Com. v. Stoppard, L. (dissenting)

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J-A22026-14 2014 PA Super 248 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : LARRY LEE STOPPARD, JR., : : Appellant : No. 1835 MDA 2013 Appeal from the Judgment of Sentence Entered May 22, 2013, In the Court of Common Pleas of Lebanon County, Criminal Division, at No. CP-38-CR-0001298-2012. BEFORE: PANELLA, SHOGAN and FITZGERALD,* JJ. DISSENTING OPINION BY FITZGERALD, J.: FILED OCTOBER 29, 2014 I respectfully dissent. In the case sub judice, the police department filed felony burglary charges against Appellant based on the allegation that he and a co-conspirator stole metal drums from under a carport located on a residential property. Stipulation, 10/24/12, a ¶ 1. Appellant filed a petition for writ of habeas corpus in that burglary case. The Commonwealth agreed with Appellant s petition and withdrew the felony burglary charge, as well as the conspiracy to commit burglary charge, leaving only the misdemeanor offenses of theft and conspiracy to commit theft. Id. at ¶ 9. Accordingly, the police department filed the charges, but the District Attorney s Office later conceded that the alleged facts ab initio could not establish a prima facie case for burglary. I emphasize that the burglary charge the sole basis for the felony-three grading of the escape charge * Former Justice specially assigned to Superior Court. J-A22026-14 was not withdrawn as a part of plea negotiations or because a necessary witness did not appear, nor dismissed because the trial court found insufficient facts to establish a prima facie case. Instead, the Commonwealth itself agreed there was no legally sustainable charge for burglary under the law. -2-

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