Sasser v. Commonwealth

WRIGHT, J.,

CONCURRING:

While I concur with the majority’s well-reasoned opinion, I write separately as I would go further and set out the parameters for what constitutes “immediate flight.” In my view, immediate flight is neither a product of either distance or time. Rather, it is wholly dependent upon the stage of the attempted escape.

The “immediate” flight, or first stage, constitutes divorcing oneself from pursuit or the possibility of observation that would connect the individual to the crime while fleeing the scene. The second stage would be á general retiring action. The stage of flight varies from one case to the next and is a fact-driven determination, immediate flight could be only a few seconds and a few’feet or could cover a distance of miles over the course of minutes or even hours in' the event of pursuit from the crime scene. For example, if a perpetrator was being pursued over a period of time and space (regardless of the specific amount of either) and stopped at some point during the pursuit to retrieve a stashed weapon, he was still in “immediate flight.”

Those, however, are not the facts here. Appellant’s statement to the police was that he left the gun in the woods so that if he were caught, he would be charged with second-degree burglary rather than first-degree. The difference between second-degree burglary and first-degree is whether a perpetrator is armed ■'during the crime or in immediate flight therefrom. Obviously, Appellant, who was the only witness, thought the gun was beyond the area of immediate flight from the crime scene. As there were no witnesses to the crime, we have to rely upon Appellant’s admissions. The Commonwealth failed to put forth any evidence of distance or visibility from the crime scene. In the case at bar, once Appellant reached the woods, there was a physical barrier constituting a break from the crime scene. At that point, he felt he was out of danger of immediate pursuit or observation. Thus, the initial stage, or “immediate flight” had ended prior to Appellant retrieving the gun.

Furthermore, the legislative purpose in specifying “immediate flight” is to reduce the danger to the public. Appellant testified that he knew the difference between first- and second-degree burglary and that was the reason he left the gun in the woods. If we fail to recognize this break from the crime scene, the incentive for the reduction of danger in a future crime is lost. We are naive if we believe criminals do not converse with one another. Appellant would pass his story along to fellow convicts and future robbers would realize they have no incentive to create a safer environment during the commission of their crimes.

Noble, J., joins.