J-A25029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JACOB LEE BARNISH                          :
                                               :
                       Appellant               :   No. 461 MDA 2019

       Appeal from the Judgment of Sentence Entered February 28, 2019
    In the Court of Common Pleas of Huntingdon County Criminal Division at
                       No(s): CP-31-CR-0000306-2018


BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED FEBRUARY 18, 2020

        Jacob Lee Barnish appeals from the judgment of sentence imposed

following his jury conviction for flight to avoid apprehension, trial, or

punishment.1 Because we conclude that the evidence was insufficient to

sustain the conviction, we reverse.

        The evidence at trial was as follows. Trooper Paul Brenneman testified

that on May 8, 2018, he and his partner went to a residence to investigate a

report of domestic violence. N.T., Trial, 11/20/18, at 30, 31, 32. When they

arrived at the scene, Trooper Brenneman encountered Barnish and while

interviewing him, Trooper Brenneman “got a radio transmission to contact the

barracks via phone as soon as I could.” Id. at 32. When he called the barracks,

Trooper Christopher Bourne told him he was preparing felony charges against

____________________________________________


1   18 Pa.C.S.A. § 5126(a).
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Barnish and asked Trooper Brenneman to arrest him. Id. at 32-33. Trooper

Brenneman then approached Barnish, “told him he was under arrest, to get

down on the ground and place his hands behind his back.” Id. Instead of

complying, Barnish ran, and Trooper Brenneman apprehended him. Id. at 33-

34.

      The trooper preparing the charges, Trooper Bourne, testified that at the

time he contacted Trooper Brenneman, “I was filing felony charges against

[Barnish][.]” Id. at 25. He further stated on cross-examination that at the

time Trooper Brenneman arrested Barnish, he had not yet filed any charges:

         Q[Defense Counsel]: At the time that you learned – let me
         rephrase that. When Trooper Brenneman and Trooper
         Godissart arrested Mr. Barnish, had you already filed the
         charges?

         A: No.

         Q: It was later on?

         A: Correct. I was in the process of filing them. So they were
         filed after he was brought to the barracks.

Id.

      At the close of the Commonwealth’s case, Barnish moved for a directed

verdict of acquittal. He argued that the Commonwealth had failed to prove

that Barnish had been charged with a crime at the time he fled from Trooper

Brenneman. Id. at 55. In response, the Commonwealth asked the court to

take judicial notice that on the day of the subject incident, Barnish was

charged with strangulation and simple assault. Id. at 57. However, the

Commonwealth did not claim that those charges were filed before the subject

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incident occurred. The trial court did not rule on the Commonwealth’s request

or instruct the jury on judicial notice, and the Commonwealth never re-raised

the issue. The trial court denied the motion and the jury returned a guilty

verdict. The trial court imposed a sentence of 10 to 23 months’ incarceration

and this timely appeal followed.

      Barnish asks us to review the following issues:

         I.       Should the trial court have entered a directed verdict
                  of acquittal, given that the evidence adduced at trial
                  failed to demonstrate that Mr. Barnish was charged
                  with a crime at the time of the incident?

         II.      Did the trial court’s instructions mislead the jury
                  regarding the elements of flight to avoid
                  apprehension?

Barnish’s Br. at 3. Because of our disposition in this case, we only address

Barnish’s first issue.

      When reviewing a challenge to the sufficiency of the evidence, we ask

“whether the evidence admitted at trial, and all reasonable inferences drawn

from that evidence, when viewed in the light most favorable to the

Commonwealth as verdict winner, was sufficient to enable the fact finder to

conclude that the Commonwealth established all of the elements of the offense

beyond a reasonable doubt.” Commonwealth v. Sunealitis, 153 A.3d 414,

419 (Pa.Super. 2016) (quoting Commonwealth v. Woodard, 129 A.3d 480,

489-90 (Pa. 2015)). Our standard of review is de novo and our scope of review

is plenary. Id.

      The offense of flight to avoid apprehension provides as follows:


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         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.A. § 5126(a) (emphasis added).

      Barnish asserts that “[u]nless a person has already been charged with

or convicted of a crime, he or she cannot be convicted of flight to avoid

apprehension.” Barnish’s Br. at 7. In support, he cites Commonwealth v.

Phillips, 129 A.3d 513, 518 (Pa.Super. 2015). There, we addressed the issue

Barnish presents: “whether the crime of flight to avoid apprehension “applies

to a person who has not yet been charged with a crime when he flees from

law enforcement.” Phillips, 129 A.3d at 516. Phillips fled from police after

committing a series of crimes. However, at the time that he fled, no charges

were pending. We concluded that the language of the statute unambiguously

required that at the time of flight, “a person have been charged with a crime.”

Id. at 518. We therefore reversed the judgment of sentence, explaining that

“the Commonwealth did not prove that [Phillips] had been charged with a

crime when he fled[.]” Id. at 519 (emphasis added).

      Here, the Commonwealth argues that the evidence was sufficient

because “[b]ased on the evidence adduced at trial, it is reasonable for those

on scene to believe that Barnish had been charged for the incident Trooper

Bourne had investigated.” Commonwealth’s Br. at 8. It refers to the “evidence


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at trial when defense counsel used the word “charges” during his cross

examination of Troopers Bourne and Brenneman. Id. at 7.

      We disagree. In this case, as in Phillips, the Commonwealth did not

prove that Barnish had already been charged with a crime when he fled. The

evidence at trial, even in the light most favorable to the Commonwealth,

shows that Barnish was not charged until “after he was brought to the

barracks.” N.T., Trial at 25. While the Commonwealth asked the court to take

judicial notice of other charges allegedly instituted on the day in question, the

court did not explicitly grant the request or do anything indicating it had, in

effect, granted it. Nor did the Commonwealth take any other steps to place

evidence on the record that felony charges were pending at the time Barnish

ran from Trooper Brenneman. Moreover, the Commonwealth did not even ask

the court to take judicial notice that charges were allegedly pending at the

time Barnish fled.

      The Commonwealth’s assertion that the troopers reasonably believed

Barnish had already been charged when he fled, like the trial court’s assertion

that “[Barnish] knew he was under arrest when he ran from police,” is beside

the point. Trial Court Opinion, filed 5/8/19, at 3. The statute requires the

Commonwealth to prove that at the time the defendant flees law enforcement,

the defendant “has been charged with” a crime, and it failed to do so here. 18

Pa.C.S.A. § 5126(a); Phillips, 129 A.3d at 519. We therefore reverse

Barnish’s judgment of sentence.

      Judgment of sentence reversed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/18/2020




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