J-S76008-16

                                  2016 PA Super 301



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JACK WILLIAMS

                            Appellant                  No. 3138 EDA 2015


      Appeal from the Judgment of Sentence Entered September 30, 2015
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0000048-2015


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

OPINION BY STABILE, J.:                   FILED DECEMBER 23, 2016

        Appellant Jack Williams appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County (“trial court”),

following his bench conviction for escape under 18 Pa.C.S.A. § 5121(a).

Upon review, we affirm.

        The facts and procedural history underlying this case are undisputed.

On November 30, 2014, the Pennsylvania Board of Probation and Parole

(“Board”) issued a warrant to commit and detain Appellant on technical

parole violations for changing residence without permission and failure to

report as instructed.       As a result, Appellant was moved to Kintock Hall, a

half-way house, where he was to remain pending the resolution of his

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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technical parole violations.        While at Kintock Hall, Appellant suffered a

medical emergency on December 2, 2014.             Appellant was escorted by a

member of Kintock Hall to Temple University Hospital. Upon arrival at the

hospital, Appellant left the company of his escort and fled.      Appellant was

charged with escape. He proceeded to a bench trial, following which the trial

court found him guilty of escape. The trial court sentenced Appellant to 11½

to 23 months’ imprisonment on September 30, 2015.               Appellant timely

appealed to this Court.       Following Appellant’s filing of a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, the trial court issued a

Pa.R.A.P. 1925(a) opinion.

       On appeal, Appellant raises two issues for our review:

       [I.] Was the evidence insufficient to support [A]ppellant’s
       conviction for escape where the Commonwealth failed to prove
       that [A]ppellant was in official detention at Kintock Hall, a
       halfway house, and not under parole supervision, at the time of
       the alleged escape?

       [II.] Should not this matter be remanded to the trial court for a
       new trial or a hearing on after-discovered evidence because
       while this case was pending on appeal [A]ppellant received a
       letter from the [Board] clarifying that he was under parole
       supervision     when   he    left  Temple    Hospital    without
                      [1]
       authorization?
____________________________________________


1
  On May 13, 2016, Appellant filed in this Court a “Petition to Vacate Briefing
Schedule and to Remand Matter to Trial Court Pursuant to Pa.R.Crim.P.
720.” In the petition, Appellant argued that on March 3, 2016, he received a
letter from the Board that included reference to facts that constituted after-
discovered evidence under Rule 720. Specifically, Appellant alleged that
according to the letter, he was merely on parole on December 2, 2014.
Consequently, Appellant argues that his status as parolee at the time he fled
(Footnote Continued Next Page)


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Appellant’s Brief at 3.

      We first address Appellant’s claim that the evidence was insufficient to

support his conviction for escape because the Commonwealth did not prove

that he was in “official detention” when he escaped from Kintock Hall on

December 2, 2014. Appellant points out that he was on parole on the date

in question, which is excluded from the definition of official detention under

Section 5121 of the Crimes Code.                  Thus, Appellant argues that the

Commonwealth could not establish the offense of escape because, as a

parolee, he was not in official detention.

      “A claim challenging the sufficiency of the evidence is a question of

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.   In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.         Moreover, in
      applying the above test, the entire record must be evaluated and
                       _______________________
(Footnote Continued)

from the hospital renders his conviction for escape improper. Based on the
reasons set forth infra, we deny Appellant’s petition to vacate and remand.



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      all evidence actually received must be considered. Finally, the
      finder of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014).

      Section 5121 of the Crimes Code, relating to escape, provides in part:

      (a) 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.

       ....

      (e) Definition.--As used in this section the phrase “official
      detention” means 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(a) and (e) (emphasis added). In Commonwealth v.

Maldonado, 966 A.2d 1144 (Pa. Super. 2009), appeal denied, 989 A.2d 8

(Pa. 2010), we addressed the issue of whether Section 5121 necessarily

excludes all parolees from its ambit, even those who have been arrested for

violating terms of their parole, are notified they are considered to be in pre-

release status, and are detained in an official housing facility from which

they leave without permission prior to adjudication of their parole violation

hearings.

      In Maldonado, each appellee was on state parole and was accused of

having committed technical parole violations of his respective parole


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conditions.    Each was apprehended by his parole officer and sent to

Pennsylvania Community Alternative to Prison Program (“Penn CAPP”),

which is administered through a contract with the Pennsylvania Department

of Corrections.    There, each appellee signed an “acknowledgement of

status,” which contained language that each appellee is no longer on parole,

but rather on pre-release.     The appellees then left Penn CAPP without

permission. The Commonwealth charged them with escape. The trial court,

however, dismissed the charges after it granted the appellees’ respective

petitions for writ of habeas corpus. The Commonwealth timely appealed.

      On appeal, we vacated the trial court’s order.         In so doing, we

concluded that a defendant who was held in an “alternative to prison”

residence, awaiting the adjudication of possible parole violations, was being

officially detained under Section 5121 of the Crimes Code. The Maldonado

Court explained that “the legislative intent behind Section 5121 [is] to

punish all those who remove themselves from official detention without

permission.”   Maldonado, 966 A.2d at 1147.        The court explained that

Section 5121 does not necessarily exclude all parolees from its ambit,

reasoning that “it is apparent the exclusions for supervision of probation and

parole are not meant to apply to parolees who have been arrested for parole

violations, [and] placed in a detention facility[.]”   Id.   The Maldonado

Court further explained that once a parolee has been arrested and detained

for a technical violation, “he can hold no reasonable expectation that he




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retains the liberties and freedoms customary to a person operating under

‘supervision of parole.’” Id. The Court observed:

      Critically, each [a]ppellee had been removed from the normal
      course of supervision of parole and recommitted to a detention
      facility pending a hearing to determine whether sufficient
      evidence of parole violation supported his detainment. This
      commitment was therefore not a term or condition of his release
      under supervision of parole; it was a suspension of such release,
      and a recommitment to official detention pending the outcome of
      his hearing. Breaking free from such detention is certainly
      among the mischief intended to be remedied by [S]ection 5121.

       ....

      To give recommitted parole violators incentive to attempt a “no-
      risk” escape from detention centers such as Penn CAPP, centers
      from which they are told they are not free to leave, needlessly
      taxes our enforcement resources and places the public at large
      in danger. We find this potentiality was not what the General
      Assembly intended when it crafted and enacted the “supervision
      of probation or parole” exclusion for persons released on parole.

Id. at 1148.    Accordingly, the Maldonado Court held that Section 5121

applies to a parolee once he is detained for technical parole violation prior to

a formal adjudication of such violations by the Board.

      Here, the evidence presented at trial, viewed in a light most favorable

to the Commonwealth, establishes the Commonwealth proved the necessary

elements of escape. At the bench trial, the Commonwealth presented the

testimony of two witnesses: Marie Faison (“Ms. Faison”), Corrections

Counselor for the Department of Corrections in the Division of Community

Corrections, and Allison Van Fleet (“Ms. Van Fleet”), Assistant District

Attorney in Philadelphia.   N.T. Trial, 7/6/15, at 8-28.   Ms. Faison testified



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that in her capacity at the Department of Corrections, she supervised “all

[state intermediate punishment] cases” and interacted with contracted

facilities, “which are half-way houses the Commonwealth subcontracts with.”

Id. at 9.   She testified that she supervised Kintock Hall, the contracted

facility at issue here, which is located in Philadelphia. Id. at 10. Ms. Faison

pointed out that at Kintock Hall, “[t]hey keep daily records of every offender.

They notate the ins and outs, what their charges are, what their sentences

are, what kinds of programs that they’re involved in at the facility.” Id. at

10-11. She then read from Appellant’s December 2, 2014 incident report,

which was introduced and admitted into evidence and described Appellant as

a parole violator:

             On December the 2nd, 2014, at approximately 6:50 p.m.,
      resident, [Appellant], BL1311615-DS, signed out of the facility
      on an approved emergency medical pass, escorted by S. Louis,
      resident supervisor, and was transported via ambulance to
      Temple University Hospital, located at 3401 North Broad Street,
      Philadelphia, Pennsylvania, 19140, telephone, 215-707-2000,
      after complaining of chest pain and trouble breathing.

            On December the 2nd, 2014, at approximately 6:55 p.m.,
      Ericka Jordan-Frager, deputy officer, contacted PBPP247 and
      spoke to PC077, to inform him that [Appellant] was taken to
      Temple Hospital at 6:50 via ambulance and with a staff escort.
      On December the 2nd, 2014, at approximately 6:58, Ms. Jordan-
      Flager contacted Mr. Johnson, contract facility coordinator, to
      inform that [Appellant] was taken to Temple Hospital with a staff
      escort.

            On December the 2nd, 2014, at approximately 9:09 p.m.,
      [Appellant] walked away from Temple University Hospital and
      away from Mr. Louis without authorization. On December the
      2nd, at approximately 9:09, Mr. Louis contacted Devon Williams,
      the resident supervisor, to inform him that [Appellant] walked


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      away from Temple University Hospital and away from staff
      without authorization.

            On December the 2nd, 2014, at approximately 9:12 p.m.,
      Mr. Williams contacted Ms. Jordan-Flager to inform her that
      [Appellant] walked away from Temple University Hospital and
      away from Mr. Louis without authorization at 9:09.       On
      December 2nd, 2014, at approximately 9:16, Ms. Jordan-Flager
      contacted Ms. Johnson to inform her of the occurrence. On
      December 2nd, 2014, at 9:19 p.m., Mr. Williams flagged the
      subject escape packet to the Pennsylvania State Police.

            On December 2nd, 2014, at approximately 9:20, Ms.
      Jordan-Flager contacted PBPP247 and spoke to PC077 to inform
      them of the occurrence.        On December 2nd, 2014, at
      approximately 9:31 p.m., Mr. Williams contacted Pennsylvania
      State Police and spoke to Trooper Hampton who confirmed that
      the escape packet was received.

Id. at 15-17.

      On cross-examination, Ms. Faison acknowledged that, although she

worked directly out of the regional office, she was familiar with Kintock Hall.

Id. at 19-20. She further acknowledged “Kintock houses offenders in a few

different classification statuses,” such as parole violators, parolees, and pre-

release. Id. at 20. Ms. Faison admitted that she had never met Appellant

and that she did not have any personal knowledge of the December 2, 2014

incident.    Finally, she also acknowledged that she did not write up

Appellant’s incident report.

      Next, Ms. Van Fleet testified that she worked as an assistant district

attorney in the east bureau of the trial division at the District Attorney’s

Office.   Id. at 22.   She testified that she received a two-page letter from

Appellant, “a few days prior to the first trial listing[.]” Id. at 24. After the



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letter was introduced and admitted into evidence without objection, Ms. Van

Fleet read portions of it into the record:

      To whom it may concern at the district attorney’s office, my
      name is [Appellant], 714571. I’m being held at CFCF for a[n]
      escape charge, which I was accused for walking away from
      Kintock half-way house. My case number is CP51CR0000048-
      2015. I was offered one-and-a-half to three years for this case.
      Please let me explain. That’s 18 months. Then parole is going
      to give me a 18 month hit and going to take all my street time,
      which is 17 months. That’s almost four-and-a-half years for
      walking away from a half-way house.

Id. at 27-28 (emphasis added).

      In response, Appellant testified on his own behalf. He testified that,

on November 30, 2014, he arrived at the Kintock Hall facility, where he was

residing on the day of the incident. Id. at 36. Appellant testified that he

was designated a parolee at Kintock Hall, where he was placed for being

delinquent on his parole. Id. at 36-37, 46. He, however, testified that the

Board did not revoke his parole until March 12, 2015, when it disposed of

the technical violations that landed him at Kintock Hall. Id. at 37-38. Thus,

Appellant maintained that, while he was at Kintock Hall, he had not been

adjudicated a parole violator. Rather, he was merely a parolee awaiting the

disposition of the underlying violations.

      Thus, based upon the foregoing and consistent with Maldonado, we

agree with the trial court’s conclusion that Appellant’s conviction for escape

was supported by sufficient evidence of record. Here, the fact that Appellant

was designated a parolee is immaterial.       As we noted in Maldonado,



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Section 5121 does not apply to parolees who have been arrested for parole

violations and placed in a detention facility, because such parolees have no

reasonable     expectation   that   they   retain   the   liberties    and   freedoms

customary to a person operating under supervision of parole.              As the trial

court found:

      [Appellant] was housed at Kintock not as a condition of his
      parole but pending the outcome of his violation of parole
      hearing.    To seek emergency medical attention, [Appellant]
      needed to be granted leave to go to the hospital and was
      accompanied by a member of Kintock staff. From these facts, it
      is reasonable to infer that [Appellant] was confined at Kintock.
      [Appellant] was not free to come and go as he pleased, and his
      liberty was restrained pending the outcome of his alleged parole
      violations.

Trial Court Opinion, 4/18/16, at 6 (emphasis added).                  Moreover, when

Appellant left without permission from the hospital on December 2, 2014, he

was in detention at Kintock Hall. Accordingly, the evidence here is sufficient

to establish the element of “official detention” for purposes of convicting

Appellant of escape pursuant to Section 5121(a).

    We next address Appellant’s argument that this matter should be

remanded to the trial court for a new trial or a hearing on after-discovered

evidence because while this case was pending on appeal he received a letter

from the Board on March 3, 2016, confirming that he was designated as a

parolee on the day he fled from Temple Hospital without authorization.

      Rule 720, relating to post-sentence procedures and appeal, provides in

pertinent part:



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     (C) After-Discovered Evidence. A post-sentence motion for a
     new trial on the ground of after-discovered evidence must be
     filed in writing promptly after such discovery.

Pa.R.Crim.P. 720(C); Commonwealth v. Castro, 93 A.3d 818, 828 (Pa.

2014) (noting that Rule 720(c) requires a motion for after-discovered

evidence to be filed promptly upon the discovery of such evidence).      The

Note to Rule 720 states that “after-discovered evidence discovered during

the direct appeal process must be raised promptly during the direct appeal

process, and should include a request for a remand to the trial judge. It is

well-settled that to obtain relief, the after-discovered evidence must meet a

four-prong test:

     (1) the evidence could not have been obtained before the
     conclusion of the trial by reasonable diligence; (2) the evidence
     is not merely corroborative or cumulative; (3) the evidence will
     not be used solely for purposes of impeachment; and (4) the
     evidence is of such a nature and character that a different
     outcome is likely. At an evidentiary hearing, an appellant must
     show by a preponderance of the evidence that each of these
     factors has been met in order for a new trial to be warranted.

Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa. Super. 2007) (citation

omitted), appeal denied, 958 A.2d 1047 (Pa. 2008).

     Instantly, we conclude that the Board’s March 3, 2016 letter does not

constitute after-discovered evidence, as it is merely corroborative or

cumulative of Appellant’s argument, which we addressed above, that he was

on parole on December 2, 2014.      In other words, the letter may best be

described as a different source for the same fact, i.e., Appellant was on

parole on the day in question.      Even if the Board’s letter were after-


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discovered evidence, it would not compel a different outcome with respect to

Appellant’s conviction for escape. As we discussed earlier, it is immaterial

whether Appellant was designated as a parolee at Kintock Hall awaiting

formal adjudication by the Board of his technical violations.              Under

Maldonado, once a parolee, such as Appellant here, has been arrested and

detained for technical parole violations prior to a formal adjudication of such

violations by the Board, he can hold no reasonable expectation that he

retains the liberties and freedoms customary to a person operating under

supervision of parole. Accordingly, Appellant is not entitled to relief.

      Judgment of sentence affirmed. Petition to vacate and remand denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2016




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