Com. v. Jones, A. ( 2023 )

J-S35008-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRES O. JONES :
:
Appellant : No. 1430 MDA 2022
Appeal from the Judgment of Sentence Entered July 18, 2022
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000327-2021
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: OCTOBER 30, 2023
Andres Jones appeals his judgment of sentence for criminal trespass,
resisting arrest and public drunkenness. He claims the evidence was
insufficient to support each of his three convictions and that the verdict was
against the weight of the evidence. Based largely on the well-reasoned trial
court opinion, we affirm.
We borrow liberally from the trial court’s recitation of the facts, which is
supported by the record. Jones and his fiancé at the time, Kelsey Hoxsie, lived
together with their son and Jones’s daughter from a previous relationship. On
November 22, 202, Jones and Hoxsie went to a party at the apartment of their
neighbor, Jamie Stare. Stare’s brother, Jay Deininger, and Jacob Crablo also
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S35008-23
attended the party, where alcohol was being served. Jones and Hoxsie left the
party late in the evening and went to their apartment next door. At
approximately 3:30 a.m., Jones and Hoxsie got into an argument. Hoxsie
grabbed her son, and the two went to Stare’s apartment and hid in the
bathroom.
Jones followed Hoxsie next door. He knocked loudly on the door.
Deininger answered the door, and while there is some dispute as to how Jones
gained entry, it is undisputed that he entered the apartment. Deininger and
Crablo subsequently scuffled with Jones, but they were eventually able to
force Jones from the apartment and onto the front porch shared by the two
apartments.
Shortly thereafter, Officer Michael McGrath of the Wilkes-Barre City
Police Department arrived at the scene and found Jones’s body halfway
through the front porch window to Stare’s residence. Officer James Fisher also
responded to the scene.
While Jones disputes what happened next, we note that Officer McGrath
testified that he climbed the front porch stairs, at which point Jones assumed
a fighting stance and said “Let’s go bro.” N.T., 4/29/2022, at 66. According to
Officer McGrath, Jones smelled of alcohol and showed signs of intoxication.
Officer McGrath spoke to the people inside Stare’s apartment and then
informed Jones he was under arrest. When Officer McGrath attempted to
handcuff Jones, Jones pulled away and refused to put his hands behind his
-2-
J-S35008-23
back. Officer Fisher then pulled out his taser device and told Jones to comply.
Jones responded that he wasn’t scared as he had “been tased before.” Id. at
45.
Officer Fisher called for additional officers, and two other officers arrived
on the scene. The officers were able to take Jones to the ground, and although
Jones continued to resist, the officers were ultimately able to place him into
custody. Officer McGrath noted that the incident created substantial noise in
an otherwise quiet residential neighborhood, and neighbors turned on their
lights in response to the disturbance.
Jones was charged with criminal trespass, simple assault, disorderly
conduct, resisting arrest and public drunkenness. The matter proceeded to a
jury trial, at which Hoxsie, Officer McGrath, Officer Fisher, Deininger and
Crablo all testified for the Commonwealth. Jones testified in his own defense.
Nonetheless, the jury convicted Jones of criminal trespass and resisting arrest.
The trial court, meanwhile, found Jones guilty of the summary offense of public
drunkenness. The court sentenced Jones to an aggregate probationary term
of 15 months in the county intermediate punishment program, with the first
30 days to be served in prison followed by three months under house arrest.
Jones filed post-sentence motions, which the court denied. He then filed
a timely notice of appeal and complied with the court’s directive to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. In the
statement, Jones complained there was insufficient evidence to support any
-3-
J-S35008-23
of the three convictions and that the convictions were against the weight of
the evidence.
The trial court issued a responsive Rule 1925(a) opinion, in which it
thoroughly addressed each of Jones’s claims. The court initially recounted the
standard of review applicable to sufficiency claims, see Trial Court Opinion,
1/5/2023, at 5, and then individually reviewed the evidence supporting each
of Jones’s three convictions.
First, the court outlined what the Commonwealth was required to prove
in order to sustain a criminal trespass conviction, which a person is guilty of
“if, knowing that he is not licensed or privileged to do so, he … breaks into
any building or occupied structure or separately secured or occupied portion
thereof.” Id. at 6 (quoting 18 Pa. C.S.A. § 3503(a)(1)(ii)). The court then
explained how the evidence that Jones forced himself into the residence and
then began climbing through the front porch’s window was sufficient to sustain
such a conviction here. See Trial Court Opinion, 1/25/2023, at 6-8. It
specifically rejected Jones’s arguments that he had permission to enter Stare’s
residence and that he had not broken into Stare’s apartment. See id. at 7-8.
The court then noted what the Commonwealth needed to prove in order
to sustain Jones’s conviction for resisting arrest, which a person commits “if,
with the intent of preventing a public servant from effecting a lawful arrest or
discharging any other duty, the person creates a substantial risk of bodily
injury to the public servant or anyone else, or employs means justifying or
-4-
J-S35008-23
requiring substantial force to overcome the resistance.” Id. at 8-9 (quoting
18 Pa. C.S.A. § 5104). The court “did not hesitate to conclude” the evidence
was sufficient to support a conviction here, explaining:
Officer McGrath of the Wilkes-Barre City police department
testified that as he responded to a 4 AM 911 call for a disorderly
male[,] he observed him hanging inside an open window. The
Officer approached [Jones] who turned toward him, squared up in
a fighting stance and said “Let’s go bro.” He ignored the threat of
a taser and refused to comply with lawful commands. Ultimately
it took Officer McGrath, Officer Fisher and two other responding
officers to wrestle him into handcuffs.
Trial Court Opinion, 1/5/2023, at 9.
The trial court then turned to Jones’s claim that the evidence had been
insufficient to support his conviction for public drunkenness, which a person
is guilty of “if he appears in any public place manifestly under the influence of
alcohol or a controlled substance … to the degree that he may endanger
himself or other persons or property, or annoy persons in his vicinity.” Id. at
10 (quoting 18 Pa. C.S.A. § 5505). In finding the Commonwealth had
presented sufficient evidence to sustain the conviction here, the trial court
specifically rejected Jones’s claim that the shared front porch was not a “public
place” and he therefore could not be convicted of public drunkenness. See
Trial Court Opinion, 1/5/2023, at 11-13 (citing Commonwealth v.
Whritenour, 751 A.2d 687, 688 (Pa. Super. 2000) (holding limited access
road in private community was a “public place”)).
Lastly, the trial court rejected Jones’s challenges to the weight of the
evidence based on his assertions of witness bias and conflicting testimony.
-5-
J-S35008-23
The trial court summarized the evidence at trial and found the evidence was
not so contrary to the verdict as to “shock [its] sense of justice,” as a court is
required to find before ruling that the verdict was against the weight of the
evidence. See id. at 14-15 (citing Commonwealth v. Cousar, 928 A.2d
1025, 1036 (Pa. 2007)). The court also noted that it is the province of the
fact-finder to assess the credibility of witnesses. See Trial Court Opinion,
1/5/2023, at 14 (citing Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.
Super. 2007)).
In his appellate brief, Jones’s first three issues focus on the sufficiency
of the evidence underlying his three convictions. However, we detect no error
in the trial court’s conclusion that the evidence was sufficient to sustain each
of Jones’s convictions. Jones does not convince us otherwise. With one notable
exception, Jones essentially renews arguments on appeal that he raised in his
Rule 1925(b) statement and which the trial court found to be without merit.
We agree with the trial court that these arguments are without merit and
adopt its analysis on the sufficiency claims as our own. See Trial Court
Opinion, 1/5/2023, at 5-13.
The one notable exception referenced above is Jones’s argument
regarding the sufficiency of his resisting arrest conviction. In his Rule 1925(b)
statement, Jones specifically argued only that his actions “did not create a
situation where a substantial risk of bodily injury to the public servant or
anyone existed or that his actions required substantial force to overcome the
-6-
J-S35008-23
resistance.” Statement of Matters Complained of On Appeal, 11/23/2022, at
1 (unpaginated). He abandons that argument on appeal, instead raising the
distinct argument that there was no lawful arrest for him to resist. This claim
is waived. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)
(holding that any issues not raised in a Rule 1925(b) statement are deemed
waived).
In his final claim, Jones challenges the trial court’s conclusion that the
verdict was not against the weight of the evidence. Our review of such a claim,
as Jones recognizes, is limited to whether the trial court palpably abused its
discretion in denying the weight claim. See Commonwealth v. Martin, 297
A.3d 424, 436 (Pa. Super. 2023). As noted above, the trial court recounted
the evidence at trial and found the verdict was not against the weight of this
evidence:
First, [Jones] challenges the [jury’s] conclusion that he was
without privilege to enter the residence at [Stare’s residence]. He
represented that his presence was permissive. This claim is
meritless. [Jones] was physically removed from the residence
after a fight with other guests there. Soon after he opened a
window at [Stare’s residence] and was observed hanging through
that window. Two unrelated witnesses, one from outside and
another from the inside the residence, saw him do this. [Jones’s]
testimony that another party opened the window does not change
the fact that he sought to enter another’s residence through an
opening not designed for human access in circumstances which
demonstrate that he was not privileged to do so. Welcome guests
do not usually enter by the window. …
Next, [Jones] complains in two related issues that the
verdict is against the weight of the evidence because of conflicting
testimony, and bias of the witnesses. … The police and lay
witnesses testified to facts which taken together seemed logical
-7-
J-S35008-23
and credible. The jury was aware that, with the exception of
[Jones’s] girlfriend who was running away from him, [] all the
witnesses, including the police, did physically fight with [Jones] on
the night of his arrest. We do not doubt that this caused him to
suspect that these witnesses are not likely to offer testimony
favorable to him. The [jury’s] resolution of that credibility issue
does not shock our sense of justice.
Trial Court Opinion, 1/5/2023, at 14-15. Although Jones continues to argue
the Commonwealth’s witnesses were either biased or not credible, it is, as the
trial court noted, the province of the fact-finder to assess the credibility of the
witnesses. See Bruce, 916 A.2d at 661. Jones has simply not shown any
palpable abuse of discretion on the part of the trial court.
Based on the above, we find that Jones’s sufficiency and weight claims
are without merit, and we therefore affirm his judgment of sentence. Because
of our reliance on the trial court’s January 5, 2023 opinion, we have attached
a copy of the opinion to this memorandum. The parties are instructed to attach
the same to all future filings.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/30/2023
-8-
Circulated 10/19/2023 10:05 AM
11TH JUDICIAL DISTRICT OF PENNSYLVANIA
1{I
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNTY
V.
CRIMINAL
CRIMINAL DIVISION
ANDRES 0.
O. JONES
Defendant /I Appellant
Defendant
No.
No. 327
327 of
of 2021
2021 .
OPINION
BY: THE HONORABLE DAVID W. LUPAS CLERY.OF COURTS CRIMIPIRL
CLERK OF CURTS CRIMDL
LUZ CNTY JRNSTSP0:13
JANE/23e13
,.
I. FACTS AND PROCEDURAL HISTORY:
This matter comes before the Court pursuant
pursuant to a
a Criminal Information
filed on April
April 23,
23, 2021,
2021, against
against the above-named Appellant
Appellant by the District
Attorney
Attorney of Luzerne County. The Information
Luzerne County. Information charged
charged the
the Appellant
Appellant with
with
criminal trespass,
trespass, 18 Pa.C,S.A. §3503(A)(1)(ii),
Pa.C,S.A. §3503(A)(1)(ii), simple
slmple assault, 18
Pa.C.S.A.§ 2701(A)(1), disorderly conduct,
Pa.C.S.A$ 18 Pa.C.S.A.§5503(A)(1),
Pa.C.S.A.,55503(4)(1)
resisting arrest, 18 Pa.C.S.A. §5104,
resisting $5104, and public drunkenness, 18 Pa.C.S.A.
Pa.C.S.A
§5505.
At trial, evidence was presented that on November 22, 2020, the
Appellant was
Appellant aguest
was a at "friends'
guest at giving" party
"friends' giving" party at
at 96
96 Vilest Chestnut Street
West Chestnut Street in
in
.
Wilkes-Barre. At that time, he resided next door at 94 West Chestnut Street
street
with his daughter,
daughter, his girlfriend,
girlfriend, Kelsey Hoxsie, their son.
son. ((N.T.
N.T. pg. 27) The ·
I
holiday
holiday party
party at 96 West Chestnut Street featured alcohol.
alcohol. (N.T.
(N.T. pg. 34) late
Late
in
in the
the evening,
evening, sometime after 3AM,
sometime after 3AM, the
the Appellant and Ms.
Appellant and Ms. Hoxsie,
Hoxsie, began
began to
to
argue. He pulled
pulled the blanket from her bed as she tried to sleep, called her
names and pulled
names and pulled off
off her
her engagement
engagement ring
ring and
and threw it across
threw it across the room.
the room.
(N.T. pg. 30) Ms. Hoxsie and her son then left
left the residence at 94 West
Chestnut and went next door to 96 West Chestnut Street where she was
apparently admitted to enter. ((ld.)
apparently Id.) Appellant followed her next door. He
knocked
knocked loudly
loudly on
on the door which
which was
was answered
answered by Jay Deininger who
who
Appellant
Appellant hip checked out of the way before he entered the residence.
residence. (N.T.
(N.T.
pg. 31,
pg. 67) Appellant
31, 67) Appellant was
was ordered
ordered to
to leave the residence, but he
he refused.
refused.
(N.T.
(N.T. pg. 58) Ms.
pg. 58) Ms. Hoxsie
Hoxsie and
and Appellant's daughter took
Appellant's daughter took shelter
shelter from
from him in
him in
the bathroom of 96 West Chestnut Street. Two guests
guests at that residence, Jay
Deininger
Deininger and Jacob Crablo, briefly
briefly fought
fought with the Appellant and ultimately,
he was removed from the residence. (N.T. pg. 68-69) The Appellant
(N.T. pg.
persisted. He opened
persisted. opened a
awindow accessible from the front porch outside and
began to crawl through
began through the window.
window. ((Id.)
Id.) It was at this time that police arrived
who
who observed
observed his body halfway through the open window.
his body window. ((N.T.
N.T. trial
trial pg. 80-
80-
81)
Officers James Fisher and Michael McGrath both of the Wilkes-Barre
Wilkes-Barre
City
City Police Department
Department responded to a
a 911 call to 96 West Chestnut Street.
Street. ,
2
2
•
(N.T.
(N.T. pg. 41-42)
41-42) Upon arriving,
arriving, Officer McGrath
McGrath observed
observed the
the Appellant
Appellant
hanging
hanging through the front
front window
window of
of 96 West
West Chestnut.
Chestnut. Office
Office McGrath
McGrath
ascended the front porch stairs where he was greeted by the Appellant who
squared
squared up in a
a fighting stance to face him saying,
saying, ""Let's
Let's go bro."
bro." ((N.T.
N.T. pg.
82). Officer McGrath who is experienced in observing persons under the
influence of drugs and alcohol noted that the Appellant smelled of alcohol
and appeared to be intoxicated.
intoxicated. ((N.T.
N.T. pg. 83). Officer Fisher attempted to
handcuff the Appellant
Appellant but he refused to comply
comply and he pulled away.
away. ((N.T.
N.T.
pg. 86)
86) Officer Fisher renewed his demand that the Appellant comply with
officers' directions pointing a
a taser device at him. Appellant advised that he
wasn't "scared"
wasn't had "been
"scared" and that he had "been tased before."
before." (N.T.
(N.T. pg. 87, see also
pg. 45-46). Appellant continued to resist and itit took Officers Fisher, McGrath
and two other officers to take him to the ground where he continued to
he continued to resist.
resist.
(N.T. pg. 46).
(N.T. pg. 46). With great effort, and at some personal risk to themselves,
police
police took Appellant into
took Appellant into custody. Officer'McGrath
custody. Officer McGrath noted
noted that
that .some
some other
other
residences, in the neighborhood
residences neighborhood.turned
turned their lights on in response to the
disturbance
disturbance created
created by
by Appellant's
Appellant's conduct and
and the
the necessary
necessary law
law
enforcement response
response thereto.
thereto. ((N.T.
N.T. pg. 89)
89) He also agreed that the fracas
by the Appellant
necessitated by Appellant resulted in substantial noise which at an hour
3
3
•
between three and four AM*
AM was unusual for the quiet residential
neighborhood. (N.T.
neighborhood. pg. 79)
(N.T. pg. 79)
A jury
A jury trial commenced on
trial commenced April ,19,
on April 19, 2022,
2022, and
and the
the jury
jury returned
returned their
their
verdict on
verdict on April 20t,
20th. The
The Appellant
Appellant was
was found
found guilty
guilty of
of counts
counts 1,
1, 4 and 5,
4 and 5, and
and
not guilty
guilty of counts 2
2and 3. A
A presentence investigation
investigation (PSI)
(PSI) was Ordered
to be
be completed by the Luzerne County Adult Probation and Parole
Department prior
Department prior to
to sentencing.
sentencing. On
On July 25, 2022,
July 25, 2022, the
the Defendant
Defendant appeared
appeared
before this Court for imposition of sentence. Upon a
a review of the
the.PSI, and
the arguments
arguments of counsel we imposed
imposed sentences within the standard range
of the sentencing
sentencing guidelines.
guidelines. On July
July 28,
28, 2022,
2022, Appellant's
Appellant's counsel filed a
a
post sentence
post sentence motion
motion which vaguely
vaguely raised weight
weight and
and sufficiency claims.
claims.
We denied his motion by
by Order dated September
September 13, 2022. Thereafter, on
10, 2022,
October 10, Appellant field a
2022, Appelant a counseled notice of appeal. We ordered
the Appellant to file
the Appellant file his
his concise
concise statement pursuant
pursuant to
to Pa.
Pa. R.A.P.
R.A.P. 1925(b).
1925(b)
After
After we granted Appellant's
we granted request for
Appellant's request for an
an additional
additional 20 days to file
20 days file his
his
concise statement we received his filed allegations
allegations of error on November 23,
2022.
2022.
For the reasons set forth below, the Appellant's appeal should be
denied and the verdicts and judgments
judgments of sentence affirmed.
4
4
11.
II. LAW AND DISCUSSION:
The Appellant's Concise
The Appellant's Concise Statement
Statement of Matters Complained of
Matters Complained of on
on
Appeal alleges insufficient
Appeal alleges insufficient evidence
evidence to support his
to support convictions for
his convictions for criminal
criminal
trespass,
trespass, resisting arrest
arrest and public drunkenness.
drunkenness. We
We disagree.
When reviewing
reviewing a
a sufficiency
sufficiency of the evidence claim, we view the
evidence and
and all
all reasonable
reasonable inferences
inferences to
to be drawn from the evidence in the
the
light
light most favorable to the Commonwealth as verdict winner and determine
if
if the
the evidence,
evidence, thus viewed,
viewed, is
is sufficient
sufficient to prove
prove guilt beyond a
a reasonable
doubt. A
A reviewing
reviewing 'court
court may not substitute its judgment for that of the
factfinder. If the record contains support for .the
support for the verdict, it may not be
disturbed.
disturbed. Moreover,
Moreover, a
a jury may believe all,
jury may all, some
some or none a party's
none of a
testimony and the Commonwealth may
testimony may sustain its burden by
by means of wholly
circumstantial
circumstantial evidence. Commonwealth y,
evidence. Commonwealth v. McFarland,
McFarland, 278
278 A.3d
A.3d 369,
369, 381
381
(Pa Super
(Pa Super 2022)
2022) (citations
(citations omitted) Only where
where the
the evidence offered to
support
support the verdict is in contradiction to the physical facts, in contravention
experience and the laws of nature, is it deemed insufficient as a
to human experience a
matter
matter of
of law. Commonwealth
Commonwealth v.
y, Robinson,
Robinson, 817 A.2d.
A.2d. 1153, 1158
55
(Pa- Super. 2003
(Pa.Super. 2003 quoting
quoting Commonwealth
Commonwealth v.
v, Santana,
Santana, 460
460 Pa.
Pa. 482,
482, 333
333 A.2d
A.2d
876 ((1975)).
876 1975)).
The Appellant
The Appellant alleges
alleges that the there
that the there is insufficient evidence
is insufficient evidence to
to prove
prove
beyond a reasonable
beyond a doubt that
reasonable doubt that he broke into
he broke into a
a structure.
structure. He alternately
He alternately
argues that
argues he was
that he invited into
was invited the structure
into the structure and
and was
was there
there permissibly.
permissibly. The
The
evidence presented
presented at
at trial
trial belies
belies this
this claim.
claim. A
A person
person commits
commits the offense
offense
of criminal trespass
trespass ""if,
if, knowing
knowing that he
he is not licensed
licensed or
or privileged
privileged to
to do
do so,
so,
he breaks
he breaks into
into any
any building
building or occupied structure
or occupied structure or
or separately
separately secured or
secured or
occupied portion
occupied portion thereof."
thereof." 18 Pa&3503(a)(1)(ii).
18_Pa.53503(a)(1(ii).
"A
"A person
person breaks
breaks into
into a building or
a building occupied structure
or occupied structure ifif he
he gains
gains entry
entry
by force, breaking,
by force, breaking, intimidation,
intimidation, unauthorized
unauthorized opening
opening of locks, or through
locks, or through an
an
opening
opening not designed for
not designed for human access." 18
human access." 18 Pa.§
Pa.S 3503(a)(3).
3503(a)(3). Additionally,
Additionally,
the entry requirement
the entry requirement of
of our criminal trespass
our criminal trespass statute
statute is
is satisfied
satisfied by insertion
by insertion
of an instrument
of an instrument which
which is held or
is held or manipulated
manipulated by
by the
the defendant,
defendant, or
or so
so closely
closely
associated
associated with
with his
his body
body that
that itit essentially
essentially becomes
becomes an extension thereof."
an extension thereof."
Commonwealth v.
y, Furness,
Furness, 2016 PA Super
2016 PA Super 298,
298, 153
153 A.3d
A.3d 397,
397, 401-02
401--02
(2016) ((internal
(2016) internal quotations
quotations and citations omitted)
and citations omitted)
Having presided
Having presided over the trial in this matter, we agree that the evidence
was sufficient to enable the jury
jury to find the Appellant
Appellant guilty
guilty of criminal
•
trespass.
trespass. Jay Deininger testified
Jay Deininger testified that
that he
he was
was awoken
awoken by
by loud
loud knocking
knocking at the
the
6
6
door.
door. (N.T.
(N.T. pg. A neighbor,
pg. 66) A Kelsey, (Ms.
neighbor, Kelsey, (Ms. Hoxsie)
Hoxsie) and
and her
her son,
son, rushed
inside saying that
that "(Appellant)
"(Appellant) was going crazy..." Kelsey then locked herself
in the bathroom. Soon after, Appellant
Appellant loudly
loudly knocked at the door. (id.)
(ld.) As
As
soon as Mr. Denininger opened the door for him, he
he "like
like hipped it and
pushed it open and came right in." (N.T.
(N.T. trial pg. 67). The witness agreed
that the Appellant forced himself into the residence. ((Id.)
Id.) Thereafter, Mr.
Deniniger and Jayson Crablo, physically fought with the Appellant and
l
compelled
compelled him to leave the residence.
residence. ((Id.
Id. pg.
pg. 69). Undeterred, the Appellant
opened the front window and began climbing through the window.
window. ((Id.)
Id.)
Wilkes-Barre City police officer, Michael McGrath arrived at that moment and
witnessed
witnessed the
the Appellant
Appellant hanging into the
the residence
residence at
at 96
96 West Chestnut
Chestnut
Street. (Trial
(Trial N.T. pg. 80-81). While Appellant argued at trial that his
presence, hanging
presence, hanging inside the half open window of 96 West Chestnut Street
was permissive. We disagree.
disagree. At least circumstantially, his having been
thrown of the house to be kept
kept away from the young
young woman locked in the
bathroom moments before climbing into the window belies this claim.
The evidence viewed in the light
light most favorable to the Commonwealth
was sufficient to prove
prove guilt
guilt beyond a
a reasonable doubt that the Appellant
broke into the residence. This is especially
especially clear where the credible evidence
proved
proved that his body
body was halfway
halfway through
through the open window which is an
77
opening not designed for human access. Even if the Jury believed
Appellant's testimony
Appellant's testimony that
that he
he did
did not
not open
open the
the window,
window, he
he was
was observed
observed by
by
Officer McGrath
Officer McGrath entering
entering the
the opening
opening which is not
which is not designed
designed for
for human
human
access. See
access. See 18
18 Pa.S
Pa.§ 3503(a(3).
3503(x)(3). Accordingly, this Court
Accordingly, this Court has
has no
no hesitation
hesitation in
in
finding that the evidence presented
finding presented at trial was sufficient to demonstrate
beyond a
beyond a reasonable doubt that the Appellant is guilty
guilty of criminal trespass.
We submit that this conclusion also fairly
fairly addresses the Appellant's
Appellant's
paragraph 3
claim at paragraph 3of his concise statement
statement which alleges that we erred in
denying his motion for judgment
denying judgment of acquittal.
acquittal. Plainly,
Plainly, -a
a prima facia case
existed where the evidence is sufficient to prove his guilt beyond aa
reasonable doubt.
reasonable doubt.
Appellant next complains
Appellant complains that the evidence was insufficient to prove
beyond a
beyond areasonable doubt that he is guilty of resisting arrest. He specifically
argues that the he did not
argues not ""create
create a
asituation where a
asubstantial risk of bodily
injury to the public
injury public servant or anyone else existed or that his actions required
substantial force to overcome the resistance." This claim likewise fails.
person commits a
"A person amisdemeanor of the if, with
the second degree if, with the
preventing a
intent of preventing a. public servant from effecting a
a lawful arrest or
discharging any
discharging any other duty,
duty, the person
person creates a
a substantial risk of bodily
injury to the public
injury anyone else, or employs means justifying Or
public servant or anyone or
8s
requiring substantial force to overcome the resistance."
resistance." 18 Pa. C.S.A.§ 5104.
18Pa.C.SAS5104.
The Superior Court
Court upheld the
the trial court's rejection
rejection of
of a
a sufficiency
sufficiency
challenge llike Commonwealth v. Clark, 761 A.2d 190,193
ike Appellant's in Commonwealth 190, 193 ((Pa.
Pa.
Super 2000). After being informed that he was under arrest, (Clark)
(Clark) refused
to comply
comply with lawful commands, assumed a
a fighting
fighting stance, verbally
declared his intent to physically fight
fight police,
police, then physically
physically resisted non-
lethal force and the police had to wrestle him to make the arrest.
Commonwealth v.
y, Clark, 761 A.2d 190, 193
193 (Pa.
(Pa. Super 2000).
At the Appellant's
Appellant's trial, Officer McGrath of the Wilkes-Barre City police
department
department testified that as he responded to a
a 4AM 911 call for a
a disorderly
male he observed him hanging inside an open
open window.
window. ((N.T.
N.T. pg. 79-81). The
Officer approached the Appellant
Appellant who turned toward him, squared up in a
a
fighting
fighting stance and said, ""Let's
Let's go bro."
bro." ((N.T.
N.T. pg.
pg. 82) He ignored the threat
of a
a taser and refused to comply
comply with lawful commands. Ultimately it took
Officer McGrath, Officer Fisher and two other responding officers to wrestle
him into handcuffs.
handcuffs. ((N.T.
N.T. pg.
pg. 87-88) This struggle took place on an elevated
porch cluttered with Appellant's
porch weights which police
Appellant's weights police accessed by climbing
a
a one
one story
story flight
flight of stairs which
which was
was slippery
slippery being
being covered
covered with
with destroyed
destroyed
pumpkins.
pumpkins. (N.T. pg. 86). We do not hesitate to conclude that the evidence
(N.T. pg.
was sufficient to prove
prove that the Appellant's
Appellant's conduct created a
a situation where
9
9
•
aa substantial
substantial risk
risk of
of bodily
bodily injury
injury to
to the public servant
the public servant existed
existed and
and that
that his
his
resistance. ((N.T.
actions required substantial force to overcome his resistance. N.T. pg. 46,
Appellant's sufficiency
87-88) Appellant's sufficiency claim must fail.
Appellant next challenges the sufficiency of the evidence for his
public drunkenness. He claims that the
conviction for public the Commonwealth failed
to establish that he was intoxicated to a
a degree that he may endanger himself
or others. We were the factfinder for this offense because it is aasummary
public drunkenness, in
offense. The Crimes Code defines the offense of public
relevant part, as follows: "A a summary offense if he
"A person is guilty of a
a
appears in any public place manifestly under the influence of alcohol or a
controlled substance... to the degree that he may endanger himself or other
persons or property,
persons property, or annoy persons in his vicinity" 18Pa.CS.A
18 Pa.C.S.A. S
§ 5505,
5505.
Reviewing the evidence we heard at trial we note that Officer Fisher
Reviewing
training in recognizing
has training recognizing -intoxicated persons and is experienced having
spent 17 years
spent years patrolling
patrolling the City on the night shift. ((N.T.
N.T. pg. 44) He testified
Appellant appeared
that the Appellant appeared under the influence alcohol.
alcohol. (N.T.
(N.T. pg. 43). Officer
,
McGrath, also an experienced
McGrath, experienced veteran of the night
nightshift,
shift, similarly detected
Appellant was under the influence of alcohol. Appellant's arrest was
that the Appellant
preceded by
preceded by a party where he -was a
a house party a guest which included the
consumption of alcohol and lasted into the early morning hours. Accordingly,
consumption
10
there is
there is ample evidence to
ample evidence support his
to support his intoxication.
intoxication. We
We submit
submit that
that preceding
preceding
analysis of
analysis his resisting
of his resisting arrest
arrest conviction
conviction supports
supports our
our conclusion
conclusion that he
that he
endangered
endangered himself and
and other persons
persons and we incorporate
incorporate that
that analysis
analysis into
into
our resolution
our resolution of
of this issue.
this issue.
To his
To his claim
claim that
that his conduct was
his conduct was not
not in
in public
public we turn
tum to
to
Commonwealth v.
Commonwealth y, Mever, 431 A.2d
Mever, 431 A.2d 287287 ((Pa.
Pa. Super.
Super, 1981),
1981), where
where the
the
Superior
Superior Court helpfully observed that
Court helpfully that "Section
Section 5505
5505 does
does not
not define
define the
the
'public.' However,
term 'public.' However, [t]he
[t]he term
term does appear,
appear, however,
however, in
in two
two places
places in
in the
the
Crimes
Crimes Code:
Code: in the
the section
section dealing with
with prostitution,
prostitution, section
section 5902,
5902, and
and in
in
the section dealing
dealing with disorderly conduct, section 5503. Section 5902(f)
defines it as
as 'any
'any place
place to which the public or any substantial group thereof
has access.'
has acx:ess.' The
The ordinary meaning of
ordinary meaning of ''access'
access' is: 'the
'the right
right to
to enter
enter or
or make
make
of;' 'the
use of;' 'the state or quality
quality of
of being
being easy to enter.
enter. Section
Section 5503(c)
5503(c) defines
defines
public places
public places as, inter alia, ''any
any premises
premises which are open to the public."'
public."
Mever,
Meyer, 431 A.2d at 289
289 (footnotes
(footnotes omitted).
omitted). Section 5503(c) provides as
follows: As used in this section the word
follows: "As word ''public'
public' means affecting or likely to
persons in
affect persons a place
in a place to
to which public or
which the public or a
a substantial
substantial group
group has
has
access; among
access; among the
the places
places included
included are
are highways,
highways, transport
transport facilities,
facilities,
schools, prisons, apartment houses,
prisons, apartment houses, places of
of business
business or
or amusement,
amusement, any
any
11
II
neighborhood, or any premises
premises which are open to
to the public." 18 Pa.C.S.A.§
18PaC5AS
5503(c).
5503(c)
We also rely on Commonwealth v. Whritenour, 751 A.2d 687, 688
688 ((Pa.
Pa.
Ct. 2000), where the Court found that an even limited number of
Super. Ct of
persons in aa neighborhood located in
in "a private community, which
"a private
necessarily excludes the public" are public areas as defined by Section
5503(c). In concluding that the road in the private community was aapublic
place the Whritenour Court observed that the road where Whritenour was
during the commission of his offense was
was ""accessible
accessible only to residents or
permission of a
those present by pennission aresident.... and was traversed by members
of the community and their invitees or licensees." Commonwealth v.
Whritenour, 751 A.2d 687, 688
688 ((Pa.
Pa. Super. Ct. 2000). We find limited access
road way akin to the shared front porch of the Appellant and neighboring
residence. The Commonwealth did not argue that Appellant was trespassing
when he knocked, however loudly, on the door at 96 West Chestnut Street.
Street.
Anyone visiting or making aadelivery to either resident has equal access to
climb the stairs of the double block residence and access the residents at
either address from the shared front porch. We think it Is
is also important to
of the Appellant's misconduct occurred on his neighbors'
note that some of
of the front porch.
portion of
-•
12
We believe that this fact distinguishes
distinguishes this case from the Superior
Commonwealth v. Cook. In
Court's conclusion in the non-precedential case Commonwealth
Cook, the Superior Court reversed the trial court's conclusion that Ms. Cook
was in public pursuant to Section 5503 when she appeared intoxicated
shouting obscenity from her own front porch. Commonwealth y,Cook,
v. Cook, No.
234 WDA 2016, 2017 WL 527973,
527973, ((Pa.
Pa. Super. Ct. Feb. 9, 2017). The court
reasoned that her front porch, apparently used by her exclusively, was not aa
public area.
area. ((Id.
Id. at pg. 5) The Appellant was not on his own front porch when
he caused a
a disturbance but instead, he was on
on -his
his neighbors' porch
climbing through their front window. The experienced
experienced prosecutor carefully
built the record with witness testimony to prove that the Appellant's behavior
did annoy persons in his vicinity. Officer McGrath testified that the residential
neighborhood was usually quiet and that he observed neighbors turning on
their llights
ights in the early morning hours. We believe that this was circumstantial
evidence that persons in the vicinity were in fact annoyed.
annoyed. ((N.T.
N.T. 79, 88-89).
Giving every inference to the Commonwealth as verdict winner, we think that
these facts support our conclusion the Appellant was intoxicated in a
apublic
place.
Appellant next makes
makes' aa series of challenges to the weight of the
evidence. A
A trial court is not to grant relief for such claims unless the verdict
13
,
is so contrary to the evidence as to shock. one's
shock· sense of
justice. Commonwealth •
justice. v. Cougar,
Cousar, 593 Pa.
Pa. 204, 223, 928
204, 223, 928 A.2d
A.2d 1025,
1025, 1036
1036
(2007). Appellant raised three challenges to
to the weight of the evidence. First,
'he
he challenges the Jury's conclusion that he was without privilege to enter the
Vilest Chestnut Street. He represented that his presence was
residence at 96 West
permissive. This claim is meritless. The Appellant
permissive, Appellant was physically
physically removed
from the residence after aafight with other guests there. Soon after he opened
aawindow at 96 West Chestnut and was observed was hanging through that
window. Two unrelated witnesses, one from outside and another from the
inside the residence, saw him do this. (N.T.
(N. T. pg. 58, 82) Appellant's testimony
that another party
party opened the window does not change the fact that he
sought to enter another's residence through an opening not designed for
sought
human access in circumstances which demonstrate that he was not
privileged to do so.
privileged so: Welcome guests
guests do not usually
usually enter by the window.
Appellant's challenge
Appellant's challenge to the weight of the evidence is without merit.
Next
Next Appellant complains in
Appellant complains in two related issues
two related issues that
that the
the verdict
verdict is
is
against the weight of the evidence because of conflicting testimony, and bias
against
of the witnesses. The jury is free to judge the credibility of witnesses and
only that testimony
credit only testimony which
which they Commonwealth y,
they believe. Commonwealth v. Bruce, 916
657, 661
A.2d 657, 661 ((Pa.
Pa. Super
Super 2007). The police and the lay witnesses testified
2007). The
14
'. . ., .
to facts which taken together seemed logical and credible. The jury was
aware that, with the exception to the Appellant's girlfriend who was running
away from him, that all the witnesses, including the police, did physically fight
with the Appellant on the night of his arrest
arrest. We do not doubt that this caused
him to suspect that these witnesses are not likely to offer testimony favorable
to him. The Jury's resolution of that credibility issue does not shock our sense
of justice. The Appellant's weight claims should fail.
Finally,
Finally, Appellant
Appellant claims that we erred by declining to schedule a
a
hearing on his post
hearing post sentence motions. He cites Pa. R. Crim.P 720 which
Pa. R, which
does not require the trial court to schedule a
ahearing where as here there is
no need to do so to resolve the issues. Pa. R.
RR, Crim. P,
P. 720(BX2¥b)
720(B)(2)(b). Each of
Appellant's issues were addressed by this court's own observations and
Appellant's
review of the trial transcripts. Accordingly, Judgment of sentence in this case
should be Affirmed.
END OF OPINION
15