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.
OPINION BY SHOGAN, J.: FILED OCTOBER 29, 2014
Appellant, Larry Lee Stoppard, Jr., appeals from the judgment of
sentence entered on May 22, 2013, in the Lebanon County Court of Common
Pleas. We affirm.
The relevant facts and procedural history of this matter were set forth
by the trial court as follows:
Defendant was found guilty on charges of felony Escape
and Flight to Avoid Apprehension after a bench trial conducted
on March 21, 2013. Prior to the bench trial, Defendant had filed
a Pretrial Motion seeking regrading of both charges to
misdemeanors. We denied the Pretrial Motion by Order of
November 16, 2012. On May 22, 2013, Defendant was
sentenced to twenty-seven months to five years in a state
correctional facility. On June 3, 2013, he filed a Post Sentence
Motion contending that we had erred in denying the Pretrial
Motion.
__________________
*Former Justice specially assigned to the Superior Court.
J-A22026-14
Our decision to deny the Pretrial Motion was based upon
the following stipulated facts submitted by the parties as
outlined in our Opinion which accompanied the Order of
November 16, 2012:
Defendant was initially charged in Action
No. 1282-2012 with felony Burglary and
Conspiracy offenses and misdemeanor Theft
and Conspiracy offenses for allegedly taking
metal drums from a residential carport. In [the
case at bar,] Action No. 1298-2012, he was charged
with felony Escape and Flight to Avoid Apprehension
charges (“Escape and Flight charges”) for allegedly
fleeing from police in order to avoid apprehension on
the charges then pending in No. 1282-2012.
Subsequently, the Commonwealth withdrew the
felony Burglary and Conspiracy charges in No. 1282-
2012 and Defendant filed an Omnibus Pretrial Motion
requesting that we direct the regrading of the Escape
and Flight charges of No. 1298-2012 from felonies to
misdemeanors as a result. The parties have
stipulated to the following facts relative to our
disposition of this Motion.
On July 3, 2012, felony charges of Burglary,
Criminal Conspiracy to Commit Burglary and
misdemeanor charges of Theft by Unlawful Taking or
Disposition and Criminal Conspiracy to Commit Theft
by Unlawful Taking or Disposition1 were filed against
Defendant for allegedly taking the metal drums from
a carport at a residential property. He was not
apprehended on the charges and a felony warrant
was issued. On July 6, 2012, Defendant appeared at
the office of District Judge Garver on an unrelated
matter. When Garver’s staff noted the existence of
the warrant, they summoned the police. Chief
Stanley Jasinski of the Palmyra Police Department
responded to the District Justice Office in full uniform
and explained to Defendant that he was under arrest
pursuant to the Burglary warrant and that he would
be required to accompany Chief Jasinski to Central
Booking. Upon being instructed to place his hands
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behind his back for handcuffing, Defendant turned
from Chief Jasinski, fled the building, ran from the
police and told a female companion standing near his
vehicle, “they have a Burglary warrant for me, let’s
go.” Defendant then drove away in the vehicle. As a
result, Chief Jasinski filed third-degree felony Escape
and Flight charges against Defendant on that date.
1
18 Pa.C.S.A. § 3502(a), Criminal
Conspiracy to Commit Burglary, 18
Pa.C.S.A. §§ 903, 3502(a), 18 Pa.C.S.A.
§ 3921(a), 18 Pa.C.S.A. §§ 903, 3921(a)
respectively.
On August 30, 2012, Defendant stipulated to
the Affidavit of Probable Cause with respect to the
Escape and Flight charges and a preliminary hearing
was held on the Burglary charges. All charges in both
cases were bound over and held for Court. The
Escape and Flight charges were docketed in this
Court to No. 1298-2012; the Burglary, Theft and
related Conspiracy charges were docketed to No.
1282-2012.
Defendant subsequently filed a Petition for Writ
of Habeas Corpus regarding the Burglary charges.2
The Commonwealth ultimately agreed with the
averments of the Petition and stipulated to the
withdrawal of the Burglary and Conspiracy to
Commit Burglary counts in that action. Thus, only
charges of Theft and Conspiracy to Commit Theft,
both misdemeanors, remained at No. 1282-2012.
2
The petition averred that the
Commonwealth could not establish a
prima facie case on the two Burglary
charges due to the location from which
Defendant was alleged to have taken the
metal drums.
In Defendant’s Pretrial Motion, he argued that the
withdrawal of the felony Burglary and Conspiracy to Commit
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Burglary charges from No. 1282-2012 required the regrading of
his Escape and Flight charges to misdemeanors in No. 1298-
2012. The Commonwealth countered that the Escape and Flight
charges in No. 1298-2012 should remain felonies as Defendant
was charged with the felony Burglary offenses at the time he fled
from Chief Jasinski and that the subsequent withdrawal of those
charges did not affect the grading of the Escape and Flight
charges.
Trial Court Opinion, 10/1/13, at 1-4 (emphasis added). The trial court
denied Appellant’s post-sentence motion.
Following the entry of the judgment of sentence and the denial of his
post-sentence motion, Appellant filed this timely appeal. On appeal,
Appellant raises the following issue for this Court’s consideration:
Whether the Commonwealth’s withdrawal of the Burglary and
Conspiracy to commit Burglary charges should lower the grading
of [Appellant’s] Escape and Flight to avoid Apprehension
specifically since the facts and circumstances of the case never
supported the felony charges?
Appellant’s Brief at 4 (footnotes omitted).
The grading of a criminal offense is an issue of statutory
interpretation. Commonwealth v. Felder, 75 A.3d 513, 515 (Pa. Super.
2013). The interpretation of a statute is a pure question of law, and
therefore our standard of review is de novo and our scope of review is
plenary. Id.
As noted above, Appellant was charged and convicted of escape and
flight to avoid apprehension. Those crimes are defined, in relevant part, as
follows:
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Escape
(a) Escape.--A person commits an offense if 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.
* * *
(d) Grading.--
(1) An offense under this section is a felony of the
third degree where:
(i) the actor was under arrest for or
detained on a charge of felony or
following conviction of crime;
* * *
(2) Otherwise an offense under this section is a
misdemeanor of the second degree.
18 Pa.C.S. § 5121(a), (d)(1)(i) and (d)(2).
Flight to avoid apprehension, trial or punishment
(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).
Appellant argues that because the felony burglary charges were
withdrawn after he was arrested, his flight and escape was from the
misdemeanor charge of theft, not felony charges. Thus, he claims the
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escape and flight charges should only be graded as misdemeanors.
Appellant’s Brief at 10. We disagree based on the facts as they existed at
the time Appellant committed the crimes of escape and flight to avoid
apprehension.
In Commonwealth v. Janis, 583 A.2d 495, 497 (Pa. Super. 1990),
this Court explained the methodology in grading as follows:
“we conclude that, in grading the offense of escape, we must
look to the conduct of the accused at the time the escape is
attempted or realized together with only those facts
which are known to the parties at that time. We find it
significant that the statute speaks in the past tense: an offense
is a felony if, and only if, the actor was under arrest for, or was
detained on a charge of, felony. The past tense only makes
sense if it is understood to relate back to the time at which the
escape was attempted.”
Id. at 497 (emphasis added).1
As is evidenced in the plain language of 18 Pa.C.S. § 5121(d) and 18
Pa.C.S. § 5126(a), the grading of these crimes depends on the grading of
the underlying crimes. Here, at the time Appellant fled, the underlying
crimes with which he had been charged were burglary and conspiracy to
commit burglary. Therefore, because burglary is a crime that can only be
1
While Janis discusses only escape, we conclude that, based on the
similarity of purpose in the language of 18 Pa.C.S. § 5126(a), Janis’s
rationale applies equally to the crime of flight to avoid apprehension. See
also Commonwealth v. Steffy, 36 A.3d 1109 (Pa. Super. 2012) (holding
that flight to avoid apprehension was properly graded as a felony when the
defendant eluded police to avoid apprehension where the defendant had an
outstanding bench warrant for a felony offense).
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graded as a felony of the first or second degree pursuant to 18 Pa.C.S. §
3502, Appellant committed felony escape and felony flight to avoid
apprehension at the time he fled.2 Janis, 583 A.2d at 497.
For the reasons set forth above, we conclude there was no error in the
trial court’s refusal to alter the gradation of the charges of escape and flight
to avoid apprehension. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Panella joins the Opinion.
Justice Fitzgerald files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2014
2
We note that the conspiracy charge would also be a felony. See 18
Pa.C.S. § 905 (“Except as otherwise provided in this title, attempt,
solicitation and conspiracy are crimes of the same grade and degree as the
most serious offense which is attempted or solicited or is an object of the
conspiracy.”).
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