Com. v. Yellock, L.

J-A12004-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LARRY YELLOCK :
:
Appellant : No. 1390 EDA 2022
Appeal from the Judgment of Sentence Entered January 27, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006672-2019
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 10, 2023
Appellant, Larry Yellock, appeals from the January 27, 2022 judgment
of sentence entered in the Court of Common Pleas of Philadelphia County after
a trial court, in a non-jury trial, convicted him of criminal trespass.1 Appellant
was sentenced to 18 months’ probation. We affirm.
The record reveals that Appellant was charged with burglary – overnight
accommodation, no person present (Count 1), theft by unlawful taking or
disposition – moveable property (Count 2), receiving stolen property (Count
3), and criminal trespass (Count 4).2 On November 8, 2021, Appellant
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1 18 Pa.C.S.A. § 3503(a)(1)(i).
2 18 Pa.C.S.A. §§ 3502(a)(2), 3921(a), 3925(a), and 3503(a)(1)(i),
respectively.
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proceeded to a non-jury trial, having waived his right to a jury trial. N.T.,
11/8/21, at 5-8.
The trial court summarized its factual findings, based upon the evidence
presented in the non-jury trial, as follows:
[The victim] rented the top floor of a house [located in]
Philadelphia[, Pennsylvania] in July 2019. [Appellant] lived in the
rental unit below. [Appellant] was an experienced contractor, had
previously done work for the landlord[, and] according to
[Appellant’s] own testimony helped [the landlord] with “business
savvy-ness.”
On August 2, 2019, [the victim] sent [the landlord] a [text
message via her cellular telephone] threatening to leave her
apartment and to withhold rent if he failed to fix water damage to
her unit. [The landlord and the victim] exchanged [text
messages] on [August 10, 2019,] about an insurance adjustor
visiting her unit.
[Appellant] agreed to purchase the [residential building] from [the
landlord] with a closing at or near the beginning of September
2019. [Appellant] testified that [the landlord] needed [the victim]
to [vacate her apartment] before [the landlord] sold the property
to [Appellant]. A realtor [] advised [the landlord] that the
property was zoned [single family] residential, and that [the
landlord] was violating the zoning restrictions by renting [portions
of the building. Appellant] believed [the victim] had to be
removed before the property could be sold.
On September [3, 2019, the victim’s] neighbor[] called [the
victim] to report that [Appellant] was removing [the victim’s]
belongings from her apartment and placing them in a truck. [The
neighbor] also called the police, who arrived and left before [the
victim] returned home. [Appellant] told the police he was the
landlord.
When [the victim] arrived [home], she could not get inside her
apartment. She [sent a text message to Appellant, asking] him
to let her in [her apartment]. He replied that her things were no
longer in the apartment[,] and there was “no need for her to be
here.” [The victim] then called the police. [The victim] also spoke
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to [the landlord. The landlord] gave her the impression he did not
“even have any idea what was going on.”
[Appellant] placed [the victim’s] belongings in a storage unit.
[The landlord] provided [the victim] with the key [to the storage
unit. The landlord] then “hired someone” to return [the victim’s]
belongings. [The victim] suffered a loss of [$10,000.00;
$8,000.00] in damage to her furniture and $2,000[.00] in missing
cash from her dresser.
[Appellant] testified that [the landlord] had given him a key to
[the victim’s] apartment on September 3[, 2019,] and [] hired
him to remove [the victim’s] belongings and change the locks.
Neither the prosecution nor the defense called [the landlord] to
testify [at trial].
The piece of paper [Appellant] gave to the police and represented
to be an eviction notice appears to be a homemade, unsigned draft
document dated July 31, 2019. The document bears no letterhead
or official insignia and gives no indication of service. The
makeshift draft eviction notice states[,] (1) [Appellant] would
purchase the home “within thirty days,” (2) “tenant agreements
will not be honored or renewed,” (3) [the victim] had to leave by
September 1[, 2019], and (4) “any items left behind will be left
out for trash as of September 10, 2019.” [Appellant] did not offer
a signed copy of the makeshift draft eviction notice at trial. [The
victim] denied receiving any “formal writing” of eviction.
[The trial court] found [the victim’s] testimony credible and
[Appellant’s testimony to be] “self-serving.”
Trial Court Opinion, 9/26/22, at 2-3 (record citations and original brackets
omitted).
At the conclusion of the Commonwealth’s case, Appellant moved for
judgment of acquittal on Counts 2 and 3. The trial court denied Appellant’s
motion. Ultimately, the trial court found Appellant guilty of Count 4 – criminal
trespass, and not guilty of the remaining criminal charges (Counts 1, 2, and
3).
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On January 27, 2022, Appellant was sentenced to 18 months’ probation
for the aforementioned conviction, and ordered to pay $757.75 in mandatory
court costs. Appellant subsequently filed a timely post-sentence motion,
requesting the trial court vacate his sentence and enter a judgment non
obstante veredicto (“JNOV”), or alternatively order a new trial. On April 22,
2022, the trial court denied Appellant’s post-sentence motion. This appeal
followed.3
Appellant raises the following issues for our review:
[1.] Did the [trial] court err and abuse its discretion when it
admitted hearsay evidence that was prejudicial to
[Appellant]?
[2.] Was the evidence insufficient to prove beyond a reasonable
doubt that [Appellant] knew he was not licensed or
privileged to enter the property?
[3.] Did the [trial] court err and abuse its discretion when it
denied [Appellant’s] post-sentence motion for a new trial
where the verdict was so against the weight of the evidence
as to shock the conscience?
Appellant’s Brief at 3.4
Appellant’s first issue challenges the admissibility of evidence, for which
our standard of review is well-settled. “An appellate court's standard of review
of a trial court's evidentiary rulings, which include rulings on the admission of
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3 Both Appellant and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.
4 For purpose of disposition, Appellant’s issues have been reorganized.
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hearsay, is abuse of discretion.” Commonwealth v. Rivera, 238 A.3d 482,
492 (Pa. Super. 2020) (original brackets omitted), appeal denied, 250 A.3d
1158 (Pa. 2021).
“Hearsay” is defined as “a statement that [] the declarant does not make
while testifying at the current trial or hearing[, and] a party offers in evidence
to prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c)(1)
and (2). A “statement” is defined as “a person's oral assertion, written
assertion, or nonverbal conduct, if the person intended it as an assertion.”
Pa.R.E. 801(a). “Hearsay generally is inadmissible unless it falls within one of
the exceptions to the hearsay rule delineated in the Pennsylvania Rules of
Evidence.” Rivera, 238 A.3d at 492 (citation and original quotation marks
omitted); see also Pa.R.E. 802.
Here, Appellant asserts that the victim “testified to the content of an
out-of-court conversation between her and the landlord.” Appellant’s Brief at
25. Appellant contends that “[w]hile [the victim] did not repeat the landlord’s
words verbatim, she testified that the landlord led her to believe that he did
not know why she had been evicted.” Id.
A review of the record demonstrates the following pertinent testimony:
[Commonwealth:] At some point did you [(the victim)] find
out what had happened to your items?
[Victim:] Yes.
[Commonwealth:] Tell the [trial court] how you found out
and where they were.
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[Victim:] When my landlord, my actual landlord
came home from work, he told me that
[Appellant] had given him a key to the
storage [unit] for me to get my things.
And I’m just like, well, why did he do that
at all, he shouldn’t have had the right to
touch my stuff in the first place, and then
he gave me the key –
[Defense Counsel:] I’m just going to object to any of
the hearsay from this other
individual, Your Honor. I do not
believe that the person is here.
[Trial Court:] Sustained.
[Commonwealth:] And did the landlord even have any idea
what was going on?
[Victim:] No.
[Defense Counsel:] Objection again, Your Honor.
[Trial Court:] Was that your [(the victim’s)]
impression at the time?
[Victim:] Yes.
[Trial Court:] Okay. Overruled.
N.T., 11/8/21, at 26-27.
It is clear from the record that the trial court did not permit the victim
to testify regarding the out-of-court statements that landlord made to her,
including his non-verbal conduct. The trial court, however, did permit the
victim to testify as to the impression the victim formed based upon her
interaction with the landlord. In other words, the trial court permitted the
victim to testify that, based upon her interaction with the landlord, she was
under the impression that that landlord did not know why Appellant had
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removed the victim’s items from her apartment and placed them in a storage
unit. First, the victim’s statement regarding her impression is not hearsay
because it is not an out-of-court statement, but rather, was a statement the
victim made in-court while subject to cross-examination by defense counsel.
Moreover, the statement was not being offered to prove the truth of the matter
asserted, i.e., that the landlord did not know why Appellant acted in
accordance with his conduct. Rather, the statement was being offered to
demonstrate that the victim believed, or was under the impress that, the
landlord did not know the reason for Appellant’s actions. As such, we discern
no error or abuse of discretion in the trial court’s evidentiary ruling.
Appellant’s second issue raises a challenge to the sufficiency of the
evidence to support his conviction of criminal trespass, namely that the
evidence was insufficient to establish the mens rea element of the crime.
Appellant’s Brief at 14-20.
Our standard and scope of review for a challenge to the sufficiency of
the evidence is well-settled.
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
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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 [fact-finder] 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. Reed, 216 A.3d 1114, 1119 (Pa. Super. 2019).
Section 3503(a)(1)(i) of the Crimes Code states that a person is guilty
of criminal trespass “if, knowing that he[, or she,] is not licensed or privileged
to do so, he[, or she,] enters, gains entry by subterfuge[,] or surreptitiously
remains in any building or occupied structure or separately secured or
occupied portion thereof[.]” 18 Pa.C.S.A. § 3503(a)(1)(i). Thus, the
Commonwealth must prove that a defendant (1) knew he or she was not
licensed or privileged to enter the premises (the mens rea element) and (2)
he or she entered the premises. See Commonwealth v. Jackson, 10 A.3d
341 (Pa. Super. 2010). “A person acts knowingly with respect to a material
element of an offense when[,] if the element involves the nature of his[, or
her,] conduct or the attendant circumstances, he[, or she,] is aware that his[,
or her,] conduct is of that nature or that such circumstances exist[.]” 18
Pa.C.S.A. § 302(b)(2)(i).
“[A] bona fide, reasonable mistake of fact may, under certain
circumstances, negate the element of criminal intent.” Commonwealth v.
Bradley, 232 A.3d 747, 759 (Pa. Super. 2020), citing Commonwealth v.
Namack, 663 A.2d 191, 194 (Pa. Super. 1995); see also 18 Pa.C.S.A.
§ 304(1) (providing, “[i]gnorance or mistake as to a matter of fact, for which
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there is reasonable explanation or excuse, is a defense if[] the ignorance or
mistake negatives the intent, knowledge, belief, recklessness, or negligence
required to establish a material element of the offense”). “It is not necessary
that the facts be as the actor believed them to be[. I]t is only necessary that
he have a bona fide and reasonable belief in the existence of facts which, if
they did exist, would render an act innocent.” Commonwealth v. Hamilton,
766 A.2d 874, 879 (Pa. Super. 2001) (citation and original quotation marks
omitted). “When evidence of a mistake of fact is introduced, the
Commonwealth retains the burden of proving the necessary criminal intent
beyond a reasonable doubt.” Id. (citation omitted). “If the Commonwealth
does not rebut a defendant's good faith, reasonable mistake of fact that he
was permitted to be on the property, then the evidence is insufficient to prove
that the defendant knew he was not licensed or privileged to be there.”
Commonwealth v. Coniker, 290 A.3d 725, 737 (Pa. Super. 2023).
In finding sufficient evidence existed to support Appellant’s conviction
of criminal trespass, the trial court explained,
[The landlord’s] provision of a key to [Appellant] - even if
true - does not establish a good faith belief of license or
permission to enter [the victim’s] apartment to remove her
belongings. [Appellant] knew [the victim] had not been evicted.
The makeshift eviction notice admitted as [Commonwealth
Exhibit] C-4 and [Defense Exhibit] D-7 was dated July 31, 2019.
By its own (draft) terms, it advised [the victim] her belongings
would not be removed until September 10[, 2019. Appellant]
entered [the victim’s] apartment on September 3[, 2019, a week
before the deadline in the draft letter. The premature entry put
[Appellant] on notice that he lacked permission. The nature and
form of the document also put him on notice. [Appellant] claimed
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he was "savvy." Yet, the piece of paper on which he purported to
rely lacked a signature and any indication of administrative or
judicial process. It was not reasonable for [Appellant] to rely on
this deficient, unsigned, and unserved document. The fact that
[the landlord] may have given [Appellant] a key under these
circumstances shows, at best, that the two men were complicit.
[Appellant], moreover, had a motive to act in bad faith. He had
wanted to close on the property in late August. [Appellant] further
testified that a realtor [] advised [the landlord] to evict the tenants
before the appraisal. These circumstances reveal that the removal
of [the victim’s belongings] was part and parcel of [Appellant’s]
plan to buy the property. [Appellant] had a motive to enter [the
victim’s] apartment without permission to remove her possessions
and change the lock. The trial court reasonably rejected
[Appellant’s] exculpatory testimony as self-serving.
Trial Court Opinion, 9/26/22, at 5-6.
The record demonstrates that, at trial, the victim testified that she never
“received any type of notice about [] having to vacate [her] apartment.” N.T.,
11/8/21, at 15, 35. The sum of her testimony was that she left for work on
the day of the incident; while at work, she received a telephone call from a
neighbor alerting her that Appellant was removing her possessions from the
house; upon arriving home, her key no longer opened the front door of the
house; and that she learned her possessions had been removed from the
apartment and were being housed in a storage unit. Id. at 16-33.
Appellant testified that he had been hired by the landlord to remove the
victim’s possessions from the apartment and that he understood the victim
had been evicted. Id. at 82, 87, 90. Appellant further testified, at trial, that
on the day of the incident, the landlord “provided [him] with a key [to the
victim’s apartment and], upon going to the front door [of the apartment he]
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knocked, the door was open, [he] turned the [door] knob, [and he asked,]
“Hello, are you here.” Id. at 88.
At trial, the Commonwealth introduced, and played, a recording of
Appellant’s interview by police on September 3, 2019. Id. at 61-63; see also
Commonwealth Exhibit C-3. During that interview, Appellant explained that
he had an agreement to purchase the property from the landlord, who he
referred to as his cousin, and that he had been advised by his realtor that the
tenants needed to vacate the property before the completion of the sale
because the property was zoned as a single family residence. See
Commonwealth Exhibit C-3. Appellant also explained that a leaking air
conditioning unit in the victim’s apartment recently caused water damage to
the victim’s apartment, as well as his apartment, which was located directly
beneath the victim’s apartment. Id. Appellant told police that he needed to
renovate both apartments before the appraisal of the property was completed
and, because he had no other place to live, he needed the victim to leave her
apartment, so he could first renovate her apartment, then relocate to that
apartment while he renovated his own apartment. Id. Appellant explained
that the victim was refusing to leave her apartment and that she was “holding
up the deal.” Id. Appellant claimed that the victim was “a friend of a friend”
that the landlord was helping by providing a place to live and that the victim
did not have a lease with the landlord. Id. Appellant testified that the landlord
was handling the tenant evictions because Appellant was not a landlord and
did not understand landlord-tenant law, but then stated that he was advising
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the landlord, his cousin, because Appellant was “more business savvy” and
that the landlord essentially made Appellant the property manager. Id.
Appellant told police that he believed the landlord sent a notice to the victim
that she needed to vacate the apartment by September 1, 2019, but that the
victim said she wasn’t going anywhere. Id. On the day of the incident,
Appellant said that he was able to enter the victim’s apartment and remove
her possessions because he knew the victim never locked her apartment door.
In viewing the evidence in the light most favorable to the
Commonwealth, as verdict winner, sufficient evidence was presented to prove
beyond a reasonable doubt that Appellant knowingly entered the victim’s
apartment without license or privilege. Appellant entered the victim’s
apartment without proof that (1) the landlord had properly notified the victim
that she was being evicted, (2) his removal of the victim’s possession was the
proper method for eviction, or (3) he had proper permission to enter the
victim’s apartment. While Appellant may not understand landlord-tenant law,
and in particular the nuances of eviction, this mistake of law does not provide
a defense for his actions. By his own admission, Appellant is “business savvy”
and was advising the landlord throughout the real estate transaction. As such,
it would be unreasonable that the receipt of an unsigned letter, informing a
tenant that he or she must vacate an apartment, without proof of service
would lead a “business savvy” person to believe the tenant had been properly
evicted. Therefore, Appellant’s sufficiency claim is without merit.
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In his final issue, Appellant raises a claim that the verdict was against
the weight of the evidence, for which our standard and scope of review is as
follows:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial [court]
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial [court] when reviewing a trial
court’s determination that the verdict is [or is not] against the
weight of the evidence. One of the least assailable reasons for
granting or denying a new trial is the [trial] court’s conviction that
the verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
Commonwealth v. Horne, 89 A.3d 277, 285 (Pa. Super. 2014), citing
Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000). A trial court abuses
its discretion “where the course pursued represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or where the
law is not applied or where the record shows that the action is a result of
partiality, prejudice, bias[,] or ill-will.” Horne, 89 A.3d at 285-286 (citation
omitted); see also Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)
(stating, “[t]he term ‘discretion’ imports the exercise of judgment, wisdom[,]
and skill so as to reach a dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving effect to the will of the [trial
court]”). For an appellant to prevail on a weight of the evidence claim, “the
evidence must be so tenuous, vague[,] and uncertain that the verdict shocks
the conscience of the [trial] court.” Commonwealth v. Sullivan, 820 A.2d
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795, 806 (Pa. Super. 2003) (citation and internal quotation marks omitted),
appeal denied, 833 A.2d 143 (Pa. 2003).
When the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court's
decision is extremely limited. Generally, unless the evidence is so
unreliable [or] contradictory as to make any verdict based thereon
pure conjecture, these types of claims are not cognizable on
appellate review.
Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa. Super. 2012), appeal
denied, 64 A.3d 630 (Pa. 2013).
Here, Appellant challenges the weight of the evidence to support his
conviction, asserting that “little weight” should be given to the victim’s
testimony that Appellant identified himself as the landlord, and that the actual
landlord gave the victim the impression that he did not know why she had
been evicted. Appellant’s Brief at 23. Appellant argues,
The totality of the evidence shows that [Appellant] acted
innocently. The substantial evidence of his reasonable mistake of
fact is of much greater weight than the limited evidence that could
support any inference of guilty knowledge.
Id. at 24.
In denying Appellant’s post-trial motion challenging the weight of the
evidence, the trial court explained,
[The trial court] found [the victim’s testimony] credible and
[Appellant’s testimony] was not credible. Reasonable inferences
from the evidence support a finding that [Appellant] acted in bad
faith.
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Trial Court Opinion, 9/26/22, at 10; see also N.T., 11/8/21, at 111 (stating,
“[The trial court] does find [the victim’s] testimony to be credible. Regarding
[Appellant’s] testimony, his testimony in [the trial court’s] view is
self-serving.”).
Critical to finding Appellant guilty of criminal trespass and subsequently
denying Appellant’s post-trial motion raising a weight of the evidence claim
was the trial court’s determination of witness credibility. Here, the trial court
considered the credibility of the witnesses and explained its rationale for
finding Appellant’s testimony not to be credible. N.T., 11/8/21, at 111-112.
Appellant’s assertion that the trial court erred by denying his weight claim
based upon the credibility determinations assigned to the testimony provided
by the evidence invites this Court to do nothing more than reassess the
witness credibility and reweigh the evidence in an attempt to convince us to
reach a result different than the one reached by the trial court, as fact-finder.
We decline Appellant’s invitation since the fact-finder, while passing on the
credibility of the witnesses and the weight of the evidence, is free to believe
all, part, or none of the evidence. Commonwealth v. Dunkins, 229 A.3d
622, 634 (Pa. Super. 2020), aff’d, 263 A.3d 247 (Pa. 2021), cert. denied, 142
S.Ct. 1679 (2022). Based upon our review of the record and the trial court’s
rationale for denying Appellant’s post-trial motion raising a weight of the
evidence claim, we discern no error of law or abuse of discretion in the trial
court’s determination that the verdict was not against the weight of the
evidence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2023
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