J-S71013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                           :        PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 JAMES A. PAUCIELLO                     :
                                        :   No. 3437 EDA 2016
                    Appellant           :

          Appeal from the Judgment of Sentence October 6, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0005225-2016


BEFORE:    PANELLA, J., STABILE, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J.                           FILED MARCH 12, 2018

      Appellant, James A. Pauciello, appeals from the judgment of sentence

imposed in the Court of Common Pleas of Philadelphia County after the trial

court found him guilty of Escape, 18 Pa.C.S.A. § 5121(a). On appeal, he

argues the Commonwealth failed to prove he intentionally failed to return to

custody, thus rendering the evidence insufficient to sustain the conviction. We

disagree and affirm.

      Pauciello was serving a two-year state intermediate punishment

sentence at the Department of Corrections’ Community Corrections Center

Number 4. His corrections counsellor gave him a day pass on May 8, 2016,

Mother’s Day, to visit his mother. Pauciello was due back at the center at 9:00

p.m. He never returned.

      According to Pauciello, after spending the day with his mother, unknown


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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assailants “jumped” him at a train station, leaving him “really, really banged

up.” N.T., Trial, 10/6/16, at 20. At some point on May 9, he called his father

who took him to the emergency room. He was discharged that night at 10:53

p.m.1 The next day, May 10, Pauciello called his corrections counsellor who

told him to return to the center with his hospital discharge paperwork.

Pauciello testified he “just basically wandered” around that day as he “had a

really bad concussion.” Id., at 21. He “wandered around” the next day, May

11, until, he claimed, he stopped a police officer and asked to return to the

center. Id.

       After listening to the testimony, the trial court said to Pauciello, “I don’t

see anything other than what you have to say. I don’t have anything here to

prove what you’re saying is true and correct, and I don’t think I believe you.”

Id., at 38-39. The trial court found him guilty of Escape, 18 Pa.C.S.A. §

5121(a), and immediately sentenced him to nine to 23 months’ imprisonment.

This timely appeal followed.

       On appeal, Pauciello solely challenges the sufficiency of the evidence.

“Because evidentiary sufficiency is a question of law, our standard of review

is de novo and our scope of review is plenary.” Commonwealth v. Ballard,

80 A.3d 380, 390 (Pa. 2013) (citation omitted). We must determine whether,

when viewed in a light most favorable to the verdict winner, the evidence at

trial and all reasonable inferences therefrom are sufficient for the trier of fact
____________________________________________


1The hospital paperwork submitted at trial did not list an intake time. See
N.T., Trial, 10/6/16, at 37.

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to find that each element of the crimes charged is established beyond a

reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150, 152 (Pa.

Super. 2003).

      “[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Commonwealth v. Bruce, 916

A.2d 657, 661 (Pa. Super. 2007) (citation omitted). Any doubt raised as to

the accused’s guilt is to be resolved by the fact-finder. See Commonwealth

v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004). “As an appellate court, we

do not assess credibility nor do we assign weight to any of the testimony of

record.” Id. (citation omitted). Therefore, we will not disturb the verdict

“unless the evidence is so weak and inconclusive that as a matter of law no

probability of fact may be drawn from the combined circumstances.” Bruce,

916 A.2d at 661 (citation omitted). Evidence is weak and inconclusive “[w]hen

two equally reasonable and mutually inconsistent inferences can be drawn

from the same set of circumstances….” Commonwealth v. Woong Knee

New, 47 A.2d 450, 468 (Pa. 1946).

      We must determine whether the Commonwealth presented sufficient

evidence to sustain the conviction. “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.” 18 Pa.C.S.A. § 5121(a). The Commonwealth had to prove Pauciello

“intended   unlawfully    to   remove    himself    from   official   detention.”

Commonwealth v. Hall, 585 A.2d 1117, 1119 (Pa. Super. 1991).

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      There was no dispute as to Pauciello’s incarceration at the center and

that he knew he had to return there at the expiration of the May 8 day pass.

See N.T., Trial, 10/6/16, at 19. Pauciello, however, never returned to the

center. See id., at 15-16.

      He maintains his hospitalization excuses his absence and negates his

intent to unlawfully remove himself from detention. His hospitalization,

however, occurred on May 9, a day after his expected return, and his

discharge occurred that night. On May 10, he contacted his corrections

counsellor who told him to return to the center with his discharge paperwork.

He did not comply. Instead, he “wandered around” on May 10 and 11. The

police did not recover him until May 11. And the trial court flatly disbelieved

Pauciello’s testimony that injuries from an attack caused his unwanted

absence. Thus, while there is no question of his hospitalization on May 9, we

can reasonably infer he did not intend to return thereafter.

      Pauciello tries to analogize his case to Hall and Commonwealth v.

Edwards, 595 A.2d 183 (Pa. Super. 1991), in an attempt to show the

Commonwealth presented insufficient evidence. Both of those cases involved

participants in work release programs. And in both, panels of this Court found

that the appellants’ behavior did not constitute substantial deviation from the

terms of their work release agreements.

      For instance, in Hall, the appellant left his work release program and

did not go directly to work, but stopped at his girlfriend’s for just an hour and

then went to work. In Edwards, the appellant arrived back to custody late

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from work on two occasions—six minutes late on one occasion and seven

minutes on another. This case plainly stands in stark contrast to Hall and

Edwards.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/18




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