Com. v. Palmer, L.

• Court: Superior Court of Pennsylvania
• Decided: November 7, 2014
• Docket: 371 MDA 2014
• Status: Unpublished

Opinion

J-S60045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LANGSTON LAMAR PALMER

Appellant No. 371 MDA 2014

Appeal from the Judgment of Sentence February 4, 2014 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0001758-2013

BEFORE: OTT, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED NOVEMBER 07, 2014

Langston Palmer fired three shots at a police officer who was pursuing

him in a high crime area in the City of York, Pennsylvania. Based on this

incident, a jury found Palmer guilty of assault of a police officer1, reckless

endangerment2 and carrying firearms without a license3. The trial court

sentenced Palmer to concurrent terms of imprisonment of 20-40 years on

the assault conviction4, 1-2 years on the reckless endangerment conviction

and 2½-5 years on the firearms conviction.

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1 18 Pa.C.S. § 2702.1(a). 2 18 Pa.C.S. § 2705. 3 18 Pa.C.S. § 6106. 4 An individual convicted under section 2702.1(a) is subject to a sentence of imprisonment of “not more than 40 years.” 18 Pa.C.S. § 2702.1(b). Palmer’s sentence for this offense is within the statutory maximum. He does not challenge the legality of his sentence in this appeal. J-S60045-14

Palmer filed a timely notice of direct appeal and, after receiving two

extensions, a timely Pa.R.A.P. 1925(b) statement. He argues in this appeal

that (1) the evidence was insufficient to sustain his convictions, and (2) the

trial court erred by admitting a police officer’s testimony that he observed

Palmer participating in a drug transaction immediately before the incident in

question. Finding no merit in either argument, we affirm.

Palmer’s first argument is a challenge to the sufficiency of the

evidence. 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. Devine, 26 A.3d 1139, 1145 (Pa.Super.2011).

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The evidence adduced at trial was as follows: at 4 a.m. on September

7, 2012, York City Police Officer Christopher Roosen was patrolling York’s

western district when he observed what he believed was a drug deal near

the intersection of Princess and West Streets. NT 64-67. Officer Roosen saw

Palmer on a bicycle leaning into a black vehicle occupied by two women. NT

67. As Officer Roosen approached Defendant, he heard a callout (a signal

used to indicate the presence of police). Palmer saw Officer Roosen and

began travelling toward West Princess Street. NT 67-68. Officer Roosen

radioed for back-up and continued to pursue Palmer. NT 68, 81.

Officer Roosen pulled his marked police cruiser next to Palmer and

asked him to stop, but Palmer kept riding and avoided eye contact with the

officer. NT 81. The officer activated his overhead lights and again asked

Palmer to stop, but Palmer continued to pedal faster. He rode his bike onto

the sidewalk, jumped off the bike and continued by foot. NT 82. Officer

Roosen began chasing Palmer on foot. NT 83. Palmer fled northbound

through a small breezeway with Officer Roosen approximately 10 feet behind

him. Id. Officer Roosen was unable to see Palmer’s hands or any firearms

but did not see anyone else present. Id.

Palmer turned into a gravel alleyway, and Officer Roosen was within a

few seconds of rounding the same corner when he heard three loud shots.

NT 87. Officer Roosen testified that the shots "almost sounded right on top

of [me]." NT 87. Officer Roosen stopped his pursuit, drew his firearm, and

radioed that shots had been fired. Id.

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Officer Roosen resumed his pursuit and ran onto West Street. NT 90.

He checked the 900 block of School Place, where, again, no one was

present, NT 90, 95, and he radioed for additional units. NT 95. At this time,

Burrell Hughes approached Officer Roosen and screamed that Officer Roosen

had shot “Tank” (Palmer’s street name). Id. Officer Roosen told Hughes

that he did not shoot Tank, but rather that Tank had shot at him. NT 95-96.

Hughes was detained and searched for weapons; none were found on him.

Id. Officer Roosen and Officer Jay returned to the gravel alleyway, where

they found three shell casings of the same make and model in close

proximity to one another. NT 98, 102. The casings appeared to be fresh,

since there was no moisture, grass, gravel, or dirt on them. Id. The

officers did not see any remnants of fireworks, firecrackers, or other items

that would have created a sound similar to a gun shot. NT 99.

Officer Roosen prepared and executed a search warrant for Palmer’s

address but did not recover any firearms. NT 103-04. Police officers found

Palmer’s state-issued identification card in his cargo shorts. Id. Officer

Roosen contacted the Pennsylvania State Police to see if Palmer had a

license to carry a concealed weapon and learned that he had no such

license. NT 104-05.

The legislature defines the offense of assault of a law enforcement

officer as follows: “A person commits a felony of the first degree who

attempts to cause or intentionally or knowingly causes bodily injury to a law

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enforcement officer, while in the performance of duty and with knowledge

that the victim is a law enforcement officer, by discharging a firearm.” 18

Pa.C.S. § 2702.1(a). To establish the defendant’s guilt, the Commonwealth

must prove that (1) the defendant attempted to cause, or intentionally or

knowingly caused, bodily injury, (2) the victim was a law enforcement officer

acting in the performance of his duty, (3) the defendant had knowledge the

victim was a law enforcement officer, and (4) in attempting to cause, or

intentionally or knowingly causing such bodily injury, the defendant

discharged a firearm. Commonwealth v. Landis, 48 A.3d 432, 445

(Pa.Super.2012) (en banc). Section 2702.1 does not require the

Commonwealth to prove that the law enforcement officer actually suffered

bodily injury when the defendant discharged his firearm. Id.

The evidence, construed in the light most favorable to the

Commonwealth, establishes each element of this offense beyond a

reasonable doubt. While Officer Roosen was on patrol in the performance of

his duties as a police officer, he observed Palmer engage in an apparent

drug sale in a high crime area and attempted to stop Palmer for further

investigation. Palmer fled from the officer’s marked police vehicle on a

bicycle and then fled on foot after the officer commanded him to stop. The

officer exited his police vehicle and chased Palmer into an alleyway, where

Palmer shot at the officer three times at close range. Fortunately, none of

the shots struck the officer. The officer did not observe any other individual

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in the area. Officers Roosen and Jay later recovered three fresh shell

casings of the same make and model in the alleyway. This evidence proves

that (1) Officer Roosen was a law enforcement officer acting in the

performance of his duties; (2) Palmer knew that Officer Roosen was a law

enforcement officer; and (3) Palmer attempted to cause bodily injury to

Officer Roosen by discharging a firearm. This clearly is sufficient to sustain

Palmer’s conviction under section 2702.1. Commonwealth v. Martuscelli,

54 A.3d 940, 949-50 (Pa.Super.2013) (evidence supported conviction for

assault of law enforcement officer, where defendant was carrying gun and

indicated that he was seeking to commit suicide by inducing police to shoot

him, defendant indicated an intent to shoot as many police officers as

possible in the process, defendant illuminated officers with bright light as

they stood in the dark and fired shots at them, officers heard bullets passing

by them and returned fire, defendant used cover and concealed himself,

defendant asked how many police he had shot and was disappointed to learn

that no officers had been injured, defendant told personnel at hospital that

he had been “looking to take them out,” and expert testified that a suicidal

person can have both suicidal and homicidal intent).

The same evidence is sufficient to sustain Palmer’s conviction for

reckless endangerment. An individual is guilty of this offense if he

“recklessly engages in conduct which places or may place another person in

danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. “Serious

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bodily injury” under this provision is “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.” Commonwealth v. Hopkins, 747 A.2d 910, 915 (Pa.Super.2000).

To sustain a conviction for recklessly endangering another person, “the

Commonwealth must prove that the defendant had an actual present ability

to inflict harm and not merely the apparent ability to do so.” Id. “Danger,

not merely the apprehension of danger, must be created.” Id. at 916. “The

mens rea for recklessly endangering another person is ‘a conscious disregard

of a known risk of death or great bodily harm to another person.’ ” Id.

(citing Commonwealth v. Peer, 684 A.2d 1077, 1080 (Pa.Super.1996)).

“Brandishing a loaded firearm during the commission of a crime provides a

sufficient basis on which a fact-finder may conclude that a defendant

proceeded with conscious disregard for the safety of others, and that he had

the present ability to inflict great bodily harm or death.” Id. Palmer’s act of

shooting at Officer Roosen constitutes reckless conduct which placed placed

Officer Roosen in danger of death or serious bodily injury. Consequently,

the evidence is sufficient to sustain his conviction for reckless

endangerment.

Finally, the evidence is sufficient to sustain Palmer’s conviction for

carrying a firearm without a license. Generally, “any person who carries a

firearm in any vehicle or any person who carries a firearm concealed on or

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about his person, except in his place of abode or fixed place of business,

without a valid and lawfully issued license under this chapter commits a

felony of the third degree.” 18 Pa.C.S.A. § 6106(a)(1). Thus, a person in

Pennsylvania must have a valid Pennsylvania license to carry a firearm in

any vehicle or concealed on his or her person. Commonwealth v.

McKown, 79 A.3d 678, 684-85 (Pa.Super.2013).

Here, the evidence shows that Palmer discharged a firearm in a

location other than his place of abode or fixed place of business. Officer

Roosen contacted the Pennsylvania State Police, who informed him that

Palmer did not have a license to carry a concealed weapon. Viewed in the

light most favorable to the Commonwealth, this evidence proves all

elements of section 6106 beyond a reasonable doubt.

For these reasons, we conclude that Palmer’s challenge to the

sufficiency of the evidence is devoid of substance.

In his second argument on appeal, Palmer argues that the trial court

erred by admitting Officer Roosen’s testimony that he observed Palmer

participating in a drug transaction immediately before the confrontation with

Palmer that resulted in the criminal offenses discussed above5.

5 Palmer preserved his objection to this evidence for appeal by timely raising an objection when Officer Roosen testified about the suspected drug transaction during trial. N.T., 12/4/13, pp. 70-75.

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The admission or exclusion of evidence is within a trial court’s

discretion, and will only be reversed for an abuse of that discretion. Keffer

v. Bob Nolan’s Auto Service, Inc., 59 A.3d 621, 631 (Pa. Super. 2012).

Here, evidence of the drug transaction was admissible as part of the

history or natural development of the case. Although evidence of bad acts is

inadmissible to prove a defendant acted in conformity with those acts or to

demonstrate a criminal propensity, Pa.R.E. 404, there are several exceptions

to this rule, particularly situations where the distinct crimes are part of a

chain or sequence of events which form the history of the case and are part

of its natural development (sometimes called the “res gestae” exception).

Commonwealth v. Billa, 555 A.2d 835, 840 (Pa.1989). Our Supreme

Court has consistently recognized that admission of distinct crimes may be

proper where it is part of the history or natural development of the case.

Commonwealth v. Brown, 52 A.3d 320, 326 (Pa.Super.2012) (collecting

cases).

Where the res gestae exception is applicable, the trial court must

balance the probative value of such evidence against its prejudicial impact.

Commonwealth v. Powell, 956 A.2d 406, 419 (Pa.2008). In conducting

this balancing test,

courts must consider factors such as the strength of the ‘other crimes’ evidence, the similarities between the crimes, the time lapse between crimes, the need for the other crimes evidence, the efficacy of

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alternative proof of the charged crime, and ‘the degree to which the evidence probably will rouse the jury to overmastering hostility.’ McCormick, Evidence § 190 at 811 (4th ed.1992). See also Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609 (1990) (enumerating balancing test factors, including ability for limiting instruction to reduce prejudice).

Commonwealth v. Weakley, 972 A.2d 1182, 1191 (Pa.Super.2009).

Here, the evidence of the transaction was admissible – indeed,

indispensable -- to demonstrate Officer Roosen’s reason for pursuing Palmer

(to investigate a suspected drug sale) and to demonstrate Palmer’s reason

for fleeing from Officer Roosen and firing a gun at him (to avoid arrest for

selling drugs). Had the court precluded admission of this evidence, the

officer’s conduct would have appeared nonsensical to the jury, and the jury

would not have learned Palmer’s motive for shooting at the officer.

Moreover, the suspected drug transaction immediately preceded Palmer’s

flight from Officer Roosen and his attempt to shoot the officer. No other

evidence could have been substituted to explain the reason for the officer’s

pursuit or the motive for Palmer’s crimes. Therefore, we conclude that the

trial court properly admitted this evidence, and that its probative value

outweighed its prejudicial impact6.

6 We note that in many cases, the trial court gives a limiting instruction to the jury cautioning the jury to use evidence of uncharged misconduct only for certain purposes but not as evidence of guilt for the crimes charged. (Footnote Continued Next Page)

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/7/2014

_______________________ (Footnote Continued)

Here, the trial court offered to give a limiting instruction that the evidence was admissible only to detail the natural history of the case and Palmer’s motive, but defense counsel turned the court’s offer down. N.T., 12/4/13, p. 76.

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