J-S33043-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                  Appellee                  :
                                            :
                     v.                     :
                                            :
JOSHUA MOSHA HARDING,                       :
                                            :
                  Appellant                 :    No. 1373 MDA 2016

           Appeal from the Judgment of Sentence April 29, 2016
              in the Court of Common Pleas of York County,
           Criminal Division, at No(s): CP-67-CR-0007614-2013

BEFORE:    BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED JANUARY 11, 2018

     This case returns to this Court after we denied counsel’s petition to

withdraw and remanded it for the filing of an advocate’s brief in

Commonwealth v. Harding, 2017 WL 3279392 (Pa. Super. 2017)

(unpublished memorandum). Counsel has complied and this case is now ripe

for disposition. Upon review, we affirm.

     The factual and procedural history of this matter was summarized

thoroughly in our prior memorandum.        Briefly, Appellant was convicted of

possession with the intent to deliver a controlled substance, aggravated

assault, escape, and simple assault after an interaction and altercation with

Trooper James O’Shea and Officer Matthew Kile, who encountered Appellant

when they entered an apartment with arrest warrants for Joseph Weaver and




*Retired Senior Judge assigned to the Superior Court.
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Holly Urban.   Appellant was present at the apartment when the officers

entered the residence.

     Pertinent to the disposition of this case,

            [a]fter handcuffing Urban, O’Shea asked for Appellant’s
     identification and name, but Appellant said nothing. Instead,
     Appellant stood and walked around the table. Suspecting that
     “something just wasn’t right,” O’Shea informed Appellant that he
     was going to handcuff him for safety reasons.         [] O’Shea
     instructed Appellant to “put his hands behind his back.”
     Meanwhile, Kile saw O’Shea interacting with Appellant and had
     heard their voices become heightened. During the trial, O’Shea
     testified that [Appellant] was not free to leave once O’Shea
     instructed Appellant about the handcuffs.

            On cross-examination, O’Shea testified that he remembered
     the clicking of handcuffs, but he did not visually remember if he
     had “put one handcuff on [Appellant].” According to O’Shea on
     direct examination, “I remember hearing the clicking of the
     handcuffs, at which point [Appellant] pulled away with his right
     arm and swung back around and struck me in the right side of my
     face.”

                                        ***

           Detective Kile also witnessed this event and provided
     additional testimony about this initial strike. Kile testified that
     before Kile could place Weaver into custody, he saw Appellant
     “swing -- lunge a closed fist at Trooper O’Shea.” Specifically, Kile
     “observed [Appellant’s] arm going towards Trooper O'Shea’s
     head.” When the Commonwealth asked Kile about if he had
     “observe[d] any part of [Appellant’s] body or anything connected
     to [Appellant’s] body make contact with Trooper O’Shea,” Kile
     responded that “it would have been his hand hitting Trooper
     O’Shea’s head. I saw Trooper O’Shea heading towards the
     ground.”

           After Appellant struck O’Shea, Kile attempted to take
     Appellant’s “legs out from underneath him to put him onto the
     ground so that he could successfully be placed into custody,” but
     Appellant broke free of this attempt. Specifically, Kile and
     Appellant fell onto the kitchen table, and then onto the ground.


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        When both stood, Appellant was free. When the Commonwealth
        asked about whether Appellant “kick[ed] or push[ed] or in any
        way tr[ied] to push off [Kile] to get away,” Kile responded that “it
        would have been pushing, like a wrestling match, kind of pushing
        me down to get up kind of thing.” [] Kile’s neck had minor
        scratches from the altercation. Then, Kile saw blood running down
        O’Shea’s head.

                                           ***

              After the altercation, Kile placed Weaver into custody by
        handcuffing him and having him sit against the wall next to Urban,
        and then put handcuffs on Appellant, while he was lying down.
        Appellant, Weaver, and Urban were removed from the residence,
        and at no point were Appellant, Weaver or Urban left without
        police supervision inside the house. It should be noted though,
        for thoroughness[,] that Kile did not do a pat down of Urban or
        Weaver.

Trial Court Opinion, 10/18/2016, at 6-10.

        Following a jury trial, Appellant was found guilty of the aforementioned

crimes and sentenced soon thereafter.        After the filing and denial of post-

sentence motions, Appellant timely filed a notice of appeal. However, in this

Court, in lieu of a brief in support of Appellant’s appeal, counsel filed both an

Anders1 brief and a petition to withdraw as counsel.

        Upon initial review, we agreed with counsel that Appellant’s issues

challenging the sufficiency of the evidence to sustain his convictions for

possession with the intent to deliver a controlled substance, aggravated

assault, and simple assault were frivolous.       Commonwealth v. Harding,

2017 WL 3279392, at *8. Moreover, we found Appellant had presented no


1
    Anders v. California, 386 U.S. 738 (1967).


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issue within his pro se response which convinced us to disturb his judgment

of sentence. Id. However, because we identified a potentially non-frivolous

issue in our independent review, we denied counsel’s motion to withdraw and

remanded the case for counsel to file an advocate’s brief.2 Id.

      Specifically, this Court ordered counsel to file an advocate’s brief on the

issue of whether the evidence was sufficient to sustain Appellant’s conviction

for escape. Id. at 7. On November 3, 2017, counsel for Appellant filed an

advocate’s brief, and on December 4, 2017, the Commonwealth filed a

response. We are now able to review this issue. We do so mindful of the

following.

      An individual commits the offense of escape when “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.” 18

Pa.C.S § 5121(a). “‘[O]fficial 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[.]” 18 Pa.C.S § 5121(e).

      Previously, we have interpreted [“any other detention for law
      enforcement purposes”] to mean a seizure in which “the police
      have restrained the liberty of a person by show of authority or
      physical force.” [Commonwealth v. Stewart, 648 A.2d 797, 798
      (Pa. Super. 1994)]. Any determination as to whether a seizure
      occurred is based upon the totality of circumstances and “whether

2
 In light of our finding of a potentially non-frivolous issue, we deferred our
disposition of Appellant’s issue concerning the weight of the evidence to
sustain his convictions.

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      a reasonable person would have believed he or she was free to
      leave.” Id.

Commonwealth v. Santana, 959 A.2d 450, 452 (Pa. Super. 2008).

      Appellant concedes he was in official detention. Appellant’s Brief at 12.

Thus, we consider only whether Appellant’s conduct constituted removing

himself from said detention as contemplated by the statute. In his advocate’s

brief, Appellant cites several cases to support his contention that a conviction

for escape will not stand

      unless the Commonwealth can show that the defendant
      committed a substantial deviation from official detention. In
      short, to prove the element of “remove” the Commonwealth must
      show the defendant substantially deviated from official detention.
      It stands to reason that a mere and minor deviation from official
      detention would be insufficient to be considered ‘removal’ from
      official detention for the purposes of escape.

Id. at 11 (citing Commonwealth v. Hall, 585 A.2d 1117 (Pa. Super. 1991)

(finding insufficient evidence to sustain conviction for escape when Hall, while

on work release, deviated from his normal route to work, but nonetheless

returned to prison on time); Commonwealth v. Edwards, 595 A.2d 183 (Pa.

Super. 1991) (holding Edwards did not remove himself from official detention

and thus could not be convicted of escape when, on several occasions while

on work release, Edwards was late returning to prison); and Commonwealth

v. Waugaman, 167 A.3d 153 (Pa. Super. 2017) (finding sufficient evidence

to sustain conviction of escape when Waugaman left prison as part of his work

release program but failed to show up at work and went missing for three

hours)).

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      Applying the foregoing case law, Appellant contends that

      none of the facts presented at trial present[s] evidence showing
      that he removed himself from detention. In fact, the evidence at
      trial shows the officers were never out of sight and the Appellant
      never broke free. Moreover, there was no testimony that []
      Appellant had managed to leave the apartment where the arrest
      took place. In the cases cited above, it is clear that removal from
      official detention requires some form of distance from the
      detention. In cases where the defendant left detention but
      returned this Honorable Court has found that there is no escape.
      In cases where a defendant has failed to identify their location and
      their whereabouts are unknown, this Honorable Court has found
      escape. Here, [] Appellant never put any distance between himself
      and the official detention. Moreover, he never broke free or ran
      from the initial arrest.

Appellant’s Brief at 13.

      In response, the Commonwealth correctly notes that the cases cited by

Appellant are factually distinguishable. Commonwealth’s Brief at 14. Citing

to the facts as set forth supra, the Commonwealth contends the evidence

presented at trial was sufficient to sustain Appellant’s conviction. Id.

      These actions show that [Appellant] removed himself from official
      detention. While [Appellant] did not leave the premise, the
      escape statute does not require that the Commonwealth prove
      any particular temporal or geographical distance. Rather, the
      Commonwealth must prove that a defendant take himself out of
      official detention. By striking Trooper O’Shea so that the trooper
      no longer had [Appellant] within his custody, [Appellant] detached
      himself from official detention. Moreover, [Appellant’s] successful
      efforts in avoiding Det. Kile further show [Appellant] removing
      himself from official detention.

Id. at 15.

      We agree. As set forth supra, an individual commits escape when he,

inter alia, removes himself from official detention. 18 Pa.C.S. § 5121(a). The



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statute does not mandate that the removal must be for a certain period of

time or a certain distance from the initial detention. Here, reviewing the

evidence in light most favorable to the Commonwealth, Appellant committed

the crime of escape when he removed himself from official detention by

wrestling out of Officer O’Shea’s grip and hitting Officer O’Shea in the head,

resulting in the officer’s falling to the floor.   N.T., 3/14/2016 at 78, 103.

Furthermore, the cases cited by Appellant are both factually dissimilar and fail

to support his argument that there must be evidence of a substantial deviation

from official detention in order to sustain a conviction for escape. In light of

the foregoing, the evidence was sufficient to sustain Appellant’s conviction.

See Commonwealth v. Bey, 292 A.2d 519, 521 (Pa. Super. 1972) (“Any

person who, being lawfully confined or in custody, regains his freedom, with

or without force, before being lawfully discharged, is guilty of an escape[.]”)

(citation and quotation marks omitted).

      Lastly, we address Appellant’s challenge to the weight of the evidence

to support his convictions. We begin with our well-settled standard of review.

      The decision of whether to grant a new trial on the basis of a
      challenge to the weight of the evidence is necessarily committed
      to the sound discretion of the trial court due to the court’s
      observation of the witnesses and the evidence. A trial court
      should award a new trial on this ground only when the verdict is
      so contrary to the evidence as to shock one’s sense of justice. A
      motion alleging the verdict was against the weight of the evidence
      should not be granted where it merely identifies contradictory
      evidence presented by the Commonwealth and the defendant.
      Our review on appeal is limited to determining whether the trial
      court abused its discretion in denying the motion for a new trial
      on this ground.

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Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations

omitted). “Not merely an error in judgment, an abuse of discretion occurs

when the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will,

as shown by the evidence on record.” Commonwealth v. Handfield, 34

A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29 A.3d

3, 6 (Pa. Super. 2011)).

      With respect to the verdict, the trial court set forth the following.

      [T]he evidence was sufficient to support the convictions, and there
      is no reasonable argument that the jury mis-weighed the
      evidence. It was within the jury's discretion whether to find the
      testimony of the witnesses credible. Therefore, the court will not
      disturb the jury’s verdict.

Trial Court Opinion, 10/18/2016, at 24-25.

      We discern no abuse of discretion in the trial court’s conclusion. As the

trial court correctly observed, it is within the province of the jury, sitting as

fact-finder, to review the evidence and assess the credibility of the testifying

witnesses. See Commonwealth v. Williams, 854 A.2d 440, 445 (Pa. 2004)

(“In criminal proceedings, the credibility of witnesses and weight of evidence

are determinations that lie solely with the trier of fact.”).           See also

Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa. Super. 2006)

(“[E]vidence at trial need not preclude every possibility of innocence, and the

fact-finder is free to resolve any doubts regarding a defendant’s guilt unless

the evidence is so weak and inconclusive that as a matter of law no probability

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of fact may be drawn from the combined circumstances.”).   Accordingly,

Appellant’s weight challenge fails.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/11/2018




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