J-S52034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : CHRISTOPHER RONALD SMITH : : Appellant : No. 716 MDA 2016
Appeal from the Judgment of Sentence August 14, 2015 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005342-2014
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 22, 2017
Appellant, Christopher Ronald Smith, appeals nunc pro tunc from the
judgment of sentence entered in the York County Court of Common Pleas,
following his jury trial conviction for criminal trespass and his bench trial
conviction for criminal mischief.1 We affirm and grant counsel’s petition to
withdraw.
The trial court set forth the relevant facts of this case as follows:
On July 29, 2014, at approximately 1:14 A.M., Officer Christopher Roosen of the York County Police Department was on routine patrol in the area of North Beaver Street and Philadelphia Street in York, Pennsylvania when he heard glass breaking from across the street. Subsequently, Officer Roosen traveled south to the vicinity of 48 North Beaver Street, which is the address of the ____________________________________________
1 18 Pa.C.S.A. §§ 3503(a)(1)(ii), 3304(a)(5), respectively. J-S52034-17
White Rose Bar & Grill, to investigate the origin of the sound. At that point, Officer Roosen heard the sound a second and third time. After hearing the sound a third time, Officer Roosen exited his patrol car and started to walk around the perimeter of the White Rose Bar & Grill to investigate further. While walking by the establishment’s patio area, the office[r] observed the figure of a person within the patio. The patio was enclosed by a tarp, used to secure the property at night and during inclement weather. Officer Roosen shined his flashlight on the individual and directed him to keep his hands visible. At that point, Officer Roosen called for backup.
Once backup arrived, Officer Roosen and another officer went around the rear of the establishment, into Stogies, a separate but attached bar, and through a connecting kitchen in order to access the patio area of the White Rose Bar & Grill. However, before [Officer Roosen] reached [Appellant], another officer found a way under the tarp and onto the patio in order to detain [Appellant]. Once on the patio, Officer Roosen observed a windowpane that had been broken, with shards of glass going into the building. Additionally, [a] surveillance video from that night captured a shadow of [a] person on the patio area.
* * *
On July 14, 2015, after a two day trial, a [j]ury found [Appellant] guilty of Criminal Trespass, not guilty of Burglary, [and] not guilty of Criminal Attempt to Burglary. Additionally, [the court] found [Appellant] guilty on the summary offense of Criminal Mischief.
(Trial Court Opinion, filed July 21, 2016, at 1-3) (internal citations omitted).
The court sentenced Appellant on August 14, 2015, to twenty-one (21)
to forty-two (42) months’ imprisonment for criminal trespass, with no
further penalty for criminal mischief. Appellant timely filed a pro se petition
under the Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”)
on January 27, 2016. On February 9, 2016, the court appointed counsel
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who filed an amended PCRA petition on March 7, 2016, seeking
reinstatement of his direct appeal rights nunc pro tunc, which the court
granted on April 8, 2016. Appellant timely filed a notice of appeal nunc pro
tunc on May 4, 2016. On May 11, 2016, the court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). After the court granted an extension, Appellant timely filed his
Rule 1925(b) statement on June 16, 2016.
As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.
159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent
requirements have been met, this Court must then make an independent
evaluation of the record to determine whether the appeal is, in fact, wholly
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frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.
2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982
(Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[2] requires that counsel’s brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.
Under Anders, the right to counsel is vindicated by counsel’s examination and assessment of the record and counsel’s references to anything in the record that arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361. ____________________________________________
2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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Instantly, appellate counsel filed a petition for leave to withdraw. The
petition states counsel performed a conscientious review of the record and
concluded the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the withdrawal petition, the brief, and a letter explaining
Appellant’s right to proceed pro se or with new privately-retained counsel to
raise any additional points Appellant deems worthy of this Court’s attention.
In his Anders brief, counsel provides a summary of the facts and procedural
history of the case. Counsel refers to facts in the record that might arguably
support the issues raised on appeal and offers citations to relevant law. The
brief also provides counsel’s reasons for concluding that the appeal is
frivolous. Thus, counsel has substantially complied with the requirements of
Anders and Santiago.
Appellant has filed neither a pro se brief nor a counseled brief with
new privately-retained counsel; we will first review the issues raised in the
Anders brief:
WHETHER THE VERDICT OF GUILTY OF CRIMINAL TRESPASS WAS AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL?
WHETHER THE COMMONWEALTH FAILED TO PRESENT SUFFICIENT EVIDENCE TO CONVICT APPELLANT OF CRIMINAL TRESPASS WHEN THE EVIDENCE PRESENTED AT TRIAL FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT APPELLANT BROKE INTO THE WHITE ROSE BAR AND GRILL?
(Anders Brief at 4).
Our standard and scope of review in this case are as follows:
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When examining a challenge to the sufficiency of the evidence:
The standard we apply…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 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.
This standard is equally applicable in cases where the evidence is circumstantial, rather than direct, provided that the combination of evidence links the accused to the crime beyond a reasonable doubt.
Additionally, the following principles apply to our review of a weight of the evidence claim:
The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the…verdict if it is so contrary to the evidence as to shock one’s sense of justice.
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Moreover, where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa.Super. 2011) (en banc),
appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations,
quotation marks, and emphasis omitted).
Appellant argues the Commonwealth offered no evidence to establish
the breaking element of criminal trespass. As presented, Appellant
challenges only his criminal trespass conviction. Appellant complains the
verdict was against the weight of the evidence, and the Commonwealth
presented insufficient evidence to sustain the verdict. For the following
reasons, we disagree.
With respect to Appellant’s weight issue, generally, a challenge to the
weight of the evidence must be preserved by a motion for a new trial.
Pa.R.Crim.P. 607. The Rule provides:
Rule 607. Challenges to the Weight of the Evidence
(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
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Pa.R.Crim.P. 607(A)(1)-(3). “As noted in the comment to Rule 607, the
purpose of this rule is to make it clear that a challenge to the weight of the
evidence must be raised with the trial judge or it will be waived.”
Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal
denied, 581 Pa. 672, 863 A.2d 1143 (2004) (internal quotation marks
omitted). An appellant’s failure to avail himself of any of the prescribed
methods for presenting a weight of the evidence issue to the trial court
constitutes waiver of that claim, even if the trial court responds to the claim
in its Rule 1925(a) opinion. Commonwealth v. Burkett, 830 A.2d 1034
(Pa.Super. 2003). See also Pa.R.Crim.P. 720(A)(1) (explaining written
post-sentence motion shall be filed no later than 10 days after imposition of
sentence).
Instantly, the court sentenced Appellant on August 14, 2015. The
record demonstrates Appellant did not file a post-sentence motion raising a
weight claim. Therefore, Appellant waived his first issue. See Pa.R.Crim.P.
607; 720; Gillard, supra; Burkett, supra. Moreover, even if Appellant
had properly preserved his weight claim, we would affirm based on the trial
court’s analysis:
[The court’s] sense of justice was not shocked by the verdict.
The phrase “breaks into” requires a person “to gain entry by force, breaking, intimidation, unauthorized opening of
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locks, or through an opening not designed for human access.” There is significant evidence to show [Appellant] gained entry onto the White Rose Bar & Grill’s patio through an opening not designed for human access. Thus, establishing the breaking element of [c]riminal [t]respass.
[Appellant] does not deny he was inside the patio area on July 29, 2014, and that he gained access by manipulating the tarp used to secure the patio at night. [Appellant] testified he entered onto the patio because he was homeless and needed a place to sleep. Further, [Appellant] stated: “I slept in…this bar here like twelve (12) times, maybe more, on the porch area. The porch has a little screen on it you tie. [The bar owner] might have [a] lock on it, but you tie it at the bottom, and I just slid right on in there and I laid down.”
When asked to describe the patio area, Jeremiah Anderson, part owner of the White Rose Bar & Grill, testified: “[i]t’s a raised concrete area with, it is like wrought iron [metal] fencing around it, [and] it’s covered with a canvas canopy, and it also has vinyl clear and black sides that are on rollers that slide off to the different corners and are secured[.] … [A]t nighttime we close those vinyl areas which are secured with zippers as well as little clips that are like hurricane straps that we put on the outside that…secure it to the rail.”
Additionally, when describing how he obtained access to the patio, Officer Roosen testified to going through an adjoining bar through the kitchen to gain access to the inside of the property in order to enter out onto the patio.
Thus, in light of these facts, together with all the facts presented to [the court], there was considerable evidence presented to establish [Appellant] entered onto the White Rose Bar & Grill’s patio by opening a portion of the encompassing protective tarp, and through the wrought iron fence, not designed for human access. The jury heard the witnesses, evaluated the evidence, and was convinced of [Appellant’s] guilt. [The court] finds that upon careful consideration of the record in its entirety, that there is substantial evidence to prove all the elements of [c]riminal [t]respass beyond a reasonable doubt.
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(Trial Court Opinion at 5-7) (internal citations omitted). Thus, even if
Appellant had properly preserved his weight challenge, it would merit no
relief.
With respect to Appellant’s challenge to the sufficiency of the evidence,
after a thorough review of the record, the briefs of the parties, the applicable
law, and the well-reasoned opinion of the Honorable Maria Musti Cook, we
conclude Appellant’s second issue merits no relief. The trial court opinion
addresses and properly disposes of that question. (See id. at 7-8) (finding:
evidence showed Appellant broke into closed patio of White Rose Bar & Grill
through opening not designed for human access; Appellant knew he was not
licensed or privileged to enter patio; Commonwealth presented sufficient
evidence at trial to sustain conviction of criminal trespass). Regarding
Appellant’s challenge to the sufficiency of the evidence, we affirm on the
basis of the trial court’s opinion. Following our independent review of the
record, we conclude the appeal is frivolous. See Palm, supra. Accordingly,
we affirm the judgment of sentence and grant counsel’s petition to
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/22/2017
- 11 - Circulated 09/14/2017 04:19 PM
. 'i
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CRIMINAL DIVISION
COMMONWEALTH OF NO. CP-67-CR-0005342-2014 PENNSYLVANIA
v. ~r:··! (_:--,,
L
,) CHRISTOPHER RONALD SMITH, Defendant
STATEMENT OF LOWER COURT PURSUANTTO PA.R.A.P.1925(a) AND NOW, this olJ.s.faay of July 2016, upon receipt of a notice
that an appeal has been filed in this matter, and in consideration of the
Concise Statement of Matters Complained Of on Appeal filed on behalf of
Christopher Ronald Smith ("Defendant"), by and through his attorney,
Christopher D. Moore, Esquire, the undersigned files this statement pursuant
to PA.R.A.P. 1925(a). The reasons for this Court's denial of Defendant's
post-sentence motion can be found herein.
FACTUAL AND PROCEDURAL HISTORY
On July 29, 2014, at approximately 1:14 A.M., Officer Christopher
Roosen of the York County Police Department was on routine patrol in the
area of North Beaver Street and Philadelphia Street in York, Pennsylvania 1 when he heard glass breaking from across the street. (Notes of Testimony,
Jury Trial ("N.T."), 7/13/2015-7 /14/2015, at 65). Subsequently, Officer
Roosen traveled south to the vicinity of 48 North Beaver Street, which is the
address of the White Rose Bar & Grill, to investigate the origin of the sound.
Id. At that point, Officer Roosen heard the sound a second and third time. Id.
After hearing the sound a third time, Officer Roosen exited his patrol car and
started to walk around the perimeter of White Rose Bar & Grill to investigate
further. Id. While walking by the establishment's patio area, the office
observed the figure of a person within the patio. Id. at 66. The patio was
enclosed by a tarp, used to secure the property at night and during inclement
weather. Id. Officer Roosen shined his flashlight on the individual and
directed him to keep his hands visible. Id. At that point, Officer Roosen
called for backup. Id. at 67.
Once backup arrived, Officer Roosen and another officer went around
the rear of the establishment, into Stogies, a separate but attached bar, and
through a connecting kitchen in order to access the patio area of the White
Rose Bar & Grill. Id. However, before the Officer Roosen reached the
Defendant, another officer found a way under the tarp and onto the patio in
2 order to detain the Defendant. Id. Once on the patio, Officer Roosen
observed a windowpane that had been broken, with shards of glass going into
the building. Id. at 68. Additionally, A surveillance video from that night
captured a shadow of person on the patio area. Id. at 105.
Defendant was charged with Criminal Trespass under 18 Pa. C.S.A . .~ 3503(a)(l )(ii); Burglary under 18 Pa. C.S.A. 3502(a)(4); Criminal Attempt to
Burglary under 18 Pa. C.S.A. 901(a), 18 Pa. C.S.A. 3502(a)(4); and, Criminal
Mischiefunder 18 Pa. C.S.A. 3304(a)(5). On July 14, 2015, after a two day
trial, a Jury found Defendant guilty of Criminal Trespass, not guilty of
Burglary, not guilty of Criminal Attempt to Burglary. Additionally, this
Court found Defendant guilty on the summary offense of Criminal Mischief.
Defendant raises two issues on review. First, that the verdict was
against the weight of the evidence, as no evidence was presented to establish
the breaking element of criminal trespass. Second, that the verdict was based
on insufficient evidence, as no evidence was presented to establish the
breaking element of criminal trespass.
3 ')
'\
j)
:I DISCUSSION
With respect to Defendant's conviction of Criminal Trespass, the
verdict of guilty was not against the weight of the evidence as the jury's
verdict was not so contrary to the evidence as to shock one's sense of justice . •J
An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. A trial judge must do more than reassess the credibility of the witnesses and allege that he would not have assented to the verdict if he were a juror. Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. 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. Widmer, 560 Pa. 308, 319-20, 744 A.2d 745, 751-
52 (2000) (internal citations and quotes omitted).
"It has often been stated that 'a new trial should be awarded when the
jury's verdict is so contrary to the evidence as to shock one's sense of justice
and the award of a new trial is imperative so that right may be given another
opportunity to prevail."' Commonwealth v. Giordano, 2015 PA Super 167,
4 121 A.3d 998, 1007 (Pa. Super. 2015) (quoting Commonwealth v. Brown,
538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994)).
In denying Defendant's post-sentence motion, this Court's sense of
justice was not shocked by the verdict. Under the Criminal Code Pa. C.S.A. § ,J -~ ;) 3503(a)(l )(ii), "criminal trespass" is defined as follows:
(a) Buildings and occupied structures.
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:
(i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or
(ii) breaks into any building or occupied structure or separately secured or occupied portion thereof.
The phrase "breaks into" requires a person ''to gain entry by force,
breaking, intimidation, unauthorized opening oflocks, or through an opening
not designed for human access." Id. at § 3503(a)(3). There is significant
evidence to show Defendant gained entry onto the White Rose Bar & Grill's
patio through an opening not designed for human access. Thus, establishing
the breaking element of Criminal Trespass.
5 The Defendant does not deny he was inside the patio area on July 29,
2014, and that he gained access by manipulating the tarp used to secure the
patio at night. Defendant testified he entered onto the patio because he was
homeless and needed a place to sleep. Id. at 118. Further, Defendant stated:
"I slept in ... this bar here like twelve (12) times, maybe more, on the porch
area. The porch has a little screen on it you tie. He might have the lock on it,
but you tie it at the bottom, and I just slid right on in there and I laid down."
(Id. at 118, 119.)
When asked to describe the patio area, Jeremiah Anderson, part owner
of the White Rose Bar & Grill, testified: "[i]t's a raised concrete area with, it
is like wrought iron me-to.\ fencing around it, anlit's covered with a canvas
canopy, and it also has vinyl clear and black sides that are on rollers that slide
off to the different comers and are secured .... at nighttime we close those
vinyl areas which are secured with zippers as well as little clips that are like
hurricane straps that we put on the outside that.. .secure it to the rail." (Id. at
96, 97.)
6 Additionally, when describing how he obtained access to the patio,
Officer Roos en testified to going through an adjoining bar through the kitchen
to gain access to the inside of the property in order to enter out onto the patio.
Id.
Thus, in light of these facts, together with all the facts presented to this
court, there was considerable evidence presented to establish Defendant
entered onto the White Rose Bar & Grill's patio by opening a portion of the
encompassing protective tarp, and through the wrought iron fence, not
designed for human access. The jury heard the witnesses, evaluated the
evidence, and was convinced of Defendant's guilt. This Court finds that upon
careful consideration of the record in its entirety, that there is substantial
evidence to prove all the elements of Criminal Trespass beyond a reasonable
doubt.
Defendant next argues that the evidence presented at trial was
insufficient to sustain his conviction for criminal trespass because the
Commonwealth failed to present evidence to establish the breaking element
of Criminal Trespass. Again, the legislature has defined "breaks into" as "[t]o
7 gain entry." Id.,§ 3503(a)(3). Based on these standards, this Court finds the
evidence presented at trial was sufficient to establish that the Defendant broke
into the White Rose Bar & Grill 's patio by an opening not designed for
human access, knowing he was not licensed or privileged to do so.
For the same reasons stated above, this Court concludes that the
evidence presented at trial was sufficient to sustain the Defendant's conviction
of criminal trespass as a second-degree felony.
CONCLUSION
Based on the above reasons, this Court respectfully urges affirmance of
the Jury's verdict on July 14, 2015.
The Clerk of Courts is directed to provide notice of the entry of this
Statement to counsel of record.
MARIA MUSTI COOK, JUDGE