J-S55013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

GREGORY LEE JAMES COUSER,

                        Appellant                  No. 2626 EDA 2013


           Appeal from the Judgment of Sentence July 29, 2013
             In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0000106-2013


BEFORE: BOWES, SHOGAN, and OTT, JJ.

MEMORANDUM BY BOWES, J.:                     FILED SEPTEMBER 12, 2014

     Gregory Lee James Couser appeals from the July 29, 2013 judgment

of sentence of an aggregate term of two and one-half to six years

imprisonment imposed after a jury convicted him of fleeing or attempting to

elude police and accidents involving damage to an attended vehicle or

property. For the reasons set forth below, we affirm.

     Around 7:00 p.m. on December 5, 2012, Trooper Timothy Cutshaw of

the Pennsylvania State Police, Bethlehem Barracks, was traveling south on

Airport Road in Allentown, Pennsylvania, when he observed a dark gray

Volkswagen Jetta traveling southbound in reverse in the northbound lanes.

N.T., 7/3/13, at 22-23.    Despite the windows on the Jetta being tinted,

Trooper Cutshaw identified the driver to be a black male wearing a gray

sweatshirt. Id. at 25. Trooper Cutshaw then activated his overhead lights
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and siren on his marked patrol cruiser to initiate a traffic stop. Id. at 23.

The driver of the Jetta increased his speed in response and subsequently ran

a red light at the intersection of Airport Road and Race Street. Id. at 25.

The Jetta then made a U-turn around a concrete median and proceeded

southbound on Airport Road at a high rate of speed while weaving in and out

of traffic without using appropriate signals. Id.

      Trooper Cutshaw observed the Jetta run through four additional red

lights before making a left-

Club and then a right turn into the parking lot of a Waffle House. Id. at 26.

In an attempt to re-enter Airport Road, the Jetta struck another vehicle that

was occupied by two people. Id. at 27, 95. Trooper Cutshaw discontinued



on the lookou                                       Id.

      At approximately 10:00 p.m., the Pennsylvania State Police were

notified by the Allentown Police Department that they had located the Jetta.

Id. at 34. Trooper Cutshaw and other troopers responded to the location.

Id.   Trooper Cutshaw positively identified the vehicle before he and

Trooper Salvatore Alaimo took the three male occupants, one of whom was

Appellant, out of the car and into custody. Id. at 37-38. Trooper Alaimo

then performed a search of Appellant incident to his arrest. Id. at 45, 130.

The keys to the Jetta were found in his pocket. Id. at 130-31.




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     On July 3, 2013, a jury convicted Appellant of fleeing or attempting to

elude police and accidents involving damage to an attended vehicle or

property. Id. at 204. On July 29, 2013, the trial court sentenced Appellant

to an aggregate term of two and one-half to six years imprisonment. This

                                                                         on

challenging, inter alia, the weight of the evidence and the discretionary

aspects of his sentence.

     Appellant presents the following issues for our review:

     A. Whether the trial court erred when it permitted the
     Commonwealth to present testimony regardin
     outstanding warrants and loss of driving privileges as evidence
     of admissible bad acts of the defendant?

     B. Whether or not the evidence as presented was sufficient as a
     matter of law to support the conviction for fleeing and eluding
     the police when the evidence that the defendant was the
     operator of the fleeing vehicle was questionable and uncertain?

     C. Was the verdict against the weight of all the evidence in
     regards to the proof of whether or not the defendant was the
     operator of the fleeing vehicle?

     D. Whether the sentences as imposed were manifestly excessive

     applicable sentencing guidelines and were not justified by the
                                                      life?

                    -9.

     As a successful sufficiency claim would entitle Appellant to discharge,



Commonwealth was insufficient to sustain his conviction of fleeing or




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attempting to elude police. Appellant's brief at 11. The standard of review

for these claims is as follows:

             The standard we apply in reviewing the sufficiency of
      evidence is whether, viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the factfinder to find every element of the
      crime beyond a reasonable doubt. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      that of the fact-finder. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant's guilt may be resolved by a fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      trier of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Muniz, 5 A.3d 345, 348 (Pa.Super. 2010) (citations

omitted) (quoting Commonwealth v. Hennigan, 753 A.2d 245, 253

(Pa.Super. 2000)).

      Appellant was convicted of fleeing or attempting to elude police, 75

Pa.C.S. § 3733, which 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.

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

      Appellant argues that the Commonwealth did not prove that he was

the driver of the vehicle. According to Appellant, the evidence presented by

the Commonwealth established only that the driver was a black male who

was wearing a gray sweatshirt.

      The elements required to prove this offense are as follows: 1) the

driver, in an attempt to elude police; 2) failed to bring his vehicle to a stop

when; 3) signaled by police to stop the vehicle while; 4) endangering law

enforcement and members of the general public.           Instantly, the evidence

presented by the Commonwealth established all of the elements of the

crime.     Trooper Cutshaw identified Appellant as the person operating the

vehicle.     N.T., 7/3/13, at 25.     Likewise, his testimony established that

Appellant failed to stop when he knew that police were signaling him to pull

over. Id. His testimony also established that the pursuit involved Appellant

driving erratically at high rates of speed, driving through red lights and

putting law enforcement and at least one member of the general public in


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danger.   Id. at 25-27, 95.   Moreover, Trooper Alaimo testified that, upon

                                     on, and arrest, the keys to the vehicle

                                       Id. at 37-38, 45, 130-31.



Appellant had asked her to bring a tow dolly to take the Jetta to Mount

Pocono.   Id. at 105, 108.    She also testified that she observed Appellant

driving the Jetta on multiple occasions and could not recall ever seeing

anyone else driving it. Id. at 115, 118. Thus, the certified record sustains

                                          ding a police officer pursuant to

§ 3733(a).

     Next, we address Appellant's contention that it was improper for the

trial court to permit evidence of an outstanding arrest warrant in New Jersey

                                                                ontends that

neither of the two facts was a necessary element of the criminal charges,

but the facts were rather damaging pieces of evidence tending to show him



     Admission of evidence is within the sound discretion of the trial
     court and will be reversed only upon a showing that the trial
     court clearly abused its discretion. Admissibility depends on
     relevance and probative value. Evidence is relevant if it logically
     tends to establish a material fact in the case, tends to make a
     fact at issue more or less probable or supports a reasonable
     inference or presumption regarding a material fact.

Commonwealth v. Jackson, 900 A.2d 936, 939 (Pa.Super. 2006) (citing

Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002)).


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     Evidence may be admissible in certain circumstances where it is

relevant for some other legitimate purpose and not utilized solely to blacken

the defendant's character. Id. It is well-established that reference to prior

criminal activity of the accused may be introduced where relevant to some

purpose other than demonstrating defendant's general criminal propensity.

     Evidence of other crimes may be introduced to show: (1) motive; (2)

intent; (3) absence of mistake or accident; (4) a common scheme or plan;

and (5) identity.   Commonwealth v. Melendez Rodriguez, 856 A.2d

1278, 1283 (Pa.Super. 2004). In order for evidence of prior bad acts to be

admissible as evidence of motive, the prior bad acts must provide a

sufficient ground to believe that the crime currently being considered grew

out of or was in some way caused by the prior set of facts and

circumstances. Id

probative value of the evidence outweighs its potential for unfair prejudic

Pa.R.E. 404(b)(2); Commonwealth v. Hairston, 84 A.3d 657, 665 (Pa.

2014).

     In this case, evidence that Appellant had an outstanding arrest

warrant in New Jersey and that his license was suspended was probative to

show his motive for fleeing and eluding police.    It was reasonable for the

trial court to assume that Appellant did not want to be stopped by police

because he feared he would be arrested.




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       Although evidence of the warrant and suspended license may have

been    prejudicial   in   some     respect,   it   was   not   unduly   so.   See

Commonwealth v. Dillon,



when examining the potential for undue prejudice, a cautionary jury

instruction may ameliorate the prejudicial effect of the proffered evidence.

Pa.R.E. 404(b); Commonwealth v. Sherwood, 982 A.2d 483, 497 98 (Pa.

2009) (finding that cautionary instructions were sufficient to overcome the

prejudicial effect of prior bad acts evidence).

       In this case, the trial court instructed the jury:

            You have heard, also, evidence tending to show that the
       defendant was involved in improper conduct for which he is not
                    speaking of the evidence to the effect that the
       defendant had an outstanding warrant and had a suspended


             This evidence is before you only for a limited purpose.
       That is for the purpose of establishing and showing motive. This
       evidence must not be considered by you in any way other than
       for the purpose just stated.

N.T., 7/3/13, at 191.



fleeing and eluding police.       It was not unduly prejudicial and its prejudice

was further mitigated by the cautionary instruction given to the jury prior to

deliberations. Its probative value clearly outweighed its potential prejudicial

value and is, therefore, admissible.




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      As it relates to Appellant's penultimate issue, we outline the relevant

principles as follows:

      When the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court's
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review. Moreover, where the trial court
      has ruled on the weight claim below, 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.

Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa.Super. 2012) (internal

citations omitted) (quoting Commonwealth v. Trippett, 932 A.2d 188, 198

(Pa.Super. 2007)).

      Appellant's weight of the evidence argument alleges that the evidence

presented by the Commonwealth that he was operating the car was

speculative and tha



Appellant, the verdict was against the weight of the evidence.

      The trial court considered Appellant's weight of the evidence claim and

deemed it to lack merit.     The jury's choice to believe testimony of other



a palpable abuse of discretion. Commonwealth v. Morales, 91 A.3d 80,

91 (Pa. 2014).       Further, considering the evidence presented against




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nor was it one based upon conjecture.              Thus, Appellant's weight of the

evidence claim is without merit.

       Appellant's final issue challenges the discretionary aspects of his

various sentences.       He claims that his sentences are manifestly excessive

and either at the top end of the aggravated range of the applicable

sentencing guidelines or in excess of the aggravated range. 1            Appellant

further claims that the court offered no justification as to its reasoning for

the upward deviation. Appellant's brief at 19.

       The following principles are relevant,

              A challenge to the discretionary aspects of a sentence
       must be considered a petition for permission to appeal, as the
       right to pursue such a claim is not absolute. Two requirements
       must be met before we will review this challenge on its merits.
       First, an appellant must set forth in his brief a concise statement
       of the reasons relied upon for allowance of appeal with respect
       to the discretionary aspects of a sentence.            Second, the
       appellant must show that there is a substantial question that the
       sentence imposed is not appropriate under the Sentencing Code.
       The determination of whether a particular issue raises a
       substantial question is to be evaluated on a case-by-case basis.
       In order to establish a substantial question, the appellant must
       show actions by the trial court inconsistent with the Sentencing
       Code or contrary to the fundamental norms underlying the
       sentencing process.

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super. 2004) (internal

citations omitted).

____________________________________________


1
  We note that Appellant abandoned any claim that the aggregate term of
imprisonment was manifestly excessive due to the consecutively-imposed
sentences.



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        Appellant's brief contains a concise statement of the reasons relied

upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f) that is compliant

with the above standard. Appellant's brief at 12. Further, the Rule 2119(f)

statement reveals a substantial question that the sentence imposed for

fleeing and eluding was not appropriate under the sentencing code.

Appellant claims that the trial court did not take into consideration any

mitigating circumstances nor state any reasons for the imposition of a

sentence that exceeded the aggravated range of the sentencing guidelines.

Id.   This Court has held that a substantial question is raised where an

appellant alleges the sentencing court erred by imposing an aggravated

range     sentence   without   consideration   of   mitigating   circumstances.

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super. 2003) (en

banc ). Thus, there exists a substantial question which should be addressed



        The standard of review in these instances has been well-established:

        [I]mposition of sentence is vested in the discretion of the
        sentencing court and will not be disturbed by an appellate court
        absent a manifest abuse of that discretion.         An abuse of
        discretion is more than just an error in judgment and, on appeal,
        the trial court will not be found to have abused its discretion
        unless the record discloses that the judgment exercised was
        manifestly unreasonable, or the result of partiality, prejudice,
        bias or ill-will.

McAfee, supra at 275 (internal citations omitted).         Further, 42 Pa.C.S.

§ 9721(b) lays out




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     [T]he sentence imposed should call for confinement that is
     consistent with the protection of the public, the gravity of the
     offense as it relates to the impact on the life of the victim and on
     the community, and the rehabilitative needs of the defendant.
     In every case where a sentencing court imposes a sentence
     outside of the sentencing guidelines, the court must provide in
     open court a contemporaneous statement of reasons in support
     of its sentence.

     [T]he sentence imposed should call for confinement that is
     consistent with the protection of the public, the gravity of the
     offense as it relates to the impact on the life of the victim and on
     the community, and the rehabilitative needs of the defendant.
     The court shall also consider any guidelines for sentencing and
     resentencing adopted by the Pennsylvania Commission on
     Sentencing and taking effect under section 2155 (relating to
     publication of guidelines for sentencing, resentencing and parole
     and recommitment ranges following revocation). In every case
     in which the court imposes a sentence for a felony or
     misdemeanor, . . . the court shall make as a part of the record,
     and disclose in open court at the time of sentencing, a statement
     of the reason or reasons for the sentence imposed. In every
     case where the court imposes a sentence or resentence outside
     the guidelines adopted by the Pennsylvania Commission on
     Sentencing under sections 2154 (relating to adoption of
     guidelines for sentencing), . . . the court shall provide a
     contemporaneous written statement of the reason or reasons for
     the deviation from the guidelines to the commission, as
     established under section 2153(a)(14) (relating to powers and
     duties). Failure to comply shall be grounds for vacating the
     sentence or resentence and resentencing the defendant.

42 Pa.C.S. § 9721(b).

     Where an excessive sentence claim is based on a deviation from the

sentencing guidelines, we first look for an indication that the sentencing

court understood the suggested sentencing range.         Commonwealth v.

Tirado, 870 A.2d 362, 366 (Pa.Super. 2005).          When there is such an

indication, the sentencing court may deviate from the sentencing guidelines.


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Id.   Simply stated, the sentencing guidelines are merely advisory and the

sentencing court may sentence a defendant outside the guidelines as long as

the sentencing court places its reasons for doing so on the record. Id.

       Appellant alleges that the sentences imposed on him were manifestly

excessive and that the trial court did not offer any justification as to their

length nor did it indicate any balancing or review of any mitigating factors in



trial court only seemed to consider and certainly on

prior criminal history before imposing the sentences. Id. at 19.



merit.   To begin with,                                       -month minimum

sentence for accidents involving damage to attended vehicle or property was

at the top of the aggravated range is incorrect. The offense gravity score of



                                                     ctions   to   six   months

incarceration.2 Thus, the six-month minimum term of imprisonment the trial

court imposed herein was actually at the upper limit of the standard range of

the sentencing guidelines rather than within the aggravated range.         As a
____________________________________________


2
  As Appellant committed the underlying offenses prior to the effective date
of the current sentencing guidelines, the former edition of the guidelines
applies to the case. See 204 Pa.Code § 303.1(c). Additionally, we observe
that since the amendments to the prior edition did not alter the portion of
the sentencing matrix that we reviewed herein, an analysis under the
current edition would be identical.



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standard range sentence is presumed reasonable, and Appellant failed to

present any relevant argument to support his contention that it was

manifestly excessive, no relief is due.   Commonwealth v. Ventura, 975

A.2d 1128, 1135 (Pa.Super. 2009).

                              g sentencing claim does not fare any better.



first explained that it had received and reviewed the presentence report.

N.T., 7/29/13, at 3. Appellant maintained his innocence.     Id. at 10. The




sentence.   Id. at 8-9.   The trial court also received and reviewed a letter

                   ter. Id. at 9.

      The trial court then weighed these considerations against Appellant's

extensive criminal history.

The court concluded, based upon all of the information, that Appellant

ultimately demon                                                       Id. at



highlighting his twenty-six arrests and thirteen convictions, which included

                    Id. at 13-14. Considering all of this evidence, including

Appellant's prior record, his potential to re-offend, and the danger that he

created to the public in the events culminating in his conviction, the trial

court determined that a sentence that exceeded the guidelines was justified


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and that a lesser sentence would depreciate the seriousness of the crime.

Id. at 14.

       We find that the trial court properly articulated the nature and

circumstances of the offense, as well as Appellant's history and personal

characteristics, when it imposed a sentence in excess of the aggravated

range. Thus, the trial court did not abuse its discretion and Appellant is not

entitled to relief based on his challenge to the discretionary aspects of his

sentence.3

                                                          the   above-mentioned

determinations are well grounded given deference to the facts and

circumstances surrounding this case. It is clear that the trial court did not

abuse its discretion nor commit reversible error by admitting evidence of

                    acts.    The evidence was sufficient to support the verdict,




       Judgment of sentence affirmed.




____________________________________________


3

of individualized consideration of the sentencing factors and its failure to
balance the mitigating factors, Appellant did not raise whether the trial court
provided the sentencing commission a contemporaneous written statement
pursuant to 42 Pa.C.S. § 9721(b) of its reasons for deviating from the
guidelines. We do not address this issue sua sponte.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2014




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