Com. v. Hyman, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TAMIR HYMAN :
:
Appellant : No. 1648 EDA 2020
Appeal from the Judgment of Sentence Entered October 18, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002127-2019
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 7, 2021
Tamir Hyman (Appellant) appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
waiver trial convictions for burglary, criminal trespass, and contempt for
violating a protection from abuse (PFA) order.1 On appeal, he challenges the
sufficiency of the evidence, under the burglary statute, 18 Pa.C.S.
§ 3502(a)(2), establishing his intent to commit a crime therein. We affirm.
Appellant was charged with burglary, criminal trespass, and violation of
an order or agreement. On August 2, 2019, he waived his right to a jury trial
and proceeded to trial that same day. Amanda Green (Complainant) testified
to the following facts. Complainant had lived in her Philadelphia home for two
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1 18 Pa.C.S. §§ 3502(a)(2), 3503(a)(1)(ii); 23 § Pa.C.S. 6114(a).
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years. N.T. Trial, 8/2/19, at 24. She and Appellant lived there together as a
couple for five months. Id. at 39. In early March of 2019, Appellant physically
assaulted her, choked her in her kitchen, threw her around her living room,
and kicked the front and back doors. Id. at 41; see also N.T. Sentencing,
10/18/19 at 8. Complainant thusly ended the relationship and kicked
Appellant out of her home. N.T., 8/2/19, at 25.
It is undisputed that on March 6, 2019, Complainant obtained a PFA with
eviction against Appellant. She took the PFA order to the police precinct where
Appellant was in custody and gave the PFA order to an officer to deliver to
Appellant. Trial Ct. Op., 3/19/21, at 5. Though Complainant did not
personally see the officer deliver the PFA order, she received a signed affidavit
of service from him. Id. Complainant kept a copy of the PFA order in her
bedroom thereafter. Id. at 3.
At trial, Philadelphia Police Officer Allen Reed testified to the following.
At 9:00 a.m., March 8, Officer Reed and Officer Zgleszewski2 responded to a
call for a burglary in progress at the block of Complainant’s home. N.T.,
8/2/19, at 11. Upon arrival, the officers saw Appellant standing in
Complainant’s front doorway, before he entered her home and closed the
door. Id. at 12. The two officers entered the home and gave multiple verbal
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2Though the record does not indicate Officer Zgleszewski’s first name, Officer
Reed’s testimony included his badge number as additional identification.
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commands for Appellant, whom they heard upstairs, to come downstairs. Id.
at 12-13. When Appellant complied, he kept his left hand in his pocket,
refusing multiple verbal commands to show both hands. Id. at 13. Officer
Reed feared Appellant was holding a weapon and grabbed his arm, at which
point Appellant grabbed the officer’s hand “and tried to pull [the officer]
towards him.” Id. Officer Reed discharged his taser, but it had no effect on
Appellant. The two officers eventually “were able to get control of him[,]
placed him into [hand]cuffs[,]” and removed him from the house. Id. A
witness on location positively identified Appellant as the man who “kicked in
the door and made entry to the house.” Trial Ct. Op. at 3.
Officer Reed then called Complainant, who was at work. N.T., 8/2/19,
at 14-15. She informed Officer Reed that she had a PFA order against
Appellant and kept a copy of it in her bedroom. Id. Officer Reed “[ran
Appellant’s and Complainant’s] information” and found a record of the PFA
order. Id. at 14. He then entered the home to retrieve the PFA order from
Complainant’s bedroom. Id. at 14-15.
Officer Reed further testified that the front door of the house was
damaged, the lock was nonfunctional, furniture was in disarray, and clothes
were “laying at the bottom of the staircase . . . between the living room and
the kitchen[.]” N.T., 8/2/19, at 16, 20-21. Complainant also testified that
upon returning home that day, she found pieces of wood on the floor, damage
to the metal bracket on her front door, blood “smeared on the walls[ and]
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dripping down the steps, food taken” from her refrigerator, and “cleaning
products [taken] to clean himself up.” Id. at 27.
Appellant did not testify at trial. The trial court found him guilty of
burglary, criminal trespass, and contempt for violation of the PFA order.
Pertinently, with respect to burglary, the trial court noted the Commonwealth
was required to show intent to commit a crime, but that “crime doesn’t
necessarily have to be charged.” N.T., 8/2/19, at 51. Here, the court found
the Commonwealth showed that Appellant intended to commit criminal
mischief, as evidenced by blood smeared on the walls and the disarray of
“everything” in the house. Id. at 51-52. In its opinion, the trial court further
opined that “Appellant entered the residence with the intent to break the
active PFA, that is burglary.” Trial Ct. Op. at 5.
On October 18, 2019, the trial court sentenced Appellant to two-and-a-
half to five years’ imprisonment, as well as five years’ probation to run
consecutively.
On October 28, 2019, Appellant timely filed a post-sentence motion,
challenging the sufficiency of the evidence. The 120th day thereafter fell on
February 25, 2020. See Pa. R. Crim. P. 720(B)(3)(a) (post-sentence motion
will be denied by operation of law if it is not disposed of by order within 120
days of the filing of the motion). Appellant explains the ensuing procedural
history, which was affected by the COVID-19 pandemic:
On February 3, 2020, there was a scheduled hearing on the
motion, but [Appellant] was not brought in from custody. Defense
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counsel requested, and was granted, a thirty day extension
pursuant to Pa.R.Crim.P. 720(B)(3)(b); thus the deadline for
action on the post sentence motion became March 26, 2020. On
March 16, 2020, the [Pennsylvania] Supreme Court declared a
statewide judicial emergency and, in a series of orders, suspended
all deadline calculations during the emergency; the Philadelphia
Court of Common Pleas followed up with their own declarations.
Eventually, a hearing was held on July 24, 2020, and the
motion was denied by [the trial court]. Due to a concern that the
time for action on the motion may or may not have passed by that
time, counsel requested that the clerk file an order of denial by
operation of law on August 19, 2020. This appeal was filed August
20, 2020.
Appellant’s Brief at 5 n.1 (paragraph break added).
In light of the foregoing, which neither the trial court nor the
Commonwealth disputes, we deem Appellant’s August 20, 2020, notice of
appeal timely filed. On September 23rd, the trial court ordered Appellant to
file a concise statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b) within thirty days, and Appellant complied.
Appellant presents the following issue for our review:
As [Appellant] only came into the house to gather his belongings
and take a shower, was the evidence insufficient for conviction of
burglary insofar as the Commonwealth failed to prove that he
entered the house with the intent to commit a crime within?
Appellant’s Brief at 4.
Appellant argues that the evidence was insufficient to establish he had
any intent to commit a crime within Complainant’s home to support a
conviction for burglary under 18 Pa.C.S. § 3502(a)(2). Appellant’s Brief at
10. Appellant asserts that he merely intended to take a shower and retrieve
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his clothing, the latter of which, he states, “cannot support a burglary
conviction[.]” Id. at 12, citing Commonwealth v. Cavanaugh, 133 A.2d
288, 291 n.2 (Pa. Super. 1957) (“The removal of the articles may or may not
indicate felonious intent; this depends upon whether appellant intended to
permanently deprive the owners of their property.”). Appellant also argues
that forcing entry into a building, itself, is not sufficient to satisfy the burglary
criminal intent element. Appellant’s Brief at 11. He concedes he trespassed
into Complainant’s home, but maintains the Commonwealth “presented no
evidence that [he] had any nefarious intent when he entered the home.” Id.Lastly, Appellant attempts to distinguish this case from Commonwealth v.
Majeed, 694 A.2d 336 (Pa. 1997), on which the trial court opinion relied for
the principle that the criminal intent element for burglary was satisfied with
an intent to violate a PFA order. Appellant’s Brief at 13-14. Appellant
contends the Majeed defendant entered the home with intent to assault his
family, whereas here, he entered Complainant’s home to reclaim his
belongings and bathe. Id. We conclude no relief is due.
Our standard of review is well established:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record “in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.”
“Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.”
Nevertheless, “the Commonwealth need not establish guilt to a
mathematical certainty.” Any doubt about the defendant's guilt is
to be resolved by the fact finder unless the evidence is so weak
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and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
. . . Significantly, we may not substitute our judgment for that of
the fact finder; thus, so long as the evidence adduced, accepted
in the light most favorable to the Commonwealth, demonstrates
the respective elements of a defendant's crimes beyond a
reasonable doubt, the appellant's convictions will be upheld.
Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa. Super. 2013)
(citations omitted).
The Pennsylvania Crimes Code defines the relevant subsection of
burglary as follows:
A person commits the offense of burglary if, with the intent to
commit a crime therein, the person:
* * *
(2) enters a building or occupied structure, or separately
secured or occupied portion thereof that is adapted for
overnight accommodations in which at the time of the offense
no person is present. . . .
18 Pa.C.S. § 3502(a)(2).
Burglary requires a person to have a specific intent to commit a crime
within the structure. Commonwealth v. Wilamowski, 633 A.2d 141, 142
(Pa. 1993). The Commonwealth has no burden to identify the specific crime
to be committed; specific intent to commit a crime can be inferred under the
totality of the circumstances. Commonwealth v. Alston, 651 A.2d 1092,
1094 (Pa. 1994). “While this intent may be inferred from actions as well as
words, the actions must bear a reasonable relation to the commission of a
crime. Once one has entered a private residence by criminal means, we can
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infer that the person intended a criminal purpose based upon the totality of
the circumstances.” Commonwealth v. Lambert, 795 A.2d 1010, 1022 (Pa.
Super. 2002) (citations omitted). Finally, knowingly violating a PFA order may
satisfy the criminal intent required under the burglary statute. Majeed, 694
A.2d 338-39.
As both the trial court and Appellant discuss Majeed, we review it. In
Majeed, the defendant violated a PFA order held by his wife and stepdaughter
when he broke into their home, sexually assaulted his stepdaughter, then
engaged law enforcement in an armed standoff. Majeed, 694 A.2d at 337.
A jury found the defendant guilty of, inter alia, burglary. Id. The
Pennsylvania Supreme Court granted review “to decide whether an individual
can be convicted of burglarizing a home he or she owns after entering the
premises in violation of a PFA Order.” Id. at 338. The Court rejected the
defendant’s “contention that a PFA Order cannot form the basis of criminal
liability” under the burglary statute. Id. It reasoned, “While indirect criminal
contempt is the appropriate sanction for a violation of a PFA Order, 23 Pa.C.S.
§ 6114, allowing [the defendant] to escape liability for burglary would
circumvent the purposes of the PFA Order.” Id. at 339.
Here, the trial court found: “In the most basic terms Appellant entered
the residence with the intent to break the active PFA, that is a burglary.” Trial
Ct. Op. at 5. It is undisputed that Appellant was not licensed or privileged to
enter Complainant’s home; Complainant specifically testified that she had
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kicked Appellant out of her house because he physically abused her. N.T.,
8/2/19, at 25, 32. The Commonwealth also presented evidence of the PFA
order, with eviction, against Appellant. Appellant’s argument that Majeed is
distinguishable — because here, he merely intended to retrieve his clothes
and take a shower — is meritless.
Furthermore, Appellant does not challenge the trial court’s finding that
the evidence also established an intent to commit criminal mischief. See Trial
Ct. Op. at 5. Appellant smeared blood across the walls of Complainant’s home,
displaced the contents of the refrigerator, used her shower, and left her
furniture in disarray, all without permission to be inside her residence. Id.
The trial court properly reasoned that these actions establish an intent to
commit criminal mischief, for purposes of the burglary law. See id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2021
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