J-S84013-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MAURICE DERICK EDWARDS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 908 MDA 2017

Appeal from the Judgment of Sentence May 18, 2017

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0001022-2014

BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 23, 2018

Appellant, Maurice Derick Edwards, appeals from the judgment of 

sentence entered on May 18, 2017, in the York County Court of Common 

Pleas. We affirm.

The trial court set forth the facts and procedural history of this matter 

as follows:

On January 10, 2014 around 9:00 p.m., Officer Benjamin 

Smith and Officer Vogel were on patrol in the area of South 

George Street and Princess Street in York in a marked police car. 

The intersection was well lit by street lights and other business 

lights surrounding.

While they were yielding to northbound traffic, Officer 

Smith saw a vehicle without its headlights on at night on the 

east side of the intersection on Princess Street. As the officers 

turned onto Princess Street toward that vehicle, the officer 

looked at the driver, who was within four to five feet of him. 

Officer Smith made eye contact with the driver and described the 

look at the driver as extremely well, noting that Officer Smith 

was not driving faster than five, ten miles an hour. Then, Officer 
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Smith turned around to pull the driver over for the equipment 

violation. By the time the officers caught up with the vehicle, the 

vehicle still did not have its headlights on, and, so, Officer Vogel 

ran the information for the vehicle. When the vehicle turned onto 

Jackson Street, Officer Smith turned on the red and blue 

emergency lights, and the police car chirped. The vehicle did not 

pull over and continued east on East Jackson, without stopping 

at several safe, well-lit spots.

Then, Officer Smith turned on the sirens. The vehicle 

turned on a couple turn signals and turned right onto McKenzie 

Street from Jackson Street. While the driver’s speed started to 

increase after the turn onto McKenzie Street, the speeds were 

not that excessive. However, the vehicle had gotten a lead on 

the officers. Because of weather and time, the officer’s

supervisor then ordered the officers to terminate the pursuit, 

and they stopped on McKenzie Street. Officer Smith observed 

the vehicle increase speed, run through a stop sign and turn 

onto another road, where they lost sight of the vehicle.

The police car was equipped with a dashboard camera 

which automatically starts recording thirty seconds before an 

officer turns on the emergency lights. The recording of the 

pursuit with the vehicle was played during trial.

During the pursuit, Officer Vogel had run the license plate 

of the vehicle, and found out that the registered owner was Lori 

(or Laura) Keys. Then, Officer Vogel ran a MISSILE warrant 

check on Keys’ address and discovered that [Appellant] lived 

there and had an outstanding warrant. Officer Vogel ran a 

warrant check during that time and pulled up Appellant’s JNet, 

driver’s license, photos, based on that warrant information. At 

the time, Officer Smith identified the man in the photo from the 

JNet, drivers license as the driver of the vehicle. Officer Smith 

was one hundred percent certain about that identification that 

night and during trial. The officer identified the photo as 

[Appellant].

An officer was sent out to the registered vehicle owner’s 

address, but [Appellant] was not there. Officer Smith noted that 

he did not feel the need to follow up with Laura Keys since then.

During the trial, Appellant testified that on January 10, 

2014, he was at a bar from around 8:00 p.m. until around 11:30 
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p.m. with another woman. Appellant testified that Laura Keys is 

his mother and that he uses Laura Keys’ address for mail. 

However, he stated during trial that [he] did not live there at the

time or stay there that evening.

Appellant testified that at the time, his mother was in a 

relationship with Derick Speller who, like [Appellant], was a 

dark-skinned man, with a beard, nice hair, and good-trim hair. 

Speller was about two years older than the Appellant, and 

Speller’s picture was introduced at trial. Appellant stated that on 

that date, he was not aware of any arrest warrant, though he did 

find out about a ticket warrant later on.

The Appellant’s mother, Laura Keys, also testified during 

trial. She testified that on that date and time, Derick Speller was 

driving the vehicle, and she was a passenger in the car. She 

stated the following:

a police vehicle turned his lights on . . . . She kind of 

assumed they were in the officer’s way. She wasn’t 

quite sure, so they kind of tried to stop, tried to wait 

to see if someone was getting out, but felt like they

were in the way, so what she instructed the driver to 

do because . . . it was not clear whether they were 

being pulled over or not, was to turn onto this one 

side street. If the vehicle would have turned, she 

would have asked the driver to stop. The officer 

proceeded to just go by and there was no speeding, 

no fleeing, no eluding.

[N.T., 5/18/17, at 42]

When an officer arrived at her home that night, she told 

him that Appellant was not driving the vehicle. Several years 

later, Keys wrote a statement and gave it to the Public 

Defenders’ Office.

Trial Court Opinion, 7/14/17, 2-7 (internal quotation marks and footnotes 

omitted).

Appellant was charged with fleeing or attempting to elude police 

officers, careless driving, duties at stop sign, and failure to display lighted 
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lamps.1 Following a nonjury trial, the trial court found Appellant guilty of 

fleeing or attempting to elude police officers, duties at stop sign, and the 

headlamp violation. N.T., 5/18/17, at 62. The trial court found Appellant 

not guilty of careless driving. Id. On the fleeing or attempting to elude 

count, the trial court sentenced Appellant to a term of sixty days to twentytwo months of incarceration. The trial court imposed $25.00 fines on the 

convictions for duties at stop sign and the headlamp violation. This timely 

appeal followed. Both the trial court and Appellant have complied with 

Pa.R.A.P. 1925.

On appeal, Appellant raises the following issue for this Court’s 

consideration:

Whether the Commonwealth[] presented sufficient evidence at 

trial to sustain the trial court’s verdict finding [Appellant] guilty 

of Fleeing or Attempting to Elude a Police Officer, Duties at Stop

Sign, and Period For Requiring Lighted Lamps, specifically 

whether the police officer’s momentary and fleeting glance at the 

eyes of the vehicle driver was sufficient to identify the Appellant 

as the driver, despite the testimony from the Appellant’s mother 

that her then-boyfriend and not the Appellant was driving the 

vehicle that evening?

Appellant’s Brief at 3 (footnotes omitted).

In reviewing the sufficiency of the evidence, we must determine 

whether the evidence admitted at trial and all reasonable inferences drawn 

therefrom, viewed in the light most favorable to the Commonwealth as 

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1 75 Pa.C.S. §§ 3733(a), 3714(a), 3323(b), and 4302(a)(1), respectively.
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verdict winner, were sufficient to prove every element of the offense beyond 

a reasonable doubt. Commonwealth v. Diamond, 83 A.3d 119 (Pa. 

2013). “[T]he facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence.” Commonwealth v. 

Colon-Plaza, 136 A.3d 521, 525-526 (Pa. Super. 2016) (quoting 

Commonwealth v. Robertson–Dewar, 829 A.2d 1207, 1211 (Pa. Super. 

2003)). It is within the province of the fact-finder to determine the weight 

to be accorded to each witness’s testimony and to believe all, part, or none 

of the evidence. Commonwealth v. Tejada, 107 A.3d 788, 792-793 (Pa. 

Super. 2015). The Commonwealth may sustain its burden of proving every 

element of the crime by means of wholly circumstantial evidence.

Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa. Super. 2016).

Moreover, as an appellate court, we may not re-weigh the evidence and 

substitute our judgment for that of the fact-finder. Commonwealth v. 

Rogal, 120 A.3d 994 (Pa. Super. 2015).

Appellant does not argue that the Commonwealth failed to establish 

the elements of fleeing or attempting to elude police officers, duties at a 

stop sign, and failure to display lighted lamps. The entirety of Appellant’s 

argument focuses only on Officer Smith’s identification of Appellant as the 

driver. Appellant’s Brief at 6-11.

This Court has recognized that:

[e]vidence of identification need not be positive and certain to 

sustain a conviction. Although common items of clothing and 
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general physical characteristics are usually insufficient to support 

a conviction, such evidence can be used as other circumstances 

to establish the identity of a perpetrator. Out-of-court 

identifications are relevant to our review of sufficiency of the 

evidence claims, particularly when they are given without 

hesitation shortly after the crime while memories were fresh. 

Given additional evidentiary circumstances, any indefiniteness 

and uncertainty in the identification testimony goes to its weight.

Commonwealth v. Ovalles, 144 A.3d 957, 969-970 (Pa. Super. 2016) 

(quoting Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en 

banc)) (internal quotation marks and citations omitted). Moreover, “[a] 

challenge to the weight of the evidence is distinct from a challenge to the 

sufficiency of the evidence in that the former concedes that the 

Commonwealth has produced sufficient evidence of each element of the 

crime, but questions which evidence is to be believed.” Commonwealth v. 

Charlton, 902 A.2d 554, 561 (Pa. Super. 2006).

Appellant asserts that the Commonwealth’s evidence failed to prove 

that Appellant was the driver of the vehicle. Appellant’s Brief at 9. 

Specifically, Appellant avers that because Officer Smith “only caught a 

fleeting glimpse at the driver,” the Commonwealth failed to prove that 

Appellant was the driver beyond a reasonable doubt. Appellant’s Brief at 9. 

In support of his argument, Appellant points to his statement that he was 

not in his mother’s car that night, and his mother’s testimony that her thenboyfriend, Derick Speller, was driving the car at the time of the infractions

and pursuit. Id. at 8-9. After review, we are constrained to conclude that 

Appellant’s claim of error is directed entirely to the credibility of the 
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testimony presented at trial, and as such, it is a challenge to the weight, not 

the sufficiency, of the evidence. Commonwealth v. Palo, 24 A.3d 1050, 

1055 (Pa. Super. 2011).2

The record reveals, however, that Appellant failed to preserve this 

issue. Appellant was required to raise before the trial court any challenge to 

the weight of the evidence in either an oral or written motion pursuant to 

Pa.R.Crim.P. 607. Accordingly, Appellant has waived this claim. See

Commonwealth v. Lopez, 57 A.3d 74, 80-81 (Pa. Super. 2012) (holding 

that, pursuant to Pa.R.Crim.P. 607, a challenge to the weight of the evidence 

must be raised with the trial judge or it will be deemed waived).

Because Appellant has waived his sole issue on appeal, he is not 

entitled to appellate relief. Accordingly, we affirm Appellant’s judgment of 

sentence.3

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2 While the trial court opinion addressed Appellant’s claim of error based on 

the sufficiency of the evidence, because Appellant did not properly present 

the trial court a challenge to the weight of the evidence, we may affirm the 

decision of a trial court on any correct basis. See Commonwealth v. 

Wilcox, 174 A.3d 670, 674 n.4 (Pa. Super. 2017) (explaining that the 

Superior Court is not bound by the rationale of the trial court, and we may 

affirm the trial court’s order on any basis) (citation omitted).

3 Assuming, for the sake of argument, that Appellant had preserved his 

weight claim, he would be entitled to no relief. “The weight of the evidence 

is exclusively for the finder of fact, which is free to believe all, part, or none 

of the evidence, and to assess the credibility of the witnesses.... An 

appellate court cannot substitute its judgment for that of the jury on issues 

of credibility.” Lopez, 57 A.3d at 80-81 (internal citations omitted). Herein, 

the trial court found Officer Smith’s testimony more credible than that of 

(Footnote Continued Next Page)
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/23/2018

(Footnote Continued) _______________________

Appellant or Appellant’s mother. Trial Court Opinion, 7/14/17, at 8-9. 

Officer Smith testified he was “one hundred percent” certain Appellant was 

operating the vehicle. N.T., 5/18/17, at 22. Because we may not disturb 

the trial court’s credibility determinations, Appellant’s challenge to the 

weight of the evidence, if preserved, would have failed.