Com. v. Pauciello, J. ( 2018 )

J-S71013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
JAMES A. PAUCIELLO :
: No. 3437 EDA 2016
Appellant :
Appeal from the Judgment of Sentence October 6, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005225-2016
BEFORE: PANELLA, J., STABILE, J., and PLATT*, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 12, 2018
Appellant, James A. Pauciello, appeals from the judgment of sentence
imposed in the Court of Common Pleas of Philadelphia County after the trial
court found him guilty of Escape, 18 Pa.C.S.A. § 5121(a). On appeal, he
argues the Commonwealth failed to prove he intentionally failed to return to
custody, thus rendering the evidence insufficient to sustain the conviction. We
disagree and affirm.
Pauciello was serving a two-year state intermediate punishment
sentence at the Department of Corrections’ Community Corrections Center
Number 4. His corrections counsellor gave him a day pass on May 8, 2016,
Mother’s Day, to visit his mother. Pauciello was due back at the center at 9:00
p.m. He never returned.
According to Pauciello, after spending the day with his mother, unknown
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* Retired Senior Judge assigned to the Superior Court.
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assailants “jumped” him at a train station, leaving him “really, really banged
up.” N.T., Trial, 10/6/16, at 20. At some point on May 9, he called his father
who took him to the emergency room. He was discharged that night at 10:53
p.m.1 The next day, May 10, Pauciello called his corrections counsellor who
told him to return to the center with his hospital discharge paperwork.
Pauciello testified he “just basically wandered” around that day as he “had a
really bad concussion.” Id., at 21. He “wandered around” the next day, May
11, until, he claimed, he stopped a police officer and asked to return to the
center. Id.
After listening to the testimony, the trial court said to Pauciello, “I don’t
see anything other than what you have to say. I don’t have anything here to
prove what you’re saying is true and correct, and I don’t think I believe you.”
Id., at 38-39. The trial court found him guilty of Escape, 18 Pa.C.S.A. §
5121(a), and immediately sentenced him to nine to 23 months’ imprisonment.
This timely appeal followed.
On appeal, Pauciello solely challenges the sufficiency of the evidence.
“Because evidentiary sufficiency is a question of law, our standard of review
is de novo and our scope of review is plenary.” Commonwealth v. Ballard,
80 A.3d 380, 390 (Pa. 2013) (citation omitted). We must determine whether,
when viewed in a light most favorable to the verdict winner, the evidence at
trial and all reasonable inferences therefrom are sufficient for the trier of fact
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1The hospital paperwork submitted at trial did not list an intake time. See
N.T., Trial, 10/6/16, at 37.
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to find that each element of the crimes charged is established beyond a
reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150, 152 (Pa.
Super. 2003).
“[T]he facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Commonwealth v. Bruce, 916
A.2d 657, 661 (Pa. Super. 2007) (citation omitted). Any doubt raised as to
the accused’s guilt is to be resolved by the fact-finder. See Commonwealth
v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004). “As an appellate court, we
do not assess credibility nor do we assign weight to any of the testimony of
record.” Id. (citation omitted). Therefore, we will not disturb the verdict
“unless the evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined circumstances.” Bruce,
916 A.2d at 661 (citation omitted). Evidence is weak and inconclusive “[w]hen
two equally reasonable and mutually inconsistent inferences can be drawn
from the same set of circumstances….” Commonwealth v. Woong Knee
New, 47 A.2d 450, 468 (Pa. 1946).
We must determine whether the Commonwealth presented sufficient
evidence to sustain the conviction. “A person commits an offense if he
unlawfully removes himself from official detention or fails to return to official
detention following temporary leave granted for a specific purpose or limited
period.” 18 Pa.C.S.A. § 5121(a). The Commonwealth had to prove Pauciello
“intended unlawfully to remove himself from official detention.”
Commonwealth v. Hall, 585 A.2d 1117, 1119 (Pa. Super. 1991).
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There was no dispute as to Pauciello’s incarceration at the center and
that he knew he had to return there at the expiration of the May 8 day pass.
See N.T., Trial, 10/6/16, at 19. Pauciello, however, never returned to the
center. See id., at 15-16.
He maintains his hospitalization excuses his absence and negates his
intent to unlawfully remove himself from detention. His hospitalization,
however, occurred on May 9, a day after his expected return, and his
discharge occurred that night. On May 10, he contacted his corrections
counsellor who told him to return to the center with his discharge paperwork.
He did not comply. Instead, he “wandered around” on May 10 and 11. The
police did not recover him until May 11. And the trial court flatly disbelieved
Pauciello’s testimony that injuries from an attack caused his unwanted
absence. Thus, while there is no question of his hospitalization on May 9, we
can reasonably infer he did not intend to return thereafter.
Pauciello tries to analogize his case to Hall and Commonwealth v.
Edwards, 595 A.2d 183 (Pa. Super. 1991), in an attempt to show the
Commonwealth presented insufficient evidence. Both of those cases involved
participants in work release programs. And in both, panels of this Court found
that the appellants’ behavior did not constitute substantial deviation from the
terms of their work release agreements.
For instance, in Hall, the appellant left his work release program and
did not go directly to work, but stopped at his girlfriend’s for just an hour and
then went to work. In Edwards, the appellant arrived back to custody late
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from work on two occasions—six minutes late on one occasion and seven
minutes on another. This case plainly stands in stark contrast to Hall and
Edwards.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/12/18
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