Com. v. Burbage, O. (memorandum)
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J-S28017-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. OLIVER MERVIN BURBAGE Appellant No. 1219 EDA 2013 Appeal from the Judgment of Sentence March 21, 2013 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-005041-2012 BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and PLATT, J.* MEMORANDUM BY LAZARUS, J.: FILED JUNE 03, 2014 Oliver Burbage appeals from his judgment of sentence imposed in the Court of Common Pleas of Delaware County following his conviction for escape (F3).1 Burbage has filed a timely appeal challenging the sufficiency of the evidence to support his conviction. For the following reasons, we affirm. This case involves an incident that occurred on June 22, 2011, on the 800 block of McDowell Avenue, in Chester, Delaware County. Pennsylvania State Trooper Robert Kirby testified that at approximately 11:00 a.m. that morning, he had conducted an interview regarding a separate matter in ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S. § 5121. J-S28017-14 nearby Eddystone. Trooper Kirby was aware that a felony warrant2 had Trooper Kirby was also familiar with Burbage based upon prior investigations of other criminal activity in which Trooper Kirby had met Burbage face-to-face. At approximately 11:30 a.m., Trooper Kirby finished his interview in Eddystone and decided to dri girlfriend was believed to reside. Trooper Kirby testified that as he approached 835 McDowell Avenue, he spotted Burbage in the front yard and a four-year-old boy on the porch. Trooper Kirby stopped his unmarked patrol car approximately 50 feet from Burbage, exited the vehicle with his police baton, and walked toward Burbage. Trooper Kirby was not in full uniform, but he was wearing his badge in plain view on his belt. Once Trooper Kirby was within 20 to 25 feet -18. He yelled several times for Burbage to get on the ground. Instead of obeying the commands, Burbage stared at Trooper Kirby and took a stance as if he might draw a weapon. In response, Burbage then fled from Trooper Kirby and entered the residence at 835 McDowell Avenue. ____________________________________________ 2 The Bucks County felony warrant was issued on June 15, 2011. -2- J-S28017-14 Trooper Kirby indicated that he was not assisted by any other police officers, and since the four-year-old boy was unattended on the porch, he called 911 to obtain backup before entering the residence. The residences on this block are connected row houses, preventing easy access to the rear of the homes from the front. Once additional officers arrived, Trooper Kirby exited the house. Although Trooper Kirby did not successfully detain Burbage, officers eventually took Burbage into custody on August 8, 2011. Burbage testified at trial and recounted a completely different series of claimed he was not present at 835 McDowell Street when Trooper Kirby allegedly detained him. According to Burbage, he was at work at a towing officers had broken into the 835 McDowell Avenue residence in an attempt to locate him. No additional witnesses t On cross- crimen falsi were brought to light.3 The aforementioned testimony was presented at a one-day jury trial on January 29, 2013, after which the jury convicted Burbage of the offense ____________________________________________ 3 multiple convictions for each of several offenses, including receiving stolen property, burglary, and theft. -3- J-S28017-14 of escape. On March 21, 2013, the court sentenced him to three to six challenging the sufficiency of the evidence was timely filed on April 17, 2013. Where an appellant challenges the sufficiency of the evidence, this deducible therefrom, when viewed in the light most favorable to the verdictwinner . . . are sufficient to establish all elements of the crime charged Commonwealth v. Rakowski, 987 A.2d 1215, 1217 (Pa. Super. 2010) (quoting Commonwealth v. Parker, 957 A.2d 311, 317 (Pa. Super. 2008) (citations omitted)). the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial Commonwealth v. Abed, 989 A.2d 23, 26 (Pa. Super. 2010) (citations omitted). A person commits the offen himself from official detention or fails to return to official detention following Pa.C.S. § 5121(a). The offense is graded as a third-degree felony where Id. at § 5121(d)(i). On appeal Burbage claims that the evidence presented in this matter -4- J-S28017-14 he fled from Trooper Kirby, who was executing the Bucks County felony warrant. Official detention may occur without physical restriction, such as by prison bars or handcuffs. Commonwealth v. Stewart, 648 A.2d 797, 798 (Pa. Super. 1994) (citations omitted). In Stewart, this Court held that the defendant was under official detention when a uniformed officer, in response to a domestic dispute, drew his gun and requested that the defendant turn off his car and put his hands on the dashboard. The Id. In determining whether an individual has been officially detained, all the Id. (quoting Commonwealth v. Jackson, 630 A.2d 1231, 1236 (Pa. Super. 1993)). In Commonwealth v. Colon, 719 A.2d 1099 (Pa. Super. 1998), a police officer informed the defendant that there was a warrant for his arrest compelling to establish requisite control and detention of defendant as were his automobile in Stewart Id. at 1101. Further, the defendant could not reasonably have believed he was free to leave. In contrast, the circumstances presented in Commonwealth v. Woody, 939 A.2d 359 (Pa. Super. 2007), provide an example of what does not constitute official -5- J-S28017-14 detention. The charge of escape in Woody was based solely upon the on the ground. This command, without an additional show of authority or force, was insufficient to establish that the defendant had been officially detained. Id. at 363. In Commonwealth v. Santana, 959 A.2d 450 (Pa. Super 2008), this Court considered the facts of the case against the backdrop of the Colon and Woody decisions. In Santana residence to execute an arrest warrant for a parole violation. The defendant fled by jumping from the roof; an officer yelled at the defendant to stop and that he was under arrest. An officer also fired a taser gun at the defendant, but missed. This Court held that these facts more closely resembled the facts of Colon rather than Woody because a warrant provided authority for the authority and physical force necessary for official detention. Id. at 453. In the instant appeal, Burbage asserts that the facts of his case are most analogous to the facts in Woody the similarity of both cases involving a police officer commanding the Burbage asserts that no official detention o never informed [Burbage] that there was a warrant for his arrest, nor did he Id. However, as Stewart and Santana indicate, -6- J-S28017-14 neither the mention of a warrant nor physical restriction is required to determine that an individual has been officially detained. Indeed, Trooper Kirby testified to making a show of both authority and force toward Burbage. Unlike the situation in Woody, where the officer did not inform the defendant he was under arrest, Trooper Kirby clearly stated and he testified to prior dealings with Burbage, indicating that Burbage likely officer. Trooper Kirby made a show of force by aiming his weapon directly at Burbage and commanding him to get on the ground. As this Court noted in Colon, while a warrant demonstrates the requisite control and detention of a defendant to carry out an arrest, so does pointing a gun at the individual and requiring him or her to assume a position of surrender. Considering all not have reasonably believed he was free to leave the area. Thus, the Commonwealth provided sufficient evidence to prove that Burbage fled from official detention during an arrest based upon a felony warrant. Judgment of sentence affirmed. -7- J-S28017-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/3/2014 -8-
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