Com. v. Weaver, D. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DEVON R. WEAVER
Appellant No. 999 MDA 2018
Appeal from the Judgment of Sentence Entered February 28, 2018
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0005776-2017
BEFORE: STABILE, MURRAY, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 25, 2019
Appellant, Devon R. Weaver, appeals pro se1 from the February 28,
2018 judgment of sentence imposing an aggregate 32 months to 7 years of
incarceration for one count each of burglary and criminal trespass. 2 Also
pending before this Court is an application for relief in which Appellant
requests permission to proceed in forma pauperis because he cannot afford to
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1 Appellant also proceeded pro se at trial. On three separate occasions, the
trial court confirmed that Appellant understood his right to counsel and
entered a knowing, intelligent, and voluntary waiver pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988). Waiver forms were
docketed on January 29, 2018, February 28, 2018, and April 16, 2018. We
also observe that criminal trespass is not a lesser-included offense of burglary.
Commonwealth v. Harrison, 663 A.2d 238, 240 (Pa. Super. 1995), appeal
denied, 674 A.2d 1067 (Pa. 1996).
2 18 Pa.C.S.A. §§ 3502 and 3503, respectively.
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print the requisite number of briefs. We affirm the judgment of sentence and
deny the application as moot.
The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a)
opinion.:
In October 2016, tenants were evicted from an apartment
building in Reading, PA. Once the eviction occurred, the
management company had a ‘No Trespassing’ sign placed on the
door and the locks were changed. In November 2017, the
managers of the apartment building found that the apartment,
which had been unoccupied for at least six weeks, had an
occupant. When the apartment managers saw him, they asked
him to leave and he did. They noticed that a window had been
broken, so they boarded it up. A week later, the managers went
back to that same apartment and saw the same unauthorized
occupant, [Appellant]. It appeared to the managers at that time
that [Appellant] had been using the kitchen, the electricity, and
the heating in the apartment. The door to the apartment was
locked when the managers arrived, but on inspection of the
apartment, they noticed that the boarding that was over the
broken window had been removed. The managers called the
police who arrived a few minutes later. [Appellant] was then
detained by the police.
Trial Court Opinion, 1/14/19, at 2 (pagination ours).
On February 28, 2018, at the conclusion of a two-day trial, a jury found
Appellant guilty of the aforementioned offenses. The trial court imposed
sentence immediately following trial. Appellant filed a timely post-sentence
motion on March 8, 2018. The trial court denied relief on May 29, 2018. This
timely appeal followed.
Appellant asks us to consider the following assertions of error:
1. Whether the Commonwealth established sufficiency of
the evidence […] to sustain the verdict of guilty [burglary
and criminal trespass]?
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2. Whether the trial court erred and abused its discretion
and committed reversible error pursuant to Pennsylvania
Rule of Criminal Procedure 564, by allowing the
Commonwealth to argue uncharged crimes to the jury?
3. Whether the Commonwealth erred and abused its
discretion by withholding exculpatory evidence from the
defense, favorable to [Appellant’s] actual innocence?
4. Whether the Commonwealth erred and abused its
discretion and committed reversible error by allowing
perjured testimony to be presented to the jury?
Appellant’s Brief at Statement of Questions Involved.3
We review a challenge to the sufficiency of the evidence as follows:
When evaluating a sufficiency claim, our standard is
whether, viewing all the evidence and reasonable inferences in the
light most favorable to the Commonwealth, the factfinder
reasonably could have determined that each element of the crime
was established beyond a reasonable doubt. This Court considers
all the evidence admitted, without regard to any claim that some
of the evidence was wrongly allowed. We do not weigh the
evidence or make credibility determinations. Moreover, any
doubts concerning a defendant’s guilt were to be resolved by the
factfinder unless the evidence was so weak and inconclusive that
no probability of fact could be drawn from that evidence.
Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010).
Appellant was convicted of burglary pursuant to § 3503(a)(2) of the
Crimes Code, which provdes:
(a) Offense defined.--A person commits the offense of burglary
if, with the intent to commit a crime therein, the person:
[…]
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3 Appellant’s brief is not paginated until the argument section, which begins
with page one.
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(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.A. § 3502(a)(2).
Likewise, he was convicted of criminal trespass pursuant to
§ 3503(a)(1)(ii), which provides:
(a) Buildings and occupied structures.—
(1) A person commits an offense if, knowing that he is not
licensed or privileged to do so, he:
[…]
(ii) breaks into any building or occupied structure or
separately secured or occupied portion thereof.
18 Pa.C.S.A. § 3503(a)(1)(ii).
Appellant argues the evidence was insufficient because Commonwealth
witness, Eric Dinh, the manager of the apartment complex, is the only person
who saw Appellant inside the apartment. Appellant argues that Dinh’s
testimony is hearsay, and that Appellant’s conviction cannot stand solely on
hearsay from one witness. Appellant’s Brief at 3. Appellant cites
Commonwealth ex. rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990),
in which our Supreme Court held that a police officer’s hearsay testimony was
insufficient to make out a prima facie case against the defendant at a
preliminary hearing. Verbonitz is not on point, inasmuch as that case
involved a preliminary hearing. Moreover, Appellant fails to explain why
Dinh’s testimony is hearsay. Hearsay is an out-of-court statement offered in
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court to prove the truth of the matter asserted. Pa.R.E. 801. Dinh’s account
of finding Appellant in the apartment is not hearsay. Appellant does not claim
that Dinh recounted the statement of a non-testifying declarant. Thus, this
argument fails.
Appellant also claims his conviction was based upon nothing other than
his mere presence at the scene, but this claim is inaccurate. As the trial court
recounted, Appellant was found inside an apartment, where he had no lawful
right to be, on two occasions. A window was broken on the first occasion, and
the boarding over the broken window was removed on the second occasion.
The record indicates that Appellant used hot water, electricity, and gas for
which he did not pay. This evidence plainly establishes much more than
Appellant’s mere presence. Appellant’s argument lacks merit.
In his second argument, Appellant appears to claim the trial court erred
in permitting the Commonwealth to discuss uncharged offenses in its closing
argument to the jury. Appellant’s Brief at 7-10. Confusingly, Appellant also
argues that the trial court erred in permitting the Commonwealth to amend
the criminal information. Appellant does not address any charge added to the
information, nor does he explain why the amendment was improper under
Pa.R.Crim.P. 564.4 Rather, Appellant appears to believe that the
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4 Rule 564 of the Pennsylvania Rules of Criminal Procedure governs
amendment of an information:
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Commonwealth should not have been permitted to discuss Appellant’s
unlawful use of electricity, hot water, and gas for cooking without charging
Appellant with theft of services.5
Appellant’s argument is unfounded. The burglary statute requires the
Commonwealth to prove a defendant entered a building with an intent to
commit a crime therein. A defendant’s intent to commit a crime is sufficient;
the Commonwealth need not charge the intended crime or prove the
defendant committed it. See Commonwealth v. Franklin, 452 A.2d 797,
800 (Pa. Super. 1982) (noting it is not necessary for an information to specify
the crime a burglary defendant intended to commit). To convict Appellant of
burglary, the Commonwealth needed to prove that he entered the apartment
with intent to commit a crime. Appellant has articulated no legal basis upon
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The court may allow an information to be amended, provided that
the information as amended does not charge offenses arising from
a different set of events and that the amended charges are not so
materially different from the original charge that the defendant
would be unfairly prejudiced. Upon amendment, the court may
grant such postponement of trial or other relief as is necessary in
the interests of justice.
Pa.R.Crim.P. 564.
5 Theft of services occurs where a person “intentionally obtains services for
himself or for another which he knows are available only for compensation, by
deception [….]” Appellant does not argue that his use of water, gas, and
electricity, after breaking into an apartment, is insufficient to demonstrate his
intent to commit theft of services. 18 Pa.C.S.A. § 3926(a)(1).
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which Commonwealth should have been precluded from establishing
Appellant’s intent to commit theft of services.
Next, Appellant argues the Commonwealth improperly withheld
exculpatory evidence. He claims the apartment’s evicted former tenant broke
the apartment window during a domestic dispute for which the former tenant
was arrested. Appellant omitted this issue from his Rule 1925(b) statement,6
and therefore he has waived it. Pa.R.A.P. 1925(b)(4)(vii). In any event, the
issue is meritless. The circumstances of the former tenant’s crime, if it
occurred, are not of record in this matter. Further, the record indicates that
the window was intact upon the former tenant’s eviction. Finally, even if the
former tenant returned and broke the window, the fact remains that Appellant
removed the boarding from the broken window to enter the apartment a
second time.
Appellant’s final argument is that his conviction is based on perjured
testimony. Appellant does not develop this argument with citation to pertinent
authority and citation to the record, and therefore he has waived it. Pa.R.A.P.
2119(b), (c); Commonwealth v. Janda, 14 A.3d 147, 164 (Pa. Super.
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6 The trial court issued an opinion on September 5, 2018, recommending that
this appeal be dismissed for Appellant’s failure to file a Pa.R.A.P. 1925(b)
statement. On October 1, 2018, this Court issued an order directing the trial
court to ensure that transcripts were produced, made a part of the record,
and provided to Appellant in accord with an earlier trial court order. Appellant
filed a concise statement after he received the transcripts. The trial court’s
January 14, 2019 opinion addresses the issues Appellant raised in his concise
statement. We have done likewise.
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2011). Regardless, Appellant apparently bases this argument upon testimony
indicating that Appellant broke the apartment window, whereas Appellant
asserts that the former tenant broke the window and was prosecuted for it.
Thus, Appellant believes Commonwealth witnesses either lied or offered
testimony the Commonwealth knew to be inaccurate. Appellant’s argument,
even if preserved, would be unavailing because it depends on facts not of
record and because the facts of record support an inference that Appellant
removed boarding from the broken window to gain entry to the apartment.
For all of the foregoing reasons, we find no merit to any of Appellant’s
assertions of error.
Judgment of sentence affirmed. Application for relief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/25/2019
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