J-S85003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CARL BUXTON                              :
                                          :
                   Appellant              :   No. 1768 WDA 2016

            Appeal from the Judgment of Sentence July 25, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0015352-2013



BEFORE: BOWES, J., PANELLA, J., and STABILE, J.

MEMORANDUM BY BOWES, J.:                                FILED MAY 01, 2018

      Carl Buxton appeals from the aggregate judgment of sentence of three

to six years incarceration followed by five years probation imposed after a jury

convicted him of criminal trespass, escape, and flight to avoid apprehension.

We affirm.

      The trial court offered the following summary of the underlying facts.

             On October 24, 2013, deputies from the Allegheny County
      Sheriff’s Office attempted to serve a felony arrest warrant on
      [Appellant] for drug-related charges. The warrant was issued on
      August 27, 2013[,] but law enforcement authorities had been
      unable to locate [Appellant]. On October 24, 2013, deputies
      obtained information that [Appellant] was residing at a residence
      located at 243 Dilworth Street in the Mt. Washington section of
      the City of Pittsburgh. The deputies responded to that address in
      the effort to locate [Appellant]. All of the deputies were [dressed
      in plain clothes but were] wearing visible police badges when they
      responded to the scene.
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             Upon arriving at the residence, a number of deputies
      maintained a perimeter around the residence. Lieutenant Jack
      Kearney, along with other deputies, attempted to make contact
      with [Appellant] via the front door of the residence. While
      positioned on the front porch, Lieutenant Kearney was able to
      observe [Appellant] through a front window of the residence.
      [Appellant] was sitting on a couch. Lieutenant Kearney knocked
      on the front door of the residence and Deputy Jared Kulik loudly
      announced “police with a warrant!” [Appellant] then quickly
      jumped up from the couch and ran toward the rear of the
      residence.    Deputies made forced entry into the residence.
      [Appellant] ran to the basement of the residence and was followed
      by various deputies. [Appellant] then attempted to exit the
      residence through a basement window. At this point, Deputy Kulik
      grabbed [Appellant’s] leg and yelled to [him] that he was under
      arrest and that he should stop fleeing. Deputy Kulik had briefly
      detained [Appellant] by grabbing his leg, however, [Appellant]
      refused to stop and continued to resist Deputy Kulik’s efforts to
      apprehend him. [Appellant] began kicking and thrashing about.
      Despite Deputy Kulik’s efforts, [Appellant] broke free of Deputy
      Kulik’s grasp and escaped out of the window.

            Once outside, [Appellant] continued to crawl under the
      porch of the residence. As the deputies exited the residence
      attempting to locate [Appellant], they were confronted by
      neighbors who advised that [Appellant] had fled into the basement
      of a nearby residence. The deputies entered that residence and
      located [Appellant] hiding behind some curtains. [Appellant] was
      ordered to come out from behind the curtains. He did and was
      taken into custody. The residents of that address were a 15-year
      old boy, his mother and his grandmother. They were present in
      the residence when [Appellant] rushed into it. [Appellant] did not
      have permission to enter that residence.

Trial Court Opinion, 7/23/17, at 2-3.

      Appellant was charged with criminal trespass, escape, flight to avoid

apprehension, and resisting arrest.     He was convicted of all counts except

resisting arrest and sentenced as indicated above. Counsel timely filed a post-

sentence motion and was granted leave to withdraw. Substitute counsel was


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appointed and filed an amended motion. The trial court denied all requests

for relief.

       Appellant filed a timely notice of appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925. Appellant presents this Court with the

following questions.

       I.     Was the evidence insufficient to support a conviction for
              flight to avoid apprehension insofar as the Commonwealth
              failed to prove beyond a reasonable doubt that [Appellant]
              intended to avoid apprehension, trial or punishment, where
              [Appellant] knew he had an active warrant for his arrest for
              a previous charge or conviction?

       II.    Was the evidence insufficient to support a conviction for
              escape?

              A. Did the Commonwealth fail to prove beyond a reasonable
                 doubt that [Appellant] intentionally, knowingly or
                 recklessly removed himself from official detention,
                 where the evidence did not establish that [Appellant]
                 knew he was fleeing from the police who had an active
                 warrant for his arrest?

              B. Did the Commonwealth fail to prove beyond a reasonable
                 doubt that [Appellant] intentionally, knowingly or
                 recklessly removed himself from official detention,
                 where the evidence did not establish that he was placed
                 under official detention before or during the incident?

       III.   Did the lower court abuse its discretion in imposing an
              excessive and unreasonable sentence above the aggravated
              range of the sentencing guidelines where the court relied
              exclusively on [Appellant’s] prior criminal history and the
              gravity of the offense, which was no more heinous than the
              “normal” or “typical” case of this sort?

Appellant’s brief at 7-8.




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      We begin with the law applicable to our review of Appellant’s challenges

to the sufficiency of the evidence to sustain his convictions.


      Because a determination of evidentiary sufficiency presents a
      question of law, our standard of review is de novo and our scope
      of review is plenary. In reviewing the sufficiency of the evidence,
      we must determine whether the evidence admitted at trial and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      [T]he facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017)

(citations and quotation marks omitted).

      A person is guilty of flight to avoid apprehension when he “willfully

conceals himself or moves or travels within or outside this Commonwealth

with the intent to avoid apprehension, trial or punishment[.]”      18 Pa.C.S.

§ 5126(a). Further, the person must have been charged with a crime at the

time of flight. Commonwealth v. Phillips, 129 A.3d 513, 518 (Pa.Super.

2015).

      A person commits the offense of escape if he or she “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



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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[.]” 18 Pa.C.S. § 5121(e). The Commonwealth must prove that the

person acted intentionally, knowingly, or recklessly in removing himself or

herself from official detention.   Commonwealth v. Scott, 967 A.2d 995,

1000 (Pa.Super. 2009).

      Appellant first argues that the evidence offered at trial was insufficient

to prove the mens rea elements of either crime. Specifically, he contends

that, because there was no evidence that Appellant knew that there was a

warrant for his arrest, the Commonwealth failed to show that Appellant

intended to avoid apprehension, trial, or punishment. Appellant’s brief at 23-

24.   Similarly, Appellant contends that the escape conviction cannot stand

because there was insufficient proof that he knew he was in official detention:

      [Appellant] did not know of the existence of the warrant against
      him. Whether he ran because he saw a stranger in street clothes
      peering in the window at him, or when three men in street clothes
      kicked in the door and entered his friend’s house, he did so
      because he was afraid. Even if he heard the detectives identify
      themselves as the police, and announce that they had a warrant,
      he had no reason to believe that the warrant was for him. He was
      not in his own residence. He also could not be certain whether
      the plain-clothed strangers were in fact the police, and made a
      split[-]second decision not to wait to find out.

Id. at 28.

      Although the Commonwealth did not have direct evidence of the

subjective intent behind Appellant’s actions, criminal intent may be proven by

circumstantial evidence. Commonwealth v. Sanders, 627 A.2d 183, 186

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(Pa.Super. 1993). The Commonwealth presented evidence that members of

the Allegheny County Sheriff’s Office fugitive squad, in plain clothes but

displaying badges, appeared on the porch of the house in which Appellant was

present, and one knocked on the front door and announced “police with a

warrant.” N.T. Trial, 5/5-6/16, at 30, 37, 54, 67. Appellant immediately ran

towards the back of the house, then down stairs to the basement. Id. at 57.

The officers found Appellant climbing out of a basement window head first.

Id. at 69. Detective Kulik “yelled” at Appellant to stop because he was under

arrest.   Id. at 70.   Appellant nonetheless proceeded out of the basement

window, into the basement of another residence, and hid behind a curtain

under the basement stairs where he ultimately was found and arrested. Id.

at 71-72.

      Hence, contrary to Appellant’s arguments, the evidence viewed in the

light most favorable to the Commonwealth established that Appellant was

clearly advised more than once that the individuals seeking him were law

enforcement officers with a warrant and that Appellant was under arrest.

Despite that knowledge, Appellant fled and attempted to elude capture, both

before and after Detective Kulik briefly detained him. From these facts, the

jury reasonably could conclude that Appellant’s flight was motivated by his

desire to avoid arrest.   Commonwealth v. Hall, 830 A.2d 537, 542 (Pa.

2003) (quoting Commonwealth v. Meredith, 416 A.2d 481, 485 (Pa. 1980))




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(“Where the intention of the actor is obvious from the act itself, the finder of

fact is justified in assigning the intention that is suggested by the conduct.”).

      Appellant next disputes the Commonwealth’s proof that he had escaped

from official detention, claiming that there was insufficient evidence to show

that he had ever been detained. Appellant’s brief at 29-30. Appellant bases

his argument on this Court’s decision in Commonwealth v. Woody, 939 A.2d

359, 362 (Pa.Super. 2007).

      We begin by noting that, for a person to be in official detention for

purposes of the escape statute, “[i]t 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

determination is based upon the specific circumstances of the case. Woody,

supra, at 362.

      In Woody, the case relied upon by Appellant, Woody drove away from

an officer who followed, in an attempt to initiate a traffic stop.     Appellant

eventually abandoned his vehicle and fled on foot, while the officer pursued

him in the police cruiser, yelling at Woody to stop and get on the ground.

Woody was convicted of escape based wholly on his failure to comply with the

officer’s commands to stop. This Court vacated the conviction, holding that

the evidence failed to show that Woody had ever been detained by the officer.

Id. at 363.


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      However, the Commonwealth cites cases in which this Court has reached

the opposite conclusion.     Commonwealth’s brief at 12-14. For example, in

Stewart, a uniformed officer in a marked car encountered Stewart, who was

driving a vehicle, at a traffic light.       The officer drew his weapon and

approached Stewart, advising him to put his hands on the dashboard.

Instead, Stewart drove away. 648 A.2d at 797. This Court held that the

officer’s “show of authority was sufficient to place Stewart in official

detention,” and “Stewart’s decision to drive off in his car, despite [the officer’s]

clear instructions, constituted the crime of escape, a flagrant and unlawful

removal from official detention.”    Stewart, supra, at 798-99.

      In Commonwealth v. Colon, 719 A.2d 1099, 1101 (Pa.Super. 1998),

this Court considered “whether official detention exists when an individual is

informed by a uniformed officer that he has a warrant for his arrest and that

the individual is under arrest.” This Court held that it did:

             At the point he had been informed the officers had a warrant
      for his arrest and that he was under arrest, [Colon] was detained
      by a show of authority whereby he could not reasonably believe
      that he was free to leave. We find the statements by the officers
      in which they announced the purpose of their presence were
      sufficient to alert [Colon] that he was being officially detained. It
      is the warrant which extends the power of the state over the
      defendant, beyond the mere assertion he is under arrest, and
      completes the required element of “official detention” necessary
      to constitute the crime of escape. The warrant in this case is as
      compelling to establish requisite control and detention of [Colon]
      as were the drawn gun and directive to place defendant's hands
      on the dashboard of his automobile in Stewart. The warrant is
      the ultimate exercise of due process in obtaining official custody
      of a person charged with a crime and must be given the highest
      respect by the citizenry when executed to prevent the use of force

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      and contempt for the constitutional process. A warrant is always
      preferred over an extemporaneous arrest, and refusal to accede
      to service of a warrant and response by fleeing, reasonably should
      be treated as an escape. . . . Under the circumstances of this
      case, it is clear that the officers exhibited a show of authority
      which a jury could reasonably conclude was sufficient to place
      [Colon] in official detention for law enforcement purposes.

Id. at 1101.

      The instant case is more akin to Colon and Stewart than to Woody.

Here, as detailed above, the officers were not in uniform. However, they did

display badges, and informed Appellant that they had a warrant and he was

under arrest. Detective Kulik used physical force to restrain Appellant, but

Appellant evaded the arresting officer’s grasp. See N.T. Trial, 5/5-6/16, at

70 (“I held onto his pant leg, told him to stop, he is under arrest. He thrashed

about, kicked, squirmed, pulling away from my grasp. I had him detained

shortly, but threw [sic] his resistance and his efforts to escape, he was able

to break free from my grasp.”). From this, the Commonwealth established

that Appellant was subject to a “show of authority . . . sufficient to place [him]

in official detention.” Stewart, supra, at 798. We therefore conclude that

the evidence was sufficient to sustain Appellant’s convictions.

      We now turn to his challenge to the discretionary aspects of his

sentence. The following law applies to our review.


      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the



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       appellant has invoked our jurisdiction by considering the following
       four factors:

              (1) whether appellant has filed a timely notice of
              appeal, see Pa.R.A.P. 902 and 903; (2) whether the
              issue was properly preserved at sentencing or in a
              motion to reconsider and modify sentence, see
              Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
              fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
              is a substantial question that the sentence appealed
              from is not appropriate under the Sentencing Code,
              42 Pa.C.S.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(some citations omitted).

       Appellant filed a notice of appeal after preserving his issues by including

them in a motion to modify sentence and his Pa.R.A.P. 1925(b) statement.

Further, Appellant’s brief contains a statement pursuant to Pa.R.A.P. 2119(f),

wherein he claims that, the trial court imposed “an excessive and

unreasonable sentence above the aggravated range of the sentencing

guidelines” by impermissibly relying upon factors “already accounted for in

calculating the guideline ranges.”1 Appellant’s brief at 20. Appellant further

contends that the trial court failed to consider his need for rehabilitation. Id.

at 21.       Appellant’s claims raise substantial questions.           See, e.g.,

Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.Super. 2003) (“[A]

____________________________________________


1 Appellant presents argument solely as to his sentence for criminal trespass,
not as to aggregate sentence or the individual sentences on the other
convictions. See Appellant’s brief at 34-38. Notably, Appellant received a
standard-range sentence for flight, and only a probationary term for escape
although the guidelines suggested a minimum term of incarceration of 21 to
27 months. Id. at 33.

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claim that the sentence is excessive because the trial court relied on

impermissible factors raises a substantial question.”); Commonwealth v.

Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014) (finding a substantial question

was presented by an excessiveness claim combined with allegations that the

trial court failed to consider mitigating factors). Nevertheless, we conclude

that they entitle him to no relief.

      [T]he proper standard of review when considering whether to
      affirm the sentencing court’s determination is an abuse of
      discretion. [A]n abuse of discretion is more than a mere error of
      judgment; thus, a sentencing court will not have abused its
      discretion unless the record discloses that the judgment exercised
      was manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill-will. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support so as
      to be clearly erroneous.

             Where the trial court deviates above the guidelines, this
      Court may only vacate and remand a case for resentencing if we
      first conclude that the sentencing court sentenced outside the
      sentencing guidelines and the sentence is unreasonable. Although
      the Sentencing Code does not define the term unreasonable, our
      Supreme Court has made clear that rejection of a sentencing
      court’s imposition of sentence on unreasonableness grounds
      [should] occur infrequently, whether the sentence is above or
      below the guideline ranges, especially when the unreasonableness
      inquiry is conducted using the proper standard of review.

Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa.Super. 2017) (internal

quotation marks and citations omitted).

      The trial court reviewed a presentence investigation report (“PSI”)

prepared for the instant case, as well as a prior PSI prepared in another of

Appellant’s cases. N.T. Sentencing, 7/25/16, at 2-3. Thus, we presume that

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the trial court considered the relevant mitigating factors. Commonwealth v.

Boyer, 856 A.2d 149, 154 (Pa.Super. 2004) (“[W]here the sentencing judge

had the benefit of a [PSI] report, it will be presumed that he or she was aware

of the relevant information regarding the defendant’s character and weighed

those considerations along with mitigating statutory factors.”).

      At the time of sentencing, Appellant had a prior record score of five.

The offense gravity score for criminal trespass was three. Accordingly, the

sentencing guidelines recommended the following minimum sentences: three

months in the mitigated range, six to sixteen months in the standard range,

and nineteen months in the aggravated range.

      While exercising his right to allocution at the sentencing hearing,

Appellant informed the trial court that he wanted “a second chance.” N.T.

Sentencing, 7/25/16, at 6. The trial court responded as follows.

            You have passed second, third, fourth, fifth chance already,
      [Appellant]. You have a prior record score of five. You are defiant.
      You just don’t want to comport to your conduct what the law
      requires.

            . . . .

             You entered the home of innocent people with police on your
      tail. You created a huge danger in that community and specifically
      to the people in that house. The police don’t know where you are
      going, they don’t know who these people are, whether they are
      connected to you or not, whether these people pose a threat to
      you as they chase you into some stranger’s house.

            . . . .

            It doesn’t matter whether you aren’t trying to hurt anybody.
      You created a very serious situation and a dangerous situation for

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      innocent people, a woman taking groceries into her car with
      people in the home and in you go.

            And then the police don’t know whether these people know
      you or not. How do they know whether somebody might want to
      protect you or defend you from the police coming in after you?

            How do the police know that? They don’t know that. That’s
      a situation that you created.

              . . . .

            You can’t justify running into a stranger’s home and making
      those people subject to the dangers that you allegedly were
      running from. You made them subject to the same danger. You
      had no right to enter their home to do that.

            Criminal trespass in my view is the most serious offense in
      this case because of the fact[s] surrounding it at the criminal
      trespass. [Appellant] faces incarceration of not less than two, no
      more than four years.

            That is above the aggravated range of 19 months and it is
      above the aggravated range because . . . under the facts of this
      case [Appellant] made innocent people subject to a very
      dangerous situation in their own home for his own purposes after
      he fled yet another home, crawled in through a crawl space with
      police all around him announcing that they were police.

Id. at 6-8.

      Although the trial court mentioned Appellant’s criminal history, which

was reflected in his prior record score, the trial court did not base its deviation

from the guidelines solely upon that consideration. Moreover, “[t]rial courts

are permitted to use prior conviction history and other factors already included

in the guidelines if, they are used to supplement other extraneous sentencing

information.” Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super.

2006) (quoting Simpson, supra) (internal quotation marks and emphasis

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omitted). The trial court focused on the specific dangers Appellant created by

his criminal trespass in conjunction with the other relevant sentencing factors

presented in the PSI report and the information offered by Appellant and his

counsel. See, e.g., Commonwealth v. Long, 831 A.2d 737, 751 (Pa.Super.

2003) (holding trial court did not abuse its discretion in considering Long’s

four-day delay in reporting hit-and-run, as the delay was only one of factors

considered in sentencing Long in the aggravated range).

      Upon this record, we cannot conclude that “the sentencing court ignored

or misapplied the law, exercised its judgment for reasons of partiality,

prejudice, bias or ill[-]will, or arrived at a manifestly unreasonable decision.”

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014).

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2018




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