J-S14011-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GORDY TATE : : Appellant : No. 1535 EDA 2024
Appeal from the Judgment of Sentence Entered February 12, 2024 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003572-2022
BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED JUNE 17, 2025
Appellant Gordy Tate appeals from the judgment of sentence entered
on February 12, 2024, in the Court of Common Pleas of Chester County
following his convictions for, inter alia, Homicide by Vehicle, Receiving Stolen
Property (“RSP”), Reckless Driving,1 and numerous traffic offenses. Appellant
challenges the denial of his pretrial motion to suppress and motion in limine,
an evidentiary ruling, the sufficiency of the evidence supporting his RSP
conviction, and the legality of his sentence. After careful review, we vacate
Appellant’s sentence for Reckless Driving, and otherwise affirm.
A.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S. §§ 3732; 18 Pa.C.S. § 3925(a); and 75 Pa.C.S. § 3736(a), respectively. J-S14011-25
We glean the relevant factual and procedural history from the trial court
opinion. On October 1, 2022, Officer James Ensor of the West Chester Boro
Police Department was on patrol in a marked car when he received a radio
dispatch regarding a stolen vehicle, a white Chevrolet Malibu. Officer Ensor
observed the vehicle, driven by Appellant with a passenger in the front seat,
and attempted to initiate a traffic stop. Appellant did not stop, and instead
drove quickly away, committing multiple traffic violations while fleeing. It was
dusk and raining, and Appellant was traveling faster than Officer Ensor, who
was traveling at 80 miles per hour.
After pursuing Appellant for several miles, Officer Ensor came upon the
vehicle, which had crashed. “There was severe front-end damage, fire in the
engine compartment, and the passenger side of the vehicle was completely
smashed.” Trial Ct. Op., 9/4/24, at 4 (record citation omitted). Officer Ensor
and Officer Micaela Hill,2 who was in a separate patrol vehicle behind Officer
Ensor, approached the crashed vehicle and ordered the occupants to exit.
They were unable to exit, so the officers first attempted to help the passenger,
who was unconscious, out of the vehicle before helping Appellant. The
passenger, Marquin Thorn (“Decedent”), did not survive the crash.
Once the officers removed Appellant from the vehicle, they placed him
in handcuffs, and asked him various questions, including his name, the
2 Officer Hill is also referred to throughout the record as Officer Winter, as she
changed her last name from Winter to Hill between the date of the incident and Appellant’s trial.
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passenger’s name, and whether he had any weapons. The officers’ body-worn
cameras (“BWC”) captured their interaction. Relevantly, Officer Hill asked
Appellant where he was coming from and Appellant responded that he had
been making a delivery. Id. at 5. Officer Hill accompanied Appellant in the
ambulance and at the hospital, and, thus, her BWC recorded conversations
between Appellant and various medical professionals. At no point did the
officers give Appellant his Miranda3 warnings.
The Commonwealth charged Appellant with the above crimes on
October 2, 2022. Appellant filed an omnibus pretrial motion seeking,
relevantly, to preclude reference to the fact that Appellant had a bench
warrant for service4 at the time of the incident, and to suppress statements
made to the police officers while he was detained prior to the arrival of the
ambulance. Omnibus Pretrial Motion, 11/19/23, at ¶¶ 42-42; 101-115.
Following hearings, the court denied both of Appellant’s motions. Regarding
the outstanding bench warrant, the court permitted the Commonwealth to
present testimony “that there may have been a warrant for [Appellant] in a
criminal case at the time of the incident[,]” but precluded evidence regarding
the specific charges or their grading. Order, 11/21/23.
3 Miranda v. Arizona, 384 U.S. 436 (1966).
4 According to Appellant, the bench warrant was for service only—if stopped
by police, the police would serve Appellant for his next court date, not arrest him. See Appellant’s Br. at 10.
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On November 28, 2023, Appellant proceeded to trial. Several witnesses
testified for the Commonwealth, including Officers Ensor and Hill, who testified
consistently with the above facts, and Christopher Heller, the owner of the
vehicle. Officer Ensor identified Appellant as the driver, and Officer Hill
testified that she saw Officer Ensor and another officer removing Appellant
from the driver’s seat. N.T. Trial, 11/28/23 at 49, 81, 94; 106, 112.
Relevantly, Officer Ensor also testified that after receiving the report of a
stolen car and seeing the car that Appellant was driving, he observed that
both visors in the car were down.
Further, the Commonwealth asked Officer Ensor if he was able to
determine whether Appellant had any active warrants at the time of the
pursuit, and Officer Ensor responded, “I was.” N.T. Trial, 11/28/23, at 78.
When asked what he learned, Officer Ensor responded that Appellant “had an
active warrant out of Philadelphia.” Id.
During cross-examination, Appellant’s counsel asked Officer Ensor
whether he was aware that the outstanding bench warrant was a service
warrant. Officer Ensor responded that he only knows that it was listed on the
National Crime Information Center (“NCIC”) site, and later explained that
NCIC does not differentiate between different types of warrants. Id. at 90.5
5 Officer Ensor did not use the phrase “service warrant” during his direct testimony, but Appellant’s counsel used the phrase during cross-examination. The Court pointed this out after the jury asked during deliberations for the definition of a “service warrant.” N.T. Trial, 11/30/23, 500-01.
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During Officer Hill’s cross-examination, Appellant’s counsel attempted
to introduce Decedent’s Instacart records to show that Appellant and Decedent
were making deliveries at the time of the accident. The Commonwealth
objected, challenging both the authentication of the records and the
introduction of the records through Officer Hill. At side bar, Court first
determined that the records were self-authenticating pursuant to the
Pennsylvania Rules of Evidence 902(11) and 803(6). The Commonwealth then
argued that the times listed did not match the time of the accident.
Appellant’s counsel explained that “PT” on the records indicated that the times
were in Pacific Time, as Instacart is based in California; however, the records
did not specify that PT meant Pacific Time.
Addressing the Commonwealth’s challenge to presenting the Instacart
records through Officer Hill, the court sustained the objection, observing that
asking Officer Hill about the times and other data listed on the records would
require her to speculate. The court also noted that Appellant’s counsel had
not established the Decedent’s birth date, which would connect the records to
him.6 Ultimately, the court would not permit Appellant’s counsel to introduce
the records through Officer Hill, but would permit Appellant’s counsel to
introduce them later if he could lay a foundation. N.T. Trial, 11/28/23, at 128-
137. Appellant’s counsel did not introduce the Instacart records.
6 The court refused to take judicial notice of Decedent’s birth date because he
was not a defendant and precluded Appellant from introducing Decedent’s criminal record to establish his birth date.
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Mr. Heller testified that his keys and the vehicle had been stolen from
his apartment in Philadelphia on September 1, 2022. He testified that the
vehicle was registered to his mother, the E-Z Pass inside was registered to his
father, and the vehicle had New Jersey license plates. He further testified that
his father’s credit card was in a compartment near the steering wheel, his
mother’s credit card was in the vehicle, the registration with his mother’s
name was in the glove box, his work identification card with his full name and
picture was in the center console, and a picture of his girlfriend was on the
visor.
Appellant also testified. Relevantly, he stated that he had taken public
transportation to Decedent’s house in Southwest Philadelphia earlier that day
and explained that Decedent had the vehicle and its keys. He further testified
that they were making Instacart deliveries for Decedent’s Instacart account
at the time of the accident, and he stated multiple times that Decedent was
driving. On cross-examination, Appellant admitted that he did not have a
license and that he had an active warrant. He also stated that he did not know
if Decedent had a girlfriend and did not see any pictures on the visor.
The jury convicted Appellant of the above charges, and the court
convicted him of the summary traffic offenses. On February 12, 2024, the
court sentenced Appellant to an aggregate term of 2½ to 5 years of
incarceration, followed by 3 years of probation. The court also imposed fines
for the traffic violations, including $25 each for Driving on Roadways Laned
for Traffic and Driving Vehicle at Safe Speed and $200 for Reckless Driving,
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plus costs. Appellant filed a post-sentence motion, which the court denied on
May 1, 2024.
B.
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following claims for our review:
1. Did the trial court err when it denied Appellant’s motion to suppress his statement to Officer [Hill], who questioned Appellant regarding where he was coming from while Appellant was in custody without first administering Miranda warnings?
2. Did the trial court abuse its discretion by precluding Appellant from cross-examining Officer [Hill] regarding [Decedent’s] Instacart records, which were admissible and properly authenticated under Rules 902(11) and 803(6) of the Pennsylvania Rules of Evidence?
3. Did the trial court abuse its discretion by denying Appellant’s motion to preclude the Commonwealth from offering evidence regarding his warrant, which was for service only, as evidence of motive under Pennsylvania Rule of Evidence 404(b)? Did the trial court further abuse its discretion by concluding that the probative value of this evidence outweighed the danger of unfair prejudice under Pennsylvania Rule of Evidence 403?
4. Was the evidence insufficient to support Appellant’s conviction for [R]eceiving [S]tolen [P]roperty, 18 Pa.C.S.[] § 3925(a), because the Commonwealth failed to prove beyond a reasonable doubt that Appellant knew that the vehicle was stolen or believed that the vehicle had probably been stolen?
5. Are Appellant's sentences for [D]riving on [R]oadways [L]aned for [T]raffic (Count 6) and [D]riving Vehicle at Safe Speed (count 7) illegal because they should have merged with his sentence for Homicide by Vehicle (count 1), as they were the underlying traffic violations?
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Appellant’s Br. at 5-6.7
C.
Appellant first argues that the court erred in denying his motion to
suppress the statement he made to Officer Hill before Officer Hill gave him his
Miranda warnings. In particular, Appellant argues Officer Hill was
interrogating him while he was waiting for the ambulance and in handcuffs—
she asked him where he was coming from, and he responded that he had been
making deliveries. Id. at 5.
We review the denial of a suppression motion to determine “whether the
factual findings are supported by the record and whether the legal conclusions
drawn from those facts are correct.” Commonwealth v. Yandamuri, 159
A.3d 503, 516 (Pa. 2017). While we are bound by the suppression court’s
factual findings that are supported by the record, we are not bound by its legal
conclusions, which we review de novo. Id. Our scope of review is limited to
the record before the suppression court, and, when the Commonwealth has
prevailed below, “we may consider only the evidence of the Commonwealth
and so much of the evidence for the defense as remains uncontradicted.” Id.
It is well-settled that when a defendant is subject to a custodial
interrogation, the Fifth Amendment requires that law enforcement officers
provide him with Miranda warnings. U.S. CONST. amend. V; Miranda, 384 ____________________________________________
7 We have renumbered claims 2 and 3 to reflect the order in which they appear
in the body of Appellant’s brief. We also note that Appellant raised two additional issues in his Pa.R.A.P. 1925(b) Statement that he has not addressed in his brief. We find these issues waived.
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U.S. at 444. See also Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa.
2006) (applying Miranda). When a suppression court determines whether
the police had subjected a defendant to an interrogation, 8 the suppression
court applies the following standard:
[the standard] is an objective one based on a totality of the circumstances, with due consideration given to the reasonable impression conveyed to the person interrogated. Custodial interrogation has been defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way. Interrogation is police conduct calculated to, expected to, or likely to evoke admission.
Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999) (internal
citations and quotation marks omitted; emphasis added).
We emphasize that this determination “does not depend upon the
subjective intent of the law enforcement officer interrogator.”
Commonwealth v. Gonzalez, 979 A.2d 879, 888 (Pa. Super. 2009) (citation
omitted). Rather, to determine if a law enforcement officer should have
known that questioning was calculated to “produce an incriminating
response[,]” we consider the totality of the circumstances surrounding the
interaction with a focus on the suspect’s perception and the police officer’s
knowledge. Commonwealth v. Briggs, 12 A.3d 291, 323 (Pa. 2011).
*
8 The court determined, and we agree, that Appellant was in custody at the
time when police placed him in handcuffs after removing him from the vehicle. Trial Ct. Op. at 7.
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Appellant moved to suppress his response—that he was making
deliveries—to Officer Hill’s question about where he was coming from before
the accident. Appellant argues that this question was likely to elicit an
incriminating response, even if unintentionally. Appellant’s Br. at 26.
Appellant maintains that Officer Hill’s question was not related to basic or
biographical information or medical treatment. Id. Rather, he asserts that
the purpose of this question was to obtain inculpatory information as to
whether he had been fleeing from them in a stolen vehicle. Id.
The court determined, however, that, even though Appellant was in
custody, there was no violation of his constitutional rights because the officers
did not ask him any questions with the intent to elicit incriminating responses.
Trial Ct. Op. at 7-8. Specifically, the court noted that, in addition to the
questions asked by EMTs for purposes of medical treatment, the questions
police asked Appellant were “biographical questions, basic informational
questions[,] and questions regarding medical treatment[,]” and “questions
relating to public safety and not intending to elicit incriminating responses”
which do not require Miranda warnings. Id. at 8.
We conclude that the court did not err in denying suppression because
Officer Hill’s question did not objectively attempt to elicit an inculpatory
statement and thus, constitute an interrogation. Appellant’s argument is
conclusory and fails to articulate how the answer to the question would have
incriminated him. The vehicle had been stolen a month before the accident,
and the officer merely asked what Appellant was doing before the accident.
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Objectively analyzing the question, it did not request incriminating
information. Rather, it sought to obtain information that might explain the
cause of the accident. Appellant’s argument that the police asked the question
to elicit Appellant’s response that he was driving a stolen car is not an
objective interpretation of the question, but purely speculation of an
improbable answer. Accordingly, this claim lacks merit.
D.
Appellant next asserts that the court abused its discretion by precluding
Appellant from cross-examining Officer Hill regarding Decedent’s Instacart
records. See Appellant’s Br. at 5. We review evidentiary rulings for an abuse
of discretion. Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super.
2014). An abuse of discretion is “the overriding or misapplication of the law,
or the exercise of judgment that is manifestly unreasonable, or the result of
bias, prejudice, ill-will[,] or partiality, as shown by the evidence of record.”
Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005) (citations
omitted).
It is entirely within the court’s discretion to determine the scope and
limits of cross-examination. Commonwealth v. Birch, 616 A.2d 977, 978
(Pa. 1992). When a party seeks to present a document through cross-
examination, “the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” Pa.R.E. 901(a).
Examples of such evidence include “Testimony of a Witness with Knowledge .
. . that an item is what it is claimed to be.” Id. at 901(b)(1).
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It is axiomatic that a party must lay a foundation for evidence to be
admissible. Commonwealth v. Ford, 301 A.2d 856, 857 (Pa. 1973); see
also Commonwealth v. Sinwell, 457 A.2d 957, 959 (Pa. Super. 1983)
(photographs were admissible because Commonwealth witnesses’ testimony
that they were fair and accurate depiction of crime scene was sufficient to
establish foundation). If a party does not establish a connection between the
offered evidence and “the parties or events which are the subject of the
litigation,” a court may exclude the evidence. Commonwealth v. Pollock,
606 A.2d 500, 506 (Pa. Super. 1992). Evidence initially determined to be
inadmissible “may later be admitted when additional foundation is laid, [or]
when additional facts are adduced which establish relevancy[.]”
Commonwealth v. Jorden, 482 A.2d 573, 580 (Pa. Super. 1984).
Appellant asserts that the court abused its discretion when it prohibited
him from cross-examining Officer Hill based on Decedent’s Instacart records.
Appellant’s Br. at 27. He argues that he “has a fundamental right to present
evidence if it is relevant and not excluded by an evidentiary rule[,]” and the
court prevented him from putting forth a complete defense by excluding this
evidence. Id. at 28 (citing Commonwealth v. Britton, 380 A.2d 807 (Pa.
1976)). Finally, Appellant notes that he had provided the records to the
Commonwealth prior to trial as required by Rule 902(11), the Commonwealth
had the opportunity to raise any concerns pretrial, and the Commonwealth’s
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failure to share the records with Officer Hill does not preclude him from asking
her about them. Id. at 30.
The court explained that its ruling was “proper based on the
circumstances[.]” Trial Ct. Op. at 23. Acknowledging its finding that the
records were self-authenticating, the court nonetheless found that it was not
proper to present these records to the jury through cross-examination of
Officer Hill because Appellant had failed to lay a proper foundation. Id. at 23.
The court observed that Officer Hill “did not work for Instacart and only
vaguely knew about Instacart[,]” and that there were several columns of data
for which Officer Hill would need to speculate to interpret them, including
whether “PT” meant “Pacific Time.” Id. at 19-21, 23. The court also observed
that Appellant had not established Decedent’s birth date, which would have
established that the records belonged to Decedent’s Instacart account. Id. at
22-23. The court explained that it did not prevent Appellant from introducing
Decedent’s Instacart records through another witness, and observed that
Appellant chose not to do so. Id. at 23.
Following our review, we conclude that the trial court did not abuse its
discretion in prohibiting Appellant from presenting the Instacart records
though his cross-examination of Officer Hill. The records are self-
authenticating documents, but Appellant fails to address the court’s
determination that he did not lay a proper foundation, either to establish their
relevance by connecting them to Decedent or to introduce them through
Officer Hill. Trial Ct. Op. at 22-23. Instead, he blames the Commonwealth
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for his failure to lay a foundation by claiming that it did not show the records
to Officer Hill prior to trial. Appellant’s Br. at 30. Appellant’s arguments fail
to persuade this Court that the trial court abused its discretion. Moreover, the
trial court did not prevent Appellant from introducing the records, only from
introducing them through cross-examination of Officer Hill. Thus, Appellant’s
claim that the court’s ruling prevented him from putting forth a complete
defense is meritless.9 Accordingly, this claim lacks fails to garner relief.
E.
Appellant next claims that the trial court abused its discretion by
denying his motion to preclude reference to his then-outstanding service-only
warrant as evidence of his motive to flee under Pa.R.E. 404(b) because its
prejudicial value outweighed its probative value. Appellant’s Br. at 31, 34.
In reviewing the disposition of a motion in limine, “we apply an
evidentiary abuse of discretion standard of review.” Commonwealth v.
Cook, 231 A.3d 913, 919 (Pa. Super. 2020) (citation omitted).
It is axiomatic that “[o]nly relevant evidence is admissible at trial.”
Commonwealth v. Christine, 125 A.3d 394, 398 (Pa. 2015) (citing Pa.R.E.
402). Evidence is relevant if it tends to make a material fact more or less
probable than it would be without the evidence. Pa.R.E. 401. However, even
relevant evidence may be excluded “if its probative value is outweighed by ...
unfair prejudice, confusing the issues, misleading the jury, undue delay, ____________________________________________
9 In fact, the trial court informed Appellant that he could introduce the records
through an appropriate witness.
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wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
“Unfair prejudice means a tendency to suggest decision on an improper basis
or to divert the jury’s attention away from its duty of weighing the evidence
impartially.” Id. at cmt. (internal quotation omitted).
Pa.R.E. 404(b) prohibits evidence of a defendant’s prior bad acts “to
prove a person’s character” or demonstrate “that on a particular occasion the
person acted in accordance with the character.” Pa.R.E. 404(b)(1). However,
evidence of prior bad acts “may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Id. at 404(b)(2); see also
Commonwealth v. Dillon, 925 A.2d 131, 137 (Pa. 2007) (applying Rule
404(b)(2)).
Appellant argues that the court erroneously concluded that the risk of
unfair prejudice did not outweigh the probative value of testimony about his
warrant. Appellant’s Br. at 31-34. Specifically, he asserts that a service-only
warrant is “not relevant to establish motive since there was no evidence that
[he] was aware of the warrant, as he had not yet been served[,]” and thus,
the probative value of the warrant is low. Id. at 31, 34. Relatedly, Appellant
asserts that Commonwealth v. Correa, 620 A.2d 497 (Pa. Super. 1992),
cited by the Commonwealth at the motions hearing, is distinguishable because
Appellant did not know he had an outstanding warrant and, thus, the warrant
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did not provide a motive to flee from the police. Id. at 32-33.10 He also
maintains that the danger of unfair prejudice was high because the existence
of the warrant informed the jury that he had another criminal case pending.
Id. at 33-34. Finally, Appellant asserts that “confusion regarding the warrant
likely affected the verdict” because the jury had asked for the definition of a
service warrant and the court could not provide it. Id. at 35-46.
The trial court explained that evidence of the warrant “was not offered
to smear his character or to prove his criminal propensity”—“[r]ather, the
evidence tended to establish that [Appellant] had a reason to avoid the police,
and provided a possible motive for fleeing when police tried to stop the
vehicle.” Trial Ct. Op. at 17. Further, the court opined that “the prejudicial
effect of this evidence was reduced by not allowing testimony regarding the
underlying charges [or] the grading of the [underlying] charges.” Id. at 18.
The court also noted that Appellant testified that he knew that he had an open
warrant at the time of the incident. Id. (citing N.T. Trial, 11/30/23, at 409).
10 In Commonwealth v. Correa, the court allowed the Commonwealth to impeach a witness’s credibility with reference to his prior arrest and conviction for a non-crimen falsi offense to establish, inter alia, that at the time of the offense at issue, the witness had an outstanding warrant for his arrest and, thus, reason to avoid the police so it was unlikely that he had “watched appellant’s arrest from a close distance for approximately ten minutes” as he had claimed. 620 A.2d 497, 503–04 (Pa. Super. 1993). Appellant is, thus, correct that Correa is distinguishable but not because Appellant was not aware of the warrant, a claim that is, in any event, belied by the record. See N.T. Trial, 11/30/23, at 409 (Appellant testifying that he was aware of the warrant).
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Following our review, we discern no abuse of discretion in the trial
court’s determination that the danger of unfair prejudice did not outweigh the
probative value of the testimony regarding Appellant’s warrant. The probative
value of the testimony was high because it established a possible motive for
Appellant to flee from the police. As noted above, Appellant’s own testimony
that he knew of the warrant belies his assertion that he was unaware of it.
N.T. Trial, 11/30/23, at 409. Furthermore, the court mitigated the danger of
unfair prejudice by limiting discussion of the warrant to testimony about its
existence and did not permit testimony about the underlying charges or their
grading. Order, 11/21/23. Accordingly, this claim merits no relief.
F.
Appellant next challenges the sufficiency of the evidence supporting his
conviction for RSP. Appellant’s Br. at 36-38. We review challenges to the
sufficiency of the evidence by considering 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.” Commonwealth v. Melvin, 103 A.3d 1, 39
(Pa. Super. 2014). The jury—while passing on the credibility of the witnesses
and the weight of the evidence—is free to believe all, part, or none of the
evidence. Id. at 40. Moreover, the jury may base a conviction solely on
circumstantial evidence. Id. In conducting this review, we may not re-weigh
the evidence and substitute our judgment for that of the fact-finder. Id.
A defendant commits RSP if:
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he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.
18 Pa.C.S. § 3925(a). The definition of “receiving” includes, acquiring
possession or control of the property. Id. at (b). To obtain a conviction for
RSP, the Commonwealth must prove beyond a reasonable doubt that, inter
alia, “the defendant knew the property was stolen or had reason to believe
the property was stolen.” Commonwealth v. Matthews, 632 A.2d 570, 572
(Pa. Super. 1993). “However, the mere possession of stolen property is
insufficient to permit an inference of guilty knowledge; there must be
additional evidence, circumstantial or direct, which would indicate that the
defendant knew or had reason to know that the property was stolen.” Id. at
572 (discussing, generally, physical signs of theft, lack of keys, defendant’s
behavior, time elapsed since theft, and explanation for possession of a stolen
vehicle as evidence supporting the mens rea for RSP).
Appellant argues that the evidence was insufficient to support his
conviction for RSP because the Commonwealth failed to prove that he either
knew the vehicle had been stolen or believed it had probably been stolen.
Appellant’s Br. at 36. In support, he notes that the vehicle was stolen from
Philadelphia a month earlier, and “unrebutted testimony” established that the
vehicle was parked near Decedent’s house in Southwest Philadelphia and
Decedent had the keys, so Appellant concluded that it belonged to Decedent.
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Id. at 37-38 (citing N.T. Trial, 11/30/23, at 390-91). Appellant compares this
case to several others in which the evidence was insufficient for RSP.
Appellant’s Br. at 36-37 (citing Commonwealth v. Stover, 436 A.2d 232
(Pa. Super. 1981) (holding evidence was insufficient to establish that
defendant knew vehicle was stolen where it was stolen weeks earlier and he
referred to it as his); Commonwealth v. Henderson, 304 A.2d 154 (Pa.
1973) (same, where vehicle was stolen weeks earlier, defendant willingly
pulled over, and explained that he had borrowed vehicle); and
Commonwealth v. Grant, 341 A.2d 511 (Pa. Super. 1975) (same, where
vehicle was stolen weeks earlier, defendant did not have paperwork, and
claimed he borrowed vehicle from a friend). Appellant concedes that there
“may have been” some of the Heller family’s personal property in the vehicle,
but maintains that was not sufficient to establish that he should have known
that it was stolen. Id. at 38.
Following our review, we conclude that the Commonwealth presented
sufficient evidence to establish that Appellant either knew the vehicle was
stolen or had reason to believe that it was. The evidence, when viewed in the
light most favorable to the Commonwealth as the verdict winner,
demonstrated that Appellant was driving the vehicle, and the vehicle had
several items bearing the names and/or photograph of Mr. Heller or his
parents near the driver’s seat along with a photograph of Mr. Heller’s girlfriend
on the visor, which Officer Ensor saw was down. N.T. Trial, 11/28/23, at 35-
39, 84. Furthermore, the vehicle had New Jersey license plates, indicating
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that it likely did not belong to Decedent, who lived in Philadelphia. The cases
Appellant cites are distinguishable because here, there was circumstantial
evidence inside the vehicle indicating that it did not belong to Decedent, and
because Appellant fled from police. It was within the jury’s purview to assign
weight to Appellant’s testimony that he did not see any items belonging to the
Heller family, and that he believed the vehicle belonged to Decedent. This
Court may not re-weigh this testimony as he wishes. Accordingly, this claim
merits no relief.
G.
Finally, Appellant claims that his sentences for Driving on Roadways
Laned for Traffic, Driving Vehicle at Safe Speed, and Reckless Driving 11 are
illegal because they should have merged with his sentence for Homicide by
Vehicle. Appellant’s Br. at 38-41, Appellant’s Reply Br. at 7-10. “A claim that
convictions merge for sentencing is a question of law; therefore, our standard
of review is de novo and our scope of review is plenary.” Commonwealth v.
Kimmel, 125 A.3d 1272, 1275 (Pa. Super. 2015) (en banc).
Section 9765 of the Sentencing Code governs merger, and provides that
11 Appellant raises this claim regarding Reckless Driving for the first time in
his reply brief, after the trial court and Commonwealth conceded that Reckless Driving merges with Homicide by Vehicle for sentencing. Trial Ct. Op. at 46, Commonwealth’s Br. at 44-45. Nevertheless, challenges to the legality of sentence, including those involving merger, “can never be waived” and this Court may raise them sua sponte. Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013); Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc). Accordingly, we address the legality of sentence claim as it pertains to all three convictions.
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[n]o crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.
42 Pa.C.S. § 9765. “Accordingly, merger is appropriate only when two distinct
criteria are satisfied: (1) the crimes arise from a single criminal act; and (2)
all of the statutory elements of one of the offenses are included within the
statutory elements of the other.” Commonwealth v. Raven, 97 A.3d 1244,
1249 (Pa. Super. 2014) (citation omitted).
The elements for Homicide by Vehicle are that “(1) the Appellant drove
in a manner that violated the Motor Vehicle Code, (2) the Appellant knew or
should have known that his conduct violated the law[,] and (3) the death was
the probable result of the Motor Vehicle Code violation.” Matter of Huff, 582
A.2d 1093, 1097 (Pa. Super. 1990). A defendant is guilty of Reckless Driving
if he “drives any vehicle in willful or wanton disregard for the safety of persons
or property is guilty of reckless driving.” 75 Pa.C.S. § 3736(a). We have
determined that, in the context of lesser-included offenses for double jeopardy
purposes, Reckless Driving is a lesser included offense of Homicide by
Vehicle.12 Huff, 582 A.2d at 1097.
12 Determining whether an offense is a lesser included offense for purposes of
double jeopardy requires the court to determine “whether each and every element of the lesser offense is necessarily an element of the greater offense.” Huff, 582 A.2d at 1096. Therefore, this analysis is analogous to the analysis for merger, which requires us to determine, inter alia, whether “all of the statutory elements of one offense are included in the statutory elements of the other offense.” 42 Pa.C.S. § 9765.
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Section 3361 of the Vehicle Code, Driving at Safe Speed, mandates that,
inter alia,
[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead.
75 Pa.C.S. § 3361. “Since evidence of a speed violation is not always
necessary to prove a charge of [H]omicide by [V]ehicle, [Section] 3361 is not
a lesser included offense” of Homicide by Vehicle. Huff, 582 A.2d at 1097.
Finally, Section 3309(1) of the Vehicle Code, Driving on Roadways Laned for
Traffic, provides that “[w]henever any roadway has been divided into two or
more clearly marked lanes for traffic the following rules [] shall apply: (1) [ ]
A vehicle shall be driven as nearly as practicable entirely within a single lane
and shall not be moved from the lane until the driver has first ascertained that
the movement can be made with safety.” 75 Pa.C.S. § 3309(1).
Appellant argues that a violation of a Pennsylvania law relating to the
operation or use of a motor vehicle is an element of Homicide by Vehicle.
Appellant’s Br. at 40. He notes that Driving on Roadways Laned for Traffic
and Driving Vehicle at Safe Speed are the traffic violations put forth by the
Commonwealth as the causes of the accident and the basis for the Homicide
by Vehicle charge and, thus, they are an element of Homicide by Vehicle and
should merge for sentencing. Id. (citing N.T. 11/30/23). He analogizes this
case to the merger of a Driving under the Influence (“DUI”) sentence with a
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Homicide by Vehicle while DUI sentence because DUI is an element of
Homicide by Vehicle while DUI. Id. at 39. In his reply brief, Appellant also
asserts that his sentence for Reckless Driving should merge with his sentence
for Homicide by Vehicle based on the analysis in Huff, supra. See Appellant’s
Reply Br. at 7-10.
Following our review, we conclude that the offense of Reckless Driving
merges with Homicide by Vehicle for purposes of sentencing, while the other
two traffic violations do not. First, all of the applicable charges resulted from
a single criminal episode. As our court explained in Huff, all elements of
Reckless Driving are included in Homicide by Vehicle, but all elements of
Driving at Safe Speed are not. 582 A.2d at 1097. Accordingly, the parties
and the court are correct that Reckless Driving merges, and, thus, we vacate
that sentence. We affirm Appellant’s sentence for Driving at Safe Speed, as
it does not merge with Homicide by Vehicle. Finally, we conclude that Driving
on Roadways Laned for Traffic includes an element that Homicide by Vehicle
does not—the failure to drive within a single lane. Accordingly, we affirm
Appellant’s sentences regarding those charges as well.
H.
In sum, we conclude that all of Appellant’s claims, except his legality of
sentence challenge to his sentence for Reckless Driving, lack merit.
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Accordingly, we vacate his sentence—a fine of $200 plus costs—and affirm the
remainder of his judgment of sentence. 13
Judgment of sentence vacated in part and affirmed in part.
Date: 6/17/2025
13 Because our decision does not alter Appellant’s overall sentencing scheme,
there is no need for this Court to remand for a new sentence. Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006).
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