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[U] Commonwealth v. Canty

Superior Court of Pennsylvania

November 15, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DONALD CANTY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence December 2, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005019-2011

BEFORE: BOWES, PANELLA, and FITZGERALD, [*] JJ.

MEMORANDUM

BOWES, J.

Donald Canty appeals from the judgment of sentence of nine to eighteen months imprisonment followed by two years probation. Sentence was imposed after Appellant was convicted at a bench trial of burglary, trespass, attempted theft, and risking a catastrophe. We affirm.

The proof supporting Appellant's convictions was as follows. At 1:45 p.m. on March 7, 2011, Philadelphia Police Officer Latonya Bey received a dispatch that a burglary was in progress at 6072 Chester Avenue, Philadelphia. When she arrived at that destination, the fire department was present, and she immediately smelled a strong odor of gas emanating from the property. She and her partner proceeded to investigate, and, as they were "going through the back alleyway, " they "saw [Appellant] actually come out the back door of that property." N.T. Trial, 12/2/11, at 9. Officer Bey identified Appellant in the courtroom as the man whom she observed exit the house when the burglary and gas leak were discovered.

When she saw Appellant, Officer Bey yelled, "Police, " and, "[a]t that point, [Appellant] proceeded to run down the alleyway." Id. at 10. Officer Bey apprehended Appellant shortly thereafter. She observed that Appellant "was dirty. He had dirty boots, hands and clothing as well." Id. at 11. Officer Bey arrested Appellant, transported him to the police station, and returned to the property. She observed that "the back door was kicked off the hinges." Id. Additionally, in the basement, she discovered "copper piping that was disconnected from various areas like the furnace, water heater, and it was all piled up as if it was ready to be taken out." Id. Specifically, the piping was located near the stairway leading to the first floor.

Bernard James Breslin, a field supervisor for the Philadelphia Gas Works, testified as follows. He responded to a report from the fire department of a gas leak at 6072 Chester Avenue on March 7, 2011. When he arrived, a police officer and a service technician were at the scene. Even though the service technician had already shut off the gas to the property, Mr. Breslin could "still smell gas. There were still readings" in the house, which had to be ventilated. Id. at 20. Mr. Breslin, who was qualified as an expert witness, opined that the gas leak could have resulted in a fire, explosion, and personal injury.

Based on this evidence, Appellant was convicted of the above-described offenses and sentenced to county incarceration followed by probation. In this appeal from imposition of sentence, Appellant raises these averments:

A. Was not the evidence insufficient to sustain Appellant's conviction for burglary, criminal trespass and attempted theft where the Commonwealth did not disprove the properly raised affirmative defense that the property was abandoned?
B. Was not the evidence insufficient to sustain Appellant's conviction for burglary and attempted theft beyond a reasonable doubt because the Commonwealth failed to prove that upon entry appellant had the intent to commit a crime inside or deprive another of property where the house and its contents reasonably appeared abandoned?
C. Was not the evidence insufficient to sustain Appellant's conviction for risking a catastrophe, and attempted theft unlawful taking because there was no evidence that appellant was the party responsible for touching, removing or attempting to remove copper pipes from the house or that he was the individual responsible for releasing gas into the building?
D. Was not the evidence insufficient to sustain a conviction for criminal trespass as a felony of the second degree because the evidence was insufficient to prove ...

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