Com. v. McGahren, I. ( 2023 )

J-A24026-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
IAN B. MCGAHREN :
:
Appellant : No. 3074 EDA 2022
Appeal from the Judgment of Sentence Entered October 7, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008653-2021
BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 28, 2023
Appellant, Ian B. McGahren, appeals from the November 3, 2023
Judgment of Sentence entered in the Court of Common Pleas of Philadelphia
County following his conviction of, inter alia, Criminal Trespass.1 Appellant
challenges the sufficiency of the evidence underlying his Criminal Trespass
conviction. After careful review, we affirm.
A.
We glean the following facts and procedural history from the certified
record. Appellant and the complaining witness, Deanna Meckling-Peruto, had
known each other for 13 years and had been in a relationship for 7 years.
Although they had previously lived together, they stopped living together a
year prior to the incident underlying this appeal. Nonetheless, they visited
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1 18 Pa.C.S. § 3505(a)(1)(ii).
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each other’s homes most days, and Ms. Meckling-Peruto had, on at least one
occasion, given Appellant a key to her apartment.
On September 17, 2021, Appellant came to Ms. Meckling-Peruto’s
apartment. She told Appellant that her father was in hospice, so she would
ask him to leave if they fought. After having drinks at a nearby bar, they
returned to the apartment and began to argue, so Ms. Meckling-Peruto told
Appellant to leave “multiple times.” N.T. Trial, 5/13/22, at 34. Instead,
Appellant locked himself in the bathroom. When Ms. Meckling-Peruto began
to gather his backpack, clothes, and laptop, Appellant came out of the
bathroom, yelled, and lunged at her with a kitchen knife. Ms. Meckling-Peruto
began filming the encounter with her cell phone, and Appellant knocked the
phone out of her hand and choked her. She told her Amazon Alexa device to
call 911, but Appellant ripped it out of the wall.
Ms. Meckling-Peruto “realized there was no way for [her] to contact
help” so she suggested that they leave her apartment to get dinner at the bar.
Id. at 20. While at the bar, Appellant ordered 3 shots, grabbed Ms. Meckling-
Peruto’s face and arms, and spilled his drinks. When Appellant left the table
to use the restroom, Ms. Meckling-Peruto ran home and locked her doors.
Appellant arrived shortly thereafter and repeatedly called, banged on
the front door, and screamed. Ms. Meckling-Peruto hid in her bedroom but
when Appellant came to the patio door of the bedroom, Ms. Meckling-Peruto
grabbed her dog and locked herself in the bathroom. She heard Appellant
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hitting the patio door, yelling her name, and then running in the hallway
outside the apartment. Her neighbors, who were outside, called the police.
After this incident, Ms. Meckling-Peruto stayed with her parents for a
few days. When she returned, her front door was ajar, her belongings were
in disarray, and Appellant’s belongings were missing. Her patio door was also
damaged.
The doors to Ms. Meckling-Peruto’s building and its courtyard require a
fob for entry, while her apartment door had a key. A few weeks prior to the
above incident, Ms. Meckling-Peruto had left a key and fob for Appellant to
lock her door in the morning, but she believed that Appellant had returned it
that same day.
On September 22, 2021, the Commonwealth charged Appellant with
Burglary, Criminal Trespass, Possession of an Instrument of Crime, Terroristic
Threats, Simple Assault, Recklessly Endangering Another Person, Criminal
Mischief, and Harassment.2
Appellant proceeded to a bench trial on May 13, 2022. At trial, Ms.
Meckling-Peruto and Officer Wang testified in accordance with the above facts.
Appellant also testified. During his testimony, Appellant stated that both he
and Ms. Meckling-Peruto were intoxicated, and that she had had the knife
during the initial altercation. Appellant also testified that he still had the key
____________________________________________
218 Pa.C.S. §§ 3502(a)(1)(i), 3503(a)(1)(i), 907(a), 2706(a)(1), 2701(a),
2705, 3304(a)(4), and 2709(a)(1), respectively.
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from a few weeks prior and that, after remembering he had it, he used it to
let himself in after the second visit to the bar to obtain his belongings from
the main room of the apartment. While inside, he did not see Ms. Meckling-
Peruto, but he “didn’t [] look through the whole apartment.” Id. at 60.
The court convicted Appellant of Criminal Trespass, Possessing an
Instrument of Crime, Simple Assault, Recklessly Endangering Another Person,
Criminal Mischief, and Harassment, but acquitted him of Burglary. On October
7, 2022, the court sentenced Appellant to 6 -12 months’ incarceration, with
release to house arrest at 6 months, followed by 3 years’ probation. Appellant
filed a Motion for Reconsideration of Sentence, which the court granted in part.
On November 2, 2022, the court resentenced Appellant by paroling him to the
Caron Treatment Center on November 28, 2022, with the condition that he
would be released on house arrest after he completed treatment.
B.
Appellant timely filed a Notice of Appeal.3 Due to the trial judge’s
retirement, the trial court did not request a Rule 1925(b) statement or file a
Rule 1925(a) opinion.
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3 Appellant filed a Notice of Appeal on November 30, 2022. He then filed an
Amended Notice of Appeal on December 2, 2022, that referenced both the
October 7, 2022 Judgment of Sentence and the modified Judgment of
Sentence on November 2, 2022. Counsel did not seek permission to file an
Amended Notice of Appeal, nor was he directed to file one. However, this
appeal properly lies from the unmodified Judgment of Sentence because
Appellant challenges his underlying conviction, not the sentence itself.
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Appellant presents one issue for our review:
Did the Court err in finding Appellant [] guilty of [C]riminal
[T]respass, pursuant to 18 Pa.C.S. §3503(1)(ii), when he was
licensed or privileged to enter the premises he entered; he had
the key fob to enter the premises; he had been in a seven-year
relationship with the complainant; and she did not advise him that
he was no longer welcome in her apartment?
Appellant’s Br. at 2.
C.
Appellant challenges the sufficiency of the evidence supporting his
Criminal Trespass conviction. In addressing this challenge, our well-settled
standard of review is de novo, and our scope of review is limited to the
evidence admitted at trial viewed in the light most favorable to the
Commonwealth as verdict winner. Commonwealth v. Rushing, 99 A.3d
416, 420-21 (Pa. 2014).
We determine “whether the evidence at trial, and all reasonable
inferences derived therefrom, when viewed in the light most favorable to the
Commonwealth as verdict winner, are sufficient to establish all elements of
the offense beyond a reasonable doubt.” Commonwealth v. May, 887 A.2d
750, 753 (Pa. 2005) (citation omitted). The Commonwealth “can meet its
burden by wholly circumstantial evidence.” Commonwealth v. Benito, 133
A.3d 333, 335 (Pa. Super. 2016) (citation omitted). The factfinder, “while
passing on the credibility of the witnesses and the weight of the evidence—is
free to believe all, part, or none of the evidence.” Commonwealth v. Miller,
172 A.3d 632, 640 (Pa. Super. 2017). “In conducting this review, the
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appellate court may not weigh the evidence and substitute its judgment for
the fact[]finder.” Id.To sustain a conviction for Criminal Trespass, the Commonwealth must
prove that the defendant, “knowing that he is not licensed or privileged to do
so, . . .breaks into any building or occupied structure or separately secured or
occupied portion thereof.” 18 Pa.C.S. § 3503(a)(1)(ii). “Breaks into” is
defined as “[t]o gain entry by force, breaking, intimidation, [or] unauthorized
opening of locks[.]” Id. at (a)(3).
It is a defense to a charge of Criminal Trespass that a defendant
“reasonably believed that. . .[a] person empowered to license access. . .would
have licensed him to enter[.]” Id. at (c)(3); Commonwealth v.
Goldsborough, 426 A.2d 126, 127 (Pa. Super. 1981). However, the
surrounding circumstances may prove that the defendant knew that he did
not have license or privilege to enter. See, e.g., Benito, 133 A.3d at 336(“[The defendant’s] lack of privilege—and [his] knowledge thereof—is
evidenced by the fact that he resorted to kicking in the door to gain entry.”).
See also Commonwealth v. Baker, 201 A.3d 791, 798-99 (Pa. Super.
2018) (affirming a criminal trespass conviction where the evidence established
that, although the complainant had given the appellant a key to the property,
she had subsequently and unambiguously told the appellant that he was not
welcome on her property).
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D.
Appellant asserts that the Commonwealth’s evidence was insufficient to
establish that he knew he lacked license or privilege to enter Ms. Meckling-
Peruto’s apartment as required for Criminal Trespass. Appellant’s Br. at 11.
Specifically, he argues that he and Ms. Meckling-Peruto had been in a
relationship for 7 years, she failed to give him notice that he was not welcome
in her apartment, he had a key to the apartment, and that she had his wallet,
computer, and other items, thus “encouraging him to return.” Id. at 12, 15-
16. Furthermore, he maintains that “she did not change the locks nor tell him
not to return. Nor did she refuse to let him enter. She just did not answer
the door when he admittedly banged on it.” Id. at 15.
In his argument, Appellant asks us to consider the evidence in the light
most favorable to himself. However, viewing the record in the light most
favorable to the Commonwealth, as we must, establishes that Appellant knew
he was not privileged to enter Ms. Meckling-Peruto’s apartment. Ms. Meckling-
Peruto’s testimony, believed by the trial court, demonstrated that she told
Appellant multiple times to leave her apartment. N.T. Trial at 34. Contrary
to Appellant’s assertions, she did not simply “not answer the door” when
Appellant banged on it—rather, she hid, first in her bedroom then in the
bathroom, after fleeing from him at the bar. Furthermore, Appellant’s attempt
to use force to enter before realizing that he had a key is circumstantial
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evidence that Appellant knew he lacked privilege to enter. Benito, 133 A.3d
at 336.
Finally, although Appellant had a key, Ms. Meckling-Peruto had given it
to him for the limited purpose of locking her apartment one to two weeks
earlier, and she thought Appellant had given it back. However, on the day of
the incident, it was clear Appellant did not have permission to enter the
apartment. In fact, Ms. Meckling-Peruto told Appellant to leave multiple times
before she was able to get him to leave the apartment by suggesting they go
out to dinner. Once in the restaurant, she was able to run away from him
when he went to the bathroom to lock herself in the apartment and refused
to allow him back into her apartment. These events establish that, despite
having a key, Appellant was not privileged to enter Ms. Meckling-Peruto’s
apartment. Baker, 201 A.3d at 798-99.
Accordingly, we conclude that the Commonwealth’s evidence was
sufficient to establish that Appellant committed criminal trespass because he
knew he did not have license or privilege to enter Ms. Meckling-Peruto’s
apartment. Appellant’s argument that he believed he had permission to enter
is based on a self-serving recitation of the facts that is not supported by the
record, and it therefore lacks merit.
E.
In sum, we conclude that the evidence was sufficient to support
Appellant’s conviction of Criminal Trespass.
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Judgment of Sentence affirmed.
Date: 12/28/2023
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