Commonwealth v. Banks

253 A.3d 768

COMMONWEALTH of Pennsylvania

v.Christopher BANKS, Appellant

No. 651 MDA 2020

Superior Court of Pennsylvania.

Submitted April 6, 2021

Filed May 13, 2021

Mary V. Deady, Wilkes-Barre, for appellant.

James L. McGonagle, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Samuel M. Sanguedolce, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Gerry Scoitt, IV, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.^*

OPINION BY BOWES, J.:

Christopher Banks appeals from the judgment of sentence of an aggregate term of six to twelve years of imprisonment imposed after he was convicted of driving under the influence ("DUI"), fleeing or attempting to elude a police officer, firearms not to be carried without a license, and three counts of recklessly endangering another person ("REAP"), as well as several summary offenses, following a bifurcated trial. We affirm.

The charges against Appellant stemmed from events in the early morning of April 27, 2018. At 2:15 a.m., Appellant, in his vehicle with two passengers, encountered the vehicle of Krystle and Jack Neary on the streets of Wilkes-Barre, Pennsylvania. Appellant tailgated the Nearys so closely that Mrs. Neary, who was driving, was unable to see Appellant's headlights in her rearview mirror. She took evasive action to try to lose Appellant, but he continued to follow her, driving fast and aggressively. Appellant then began firing a gun at the Nearys from his driver's window, discharging five or six shots in total. Appellant's vehicle later spun out as the parties approached railroad tracks, enabling Mrs. Neary to get a good look at Appellant and the gun in his hand. Mrs. Neary then fled, with Appellant still chasing her. The Nearys soon encountered two police vehicles, occupied by Sergeant Dale Binker and Officer Thomas Lepore. Mrs. Neary, with Appellant again behind her, stopped her vehicle in front of the officers and solicited the officers’ help, yelling that someone was shooting at her.

Sergeant Binken believed that he saw a gun in Appellant's hand and directed him to drop it. Officer Lepore did not see a gun. Appellant responded by backing up his car, nearly hitting one of the officers, and speeding away. The officers pursued Appellant in what became a high-speed chase over approximately sixty miles and three counties, ending when Appellant eventually stopped four or five miles after driving over spike strips which had been placed across the highway. The officers found Appellant with slurred speech, dilated eyes, and smelling of alcohol.¹ Appellant refused to take a blood test. Appellant was arrested and his car impounded. A subsequent search of the vehicle produced a bullet fragment, an empty shell casing, a handgun magazine, and markings consistent with bullet damage to the driver's door, but no firearm.

Appellant was charged with a bevy of crimes including aggravated assault, DUI, and REAP, as well as several firearm and Vehicle Code violations. Since one of the firearms charges—possession of a firearm prohibited—required proof of Appellant's prior robbery conviction, Appellant requested, and was granted, severance of that count to avoid prejudicing the jury. A trial solely on the charge of person not to possess was held on January 15, 2020.² In attempting to prove this charge, the Commonwealth opted to present only the testimony of the two officers, the physical evidence seized from Appellant's vehicle, and the parties’ stipulation that Appellant had pled guilty to robbery, which was an enumerated offense precluding his lawful possession of a firearm. While the Commonwealth did not offer the Nearys as witnesses, both officers testified that the Nearys had claimed that someone had shot at them. However, the trial court refused to allow the hearsay to be used as substantive evidence as an excited utterance, ruling that it could only be considered to explain the officers’ course of conduct. The jury returned a verdict of not guilty.³

When the parties appeared for the trial of the remaining charges, Appellant moved to dismiss the counts for carrying a firearm without a license, carrying a loaded weapon, and REAP as to the Nearys. Appellant argued that, since the first jury found him not guilty of possession by person prohibited, allowing the other charges based upon Appellant's possession of a firearm to go forward could result in inconsistent verdicts. See N.T. Trial, 2/10-12/20, at 3. The Commonwealth responded by noting that the simple not guilty verdict in the first trial did not necessary mean that the jury found that Appellant did not possess a firearm, and that the second jury will receive evidence that the first jury did not, including the testimony of the Nearys. Id . at 4-5. The court asked counsel if he had any legal authority to support Appellant's dismissal motion, but he did not. Id . at 9. The court denied Appellant's motion. Id .

The following day, before trial commenced, Appellant sought reconsideration of his motion to dismiss the firearm-related charges. Appellant presented a memorandum citing collateral estoppel, rather than inconsistent verdicts, as the basis for dismissal. After entertaining argument, the trial court initially granted the motion as to the charge of carrying a firearm without a license. However, after further argument, the court ruled that the Commonwealth could proceed on that charge, but its evidence of Appellant's possession of the firearm was limited to the first part of the crime spree prior to the Nearys encountering police. Id . at 46.

At the conclusion of the second trial, the jury found Appellant not guilty of aggravated assault, but guilty of fleeing or attempting to elude a police officer (high-speed chase), firearms not to be carried without a license, all three counts of REAP, and DUI—general impairment (with refusal and accident resulting in vehicle or property damage). Id . at 321-22. Appellant then pled guilty or was convicted by the trial court of the remaining charges.

On April 8, 2020, Appellant was sentenced to an aggregate term of six to twelve years of imprisonment. Appellant filed no post-sentence motion, but filed a timely notice of appeal. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and Appellant timely complied after being granted multiple extensions. The trial court thereafter authored a Pa.R.A.P. 1925(a) opinion, and the appeal is ready for disposition.

Appellant presents the following questions for our consideration:

A. Whether the trial court erred in denying [Appellant]’s motion to dismiss counts three, five, six, and eleven^[4] of the information on the grounds of double jeopardy and collateral estoppel in that a previous jury had considered the issue of whether [Appellant] possessed a firearm and made a factual determination that he had not?

B. Whether the evidence was insufficient to convict [Appellant] of [DUI] in that:

i. the jury found him not guilty of [DUI] while fleeing the police; and

ii. the evidence of intoxication was only erratic driving while traveling at 130 MPH for about 60 miles on the Interstate, that Sergeant Binker smelled an odor of alcohol on [Appellant] and his pupils were dilated, he had slowed speech and he was sweating?

Appellant's brief at 4 (unnecessary capitalization omitted).

For ease of disposition, we first address Appellant's second issue challenging the sufficiency of the evidence to sustain his DUI conviction. The following principles govern our review of this claim.

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. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Reed , 216 A.3d 1114, 1119 (Pa.Super. 2019) (internal quotation marks omitted).

Appellant was convicted of DUI—general impairment. The pertinent statutory provision specifies that "[a]n individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle." 75 Pa.C.S. § 3802(a)(1). To establish that a defendant was incapable of driving safely, "it must be shown that alcohol has substantially impaired the normal mental and physical faculties required to safely operate the vehicle." Commonwealth v. Palmer , 751 A.2d 223, 228 (Pa.Super. 2000). "Substantial impairment, in this context, means a diminution or enfeeblement in the ability to exercise judgment, to deliberate[,] or to react prudently to changing circumstances and conditions." Id . Further, we have held that "a police officer who has perceived a defendant's appearance and conduct is competent to express an opinion, in a prosecution for [DUI], as to the defendant's state of...