Com. v. Boz, S. ( 2019 )

J-S52040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P.
65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN BOZ :
:
Appellant : No. 2806 EDA 2018
Appeal from the Judgment of Sentence Entered June 19, 2018
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003893-2017
BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: Filed: December 13, 2019
Shawn Boz appeals from the judgment of sentence entered after a jury
found him guilty of defiant trespass.1 He challenges the sufficiency and weight
of the evidence. We affirm.
At trial the parties stipulated to the following:
On or about October 9th of 2016, Shawn Boz, . . . attempted
to enter Ryan’s Pub [(“Ryan’s”)], located at 124 West Gay
Street in West Chester, Pennsylvania. Clifton Perko, a
bouncer at Ryan’s Pub denied entry due to [Boz’s] level of
intoxication. After being denied entry into the
establishment, [Boz] punched Mr. Perko in the nose,
causing Mr. Perko to suffer injury.
On February 27th of 2017, [Boz] pled guilty to that offense,
simple assault, . . . .
As a specific condition of his plea, [Boz] was prohibited from
having any contact with Ryan’s Pub or its employees, to
include Clifton Perko. [Boz] agreed to this condition and the
1
18 Pa.C.S.A. § 3503(b)(1)(i).
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condition was then imposed by Judge Mahon when His honor
announced that sentence.
At the time of the instant offense, November 5, 2017, [Boz]
was not licensed or privileged to enter Ryan’s Pub as the
prohibition imposed on February 27, 2017 still remained in
effect.
N.T., 5/29/18, at 31. The Commonwealth then presented the following
evidence. In November 2017, Boz went to Ryan’s and employees asked him
to leave. One of those employees was Timothy Prendergast, who was
bartending the night of the incident. Id. at 36-37. Prendergast approached
Boz and asked for his identification card. Id. at 40. After reading his name on
the card, Prendergast told Boz that he was not allowed in Ryan’s and asked
him to leave the premises. Id. at 40. Boz complied and began to walk out of
the pub. Id. at 42. Prior to leaving Ryan’s, Boz began yelling at employees.
Id. at 53-54. Boz continued to try to engage in a verbal altercation with the
employees until eventually Boz’s brother, Abel Osner, dragged Boz out of the
vestibule. Id. at 55-56.
Boz testified that because of prior unrelated injuries, he “forgets things.”
N.T., 5/30/18, at 166. He also testified that he did not remember that he was
prohibited from entering Ryan’s. Id. at 168.
The jury convicted Boz of defiant trespass and the trial court sentenced
him to three to 12 months’ incarceration. Boz filed a post-sentence motion
challenging the sufficiency and weight of the evidence, which the trial court
denied. See Motion for Judgment of Acquittal or a New Trial, filed 6/29/18.
This timely appeal followed.
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On appeal, Boz raises the following issues:
1. Was the evidence sufficient to support the jury’s guilty
verdict on the charge of Defiant Trespass pursuant to 18
Pa.C.S.A. §3503 (b)(1)(i)?
a. Specifically, was evidence sufficient to overcome
the defense of mistake pertaining to [Boz’s]
knowledge of whether he was licensed or privileged
to enter the premises?
b. Additionally, was the evidence sufficient to show
[Boz] defied an order to leave the premises
personally communicated by an authorized
person?
2. Was the jury’s guilty verdict on the charge of Defiant
Trespass, 18 Pa.C.S.A. §3503 (b)(1)(i), against the
weight of the evidence?
Boz’s Br. at 4.
When reviewing a challenge to the sufficiency of the evidence, we
determine “whether viewing all the evidence admitted at trial in the light most
favorable to the [Commonwealth], there is sufficient evidence to enable the
fact-finder to find every element of the crime beyond a reasonable doubt.”
Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa.Super. 2016) (citation
omitted). Additionally, “the [trier] 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.” Id. (alteration in original) (citation omitted).
To prove a defiant trespass, the Commonwealth must prove beyond a
reasonable doubt that the defendant: “1) entered or remained upon property
without a right to do so; 2) while knowing that he had no license or privilege
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to be on the property; and 3) after receiving direct or indirect notice against
trespass.” Commonwealth v. Wanner, 158 A.3d 714, 718 (Pa.Super. 2017)
(quoting Commonwealth v. Namack, 663 A.2d 191, 194 (Pa.Super. 1995)).
Boz maintains that “[t]he facts, taken in the light most favorable to the
verdict winner, would not have disproven the defense of mistake pertaining to
intent beyond a reasonable doubt.” Boz’s Br. at 18. He also claims that the
evidence was insufficient because “there was no evidence [Boz] defied
Prendergast’s order to leave once it was communicated to him” on the night
of the incident. Id. at 24.
The trial court concluded that the evidence was sufficient to sustain the
conviction. It explained that the jury rejected Boz’s testimony that he did not
remember that he was prohibited from entering Ryan’s. The court added that
the evidence that Boz refused to leave when asked, and only left when his
brother dragged him from the bar, further supported the conviction:
There is no dispute that [Boz] entered Ryan’s Pub on
November 5, 2017 at approximately 1:30 A.M. There is also
no dispute that [Boz] was asked by employees to leave and
he complied and walked out of the bar. [Boz’s] argument
that it was a mistake and forgot that he was not allowed to
be at Ryan’s Pub is not supported by the overwhelming
evidence. The jury clearly rejected this claim and it is
obvious that they found [Boz] to not be credible when he
testified that he did not know that he could not be in Ryan’s
Pub.
***
The jury’s rejection of [Boz’s] claim that he forgot that he
was not allowed at Ryan’s Pub is abundantly supported by
the evidence. [Boz] had a clear memory of the incident in
question, the prior assault, his prior convictions and his
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guilty plea in front of Judge Mahon. His claim, that the only
thing he did not remember was that he was banned from
Ryan’s Pub, is incredible. . . .
The evidence clearly established that the manager of Ryan’s
Pub, Mr. Braun, and the employees were authorized persons
in charge of the bar that night. . . . They approached [Boz]
and asked him to leave.
It first appeared that [Boz] would be compliant as he walked
towards the door. Then he turned around in the doorway
and was held by his brother so that he would not react. Mr.
Osner was guiding him to the doorway and pushing him out
as [Boz] yelled at the employees. There is no dispute that
[Boz] could have just walked away, but decided not to do
so. He stopped his progress to leave and was voicing his
disgruntlement . . . .
Trial Court Opinion (“TCO”), filed 4/2/19, at 42-44. We agree with the trial
court’s well-reasoned explanation regarding Boz’s sufficiency claim. Viewing
the evidence in the light most favorable to the Commonwealth, the evidence
is sufficient to prove that Boz entered Ryan’s when he knew he was not
privileged to do so, and thus sufficient to overcome Boz’s mistake defense.
Thus, even if the evidence did not support that Boz remained when he was
asked to leave Ryan’s, which it does, the evidence was still sufficient to sustain
the conviction because Boz entered the property when he was prohibited from
doing so. See Wanner, 158 A.3d at 718.
Next, Boz challenges the weight of the evidence. Our review of a
challenge to the weight of the evidence “is limited to determining whether the
trial court abused its discretion in denying the motion for a new trial on this
ground.” Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011). An
abuse of discretion exists where there is an “overriding or misapplication of
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the law, or the exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as shown by the evidence of
record.” Commonwealth v. Santos, 176 A.3d 877, 882 (Pa.Super. 2017)
(quoting Commonwealth v. Antidormi, 84 A.3d 736, 749-50 (Pa.Super.
2014)). “Because the trial judge has had the opportunity to hear and see the
evidence presented,” we give great deference to the “findings and reasons
advanced by the trial judge” when reviewing the court’s determination of
whether the verdict is against the weight of the evidence. Commonwealth
v. Widmer, 744 A.2d 745, 753 (Pa. 2000).
Boz maintains “[a]s clearly indicated . . . through the surveillance video
admitted as Commonwealth Exhibit #2 which is the best evidence, clearly
does not support that [Boz] defied Mr. Prendergast’s order to leave Ryan’s
Pub.” Boz’s Br. at 27. However, the surveillance video is not a part of the
certified record, and it was Boz’s duty, as appellant, to ensure that the record
contained it. See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super.
2006) (en banc). He has thus waived his argument on appeal. Id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2019
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