Com. v. Vidra, J.

J-S40038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOHN VIDRA, :
:
Appellant : No. 1327 EDA 2015
Appeal from the Judgment of Sentence March 31, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0006717-2014;
CP-51-CR-0007097-2014; CP-51-CR-007098-2014
BEFORE: BOWES, MUNDY and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 28, 2016
John Vidra (“Vidra”) appeals from the judgment of sentence imposed
after he was convicted of three counts of criminal mischief, two counts of
criminal trespass, and one count each of burglary, attempted burglary, and
attempted criminal trespass.1 We affirm.
The trial court set forth the relevant factual and procedural history in
its Opinion, which we incorporate herein by reference. See Trial Court
Opinion, 11/5/15, at 1-6.
On appeal, Vidra presents the following issues for our review:
1. Did not the lower court violate the Rules of Criminal
Procedure and prejudice [Vidra] by consolidating three
unrelated burglary prosecutions into a single trial?
2. As to CP 51-CR-0006717-2014 [(hereinafter, “Case No.
6717”)], [i.e.,] the incident at 3053 Agate Street
1
See 18 Pa.C.S.A. §§ 3304(a)(2), 3503(a)(1)(ii), 3502(a)(4), 901(a).
J-S40038-16
[(hereinafter, “the Agate Property”)], did not the lower
court violate the corpus delicti rule[,] as the
Commonwealth failed to establish that a crime had
occurred, as required for the admission and
consideration of [Vidra’s] statement?
3. In [Case No. 6717, i.e.,] the incident at [the] Agate
[Property], and CP 51-CR-0007097-2014 [(hereinafter,
“Case No. 7097”)], i.e.,] the incident at 3224 Miller
Street [(hereinafter, “the Miller Property”)], was not the
evidence insufficient to sustain the convictions for
criminal trespass, graded as a felony of the second
degree, because there was no evidence that [Vidra]
broke into either property?
4. In [Case No. 7097, i.e.,] the incident at [the] Miller
[Property], was not the evidence insufficient to sustain a
conviction for criminal mischief, a felony of the third
degree, where [Vidra] was seen exiting a property,
which was then left unsecured, and the next day[,]
found to have been ransacked?
5. As to CP 51-CR-0007098-2014 [(hereinafter, “Case No.
7098”)], [i.e.,] the incident at 3471 Frankford Avenue
[(hereinafter, “the Frankford Property”)], was not the
evidence insufficient to sustain a conviction for
attempted burglary, as there was no intent to commit a
crime therein?
Brief for Appellant at 3-4.
Vidra first argues that the trial court erred and violated the Rules of
Criminal Procedure by consolidating the three separate cases (Case Nos.
6717, 7097, and 7098). See id. at 13-24.
The principles governing our review are well settled:
In reviewing a trial court decision to consolidate or to sever
offenses for trial, our standard is abuse of discretion. Offenses
charged in separate informations may be tried together if … “the
evidence of each of the offenses would be admissible in a
separate trial for the other and is capable of separation by the
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[fact-finder] so that there is no danger of confusion[.]”
Pa.R.Crim.P[.] 582(A)(1)[(a)]. The court has discretion to order
separate trials if “it appears that any party may be prejudiced”
by consolidating the charges. Pa.R.Crim.P[.] 583.
Our Supreme Court has established a three[-]part test,
incorporating these two rules, for deciding the issue of joinder
versus severance of offenses from different informations. The
court must determine
[w]hether the evidence of each of the offenses would be
admissible in a separate trial for the other; whether such
evidence is capable of separation by the [fact-finder] so
as to avoid danger of confusion; and, if the answers to
these inquiries are in the affirmative, whether the
defendant will be unduly prejudiced by the consolidation
of offenses.
Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005) (some
citations omitted); see also Commonwealth v. Robinson, 864 A.2d 460,
481 (Pa. 2004) (stating that “[w]hether or not separate indictments should
be consolidated for trial is within the sole discretion of the trial court and
such discretion will be reversed only for a manifest abuse of discretion or
prejudice and clear injustice to the defendant.”).
Vidra points out that the trial court held that evidence in the three
separate cases involved herein was admissible in a consolidated trial, under
an exception to our Rule of Evidence generally prohibiting the admission of
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other crimes, wrongs, or acts, Pa.R.E. 404(b),2 as evidence of a “common
scheme, plan or design” (hereinafter, “the common plan exception”). See
Brief for Appellant at 10-12.
In the context of consolidation involving the common plan exception,
our Pennsylvania Supreme Court has stated that
[w]hile evidence of distinct crimes is inadmissible solely to
demonstrate a defendant’s criminal tendencies, such evidence is
admissible … to show a common plan, scheme or design
embracing commission of multiple crimes, or to establish the
identity of the perpetrator, so long as proof of one crime tends
to prove the others. This will be true when there are shared
similarities in the details of each crime.
Robinson, 864 A.2d at 481 (citation omitted). “To establish similarity,
several factors to be considered are the elapsed time between the crimes,
2
Rule 404(b) provides, in relevant part, as follows:
(b) Other crimes, wrongs, or acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity
therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or
accident.
(3) Evidence of other crimes, wrongs, or acts proffered under
subsection (b)(2) of this rule may be admitted in a criminal case only
upon a showing that the probative value of the evidence outweighs
its potential for prejudice.
Pa.R.E. 404(b)(1)-(3).
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the geographical proximity of the crime scenes, and the manner in which the
crimes were committed.” Id. (citation omitted).
Vidra asserts that the three separate incidents were not sufficiently
similar for the following reasons:
 In Case No. 6717 (the Agate Property), police observed Vidra
removing copper wire by hand; he had no tools. Brief for
Appellant at 17. In contrast, the Miller Property (Case No. 7097)
“was burglarized in a sophisticated way[,]” in that “there was a
tall ladder placed against the second story window[, and] the
burglar used tools to cut all of the copper pipes from the
basement[.]” Id.
 “In [Case No. 6717], [] Vidra was found inside the [Agate
Property] at 11:00 p.m. In contrast, the other two cases
occurred in the morning.” Id. at 18 (citation omitted).
 “Each of the homes had features that suggested they were
vulnerable to burglary, but this is a generic trait of burglaries in
general, and does not suggest a single perpetrator.” Id.
Additionally, Vidra contends that the consolidation was highly prejudicial to
him, particularly because of the admission into evidence of Vidra’s
inculpatory statement to police at Case No. 6717, and the fact that he was
arrested in that case while extracting copper wire from the Agate Property.
Id. at 24; see also id. (asserting that “[b]y granting consolidation, [Vidra’s]
admission in … [C]ase [No. 6717] was improperly used to bolster the other
two, far weaker cases.”).
Upon review, we discern a shared similarity in the details of the crimes
that supports consolidation of the three separate cases. The crimes
occurred in the same general section of northeast Philadelphia (within a 1.4-
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mile radius), and were committed within one month of each other. See
N.T., 10/28/14, at 5-7. Moreover, in each incident, the perpetrator targeted
houses that appeared from the outside to be vacant. Id. at 5-6. In similar
factual circumstances, this Court has held that the similarity of the offenses
supported consolidation. See Commonwealth v. Armstrong, 74 A.3d
228, 234 (Pa. Super. 2013) (upholding the trial court’s consolidation of two
attempted burglary indictments against the defendant, where the separate
crimes “took place in close temporal and geographic proximity,” (i.e., within
two months of each other, and in the same section of Philadelphia), and
there were similarities in the victims the defendant targeted and the means
he employed in attempts to break into their apartments); Commonwealth
v. Janda, 14 A.3d 147, 156 (Pa. Super. 2011) (affirming trial court’s
consolidation of two cases against defendant for nine separate home
burglaries that occurred over the span of five months, within an
approximately five-mile radius, and the targeted homes were all situated
such that they were not visible from the road); see also Robinson, supra.
Additionally, the trial court, which sat as the fact finder at Vidra’s
consolidated trial, observed in its Opinion that
the evidence concerning each alleged victim was readily
separable by the court …, as each victim/witness testified to the
distinctive events supporting the respective charges,
corroborated by other distinguishable evidence. Moreover,
[Vidra] was charged with numerous offenses and was only
convicted of some of the charges against him. The trier-of-fact
clearly was able to separate and distinguish each offense.
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Trial Court Opinion, 11/5/15, at 9. We agree with the trial court’s
determination that Vidra was not unduly prejudiced by consolidation. See
id.; see also Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa. Super.
2014) (stating that “[e]ven if prejudicial information was considered by the
trial court, a judge, as fact finder, is presumed to disregard inadmissible
evidence and consider only competent evidence.”) (citation omitted).
Finally, consolidating the cases against Vidra also served the interest
of judicial economy. “The general policy of the law is to encourage …
consolidation of indictments when judicial economy can thereby be affected,
especially when the result will be to avoid the expensive and time-
consuming duplication of evidence.” Commonwealth v. Patterson, 546
A.2d 596, 600 (Pa. 1988). Any possibility of prejudice to Vidra did not
outweigh this consideration. See Commonwealth v. Morris, 425 A.2d
715, 718 (Pa. 1981) (stating that “in determining whether the trial court
abused its discretion, this Court must “weigh the possibility of prejudice and
injustice caused by the consolidation against the consideration of judicial
economy.”).
Accordingly, we conclude that the trial court properly exercised its
discretion in consolidating the three separate cases, and Vidra’s first issue
does not entitle him to relief.
In his second issue, Vidra contends that the trial court erred by
admitting into evidence the inculpatory statement he made to police when
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he was arrested inside of the Agate Property, in violation of the corpus delicti
rule. Brief for Appellant at 25 (citing, inter alia, Commonwealth v. Ware,
329 A.2d 258, 274 (Pa. 1974) (summarizing the corpus delicti rule as
follows: “a criminal conviction may not be based on the extra-judicial
confession or admission of the defendant unless it is corroborated by
independent evidence establishing the corpus delicti.”). Vidra maintains that
(1) his burglary conviction concerning the Agate Property “was based upon
[his] own statement that he did not live in the property, was homeless, and
was pulling out wire to get something to eat and go to rehab”; and (2) “the
property [owner] was not called as a witness, or even identified.” Brief for
Appellant at 25. According to Vidra,
[the] evidence did not establish that a crime was being
committed by a preponderance of the evidence or beyond a
reasonable doubt. There were no signs of forced entry to the
[Agate P]roperty. The [Agate P]roperty was vacant, with “things
scattered all over the floor,” which is consistent with demolition
or renovations. Although [] Vidra was pulling wire from the wall,
this did not establish the corpus delicti. Pulling wiring from a
wall is consistent not only with crime, but with the process of
making a home safe, by removing faulty or dangerous wiring.
Id. at 28.
In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the standard
of review and the law concerning the corpus delicti rule, thoroughly
addressed Vidra’s claim, and determined that the Commonwealth proved the
corpus delicti by both a preponderance of the evidence and beyond a
reasonable doubt. See Trial Court Opinion, 11/5/15, at 10-12. As the trial
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court’s rationale and determination is supported by the record and the law,
we affirm on this basis with regard to Vidra’s second issue. See id.
In his third issue, Vidra argues that the Commonwealth failed to
present sufficient evidence to support his two convictions of criminal
trespass in Case Nos. 6717 and 7097, graded as second-degree felonies
(hereinafter referred to as “trespass – F2”). Brief for Appellant at 30.
Specifically, Vidra contends that there was no evidence presented that he
“broke into” either the Agate Property or the Miller Property, which is a
necessary element of trespass – F2.3 See id. at 30-33. Specifically, Vidra
asserts, there was no evidence that the doors to either property were
3
The criminal trespass statue, 18 Pa.C.S.A. § 3503, provides, in relevant
part, as follows:
(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.
(2) An offense under paragraph (1)(i) is a felony of the third degree,
and an offense under paragraph (1)(ii) is a felony of the second
degree.
(3) As used in this subsection:
“Breaks into.” —To gain entry by force, breaking, intimidation,
unauthorized opening of locks, or through an opening not designed
for human access.
Id. § 3503(a) (emphasis added).
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locked, or that Vidra entered by force, breaking, or through an opening not
designed for human access. See id. at 31-33. Thus, Vidra urges, the
convictions should be graded as third-degree felonies, under section
3503(a)(1)(i). Id. at 30.
The standard we apply in reviewing the sufficiency of the
evidence is whether[,] viewing all the evidence admitted at trial
in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
the above test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note that the
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. 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. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. … Finally, the
finder of fact[,] while passing upon the credibility of witnesses
and the weight of the evidence produced[,] is free to believe all,
part or none of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted). On a sufficiency of the evidence claim, the Commonwealth is
entitled to all reasonable inferences arising out of the evidence presented.
Commonwealth v. Lyons, 79 A.3d 1053, 1062 (Pa. 2013).
In its Opinion, the trial court addressed and rejected Vidra’s sufficiency
challenge to his conviction of trespass – F2 concerning the Miller Property
(Case No. 7097). See Trial Court Opinion, 11/5/15, at 14-16. We affirm
based on the trial court’s sound rationale with regard to this conviction, see
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id., with the following addendum concerning Case No. 6717 (the Agate
Property).
Officer Patrick Gereaghty (“Officer Gereaghty”) found Vidra inside of
the Agate Property at approximately 11:00 p.m. N.T., 12/18/14, at 12. On
the front door of the Agate Property was a sign stating that it was scheduled
to be sold at a sheriff’s sale. Id. Vidra was covered in drywall dust and
ripping electric wiring out of the wall. Id. at 14. He admitted to Officer
Gereaghty that he was stealing the wiring and that he did not have
permission to be there. Id. at 15. We acknowledge that there was no direct
evidence presented that Vidra had forced entry into the Agate Property. See
id. at 25. However, the trial court, as the fact-finder, was entitled to
reasonably infer that Vidra had “broken into” the Agate Property, see
Lyons, supra, given that (1) the crime occurred late at night, inside of a
house that was vacant and scheduled to be sold;4 and (2) Vidra admitted
that he was there without permission to steal wiring. Accordingly, the trial
court properly rejected Vidra’s sufficiency challenge to his convictions of
trespass – F2.
In his fourth issue, Vidra contends that the evidence is insufficient to
sustain his conviction, at Case No. 7097 (the Miller Property), of criminal
mischief. Brief for Appellant at 34-36. Vidra points out that the owner of
4
Officer Gereaghty testified that he had attempted to reach the owner of the
Agate Property via telephone, by calling a phone number listed on the
sheriff’s sale sign. N.T., 12/18/14, at 24. No one answered the calls. Id.
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the Miller Property, Kathleen Reick (“Reick”), discovered, on May 18, 2014,
that the Miller Property had been ransacked sometime after her contractor
had last been at the Miller Property (and locked the doors), on May 12,
2014. Id. at 34. Vidra points out Reick’s testimony that there was a
previous break-in at the Miller Property, and, according to Vidra, “[a]nother
person could have been inside the [Miller P]roperty and damaged it before
Vidra entered” on May 17, 2014. Id. at 35; see also id. (pointing out that
the police officer who arrested Vidra on May 17, 2014, did not thereafter
secure the Miller Property, and asserting that the damage to the Miller
Property, therefore, could have been caused by someone after Vidra was in
custody). Additionally, Vidra asserts that “the nature of the damage in this
case suggests that it was not [] Vidra who caused the damage. [Reick]
found that all of the copper pipes had been cut out of the basement, and
removed from the house[.] This is a task that requires tools, which [] Vidra
did not have.” Id. (internal citation omitted).
In its Opinion, the trial court discussed the applicable law, addressed
Vidra’s claim, and determined that the evidence was sufficient for the fact-
finder to find him guilty of criminal mischief beyond a reasonable doubt.
See Trial Court Opinion, 11/5/15, at 16-18. We affirm based on the trial
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court’s rationale with regard to this issue. See id.5
In his final issue, Vidra argues that in Case No. 7098 (the Frankford
Property), the evidence was insufficient to sustain his conviction of
attempted burglary6 because the Commonwealth failed to prove beyond a
reasonable doubt that he intended to commit a crime inside of the Frankford
Property. See Brief for Appellant at 37-38. Vidra points out that the owner
of the Frankford Property, Teresa Todd (“Todd”), testified that (1) she heard
a loud noise coming from her private alleyway; (2) then saw Vidra run
through her yard and climb her fence to leave the Property; and (3)
thereafter discovered that her basement window, which was adjacent to the
alleyway, had been broken.7 Id. at 38. According to Vidra, however, this
evidence was insufficient to prove that he intended to commit a crime inside
of the Frankford Property because (1) he never entered the residence; and
(2) the police did not find any stolen property or tools on his person when
they arrested him shortly after Todd called the police. Id.
5
Moreover, as noted above, the trial court properly found that Vidra was
involved in a common scheme of targeting vacant rowhomes in the area and
ransacking them for copper materials contained therein.
6
Vidra does not challenge his convictions at Case No. 7098 of attempted
criminal trespass and criminal mischief. Brief for Appellant at 38.
7
Concerning the damage, Todd stated that Vidra had removed an outer
screen over the basement window, and then pushed on the window with
such force that it broke the lock and the wooden frame around the window.
See N.T., 12/18/14, at 58, 60-61.
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In support of his claim, Vidra relies upon our Supreme Court’s decision
in Commonwealth v. Wilamowski, 633 A.2d 141 (Pa. 1993). In that
case, the defendant kicked in a person’s garage door and fled from the
scene. Id. at 142. The Supreme Court held that the evidence was
insufficient to convict the defendant of attempted burglary, reasoning as
follows:
Although the Commonwealth’s facts prove that [the defendant]
kicked at the door and tore it off of its hinges, there was no
additional evidence to establish that he possessed an intent to
commit a crime inside. He broke the door and apparently
walked away from it without any showing that he entered the
structure or attempted to enter. His path into the structure was
now unobstructed, but he chose to walk away and go to the
neighbor’s house to ask for directions. Evidence of [the
defendant’s] subsequent actions in flight is also insufficient,
standing alone, to lend any support to a permissible inference of
intent to commit a crime inside since the flight is consistent with
his efforts to avoid apprehension for his conduct of breaking
down the door.
Id. at 144 (emphasis added); see also Commonwealth v. Alston, 651
A.2d 1092, 1094 (Pa. 1994) (explaining Wilamowski by stating that “[w]e
held that a ‘totality of the circumstances’ approach is more appropriate when
evaluating the Commonwealth’s evidence supporting the intent element [for
a conviction of attempted burglary]. We then held that more than merely
breaking a door or window is required to support an inference of intent to
commit a crime inside.”) (emphasis in original).
In its Opinion, the trial court set forth the applicable law, addressed
Vidra’s claim, and determined that the evidence was sufficient for the fact-
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finder to find that Vidra had the necessary intent for a conviction of
attempted burglary. See Trial Court Opinion, 11/5/15, at 18-20. We affirm
based on the trial court’s rationale with regard to this issue, see id., with
the following addendum.
Contrary to Vidra’s claim, Wilamowski is distinguishable and
unavailing. In contrast to Wilamowski (where the defendant had departed
after breaking the garage door, despite having an unobstructed path into the
structure), here, the fact-finder could reasonably infer, from the totality of
the circumstances, that Vidra fled the Frankford Property before entering it,
not because he had no intent to enter it, but because he had been
discovered breaking-in. After Vidra broke the basement window to the
Frankford Property, a nearby dog began barking. N.T., 12/18/14, at 56, 73.
According to Todd, after hearing the barking, Vidra “climbed the fence [in
her backyard], and he was booking[, i.e., running,] because I think he
thought the dog was in my house, but the dog was in the next yard.” Id. at
73. Additionally, Todd stated that the window that Vidra had broken was
inaccessible without climbing over a stockade fence, see id. at 74-75, which
could further support a reasonable inference that Vidra broke the window
with an intent to commit a crime inside the residence (and not merely for
vandalism purposes). Finally, unlike the situation in Wilamowski, here,
Vidra was involved in a common scheme of breaking into homes that
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appeared from the outside to be vacant, in the same neighborhood in which
the Frankford Property was located. See supra (issue 1).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2016
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Circulated 05/26/2016 03:49 PM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF CP-51-CR-0006717-2014
PENNSYLVANIA CP-51-CR-0007097-2014
CP-51-CR-0007098-2014
vs.
SUPERIOR COURT
JOHN VIDRA NO. 1327 EDA 2015
OPINION
. IL
NOV 5 2015
CP-51-CR-0006717-2014 Comm V
Opinion . v. rdra, John H. Criminal Appeals Unit
First Judicial District of PA
MELCHIORRE, J. llll lllllll /I/l/l
llll llll7366332821 NOVEMBER 5, 2015
I. FACTS AND PROCEDURAL HISTORY
On or about May 28, 2014, the Defendant, John Vidra, was arrested and was charged
with Burglary', Criminal Attempt - Burglary', Criminal Trespass', Criminal Attempt-Criminal
Trespass", Theft by Unlawful Taking/Disposition and Criminal Mischief for incidents that
occurred at three (3) residences over a four (4) week period of time.
I
18 Pa. C.S.A. § 3502.
2
18 Pa. C.S.A. § 901.
3
18 Pa. C.S.A. § 3503.
4
18 Pa. C.S.A. § 3503.
.,.. ...•
!I ' 1 .,: ~)
At CP-51-CR-0006717-2014, the Defendant was arrested and was charged with Burglary,
Criminal Trespass, Theft by Unlawful Taking/Disposition and Criminal Mischief for events that
occurred on April 28, 2014 at 3053 Agate Street in the City and County of Philadelphia.
At CP-51-CR-0007097-2014, the Defendant was arrested and was charged with Burglary,
Criminal Trespass, and Criminal Mischief for events that occurred on May 17, 2014 at 3224
Miller Street in the City and County of Philadelphia.
At CP-51-CR-0007098-2014, the Defendant was arrested and was charged with Criminal
7,
Attempt - Burglary Criminal Attempt -Criminal Trespass, and Criminal Mischief for events that
occurred on May 27, 2014 at 3471 Frankford Avenue in the City and County of Philadelphia.
A waiver trial was conducted before this court on December 18, 2014. The facts viewed
in the light most favorable to the Commonwealth as the verdict-winner established that on April
28, 2014, the Defendant was found by Police Officer Patrick Gereaghty and his partner, Officer
Lang (first name not given), removing copper wire and piping from a wall in the dining room
· area of 3053 Agate Street. The officers had responded to this iocation because of a report of a
burglary in progress. Officer Gereaghty testified that when he entered the residence he observed
the Defendant in the dining room area covered in dust, wearing gloves, pulling wire from the
wall that was broken, not cut. Officer Gereaghty stated that the house appeared abandoned, that
there was a bed in the front bedroom, and things were scattered around the second floor like
somebody had just moved out. (N.T. 12/18/14, pp. 12-16, 28). Before he entered the house,
Officer Gereaghty observed a sheriff's sign posted on the interior door with a date of May 2014
5
18 Pa. C.S.A. § 3921.
6
18 Pa. C.S.A. § 3304 ..
7
18 Pa. C.S.A. § 90 l.
2
i
and a phone number. (N.T. 12/18/14, p. ts). Officer Gereaghty stated that the clothes the
I
Defendant was wearing did not indicate thatJ he was a "worker" working on the property. Officer
i
Gereaghty did not see the Defendant with any tools. No tools were found on the Defendant and
Officer Gereaghty did not investigate whq owned the property. (N.T. 12/18/14, pp. 24-26).
Officer Gereaghty stated that the Defendanti told him the he did not live in the house and that he
I
was there pulling the wire so that he could iget something to eat; he also told the officer that he
i
'
was going to rehab the next day. (N.T.I 12118/14, p. 29). Officer Gereaghty placed the
Defendant under arrest.
On CP-51-CR-0007097-2014, Kathleen Reick, the owner of the premises (3224 Miller
l
Street), testified that her property was in the process of being rehabbed on May 17, 2014. The
front door was boarded and bolted because bf a previous break-in. She went around the back of
the property and noticed a ladder leaning Jp against the second floor window. The back door
was unlocked and unbolted. Based on what she observed, Ms. Reick called the police to
investigate but they were unable to come a~ "that time. Ms. Reick contacted her father, two (2)
nephews, and two (2) friends who entered !the property with her. When she entered, she was
unable to tum on the lights because the wires had been cut. Ms. Reick stated that all the wires
had been cut and the copper pipe in the basement was missing. (N.T. 12/18/14, pp. 36-39). On
re-direct, Ms. Reick testified that she did not know the Defendant and did not give him
permission to be in her house. Moreover, i she did not give anyone permission to remove the
copper pipes or wiring from the house. Ms.: Reick stated that she had hired a general contractor
to rehab the property and when the contractor left on May 12th, the water and electricity worked
and the door had been dead bolted. (N.T. 12Yl 8/14, pp. 51-52).
3
Police Officer Keith Stefankiewicz ~estified that on May 17, 2014, he responded to 3224
l
Miller Street because of a report of a burglclry in progress. As a result of speaking to a neighbor
I •
i
at that location, Officer Stefankiewicz was allowed to walk through the man's house to his
I -
backyard where he observed the Defendant! walking out of the back door of 3224 Miller Street.
I
Officer Stefankiewicz asked the Defendan~ if he lived there and the Defendant responded no.
i
Officer Stefankiewicz climbed over the fence and handcuffed the Defendant and placed him
!
under arrest. Officer Stefankiewicz was tinable to contact the owner of the property. (N.T.
I
12/18/14, pp. 40-42). On cross-examination, Officer Stefankiewicz testified that he arrested the
I
Defendant at that time on only an outstanding warrant because he was unable to contact the
1
I
owner of 3224 Miller Street. No tools or weapons were recovered from the Defendant. (N.T.
!
12/18/14, pp. 44-50).
I
On CP-51-CR-0007098-2014, Teresa Todd, the owner of the premises, testified that on
I
May 27, 2014, at approximately 10:45 a.rn., she was inside her residence at 3471 Frankford
!
j
Avenue when she her a loud noise in the alleyarea of her property {this is a private alley that is
!
hers, it is not shared with her neighbor). S~e looked out the dining room window but couldn't
I
I
see into the alley because a large air conditioning unit was blocking her view. The dog next door
I
started to bark so she looked out the window of her back door. She observed a man (later
I
identified as the Defendant) coming from the alley area, across her yard, then over her fence.
!
I
Ms. Todd observed the Defendant go pass her house, look at it, then walk down the street toward
!
1
Webster Middle School. Ms. Todd called the police and when the detective arrived they went
!
into her backyard where she noticed a wide ipen window. There were little pieces of wood from
I
the window in the alley area and in her cellar; the window lock was found in the cellar, which
l
i
had been intact earlier. A "For Sale" had been in her window. Ms. Todd testified that she did
i
4
not give the Defendant permission to enter.her yard or to do anything with her window. (N.T.
12/18/14, pp. 55-61, 72-75).
Police Officer Paul Groves testified that he and his partner Officer Morton (first name not
given) arrested the Defendant on May 27, 2014 at Webster Middle School after meeting with the
complainant, Ms. Todd. (N.T. 12118/14, pp. 81-82). On cross-examination, Officer Groves
testified that the Defendant was walking with another male when he was arrested. Nothing was
recovered from either of them. (N.T. 12/18/14, pp. 84-85).
A stipulation by and between counsel was entered indicating that if Detective McCullogh
(first name not given) testified, he would say that he was investigating a potential burglary at
3224 Miller Street; that he interviewed the complainant, Kathleen Reick. Detective McCullogh
wrote the affidavit of probable cause and arrested the Defendant who had previously been
arrested by Officer Stefankiewicz on May 17, 2014 at 3224 Miller Street. (N.T. 12/18/14, p. 86).
The Defendant did not testify.
At the conclusion of the trial, the : Defendant was found guilty" of burglary, criminal
trespass, theft by unlawful taking and disposition, and criminal mischief on CP-51-CR-0006717-
2014. On CP-51-CR-0007097-2014, the Defendant was found guilty of criminal trespass and
criminal mischief. On CP-51-CR-0007098-2014, the Defendant was found guilty of criminal
attempt - burglary, criminal attempt - criminal trespass, and criminal mischief. Sentencing was
deferred pending a presentence investigation.
On March 31, 2015, the Defendant was sentenced to an aggregate term of five (5) to ten
(10 years of incarceration followed by five (5) years ofprobation.8 The Defendant filed a Notice
8
The Defendant was sentenced to a term of incarceration of three (3) to six (6) years on the attempted
burglary charge to be followed by a term of probation of five (5) years on CP-5 l-CR-0007098-2014. On CP-5 l-
CR-0007097~2014, the Defendant was sentenced to alconsecutive term ofone (1) to two (2) years of incarceration
on the criminal trespass conviction. On CP-51-CR-0006717-2014, the Defendant was sentenced to a consecutive
5
of Appeal to the Superior Court. Following.receipt of the notes of testimony, this court filed an
Order requesting the Defendant to file a Statement ofMatters Complained of on Appeal pursuant
to Pa. R.A.P. Rule 1925(b). On August 17, 2015, a statement was filed on behalf of the
Defendant.
II. ISSUE ON APPEAL
In summary, the Defendant raises the following issues on appeal:
1. The lower court erred by consolidating three unrelated burglary cases in to a
single trial.
2. In CP-51-CR-0006717-2014, the lower court erred and violated the corpus delicti
rule when it admitted the Defendant's statement into evidence even though the
Commonwealth failed to establish that a crime had been committed. Also, the
evidence was insufficient to· prove, beyond a reasonable doubt, that the Defendant
was guilty of criminal trespass because there was no evidence of him breaking
into the property.
II .
3. In CP-51-CR-0007097-2014, the evidence was insufficient to prove, beyond a
•
. II
reasonable doubt, that the Def~ndant was guilty of criminal trespass because there
I
was no evidence of him bre,king into the property. The evidence was also
insufficient to prove criminalmischief where the Defendant was only seen exiting
!
. I
the property; the property was I then left unsecured and found to be ransacked the
next day. .
i
term of one (I) to two (2) years of incarceration on the burglary conviction. No further sentence was imposed on the
remaining counts.
6
4. In CP-51-CR-0007098-2014, the evidence was insufficient to prove, beyond a
reasonable doubt, that the Defendant was guilty of all charges as there was no
intent to commit a crime therein and the evidence did not establish that the
Defendant attempted to break into the house.
III. DISCUSSION
The Defendant first argues that the court erred and abused its discretion by granting the
Commonwealth's motion to consolidate the multiple burglaries thereby prejudicing him and
denying him due process of law and a fair trial with respect to each case in violation of both the
Pennsylvania and United States Constitutions. This argument fails.
It is well settled in this Commonwealth that offenses charged in separate informations
may be tried to together if" ... the evidence of each of the offenses would be admissible in a
separate trial for the other and is capable of separation by the [ fact finder] so that there is no
dangerofcorifusiori." Commonwealth v. Judd, 2006 Pa. Super. 84; 897 A.2d·1224·;· 1230 (20-06)
citing Pa.R.Crim.P. Rule 582 (A) (1) (a), 42 Pa.C.S.A. The Defendant argues that the court
abused its discretion in denying his motion to separate or sever each case rather than to present
this matter as a single case ultimately involving three different complainants.
Several commentators have noted that under Rule 404 of the Pennsylvania Rules of
Evidence, case law applying the "common scheme or plan" exclusion has been called into doubt
based on the fact that it is not listed in Rule 404 (b) (2).9 Judd, supra. See Leonard Packel and
9
Rule 404. Character evidence bot admissible to prove conduct; exceptions; other crimes.
* * * *
(b) Other crimes, wrongs, or acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order
7
Anne Bowen Poulin, Pennsylvania EvideJce § 404-9 (a) (2d ed. 1999); Edward D. Ohlbaum,
!
Ohlbaum on the Pennsylvania Rules of .i.., § 404.22[2]-[4] (2003-2004 ed.). However,
the Pennsylvania Supreme Court has repeatedly reiterated the settled rule of admissibility
regarding evidence which demonstrates a defendant's criminal tendencies by way of a common
plan, scheme or design:
[While] evidence of distinct crimes is inadmissible solely to
demonstrate a defendant's criminal tendencies[,] such evidence is
admissible ... to show a common plan, scheme or design embracing
commission of multiple crimes, or to establish the identity of the
perpetrator, so long as proofof one crime tends to prove the others.
This will be true when there [are shared similarities in the details of
each crime.
Judd, 897 A.2d at 1231 citing Commonwea:1th v. Robinson, 581 Pa. 154, 190, 864 A.2d 460, 481
(2004), cert. denied, 126 S. Ct. 559, 163 L. Ed. 2d 470, 74 USLW 3273 (2005) quoting
Commonwealth v. Keaton, 556 Pa. 442, 457, 729 A.2d 529, 537 (1999), cert. denied, 528 U.S.
l
1163, 120 S. Ct. 1180, 145 L. Ed. 2d 1087 ((2000).
This type of evidence is also admissible to establish the identity of the person charged:
"To prove other like crimes by the accused! so nearly identical in method as to earmark them as
the handiwork of the accused." Commonwealth v. Rush, 538 Pa. 104, 113, 646 A.2d 557, 560
(1994) quoting McCormick, Evidence, § 1;9; 0 (1972 2d ed.). In the case sub Judice, however,
to show action in conformity therewith.
(2) Evidence of other crimes, wrongs, or ~cts may be admitted for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
(3) Evidence of other crimes, wrongs, or acts proffered under subsection (b)(2) of this rule may be
admitted in a criminal case only upon a showing that the probative value of the evidence outweighs its
potential for prejudice.
( 4) In criminal cases, the prosecution shall provide reasonable notice in advance of trial, or during trial if
the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends
1
to introduce at trial.
8
identity was not at issue. There is no suggestion from the defense that any of the witnesses had
misidentified the Defendant. The defense in this case was a denial of the criminal conduct, and
the only issue truly presented to the court was whether the trier-of-fact believed the
Commonwealth witnesses.
Here, the charges against the Defendant constituted an ongoing course of very similar
break-ins during a short period of time in the same general locale. Moreover, the evidence
concerning each alleged victim was readily separable by the court as the fact finder, as each
victim/witness testified to the distinctive events supporting the respective charges, corroborated
by other distinguishable evidence. Moreover, the Defendant was charged with numerous
offenses and was only convicted of some of the charges against him. The trier-of-fact clearly
was able to separate and distinguish each offense.
Contrary to the Defendant's arguments, there was no confusion on the part of the trier-of-
fact.
In this context, when severance is the issue, prejudice is nof
simply prejudice in the sense that appellant will be linked to the
crimes for which he is being prosecuted, for that sort of prejudice
is ostensibly the purpose of all Commonwealth evidence. The
prejudice of which . . . [consolidation] speaks is rather that which
would occur if the evidence tended to convict appellant only by
showing his propensity to commit crimes, or because the jury was
incapable of separating the evidence or could not avoid cumulating
the evidence.
Judd, 897 A.2d at 1232 citing Commonwealth v. Lark, 518 Pa. 290, 307-308, 543 A.2d 491, 499
(1988). The court was correct in consolidating these matters as the same law applied in all three
cases, the same defense was applied, and the facts were similar and easily separable.
Additionally, the Defendant was observed at all three locations which were within 1.4 miles of
one another. Here, no error or any harmful prejudice in the consolidation of these cases has been
shown.
9
A. CP-51-CR-0006717-2014 - 3053 Agate Street
The Defendant argues that this court erred and violated the corpus delicti rule when it
admitted the Defendant's statement into evidence and took that statement into consideration
during deliberations. According to the Defendant, the trial court improperly admitted his
statement as the Commonwealth failed to establish that a crime had been committed by a
preponderance of the evidence and then failed to prove that a crime had occurred beyond a
reasonable doubt. This argument must fail.
The corpus delicti rule is designed to guard against the "hasty and unguarded character
which is often attached to confessions and admissions and the consequent danger of a conviction
where no crime has in fact been committed." Commonwealth v. Hernandez, 2012 PA Super 40,
39 A.3d 406, 410 (2012). The corpus delicti rule is a rule of evidence. The appellate court's
standard of review on appeals challenging an evidentiary ruling of the trial court is limited to a
determination of whether the trial court abused its discretion. The admissibility of evidence is
solely within the discretion of the trial court and will be reversed only if the trial court has
abused its discretion. An abuse of discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of
record. Hernandez, supra. citing Commonwealth v. Herb. 852 A.2d 356, 363 (Pa.Super.2004)
( citations omitted).
The corpus delicti rule places the burden on the prosecution to establish that a crime has
actually occurred before a confession or admission of the accused connecting him to the crime
can be admitted. The corpus delicti is literally the body of the crime; it consists of proof that a
loss or injury has occurred as a result of the criminal conduct of someone. The criminal
10
I
responsibility of the accused for the loss or injury is not a component of the rule. The historical
!
!
purpose of the rule is to prevent a conviction based solely upon a confession or admission, where
i
in fact no crime has been committed. The 'corpus delicti may be established by circumstantial
I
evidence. Establishing the corpus delicti in! Pennsylvania is a two-step process. The first step
i
i
concerns the trial judge's admission of the accused's statements and the second step concerns the
I
I
fact finder's consideration of those statements. In order for the statement to be admitted, the
Commonwealth must prove the corpus deliJti by a preponderance of the evidence. In order for
I
i
the statement to be considered by the fact finder, the Commonwealth must establish the corpus
1
l
delicti beyond a reasonable doubt. Hernatldez, 2012 PA Super at 41, 39 A.3d at 411 citing
i
Commonwealth v. Young, 904 A.2d 947, 9~6 (Pa.Super.2006), appeal denied, 591 Pa. 664, 916
A.2d 633 (2006) quoting Commonwealth v. Rivera, 828 A.2d 1094, 1103-04, n. 10
(Pa.Super.2003) appeal denied, 577 Pa. 672, 842 A.2d 406 (2004)) (internal quotation marks
omitted) (emphasis in original). Here, the Defendant argues that the Commonwealth failed to
establish either. i!
l
The burglary statute provides in relevant part: § 3502. Burglary
(a) Offense defined.--A person cdmmits the offense of burglary if, with the intent to
commit a crime therein, the person:
(2) enters a building or occupied structure, or separately secured or occupied
portion thereof that is adaptedlfor overnight accommodations in which at the time
of the offense no person is present;
* * *
( 4) enters a building or occupied structure, or separately secured or occupied
portion thereof that is not adapted for overnight accommodations in which at the
time of the offense no person is present.
I!
11
i
I
( c) Grading.-- (1) Except as provided in paragraph (2), burglary is a felony of
the first degree. i
!
(2) If the building, structure or portion entered is not adapted for
overnight accommodation and if no individual is present at the
time of entry, burglary is .a felony of the second degree.18
Pa.C.S.A. § 3502(a),;(c)(l)-(2).
18 Pa. C.S.A. §3502.
!
i
Despite the Defendant's argument to the contrary, the Commonwealth proved the corpus
delicti by both a preponderance of the evidence and beyond reasonable doubt. Officer Gereaghty
testified that he responded to this location because of a report of a burglary in progress. The
;
i
!
Defendant, who was covered in dust, was found by police in the dining room area of the house
pulling wiring and or piping from a hole in the wall that was broken, not cut. There was no
indication that he lived in the house (no mail with his name on it, no clothes, etc) or that he was a
r
contractor doing work. Moreover, it is highly unlikely that the City of Philadelphia would have
;
authorized someone to be in the property !working at 11 :00 at night when the Defendant was
found by the officers pulling out the wiring.' There was no abuse of discretion by the court.
Next, the Defendant contends that there was insufficient evidence to establish beyond
reasonable doubt the crime of criminal trespass, graded as a felony of the second degree.
According to the Defendant, there was no] evidence that he gained entry or attempted to gain
'
entry to the property or that he removed copper wires and or pipes. The court finds the
Defendant's claim to be meritless. There was sufficient evidence to convince the court beyond
!
l
reasonable doubt that the Defendant was gupty of committing the aforementioned criminal acts.
Appellate review of a claim challenging the sufficiency of the evidence is as follows: The
standard the appellate courts apply in re~iewing the sufficiency of the evidence is whether
viewing all the evidence admitted at trial id! the light most favorable to
.
the verdict winner, there
is sufficient evidence to enable the fact-fiinder to find every element of the crime beyond a
12
reasonable doubt. Commonwealth v. Rivera, 2009 PA Super 207, 983 A.2d 767 (Pa. Super. Ct.
2009). See also Commonwealth v. Walker, 540 Pa. 80, 656 A.2d 90, 94 (1995); Commonwealth
v. Bracey, 541 Pa. 322, 330, 662 A.2d 1062, 1065 (1995); Commonwealth v. Burgos, 530 Pa.
473, 476, 610 A.2d 11, 13 (1992). In applying the above test, appellate courts may not weigh the
evidence and substitute their judgment for] that of the fact-finder. In addition, the facts and
circumstances established by the Commonwealth need not preclude every possibility of
innocence. 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. The Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by means of wholly circumstantial
evidence. Commonwealth v. Rivera, supra. Moreover, in applying the above test, the entire
record must be evaluated and all evidence !actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and the weight of the evidence
produced is free to believe ail, part or noneof the 'evidence. Id. citing Commonwealth v. Jones,
2005 PA Super 166, 874 A.2d 108, 120-21 (Pa. Super. 2005) quoting Commonwealth v. Bullick,
2003 PA Super 285, 830 A.2d 998, 1000 (Pa. Super. 2003). See also Commonwealth v. Walker,
540 Pa. at 84, 656 A.2d at 97; Commonwealth v. Smith, 502 Pa. 600, 604, 467 A.2d 1120(1983); Commonwealth v. Nelson, 320 Pa. Super. 488, 467 A.2d 638 (1983); Commonwealth v.
Cody, 401 Pa. Super. 85, 584 A.2d 992 (1991); appeal denied 527 Pa. 622, 592 A.2d 42. The
victim's testimony alone may provide sufficient evidence to establish the crimes with which the
defendant was charged. Cody, 5 84 A.2d at 993.
In the case sub Judice, the evidence was sufficient to find the Defendant guilty of criminal
trespass as a felony of the second degree. The criminal trespass statute provides in relevant part:
13
I
(1) A person commits an offerise if, knowing that he is not licensed or
privileged to do so, he: i
(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
!
(2) An offense under paragraph (1 )(i) is a felony of the third degree, and an offense
under paragraph (1 )(ii) is a felony of the second degree.
(3) As used in this subsection: I
'
l
"Breaks into." To gain entry by force, breaking, intimidation, unauthorized opening
of locks, or through an opening riot designed for human access.
18 Pa.C.S. § 3503. The evidence eJtablished that the Defendant was found standing in
the dining room area of a house that was scheduled for sheriffs' sale at 11 :00 at night. He was
covered in dust, removing copper wiring and piping from the wall that was broken, not cut. The
Defendant was not found with any tools andlhis clothing did not indicate that he was a worker (a
!
contractor) working on the property. (N.1[. 12/18/14, pp. 12-16, 28-29). The evidence was
sufficient to sustain the Defendant's convictibns.
i
B. CP-51-CR-0007097-2014 - 3224 Miller Street
The Defendant claims that the evidence was insufficient to sustain his conviction for
criminal trespass with respect to 3224 Mill~r Street. According to the Defendant, the evidence
was insufficient to prove that he broke into the property as required for a criminal trespass
conviction. Defendant's claim does not entitl~! him to relief.
14
Defendant was convicted of criminal trespass as a second-degree felony. As previously
I
stated, a person is guilty of criminal trespass as a second degree felony if, "knowing that he is not
licensed or privileged. to do so, he ... break;I into any building or occupied structure or separately
I
secured or occupied portion thereof." 18 fa.C.S.A. § 3503(a)(l )(ii), (2). For purposes of the
I
criminal trespass statute, the term "breaks into"
I
is defined as "[t]o gain entry by force, breaking,
I
intimidation, unauthorized opening of locks, or through an opening not designed for human
iI
access." Id. at§ 3503(a)(3).
As previously stated, in reviewing a !sufficiency of the evidence claim, the appellate court
I
i
must view all of the evidence admitted at t~ial in the light most favorable to the Commonwealth
and determine whether there was sufficief t evidence to enable the fact finder to find every
i
element of the crime beyond a reasonable doubt. Commonwealth v. Ingram, 926 A.2d 470, 473
I
(Pa. Super. 2007). When conducting such rJview, the Court must keep in mind that, in proving a
defendant's guilt, "the Commonwealth may sustain its burden by means of wholly circumstantial
evidence." Commonwealth v. Cousar, 928 A.2d 1025, 1032 (Pa. 2007).
Based on these standards, the evidence presented at trial was sufficient to establish that
the Defendant broke into 3224 Miller Street knowing he was not licensed or privileged to do so.
''
Specifically, the evidence established that oh May 17, 2014, Police Officer Keith Stefankiewiez
i
responded to a radio call for a burglary in progress at this location. As a result of speaking to a
neighbor at that location, Officer Stefankiewicz was able to walk through the man's house to his
'
backyard where he observed the Defendant I walking out of the back door of 3224 Miller Street.
;
i
The Defendant told the officer that he didlnot live at the house. (N.T. 12/18/14, pp. 40-41).
Kathleen Reick, the owner of the property! testified that she had hired a general contractor to
I
rehab this property. When the contractor left on May 12th, the water and electricity worked and
15
the door had been dead bolted. (N.T. 12/18114, p. 52). On May 17, 2014, a ladder was propped
up against the second floor window and the back door was unlocked and unbolted. (N.T.
12/18/14, p. 37). Ms. Reick testified that she did not know the Defendant and did not give him
permission to be in her house. (N.T. 12/18/14, pp. 51-52). While it is true that there was no
direct evidence that the Defendant broke into the Miller Street property, such illegal entry can
readily be inferred from Ms. Reick's testimony; the doors had been locked and dead bolted.
There is no question that the Defendant was! inside the property; he seen walking out of the back
door of a house that he was not given permission to be in. The evidence was sufficient to sustain
the Defendant's conviction of criminal trespass as a second degree felony.
Next, Defendant argues that the evidence was insufficient evidence to prove, beyond a
reasonable doubt, that he was guilty of criminal mischief, graded as a felony of the third degree,
where the Defendant was seen exiting the property, which was then left unsecured and found to
have been ransacked the next day.
The criminal mischief statute provides in reievant part:·§ 3304. Criminal Mischief
(a) Offense defined.--A person is guilty of criminal mischief if he:
* * *
*
(2) intentionally or recklessly tampers with tangible property of
another so as to endanger persbn or property;
(b) Grading.--Criminal mischief is a felony of the third degree if
the actor intentionally causes pecuniary loss in excess of $5,000, or
a substantial interruption or impairment of public communication,
transportation, supply of water, gas or power, or other public
service. It is a misdemeanor of the second degree if the actor
intentionally causes pecuniary loss in excess of $1,000, or a
misdemeanor of the third degree if he intentionally or recklessly
causes pecuniary loss in excess of $500 or causes a loss in excess
16
I
of $150 for a violation of subsection (a)(4). Otherwise criminal
mischief is a summary offense.!
18 Pa. C.S.A. § 3304.
In Commonwealth v. Giddings, 686 A.2d 6 (Pa. Super. 1996), allocatur denied, 695 A.2d
784 (Pa. 1997), police observed Giddings and another male jumping over the porch rail that
separated the victim's home from his neighbor's home. Giddings told the officers that they were
looking for someone. He was stopped by the officers and frisked for weapons. After searching
the victim's porch, the officers discovered a screwdriver below the front door and a hole in the
i
door near the door knob. Giddings was then arrested, charged, and found guilty of several
crimes related to this incident, including criminal mischief. Giddings, 686 A.2d at 7-8. On
appeal, the Superior Court found that notwithstanding the fact that there was no testimony that
anyone actually observed Giddings chopping at the victim's door with the screwdriver, there was
sufficient evidence to support his conviction of criminal mischief. Id. at 13.
In Commonwealth v. Zambelli, 695 A.2d 848 (Pa. Super. 1997), where the evidence
revealed that two women sitting in a parking lot heard a loud screeching sound and noticed
Zambelli walking alongside a van with an obiect in his hand. The women followed appellant
!
into a nearby store to identify him, informed a store clerk of what they had witnessed, and then
went outside to look at the van. Seeing thkt the van was scratched, the store clerk called the
police and appellant was arrested. On appea~, the Superior Court concluded that, when viewed in
the light most favorable to the Commonwealth, the. evidence was sufficient to support appellant's
conviction for criminal mischief. Id. at 851.
Here, Defendant was observed by Officer Stefankiewiez (who was responding to a radio
call for a burglary in progress at this location) walking out of the back door of 3224 Miller
17
Street. The Defendant told the officer that he did not live at the house. Kathleen Reick, the
owner of the property testified that when her contractor left on May 12th, the water and
electricity worked and the door had been dead bolted. (N.T. 12/18/14, p. 52). On May 17th, a
ladder was propped up against the second. floor window and the back door was unlocked and
unbolted. (N.T. 12/18/14, p. 37). All the wires had been cut and the copper pipe in the basement
was missing. (N.T. 12118/14, p. 39). Ms. Reick did not know the Defendant and did not give
him permission to be in her house. When viewed in the light most favorable to the
Commonwealth there was sufficient direct and circumstantial evidence to enable the fact-finder
to find the Defendant guilty of criminal mischief beyond a reasonable doubt.
C. CP-51-CR-0007098-2014 - 3471 Frankford Avenue
As previously stated, in considering a challenge to the sufficiency of evidence, the
evidence admitted at trial must be viewed in the light most favorable to the verdict winner and
draw all reasonable inferences therefromCommonwealth v. Ga1indes, 786 A.2d 1004, 1009 (Pa.
Super. 2001). It must then be determined whether the evidence was sufficient to enable the fact-
finder to find every element of the crime beyond a reasonable doubt. Id. The fact-finder may
resolve any doubts regarding a defendant's guilt, unless the evidence is so weak and inconclusive
that as a matter of law no probability of fact rnay be drawn from the combined circumstances. Id.The facts and circumstances established by the Commonwealth need not preclude every
possibility of innocence. Commonwealth v. Lambert, 795 A.2d 1010, 1014 (Pa. Super. 2002)
quoting, Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000). The
Commonwealth may sustain its burden of proving every element of the crime beyond a
reasonable doubt by wholly circumstantial evidence. Id. Finally, it is the province of fact-finder
18
to pass upon the credibility of witnesses arid the weight of the evidence produced, and is free to
believe all, part or none of the evidence. Id.'
Defendant claims that the evidence was insufficient to sustain his conviction for
attempted burglary because the Commonwealth failed to prove he had the intent to commit a
crime inside of Ms. Todd's residence. Thiscourt disagrees.
Under the Crimes Code a person i commits a criminal 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 is guilty of a burglary if he enters
an occupied structure with the intent to commit a crime therein and without license or privilege
to enter." 18 Pa.C.S.A. §3502(a); Commonwealth v. Alston, 651 A.2d 1092, 1094 (Pa. 1994).
Accordingly, the Commonwealth must prove intent to "enter and occupied structure" without
license or privilege and intent to "commit a crime after entering." Commonwealth v. Cannon,
443 A.2d 322, 324 (Pa. Super. 1982).
The intent element of attempted burglary may be inferred from circumstantial evidence.
Alston, supra. Such circumstantial proof must be analyzed in the "totality of the circumstances."
Id. Additionally, the intent to commit a crime after entry may be inferred from the circumstances
surrounding the incident, from actions as: well as words; however, the actions must bear a
reasonable relation to the commission of a crime. Id. at 1095. The Commonwealth is not
required to allege or prove what particular crime a defendant intended to commit after his
forcible entry into the private residence. Id. ·
In this case, looking at the totality of the circumstances and the reasonable inferences
drawn from the evidence, Defendant intended to enter Ms. Todd's home to commit a crime. The
evidence and photographs revealed the nature of the home and the residential character of the
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neighborhood itself. Taken together with the Defendant's behavior and actions, he was interested
in ascertaining if someone was home or not. He was essentially"casing the joint:' Ms Todd was
alerted to his presence by a loud noise in her alley way, then the dog barking. She observed the
Defendant coming from the alley area beside her home; he climbed her fence; looked at her
home; then walked down a little more. The.broken basement window was immediately adjacent
to the alley way. The Defendant may have ceased his efforts upon breaking the window when he
heard the neighbors dog barking or he figured out that someone was in fact in the house as Ms.
Todd was looking out the window toward the alley and then the back window looking into her
yard. Had Defendant completed his action in breaking the basement window, he could have
easily gained access into the home. These facts all allowed this court to reasonably infer
Defendant possessed the intent to commit a. crime. See, Commonwealth v. Galindes, 786 A.2d
1004 (Pa. Super. 2001 ); Commonwealth v. Willetts, 277 Pa. Super. 53 8, 419 A.2d 1280, 1282
(1980) ( evidence, including defendant's attempt to break padlock on garage, late hour at which
he made his attempt, and his flight upon arrival of police, was sufficient to sustain conviction of
attempted burglary). Thus, the evidence clearly supports the attempted burglary conviction.
Next, Defendant claims that the Commonwealth failed to establish the elements of
criminal trespass and criminal mischief. This argument must also fail.
A person commits criminal trespass if, "knowing he is not licensed or privileged to do
so ... he breaks into any building or occupied structure or separately secured or occupied portion
thereof' 18 Pa.C.S.A. §3503(a)(l)(ii). "Breaks intd' is to gain entry by force, breaking
intimidation, unauthorized opening of locks, or through an opening not designed for human
access. Id. at §3503(a)(3). The Defendant had no permission to be on Ms. Todcfs property when
he forcibly broke the window. Here, his entry was accomplished when he broke the window.
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window. Therefore, the forceful breaking of the window supports the criminal trespass
conviction. There was also sufficient evidence to support finding the Defendant guilty of
criminal mischief. A person is guilty of criminal mischief if. "he ... intentionally or recklessly
tampers with tangible property of another so as to endanger person or property. Again, Ms.
Todd heard loud noises toward her alley way, where the basement window was and she saw the
Defendant in her yard without permission. The Defendant was clearly tampering with Ms.
Todd's property.
IV. CONCLUSION
In summary, this court has carefully reviewed the entire record and finds no harmful,
prejudicial, or reversible error and nothing to justify granting Defendant's request for relief in
this case. For the reasons set forth above, Defendant's judgment of sentence should be affirmed .
. BY THE COURT:
VIN~HIORRE, J. -
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