Com. v. Beasley, R. , 2016 Pa. Super. 92 ( 2016 )

J-A07032-16
2016 Pa. Super. 92
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RASHEE BEASLEY
Appellant No. 1149 WDA 2014
Appeal from the Judgment of Sentence February 6, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001275-2013
CP-02-CR-0003835-2013
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
OPINION BY JENKINS, J.: FILED APRIL 28, 2016
Appellant Rashee Beasley appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas following his bench
trial convictions for intimidation of witnesses, terroristic threats, conspiracy
and hindering apprehension.1 We affirm.
The underlying facts and procedural history of this appeal are as
follows. On April 17, 2012, Officer Michael Kosko and Officer David Derbish
approached a Jeep Cherokee that had just parked without using a turn
signal. N.T., 11/12/2013, at 20-23. Officer Kosko asked the driver a few
questions through the window of his car. Id. at 23. After the officers
____________________________________________
1
18 Pa.C.S. §§ 4952(a)(1), 2706(a)(1), 903(c), and 5105(a)(1),
respectively.
J-A07032-16
ascertained that the driver, Jamal Knox, did not have a valid license, Knox
drove the Cherokee away from the scene quickly, with Appellant as his
passenger. Id. at 23-25. After crashing a few times, the vehicle became
disabled, and Knox and Appellant exited the Jeep through their respective
windows and fled from the police on foot. Id. at 26-28. Police recovered 30
stamp bags of heroin and $1,489.00 from Knox and two cell phones and
$323.00 from Appellant Id. at 28, 37. Additionally, Officer Gromek searched
the vehicle and found a firearm. Id. at 30. Officer Daniel Zeltner also
responded to the scene and advised the other officers that Knox, who had
identified himself as “Dante Jones,” was actually Jamal Knox. Id. at 66. He
knew this because of previous dealings with Knox. Id. Officer Zeltner had
also encountered Appellant on September 26, 2011, when Appellant fled
after Officer Zeltner pulled him over. Appellant was charged with fleeing or
attempting to elude law enforcement. Id. at 143-144. Neither the April 17,
2012 nor the September 26, 2011 incidents are the subject of this appeal,
but criminal cases relating to these incidents were pending when police
discovered the YouTube video that gave rise to most of Appellant’s present
convictions.
On November 15, 2012, Officer Aaron Spangler viewed the Facebook
page of Beaz Mooga, whom Officer Spangler believed was Appellant. Id. at
178-79. From the Facebook page, Officer Spangler accessed several links to
YouTube pages that showed rap music videos made by Knox and Appellant,
-2-
J-A07032-16
one of which was entitled “Fuck the Police.” Id. at 187. The video showed
pictures of Appellant and Knox, and the song referenced Officer Zeltner, the
officer involved in the September 26, 2011 incident, and Officer Kosko, one
of the officers involved in the April 17, 2012 incident. Id. at 192. The video
made references to killing police officers. Id. at 193. The song provides, in
relevant part:
“Fuck the Police”
This first verse is for Officer Zeltner and all you FED
force bitches and Mr. Kosko can suck my dick for
knocking my riches.
Want beef, well cracker I’m wit it, that whole department
can get it.
All these soldiers in my committee gonna fuck over you
bitches, fuck the police bitch, I said it loud
The fuckin city can’t stop me
Ya’ll gonna need Jesus ta bring me down
And he ain’t fuckin wit you dirty devils,
We makin prank phone calls and as soon as you bitches
come we bustin heavy metal (sound of gunfire)
So now (Kosko?) gonna chase me through these streets
and I’m a jam this rusty knife all in his guts and chop his
feet.
You takin money away from Beaz, and all that shit away
from me, well your shift over at three and I’m a fuck
up where you sleep.
(Unintelligible) has got you watchin my moves and talkin
bout me to your partner,
I’m watchin you to and I see better when it’s darker.
Highland Park gonna be Jurassic Park, keep on fuckin wit
me.
Hey Beaz go grab (Dre?) and (Squeeze?) and them two
two threes, It’s Mayhem.
…
The cops be on my dick like a rubber when I’m fuckin, so
them bitches better run and duck for cover when I’m
buckin.
Thetto superstar committee bitch we ain’t scared of
nothing.
-3-
J-A07032-16
I keep a forty on waist, I’m gonna wet you like a mop
nigga, clip filled to the tippy top wit som cop killas.
Fuck the police, don’t bring us no peace
That’s why I keep my heat when I’m roamin the
streets, cause if you jump out it’s gonna be a dump out.
I got my glock and best believe dog gonna bring the pump
out, and I’m hittin your chest. Don’t tell me stop cause
I’m resisting arrest.
I ain’t really a rapper, but I spit wit the best.
I ain’t carry no 38 dog, I spit wit a tec
Tha’t like 50 shots nigga, that’s enough to hit one cop on
50 blocks nigga
I said fuck the cops nigga.
They got me sittin in a cell, watchin my life just pass me,
but I ain’t wit that shit like Poploski,[2] I’m strap nasty.
…
They killed Rhine, and ever since then I’ve been mugging
you bitches.
My Northview niggas they don’t fuck wit you bitches, I
hate your fuckin guts, I hate you.
My momma told me not to put this on C.D., but I’m
gonna make this fuckin city believe me, so nigga turn
me up.
If Dre was here they wouldn’t fuck wit dis here.
Loccs in the army, when he comes back it’s real nigga, you
bootin up.
Fuck the police, I said it Loud, we’ll repeat that.
Fuck the Police, I’m blowin loud wit my seat back.
They cool and that, well Mr. Fed, if you can hear me bitch,
go tell your daddy that we’re booming bricks.
And them informants that you got, fit to be layin in the
posse and I know exactly who workin, and I’m gonna
kill him wit a glock.
Quote that!
Cause when you find that pussy lyin in the street, look at
the shells and put my shit on repeat, and that’s on.
Jesus’ blood.
____________________________________________
2
“Poploski” is the spelling in the affidavit of probable cause. In 2009,
Richard Poplawski opened fire on Pittsburgh police officers, ultimately killing
three and injuring other officers. See Commonwealth v. Poplawski, 130
A.3d 697, 708 (Pa.2015).
-4-
J-A07032-16
Let’s kill these cops, cause they don’t do us no good, pullin
your glock out cause I live in the hood.
You dirty Bitches, Bitch.
Affidavit of Probable Cause3 (emphasis added). Officer Spangler sent the
video to Officers Zeltner and Kosko, and Appellant was charged at CP-02-
CR-0003835-2013 with two counts each of intimidation of a witness or
victim, retaliation against a witness, victim or party, and terroristic threats,
and one count of criminal conspiracy.
On January 8, 2013, Detective Michael Wilkes went to Tara Beasley’s4
home to serve an arrest warrant on Knox. Paul Webb answered the door
and told the officer that only he and his sons were at the residence, but then
let the officer in after a voice called from upstairs not to let the police into
the house. Detective Wilkes saw several males upstairs and, believing him
to be Knox and calling him Knox, arrested Appellant. Appellant did not
protest or tell the detective that he was not Knox. He later identified himself
at the police station when officers asked for his name. Detective Wilkes
returned to the home and found Knox hiding in the ceiling behind tiles that
he had noticed were loose when he arrested Appellant. At CP-02-CR-
____________________________________________
3
During trial, the officers testified about some of the lyrics, and the YouTube
video was introduced into evidence.
4
Tara Beasley is Appellant’s mother.
-5-
J-A07032-16
0001275-2013, Appellant was charged with two counts of hindering
apprehension or prosecution.5
On November 21, 2013, the court found appellant guilty of two counts
each of intimidation of witnesses and terroristic threats, and one count each
of criminal conspiracy and hindering apprehension. The court acquitted
Appellant of retaliation against a witness.
On February 6, 2014, the court sentenced Appellant to 12-36 months’
incarceration, plus 2 years’ probation for intimidation of witnesses. The
court imposed concurrent 2-year terms of probation on the second
intimidation of witnesses count, and each of his 2 terroristic threat counts,
and a concurrent term of 6-12 months’ incarceration for hindering
apprehension. The court imposed no further penalties on his other
convictions.
On February 14, 2014, Appellant filed a motion to reconsider sentence,
which the court denied by operation of law on June 19, 2014. On July 18,
2014, Appellant timely filed a notice of appeal. On September 3, 2014, the
court ordered Appellant to file a 1925(b) statement by November 2, 2014.
On November 7, 2014, Appellant filed a Rule 1925(b) statement along with a
motion for nunc pro tunc extension to file a 1925(b) statement. On
____________________________________________
5
On June 26, 2013, the Commonwealth filed a motion for joinder for CP-02-
CR-0001275-2013 and 02-CR-0003835-2013, which the court granted.
-6-
J-A07032-16
December 4, 2014, the court granted Appellant’s motion and deemed
Appellant’s Rule 1925(b) statement timely filed.
Appellant raises the following issues for our review:
1. WERE [APPELLANT’S] DUE PROCESS RIGHTS UNDER
THE FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE I § 9 OF THE
PENNSYLVANIA CONSTITUTION VIOLATED WHEN HE WAS
CONVICTED OF TWO COUNTS OF 18 PA.C.S. § 2706
TERRORISTIC THREATS, TWO COUNTS OF 18 PA.C.S. §
4952 ATTEMPTED INTIMIDATION OF A WITNESS, ONE
COUNT OF 18 PA.C.S. § 903 CRIMINAL CONSPIRACY, AND
ONE COUNT OF 18 PA.C.S. § 5105 HINDERING
APPREHENSION OR PROSECUTION BASED ON LEGALLY
INSUFFICIENT EVIDENCE?
2. WITH RESPECT TO [APPELLANT’S] TWO TERRORISTIC
THREATS CONVICTIONS, WAS THE EVIDENCE TO
CONVICT HIM OF THOSE CHARGES INSUFFICIENT AS A
MATTER OF LAW, WITH THE COMMONWEALTH HAVING
FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT
EITHER APPELLANT OR A PERSON FOR WHOSE CONDUCT
HE WAS LEGALLY RESPONSIBLE HAD COMMUNICATED,
EITHER DIRECTLY OR INDIRECTLY, A THREAT — IN THIS
CASE, A PERCEIVED THREAT AGAINST THE TWO
OFFICERS CONTAINED IN THE RAP VIDEO “F— THE
POLICE” — TO EITHER OFFICER MICHAEL KOSKO OR
DETECTIVE DANIEL ZELTNER?
3. WITH RESPECT TO [APPELLANT’S] TWO ATTEMPTED
INTIMIDATION OF WITNESS CONVICTIONS, WAS THE
EVIDENCE TO CONVICT HIM OF THOSE CHARGES
INSUFFICIENT AS A MATTER OF LAW, WITH THE
COMMONWEALTH HAVING FAILED TO PROVE, BEYOND
REASONABLE DOUBT, THAT THE OBJECTIVE OF
APPELLANT AND/OR A PERSON FOR WHOSE CONDUCT HE
WAS LEGALLY RESPONSIBLE WAS, IN CREATING THE “F—
THE POLICE” RAP VIDEO AND HAVING IT UPLOADED
ONTO THE INTERNET WEBSITE YOUTUBE, TO INDUCE
EITHER OFFICER MICHAEL KOSKO OR DETECTIVE DANIEL
ZELTNER TO EITHER REFRAIN FROM TESTIFYING AGAINST
APPELLANT AND/OR HIS CO-DEFENDANT, JAMAL KNOX,
-7-
J-A07032-16
REGARDING THE EVENTS RESULTING IN THE ARREST OF
THE TWO MEN ON APRIL 17, 2012, OR ELSE TO PROVIDE
FALSE OR MISLEADING TESTIMONY REGARDING THOSE
EVENTS, OR ELSE TO FAIL TO APPEAR IN COURT TO
TESTIFY REGARDING THOSE EVENTS, WITH HIS OR THEIR
ULTIMATE GOAL BEING TO OBSTRUCT, IMPEDE, IMPAIR,
PREVENT, OR OTHERWISE INTERFERE WITH THE
ADMINISTRATION OF CRIMINAL JUSTICE?
4. WITH RESPECT TO [APPELLANT’S] CRIMINAL
CONSPIRACY CONVICTION, WAS THE EVIDENCE TO
CONVICT HIM ON THAT CHARGE INSUFFICIENT AS A
MATTER OF LAW, WITH THE COMMONWEALTH HAVING
FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT
APPELLANT HAD ENTERED INTO AN AGREEMENT WITH
JAMAL KNOX SEEKING TO COMMUNICATE A THREAT TO
EITHER OFFICER KOSKO OR DETECTIVE ZELTNER, WITH
THE ULTIMATE GOAL OF THAT COMMUNICATION BEING
TO INDUCE THE OFFICERS TO REFRAIN FROM TESTIFYING
AGAINST THEM IN THEIR PENDING CRIMINAL CASE OR
OTHERWISE SLANT THEIR TESTIMONY IN A MANNER THAT
WOULD FAVOR THE DEFENSE IN THAT CASE?
5. FINALLY, WITH RESPECT TO [APPELLANT’S] HINDERING
APPREHENSION OR PROSECUTION CONVICTION, WAS THE
EVIDENCE TO CONVICT HIM OF THAT CHARGE
INSUFFICIENT AS A MATTER OF LAW, WITH THE
COMMONWEALTH HAVING FAILED TO PROVE, BEYOND A
REASONABLE DOUBT, THAT APPELLANT WAS AWARE OF
THE FACT THAT JAMAL KNOX WAS HIDING INSIDE HIS
MOTHER’S HOUSE AND THAT HE (I.E., APPELLANT)
AFFIRMATIVELY ACTED TO CONCEAL KNOX WITHIN THAT
RESIDENCE?
Appellant’s Brief at 3-6.
Appellant’s issues challenge the sufficiency of the evidence for his
convictions.
When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
-8-
J-A07032-16
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 [trier] 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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874
A.2d 108, 120-21 (Pa.Super.2005)).
In his second issue,6 Appellant claims the Commonwealth failed to
present sufficient evidence that he communicated the video to the officers.
He argues that neither he nor Knox tried to communicate the video and that
their posting of the video on YouTube and linking it to a Facebook page does
not constitute the requisite communication because it is not direct
____________________________________________
6
Appellant’s first issue challenges the sufficiency of the evidence for all of
his convictions. Our discussion of Appellant’s second through fifth issues will
resolve his first issue.
-9-
J-A07032-16
communication. He claims that the video was not posted with intent or
reckless disregard to terrorize the police officers. He argues that because
communication is an element of terroristic threats, the evidence is
insufficient to support his conviction. We disagree.
The crime of terroristic threats is defined as follows:
§ 2706. Terroristic threats
(a) Offense defined.--A person commits the crime of
terroristic threats if the person communicates, either
directly or indirectly, a threat to:
(1) commit any crime of violence with intent to terrorize
another;
(2) cause evacuation of a building, place of assembly or
facility of public transportation; or
(3) otherwise cause serious public inconvenience, or
cause terror or serious public inconvenience with
reckless disregard of the risk of causing such terror or
inconvenience.
18 Pa.C.S. § 2706.
For a defendant to be convicted of terroristic threats,
“the Commonwealth must prove that 1) the defendant
made a threat to commit a crime of violence, and 2) the
threat was communicated with the intent to terrorize
another or with reckless disregard for the risk of causing
terror.” Commonwealth v. Tizer, 684 A.2d 597, 600
([Pa.Super.]1996). “Neither the ability to carry out the
threat, nor a belief by the person threatened that the
threat will be carried out, is an element of the offense.” In
re J.H., 797 A.2d 260, 262 (Pa.Super.2002). “Rather, the
harm sought to be prevented by the statute is the
psychological distress that follows from an invasion of
another’s sense of personal security.” Tizer, 684 A.2d at
600.
- 10 -
J-A07032-16
Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa.Super.2003).
Here, Appellant does not claim that he did not sing the words of his
rap song, which unquestionably threaten violence. Further, he does not aver
that the officers never saw the threatening video. He argues, rather, that he
did not intentionally or recklessly communicate the threat to the officers.
Here, the terroristic threats statute is clear and
unambiguous that a communication must be conveyed.
See 18 Pa.C.S.[] § 2706(a)(1); see also 1 Pa.C.S.[] §
1928(b)(1). The official comment to Section 2706 states,
“[t]he purpose of the section is to impose criminal liability
on persons who make threats which seriously impair
personal security or public convenience.” 18 Pa.C.S.[] §
2706, official comment–1972; see also 1 Pa.C.S.[] §
1921(a); Commonwealth v. Hardwick, 445 A.2d 796,
797 ([Pa.Super.]1982) (same).
Therefore, while the statute does not expressly address
whether to construe a threat as being made at the time it
is uttered or at the time it is received, we observe that a
person’s “personal security” cannot be “seriously
impair[ed]” by a threat unless he hears it. Id. Accordingly,
based on the statute’s plain meaning, our strict
construction of it, and the legislature’s stated purpose in
enacting it, we conclude that the term, “communicates,” as
used in the terroristic threats statute, contemplates that
the threat be received.
Commonwealth v. Vergilio, 103 A.3d 831, 833-34 (Pa.Super.2014)
appeal denied, 114 A.3d 416 (Pa.2015).
Terroristic threats do not have to be communicated directly. See
Commonwealth v. Kelley, 664 A.2d 123, 127 (Pa.Super.1995) (holding a
threat was communicated when the appellant gave a secretary a message to
threaten violence to certain intended recipients). Further, a defendant does
- 11 -
J-A07032-16
not need to intend to carry out the consequence of the threat to
communicate a threat. See Commonwealth v. Cancilla, 649 A.2d 991,
994 (Pa.Super.1994) (holding a threat was communicated by a phone call
that stated a bomb was in a building, although there was no bomb).
The Supreme Court of the United States addressed the subject of
Facebook posts as terroristic threats in Elonis v. United States, 135 S. Ct.
2001, 2011, 192 L. Ed. 2d 1 (2015). In that case, the defendant posted
threatening comments on Facebook in response to people having viewed his
posts. The jury convicted the defendant of terroristic threats after the trial
court instructed that the Government needed to prove that a reasonable
person would regard the defendant’s communications as threats. The
Supreme Court found this jury instruction was error because it failed to
consider the defendant’s mental state. The Supreme Court held that “[t]he
mental state requirement must therefore apply to the fact that the
communication contains a threat.” Id. at 2012. In reaching this holding, the
Court considered how the “presumption in favor of a scienter requirement
should apply to each of the statutory elements that criminalize otherwise
innocent conduct.” Id.
Here, Appellant had a link on his Facebook page to a YouTube video
titled “Fuck the Police.” Although his Facebook page did not list his full, legal
name, he used the name “Beaz Mooga” which does not completely disguise
his last name, Beasley. The rap video specifically threatened to kill Officers
- 12 -
J-A07032-16
Zeltner and Kosko “wit a glock.” We need not ponder whether deciding to
broadcast songs or linking YouTube videos to one’s Facebook page generally
indicates intent to communicate, because Appellant stated his intent by
saying in his rap song: “My momma told me not to put this on C.D., but I’m
gonna make this fuckin city believe me, so nigga turn me up.” Appellant
chose not to listen to his mother because he wanted Officers Zeltner and
Kosko to hear his message, and they did. He successfully and intentionally
communicated his threat. Thus, Appellant’s challenge to the sufficiency of
the evidence for his terroristic threats convictions merits no relief.
Next, Appellant argues there was insufficient evidence to convict him
of intimidation of a witness or attempt thereof, because the Commonwealth
did not present evidence that he posted the video on YouTube with the
intent of getting the police to do any of the enumerated objectives in the
intimidation statute.
Appellant was convicted under the following statute:
§ 4952. Intimidation of witnesses or victims
(a) Offense defined.--A person commits an offense if,
with the intent to or with the knowledge that his conduct
will obstruct, impede, impair, prevent or interfere with the
administration of criminal justice, he intimidates or
attempts to intimidate any witness or victim to:
(1) Refrain from informing or reporting to any law
enforcement officer, prosecuting official or judge
concerning any information, document or thing relating
to the commission of a crime.
- 13 -
J-A07032-16
(2) Give any false or misleading information or
testimony relating to the commission of any crime to
any law enforcement officer, prosecuting official or
judge.
(3) Withhold any testimony, information, document or
thing relating to the commission of a crime from any
law enforcement officer, prosecuting official or judge.
(4) Give any false or misleading information or
testimony or refrain from giving any testimony,
information, document or thing, relating to the
commission of a crime, to an attorney representing a
criminal defendant.
(5) Elude, evade or ignore any request to appear or
legal process summoning him to appear to testify or
supply evidence.
(6) Absent himself from any proceeding or investigation
to which he has been legally summoned.
18 Pa.C.S. § 4952.
Further, we observe:
[A]ctual intimidation of a witness is not an essential
element of the crime. The crime is committed if one, with
the necessary mens rea, “attempts” to intimidate a witness
or victim. …The trier of the facts, therefore, could find that
appellant attempted to intimidate his accuser and that he
did so intending or, at least, having knowledge that his
conduct was likely to, impede, impair or interfere with the
administration of criminal justice…. The Commonwealth is
not required to prove mens rea by direct evidence.
Frequently such evidence is not available. In such cases,
the Commonwealth may rely on circumstantial evidence.
Commonwealth v. Collington, 615 A.2d 769, 770 (Pa.Super.1992).
Here, Appellant posted a rap song on YouTube that specifically
threatened to kill Officers Zeltner and Kosko while Appellant had criminal
- 14 -
J-A07032-16
charges pending against him in which these officers were going to testify.7
This was sufficient evidence from which the court could infer that Appellant
posted the video in an attempt to interfere with the administration of the
justice system by convincing the police to withhold testimony, and from
which the court found the elements of intimidation of a witness beyond a
reasonable doubt.
Next, Appellant argues that he and Knox never conspired to commit
any crime, and thus they could not be guilty of criminal conspiracy. He
admits that they made the video together but contends it was not a crime to
do so. Again, we disagree.
The crime of criminal conspiracy is defined by statute:
§ 903. Criminal conspiracy
(a) Definition of conspiracy.--A person is guilty of
conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its
commission he:
(1) agrees with such other person or persons that they
or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.
* * *
____________________________________________
7
As previously discussed, Appellant intended to communicate his message.
- 15 -
J-A07032-16
(e) Overt act.--No person may be convicted of conspiracy
to commit a crime unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him
or by a person with whom he conspired.
18 Pa.C.S. § 903.
Appellant and Knox made a YouTube video together in which they
threatened to kill Officers Zeltner and Kosko, a communication which
supported Appellant’s terroristic threats and intimidation of witness
convictions. Thus, his creation of the video was an overt act, and he and
Knox were part of a criminal conspiracy to commit terroristic threats and
intimidation of witnesses.
In his final issue, Appellant argues that he did not affirmatively hinder
the apprehension of Knox, and that his decision to refrain from stating his
name or telling police that he was not Knox was permissible. He claims that,
in the criminal information, the Commonwealth asserted that he had
“concealed” Knox in his home, but it did not assert that he harbored him.
Further, he contends the Commonwealth failed to produce evidence that
Appellant knew Knox was hiding in the ceiling of his mother’s home, a few
feet above where police accidentally arrested Appellant because they
believed he was Knox. Appellant’s final issue merits no relief.
The relevant statute regarding hindering apprehension or prosecution
provides:
§ 5105. Hindering apprehension or prosecution
- 16 -
J-A07032-16
(a) Offense defined.--A person commits an offense if,
with intent to hinder the apprehension, prosecution,
conviction or punishment of another for crime or violation
of the terms of probation, parole, intermediate punishment
or Accelerated Rehabilitative Disposition, he:
(1) harbors or conceals the other;
(2) provides or aids in providing a weapon,
transportation, disguise or other means of avoiding
apprehension or effecting escape;
(3) conceals or destroys evidence of the crime, or
tampers with a witness, informant, document or other
source of information, regardless of its admissibility in
evidence;
(4) warns the other of impending discovery or
apprehension, except that this paragraph does not
apply to a warning given in connection with an effort to
bring another into compliance with law; or
(5) provides false information to a law enforcement
officer.
18 Pa.C.S. § 5105.
In Commonwealth v. Haynes, 116 A.3d 640, 657 (Pa.Super.2015),
appeal denied, 125 A.3d 1199 (Pa.2015), this Court held that evidence of a
defendant giving shelter to a fugitive for one night was sufficient to sustain
the jury’s finding of hindering apprehension.
Here, the Commonwealth presented evidence that Appellant was
upstairs in a room in his mother’s home when the police came to the door
looking for Knox. Someone in that room called down and asked the man
who had opened the door not to let the police inside the house, but the
police came inside anyway. When the officer entered the room, he saw scuff
- 17 -
J-A07032-16
marks on the wall, leading up toward the ceiling, where a ceiling tile was out
of place. He arrested Appellant, calling him “Knox,” and Appellant did not
correct him or tell the officer that Knox was in the ceiling. The court
reasonably inferred that Appellant was aware Knox was hiding in the ceiling
from the evidence that both Knox and Appellant were in Appellant’s mother’s
home, Appellant was aware police were searching for Knox, and there were
scuffmarks on the walls leading up toward a displaced ceiling tile.
Although Appellant did not affirmatively lie to police and stated his
true name when questioned, like the appellant in Haynes, Appellant
concealed Knox’s whereabouts so that he would not be arrested, and
harbored Knox. Although Appellant contends that he was not charged with
“harboring” Knox, the statute specifically states that one is guilty of
hindering apprehension if one conceals or harbors another. Here, there was
sufficient evidence for the court to conclude that Appellant concealed Knox.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2016
- 18 -