J-A18019-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                     v.

ATIBA WILSON

                          Appellant               No. 1045 WDA 2016


              Appeal from the Judgment of Sentence June 6, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003580-2015
                            CP-02-CR-0012661-2015


BEFORE: BOWES, J., LAZARUS, J., AND OTT, J.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

                                             FILED: OCTOBER 24, 2017

      I agree that Appellant’s suppression challenge at criminal case 2015-

12661 must fail and therefore concur regarding that issue.    I respectfully

dissent from the learned majority’s decision to vacate Appellant’s burglary

conviction at criminal case 2015-03580, as I would hold that the

Commonwealth’s evidence sufficed to establish the essential elements of

that crime.

      The criminal information charging Appellant with burglary stated as

follows:

      The actor, with the intent to commit a crime therein, entered a
      building or occupied structure, namely 7428 Palmer Street,
      Apartment 1, Swissvale, PA 15218 or a separately secured or
      occupied portion thereof that was adapted for overnight
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      accommodation, in which, at the time, no person was present, in
      violation of Sections 3502(a)(2) and (c)(1) of the Pennsylvania
      Crimes Code, Act of December 6, 1972, 18 Pa. C.S. §3502(a)(2)
      and (c)(1), as amended.

Criminal Information, Docket Entry 2. The fact that the Commonwealth did

not allege that Appellant intended to commit a particular crime is essential

to my disposition, as, unlike the Majority, I do not find that the conviction

must be vacated simply because the Commonwealth could not establish that

Appellant intended to commit the        specific crime of flight to avoid

apprehension.

      In Commonwealth v. Alston, 651 A.2d 1092, 1094 (Pa. 2004), our

Supreme Court held that the Commonwealth was not required to prove nor

allege what particular crime a defendant intended to commit in order to

prove burglary.    Accordingly, the Commonwealth must only establish the

“specific intent, at the time of entry, to commit some crime while in the

residence, which was satisfied upon a showing of a general criminal intent

inferred from the totality of the circumstances[.]” Id. at 1092 (emphasis in

original).

      The Majority’s result does not analyze whether the evidence sufficed to

establish that Appellant committed some crime, but instead focuses on

whether Appellant committed a specific crime. This narrow inquiry results

from the prosecutor’s explicit reference to the crime of flight to avoid

apprehension.     Majority Memorandum at 5.    The Majority correctly notes



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that, pursuant to Commonwealth v. Phillips, 129 A.3d 513 (Pa.Super.

2016), Appellant could not be found guilty of flight to avoid apprehension

because he had yet to be formally charged with a crime. The Majority then

determines that its holding is not inconsistent with Alston, because it was

legally impossible for Appellant to commit that crime.

      Wilson is not asserting that the Commonwealth had to charge
      him with or prove the crime of flight to avoid apprehension to
      sustain his burglary conviction. Rather, he argues that he could
      not have had the requisite intent to commit a crime (here, flight
      to avoid apprehension) for burglary purposes, where the
      intended crime itself, or at least that which the Commonwealth
      stated he was intending to commit therein, requires that he has
      first been charged with or convicted of any crime.

      Because the Commonwealth specified that Wilson intended to
      commit the crime of flight to avoid apprehension when he
      entered the structure and Wilson had not yet been charged with
      or convicted of a crime at the time he entered the residence,
      there was no way he could have had the intent to commit the
      crime of flight to avoid apprehension.

Majority Memorandum at 6 (emphasis in original).

      Respectfully, I am not persuaded. My esteemed colleagues hold that

the set of possible crimes that would satisfy the generic criminal intent of

burglary is limited to the crime of flight to avoid apprehension, because the

prosecutor “specified” that crime. However, the prosecutor referenced that

crime during the non-jury proceedings.     The criminal information did not

allege that crime, which is the pertinent consideration. Alston.

      Thus, I interpret the Majority to attach dispositive significance to the

prosecutor’s legal arguments. However, “[A] prosecutor's comments are not

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evidence and the court clearly instructed the jury on this rule of law.”

Commonwealth v. Johnson, 668 A.2d 97, 107 (Pa. 1995).1 Therefore, the

Majority does not fully address the fact that our sufficiency analysis is

conducted de novo. The question is whether a rational fact-finder could find

the essential elements of the crime as charged in the information, not

whether the fact-finder could find the essential elements of the crime

referenced by the prosecutor’s remarks. We must determine “whether the

evidence at trial, and all reasonable inferences derived therefrom, are

sufficient to establish all elements of the offense beyond a reasonable doubt

when viewed in the light most favorable to the Commonwealth as verdict

winner.”    See Commonwealth v. Haney, 131 A.3d 24, 33 (Pa. 2015)

(citations omitted).       Our Supreme Court has noted that the “ultimate

question of evidentiary sufficiency parallels the central inquiry under the

Jackson standard, namely, whether any ‘rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.’”

Commonwealth v. Brown, 617 Pa. 107, 148, 52 A.3d 1139, 1164 (Pa.

2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1970)).

       In my view, the evidence supports a finding that Appellant entered the

building with a generic criminal intent to commit some crime, to wit, the

____________________________________________


1
  Since this matter was tried non-jury, the adequacy of any jury instruction
regarding this element is not at issue.



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continuing crime of escape. “A person commits an offense if he unlawfully

removes himself from official detention[.]” 18 Pa.C.S. § 5121(a). “Official

detention” is defined as:

       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(e). Our case law has interpreted the phrase “any other

detention for law enforcement purposes” to encompass a seizure.

       We must decide whether the phrase “any other detention for law
       enforcement purposes” extends to a pre-arrest situation such as
       that described above. 18 Pa.C.S.A. § 5121. Officer Patterson's
       testimony, that he was in uniform, in a marked police car, had
       his gun drawn because the dispatcher had alerted him that
       Stewart had a weapon, and had ordered Stewart to turn the car
       off, was, in our opinion, sufficient to alert Stewart that he was
       being “officially detained.” It is not necessary that the suspect be
       physically restricted by bars, handcuffs, or locked doors. Escape
       encompasses more than the traditional notion of a prisoner
       scaling a prison wall.

Commonwealth v. Stewart, 648 A.2d 797, 798 (Pa.Super. 1994).

       The facts herein established that Appellant and two other males were

seized at gunpoint by a police officer due to a report of two males

brandishing a firearm.2          “[Appellant] did not comply with the order to

____________________________________________


2
   The “detention for law enforcement” language does not refer to a lawful,
i.e. proper under the Fourth Amendment, detention. In any event, Appellant
did not challenge whether the seizure was proper.
(Footnote Continued Next Page)


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remove his hands from his pockets but his companions did. At that point,

[Appellant] fled the scene.”         Trial Court Opinion, 1/18/17 at 7.   The facts

further establish that, during the subsequent foot chase, Appellant entered a

structure in an attempt to evade the police.          I would hold that a rational

fact-finder could infer the general criminal intent from the totality of those

circumstances, especially when Appellant himself acknowledged that “he ran

in an attempt to hide from the police.”           Id. at 8 (citations to transcript

omitted). I would therefore affirm the burglary conviction.




                       _______________________
(Footnote Continued)




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