Commonwealth v. Steele

• Decision Date: 06 July 2020
• Docket Number: No. 23 WDA 2019,23 WDA 2019
• Citation: 234 A.3d 840
• Parties: COMMONWEALTH of Pennsylvania Appellee v. Christopher Allen STEELE Appellant
• Court: Pennsylvania Superior Court

234 A.3d 840

COMMONWEALTH of Pennsylvania Appellee

v.Christopher Allen STEELE Appellant

No. 23 WDA 2019

Superior Court of Pennsylvania.

Submitted December 23, 2019

Filed July 06, 2020

Robert D. Kinnear, Warren, for appellant.

John H. Daneri, District Attorney, Erie, for Commonwealth, appellee.

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.^*

OPINION BY STABILE, J.:

Appellant, Christopher Allen Steele, appeals from his aggregate judgment of sentence of 66—180 months’ imprisonment for, inter alia , aggravated assault, reckless endangerment, possession of an instrument of crime, and criminal use of a communication facility.¹ Appellant contends that the evidence was insufficient to sustain these convictions. We hold that the evidence was sufficient to sustain Appellant's convictions for aggravated assault, reckless endangerment, and possession of an instrument of crime. The evidence was insufficient, however, to sustain Appellant's conviction for criminal use of a communication facility. Accordingly, we reverse Appellant's conviction for criminal use of a communication facility and remand for resentencing on all remaining convictions.

The record reflects that on March 27, 2018, Appellant drove his truck from his place of business to 23rd and Brandes Streets in Erie, Pennsylvania. Lydia Vicario, Appellant's close friend and employee,² accompanied Appellant as a passenger in his truck. Appellant exited the truck at 23rd and Brandes and approached a red Nissan Sentra, while Vicario remained seated in the truck. Several minutes later, Appellant returned to the truck and stated angrily that he had been robbed while selling drugs to the Sentra's occupants. N.T., 10/16/18, at 36-41, 62.

The Sentra drove away, and Appellant sped after it. As Appellant's truck drew closer, he began shooting at the Sentra with a firearm from the driver's side window. Id. at 41-46. Prior to trial, Vicario told police that "she had been shot at," and that Appellant had "fir[ed] back to protect her." Id. at 20. During trial, however, the Commonwealth asked Vicario whether anyone shot at her. Vicario answered, "That day I did believe that there was something else that happened, but I feel like there was just so much commotion, I don't believe nobody else was shooting." Id. at 48. Vicario added that she was not close enough to the Sentra to see if any weapons were inside that vehicle. Id. The trial court asked, "Let me be clear. You're chasing the other vehicle, though. It's not chasing your vehicle, right?" Id. Vicario answered, "Yeah." Id.

Several blocks after shooting at the Sentra, Appellant rammed into it with his truck. The Sentra lost control and crashed into a car (or cars) parked on the street. A Mitsubishi Mirage was destroyed, and a Dodge Neon suffered damage.³ Id. at 24-25, 41-46, 72-75.

Appellant drove away from the crash scene. According to Vicario, Appellant drove away from the scene of the collision and asked her to drive. At some point after asking her to drive, Appellant turned on a police scanner app on his iPhone in an attempt to avoid detection by the police. Id. At 59-61.

Neither Appellant nor Vicario called 911. N.T. 10/17/18, at 119. Forty-five minutes after the crash, Sergeant Onderko of the Erie Police stopped Appellant's truck. As the sergeant placed Appellant in handcuffs, he heard his own voice coming out of Appellant's pocket. He removed an iPhone from Appellant's pocket and saw the main screen running a police scanner into Erie police agencies. Id. at 41-50.

Sergeant Onderko found a .22 caliber Smith & Wesson M&P model firearm partially underneath the passenger seat whose barrel was still warm and whose magazine was empty, indicating that all bullets in the magazine had been fired. Sergeant Onderko testified that, based on his experience, he knew that firearm barrels remain warm after being used repeatedly. He also found shell casings, ammunition cartridges and nine baggies of marijuana elsewhere in the passenger compartment. The police discovered gunshot residue on Appellant's person but did not find any weapons in the Sentra or any gunshot residue on the Sentra's occupants. Id. at 11, 21, 28-35, 44-45, 53-60.

Appellant testified in his own defense. He claimed that someone in the Sentra robbed him at 23rd and Brandes Streets, but as he left that location in his truck, he came upon a second, independent robbery occurring nearby. The participants in the second robbery decided to terminate that robbery and chase him at high speed in a silver minivan. The Sentra blocked Appellant's escape from the silver minivan, so Appellant shot at the Sentra to get it out of his way, either by shooting out its tires or shooting its occupants. Id. at 72-103.

The jury found Appellant guilty of two counts of aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) and (a)(4), two counts of reckless endangerment, possession of an instrument of crime, criminal use of a communication facility, possession of drug paraphernalia, propulsion of a missile onto a roadway and possession of a controlled substance. On December 18, 2018, the trial court imposed consecutive sentences of imprisonment of 54-120 months for aggravated assault, 6-36 months for criminal use of communication facility and 6-24 months propulsion of a missile onto a roadway.⁴ Appellant filed a motion for reconsideration of sentence, then a notice of appeal while his motion for reconsideration was pending, and then a pro se petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541 - 9546. Ultimately, the trial court denied the Appellant's motion for reconsideration and PCRA motion and granted Appellant leave to appeal nunc pro tunc . Both Appellant and the trial court complied with Pa.R.A.P. 1925. The trial court filed an opinion stating that Appellant's claim of insufficient evidence was "boilerplate" and devoid of merit. Trial Ct. Op., 4/11/19, at 3.

On May 7, 2019, this Court dismissed this appeal due to Appellant's failure to file his brief. On July 19, 2019, Appellant filed a motion to reinstate the appeal. On August 2, 2019, this Court reinstated this appeal, and both parties have now filed briefs.

Appellant raises two issues in this appeal:

1. Was there insufficient evidence to convict [Appellant] of two counts of aggravated assault in violation of 18 Pa.C.S.A. § [2702(a)(1) ] and [ (a)(4) ], and two counts of recklessly endangering another person in violation of 18 Pa.C.S.A. § 2705 ?

2. Was there insufficient evidence to convict [Appellant] of possessing an instrument of a crime in violation of 18 Pa.C.S.A. § 907(b) and criminal use of a communication facility in violation of 18 Pa.C.S.A. § 7512(a) ?

Appellant's Brief at 4.

When reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. Commonwealth v. Diamond , 623 Pa. 475, 83 A.3d 119, 126 (2013). "[T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence." Commonwealth v. Colon-Plaza , 136 A.3d 521, 525–26 (Pa. Super. 2016). It is within the province of the fact-finder to determine the weight to accord to each witness's testimony and to believe all, part or none of the evidence. Commonwealth v. Tejada , 107 A.3d 788, 792–93 (Pa. Super. 2015). The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Commonwealth v. Crosley , 180 A.3d 761, 767 (Pa. Super. 2018). As an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. Commonwealth v. Rogal , 120 A.3d 994, 1001 (Pa. Super. 2015).

A person is guilty of aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) when he "attempts to cause serious bodily injury to another ... under circumstances manifesting extreme indifference to the value of human life." A person is guilty of aggravated assault under Section 2702(a)(4) when he "attempts to cause ... bodily injury to another with a deadly weapon."

The Crimes Code defines bodily injury as "impairment of physical condition or substantial pain," 18 Pa.C.S.A. § 2301, and serious bodily injury as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id.

"For aggravated assault purposes, an attempt is found where an accused who possesses the required, specific intent acts in a manner which constitutes a substantial step toward perpetrating a serious bodily injury upon another." Commonwealth v. Fortune , 68 A.3d 980, 984 (Pa. Super. 2013) (internal quotations omitted). Under the plain language of Sections 2702(a)(1) and (a)(4), the Commonwealth need only show that the defendant attempted to cause serious bodily injury to another, not that serious bodily injury actually occurred. Commonwealth v. Galindes , 786 A.2d 1004, 1012 (Pa. Super. 2001) ("[e]ven though [the intended victim] was not struck by any bullets, the act of firing a gun toward him constitutes an attempt to cause serious bodily injury" and thus was sufficient to prove aggravated assault).

The Crimes Code defines a "deadly weapon" as "any firearm, whether loaded or unloaded, or ... any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury." 18 Pa.C.S.A. § 2301. Although a properly used automobile may not be inherently dangerous, it may become a deadly weapon by being used in a manner calculated or likely to produce death or bodily injury. "Motor vehicles still outdistance firearms as the most dangerous instrumentality in the hands of irresponsible persons in our society today." Commonwealth v. Scales , 437 Pa.Super. 14, 648 A.2d...