Com. v. Lewis, T. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
TRAVANTI LEWIS
Appellant No. 2997 EDA 2016
Appeal from the Judgment of Sentence August 23, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011962-2015
BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*
MEMORANDUM BY BOWES, J.: FILED OCTOBER 02, 2017
Travanti Lewis appeals from the August 23, 2016 judgment of
sentence of six to twelve months imprisonment followed by three years of
probation, which was imposed after he was convicted at a non-jury trial of
criminal trespass. He challenges the sufficiency of the evidence. We affirm.
The facts giving rise to Appellant’s conviction were summarized by the
trial court.
Roosevelt Rosenberg testified that on October 21, 2015 at
approximately 12:30 A.M., he was walking home from work at
60th and Chestnut in Philadelphia to his home at 60th and
Sansom. While on the 6000 block of Sansom, he observed a
man in the window of his next door neighbor’s rowhome. Mr.
Rosenberg saw the man try to pry open the window. When the
man noticed Mr. Rosenberg walking by, he promptly stopped
what he was doing and started using his cell phone. Mr.
Rosenberg testified that he recognized the individual because he
had previously called the police on him when he was trying to
* Former Justice specially assigned to the Superior Court.
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break into a house on the block. Mr. Rosenberg made an in-
court-identification of the Defendant. (Notes of Testimony,
6/24/16 pp. 9-16).
Mr. Rosenberg called the police, and went into his own
house. The police arrived and stood next to the neighbor’s door.
Mr. Rosenberg stated that the basement light in the house
turned off at that point. He watched from his backyard as the
Defendant jumped out of the second floor window and alerted
the police officers that he was running away. (Id. at 23-24).
Police Officer William Kolb testified that on October 21,
2015, he and his partner, Officer Abdul Malik, responded to a
burglar alarm at 6046 Sansom Street. When they arrived, they
noticed the light on in the basement of the house. While
standing outside the rear of the house, Officer Kolb observed a
loud banging noise he perceived to be coming from the
basement of the house. It sounded like a hammer or wrench
banging on pipes. None of the windows or doors of the house
were open. After Officers had surrounded the house for 30—40
minutes, securing the premises, Officer Kolb noticed the
basement light had turned off so he ran to the back of the
house. He [saw] the back upstairs window was completely wide
open and heard rustling in the alleyway. He was subsequently
notified by radio that Sergeant [Andre] Simpson had a male
stopped on the block. (Id. at 32-38).
Sergeant Simpson testified that officers ran after the
Defendant in the alleyway. While he was speaking with the
neighbor, Mr. Rosenberg, [he] noticed that the Defendant was
actually standing down the street at towards [sic] 60th Street.
When Sergeant Simpson stepped down onto the sidewalk,
looking in the Defendant’s direction, he dipped in between two
cars and continued running and ducking. Sergeant Simpson
eventually ordered him down off the porch of a house at 6017
Sansom and officers placed him in custody. The Defendant was
bleeding profusely. He matched the original description provided
by Mr. [Rosenberg] in his 911 call. (Id. at 42-48).
The Commonwealth also called Anthony DiLella, a member
of the BTR Commercial Holdings LLC, which owns the property at
6046 Sansom Street, to testify. He stated that he did not know
the Defendant and the Defendant had no permission or lease to
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be inside the property on October 21, 2015. At that time, the
company was trying to re-rent the house because the prior
tenant had recently moved out. The rental property was
habitable at the time, with running water and electricity. (Id. at
53-55).
Trial Court Opinion, 12/21/16, at unnumbered 1-3.
Appellant presents one question for our review: “Was not the evidence
insufficient to convict [A]ppellant of criminal trespass, graded as a felony of
the second degree, where there was insufficient evidence that [A]ppellant
gained entry into the property by force, breaking, intimidation, unauthorized
opening of locks or through an opening not designed for human access?”
Appellant’s brief at 3. He contends that there was no evidence that he
gained entry to the house through force, and thus, the conviction of second-
degree rather than third-degree criminal trespass was not supported by the
evidence.
In reviewing the sufficiency of the evidence, we are required to
“determine ‘whether the evidence admitted at trial, and all the reasonable
inferences derived therefrom viewed in favor of the Commonwealth as
verdict winner, supports the [fact finder’s] finding of all the elements of the
offense beyond a reasonable doubt.’” Commonwealth v. Packer, 2017 Pa.
LEXIS 1942 n.3 (Pa. 2017) (quoting Commonwealth v. Cash, 137 A.3d
1262, 1269 (Pa. 2016)).
Criminal trespass is defined in relevant part as:
(a) Buildings and occupied structures.
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(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.
(2) An offense under paragraph (1)(i) is a felony of the third
degree, and an offense under paragraph (1)(ii) is a felony of the
second degree.
(3) As used in this subsection:
“Breaks into.” —To gain entry by force, breaking, intimidation,
unauthorized opening of locks, or through an opening not
designed for human access.
18 Pa.C.S. § 3503 (emphasis added).
Appellant was charged with violating § 3503(1)(ii), criminal trespass
by breaking into a building or occupied structure. He contends that the
Commonwealth failed to establish that he broke into the property located at
6046 Sansom Street as required to sustain a conviction for second-degree
felony criminal trespass. According to Appellant, Mr. Rosenberg’s testimony
that Appellant was “trying to break in” was conjecture, supported only by
Mr. Rosenberg’s observation that Appellant was standing suspiciously around
the property. Appellant’s brief at 10. Appellant points out that there was no
damage to the house, the front, back door and side windows were locked,
and Officer Kolb did not see an open second floor window. The officer
merely noticed a basement light initially was on, and then was turned off,
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and then the officer saw an open upstairs window, heard a dog barking, and
heard rustling in the backyard.
Appellant acknowledges that Mr. Rosenberg observed him exiting from
the second floor window of the house. He contends, however, this evidence
failed to establish that he gained entry to the house by force as defined in
the statute. While such evidence may have supported a conviction of a
lesser degree of criminal trespass, Appellant maintains that it does not make
out a case of second-degree felony criminal trespass. In support thereof, he
relies upon Commonwealth v. Cook, 547 A.2d 406 (Pa.Super. 1988),
where the defendant’s opening of an unlocked door was held to be
insufficient to increase the criminal trespass to a second-degree felony.
According to the Commonwealth, direct evidence of breaking is not
required. It relies upon Commonwealth v. Myers, 297 A.2d 151(Pa.Super. 1972), where Appellant’s presence in front of a gas station at
3:10 a.m., where the door of the establishment had been splintered around
the lock assembly, and the window closest to the doorknob broken, was
sufficient to prove a forced entry. The Commonwealth contends that “strong
circumstantial evidence” indicated that Appellant broke a window to enter
the home. Mr. Rosenberg saw Appellant trying to pry open a window, and
then pretending to look at his phone when he realized he was being
observed. Mr. Rosenberg believed Appellant had already broken the window
and was trying to open it, a belief that was corroborated by the fact that a
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burglar alarm was activated, alerting police. The Commonwealth also
maintains that the “breaks into” element was met with evidence of entry
“through an opening not designed for human access,” namely a window.
The trial court concluded there was ample evidence of “breaking.” The
court relied upon Commonwealth v. Black, 580 A.2d 1391 (Pa.Super.
1990), where this Court held that evidence that a defendant tried to pry
open a window of a home was legally sufficient to sustain a conviction of an
attempted § 3503(a)(1)(ii) criminal trespass. The behavior constituted a
substantial step to entering the home by force. The trial court herein found
that Mr. Rosenberg’s testimony that Appellant was attempting to lift a closed
window at 12:45 a.m., together with proof that Appellant gained access to
the property, established the breaking element beyond a reasonable doubt.
After a thorough review of the record, we find the evidence that
Appellant broke into the property to be sufficient to sustain the conviction for
second-degree felony criminal trespass. Mr. Rosenberg first observed
Appellant “trying to put the window up” on the property on October 15, 2015
at approximately 12:40 a.m., as he was returning home from work. He
called police on that occasion, but surmised that Appellant left before police
arrived.
A similar event occurred on October 21, 2015, at approximately the
same time of night. Mr. Rosenberg observed Appellant trying again to open
a window to gain access to the neighboring property. Appellant was wearing
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the same hoodie that he had been wearing the prior week. Mr. Rosenberg
called police to report a break in, but a burglar alarm had already alerted
police who were en route. When police arrived, the house was secured. All
doors and windows were locked. However, Officer Kolb could hear a banging
sound emanating from the basement. The officers observed a light in that
location, which was later extinguished. Shortly thereafter, Mr. Rosenberg
saw Appellant jump from a second floor rear window and run away from
police. He pointed out Appellant to Sergeant Simpson, who pursued
Appellant. Officer Kolb verified that the previously closed second floor
window was now open. Appellant was apprehended close by and identified
by Mr. Rosenberg as the perpetrator. He was bleeding profusely from what
was stipulated to be a fractured jaw. One of the owners of the home
testified that it was habitable, and that he did not know Appellant or give
him permission to enter the premises.
The Commonwealth asked the trial court to infer that Appellant’s
injuries were sustained when he jumped from the second floor window and,
furthermore, that he was attempting to steal pipes. The court declined to
infer attempted theft or burglary since there was no evidence that anything
was missing or damaged. It concluded, however, that prying open a window
to gain access constituted a “breaking,” and that Appellant was guilty of
criminal trespass, a second-degree felony.
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It is not the role of this Court to reweigh the evidence and substitute
our judgment for that of the finder of fact. If, viewing the evidence in the
light most favorable to the Commonwealth as the verdict winner, the
factfinder reasonably could have determined from the evidence adduced that
all of the necessary elements of the crime were established beyond a
reasonable doubt, then that evidence will be deemed sufficient to support
the verdict. Commonwealth v. Lewis, 911 A.2d 558 (Pa.Super. 2006).
That burden may be met with proof beyond a beyond a reasonable doubt of
every element of the crime by means of wholly circumstantial evidence.
Commonwealth v. Brooks, 7 A.3d 852 (Pa.Super. 2010).
The fact finder credited Mr. Rosenberg’s testimony that he observed
Appellant trying to break in through the window of the residence.
Preliminarily, we agree with the Commonwealth that a door, rather than a
window, is designed for human access. Moreover, there was considerable
circumstantial evidence that Appellant broke into the residence. Mr.
Rosenberg immediately reported the event as a burglary in progress to
police. Simultaneously, an armed burglar alarm was tripped, and police
were alerted that there was a possible intruder at the residence. When
police arrived, all windows and doors were locked, but a light and noises
suggested that someone was inside. The light was subsequently
extinguished and, shortly thereafter, Mr. Rosenberg saw Appellant jump out
of a second floor window. When Appellant was apprehended moments later,
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he exhibited injuries consistent with the second-floor escape. Such
circumstantial evidence was sufficient to support the trial court’s finding that
Appellant broke into the property, and his conviction for second-degree
felony criminal trespass.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/2/2017
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