Com. v. Phillips, A.

J-A27001-15
2015 Pa. Super. 259
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ARTHUR PHILLIPS,
Appellant No. 1427 WDA 2014
Appeal from the Judgment of Sentence July 30, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002048-2013
BEFORE: BOWES, OLSON, AND STABILE, JJ.
OPINION BY BOWES, J.: FILED DECEMBER 14, 2015
Arthur Phillips appeals from the aggregate judgment of sentence of
fourteen to twenty-eight years incarceration imposed by the trial court after
a jury found him guilty of robbery, aggravated assault, conspiracy to commit
robbery, and flight to avoid apprehension. We affirm in part, reverse in
part, vacate the judgment of sentence, and remand for resentencing.
The sixty-three-year-old male victim in this matter left his home in his
vehicle to travel to another home in order to walk his friend’s dog. After
returning to his house, the victim noticed that his front door was open.
When he entered his living room, he observed that the room had been
ransacked. In addition, it appeared that someone had tried to force open his
locked bedroom door. The victim left that door locked because he had a 9
mm handgun therein. He unlocked the door and retrieved his firearm before
checking the remainder of his home.
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Upon entering the foyer, he saw a large male standing outside the
doorway who appeared ready to force open the door. When the victim
demanded to know who the male was, the intruder fled. The victim exited
onto his porch where he encountered another individual wearing a blue
bandana and carrying an AK-47 semi-automatic rifle. That person,
Appellant, approached the victim and appeared to raise his rifle and stated,
“Give me the shit. Give me the shit.” N.T., 2/20/14, at 106. The victim
grabbed the rifle and a struggle ensued in which Appellant lost hold of his
weapon and attempted to take the victim’s handgun. Appellant began
punching the victim while trying to secure the victim’s gun. As the fight
continued, Appellant bit the victim in the shoulder and began to hit him with
repeated blows. The victim was able to fire a shot at Appellant. That shot
did not hit Appellant and Appellant struck the victim several times before
retrieving the rifle and fleeing. The victim attempted to fire another round
at Appellant, but his weapon jammed. The victim suffered a broken right
hand, several lacerations, as well as bite wounds on his hands, arm, and
shoulder.
Penn Hills police officer Bernard Sestili responded to a report of shots
fired. Police were informed that suspects were believed to be fleeing in a
burgundy Buick and were armed. As Officer Sestili approached the area, he
saw a burgundy Buick pass him. Accordingly, he activated his lights and
attempted to pull the vehicle over. The driver of the Buick initially pulled the
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vehicle over, but sped away after Officer Sestili began to exit his car. The
occupants of the Buick then engaged in a high-speed chase with police,
reaching speeds that were close to twice the posted speed limits of twenty-
five and thirty-five miles per hour on the various roads.
While fleeing from law enforcement, the Buick proceeded through
several red lights and travelled in the opposite lane of travel. While
attempting to make a turn at an intersection, the car crashed into a guard
rail. Officer Sestili drove his car into the left side of the Buick and, with his
weapon drawn, directed the driver to stop. The driver began to flee and
Officer Sestili deployed his taser, striking the driver. The driver fell to the
ground momentarily, but returned to his feet and ran away. Officer Sestili
and another officer pursued and were able to use their tasers again to
subdue the driver, Joshua Yingling. Another passenger, Clayton McKinnon,
also fled but was captured by police. Police also apprehended Appellant
after a foot chase. Inside the Buick, police recovered an AK-47 rifle with a
loaded magazine attached to the gun, and a pair of black gloves.
The Commonwealth ultimately charged Appellant with robbery,
aggravated assault, conspiracy to commit robbery, flight to avoid
apprehension, criminal trespass, and resisting arrest. The jury acquitted
Appellant of trespassing and resisting arrest, but found him guilty as to the
remaining charges. The court sentenced Appellant on May 13, 2014.
Specifically, the court sentenced Appellant to ten to twenty years
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imprisonment for the robbery count, two to four years for aggravated
assault, and one to two years at both the conspiracy and flight to avoid
apprehension charges. The court imposed each sentence consecutively for a
total sentence of fourteen to twenty-eight years incarceration.
Appellant timely filed a post-sentence motion on May 21, 2014, which
the Commonwealth opposed. The court conducted a hearing on July 30,
2013, and denied the motion. This timely appeal ensued. The trial court
directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. Appellant complied, after receiving several
extensions due to the unavailability of the trial transcript. The trial court
authored its Rule 1925(a) opinion, and the matter is now ready for our
review. Appellant presents three issues for this Court’s consideration.
I. Was the evidence sufficient to support Mr. Phillips’
conviction for flight to avoid apprehension, in violation of
18 Pa.C.S. § 5126, where the Commonwealth presented
no evidence to suggest that Mr. Phillips fled to avoid
apprehension on a previous charge or conviction?
II. Was the evidence sufficient to support Mr. Phillips’
conviction for aggravated assault where the
Commonwealth failed to establish that Mr. Phillips
attempted to cause, or did cause, serious bodily injury to
[the victim]?
III. Did the trial court abuse its discretion at sentencing by
impermissibly relying on Mr. Phillips’ prior criminal history
and the gravity of the offense as the sole bases for
imposing an aggravated range sentence and by failing to
consider numerous mitigating factors that weighed against
the imposition of an aggravated range sentence?
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Appellant’s brief at 6.
Although Appellant in his initial claim addresses the sufficiency of the
evidence relative to his flight to avoid apprehension charge, the issue relates
to statutory interpretation. Specifically, Appellant and the Commonwealth
dispute whether the statutory crime itself applies to a person who has not
yet been charged with a crime when he flees from law enforcement. This is
a matter of first impression. Questions of statutory interpretation are
questions of law. Commonwealth v. Steffy, 36 A.3d 1109, 1111
(Pa.Super. 2012). Therefore, our standard of review is de novo. Id. The
flight to avoid apprehension statute reads,
§ 5126. Flight to avoid apprehension, trial or punishment.
(a) Offense defined.—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. § 5126.
Appellant argues that a plain reading of the statute indicates that the
law criminalizes “the conduct of those individuals who flee to avoid standing
trial or sentencing after they have already been charged or convicted.”
Appellant’s brief at 17 (emphases removed). He notes that criminal statutes
are to be strictly construed and any ambiguity is to be resolved in favor of
the accused. According to Appellant, the legislature’s usage of the phrase
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“has been charged” denotes that it intended to punish those who flee after
having previously been charged with a crime.
Appellant, acknowledging that no case law directly addresses this
issue, analogizes the statute in question with the escape statute found at 18
Pa.C.S. § 5121. That statute defines a third-degree felony escape in
relevant part as when the actor was “under arrest for or detained on a
charge of felony” or “convicted of a crime[.]” 18 Pa.C.S. § 5121(d)(1)(i)(A)-
(B). Appellant contends that the phrase “on a charge of felony”
demonstrates that the legislature intended to criminalize actions whereby a
person who has not yet been charged with a crime removes himself from
official detention. He continues that the legislature distinguished between
the situation where a person escapes from official detention for a present
offense and escapes after having been sentenced. See id. In a similar vein,
Appellant submits that this Court’s interpretation of the escape statute in
Commonwealth v. Janis, 583 A.2d 495 (Pa.Super. 1990), buttresses his
position.
In Janis, this Court found insufficient evidence to find the defendant
guilty of a felony escape. Therein, the defendant was arrested for retail
theft, which is ordinarily a summary offense. After his arrest, but before
criminal charges had formally been filed, Janis remained seated in a police
station for two hours when the detective watching him received a personal
telephone call. The officer handcuffed Janis to a wall, but left him otherwise
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unattended. The officer failed to adequately secure the handcuffs and Janis
walked out of the police station. Another detective approached in a car and
Janis fled. The Janis Court reasoned that because the statute reads in the
past tense, a felony escape could only exist if the accused was arrested or
detained at that time for a felony. Under Appellant’s view, the legislature’s
use of the past tense in the flight to avoid apprehension statute indicates
that it intended to punish flight after the person had been charged with a
crime. Since Appellant had not yet been charged with any crime, he asserts
that he could not have violated the law at issue.
The Commonwealth responds that “[b]y inserting the phrase ‘intent to
avoid prosecution’ the Legislature has expanded the time frame for
individuals to submit to lawful process and judicial fact finding.”
Commonwealth’s brief at 6. It argues that “it makes no sense to
countenance flight to avoid prosecution just because police haven’t had
sufficient time to prepare a charging document[.]” Id. The Commonwealth
does not engage the actual text of the statute discussed by Appellant nor
proffer any argument relative to statutory interpretation of that language.
Instead, the Commonwealth relies on statutory interpretation of a federal
statute that is materially distinguishable. In this respect, the
Commonwealth contends that federal courts’ interpretations of 18 U.S.C. §
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1073,1 flight to avoid prosecution or giving testimony, support its view that
Appellant was not required to have been criminally charged to trigger the
Pennsylvania flight to avoid apprehension charge. Relying on a Second
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1
§ 1073. Flight to avoid prosecution or giving testimony
Whoever moves or travels in interstate or foreign commerce with
intent either (1) to avoid prosecution, or custody or confinement
after conviction, under the laws of the place from which he flees,
for a crime, or an attempt to commit a crime, punishable by
death or which is a felony under the laws of the place from which
the fugitive flees, or (2) to avoid giving testimony in any criminal
proceedings in such place in which the commission of an offense
punishable by death or which is a felony under the laws of such
place, is charged, or (3) to avoid service of, or contempt
proceedings for alleged disobedience of, lawful process requiring
attendance and the giving of testimony or the production of
documentary evidence before an agency of a State empowered
by the law of such State to conduct investigations of alleged
criminal activities, shall be fined under this title or imprisoned
not more than five years, or both. For the purposes of clause (3)
of this paragraph, the term "State" includes a State of the United
States, the District of Columbia, and any commonwealth,
territory, or possession of the United States.
Violations of this section may be prosecuted only in the Federal
judicial district in which the original crime was alleged to have
been committed, or in which the person was held in custody or
confinement, or in which an avoidance of service of process or a
contempt referred to in clause (3) of the first paragraph of this
section is alleged to have been committed, and only upon formal
approval in writing by the Attorney General, the Deputy Attorney
General, the Associate Attorney General, or an Assistant
Attorney General of the United States, which function of
approving prosecutions may not be delegated.
18 U.S.C. § 1073.
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Circuit Court of Appeals decision from 1957, United States v. Bando, 244
F.2d 833 (2d. Cir. 1957), the Commonwealth asserts that a prior charged
crime is not an element of the Pennsylvania offense. In Bando, the
defendants asserted that they could not be found guilty of conspiracy to
violate the federal flight to avoid prosecution statute because the individual
whom they were assisting in fleeing had not been charged with a crime
when they helped him flee. The federal court rejected that claim, opining
that the words “to avoid prosecution” could not be construed as meaning “to
avoid a pending prosecution.” Bando, supra at 843. It added that the
word “charged” was not used in relation to avoiding prosecution, but was
inserted with respect to the aspect of the crime dealing with avoiding
providing testimony. Id. Instantly, the words “has been charged” are used
in conjunction with avoiding apprehension. Thus, the Bando Court’s
rationale does not apply.
In addition, the Commonwealth cites United States v. Frank, 864
F.2d 992 (3rd Cir. 1988), in support. In Frank, the defendant was a
Pennsylvania attorney. He had been told by an Allegheny County detective,
in November of 1986, that he might be charged with forgery and theft of
municipal bounds. The defendant used his son’s yacht and traveled to the
Bahamas. The detective filed state criminal charges and obtained a warrant
for his arrest on January 5, 1987. Three days later, a federal criminal
complaint charged the defendant under 18 U.S.C. § 1073. On November 5,
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1987, the defendant was arrested in Allegheny County. The defendant
argued that he could not be convicted under the federal law because when
he left the area, he had not been charged with a crime. The Frank Court,
quoting Bando, rejected that argument. As noted, the reasoning of Bando
does not apply in the present case. Accordingly, we proceed to examine the
statute based on well-established principles governing statutory
interpretation.
Review of statutory language is governed by legislative enactments
codifying long-standing common law standards. See 1 Pa.C.S. § 1921. In
this regard, our legislature has outlined that, “[t]he object of all
interpretation and construction of statutes is to ascertain and effectuate the
intention of the General Assembly. Every statute shall be construed, if
possible, to give effect to all its provisions.” Id. “When the words of a
statute are clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” Id.
We strictly interpret criminal statutes, 1 Pa.C.S. § 1928(b)(1), and we
resolve any doubt as to a criminal statute's meaning in favor of the
defendant. Commonwealth v. Graham, 9 A.3d 196, 202 n. 13 (Pa. 2010).
Only where the statutory language is not explicit do we engage in discerning
legislative intent beyond the face of the text. 1 Pa.C.S. § 1921(c). In this
respect, the legislature has outlined various considerations a court may take
into account. Specifically, courts consider:
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(1) the occasion and necessity for the statute; (2) the
circumstances under which it was enacted; (3) the mischief to be
remedied; (4) the object to be attained; (5) the former law, if
any, including other statutes upon the same or similar subjects;
the consequences of a particular interpretation; (7) the
contemporaneous legislative history; and (8) legislative and
administrative interpretations of such statute. 1 Pa.C.S. § 1921.
In the Interest of C.S., 63 A.3d 351, 355 (Pa.Super. 2013).
Here, the plain language of the pertinent portion of the statute
requires that a person have been charged with a crime. This language is
simply not ambiguous. The Commonwealth has failed to cite or point to a
single Pennsylvania case in support of its interpretation. That is, it has not
discussed any case law where a defendant was found guilty of fleeing to
avoid apprehension where the person had not been charged with a crime at
the time he or she fled.2 Moreover, as outlined above, we do not find the
Commonwealth’s reliance on a textually distinct federal statute to be either
persuasive or particularly instructive. The applicable part of the federal law
does not contain language similar to the Pennsylvania statute’s requirement
that the person “has been charged with” a felony or misdemeanor. 18
Pa.C.S. § 5126(a). Rather, the federal statute prohibits moving interstate to
avoid prosecution, among other actions related to avoiding court
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2
The Commonwealth also has not collected any case law from our sister
states in support of its interpretation.
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proceedings. Accordingly, the Commonwealth’s reliance on cases
interpreting 18 U.S.C. § 1073 is not instructive.
Our legislature has also used the phrase “has been charged” in other
statutory contexts. See 18 Pa.C.S. § 5105 (hindering apprehension). In
grading the hindering offense, the General Assembly outlined that the crime
would be a felony of the third degree “if the conduct which the actor knows
has been charged or is liable to be charged against the person aided
would constitute a felony of the first or second degree.” 18 Pa.C.S. §
5105(b) (emphasis added). Thus, it is apparent that our legislature can
distinguish between individuals charged with crimes and those who have yet
to be charged. Since the flight to avoid apprehension statute is plain on its
face, and the Commonwealth did not prove that Appellant had been charged
with a crime when he fled, insufficient evidence existed to find him guilty of
the aforementioned offense. Thus, we reverse Appellant’s judgment of
sentence as to flight to avoid apprehension and discharge him as to that
count. As this reversal disrupts the sentencing court’s overall sentencing
scheme, Appellant must be resentenced.
We now consider Appellant’s second sufficiency of the evidence claim.
Appellant contends that the Commonwealth did not establish sufficient
evidence to prove that he caused or attempted to cause serious bodily injury
with respect to his aggravated assault count. In performing our sufficiency
review, we consider all of the evidence admitted, even improperly admitted
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evidence. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013)
(en banc). We view the evidence in a light most favorable to the
Commonwealth as the verdict winner, drawing all reasonable inferences
from the evidence in favor of the Commonwealth. Id.
The evidence “need not preclude every possibility of innocence and the
fact-finder is free to believe all, part, or none of the evidence presented.”
Id. When evidence exists to allow the fact-finder to determine beyond a
reasonable doubt each element of the crimes charged, the sufficiency claim
will fail. Id. In addition, the Commonwealth can prove its case by
circumstantial evidence. Where “the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from the
combined circumstances[,]” a defendant is entitled to relief. Id. This Court
does not “re-weigh the evidence and substitute our judgment for that of the
fact-finder.” Id.
Appellant maintains that the Commonwealth did not establish that the
victim’s injuries resulted in permanent disfigurement or protracted
impairment of a bodily function or organ. See 18 Pa.C.S. § 2301 (defining
serious bodily injury as “[b]odily injury which create a substantial risk of
permanent disfigurement, or protracted loss or impairment of any bodily
member or organ.”). In addition, Appellant asserts that the Commonwealth
did not present sufficient evidence to show that Appellant attempted to
cause serious bodily injury. He argues that there was no evidence that he
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pointed his rifle at the victim or threatened him verbally. Appellant adds
that the evidence that he punched and bit the victim was not sufficient to
demonstrate intent to cause serious bodily injury. He also contends that
causing a broken bone, alone, is not sufficient to establish serious bodily
injury.
Appellant distinguishes this case from Commonwealth v. Fortune,
68 A.3d 980 (Pa.Super. 2013) (en banc). In Fortune, the victim was
pumping gas at a Philadelphia gas station. She exited her vehicle and saw
the defendant in the parking lot. The defendant initially approached and
asked if she had a cigarette. The victim told him that she did not smoke and
the defendant walked away. However, after the victim finished pumping
gas, she looked up to see the defendant standing in front of her aiming a
gun at her forehead. The defendant told the victim to let go of the keys or
he was going to blow her head off. This Court found those facts sufficient to
establish an attempt to cause serious bodily injury.
Appellant avers that the testimony revealed that he trotted toward the
victim with his rifle lowered and although he stated, “Give me the shit. Give
me the shit,” N.T., 2/20/14, at 106, he did not verbally threaten to shoot the
victim. He continues that he never attempted to fire the rifle or pointed it at
the victim. Accordingly, Appellant posits that the Commonwealth did not
prove that he attempted to cause serious bodily injury.
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The Commonwealth acknowledges that the victim did not sustain
serious bodily injury, but counters that it did prove Appellant attempted to
cause serious bodily injury. It highlights that Appellant struggled with the
victim over his loaded AK-47 rifle and that Appellant repeatedly attempted to
grab the victim’s own weapon. Appellant bit the victim about his shoulder,
hands, fingers, and arms. Further, Appellant caused the victim to break a
bone in the victim’s hand. The testimony also reveals that Appellant
repeatedly punched the victim and actually struck the victim after the victim
fired a shot at him.
We find the evidence in this case, when viewed in a light most
favorable to the Commonwealth, more than sufficient to establish that
Appellant attempted to cause serious bodily injury. Under the applicable
aggravated assault statute, an “attempt” transpires when an accused, with
specific intent, acts in a manner which constitutes a substantial step toward
perpetrating a serious bodily injury. See Fortune, supra at 984. Appellant
attacked a sixty-three-year-old man while armed with a loaded AK-47 on the
porch of the victim’s home. While struggling with the victim over both the
rifle and the victim’s gun, Appellant broke the victim’s hand and repeatedly
bit him. Appellant also pummeled the victim with his fists and fled after the
victim fired a shot at him. The facts of this matter are more indicative of
aggravated assault than those at issue in Fortune. The struggle over the
weapons and the beating that Appellant inflicted, viewed together,
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demonstrate that Appellant intended to cause serious bodily injury.
Appellant is entitled to no relief as it relates to his second issue.
In Appellant’s third issue, he raises a challenge to the discretionary
aspects of his sentence. However, since we have reversed his finding of
guilt as to the flight to avoid apprehension charge and vacated that aspect of
his sentence, the entire sentencing structure has been disturbed. Therefore,
we need not address Appellant’s sentencing claim as he is entitled to
resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
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