No. 738 Pittsburgh, 1981, No. 941 Pittsburgh, 1981, Appeal from the judgment of sentence dated July 16, 1981, and resentencing dated August 20, 1981, Court of Common Pleas, Criminal Division, Butler County at No. C.A. 752 of 1980, Books 71 and 72, page 224.
Mark Burton, appellant, in pro. per.
Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
Spaeth, Johnson and Hoffman, JJ.
[ 299 Pa. Super. Page 149]
Appellant appeals from his convictions on charges of defiant trespass*fn1 and harassment*fn2 at a trial de novo, following his convictions on these summary charges before a magistrate. Appellant was sentenced on July 16, 1981, to pay the costs of prosecution and, on each conviction, to 90 days imprisonment to run concurrently, as well as a $250 fine on each conviction. We note that after the date of this sentence and notice of appeal entered the same day, Appellant filed a Motion to Modify Sentence on July 31, 1981. The lower court then vacated the initial sentence on July 31, 1981 and imposed a new sentence on August 20, 1981,*fn3 from which Appellant again appealed.
Appellant alleges, inter alia, that the evidence was insufficient to sustain the verdicts. As we find that Appellant's convictions were based on insufficient evidence, we vacate both convictions and discharge Appellant.
In reviewing sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth and, drawing the proper inferences favorable to
[ 299 Pa. Super. Page 150]
the Commonwealth, determine whether the trier of fact could reasonably have found that all elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981).
The record indicates that Appellant and his female friend, Linda, were quietly engaged in a discussion on the enclosed back porch of the boarding house where Linda rented a room. The back porch was used by all tenants and guests, as well as complainant and his wife, as a common area to enter and leave the house. The complainant landlord had seen them there as he left the house on his way to the store and said nothing. After his return, he approached Linda, who was crying, and inquired as to whether she was all right, to which Linda said yes. Appellant told him their discussion was not any of his business; that he and Linda were discussing a disagreement which had arisen between them the day before. Complainant then asked Appellant to leave, to which Appellant replied that he was not leaving at that moment, because he and Linda were attempting to resolve their differences. Complainant insisted that Appellant leave and when Appellant again refused, complainant went into another room. When complainant returned to the porch, he found his wife near Appellant and complainant's dog barking. The dog, a large Newfoundland,*fn4 although chained outside, was able to place himself in a position in the outside doorway of the rear porch while still on his chain, so as to prevent any person from entering or exiting at that point. Complainant's wife, in his absence, had attempted to push Appellant through the outside porch doorway.
Appellant told the complainant that he was afraid of the dog and, for that reason, would not leave by the back door. Appellant grabbed complainant by the shirt, released his grasp, and then proceeded to run through the house ...