J-S82011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TERRELL TREVOR PERRY,

                            Appellant                   No. 21 WDA 2017


      Appeal from the Judgment of Sentence Entered November 30, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0003772-2016


BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY BENDER, P.J.E.:                         FILED MARCH 05, 2018

        Appellant, Terrell Trevor Perry, appeals from the judgment of sentence

of an aggregate term of 1-2 years’ incarceration, imposed following his

conviction for escape and criminal mischief. Herein, Appellant challenges the

sufficiency of the evidence supporting his escape conviction; in particular,

Appellant contends that he was not in “official detention” within the meaning

of the escape statute when he absconded from supervision. See 18 Pa.C.S.

§ 5121(e). After careful review, we affirm.

        The trial court briefly summarized the facts adduced at trial as follows:

              On or about December 11, 2015, [Appellant] was on state
        parole due to an unrelated conviction. He had been residing at
        Penn Pavilion, a residential alternative housing facility, as a
____________________________________________


*   Former Justice specially assigned to the Superior Court.
**   Retired Senior Judge assigned to the Superior Court.
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      condition of his parole. While there, [he] refused to comply with
      a strip search. His failure to consent to the strip search was
      deemed a violation of his state parole and a warrant was issued
      by the State Parole Board committing [Appellant] to the Renewal
      Center, another residential alternative housing facility. Pursuant
      to the warrant, [Appellant] was physically transferred to the
      Renewal Center on December 11, 2015. As a parole violator,
      [Appellant] was brought to the Renewal Center in handcuffs and
      shackles. He was not permitted to leave the facility and he was
      under total lockdown and was not free to leave for a period of 60
      to 120 days. He was not permitted to obtain work release. The
      doors were always locked and could only be opened by a staff
      member.

            On February 6, 2016, [Appellant] threw a piece of exercise
      equipment through a window of the Renewal Center. He climbed
      through the broken window and exited the Renewal Center.

Trial Court Opinion (TCO), 6/23/17, at 2.

      On May 12, 2016, the Commonwealth charged Appellant with escape,

18 Pa.C.S. § 5121(a); and criminal mischief, 18 Pa.C.S. § 3304(a)(5). The

case proceeded to a non-jury trial held on June 10, 2017.        At trial, the

Commonwealth presented the only witness to testify, Nicole Brannon, the

manager of the parole violator unit at the Renewal Center. The parties also

agreed to several factual stipulations.     That same day, the trial court

convicted Appellant of both offenses, and immediately sentenced him to 1-2

years’ incarceration for escape, and a concurrent term of 90 days’

incarceration for criminal mischief. Appellant field a timely notice of appeal

and timely, court-ordered Pa.R.A.P. 1925(b) statement.        The trial court

issued its Rule 1925(a) opinion on June 23, 2017. Appellant now presents

the following question for our review: “Did the Commonwealth fail to present




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sufficient evidence to support [Appellant]’s conviction?” Appellant’s Brief at

5.

      Our standard of review of sufficiency claims is well-settled:

             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support
      the verdict when it establishes each material element of the
      crime charged and the commission thereof by the accused,
      beyond a reasonable doubt. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim[,] the court is required to view the evidence in
      the light most favorable to the verdict winner giving the
      prosecution the benefit of all reasonable inferences to be drawn
      from the evidence.

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

citations omitted).

      The escape statute provides, in pertinent part, as follows:

      (a) Escape.--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. § 5121 (emphasis added).

      Appellant argues that he was not subject to “official detention,” as that

phrase is defined under Section 5121(e), when he absconded from the

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Renewal Center. Essentially, he contends that he was either under parole

supervision when he absconded or, alternatively, that his parole status was

“so ambiguous and unclear [that] the Commonwealth was unable to prove

that [Appellant] was not being supervised pursuant to his parolee status

while at [the] Renewal Center.” Appellant’s Brief at 9. He argues:

      There is no question that [Appellant] was on parole at the time
      of the alleged incident. Given that his parole status had yet to
      be revoked, Renewal's staff was simply supervising [him],
      thereby excluding him from the category of persons under
      "official detention" as defined in 18 Pa.C.S. § 5121(e). Parole
      has been defined as a method of rehabilitation that permits
      offenders to serve a period of their sentences outside of prison
      walls, subject to the terms and conditions imposed by the
      Commonwealth.         Riverbank v. Pennsylvania Board of
      Probation and Parole, 514 A.2d 967 (Pa. Cmwlth. 1985). Part
      of [Appellant]'s rehabilitation consisted of him working with Penn
      Pavilion, a halfway house and work center located in New
      Brighton. At Renewal, [Appellant] was being housed on the
      parole violators' unit for failing to comply with a strip search
      while at Penn Pavilion. Of note is that he was transferred to
      Renewal by parole, thereby rendering him supervised. Brannon
      even conceded during cross-examination that [Appellant] was
      under parole in the lockdown unit.

Appellant’s Brief at 11 (citations to the trial transcript omitted, emphasis in

original).

      The trial court rejected this argument, reasoning as follows:

         In this case it is clear that [Appellant] was not being housed
      at the Renewal Center pursuant to his supervision while on
      parole. He was ordered, by warrant, to be taken into custody
      and housed at the Renewal Center due to a violation of his
      parole. While at the Renewal Center, [Appellant] was in custody
      and he was not free to leave. The instant case is akin to
      Commonwealth v. Maldonado, 966 A.2d 1144 … (Pa. Super.
      2009), a case in which a defendant fled a[] community


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       corrections center after violating conditions of parole.        In that
       case, the Superior Court noted that

          [o]nce a parolee is arrested and detained for [violating
          parole], and acknowledges he is essentially in "prerelease"
          status, he is in "official detention" for purposes of Section
          5121 just as any other person placed in custody is. As
          such, he can hold no reasonable expectation that he
          retains the liberties and freedoms customary to a person
          operating under "supervision of parole."

       Id. [at 1147]. Accordingly, [Appellant] was being detained for
       law enforcement purposes when he fled the Renewal Center.

TCO at 4.

       In Maldonado, the defendants were apprehended by their respective

parole officers for technical violations of the terms of their parole.

Maldonado, 966 A.2d at 1145. They were placed in a private facility owned

by    Firetree,   Ltd.,    which   administered   the   Pennsylvania    Community

Alternative to Prison Program (“Penn CAPP”) through a contract with the

Commonwealth.        Id.    A detainer was lodged; however, no adjudication of

their parole violations had occurred when they absconded from the facility.

Id.    Nevertheless, upon their admission to Penn CAPP, each defendant

signed a form advising them that they were no longer on parole but, instead,

in a pre-release status. Id.

       Both individuals were charged with escape, however, the trial court

dismissed the charges on the basis that they were parolees within the

meaning of the escape statute. Id. at 1146. The issue before this Court in

Maldonado was

       whether Section 5121 necessarily excludes all parolees from its
       ambit, even those who have been arrested for violating terms of

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        their parole, notified they are considered to be in “prerelease”
        status, and detained in an official housing facility from which
        they leave without permission prior to adjudication of their
        parole violation hearings.

Id.

        The Maldonado Court began its analysis by noting that “placement in

Penn CAPP, though not a prison, may subject one to official detention as

contemplated in the escape statute.”      Id.   The Court then concluded that

“detainment in Penn CAPP constrains one’s freedom of movement to within

the confines of a housing facility such that placement there effects the kind

of detention contemplated within the meaning of Section 5121.”           Id. at

1147.

        The Maldonado Court then turned to the defendants’ claim that they

were under “supervision of parole” when detained, and thus their status as

parolees controlled, and precluded any charges under Section 5121. Id. To

address this claim, the Court engaged in statutory interpretation of the

phrase “supervision of parole,” which is not specifically defined in Section

5121, and had not been addressed in previous cases examining the statute.

Id. The Court concluded that

        the legislative intent behind Section 5121 to punish all those who
        remove themselves from official detention without permission.
        When read in this context, it is apparent the exclusions for
        supervision of probation or parole are not meant to apply to
        parolees who have been arrested for parole violations, placed in
        a detention facility, and have acknowledged they are now
        deemed “prerelease” detainees, as was the case with each
        Appellee. To read section 5121 otherwise is incongruent with the
        definitions within subsection (e) and the overarching purpose of
        subsection (a) and cannot therefore stand scrutiny.


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           Once a parolee is arrested and detained for failing to
     report, and acknowledges he is essentially in “prerelease” status,
     he is in “official detention” for purposes of Section 5121 just as
     any other person placed in custody is. As such, he can hold no
     reasonable expectation that he retains the liberties and freedoms
     customary to a person operating under “supervision of parole.”

           This holding is consistent with that reached in
     Commonwealth v. Davis, 852 A.2d 392 (Pa. Super. 2004),
     where we affirmed judgment of sentence under section 5121 for
     an inmate who had been removed from prison and housed at
     Penn Capp in “prerelease” status at the time he left the facility
     without permission. In rejecting the defendant's claim that once
     out of prison he was on parole and thus eligible for the
     “supervision of parole” exclusion, this Court reasoned that
     “prerelease” translates to “‘prior to release’ and begs the
     question, [‘]prior to release on what?[’]” Id. at 396. As parole
     could not have yet commenced as long as the defendant was in
     “prerelease” status, we held, it must be that the defendant was
     not under “supervision of parole.”

           While the facts show each Appellee had already been
     placed on parole prior to the events in question, the logic and
     public policy considerations announced in Davis with respect to
     the distinctions between “supervision of parole” and prerelease
     status nevertheless apply. Critically, each Appellee 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.

            Moreover, while neither Appellee's parole status could be
     officially revoked—and his status officially reclassified to
     “prerelease”—prior to the hearing, each understood that the
     nature of his placement had materially changed, as evidenced by
     his written acknowledgment that he was to be considered on
     “prerelease” status upon his commitment. Neither Appellee,
     therefore, can be heard to complain that a charge under section
     5121 for releasing himself after agreeing he was in a prerelease
     state worked an unfair surprise or other due process violation.

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J-S82011-17


      To the contrary, the consequences of interpreting [S]ection 5121
      to apply are appropriate and just, under the facts of each case.

            Finally, we note such an interpretation is necessary lest an
      absurdity having no basis in reason, law, or public policy arise.
      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 1147–48.

      Instantly, the State Parole Board issued a warrant to commit Appellant

to the Renewal Center for alleged violations of his parole committed when he

was housed at Penn Pavilion. N.T., 11/30/16, at 8, 13, 21-22. Appellant

was then detained in the parole violator’s unit, which “is a complete

lockdown unit….”    Id. at 11.   Appellant signed an intake form upon his

arrival, which notified him that he would be charged with escape if he left.

Id. at 14.

      We agree with the trial court that these facts are sufficiently analogous

to those of Maldonado to conclude that Appellant was in “official detention”

within the meaning of Section 5121. Appellant’s status as a mere parolee

serving the term of his parole, as contemplated under Section 5121(e),

changed when he was detained in anticipation of a parole violation hearing.

To permit any other interpretation is, as the Maldonado Court warned,

contrary to “reason, law, [and] public policy….”    Maldonado, 966 A.2d at

1148. Most importantly, Appellant was subject to a warrant to detain him.

As such, Appellant did not merely violate the terms of his parole when he

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fled the Renewal Center; instead, he fled following the functional equivalent

of his arrest, a restraint on his liberty that went far beyond the terms of his

parole.   Moreover, under the specific facts of this case, Appellant cannot

credibly claim that he lacked notice that he could be subject to an escape

charge if he absconded from the Renewal Center. To the contrary, he was

specifically informed of and acknowledged his criminal liability for escape

when he arrived.

      Additionally, we note that Section 5121(e) does not expressly exclude

probationers or parolees, as a class, from the escape statute. Surely, the

legislature was capable of excluding such a class from the terms of the

statute, but chose not to do so. Rather, Section 5121(e) dictates that the

phrase “‘official detention’ … does not include supervision of probation or

parole[.]” 18 Pa.C.S. § 5121(e). A rational interpretation of this statutory

language indicates that conditions of probation and parole cannot alone

constitute an official detention, not that probationers and parolees are

excluded classes from the scope of the escape statute, although it may often

be convenient shorthand to conflate the two concepts.

      Once a probationer or parolee is detained in anticipation of a violation

hearing, they cease being subject to the normal course of supervisory

conditions which were exempted from the definition of “official detention.”

Their “status” is somewhat irrelevant in this regard, as the dispositive factor

as to what constitutes an “official detention” concerns the nature of the

restrictions on liberty imposed on the person, regardless of their status. If

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such restrictions are merely imposed as conditions of probation or parole,

then the breach of those conditions cannot constitute an escape.                   If,

however, a probationer or parolee is detained for violations of probation or

parole, that detention is not itself a condition of probation or parole and,

therefore, a breach thereof can serve as the basis for an escape charge and

conviction.

       Appellant argues, in the alternative, that this Court should reconsider

our decision in Maldonado. Even if we were inclined to do so,1 “[t]his panel

is not empowered to overrule another panel of the Superior Court.”

Commonwealth           v.   Beck,    78    A.3d    656,   659   (Pa.   Super.   2013).

Accordingly, we decline to address Appellant’s alternative argument.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/2018


____________________________________________


1 We are not so inclined. We agree with the Maldonado Court’s well-
reasoned and practical interpretation of the interplay between Sections
5121(a) and (e). We do not believe the legislature intended to create a
loophole in the escape statute for parolees detained in anticipation of the
adjudication of alleged parole violations.



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