J-S33043-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

JOSHUA MOSHA HARDING,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1373 MDA 2016

Appeal from the Judgment of Sentence April 29, 2016

in the Court of Common Pleas of York County,

Criminal Division, at No(s): CP-67-CR-0007614-2013

BEFORE: BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 11, 2018

This case returns to this Court after we denied counsel’s petition to 

withdraw and remanded it for the filing of an advocate’s brief in 

Commonwealth v. Harding, 2017 WL 3279392 (Pa. Super. 2017)

(unpublished memorandum). Counsel has complied and this case is now ripe 

for disposition. Upon review, we affirm.

The factual and procedural history of this matter was summarized 

thoroughly in our prior memorandum. Briefly, Appellant was convicted of 

possession with the intent to deliver a controlled substance, aggravated 

assault, escape, and simple assault after an interaction and altercation with 

Trooper James O’Shea and Officer Matthew Kile, who encountered Appellant 

when they entered an apartment with arrest warrants for Joseph Weaver and 
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Holly Urban. Appellant was present at the apartment when the officers 

entered the residence. 

Pertinent to the disposition of this case, 

[a]fter handcuffing Urban, O’Shea asked for Appellant’s 

identification and name, but Appellant said nothing. Instead, 

Appellant stood and walked around the table. Suspecting that 

“something just wasn’t right,” O’Shea informed Appellant that he 

was going to handcuff him for safety reasons. [] O’Shea 

instructed Appellant to “put his hands behind his back.” 

Meanwhile, Kile saw O’Shea interacting with Appellant and had 

heard their voices become heightened. During the trial, O’Shea 

testified that [Appellant] was not free to leave once O’Shea 

instructed Appellant about the handcuffs.

On cross-examination, O’Shea testified that he remembered 

the clicking of handcuffs, but he did not visually remember if he 

had “put one handcuff on [Appellant].” According to O’Shea on 

direct examination, “I remember hearing the clicking of the 

handcuffs, at which point [Appellant] pulled away with his right 

arm and swung back around and struck me in the right side of my 

face.” 

* * *

Detective Kile also witnessed this event and provided 

additional testimony about this initial strike. Kile testified that 

before Kile could place Weaver into custody, he saw Appellant

“swing -- lunge a closed fist at Trooper O’Shea.” Specifically, Kile 

“observed [Appellant’s] arm going towards Trooper O'Shea’s 

head.” When the Commonwealth asked Kile about if he had 

“observe[d] any part of [Appellant’s] body or anything connected 

to [Appellant’s] body make contact with Trooper O’Shea,” Kile 

responded that “it would have been his hand hitting Trooper 

O’Shea’s head. I saw Trooper O’Shea heading towards the 

ground.”

After Appellant struck O’Shea, Kile attempted to take 

Appellant’s “legs out from underneath him to put him onto the 

ground so that he could successfully be placed into custody,” but 

Appellant broke free of this attempt. Specifically, Kile and 

Appellant fell onto the kitchen table, and then onto the ground. 
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When both stood, Appellant was free. When the Commonwealth 

asked about whether Appellant “kick[ed] or push[ed] or in any 

way tr[ied] to push off [Kile] to get away,” Kile responded that “it 

would have been pushing, like a wrestling match, kind of pushing 

me down to get up kind of thing.” [] Kile’s neck had minor 

scratches from the altercation. Then, Kile saw blood running down 

O’Shea’s head.

* * *

After the altercation, Kile placed Weaver into custody by 

handcuffing him and having him sit against the wall next to Urban, 

and then put handcuffs on Appellant, while he was lying down. 

Appellant, Weaver, and Urban were removed from the residence, 

and at no point were Appellant, Weaver or Urban left without 

police supervision inside the house. It should be noted though, 

for thoroughness[,] that Kile did not do a pat down of Urban or 

Weaver.

Trial Court Opinion, 10/18/2016, at 6-10.

Following a jury trial, Appellant was found guilty of the aforementioned 

crimes and sentenced soon thereafter. After the filing and denial of postsentence motions, Appellant timely filed a notice of appeal. However, in this 

Court, in lieu of a brief in support of Appellant’s appeal, counsel filed both an 

Anders1 brief and a petition to withdraw as counsel. 

Upon initial review, we agreed with counsel that Appellant’s issues 

challenging the sufficiency of the evidence to sustain his convictions for 

possession with the intent to deliver a controlled substance, aggravated 

assault, and simple assault were frivolous. Commonwealth v. Harding, 

2017 WL 3279392, at *8. Moreover, we found Appellant had presented no 

 

1 Anders v. California, 386 U.S. 738 (1967). 
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issue within his pro se response which convinced us to disturb his judgment 

of sentence. Id. However, because we identified a potentially non-frivolous 

issue in our independent review, we denied counsel’s motion to withdraw and 

remanded the case for counsel to file an advocate’s brief.2 Id. 

Specifically, this Court ordered counsel to file an advocate’s brief on the 

issue of whether the evidence was sufficient to sustain Appellant’s conviction 

for escape. Id. at 7. On November 3, 2017, counsel for Appellant filed an 

advocate’s brief, and on December 4, 2017, the Commonwealth filed a 

response. We are now able to review this issue. We do so mindful of the 

following. 

An individual commits the offense of escape when “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 § 5121(a). “‘[O]fficial detention’ means 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[.]” 18 Pa.C.S § 5121(e).

Previously, we have interpreted [“any other detention for law 

enforcement purposes”] to mean a seizure in which “the police 

have restrained the liberty of a person by show of authority or 

physical force.” [Commonwealth v. Stewart, 648 A.2d 797, 798

(Pa. Super. 1994)]. Any determination as to whether a seizure 

occurred is based upon the totality of circumstances and “whether 

 

2 In light of our finding of a potentially non-frivolous issue, we deferred our 

disposition of Appellant’s issue concerning the weight of the evidence to 

sustain his convictions.
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a reasonable person would have believed he or she was free to 

leave.” Id.

Commonwealth v. Santana, 959 A.2d 450, 452 (Pa. Super. 2008).

Appellant concedes he was in official detention. Appellant’s Brief at 12. 

Thus, we consider only whether Appellant’s conduct constituted removing 

himself from said detention as contemplated by the statute. In his advocate’s 

brief, Appellant cites several cases to support his contention that a conviction 

for escape will not stand 

unless the Commonwealth can show that the defendant 

committed a substantial deviation from official detention. In 

short, to prove the element of “remove” the Commonwealth must 

show the defendant substantially deviated from official detention. 

It stands to reason that a mere and minor deviation from official 

detention would be insufficient to be considered ‘removal’ from 

official detention for the purposes of escape.

Id. at 11 (citing Commonwealth v. Hall, 585 A.2d 1117 (Pa. Super. 1991) 

(finding insufficient evidence to sustain conviction for escape when Hall, while 

on work release, deviated from his normal route to work, but nonetheless 

returned to prison on time); Commonwealth v. Edwards, 595 A.2d 183 (Pa. 

Super. 1991) (holding Edwards did not remove himself from official detention

and thus could not be convicted of escape when, on several occasions while 

on work release, Edwards was late returning to prison); and Commonwealth 

v. Waugaman, 167 A.3d 153 (Pa. Super. 2017) (finding sufficient evidence 

to sustain conviction of escape when Waugaman left prison as part of his work 

release program but failed to show up at work and went missing for three 

hours)). 
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Applying the foregoing case law, Appellant contends that 

none of the facts presented at trial present[s] evidence showing 

that he removed himself from detention. In fact, the evidence at 

trial shows the officers were never out of sight and the Appellant 

never broke free. Moreover, there was no testimony that []

Appellant had managed to leave the apartment where the arrest 

took place. In the cases cited above, it is clear that removal from 

official detention requires some form of distance from the 

detention. In cases where the defendant left detention but 

returned this Honorable Court has found that there is no escape. 

In cases where a defendant has failed to identify their location and 

their whereabouts are unknown, this Honorable Court has found 

escape. Here, [] Appellant never put any distance between himself 

and the official detention. Moreover, he never broke free or ran 

from the initial arrest.

Appellant’s Brief at 13. 

In response, the Commonwealth correctly notes that the cases cited by 

Appellant are factually distinguishable. Commonwealth’s Brief at 14. Citing 

to the facts as set forth supra, the Commonwealth contends the evidence

presented at trial was sufficient to sustain Appellant’s conviction. Id.

These actions show that [Appellant] removed himself from official 

detention. While [Appellant] did not leave the premise, the 

escape statute does not require that the Commonwealth prove 

any particular temporal or geographical distance. Rather, the 

Commonwealth must prove that a defendant take himself out of 

official detention. By striking Trooper O’Shea so that the trooper 

no longer had [Appellant] within his custody, [Appellant] detached 

himself from official detention. Moreover, [Appellant’s] successful 

efforts in avoiding Det. Kile further show [Appellant] removing 

himself from official detention. 

Id. at 15. 

We agree. As set forth supra, an individual commits escape when he, 

inter alia, removes himself from official detention. 18 Pa.C.S. § 5121(a). The 
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statute does not mandate that the removal must be for a certain period of 

time or a certain distance from the initial detention. Here, reviewing the 

evidence in light most favorable to the Commonwealth, Appellant committed 

the crime of escape when he removed himself from official detention by 

wrestling out of Officer O’Shea’s grip and hitting Officer O’Shea in the head,

resulting in the officer’s falling to the floor. N.T., 3/14/2016 at 78, 103.

Furthermore, the cases cited by Appellant are both factually dissimilar and fail 

to support his argument that there must be evidence of a substantial deviation 

from official detention in order to sustain a conviction for escape. In light of 

the foregoing, the evidence was sufficient to sustain Appellant’s conviction. 

See Commonwealth v. Bey, 292 A.2d 519, 521 (Pa. Super. 1972) (“Any 

person who, being lawfully confined or in custody, regains his freedom, with 

or without force, before being lawfully discharged, is guilty of an escape[.]”) 

(citation and quotation marks omitted). 

Lastly, we address Appellant’s challenge to the weight of the evidence 

to support his convictions. We begin with our well-settled standard of review.

The decision of whether to grant a new trial on the basis of a 

challenge to the weight of the evidence is necessarily committed 

to the sound discretion of the trial court due to the court’s 

observation of the witnesses and the evidence. A trial court 

should award a new trial on this ground only when the verdict is 

so contrary to the evidence as to shock one’s sense of justice. A 

motion alleging the verdict was against the weight of the evidence 

should not be granted where it merely identifies contradictory 

evidence presented by the Commonwealth and the defendant. 

Our review on appeal is limited to determining whether the trial 

court abused its discretion in denying the motion for a new trial 

on this ground.
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Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations 

omitted). “Not merely an error in judgment, an abuse of discretion occurs 

when the law is overridden or misapplied, or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, 

as shown by the evidence on record.” Commonwealth v. Handfield, 34 

A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29 A.3d 

3, 6 (Pa. Super. 2011)).

With respect to the verdict, the trial court set forth the following. 

[T]he evidence was sufficient to support the convictions, and there 

is no reasonable argument that the jury mis-weighed the 

evidence. It was within the jury's discretion whether to find the 

testimony of the witnesses credible. Therefore, the court will not 

disturb the jury’s verdict.

Trial Court Opinion, 10/18/2016, at 24-25. 

We discern no abuse of discretion in the trial court’s conclusion. As the 

trial court correctly observed, it is within the province of the jury, sitting as 

fact-finder, to review the evidence and assess the credibility of the testifying 

witnesses. See Commonwealth v. Williams, 854 A.2d 440, 445 (Pa. 2004) 

(“In criminal proceedings, the credibility of witnesses and weight of evidence 

are determinations that lie solely with the trier of fact.”). See also 

Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa. Super. 2006) 

(“[E]vidence at trial need not preclude every possibility of innocence, and the 

fact-finder is free to resolve any doubts regarding a defendant’s guilt unless 

the evidence is so weak and inconclusive that as a matter of law no probability 
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of fact may be drawn from the combined circumstances.”). Accordingly, 

Appellant’s weight challenge fails.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/11/2018