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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NON-PRECEDENTIAL DECISION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 she intended to commit any crime inside the residence. Appellant concludes the Commonwealth presented insufficient evidence to support her attempted burglary conviction. We disagree.

When examining a challenge to the sufficiency of evidence, our standard of review is as follows:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted…in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [trier] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v. Jones, B., 874 A.2d 108, 120-21 (Pa.Super. 2005)).

The Pennsylvania Crimes Code defines criminal attempt as follows:

§ 901. Criminal attempt
(a) Definition of attempt.-A person commits an attempt when, with intent to commit a specific crime, [she] does any act which constitutes a substantial step toward the commission of that crime.

18 Pa.C.S.A. § 901(a). The Crimes Code also defines burglary as follows:

§ 3502. Burglary
(a) Offense defined.-A person is guilty of burglary if [she] enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.

18 Pa.C.S.A. § 3502(a).[3]

"The burglary statute…punishes unlicensed entry into a building to commit a crime therein where the defendant has gained access through…mere entry into a building…." Commonwealth v. Jones, A., 590 Pa. 356, 370-71, 912 A.2d 815, 824 (2006). "The crime of burglary must be accompanied by specific intent." Commonwealth v. Kennedy, 499 Pa. 389, 393, 453 A.2d 927, 929 (1982). "Intent, however, may be proved by circumstantial evidence." Commonwealth v. Gordon, 477 A.2d 1342, 1348 (Pa.Super. 1984). "The specific intent to commit a crime necessary to establish the intent element of burglary may be found in a defendant's words or conduct, or from the attendant circumstances together with all reasonable inferences therefrom." Commonwealth v. Eck, 654 A.2d 1104, 1108-09 (Pa.Super. 1995). "Once [a defendant] has entered the private residence by criminal means we can infer that [she] intended a criminal purpose based upon the totality of the circumstances." Commonwealth v. Alston, 539 Pa. 202, 208, 651 A.2d 1092, 1095 (1994). "Another factor may be whether the evidence indicates that the defendant thought the building was unoccupied at the time of the entry." Commonwealth v. Madison, 397 A.2d 818, 824 (Pa.Super. 1979). "If it appears [she] did, that may indicate an intent to commit theft, as other crimes would require the presence of a human victim." Id.

Instantly, the victim testified that he returned to his home at approximately 9:00 a.m. on a Thursday morning, after completing a night shift at the local fire company. The victim immediately fell asleep in an upstairs bedroom. At approximately 12:20 p.m., Appellant broke into the residence by destroying the front doorframe. When the doorframe fell to the floor, it created "a large bang, " waking the victim. (See N.T. Trial, 8/25/11, at 14.) The victim reached for a loaded firearm inside his nightstand and went to the top of the stairs to investigate the noise. The victim saw Appellant standing inside the residence, wearing "[d]ark jeans, [a] black hoodie, and…a black skull cap." (Id. at 21). Significantly, the victim did not know Appellant, and she did not have permission to be inside the residence. The victim became startled and fired four shots. At least one of the shots struck Appellant, who fell backwards through the front door. With Appellant out of the residence, the victim picked up a cordless phone and dialed 911. While describing the incident to the 911 operator, the victim went to his living room window and watched Appellant retreat eastbound on Hoffnagle Street.

Officer Leaden arrived at the scene at approximately 12:23 p.m., where he found Appellant sitting at the corner of Hoffnagle and Frontenac Streets. Appellant was bleeding profusely. As the officer attempted to question Appellant, the victim approached and indicated that Appellant was the perpetrator. Officer Leaden asked Appellant to confirm whether she had broken into the victim's house, and Appellant nodded her heard affirmatively. Under the totality of these circumstances, the court properly inferred Appellant's criminal intent. See Alston, supra; Madison, supra. When viewed in the light most favorable to the Commonwealth as verdict winner, sufficient evidence supported Appellant's attempted burglary conviction. See Hansley, supra.

In her second issue, Appellant asserts Section 9714(a)(1) provides a mandatory minimum term of imprisonment for an offender convicted of a second crime of violence. Appellant contends the Commonwealth must prove the offender's prior conviction by a preponderance of the evidence. Appellant avers the Commonwealth attempted to prove her prior conviction by submitting certain documents at the sentencing hearing. Specifically, Appellant claims the Commonwealth introduced certified records from Montgomery County, including an affidavit of probable cause, detailing a 2006 guilty plea to burglary, graded as a first degree felony. Appellant insists the court could not rely on the affidavit of probable cause, because it contained unreliable, inadmissible hearsay. Moreover, Appellant maintains the Commonwealth's remaining evidence did not establish the factual basis for the 2006 guilty plea; therefore, the court could not determine whether the prior burglary conviction constituted a "first strike" conviction. Appellant concludes the court should not have imposed a Section 9714(a) mandatory minimum sentence. Appellant's claim challenges the legality of her sentence. See Commonwealth v. Vasquez, 560 Pa. 381, 744 A.2d 1280 (2000) (stating application of mandatory sentencing provisions implicates legality of sentence).

"Issues relating to the legality of a sentence are questions of law…." Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super. 2008), appeal denied, 598 Pa. 755, 955 A.2d 356 (2008). "The defendant or the Commonwealth may appeal as of right the legality of the sentence." 42 Pa.C.S.A. § 9781(a). See also Commonwealth v. Edrington, 780 A.2d 721 (Pa.Super. 2001) (maintaining legality of sentence claims cannot be waived, where reviewing court has proper jurisdiction). When the legality of a sentence is at issue on appeal, our "standard of review over such questions is de novo and our scope of review is plenary." Diamond, supra at 256. "If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated…." Commonwealth v. Pombo, 26 A.3d 1155, 1157 (Pa.Super. 2011) (quoting Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa.Super. 2011); appeal denied, 616 Pa. 666, 51 A.3d 837 (2012)).

Section 9714 provides, in pertinent part, as follows:

§ 9714. Sentences for second and subsequent offenses
(a) Mandatory sentence.-
(1) Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Upon a second conviction for a crime of violence, the court shall give the person oral and written notice of the penalties under this section for a third conviction for a crime of violence. Failure to provide such notice shall not render the offender ineligible to be sentenced under paragraph (2).
(d) Proof at sentencing.-Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The sentencing court, prior to imposing sentence on an offender under subsection (a), shall have a complete record of the previous convictions of the offender, copies of which shall be furnished to the offender. If the offender or the attorney for the Commonwealth contests the accuracy of the record, the court shall schedule a hearing and direct the offender and the attorney for the Commonwealth to submit evidence regarding the previous convictions of the offender. The court shall then determine, by a preponderance of the evidence, the previous convictions of the offender and, if this section is applicable, shall impose sentence in accordance with this section.

42 Pa.C.S.A. § 9714(a)(1), (d) (emphasis added). The term "crime of violence" includes attempted burglaries of structures adapted for overnight accommodation where, at the time of the offense, any person is present. 42 Pa.C.S.A. § 9714(g).[4]

"[T]he plain language of section 9714(d) indicates that the sentencing court, by reviewing the defendant's criminal record at the time of sentencing, determines whether the defendant is subject to the two strikes provision of subsection (a)(1)…." Commonwealth v. Norris, 819 A.2d 568, 574 (Pa.Super. 2003). Further, "it becomes imperative that the facts relied upon by the sentencing court be accurate…." Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa.Super. 1999), appeal denied, 561 Pa. 672, 749 A.2d 468 (2000) (quoting Commonwealth v. Kerstetter, 580 A.2d 1134, 1135 (Pa.Super. 1990)) (emphasis in original).

However, a proceeding held to determine sentence is not a trial, and the court is not bound by the restrictive rules of evidence properly applicable to trials. Rather, the court may receive any relevant information for the purposes of determining the proper penalty.
Although sentencing proceedings must comport with due process, the convicted defendant need not be accorded the entire panoply of criminal trial procedural rights. In fact, the due process clause should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial procedure.

Medley, supra (internal citations and quotation marks omitted). See also Norris, supra (explaining Section 9714(d) requires court to have written records detailing prior convictions; Commonwealth's oral account of defendant's prior convictions, without written records, was insufficient for purposes of Section 9714(d)); Commonwealth v. Smith, 866 A.2d 1138 (Pa.Super. 2005), appeal denied, 583 Pa. 682, 877 A.2d 462 (2005) (holding certain documents, including Dauphin County court records, FBI rap sheet, and National Crime Information Center rap sheet, supported finding that defendant had prior convictions for violent crimes).

Instantly, the Commonwealth presented multiple documents from Montgomery County to demonstrate Appellant's prior conviction for a crime of violence.[5] Specifically, the Commonwealth introduced the criminal complaint filed on December 28, 2004, charging Appellant with, inter alia, burglary graded as a first degree felony. The Commonwealth provided the affidavit of probable cause, which explained that Appellant had burglarized the victim's apartment while the victim was showering in a nearby "communal bathroom." (See Affidavit of Probable Cause, dated 12/28/04, at 1.) The Commonwealth also submitted multiple forms, captioned "Trial/Plea/Sentence, " indicating Appellant pled guilty to the burglary charge on January 11, 2006, and the court sentenced her to two and one-half (2½) to six (6) years' imprisonment.

Here, the Commonwealth submitted a complete, written record of Appellant's prior conviction, as required under Section 9714(d). Each document demonstrated Appellant's prior conviction for burglary, which was graded as a first degree felony. To the extent the affidavit of probable cause included hearsay, this did not diminish the accuracy of the affidavit, especially when the court reviewed it in conjunction with the other Montgomery County records. See Medley, supra. Thus, the court utilized proper evidence to determine whether Appellant qualified for a Section 9714(a)(1) mandatory sentence. See Smith, supra; Norris, supra.

In her third issue, Appellant contends a prior burglary conviction constitutes a "first strike" offense under Section 9714(a)(1) only if a person was actually present at the time of the offense. Appellant maintains her prior burglary occurred at an apartment where the victim was not present at the time of the offense; rather, the victim was in a communal bathroom, which was a separate, unattached space serving multiple apartments along the same hallway. Appellant emphasizes that the victim remained in the bathroom during the burglary, and the victim did not encounter the burglar at any point. Under these circumstances, Appellant insists the victim was not present at the time of the offense. Appellant concludes the sentencing court should not have imposed a Section 9714(a) mandatory minimum sentence on this basis. We disagree.

"[T]he definition of a crime of violence based upon burglary in section 9714(g) corresponds to the definition of a first degree felony burglary…." Commonwealth v. Guilford, 861 A.2d 365, 375 (Pa.Super. 2004).

"[B]urglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present, " constitutes a crime of violence pursuant to section 9714(g). Similarly, pursuant to [18 Pa.C.S.A. § 3502(c)], if a building or structure entered is "adapted for overnight accommodation, " and if an individual is "present at the time of entry, " the crime of burglary will be graded as a first degree felony.

Id.

"This Court has held the statutory words, 'individual is present at the time of entry' apply when an occupant or owner is actually present at the time of entry or enters the structure while the defendant is still inside the structure." Commonwealth v. Rivera, 983 A.2d 767, 770 (Pa.Super. 2009), appeal denied, 606 Pa. 647, 992 A.2d 888 (2010).

The grading of burglary recognizes the potential for more danger when an innocent person is present during commission. If someone is legitimately in the structure at any time during a burglary, there is the same potential for violence regardless of whether that person was present at the moment of the breaking and entering.

Id. (internal citations omitted).

Instantly, the affidavit of probable cause issued for Appellant's prior burglary conviction described the circumstances of that offense as follows:

On 12-18-04 at approximately 10:26 AM, [the victim] came to the Conshohocken Police station visibly upset reporting a burglary that occurred at his apartment approximately 10 minutes [earlier]. [The victim] stated he walked down the hallway to get a shower (communal bathroom). [The victim] pulled his apartment door shut but unlocked. [The victim] came back about 10 minutes later and noticed his…cell phone missing along with his wallet, a silver chain with a cross and a silver Rolex watch (imitation). There are 4 other apartments on the same floor. While in the hallway [investigating, a police officer] called the victim's cell phone. A loud ringing could be heard coming from apartment #5.

(See Affidavit of Probable Cause, dated 12/28/04, at 1.) The officer knocked on the door to apartment #5 and discovered the occupant, Appellant, and the victim's missing items.

Here, the victim of the 2004 burglary lived in a building that contained multiple, occupied apartment units. Although the victim was not in his unit during the robbery, he did not leave the apartment building. Instead, the victim was in a communal bathroom that was effectively connected to his unit via a common hallway. Likewise, the victim's presence in the nearby bathroom, along with his imminent return to the unit, created the potential for an encounter with Appellant. See Commonwealth v. Jackson, 585 A.2d 533 (Pa.Super. 1991) (holding back porch attached to victim's residence was part of "structure, " where victim sat on back porch while appellant entered through front; although victim was unaware of appellant's presence inside her home, likelihood that victim would hear noise and investigate was quite substantial; likewise, possibility existed that appellant would exit through back and encounter victim). Thus, the evidence supported the court's imposition of a mandatory minimum sentence under Section 9714(a). See 42 Pa.C.S.A. § 9714(g). Accordingly, we affirm.

Judgment of sentence affirmed.

JUDGE OLSON CONCURS IN THE RESULT.

JUDGE WECHT CONCURS IN THE RESULT.


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