Com. v. Ford, F.

J-S45039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TINA FORD APPELLANT :
:
: No. 3040 EDA 2017
Appeal from the Judgment of Sentence August 18, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004663-2014,
CP-51-CR-0004664-2014
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: Filed: October 29, 2020
Tina Ford (Appellant) appeals from the judgment of sentence imposed
after the trial court found her guilty of burglary, criminal trespass, criminal
contempt, simple assault, and recklessly endangering another person.1 Upon
review, we affirm.
The trial court summarized the underlying facts as follows:
The incidents in this case took place on the night of April 3,
2014 and in the early morning hours of April 4, 2014. Prior to the
incident, on March 4, 2014 Complainant[2] filed a temporary
restraining order against Appellant, which was granted, thus
evicting Appellant from Complainant’s home located at 5221
Irving Street, Philadelphia, PA. [N.T., 8/21/15, at] 21-24. The
temporary restraining order was served with an affidavit of service
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1 18 Pa.C.S.A. §§ 3502(a)(1), 3503(a)(1)(i), 2701(a), 2705; 23 Pa.C.S.A. §
6114(a).
2 Complainant is Appellant’s estranged husband.
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signed by a Philadelphia Police Officer dated March 4, 2015. Id.
at 41-44.
On April 3, 2014, Complainant was residing in his home on
5221 Irving Street, Philadelphia, PA with his daughter, his
girlfriend, and her son. Id. at 9-12. Sometime between 11:30pm
and 12:00am[,] Appellant entered home of Complainant without
permission. Id. at 25-28. Upon entering the Complainant’s
home, Appellant observed an unfamiliar child in the living room,
who was the son of Complainant’s girlfriend. [Id.] Appellant
proceeded up the stairs and burst into Complainant’s bedroom.
[Id.] Appellant began yelling for no reason and picked up a lamp
from a bedside table and used it to physically attack both
Complainant and his girlfriend. [Id.] The physical altercation
continued, and Complainant attempted to prevent Appellant from
injuring him and his girlfriend. [Id.] Complainant managed to
usher Appellant out of the bedroom and down the stairs where
Appellant retrieved another lamp from a nearby table and began
hitting and swinging it at Complainant, knocking over various
household objects in the process. [Id.] Complainant ushered
Appellant out of his home and closed the door. [Id.] Complainant
remained inside the home for around ten minutes when he heard
a slam against his bay window; Complainant opened up the door
and saw Appellant running back to her car that was double parked
in front of Complainant’s house. [Id.] Complainant observed a
broken flowerpot on his porch, which was thrown by Appellant
against his front bay window. [Id.] Complainant proceeded to
his car to investigate whether it was vandalized or not; upon
seeing that the car was indeed vandalized, he got in his car and
followed Appellant north on 53rd Street while on the phone with
police. Id. at 33-36. Appellant reportedly tried to make a U-turn
and Complainant blocked her car with his. [Id.] After about ten
minutes the police arrived and arrested Appellant. [Id.]
Trial Court Opinion, 7/24/19, at 2-3.
The trial court also provided the following procedural history:
On August 21, 2015, [Appellant] waived her right to a jury and
proceeded to trial before this [c]ourt. During the waiver trial[,]
this [c]ourt found Appellant guilty of burglary, criminal trespass,
contempt of a court order, simple assault, and recklessly
endangering another person. On November 18, 2016, Appellant
was sentenced to nine (9) to twenty-three (23) months [of]
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incarceration with work release eligibility, followed by five (5)
years [of] reporting probation. On [November 22, 2016],
Appellant filed a Motion for Reconsideration of Sentence and it was
granted [on April 21, 2017]. On August 18, 2017, Appellant was
resentenced to seven (7) years reporting probation. Further,
Appellant was ineligible for RRRI.
On September 15, 2017, Appellant filed a timely notice of
appeal[3] from her August 18, 2017 judgment of conviction and
re-sentence. On December 8, 2017, this court ordered Appellant
to file a Concise Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b) on or before January 11, 2018. On
January 11, 2018, Appellant filed the 1925(b) Statement of
Matters Complained of on Appeal.
Id. at 1.
Appellant presents the following issue for our review:
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3 Pursuant to Pennsylvania Rule of Criminal Procedure 720(B)(3)(a), the trial
court “shall decide the post-sentence motion, including any supplemental
motion, within 120 days of the filing of the motion. If the judge fails to decide
the motion within 120 days, or to grant an extension as provided in paragraph
(B)(3)(b), the motion shall be deemed denied by operation of law.”
Pa.R.Crim.P. 720(B)(3)(a). Here, the 120-day period for a decision on
Appellant’s post-sentence motion for reconsideration of sentence expired on
March 22, 2017. The clerk of courts, however, failed to enter an order
deeming the motion denied on that date. See Pa.R.Crim.P. 720(B)(3)(c)
(“When a post-sentence motion is denied by operation of law, the clerk of
courts shall forthwith enter an order on behalf of the court, and, . . . forthwith
shall serve a copy of the order on the attorney for the Commonwealth, the
defendant’s attorney, or the defendant if unrepresented, that the
postsentence motion is deemed denied.”). Instead, the trial court granted the
motion on April 21, 2017, outside the 120-day period, and subsequently
resentenced Appellant on August 18, 2017. Appellant appealed within 30 days
of that judgment of sentence. Ordinarily, the appeal would be untimely,
however, this Court has held that a breakdown of the courts occurs when the
trial court clerk fails to enter an order deeming post-sentence motions denied
by operation of law pursuant to Rule 720(B)(3)(c). See Commonwealth v.
Patterson, 940 A.2d 493, 498-99 (Pa. Super. 2007). Accordingly, we
consider the merit of Appellant’s appeal.
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WAS THE EVIDENCE [] INSUFFICIENT TO SUPPORT THE
VERDICTS AS TO BURGLARY, CRIMINAL TRESPASS, AND FOR
CRIMINAL CONTEMPT BECAUSE THE COMMONWEALTH OFFERED
NO EVIDENCE THAT APPELLANT HAD BEEN SERVED WITH THE
PROTECTION FROM ABUSE ORDER EVICTING HER FROM THE
MARITAL HOME AND ORDERING HER TO NOT HAVE CONTACT
WITH THE COMPLAINANT?
Appellant’s Brief at 3.
Appellant challenges the sufficiency of the evidence for her burglary,
criminal trespass, and criminal contempt convictions. Specifically, Appellant
argues that the evidence was insufficient to sustain each of these convictions
because she did not receive service of or notice of the protection from abuse
(PFA) order. According to Appellant, while the Commonwealth had the PFA
order entered into the record at trial, it did not do the same for the affidavit
of service.
In reviewing a challenge to the sufficiency of the evidence, we
recognize:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
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.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, [t]he fact that the evidence
establishing a defendant’s participation in a crime is circumstantial
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does not preclude a conviction where the evidence coupled with
the reasonable inferences drawn therefrom overcomes the
presumption of innocence. Significantly, we may not substitute
our judgment for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective elements of a
defendant’s crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(citations omitted). Importantly, “the [fact-finder], wh[o] passes upon the
weight and credibility of each witness’s testimony, is free to believe all, part,
or none of the evidence.” Commonwealth v. Ramtahal, 33 A.3d 602, 607
(Pa. 2011).
Section 3502 of the Pennsylvania Crimes Code, which defines burglary,
provides in pertinent part:
(a) Offense defined.--A person commits the offense of burglary
if, with the intent to commit a crime therein, the person:
(1)(i) 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 and the person commits, attempts or
threatens to commit a bodily injury crime therein[.]
18 Pa.C.S.A. § 3502(a)(1)(i). “It is a defense to prosecution for burglary if .
. . at the time of the commission of the offense . . . the actor is licensed or
privileged to enter.” 18 Pa.C.S.A. § 3502(b)(3).
Under Section 3503, an individual commits the crime of criminal
trespass if, “knowing that he is not licensed or privileged to do so, he . . .
enters, gains entry by subterfuge or surreptitiously remains in any building or
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occupied structure or separately secured or occupied portion thereof[.]” 18
Pa.C.S.A. § 3503(a)(1)(i). Thus, like burglary, criminal trespass requires the
actor to knowingly enter a building or occupied structure without license or
privilege to do so. See id.
Regarding criminal contempt, we have stated:
In order to establish [] criminal contempt, the Commonwealth
must prove: 1) the order was sufficiently definite, clear, and
specific to the contemnor as to leave no doubt of the conduct
prohibited; 2) the contemnor had notice of the order; 3) the
act constituting the violation must have been volitional; and 4)
the contemnor must have acted with wrongful intent.
Commonwealth v. Felder, 176 A.3d 331, 334 (Pa. Super. 2017) (emphasis
added, citation omitted).
Because Appellant claims she was never served with the PFA order, she
argues she did not have notice of the order and could not have known that
she lacked license or privilege to enter Complainant’s home. The record belies
Appellant’s claim. Our review of the record reveals that the affidavit of service
for the PFA was entered into evidence. Additionally, by her own admission at
trial, Appellant was aware that she was not permitted to enter Complainant’s
residence.
At the close of its case-in-chief, the Commonwealth moved to admit the
PFA order into evidence, and Appellant did not object. N.T., 08/21/15, at 40.
Attached to the PFA order was an affidavit of service of the order signed by
the serving police officer. Id. at 41. Viewing this evidence in the light most
favorable to the Commonwealth as the verdict winner, we conclude that the
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record contradicts Appellant’s assertion that she was never served with the
PFA order.
In addition, Appellant’s trial testimony demonstrates that she was aware
of the PFA order. Appellant testified that before the incident that led to the
underlying criminal charges, she kept her things at Complaint’s house “until
the judge made an order,” and she was no longer able to “get any more things
from the house.” Id. at 49. Appellant further testified that even though she
was aware of the PFA order, she “didn’t follow it” because both she and
Complainant had restraining orders in the past and never followed them. Id.
at 50.
In sum, the record indicates that Appellant had notice of the PFA order,
and was thus aware that she did not have license or privilege to enter
Complainant’s residence. Accordingly, the evidence was sufficient to sustain
Appellant’s convictions of burglary, criminal trespass, and criminal contempt.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/20
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