COMMONWEALTH OF PENNSYLVANIA v. CHRISTOPHER ALLEN STEELE
No. 23 WDA 2019
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED JULY 06, 2020
2020 PA Super 156
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
J-S75001-19
Appeal from the Judgment of Sentence Entered December 18, 2018
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0001105-2018
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
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
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:
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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 of18 Pa.C.S.A. § 2705 ? - 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 of18 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, 83 A.3d 119, 126 (Pa. 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
The Crimes Code defines bodily injury as “impairment of physical condition or substantial pain,”
“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.”
“If a defendant introduces evidence of self-defense, the Commonwealth bears the burden of disproving the self-defense claim beyond a reasonable doubt.” Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa. 2011). The use of force against a person is justified “when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force” by the other person.
Viewed in the light most favorable to the Commonwealth, the evidence was sufficient to sustain Appellant’s convictions for aggravated assault under Section 2702(a)(1). The evidence demonstrates that after a drug sale to the Sentra’s occupants went awry, Appellant became angry and chased the Sentra at high speed while firing his entire magazine of bullets at its occupants. Several blocks later, Appellant smashed his truck into the Sentra, causing a collision between the Sentra and two other vehicles and destroying one of the other vehicles. Although there was no evidence that the Sentra’s occupants incurred injury, Appellant’s acts of firing his weapon repeatedly and crashing his truck into the Sentra demonstrated an “attempt[] to cause serious bodily injury to another . . . under circumstances manifesting extreme indifference to the value of human life.”
The same evidence was sufficient to sustain Appellant’s conviction under Section 2702(a)(4), because he attempted to cause bodily injury to the Sentra’s occupants with two deadly weapons, his firearm and his truck. The firearm is a deadly weapon under Section 2301. The truck is a deadly weapon because Appellant drove it into the Sentra violently enough to cause a serious collision involving two other vehicles, an act calculated to cause death or serious bodily injury to the Sentra’s occupants.
The evidence also was sufficient to disprove Appellant’s claim of self-defense. Appellant testified that he was robbed by the Sentra’s occupants, and as he drove away, a second group of robbers began chasing him in a silver minivan. Appellant claimed that he had to shoot at the Sentra because it was blocking his escape route from the minivan. The Commonwealth countered Appellant’s testimony with the testimony of Vicario, a passenger in Appellant’s truck and an eyewitness to the events. Vicario testified that Appellant chased after the Sentra at high speed, fired at the Sentra with his firearm and rammed his truck into the Sentra several blocks later. Vicario made no mention at
The same evidence was sufficient to sustain Appellant’s conviction for reckless endangerment under
The evidence also was sufficient to sustain Appellant’s conviction for possession of an instrument of crime under
Finally, Appellant argues that the evidence was insufficient to sustain his conviction for criminal use of a communication facility under
The Crimes Code defines this offense as “us[ing] a communication facility5 to commit, cause or facilitate the **commission or the attempt thereof of any crime which constitutes a felony under this title or under . . . the Controlled Substance, Drug, Device and Cosmetic Act**6.”
The Commonwealth does not argue that Appellant used the scanner to commit aggravated assault against the Sentra’s occupants.
Because reversal of this conviction upsets the trial court’s sentencing scheme, we will vacate all of Appellant’s sentences and remand for resentencing on all convictions to give the trial court the opportunity to restructure its sentencing scheme. Commonwealth v. Goldhammer, 517 A.2d 1280, 1283–84 (Pa. 1986); Commonwealth v. Williams, 871 A.2d 254, 266 (Pa. Super. 2005) (if trial court errs in its sentence on one count in multi-count case, all sentences for all counts will be vacated so court can restructure its entire sentencing scheme).
Judgments of sentence on all convictions except for criminal use of communication facility affirmed. Judgment of sentence for criminal use of communication facility reversed. Case remanded for resentencing on all convictions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2020