Com. v. Cannavo, J. ( 2018 )

J-A22034-18
2018 PA Super 327COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JAMES MAURICE CANNAVO, JR.,
Appellant No. 3729 EDA 2017
Appeal from the Judgment of Sentence Entered June 22, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-51-CR-0004483-2015
BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS, P.J.E.*
CONCURRING OPINION BY BENDER, P.J.E.: FILED DECEMBER 3, 2018
I agree with the Majority that Appellant was not entitled to a castle-
doctrine jury instruction because he was engaged in criminal activity when he
shot the victim. See 18 Pa.C.S. § 505(b)(2.2)(iii). I write separately to
express my disagreement with the Majority’s primary conclusion that
Appellant was not entitled to the castle-doctrine jury instruction as a matter
of law due to lack of evidence establishing the condition set forth in Subsection
2.1(i). To the contrary, I believe Appellant’s own testimony provided a
sufficient factual basis to issue the instruction pursuant to that provision.
It is undisputed that Appellant possessed a subjective belief that an
unlawful and forceful entry was occurring. See Majority Opinion at 8. Thus,
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* Former Justice specially assigned to the Superior Court.
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the only remaining issue with regard to Subsection 2.1 was whether there was
evidence that the “person against whom the force is used is in the process of
unlawfully and forcefully entering … a dwelling, residence or occupied
vehicle[.]” 18 Pa.C.S. § 505(2.1)(i). The Majority agrees with the trial court
that “there was no evidence presented indicating … the victim was in the
process of unlawfully and forcefully entering the carriage house.” Majority
Opinion at 8-9. The record belies this conclusion.
As the Majority concedes, there need only be “some evidence, from
whatever source,” to justify the castle-doctrine instruction. Id. at 8 (quoting
Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001)). However, in
rejecting the instruction, the trial court simply disregarded Appellant’s
testimony when it stated that the “only ‘evidence’ that the victim was
attempting to break into the carriage house is [Appellant]’s uncorroborated
testimony of his subjective belief that the victim was attempting to break in,
which is contradicted by the physical evidence at the scene.” Trial Court
Opinion, 12/19/17, at 6. There is much to unpack from this statement.
First, there is no requirement set forth in the text of the statute that
evidence offered to satisfy Subsection 2.1(i) must be ‘corroborated.’ Any such
rule would appear absurd in light of the fact that the uncorroborated testimony
of a solitary witness is sufficient to secure a conviction under the beyond-a-
reasonable-doubt standard. See Commonwealth. v. Johnson, 180 A.3d
474, 481 (Pa. Super. 2018) (holding that “the uncorroborated testimony of a
single witness is sufficient to sustain a conviction for a criminal offense, so
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long as that testimony can address and, in fact, addresses, every element of
the charged crime.”). Under the some-evidence-from-whatever-source
standard, applicable here, Appellant’s own testimony must be sufficient to
invoke the castle-doctrine instruction, so long as that testimony satisfies, or
potentially satisfies, the statutory elements set forth in Subsections 2.1(i) and
2.1(ii). Nevertheless, other evidence in this case corroborated Appellant’s
testimony as to relevant facts pertinent to Subsection 2.1(i), at least in part,
as discussed below.
Second, Appellant did not merely testify as to his subjective belief.
Although Appellant testified that he thought the victim and his cohorts were
breaking into the carriage house, he also offered several factual observations
that promoted that belief. The pertinent portion of Appellant’s testimony is as
follows:
When I was awoken, I saw a group of people pounding on my
door. I yelled who is it? Who is it? They kept pounding. And
then I actually saw one of them shoulder my door with their
shoulder and then one of them ran into my door and dropped
kicked it. At that point, I realized people were breaking in.
N.T. Trial, 3/24/17, at 149-50.
Only the final sentence of the above testimony constitutes Appellant’s
subjective belief. Otherwise, the preceding sentences detail Appellant’s direct
observations, not his subjective conclusions about those observations. The
jury was free to reject his version of events, but the trial court was not.
Testimony that people escalated from pounding on a door, to shouldering and
kicking that door, while refusing to answer the pleas from the occupant,
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certainly constitutes at least “some evidence, from whatever source,” Torres,
supra, that those people were “in the process of unlawfully and forcefully
entering” Appellant’s home, 18 Pa.C.S. § 505(2.1)(i). Shockingly, neither the
Majority nor the trial court mention this testimony in their respective opinions.
The trial court spends much of its opinion explaining how this gang of
8-10 inebriated persons failed to corroborate Appellant’s version of events,
which, as noted above, is irrelevant to the applicable standard here, as
Appellant’s testimony needed no corroboration to invoke the castle-doctrine
instruction. Nevertheless, their testimony did corroborate Appellant’s version
but for two critical facts: the shouldering and kicking of the door. While these
facts are essential to establishing that the drunken gang outside of Appellant’s
door was attempting to unlawfully gain entry therein (whereas that element
is not met if they had only knocked loudly), those facts require no
corroboration under the applicable standard. Appellant’s testimony was
enough.
Third, contrary to the court’s conclusion that the physical evidence
contradicted Appellant’s version of events, the trial court simply disregarded
corroborative physical evidence. The court indicates that a boot print was
found on the door at issue. TCO at 6. Inexplicably, the trial court then
dismisses this evidence, which corroborates Appellant’s claim that the door
was kicked, because a locksmith testified that he “was unable to definitively
link any damage to the door, including what appears to be a boot print, to the
incident that caused the shooting.” Id. (emphasis added). Whether the boot
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print was “definitively” linked to the incident is irrelevant unless the trial court
was assessing the weight or credibility of that evidence, which it could not do
under the some-evidence-from-whatever-source standard.
In sum, I believe the trial court’s refusal to issue a castle-doctrine
instruction on the specific basis that Appellant had failed to offer evidence of
the condition set forth in Subsection 2.1(i) was clearly erroneous.
Nevertheless, because I agree with the Majority that Appellant’s illegal
possession of a firearm at the time of the shooting precluded him from
invoking the castle-doctrine instruction under Subsection 2.2(iii), I concur in
the result reached by the Majority’s opinion.
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