Opinion
J-A18019-17 No. 1045 WDA 2016
10-24-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. ATIBA WILSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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. MEMORANDUM BY LAZARUS, J.:
Atiba Wilson appeals from the judgments of sentence, entered in the Court of Common Pleas of Allegheny County, following his convictions, on two separate dockets, for burglary (F1), various firearm charges, and possession of marijuana. After careful review, we affirm in part and vacate in part.
CC201503580 ("Burglary case"); CC201512661 ("Firearms cases").
18 Pa.C.S. § 3502(a)(2) (burglary overnight accommodation; no person present).
18 Pa.C.S. § 6106(a)(1)(firearms not to be carried without license) (F3); 18 Pa.C.S. § 6105(a)(1) (possession of firearm prohibited) (M1).
35 P.S. § 780-113(a)(31).
The trial court accurately summarized the facts of the Burglary case as follows:
This matter arises out of [Wilson's] arrest on March 3, 2015. At trial the Commonwealth called Officer Louis Sitzman of the Borough of Swissvale Police who testified that as he was coming on patrol duty at approximately 2:06 p.m. when he received a dispatch concerning two males brandishing a handgun. The male with the firearm was described as wearing a blue and gray jacket, a gray hoodie with the hood up and black boots. As Officer Sitzman was exiting the police station and getting into his patrol vehicle he noticed three males walking towards the station, one of whom matched the exact description of the actor with the firearm. Officer Sitzman got into his vehicle, drove towards the men, exited his vehicle and "put the males at gunpoint." Officer Sitzman testified that it was [Wilson] who was wearing the blue and gray hoodie and had his hands in his pockets. [Wilson] did not comply with the order to remove his hands from his pockets but his companions did. At that point, [Wilson] fled the scene. Officer Sitzman pursued him for several blocks until [Wilson] jumped down from a 10 foot wall onto the train tracks and crossed the street into a nearby yard.
Officer Sitzman, who was also a K-9 handler, retrieved his K-9 partner, and went to the location where [Wilson] was last seen. At that point, Officer Sitzman and his partners followed footprints in the snow to a fence which they climbed over into the backyard of a residence and ultimately found [Wilson] hiding behind some boxes in an enclosed porch of the residence. After [Wilson] repeatedly refused commands to exit the porch, the K-9 officer was sent into the porch and [Wilson] was then taken into custody.
The Commonwealth also presented the testimony of the residents of the home that [Wilson] entered which established that [Wilson] was not authorized or permitted to enter the residence, that there was damage to the door of the residence and that furniture that had previously been in the enclosed porch was thrown into the yard.
At the conclusion of the Commonwealth's case [Wilson] made a motion for judgment of acquittal on the charge of burglary on the basis that there was no evidence that the home was entered for the purpose of committing a crime. The Commonwealth
responded by stating that "There was testimony from the victim that the items that were on her porch were disturbed and they were placed in the yard." [Wilson]'s motion was denied.Trial Court Opinion, 1/18/2017, at 7-9 (citations to record omitted). On June 6, 2016, the trial court sentenced Wilson to 18-36 months' incarceration, with a 5-year probationary tail on the Burglary case, and a concurrent sentence of 36-72 months' imprisonment on the Firearms case.
[Wilson] then testified that he knew that Officer Sitzman was chasing him and that as he approached the residence on Park Avenue he "hopped over the fence, and I seen [sic] a shack or whatever and I went inside. I was coming in the house." [Wilson] acknowledged that he was in the residence for 5 to 6 minutes and stayed there until the K-9 officer was sent in at which time he was arrested. On cross examination, [Wilson] acknowledged that he ran from Officer Sitzman after he was approached and saw that he was in a marked police vehicle and in full uniform and he ran in an attempt to hide from the police. At the conclusion of the trial, [Wilson] argued that he was not guilty of burglary as the Commonwealth failed to establish that he entered the residence with the intent to commit a crime and specifically argued that he was not charged with criminal trespass. The Commonwealth argued that [Wilson] broke the locked door and entered the residence without permission. In addition, the Commonwealth argued that [Wilson] entered the residence to conceal himself with the intent to avoid apprehension in violation of 18 Pa.C.S.A. §5126. At the time of the verdict on June 6, 2016[,] [Wilson] was found guilty of burglary based on [Wilson]'s testimony that he was "in the house to commit the crime of fleeing from a police officer."
No further penalty was imposed on the drug and possession of firearm prohibited convictions.
Wilson filed post-sentence motions that were denied. This timely appeal follows. On appeal, Wilson presents two issues for our consideration:
(1) Whether [] Wilson's conviction for Burglary at CC 201503580 must be reversed, and his judgment of
sentence must be vacated, when the evidence was insufficient, as a matter of law, to establish that he entered the structure with the intent to commit a crime therein?
(2) Whether the police stopped and searched [] Wilson without reasonable suspicion, based on specific and articulable facts, to believe that he was presently armed and dangerous, thereby requiring that his firearms convictions at CC 201512661 be reversed, and his judgment of sentence vacated?
Burglary Case
Wilson first contends that his burglary conviction must be vacated because the Commonwealth failed to prove that he had the requisite intent to commit a crime within the structure.
A person commits the offense of burglary under 18 Pa.C.S. § 3502(a)(2), if:
[W]ith the intent to commit a crime therein, the person [] . . . enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense no person is present[.]18 Pa.C.S. § 3502(a)(2) (emphasis added). In the instant case, the Commonwealth argued that Wilson was "trying to [e]lude the police" when he entered the residence. See N.T. Non-Jury Trial, 5/23/16, at 33. Specifically, the Commonwealth stated "[section] 5126 of the Crimes Code [flight to avoid apprehension] is a crime . . . [and b]y [the defendant's] own testimony, he testified that he went there intending to conceal himself. That's why he broke in." Id. at 41.
We recognize that in Commonwealth v. Brown , 886 A.2d 256 (Pa. Super. 2005), our Court found that where the Commonwealth does specify the crime the defendant intended to commit, it must prove the requisite intent for that particular crime in order to prove a burglary. Id. at 260.
Instantly, at trial the Commonwealth specifically cited to the flight to avoid apprehension statute, acknowledged that the defendant admitted he entered the victim's structure with the intent to conceal himself, and stated in open court "[t]hat's why he broke in." Under the circumstances we similarly find that the Commonwealth should be required to prove Wilson's intent to commit the crime delineated under section 5126 in order to prove Wilson committed burglary.
The crime flight to avoid apprehension is defined as:
(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) (emphasis added). Thus, an element of section 5126 is the requirement that an individual has already been charged or convicted of a crime. In Commonwealth v. Phillips , 129 A.3d 513 (Pa. Super. 2016), our Court found that "the plain language of [section 5126(a)] requires that a person have been charged with a crime. This language is simply not ambiguous." Id. at 518. Accordingly, our Court vacated the defendant's section 5126(a) conviction where the Commonwealth failed to prove that he had been charged with a crime when Phillips fled from law enforcement.
We acknowledge that the Commonwealth is correct that in order to prove burglary a defendant need not be charged with, and the Commonwealth need not prove, the crime which he had the intent to commit when he entered the structure. Commonwealth v. Lease , 703 A.2d 506 (burglary conviction sustained on appeal where defendant acquitted of underlying crimes of burglary, theft and receiving stolen property). However, the Commonwealth's argument misses the mark. 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. Phillips , supra . Without having that intent, Wilson could not be found guilty of burglary under the facts and circumstances of this case. Brown , supra .Thus, we must vacate his section 5126(a) conviction.
Firearms Case - Suppression Issue
We rely upon the opinion authored by the Honorable Randal B. Todd to affirm the court's decision to deny Wilson's pretrial motion to suppress in CC 201512661. See Trial Court Opinion, 1/18/2017, at 2-6. Instantly, the officers corroborated a tip about an armed individual in the McDonalds prior to the police patting Wilson down, searching him and arresting him. Under a totality of the circumstances, there was a reasonable basis for the investigatory stop and for the officer's pat-down where they believed that Wilson was armed and dangerous. We instruct the parties to attach a copy of Judge Todd's decision in the event of further proceedings in the matter.
In the interest of brevity, we have omitted reciting the facts underlying Wilson's conviction at CC 201512661. See Trial Court Opinion, 1/18/2017, at 2-4 (facts for Firearms case).
Burglary conviction at CC 201503580 vacated. Remaining convictions at CC 201512661 affirmed. Judgments of sentence affirmed. Jurisdiction relinquished.
Because the trial court ordered Wilson's burglary sentence to run concurrent with his firearm convictions, we need not remand for resentencing as the sentencing scheme has not been upset. See Commonwealth v. Henderson , 938 A.2d 1063, 1067 (Pa. Super. 2007) (stating that "since appellant's sentences were concurrent, the trial court's overall sentencing scheme has not been compromised, and it [wa]s not necessary to remand for re-sentencing."). --------
Judge Ott joins the Memorandum
Judge Bowes files a Concurring and Dissenting Memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/24/2017
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