Commonwealth v. Furness , 2016 Pa. Super. 298 ( 2016 )

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2016 PA Super 298COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
PAUL FURNESS, :
:
Appellant : No. 2778 EDA 2015
Appeal from the Judgment of Sentence August 5, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0009880-2012
BEFORE: BOWES, MOULTON and MUSMANNO, JJ.
OPINION BY MUSMANNO, J.: FILED DECEMBER 22, 2016
Paul Furness (“Furness”) appeals from the judgment of sentence
imposed following his convictions for criminal trespass, attempted burglary,
and possessing instruments of crime.1 We affirm in part, reverse in part,
and remand for resentencing.
The trial court set forth the relevant facts as follows:
On July 20, 2012, at approximately 10:00 a.m., Christopher
Babiarz [(“Babiarz”)] saw [Furness] attempt to enter his home,
located at 3170 Richmond Street, [Philadelphia,] through the
window. On that morning, [Babiarz] heard “some rustling and
banging at the back door” and observed a silhouette walk past
the window with “something like a screwdriver in his hands,”
attempting to pry open the windows. [Babiarz] opened up the
blinds and positively saw [Furness]. [Furness] looked at
[Babiarz] and proceeded to run away. [Babiarz] opened the
door[] and saw a second person, whom he could not identify,
run through the back gate of his yard. He described the second
person as “about his height … with dirty blond or brown hair,
wearing a green shirt,” as “5’10[”], 150 pounds, approximately
[age] 25 to 30 … wearing jeans.” Babiarz testified that he knew
[Furness] from the neighborhood, even though they were not
part of the same circle due to age differences.
1
18 Pa.C.S.A. §§ 3503(a)(1)(ii), 901, 907(a).
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[Babiarz] called the police and Officer [Edward] Berrthcsi
[(“Officer Berrthcsi”)] arrived. They observed tool marks on the
window, with the bottom pane indented and the capping bent.
[Babiarz] testified that there were no damages prior to this
incident. In addition, [Babiarz] recovered a bag of tools outside
of the back door that did not belong to him, which included a
screwdriver, multi-tool, paint chisel, and a vise-grip. Officer
Berrthcsi testified that on that day, he received a radio call for a
burglary at 3170 Richmond Street. [Babiarz] gave him a
description of both males and positively recognized one of the
males as [Furness]. Officer Berrthcsi observed pry marks on
[Babiarz’s] rear door and on the side window at the rear
property. He also saw tools on the porch that included a
screwdriver, vise-grip, and other tools.
The Commonwealth next called Detective [John] Ellis
[(“Detective Ellis”)], Detective [James] McCullough [(“Detective
McCullough”)], and Detective Randall Farward [(“Detective
Farward”)] to testify. Detective Ellis testified that he and
Detective McCullough went out to 3170 Richmond Street on that
day and met with [Babiarz]. He recovered one green nylon bag
containing silver colored vise-grips, a Stanley screwdriver with
[a] red and yellow plastic grip, a Hyde scraper with a black
handle, and a Great Neck ratchet driver with [a] red and black
handle, which were all placed on property receipts. Detective
McCullough testified that he arrived with Detective Ellis on that
day, took photos of the scene, and recovered tools that [Babiarz]
turned over. Detective Farward testified that [Babiarz] told him
he knew who attempted to burglarize his home and positively
identified [Furness] by photo.
The defense [] called Carolyn Furness [(“Carolyn”)], Cheryl
Neumann [(“Cheryl”)], and Carol Furness [(“Carol”)] as their
alibi witnesses. [Carolyn, Furness’s] sister, testified that on that
day, [Furness], her friend Cheryl, and herself began setting up
for their mother’s retirement party at approximately 8:30 a.m.
[Cheryl] testified that she went over to [Furness’s] house at
approximately 9:00 a.m. to help [Furness] and [Carolyn]
prepare for the retirement party. [Cheryl] also testified that
[Furness] was there the entire time. Lastly, [Carol, Furness’s]
mother, testified that she retired on that day, as a court order
process clerk for the City of Philadelphia[,] after 26 years of
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employment. She came home around 11:00 a.m. and saw
[Furness] present at the party.
Trial Court Opinion, 1/11/16, at 2-4 (citations and brackets omitted).
Following a jury trial, Furness was convicted of the above-mentioned
crimes. The trial court deferred sentencing and ordered a pre-sentence
investigation report (“PSI”). On July 6, 2015, after reviewing the PSI, the
trial court sentenced Furness to a prison term of 12½ to 25 years for
attempted burglary and a concurrent term of 5 to 10 years for criminal
trespass, followed by 5 years of probation for possessing instruments of
crime.
Furness filed a post-sentence Motion, which the trial court granted in
part and denied in part. The trial court re-sentenced Furness to 10 to 20
years in prison for his attempted burglary conviction, a consecutive 2½ to 5
years in prison for his criminal trespass conviction, and a consecutive 5
years of probation for his possessing instruments of crime conviction.
Furness subsequently filed a timely Notice of Appeal and a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal.
On appeal, Furness raises the following questions for our review:
I. Was the evidence presented at trial sufficient as a matter of
law to support the conviction for criminal trespass as set forth in
18 Pa.C.S.A. § 3503(a)(1), where the evidence of record did not
establish beyond a reasonable doubt that [Furness] broke into
any building or structure[,] as the only evidence at trial indicated
that the gate to the yard [Furness] was alleged to have entered
was possibly left unlocked by a tenant at the property, and the
only evidence at trial indicated that [Furness] fled before
entering any building or structure, and the yard [Furness] was
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alleged to have entered is not a building or structure or
separately secured or occupied portion thereof as set forth in
[Section] 3503?
II. Is the sentence imposed in this matter illegal due to the fact
that the sentences for burglary and criminal trespass are
required to merge for sentencing purposes?
III. With respect to the charges of attempted burglary, criminal
trespass, and possessing an instrument of crime, was the verdict
[] against the weight of the evidence and so contrary to the
evidence that it shocks one’s sense of justice in light of the
circumstances as set forth in the evidence presented at trial?
IV. Should the mandatory minimum sentence imposed by the
trial court under 42 Pa.C.S.A. § 9714 be vacated, and this
matter remanded for a new sentencing hearing, due to the fact
that the jury did not expressly find beyond a reasonable doubt
all facts necessary to require imposition of a mandatory
minimum sentence under that statute?
V. Should the mandatory minimum sentence imposed by the trial
court under 42 Pa.C.S.A. § 9714 be vacated, and this matter
remanded for a new sentencing hearing, due to the fact that
[Section] 9714 is unconstitutional as currently drafted?
Brief for Appellant at 7-8.
In his first claim, Furness argues that there is insufficient evidence to
support his conviction for criminal trespass because the Commonwealth
failed to prove that Furness had entered a building or occupied structure.
Id. at 20-21. Instead, Furness points to case law holding that a fenced-in
backyard of a residential home is not a “building or occupied structure” for
the purpose of Section 3503(a)(1)(ii), and argues that such case law applies
to this case because Babiarz saw Furness in the backyard, which he shares
as a common area with an adjacent apartment building. Id. at 21-23.
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Additionally, Furness asserts that the attempt to pry open Babiarz’s window
left damage only to the exterior of the residence, and therefore, neither
Furness nor his tools had entered the residence. Id. at 24.
The Commonwealth argues, to the contrary, that the entry
requirement had been satisfied because Furness “stuck a screwdriver into a
gap between the windowpanes” in an attempt to pry open the lock, and that
it is therefore “reasonable to infer that some part of the screwdriver came
into the house when he did so.” Commonwealth’s Brief at 7.
The standard we apply in reviewing the sufficiency of the
evidence is whether[,] viewing all the evidence admitted at trial
in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
the above test, we may not weigh the evidence and substitute
our prior judgment for the fact-finder. In addition, we note that
the facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. Any doubts
regarding a defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact, while passing upon the credibility of witnesses and
the weight of the evidence produced[,] is free to believe all, part
or none of the evidence.
Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)
(citation omitted).
A person commits the offense of criminal trespass “if, knowing that he
is not licensed or privileged to do so, he breaks into any building or occupied
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structure or separately secured or occupied portion thereof.” 18 Pa.C.S.A.
§ 3503(a)(1)(ii). A person “break[s] into” a building or occupied structure if
he “gain[s] entry by force, breaking, intimidation, unauthorized opening of
locks, or through an opening not designed for human access.” Id.
§ 3503(a)(3). Additionally, “the entry requirement of our criminal trespass
statute is satisfied by insertion of an instrument which is held or
manipulated by the defendant, or so closely associated with his body that it
essentially becomes an extension thereof.” Commonwealth v. Giddings,
686 A.2d 6, 12 (Pa. Super. 1996) (overruled on other grounds by
Commonwealth v. Clark, 756 A.2d 1128, 1131 (Pa. Super. 2000), appeal
denied, 764 A.2d 1064 (Pa. 2000)).
In Giddings, this Court concluded that the entry requirement of the
criminal trespass statute was satisfied where the defendant used a
screwdriver to chop a small hole through a door, even though the defendant
himself never entered the premises. Giddings, 686 A.2d at 12. This Court,
guided by several cases from other jurisdictions, held that the entry
requirement can be satisfied by the use of an instrument or tool. Id. at 12.
Although the Giddings decision instructs that the entry requirement
may be satisfied where an instrument “breaches” the exterior of a building,
this Court was not directly faced with the issue of whether an instrument or
tool must protrude entirely through the outer boundary of a building or
occupied structure in order to constitute an entry for the purpose of Section
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3503(a). See id. at 11. However, in each of the cases cited in Giddings,
there was evidence that the instrument or tool used by the defendant had
crossed into the interior of the premises. See id. at 9-11 (wherein this
Court reviewed, and cited with approval, several cases from other
jurisdictions in which the entry requirement had been satisfied by the use of
an instrument or tool).
Based upon our review of Giddings and the cases cited therein, we
conclude that, in order to satisfy the entry requirement of Section 3503(a),
the evidence must demonstrate that an instrument or tool used by a
defendant, or any portion thereof, protruded entirely through the outer
boundary of the building or occupied structure and into the interior of the
premises.
Here, Babiarz testified that he saw Furness walk by the window with a
screwdriver or similar tool in his hand, and that Furness “stuck [the tool]
wherever the top and the bottom window actually meet.” N.T., 4/1/15, at
39. Babiarz also testified that the window lock is between the top and
bottom panes, and that Furness attempted to pry open the lock using the
tool. See id. at 39-40.
Additionally, the Commonwealth admitted into evidence a picture of
the window, which showed damage where the top and bottom panes meet.
Exhibit C-12E; see also N.T., 4/1/15, at 47 (wherein Exhibit C-12E was
marked for identification and admitted into evidence). The picture shows
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some damage and scratching on the outside of the wooden window pane;
however, it appears clear that the damage was limited only to the surface of
the outside of the pane. See Exhibit C-12E. At trial, Babiarz was shown
Exhibit C-12E, and he agreed with the characterization that the bottom pane
was “indented.” See N.T., 4/1/15, at 47.
Officer Berrthsci also testified that he observed “pry marks” on
Babiarz’s window. See N.T., 4/1/15, at 97, 107.
Upon review, we conclude that the evidence of record, viewed in the
light most favorable to the Commonwealth as the verdict winner, was
insufficient to sustain Furness’s conviction for criminal trespass. The
evidence presented at trial demonstrated only that the outer portion of the
window pane was “indented,” and that there was no hole in the pane such
that a tool could protrude through the outer boundary. Absent evidence to
suggest that Furness, or any portion of a tool used to pry open the lock,
protruded through the window pane and entered into the interior of the
premises, the jury could not reasonably infer that Furness had gained entry
into Babiarz’s home. Cf. Giddings, 686 A.2d at 8 (stating that “since the
hole went all the way through [the] door, it is clear that, at the very least,
the screwdriver … entered the residence.”). Therefore, finding insufficient
evidence to establish the entry requirement, we reverse Furness’s conviction
for criminal trespass. Because our disposition may affect the trial court’s
overall sentencing scheme, we vacate Furness’s remaining sentences and
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remand for resentencing. See Commonwealth v. Goldhammer, 517 A.2d
1280, 1283 (Pa. 1986) (discussing the propriety of remanding for
resentencing where an appellant successfully challenges one of several
convictions on appeal); see also Commonwealth v. Rivera, 95 A.3d 913,
917-18 (Pa. Super. 2014) (remanding for resentencing where “[this Court’s]
decision might affect the trial court’s sentencing scheme.”).
In his second claim, Furness asserts that the trial court imposed an
illegal sentence because the crimes of burglary and criminal trespass must
merge for sentencing purposes, in accordance with the Pennsylvania
Supreme Court’s decision in Commonwealth v. Jones, 912 A.2d 815 (Pa.
2006) (plurality).2 Brief for Appellant at 24-26. Furness requests that we
vacate his sentence for criminal trespass. Id. at 26. However, because we
have reversed Furness’s conviction for criminal trespass, we need not
address this claim.
In his third claim, Furness argues that his convictions for attempted
burglary, criminal trespass and possessing an instrument of crime are
against the weight of the evidence. Brief for Appellant at 26. Regarding the
criminal trespass conviction, Furness incorporates the argument set forth in
2
In Jones, a plurality of the Pennsylvania Supreme Court held that the
crimes of burglary and criminal trespass merge for sentencing purposes,
where the same set of facts was sufficient to convict the appellant of both
crimes. Jones, 912 A.2d at 824.
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his first claim. Id. at 27.3 As to the attempted burglary and possessing an
instrument of crime convictions, Furness claims that “there is no forensic
evidence whatsoever linking Furness to Babiarz’s home, yard, or the tools
recovered there.” Id. Furness argues that without forensic evidence, the
jury was only able to consider the testimony of the witnesses, only one of
whom provided a link between Furness and the crimes. Id. Furness
challenges the accuracy of Babiarz’s identification of Furness, asserting that
Babiarz was “emotional” on the day of the incident, and he had not seen
Furness for 20 years prior to the incident. Id. at 28. Additionally, Furness
asserts that Babiarz’s testimony contradicts the testimony of three other
witnesses who testified that they were with Furness at 11:00 a.m. that day.
Id. at 29-30. Furness also cites to Carolyn’s testimony that, prior to this
incident, Babiarz came to Carol’s home, asked for Furness, and referenced a
debt that Furness owed to him. Id. at 30-31. At trial, Babiarz denied this
interaction with Carolyn. Id. at 31.
As this Court has recognized,
[a]ppellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge
has had the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when reviewing
a trial court’s determination that the verdict is against the weight
of the evidence. One of the least assailable reasons for granting
3
We note that we need not address the weight of the evidence in regard to
Furness’s criminal trespass conviction, as we have reversed this conviction.
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or denying a new trial is the lower court’s conviction that the
verdict was or was not against the weight of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014)
(citations omitted). “On appeal, this Court cannot substitute its judgment
for that of the jury on issues of credibility, or that of the trial judge
respecting weight.” Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa.
2011); see also Commonwealth v. Hall, 830 A.2d 537, 542 (Pa. 2003)
(stating that “in instances where there is conflicting testimony, it is for the
jury to determine the weight to be given the testimony. The credibility of a
witness is a question for the fact-finder.” (citation omitted)).
Here, Furness asks us to substitute our judgment for that of the jury,
and to reassess the credibility of several witnesses, as well as Babiarz’s
identification of Furness. The trial court determined that the jury found
Babiarz’s testimony credible, despite conflicting evidence; the officers’ and
detectives’ testimony corroborated Babiarz’s story; and the alibi presented
at trial was less credible than Babiarz’s identification. See Trial Court
Opinion, 1/11/16, at 12. We discern no abuse of discretion by the trial court
in denying Furness’s weight claim. From the verdict, it is apparent that the
jury found the testimony of Babiarz to be more credible than the testimony
of the alibi witnesses, and we may not reconsider the credibility of conflicting
testimony on appeal. See Sanchez, supra; see also Hall, supra.
Because the evidence supports the jury’s verdict, and we discern no abuse
of discretion by the trial court, this claim is without merit.
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In his final claim, Furness argues that the mandatory minimum
sentence imposed for his attempted burglary conviction, pursuant to 42
Pa.C.S.A. § 9714, is illegal, and he raises two sub-issues in support of his
argument.4 Brief for Appellant at 31. First, citing the United States
Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151(2013),5 Furness claims that his sentence is illegal because the jury did not
find beyond a reasonable doubt all facts necessary to require imposition of a
mandatory minimum sentence. Id. at 32-34. Furness argues that the fact
triggering the imposition of a mandatory minimum sentence, i.e., a prior
conviction for a crime of violence, had not been found by the jury beyond a
reasonable doubt. Id. at 35. Additionally, Furness noted that in the
Alleyne decision, United States Supreme Court “declined to address
whether the fact triggering a mandatory minimum sentence is to be
considered an element of the crime (and thus submitted to the jury and
proven beyond a reasonable doubt with prior notice to a defendant) if that
fact is a prior conviction.” Id.; see also Alleyne, 133 S. Ct. at 2151 n.1.
Second, Furness argues that even if Section 9714 is constitutional under the
4
In the argument section of his brief, Furness’s fourth and fifth claims are
raised as sub-issues to a general claim that the mandatory minimum
sentence imposed for his attempted burglary conviction. Therefore, we will
consider these claims together.
5
In Alleyne, the United States Supreme Court held that “any fact that
increases the mandatory minimum is an ‘element’ that must be submitted to
the jury” and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at
2155.
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Alleyne holding, there is a “good faith argument for change in existing law
based upon the reasoning and rule set forth in Alleyne and the shaky
underpinnings of Almendarez-Torres v. United States[, 523 U.S. 224(1998)6].” Brief for Appellant at 36-37. Furness contends that
Almendarez-Torres cannot alone support the constitutionality of Section
9714 because the Almendarez-Torres decision relied on prior decisions
that either do not support the holding, or have subsequently been overruled.
Id. at 38-39.
Section 9714 of the Sentencing Code provides, in relevant part, as
follows:
§ 9714. Sentences for second and subsequent offenses
(a) Mandatory sentence.—
(1) Any person who is convicted in any court of this
Commonwealth of a crime of violence[7] shall, if at
the time of the commission of the current offense the
person had previously been convicted of a crime of
violence, be sentenced to a minimum sentence of at
least ten years of total confinement, notwithstanding
any other provision of this title or other statute to
the contrary. Upon a second conviction for a crime
of violence, the court shall give the person oral and
written notice of the penalties under this section for
a third conviction for a crime of violence. …
6
In considering maximum permissive sentences, the United States Supreme
Court in Almendarez-Torres held that prior convictions are sentencing
factors rather than elements of an offense. Almendarez-Torres, 523 U.S.
at 243-44.
7
For the purposes of this section, “crime of violence” includes “burglary as
defined in 18 Pa.C.S.[A.] § 3502(a)(1),” as well as criminal attempt to
commit any of the named offenses. 42 Pa.C.S.A. § 9714(g).
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***
(d) Proof at sentencing.—Provisions of this section shall not
be an element of the crime and notice thereof to the defendant
shall not be required prior to conviction, but reasonable notice of
the Commonwealth’s intention to proceed under this section
shall be provided after conviction and before sentencing. The
applicability of this section shall be determined at sentencing.
The sentencing court, prior to imposing sentence on an offender
under subsection (a), shall have a complete record of the
previous convictions of the offender, copies of which shall be
furnished to the offender. If the offender or the attorney for the
Commonwealth contests the accuracy of the record, the court
shall schedule a hearing and direct the offender and the attorney
for the Commonwealth to submit evidence regarding the
previous convictions of the offender. The court shall then
determine, by a preponderance of the evidence, the previous
convictions of the offender and, if this section is applicable, shall
impose sentence in accordance with this section. …
42 Pa.C.S.A. § 9714(a), (d) (footnote and emphasis added).
Furness’s claim challenges the legality of his sentence.
Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014).
“Issues relating to the legality of a sentence are questions of law. Our
standard of review over such questions is de novo and our scope of review is
plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014)
(citations, brackets and ellipses omitted).
Initially, in Alleyne, the United States Supreme Court recognized the
narrow exception set forth in Almendarez-Torres, regarding the fact of a
prior conviction. Alleyne, 133 S. Ct. at 2151 n.1 (declining to revisit the
issue, as it had not been raised by the parties). Because the United States
Supreme Court did not overturn the Almendarez-Torres exception, the
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Alleyne rule includes the prior conviction exception. See id.; see also
Almendarez-Torres, 523 U.S. at 243-44.
This Court specifically considered the constitutionality of Section 9714
in Commonwealth v. Reid, 117 A.3d 777 (Pa. Super. 2015). In Reid, this
Court acknowledged that the Alleyne decision retained the exception for
prior convictions. Reid, 117 A.3d at 784. The Reid Court held that Section
9714 is not unconstitutional because it increases mandatory minimum
sentences based on prior convictions. Reid, 117 A.3d at 785.8
Here, Furness was given the required notice of the Commonwealth’s
intent to seek the mandatory minimum sentence pursuant to Section 9714.
See 42 Pa.C.S.A. § 9714(d). The trial court, with the benefit of a PSI,
determined that Furness had a prior conviction for burglary. See Trial Court
Opinion, 1/11/16, at 10 n.1. Additionally, Furness does not dispute his prior
conviction for burglary. See 42 Pa.C.S.A. § 9714(d) (explaining that the
accuracy of the prior record, if contested, is subject to a preponderance of
the evidence standard). Based upon the foregoing, we conclude that the
trial court did not impose an illegal sentence, and Furness is not entitled to
relief on this claim. See Bragg, 133 A.3d at 332-33 (upholding Reid’s
8
We note that the Pennsylvania Supreme Court has granted allowance of
appeal to consider the constitutionality of mandatory minimum sentences
imposed pursuant to Section 9714. See Commonwealth v. Bragg, 133
A.3d 328 (Pa. Super. 2016), appeal granted, 143 A.3d 890 (Pa. 2016).
However, as our Supreme Court has not yet issued a decision on this issue,
Reid remains controlling.
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determination that a mandatory minimum sentence imposed pursuant to
Section 9714 is not unconstitutional under Alleyne).
Judgment of sentence affirmed in part and reversed in part. Case
remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2016
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