¶1DISSENTING OPINION BY
¶2I 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.
¶3Accordingly, 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 I emphasize that the burglary charge — the sole basis for the felony-three ' grading of the escape charge — was not withdrawn as a part of plea negotiations or because a necessary witness did not appear, nor dismissed because the trial court found insufficient facts to establish a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. In-, stead, the Commonwealth itself agreed there was no legally sustainable charge for burglary under the law.