J-S15020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AARON GABRIEL MUMMERT

Appellant No. 1218 MDA 2014

Appeal from the Judgment of Sentence of June 26, 2014

In the Court of Common Pleas of Adams County

Criminal Division at No.: CP-01-CR-0000831-2013

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.: FILED APRIL 06, 2015

Aaron Gabriel Mummert appeals from the judgment of sentence that 

was imposed following his jury convictions of fleeing or attempting to elude 

a police officer and tampering with or fabricating physical evidence.1 

Counsel for Mummert has petitioned for leave to withdraw as counsel on the 

ground that Mummert’s issues on direct appeal are wholly frivolous. We 

grant the petition for leave to withdraw as counsel, and we affirm the 

judgment of sentence. 

The trial court set forth the underlying history of this case as follows:

On June 11, 2013, at approximately 4:00 p.m., Trooper George 

Ross (“Trooper Ross”) of the Pennsylvania State Police, 

Gettysburg Barracks, was in a marked patrol car positioned in 

____________________________________________

1 75 Pa.C.S.A. § 3733 and 18 Pa.C.S.A. § 4910, respectively.
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the area of State Route 234 and Route 15 in Adams County, 

Pennsylvania. Trooper Ross received a bulletin reporting that a 

sport bike style motorcycle was traveling at a high rate of speed 

with an operator who was not wearing a shirt or a helmet. A few 

minutes after receiving the bulletin, Trooper Ross heard a sport 

bike approaching before seeing it through his rearview mirror as 

it approached a stop sign, failed to stop, and made a right turn 

onto S.R. 234. During the approximately one second during 

which the Trooper was able to observe the front and side of the 

bike, he noted that the motorcycle was dark blue and the 

operator was a white male with short dark hair, that he was not 

wearing a shirt, and that he was wearing riding glasses.

Upon making these observations, Trooper Ross turned on his 

police cruiser’s lights and sirens and followed the sport bike in an 

effort to make a traffic stop. The bike was traveling faster than 

the trooper, who was going 35 to 50 miles per hour. Trooper 

Ross saw the motorcycle again when it was about 100 yards 

ahead of him before the motorcycle “increased speed 

significantly” and passed two or three vehicles on a curve. The 

trooper gave chase and his cruiser reached speeds of 115 to 120 

miles per hour, yet the motorcycle continued to pull away. 

Trooper Ross testified that, at the closest, he was 100 to 150 

yards from the motorcycle. Trooper Ross then met up with 

Officer Greg Morehead (“Officer Morehead”) of the Reading 

Township Police Department and the two pulled their vehicles to 

the side of the road. After Trooper Ross provided a description 

of the motorcycle and the rider to Officer Morehead, Officer 

Morehead mentioned the name Aaron Mummert and Trooper 

Ross testified that the name “clicked in [his] head” as matching 

the description of the operator.

Trooper Ross and Officer Morehead then traveled to where they 

knew [Mummert] to be living, at 8 Ewell Drive in Lake Meade, 

arriving at approximately 4:20 p.m. When Trooper Ross arrived, 

he noted that there was a blue motorcycle in the driveway that 

did not look like the sport bike he had attempted to stop. Before 

Trooper Ross had exited his vehicle, [Mummert] came out of the 

house, wearing a black t-shirt, dark jeans, boots, and dark riding 

glasses on top of his head. Upon interacting with Trooper Ross, 

[Mummert] appeared nervous, as evidenced by the fact that he 

was pacing and the veins in his face and neck were pulsing. 

Without being questioned about a motorcycle or the reason 

officers were at his house, [Mummert] pointed to the motorcycle 

in the driveway and said, “that’s my bike.” When asked about 
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his sport bike,4[Mummert] initially stated that it was at his 

grandmother’s house in Hanover, Pennsylvania, before 

eventually admitting that he had placed it in the house to keep it 

out of the rain, despite the fact that it was not raining and there 

was no testimony that rain was forecasted that day.

4 Officer Morehead had recently interacted with 

[Mummert] on an earlier occasion when he was riding his 

sport bike.

The officers recovered a sport bike from [Mummert’s] basement 

around 5 p.m. which Trooper Ross stated was “exactly” the bike 

that he had seen in his rear view mirror. The basement smelled 

of exhaust fumes and the bike’s engine was hot to the touch. 

The officers then placed [Mummert] under arrest and seized the 

bike as evidence. Later, as Trooper Ross was typing up charges, 

[Mummert] stated, “all this for $107;” Trooper Ross testified that 

$107 is the approximate cost of a stop sign violation after 

accounting for fines, fees, and other costs.

On cross examination, Trooper Ross testified that Officer 

Morehead had asked [Mummert] to take off his shirt. 

[Mummert] complied and turned around to show his entire torso 

and Trooper Ross said “I don’t know about that” because he did 

not recall the rider having tattoos to the extent that he observed 

on [Mummert].5 Officer Morehead then testified that he had 

previously interacted with [Mummert] approximately two weeks 

before the incident at issue, on May 22, 2013, on which occasion 

[Mummert] was riding his sport bike without a shirt and with a 

backwards baseball cap. Officer Morehead also routinely patrols 

Ewell Drive in Lake Meade and had seen motorcycles in 

[Mummert’s] driveway while it was raining.

5 Trooper Ross testified: “For that second that he went 

by, I wasn’t able to observe the tattoos as the distance 

and things it was quick. I just knew it was a white male 

who operated a motorcycle that was dark blue with that 

detailing. There was radio traffic going between 

Pennsylvania State Police, Adams County, even to the 

guard shack, and to local PDs where somewhere tattoos” 

were mentioned.

* * *

The jury returned a verdict of guilty on counts of fleeing or 

attempting to elude a police officer and tampering with or 
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fabricating physical evidence. On June 26, 2014, [Mummert] 

was sentenced to fifteen (15) to thirty (30) months on his 

conviction of fleeing or attempting to elude [a] police officer and 

three (3) to six (6) months for tampering with or fabricating 

physical evidence, to run concurrently to his sentence on Count 

1. On July 7, 2013, [Mummert] filed his Motion for Post-Trial 

Relief, . . . which was denied by th[e trial c]ourt. On July 8, 

2013, [Mummert] filed a Motion to Order Bail Pending 

Defendant’s Motion for Post-Trial Relief, which th[e trial c]ourt 

also denied. [Mummert] filed his Notice of Appeal on July 21, 

2014. His Concise Statement of Matters Complained of on 

Appeal Pursuant to Pa.[R.A.P.] 1925(b) followed on August 14, 

2014.

Trial Court Opinion (“T.C.O.”), 9/22/2014, at 1-4, 7-8. On September 22, 

2014, the trial court entered its Pa.R.A.P. 1925(a) opinion.

On December 9, 2014, counsel for Mummert filed an Anders brief in 

which he presented issues that might arguably support an appeal.2 Counsel 

filed his petition for leave to withdraw as counsel on the same day, stating 

that, after a conscientious examination of the record, he determined that the 

appeal would be wholly frivolous. See Petition for Leave to Withdraw as 

Counsel, 12/9/2014, at unnumbered page 2 ¶ 4. Attached to the petition is 

a copy of his letter to Mummert advising him of counsel’s intent to seek 

withdrawal as his counsel and of Mummert’s right to retain new counsel or to 

proceed with his appeal pro se, and providing him with a copy of the Anders 

____________________________________________

2 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

McClendon, 434 A.2d 1185 (Pa. 1981), abrogated in part by 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
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brief filed with this Court. See id. at Attachment. Mummert has not 

responded to counsel’s petition for leave to withdraw.

[I]n the Anders brief that accompanies . . . counsel’s petition to 

withdraw, counsel must: (1) provide a summary of the 

procedural history and facts, with citations to the record; (2) 

refer to anything in the record that counsel believes arguably 

supports the appeal; (3) set forth counsel’s conclusion that the 

appeal is frivolous; and (4) state counsel’s reasons for 

concluding that the appeal is frivolous. Counsel should articulate 

the relevant facts of record, controlling case law, and/or statutes 

on point that have led to the conclusion that the appeal is 

frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). 

Anders counsel must also provide a copy of the Anders petition 

and brief to the appellant, advising the appellant of the right to 

retain new counsel, proceed pro se or raise any additional points 

worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical requirements of 

Anders, this Court will deny the petition to withdraw and 

remand the case with appropriate instructions (e.g., directing 

counsel either to comply with Anders or file an advocate’s brief 

on Appellant’s behalf). By contrast, if counsel’s petition and 

brief satisfy Anders, we will then undertake our own review of 

the appeal to determine if it is wholly frivolous. If the appeal is 

frivolous, we will grant the withdrawal petition and affirm the 

judgment of sentence. However, if there are non-frivolous 

issues, we will deny the petition and remand for the filing of an 

advocate’s brief.

Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008) 

(citations omitted). 

In the instant case, counsel has complied substantially with the 

Anders and Santiago requirements. Counsel has submitted a brief that 

summarizes the case and cites to the record, see Anders Brief at 5-9; 
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refers to anything that might arguably support the appeal, id. at 10; and 

sets forth his reasoning and conclusion that the appeal is frivolous, id. at 10-

14. See Santiago, 978 A.2d at 361. Counsel has filed a petition for leave 

to withdraw as counsel, sent Mummert a letter advising him that counsel 

found no non-frivolous issues, provided Mummert with a copy of the Anders

brief, and notified Mummert of his right to retain new counsel or proceed pro 

se. Mummert has not responded. 

“Once counsel has satisfied the [Anders] requirements, it is then this 

Court’s duty to conduct its own review of the trial court’s proceedings and 

render an independent judgment as to whether the appeal is, in fact, wholly 

frivolous.” Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) 

(citation omitted). 

In the Anders brief, counsel identified four potential questions for our 

review:

1. Was the weight of the evidence at trial not sufficient for 

verdicts of guilty on fleeing or attempting to elude a police 

officer and tampering with or fabricating physical evidence?

2. Did the [t]rial [c]ourt err in allowing the Commonwealth to 

show a photograph of [Mummert’s] motorcycle that they saw, 

and allowing the Commonwealth to put a similar motorcycle in 

the courtroom for the witnesses to testify that it was similar to 

the one they saw?

3. Did the [t]rial [c]ourt err by not allowing [Mummert] to 

remove his shirt to show his large tattoo to the jury, when none 

of the witnesses referenced that the driver of the motorcycle had 

a tattoo?

4. Did the [t]rial [c]ourt err in denying [Mummert’s] PostSentence Motion on these issues?
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Anders Brief at 4. 

In the first issue presented in the Anders brief, counsel asserts that 

“the weight of the evidence was not sufficient for convictions of fleeing or 

attempting to elude a police officer and tampering with or fabricating 

physical evidence.” Id. at 11. We disagree.

Our Supreme Court has held that:

[t]he weight of the evidence is exclusively for the finder of fact 

who is free to believe all, part, or none of the evidence and to 

determine the credibility of the witnesses. An appellate court 

cannot substitute its judgment for that of the finder of fact. 

Thus, we may only reverse the lower court’s verdict if it is so 

contrary to the evidence as to shock one’s sense of justice. 

Moreover, where the trial court has ruled on the weight claim 

below, an appellate court’s role is not to consider the underlying 

question of whether the verdict is against the weight of the 

evidence. Rather, appellate review is limited to whether the trial 

court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 409 (Pa. 2003).

In reviewing Mummert’s weight claim, the trial court stated:

Here, the guilty verdicts rendered after [Mummert’s] jury trial 

clearly cannot be characterized as so contrary to the weight of 

the evidence so as to shock one’s sense of justice. . . . 

Throughout [Mummert’s] trial, numerous witnesses credibly 

testified that they observed a blue sport bike which looked at 

least similar to the photograph they were shown of [Mummert’s] 

bike. Nearly all of the eyewitnesses gave a description of the 

rider that matched [Mummert’s] general physical appearance 

and the matter in which he was dressed on June 11, 2013, 

including testimony that the rider had short and dark hair, was 

not wearing a shirt, was wearing riding glasses, and was wearing 

dark pants. Trooper Ross testified that he activated his lights 

and sirens upon seeing a blue sport bike meeting the description 

of the speeding vehicle in the bulletin fail to stop at a stop sign 
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and several witnesses testified that that they observed the rider 

looking behind him in the direction of following police cruisers.

T.C.O. at 9. The trial court also identified inconsistencies in the evidence, 

including “the fact that virtually none of the witnesses mentioned that the 

shirtless driver had significant tattoos, as [Mummert] does,” and “confusion 

in witness testimony regarding whether the rider was wearing a shirt and the 

fact that [Mummert] had a normal and somewhat lengthy conversation with 

Ms. Glass at the Lake Meade guard shack before proceeding into the housing 

development.” Id. at 11, 11 n.9. The record demonstrates, however, that 

the motorcycle was traveling at high speeds, Notes of Testimony (“N.T.”), 

4/3/2014, at 24, and that Carol Glass talked to Mummert on his sport 

motorcycle at the gatehouse less than five minutes before the police arrived, 

id. at 119. Therefore, considering the motorcycle’s high rate of speed, it is 

not unreasonable that eyewitnesses were unable to clearly identify whether 

the rider had tattoos on his torso, nor that Mummert would arrive at the 

gatehouse to have enough time to converse with Carol Glass before taking 

his bike into his basement before the police arrived.

It is well-settled that “[w]here the evidence is conflicting, it is the 

province of the fact finder to determine credibility; it is the prerogative of 

the fact finder to believe all, part or none of the evidence presented.” 

Commonwealth v. Ellis, 549 A.2d 1323, 1334 (Pa. Super. 1988) (citation 

omitted). Here, the jury weighed the evidence and drew its own conclusions 

regarding its credibility. The trial court, in reviewing that determination, 
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assessed the strengths and weaknesses of the Commonwealth’s case against 

Mummert and determined that the verdicts of guilt did not shock the court’s 

conscience. Mummert points to no evidence which was “so clearly of greater 

weight [than those accepted by the jury] that to ignore them, or to give 

them equal weight with all the facts, is to deny justice.” Commonwealth v. 

Lewis, 911 A.2d 558, 565 (Pa. Super. 2006). Accordingly, the trial court 

did not abuse its discretion, and we determine that Mummert’s claim that 

the verdicts were against the weight of the evidence is frivolous.

In his second issue, Mummert would contend that the trial court “erred 

in allowing the Commonwealth to show a photograph of [Mummert’s] 

motorcycle to each witness without any prior motorcycle line-up, or the 

motorcycle they saw, and allowing the Commonwealth to put a similar 

motorcycle in the courtroom for the witnesses to testify that it was similar to 

the one they saw.” Anders Brief at 11-12. We disagree.

“In reviewing a trial court’s ruling on the admissibility of evidence, our 

standard of review is one of deference. Questions concerning the 

admissibility of evidence are within the sound discretion of the trial court, 

and its discretion will not be reversed absent a clear abuse of discretion.” 

Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super. 2014) 

(citations and internal quotation marks omitted).

Preliminarily, we observe that Mummert failed to object to the 

admission of the identification of his motorcycle at trial, and has thus waived 

this issue on appeal. See Pa.R.A.P. 302(a); Commonwealth v. Olsen, 82 
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A.3d 1041, 1050 (Pa. Super. 2013) (“A defendant must make a timely and 

specific objection at trial or face waiver of [his] issue on appeal.”) (citation 

omitted).

Moreover, it is well-settled that identification of inanimate objects does 

not require the Commonwealth to proffer a line-up in order to be admissible:

[T]here is no basis for applying the identification 

procedures applicable to suspects to testimony identifying 

inanimate objects and we decline to extend cases 

protecting the accused’s rights to a fair pre-trial 

identification to the pre-trial identification of physical 

evidence. There is a difference between an identification 

of a defendant and of an inanimate object. The due 

process concerns implicated in identification of a defendant 

are not implicated in the identification of a vehicle. 

Identification of an accused tends to be direct proof of the 

case against him, while that of an inanimate object is only 

indirect proof of the defendant’s guilt. . . . 

Thus[, in Commonwealth v. Chmiel, 889 A.2d 501, 523-24 

(Pa. 2005),] the Court found that “the risks inherent in 

identification of inanimate objects go to the weight and 

sufficiency of the evidence instead of admissibility,” and such 

identification evidence is properly submitted to the jury.

Commonwealth v. Crork, 966 A.2d 585, 588-89 (Pa. Super. 2009).

Accordingly, even if Mummert had preserved this issue for our review, 

the trial court did not err by permitting witnesses to identify Mummert’s 

motorcycle without conducting a “motorcycle line-up.” This issue is frivolous 

and would not merit relief.

In his third issue, Mummert contends that the trial court “erred by not 

allowing [Mummert] to remove his shirt to show his large tattoo to the jury, 
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when none of the witnesses referenced that the driver of the motorcycle had 

a tattoo.” Anders Brief at 12. We disagree.

As previously stated, on review of questions of admissibility of 

evidence, we defer to the trial court’s discretion. See Thompson, 106 A.3d 

at 754.

Before evidence may be admitted, it must be authenticated. 

Pennsylvania Rule of Evidence 901 governs the authentication of 

evidence. Rule 901 states, “The requirement of authentication 

or identification as a condition precedent to admissibility is 

satisfied by evidence sufficient to support a finding that the 

matter in question is what its proponent claims.” Pa.R.E. 

901(a).

Commonwealth v. Smith, 47 A.3d 862, 865 (Pa. Super. 2012) (case 

citations omitted); see also Pa.R.E. 901, Comment (“In some cases, real 

evidence may not be relevant unless its condition at the time of trial is 

similar to its condition at the time of the incident in question. In such cases, 

the party offering the evidence must also introduce evidence sufficient to 

support a finding that the condition is similar.”).

Here, the trial court determined that Mummert had failed to 

demonstrate that his tattoos at the time of trial were the same since June 

11, 2013, when he was riding the sport bike without a shirt. N.T. at 145. 

Absent such proof, the court concluded that evidence of what his tattoos 

looked like at trial could not be authenticated and was, therefore, unreliable 

and inadmissible. Id.; see T.C.O. at 15. Nonetheless, Mummert introduced 

the fact that he had tattoos on his torso at trial by specifically describing 
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them, which would further make the request to remove his shirt for the jury 

duplicative. N.T. at 158-59. Meanwhile, many of the eyewitnesses testified 

that they did not remember whether or not the operator of the sport bike 

had tattoos, so a specific showing of his tattoos where none of the witnesses 

denied that he had them would not be relevant to whether they were able to 

identify him as the operator. See N.T. at 63-64. Accordingly, the trial court 

did not abuse its discretion by not allowing Mummert to remove his shirt. 

This issue is frivolous and without merit.

Finally, Mummert contends that the trial court erred in denying his 

post-sentence motion. Anders Brief at 12. Specifically, Mummert 

challenges the denial of his post-sentence motion for an arrest of judgment 

or a new trial for the same reasons argued now on appeal. Id. at 12-13. 

We disagree.

We review a trial court’s denial of a post-sentence motion for an abuse 

of discretion. See Commonwealth v. Moore, 978 A.2d 988, 993 (Pa. 

Super. 2009). “An abuse of discretion is not merely an error of judgment, 

but is rather the overriding or misapplication of the law, or the exercise of 

judgment that is manifestly unreasonable, or the result of bias, prejudice, illwill or partiality, as shown by the evidence of record.” Commonwealth v. 

Belknap, 105 A.3d 7, 10 (Pa. Super. 2014) (citation omitted).

As previously discussed, we have reviewed the trial court’s disposition 

of Mummert’s issues raised in his post-sentence motion and on appeal, and 

conclude that the trial court did not abuse its discretion where the issues he 
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raised are frivolous and without merit. Furthermore, upon independent 

review, we find no other non-frivolous basis for appeal. Therefore, we 

conclude that Mummert’s appeal is wholly frivolous. O’Malley, 957 A.2d at 

1266.

Judgment of sentence affirmed. Petition for leave to withdraw as 

counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2015