J-A33004-16


                                  2017 PA Super 135

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT WILLIAM TREECE

                            Appellant                  No. 115 WDA 2016


             Appeal from the Judgment of Sentence March 30, 2015
                In the Court of Common Pleas of Greene County
              Criminal Division at No(s): CP-30-CR-0000270-2014


BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

OPINION BY LAZARUS, J.:                                    FILED MAY 5, 2017

        Robert William Treece appeals from the judgment of sentence, entered

in the Court of Common Pleas of Greene County, following his conviction for

escape.1 Upon review, we vacate the judgment of sentence.

        The trial court summarized the relevant facts of this matter as follows:

        On June [17], 2015, [Robert Treece] was arrested for violating a
        [p]rotection from [a]buse order and taken to the Cumberland
        Township Police Department. At the time of his arrest, [Treece]
        complained of feeling ill. EMS took [Treece] to the local hospital
        cuffed to the gurney.

        After being seen in the emergency room, [Treece] was admitted
        to the hospital for medical treatment and remained under guard
        of the Cumberland Township Police in handcuffs. Sometime

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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 5121(a).
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       afterwards, the [p]olice [o]fficers removed the handcuffs and left
       the examination room [and hospital entirely].

       Sometime after 3:00 pm, [Treece], with no law enforcement
       present, decided he wanted to return home and with the
       assistance of a nurse, removed his IV and walked out of the
       hospital.

       On June [20], 2014, Cumberland Township Police took [Treece]
       into custody on an unrelated matter and on June [30], 2014[,]
       filed charges against [Treece] for [e]scape [for leaving the
       hospital].2

Trial Court Opinion, April 4, 2016, at 1-2.

       A jury trial was held, and on December 4, 2014, Treece was found

guilty of escape.      The trial judge, the Honorable William R. Nalitz, P.J.,

retired on December 31, 2014.              The Honorable Farley Toothman, P.J.,

sentenced Treece on March 30, 2015, to 11 1/2 to 23 months‘ incarceration

in the county jail, to be served concurrently with his other unrelated

sentences. Treece filed a timely post-sentence motion seeking a judgment

of acquittal, and on December 2, 2015, that motion was denied.

       On January 4, 2016, Treece filed a timely notice of appeal.          The

sentencing court ordered him to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Treece filed
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2
  In addition to escape, Treece was originally charged at this docket number
with flight to avoid apprehension.      18 Pa.C.S. § 5126(a).       After the
Commonwealth rested its case, Treece moved for judgment of acquittal on
both charges asserting that elements of each offense had not been proven.
The court initially denied both motions. N.T. Trial, 12/4/14, 62-69. Before
closing arguments, the court reconsidered the motion for acquittal and
subsequently granted it on the charge of flight to avoid apprehension. Id. at
95.



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on February 2, 2016. On appeal, Treece raises the following issue for our

review:

      Whether a person[,] who is arrested and taken to a hospital for
      treatment in handcuffs, then uncuffed when the police leave the
      hospital, and [has] no [outstanding] warrant of arrest for a
      crime or for an involuntary mental health commitment, after
      observation and assessment for at least two hours, walks out of
      the hospital, unguarded by anyone, is [] in ―official detention‖ as
      an element [of] the crime of escape under 18 [Pa.C.S.] §
      5121(a)?

Brief for Appellant, at 10.

      In considering sufficiency of the evidence claims,

      we must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in the
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. . . . Where
      there is sufficient evidence to enable the trier of fact to find
      every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.
      Of course, the evidence established at trial need not preclude
      every possibility of innocence and the fact-finder is free to
      believe all, part or none of the evidence presented.

Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc).

The Commonwealth can satisfy its burden via wholly circumstantial

evidence. Id.

      Treece challenges the sufficiency of the evidence for his conviction for

escape.   Specifically, Treece asserts that the evidence presented by the

Commonwealth was insufficient to demonstrate that he was in ―official




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detention‖ when he walked out of the hospital at least one hour after the

police officers removed his handcuffs and left the premises.3

       A person 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). ―Official detention‖ is defined as:

       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; but the phrase does not
       include supervision of probation or parole, or constraint
       incidental to release on bail.

18 Pa.C.S.A. § 5121(e).

       It is evident that Treece had been removed from the police station and

transported to the hospital, and he was no longer in a ―facility for custody of

persons.‖ Id. Furthermore, police removed Treece‘s handcuffs and left the

hospital; accordingly, Treece was no longer in police custody.        ―Therefore,

the question is whether the phrase ‗any other detention for law enforcement

purposes‘ applies to the facts of this case.‖ Commonwealth v. Santana,

959 A.2d 450, 452 (Pa. Super. 2008). ―Previously, we have interpreted this

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3
 Importantly, there is no prohibition against releasing an arrestee before
arraignment and then either re-arresting or subpoenaing the arrestee to
appear at a later time for formal arraignment. See Commonwealth v.
Jenkins, 454 A.2d 1004 (Pa. 1982); Commonwealth v. Bernard, 456
A.2d 1364 (Pa. 1963); Commonwealth v. Sabb, 409 A.2d 437, 443 (Pa.
Super. 1979).



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phrase to mean a seizure in which ‗the police have restrained the liberty of a

person     by   show   of   authority   or    physical   force.‘‖   Id.   (quoting

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 a reasonable person would have believed he or

she was free to leave.‘‖ Santana, 959 A.2d at 452 (quoting Stewart, 648

A.2d at 798).

      In Stewart, police responded to a domestic disturbance complaint

alleging that the defendant was carrying a firearm.          Upon arriving at the

scene, the officer began approaching the defendant‘s vehicle with his gun

drawn, ordering the defendant to put his hands on the dashboard of his

vehicle.   The defendant immediately drove off, was apprehended a short

while later, and charged with escape. In affirming the guilty verdict of the

trial court, this Court explained:

      Under the circumstances presented in this case, it is clear that
      [the officer] exhibited a show of authority. It is inconceivable
      that a reasonable person would believe he or she is free to leave
      when a uniformed officer with a gun drawn has requested that
      person to turn the car off and to place his or her hands on the
      dashboard. We conclude, therefore, that [the officer‘s] show of
      authority was sufficient to place [defendant] in official detention
      as described in 18 Pa.C.S.A. § 5121. [Defendant‘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, 648 A.2d at 798-99.




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     Conversely, in Commonwealth v. Woody, 939 A.2d 359 (Pa. Super.

2007), a patrolling officer observed a vehicle that was partially within a

parking space and partially blocking the roadway. Upon shining his spotlight

towards the car, the officer noticed the defendant and a female possibly

engaging in sexual activities. The officer began approaching the vehicle and

the defendant drove off. After the defendant failed to use his turn signal,

the officer activated his sirens and the defendant continued driving away.

Shortly thereafter, the defendant abandoned the vehicle and tried to flee on

foot. The officer, still in his vehicle, commanded the defendant to ―stop and

get on the ground.‖    The defendant continued fleeing and eventually the

officer caught him on foot.    The defendant was found guilty of escape

(among other charges) and appealed, arguing that he was not in ―official

detention‖ when he fled from the police officer. This Court, in reversing the

defendant‘s conviction, reasoned:

     [I]n Stewart, we found that the officer's actions, namely, his
     approach of the [defendant‘s] stopped vehicle, with his weapon
     drawn, and his instructions that the [defendant] turn off his car
     and place his hands on the dashboard, constituted an official
     detention of the [defendant]. [T]here existed a momentary
     period in which the officer was able to demonstrate a show of
     authority to the [defendant], namely, when the [defendant‘s]
     vehicle was stopped with the [defendant] inside, so as to
     suggest to the [defendant] that he was being officially detained.

     In the instant case, however, the charge of escape was based
     entirely on [defendant‘s] failure to comply with [the officer‘s]
     instructions to ―stop and get on the ground,‖ which were uttered
     by the officer from his vehicle when [defendant] exited his own
     vehicle to flee on foot. At no time was [the defendant] actually



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      detained by the officer; indeed, the facts suggest exactly the
      opposite.

Woody, 939 A.2d at 362-63.

      We note that both Stewart and Woody pertained to pre-arrest cases.

Herein, however, police had already arrested Treece, placed him in

handcuffs, taken him to the hospital, removed the handcuffs, and then left

him at the hospital without police supervision.        Commonwealth v.

Williams, 2016 PA Super 301, __ A.3d __, (Pa. Super. filed Dec. 23, 2016)

presents the closest factual scenario. In that case, the defendant violated

his parole by changing residences without permission, and was ordered to

live in a half-way house.    During his stay there, he suffered a medical

emergency and was taken to a hospital by an employee of the half-way

house. Upon arrival, the defendant evaded his escort and fled the hospital.

He was found guilty of escape and appealed the sentence asserting that he

was not in ―official detention‖ while in the half-way house because he was

designated a parolee.    This Court affirmed the trial court ruling that the

defendant was not housed at the half-way house as a condition of his

parole, but rather, he was housed there pending the outcome of his

violation of parole hearing. Thus, the Court reasoned that he was confined

to the half-way house and was not free to come and go as he pleased.

Therefore, when he fled his escort upon arriving at the hospital, he was in

official detention under section 5121(e).

      We note two critical distinctions between Williams and the present

case. First, in Williams, the defendant was a designated parolee who had

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been arrested for a parole violation and placed in a detention facility. Our

courts have recognized that parolees of this nature ―have no reasonable

expectation that they retain the liberties and freedoms customary to a

person operating under supervision of parole.‖ Willliams, 2016 PA Super

301, at *5 (citing Commonwealth v. Maldonado, 966 A.2d 1144 (Pa.

2009)). Conversely, in the instant matter, Treece was merely arrested and

taken to the police station to await his arraignment before being taken to

the hospital for medical treatment.    He was not designated to a detention

facility. Second, the defendant in Williams evaded his escort upon arriving

at the hospital with the intent to flee the facility. Treece, on the other hand,

never attempted to evade his police escort; rather, he walked out of the

hospital over an hour after police removed his handcuffs and left the

premises without explicitly specifying that he was required to remain.

Additionally, Treece walked home and immediately went to work.          In fact,

when hospital personnel called the police station to inform them of the

circumstances, the police on duty declined to issue a warrant or show any

other authority over Treece.

      While the aforementioned cases provide us guidance, we have found

no case law interpreting a situation where a police officer removes an

arrestee‘s handcuffs, leaves the hospital, and subsequently charges that

arrestee with escape after he leaves treatment.

      The reasonable person standard applicable to determining whether a

citizen is in ―official detention‖ mirrors the standard applied by the

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Pennsylvania Supreme Court as well as the Supreme Court of the United

States in analyzing the three categories of interactions between police

officers and citizens within the context of searches and seizures. Therefore,

we look to these cases for guidance.

      Article I, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment     of   the   United   States   Constitution   protect   citizens   from

unreasonable searches and seizures.        Commonwealth v. Lyles, 97 A.3d

298, 302 (Pa. 2014) (citation omitted).      The Court in Lyles differentiated

among the three categories of interactions between citizens and police,

namely: a ―mere encounter,‖ an ―investigatory detention,‖ and ―an arrest or

custodial detention.‖ Id. at 302. It is the analysis of the third category, ―an

arrest or custodial detention,‖ that mirrors the reasonable person standard

applied in ―official detention‖ analyses in the escape context.        The Lyles

court explained:

      In evaluating the level of interaction, courts conduct an objective
      examination of the totality of the surrounding circumstances [. .
      . .] The totality-of-the-circumstances test is ultimately centered
      on whether the suspect has in some way been restrained by
      physical force or show of coercive authority. Under this test, no
      single factor controls the ultimate conclusion as to whether a
      seizure occurred—to guide the inquiry, the United States
      Supreme Court and [our Supreme] Court have employed an
      objective test entailing a determination of whether a reasonable
      person would have felt free to leave or otherwise terminate the
      encounter. What constitutes a restraint on liberty prompting a
      person to conclude that he is not free to leave will vary, not only
      with the particular police conduct at issue, but also with the
      setting in which the conduct occurs.

Id. at 302–03.


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      In Commonwealth v. Freeman, 757 A.2d 903 (Pa. 2000), a

Pennsylvania state trooper observed two vehicles travelling closely together

and seemingly jockeying for position in a ―cat and mouse‖ fashion. Id. at

904. The trooper pulled over one car while another officer pulled over the

other.   The two officers received conflicting stories as to whether the two

vehicles were travelling together. The trooper gave the defendant a written

warning regarding the traffic violation and then informed her that she was

free to leave. Id. at 905. The trooper returned to his patrol car and before

defendant left, the trooper returned to her vehicle and questioned her again

about whether the two vehicles were travelling together.         When the two

officers confirmed that the stories were conflicting, the trooper ordered the

defendant to get out of her car. Id. He then received her consent to search

the car, whereupon he discovered five bags of marijuana.          The defendant

was charged with possession of a controlled substance and possession with

intent to deliver.

      The defendant filed a pre-trial motion to suppress the evidence found

during the vehicle search and her motion was denied. Id. at 906. She was

subsequently found guilty of the aforementioned charges.         The defendant

appealed to the Superior Court, arguing that the evidence (marijuana)

should have been suppressed because her consent to search the vehicle was

the result of an illegal detention.    Id.     This Court upheld her conviction,

reasoning that after the trooper returned her license and registration and

told her she was free to leave, her detention had ended and any other

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interaction between her and the officer was a ―mere encounter.‖ Therefore,

her consent was given voluntarily and the search was valid. Id.

      On allowance of appeal, our Pennsylvania Supreme Court found that,

although the initial traffic stop was a lawful detention, once the trooper

returned defendant‘s license and registration, issued her a warning, and

informed her that she was free to leave, that lawful detention had ―a clear

endpoint.‖ Id. at 907.    The Court further reasoned that the ―transition to

and character of the subsequent interaction . . . supports the conclusion that

[defendant] was subject to a second seizure‖ and that ―[defendant] would

have been entirely within her rights to drive away at that point.‖ Id. Once

the trooper returned to the defendant‘s car and ordered her to exit the

vehicle, the Court found that a second separate seizure had taken place.

      While Freeman was decided in the context of a challenge to an

evidentiary ruling, we find its ―reasonable person‖ analysis useful as a guide

in determining whether Treece reasonably believed he was free to leave. As

previously stated, Treece was taken to the hospital in handcuffs, and

remained cuffed for a period of time until officers removed the handcuffs and

left the hospital, leaving Treece in the hospital‘s care. After remaining at the

hospital, unguarded, for at least an hour, Treece removed his IV with the

help of a nurse. The nurse informed Treece that he was still in treatment

and advised him against leaving; however, this advice was strictly medical

and was unrelated to his status as a police detainee. After removing his IV,

Treece calmly left the hospital and returned to work, never attempting to

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conceal himself from the police. The nurse contacted the state police, who

informed her that they would not pick up Treece without a warrant.

Cumberland County police did not petition for an involuntary mental health

commitment and never returned to the hospital for Treece.          Furthermore,

the police cancelled Treece‘s original arraignment hearing and did not

reschedule it.    Neither the officer nor Treece was aware of when a

subsequent hearing would take place.           It was not until Treece was later

pulled over for a separate traffic violation that he was charged with escape.

      We also note that the police never advised Treece that he was not free

to leave the hospital. While this point is not dispositive, it lends support to

the conclusion that a reasonable person in Treece‘s position would believe he

was free to go.       Just as in Freeman, Treece was very clearly in ―official

detention‖ while he was handcuffed and under guard of a police officer at the

hospital.   However, once the police officer removed the handcuffs and left

the hospital, the ―official detention‖ had a ―clear endpoint.‖ Freeman, 757

A.2d at 907. Treece did not immediately flee the hospital as soon as he was

left unguarded, but rather, waited at least one hour before deciding to leave.

He did not need to evade any guard, and in fact was assisted in removing

his IV by the nurse on duty.      Additionally, the hospital is not a delegated

detention facility.    At no point after walking calmly from the hospital did




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Treece ever attempt to conceal himself or evade the police. 4       Watley,

supra.

       Based on the foregoing, we find that the evidence presented at trial

did not establish that Treece was subject to ―official detention,‖ as

contemplated in the escape statute, when he left the hospital. Accordingly,

we reverse his conviction and vacate the judgment of sentence.

       Judgment of sentence vacated.

       Judge Solano joins the Opinion.

       Judge Strassburger files a Dissenting Opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2017




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4
 There is no indication in the record that Treece asked to go to the hospital
as subterfuge to evade police or to prevent his arrest.



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