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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA 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

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- 0003580

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CP

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- 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

- 035 80, 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 overnightJ

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accommodation, in which, at the time, no person was present, in violation of Se ctions 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 apprehe nsion.
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 Commo nwealth 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 notesJ

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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 lega lly 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 th e 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 wit h 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 c riminal 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 notJ

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evidence and t he 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 ratio nal 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 tri al, 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 ente red the building with a generic criminal intent to commit some crime, to wit, the

____________________________________________ 1 Since this matter was tried non

- jury, the adequacy of any jury instruction regarding th is element is not at issue.J

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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 i nclude 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 th e 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 di spatcher 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

____________________________________________ 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)J

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remove his hands from his pockets but his companions did. At that point, [Appellant] fled the scene.” Trial Court O pinion, 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)

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