J-S18027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RAMON VASQUEZ

Appellant No. 1171 MDA 2015

Appeal from the Judgment of Sentence April 29, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0004704-2013

BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED MARCH 23, 2016

Ramon Vasquez appeals from his judgment of sentence, imposed in 

the Court of Common Pleas of Berks County, after a jury found him guilty of 

flight to avoid apprehension1and related offenses. Upon careful review, we 

affirm. 

Around 3:00 p.m. on June 19, 2013, Vasquez entered the office of 

Magisterial District Judge Wally Scott to turn himself in on an outstanding 

warrant. N.T. Trial, 4/15/14, at 51. At the time, Vasquez believed that the 

outstanding warrant was for a summary offense. Id. After discovering that 

Vasquez had an outstanding warrant for misdemeanor theft, Judge Scott 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 5126.
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called Vasquez into his courtroom and informed him of this fact. Id. at 55-

56. Judge Scott informed Vasquez of his rights and read him the affidavit of 

probable cause and complaint from the bench. Id. When Judge Scott had 

finished and handed Vasquez the arraignment information sheet, Vasquez 

told the judge that there had been a mistake and that his girlfriend had 

contacted the police department to drop the charges against him. Id. at 59-

60. Judge Scott agreed to call Vasquez’s girlfriend to ask if she wanted to 

go forward with the charges. Id. at 60-61. 

Vasquez testifies that, at this point, he told the guard, Kyley Scott, 

that he was going to use the bathroom. Id. at 120. As Judge Scott hung up 

the phone, Vasquez stood up from his chair and put on his backpack and 

hat, as if preparing to leave. Id. at 62. Judge Scott repeatedly directed 

Vasquez to retake his seat and walked out from behind the bench and stood 

at the top of the courtroom’s exit ramp. As Vasquez approached the 

courtroom door, Judge Scott positioned himself between Vasquez and the 

threshold, blocking Vasquez’s exit. Kyley Scott grabbed Vasquez and 

attempted to pull him back into the courtroom. Vasquez shook off Kyley 

Scott’s grasp, pushed past Judge Scott, and exited the courtroom. Id. at 

121.

Vasquez then exited the building and ran towards his motorcycle, 

which was parked outside on the street. Luis Negron, who was taking a 

cigarette break outside of a business across the street, witnessed Vasquez 

fleeing from the building, with Judge Scott and Kyley Scott trailing behind 
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him. Id. at 100-01. Negron ran across the street and grabbed Vasquez by 

the back of the shoulders as he attempted to start his motorcycle. Vasquez 

then revved the engine suddenly and reared back on the bike, freeing 

himself of Negron’s grip. Vasquez then took off down the street at a high 

rate of speed. Id. at 101-02. Shortly thereafter, Vasquez crashed his 

motorcycle into a guardrail. Id. at 109. As Vasquez attempted to restart 

the motorcycle, he was approached by off-duty Reading Police Officer 

Christian Morar, who had been pursuing him since he left Magisterial Judge 

Scott’s office. Id. at 110. After identifying himself as a police officer, 

Officer Morar approached Vasquez with his firearm drawn and ordered him 

to stop. When Officer Morar came within arm’s length of Vasquez, he 

reached out with his hand and pushed Vasquez away from the motorcycle. 

The push caused Vasquez to fall backwards, allowing Officer Morar to grab 

the keys from the ignition. N.T. Omnibus Pretrial Hearing, 1/10/14, at 44. 

After securing his own vehicle and grabbing his taser, Officer Morar then 

pursued Vasquez on foot, but soon lost sight of him. Id. at 45. Vasquez 

later turned himself in to his bail bondsman and was taken to Berks County 

Prison. Id. at 127.

The trial court gave the following account of the procedural history of 

this case:

On April 15, 2014, following a jury trial, [Vasquez] was found 

guilty of flight to avoid apprehension, trial or punishment and 

other related offenses. On April 29, 2014, [Vasquez] was 

sentenced to nine months to two years of incarceration in a state 

correctional facility. [Vasquez] was represented at trial and 
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sentencing by Holly B. Freeney, Esquire, of the Berks County 

Public Defender’s Office.

On April 29, 2014, this court granted Ms. Feeney’s Motion 

for Leave to Withdraw as Counsel, and appointed Nicholas 

Stroumbakis, Esquire, to represent [Vasquez] on Appeal. On or 

about November 19, 2014, [Vasquez] filed a pro se Motion for 

Withdrawal of Counsel and Appointment of Replacement 

Counsel, which this court interpreted to be a petition filed 

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541-

9546. Accordingly, on December 2, 2014, this court appointed 

Osmer S. Deming, Esquire, to represent [Vasquez].

On June 11, 2015, Attorney Deming filed an Amended 

Petition for Post Conviction Collateral Relief in which he sought to 

have [Vasquez’s] direct appellate rights reinstated, nunc pro 

tunc. This court granted [Vasquez’s] Amended Petition that 

same day, and on July 9, 2015, Attorney Deming filed a Notice 

of Appeal on [Vasquez’s] behalf. On July 13, 2015 the court 

ordered [Vasquez] to file a Concise Statement of Errors 

Complained of on Appeal. [Vasquez] complied with this court’s 

order on August 3, 2015.

Trial Court Opinion, 9/18/15, at 1-2. The trial court filed its Pa.R.A.P. 

1925(a) memorandum opinion on September 18, 2015. Vasquez raises the 

following two issues on appeal:

1. Was the evidence sufficient to support the conviction for flight 

to avoid apprehension?

2. Was the verdict against the weight of the evidence to support 

the conviction for flight to avoid apprehension?

Appellant’s Brief, at 5. 

Vasquez claims the evidence was insufficient to prove beyond a 

reasonable doubt that he acted with the intent to avoid apprehension, trial 

or punishment or that he intentionally attempted to elude law enforcement. 

Appellant’s Brief, at 14-15. Vasquez argues that he arrived at Magisterial 

Judge Scott’s office with the intent to turn himself in to authorities and then 
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only fled after being attacked by Judge Scott and his staff. He also asserts 

that his flight cannot be characterized as an intentional attempt to elude law 

enforcement because Judge Scott and his security guard are not law 

enforcement and he did not know that Officer Morar was an off-duty police 

officer. Id. at 15.

 Our standard of review in assessing a challenge to the sufficiency of 

the evidence is well-settled. “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.” Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. 

Super. 2013). “Any doubts concerning an appellant’s guilt [are] to be 

resolved by the trier of fact unless the evidence was so weak and 

inconclusive that no probability of fact could be drawn therefrom.” 

Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007). “[T]he 

Commonwealth may sustain its burden of proving every element of the 

crime beyond a reasonable doubt by means of wholly circumstantial 

evidence.” Commonwealth v. Perez, 931 A.2d 703, 707 (Pa. Super. 

2007). 

Section 5126 of the Crimes Code defines the crime of flight to avoid 

apprehension, trial or punishment as:

(a) Offense defined.—A person who willfully conceals himself 

or moves or travels within or without the Commonwealth with 

the intent to avoid apprehension, trial or punishment commits a 
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felony of the third degree when the crime which he has been 

charged with or has been convicted of is a felony and commits a 

misdemeanor of the second degree when the crime he has been 

charged with or has been convicted of is a misdemeanor.

18 Pa.C.S. § 5126(a). This Court has elaborated on the intent prong of 

section 5126 as follows:

[T]he plain language of the statute requires that the defendant 

intend to avoid apprehension, trial or punishment. The statute 

does not mandate that the defendant have knowledge of the 

precise grading of the offense for which he is attempting to avoid 

capture. The intent element of the crime is separate and apart 

from whether the person has been convicted or is charged with a 

felony. Furthermore, nothing in the statutory language requires 

that police have knowledge of the underlying charge or 

conviction. It is sufficient for the defendant to intentionally 

elude law enforcement to avoid apprehension, trial or 

punishment on a charge or conviction. 

Commonwealth v. Steffy, 36 A.3d 1109, 1111-12 (Pa. Super. 2012).

Here, the trial court concluded that the Commonwealth proved beyond 

a reasonable doubt that Vasquez had the specific intent to support a 

conviction for flight to avoid apprehension, trial or punishment. According to 

Vasquez’s own testimony, he fled from Magisterial Judge Scott’s office on his 

motorcycle after learning that there was a warrant for his arrest. Trial Court 

Opinion, 9/18/15, at 3. Vasquez then fled a second time, this time on foot, 

after Officer Morar identified himself as an off-duty police officer and ordered 

Vasquez to stop. Id. 

In addition to the evidence cited by the trial court, the Commonwealth 

presented testimony from the only other two people in the courtroom 

besides Vasquez, Judge Scott and his guard, Kyley Scott; their testimony 

refuted Vasquez’s testimony that he had asked to go to the bathroom to call 
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his lawyer. The Commonwealth also offered testimony from Judge Scott and 

Kyley Scott, as well as Officer Morar and Negron, that Vasquez did not go to 

the bathroom, nor did he call his lawyer, but instead ran from the office and 

rode away very quickly on his motorcycle.

Accordingly, we agree with the trial court that the evidence, viewed in 

the light most favorable to the Commonwealth, was sufficient to sustain 

Vasquez’s conviction under section 5126(a). Garland, supra.

Next, Vasquez argues that he must be awarded a new trial because 

the verdict was against the weight of the evidence. Appellant’s Brief, at 16. 

An allegation that the verdict is against the weight of the evidence is 

addressed to the sound discretion of the trial court. Commonwealth v. 

Dupre, 866 A.2d 1089, 1101 (Pa. Super. 2005) (citations omitted). 

Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008). A verdict is 

against the weight of the evidence only where the Commonwealth’s evidence 

is so fundamentally inconsistent, unreliable, or tenuous that it shocks one’s 

sense of justice to imagine that a factfinder could have credited it and used 

it to convict someone. Commonwealth v. Widmer, 744 A.2d 745 (Pa. 

2000). Moreover:

[o]ur purview [with respect to a weight-of-the-evidence claim] is 

extremely limited and is confined to whether the trial court 

abused its discretion in finding that the jury verdict did not shock 

its conscience. Thus, appellate review of a weight claim consists 

of a review of the trial court’s exercise of discretion, not a review 

of the underlying question of whether the verdict is against the 

weight of the evidence.
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Commonwealth v. Knox, 50 A.3d 732, 738 (Pa. Super. 2012) (citations 

omitted).

Before we address the merits of Vasquez’s weight claim, we must first 

determine whether Vasquez has preserved his weight challenge. Pursuant to 

Pa.R.Crim.P. 607, a challenge to the weight of the evidence “shall be raised 

with the trial judge in a motion for a new trial . . . orally, on the record, at 

any time before sentencing[,] by written motion at any time before 

sentencing[,] or in a post-sentence motion.” Pa.R.Crim. 607(A)(1), (2), & 

(3). Moreover, a post-sentence motion “shall be filed no later than 10 days 

after imposition of sentence.” Pa.R.Crim.P. 720(A)(1). 

Instantly, the trial court reinstated only Vasquez’s direct appeal rights 

nunc pro tunc. Where the court reinstates direct appeal rights nunc pro 

tunc, the appellant is not automatically entitled to reinstatement of his postsentence rights nunc pro tunc as well. Commonwealth v. Liston, 977 

A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a defendant’s 

post-sentence rights nunc pro tunc if the defendant requested such relief 

from the PCRA court and if the court held an evidentiary hearing on the 

issue. Commonwealth v. Fransen, 986 A.2d 154 (Pa. Super. 2009). 

In Commonwealth v. Corley, 31 A.3d 293 (Pa. Super. 2011), we 

explained that where the appellant was denied counsel entirely throughout 

the post-sentence and direct appeal period when he was constitutionally 

entitled to counsel, reinstatement of his appellate rights nunc pro tunc

should have included the right to file a post-sentence motion nunc pro tunc, 
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because the appellant was without counsel at the time the post-sentence 

motion was due. Accordingly, we determined in Corley that the appellant 

did not waive his discretionary challenge to his sentence on direct appeal 

nunc pro tunc, even though his post-sentence rights were not reinstated 

nunc pro tunc. Id. at 297. 

Here, as in Corley, Vasquez’s direct appeal rights were reinstated on 

the basis that he had been denied the right to counsel in pursuing a direct 

appeal. Trial Court Order, 6/11/15. The trial court does not recognize, 

however, that immediately after imposing sentence on April 29, 2014, the 

court granted trial counsel’s motion for leave to withdraw.2 Notably, the 

court did not appoint Vasquez new counsel, for the purpose of filing postsentence motions and an appeal, until May 7, 2014 – 8 days following 

sentencing. Accordingly, Vazquez was unrepresented 80% of the time 

within which he had to file timely post-sentence motions under Rule 720. In 

fact, Vasquez submitted a handwritten document entitled “Post Sentence 

Motion for Judgment of Acquittal” to the Clerk of Courts, dated May 7, 2014 

and postmarked May 15, 2014. In the document, Vasquez requested to 

proceed with his post-sentence motion pro se until the court could appoint 

____________________________________________

2 At this time, Holly Freeney, Esquire, reviewed the procedure for filing postsentence motions and appeals with Vasquez and had him sign the 

“Defendant’s Acknowledgement of Post Sentence Procedures Following 

Trial.” See Defendant’s Acknowledgement of Post Sentence Procedures 

Following Trial, 4/29/14, at 3.
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replacement counsel. A copy of the letter was sent to Attorney Stroumbakis 

on May 19, 2014, well after the time period for filing timely post-sentence 

motions had expired. Additionally, Vasquez contends that he made several 

attempts to get in touch with Attorney Stroumbakis regarding the filing of 

post-sentence motions, both by mail and phone, but was unable to establish 

contact. 

As in Corley, Vasquez’s PCRA claim was based on appointed counsel’s 

failure to file a post-sentence motion or appeal on his behalf, and Vasquez 

raises no other claims of ineffectiveness of counsel in his petition. In 

reliance on Corley, we decline to find waiver of Vasquez’s weight challenge 

on the basis that he failed to preserve the claim in a post-sentence motion 

where: He was effectively denied the right to counsel during the time when 

he could file timely post-sentence motions and where he attempted to 

preserve those rights by objecting at sentencing and filing pro se postsentence motions raising a weight of the evidence claim.3

 See Defendant’s 

Post Sentence Motion for Judgement of Acquittal, 5/16/14, at 3.

Vasquez contends that the weight of the credible testimony establishes 

that he fled Judge Scott’s office in order to escape the attacks of Judge Scott 

and Kyley Scott and not to avoid apprehension, trial, or punishment. 

Appellant’s Brief at 16-17. First, Vasquez argues that his voluntary presence 

____________________________________________

3 Vasquez acknowledges in his PCRA petition that he submitted a postsentence motion. 
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at Judge Scott’s office establishes that he “was trying to do the opposite of 

avoiding apprehension.” Id. at 16. Second, Vasquez argues that the jury 

should have credited his testimony that he asked Kyley Scott for permission 

to “go to the bathroom to call a lawyer” before getting up to leave the 

courtroom and was then the victim of unprovoked attacks by Judge Scott 

and Kyley Scott. Id. 

Whether or not Vasquez asked for permission to leave Judge Scott’s 

courtroom, both Judge Scott and Kyley Scott testified that Vasquez ignored 

Judge Scott’s repeated demands that he return to his seat and then 

physically pushed past Judge Scott to exit the courtroom. N.T. Trial, 

4/15/14, at 62-66, 82-85. As the trial court noted in its Rule 1925(a) 

opinion, the jury “obviously found the testimony of [Judge] Scott, Kyley 

Scott, and Officer Morar to be credible.” Trial Court Opinion, 9/18/15, at 4. 

Vasquez’s own testimony largely corroborates the Commonwealth’s account 

of his flight from Judge Scott’s office. Once outside the building, the 

evidence shows that Vasquez ran to his motorcycle and rode off at a high 

rate of speed, crashing the vehicle shortly thereafter. Id. at 125. As 

Vasquez attempted to restart his motorcycle, Officer Morar approached him 

with his weapon drawn, identified himself as a police officer, and ordered 

him to get down. Id. at 110; 126. Vasquez ignored Officer Morar’s orders 

and fled the scene on foot. Id. at 126.

Vasquez contends that he did not hear Officer Morar identify himself 

and, therefore, did not recognize him as a police officer. Id. However, the 
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evidence shows that Officer Morar approached Vasquez within moments of 

his flight from Judge Scott’s office, drew his firearm, and ordered Vasquez to 

get on the ground. Taken together with the testimony of Judge Scott and 

Kyley Scott, these facts would support a conviction under section 5126. 

After careful review, we find that the trial court did not abuse its 

discretion. Knox, supra. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/23/2016