J-A18019-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ATIBA WILSON

Appellant No. 1045 WDA 2016

Appeal from the Judgment of Sentence June 6, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0003580-2015

CP-02-CR-0012661-2015

BEFORE: BOWES, J., LAZARUS, J., AND OTT, J.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

 FILED: OCTOBER 24, 2017

I agree that Appellant’s suppression challenge at criminal case 2015-

12661 must fail and therefore concur regarding that issue. I respectfully 

dissent from the learned majority’s decision to vacate Appellant’s burglary 

conviction at criminal case 2015-03580, as I would hold that the 

Commonwealth’s evidence sufficed to establish the essential elements of 

that crime. 

The criminal information charging Appellant with burglary stated as 

follows: 

The actor, with the intent to commit a crime therein, entered a 

building or occupied structure, namely 7428 Palmer Street, 

Apartment 1, Swissvale, PA 15218 or a separately secured or 

occupied portion thereof that was adapted for overnight 
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accommodation, in which, at the time, no person was present, in 

violation of Sections 3502(a)(2) and (c)(1) of the Pennsylvania 

Crimes Code, Act of December 6, 1972, 18 Pa. C.S. §3502(a)(2) 

and (c)(1), as amended.

Criminal Information, Docket Entry 2. The fact that the Commonwealth did 

not allege that Appellant intended to commit a particular crime is essential 

to my disposition, as, unlike the Majority, I do not find that the conviction 

must be vacated simply because the Commonwealth could not establish that 

Appellant intended to commit the specific crime of flight to avoid 

apprehension. 

In Commonwealth v. Alston, 651 A.2d 1092, 1094 (Pa. 2004), our 

Supreme Court held that the Commonwealth was not required to prove nor 

allege what particular crime a defendant intended to commit in order to 

prove burglary. Accordingly, the Commonwealth must only establish the 

“specific intent, at the time of entry, to commit some crime while in the 

residence, which was satisfied upon a showing of a general criminal intent 

inferred from the totality of the circumstances[.]” Id. at 1092 (emphasis in 

original).

The Majority’s result does not analyze whether the evidence sufficed to 

establish that Appellant committed some crime, but instead focuses on 

whether Appellant committed a specific crime. This narrow inquiry results 

from the prosecutor’s explicit reference to the crime of flight to avoid 

apprehension. Majority Memorandum at 5. The Majority correctly notes 
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that, pursuant to Commonwealth v. Phillips, 129 A.3d 513 (Pa.Super. 

2016), Appellant could not be found guilty of flight to avoid apprehension 

because he had yet to be formally charged with a crime. The Majority then 

determines that its holding is not inconsistent with Alston, because it was 

legally impossible for Appellant to commit that crime. 

Wilson is not asserting that the Commonwealth had to charge 

him with or prove the crime of flight to avoid apprehension to 

sustain his burglary conviction. Rather, he argues that he could 

not have had the requisite intent to commit a crime (here, flight 

to avoid apprehension) for burglary purposes, where the 

intended crime itself, or at least that which the Commonwealth 

stated he was intending to commit therein, requires that he has 

first been charged with or convicted of any crime.

Because the Commonwealth specified that Wilson intended to 

commit the crime of flight to avoid apprehension when he 

entered the structure and Wilson had not yet been charged with 

or convicted of a crime at the time he entered the residence, 

there was no way he could have had the intent to commit the 

crime of flight to avoid apprehension.

Majority Memorandum at 6 (emphasis in original). 

Respectfully, I am not persuaded. My esteemed colleagues hold that 

the set of possible crimes that would satisfy the generic criminal intent of 

burglary is limited to the crime of flight to avoid apprehension, because the 

prosecutor “specified” that crime. However, the prosecutor referenced that 

crime during the non-jury proceedings. The criminal information did not 

allege that crime, which is the pertinent consideration. Alston.

Thus, I interpret the Majority to attach dispositive significance to the 

prosecutor’s legal arguments. However, “[A] prosecutor's comments are not 
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evidence and the court clearly instructed the jury on this rule of law.” 

Commonwealth v. Johnson, 668 A.2d 97, 107 (Pa. 1995).1 Therefore, the 

Majority does not fully address the fact that our sufficiency analysis is 

conducted de novo. The question is whether a rational fact-finder could find 

the essential elements of the crime as charged in the information, not 

whether the fact-finder could find the essential elements of the crime 

referenced by the prosecutor’s remarks. We must determine “whether the 

evidence at trial, and all reasonable inferences derived therefrom, are 

sufficient to establish all elements of the offense beyond a reasonable doubt 

when viewed in the light most favorable to the Commonwealth as verdict 

winner.” See Commonwealth v. Haney, 131 A.3d 24, 33 (Pa. 2015) 

(citations omitted). Our Supreme Court has noted that the “ultimate 

question of evidentiary sufficiency parallels the central inquiry under the 

Jackson standard, namely, whether any ‘rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.’” 

Commonwealth v. Brown, 617 Pa. 107, 148, 52 A.3d 1139, 1164 (Pa. 

2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1970)). 

In my view, the evidence supports a finding that Appellant entered the 

building with a generic criminal intent to commit some crime, to wit, the 

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1 Since this matter was tried non-jury, the adequacy of any jury instruction 

regarding this element is not at issue. 
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continuing crime of escape. “A person commits an offense if he unlawfully 

removes himself from official detention[.]” 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). Our case law has interpreted the phrase “any other 

detention for law enforcement purposes” to encompass a seizure. 

We must decide whether the phrase “any other detention for law 

enforcement purposes” extends to a pre-arrest situation such as 

that described above. 18 Pa.C.S.A. § 5121. Officer Patterson's 

testimony, that he was in uniform, in a marked police car, had 

his gun drawn because the dispatcher had alerted him that 

Stewart had a weapon, and had ordered Stewart to turn the car 

off, was, in our opinion, sufficient to alert Stewart that he was 

being “officially detained.” It is not necessary that the suspect be 

physically restricted by bars, handcuffs, or locked doors. Escape 

encompasses more than the traditional notion of a prisoner 

scaling a prison wall.

Commonwealth v. Stewart, 648 A.2d 797, 798 (Pa.Super. 1994). 

The facts herein established that Appellant and two other males were 

seized at gunpoint by a police officer due to a report of two males 

brandishing a firearm.2 “[Appellant] did not comply with the order to 

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2

 The “detention for law enforcement” language does not refer to a lawful, 

i.e. proper under the Fourth Amendment, detention. In any event, Appellant 

did not challenge whether the seizure was proper. 

(Footnote Continued Next Page)
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remove his hands from his pockets but his companions did. At that point, 

[Appellant] fled the scene.” Trial Court Opinion, 1/18/17 at 7. The facts 

further establish that, during the subsequent foot chase, Appellant entered a 

structure in an attempt to evade the police. I would hold that a rational 

fact-finder could infer the general criminal intent from the totality of those 

circumstances, especially when Appellant himself acknowledged that “he ran 

in an attempt to hide from the police.” Id. at 8 (citations to transcript 

omitted). I would therefore affirm the burglary conviction. 

 

(Footnote Continued) _______________________