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

____________________________________________


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



____________________________________________


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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