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.

OPINION BY SHOGAN, J.:                          FILED OCTOBER 29, 2014

      Appellant, Larry Lee Stoppard, Jr., appeals from the judgment of

sentence entered on May 22, 2013, in the Lebanon County Court of Common

Pleas. We affirm.

      The relevant facts and procedural history of this matter were set forth

by the trial court as follows:

            Defendant was found guilty on charges of felony Escape
      and Flight to Avoid Apprehension after a bench trial conducted
      on March 21, 2013. Prior to the bench trial, Defendant had filed
      a Pretrial Motion seeking regrading of both charges to
      misdemeanors. We denied the Pretrial Motion by Order of
      November 16, 2012. On May 22, 2013, Defendant was
      sentenced to twenty-seven months to five years in a state
      correctional facility. On June 3, 2013, he filed a Post Sentence
      Motion contending that we had erred in denying the Pretrial
      Motion.




__________________
*Former Justice specially assigned to the Superior Court.
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           Our decision to deny the Pretrial Motion was based upon
     the following stipulated facts submitted by the parties as
     outlined in our Opinion which accompanied the Order of
     November 16, 2012:

                Defendant was initially charged in Action
          No. 1282-2012 with felony Burglary and
          Conspiracy offenses and misdemeanor Theft
          and Conspiracy offenses for allegedly taking
          metal drums from a residential carport. In [the
          case at bar,] Action No. 1298-2012, he was charged
          with felony Escape and Flight to Avoid Apprehension
          charges (“Escape and Flight charges”) for allegedly
          fleeing from police in order to avoid apprehension on
          the charges then pending in No. 1282-2012.
          Subsequently, the Commonwealth withdrew the
          felony Burglary and Conspiracy charges in No. 1282-
          2012 and Defendant filed an Omnibus Pretrial Motion
          requesting that we direct the regrading of the Escape
          and Flight charges of No. 1298-2012 from felonies to
          misdemeanors as a result. The parties have
          stipulated to the following facts relative to our
          disposition of this Motion.

                On July 3, 2012, felony charges of Burglary,
          Criminal Conspiracy to Commit Burglary and
          misdemeanor charges of Theft by Unlawful Taking or
          Disposition and Criminal Conspiracy to Commit Theft
          by Unlawful Taking or Disposition1 were filed against
          Defendant for allegedly taking the metal drums from
          a carport at a residential property. He was not
          apprehended on the charges and a felony warrant
          was issued. On July 6, 2012, Defendant appeared at
          the office of District Judge Garver on an unrelated
          matter. When Garver’s staff noted the existence of
          the warrant, they summoned the police. Chief
          Stanley Jasinski of the Palmyra Police Department
          responded to the District Justice Office in full uniform
          and explained to Defendant that he was under arrest
          pursuant to the Burglary warrant and that he would
          be required to accompany Chief Jasinski to Central
          Booking. Upon being instructed to place his hands


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          behind his back for handcuffing, Defendant turned
          from Chief Jasinski, fled the building, ran from the
          police and told a female companion standing near his
          vehicle, “they have a Burglary warrant for me, let’s
          go.” Defendant then drove away in the vehicle. As a
          result, Chief Jasinski filed third-degree felony Escape
          and Flight charges against Defendant on that date.
                1
                   18 Pa.C.S.A. § 3502(a), Criminal
                Conspiracy to Commit Burglary, 18
                Pa.C.S.A. §§ 903, 3502(a), 18 Pa.C.S.A.
                § 3921(a), 18 Pa.C.S.A. §§ 903, 3921(a)
                respectively.

                On August 30, 2012, Defendant stipulated to
          the Affidavit of Probable Cause with respect to the
          Escape and Flight charges and a preliminary hearing
          was held on the Burglary charges. All charges in both
          cases were bound over and held for Court. The
          Escape and Flight charges were docketed in this
          Court to No. 1298-2012; the Burglary, Theft and
          related Conspiracy charges were docketed to No.
          1282-2012.

                Defendant subsequently filed a Petition for Writ
          of Habeas Corpus regarding the Burglary charges.2
          The Commonwealth ultimately agreed with the
          averments of the Petition and stipulated to the
          withdrawal of the Burglary and Conspiracy to
          Commit Burglary counts in that action. Thus, only
          charges of Theft and Conspiracy to Commit Theft,
          both misdemeanors, remained at No. 1282-2012.
                2
                    The  petition  averred    that  the
                Commonwealth could not establish a
                prima facie case on the two Burglary
                charges due to the location from which
                Defendant was alleged to have taken the
                metal drums.

           In Defendant’s Pretrial Motion, he argued that the
     withdrawal of the felony Burglary and Conspiracy to Commit


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J-A22026-14



      Burglary charges from No. 1282-2012 required the regrading of
      his Escape and Flight charges to misdemeanors in No. 1298-
      2012. The Commonwealth countered that the Escape and Flight
      charges in No. 1298-2012 should remain felonies as Defendant
      was charged with the felony Burglary offenses at the time he fled
      from Chief Jasinski and that the subsequent withdrawal of those
      charges did not affect the grading of the Escape and Flight
      charges.

Trial Court Opinion, 10/1/13, at 1-4 (emphasis added).                 The trial court

denied Appellant’s post-sentence motion.

      Following the entry of the judgment of sentence and the denial of his

post-sentence motion, Appellant filed this timely appeal.                 On appeal,

Appellant raises the following issue for this Court’s consideration:

      Whether the Commonwealth’s withdrawal of the Burglary and
      Conspiracy to commit Burglary charges should lower the grading
      of [Appellant’s] Escape and Flight to avoid Apprehension
      specifically since the facts and circumstances of the case never
      supported the felony charges?

Appellant’s Brief at 4 (footnotes omitted).

      The    grading   of   a   criminal   offense   is   an   issue     of   statutory

interpretation.   Commonwealth v. Felder, 75 A.3d 513, 515 (Pa. Super.

2013).     The interpretation of a statute is a pure question of law, and

therefore our standard of review is de novo and our scope of review is

plenary. Id.

      As noted above, Appellant was charged and convicted of escape and

flight to avoid apprehension. Those crimes are defined, in relevant part, as

follows:


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J-A22026-14



     Escape

     (a) Escape.--A person commits an offense if 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.

                                   * * *

     (d) Grading.--

           (1) An offense under this section is a felony of the
           third degree where:

                 (i) the actor was under arrest for or
                 detained on a charge of felony or
                 following conviction of crime;

                                   * * *

           (2) Otherwise an offense under this section is a
           misdemeanor of the second degree.

18 Pa.C.S. § 5121(a), (d)(1)(i) and (d)(2).

     Flight to avoid apprehension, trial or punishment

     (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).

     Appellant argues that because the felony burglary charges were

withdrawn after he was arrested, his flight and escape was from the

misdemeanor charge of theft, not felony charges.        Thus, he claims the


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J-A22026-14



escape and flight charges should only be graded as misdemeanors.

Appellant’s Brief at 10. We disagree based on the facts as they existed at

the time Appellant committed the crimes of escape and flight to avoid

apprehension.

     In Commonwealth v. Janis, 583 A.2d 495, 497 (Pa. Super. 1990),

this Court explained the methodology in grading as follows:

     “we conclude that, in grading the offense of escape, we must
     look to the conduct of the accused at the time the escape is
     attempted or realized together with only those facts
     which are known to the parties at that time. We find it
     significant that the statute speaks in the past tense: an offense
     is a felony if, and only if, the actor was under arrest for, or was
     detained on a charge of, felony. The past tense only makes
     sense if it is understood to relate back to the time at which the
     escape was attempted.”

Id. at 497 (emphasis added).1

     As is evidenced in the plain language of 18 Pa.C.S. § 5121(d) and 18

Pa.C.S. § 5126(a), the grading of these crimes depends on the grading of

the underlying crimes. Here, at the time Appellant fled, the underlying

crimes with which he had been charged were burglary and conspiracy to

commit burglary. Therefore, because burglary is a crime that can only be



1
  While Janis discusses only escape, we conclude that, based on the
similarity of purpose in the language of 18 Pa.C.S. § 5126(a), Janis’s
rationale applies equally to the crime of flight to avoid apprehension. See
also Commonwealth v. Steffy, 36 A.3d 1109 (Pa. Super. 2012) (holding
that flight to avoid apprehension was properly graded as a felony when the
defendant eluded police to avoid apprehension where the defendant had an
outstanding bench warrant for a felony offense).

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J-A22026-14



graded as a felony of the first or second degree pursuant to 18 Pa.C.S. §

3502, Appellant committed felony escape and felony flight to avoid

apprehension at the time he fled.2 Janis, 583 A.2d at 497.

      For the reasons set forth above, we conclude there was no error in the

trial court’s refusal to alter the gradation of the charges of escape and flight

to avoid apprehension. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Panella joins the Opinion.

      Justice Fitzgerald files a Dissenting Opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/29/2014




2
  We note that the conspiracy charge would also be a felony.       See 18
Pa.C.S. § 905 (“Except as otherwise provided in this title, attempt,
solicitation and conspiracy are crimes of the same grade and degree as the
most serious offense which is attempted or solicited or is an object of the
conspiracy.”).

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