Commonwealth v. Ford

• Decision Date: 14 June 2016
• Docket Number: No. 1669 WDA 2014,1669 WDA 2014
• Citation: 141 A.3d 547,2016 PA Super 122
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Leon DaTawn FORD, Appellant.
• Court: Pennsylvania Superior Court

141 A.3d 547

2016 PA Super 122

COMMONWEALTH of Pennsylvania, Appellee

v.Leon DaTawn FORD, Appellant.

No. 1669 WDA 2014

Superior Court of Pennsylvania.

Argued Oct. 20, 2015.

Filed June 14, 2016.

Fred G. Rabner, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BOWES and MUSMANNO, JJ.

OPINION BY BOWES

, J.:

Leon DaTawn Ford appeals from the judgment of sentence of a determination of guilt without further penalty after the court found him guilty of summary violations of 75 Pa.C.S. § 3323

, failure to stop at a stop or yield sign, and 75 Pa.C.S. § 3714, careless driving. After careful review, we affirm.

The Commonwealth initially charged Appellant via criminal complaint with two counts of aggravated assault, three counts of recklessly endangering another person (“REAP”), and one count each of failing to yield and reckless driving. The affidavit of probable cause in support of the complaint, however, referenced Appellant failing to stop at a stop sign. At Appellant's preliminary hearing, the Commonwealth orally added a count for failing to stop as well as the charges of resisting arrest and escape. The escape charge was dismissed at the preliminary hearing, but the remaining charges were bound over for trial. Prior to trial, the Commonwealth succeeded in having the escape charge reinstated.¹ Appellant proceeded to a jury trial on the non-summary counts. The criminal information described the § 3323

charges as failing to yield at two separate counts. The trial transpired from September 2, 2014 through September 15, 2014.

The evidence at trial was as follows. Pittsburgh Police Officers Michael Kosko and Andrew Miller observed Appellant traveling at a high rate of speed in a gray Infiniti. The officers were traveling the wrong way down a one-way street in a marked cruiser when Appellant passed them.² Officer Kosko turned his vehicle around and accelerated to 52 mph in a 25–mph zone to catch up to Appellant. He did not activate his siren or lights at that time. While pursuing the vehicle, Officer Miller was able to run the license plate and ascertain that the car was not reported stolen. After gaining ground on the vehicle, Officer Kosko activated his lights and siren to effectuate a traffic stop. Prior to pulling Appellant over, Officer Kosko and his partner also believed that Appellant proceeded through two stop signs without coming to a stop.³ Officer Miller specifically related that Appellant “did not stop for a stop sign at Stanton and Meadow and, once again, at Stanton and I believe Sheridan.” N.T., 9/3/14, at 449. Upon Officer Kosko turning on his siren and lights, Appellant activated his turn signal and pulled over immediately. Officer Miller radioed in the stop. Officer Kosko then exited his vehicle and approached the driver's side door. Officer Miller walked to the passenger side door.

Officer Kosko asked for Appellant's license, registration, and proof of insurance. Appellant provided his license, a bill of sale, and proof of insurance. According to Officer Kosko, he explained that the reason for pulling over Appellant was his speeding, and he could not recall whether he informed Appellant about not coming to a stop at two stop signs. After receiving Appellant's license, Officer Kosko returned to his cruiser to run Appellant's information through a police computer inside the car. Officer Miller then went to the driver's side door and engaged in small talk with Appellant. Officer Kosko, after learning that there were no active warrants for Appellant, ran an additional check for “L. Ford.” That check resulted in the computer displaying that a Lamont Ford, who is unrelated to Appellant, had an active warrant for his arrest and the officer was able to retrieve a photograph of Lamont Ford.

Officer Kosko believed that the photograph of Lamont Ford resembled Appellant and re-approached Appellant's car, looked at Appellant, and returned to the cruiser. Officer Kosko then returned and asked Officer Miller to look at the photographic display of Lamont Ford in the police cruiser. Officer Miller returned to the police car while Officer Kosko began to ask Appellant if he had any brothers or siblings, and he testified that he told Appellant that he resembled a person with an outstanding warrant.

After seeing the picture of Lamont Ford, Officer Miller radioed his fellow officer, David Derbish. Officer Derbish previously had interacted with Lamont Ford. Officer Derbish was in the area and responded within approximately two minutes. Both Officer Derbish and Officer Miller had a conversation in Officer Miller's cruiser regarding whether Appellant was Lamont Ford. Officer Derbish indicated that he believed Appellant was Lamont Ford.

Officer Derbish also maintained that when he approached Appellant's car on the passenger side, he believed that he saw a bulge in Appellant's pants that could have been a gun. He motioned to Officer Miller and informed him of his suspicion. Officer Miller agreed that there was a bulge and walked back to the driver's side of the car and asked Appellant to exit the vehicle. Appellant repeatedly refused and attempted to place a call on his cell phone. Officer Miller instructed him that he could not use the phone and put his hand on Appellant's shoulder. Appellant continued to attempt to place a call and Officer Miller tried to take Appellant's phone. In total, Officer Miller asserted that he asked Appellant to step from the car six times.

When Appellant reached to the right side of his body, where Officer Miller and Officer Derbish observed the bulge, Officer Miller tried to physically remove Appellant from the car. Officer Miller and Officer Derbish both saw Appellant reach for the gear-shift in the center console. Officer Derbish then entered the passenger side of the car and attempted to restrain Appellant. Officer Derbish placed his knees in the front passenger seat and struggled with Appellant and shouted, “Stop, stop, stop.” N.T., 9/4/14, at 646. Appellant engaged the gear shift and began to drive the vehicle and the door closed behind Officer Derbish. According to Officer Derbish, Appellant pushed him in the chest as Appellant accelerated the car. Officer Derbish maintained that he feared for his life and drew his pistol from his holster and fired his weapon five times, striking Appellant multiple times.

As a result of being shot, Appellant crashed the vehicle. Officer Kosko ran to the car, removed Appellant, and placed him in handcuffs on the ground. Officer Miller also approached and radioed for medics. Officer Derbish suffered minor injuries. Appellant, however, suffered significant spinal injuries that resulted in paraplegia

.

Both the trial court and jury viewed a video of the traffic stop that began when Officer Kosko turned on his siren and lights while in pursuit of Appellant. The jury found Appellant not guilty of the aggravated assault charges, but was unable to reach a verdict on the remaining non-summary counts. The trial court adjudicated Appellant guilty of one count of failing to stop at a stop sign and careless driving, the latter conviction constituting a lesser-included offense of the reckless driving count charged.

The court entered its judgment of sentence on September 15, 2014, and imposed no penalty for the summary violations. Appellant timely appealed and the court directed that he file and serve a Pa.R.A.P.1925(b)

concise statement of errors complained of on appeal. The trial judge in this matter retired, and the case was reassigned to the Honorable Lester Nauhaus, who authored a Rule 1925(a) decision, opining that Appellant's convictions were infirm. The Commonwealth did not seek a retrial of the remaining counts and nolle prossed those charges.

The matter is now ready for this Court's review. Appellant raises two issues for our consideration.

I. Was the verdict rendered against the weight of the evidence?

II. Was the verdict rendered supported by the sufficiency of the evidence?

Appellant's brief at 5.

Although Appellant lists his sufficiency claim second in his statement of issues, he argues that position first. Moreover, since a successful sufficiency charge warrants discharge rather than a retrial, we address Appellant's second issue first. Commonwealth v. Stokes, 38 A.3d 846 (Pa.Super.2011)

. In reviewing a sufficiency claim, we consider the entirety of the evidence introduced, including improperly admitted evidence. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super.2013) (en banc ). We view that evidence in a light most favorable to the Commonwealth, drawing all reasonable inferences in favor of the Commonwealth. Id. The evidence “need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented.” Id. Only where “the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances[,]” is a defendant entitled to relief. Id. We do not “re-weigh the evidence and substitute our judgment for that of the fact-finder.” Id. As the question of the sufficiency of the evidence is one of law, we consider the evidence de novo. Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24, 37 (2011)

.

Appellant's initial argument, though ostensibly a sufficiency of the evidence claim, is primarily focused on the fact that the trial court found him guilty of failing to stop at a stop sign when the criminal information sets forth the charge as failing to stop at a yield sign. Appellant argues that 75 Pa.C.S. § 3323(c)

, which relates to a yield sign violation, is inapplicable because no yield sign existed on Appellant's course of travel. He highlights that the video footage of the traffic incident does not show a yield sign and that no officer testified that Appellant failed to properly yield at such a sign.

In addition, Appellant maintains that there were discrepancies between the testimony of...