J-S75001-19

2020 PA Super 156

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

CHRISTOPHER ALLEN STEELE

Appellant No. 23 WDA 2019

Appeal from the Judgment of Sentence Entered December 18, 2018

In the Court of Common Pleas of Erie County

Criminal Division at No: CP-25-CR-0001105-2018

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

OPINION BY STABILE, J.: FILED JULY 06, 2020

Appellant, Christopher Allen Steele, appeals from his aggregate

judgment of sentence of 66—180 months’ imprisonment for, inter alia,

aggravated assault, reckless endangerment, possession of an instrument of 

crime, and criminal use of a communication facility.1 Appellant contends that 

the evidence was insufficient to sustain these convictions. We hold that the 

evidence was sufficient to sustain Appellant’s convictions for aggravated 

assault, reckless endangerment, and possession of an instrument of crime. 

The evidence was insufficient, however, to sustain Appellant’s conviction for 

criminal use of a communication facility. Accordingly, we reverse Appellant’s 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a)(1) and (4), 2705, 907(b), and 7512(a), 

respectively. 
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conviction for criminal use of a communication facility and remand for 

resentencing on all remaining convictions.

The record reflects that on March 27, 2018, Appellant drove his truck

from his place of business to 23rd and Brandes Streets in Erie, Pennsylvania.

Lydia Vicario, Appellant’s close friend and employee,

2 accompanied Appellant 

as a passenger in his truck. Appellant exited the truck at 23rd and Brandes

and approached a red Nissan Sentra, while Vicario remained seated in the 

truck. Several minutes later, Appellant returned to the truck and stated 

angrily that he had been robbed while selling drugs to the Sentra’s occupants. 

N.T., 10/16/18, at 36-41, 62.

The Sentra drove away, and Appellant sped after it. As Appellant’s truck 

drew closer, he began shooting at the Sentra with a firearm from the driver’s 

side window. Id. at 41-46. Prior to trial, Vicario told police that “she had 

been shot at,” and that Appellant had “fir[ed] back to protect her.” Id. at 20. 

During trial, however, the Commonwealth asked Vicario whether anyone shot 

at her. Vicario answered, “That day I did believe that there was something 

else that happened, but I feel like there was just so much commotion, I don’t 

believe nobody else was shooting.” Id. at 48. Vicario added that she was not 

close enough to the Sentra to see if any weapons were inside that vehicle. 

Id. The trial court asked, “Let me be clear. You’re chasing the other vehicle, 

____________________________________________

2 Appellant ran an establishment called Little Italy’s Trading Post. N.T. 

10/17/18, at 72.
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though. It’s not chasing your vehicle, right?” Id. Vicario answered, “Yeah.” 

Id.

Several blocks after shooting at the Sentra, Appellant rammed into it

with his truck. The Sentra lost control and crashed into a car (or cars) parked 

on the street. A Mitsubishi Mirage was destroyed, and a Dodge Neon suffered 

damage.

3

 Id. at 24-25, 41-46, 72-75.

Appellant drove away from the crash scene. According to Vicario, 

Appellant drove away from the scene of the collision and asked her to drive. 

At some point after asking her to drive, Appellant turned on a police scanner 

app on his iphone in an attempt to avoid detection by the police. Id. At 59-

61.

Neither Appellant nor Vicario called 911. N.T. 10/17/18, at 119. Fortyfive minutes after the crash, Sergeant Onderko of the Erie Police stopped 

Appellant’s truck. As the sergeant placed Appellant in handcuffs, he heard his 

own voice coming out of Appellant’s pocket. He removed an iphone from 

Appellant’s pocket and saw the main screen running a police scanner into Erie 

police agencies. Id. at 41-50. 

Sergeant Onderko found a .22 caliber Smith & Wesson M&P model 

firearm partially underneath the passenger seat whose barrel was still warm 

____________________________________________

3 The trial transcript is not clear whether the Sentra itself struck the Mirage, 

the Neon, or both vehicles. What is clear, however, is that the Sentra, Mirage 

and Neon all suffered damage after Appellant’s truck knocked the Sentra out 

of control.
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and whose magazine was empty, indicating that all bullets in the magazine 

had been fired. Sergeant Onderko testified that, based on his experience, he 

knew that firearm barrels remain warm after being used repeatedly. He also 

found shell casings, ammunition cartridges and nine baggies of marijuana 

elsewhere in the passenger compartment. The police discovered gunshot 

residue on Appellant’s person but did not find any weapons in the Sentra or 

any gunshot residue on the Sentra’s occupants. Id. at 11, 21, 28-35, 44-45, 

53-60. 

Appellant testified in his own defense. He claimed that someone in the 

Sentra robbed him at 23rd and Brandes Streets, but as he left that location in 

his truck, he came upon a second, independent robbery occurring nearby. The 

participants in the second robbery decided to terminate that robbery and 

chase him at high speed in a silver minivan. The Sentra blocked Appellant’s 

escape from the silver minivan, so Appellant shot at the Sentra to get it out 

of his way, either by shooting out its tires or shooting its occupants. Id. at

72-103.

The jury found Appellant guilty of two counts of aggravated assault 

under 18 Pa.C.S.A. § 2702(a)(1) and (a)(4), two counts of reckless 

endangerment, possession of an instrument of crime, criminal use of a 

communication facility, possession of drug paraphernalia, propulsion of a 

missile onto a roadway and possession of a controlled substance. On 

December 18, 2018, the trial court imposed consecutive sentences of 

imprisonment of 54-120 months for aggravated assault, 6-36 months for 
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criminal use of communication facility and 6-24 months propulsion of a missile 

onto a roadway.

4

 Appellant filed a motion for reconsideration of sentence, 

then a notice of appeal while his motion for reconsideration was pending, and 

then a pro se petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 

9541-9546. Ultimately, the trial court denied the Appellant’s motion for 

reconsideration and PCRA motion and granted Appellant leave to appeal nunc 

pro tunc. Both Appellant and the trial court complied with Pa.R.A.P. 1925. 

The trial court filed an opinion stating that Appellant’s claim of insufficient 

evidence was “boilerplate” and devoid of merit. Trial Ct. Op., 4/11/19, at 3.

On May 7, 2019, this Court dismissed this appeal due to Appellant’s 

failure to file his brief. On July 19, 2019, Appellant filed a motion to reinstate 

the appeal. On August 2, 2019, this Court reinstated this appeal, and both 

parties have now filed briefs.

Appellant raises two issues in this appeal:

1. Was there insufficient evidence to convict [Appellant] of two 

counts of aggravated assault in violation of 18 Pa.C.S.A. § 

[2702(a)(1)] and [(a)(4)], and two counts of recklessly 

endangering another person in violation of 18 Pa.C.S.A. § 2705?

2. Was there insufficient evidence to convict [Appellant] of 

possessing an instrument of a crime in violation of 18 Pa.C.S.A. § 

907(b) and criminal use of a communication facility in violation of 

18 Pa.C.S.A. § 7512(a)?

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4 The court imposed a concurrent sentence of imprisonment for possession of 

an instrument of crime. With regard to Appellant’s remaining convictions, the 

court either imposed no further sentence or ruled that they merged for 

sentencing purposes. 
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Appellant’s Brief at 4. 

When 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 verdict 

winner, were sufficient to prove every element of the offense beyond a 

reasonable doubt. Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 

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

need not preclude every possibility of innocence.” Commonwealth v. ColonPlaza, 136 A.3d 521, 525–26 (Pa. Super. 2016). It is within the province of 

the fact-finder to determine the weight to accord to each witness’s testimony 

and to believe all, part or none of the evidence. Commonwealth v. Tejada, 

107 A.3d 788, 792–93 (Pa. Super. 2015). The Commonwealth may sustain

its burden of proving every element of the crime by means of wholly 

circumstantial evidence. Commonwealth v. Crosley, 180 A.3d 761, 767 

(Pa. Super. 2018). 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, 1001 (Pa. Super. 2015).

A person is guilty of aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) 

when he “attempts to cause serious bodily injury to another . . . under 

circumstances manifesting extreme indifference to the value of human life.” 

A person is guilty of aggravated assault under Section 2702(a)(4) when he 

“attempts to cause . . . bodily injury to another with a deadly weapon.” 
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The Crimes Code defines bodily injury as “impairment of physical 

condition or substantial pain,” 18 Pa.C.S.A. § 2301, and serious bodily injury 

as “bodily 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.” Id.

“For aggravated assault purposes, an attempt is found where an 

accused who possesses the required, specific intent acts in a manner which 

constitutes a substantial step toward perpetrating a serious bodily injury upon 

another.” Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) 

(internal quotations omitted). Under the plain language of Sections 

2702(a)(1) and (a)(4), the Commonwealth need only show that the defendant 

attempted to cause serious bodily injury to another, not that serious bodily 

injury actually occurred. Commonwealth v. Galindes, 786 A.2d 1004, 1012 

(Pa. Super. 2001) (“[e]ven though [the intended victim] was not struck by 

any bullets, the act of firing a gun toward him constitutes an attempt to cause 

serious bodily injury” and thus was sufficient to prove aggravated assault).

The Crimes Code defines a “deadly weapon” as “any firearm, whether 

loaded or unloaded, or . . . any other device or instrumentality which, in the 

manner in which it is used or intended to be used, is calculated or likely to 

produce death or serious bodily injury.” 18 Pa.C.S.A. § 2301. Although a 

properly used automobile may not be inherently dangerous, it may become a 

deadly weapon by being used in a manner calculated or likely to produce death 
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or bodily injury. “Motor vehicles still outdistance firearms as the most 

dangerous instrumentality in the hands of irresponsible persons in our society 

today.” Commonwealth v. Scales, 648 A.2d 1205, 1209 (Pa. Super. 1994); 

see also Commonwealth v. Battiato, 619 A.2d 359, 362 (1993), abrogated 

on other grounds, 781 A.2d 1136 (Pa. 2001) (upholding conviction under 

Section 2702(a)(4) where appellant struck victim and car in which victim was 

occupant).

“If a defendant introduces evidence of self-defense, the Commonwealth 

bears the burden of disproving the self-defense claim beyond a reasonable 

doubt.” Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa. 2011). The 

use of force against a person is justified “when the actor believes that such 

force is immediately necessary for the purpose of protecting himself against 

the use of unlawful force” by the other person. 18 Pa.C.S.A. § 505(a). A selfdefense claim thus entails three elements: (1) the defendant reasonably 

believed that he was in imminent danger of death or serious bodily injury and 

that it was necessary to use deadly force against the victim to prevent such 

harm; (2) the defendant was free from fault in provoking the difficulty which 

culminated in his use of deadly force; and (3) the defendant did not violate 

any duty to retreat. Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 

2012). 

Viewed in the light most favorable to the Commonwealth, the evidence 

was sufficient to sustain Appellant’s convictions for aggravated assault under 
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Section 2702(a)(1). The evidence demonstrates that after a drug sale to the 

Sentra’s occupants went awry, Appellant became angry and chased the Sentra 

at high speed while firing his entire magazine of bullets at its occupants. 

Several blocks later, Appellant smashed his truck into the Sentra, causing a 

collision between the Sentra and two other vehicles and destroying one of the 

other vehicles. Although there was no evidence that the Sentra’s occupants 

incurred injury, Appellant’s acts of firing his weapon repeatedly and crashing 

his truck into the Sentra demonstrated an “attempt[] to cause serious bodily 

injury to another . . . under circumstances manifesting extreme indifference 

to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1). Galindes, 786 A.2d 

at 1012; Battiato, 619 A.2d at 362. 

The same evidence was sufficient to sustain Appellant’s conviction under 

Section 2702(a)(4), because he attempted to cause bodily injury to the 

Sentra’s occupants with two deadly weapons, his firearm and his truck. The

firearm is a deadly weapon under Section 2301. The truck is a deadly weapon 

because Appellant drove it into the Sentra violently enough to cause a serious 

collision involving two other vehicles, an act calculated to cause death or 

serious bodily injury to the Sentra’s occupants.

The evidence also was sufficient to disprove Appellant’s claim of selfdefense. Appellant testified that he was robbed by the Sentra’s occupants, 

and as he drove away, a second group of robbers began chasing him in a silver 

minivan. Appellant claimed that he had to shoot at the Sentra because it was 
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blocking his escape route from the minivan. The Commonwealth countered 

Appellant’s testimony with the testimony of Vicario, a passenger in Appellant’s 

truck and an eyewitness to the events. Vicario testified that Appellant chased 

after the Sentra at high speed, fired at the Sentra with his firearm and rammed 

his truck into the Sentra several blocks later. Vicario made no mention at all 

of a second robbery, a silver minivan chasing after Appellant’s truck, or of any 

need to escape the minivan by shooting at the Sentra. The jury was free to 

believe, and clearly did believe, Vicario’s version of the events instead of 

Appellant’s which it obviously found to be not credible. Accepting her version 

of the events as true, we hold that the evidence does not support Appellant’s 

claim of self-defense. Appellant was the instigator of the attack on the 

Sentra’s occupants, not a victim entitled to use deadly force to protect himself.

The same evidence was sufficient to sustain Appellant’s conviction for 

reckless endangerment under 18 Pa.C.S.A. § 2705, which requires the 

Commonwealth to prove that the defendant “recklessly engage[d] in conduct 

which place[d] or may [have] place[d] another person in danger of death or 

serious bodily injury.” Id. Once again, the evidence shows that Appellant 

became angry after the drug sale went awry, chased after the Sentra at high 

speed, shot repeatedly at the Sentra with his firearm, and crashed his truck 

into the Sentra, causing collisions with other vehicles. This was reckless 

conduct that placed the Sentra’s occupants in danger of death or serious bodily 

injury. Commonwealth v. Hartzell, 988 A.2d 141, 143-44 (Pa. Super. 
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2009) (evidence demonstrated reckless endangerment where from distance 

of approximately thirty yards, defendant fired his gun into creek near bridge, 

approximately twenty-five to thirty feet away from victims on bridge while 

cursing at them); Commonwealth v. Picchianti, 600 A.2d 597, 600 (Pa. 

Super. 1992) (evidence that defendant drove at high speed, forced several 

vehicles off roadway and refused to stop for police road blocks was sufficient 

to demonstrate reckless endangerment).

The evidence also was sufficient to sustain Appellant’s conviction for 

possession of an instrument of crime under 18 Pa.C.S.A. § 907(b), which 

occurs when the defendant “possesses a firearm . . . with intent to employ it 

criminally.” 18 Pa.C.S.A. § 907(b). Angered by the outcome of the drug 

transaction, Appellant chased the Sentra at high speed down city streets and 

then shot at the Sentra’s occupants repeatedly with his firearm. Although 

Appellant testified that he has a license to carry a firearm, this did not entitle 

him to use his firearm for criminal purposes. 

Finally, Appellant argues that the evidence was insufficient to sustain 

his conviction for criminal use of a communication facility under 18 Pa.C.S.A. 

§ 7512. We agree. 
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The Crimes Code defines this offense as “us[ing] a communication 

facility5to commit, cause or facilitate the commission or the attempt 

thereof of any crime which constitutes a felony under this title or 

under . . . the Controlled Substance, Drug, Device and Cosmetic Act6.” 

18 Pa.C.S.A. § 7512(a) (emphasis added). The bolded language, which we 

will call the “felony element,” does not require that the defendant be charged 

with the underlying felony, but it does require evidence of conduct that a 

communication facility be used to complete or attempt a felony. 

The Commonwealth does not argue that Appellant used the scanner to 

commit aggravated assault against the Sentra’s occupants. Nor would this 

argument have been successful, since the evidence shows that Appellant did 

not turn on the scanner until after driving away from the location of the 

collision with the Sentra. Instead, the Commonwealth argued during trial that 

Appellant used the police scanner to evade the police. Similarly, the court 

instructed the jury that it could find Appellant guilty under Section 7512 if 

Appellant “us[ed] that cell phone to try to evade the police . . .” N.T. 

____________________________________________

5 A communication facility is “a public or private instrumentality used or useful 

in the transmission of signs, signals, writing, images, sounds, data or 

intelligence of any nature transmitted in whole or in part, including, but not 

limited to, telephone, wire, radio, electromagnetic, photoelectronic or photooptical systems or the mail.” 18 Pa.C.S.A. § 7512(c). Appellant does not 

dispute that a police scanner is a communication facility.

6 35 P.S. §§ 780-101 through 780-144.
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10/18/18, at 77. The felony element, however, requires more. The evidence 

must show that evading police with a scanner was done to cause or facilitate 

the commission or the attempt of a felony—but the Commonwealth fails to 

identify any such felony. Since the evidence did not satisfy the felony element 

of Section 7512, we conclude that the evidence was insufficient to sustain 

Appellant’s conviction under this statute. 

Because reversal of this conviction upsets the trial court’s sentencing 

scheme, we will vacate all of Appellant’s sentences and remand for 

resentencing on all convictions to give the trial court the opportunity to 

restructure its sentencing scheme. Commonwealth v. Goldhammer, 517 

A.2d 1280, 1283–84 (Pa. 1986); Commonwealth v. Williams, 871 A.2d 

254, 266 (Pa. Super. 2005) (if trial court errs in its sentence on one count in 

multi-count case, all sentences for all counts will be vacated so court can 

restructure its entire sentencing scheme).

Judgments of sentence on all convictions except for criminal use of 

communication facility affirmed. Judgment of sentence for criminal use of 

communication facility reversed. Case remanded for resentencing on all 

convictions. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/6/2020