J-S35008-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANDRES O. JONES : : Appellant : No. 1430 MDA 2022
Appeal from the Judgment of Sentence Entered July 18, 2022 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000327-2021
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED: OCTOBER 30, 2023
Andres Jones appeals his judgment of sentence for criminal trespass,
resisting arrest and public drunkenness. He claims the evidence was
insufficient to support each of his three convictions and that the verdict was
against the weight of the evidence. Based largely on the well-reasoned trial
court opinion, we affirm.
We borrow liberally from the trial court’s recitation of the facts, which is
supported by the record. Jones and his fiancé at the time, Kelsey Hoxsie, lived
together with their son and Jones’s daughter from a previous relationship. On
November 22, 202, Jones and Hoxsie went to a party at the apartment of their
neighbor, Jamie Stare. Stare’s brother, Jay Deininger, and Jacob Crablo also
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S35008-23
attended the party, where alcohol was being served. Jones and Hoxsie left the
party late in the evening and went to their apartment next door. At
approximately 3:30 a.m., Jones and Hoxsie got into an argument. Hoxsie
grabbed her son, and the two went to Stare’s apartment and hid in the
bathroom.
Jones followed Hoxsie next door. He knocked loudly on the door.
Deininger answered the door, and while there is some dispute as to how Jones
gained entry, it is undisputed that he entered the apartment. Deininger and
Crablo subsequently scuffled with Jones, but they were eventually able to
force Jones from the apartment and onto the front porch shared by the two
apartments.
Shortly thereafter, Officer Michael McGrath of the Wilkes-Barre City
Police Department arrived at the scene and found Jones’s body halfway
through the front porch window to Stare’s residence. Officer James Fisher also
responded to the scene.
While Jones disputes what happened next, we note that Officer McGrath
testified that he climbed the front porch stairs, at which point Jones assumed
a fighting stance and said “Let’s go bro.” N.T., 4/29/2022, at 66. According to
Officer McGrath, Jones smelled of alcohol and showed signs of intoxication.
Officer McGrath spoke to the people inside Stare’s apartment and then
informed Jones he was under arrest. When Officer McGrath attempted to
handcuff Jones, Jones pulled away and refused to put his hands behind his
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back. Officer Fisher then pulled out his taser device and told Jones to comply.
Jones responded that he wasn’t scared as he had “been tased before.” Id. at
45.
Officer Fisher called for additional officers, and two other officers arrived
on the scene. The officers were able to take Jones to the ground, and although
Jones continued to resist, the officers were ultimately able to place him into
custody. Officer McGrath noted that the incident created substantial noise in
an otherwise quiet residential neighborhood, and neighbors turned on their
lights in response to the disturbance.
Jones was charged with criminal trespass, simple assault, disorderly
conduct, resisting arrest and public drunkenness. The matter proceeded to a
jury trial, at which Hoxsie, Officer McGrath, Officer Fisher, Deininger and
Crablo all testified for the Commonwealth. Jones testified in his own defense.
Nonetheless, the jury convicted Jones of criminal trespass and resisting arrest.
The trial court, meanwhile, found Jones guilty of the summary offense of public
drunkenness. The court sentenced Jones to an aggregate probationary term
of 15 months in the county intermediate punishment program, with the first
30 days to be served in prison followed by three months under house arrest.
Jones filed post-sentence motions, which the court denied. He then filed
a timely notice of appeal and complied with the court’s directive to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. In the
statement, Jones complained there was insufficient evidence to support any
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of the three convictions and that the convictions were against the weight of
the evidence.
The trial court issued a responsive Rule 1925(a) opinion, in which it
thoroughly addressed each of Jones’s claims. The court initially recounted the
standard of review applicable to sufficiency claims, see Trial Court Opinion,
1/5/2023, at 5, and then individually reviewed the evidence supporting each
of Jones’s three convictions.
First, the court outlined what the Commonwealth was required to prove
in order to sustain a criminal trespass conviction, which a person is guilty of
“if, knowing that he is not licensed or privileged to do so, he … breaks into
any building or occupied structure or separately secured or occupied portion
thereof.” Id. at 6 (quoting 18 Pa. C.S.A. § 3503(a)(1)(ii)). The court then
explained how the evidence that Jones forced himself into the residence and
then began climbing through the front porch’s window was sufficient to sustain
such a conviction here. See Trial Court Opinion, 1/25/2023, at 6-8. It
specifically rejected Jones’s arguments that he had permission to enter Stare’s
residence and that he had not broken into Stare’s apartment. See id. at 7-8.
The court then noted what the Commonwealth needed to prove in order
to sustain Jones’s conviction for resisting arrest, which a person commits “if,
with the intent of preventing a public servant from effecting a lawful arrest or
discharging any other duty, the person creates a substantial risk of bodily
injury to the public servant or anyone else, or employs means justifying or
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requiring substantial force to overcome the resistance.” Id. at 8-9 (quoting
18 Pa. C.S.A. § 5104). The court “did not hesitate to conclude” the evidence
was sufficient to support a conviction here, explaining:
Officer McGrath of the Wilkes-Barre City police department testified that as he responded to a 4 AM 911 call for a disorderly male[,] he observed him hanging inside an open window. The Officer approached [Jones] who turned toward him, squared up in a fighting stance and said “Let’s go bro.” He ignored the threat of a taser and refused to comply with lawful commands. Ultimately it took Officer McGrath, Officer Fisher and two other responding officers to wrestle him into handcuffs.
Trial Court Opinion, 1/5/2023, at 9.
The trial court then turned to Jones’s claim that the evidence had been
insufficient to support his conviction for public drunkenness, which a person
is guilty of “if he appears in any public place manifestly under the influence of
alcohol or a controlled substance … to the degree that he may endanger
himself or other persons or property, or annoy persons in his vicinity.” Id. at
10 (quoting 18 Pa. C.S.A. § 5505). In finding the Commonwealth had
presented sufficient evidence to sustain the conviction here, the trial court
specifically rejected Jones’s claim that the shared front porch was not a “public
place” and he therefore could not be convicted of public drunkenness. See
Trial Court Opinion, 1/5/2023, at 11-13 (citing Commonwealth v.
Whritenour, 751 A.2d 687, 688 (Pa. Super. 2000) (holding limited access
road in private community was a “public place”)).
Lastly, the trial court rejected Jones’s challenges to the weight of the
evidence based on his assertions of witness bias and conflicting testimony.
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The trial court summarized the evidence at trial and found the evidence was
not so contrary to the verdict as to “shock [its] sense of justice,” as a court is
required to find before ruling that the verdict was against the weight of the
evidence. See id. at 14-15 (citing Commonwealth v. Cousar, 928 A.2d
1025, 1036 (Pa. 2007)). The court also noted that it is the province of the
fact-finder to assess the credibility of witnesses. See Trial Court Opinion,
1/5/2023, at 14 (citing Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.
Super. 2007)).
In his appellate brief, Jones’s first three issues focus on the sufficiency
of the evidence underlying his three convictions. However, we detect no error
in the trial court’s conclusion that the evidence was sufficient to sustain each
of Jones’s convictions. Jones does not convince us otherwise. With one notable
exception, Jones essentially renews arguments on appeal that he raised in his
Rule 1925(b) statement and which the trial court found to be without merit.
We agree with the trial court that these arguments are without merit and
adopt its analysis on the sufficiency claims as our own. See Trial Court
Opinion, 1/5/2023, at 5-13.
The one notable exception referenced above is Jones’s argument
regarding the sufficiency of his resisting arrest conviction. In his Rule 1925(b)
statement, Jones specifically argued only that his actions “did not create a
situation where a substantial risk of bodily injury to the public servant or
anyone existed or that his actions required substantial force to overcome the
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resistance.” Statement of Matters Complained of On Appeal, 11/23/2022, at
1 (unpaginated). He abandons that argument on appeal, instead raising the
distinct argument that there was no lawful arrest for him to resist. This claim
is waived. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)
(holding that any issues not raised in a Rule 1925(b) statement are deemed
waived).
In his final claim, Jones challenges the trial court’s conclusion that the
verdict was not against the weight of the evidence. Our review of such a claim,
as Jones recognizes, is limited to whether the trial court palpably abused its
discretion in denying the weight claim. See Commonwealth v. Martin, 297
A.3d 424, 436 (Pa. Super. 2023). As noted above, the trial court recounted
the evidence at trial and found the verdict was not against the weight of this
evidence:
First, [Jones] challenges the [jury’s] conclusion that he was without privilege to enter the residence at [Stare’s residence]. He represented that his presence was permissive. This claim is meritless. [Jones] was physically removed from the residence after a fight with other guests there. Soon after he opened a window at [Stare’s residence] and was observed hanging through that window. Two unrelated witnesses, one from outside and another from the inside the residence, saw him do this. [Jones’s] testimony that another party opened the window does not change the fact that he sought to enter another’s residence through an opening not designed for human access in circumstances which demonstrate that he was not privileged to do so. Welcome guests do not usually enter by the window. …
Next, [Jones] complains in two related issues that the verdict is against the weight of the evidence because of conflicting testimony, and bias of the witnesses. … The police and lay witnesses testified to facts which taken together seemed logical
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and credible. The jury was aware that, with the exception of [Jones’s] girlfriend who was running away from him, [] all the witnesses, including the police, did physically fight with [Jones] on the night of his arrest. We do not doubt that this caused him to suspect that these witnesses are not likely to offer testimony favorable to him. The [jury’s] resolution of that credibility issue does not shock our sense of justice.
Trial Court Opinion, 1/5/2023, at 14-15. Although Jones continues to argue
the Commonwealth’s witnesses were either biased or not credible, it is, as the
trial court noted, the province of the fact-finder to assess the credibility of the
witnesses. See Bruce, 916 A.2d at 661. Jones has simply not shown any
palpable abuse of discretion on the part of the trial court.
Based on the above, we find that Jones’s sufficiency and weight claims
are without merit, and we therefore affirm his judgment of sentence. Because
of our reliance on the trial court’s January 5, 2023 opinion, we have attached
a copy of the opinion to this memorandum. The parties are instructed to attach
the same to all future filings.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 10/30/2023
-8- Circulated 10/19/2023 10:05 AM
11TH JUDICIAL DISTRICT OF PENNSYLVANIA 1{I
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY
V. CRIMINAL CRIMINAL DIVISION ANDRES 0. O. JONES Defendant /I Appellant Defendant
No. No. 327 327 of of 2021 2021 .
OPINION
BY: THE HONORABLE DAVID W. LUPAS CLERY.OF COURTS CRIMIPIRL CLERK OF CURTS CRIMDL LUZ CNTY JRNSTSP0:13 JANE/23e13 ,. I. FACTS AND PROCEDURAL HISTORY:
This matter comes before the Court pursuant pursuant to a a Criminal Information
filed on April April 23, 23, 2021, 2021, against against the above-named Appellant Appellant by the District
Attorney Attorney of Luzerne County. The Information Luzerne County. Information charged charged the the Appellant Appellant with with
criminal trespass, trespass, 18 Pa.C,S.A. §3503(A)(1)(ii), Pa.C,S.A. §3503(A)(1)(ii), simple slmple assault, 18
Pa.C.S.A.§ 2701(A)(1), disorderly conduct, Pa.C.S.A$ 18 Pa.C.S.A.§5503(A)(1), Pa.C.S.A.,55503(4)(1)
resisting arrest, 18 Pa.C.S.A. §5104, resisting $5104, and public drunkenness, 18 Pa.C.S.A. Pa.C.S.A
§5505.
At trial, evidence was presented that on November 22, 2020, the
Appellant was Appellant aguest was a at "friends' guest at giving" party "friends' giving" party at at 96 96 Vilest Chestnut Street West Chestnut Street in in . Wilkes-Barre. At that time, he resided next door at 94 West Chestnut Street street
with his daughter, daughter, his girlfriend, girlfriend, Kelsey Hoxsie, their son. son. ((N.T. N.T. pg. 27) The ·
I holiday holiday party party at 96 West Chestnut Street featured alcohol. alcohol. (N.T. (N.T. pg. 34) late Late
in in the the evening, evening, sometime after 3AM, sometime after 3AM, the the Appellant and Ms. Appellant and Ms. Hoxsie, Hoxsie, began began to to
argue. He pulled pulled the blanket from her bed as she tried to sleep, called her
names and pulled names and pulled off off her her engagement engagement ring ring and and threw it across threw it across the room. the room.
(N.T. pg. 30) Ms. Hoxsie and her son then left left the residence at 94 West
Chestnut and went next door to 96 West Chestnut Street where she was
apparently admitted to enter. ((ld.) apparently Id.) Appellant followed her next door. He
knocked knocked loudly loudly on on the door which which was was answered answered by Jay Deininger who who
Appellant Appellant hip checked out of the way before he entered the residence. residence. (N.T. (N.T.
pg. 31, pg. 67) Appellant 31, 67) Appellant was was ordered ordered to to leave the residence, but he he refused. refused.
(N.T. (N.T. pg. 58) Ms. pg. 58) Ms. Hoxsie Hoxsie and and Appellant's daughter took Appellant's daughter took shelter shelter from from him in him in
the bathroom of 96 West Chestnut Street. Two guests guests at that residence, Jay
Deininger Deininger and Jacob Crablo, briefly briefly fought fought with the Appellant and ultimately,
he was removed from the residence. (N.T. pg. 68-69) The Appellant (N.T. pg.
persisted. He opened persisted. opened a awindow accessible from the front porch outside and
began to crawl through began through the window. window. ((Id.) Id.) It was at this time that police arrived
who who observed observed his body halfway through the open window. his body window. ((N.T. N.T. trial trial pg. 80- 80-
81)
Officers James Fisher and Michael McGrath both of the Wilkes-Barre Wilkes-Barre
City City Police Department Department responded to a a 911 call to 96 West Chestnut Street. Street. ,
2 2 •
(N.T. (N.T. pg. 41-42) 41-42) Upon arriving, arriving, Officer McGrath McGrath observed observed the the Appellant Appellant
hanging hanging through the front front window window of of 96 West West Chestnut. Chestnut. Office Office McGrath McGrath
ascended the front porch stairs where he was greeted by the Appellant who
squared squared up in a a fighting stance to face him saying, saying, ""Let's Let's go bro." bro." ((N.T. N.T. pg.
82). Officer McGrath who is experienced in observing persons under the
influence of drugs and alcohol noted that the Appellant smelled of alcohol
and appeared to be intoxicated. intoxicated. ((N.T. N.T. pg. 83). Officer Fisher attempted to
handcuff the Appellant Appellant but he refused to comply comply and he pulled away. away. ((N.T. N.T.
pg. 86) 86) Officer Fisher renewed his demand that the Appellant comply with
officers' directions pointing a a taser device at him. Appellant advised that he
wasn't "scared" wasn't had "been "scared" and that he had "been tased before." before." (N.T. (N.T. pg. 87, see also
pg. 45-46). Appellant continued to resist and itit took Officers Fisher, McGrath
and two other officers to take him to the ground where he continued to he continued to resist. resist.
(N.T. pg. 46). (N.T. pg. 46). With great effort, and at some personal risk to themselves,
police police took Appellant into took Appellant into custody. Officer'McGrath custody. Officer McGrath noted noted that that .some some other other
residences, in the neighborhood residences neighborhood.turned turned their lights on in response to the
disturbance disturbance created created by by Appellant's Appellant's conduct and and the the necessary necessary law law
enforcement response response thereto. thereto. ((N.T. N.T. pg. 89) 89) He also agreed that the fracas
by the Appellant necessitated by Appellant resulted in substantial noise which at an hour
3 3 •
between three and four AM* AM was unusual for the quiet residential
neighborhood. (N.T. neighborhood. pg. 79) (N.T. pg. 79)
A jury A jury trial commenced on trial commenced April ,19, on April 19, 2022, 2022, and and the the jury jury returned returned their their
verdict on verdict on April 20t, 20th. The The Appellant Appellant was was found found guilty guilty of of counts counts 1, 1, 4 and 5, 4 and 5, and and
not guilty guilty of counts 2 2and 3. A A presentence investigation investigation (PSI) (PSI) was Ordered
to be be completed by the Luzerne County Adult Probation and Parole
Department prior Department prior to to sentencing. sentencing. On On July 25, 2022, July 25, 2022, the the Defendant Defendant appeared appeared
before this Court for imposition of sentence. Upon a a review of the the.PSI, and
the arguments arguments of counsel we imposed imposed sentences within the standard range
of the sentencing sentencing guidelines. guidelines. On July July 28, 28, 2022, 2022, Appellant's Appellant's counsel filed a a
post sentence post sentence motion motion which vaguely vaguely raised weight weight and and sufficiency claims. claims.
We denied his motion by by Order dated September September 13, 2022. Thereafter, on
10, 2022, October 10, Appellant field a 2022, Appelant a counseled notice of appeal. We ordered
the Appellant to file the Appellant file his his concise concise statement pursuant pursuant to to Pa. Pa. R.A.P. R.A.P. 1925(b). 1925(b)
After After we granted Appellant's we granted request for Appellant's request for an an additional additional 20 days to file 20 days file his his
concise statement we received his filed allegations allegations of error on November 23,
2022. 2022.
For the reasons set forth below, the Appellant's appeal should be
denied and the verdicts and judgments judgments of sentence affirmed.
4 4 11. II. LAW AND DISCUSSION:
The Appellant's Concise The Appellant's Concise Statement Statement of Matters Complained of Matters Complained of on on
Appeal alleges insufficient Appeal alleges insufficient evidence evidence to support his to support convictions for his convictions for criminal criminal
trespass, trespass, resisting arrest arrest and public drunkenness. drunkenness. We We disagree.
When reviewing reviewing a a sufficiency sufficiency of the evidence claim, we view the
evidence and and all all reasonable reasonable inferences inferences to to be drawn from the evidence in the the
light light most favorable to the Commonwealth as verdict winner and determine
if if the the evidence, evidence, thus viewed, viewed, is is sufficient sufficient to prove prove guilt beyond a a reasonable
doubt. A A reviewing reviewing 'court court may not substitute its judgment for that of the
factfinder. If the record contains support for .the support for the verdict, it may not be
disturbed. disturbed. Moreover, Moreover, a a jury may believe all, jury may all, some some or none a party's none of a
testimony and the Commonwealth may testimony may sustain its burden by by means of wholly
circumstantial circumstantial evidence. Commonwealth y, evidence. Commonwealth v. McFarland, McFarland, 278 278 A.3d A.3d 369, 369, 381 381
(Pa Super (Pa Super 2022) 2022) (citations (citations omitted) Only where where the the evidence offered to
support support the verdict is in contradiction to the physical facts, in contravention
experience and the laws of nature, is it deemed insufficient as a to human experience a
matter matter of of law. Commonwealth Commonwealth v. y, Robinson, Robinson, 817 A.2d. A.2d. 1153, 1158
55 (Pa- Super. 2003 (Pa.Super. 2003 quoting quoting Commonwealth Commonwealth v. v, Santana, Santana, 460 460 Pa. Pa. 482, 482, 333 333 A.2d A.2d
876 ((1975)). 876 1975)).
The Appellant The Appellant alleges alleges that the there that the there is insufficient evidence is insufficient evidence to to prove prove
beyond a reasonable beyond a doubt that reasonable doubt that he broke into he broke into a a structure. structure. He alternately He alternately
argues that argues he was that he invited into was invited the structure into the structure and and was was there there permissibly. permissibly. The The
evidence presented presented at at trial trial belies belies this this claim. claim. A A person person commits commits the offense offense
of criminal trespass trespass ""if, if, knowing knowing that he he is not licensed licensed or or privileged privileged to to do do so, so,
he breaks he breaks into into any any building building or occupied structure or occupied structure or or separately separately secured or secured or
occupied portion occupied portion thereof." thereof." 18 Pa&3503(a)(1)(ii). 18_Pa.53503(a)(1(ii).
"A "A person person breaks breaks into into a building or a building occupied structure or occupied structure ifif he he gains gains entry entry
by force, breaking, by force, breaking, intimidation, intimidation, unauthorized unauthorized opening opening of locks, or through locks, or through an an
opening opening not designed for not designed for human access." 18 human access." 18 Pa.§ Pa.S 3503(a)(3). 3503(a)(3). Additionally, Additionally,
the entry requirement the entry requirement of of our criminal trespass our criminal trespass statute statute is is satisfied satisfied by insertion by insertion
of an instrument of an instrument which which is held or is held or manipulated manipulated by by the the defendant, defendant, or or so so closely closely
associated associated with with his his body body that that itit essentially essentially becomes becomes an extension thereof." an extension thereof."
Commonwealth v. y, Furness, Furness, 2016 PA Super 2016 PA Super 298, 298, 153 153 A.3d A.3d 397, 397, 401-02 401--02
(2016) ((internal (2016) internal quotations quotations and citations omitted) and citations omitted)
Having presided Having presided over the trial in this matter, we agree that the evidence
was sufficient to enable the jury jury to find the Appellant Appellant guilty guilty of criminal • trespass. trespass. Jay Deininger testified Jay Deininger testified that that he he was was awoken awoken by by loud loud knocking knocking at the the
6 6 door. door. (N.T. (N.T. pg. A neighbor, pg. 66) A Kelsey, (Ms. neighbor, Kelsey, (Ms. Hoxsie) Hoxsie) and and her her son, son, rushed
inside saying that that "(Appellant) "(Appellant) was going crazy..." Kelsey then locked herself
in the bathroom. Soon after, Appellant Appellant loudly loudly knocked at the door. (id.) (ld.) As As
soon as Mr. Denininger opened the door for him, he he "like like hipped it and
pushed it open and came right in." (N.T. (N.T. trial pg. 67). The witness agreed
that the Appellant forced himself into the residence. ((Id.) Id.) Thereafter, Mr.
Deniniger and Jayson Crablo, physically fought with the Appellant and l
compelled compelled him to leave the residence. residence. ((Id. Id. pg. pg. 69). Undeterred, the Appellant
opened the front window and began climbing through the window. window. ((Id.) Id.)
Wilkes-Barre City police officer, Michael McGrath arrived at that moment and
witnessed witnessed the the Appellant Appellant hanging into the the residence residence at at 96 96 West Chestnut Chestnut
Street. (Trial (Trial N.T. pg. 80-81). While Appellant argued at trial that his
presence, hanging presence, hanging inside the half open window of 96 West Chestnut Street
was permissive. We disagree. disagree. At least circumstantially, his having been
thrown of the house to be kept kept away from the young young woman locked in the
bathroom moments before climbing into the window belies this claim.
The evidence viewed in the light light most favorable to the Commonwealth
was sufficient to prove prove guilt guilt beyond a a reasonable doubt that the Appellant
broke into the residence. This is especially especially clear where the credible evidence
proved proved that his body body was halfway halfway through through the open window which is an
77 opening not designed for human access. Even if the Jury believed
Appellant's testimony Appellant's testimony that that he he did did not not open open the the window, window, he he was was observed observed by by
Officer McGrath Officer McGrath entering entering the the opening opening which is not which is not designed designed for for human human
access. See access. See 18 18 Pa.S Pa.§ 3503(a(3). 3503(x)(3). Accordingly, this Court Accordingly, this Court has has no no hesitation hesitation in in
finding that the evidence presented finding presented at trial was sufficient to demonstrate
beyond a beyond a reasonable doubt that the Appellant is guilty guilty of criminal trespass.
We submit that this conclusion also fairly fairly addresses the Appellant's Appellant's
paragraph 3 claim at paragraph 3of his concise statement statement which alleges that we erred in
denying his motion for judgment denying judgment of acquittal. acquittal. Plainly, Plainly, -a a prima facia case
existed where the evidence is sufficient to prove his guilt beyond aa
reasonable doubt. reasonable doubt.
Appellant next complains Appellant complains that the evidence was insufficient to prove
beyond a beyond areasonable doubt that he is guilty of resisting arrest. He specifically
argues that the he did not argues not ""create create a asituation where a asubstantial risk of bodily
injury to the public injury public servant or anyone else existed or that his actions required
substantial force to overcome the resistance." This claim likewise fails.
person commits a "A person amisdemeanor of the if, with the second degree if, with the
preventing a intent of preventing a. public servant from effecting a a lawful arrest or
discharging any discharging any other duty, duty, the person person creates a a substantial risk of bodily
injury to the public injury anyone else, or employs means justifying Or public servant or anyone or
8s requiring substantial force to overcome the resistance." resistance." 18 Pa. C.S.A.§ 5104. 18Pa.C.SAS5104.
The Superior Court Court upheld the the trial court's rejection rejection of of a a sufficiency sufficiency
challenge llike Commonwealth v. Clark, 761 A.2d 190,193 ike Appellant's in Commonwealth 190, 193 ((Pa. Pa.
Super 2000). After being informed that he was under arrest, (Clark) (Clark) refused
to comply comply with lawful commands, assumed a a fighting fighting stance, verbally
declared his intent to physically fight fight police, police, then physically physically resisted non-
lethal force and the police had to wrestle him to make the arrest.
Commonwealth v. y, Clark, 761 A.2d 190, 193 193 (Pa. (Pa. Super 2000).
At the Appellant's Appellant's trial, Officer McGrath of the Wilkes-Barre City police
department department testified that as he responded to a a 4AM 911 call for a a disorderly
male he observed him hanging inside an open open window. window. ((N.T. N.T. pg. 79-81). The
Officer approached the Appellant Appellant who turned toward him, squared up in a a
fighting fighting stance and said, ""Let's Let's go bro." bro." ((N.T. N.T. pg. pg. 82) He ignored the threat
of a a taser and refused to comply comply with lawful commands. Ultimately it took
Officer McGrath, Officer Fisher and two other responding officers to wrestle
him into handcuffs. handcuffs. ((N.T. N.T. pg. pg. 87-88) This struggle took place on an elevated
porch cluttered with Appellant's porch weights which police Appellant's weights police accessed by climbing
a a one one story story flight flight of stairs which which was was slippery slippery being being covered covered with with destroyed destroyed
pumpkins. pumpkins. (N.T. pg. 86). We do not hesitate to conclude that the evidence (N.T. pg.
was sufficient to prove prove that the Appellant's Appellant's conduct created a a situation where
9 9 •
aa substantial substantial risk risk of of bodily bodily injury injury to to the public servant the public servant existed existed and and that that his his
resistance. ((N.T. actions required substantial force to overcome his resistance. N.T. pg. 46,
Appellant's sufficiency 87-88) Appellant's sufficiency claim must fail.
Appellant next challenges the sufficiency of the evidence for his
public drunkenness. He claims that the conviction for public the Commonwealth failed
to establish that he was intoxicated to a a degree that he may endanger himself
or others. We were the factfinder for this offense because it is aasummary
public drunkenness, in offense. The Crimes Code defines the offense of public
relevant part, as follows: "A a summary offense if he "A person is guilty of a
a appears in any public place manifestly under the influence of alcohol or a
controlled substance... to the degree that he may endanger himself or other
persons or property, persons property, or annoy persons in his vicinity" 18Pa.CS.A 18 Pa.C.S.A. S § 5505, 5505.
Reviewing the evidence we heard at trial we note that Officer Fisher Reviewing
training in recognizing has training recognizing -intoxicated persons and is experienced having
spent 17 years spent years patrolling patrolling the City on the night shift. ((N.T. N.T. pg. 44) He testified
Appellant appeared that the Appellant appeared under the influence alcohol. alcohol. (N.T. (N.T. pg. 43). Officer , McGrath, also an experienced McGrath, experienced veteran of the night nightshift, shift, similarly detected
Appellant was under the influence of alcohol. Appellant's arrest was that the Appellant
preceded by preceded by a party where he -was a a house party a guest which included the
consumption of alcohol and lasted into the early morning hours. Accordingly, consumption
10 there is there is ample evidence to ample evidence support his to support his intoxication. intoxication. We We submit submit that that preceding preceding
analysis of analysis his resisting of his resisting arrest arrest conviction conviction supports supports our our conclusion conclusion that he that he
endangered endangered himself and and other persons persons and we incorporate incorporate that that analysis analysis into into
our resolution our resolution of of this issue. this issue.
To his To his claim claim that that his conduct was his conduct was not not in in public public we turn tum to to
Commonwealth v. Commonwealth y, Mever, 431 A.2d Mever, 431 A.2d 287 287 ((Pa. Pa. Super. Super, 1981), 1981), where where the the
Superior Superior Court helpfully observed that Court helpfully that "Section Section 5505 5505 does does not not define define the the
'public.' However, term 'public.' However, [t]he [t]he term term does appear, appear, however, however, in in two two places places in in the the
Crimes Crimes Code: Code: in the the section section dealing with with prostitution, prostitution, section section 5902, 5902, and and in in
the section dealing dealing with disorderly conduct, section 5503. Section 5902(f)
defines it as as 'any 'any place place to which the public or any substantial group thereof
has access.' has acx:ess.' The The ordinary meaning of ordinary meaning of ''access' access' is: 'the 'the right right to to enter enter or or make make
of;' 'the use of;' 'the state or quality quality of of being being easy to enter. enter. Section Section 5503(c) 5503(c) defines defines
public places public places as, inter alia, ''any any premises premises which are open to the public."' public."
Mever, Meyer, 431 A.2d at 289 289 (footnotes (footnotes omitted). omitted). Section 5503(c) provides as
follows: As used in this section the word follows: "As word ''public' public' means affecting or likely to
persons in affect persons a place in a place to to which public or which the public or a a substantial substantial group group has has
access; among access; among the the places places included included are are highways, highways, transport transport facilities, facilities,
schools, prisons, apartment houses, prisons, apartment houses, places of of business business or or amusement, amusement, any any
11 II neighborhood, or any premises premises which are open to to the public." 18 Pa.C.S.A.§ 18PaC5AS 5503(c). 5503(c)
We also rely on Commonwealth v. Whritenour, 751 A.2d 687, 688 688 ((Pa. Pa.
Ct. 2000), where the Court found that an even limited number of Super. Ct of
persons in aa neighborhood located in in "a private community, which "a private
necessarily excludes the public" are public areas as defined by Section
5503(c). In concluding that the road in the private community was aapublic
place the Whritenour Court observed that the road where Whritenour was
during the commission of his offense was was ""accessible accessible only to residents or
permission of a those present by pennission aresident.... and was traversed by members
of the community and their invitees or licensees." Commonwealth v.
Whritenour, 751 A.2d 687, 688 688 ((Pa. Pa. Super. Ct. 2000). We find limited access
road way akin to the shared front porch of the Appellant and neighboring
residence. The Commonwealth did not argue that Appellant was trespassing
when he knocked, however loudly, on the door at 96 West Chestnut Street. Street.
Anyone visiting or making aadelivery to either resident has equal access to
climb the stairs of the double block residence and access the residents at
either address from the shared front porch. We think it Is is also important to
of the Appellant's misconduct occurred on his neighbors' note that some of
of the front porch. portion of -• 12 We believe that this fact distinguishes distinguishes this case from the Superior
Commonwealth v. Cook. In Court's conclusion in the non-precedential case Commonwealth
Cook, the Superior Court reversed the trial court's conclusion that Ms. Cook
was in public pursuant to Section 5503 when she appeared intoxicated
shouting obscenity from her own front porch. Commonwealth y,Cook, v. Cook, No.
234 WDA 2016, 2017 WL 527973, 527973, ((Pa. Pa. Super. Ct. Feb. 9, 2017). The court
reasoned that her front porch, apparently used by her exclusively, was not aa
public area. area. ((Id. Id. at pg. 5) The Appellant was not on his own front porch when
he caused a a disturbance but instead, he was on on -his his neighbors' porch
climbing through their front window. The experienced experienced prosecutor carefully
built the record with witness testimony to prove that the Appellant's behavior
did annoy persons in his vicinity. Officer McGrath testified that the residential
neighborhood was usually quiet and that he observed neighbors turning on
their llights ights in the early morning hours. We believe that this was circumstantial
evidence that persons in the vicinity were in fact annoyed. annoyed. ((N.T. N.T. 79, 88-89).
Giving every inference to the Commonwealth as verdict winner, we think that
these facts support our conclusion the Appellant was intoxicated in a apublic
place.
Appellant next makes makes' aa series of challenges to the weight of the
evidence. A A trial court is not to grant relief for such claims unless the verdict
13 ,
is so contrary to the evidence as to shock. one's shock· sense of
justice. Commonwealth • justice. v. Cougar, Cousar, 593 Pa. Pa. 204, 223, 928 204, 223, 928 A.2d A.2d 1025, 1025, 1036 1036
(2007). Appellant raised three challenges to to the weight of the evidence. First,
'he he challenges the Jury's conclusion that he was without privilege to enter the
Vilest Chestnut Street. He represented that his presence was residence at 96 West
permissive. This claim is meritless. The Appellant permissive, Appellant was physically physically removed
from the residence after aafight with other guests there. Soon after he opened
aawindow at 96 West Chestnut and was observed was hanging through that
window. Two unrelated witnesses, one from outside and another from the
inside the residence, saw him do this. (N.T. (N. T. pg. 58, 82) Appellant's testimony
that another party party opened the window does not change the fact that he
sought to enter another's residence through an opening not designed for sought
human access in circumstances which demonstrate that he was not
privileged to do so. privileged so: Welcome guests guests do not usually usually enter by the window.
Appellant's challenge Appellant's challenge to the weight of the evidence is without merit.
Next Next Appellant complains in Appellant complains in two related issues two related issues that that the the verdict verdict is is
against the weight of the evidence because of conflicting testimony, and bias against
of the witnesses. The jury is free to judge the credibility of witnesses and
only that testimony credit only testimony which which they Commonwealth y, they believe. Commonwealth v. Bruce, 916
657, 661 A.2d 657, 661 ((Pa. Pa. Super Super 2007). The police and the lay witnesses testified 2007). The
14 '. . ., .
to facts which taken together seemed logical and credible. The jury was
aware that, with the exception to the Appellant's girlfriend who was running
away from him, that all the witnesses, including the police, did physically fight
with the Appellant on the night of his arrest arrest. We do not doubt that this caused
him to suspect that these witnesses are not likely to offer testimony favorable
to him. The Jury's resolution of that credibility issue does not shock our sense
of justice. The Appellant's weight claims should fail.
Finally, Finally, Appellant Appellant claims that we erred by declining to schedule a a
hearing on his post hearing post sentence motions. He cites Pa. R. Crim.P 720 which Pa. R, which
does not require the trial court to schedule a ahearing where as here there is
no need to do so to resolve the issues. Pa. R. RR, Crim. P, P. 720(BX2¥b) 720(B)(2)(b). Each of
Appellant's issues were addressed by this court's own observations and Appellant's
review of the trial transcripts. Accordingly, Judgment of sentence in this case
should be Affirmed.
END OF OPINION