J-A18019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       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.

MEMORANDUM BY LAZARUS, J.:                     FILED: OCTOBER 24, 2017

        Atiba Wilson appeals from the judgments of sentence, entered in the

Court of Common Pleas of Allegheny County, following his convictions, on

two separate dockets,1 for burglary (F1),2 various firearm charges,3 and

possession of marijuana.4 After careful review, we affirm in part and vacate

in part.



____________________________________________


1
    CC201503580 (“Burglary case”); CC201512661 (“Firearms cases”).
2
  18 Pa.C.S. § 3502(a)(2) (burglary overnight accommodation; no person
present).
3
 18 Pa.C.S. § 6106(a)(1)(firearms not to be carried without license) (F3);
18 Pa.C.S. § 6105(a)(1) (possession of firearm prohibited) (M1).
4
    35 P.S. § 780-113(a)(31).
J-A18019-17



      The trial court accurately summarized the facts of the Burglary case as

follows:

      This matter arises out of [Wilson’s] arrest on March 3, 2015. At
      trial the Commonwealth called Officer Louis Sitzman of the
      Borough of Swissvale Police who testified that as he was coming
      on patrol duty at approximately 2:06 p.m. when he received a
      dispatch concerning two males brandishing a handgun. The male
      with the firearm was described as wearing a blue and gray
      jacket, a gray hoodie with the hood up and black boots. As
      Officer Sitzman was exiting the police station and getting into his
      patrol vehicle he noticed three males walking towards the
      station, one of whom matched the exact description of the actor
      with the firearm. Officer Sitzman got into his vehicle, drove
      towards the men, exited his vehicle and “put the males at
      gunpoint.” Officer Sitzman testified that it was [Wilson] who
      was wearing the blue and gray hoodie and had his hands in his
      pockets. [Wilson] did not comply with the order to remove his
      hands from his pockets but his companions did. At that point,
      [Wilson] fled the scene. Officer Sitzman pursued him for several
      blocks until [Wilson] jumped down from a 10 foot wall onto the
      train tracks and crossed the street into a nearby yard.

      Officer Sitzman, who was also a K-9 handler, retrieved his K-9
      partner, and went to the location where [Wilson] was last seen.
      At that point, Officer Sitzman and his partners followed
      footprints in the snow to a fence which they climbed over into
      the backyard of a residence and ultimately found [Wilson] hiding
      behind some boxes in an enclosed porch of the residence. After
      [Wilson] repeatedly refused commands to exit the porch, the K-9
      officer was sent into the porch and [Wilson] was then taken into
      custody.

      The Commonwealth also presented the testimony of the
      residents of the home that [Wilson] entered which established
      that [Wilson] was not authorized or permitted to enter the
      residence, that there was damage to the door of the residence
      and that furniture that had previously been in the enclosed porch
      was thrown into the yard.

      At the conclusion of the Commonwealth's case [Wilson] made a
      motion for judgment of acquittal on the charge of burglary on
      the basis that there was no evidence that the home was entered
      for the purpose of committing a crime. The Commonwealth

                                     -2-
J-A18019-17


       responded by stating that “There was testimony from the victim
       that the items that were on her porch were disturbed and they
       were placed in the yard.” [Wilson]'s motion was denied.

       [Wilson] then testified that he knew that Officer Sitzman was
       chasing him and that as he approached the residence on Park
       Avenue he “hopped over the fence, and I seen [sic] a shack or
       whatever and I went inside. I was coming in the house.”
       [Wilson] acknowledged that he was in the residence for 5 to 6
       minutes and stayed there until the K-9 officer was sent in at
       which time he was arrested. On cross examination, [Wilson]
       acknowledged that he ran from Officer Sitzman after he was
       approached and saw that he was in a marked police vehicle and
       in full uniform and he ran in an attempt to hide from the police.
       At the conclusion of the trial, [Wilson] argued that he was not
       guilty of burglary as the Commonwealth failed to establish that
       he entered the residence with the intent to commit a crime and
       specifically argued that he was not charged with criminal
       trespass. The Commonwealth argued that [Wilson] broke the
       locked door and entered the residence without permission. In
       addition, the Commonwealth argued that [Wilson] entered the
       residence to conceal himself with the intent to avoid
       apprehension in violation of 18 Pa.C.S.A. §5126. At the time of
       the verdict on June 6, 2016[,] [Wilson] was found guilty of
       burglary based on [Wilson]'s testimony that he was “in the
       house to commit the crime of fleeing from a police officer.”

Trial Court Opinion, 1/18/2017, at 7-9 (citations to record omitted).             On

June   6,    2016,   the    trial   court   sentenced   Wilson   to   18-36   months’

incarceration, with a 5-year probationary tail on the Burglary case, and a

concurrent sentence of 36-72 months’ imprisonment on the Firearms case.5

       Wilson filed post-sentence motions that were denied.              This timely

appeal follows. On appeal, Wilson presents two issues for our consideration:

       (1)    Whether [] Wilson's conviction for Burglary at CC
              201503580 must be reversed, and his judgment of
____________________________________________


5
  No further penalty was imposed on the drug and possession of firearm
prohibited convictions.


                                            -3-
J-A18019-17


            sentence must be vacated, when the evidence was
            insufficient, as a matter of law, to establish that he
            entered the structure with the intent to commit a
            crime therein?

      (2)   Whether the police stopped and searched [] Wilson
            without reasonable suspicion, based on specific and
            articulable facts, to believe that he was presently
            armed and dangerous, thereby requiring that his
            firearms convictions at CC 201512661 be reversed,
            and his judgment of sentence vacated?

Burglary Case

      Wilson first contends that his burglary conviction must be vacated

because the Commonwealth failed to prove that he had the requisite intent

to commit a crime within the structure.

      A person commits the offense of burglary under 18 Pa.C.S. §

3502(a)(2), if:

      [W]ith the intent to commit a crime therein, the person [] . . .
      enters a building or occupied structure, or separately secured or
      occupied portion thereof that is adapted for overnight
      accommodations in which at the time of the offense no person is
      present[.]

18 Pa.C.S. § 3502(a)(2) (emphasis added).            In the instant case, the

Commonwealth argued that Wilson was “trying to [e]lude the police” when

he entered the residence.       See N.T. Non-Jury Trial, 5/23/16, at 33.

Specifically, the Commonwealth stated “[section] 5126 of the Crimes Code

[flight to avoid apprehension] is a crime . . . [and b]y [the defendant’s] own

testimony, he testified that he went there intending to conceal himself.

That’s why he broke in.” Id. at 41.




                                      -4-
J-A18019-17



      We recognize that in Commonwealth v. Brown, 886 A.2d 256 (Pa.

Super. 2005), our Court found that where the Commonwealth does specify

the crime the defendant intended to commit, it must prove the requisite

intent for that particular crime in order to prove a burglary. Id. at 260.

      Instantly, at trial the Commonwealth specifically cited to the flight to

avoid apprehension statute, acknowledged that the defendant admitted he

entered the victim’s structure with the intent to conceal himself, and stated

in open court “[t]hat’s why he broke in.”       Under the circumstances we

similarly find that the Commonwealth should be required to prove Wilson’s

intent to commit the crime delineated under section 5126 in order to prove

Wilson committed burglary.

      The crime flight to avoid apprehension is defined as:

      (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(a) (emphasis added). Thus, an element of section 5126

is the requirement that an individual has already been charged or convicted

of a crime.     In Commonwealth v. Phillips, 129 A.3d 513 (Pa. Super.

2016), our Court found that “the plain language of [section 5126(a)]

requires that a person have been charged with a crime.        This language is

simply not ambiguous.”      Id. at 518.    Accordingly, our Court vacated the


                                     -5-
J-A18019-17



defendant’s section 5126(a) conviction where the Commonwealth failed to

prove that he had been charged with a crime when Phillips fled from law

enforcement.

        We acknowledge that the Commonwealth is correct that in order to

prove    burglary   a   defendant   need    not   be   charged    with,   and   the

Commonwealth need not prove, the crime which he had the intent to commit

when he entered the structure. Commonwealth v. Lease, 703 A.2d 506

(burglary conviction sustained on appeal where defendant acquitted of

underlying crimes       of burglary, theft and receiving         stolen property).

However, the Commonwealth’s argument misses the mark.                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. Phillips, supra. Without

having that intent, Wilson could not be found guilty of burglary under the


                                      -6-
J-A18019-17



facts and circumstances of this case. Brown, supra. Thus, we must vacate

his section 5126(a) conviction.

Firearms Case – Suppression Issue

       We rely upon the opinion authored by the Honorable Randal B. Todd to

affirm the court’s decision to deny Wilson’s pretrial motion to suppress in CC

201512661.       See Trial Court Opinion, 1/18/2017, at 2-6.             Instantly, the

officers corroborated a tip about an armed individual in the McDonalds prior

to the police patting Wilson down, searching him and arresting him. Under a

totality of the circumstances, there was a reasonable basis for the

investigatory stop and for the officer’s pat-down where they believed that

Wilson was armed and dangerous.                We instruct the parties to attach a copy

of Judge Todd’s decision in the event of further proceedings in the matter. 6

       Burglary conviction at CC 201503580 vacated. Remaining convictions

at CC 201512661 affirmed. Judgments of sentence affirmed. 7 Jurisdiction

relinquished.


____________________________________________


6
  In the interest of brevity, we have omitted reciting the facts underlying
Wilson’s conviction at CC 201512661. See Trial Court Opinion, 1/18/2017,
at 2-4 (facts for Firearms case).
7
   Because the trial court ordered Wilson’s burglary sentence to run
concurrent with his firearm convictions, we need not remand for
resentencing as the sentencing scheme has not been upset.               See
Commonwealth v. Henderson, 938 A.2d 1063, 1067 (Pa. Super. 2007)
(stating that “since appellant's sentences were concurrent, the trial court's
overall sentencing scheme has not been compromised, and it [wa]s not
necessary to remand for re-sentencing.”).


                                           -7-
J-A18019-17



     Judge Ott joins the Memorandum

     Judge Bowes files a Concurring and Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017




                                 -8-
                                                                             Circulated 08/01/2017 01:52 PM




IN THE COURT OF COMMON PLEAS OF ALLEGHENY                      COUNTY, PENNSYLVANIA

COMMONWEALTH           OF                     )               CRIMINAL DIVISION
PENNSYLVANIA                                  )
                                              )               NO.    CC2015-03580
v.                                            )                      CC2015-12661
                                              )
ATIBA WILSON,                                 )
                                              )
        Defendant                             )


TODD, J.

January 18, 2017

                                            OPINION

       These are appeals by Defendant, Atiba Wilson, from the judgments of sentence of June 6,

2016 at CC201503580 and CC201512661. At CC210503580 Defendant was found guilty of

one count of Burglary in violation of 18 Pa.C.S.A. § 3502(a)(2) following a non-jury trial held

on May 23, 2016. Defendant was sentenced to 18 to 36 months and 5 years probation. At

CC201512661 Defendant was found guilty of one count of Firearms Not to be Carried W/0 a

License in violation of 18 Pa.C.S.A. § 6106(a)(l); one count of Possession of a Firearm

Prohibited in violation of 18 Pa.C.S.A. § 6105(a)(l) and one count of Possession of Marijuana in

violation of 35 Pa.C.S.A. § 780-l l 3(a)(31) following a non-jury trial on June 6, 2016.

Defend ant was sentenced to 36 to 72 months for carrying a concealed weapon without a license.

No further penalty was imposed at the remaining counts. Defendant filed timely post-sentence

motions on June 13, 2016 which were denied by orders of June 20, 2016. On July 20, 2016

Defendant filed a Notice of Appeal in Superior Court. On July 21, 2016 an order was entered

directing Defendant to file a Concise Statement of Matters Complained of on Appeal. On

August 9, 2016 Defendant filed his Concise Statement setting forth the following:
        "a.    With respect. to CC2015 l2G61, Mr. Wil'st)Ji's convictions were based upon
               the presentation of items seized from Mr. Wilson pursuant to a Terry
               search. However, the police did not have reasonable suspicion, based on
               specific and intelligible facts, to believe that Mr. Wilson was presently
               armed and dangerous. Consequently, the.subsequent search of Mr»
               Wilson's person violated his rights under the Fourth Amendment of the
               United States Constitution and Article 1 § 8 of the Pennsylvania
               Constitution, and all items found on his person must be suppressed as fruit
               of the poisonous tree.

       b.      With respect to CC201503580, the evidence was insufficient as a matter of
               law to support the conviction, in that it was not established that Mr.
               Wilson intended to commit a crime inside the structure entered."

BACKGROUND
Case Number CC201'5.12661

       This matter arises out of Defendant's an-est on September 22, 2015 after the police

responded to a call for a disturbance involving a firearm at a McDonald's restaurant located in

downtown Pittsburgh. Defendant filed a Motion to Suppress on the basis that items were seized

from Defendant during an illegal search and should be suppressed. A suppression hearing was

held on May 23, 2016. At the hearing the Commonwealth presented the testimony of Detective

Matthew Zuccher of the City of Pittsburgh Police who testified that while on patrol on

September 22, 2015 at approximately 8:00 p.m. he received a dispatch to proceed to the

McDonald's restaurant on Smithfield Street for a disturbance involving a firearm. The actor

involved was described as a black male with a blue hat or blue hooded jacket. (T., pp 2-3) As

Detective Zuccher arrived at the restaurant he observed Defendant through the front glass of the

restaurant. Defendant was wearing a blue jacket with the hood pulled up over his head with the

hood pulled so Light only a small portion of his face was exposed. (T., pp. 4-5) When first

observed, Defendant was walking towards the front of the store but when he observed the police

he turned and walked towards the rear of the restaurant. Defendant then got behind two pillars



                                                2
and began to peek out from behind the pillars. (T.,   pp. 4-5) Detective Zuccher testified that he

approached Defendant and ordered him from behind the pillars and testified that:

        .. I observed when he was walking towards me and I was walking towards him, I
        could see the outline of what I thought was a firearm, possible firearm in his
        waistband. Based on the description and his actions, I held onto him and did a pal
        down, a quick pat down. Ijust ran my hand over it, and I immediately detected a
        firearm." (T., p. 6)

        Detective Zuccher testified that the gun was covered but that he could see the outline of

the gun which he described as a large .45 caliber handgun. (T., p 8) The gun was loaded with

four rounds. (T., p 8) Detective Zuccher testified that he had undergone training for the

detection of firearms and he had made dozens of arrests involving firearms and that someone's

waistband is a prevalent place to place a firearm. He also described the restaurant as a "nuisance

property" and that the police receive calls on a nightly basis for "typically narcotics and firearms

related" matters. (T., p. 8)

       On cross examination Detective Zuccher acknowledged that when he first entered the

restaurant he did not observe any criminal activity but was only responding to a disturbance call

and was conducting an investigation. (T, p 9) The suppression motion was denied and the

testimony for the suppression hearing was incorporated into the record for a nonjury trial held on

June 6, 2006.   Detective Zuccher again testified and the Commonwealth established that

Defendant did not have a license to carry a concealed weapon. (Exhibit "1 ", pp 11-12) The

Commonwealth also established that Defendant had a juvenile adjudication for aggravated

assault. (Exhibit "2", pp. 12-13)

       The Commonwealth also presented the testimony of Officer Rachmiel Gallman who

testified during a search incident to the arrest Defendant was found in possession of a small




                                                 3
amount of marijuana.   (T., p 16-17) At the conclusion of the non-jury trial Defendant was found

guilty and sentenced as set forth above.

DISCUSSION

       In his concise statement Defendant alleges that the items seized pursuant to the pat down

and arrest were illegally obtained because the police did not have a reasonable suspicion based

on specific, articulable facts to believe that Defendant was armed and dangerous and, therefore,

all items found on Def end ant must be suppressed. The types or categories of encounters between

police and a citizen have been described as follows:

       "There are three categories of police interactions which classify the level of
       intensity in which a police officer interacts with a citizen, and such are measured
       on a case by case basis. Traditionally, Pennsylvania Courts have recognized three
       categories of encounters between citizens and the police. These categories include
       (1) a mere encounter, (2) an investigative detention, and (3) custodial detentions.
       The first of these, a "mere encounter" (or request for information), which need not
       be supported by any level of suspicion, but carries no official compulsion to stop
       or to respond. The second, an "investigative detention" must be supported by
       reasonable suspicion; it subjects a suspect to a stop and a period of detention, but
       does not involve such coercive conditions as to constitute the functional
       equivalent of an arrest. Finally, an arrest or "custodial detention" must be
       supported by probable cause. Commonwealth v. Mendenhall, 552 Pa. 484, 488
       715 A.2d 1117, 1119 (1998) (citing Commonwealth v. Polo, 563 Pa. 218, 759
       A.2d 372, 375 (2000))." Commonwealth v. Collins, 950 A.2d 1041, 1044-49 (Pa.
       Super. 2008)


Defendant contends that Detective Zuccher acted only on an anonymous tip and that an

anonymous tip does not provide a basis for an investigatory detention or Terry search.

In Commonwealth v. Wimbush, 750 A.2d 807 (2000) the Pennsylvania Supreme Court discussed

the law pertaining to a search based on an anonymous tip stating:




                                                4
        "Relying upon   Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068 (1997), a
       factually similar case3, the Court held in Jackson that the anonymous tip did not
       justify a stop and frisk of the defendant. Jackson, at 494, 698 A.2d at 576. In
       Hawkins, a plurality of the Court explained that when police receive an
       anonymous call alleging that a person of a particular description is carrying a gun
       at a particular location, and the police broadcast that information to patrol cars,
       neither the dispatcher nor the officers in their cars know whether the information
       is reliable. Hawkins, 547 Pa. at 656, 692 A.2d at 1070. The Court observed that an
       anonymous tip may be nothing more than a mere prank call. Id. At the same time,
       it may be based on no more than the caller's unparticularized hunch. Jackson, 548
       Pa. at 490, 698 A.2d at 574; see also White, 496 U.S. at 329, 110 S.Cl. at 2415
       (anonymous tips provide "virtually nothing from which one might conclude that
       the caller is either honest, or his information reliable"). Because of its
       unreliability, an anonymous radio call alone is insufficient to establish a
       reasonable suspicion of criminal activity. Jackson, supra: Hawkins, supra"
       Commonwealth v. Wimbush, 750 A.2d 807, 811 (2000)

The Court further noted that that "the fact that the police proceeded to the designated location

and saw a person matching the description in the call did not corroborate any alleged criminal

activity. Jackson. 548 Pa. at 492, 698 A.2d at 574-75 (quoting Hawkins, 547 Pa. at 656-57, 692

A.2d at 1070). However the Court also stated:

       "When the police receive unverified information that a person is engaged in
       illegal activity, the police may observe the suspect and conduct an investigation.
       If police surveillance produces a reasonable suspicion of criminal conduct, the
       suspect may be stopped and questioned." Commonwealth v. Wimbush, 750 A.2d
       807, 811-12 (2000)


In the present case, Detective Zuccher testified concerning specific observations that he made of

Defendant as he approached the restaurant. Detective Zuccher observed Defendant tum and

walked towards the rear of the restaurant as soon as he noted the police approaching. In addition,

Defendant appeared to purposely stand behind pillars in the restaurant and then "peek" out at the

officers and then draw his head back. As Detective Zuccher approached Defendant and asked

him to come from behind the pillars he noted the "outline" of what he believed to be a firearm in

Defendant's waistband. Based on his training and experience, he knew that the waistband was



                                                5
an   area is often carried, Considering the totality of the circumstances, which included the

dispatch for a disturbance involving~ firearm, Detective Zuccher's independent observations

of Defendant's movements in the restaurant and the observation of the outline of the handgun in

his waistband, it is clear there was a reasonable basis for an investigatory stop and to believe that

Defendant was armed and dangerous. In Commonwealth v. Wilson, 927 A. 2d. 279 (Pa. Super.

2007) the Court stated:

          "If, during the course of a validinvestigatory stop, an officer observes unusual
         and suspicious conduct on the part pf the· individual which leads him lo
         reasonably. believe that the. suspect may be armed and dangerous, the officer may
         conduct a pat-down of the suspect's outer garments for weapons." Commonwealth
          v. E.M./Hal{,558 Pa. J 6, 73.5 A.2d 654, 659 (1999). In order to establish
         reasonable suspicion, the police officer must articulate 'specific.facts from which
         he could reasonably infer that the individual was armed and dangerous. See
         Commonwealth v. Gray, 8-96 A.2d 601, 606 (-pa.$up·er.2006). When assessing the
         validity of a Terry stop, weexamine the totality ofthe circumstances, see i1L,
         giving due 'considerutlon to the reasonable inferences that the officer can draw
         from the facts in Hght of his experience, while disregarding any unpartlcularized
         suspicion or hunch. See Commonwealtli v. Zhahir, 561 Pa. 545, 7.51 A.2d 1153,
          1158 (2000). Commonwealth v. Wilson, 927 A.2d 279, is·4 (Pa. Super. 2007)

Although a weapons frisk may not be conducted on the basis of a mere hunch an officer need not

be absolutely certain that the individual is armed. The issue is whether a reasonably prudent

police office in the circumstances would be warranted in the belief that his safety or that of

others was in danger. Commonwealth v. Mesa. 683 A.2d 643 (1996) In this case, it is clear that a

reasonably prudent police officer would be justified in conducting the search of Defendant.

Defendant's motion to suppress was appropriately denied.




                                                 6
BACKGROUN))
Case.NO. 20150358.0

        This matter arises out of Defendant's arrest on March 3, 2015. At trial the

Commonwealth called Officer Louis Sitzman of the Borough of Swissvale Police who testified

that as he was coming on patrol duty at approximately 2:06 p.m. when he received a dispatch

concerning two males brandishing a handgun. The male with the firearm was described as

wearing a blue and gray jacket, a gray hoodie with the hood up and black boots. As Officer

Sitzman was exiting the police station and getting into his patrol vehicle he noticed three males

walking towards the station, one of whom matched the exact description of the actor with the

firearm, Officer Sitzman got into his vehicle, drove towards the men, exited his vehicle and "put

the males at gunpoint." (T., p. 19) Officer Sitzman testified that it was Defendant who was

wearing the blue and gray hoodie and had his hands in his pockets. Defendant did not comply

with the order to remove his hands from his pockets but his companions did. At that point,

Defendant fled the scene. (T., p. 20) Officer Sitzman pursued him for several blocks until

Defendant jumped down from a 10 foot wall onto the train tracks and crossed the street into a

nearby yard. (T., p. 21).

       Officer Sitzman, who was also a K-9 handler, retrieved his K-9 partner, and went to the

location where Defendant was last seen. At that point, Officer Sitzman and his partners followed

footprints in the snow to a fence which they climbed over into the backyard of a residence and

ultimately found Defendant hiding behind some boxes in an enclosed porch of the residence. (T.,

pp. 22-23) After Defendant repeatedly refused commands to exit the porch, the K-9 officer was

sent into the porch and Defendant was then taken into custody.




                                                7
        The Commonwealth also presented the testimony of the residents of the home that

Defendant entered which established that Defendant was not authorized or permitted to enter the

residence, that there was damage to the door of the residence and that furniture that had

previously been in the enclosed porch was thrown into the yard. (T., pp. 27 - 32).

        At the conclusion of the Commonwealth's      case Defendant made a motion for judgment

of acquittal on the charge of burglary on the basis that there was no evidence that the home was

entered for the purpose of committing a crime. The Commonwealth responded by stating that

"There was testimony from the victim that the items that were on her porch were disturbed and

they were placed in the yard." (T., p.33). Defendant's   motion was denied.

       Defendant then testified that he knew that Officer Sitzman was chasing him and that as

he approached the residence on Park Avenue he "hopped over the fence, and I seen a shack or

whatever and I went inside. I was coming in the house." (T., p. 36) Defendant acknowledged

that he was in the residence for 5 to 6 minutes and stayed there until the K-9 officer was sent in

at which time he was arrested. On cross examination, Defendant acknowledged that he ran from

Officer Sitzman after he was approached and saw that he was in a marked police vehicJe and in

full uniform and he ran in an attempt to hide from the police. (T., pp. 37 - 38) At the conclusion

of the trial, Defendant argued that he was not guilty of burglary as the Commonwealth failed to

establish that he entered the residence with the intent to commit a crime and specifically argued

that he was not charged with criminal trespass. (T., p. 39) The Commonwealth argued that

Defendant broke the locked door and entered the residence without permission. In addition, the

Commonwealth argued that defendant entered the residence to conceal himself with the intent to
                                                            ' time of the verdict on June 6,
avoid apprehension in violation of 18 Pa.C.S.A. §5126. At the

2016 Defendant was found guilty of burglary based on Defendant's testimony that he was "in the


                                                 8
house to commit the crime of fleeing from a police officer." Defendant's Post Sentence Motion

was denied and this appeal followed.

DISCUSSION

         In his sole issue on appeal Defendant asserts the evidence was insufficient as a matter of

law to support the conviction for burglary in that it was not established that Defendant intended

to commit a crime at the time that he entered the building. Defendant was charged with burglary

in   violation of 18 Pa.C.S.A. §3502 (a)(2) which provides as fo1lows:

         (a) Offense deflned.v-A person commits the offense of burglary if, with the intent
         to commit a crime therein, the person:
          (2) enters a building or occupied structure, or separately secured or occupied
         portion thereof that is adapted for overnight accommodations in which at the time
         of the offense no person is present. 18 Pa.C.S.A.§ 3502(a)(2)


         In his post sentence motion Defendant argued that he could not be found guilty of

burglary because the Commonwealth had failed to prove that Defendant intended to commit a

crime when entering the building and specifically referred to 18 Pa.C.S.A. 5126. In his brief

Defendant cited Commonwealth v. Philips. 129 A.3d 513, (Pa. Super. 2015), decided December

14, 2015. In Philips, the Court found, as a matter of first impression, that a violation of 18

Pa.C.S.A. §5126 can only be found if the defendant had been charged with a crime at the time he

fled. §5126 provides:


         "Flight to avoid apprehension, trial or punishment. (a) Offense dellned=-A
         person who willfully conceals hi1rn;elf or moves or travels within or outside this
         Commonwealth with the intent to avold apprehension, trial or punishment
         commits a felony of the third degree whenthe crime which he has been charged
         with or has been convicted of is a f~lony and commits a misdemeanor of the
         second degree when the ·c.rime which he has been charged with or has been
         convicted of is a misdemeanor." 18 Pa.C.$.A. §512-6 ·




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·~ ..

        The Court in Philips stated:

               "Since the flight to avoid apprehension statute is plain on its face, and the
               Commonwealth di~ not 'prove that Appellant had been charged with a crime when
               he fled, insufficient evidence existed to find him gt;tilty of the aforementioned
               offense." Commonwealth v, Phillips, 129 A.3d 513, 519 (2015)
               Based on Philips Defendant argues that he could not have intended to commit a crime at

        the time that he entered the building, that is a violation of §5126, as he was not charged with a

        crime at the time he fled and, therefore, could not have been convicted of burglary. However,

        the present case is distinguishable from Phillps because Defendant testified specifically that he

        entered the residence with the intent of fleeing the police and it also clear that he was not

        authorized to enter the premises. A defendant does not have to be charged or convicted of the

        crime that he intended to commit when entering a structure in order to be convicted of burglary.

        Defendant argued at trial that he had not been charged with criminal trespass. Criminal trespass

        is defined in pertinent part as follows:

               (a) BuHdin'{~S and occupied structures.«
               (l) A person commits.an offense if, knowing that he is not licensed or privileged
               to do so, he:
               (i) enters, gains entry by subterfuge.or surreptitiouslyremains in any building or
               occupied structure or separately secured or occupied portion thereof; or
               (ii) breaks inte any building or occupied structure or separately secured or
               occupied portion thereof. 18 Pa.C.S.A. §. 35031

        I
         In Leach v. Commonwealth, 141 A.3d 426 2016), decided June 20, 20 J 6. the Supreme Court
        affirmed the Commonwealth Court's order of.June 2:S·, 2015 in Leach v. Commonwealth, 118
        A.3Q 1271 (Pa, Cmwlth. 2015), which found that Act 192 signed by then Governor Corbett on.
        November 6, 2014, effective January 5, 2015 was unconstitutional and void as it was
        promulgated in violation of the single-subject rule. The. Supreme Court noted that certain
        portions of U1e Act attempted to amend §3503 stating:
               "The Senate Judiciary Committee added a section amending the· existing trespass
               provision of the Crirnes Code, see 18 Pa.C.S. § 3503, to specify that an individual
               who trespasses in order to steal secondary metal commits a first-degree
               misdemeanor as a "simple trespasser." Ed.. § 3503(.b.1 )( l,)(iv); (b.I )(2). The
               eommittee later made an additional revision to Section 3;;03 defining· "secondary
               metal" by reference to the definition contained in Section 39.J5 (which, as noted,
               sets forth the new substantive offense). The bill's title was updated to reflect these
                                                         10
I,




     In Commonwealth v. Brown. 886 A.2d 256 (Pa. Super. 2005) the Court noted that:

             " ... the Commonwealth is not required to specify what crime a defendant, who is
             charged with burglary (or attempted burglary), was intending to commit.
             Commonwealth v. V011 A<.'ze/, 295 Pa.Super, 242, 44.1 A.2d 750 (.1981). Further,
             the. Commonwealth need not prove the underlying crime to sustain a burglary
             eonviction. Commonwealth v: Lease, 703 A..2d 506 (P.a.Super.1997)
             Commonwealth. v. Brown, 886 A.2d 256, 260 (Pa. Super. 2005)


     In Commonwealth v. Quintua, 56 A.3d 399, 402 ( Pa. Super. 2012) the Superior Court discussed

     the elements of burglary and criminal trespass. The Court stated:

             "Examining the elements of criminal trespass, a conviction for that offense
            requires a person: (1) to break or enter into With subterfuge any building or
            occupied structure; (2) knowing he 'is not licensed or privileged to do so. See 18
            Pa.C.S.A. § 3503(a)(l): On the other hand, to commit burglary, a person must: (1)
            enter a building or occupied structure; (2) with intent to commit a crime therein.
            See 1.8 Pa.C.S.A. § 3502(a). The plain language of the respective statutes
            demonstrateswhy they do not merge. Criminal trespass contains an element of
            knowledge-a person committing that offense must know he is not privileged to
            enter the premises, Burglary has no· such knowledge.requirement. Burglary does,
            however', require intent to commit a crime within the premises, an.element that
            criminal trespass lacks. Commonwealth v. Qulntua, 56 A.3d 399, 402 (2012)

     Although he was neither charged nor convicted of an underlying crime, Defendant's

     acknowledgement that he entered the residence while fleeing from the police and when he was

     not licensed or privileged to do so supports the conviction for burglary.




            minor revisions. See HB 80, Printer's No. 4284, at 1." Leach v. Commonwealtli;
            141 A.3d 426, 428 (Pa. 2016)



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