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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

BASHEER HAIRSTON, : No. 1118 EDA 2019

:

 Appellant :

Appeal from the Judgment of Sentence Entered March 13, 2019,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0009394-2017

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

BASHEER HAIRSTON, : No. 1119 EDA 2019

:

 Appellant :

Appeal from the Judgment of Sentence Entered March 13, 2019,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0009395-2017

BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 17, 2020

Basheer Hairston appeals from the judgments of sentence entered on 

March 13, 2019, by the Court of Common Pleas of Philadelphia County 

following his conviction of two counts of recklessly endangering another 

person (“REAP”) and one count each of possessing an instrument of crime 
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(“PIC”) and fleeing or attempting to elude an officer, following a bench trial. 

The trial court sentenced appellant to an aggregate term of two years’ 

probation. After careful review, we affirm.

The trial court provided the following factual history:

During the underlying trial, Officer [Vincent] Visco 

testified that on June 29, 2017 at approximately 

12:52 pm, he and his partner, Officer [Antoine] 

Wesley, were on routine patrol in a marked police 

vehicle when they observed a silver 2016 BMW 535i 

sedan with dark tinted windows traveling northbound 

on Front Street approaching Allegheny Avenue. 

Officer Visco testified that he and his partner pulled 

the vehicle over for the allegedly illegal tint, and both 

officers approached the vehicle with Officer Visco on 

the driver’s side and his partner on the passenger 

side. Further, Officer Visco testified that the windows 

of the vehicle were up requiring him to yell three (3) 

times for them to be lowered, to which [appellant] 

ultimately complied. Once the windows were lowered, 

Officer Visco noticed [appellant] was alone in the 

vehicle, [appellant’s] hands were shaking and he was 

breathing heavily. Officer Visco stated that he asked 

for [appellant’s] license, registration and insurance; 

[appellant] moved towards the glove box, but instead 

of going into the glovebox, [appellant] pressed the 

ignition button twice to start the vehicle. According 

to Officer Visco, it was after the second push the 

vehicle started, [appellant] turned the wheel to the 

right and abruptly accelerated forward at a high rate 

of speed causing Officer Wesley to step back quickly 

and requiring Officer Visco to release the door handle. 

Officer Visco testified that he and his partner began 

pursuit of [appellant] but were ordered shortly 

thereafter to terminate their pursuit. Finally, 

Officer Visco stated that a couple of minutes later he 

was notified that the vehicle was located by another 

officer on the 1900 block of West Atlantic Street.
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Next, there was a stipulation between counsels that 

Officer Avery[

1] recovered the vehicle on June 29, 

2017 from the aforementioned location. Following 

this stipulation, Detective [Ryan] Particelli testified, in 

pertinent parts, that on July 1, 2017 at approximately 

11:30 a.m., he executed a search warrant on the 

recovered vehicle in which multiple letters and other 

documents containing [appellant’s] name and/or 

address were found on the floor behind the passenger 

seat. 

Trial court opinion, 8/7/19 at 1-2 (citations to the record omitted).

The Commonwealth charged appellant with one count each of 

manufacture, delivery, or possession of a controlled substance with intent to 

manufacture or deliver, possession of a controlled substance by person not 

registered, PIC, REAP, and fleeing or attempting to elude an officer2 at 

Docket No. CP-51-CR-0009394-2017 (“Docket No. 9394”). The 

Commonwealth also charged appellant with one count each of PIC, simple 

assault, and REAP3 at Docket No. CP-51-CR-0009395-2017 (“Docket 

No. 9395”).

Following a bench trial, the trial court convicted appellant of PIC, REAP, 

and fleeing or attempting to elude an officer at Docket No. 9394 and REAP at 

 

1 Officer Avery’s first name does not appear in the record.

2 35 P.S. §§ 780-113(a)(30) and (16), and 18 Pa.C.S.A. §§ 907(a), 2705, and 

3733(a), respectively.

3 18 Pa.C.S.A. §§ 907(a), 2701(a), and 2705, respectively.
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Docket No. 9395. The trial court subsequently imposed an aggregate 

sentence of two years’ probation. 

Appellant filed separate notices of appeal from each judgment of 

sentence. The trial court ordered appellant to file a concise statement of 

errors complained of on appeal at each docket number, and appellant timely 

complied. The trial court subsequently filed an opinion pursuant to 

Pa.R.A.P. 1925(a) addressing the appeals both docket numbers. We have 

consolidated appellant’s two appeals sua sponte pursuant to Pa.R.A.P. 513.4

Appellant raises the following issues for our review:

[1.] Whether the evidence was sufficient to sustain 

the conviction of [PIC?]

[2.] Whether the evidence was sufficient to sustain 

the conviction for [REAP?]

Appellant’s brief at Docket No. 9394 at 5 (full capitalization and citation 

omitted); appellant’s brief at Docket No. 9395 at 5 (full capitalization 

omitted).

5

Our well-settled standard of review for sufficiency of the evidence claims 

is as follows:

As a general matter, our standard of 

review of sufficiency claims requires that 

 

4 As noted by the trial court, the charges at both docket numbers arise from 

the same incident. (Notes of testimony, 1/9/19 at 63.)

5 Appellant and the Commonwealth filed separate briefs for each docket 

number. In order to differentiate between the briefs, we will use the trial 

court docket numbers.
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we evaluate the record in the light most 

favorable to the verdict winner giving the 

prosecution the benefit of all reasonable 

inferences to be drawn from the evidence. 

Evidence will be deemed sufficient to 

support the verdict when it establishes 

each material element of the crime 

charged and the commission thereof by 

the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need 

not establish guilt to a mathematical 

certainty. Any doubt about the 

defendant’s guilt is to be resolved by the 

fact finder unless the evidence is so weak 

and inconclusive that, as a matter of law, 

no probability of fact can be drawn from 

the combined circumstances.

The Commonwealth may sustain its 

burden by means of wholly circumstantial 

evidence. Accordingly, [t]he fact that the 

evidence establishing a defendant’s 

participation in a crime is circumstantial 

does not preclude a conviction where the 

evidence coupled with the reasonable 

inferences drawn therefrom overcomes 

the presumption of innocence. 

Significantly, we may not substitute our 

judgment for that of the fact finder; thus, 

so long as the evidence adduced, 

accepted in the light most favorable to the 

Commonwealth, demonstrates the 

respective elements of a defendant’s 

crimes beyond a reasonable doubt, the 

appellant’s convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-723 

(Pa.Super. 2013) (internal quotations and citations 

omitted). Importantly, “the [fact finder], which 

passes upon the weight and credibility of each 

witness’s testimony, is free to believe all, part, or 

none of the evidence.” Commonwealth v. 

Ramtahal, [] 33 A.3d 602, 607 ([Pa.] 2011).
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Commonwealth v. Sebolka, 205 A.3d 329, 336-337 (Pa.Super. 2019).

In his first issue, appellant contends that the Commonwealth failed to 

prove beyond a reasonable doubt that he is guilty of PIC. (Appellant’s brief 

at Docket No. 9394 at 9.) In order to obtain a conviction of PIC, the 

Commonwealth must prove, beyond a reasonable doubt, that the defendant 

possessed an object that is an instrument of crime and that he or she intended 

to use the object for a criminal purpose. In re A.V., 48 A.3d 1251, 1253

(Pa.Super. 2012), citing In re A.C., 763 A.2d 889, 890 (Pa.Super. 2000); see 

also 18 Pa.C.S.A. § 907(a). “The Crimes Code defines an “instrument of 

crime” as “(1) [a]nything specially made or specially adapted for criminal use

[or] (2) [a]nything used for criminal purposes and possessed by the actor 

under circumstances not manifestly appropriate for lawful uses it may have.” 

In re A.V., 48 A.3d at 1253, quoting 18 Pa.C.S.A. § 907. See also 

Commonwealth v. Vida, 715 A.2d 1180, 1183 (Pa.Super. 1998) 

(recognizing that a car could be considered an instrument of crime).

Here, appellant specifically argues that the Commonwealth failed to 

introduce any evidence that the car being driven by appellant was “specially 

made or specially adapted for criminal use.” (Appellant’s brief at Docket

No. 9394 at 9, quoting 18 Pa.C.S.A. § 907(c)(2).) Appellant further argues 

that, “there was no basis for the conclusion that an automobile is something 

‘commonly used for criminal purposes.’ Therefore, the Commonwealth failed 
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to prove all of the elements of [PIC] beyond a reasonable doubt.” (Appellant’s 

brief at Docket No. 9394 at 12 (citation omitted).)

Appellant’s argument misses the mark.6 When viewing the evidence 

presented at trial in the light most favorable to the Commonwealth, as the 

verdict winner, we find that the Commonwealth met its burden in establishing 

the elements of PIC beyond a reasonable doubt. Indeed, the Commonwealth’s 

evidence establishes that appellant possessed an instrument of crime as 

defined by the Crimes Code and that appellant intended to use the instrument 

for a criminal purpose. See In re A.V., 48 A.3d at 1253-1254. Specifically, 

the record reflects that appellant used his car to flee and elude Officers Visco 

and Wesley after the officers pulled him over.

7

 We, therefore, find that 

appellant acted with the requisite intent to use the car for a criminal purpose. 

Accordingly, appellant’s first issue is without merit.

In his second issue, appellant contends that the Commonwealth failed 

to introduce sufficient evidence to warrant a conviction of REAP as it pertains 

to Officer Visco. (Appellant’s brief at Docket No. 9395 at 9.) “A person 

commits [REAP,] a misdemeanor of the second degree if he recklessly engages 

 

6 The Commonwealth notes that appellant appears to base his argument on 

an outdated version of the PIC statute. (Commonwealth’s brief at Docket 

No. 9394 at 9-10, citing Act of July 6, 1995, P.L. 238, No. 27, § 1; 

Commonwealth v. Magliocco, 883 A.2d 479, 485-486 (Pa. 2005).)

7 Appellant conceded that he was guilty of fleeing or attempting to elude an 

officer. (Notes of testimony, 1/9/19 at 44-45.)
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in conduct which places or may place another person in danger of death or 

serious bodily injury.” 18 Pa.C.S.A. § 2705; see also Commonwealth v. 

Bullock, 170 A.3d 1109, 1121 (Pa.Super. 2017), appeal denied, 184 A.3d 

944 (Pa. 2018). This court has further held as follows:

The crime of REAP “is a crime of assault which requires 

the ‘creation of danger.’” [Commonwealth v. 

Rivera, 503 A.2d 11, 12 (Pa.Super. 1985) (en banc)] 

(citation omitted). “As such, . . . there must be an 

‘actual present ability to inflict harm.’” Id. (citation 

omitted). In [Commonwealth v.] Trowbridge, we 

explained this risk of actual danger as follows:

By requiring the creation of danger, we 

think it is plain under § 2705 that the 

mere apparent ability to inflict harm is not 

sufficient. Danger, and not merely the 

apprehension of danger, must be created. 

Therefore, we think that § 2705 retains 

the common law assault requirement of 

actual present ability to inflict harm. See 

also Commonwealth v. Goosby, [] 380 

A.2d 802 ([Pa.Super.] 1977) (where 

defendant pointed gun and pulled trigger, 

but one live cartridge in the gun misfired, 

there is sufficient evidence to convict for 

recklessly endangering).

[] 395 A.2d [1337,] 1340 [(Pa.Super. 1978)] 

(citations omitted).

Commonwealth v. Reynolds, 835 A.2d 720, 727-728 (Pa.Super. 2003).

Here, appellant specifically argues that the Commonwealth failed to 

produce sufficient evidence establishing that appellant’s conduct placed 

Officer Visco “in danger of death or serious bodily injury.”’ (Appellant’s brief 

at Docket No. 9395 at 10.) As noted by appellant, the record reflects that 
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Officer Visco’s hand was on the car door handle when appellant sharply turned

the steering wheel to the right and drove away from the officers. (Notes of 

testimony, 1/9/19 at 25-26.) Upon viewing the evidence in the light most 

favorable to the Commonwealth, we find that the Commonwealth has met its 

burden in this case. Indeed, as noted by the trial court:

[T]here can be no reasonable doubt that a substantial 

danger of serious bodily injury was created by 

[appellant’s] conduct, and but for the officers acting 

as quickly as they did, serious bodily injury or death 

could have easily resulted. Indeed, [appellant] clearly 

could not have been sure Officer Visco was going to 

release the car door or that Officer Wesley was going 

to get out of the way fast enough to avoid being 

struck. [Appellant] acted in conscious disregard for 

what could and probably would have happened to 

either officer had they not retreated as quickly as they 

did.

Trial court opinion, 8/7/19 at 6-7. Accordingly, we find that appellant’s second 

issue is without merit.

Judgments of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/20