Com. v. Vacula, J. ( 2023 )

J-S19009-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUDITH A. VACULA :
:
Appellant : No. 1565 MDA 2022
Appeal from the Judgment of Sentence Entered October 13, 2022
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001975-2021
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 28, 2023
Appellant, Judith A. Vacula, appeals from the judgment of sentence of 3
to 23 months’ incarceration, imposed after she was convicted by a jury of two
counts of criminal trespass, 18 Pa.C.S. § 3503(a)(1)(i) and (ii). On appeal,
Appellant seeks to challenge her sentence, as well as the sufficiency of the
evidence to sustain her convictions. Additionally, Appellant’s counsel, William
L. J. Burke, Esq., seeks to withdraw his representation of Appellant pursuant
to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). After careful review, we affirm
Appellant’s judgment of sentence and grant counsel’s petition to withdraw.
The facts of Appellant’s case were briefly summarized by the trial court,
as follows:
J-S19009-23
On November 23, 2021, Officer [Karl] Harig charged [Appellant]
with the aforementioned crimes[,1] which occurred between
August 24, 2021, [and] November 23, 2021.[2] [Appellant] had
repeatedly trespassed on property located at 237 East Broad
Street, Tamaqua, Pennsylvania[,] while she was not licensed or
privileged to do so by breaking into the building which was
placarded as a condemned property on multiple occasions by
Borough officials.
TCO at 3.
Following a trial on August 8, 2022, the jury convicted Appellant of two
counts of criminal trespass (one count under section 3503(a)(1)(i) (entering
a structure) and one count under section 3503(a)(1)(ii) (breaking into a
structure)). She was acquitted of the remaining counts. On October 13, 2022,
Appellant was sentenced to the aggregate term of incarceration set forth
supra. She filed a timely, post-sentence motion for modification of her
sentence, which the court denied on October 24, 2022. Appellant then filed a
timely notice of appeal, and she complied with the court’s order to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
court filed its Rule 1925(a) opinion on December 12, 2022.
____________________________________________
1 Appellant was originally charged with 10 total counts of criminal trespass
(five counts under 18 Pa.C.S. § 3503(a)(1)(i) (entering a structure) and five
counts under 18 Pa.C.S. § 3503(a)(1)(ii) (breaking into a structure)). See
Trial Court Opinion (TCO), 12/12/22, at 1. The Commonwealth subsequently
filed a motion to amend the information to charge six total counts (three
counts under section 3503(a)(1)(i) and three counts under 3503(a)(1)(ii)).
Id. at 2.
2Specifically, the dates Appellant allegedly committed the trespass crimes
were August 24, 2021, November 4, 2021, and November 23, 2021.
-2-
J-S19009-23
On March 3, 2023, Attorney Burke filed with this Court a petition to
withdraw from representing Appellant. That same day, counsel also filed an
Anders brief, discussing the following two issues that Appellant seeks to raise
on appeal:
[1.] Whether the [trial c]ourt … [i]mposed a sentence of
incarceration in excess of the recommended sentencing
guidelines, and whether said sentence resulted in an abuse
of discretion?
2. Whether the jury’s verdict was contrary to the evidence
and testimony adduced at trial?
Anders Brief at 4.
Attorney Burke concludes that these issues are frivolous, and that
Appellant has no other, non-frivolous issues she could pursue herein.
Accordingly,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief 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.
-3-
J-S19009-23
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right to: “(1) retain new counsel to
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court[’]s attention
in addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, … 936 A.2d 40 ([Pa.] 2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear[s] on its face to be arguably meritorious issues that
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
In this case, Attorney Burke’s Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could arguably
support Appellant’s claims, and he sets forth his conclusion that Appellant’s
appeal is frivolous. He also explains his reasons for reaching that
determination, and supports his rationale with citations to the record and
pertinent legal authority. Attorney Burke also states in his petition to
withdraw that he has supplied Appellant with a copy of his Anders brief.
Additionally, he attached a letter directed to Appellant to his petition to
withdraw, in which he informed Appellant of the rights enumerated in
Nischan. Accordingly, counsel has complied with the technical requirements
for withdrawal. We will now independently review the record to determine if
-4-
J-S19009-23
Appellant’s issues are frivolous, and to ascertain if there are any other, non-
frivolous issues she could pursue on appeal.
We begin with Appellant’s second issue, as Attorney Burke discusses
that claim first in his Anders brief. While not clearly indicated by the
Statement of the Questions Presented, Attorney Burke frames Appellant’s
second issue as a challenge to the sufficiency of the evidence in the Argument
portion of his Anders brief.
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
According to Attorney Burke, Appellant believes that the
Commonwealth’s evidence was insufficient to prove she committed criminal
trespass because Appellant testified
that she obtained ownership in [the] real estate through different
forms of title including[,] but not limited to[,] being [the]
successful bidder at [the] tax claim bureau sale, maintaining [her]
primary residence in the subject real estate, [and] obtaining [an]
interest to either purchase and/or reside in [the] real estate from
[the] estate executor of [the] prior owner. Appellant further
contested the correct numbering sequence of the real estate as a
means of contesting [the] lawful condemnation of the real estate.
Appellant further contested the validity of [the] proper
condemnation under the Tamaqua Borough Code of Ordinances[,]
-5-
J-S19009-23
including but not limited to proper service of [the] condemnation
order under the International Property Maintenance Code and
[the] refusal of [a] Tamaqua Borough Code Official to permit
remediation efforts.
Anders Brief at 14-15. In other words, Appellant “questions whether the jury
verdict was contrary to [the] testimony and evidence [indicating] that [she]
demonstrated an ownership interest in the real estate.” TCO at 10.
The trial court concluded that Appellant’s “contentions concerning the
sufficiency of the evidence are without merit.” Id. It explained:
[T]he jury found [Appellant] guilty of criminal trespass – breaking
into [a] structure and criminal trespass – enter[ing] a structure.
The[se] crimes … are defined as follows:
§ 3503. Criminal trespass
(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.
18 Pa.C.S.[] § 3503.
The evidence received at trial, when undertaken in the light most
favorable to the Commonwealth as verdict winner, established
that [Appellant] repeatedly entered and broke into the condemned
building located at 237 East Broad Street, Tamaqua,
Pennsylvania[,] and remained in the building when she had no
legal ownership rights nor right to be in the property. Most
significantly, by her own admission, [Appellant], against the
advice of her attorney, testified at trial that she “lived” at the
property at issue. Although she was a successful bidder in the
sale of the property at a Schuylkill County Tax Claim Bureau
judicial sale, the evidence revealed that [Appellant] never finalized
the sale nor received a deed to the property conveying ownership
-6-
J-S19009-23
from the county. [Appellant] insisted that she entered into a civil
contract to restore the property; however, the evidence
overwhelmingly demonstrated that [Appellant] clearly knew she
was not licensed or privileged to enter the building.
The Commonwealth also offered testimonial evidence from Kevin
Steigerwalt, Tamaqua Borough Manager[,] that the Borough
placarded the property on both the front door and a window with
condemnation notice[s] on numerous occasions on January 6,
2021, January 8, 2021, February 2, 2021, February 9, 2021,
February 22, 2021, and March 2, 2021, due to the property[’s]
being vacant, [and] lacking water, heat and electricity. The
condemnation notice prohibited entry into the property, yet
[Appellant] entered and remained in the building after breaking
and changing the locks of the property. Mr. Steigerwalt testified
that [Appellant] was never the property owner of 237 East Broad
Street, Tamaqua, and that he had explained this to [Appellant] on
numerous occasions.
The Commonwealth presented testimonial and video evidence
from Officer Harig’s body[-]worn video camera that depicted
[Appellant’s] living in the property on the date of her arrest.
Officer Harig testified that when he encountered [Appellant,] she
was decorating and furnishing the property.
Respectfully, the record amply demonstrates that [Appellant’s]
sufficiency of the evidence argument is without merit.
TCO at 11-12 (unnecessary capitalization omitted; emphasis in original).
We agree with the trial court that the evidence was sufficient to prove
the elements of criminal trespass. Specifically, the Commonwealth
established that the property was condemned, Appellant knew she was not
licensed or privileged to enter the condemned property, and that she did so
anyway by breaking into the house and changing the locks.3 We agree with
____________________________________________
3 We note that Appellant did not raise an abandonment defense. See 18
Pa.C.S. § 3503(c)(1) (“It is a defense to prosecution under this section that:
(1) a building or occupied structure involved in an offense under subsection
(a) of this section was abandoned[.]”).
-7-
J-S19009-23
Attorney Burke that Appellant’s “civil issues of ownership, condemnation, and
remediation of code defects possess[] no relevance whatsoever as to the
element[s] of [the] crime[s] required [by] 18 Pa.C.S.[] § 3503(a)(ii) and 18
Pa.C.S.[] § 3503(a)(i) for the Commonwealth to prove at trial.” Anders Brief
at 17. Thus, Attorney Burke is correct that Appellant’s sufficiency claim is
frivolous.
Next, Appellant seeks to challenge the discretionary aspects of her
sentence. Namely, she avers that the court abused its discretion by imposing
a “sentence of incarceration [that] was contrary to the circumstances[,] in
that [Appellant] possessed a nominal criminal record, was gainfully employed,
and did not possess a history of violence[.]” Appellant’s Rule 1925(b)
Statement, 12/5/22, at 1 (single page).
Preliminarily, we note that this Court has explained:
To adequately preserve a discretionary sentencing claim, the
defendant must present the issue in either a post-sentence
motion, or raise the claim during the sentencing proceedings. In
the non-Anders context, the defendant must preserve the issue
in a court-ordered [Rule] 1925(b) concise statement and a
Pa.R.A.P. 2119(f) statement.[4] Where counsel files an Anders
brief, this Court has reviewed the matter even absent a separate
[Rule] 2119(f) statement.
____________________________________________
4 Rule 2119(f) states: “An appellant who challenges the discretionary aspects
of a sentence in a criminal matter shall set forth in a separate section of the
brief a concise statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence. The statement shall
immediately precede the argument on the merits with respect to the
discretionary aspects of the sentence.” Pa.R.A.P. 2119(f).
-8-
J-S19009-23
Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (cleaned
up).
Here, Appellant preserved her sentencing claim in her post-sentence
motion and, although Attorney Burke does not set forth a Rule 2119(f)
statement in his Anders brief, we will not consider that omission as precluding
review of whether Appellant’s issue is frivolous. See id. In conducting this
review, we note that,
there is no absolute right to appeal when challenging the
discretionary aspect of a sentence. An appeal is permitted only
after this Court determines that there is a substantial question
that the sentence was not appropriate under the sentencing code.
When considering the merits of a discretionary aspects of
sentencing claim, we analyze the sentencing court’s decision
under an abuse of discretion standard. In conducting this review,
we are guided by the statutory requirements of 42 Pa.C.S. §
9781(c) and (d). Section 9781(c) provides that this Court shall
vacate a sentence and remand under three circumstances:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable;
or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
42 Pa.C.S. § 9781(c). In addition, we consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
-9-
J-S19009-23
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Zeigler, 112 A.3d at 661-62 (cleaned up).
In this case, Appellant recognized, in her post-sentence motion, that her
sentence of 3 to 23 months’ incarceration is within the standard guideline
range of restorative sanctions to 3 months’ imprisonment. See Post Sentence
Motion, 10/21/22, at 1 (unnumbered). She contended, however, that the
court should have imposed a probationary term — or, at worst, house arrest
— rather than incarceration, given that Appellant was employed, she was
receiving mental health counseling, she had no history of violence, her mental
health issues would be best addressed in the community, and she
“possesse[d] an address for parole/probation.” Post-Sentence Motion,
10/21/22, at 1 (unnumbered). We consider Appellant’s argument that her
sentence of incarceration is excessive, in light of mitigating circumstances, as
constituting a substantial question for our review. See Zeigler, 112 A.3d at
662 (observing that “an excessiveness claim in conjunction with an assertion
that the court did not adequately consider a mitigating factor may present a
substantial question”) (citation omitted).
Nevertheless, we do not discern any abuse of discretion by the court in
fashioning Appellant’s sentence. Initially, we note that the court had the
benefit of a presentence investigation report (PSI) in fashioning Appellant’s
standard-range sentence. Therefore, we presume that the court adequately
- 10 -
J-S19009-23
considered the mitigating factors in her case. See Commonwealth v.
Fowler, 893 A.2d 758, 766 (Pa. Super. 2006).
Additionally, based on the trial court’s discussion of its sentencing
rationale, we conclude that Appellant’s standard-range sentence is not “clearly
unreasonable.” 42 Pa.C.S. § 9781(c)(2). In particular, the court stated that
it “strove to achieve a sentence that was consistent with the purposes of
sentencing, the protection of the public, the gravity of the offenses as they
related to the impact on the community, and the rehabilitative needs of
[Appellant].” TCO at 7 (citing 42 Pa.C.S. § 9721(b)). It then explained:
This [c]ourt had the benefit of a comprehensive PSI report which
contained information about the crimes [Appellant] had
committed[,] as well as information, both favorable and
unfavorable, about [Appellant]. At the sentencing hearing, this
[c]ourt indicated an awareness of the information contained in the
PSI and weighed that information against the requisite statutory
and guideline provisions when deciding and announcing
[Appellant’s] sentence. Our on-record statements and the PSI are
sufficient to explain the reasons for the sentence imposed, to
demonstrate that we complied with the applicable sentencing
laws, and to show that, in sentencing [Appellant], we acted well
within our discretion. [Appellant’s] sentence of 3 to 23 months[’]
incarceration falls within the standard range for those convicted
of [c]riminal [t]respass – [b]reaking [i]nto [s]tructures with a
prior record score of zero.
In summary, the appropriate sentencing factors are clear and
obvious in this case. We considered those factors in accordance
with the [S]entencing [C]ode. During the sentencing hearing[,]
we outlined and reviewed the PSI. (N.T.[,] 10/13/22, [at] 3-12).
Attorney Burke submitted a letter from Dr. James Klebe, a
licensed psychologist who wrote a letter in support of [Appellant]
indicating that she was treating with him, [she was] currently
employed, and diagnosed with depressive disorder. Attorney
Burke asked the [c]ourt to sentence [Appellant] to a term of
probation.
- 11 -
J-S19009-23
At the request of her probation officer, [Appellant] had previously
sent the [c]ourt an email on September 27, 2022, which became
part of the PSI. In that email, [Appellant] insisted that her case
be deemed a mistrial and indicated that she complied with a “civil
action lease purchase agreement since August 1, 2020,” followed
all contracts, believed her lease and purchase was not under the
jurisdiction of Tamaqua Borough, and denied having acted in a
criminal capacity. [Appellant] also blamed borough officials[,] yet
conceded that there was a Notice to Vacate placarded on the
property on November 23, 2021, by the Tamaqua Borough. She
continually insisted that the crimes of which she was convicted
consist of civil matters.
Tamaqua Borough Police Officer, Karl Harig II, wrote a letter to
Schuylkill County Adult Probation on September 27, 2022, which
became part of the PSI. Officer Harig described [Appellant] as
defiant and agitated. He wrote that her actions demonstrate
continued disrespect for the law and “no trespass” [o]rders[,] as
well as [c]ourt [o]rders. Officer Harig indicated that [Appellant]
tells people she owns the property in question and denigrates the
Tamaqua Police [D]epartment.
[Appellant] addressed the [c]ourt during the sentencing hearing.
Despite not owning the property nor possessing a lawful deed,
[Appellant] told the [c]ourt she was trying to follow the “contracts
of the purchase of the sale that [she] made in August.” (Id. at
6). She insisted that “people didn’t believe that [she] bought the
property.” (Id.)
The Commonwealth requested a 3 to 23 month sentence[,]
explaining [that] the basis for [its] request was due to
[Appellant’s] lack of remorse and blatant disregard for the law.
(Id. at 7). Additionally, the Commonwealth noted that
[Appellant] had been convicted by a jury of criminal trespass on
October 25, 2021, for entering the same property in the same
building…. (Id.) At the conclusion of trial wherein the jury found
[Appellant] guilty in that case, the [trial court] … prohibited
[Appellant] from entering the premises of 237 East Broad Street,
Tamaqua[,] as part of her bail conditions pending sentencing
scheduled on December 8, 2021. (Id.)[] The Commonwealth
highlighted that [Appellant] last committed the instant crimes on
November 23, 2021, less than one month after [the trial court’s
o]rder forbidding her to trespass or set foot on the premises of
the property.
- 12 -
J-S19009-23
The Commonwealth presented the testimony of Thomas Nelson,
Tamaqua Borough Code Enforcement Officer. (Id. at 8). Mr.
Nelson testified that he received a voicemail from [Appellant]
approximately one to two weeks prior to sentencing [in the instant
case] wherein she asked Mr. Nelson to remove the condemnation
placards from the property so she could get back in. (Id. at 9).
Of great concern to this [c]ourt was that [Appellant] has and
continues to show no remorse []or acknowledge any responsibility
for the crimes of which she was lawfully convicted. Her email to
the [c]ourt prior to sentencing, her statements to the [c]ourt
during sentencing, Mr. Nelson’s testimony, and Officer [H]arig’s
letter all demonstrate [Appellant’s] lack of remorse and her
continued efforts to disregard the law and enter the property of
which she insists she has ownership interest[,] despite not being
the owner and having no legal right to enter the property. On the
record, we acknowledged [Appellant’s] lack of remorse while
taking due consideration of her mental health and rehabilitative
needs, her employment, and her lack of a prior record, and, after
considering probation, ultimately determined incarceration to be
necessary in light of the record as a whole. (Id. at 10-13). Our
on[-]the[-]record statements constitute adequate explanation of
the sentence imposed.
TCO at 7-10.
We agree with the court. Clearly, the court took into account the
mitigating factors cited by Appellant, but found that her lack of remorse,
disregard for the law, and the circumstances of her case, as a whole, called
for a term of incarceration. We discern nothing unreasonable about the court’s
sentencing decision. Thus, we agree with Attorney Burke that Appellant’s
challenge to the discretionary aspects of her sentence is frivolous.
In sum, we must agree with Attorney Burke that the two issues he
preserved in Appellant’s Rule 1925(b) statement are frivolous. Given that our
independent review of the record reveals no other, non-frivolous claims that
- 13 -
J-S19009-23
were preserved below, we are constrained to affirm Appellant’s judgment of
sentence and grant counsel’s petition to withdraw.5
____________________________________________
5 While we do not discern any preserved issues warranting a merits brief, we
note that the Commonwealth proceeded under subsection (a) of the criminal
trespass statute, which sets forth offenses that are graded as felonies. In
contrast, the crimes under subsection (b), which sets forth defiant trespass,
are graded as misdemeanors or a summary offense.
The facts of this case certainly seem to suggest that a prosecution, if any, was
more appropriate under subsection (b), as the facts indicate that Appellant’s
conduct was limited to defying orders to leave the property. This was a
victimless crime committed by a citizen with mental health issues, and the
difference in grading between the subsections reflects a legislative judgment
that breaking into structures that may be occupied is a more serious threat to
the public good. Here, there was no such possibility of violence, as no one
lived at or otherwise used the property.
In this regard, we note that Appellant did not pursue the statutory defense of
abandonment codified at 18 Pa.C.S. § 3503(c)(1), which applies to
prosecutions under subsection (a) and operates as a complete defense. See
Commonwealth v. Henderson, 419 A.2d 1366, 1367 (Pa. Super. 1990)
(defining “abandonment” in the related context of burglary as “wholly forsaken
or deserted”). The potential merit of that defense is demonstrated by, inter
alia, the testimony of Building Code Officer Gregory Kurtz, Jr., who stated that
the building at 237 East Broad Street lacked water, heat, and electricity
service, and had “been vacant for some time.” N.T. Trial, 8/8/22, at 39.
Additionally, there was testimony demonstrating confusion as to what
particular address was listed on, or included in, the condemnation notice. See
Id. at 61 (Code Official Nelson’s testifying that he listed on the condemnation
notice the address of 239 East Broad Street); id. at 64 (Code Officer Nelson’s
explaining that there was a “discrepancy” because “there were three different
addresses” associated with 237 East Broad Street, which led to the
condemnation notice listing the tax map parcel ID number). While Attorney
Burke seemingly attempted to highlight this confusion at trial, he did not
preserve any such challenge to the sufficiency of the evidence on this basis in
Appellant’s Rule 1925(b) statement. Consequently, at this juncture,
Appellant’s only potential avenue for relief for any deficiency in counsel’s
representation would be under the Post Conviction Relief Act, 42 Pa.C.S. §§
9541-9546.
(Footnote Continued Next Page)
- 14 -
J-S19009-23
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/28/2023
____________________________________________
Lastly, we mention that we are, of course, cognizant of prosecutorial discretion
in pursuing criminal charges. Still, as our Supreme Court has stated, “[A]
criminal prosecutor … unlike a private attorney, must exercise independent
judgment in prosecuting a case and ‘has the responsibility of a minister of
justice and not simply that of an advocate.’” Commonwealth v. Briggs, 12
A.3d 291, 331 (Pa. 2011). We encourage county prosecutors to exercise their
discretion to utilize every means of social and mental health services before
resorting to criminal prosecution and incarceration. We also stress that
prosecutors should consider whether lesser charges are appropriate, which
appears to be the case here based on the uninhabitable and arguably
abandoned status of the building.
- 15 -