Com. v. Wilson, A. ( 2017 )

J-A18019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ATIBA WILSON
Appellant No. 1045 WDA 2016
Appeal from the Judgment of Sentence June 6, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003580-2015
CP-02-CR-0012661-2015
BEFORE: BOWES, J., LAZARUS, J., AND OTT, J.
CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:
FILED: OCTOBER 24, 2017
I agree that Appellant’s suppression challenge at criminal case 2015-
12661 must fail and therefore concur regarding that issue. I respectfully
dissent from the learned majority’s decision to vacate Appellant’s burglary
conviction at criminal case 2015-03580, as I would hold that the
Commonwealth’s evidence sufficed to establish the essential elements of
that crime.
The criminal information charging Appellant with burglary stated as
follows:
The actor, with the intent to commit a crime therein, entered a
building or occupied structure, namely 7428 Palmer Street,
Apartment 1, Swissvale, PA 15218 or a separately secured or
occupied portion thereof that was adapted for overnight
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accommodation, in which, at the time, no person was present, in
violation of Sections 3502(a)(2) and (c)(1) of the Pennsylvania
Crimes Code, Act of December 6, 1972, 18 Pa. C.S. §3502(a)(2)
and (c)(1), as amended.
Criminal Information, Docket Entry 2. The fact that the Commonwealth did
not allege that Appellant intended to commit a particular crime is essential
to my disposition, as, unlike the Majority, I do not find that the conviction
must be vacated simply because the Commonwealth could not establish that
Appellant intended to commit the specific crime of flight to avoid
apprehension.
In Commonwealth v. Alston, 651 A.2d 1092, 1094 (Pa. 2004), our
Supreme Court held that the Commonwealth was not required to prove nor
allege what particular crime a defendant intended to commit in order to
prove burglary. Accordingly, the Commonwealth must only establish the
“specific intent, at the time of entry, to commit some crime while in the
residence, which was satisfied upon a showing of a general criminal intent
inferred from the totality of the circumstances[.]” Id. at 1092 (emphasis in
original).
The Majority’s result does not analyze whether the evidence sufficed to
establish that Appellant committed some crime, but instead focuses on
whether Appellant committed a specific crime. This narrow inquiry results
from the prosecutor’s explicit reference to the crime of flight to avoid
apprehension. Majority Memorandum at 5. The Majority correctly notes
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that, pursuant to Commonwealth v. Phillips, 129 A.3d 513 (Pa.Super.
2016), Appellant could not be found guilty of flight to avoid apprehension
because he had yet to be formally charged with a crime. The Majority then
determines that its holding is not inconsistent with Alston, because it was
legally impossible for Appellant to commit that crime.
Wilson is not asserting that the Commonwealth had to charge
him with or prove the crime of flight to avoid apprehension to
sustain his burglary conviction. Rather, he argues that he could
not have had the requisite intent to commit a crime (here, flight
to avoid apprehension) for burglary purposes, where the
intended crime itself, or at least that which the Commonwealth
stated he was intending to commit therein, requires that he has
first been charged with or convicted of any crime.
Because the Commonwealth specified that Wilson intended to
commit the crime of flight to avoid apprehension when he
entered the structure and Wilson had not yet been charged with
or convicted of a crime at the time he entered the residence,
there was no way he could have had the intent to commit the
crime of flight to avoid apprehension.
Majority Memorandum at 6 (emphasis in original).
Respectfully, I am not persuaded. My esteemed colleagues hold that
the set of possible crimes that would satisfy the generic criminal intent of
burglary is limited to the crime of flight to avoid apprehension, because the
prosecutor “specified” that crime. However, the prosecutor referenced that
crime during the non-jury proceedings. The criminal information did not
allege that crime, which is the pertinent consideration. Alston.
Thus, I interpret the Majority to attach dispositive significance to the
prosecutor’s legal arguments. However, “[A] prosecutor's comments are not
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evidence and the court clearly instructed the jury on this rule of law.”
Commonwealth v. Johnson, 668 A.2d 97, 107 (Pa. 1995).1 Therefore, the
Majority does not fully address the fact that our sufficiency analysis is
conducted de novo. The question is whether a rational fact-finder could find
the essential elements of the crime as charged in the information, not
whether the fact-finder could find the essential elements of the crime
referenced by the prosecutor’s remarks. We must determine “whether the
evidence at trial, and all reasonable inferences derived therefrom, are
sufficient to establish all elements of the offense beyond a reasonable doubt
when viewed in the light most favorable to the Commonwealth as verdict
winner.” See Commonwealth v. Haney, 131 A.3d 24, 33 (Pa. 2015)
(citations omitted). Our Supreme Court has noted that the “ultimate
question of evidentiary sufficiency parallels the central inquiry under the
Jackson standard, namely, whether any ‘rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’”
Commonwealth v. Brown, 617 Pa. 107, 148, 52 A.3d 1139, 1164 (Pa.
2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1970)).
In my view, the evidence supports a finding that Appellant entered the
building with a generic criminal intent to commit some crime, to wit, the
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1
Since this matter was tried non-jury, the adequacy of any jury instruction
regarding this element is not at issue.
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continuing crime of escape. “A person commits an offense if he unlawfully
removes himself from official detention[.]” 18 Pa.C.S. § 5121(a). “Official
detention” is defined as:
arrest, detention in any facility for custody of persons under
charge or conviction of crime or alleged or found to be
delinquent, detention for extradition or deportation, or any other
detention for law enforcement purposes; but the phrase does not
include supervision of probation or parole, or constraint
incidental to release on bail.
18 Pa.C.S.A. § 5121(e). Our case law has interpreted the phrase “any other
detention for law enforcement purposes” to encompass a seizure.
We must decide whether the phrase “any other detention for law
enforcement purposes” extends to a pre-arrest situation such as
that described above. 18 Pa.C.S.A. § 5121. Officer Patterson's
testimony, that he was in uniform, in a marked police car, had
his gun drawn because the dispatcher had alerted him that
Stewart had a weapon, and had ordered Stewart to turn the car
off, was, in our opinion, sufficient to alert Stewart that he was
being “officially detained.” It is not necessary that the suspect be
physically restricted by bars, handcuffs, or locked doors. Escape
encompasses more than the traditional notion of a prisoner
scaling a prison wall.
Commonwealth v. Stewart, 648 A.2d 797, 798 (Pa.Super. 1994).
The facts herein established that Appellant and two other males were
seized at gunpoint by a police officer due to a report of two males
brandishing a firearm.2 “[Appellant] did not comply with the order to
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2
The “detention for law enforcement” language does not refer to a lawful,
i.e. proper under the Fourth Amendment, detention. In any event, Appellant
did not challenge whether the seizure was proper.
(Footnote Continued Next Page)
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remove his hands from his pockets but his companions did. At that point,
[Appellant] fled the scene.” Trial Court Opinion, 1/18/17 at 7. The facts
further establish that, during the subsequent foot chase, Appellant entered a
structure in an attempt to evade the police. I would hold that a rational
fact-finder could infer the general criminal intent from the totality of those
circumstances, especially when Appellant himself acknowledged that “he ran
in an attempt to hide from the police.” Id. at 8 (citations to transcript
omitted). I would therefore affirm the burglary conviction.
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(Footnote Continued)
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