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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NON-PRECEDENTIAL DECISION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 that appellant broke the door to the house?

Appellant's brief at 4.

We engage in the following standard of review regarding Appellant's sufficiency contentions:

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." Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (Pa. 2000). "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." Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.Super. 2005). Nevertheless, "the Commonwealth need not establish guilt to a mathematical certainty." Id.; see also Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa.Super. 2000) ("The facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence."). Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. See Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001).
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. See Brewer, 876 A.2d at 1032. Accordingly, "the fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence." Id. (quoting Commonwealth v. Murphy, 795 A.2d 1025, 1038–39 (Pa.Super. 2002)). 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. See Brewer, 876 A.2d at 1032.

Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa.Super. 2013) (citation omitted).

Appellant first argues that the evidence was insufficient to sustain the verdict as to burglary, trespass, and attempted theft in that the evidence did not establish beyond a reasonable doubt that the property was not abandoned. The crime of burglary is set forth in 18 Pa.C.S. § 3502(a):

(a) Offense defined.--A person commits the offense of burglary if, with the intent to commit a crime therein, the person:
(1) 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 any person is present;
(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;
(3) enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense any person is present; or
(4) enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense no person is present.

An occupied structure is, "Any structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present. 18 Pa.C.S. § 3501. It is a "defense to prosecution for burglary if . . . . [t]he building or structure was abandoned." 18 Pa.C.S. § 3502(b)(1). We observe that neither trespass nor attempted theft provides that abandonment is a defense to those crimes. Thus, Appellant's challenge to those offenses cannot be sustained.

As to burglary, in Commonwealth v. Henderson, 419 A.2d 1366, (Pa.Super. 1980), we announced the definition of an abandoned building for purposes of § 3502(b)(1):

Webster defines abandon as 1) to forsake entirely; as, to abandon a hopeless enterprise 2) to renounce and forsake; to leave with a view never to return. Thus a building that has been abandoned is one that is wholly forsaken or deserted. Webster's New Twentieth Century Dictionary, Unabridged, Second Edition, (1979).

Id. at 1367. Similarly, in Commonwealth ex rel. Lamberson v. Batyko, 43 A.2d 364, 365 (Pa.Super. 1945) (citation omitted), we observed: "To abandon is totally to withdraw ourselves from an object; to lay aside all care for it; to leave it altogether to itself." Thus, a house that is not occupied is not necessarily abandoned. Instead, the circumstances must indicate that the owner has completely forsaken the property and has no intention of returning to it.

Herein, Appellant contends that he raised the affirmative defense of abandonment and that the Commonwealth failed to disprove that circumstance beyond a reasonable doubt. Specifically, at trial, Appellant asked Mr. Breslin, "Did the house appear abandoned to you?" N.T. Trial, 12/2/11, at 22. The witness responded affirmatively and also indicated that there were many pipes removed in a number of rooms. Appellant argued to the trial judge that the building in question was "clearly an abandoned house that's having work done to it in some way." Id. at 27.

The trial court rejected Appellant's position that the house was abandoned. It premised its finding on the fact that entry to the house had to be gained through a locked door, which was broken, as well as the fact that the gas was still operational on the structure. We concur with the trial court's assessment. If the house was totally abandoned, no one would have been paying for gas to the property. Additionally, there would not have been a locked door. Appellant admitted during closing remarks that the house appeared to be under construction. The existence of that type of activity demonstrated that the house, contrary to being abandoned, was being repaired so that it could be occupied. Hence, the Commonwealth disproved beyond a reasonable doubt Appellant's defense that the property was abandoned.

Appellant's next challenge to the sufficiency of the evidence relates to burglary and attempted theft. He maintains that the proof failed to demonstrate that he had the specific intent to commit a crime on the property or a theft of the removed piping because the house and its contents appeared to be abandoned. We reject this challenge on the same basis as outlined infra. The house and its contents did not reasonably appear to have been abandoned since the house was locked and the door had to be broken for Appellant to enter it. Additionally, when Appellant removed the piping to the furnace and water heater, the smell of gas would have been apparent. He thus would have known that someone was still paying for that utility. Thus, Appellant could not have reasonably believed that the house and its contents were abandoned by the owner.

Appellant's third position is that the evidence was insufficient to sustain the finding that he was guilty of risking a catastrophe and attempted theft. He maintains that there was no proof that he was the individual who cut the copper piping, which created the gas leak, and placed that piping by the basement stairs to be removed. His final allegation involves the identical stance in that Appellant suggests that the trespass conviction is infirm since there was no evidence that he was responsible for breaking the door to the property to gain entry to it.

It is well established that, when reviewing the sufficiency of the evidence, the Commonwealth is entitled to all reasonable inferences created by the evidence presented. Lynch, supra. In this case, police received a report that a burglary was in progress at 6072 Chester Avenue. When they arrived, the smell of gas was pervasive. As Officer Bey approached the rear of the house, she observed Appellant exiting the house. Upon seeing police, he fled, which establishes consciousness of guilt. When arrested shortly thereafter, he and his clothing were dirty, which gives rise to the inference that he was involved in cutting the pipes in the basement. Given Appellant's presence in the house contemporaneously with the burglary report and discovery of the gas leak, together with his flight from police and dirty appearance, the fact finder was permitted to infer that he was the person responsible for breaking into the house and removing the copper piping that resulted in the gas leak. Commonwealth v. Cimaszewski, 288 A.2d 805 (Pa. 1972); Commonwealth v. Viall, 420 A.2d 710 (Pa.Super. 1980). The circumstances presented herein, together with the reasonable inferences to be drawn therefrom, also were sufficient to permit the trial judge to conclude that Appellant was the person who broke into the house. Hence, we reject Appellant's final two challenges to the sufficiency of the evidence and affirm.

Judgment of sentence affirmed.

Judgment Entered.


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