J. S48027/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                  :     IN THE SUPERIOR COURT OF
                                              :          PENNSYLVANIA
                                              :
                     v.                       :
                                              :
LESLIE EUGENE SMITH                           :
          Appellant                           :
                                              :     No. 1804 WDA 2015

          Appeal from the Judgment of Sentence November 10, 2015
              In the Court of Common Pleas of Fayette County
              Criminal Division No(s): CP-26-CR-0000777-2015


BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY DUBOW, J.:                            FILED DECEMBER 02, 2016

        Appellant, Leslie Eugene Smith, appeals from the Judgment of

Sentence entered in the Fayette County Court of Common Pleas following his

jury conviction of one count each of Flight to Avoid Apprehension, Trial, or

Punishment,1     a   third-degree   felony,   and   False   Identification   to   Law

Enforcement Officer,2 a third-degree misdemeanor. After careful review, we

affirm in part and reverse in part.




1
    18 Pa.C.S. § 5126(a).
2
    18 Pa.C.S. § 4914(a).
J.S48027/16


      On July 25, 2014, the Commonwealth charged Appellant with the

above crimes, following his July 2, 2014, escape from Renewal, Inc.

Residential Reentry Center in Pittsburgh.3

      Appellant proceeded to a jury trial at which the Commonwealth

presented the testimony of two witnesses: Deputy U.S. Marshall Daniel Juba

and Sergeant John Brant of the Brownsville Police Department.     Appellant

did not present any evidence or testimony on his own behalf.

      Deputy Marshall Juba testified that, upon receiving a warrant for

Appellant’s arrest, he faxed the information contained in the warrant to the

Brownsville Police Department because Appellant had previously resided in

Brownsville and his family members currently resided there.      Id. at 21.

Deputy Marshall Juba further testified that he went to Appellant’s brother’s

residence in Brownsville and asked him to notify Appellant that a warrant

had been issued for his arrest in connection with his absconding from

Renewal, and that Appellant should turn himself in. Id. at 22.

      Sergeant Brant testified that on July 24, 2014, he observed Appellant

at a gas station in Brownsville, Fayette County.     N.T., 11/2/15, at 31.

Sergeant Brant was dressed in full uniform, with his badge displayed, and

wearing body armor with the word “POLICE” on it. Id. at 32, 38-39. When

Sergeant Brant approached Appellant and questioned him about his identity,

3
  Appellant had been serving a federal sentence for a conviction for
Possession with Intent to Deliver 50 Grams or More of Cocaine Base (Crack).
The federal court issued a warrant for his arrest following the escape.



                                    -2-
J.S48027/16


Appellant denied that he was Leslie Smith, but did not give Sergeant Brant a

false name. Id. at 32, 38. Sergeant Brant testified that he asked Appellant

for identification, which Appellant did not provide, and then Sergeant Brant

pulled out his taser and told Appellant to get on the ground. Id. at 32, 39.

According to Sergeant Brant’s uncontradicted testimony, rather than comply

with his instruction to get on the ground, Appellant then “ran across High

Street, across the highway onto just a little local street, Hollow Road, which

is a downhill windy road, and it has a little bit of street lighting on it.” Id. at

33. Sergeant Brant testified that he, “chased him down that road probably

fifty yards and then [Appellant] ran over to the guardrail and jumped over

the hillside that had a very steep embankment with a lot of brush and trees

and stuff like that.”   Id. Sergeant Brant conceded that he did not inform

Appellant that he was the subject of a police investigation.           Id. at 39.

Sergeant Brant ultimately called for assistance in apprehending Appellant.

Id at 36. Despite erecting a large perimeter in the area, the officers did not

locate Appellant that night, and they called off the search. Id.

      Approximately one month later, on August 26, 2014, Sergeant Brant

located Appellant in an apartment in Brownsville, and took him into custody.

Id.

      Following the close of the Commonwealth’s case-in-chief, Appellant’s

counsel moved for a Judgment of Acquittal as to both charges, which the

trial court denied.



                                       -3-
J.S48027/16


      Less than one hour later, the jury convicted Appellant of both charges.

On November 10, 2015, the trial court sentenced Appellant to the standard

range sentence of 12 months’ to 36 months’ incarceration for the Flight to

Avoid Apprehension, Trial, or Punishment conviction.           It imposed no

sentence for the False Identification to Law Enforcement Officer conviction.

      Appellant timely appealed from the Judgment of Sentence.            Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following two issues on appeal:

         1. Did the Commonwealth fail to prove that the Appellant
         was actually charged with a felony and fled to avoid
         prosecution?

         2. Did the Commonwealth fail to prove that the Appellant
         provided false information to law enforcement after being
         advised that he was the subject of an official investigation?

Appellant’s Brief at 7.

      Both of the issues Appellant raises challenge the sufficiency of the

evidence presented by the Commonwealth at Appellant’s trial. Our standard

of review of sufficiency claims is well settled:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying the above test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.            In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.        Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter


                                      -4-
J.S48027/16


         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the trier of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006)

(quotation and citation omitted).

      A person shall be convicted of Flight to Avoid Apprehension, Trial, or

Punishment, a third-degree felony, when he “willfully conceals himself or

moves or travels within or outside this Commonwealth with the intent to

avoid apprehension, trial or punishment” and when the crime with which he

has been charged or convicted is a felony. 18 Pa.C.S. § 5126(a); see, e.g.,

Commonwealth v. Steffy, 36 A.3d 1109, 1112 (Pa. Super. 2012) (holding

that, for purposes of a flight conviction, “awareness of the underlying

offense is necessarily imputed to [a defendant]”).

      Appellant argues in his first issue that the Commonwealth failed to

present sufficient evidence to sustain his conviction for felony Flight to Avoid

Apprehension, Trial, or Punishment because, even according to its own

witnesses, Appellant had not been charged with escaping from the halfway

house at the time of the events giving rise to the instant charge. Appellant’s

Brief at 11.   Appellant avers that since he had not been formally charged




                                     -5-
J.S48027/16


with the escape from the halfway house, he could not have been trying to

avoid apprehension, trial, or punishment for his escape. Id.

      We disagree with the Appellant’s reasoning, which he appears to base

on a misapprehension of the genesis of the charge against him. Rather, we

agree with the trial court, which reasoned that, “[t]he very act of leaving

custody is in fact [ ] escaping punishment, because being in custody even if

it is the halfway house is a form of confinement that is considered

punishment under the law.” N.T. at 44.

      Here, Appellant escaped from confinement in the federal halfway

house imposed upon him as punishment for a federal felony conviction for

Possession with Intent to Deliver.        When Sergeant Brant attempted to

apprehend Appellant, he fled apprehension to avoid having to return to

serve the remainder of his punishment. Thus, the evidence, when viewed in

the light most favorable to the Commonwealth as the verdict-winner,

showed that Appellant willfully travelled within the Commonwealth with the

intent to avoid punishment, i.e., completing his federal sentence.    See 18

Pa.C.S. § 5126(a). Accordingly, we find that the Commonwealth presented

the jury with sufficient evidence to convict Appellant of the above charge.

Appellant’s sufficiency claim, therefore, fails.

      Appellant   next   avers    that   the   Commonwealth’s   evidence   was

insufficient to support his conviction on False Identification to Law

Enforcement Authorities because the Commonwealth failed to present



                                         -6-
J.S48027/16


testimony that Sergeant Brant advised Appellant that he was the subject of

an official police investigation and because Appellant did not affirmatively

provide Sergeant Brant with a fake name or identification. Appellant’s Brief

at 13-14.

      This claim of error requires us to interpret 18 Pa.C.S. § 4914(a) which

provides:

         A person commits an offense if he furnishes law
         enforcement authorities with false information about his
         identity after being informed by a law enforcement officer
         who is in uniform or who has identified himself as a law
         enforcement officer that the person is the subject of an
         official investigation of a violation of law.

18 Pa.C.S. § 4914(a).

      In In re: D.S., 39 A.3d 968 (Pa. 2012), the Pennsylvania Supreme

Court considered the language of Section 4914(a) and held that, in order to

sustain a conviction of False Identification to Law Enforcement Officer, the

Commonwealth must present evidence that a law enforcement officer

affirmatively informed an individual that he is the subject of an official police

investigation.   See In re: D.S., 39 A.3d at 974-75.           In rejecting the

Commonwealth’s argument that the Court should interpret the ways in which

a person may be informed of something to include circumstantial inferences,

the D.S. court concluded that there is “no language in the statute to suggest

that the General Assembly intended that an individual’s knowledge [that he

is the subject of an official police investigation] could be derived from the

surrounding circumstances.” Id. at 975.


                                      -7-
J.S48027/16


      Accordingly, in light of the holding in In re: D.S., we find that the

language of Section 4914(a) clearly and unambiguously required Sergeant

Brant to inform Appellant explicitly that he was the subject of an official

police investigation. See id. Our review of the Notes of Testimony confirms

that the Commonwealth did not present testimony or evidence that Sergeant

Brant advised Appellant that he was the subject of an official police

investigation. In fact, as noted supra, Sergeant Brant conceded that he did

not so advise Appellant.     We, therefore, agree with Appellant that the

Commonwealth presented insufficient evidence to sustain this charge.4

      For the foregoing reasons, we conclude that the Commonwealth met

its burden of proof with respect to Appellant’s conviction of Flight to Avoid

Apprehension, Trial, or Punishment, but did not meet its burden of proof

with respect to Appellant’s conviction of False Identification to Law

Enforcement Officer.   We, therefore, affirm in part and reverse in part.

However, because the trial court imposed no sentence on Appellant’s of

False Identification to Law Enforcement Officer, our decision does not disturb

the overall sentencing scheme, and we need not remand for resentencing.




4
 Because of our disposition of this claim, we need not reach the merits of
Appellant’s argument that his failure to affirmatively provide Sergeant Brant
with a false name or identification precluded his conviction under Section
4914(a).



                                    -8-
J.S48027/16


     Judgment of Sentence imposed on conviction of 18 Pa.C.S. § 5126(a)

affirmed.   Judgment of Sentence imposed on conviction of 18 Pa.C.S. §

4914(a) vacated. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/2/2016




                                    -9-
