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[U] Commonwealth v. Harrell

Superior Court of Pennsylvania

February 10, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
THOMASINA HARRELL Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence January 19, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004904-2010

BEFORE: GANTMAN, J., OLSON, J., and WECHT, J.

MEMORANDUM

GANTMAN, J.

Appellant, Thomasina Harrell, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following her bench trial convictions for criminal attempt, criminal mischief, and criminal trespass.[1] We affirm.

The relevant facts and procedural history of this appeal are as follows.

On March 25, 2010, [Robert Wilkins] was residing at 1740 Hoffnagle Street in the city of Philadelphia with his wife, stepdaughter and granddaughter and at about 12:20 p.m. he was home alone sleeping in his upstairs bedroom. He had come home at about 9:00 or 9:30 a.m. after completing his night shift with the fire department and went to bed, as was his usual custom. He was [awakened] by a large bang, picked up his loaded handgun, ran to the staircase and stopped halfway down where he observed that his front door had been broken in and there was a figure standing in the doorway. [Mr. Wilkins] described the door being open and its frame, or the part of it that would hold the latches, was on the floor, and the person was standing about one foot inside the door. [Mr. Wilkins] uttered an expletive and fired four rounds at the person, aiming at the lower extremities so as to incapacitate rather than kill [the intruder], who fell back through the doorway onto the porch. Only wearing shorts, [Mr. Wilkins] ran back upstairs, donned a pair of jeans, grabbed his cell phone and called 911 and reported a home invasion and the shooting while running back downstairs. The person was no longer on the porch but [Mr. Wilkins] observed the same person proceeding east on Hoffnagle toward Frontenac Street. He described the person's clothing and confirmed that neither he nor any member of his family gave her permission to enter his house, which was his primary residence. While still on the phone he observed the police officer arrive and went out to meet him near where [Appellant] was lying on the ground.
[Philadelphia Police Officer Francis Leaden] was a block away and responded immediately, and found [Appellant] on the ground bleeding from her lower abdomen or upper legs…. [Mr. Wilkins] was on the corner across the street and said that [Appellant] broke into his house and he shot her, whereupon the officer asked [Appellant] if she did so to which she nodded.

(Trial Court Opinion, filed July 18, 2012, at 2-3) (internal citations to the record omitted).

Following a bench trial, the court found Appellant guilty of attempted burglary, criminal mischief, and criminal trespass. Prior to sentencing, the Commonwealth filed notice of intent to seek a mandatory minimum sentence under the "two strikes" provision of 42 Pa.C.S.A. § 9714(a). The court conducted Appellant's sentencing hearing on January 19, 2012. During the hearing, the Commonwealth produced copies of certified records to show Appellant had been convicted of another crime of violence before the commission of the current offenses. At the conclusion of the hearing, the court sentenced Appellant to ten (10) to twenty (20) years' imprisonment for attempted burglary.[2] The court imposed this sentence pursuant to Section 9714. The court imposed no further sentence for the related convictions.

Appellant timely filed a notice of appeal on February 16, 2012. On May 7, 2012, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant filed her Rule 1925(b) statement on June 6, 2012. On October 23, 2012, Appellant filed a petition to remand for the filing of a supplemental Rule 1925(b) statement. This Court granted Appellant's petition on November 16, 2012, and Appellant filed her supplemental Rule 1925(b) statement on January 22, 2013.

WAS NOT THE EVIDENCE INSUFFICIENT TO CONVICT APPELLANT…OF [ATTEMPTED] BURGLARY WHERE THE COMMONWEALTH FAILED TO PROVE THAT [APPELLANT] HAD THE NECESSARY INTENT TO COMMIT A CRIME IN A HOUSE THAT SHE FORCIBLY ENTERED, BUT WHERE SHE MADE NO ATTEMPT TO STEAL ANY VALUABLES OR COMMIT ANOTHER CRIME WHILE INSIDE?
DID NOT THE SENTENCING COURT IMPROPERLY RELY ON AN AFFIDAVIT OF PROBABLE CAUSE TO ESTABLISH THAT [APPELLANT'S] PREDICATE OFFENSE INVOLVED A CRIME OF VIOLENCE, FOR THE PURPOSES OF THE RECIDIVIST STATUTE, 42 PA.C.S. § 9714, WHERE THE AFFIDAVIT WAS AN INCONCLUSIVE RECORD THAT CONTAINED UNRELIABLE HEARSAY AND IT WAS UNCLEAR WHETHER [APPELLANT] PLED GUILTY TO THE FACTS AS SET FORTH IN THAT DOCUMENT?
DID NOT THE SENTENCING COURT ERR WHEN IT FOUND THAT THE COMMONWEALTH PROVED THE PREDICATE OFFENSE OF BURGLARY, FOR THE PURPOSES OF THE RECIDIVIST STATUTE, 42 PA.C.S. § 9714, BY A PREPONDERANCE OF THE EVIDENCE WHERE THERE WAS NO PERSON PRESENT IN THE APARTMENT AT THE TIME OF THE BURGLARY AND THEREFORE THE MANDATORY SENTENCE WAS INAPPLICABLE?

(Appellant's Brief at 3).

In her first issue, Appellant contends the offense of attempted burglary requires the Commonwealth to prove she intended to commit a crime when she entered the victim's residence. Appellant asserts our Supreme Court has rejected the per se assumption that evidence of a forced entry automatically gives rise to an inference of intent to commit a crime; rather, the fact finder must evaluate the totality of the circumstances when examining intent. Appellant insists the evidence the Commonwealth presented at trial merely demonstrated that she broke the victim's doorframe and briefly stood inside the residence. Absent more, Appellant argues the evidence did not permit the court, sitting as fact finder, to infer that ...


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