the county jail. Those sentences ranged anywhere from a
         month or two up to 11 and a half months. And obviously
         they have had no effect on [Lopez Santiago], and they’ve
         utterly failed to get [Lopez Santiago] to mend his ways and
         become law-abiding.

N.T., Sentencing, at 5-7. Thus, the court’s reliance on mendacity was not

prejudicial to Lopez Santiago and the sentence was not an abuse of discretion.

      Lopez Santiago also claims “the trial court specifically decided that

[Lopez Santiago’s] fleeing and eluding offense constituted the lower grading

of a misdemeanor of the second degree and, therefore, determined that the

factors of speed and danger did not exist.” Lopez Santiago’s Br. at 35-36

(citing N.T., Sentencing, at 3). In support of this claim, he references a portion

of the sentencing hearing which is provided below:

         [Defense Counsel]: Yes, Your Honor. Before I do that, I just
         want to clarify things. Originally Count 1 was graded as a
         felony of the third degree. There was some discussion



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         pretrial whether that would remain. I don’t think we had a
         final answer on that.

         The Court: I thought we did. It’s clear to the Court to the
         criteria that would be – had to be present for the gradation
         as a felony of the third degree were not present in the case,
         and the case, therefore, constitutes a misdemeanor of the
         second degree.

N.T., Sentencing, at 3. He maintains that “by considering the factors of speed

and danger for a misdemeanor of the second degree, when those factors are

statutorily reserved for a felony of the third degree, the trial court overstated

the severity of [Lopez Santiago]’s offense.” Lopez Santiago’s Br. at 36. This

claim warrants no relief.

      While the court determined that the proper grading of the fleeing offense

was that of a misdemeanor of the second degree, the court was free to

consider the factors of speed and danger in fashioning Lopez Santiago’s

sentence. See Commonwealth v. Perry, 32 A.3d 232, 242 (Pa. 2011)

(“Factors that are not specific elements of the offense may be considered by

the sentencing court in imposing its sentence”). Here, the trial court stated

that it was merely considering the danger that Lopez Santiago posed to the

local residents by driving through residential streets at such a speed, which

relates to the gravity of the offense, a requirement of section 9721(b). TCO

at 7; 42 Pa.C.S.A. § 9721(b) (“sentence imposed should call for confinement

that is consistent with the protection of the public [and] the gravity of the

offense as it relates to the impact on the life of the victim and on the

community”). We glean no error from the court considering the speed and



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danger that Lopez Santiago posed, as the court acted within its discretion by

considering these factors in fashioning Lopez Santiago’s sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/06/2019




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