Com. v. McNeal, D.

J-A06005-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVINA MCNEAL :
:
Appellant : No. 341 WDA 2022
Appeal from the Judgment of Sentence Entered February 1, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001624-2021
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: JUNE 21, 2023
Appellant, Davina McNeal, appeals from the judgment of sentence
entered on February 1, 2022. We affirm.
The trial court ably summarized the underlying facts of this case:
On October 23, 2022, [Appellant] went to the residence of
[M.M. (hereinafter “the Victim”). The Victim was] the
girlfriend of Derrick Hundley, [Appellant’s] ex-husband.
[Appellant] went [to the Victim’s home] for the purpose of
dropping her children off for a custody exchange [with Mr.
Hundley]. . . .
[The Victim] and [Appellant] had a prior aggressive history
due to previous threats made by [Appellant] to [the Victim]
and [the Victim] had informed [Appellant] that she was not
welcome at her residence. Unbeknown to [the Victim] on this
date, [Appellant] brought her children to [the Victim’s]
residence to drop them off with Mr. Hundley. The children
were supposed to be dropped off at the street corner. . . .
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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That evening, [the Victim] heard a knock on her front door.
She opened the door and saw Mr. Hundley's two children and
[Appellant]. [The Victim] told the children to come inside the
residence. [Appellant] was irritated that [the Victim] did not
greet her and she asked [the Victim] if she had a "fucking
problem." [The Victim] told [Appellant] she did not like her
and asked her to leave. Instead of leaving, [Appellant]
punched [the Victim] in the head, pushed [the Victim] into
the house and entered the house while continuing to assault
[the Victim]. She told [the Victim] that she wasn't leaving
and [the Victim] knew [Appellant] "wanted her." [Appellant]
also told [the Victim] that she was going to kill and shoot [the
Victim]. [Appellant] continued to punch and kick [the
Victim]. She also choked [the Victim]. [The Victim] felt as
though she began to lose consciousness. The next thing [the
Victim] remembered was Mr. Hundley and her friend running
down the stairs. [The Victim] sustained various physical
injuries as a result of the assault.
Trial Court Opinion, 4/12/22, at 1-2.
Following a bench trial, the trial court found Appellant guilty of two
counts of burglary and one count of simple assault.1 On February 1, 2022,
the trial court sentenced Appellant to serve five years of probation for her
Section 3502(a)(1)(i) burglary conviction.2 Appellant filed a timely notice of
appeal. She raises one claim to this Court:
The evidence was insufficient to convict [Appellant] of
burglary pursuant to 18 Pa.C.S.A. § 3502(a)(1)(i) or 18
Pa.C.S.A. § 3502(a)(1)(ii). The Commonwealth failed to
prove, beyond a reasonable doubt, that, when [Appellant]
entered onto [the Victim’s] front porch, she had
contemporaneously formed the specific intent to assault her.
____________________________________________
1 18 Pa.C.S.A. §§ 3502(a)(1)(i), 3502(a)(1)(ii), and 2701(a)(1), respectively.
2 The trial court imposed no further penalty for Appellant’s remaining
convictions.
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Appellant’s Brief at 13 (some capitalization omitted).
We review Appellant’s sufficiency of the evidence challenge under the
following standard:
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 [that of] 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. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
trier 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. Callen, 198 A.3d 1149, 1167 (Pa. Super. 2018) (citations
and quotation marks omitted).
As is relevant to the case at bar, the offense of burglary is defined in
the following manner:
(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
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time of the offense any person is present and the person
commits, attempts or threatens to commit a bodily injury
crime therein;
(ii) 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;
...
(e) Definitions.--As used in this section, the following words
and phrases shall have the meanings given to them in this
subsection:
“Bodily injury crime.” As follows:
(1) An act, attempt or threat to commit an act which
would constitute a misdemeanor or felony under the
following:
...
Chapter 27 (relating to assault).
18 Pa.C.S.A. § 3502.
On appeal, Appellant claims that the evidence was insufficient to support
her burglary convictions. In particular, Appellant claims, the Commonwealth
failed to prove that she had the specific intent to assault the Victim at the time
she entered the Victim’s front porch. Appellant’s Brief at 13. To support this
claim, Appellant observes that the Commonwealth always bears the burden of
proving the elements of a crime beyond a reasonable doubt. See id. at 22.
Appellant further observes that, in this case, “there was no testimony
presented at trial by either party describing the nature of [the Victim’s] front
porch.” Id. at 21. Therefore, according to Appellant, “there is no reason to
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believe that [the Victim’s] front porch was not surrounded by [an] . . .
enclosure [or] that her porch did not have a gate, awning, or other mechanism
for maintaining privacy.” Id. at 22. Thus, Appellant claims, for the sake of
this appeal, we must assume that the front porch was part of the Victim’s
home. Id.
With it established that the front porch was a part of the Victim’s home,
Appellant claims that the trial court found, as a fact, that Appellant “went to
[the Victim’s] home with the specific intent of exchanging her children with”
Mr. Hundley. Id. at 11. As a result, Appellant claims, the evidence is
insufficient to support her burglary convictions, as “she did not form the
specific intent to assault [the Victim] until after she had already entered onto
the front porch.” Id. at 24. Appellant’s claim fails.
At the outset, Appellant is obviously correct in noting that “the
Commonwealth bears the burden of proving every element of the offense
beyond a reasonable doubt.” Commonwealth v. Lopez, 565 A.2d 437, 439
(Pa. 1989). Appellant is also correct in observing that, at trial, neither party
presented any evidence that would describe the appearance or characteristics
of the Victim’s front porch. See N.T. Trial, 11/3/21, at 1-103. Hence, for
purposes of this appeal, we will assume that the Victim’s front porch was fully
enclosed and gated with a door and, thus, was included within the definition
of the Victim’s “building or occupied structure.” See State v. Stone, 567
S.E.2d 244, 247 (S.C. 2002) (holding that a fully-enclosed screened-in porch
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was a part of a “dwelling” for purposes of the burglary statute and listing cases
from other jurisdictions that have held the same).
Nevertheless, Appellant’s claim falls apart because the trial court simply
did not render a factual finding that Appellant “went to [the Victim’s] home
with the specific intent of exchanging her children with” Mr. Hundley. Id. at
11. To the contrary, the trial court expressly rejected this particular
characterization of its factual findings and clarified that it found, as a fact, that
Appellant “used the custody exchange as an opportunity to assault” the
Victim. Trial Court Opinion, 4/12/22, at 4 (emphasis added). The trial court
explained:
[Appellant] claims that the evidence only established
her intent to facilitate a custody exchange. Her claim
is wholly without merit because the evidence in this
case sufficiently established that [Appellant] intended
to commit an assault when she entered [the Victim’s]
residence. While there is no question that a custody
exchange occurred, [Appellant] used the custody
exchange as an opportunity to assault [the Victim].
The credible evidence established that [Appellant] punched
and pushed her way into [the Victim’s] residence and
violently assaulted [the Victim] inside her residence.
[Appellant] warned [the Victim] that [the Victim] knew
[Appellant] wanted to assault her and she threatened to kill
and shoot her. [The Victim] has previously told [Appellant]
she was not welcome at the residence and [Appellant] had
previously sent threatening text messages or voicemails to
[the Victim]. In [the trial court’s] estimation, there is no
question that [Appellant] entered [the Victim’s]
residence with the intent to assault her. She also made
various threats, including terroristic threats. Thus, this
evidence was sufficient to convict [Appellant] of two counts
of burglary.
Id. (some capitalization omitted) (emphasis added).
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We agree with the trial court and conclude that the evidence is sufficient
to establish that Appellant “used the custody exchange as an opportunity to
assault” the Victim. Id. This evidence includes the Victim’s testimony that:
prior to the assault, Appellant had “threatened [the Victim] and [the Victim]
didn’t feel safe with [Appellant] coming to [her] house;” prior to the assault,
the Victim informed Appellant that she was not permitted to be on her
property and that Appellant was to drop the children off “at the corner;”
Appellant never dropped the children off at the Victim’s home in the past;
when the Victim asked the children to come inside the house, Appellant
aggressively “kept stepping in [the Victim’s] face;” during the assault,
Appellant repeatedly stated that the Victim “knew” Appellant “wanted” her;
and, during the assault, Appellant stated that she did not “give a F” about the
presence of the children and that she was “going to shoot [the Victim and
was] going to kill” her. N.T. Trial, 11/3/22, at 18, 19, 30, 46, and 47. Thus,
we conclude that the evidence is sufficient to establish that, when Appellant
entered the Victim’s front porch, she had already formed the specific intent to
assault the Victim. Consequently, Appellant’s claim on appeal fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2023
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