Com. v. Winand, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW MICHAEL WINAND :
:
Appellant : No. 676 MDA 2019
Appeal from the Judgment of Sentence Entered December 20, 2018
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000360-2018
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 25, 2019
Matthew Michael Winand appeals from the December 20, 2018
judgment of sentence of eighteen months to four years of incarceration,
followed by three years of probation, which was imposed after a jury convicted
him of burglary, criminal conspiracy to commit burglary, and simple assault.
He challenges the weight of the evidence supporting his convictions. We
affirm.
The charges stemmed from events occurring on March 23 and 24, 2018.
Andrew Hempfing (“the victim”) encountered Appellant at a bar in East Berlin,
Adams County, Pennsylvania. Appellant and the victim formerly had been
friends. The friendship soured two years earlier when there was a rumor
linking Appellant romantically to the victim’s wife. At the bar on the evening
of March 23, 2018, Appellant and the victim played one uneventful game of
pool. Thereafter, words were exchanged, and the victim placed Appellant in
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a chokehold and smashed his face against the floor, conduct that resulted in
the victim’s ejection from the bar. Present at the time were Appellant’s co-
defendant Tyler Mummert, and Appellant’s brother Andrew Hoff.
The victim returned to his home approximately five miles away from the
scene of the fight, and immediately accessed his Facebook account. He posted
the following: “hey [Appellant], you crack head mother f----r . . . I will see
you someday soon when I have a little bit more room to swing.” N.T.,
10/9/18, at 76-77. He added, “U know where I reside don’t be shy.” Id. at
94. After posting these messages, the victim awakened his wife and told her
what had occurred. He then received a call from Appellant through Facebook,
announcing “we’re on our way.” The victim replied, “ain’t no we about it . . .
I said . . . I’ll see you tomorrow or another day.” Id. at 77-78.
At his wife’s urging, the victim called 911, and Officer Larry L. Kitzmiller,
Jr., a patrolman with the Eastern Adams Regional Police Department, was
dispatched to victim’s residence. The victim told the officer about the bar
incident and the Facebook posts, and the officer advised him to go back in the
house and he would patrol the area.
The victim went to sleep with his wife in the upstairs bedroom.
According to the victim’s wife, she was awakened by the thundering sound of
footsteps coming up the stairs, followed by the bedroom door being kicked
open. Appellant entered the bedroom, tackled the victim, and they struggled
on the bed. While Appellant had a grip on the victim, co-defendant struck him
fifteen to twenty times around the head, causing a bloody nose, chipped tooth,
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a laceration to his ear, and bruises and cuts. While the assault was taking
place, Hoff stood in the doorway to the bedroom.
The noise awakened the victim’s four-year-old daughter, who witnessed
the events from the hallway. The victim’s wife testified that her daughter was
scared and screaming, so she collected the child and went upstairs to her
father-in-law’s attic room. The intruders fled when the victim’s father came
downstairs. The victim again called police. When Officer Kitzmiller arrived at
the residence, the victim was sitting on his front porch with visible injuries.
Andrew Hoff provided a statement and testified on behalf of the
Commonwealth after pleading guilty to criminal trespass pursuant to a plea
agreement. He testified that he had known the victim and his wife for five
years; that he and Appellant are brothers; and that he is a close friend of co-
defendant. Hoff was present with Appellant and co-defendant at the bar that
evening, and he witnessed the victim assault Appellant. After leaving the bar,
the three men went to Hoff’s house and continued to drink alcohol. He saw
the Facebook message from the victim, showed it to Appellant and co-
defendant, prompting the decision to drive to the victim’s home.
According to Hoff, the three men parked behind the home in an alley,
and first knocked at the back door to gain access. When no one answered,
they confirmed that the door was locked. They proceeded around the house
to the front door, which was closed but unlocked, and Appellant entered
without knocking. The three men went upstairs. According to Hoff, the victim
was standing in his bedroom doorway. Appellant and the victim argued, and
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then it turned physical. The co-defendant joined the fray, fists were flying,
and Hoff and the victim’s wife tried to stop the fight. As they left, Hoff told
the victim’s father, “your boy f----d with the wrong ones,” meaning Appellant,
co-defendant, and himself. Id. at 157.
Appellant testified that he took the Facebook post as “an invitation to
come” and acknowledged that he went there to fight. Id. at 201. Upon
arriving at the victim’s home, he knocked at the back door. When there was
no answer, they went around to the front door. Appellant said he did not
knock at the front door because the victim was already at the top of the steps
inside. When asked how he knew the location of the victim when the door
was closed, Appellant maintained that he “could hear him coming” as “[h]e
was already screaming at the top of the steps.” Id. at 216. Appellant opened
the door and proceeded up the stairs where a scuffle ensued.
The jury convicted Appellant of one count each of burglary, criminal
conspiracy to commit burglary, and simple assault. Appellant was sentenced
on December 20, 2018, as aforesaid. Following the denial of Appellant’s post-
sentence motion, he filed a timely appeal to this Court and complied with the
trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The trial court penned its Rule 1925(a) opinion, and
the matter is ripe for our review. Appellant presents one issue: “Whether the
convictions of burglary and conspiracy to commit burglary were against the
weight of the evidence?” Appellant’s brief at 6 (unnecessary capitalization
omitted).
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The law is well settled that the weight of the evidence is a matter for
the fact finder, who is free to believe all, part, or none of the evidence and to
assess the credibility of the witnesses. “A new trial is not warranted because
of a mere conflict in the testimony. . . . Rather, the role of the trial judge is
to determine that notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight with all the
facts is to deny justice.” Commonwealth v. Rosser, 135 A.3d 1077, 1090
(Pa.Super. 2016) (en banc).
Our role on appeal is limited to determining whether the trial court
abused its discretion in determining that the verdict did not shock its
conscience. Id. In doing so, we do not review the underlying question
whether the verdict is against the weight of the evidence, but rather, the trial
court’s exercise of discretion. This is why it is often said that a trial court’s
denial of a post-sentence motion “based on a weight of the evidence claim is
the least assailable of its rulings.” Commonwealth v. Diggs, 949 A.2d 873,
880 (Pa. 2008).
Appellant contends that his convictions of burglary and conspiracy to
commit burglary were against the weight of the evidence because the victim
consented to Appellant entering his home when he assaulted him and taunted
him to come and fight. Appellant’s brief at 13. He cites Commonwealth v.
Stark, 407 A.2d 853, 855 (Pa.Super. 1979), for the proposition that one
entering a premises with permission is not a burglar even if he intends to
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commit a crime. He argues that the victim’s Facebook post, “U know where I
reside don’t be shy,” granted him permission to enter, a defense to burglary.
N.T., 10/9/18, at 94; see § 3502(b)(3). Furthermore, he told the victim that
he was on his way, and walked through an open door when he arrived.
The trial court noted that it properly instructed the jury that it was a
defense to burglary if the defendant was licensed or privileged to enter the
residence. Trial Court Opinion, 6/18/19, at 9 (citing 18 Pa.C.S. § 3502(b)(3)).
In the trial court’s view, the jury “rightfully rejected Appellant’s defense.” Id.
at 10. The trial court pointed to evidence refuting Appellant’s contention that
the victim invited Appellant to enter his home that night. After Appellant told
the victim that they were on their way, the victim responded, “Ain’t no we
about it” . . . “I’ll see you tomorrow or another day.” Id. (citing N.T., 10/9/18,
at 80). Furthermore, the trial court noted that there was evidence the victim
was in his boxers, in bed, sleeping with his wife when the three men entered
through a closed front door. Based on the foregoing, the court stated that the
jury’s verdict did not shock its sense of justice, and that the weight of the
evidence claim was “meritless.” Id. We find no abuse of discretion on the
part of the trial court. Hence, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2019
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