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HomeMy WebLinkAbout01-1764 CRIMINALCOMMONWEALTH WILLIE J. TRAYNHAM OTN: L094442-5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGES: (1) DISORDERLY CONDUCT (2) PERIODS FOR REQUIRING LIGHTED LAMPS (SUM) (3) DRIVING W/O LIGHTS TO AVOID IDENTIFICATION OR ARREST (SUM) (4) FLEEING OR ATTEMPTING TO ELUDE POLICE OFFICER (5) DRIVING VEHICLE AT SAFE SPEED (SUM) NO. 01-1764 CRIMINAL TERM IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., May 23, 2002. In this criminal case, Defendant Willie J. Traynham was charged with disorderly conduct, a misdemeanor offense;~ driving without lights during a period in which lighted lamps are required, a summary offense;2 driving without lights to avoid identification or arrest, a summary offense;3 fleeing or attempting to elude a police officer, a misdemeanor offense;4 and driving a vehicle at an unsafe speed, a summary offense.5 At trial, a jury found Defendant not guilty of disorderly conduct but guilty of fleeing or attempting to elude a police officer.6 The court found Defendant guilty of the three summary offenses.7 ~ See Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, as amended, 18 Pa. C.S.A. § 5503 (West 1998 & Supp. 2001). 2 See Act of June 17, 1976, P.L. 162, No. 81, § 1, as amended, 75 Pa. C.S.A. § 4302 (West 1998 & Supp. 2001). 3 See 75 Pa. C.S.A. § 3734. 4 See 75 Pa. C.S.A. § 3733. ~ See 75 Pa. C.S.A. § 3361. 6 Order of Ct., Jan. 15, 2002. 7 Order of Ct., Jan. 15, 2002. Defendant was subsequently sentenced to pay fines and costs of prosecution, and to undergo a period of intermediate punishment of 23 months. A post-sentence motion in the form of a motion in arrest of judgment and a motion for a new trial was thereafter denied.8 Defendant has appealed to the Pennsylvania Superior Court from the judgment of sentence.9 In his statement of matters complained of on appeal, Defendant expresses the issues on appeal as follows: 1. There was insufficient evidence to sustain a conviction for fleeing or attempting to elude in that there was insufficient evidence that Defendant refused to bring his vehicle to a stop or willfully failed to do so. 2. The conviction for fleeing or attempting to elude is against the weight of the evidence since the conclusion that Defendant acted willfully or refused to bring his vehicle to a stop when given visual or audible signal to do so is against the weight of the evidence. 3. There was insufficient evidence to sustain a conviction for driving without lights to avoid identification or arrest since there was insufficient evidence that Defendant drove without lights or turned them off for the purpose of avoiding identification or arrest. 4. Permitting a police witness to tell and show the jury [that] Defendant possessed a loaded firearm, as well as how such a firearm was operated, was error in that such evidence was not relevant and could only have a prejudicial effect. 5. The Court erred in instructing the jury [that] it could consider flight of Defendant as consciousness of guilt since it suggested [that] the jury convict Defendant of fleeing or attempting to elude and driving without lights to avoid identification or arrest, l0 This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). 8 Order of Ct., March 25, 2002. 9 Def.'s Notice of Appeal, filed Apr. 10, 2002. Defendant styled the appeal as being from the denial of the post-sentence motion. Id l0 Def.'s Statement of Matters Complained of on Appeal, filed Apr. 23, 2002. 2 STATEMENT OF FACTS This case arises from an episode in which Defendant Willie J. Traynham allegedly attempted to elude a police officer after being involved in an altercation with a handgun in July 2001 outside of Wanda's Nightclub, situated along Route 11 in Mechanicsburg, Hampden Township, Cumberland County, Pennsylvania. Testimony presented on behalf of the Commonwealth may be summarized as follows: In the early morning hours of July 1, 2001, in the parking lot of Wanda's Nightclub, a loud noise, resembling the backfire of a car or the detonation of a small explosive device, was heard by a security guard employed by the nightclub. ~ The guard investigated the noise and found Defendant and a male companion engaged in a heated exchange with a group of five individuals concerning the cause of the noise in the establishment's parking lot.~2 As the argument continued, the security guard noticed Defendant pick up an object, which, from the guard's vantage point, appeared to be "a gun or a butt of a gun," from beneath the driver's seat of Defendant's car and hold it behind his back.~3 The verbal altercation did not escalate into physical violence, however, and the five men eventually proceeded into the nightclub without further incident.TM After the guard saw Defendant return the object to his car, he approached Defendant to verify that he was sufficiently composed to enter the club and that the object had, in fact, been put away.~5 Defendant, without identifying the object, said that it had been put away, and the guard told Defendant he could enter the club.~6 ~ N.T. 16-18. The guard was actually employed by the Holiday Inn to which the nightclub is attached. The guard was responsible for security of the entire property including the hotel and nightclub. N.T. 15. ~2 N.T. 17-18. ~3 N.T. 18. ~4 N.T. 19. ~5 N.T. 19, 21. 16 N.T. 21. The guard's testimony as to the conversation was, in pertinent part, as follows: Once [Defendant] went to his car the second time, and I felt pretty sure that whatever it was was away, I had approached [Defendant] .... Defendant and his companion then entered the club through a back door to avoid paying the cover charge at the main entrance.~7 They were subsequently stopped and escorted out of the building by the club's security, including the security guard who had previously encountered Defendant in the parking lat.~8 As the guard and other security personnel escorted him from the club, Defendant stated that he (Defendant) was "like a time bomb ready to go off' and that "someone could get whacked.''~9 Once Defendant was outside, he and his companion proceeded to leave the parking lot in Defendant's car at a high rate of speed.2° Patrolman Shaun Felty of the Hampden Township Police Department arrived at the club in response to an unrelated call at approximately the same time that Defendant was speeding out of the club's parking lat.2~ Defendant drove across Route 11 and entered the empty parking lot of a restaurant, which was closed at that time. Defendant parked and turned off the lights of his car.22 The security guard recounted Defendant's actions to Patrolman Felty and identified Defendant's current location across the street.23 Patrolman Felty proceeded to drive, with his emergency lights activated, across the road in an effort to intercept Defendant.24 At this time, Patrolman Felty observed Defendant's car back up and drive toward the rear of the parking lot at a high rate of N.T. 2 ~7N.T' ~a N.T. ~9N.T' 20 N.T. 2~ N.T. 22 N.T. 23 N.T. 24 N.T. And then I asked a question, did you put it away? And he looked at me and said, put what? My shit? And I then said, yes, your shit. Did you put your shit away? And he assured me that he had. 1. 50-52, 106. 23, 53. 23, 52. 24, 53. 24. 24-25, 53-54. 25-26, 54. 62. 4 speed and without its headlights on.25 Defendant passed through the parking lot of an adjacent business and onto Route 11, travelling in the direction of Route 581, at which time Defendant turned on his headlights.26 Patrolman Felty, with his emergency lights still activated, pursued Defendant, at one point coming within 400 feet of Defendant's car.27 Defendant entered Route 581 eastbound toward Harrisburg travelling at speeds in excess of 100 miles per hour.28 Patrolman Felty pursued Defendant onto Route 581 East and activated his siren.29 Defendant accelerated away from Patrolman Felty, who was caught behind a tractor-trailer on the entrance ramp of Route 581.30 Defendant was approximately 1,000 feet away from Patrolman Felty when he attempted to exit Route 581 onto Route 15 southbound.3~ When Patrolman Felty reached the exit ramp, he found Defendant's car facing him after it had spun off the road and come to rest against a guardrail.32 Defendant and his companion were taken into custody by Patrolman Felty and other officers from the Camp Hill Borough Police Department.33 Police subsequently found and removed a Glock 9-millimeter model 17 handgun from beneath the driver's seat of Defendant's car.34 At trial, Corporal Gary M. Bonner of the Hampden Township Police Department, who discovered the gun, testified as to the circumstances of the discovery, including the 25 N.T. 62. 26 N.T. 63. 27 N.T. 63-64. 2a N.T. 64. 29 N.T. 64. 30 N.T. 64. 3~ N.T. 65. 32 N.T. 65. 33 N.T. 65-66. 34 N.T. 78. fact that the gun had been loaded with live ammunition.35 As Corporal Bonner began to testify as to the visual and mechanical distinction between a loaded and unloaded weapon and to the operation of a loaded weapon, Defendant objected on the ground that the testimony was not relevant.36 The Commonwealth argued that the fact that the gun was loaded was relevant to the offense disorderly conduct, with which Defendant had been charged.37 The court permitted the witness to testify to the fact that the weapon was loaded at the time of discovery, and Defendant made no further objections during the testimony.38 In the defense case-in-chief, Defendant offered his own testimony and that of the companion who was with him on the night of the events at issue.39 Defendant admitted that he owned a gun and that it was stored under the front seat of his car during the times in question, although Defendant offered evidence that he had a valid permit to carry a concealed weapon.4° Defendant further admitted that he and his companion had been involved in an argument and that a security guard had subsequently asked if Defendant had returned an unidentified item to Defendant's car.4~ However, Defendant testified that 35 N.T. 76-81. 36 N.T. 79. 37 N.T. 79-80. 3a N.T. 80-81. 39 See N.T. 82-114. The testimony of Defendant's companion substantiality corroborated the Defendant's account of events. 40 N.T. 84-85, 101. Defendant's testimony as to the conversation was, in pertinent part, as follows: At that point[, after the altercation,] he [the guard] asked me if I had put whatever back. I said what? You mean my shit? He said, yeah. I said, I don't know what you're talking about, but whatever, and he said then you're allowed to come in. N.T. 88; cf. supra note 16 (quoting guard's testimony as to the conversation). 4~ N.T. 86-89, 104-06. he did not know to what item the guard was referring and that he had not removed any items, specifically his gun, from his car during the argument.42 With respect to his alleged evasion of the police, Defendant admitted that he had parked in the restaurant parking lot across from the club without his headlights on, but testified that he had done so for the purpose of allowing his companion to urinate behind the restaurant.43 According to this testimony, after his companion was finished, Defendant drove out of the parking lot at a high rate of speed, but, until after Defendant lost control of the vehicle, he did not perceive any police vehicles, "flashing lights" or police sirens44 that would have indicated that police were in pursuit of the car.45 After the conclusion of the evidentiary phase of the trial, and outside the presence of the jury, Defendant objected to a planned jury instruction46 regarding flight or concealment as showing consciousness of guilt on two grounds: (1) that the instruction improperly suggested to the jury that Defendant had already been found to be guilty of evasion and (2) that the evidence presented during trial was not sufficient to infer that a reasonable person would have known he was being pursued by police.47 Based on previous, off-the-record discussions among the court and counsel, in which it was agreed that the point regarding flight as consciousness of guilt would apply only to the jury 42 N.T. 86-90. Defendant further admitted that he had attempted to enter the club through the back door to avoid paying the cover charge and that he had made several threatening comments to security personnel as he was being escorted outside. N.T. 89-90, 104-06. 43 N.T. 91-93, 108. 44 Both witnesses testified that loud music was playing in the car at the time. N.T. 101. 45 N.T. 94-100, 110-11. 46 The court had previously met with the parties to discuss the requested points for charge. N.T. 117. 47 N.T. 117-118. charge of disorderly conduct, the court stated that "all of the points requested [will be given] in substantially the language requested.''48 Accordingly, as part of the charge dealing with the offense of disorderly conduct, the court instructed the jury, in pertinent part, as follows: Generally speaking, when a crime has been committed, and the person thinks he is or may be accused of committing it, and he flees, such flight is a circumstance tending to prove the person is conscious of guilt. Such flight does not necessarily show consciousness of guilt in every case. A person may flee from some other motive, and may do so even though innocent. The credibility and weight and effect of any evidence of flight as it bears upon the offense of disorderly conduct is for you to decide. This instruction on the effect of flight, if you find it did occur, following the incident of disorderly conduct[,] applies only to the offense of disorderly conduct. The instruction does not apply to the offense of fleeing or attempting to elude a police officer[, t]he essence of which is flight with knowledge that one is being pursued.49 At the conclusion of the charge, Defendant renewed his objection, which was overruled by the court)° At the conclusion of trial, the jury found Defendant not guilty of disorderly conduct but guilty of fleeing or attempting to elude a police officer. The court found Defendant guilty of the three summary charges. DISCUSSION Sufficiency of the Evidence. In evaluating the sufficiency of the evidence presented at trial, the proper test is "whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, there is sufficient evidence to enable the trier of fact to find 48 N.T. 117. The court further stated that Defendant should place an objection on the record at the conclusion of the charge if Defendant wished to "be protected in that regard." 49 N.T. 121-22. 50 N.T. 129. every element of the [crime] charged beyond a reasonable doubt." Commonwealth v. dories, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996) (quoting Commonrvea/th v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288 (1984)). The trier of fact is "free to believe all, part or none of the evidence." Commonrvea/th v. Petaccio, 764 A.2d 582, 585 (Pa. Super. Ct. 2000) (quoting Commonrvea/th v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986)). In the present case, the evidence presented at trial, viewed in the light most favorable to the Commonwealth, was sufficient to satisfy the elements of the offense of fleeing or attempting to elude a police officer. The misdemeanor offense of fleeing or attempting to elude a police officer is defined in section 3733 of the Vehicle Code, which provides, in pertinent part, as follows: (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 a misdemeanor of the second degree. 75 Pa. C.S.A. § 3733(a). The testimony offered by the Commonwealth established that Patrolman Felty used his siren and emergency lights in an attempt to signal Defendant to pull over. Further, the jury could have reasonably inferred from this testimony that Defendant did, in fact, perceive the visual and audio signals and willfully failed to acknowledge them by stopping his vehicle. Thus, the evidence was sufficient to sustain the finding of guilt of this offense. The evidence presented at trial was also, in the court's view, sufficient to satisfy the elements of the offense of driving without lights to avoid identification or arrest. The summary offense of driving without lights to avoid identification or arrest is defined in section 3734 of the Vehicle Code, which provides, in pertinent part, as follows: Any person who drives without lights or turns off any or all the lights on a motor vehicle for the purpose of avoiding identification or arrest is guilty of a summary offense .... 75 Pa. C.S.A. § 3734. Taken in the light most favorable to the Commonwealth, the testimony tended to show that Defendant, during an argument with other patrons of the nightclub, removed a gun from his car and later, after an aborted attempt to enter the club without paying the required cover charge, made threatening remarks to security personnel. Further, the testimony offered by the Commonwealth established that, after Patrolman Felty arrived in the area, Defendant drove into an empty parking lot of a closed restaurant, turned off his lights, and, after Patrolman Felty's patrol car approached him, drove through two parking lots and onto the street without his lights on. From this evidence the jury could reasonably infer that Defendant had perceived Patrolman Felty and had driven without his lights turned on in an attempt to avoid identification or arrest. Weight of the Evidence. In a determination of whether a new trial should be granted based on a challenge to the weight of the evidence, the proper test is whether the verdict is so contrary to the evidence presented at trial as to "shock [the court's] sense of justice." McElrath v. Commonwealth, 405 Pa. Super. 431, 443, 592 A.2d 740, 745 (1991). While this issue requires a review of all evidence presented at trial, credibility determinations are within the province of the trier of fact. Id at 442-43, 592 A.2d at 745. In the present case, the weight of the evidence supported the guilty verdict for fleeing or attempting to elude a police officer. The jury, as trier of fact, was entitled to credit the version of events offered by witnesses for the Commonwealth and to discount the testimony of the witnesses for the Defendant, who suggested that they did not perceive any visual or audio signals by police for them to stop. Because the jury could have reasonably made these credibility determinations in favor of the Commonwealth, and because the evidence as thus interpreted amply supported a finding of guilt for this offense, the verdict cannot be said to have been against the weight of the evidence. Relevancy of Testimony. With respect to Defendant's claim that it was error to permit Corporal Bonner to testify as to fact and operation of the loaded weapon found in Defendant's car, the court is of the opinion that the testimony was relevant as tending to prove the offense of disorderly conduct. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination" of one or more of the elements of an offense "more probable or less probable than it would be 10 without the evidence." Pa. R.E. 401. Section 5503 of the Crimes Code establishes the elements of the misdemeanor violation of disorderly conduct: (a) Offense defined.--A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) engages in fighting or threatening, or in violent or tumultuous behavior; (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. (b) Grading.--An offense under this section is a misdemeanor of the third degree if the intent of the actor is to cause substantial harm or serious inconvenience .... 18 Pa. C.S.A. § 5503. In the present case, the testimony by Corporal Banner, in which he indicated that the gun was loaded and operable, was material as proof that Defendant created a "hazardous condition" and acted with an intent to cause "substantial harm" by obtaining the gun during an altercation outside the nightclub. Thus, because the testimony was relevant as to these elements of the offense of disorderly conduct, the court is of the opinion that the relevancy objection was properly denied. Defendant also suggests that permitting this testimony was error because of its "prejudicial effect";s~ however, because no such basis for objection was advanced during trial, this claim of error was not preserved for appeal)2 However, to the extent that such a claim is deemed to have been preserved, it is the view of the court that the "probative value" of the testimony was not sufficiently "outweighed by the danger of unfair prejudice" as to render the evidence inadmissible. Pa. R.E. 403. Corporal Banner testified as to the loaded condition of the weapon and its operation, specifically as to the ease with which the weapon could be fired when loaded. These facts were probative of the allegations that Defendant created a "hazardous condition" and acted with the intent of 5~ Def.'s Statement af Matters Complained of on Appeal, filed Apr. 23, 2002, para. 4. 52 Rather, Defendant's objection at trial dealt only with simple relevancy, and did not indicate any cancems about potential prejudicial effect. 11 causing "substantial harm." See 18 Pa. C.S.A. § 5503. Although this testimony was clearly against Defendant's interest, it cannot be considered "unfair" in terms of Pennsylvania Rule of Evidence 403. Thus, the probative value of the testimony was not outweighed by any potentially prejudicial effect. Cf Commonwealth v. Galloway, 771 A.2d 65, 69 (Pa. Super. Ct. 2001) (affirming trial court's action, over prejudicial effect objection, of permitting widow of victim to show jury victim's bloody shirt as "probative of the location of the victim's bullet wounds"). Charge to the Jury. With respect to Defendant's claim that the charge to the jury on flight as consciousness of guilt was error, the court is of the view that the evidence presented at trial was sufficient to justify such an instruction regarding the offense of disorderly conduct. An instruction on flight as evidence of consciousness of guilt is appropriate when sufficient evidence has been presented so that a reasonable jury could infer guilt from the totality of circumstances, including such flight. See Commonwealth v. Rios, 546 Pa. 271,292-93,684 A.2d 1025, 1034-35 (1996); Commonwealth v. Bruce, 717 A.2d 1033, 1037-39 (Pa. Super. Ct. 1998). "Generally, the trial court can use a flight/concealment jury charge when a person commits a crime, knows that he is a suspect, and conceals himself, because such conduct is evidence of consciousness of guilt, which may form the basis, along with other proof, from which guilt may be inferred." Id at 1037-38. Such a charge, if limited only to the offense for which it is justified, is not rendered improper merely because the potential for prejudice or misuse may exist. See id at 1038-39. In the present case, the evidence tended to suggest that Defendant, after an officer arrived following an altercation during which Defendant brought to the confrontation a loaded firearm, parked in an empty parking lot with his headlights turned off. When the officer approached Defendant's parked car, Defendant drove away, without his lights on, though two parking lots and onto a highway at a high rate of speed. These facts were sufficient to support a reasonable inference that Defendant's concealment and flight were causally related to a belief that he had committed a crime, and to warrant an instruction to that effect for purposes of the jury's deliberations. 12 Further, the court's charge was appropriately limited to the offense of disorderly conduct. The court instructed the jury that flight as consciousness of guilt "applie[d] only to the offense of disorderly conduct... [and not] to the offense of fleeing or attempting to elude a police officer." Because the charge was properly limited to the offense for which it was justified, it is believed that the instruction was proper. See id. (affirming potentially prejudicial instruction when charge was appropriately limited to one offense); cf. Commonwealth v. Milligan, 693 A.2d 1313, 1317-18 (Pa. Super. Ct. 1997) (requiring trial court to properly "tailor" its instruction to circumstances of trial when charge regarding flight as consciousness of guilt was justified by evidence presented).53 For the foregoing reasons, it is believed that the judgment of sentence from which Defendant has appealed was properly entered. BY THE COURT, J. Wesley Oler, Jr., J. Michelle H. Sibert, Esquire Assistant District Attorney Timothy L. Clawges, Esquire Assistant Public Defender 53 In view of the jury's acquittal of Defendant of the charge as to which the instruction was limited, an argument can also obviously be made that any error in giving the instruction was harmless. 13