Com. v. Sykes, L.

J-A14003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LEWIS VINCENT SYKES :
:
Appellant : No. 3423 EDA 2017
Appeal from the Judgment of Sentence September 16, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005667-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 13, 2018
Appellant, Lewis Vincent Sykes, appeals nunc pro tunc from the
judgment of sentence entered in the Montgomery County Court of Common
Pleas, following his bench trial convictions for criminal trespass-breaking into,
criminal trespass-entering the structure, criminal mischief, and attempted
burglary.1 We affirm.2
____________________________________________
1
18 Pa.C.S.A. §§ 3503(a)(1)(ii), 3503(a)(1)(i), 3304(a)(5), and 901,
respectively.
2
Our Supreme Court in Leach v. Commonwealth, 636 Pa. 81, 141 A.3d 426(2016), declared void in its entirety Act 192 of 2014, which included, inter
alia, amendments to 18 Pa.C.S.A. § 3503(b.1)(1)(iv) and § 3503(b.1)(2),
(criminal trespass to steal defined secondary metals), because it violated the
single-subject rule of the Pennsylvania Constitution. Leach, however, does
not affect this case, because Appellant was not convicted of trespass to steal
secondary metals. Rather, Appellant was convicted and sentenced under
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A14003-18
In its opinion, the trial court fully and correctly sets forth the relevant
facts. Therefore, we have no reason to restate them. Procedurally, Appellant
proceeded to a bench trial on June 6, 2016. On June 7, 2016, the court
convicted Appellant of three counts of criminal trespass and one count each
of attempted burglary and criminal mischief. The court sentenced Appellant
on September 16, 2016, to an aggregate term of twenty-three (23) to fifty-
six (56) years’ incarceration.3 Appellant filed no post-sentence motions and
sought no direct review.
On March 3, 2017, Appellant timely filed his first pro se PCRA petition.
The PCRA court appointed PCRA counsel on March 17, 2017. On May 23,
2017, Appellant filed an amended PCRA petition, asserting several claims of
ineffective assistance of trial counsel and seeking reinstatement of his direct
appeal rights nunc pro tunc.
The PCRA court conducted an evidentiary hearing on August 11, 2017.
On September 26, 2017, the PCRA court granted relief in part and reinstated
Appellant’s direct appeal rights nunc pro tunc. Appellant timely filed his notice
of appeal from the judgment of sentence nunc pro tunc on October 18, 2017.
____________________________________________
subsections 3503(a)(1)(i) (surreptitious entry or remaining in building or
occupied structure) and 3503(a)(1)(ii) (entry into occupied building or
structure).
3
Prior to the current convictions, Appellant had been convicted twice of rape.
Appellant’s attempted burglary conviction in the current case constituted a
third strike offense.
-2-
J-A14003-18
The court ordered Appellant on October 19, 2017, to file a concise statement
of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant complied
on November 9, 2017.
Appellant raises the following issues for our review:
WHETHER, WHERE THE EVIDENCE DID NOT SUPPORT AN
INFERENCE OF INTENT TO COMMIT ANY CRIME WITHIN A
DWELLING, APPELLANT’S CONVICTION ON ATTEMPTED
BURGLARY IS AGAINST THE WEIGHT AND SUFFICIENCY OF
THE EVIDENCE[?]
WHETHER, WHERE THE EVIDENCE REVEALED THAT
APPELLANT WAS NOT THE PERSON WITHIN THE DWELLING
DURING THE INITIAL ENCOUNTER WITH VICTIM PURSUANT
TO UNCONTESTED POLICE OFFICERS’ TESTIMONY,
APPELLANT’S CONVICTIONS FOR CRIMINAL TRESPASS ARE
AGAINST THE WEIGHT AND SUFFICIENCY OF THE
EVIDENCE[?]
WHETHER, WHERE THE EVIDENCE REVEALED THAT
APPELLANT WAS NOT THE PERSON WITHIN THE DWELLING
DURING THE INITIAL ENCOUNTER WITH VICTIM PURSUANT
TO UNCONTESTED POLICE OFFICERS’ TESTIMONY,
APPELLANT’S CONVICTION FOR ATTEMPTED BURGLARY IS
AGAINST THE WEIGHT AND SUFFICIENCY OF THE
EVIDENCE AS…APPELLANT COULD NOT HAVE THEN
RETURNED TO THE RESIDENCE AS DETERMINED BY THE
COURT[?]
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
BY FINDING APPELLANT GUILTY OF ATTEMPTED BURGLARY
ON THE SECOND, SEPARATE INCIDENT WHEN THE
COMMONWEALTH AMENDED THE BILLS OF INFORMATION
TO ADD ATTEMPTED BURGLARY AS AN INCHOATE OFFENSE
TO THE ORIGINAL BURGLARY CHARGE RELATED TO THE
FIRST INCIDENT, AS THE COMMONWEALTH STATED AT
TRIAL THAT THE COURT COULD FIND APPELLANT GUILTY
OF THE ADDED ATTEMPTED BURGLARY CHARGE[S] EVEN
WITHOUT THE AMENDMENT[?]
-3-
J-A14003-18
(Appellant’s Brief at 4).4
The Pennsylvania Crimes Code defines criminal trespass as follows:
§ 3503. Criminal trespass
(a) Buildings and occupied structures.—
(1) A person commits an offense if, knowing that he is
not licensed or privileged to do so, he:
(i) enters, gains entry by subterfuge or
surreptitiously remains in any building or occupied
structure or separately secured or occupied portion
thereof; or
(ii) breaks into any building or occupied structure
or separately secured or occupied portion thereof.
* * *
18 Pa.C.S.A. § 3503(a)(1).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Garrett D.
Page, we conclude Appellant’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of the questions presented.
(See Trial Court Opinion, filed December 12, 2017, at 5-15) (finding: (1)
____________________________________________
4
To the extent Appellant challenges the credibility of Victim’s trial testimony,
Appellant failed to file any post-sentence motions. Therefore, any challenge
to the weight of the evidence, including Victim’s credibility, is waived. See
Commonwealth v. W.H.M, 932 A.2d 155, 159-60 (Pa.Super. 2007)
(explaining argument that fact-finder should have discredited witness’
testimony goes to weight of evidence, not sufficiency of evidence);
Pa.R.Crim.P. 607(A) (providing challenge to weight of evidence must be raised
with trial judge or it will be waived).
-4-
J-A14003-18
Appellant’s cutting window screen, his possession of items which can be used
to conceal identity, possession of Vaseline, flight from Victim and police, and
spurious excuse constitute sufficient evidence to establish Appellant intended
to commit crime within Victim’s home; to extent Appellant raises weight of
evidence claim, Appellant waived that claim; Appellant did not request and
PCRA court did not grant reinstatement of Appellant’s post-sentence motion
rights nunc pro tunc, and Appellant filed no post-sentence motions; (2-3)
Victim credibly testified Appellant was individual who twice entered her house;
based on record and court’s credibility determinations, Appellant’s claim
cannot be basis for finding conviction against weight or sufficiency of
evidence; (4) Appellant failed to object to Commonwealth’s request to amend
bills of information to include charge of attempted burglary; therefore, this
claim is waived; factual scenario set forth in original information placed
Appellant on notice Commonwealth sought to charge him with regard to two
separate entries into Victim’s home; Appellant failed to prove he suffered
prejudice as result of amendment; amendment did not change facts
underlying charges or add new facts, alter description of charges, or affect
Appellant’s defense strategy). The record supports the trial court’s rationale.
Accordingly, we affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
-5-
J-A14003-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2018
-6-
Circulated 06/26/2018 02:09 PM
40.7 ht9
4,1(5)109,9-- os"79-
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA No. CP-46-CR-0005667-2015
v.
3402 EDA 2017
LEWIS SYKES 3423 EDA 2017
OPINION
Page, J. December 12, 2017
Defendant appeals from this Court's Judgement of Sentence on September 16, 2016. For
the reasons set forth below, Defendant's appeal is without merit. Therefore, any claim of error on
the part of this Court should be dismissed and the ruling should be affirmed.
FACTS AND PROCEDURAL HISTORY
The Defendant was arrested and charged with Burglary, Criminal Trespass, and related
offenses. The Commonwealth alleged that the Defendant unlawfully entered the home of
Sommer Brown twice. Immediately before trial, the Commonwealth moved to amend the Bills of
Information to include attempted burglary. N.T. Trial 6/6/16 p. 3, As the attempted burglary
charge was a lesser included offense, the Defense did not object to the amendment. Id.On June 18, 2015, Sommer Brown was in her bedroom at 602 Apple Street where she
lived with her mother. Id at 11. A little before noon, the door to her bedroom opened slightly
and someone peeked into the room. Id. No one else should have been in the home. Id Ms.
Brown noticed that the man was African American, but after she opened her door, the man ran
down the stairs and she saw that he was bald wearing a black and white flannel or plaid shirt. Id.
at 12. Ms. Brown did not know the person, and she did not give him permission to be in the
the steps. Id. When she
home. Id. Ms. Brown wrapped a towel around her waist and ran down
on
went back upstairs to put clothesnand
discovered the man was not in her house, she
Brown called the
unsuccessfully tried to locate the man who had been in her bedroom Id. Ms.
the man would
police, but they were also unable to locate the man. Id. Ms. Brown believed that
return, so she kept her TV low and listened for anything suspicious. Id. at 14.
Ms. Brown then heard a weird noise down in the living room, and
when she went to
and
investigate a man was cutting the screen. Id at 15. The man's hand was inside the window,
earlier. Id.
the victim was certain this man was the same man who had appeared in her bedroom
was off its hinges,
at 47. Ms. Brown identified that man as the Defendant. Id. The glass window
a condition which it was not in prior to the Defendant attempting to enter
the home through the
window. Id at 17. Ms. Brown then went outside and began to film the man who had attempted
to
enter her home. Id. at 18. In the video, the Defendant claimed to be a friend of Ms. Brown's
mother. Id at 19. He also claimed that he had a phone that was brown or blue inside the home.
Id. No phone was ever found by Ms. Brown in the home. Id. at 20.
The
She called the police, and informed them of the Defendant's last location. Id. at 20.
as the
police later brought Ms. Brown to look at a man they had found, and she identified him
person who had attempted to break into her home through a window. Id at 21. She was
one
hundred percent positive he was the right person. Id.
Officer Stoltzfus responded to a suspicious person report at 602 Apple Street on June 18,
2015 around 12:15 PM. Id. at 57-58. Officer Stoltzfus and another officer viewed surveillance
video of the complex, and they saw someone who matched the physical description of the man
from the
with Ms. Brown walking right behind him. Id at 58. When police reviewed the stills
was not the
video later, they determined that the man, while matching the physical description,
2
Defendant. Id. at 61. The video was from a brand new system that the manager didn't know how
to operate, so no copy could be made. Id. at 82. At around 1:20 PM, police were dispatched to
the same address again, and Officer Stoltzfus went to where the victim had last seen the man
who attempted to enter her home. Id. at 59. Officer Stoltzfus believed he arrived around the time
the victim stopped following him. Id. at 66. The officer saw the Defendant walking in an alley,
and when police activated their lights and approached, the Defendant jumped a fence. Id at 60.
Officer Stoltzfus ran through a neighboring yard to catch the Defendant, but when he got there,
other officers had the Defendant in custody. Id
Officer Damian() also followed Ms. Brown's description and was able to encounter the
Defendant after Officer Stoltzfus lost sight of him in the yard. He saw the Defendant quickly
walking or slowly jogging to his front door, and then the Defendant was "frantically trying to get
in his front door." Id. at 71-72. Officer Damian() testified that the Defendant was not the same
man in the surveillance video. Id. at 72. Following a search of the Defendant, police found a jar
of petroleum jelly, black work gloves, and one leg of black stockings. Id. at 72-75. The black
stocking was a full length single leg of women's stockings. Id at 75; 80.
The Defendant was convicted of Criminal Trespass -Breaking Into, 2 Counts of Criminal
Trespass -Entering the Structure, Criminal Mischief, and Attempted Burglary-Overnight
Accommodation- Person Present. The Commonwealth sought, and this Court imposed, the
mandatory minimum sentence of 25-50 years' imprisonment for the Defendant's third crime of
violence, Attempted Burglary -Overnight Accommodation, Person Present. This Court also
imposed a 1-2 year consecutive term of imprisonment for each of the three Criminal Trespass
charges, and a concurrent 90 days of imprisonment for Criminal Mischief.
3
No direct appeal was filed. The Defendant filed a PCRA petition, counsel was appointed,
and an amended PCRA petition was filed on May 23, 2017. This Court held a hearing on August
11, 2017. Subsequently, this Court granted the PCRA petition in part, and reinstated Defendant's
right to Direct Appeal. The Court did not reach the merits of the other claims.
On October 18, 2017 and October 20, 2017, the Defendant filed two timely Notices of
Appeal. Counsel identified the appeal on October 18, 2017 as the nunc pro tzinc direct appeal.
Defense Counsel then filed the October 20, 2017 appeal, and in a letter to this Court, advised that
the second appeal was to challenge the Court's "implicit denial" of Defendant's remaining
PCRA
ISSUES
Defendant's Concise Statement, received in chambers on November 9, 2017 for the direct
appeal, raises the following issues:
1. WHETHER, WHERE THE EVIDENCE DID NOT SUPPORT AN INFERENCE OF
INTENT TO COMMIT ANY CRIME WITHIN A DWELLING, APPELLANT'S
CONVICTION ON ATTEMPTED BURGLARY IS AGAINST THE WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.
2. WHETHER, WHERE THE EVIDENCE REVEALED THAT APPELLANT WAS NOT
THE PERSON WITHIN THE DWELLING DURING THE INITIAL ENCOUN TER
WITH THE VICTIM PURSUANT TO UNCONTESTED POLICE OFFICERS'
TESTIMONY, APPELLANT'S CONVICTIONS FOR CRIMINAL TRESPASS ARE
AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
3. WHETHER, WHERE THE EVIDENCE REVEALED THAT APPELLANT WAS NOT
THE PERSON WITHIN THE DWELLING DURING THE INITIAL ENCOUNTER
WITH VICTIM (sic) PURSUANT TO UNCONTESTED POLICE OFFICERS'
TESTIMONY, APPELLANT'S CONVICTION FOR ATTEMPTED BURGLARY IS
AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE AS THE
APPELLANT COULD NOT HAVE THEN RETURNED TO THE RESIDENCE AS
DETERMINED BY THE COURT.
4. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING
THE APPELLANT GUILTY OF ATTEMPTED BURGLARY ON THE SECOND,
SEPARATE INCIDENT WHEN THE COMMONWEALTH AMENDED THE BILLS
OF INFORMATION TO ADD ATTEMPTED BURGLARY AS AN INCHOATE
OFFENSE TO THE ORIGINAL BURGLARY CHARGE RELATED TO THE FIRST
INCIDENT, AS THE COMMONWEALTH STATED AT TRIAL THAT THE COURT
4
COULD FIND APPELLANT GUILTY OF THE ADDED ATTEMPTED BURGLARY
CHARGED EVEN WITHOUT THE AMENDMENT.
No concise statement order was filed for the second appeal. However, Defendant's claims are
clear. Defendant avers that this Court implicitly denied his remaining ineffective assistance of
counsel claims when this Court granted the PCRA petition in part and reinstated Defendant's
direct appeal rights.
ANALYSIS
I. WHETHER, WHERE THE EVIDENCE DID NOT SUPPORT AN INFERENCE OF
INTENT TO COMMIT ANY CRIME WITHIN A DWELLING, APPELLANT'S
CONVICTION ON ATTEMPTED BURGLARY IS AGAINST THE WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.
Defendant first challenges the weight and sufficiency of the evidence for the attempted
burglary conviction. Whether sufficient evidence exists to support the verdict is a question of
law; an appellate Court's standard of review is de novo and their scope of review is plenary.
Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (citation omitted). When
reviewing challenges to the sufficiency of the evidence, appellate courts evaluate the record in
the light most favorable to the Commonwealth as verdict winner, giving the prosecution the
benefit of all reasonable inferences to be drawn from the evidence. Commonwealth v. Duncan,
932 A.2d 226, 231 (Pa.Super.2007) (citation omitted). "Evidence will be deemed sufficient to
support the verdict when it establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt." Id. (quoting Commonwealth v.
Brewer, 876 A.2d 1029, 1032 (Pa.Super.2005)).
However, the Commonwealth need not establish guilt to a mathematical certainty, and it
may sustain its burden by means of wholly circumstantial evidence. Id In addition, the appellate
court may not substitute its judgment for that of the factfinder, and where the record contains
5
support for the convictions, they may not be disturbed. Id Lastly, the finder of fact is free to
believe some, all, or none of the evidence presented. Commonwealth v. Hartle, 894 A.2d 800,
804 (Pa.Super.2006). Commonwealth v. Smith, 2016 PA Super 187, 146 A.3d 257, 261-62 (Pa.
Super. Ct. 2016). 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. Commonwealth v. Mucci, 2016 PA Super 137, 143
A.3d 399, 409 (Pa. Super. Ct. 2016), reargument denied (Aug. 31, 2016).
Defendant challenges the sufficiency of the evidence supporting his attempted burglary
conviction. "A person commits an attempt when, with intent to commit a specific crime, he does
any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S.A. §
901(a). "A person commits the offense of burglary if, with the intent to commit a crime therein,
the person enters a building or occupied structure, or separately secured or occupied portion
thereof that is adapted for overnight accommodations in which at the time of the offense any
person is present." 18 Pa.C.S.A. § 3502 (a) (1) (ii). "Intent may be proved by direct evidence or
inferred from circumstantial evidence." Commonwealth v. Cannon, 297 Pa.Super. 106, 443 A.2d
322, 324 (1982). Thus, the Commonwealth must prove that the defendant had both the intent to
enter the building and the intent to commit a crime therein in order to sustain its burden of proof
of attempted burglary. Commonwealth v. Morgan, 265 Pa.Super. 225, --, 401 A.2d 1182, 1186
(1979); Commonwealth v, Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979). Often, intent
cannot be proven directly but must be inferred from examination of the facts and circumstances
of the case. Commonwealth v. Morgan, supra; Commonwealth v. Madison, supra.In Commonwealth v. Willett's, the Court found that striking a garage door with a rock was
a substantial step toward entering the garage. 277 Pa.Super. 538, 541-42, 419 A.2d 1280, 1281-
6
82 (1980). Regarding defendant's intent to commit a crime therein, the Court found that
"[v]iewing the totality of the circumstances, including appellant's attempt to break the padlock
on a garage, the late hour at which he made this attempt, and his flight upon arrival of the police,
we conclude that the Commonwealth presented adequate evidence of attempted burglary." Id.(internal cites omitted).
Defendant only challenges whether there was sufficient evidence to find that the
Defendant had the intent to commit a crime therein. In this case, the Defendant's intent to
commit a crime within the dwelling is clear when viewed in the totality of the circumstances.
The Defendant had already been inside the victim's home. He knew she was alone in the house.
Upon his return to the dwelling, he does not knock on the door, or do anything to request
permission to enter. Rather, the Defendant goes to a window of the home, where the blinds are
shut, pulls the glass window aside, and cuts the screen. In his possession are work gloves, one
leg of women's stockings, and a large jar of Vaseline. When confronted by the victim, the
Defendant is attempting to flee. He then gives the victim a changing story about him being there
to get his cell phone, which is brown or maybe blue. When police arrive, the Defendant flees
from them, hopping a fence and then fumbling and rushing to enter his home before police stop
him. The cutting of a window screen, the possession of items that can be used to conceal identity,
possession of Vaseline, flight when confronted by the victim and police, and a changing story of
why the Defendant was at the home is more than sufficient to establish that the Defendant had
the intent to commit a crime within the dwelling. There is little reason to attempt to enter a home
through a window, and then flee when caught, unless the person intends to commit a crime
therein.
7
Defendant also challenges the weight of the evidence to support the requisite intent
required for conviction of attempted burglary. Initially, the weight of the evidence claim has
been waived. The Defendant did not request, and this Court did not grant, reinstatement of
Defendant's post -sentence motion rights.' No post -sentence motion was filed. Defendant's
failure to raise his weight of the evidence claim in a post -sentence motion renders that claim
waived. 23 However, even if that claim were not waived, it would still fail.
An appellate court's standard of review when presented with a weight of the evidence
claim is distinct from the standard of review applied by the trial court. Appellate 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. Commonwealth v. Clay, 619 Pa. 423, 64 A.3d
1049, 1054-55 (2013) (quotation marks, quotations, and citations omitted). In order for an
appellant to prevail on a challenge to the weight of the evidence, "the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the court."
Commonwealth v. Sullivan, 820 A.2d 795, 806 (2003) (quotation marks and quotations omitted);
Commonwealth v. Smith, 2016 PA Super 187, 146 A.3d 257, 264-65 (Pa. Super. Ct. 2016);
Commonwealth v. Devine, 2011 PA Super 163, 26 A.3d 1139, 1146 (Pa. Super. Ct. 2011). A trial
1 Commonwealth v. Liston, 602 Pa, 10, 17-18, 977 A.2d 1089, 1093 (2009)(overturning an automatic right to have
the right to file post-sentence motions reinstated when such relief is not requested).
2
A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion
for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607.
3 "The record reveals that Appellant has failed to raise before the trial court a challenge to the weight of the evidence
in either an oral or written motion for a new trial pursuant to Pa.R.Crim.P. 607. Therefore, he has waived this claim.
Commonwealth v. Kinney, 2017 PA Super 65, 157 A.3d 968, 972 (Pa. Super. Ct. 2017), appeal denied, 239 MAL
2017, 2017 WL 3382657 (Pa. Aug. 7, 2017) (citing Commonwealth v. Lopez, 57 A.3d 74, 80-81 (Pa. Super. 2012)
(holding that, pursuant to Pa.R.Crim.P. 607, a challenge to the weight of the evidence must be raised with the trial
judge or it will be waived)).
8
court's denial of a motion for a new trial based on a weight of the evidence claim is the least
assailable of its rulings. Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008).
In this case, the evidence is uncontradicted. The evidence supporting the intent to commit
a crime within the dwelling, while circumstantial, is not vague or tenuous. The Defendant's
attempt to enter a dwelling through a window after cutting the screen is evidence of a nefarious
purpose. Coupled with the flight, changing story, and possession of items that can be used to
commit crime and conceal identity, there is no reasonable purpose the Defendant could have had
to enter the house. The Defendant's intent was criminal, and this claim is without merit.
II. WHETHER, WHERE THE EVIDENCE REVEALED THAT APPELLANT WAS NOT
THE PERSON WITHIN THE DWELLING DURING THE INITIAL ENCOUNTER
WITH THE VICTIM PURSUANT TO UNCONTESTED POLICE OFFICERS'
TESTIMONY, APPELLANT'S CONVICTIONS FOR CRIMINAL TRESPASS ARE
AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
Defendant next claims that his conviction for Criminal Trespass is against the weight and
sufficiency of the evidence because he is not the person in the initial encounter with the victim
"pursuant to uncontested police officers' testimony." However, this claim misstates the facts.
Nowhere in the transcript does any witness say that the Defendant was not the person who
entered the victim's home the first time. To the contrary, the uncontested testimony of the victim
was that the Defendant was the man in her home both times. The victim was "one hundred
percent" sure of her identification and was believed by this Court. The testimony ofpolice was
that the Defendant was not the man in the surveillance video they obtained from outside the
apartment complex. The fact that at some point in time the victim was outside her home behind a
man that matched the initial description to police, but was not the Defendant, does not mean the
Defendant was not the man inside her home. The victim said she tried to follow the man who
9
was in her bedroom, but was not able to locate him. Officer Stoltzfus described the video as
showing the victim following closely behind the man in the surveillance video. Therefore, the
video could not be showing the person who entered the victim's bedroom, as she was never able
to get that close to the man she tried to follow. Because Defendant's claim is factually incorrect,
based on the record and this Court's credibility determinations, it cannot be the basis for finding
the conviction against the weight or sufficiency of the evidence.
III. WHETHER, WHERE THE EVIDENCE REVEALED THAT APPELLANT WAS NOT
THE PERSON WITHIN THE DWELLING DURING THE INITIAL ENCOUNTER
WITH VICTIM (sic) PURSUANT TO UNCONTESTED POLICE OFFICERS'
TESTIMONY, APPELLANT'S CONVICTION FOR ATTEMPTED BURGLARY IS
AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE AS THE
APPELLANT COULD NOT HAVE THEN RETURNED TO THE RESIDENCE AS
DETERMINED BY THE COURT.
For the same reasons this Court has already stated, this claim is factually incorrect based
on the record, and cannot form the basis for finding the evidence insufficient or the verdict
against the weight of the evidence.
IV. WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING
THE APPELLANT GUILTY OF AT TEMPTED BURGLARY ON THE SECOND,
SEPARATE INCIDENT WHEN THE COMMONWEALTH AMENDED THE BILLS
OF INFORMATION TO ADD ATTEMPTED BURGLARY AS AN INCHOA I E,
OFFENSE TO THE ORIGINAL BURGLARY CHARGE RELATED TO THE FIRST
INCIDENT, AS THE COMMONWEALTH STATED AT TRIAL THAT THE COURT
COULD FIND APPELLANT GUILTY OF THE ADDED ATTEMPTED BURGLARY
CHARGED EVEN WITHOUT THE AMENDMENT.
Defendant's next claim is unclear. Assuming that the Defendant is challenging the
amendment of the information, and not some other matter, this Court will address the claim of
whether the Bills of Information were properly amended. Initially, issues not raised in the lower
court are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302. The
10
Commonwealth amended the Bills of Information to include an attempted burglary, and the
Defense did not object to that amendment. N T. Trial 6/6/16 p. 3. As there was no objection to
the amendment of the bills of information at the trial level, this claim is waived.
However, even if this claim were properly preserved, it is still meritless. While it is
unclear precisely what the Defendant is challenging, this Court assumes Defendant is
challenging the amendment of the bills on the belief that the bills of information originally
charged burglary for the first entry to the home, and that the amendment added attempted
burglary for the second attempted entry into the home. Again, this is belied by the record.
Specifically, as stated during the argument of the Commonwealth, the attempted burglary could
be found by this Court even without an amendment, as it is a lesser included offense. Clearly,
based on the Commonwealth's representations, the burglary charge was for the second entry into
the home, and the attempted burglary must therefore also be for the second attempted entry. 4
This is also supported by facts in the Complaint.
Moreover, even if the Defendant were correct that the first charge of Burglary was for the
first entry, and the amended count was for the second entry, there is no prejudice which would
render the amendment improper. Pennsylvania Rule of Criminal Procedure 564 permits the
amendment of the information "when there is a defect in form, the description of the offense(s),
the description of any person or any property, or the date charged, provided the information as
amended does not charge an additional or different offense." Pa.R.Crim.P. 564. "[T]he purpose
of Rule 564 is to ensure that a defendant is fully apprised of the charges, and to avoid prejudice
4 While the Defense argued that neither the first nor the second entry into the home were burglaries, that does not
mean the first entry was charged as a burglary. Rather, the defense was arguing why neither entry was criminal, and
that the second entry could not have been for a criminal purpose as the Defendant could have committed a crime
during the first entry if that were his intent.
11
by prohibiting the last minute addition of alleged criminal acts
of which the defendant is
uninformed." Commonwealth v. Sinclair, 897 A.2d at 1221 (citation omitted).
Superior Court]
When the Superior Court reviews "a grant to amend an information, [the
him. Where
will look to determine whether the defendant is fully apprised of the charges against
and arose out of
the crimes specified in the original information involve the same basic elements
the defendant is
the same factual situation as the crimes specified in the amended information,
no prejudice to
deemed to have been placed on notice regarding his alleged criminal conduct and
defendant results." Commonwealth v. Berry, 355 Pa.Super. 243, 513 A.2d 410 (1986);
Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979). If, however, the amended
are
provision alleges a different set of events, or the elements or defenses to the amended crime
that the
materially different from the elements or defenses to the crime originally charged, such
defendant would be prejudiced by the change, then the amendment is not permitted.
Commonwealth v. Baser, 2006 PA Super 365, ¶¶ 17-18, 914 A.2d 447, 453-54 (Pa, Super. Ct.
v. Davalos,
2006) (citing Commonwealth v. Sinclair, 897 A.2d at 1221 (quoting Commonwealth
779 A.2d 1190, 1194). The underlying purposes of the rule are "to ensure that a defendant
is
fully apprised of the charges, and to avoid prejudice by prohibiting the last minute addition of
alleged criminal acts of which the defendant is uninformed." Commonwealth v. Bricker, 882
A.2d 1008, 1019 (Pa. Super. Ct. 2005).
Pennsylvania courts apply the rule "with an eye toward its underlying purposes and with
a commitment to do justice rather than be bound by a literal or narrow reading
of the procedural
rules." Commonwealth v. Roser, 914 A.2d 447, 453 (Pa. Super. Ct. 2006). The Superior Court
the
has stressed that "we look more to substantial justice than to technicalities" when reviewing
validity of an amended information. Commonwealth v. Fuller, 396 Pa.Super. 605, 616, 579 A.2d
12its
879, 885 (1990). A defendant will be afforded relief when the trial court exercises
discretionary power to allow amendment of the information only if the defendant was prejudiced
by the amendment. Commonwealth v. Sinclair, 2006 PA Super 83, ¶ 8, 897 A.2d 1218, 1221 (Pa.
Super.Ct.2006). Factors for a court to consider in determining the existence of prejudice include:
(1) whether the amendment changes the factual scenario supporting the charges; (2)
whether the amendment adds new facts previously unknown to the defendant; (3)
whether the entire factual scenario was developed during a preliminary hearing; (4)
whether the description of the charges changed with the amendment; (5) whether a
change in defense strategy was necessitated by the amendment; and (6) whether the
timing of the Commonwealth's request for amendment allowed for ample notice and
preparation.
Corn. v. Witmayer, 2016 PA Super 164, 144 A.3d 939, 947 (Pa. Super. Ct. 2016),
reargument denied (Sept. 29, 2016), appeal denied sub nom. Commonwealth v. Witmayer, 781
MAL 2016, 2017 WL 1160791 (Pa, Mar. 28, 2017)
Further, if there is no showing of prejudice, amendment of an information to add an
additional charge is proper even on the day of trial, Commonwealth v. Womack 307 Pa.Super.
396, 453 A.2d 642 (1982). See, e.g., Commonwealth v. Page, 965 A.2d 1212, 1223-24 (Pa.
Super. Ct. 2009) (upholding amendment after close of evidence); Commonwealth v. Roser, 914
A.2d 447, 455 (Pa. Super. Ct. 2006) (immediately preceding closing arguments); Commonwealth
v. Fowler, 393 A.2d 844, 846-47 (Pa. Super. Ct. 1978) (at close of the Commonwealth's case).
Amendment can even occur after verdict, to conform the information to the proof given at trial,
"if the variance 'is not material or substantive and the (appellant) is not prejudiced thereby."'
Commonwealth v. Bruce, 326 A.2d 628, 629 (1974) (citation omitted). Finally, the mere
possibility the amendment of an information may result in a more severe penalty due to the
addition of charges is not, of itself, prejudice. Commonwealth v. Picchianti, 410 Pa.Super. 563,
567-68, 600 A.2d 597, 599 (1991) (citing Commonwealth v. Lawton, 272 Pa.Super. 40, 414
A.2d 658 (1979); Commonwealth v. Jones, 319 Pa.Super. 570, 466 A.2d 691 (1983)).
13
In Commonwealth v. Fuller, an "eleventh -hour" request made on the day of trial
to add aggravated assault charge to an attempted murder trial was upheld. Commonwealth
v.
Fuller, 579 A.2d 879, 885 (Pa. Super. Ct. 1990). The appellate court noted that although
aggravated assault was not a lesser -included offense of attempted murder, the charges arose out
of the same set of facts, involved the same basic elements, and the trial court had offered the
defendant an opportunity to request a continuance. Id In Grekis, the trial court permitted the
Commonwealth to amend the information to include three counts of solicitation to commit
involuntary deviate sexual intercourse because those charges were originally discussed in the
complaint but later omitted in the initial information. See Commonwealth v. Grekis, 601 A.2d
1284 (Pa.Super.1992).
In this case, the Defendant was fully apprised of the charges against him. The original
information included two counts of criminal trespass, one for each entry into the home. The
original information also charged burglary. The factual situation laid out in the original
information placed the Defendant on notice that he was being charged with two separate entries
into the victim's home. The elements for the attempted burglary charge are the same basic
elements for the burglary charge. There was clear notice to the Defendant, and the amendment of
information was proper.
However, even if the Superior Court were to find that the amendment was improperly
granted, the Defendant still has not proved prejudice. The underlying purposes of the rule are "to
ensure that a defendant is fully apprised of the charges, and to avoid prejudice by prohibiting the
last minute addition of alleged criminal acts of which the defendant is uninformed."
Commonwealth v. Bricker, 882 A.2d 1008, 1019 (Pa. Super. Ct. 2005). The Defendant was
always aware that he was charged with two separate entries into the home. When considering the
14
6 factors to determine whether there was prejudice, it is clear no prejudice existed in this case.
The amendment did not change the factual scenario underlying the charges nor did it add any
new facts. The description of the charges did not change with the amendment. The defense
strategy was also unaffected. The Defense was always aware that they were facing charges
stemming from two separate entries into the home. The Defense that the Defendant was a friend
of the victim's mother, that they were drinking buddies, and that he had left his phone behind is
unaffected by the amendment. The defense of consent to be in the home was not affected by the
amendment which alleged he was present intending to commit a crime therein. There was video
of the Defendant admitting that he was trying to enter the home the second time, but claiming to
be looking for his phone. The only defense could be that the Defendant had permission to be in
the home, and did not have a criminal intent. That was unchanged by the amendment. Thus there
was ample notice and the Defense was prepared for trial. Further evidence of a lack of prejudice
is that the defense specifically did not object. The Defense had always been on notice, and
therefore did not allege prejudice at the hearing. Because no preliminary hearing notes are
available, the Court is unable to assess that factor, but 5 of the 6 factors weigh against a finding
of prejudice.
Factually, this case would be similar to Grekis. In Grelds, the Commonwealth was
permitted to amend to add three charges which were discussed in the complaint but omitted in
the initial information. See Commonwealth v. Grekis, 601 A.2d 1284 (Pa.Super.1992). As two
separate entries were always alleged in the complaint, there was no prejudice in this case. As
such, even if Defendant is correct that the amendment was improper, it does not afford him
relief.
15
V. IMPLICIT DENIAL OF INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
Defendant's second appeal challenges this Court's alleged "implicit denial" of the
remaining PCRA claims. This appeal should be quashed. This Court did not "implicitly deny"
Defendant's remaining ineffective assistance of counsel claims. Rather, this Court did not reach
the merits of those claims. "When a PCRA court grants a request for reinstatement of direct
appeal rights nunc pro tune, it may address, but not "reach" the merits of any remaining claims.
Commonwealth v. Hoyman, 385 Pa.Super. 439, 561 A.2d 756, 758 (1989). This delicate
distinction has caused some confusion. See Commonwealth v. Pate, 421 Pa.Super. 122, 617 A.2d
754, 757-58 (1992) ("once the PCRA court finds that the petitioner's appellate rights have been
abridged, it should grant leave to file a direct appeal and end its inquiry there.") The PCRA court
may inquire, but its inquiry cannot result in an appealable disposition." Commonwealth v. Miller,
2005 PA Super 46, ¶ 3, 868 A.2d 578, 580 (Pa. Super. Ct. 2005). This Court could not have
reached the merits of Defendant's remaining ineffective assistance of counsel claims. Once
Defendant's direct appeal is decided, he is free to raise his ineffective assistance of counsel
claims in a PCRA petition at that time. 5 Because this Court did not reach the merits of the
remaining claims, there is no final order from which Defendant may appeal.
5Accordingly, we believe the best course of action is to reaffirm our decision in Grant and reiterate that, as a general
rule, claims of ineffective assistance of counsel will not be entertained on direct appeal. Moreover, we take this
opportunity to disapprove of any decisions of the Superior Court that are to the contrary. Commonwealth v. Liston,
602 Pa. 10, 18, 977 A.2d 1089, 1094 (2009)
16
CONCLUSION
For all of the aforementioned reasons, this Court's decision and order should be
AFFIRMED. Defendant's appeal on October 20, 2017 should be QUASHED.
Copies of the above Opinion
Mailed on 12 - i2 17 BY THE COURT:
By Interoffice Mail to:
Robert Falin, Esq., ADA
-
Anne Schools Court Administration
By First Class Mail to:
John Walko, Esq.
IRwf Sykes, Defendant
Judicial Secretary
17