Com. v. Thomas, J. ( 2019 )

J-S33013-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES FLEETRO THOMAS :
:
Appellant : No. 1531 MDA 2018
Appeal from the Judgment of Sentence Entered June 20, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000599-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES FLEETRO THOMAS :
:
Appellant : No. 1532 MDA 2018
Appeal from the Judgment of Sentence Entered June 20, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0000600-2017
BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 02, 2019
James Fleetro Thomas appeals from the judgments of sentence, entered
in the Court of Common Pleas of Lancaster County, after a jury convicted him
of one count each of burglary1 and recklessly endangering another person2
____________________________________________
1 18 Pa.C.S.A. § 3502(a)(1)(ii).
J-S33013-19
(REAP), and three counts of receiving stolen property3 (RSP).4 Upon careful
review, we affirm in part and vacate in part.
On January 17, 2017, Kennith Cauler awoke at his home, 15 Susquaw
Place, to discover his back door open, his drawers rifled through, and his blue
Subaru Forester (“the Subaru”) missing. Cauler reported to the police an
Xbox, an Xbox controller, an antique glass bowl with change, an iPad, and an
iPhone 6 had been taken from his house, and a Gibson guitar and an iPhone
4 were inside the stolen Subaru.
The Manheim Township Police Department suspected Thomas’
involvement with the break-in at 15 Susquaw Place and sent detectives to
surveil 1343 Glen Moore Circle, which they believed to be Thomas’ residence.5
____________________________________________
2 18 Pa.C.S.A. § 2705.
3 18 Pa.C.S.A. § 3925(a).
4 Thomas’ trial encompassed charges filed under docket numbers CP-36-CR-
0000599-2017 and CP-36-CR-0000600. In addition to the five above
mentioned convictions, the jury found Thomas not guilty of one count of
burglary under docket number CP-36-CR-0000600. Thomas also pleaded
guilty to burglary, theft, and criminal mischief under docket number CP-36-
CR-0001651-2017, for a negotiated sentence of two to five years’
incarceration running concurrent to the sentences imposed on the two above-
mentioned docket numbers.
5 The trial testimony, the parties’ briefs, and the trial court’s opinions all fail
to mention why Thomas was a suspect or why 1343 Glen Moore Circle was
under surveillance. It appears Manheim Township Detectives Brent Shultz
and Brian Freysz were investigating a series of local thefts, and noticed
similarities to a series of thefts in 2014 for which the two detectives had
arrested Thomas. See Affidavit of Probable Cause, 1/18/17, at 5. A records
search revealed Thomas was, at the time, under the supervision of Lancaster
-2-
J-S33013-19
On January 18, 2017, around 1:00 a.m., Detective Steven Newman observed
a blue Subaru park in front of 1343 Glen Moore Circle, and watched as Thomas
exited the car, opened the back of the vehicle, and took a large flat-screen
television into the house. The detectives then determined from the license
plate that the Subaru was the car stolen from 15 Susquaw Place the previous
day. Thomas got back in the Subaru and headed west on Fruitville Pike.
Shortly thereafter, an officer attempted to pull Thomas over. Instead
of stopping, Thomas slowed down, leapt from the Subaru, and fled on foot.
Meanwhile, the Subaru rolled down Fruitville Pike, heading toward the lanes
designated for oncoming traffic. Detective Newman pursued Thomas on foot
and eventually took him into custody. Officer John Donnelly ran the Subaru
down on foot, managing to jump into the moving vehicle and put it in park
after it had rolled approximately fifty feet.
Following Thomas’ arrest in the early morning of January 18, 2017,
Officers searched the Subaru and found an iPhone charger belonging to
Cauler, as well as a purse and checkbook belonging to Lynn Niehaus. Soon
after, officers executed a search warrant on 1343 Glen Moore Circle,
discovering two iPhones and an iPad belonging to Cauler. The officers also
discovered a flat-screen television, a laptop computer, and a key fob.
____________________________________________
County Adult Probation, and in a relationship with a woman living at 1343
Glen Moore Circle. Id. Three detectives then proceeded to surveil the
property in the early morning of January 18, 2017. Id.
-3-
J-S33013-19
At 5:10 a.m. that same day, Adam Fry awoke at his 103 Red Oak Road
home, along with Niehaus, his girlfriend. Fry noticed the back door was open,
and his flat-screen television, his laptop, two sets of car keys, and Niehaus’
iPad were missing. Niehaus discovered her purse, which contained makeup,
a laser measure, a tape measure, and a checkbook, was missing. These items
were all discovered in Thomas’ possession following searches of his person,
the stolen Subaru, and 1343 Glen Moore Circle. Prior to trial, the parties
stipulated that no fingerprint, DNA, or trace evidence linked Thomas to the
crimes committed at 103 Red Oak Road or 15 Susquaw Place, and that there
were no witnesses that could link him with either location.
On March 13, 2018, following a two day trial before the Honorable
Donald R. Totaro, the jury rendered the following verdict: on docket number
CP-36-CR-0000599-2017,6 guilty of one count of burglary and one count of
RSP; on docket number CP-36-CR-0000600-2017,7 guilty of two counts of
receiving stolen property and one count of REAP, and not guilty of burglary.
On June 20, 2018, the court sentenced Thomas as follows: ten to twenty
years’ incarceration for burglary, with RSP merging for sentencing purposes
on docket number CP-36-CR-0000599-2017; and three to seven years’
incarceration for both counts of RSP and one to two years’ incarceration for
____________________________________________
6The Commonwealth prosecuted charges connected to events at 103 Red Oak
Road under docket number CP-36-CR-0000599-2017.
7 The Commonwealth prosecuted charges connected to events at 15 Susquaw
Place under docket number CP-36-CR-0000600-2017.
-4-
J-S33013-19
REAP, set to run concurrently on docket number CP-36-CR-0000600-2017,
but consecutively to Thomas’ sentence for burglary on docket number CP-36-
CR-0000599-2017.
On June 27, 2018, Thomas filed post-sentence motions challenging the
sufficiency of the evidence, which the court denied on August 17, 2018.
Thomas timely filed notices of appeal,8 followed by a court-ordered concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
He raises the following issues for our review:
1) Was the evidence presented by the Commonwealth insufficient
to prove beyond a reasonable doubt that [] Thomas committed
[the] burglary of 103 Red Oak Road, where there was no
evidence that [] Thomas entered 103 Red Oak Road?
2) Was the evidence presented by the Commonwealth insufficient
to prove beyond a reasonable doubt that [] Thomas received
more than $2000 in stolen property from 15 Susquaw Place;
thus, on [docket number CP-36-CR-0000600-2017], should
[Thomas] have been convicted of receiving stolen property
graded as a first[-]degree misdemeanor?
3) Was the evidence presented by the Commonwealth insufficient
to prove beyond a reasonable doubt that [] Thomas recklessly
endangered another person where there was no evidence that
[] Thomas placed any person in danger of death or serious
bodily injury by fleeing from his vehicle without first placing the
vehicle in park?
____________________________________________
8 Thomas filed separate notices of appeal under both docket numbers in
compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Both
parties consented to consolidate Thomas’ appeals pursuant to Pa.R.A.P. 513.
See Stipulation for Consolidation, 9/27/18, at 1–3. Consequently, we review
issues arising under both docket numbers together. See Pa.R.A.P. 513
(appeals may be consolidated by stipulation of parties to multiple appeals).
-5-
J-S33013-19
Brief of Appellant, at 7.
Thomas’ claims all attack the sufficiency of the evidence underpinning
his convictions. Our standard of review with regard to such claims is well-
settled:
We review claims regarding 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. Further, a conviction may be
sustained wholly on circumstantial evidence, and the trier of fact—
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.
In conducting this review, the appellate court may not weigh the
evidence and substitute its judgment for the fact-finder.
Commonwealth v. Strafford, 194 A.3d 168, 174 (Pa. Super. 2018)
(citations and quotations omitted).
Thomas first claims his burglary conviction rests on insufficient
evidence, as there was no direct evidence he entered Fry and Niehaus’ home.
Brief of Appellant, at 17.
The Crimes Code, in relevant part, defines burglary as follows:
§ 3502. Burglary
(a) Offense defined.--A person commits the offense of burglary
if, with the intent to commit a crime therein, the person:
[(1)](ii) enters a building or occupied structure, or
separately secured or occupied portion thereof that is
adapted for overnight accommodations in which at the time
of the offense any person is present[.]
18 Pa.C.S.A. § 3502(a)(1)(ii); see also Commonwealth v. Cooper, 941
A.2d 655, 666 (Pa. 2007) (“[T]he Commonwealth is required to prove beyond
-6-
J-S33013-19
a reasonable doubt that the offender entered the premises, with the
contemporaneous intent of committing a crime, at a time when he was not
licensed or privileged to enter.”)
In addition to furnishing the finder of fact with sufficient evidence to
prove every element of each crime beyond a reasonable doubt, the
Commonwealth must establish, beyond a reasonable doubt, the identity of the
defendant as the individual who perpetrated the crimes. Strafford, supra at
174. Evidence of identification, however, “need not be positive and certain to
sustain a conviction.” Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super.
2011) (en banc). Further, “[t]he Commonwealth may sustain its burden by
proving every element of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence.” Commonwealth v. Callen, 198 A.3d 1149,
1167 (Pa. Super. 2018).
Our courts have acknowledged, in finding a defendant guilty beyond a
reasonable doubt, finders of fact occasionally must rely on inferential
reasoning, expounding on the relationship between inference and reasonable
doubt as follows:
An inference is permissive; it allows, but does not require, the
factfinder to infer the elemental fact from proof of the basic fact
and places no burden of persuasion on the defendant. Inasmuch
as the trier of fact may either accept or reject the inference, the
question of whether the elemental fact is properly inferred from
the basic facts rests on the connection between the facts in the
context of an evidentiary record, not on an analysis of the
relationship between the facts in the abstract. Thus, an inference
does not relieve the [Commonwealth] of its burden of persuasion
because it still requires the [Commonwealth] to persuade the jury
-7-
J-S33013-19
that the suggested conclusion should be inferred based on the
predicate facts proved. Accordingly, an inference is not more than
a logical tool enabling the trier of fact to proceed from one fact to
another if the trier believes that the weight of the evidence
warrants the conclusion sought. Because the inference leaves the
trier of fact free to credit or reject the inference and does not shift
the burden of proof, it affects the application of the [] reasonable
doubt standard, only if, under the facts of the case there is no
rational way the trier [of fact] could make the connection
permitted by the inference.
Commonwealth v. Salter, 858 A.2d 610, 615 (Pa. Super. 2004) (emphasis
added) (citations and quotations omitted).
In Commonwealth v. Owens, 271 A.2d 220 (Pa. 1970), our Supreme
Court found it impermissible to presume an individual knew property had been
stolen when that individual possessed recently stolen goods. See id. at 322.
In doing so, Owens thus precluded unconstitutional burden-shifting, wherein
the defendant was forced to prove his own innocence. See id. at 235 (stating
previously used presumption as: “Where property has been stolen and is
speedily found in possession of [someone], the law puts upon him the burden
of its explanation. Otherwise, he is deemed to have been the thief.”)
The Owens rationale, however, is inapplicable where “guilt is based
upon an evidentiary inference rather than a burden[-]shifting presumption.”
Commonwealth v. Brosko, 365 A.2d 867, 869 (Pa. Super. 1976). Instead,
the constitutionality of an evidentiary inference is determined by evaluating
whether the inferred fact “is more likely than not to flow from the proved fact
on which it is made to depend. Where the inference allowed is tenuously
connected to facts proved by the Commonwealth, due process is lacking.”
-8-
J-S33013-19
Commonwealth v. McFarland, 308 A.2d 592, 594 (Pa. 1973) (citations
omitted); see also Commonwealth v. Turner, 317 A.2d 298 (Pa. 1974)
(holding possession of recently stolen property could justify conclusion
possessor was thief where additional facts established rational nexus sufficient
to establish guilt beyond reasonable doubt). Our Supreme Court delineated
the following factors for determining whether the Commonwealth’s evidence
“more likely than not” gives rise to the inference that an individual participated
in a burglary: “the lapse of time between the crime and the discovery of the
property; the type and kind of property; the amount and volume of property;
and the ease in which it may be assimilated into trade channels.” McFarland,
supra at 594. (citation omitted).
In Commonwealth v. Shaffer, 228 A.2d 727 (Pa. 1972), on facts
where the appellant was apprehended twenty-four hours after two burglaries
in possession of twenty-five pieces of jewelry bearing individuals’ names and
initials, our Supreme Court applied the above-mentioned factors and found
“the inference of complicity in the burglary could ‘more likely than not’ flow
from the proved fact of possession of recently stolen, non-negotiable
property.” McFarland, supra at 594 (citing Shaffer, supra at 737). In
contrast, under circumstances where the police arrested an individual in
possession of bonds that had been stolen from a private home eleven months
earlier, the Court concluded it improper to infer his participation in the
-9-
J-S33013-19
burglary because “the possibilities of acquisition which do not involve
complicity in the [] burglary are numerous.” McFarland, supra at 595.
Here, Thomas argues it was improper for the jury to infer his
participation in the burglary of Fry and Niehaus’ home from his possession of
their property. See Brief of Appellant, at 17, 21. Moreover, he argues the
trial court substituted the requirement that the Commonwealth prove each
element of burglary beyond a reasonable doubt for one merely requiring it be
“more likely than not” that Thomas committed the burglary. See id. at 21.
Thomas’ arguments misconstrue the role inferential reasoning plays in
a fact finder’s conclusions. See Salter, supra at 615. The Commonwealth
is always required to prove each element of a crime beyond a reasonable
doubt, however it may do so by drawing on evidence to support inferences,
which the trier of fact may then credit or reject. See id. The “more likely
than not” standard is instead used to evaluate whether or not an evidentiary
inference, upon which a jury based a finding of guilt beyond a reasonable
doubt, is constitutionally infirm. See McFarland, supra at 439.
Thomas precipitated his own arrest by taking Fry and Niehaus’
television into 1343 Glen Moore Circle in plain view of three detectives at
12:15 a.m.—approximately two hours after Fry and Niehaus went to sleep.
See N.T. Trial, 3/12/18, at 105; 136–37. Additionally, after executing
warrants on the Subaru and 1343 Glen Moore Circle, the police recovered
several other items belonging to the couple, including their car keys,
- 10 -
J-S33013-19
computer, iPad, and Niehaus’ purse. Id. at 119–22. Fry confirmed his and
Niehaus’ ownership of these items by entering valid passcodes into the devices
and showing the police duplicate car keys matching those taken from their
house. Id. 120–22. The police confirmed Niehaus’ ownership of the purse
from the checkbook, which had her name on it and was inside the purse. Id.
at 129.
Taken together, these facts meet the quantum of evidence necessary to
allow the jury to infer from possession of stolen goods that Thomas entered
Fry and Niehaus’ home, and that he did so with the intent to commit theft.
See McFarland, supra at 594 (including time between theft and arrest, and
type and kind of property as factors in analysis). Unlike McFarland, the facts
outlined above, particularly the uniqueness of the items stolen and the
proximity in time between theft and arrest, serve to rule out “possibilities of
acquisition which do not involve complicity in [] burglary[.]” Id. The
Commonwealth further demonstrated neither Fry nor Niehaus gave Thomas
permission to enter their house or to take their property. N.T. Trial, 3/12/18
at 122; 131. Consequently, Thomas’ burglary conviction rests on sufficient
evidence. See Cooper, supra at 666.
Next, Thomas argues the Commonwealth failed to prove he possessed
over $2,000 of stolen property—the amount necessary for grading his RSP
conviction under count two of docket number CP-36-CR-0000600 as a third-
degree felony. Brief of Appellant, at 23. Thomas acknowledges “receiving all
- 11 -
J-S33013-19
of the property stolen from 15 Susquaw Place which was found in the Subaru
he was driving, or the residence at 1343 Glen More Circle.” Id. at 24. He,
however, denies possessing Cauler’s guitar, valued at $2,000, without which
his RSP conviction would have been graded as a first-degree misdemeanor.9
Id.
RSP is graded as a third-degree felony when the stolen goods at issue
are valued at over $2,000, and as a first-degree misdemeanor when the value
is between $200 and $2,000. 18 Pa. C.S.A. § 3903(a.1), (b). 10 The Crimes
Code defines RSP, in relevant part, as follows:
§ 3925. Receiving stolen property
(a) Offense defined.--A person is guilty of theft if 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.A. § 3925; see also Commonwealth v. Morrissey, 654 A.2d
1049, 1054 (Pa. 1995) (“[T]he Commonwealth must establish possession of
a stolen item and that the possessor knew, or had reason to know, that the
item was stolen.”).
____________________________________________
9Thomas does not challenge the fact that the guitar was stolen, or its $2,000
valuation. See Brief of Appellant, at 25 n.3.
10Limited exceptions, delineated in 18 Pa.C.S.A. § 3903(a) and (a.2), are not
applicable to the instant case.
- 12 -
J-S33013-19
The Commonwealth need not prove actual possession, instead being
free to establish defendant’s receipt, retention, or disposition of stolen
property under a theory of constructive possession. Commonwealth v.
Brady, 560 A.2d 802, 806 (Pa. Super. 1989); see also Commonwealth v.
Davis, 280 A.2d 119, 121 (Pa. 1971) (“Absent literal possession, a defendant
can be said to be in possession of stolen goods only when it is proved that he
exercised conscious control or dominion over those goods”). In doing so, the
Commonwealth must show the defendant had “the power to control the
contraband and the intent to exercise that control.” Commonwealth v.
Grekis, 601 A.2d 1275, 1281 (Pa. Super. 1992); compare Commonwealth
v. Walters, 378 A.2d 1232, 1235–36 (allowing inference of control over
stolen goods where contraband was found near appellant’s trailer and
appellant was present at trailer during four-day period) with
Commonwealth v. Brady, 560 A.2d 802 (rejecting inference of control over
where appellant was passenger in car he did not own and stolen goods were
found in trunk).
At trial, Cauler testified that on January 16, 2018, he drove his son home
from guitar lessons, and his son left the guitar at issue in the Subaru. N.T.
Trial, 3/12/18, at 72–76. Later that night, the Subaru was stolen. Id. at 75.
On January 18, 2018, shortly after 1:00 a.m., police apprehended Thomas
driving Cauler’s Subaru and recovered Cauler’s video game controller and
phone chargers inside the vehicle. Id. at 196–99. Police later discovered
- 13 -
J-S33013-19
Cauler’s iPhone 4, iPhone 6, and iPad inside 1343 Glen Moore Circle, the
residence outside of which detectives observed Thomas unloading Fry and
Niehaus’ television. Id. at 187–90. Detectives later discovered Cauler’s guitar
had been sold to a local Guitar Center by a woman named Bridget Boyer, but
the Commonwealth did not offer any evidence connecting Boyer to Thomas,
or provide direct evidence of Thomas possessing the guitar. Id. at 213.
The jury, acting as the finder of fact, was free to find Thomas not guilty
of burglarizing Cauler’s home. See Strafford, supra at 174. The jury was
also free to infer from the facts that Thomas intended to exercise conscious
dominion over Cauler’s guitar, especially under circumstances where Thomas
was apprehended in the vehicle where Cauler stored the guitar one day after
the Subaru was reported stolen, and he possessed goods stolen from two
different homes. See Walters, supra at 1235–36 (finding constructive
possession based on appellant’s control over location where stolen goods were
stored); see also Salter, supra at 615 (allowing inferences unless “under
the facts of the case there is no rational way the trier [of fact] could make the
connection permitted by the inference.”). Consequently, we find Thomas’
conviction for RSP, graded as a third-degree felony, rests on sufficient
evidence; to hold otherwise would afford those dealing in stolen goods a
license to possess stolen property so long as he or she managed to find an
opportunity to offload ill-gotten property before arrest. See Walters, supra
at 1235–36.
- 14 -
J-S33013-19
Lastly, Thomas claims his conviction for REAP rests on insufficient
evidence, arguing the Commonwealth failed to prove he placed any other
person in danger of death or serious bodily injury. Brief of Appellant, at 29.
The Crimes Code defines REAP as follows:
§ 2705. Recklessly endangering another person
A person commits a misdemeanor of the second degree 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.A. § 2705; see Commonwealth v. Vogelsong, 90 A.3d 717, 719
(Pa. Super. 2014) (“[T]o support a conviction, the evidence must establish
that the defendant acted recklessly in a manner than endangered another
person.”). Serious bodily injury is defined as, “[b]odily 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.” 18 Pa.C.S.A. § 2301.
Consequently, “the Commonwealth must prove that the defendant had
an actual present ability to inflict harm and not merely the apparent ability to
do so. Danger, not merely the apprehension of danger, must be created.”
Commonwealth v. Cianci, 130 A.3d 780, 782 (Pa. Super. 2015). An
individual can recklessly place another in danger of serious bodily injury
without consciously attempting to cause serious bodily injury. See
Vogelsong, supra at 720 (affirming REAP conviction where defendant let her
horse twice wander unattended onto busy roadway, disregarding risk of injury
- 15 -
J-S33013-19
to passing motorists). REAP, however, “requires the element of actual danger
of death or serious bodily injury.” Cianci, supra at 783.
In the instant case, Thomas argues the Commonwealth failed to elicit
any evidence showing that anyone was actually endangered after he
abandoned the Subaru. Brief of Appellant, at 31. In response, the
Commonwealth argues two separate bases for affirming Thomas’ REAP
conviction: first, the Commonwealth argues by abandoning the Subaru in gear
on Fruitville Pike, Thomas created an unjustified risk of striking another
vehicle; second, the Commonwealth argues Thomas ignored the substantial
risk faced by the officers who were forced to bring the Subaru to a halt. See
Brief of Appellee, at 13–14.
In stating its first argument, the Commonwealth admitted “the roadway
was not busy” at the time of Thomas’ flight from the authorities. Brief of
Appellee, at 14. At trial, Officer Donnelly confirmed no other vehicles or
pedestrians were present on Fruitville Pike during Thomas’ flight. See N.T.
Trial, 3/12/18, at 172–73. Moreover, Officer Donnelley stated the Subaru
never crossed into the lane designated for opposing traffic. Id. at 174.
Though actual injury is not a requirement in proving REAP, danger to an actual
person is a required element. See Cianci, supra at 783. Thomas’ conviction
for REAP cannot rest on the danger presented to a potential motorist or
pedestrian. Id.
- 16 -
J-S33013-19
In addition to a real individual, a conviction for REAP also requires risk
of “death or serious bodily injury.” 18 Pa.C.S.A § 2705. The Commonwealth
argues Officer Donnelly and Detective Fritz—the two officers who stopped the
Subaru—were exposed to the danger of sustaining a serious bodily injury while
stopping a vehicle described by Officer Donnelly as “rolling” down an empty
road for fifty feet in approximately ten seconds.11 See N.T. Trial, 3/12/18, at
174. Detective Newman, also involved in the chase, described the scene as
follows: “Officer Donnelly [attempted] to initiate a traffic stop on [the
Subaru]. At that point, the Subaru Forester began to slow down. I’m not sure
if came to a complete stop or not, but as the vehicle was slowing down, the
driver of the vehicle hopped out[.]” Id. at 142. On these facts, we cannot
find that the officers were exposed to the danger of death or serious bodily
injury while chasing down a car that was rolling so slowly that it was mistaken
for being at a complete stop. See Cianci, supra at 782 (requiring “an actual
present ability to inflict harm[.]”).
As we cannot find support for the notion that Thomas’ actions placed
“another person in actual danger of death or serious bodily injury” we are
constrained to vacate his conviction for REAP. Cianci, supra at 782. Here,
the trial court imposed his one to two year term of incarceration for REAP to
____________________________________________
11 Officer Donnelly’s estimates of time and distance would equate to the
Subaru traveling at approximately three-and-one-half miles per hour. The
unit conversion is as follows: (50 feet / 10 seconds) × (1 mile / 5,280 feet)
× (3,600 seconds / 1 hour) = 3.4090909 miles per hour.
- 17 -
J-S33013-19
be served consecutively to his ten to twenty year term of incarceration for
burglary, and concurrently with his three to seven year terms of incarceration
for both RSP convictions. Vacating his conviction for REAP will not affect the
length of his aggregate term of imprisonment or overall sentencing scheme,
making remand unnecessary. See Commonwealth v. Thur, 906 A.2d 552,
570 (Pa. Super. 2006) (“[I]f our decision does not alter the overall scheme,
there is no need for a remand.”).
Judgment of sentence for REAP vacated. Judgment of sentence affirmed
for all other counts.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2019
- 18 -