Commonwealth v. Conaway, 2312 EDA 2013

105 A.3d 755

2014 PA Super 264

COMMONWEALTH of Pennsylvania, Appellee

v.William CONAWAY, Appellant.

No. 2312 EDA 2013

Superior Court of Pennsylvania.

Submitted Oct. 20, 2014.

Filed Nov. 26, 2014.

Reargument Denied Jan. 13, 2015.

Elissa B. Heinrichs, Newtown, for appellant.

David W. Heckler, Assistant District Attorney, and Jill M. Graziano, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

Opinion

OPINION BY ALLEN, J.:

William Conaway, (“Appellant”), appeals from the judgment of sentence imposed following his conviction by a jury of burglary, for which the trial court sentenced Appellant to a term of imprisonment of five to ten years.¹ Appellant was additionally convicted of theft by unlawful taking, receiving stolen property, and fleeing and eluding a police officer.² On appeal, Appellant does not challenge his convictions or judgment of sentence regarding these additional crimes.³ After careful consideration, we vacate Appellant's judgment of sentence. Additionally, we remand for a new trial regarding Appellant's burglary conviction only.

The trial court set forth the factual background relative to this action as follows:

On September 4, 2012, Nancy Shvanda was at home watching her grandchildren while her son Jason Shvanda, who lived with her at the time, was at work. N.T. 2/26/2013, p. 45, 71. Ms. Shvanda's home is located in Doylestown, Pennsylvania. N.T. 2/26/2013, p. 34. This home's garage is attached to the kitchen. N.T. 2/26/2013, p. 38. Ms. Shvanda was the owner of a 2002 Lexus which she stored in her home's garage. N.T. 2/26/2013, p. 43.

Upon Mr. Shvanda's arrival home from work, Ms. Shvanda got ready to leave the home. She placed her purse and several food containers into her car and started the ignition. She then went back into the house after realizing she had forgotten something. N.T. 2/26/2013, pp. 45–48, 73. As she was retrieving the forgotten item, she noticed that her car was leaving her garage. N.T. 2/26/2013, p. 50, 74.

Ms. Shvanda and Mr. Shvanda realized that the car was being stolen. Mr. Shvanda chased after the car while Ms. Shvanda ran inside to call 911. N.T. 2/26/2013, pp. 51–52, 75. The driver's side door opened and the occupant threw the purse out of the car. N.T. 2/26/2013, p. 76. Ms. Shvanda's purse was later recovered in the street near her house. Mr. Shvanda ran alongside the car and punched the driver's side window, and while doing so he observed an older white male driving the car. N.T. 2/26/2013, p. 76.

Ms. Shvanda never saw the person who stole her car, but she believes she did see his shadow. N.T. 2/26/2013, p. 66. Mr. Shvanda chased the car but stopped when he realized that the car would remain in the neighborhood, given the series of turns it had made and the fact that Blakemore Court is a cul-de-sac. N.T. 2/26/2013, p. 78. The car reappeared around the same time that law enforcement arrived on the scene. N.T. 2/26/2013, pp. 79–80.

Sergeant Wetmore of the Doylestown Township Police Department was on duty and riding alone in a patrol car on the day of the incident. N.T. 2/26/2013, pp. 92–93. He heard via radio that a vehicle had been stolen from a garage in Doylestown and traveled to that location. N.T. 2/26/2013, p. 94. As Sergeant Wetmore's car and the Lexus approached each other head-on, the Lexus swerved at the latest possible moment, driving over the curb and narrowly missing a tree. N.T. 2/26/2013, pp. 81, 95.

Mr. Shvanda again approached the car for the purpose of being able to identify the driver at a future time. He observed that the driver was a white male with short gray hair wearing a gray shirt. Mr. Shvanda looked at him for three or four seconds. At trial, Mr. Shvanda identified [Appellant] as the same man he had seen inside the Lexus on that day. N.T. 2/26/2013, pp. 8182. Mr. Shvanda also provided the police officer on scene information about the direction in which the Lexus had traveled. N.T. 2/26/2013, p. 83. After avoiding a head-on collision and failing to heed Sergeant Wetmore's direction to stop, the driver of the Lexus left the cul-de-sac in which the Shvanda house was located and turned onto Lower State Road toward Doylestown Township. N.T. 2/26/2013, pp. 95–96.

Officer Stephen Thomas of the Buckingham Township Police Department was also on duty on September 4, 2012. N.T. 2/26/2013, p. 104. He heard a radio transmission about a car being stolen out of a woman's garage, and he positioned his vehicle on PA Route 611 in such a way that it stopped all of the traffic from proceeding through the intersection with Almshouse Road. The Lexus emerged from the line of cars stopped by Officer Thomas and then traveled on the southbound shoulder past Officer Thomas's vehicle, followed by a Doylestown Township police car. N.T. 2/26/2013, pp. 105–06. Officer Thomas continued following the Lexus and soon became the lead vehicle behind it. He observed the driver of the Lexus weaving through traffic to get away from police. N.T. 2/26/2013, p. 108. The chase continued over several roads, and at one point, they were travelling at 75 miles per hour (MPH) in a 45–MPH zone. N.T. 2/26/2013, p. 109. Officer Thomas discontinued the chase because he felt it had become too dangerous. He observed that the driver of the car was an older male, but did not see him well enough to be able to recognize him if he saw him again. N.T. 2/26/2013, pp. 110–11.

Stanley Weber lives in Warminster, PA, and was at home on September 4, 2012. After receiving a phone call from a neighbor at around 7:30 P.M., Mr. Weber went outside and saw a man inside his van, which was parked in the driveway. The man was going through a box of clothing that Mr. Weber intended to donate to charity. N.T. 2/26/2013, p. 113–16. The driver's side door was open and the man had one foot on the ground and the other on the sill of the van. Mr. Weber grabbed him, pulled him out of the van, and asked what he was doing. The man replied that he was looking for his uncle. N.T. 2/26/2013, p. 117. Mr. Weber observed the man to be a white male approximately in his forties with a shaved head and a large scar on the back of his head, wearing sweatpants and a sweatshirt that were “graying in color.” Mr. Weber identified [Appellant] as the man he saw in his van on September 4, 2012. N.T. 2/25/2013, pp. 117–18. The man walked down the driveway and made a right turn as Mr. Weber was calling 911. N.T. 2/26/2013, p. 119.

Officer Christopher O'Neill of the Warminster Township Police Department K–9 Unit was also on duty on September 4, 2012. N.T. 2/26/2013, pp. 122–23. He responded to a call regarding a suspicious vehicle in Warminster Township. Once there, he spoke with a woman and observed someone in a yard bordering Mr. Weber's home. The individual was a white male wearing gray sweatpants but no shirt, and he was raking leaves. He told Officer O'Neill that his name was Phil Morrow, and he lived at the property, which was owned by his uncle. N.T. 2/26/2013, pp. 125–26. He was wearing a hospital bracelet that said his name was William Conaway. This individual was then placed in the patrol car and his pockets were emptied. N.T. 2/26/2013, pp. 127–28. A Visa debit card and a MasterCard in the name of William Conaway were found in his pockets. A 2002 Lexus was found in Mr. Weber's driveway. N.T. 2/26/2013, p. 129. The K–9, Blitz, tracked the scent from the Lexus to Mr. Weber's and back to the bordering yard. N.T. 2/26/2013, pp. 137–40.

Sergeant Bryon Rose of the Doylestown Township Police Department investigated the theft of the car in Doylestown. He photographed and inventoried the 2002 Lexus on September 5, 2012, and he found medical papers inside the vehicle, including a hospital discharge form with the name William Conaway. N.T. 2/26/2013, pp. 152–61.

Sergeant Lance Carlen of the Doylestown Borough Police Department testified that he responded to the area of the theft in Doylestown Township on the evening of September 4, 2012. N.T. 2/27/2013, pp. 12–15. He received word via radio that the vehicle, a silver Lexus, was departing the area. N.T. 2/27/2013, pp. 15–17. En route, Sergeant Carlen observed a silver Lexus that fit the stolen vehicle's description, and he followed it. N.T. 2/27/2013, pp. 16–17. The Lexus evaded Sergeant Carlen and ran multiple stop signs without stopping, exceeding the posted speed of 25 MPH. N.T. 2/27/2013, pp. 17–22.

At one point during the pursuit on State Street, Sergeant Carlen got beside the Lexus, observed the driver, and noted that he was an older white male with salt and pepper cropped hair and a gray sweatshirt. N.T. 2/27/2013, p. 22. Sergeant Carlen identified [Appellant] as the individual driving the Lexus on September 4, 2012. N.T. 2/27/2013, p. 22. The sergeant chased the vehicle through Doylestown Borough and when he got beside the vehicle again, he observed the driver a second time for a period of one to two seconds. N.T. 2/27/2013, p. 23.

After following the Lexus South on 611, Sergeant Carlen ceased pursuit because he determined it was no longer safe. N.T. 2/27/2013, pp. 27–29. Sergeant Carlen was well out of his jurisdiction, and other law enforcement vehicles were following the silver Lexus. N.T. 2/27/2013, pp. 27–29. Later that evening, Sergeant Carlen received a call from Warminster Township Police, requesting that he attempt to identify an individual believed to be the driver of the Lexus. N.T. 2/27/2013, p. 34. Sergeant Carlen responded and identified the apprehended individual as [Appellant]. N.T. 2/27/2013, pp. 35–36.

Sergeant Charles Zeigler of the Doylestown Township Police Department testified that he participated in the investigation on September 4, 2013. N.T. 2/27/2013, pp. 51–52. He took possession of evidence which included a gray sweatshirt and debit and credit cards with the names William Conway and William Conaway. N.T. 2/27/2013, p. 58. Doylestown Hospital and the Shvanda home are within approximately 15–20 minutes walking distance of each

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