J-S18027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RAMON VASQUEZ

                            Appellant                No. 1171 MDA 2015


             Appeal from the Judgment of Sentence April 29, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0004704-2013


BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                           FILED MARCH 23, 2016

        Ramon Vasquez appeals from his judgment of sentence, imposed in

the Court of Common Pleas of Berks County, after a jury found him guilty of

flight to avoid apprehension1 and related offenses. Upon careful review, we

affirm.

        Around 3:00 p.m. on June 19, 2013, Vasquez entered the office of

Magisterial District Judge Wally Scott to turn himself in on an outstanding

warrant. N.T. Trial, 4/15/14, at 51. At the time, Vasquez believed that the

outstanding warrant was for a summary offense. Id. After discovering that

Vasquez had an outstanding warrant for misdemeanor theft, Judge Scott

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 5126.
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called Vasquez into his courtroom and informed him of this fact. Id. at 55-

56. Judge Scott informed Vasquez of his rights and read him the affidavit of

probable cause and complaint from the bench. Id. When Judge Scott had

finished and handed Vasquez the arraignment information sheet, Vasquez

told the judge that there had been a mistake and that his girlfriend had

contacted the police department to drop the charges against him. Id. at 59-

60. Judge Scott agreed to call Vasquez’s girlfriend to ask if she wanted to

go forward with the charges. Id. at 60-61.

       Vasquez testifies that, at this point, he told the guard, Kyley Scott,

that he was going to use the bathroom. Id. at 120. As Judge Scott hung up

the phone, Vasquez stood up from his chair and put on his backpack and

hat, as if preparing to leave.   Id. at 62.   Judge Scott repeatedly directed

Vasquez to retake his seat and walked out from behind the bench and stood

at the top of the courtroom’s exit ramp.        As Vasquez approached the

courtroom door, Judge Scott positioned himself between Vasquez and the

threshold, blocking Vasquez’s exit.     Kyley Scott grabbed Vasquez and

attempted to pull him back into the courtroom.      Vasquez shook off Kyley

Scott’s grasp, pushed past Judge Scott, and exited the courtroom.      Id. at

121.

       Vasquez then exited the building and ran towards his motorcycle,

which was parked outside on the street.       Luis Negron, who was taking a

cigarette break outside of a business across the street, witnessed Vasquez

fleeing from the building, with Judge Scott and Kyley Scott trailing behind

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him. Id. at 100-01. Negron ran across the street and grabbed Vasquez by

the back of the shoulders as he attempted to start his motorcycle. Vasquez

then revved the engine suddenly and reared back on the bike, freeing

himself of Negron’s grip. Vasquez then took off down the street at a high

rate of speed.    Id. at 101-02.    Shortly thereafter, Vasquez crashed his

motorcycle into a guardrail. Id. at 109. As Vasquez attempted to restart

the motorcycle, he was approached by off-duty Reading Police Officer

Christian Morar, who had been pursuing him since he left Magisterial Judge

Scott’s office.   Id. at 110.   After identifying himself as a police officer,

Officer Morar approached Vasquez with his firearm drawn and ordered him

to stop.     When Officer Morar came within arm’s length of Vasquez, he

reached out with his hand and pushed Vasquez away from the motorcycle.

The push caused Vasquez to fall backwards, allowing Officer Morar to grab

the keys from the ignition. N.T. Omnibus Pretrial Hearing, 1/10/14, at 44.

After securing his own vehicle and grabbing his taser, Officer Morar then

pursued Vasquez on foot, but soon lost sight of him. Id. at 45. Vasquez

later turned himself in to his bail bondsman and was taken to Berks County

Prison. Id. at 127.

      The trial court gave the following account of the procedural history of

this case:

      On April 15, 2014, following a jury trial, [Vasquez] was found
      guilty of flight to avoid apprehension, trial or punishment and
      other related offenses.     On April 29, 2014, [Vasquez] was
      sentenced to nine months to two years of incarceration in a state
      correctional facility. [Vasquez] was represented at trial and

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      sentencing by Holly B. Freeney, Esquire, of the Berks County
      Public Defender’s Office.

           On April 29, 2014, this court granted Ms. Feeney’s Motion
      for Leave to Withdraw as Counsel, and appointed Nicholas
      Stroumbakis, Esquire, to represent [Vasquez] on Appeal. On or
      about November 19, 2014, [Vasquez] filed a pro se Motion for
      Withdrawal of Counsel and Appointment of Replacement
      Counsel, which this court interpreted to be a petition filed
      pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541-
      9546. Accordingly, on December 2, 2014, this court appointed
      Osmer S. Deming, Esquire, to represent [Vasquez].

             On June 11, 2015, Attorney Deming filed an Amended
      Petition for Post Conviction Collateral Relief in which he sought to
      have [Vasquez’s] direct appellate rights reinstated, nunc pro
      tunc. This court granted [Vasquez’s] Amended Petition that
      same day, and on July 9, 2015, Attorney Deming filed a Notice
      of Appeal on [Vasquez’s] behalf. On July 13, 2015 the court
      ordered [Vasquez] to file a Concise Statement of Errors
      Complained of on Appeal. [Vasquez] complied with this court’s
      order on August 3, 2015.

Trial Court Opinion, 9/18/15, at 1-2.      The trial court filed its Pa.R.A.P.

1925(a) memorandum opinion on September 18, 2015. Vasquez raises the

following two issues on appeal:
      1. Was the evidence sufficient to support the conviction for flight
      to avoid apprehension?

      2. Was the verdict against the weight of the evidence to support
      the conviction for flight to avoid apprehension?

Appellant’s Brief, at 5.

      Vasquez claims the evidence was insufficient to prove beyond a

reasonable doubt that he acted with the intent to avoid apprehension, trial

or punishment or that he intentionally attempted to elude law enforcement.

Appellant’s Brief, at 14-15.   Vasquez argues that he arrived at Magisterial

Judge Scott’s office with the intent to turn himself in to authorities and then



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only fled after being attacked by Judge Scott and his staff. He also asserts

that his flight cannot be characterized as an intentional attempt to elude law

enforcement because Judge Scott and his security guard are not law

enforcement and he did not know that Officer Morar was an off-duty police

officer. Id. at 15.

         Our standard of review in assessing a challenge to the sufficiency of

the evidence is well-settled.     “The standard we apply in reviewing the

sufficiency of the 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 fact-finder to find every element of the crime beyond

a reasonable doubt.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.

Super. 2013).     “Any doubts concerning an appellant’s guilt [are] to be

resolved by the trier of fact unless the evidence was so weak and

inconclusive that no probability of fact could be drawn therefrom.”

Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007).             “[T]he

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.”    Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super.

2007).

      Section 5126 of the Crimes Code defines the crime of flight to avoid

apprehension, trial or punishment as:

       (a) Offense defined.—A person who willfully conceals himself
      or moves or travels within or without the Commonwealth with
      the intent to avoid apprehension, trial or punishment commits a

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      felony of the third degree when the crime which he has been
      charged with or has been convicted of is a felony and commits a
      misdemeanor of the second degree when the crime he has been
      charged with or has been convicted of is a misdemeanor.

18 Pa.C.S. § 5126(a).     This Court has elaborated on the intent prong of

section 5126 as follows:
      [T]he plain language of the statute requires that the defendant
      intend to avoid apprehension, trial or punishment. The statute
      does not mandate that the defendant have knowledge of the
      precise grading of the offense for which he is attempting to avoid
      capture. The intent element of the crime is separate and apart
      from whether the person has been convicted or is charged with a
      felony. Furthermore, nothing in the statutory language requires
      that police have knowledge of the underlying charge or
      conviction. It is sufficient for the defendant to intentionally
      elude law enforcement to avoid apprehension, trial or
      punishment on a charge or conviction.

Commonwealth v. Steffy, 36 A.3d 1109, 1111-12 (Pa. Super. 2012).

      Here, the trial court concluded that the Commonwealth proved beyond

a reasonable doubt that Vasquez had the specific intent to support a

conviction for flight to avoid apprehension, trial or punishment. According to

Vasquez’s own testimony, he fled from Magisterial Judge Scott’s office on his

motorcycle after learning that there was a warrant for his arrest. Trial Court

Opinion, 9/18/15, at 3. Vasquez then fled a second time, this time on foot,

after Officer Morar identified himself as an off-duty police officer and ordered

Vasquez to stop. Id.

      In addition to the evidence cited by the trial court, the Commonwealth

presented testimony from the only other two people in the courtroom

besides Vasquez, Judge Scott and his guard, Kyley Scott; their testimony

refuted Vasquez’s testimony that he had asked to go to the bathroom to call


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his lawyer. The Commonwealth also offered testimony from Judge Scott and

Kyley Scott, as well as Officer Morar and Negron, that Vasquez did not go to

the bathroom, nor did he call his lawyer, but instead ran from the office and

rode away very quickly on his motorcycle.

     Accordingly, we agree with the trial court that the evidence, viewed in

the light most favorable to the Commonwealth, was sufficient to sustain

Vasquez’s conviction under section 5126(a). Garland, supra.

     Next, Vasquez argues that he must be awarded a new trial because

the verdict was against the weight of the evidence. Appellant’s Brief, at 16.

An allegation that the verdict is against the weight of the evidence is

addressed to the sound discretion of the trial court.     Commonwealth v.

Dupre, 866 A.2d 1089, 1101 (Pa. Super. 2005) (citations omitted).

Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008). A verdict is

against the weight of the evidence only where the Commonwealth’s evidence

is so fundamentally inconsistent, unreliable, or tenuous that it shocks one’s

sense of justice to imagine that a factfinder could have credited it and used

it to convict someone.   Commonwealth v. Widmer, 744 A.2d 745 (Pa.

2000). Moreover:

     [o]ur purview [with respect to a weight-of-the-evidence claim] is
     extremely limited and is confined to whether the trial court
     abused its discretion in finding that the jury verdict did not shock
     its conscience. Thus, appellate review of a weight claim consists
     of a review of the trial court’s exercise of discretion, not a review
     of the underlying question of whether the verdict is against the
     weight of the evidence.



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Commonwealth v. Knox, 50 A.3d 732, 738 (Pa. Super. 2012) (citations

omitted).

         Before we address the merits of Vasquez’s weight claim, we must first

determine whether Vasquez has preserved his weight challenge. Pursuant to

Pa.R.Crim.P. 607, a challenge to the weight of the evidence “shall be raised

with the trial judge in a motion for a new trial . . . orally, on the record, at

any time before sentencing[,] by written motion at any time before

sentencing[,] or in a post-sentence motion.” Pa.R.Crim. 607(A)(1), (2), &

(3). Moreover, a post-sentence motion “shall be filed no later than 10 days

after imposition of sentence.” Pa.R.Crim.P. 720(A)(1).

         Instantly, the trial court reinstated only Vasquez’s direct appeal rights

nunc pro tunc.      Where the court reinstates direct appeal rights nunc pro

tunc, the appellant is not automatically entitled to reinstatement of his post-

sentence rights nunc pro tunc as well.         Commonwealth v. Liston, 977

A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a defendant’s

post-sentence rights nunc pro tunc if the defendant requested such relief

from the PCRA court and if the court held an evidentiary hearing on the

issue.     Commonwealth v. Fransen, 986 A.2d 154 (Pa. Super. 2009).

         In Commonwealth v. Corley, 31 A.3d 293 (Pa. Super. 2011), we

explained that where the appellant was denied counsel entirely throughout

the post-sentence and direct appeal period when he was constitutionally

entitled to counsel, reinstatement of his appellate rights nunc pro tunc

should have included the right to file a post-sentence motion nunc pro tunc,

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because the appellant was without counsel at the time the post-sentence

motion was due. Accordingly, we determined in Corley that the appellant

did not waive his discretionary challenge to his sentence on direct appeal

nunc pro tunc, even though his post-sentence rights were not reinstated

nunc pro tunc. Id. at 297.

       Here, as in Corley, Vasquez’s direct appeal rights were reinstated on

the basis that he had been denied the right to counsel in pursuing a direct

appeal.    Trial Court Order, 6/11/15.         The trial court does not recognize,

however, that immediately after imposing sentence on April 29, 2014, the

court granted trial counsel’s motion for leave to withdraw.2         Notably, the

court did not appoint Vasquez new counsel, for the purpose of filing post-

sentence motions and an appeal, until May 7, 2014 – 8 days following

sentencing.      Accordingly, Vazquez was unrepresented 80% of the time

within which he had to file timely post-sentence motions under Rule 720. In

fact, Vasquez submitted a handwritten document entitled “Post Sentence

Motion for Judgment of Acquittal” to the Clerk of Courts, dated May 7, 2014

and postmarked May 15, 2014.              In the document, Vasquez requested to

proceed with his post-sentence motion pro se until the court could appoint


____________________________________________


2
 At this time, Holly Freeney, Esquire, reviewed the procedure for filing post-
sentence motions and appeals with Vasquez and had him sign the
“Defendant’s Acknowledgement of Post Sentence Procedures Following
Trial.” See Defendant’s Acknowledgement of Post Sentence Procedures
Following Trial, 4/29/14, at 3.



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replacement counsel. A copy of the letter was sent to Attorney Stroumbakis

on May 19, 2014, well after the time period for filing timely post-sentence

motions had expired. Additionally, Vasquez contends that he made several

attempts to get in touch with Attorney Stroumbakis regarding the filing of

post-sentence motions, both by mail and phone, but was unable to establish

contact.

       As in Corley, Vasquez’s PCRA claim was based on appointed counsel’s

failure to file a post-sentence motion or appeal on his behalf, and Vasquez

raises no other claims of ineffectiveness of counsel in his petition.       In

reliance on Corley, we decline to find waiver of Vasquez’s weight challenge

on the basis that he failed to preserve the claim in a post-sentence motion

where: He was effectively denied the right to counsel during the time when

he could file timely post-sentence motions and where he attempted to

preserve those rights by objecting at sentencing and filing pro se post-

sentence motions raising a weight of the evidence claim.3 See Defendant’s

Post Sentence Motion for Judgement of Acquittal, 5/16/14, at 3.

       Vasquez contends that the weight of the credible testimony establishes

that he fled Judge Scott’s office in order to escape the attacks of Judge Scott

and Kyley Scott and not to avoid apprehension, trial, or punishment.

Appellant’s Brief at 16-17. First, Vasquez argues that his voluntary presence

____________________________________________


3
  Vasquez acknowledges in his PCRA petition that he submitted a post-
sentence motion.



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at Judge Scott’s office establishes that he “was trying to do the opposite of

avoiding apprehension.” Id. at 16. Second, Vasquez argues that the jury

should have credited his testimony that he asked Kyley Scott for permission

to “go to the bathroom to call a lawyer” before getting up to leave the

courtroom and was then the victim of unprovoked attacks by Judge Scott

and Kyley Scott. Id.

     Whether or not Vasquez asked for permission to leave Judge Scott’s

courtroom, both Judge Scott and Kyley Scott testified that Vasquez ignored

Judge Scott’s repeated demands that he return to his seat and then

physically pushed past Judge Scott to exit the courtroom.         N.T. Trial,

4/15/14, at 62-66, 82-85.     As the trial court noted in its Rule 1925(a)

opinion, the jury “obviously found the testimony of [Judge] Scott, Kyley

Scott, and Officer Morar to be credible.” Trial Court Opinion, 9/18/15, at 4.

Vasquez’s own testimony largely corroborates the Commonwealth’s account

of his flight from Judge Scott’s office.    Once outside the building, the

evidence shows that Vasquez ran to his motorcycle and rode off at a high

rate of speed, crashing the vehicle shortly thereafter.    Id. at 125.    As

Vasquez attempted to restart his motorcycle, Officer Morar approached him

with his weapon drawn, identified himself as a police officer, and ordered

him to get down. Id. at 110; 126. Vasquez ignored Officer Morar’s orders

and fled the scene on foot. Id. at 126.

     Vasquez contends that he did not hear Officer Morar identify himself

and, therefore, did not recognize him as a police officer. Id. However, the

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evidence shows that Officer Morar approached Vasquez within moments of

his flight from Judge Scott’s office, drew his firearm, and ordered Vasquez to

get on the ground. Taken together with the testimony of Judge Scott and

Kyley Scott, these facts would support a conviction under section 5126.

      After careful review, we find that the trial court did not abuse its

discretion. Knox, supra.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2016




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