J-A22026-14

                         2014 PA Super 248
COMMONWEALTH OF PENNSYLVANIA,      :     IN THE SUPERIOR COURT OF
                                   :          PENNSYLVANIA
                    Appellee       :
                                   :
          v.                       :
                                   :
LARRY LEE STOPPARD, JR.,           :
                                   :
                    Appellant      :     No. 1835 MDA 2013

       Appeal from the Judgment of Sentence Entered May 22, 2013,
            In the Court of Common Pleas of Lebanon County,
            Criminal Division, at No. CP-38-CR-0001298-2012.

BEFORE: PANELLA, SHOGAN and FITZGERALD,* JJ.

DISSENTING OPINION BY FITZGERALD, J.:            FILED OCTOBER 29, 2014

     I respectfully dissent. In the case sub judice, the police department

filed felony burglary charges against Appellant based on the allegation that

he “and a co-conspirator stole metal drums from under a carport located on

a residential property.”   Stipulation, 10/24/12, a ¶ 1.   Appellant filed a

petition for writ of habeas corpus in that burglary case. The Commonwealth

agreed with Appellant’s petition and withdrew the felony burglary charge,

as well as the conspiracy to commit burglary charge, leaving only the

misdemeanor offenses of theft and conspiracy to commit theft. Id. at ¶ 9.

     Accordingly, the police department filed the charges, but the District

Attorney’s Office later conceded that the alleged facts ab initio could not

establish a prima facie case for burglary.   I emphasize that the burglary

charge—the sole basis for the felony-three grading of the escape charge—


* Former Justice specially assigned to Superior Court.
J-A22026-14


was not withdrawn as a part of plea negotiations or because a necessary

witness did not appear, nor dismissed because the trial court found

insufficient   facts   to   establish   a   prima   facie   case.   Instead,   the

Commonwealth itself agreed there was no legally sustainable charge for

burglary under the law.




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