Com. v. Delcarmen, F. ( 2019 )

J-S60043-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANCES DELCARMEN :
:
Appellant : No. 374 MDA 2019
Appeal from the Judgment of Sentence Entered February 25, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0004036-2017
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED NOVEMBER 26, 2019
Frances Delcarmen (Delcarmen) appeals the judgment of sentence
entered on February 25, 2019, by the Berks County Court of Common Pleas
(trial court). Following a bench trial, Delcarmen was convicted of criminal
trespass, simple assault and harassment, and she was sentenced to an
aggregate prison term of nine to 23 months, followed by two years of
probation. On appeal, she contends that the Commonwealth elicited
insufficient evidence to sustain the trespass conviction. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
J-S60043-19
I.
This bizarre case concerns a love triangle, the dubious use of a house
key and the disturbing practice of dark arts. The trial court recounted the
pertinent facts as follows:
In and around the years 2016-2017, [Delcarmen] was in a
romantic relationship with Victor Melendez. At the same time
Melendez was married to "N.M." N.M. rented an apartment unit
[in] Wyomissing, PA. Melendez had a key to the apartment unit,
and he spent time at both N.M.'s apartment unit and
[Delcarmen’s] residence during the course of the affair. At some
point in the spring or summer of 2017 Melendez ended the affair
with [Delcarmen] and began spending nights with his wife, N.M.,
at her . . . apartment.
On July 21, 2017, at approximately 4:45 a.m., [Delcarmen]
arrived by car at N.M.'s apartment building and used a key to
enter N.M.'s specific unit as N.M., Melendez, and N.M.’s adolescent
son slept. N.M. and Melendez were sleeping in the same bed and
bedroom, and the minor was in his own, separate room.
[Delcarmen] did not knock or announce herself, and she was not
invited to the apartment unit that night.
[Delcarmen] proceeded to the bedroom where N.M. and Melendez
lay asleep in the same bed. Shortly thereafter, N.M. awoke in
darkness to find an unknown person (later identified as
[Delcarmen]) shaking the contents of a bottle onto the floor.1
[Delcarmen] testified that she entered the apartment unit to cast
a spell and was, in fact, casting the spell by sprinkling powder
within the bedroom when N.M. woke up and noticed [Delcarmen]
in the bedroom. N.M. immediately screamed and Melendez
chased [Delcarmen] into the living room, tackling her and
wrestling her to the ground. Melendez held down [Delcarmen]
while N.M. called police. When officers arrived, they handcuffed
[Delcarmen] in the living room and lifted her off the floor. A
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1N.M. also testified that Delcarmen had aimed a firearm at her face while she
emptied the contents of the bottle. See Trial Transcript, 12/21/2018, at 12.
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loaded, semi-automatic handgun was located underneath
[Delcarmen].
A key to N.M.’s apartment was also found attached to a key ring,
which [Delcarmen] had used to enter the apartment. [Delcarmen]
testified that Melendez provided her with the key during the affair
and authorized her to use it to enter N.M.’s apartment unit. In
contrast, Melendez said he never gave [Delcarmen] a key. N.M.
further testified that she did not give [Delcarmen] a key, and that
she never gave [Delcarmen] permission to enter her apartment
unit.
Trial Court 1925(a) Opinion, 6/20/2019, at 1-2.2
Delcarmen timely appealed. Both Delcarmen and the trial court
complied with Pa.R.A.P. 1925. Delcarmen now contends that her conviction
of trespass should be reversed because there was no evidence establishing
that she knowingly entered the victim’s apartment without permission.2 She
emphasizes that she used a key to open the front door to the unit and that
Melendez had invited her over without saying that N.M. was home. The
Commonwealth argues that there was sufficient evidence to sustain the
conviction because Melendez denied giving Delcarmen a key or permission to
enter N.M.’s home.
II.
A person commits the offense of criminal trespass into a residence by
entering or gaining “entry by subterfuge or surreptitiously remain[ing] in any
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2 The issue presented in Delcarmen’s brief coincides with the sole issue raised
in her 1925(b) statement of issues complained of on appeal.
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building or occupied structure or separate secured occupied portion thereof[.]”
18 Pa.C.S. § 3503(a)(1)(i). Another element of the offense is that the
defendant knew she lacked the privilege to enter at the time of her entry. Id.
at § 3503(a)(1); see Commonwealth v. Quintua, 56 A.3d 399, 402 (Pa.
Super. 2012). A defendant’s knowledge of a lack of privilege to enter a
residence may be inferred from the circumstances. See Commonwealth v.
Gordon, 477 A.2d 1342, 1348 (Pa. Super. 1984); Commonwealth v.
Benito, 133 A.3d 333 (Pa. Super. 2016) (same).
Evidence is sufficient to sustain a criminal conviction when, viewing the
evidence in the light most favorable to the verdict winner, a trier of fact can
find that each element is established beyond a reasonable doubt. See
Commonwealth v. Thompson, 778 A.2d 1215, 1217-18 (Pa. Super. 2001).3
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3 Our standard of review for a challenge to the sufficiency of the
evidence is to determine whether, when viewed in a light most
favorable to the Commonwealth as verdict winner, the evidence
at trial and all reasonable inferences therefrom are sufficient for
the trier of fact to find that each element of the crimes charged is
established beyond a reasonable doubt. See Commonwealth v.
Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.
Super. 2007) (citation omitted).
“The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence.” Id. (citation
omitted). “As an appellate court, we do not assess credibility nor
do we assign weight to any of the testimony of record.”
Commonwealth v. Kinney, 863 A.2d 581, 584 (Pa. Super.
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The role of the trier of fact is to resolve any conflicts in the evidence before it.
See id.In this case, the sole point in dispute is whether the Commonwealth
elicited evidence from which the finder of fact could determine that Delcarmen
knew she lacked permission to enter N.M.’s residence. Delcarmen testified
that Melendez gave her the key and invited her to N.M.’s home the night of
the incident. However, both Melendez and N.M. testified to the contrary –
that they never gave Delcarmen permission to enter the home, much less a
key to the front door.
The trier of fact resolves conflicts in evidence and it could, therefore,
credit the testimony of Melendez and N.M. to conclude that Delcarmen knew
she lacked permission to enter N.M.’s home. Even if Melendez gave her a key,
the trier of fact was free to determine that Delcarmen nevertheless knew she
lacked permission to enter the premises at 4:45 a.m. while armed and with
an intent to cast spells. See Commonwealth v. Baskerville, 681 A.2d 195,
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2004). Therefore, we will not disturb the verdict “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.” Bruce, 916 A.2d at 661 (citation omitted).
Furthermore, a mere conflict in the testimony of the witnesses
does not render the evidence insufficient because the factfinder is
free to believe all, part, or none of the evidence. Commonwealth
v. Baskerville, 681 A.2d 195, 200 (Pa. Super. 1996).
Commonwealth v. Lineman, 1326 EDA 2018, at *2 (Pa. Super. September
16, 2019) (some citations omitted).
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200 (Pa. Super. 1996) (trier of fact is free to believe or disbelieve testimony);
Thompson, 778 A.2d at 1219 (the trier of fact “was free to believe that
Appellant’s explanation as to why he entered the victims’ residences was a
pretext for some other criminal motive, and, therefore, that Appellant did not
reasonably believe that the victims would permit entry into their home.”).
Accordingly, the evidence was sufficient as to the trespass conviction and the
judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2019
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