Com. v. Barnish, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JACOB LEE BARNISH :
:
Appellant : No. 461 MDA 2019
Appeal from the Judgment of Sentence Entered February 28, 2019
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000306-2018
BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 18, 2020
Jacob Lee Barnish appeals from the judgment of sentence imposed
following his jury conviction for flight to avoid apprehension, trial, or
punishment.1 Because we conclude that the evidence was insufficient to
sustain the conviction, we reverse.
The evidence at trial was as follows. Trooper Paul Brenneman testified
that on May 8, 2018, he and his partner went to a residence to investigate a
report of domestic violence. N.T., Trial, 11/20/18, at 30, 31, 32. When they
arrived at the scene, Trooper Brenneman encountered Barnish and while
interviewing him, Trooper Brenneman “got a radio transmission to contact the
barracks via phone as soon as I could.” Id. at 32. When he called the barracks,
Trooper Christopher Bourne told him he was preparing felony charges against
____________________________________________
1 18 Pa.C.S.A. § 5126(a).
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Barnish and asked Trooper Brenneman to arrest him. Id. at 32-33. Trooper
Brenneman then approached Barnish, “told him he was under arrest, to get
down on the ground and place his hands behind his back.” Id. Instead of
complying, Barnish ran, and Trooper Brenneman apprehended him. Id. at 33-
34.
The trooper preparing the charges, Trooper Bourne, testified that at the
time he contacted Trooper Brenneman, “I was filing felony charges against
[Barnish][.]” Id. at 25. He further stated on cross-examination that at the
time Trooper Brenneman arrested Barnish, he had not yet filed any charges:
Q[Defense Counsel]: At the time that you learned – let me
rephrase that. When Trooper Brenneman and Trooper
Godissart arrested Mr. Barnish, had you already filed the
charges?
A: No.
Q: It was later on?
A: Correct. I was in the process of filing them. So they were
filed after he was brought to the barracks.
Id.
At the close of the Commonwealth’s case, Barnish moved for a directed
verdict of acquittal. He argued that the Commonwealth had failed to prove
that Barnish had been charged with a crime at the time he fled from Trooper
Brenneman. Id. at 55. In response, the Commonwealth asked the court to
take judicial notice that on the day of the subject incident, Barnish was
charged with strangulation and simple assault. Id. at 57. However, the
Commonwealth did not claim that those charges were filed before the subject
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incident occurred. The trial court did not rule on the Commonwealth’s request
or instruct the jury on judicial notice, and the Commonwealth never re-raised
the issue. The trial court denied the motion and the jury returned a guilty
verdict. The trial court imposed a sentence of 10 to 23 months’ incarceration
and this timely appeal followed.
Barnish asks us to review the following issues:
I. Should the trial court have entered a directed verdict
of acquittal, given that the evidence adduced at trial
failed to demonstrate that Mr. Barnish was charged
with a crime at the time of the incident?
II. Did the trial court’s instructions mislead the jury
regarding the elements of flight to avoid
apprehension?
Barnish’s Br. at 3. Because of our disposition in this case, we only address
Barnish’s first issue.
When reviewing a challenge to the sufficiency of the evidence, we ask
“whether the evidence admitted at trial, and all reasonable inferences drawn
from that evidence, when viewed in the light most favorable to the
Commonwealth as verdict winner, was sufficient to enable the fact finder to
conclude that the Commonwealth established all of the elements of the offense
beyond a reasonable doubt.” Commonwealth v. Sunealitis, 153 A.3d 414,
419 (Pa.Super. 2016) (quoting Commonwealth v. Woodard, 129 A.3d 480,
489-90 (Pa. 2015)). Our standard of review is de novo and our scope of review
is plenary. Id.The offense of flight to avoid apprehension provides as follows:
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A person who willfully conceals himself or moves or travels
within or outside this Commonwealth with the intent to
avoid apprehension, trial or punishment commits a 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 which he has been charged with or has been convicted
of is a misdemeanor.
18 Pa.C.S.A. § 5126(a) (emphasis added).
Barnish asserts that “[u]nless a person has already been charged with
or convicted of a crime, he or she cannot be convicted of flight to avoid
apprehension.” Barnish’s Br. at 7. In support, he cites Commonwealth v.
Phillips, 129 A.3d 513, 518 (Pa.Super. 2015). There, we addressed the issue
Barnish presents: “whether the crime of flight to avoid apprehension “applies
to a person who has not yet been charged with a crime when he flees from
law enforcement.” Phillips, 129 A.3d at 516. Phillips fled from police after
committing a series of crimes. However, at the time that he fled, no charges
were pending. We concluded that the language of the statute unambiguously
required that at the time of flight, “a person have been charged with a crime.”
Id. at 518. We therefore reversed the judgment of sentence, explaining that
“the Commonwealth did not prove that [Phillips] had been charged with a
crime when he fled[.]” Id. at 519 (emphasis added).
Here, the Commonwealth argues that the evidence was sufficient
because “[b]ased on the evidence adduced at trial, it is reasonable for those
on scene to believe that Barnish had been charged for the incident Trooper
Bourne had investigated.” Commonwealth’s Br. at 8. It refers to the “evidence
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at trial when defense counsel used the word “charges” during his cross
examination of Troopers Bourne and Brenneman. Id. at 7.
We disagree. In this case, as in Phillips, the Commonwealth did not
prove that Barnish had already been charged with a crime when he fled. The
evidence at trial, even in the light most favorable to the Commonwealth,
shows that Barnish was not charged until “after he was brought to the
barracks.” N.T., Trial at 25. While the Commonwealth asked the court to take
judicial notice of other charges allegedly instituted on the day in question, the
court did not explicitly grant the request or do anything indicating it had, in
effect, granted it. Nor did the Commonwealth take any other steps to place
evidence on the record that felony charges were pending at the time Barnish
ran from Trooper Brenneman. Moreover, the Commonwealth did not even ask
the court to take judicial notice that charges were allegedly pending at the
time Barnish fled.
The Commonwealth’s assertion that the troopers reasonably believed
Barnish had already been charged when he fled, like the trial court’s assertion
that “[Barnish] knew he was under arrest when he ran from police,” is beside
the point. Trial Court Opinion, filed 5/8/19, at 3. The statute requires the
Commonwealth to prove that at the time the defendant flees law enforcement,
the defendant “has been charged with” a crime, and it failed to do so here. 18
Pa.C.S.A. § 5126(a); Phillips, 129 A.3d at 519. We therefore reverse
Barnish’s judgment of sentence.
Judgment of sentence reversed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/18/2020
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