February 11, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
ADAM GUY STAMM, Appellant
Appeal from the Judgment of Sentence Entered April 25, 2012 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0003647-2011
BEFORE: BENDER, P.J., OTT, J., and STRASSBURGER, J. [*]
Adam Guy Stamm (Appellant) appeals pro se from the judgment of sentence of five to ten years' incarceration, imposed after he was convicted of burglary, criminal trespass, and criminal mischief. We affirm.
Appellant's convictions stem from his breaking into the screened-in porch of a home in Allentown, Pennsylvania. The owner of that residence, Diane Salinski, witnessed Appellant inside her porch and identified him as the intruder from a photographic array. Appellant was arrested and charged with the above-stated crimes. Appellant was tried before a jury on March 19 and 20, 2012. At the close of trial, the jury convicted him of burglary and criminal trespass. The trial court also found Appellant guilty of the summary offense of criminal mischief. On April 25, 2012, the trial court sentenced Appellant to five to ten years' imprisonment for his burglary conviction. His conviction of criminal trespass merged with his burglary offense for sentencing purposes. For Appellant's crime of criminal mischief, the court imposed a sentence of restitution in the amount of $50.00.
Appellant timely filed a post-sentence motion, which the trial court denied. He then timely filed a notice of appeal,  as well as a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, Appellant raises eight issues for our review:
1.) Did the Trial Court err by denying  Appellant's ProSe request for a continuance after Appellant stated on the record a clear basis for the continuance?
2.) Did the Trial Court err by denying the Defense motion in limine and allowing testimony of Appellant's flight and apprehension by failing to weigh the probative value against unfair prejudice in relation to Pa.R.E. 401, 402, 403 and 404?
3.) Did the Trial Court err by granting the Commonwealth's motion in limine excluding the testimony of a defense witness who would have established an alternative theory to that of the Commonwealth, specifically that there was another white male on a bicycle with a description similar to  Appellant who was attempting thefts from homes in that same neighborhood that same morning?
4.) Did Trial Counsel render ineffective assistance of counsel to such an extent that it so undermined the truth determining process that no reliable adjudication of guilt could have taken place?
5.) Was the verdict supported by sufficient evidence?
6.) Was the verdict against the weight of the evidence?
7.) Did the Trial Court err by denying the defense oral motion for judgment of acquittal at the close of the Commonwealth's case?
8) Did the Trial Court err by denying [Appellant's] Post Sentence Motions?
Appellant's Brief at 3-4.
In Appellant's first issue, he contends that the court erred by denying his pro se motion for a continuance, made on the day his jury trial was scheduled to begin. When Appellant orally moved for a continuance, he provided the following reasons:
[Appellant]: You Honor, I just -- I don't feel comfortable going to trial today. I feel -- I just got the pre-trial motions, the motion in limine, the photographs. This is the first time I've ever seen them. There was an Amended Complaint I didn't know anything about. … There's like a few key aspects of the case that me and my attorney just aren't seeing eye to eye on and I don't know how I could go to trial today. I mean, I was expecting the pre-trial motions. I just wasn't expecting trial.
[The Court]: Well, why weren't you expecting trial? I scheduled it for trial in January.
[Appellant]: Yes, Your Honor. And about -- last week was the first time I seen [sic] my attorney since that date. And I had requested pre-trial motions to be filed.
[The Court]: She did file them.
[Appellant]: Correct. And there was other ones that I wanted filed and they got filed and I never saw them until today and --or the photos, or just right now sitting in the courtroom was the first time I saw any of those things.
[The Court]: All right. Well, she is the lawyer. So she's going to file the motions that are appropriate in your case. That's her job. It's, you know, you don't necessarily get to review that work, so to speak. I understand there are things that you wanted but she's an excellent lawyer and will represent you. And unless she tells me she's not ready to go, that's -- that would be something I would listen to. Whether or not you're ready -- if she's ready, we're going.
[Appellant]: I don't feel comfortable by any means having her represent me in a case that we don't see eye to eye on certain key aspects of the case. I mean, … without getting into like, you know, specifics it's hard for me to explain. I can't agree to go to trial with [my counsel] today.
[The Court]: Well, it's not really for you to agree. You told me you wanted a trial. I scheduled it. There's jurors waiting. And we're going to address the pre-trial motions and then we're beginning this trial.
N.T., 3/19/12, at 4-6.
Appellant contends that the reasons he provided for requesting a continuance warranted the court's granting of that motion. We disagree.
[T]he grant or denial of a motion for a continuance is within the sound discretion of the trial court and will be reversed only upon a showing of an abuse of discretion. An abuse of discretion is not merely an error of judgment; rather, discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record.
Commonwealth v. Ross, 57 A.3d 85, 91 (Pa.Super. 2012) (citations and quotation marks omitted).
Instantly, Appellant's counsel was prepared to proceed to trial on the date it was scheduled to begin. Appellant's statement that he did not have an opportunity to examine several documents was not a compelling reason to justify a continuance. Likewise, Appellant's general claim (which he reiterates on appeal) that he and his counsel did not agree about "certain aspects" of his case was not specific enough to convince the trial court that Appellant was entitled to more time, and it is equally unconvincing on appeal. See Commonwealth v. Lam, 684 A.2d 153, 160 (Pa.Super. 1996) ("It is well-established that trial counsel possesses broad discretion in matters of trial strategy and the determination of defense tactics employed during litigation."). Accordingly, we ascertain no abuse of discretion in the trial court's denial of Appellant's motion for a continuance.
Appellant's next two issues are related and, therefore, we will address them together. Appellant challenges the trial court's admission and exclusion of certain evidence, explained infra. "Questions regarding the admissibility of evidence rest within the trial judge's discretion, and an appellate court will reverse the judge's decision only for an abuse of discretion." Commonwealth v. Vandivner, 962 A.2d 1170, 1179 (Pa. 2009) (citations omitted).
By way of background, on the same morning that Appellant broke into Mrs. Salinski's screened-in porch, a man residing nearby, Ludwig Schlecht, reported to police that copper downspouts had been stolen from his home by a person matching Appellant's description. When police responded to the calls from Mrs. Salinski and Mr. Schlecht, they observed Appellant in the general area of both homes. Appellant fled from police, but was ultimately apprehended. He was charged in case number CP-39-CR-000295-2011 (case 0295-2011) with various crimes involving the theft at Mr. Schlecht's residence and his flight from police. Two days later, he was arrested and charged with the crimes regarding the break-in at Mrs. Salinski's home.
At Appellant's preliminary hearing, the charges stemming from the break-in at Mrs. Salinski's home were severed from the charges in case 0295-2011. Ultimately, the charges in case 0295-2011 relating to Mr. Schlecht were withdrawn based on Mr. Schlecht's informing the Commonwealth that Appellant was not the person who committed the theft at his residence. However, several charges stemming from Appellant's flight from police, i.e., criminal mischief and defiant trespass, were bound over for trial, and Appellant was subsequently convicted of those offenses.
Prior to Appellant's trial in the instant case, he filed a motion in limine seeking to exclude the "prior bad acts" evidence of his flight from police and apprehension. Appellant requested that the trial court "enter an Order that no reference be made or testimony be given of any … investigations, charges, apprehension or prior bad acts in any police reports" stemming from the alleged theft at Mr. Schlecht's home. Appellant's Motion in Limine, 3/15/2012, at 4 (unnumbered pages). Appellant contended that this evidence was irrelevant and unduly prejudicial.
At the same time, the Commonwealth filed a motion in limine seeking to preclude Appellant from presenting the testimony of Mr. Schlecht regarding his non-identification of Appellant. The Commonwealth contended "that the fact that Mr. Schlecht could not identify [Appellant] as his copper thief has no bearing whatsoever on whether or not [Appellant] broke into Mrs. Salinski's porch." Commonwealth's Motion in Limine, 3/16/2012, at 2.
Ultimately, the trial court permitted the Commonwealth to introduce evidence of Appellant's flight from police and apprehension. However, the court prohibited any evidence relating to the theft at Mr. Schlecht's residence, including Mr. Schlecht's testimony. Appellant now argues that these rulings were erroneous. He maintains that the evidence that he fled from police should have been excluded, but that the court should have permitted him to call Mr. Schlecht to testify that he could not identify Appellant as the perpetrator in case 0295-2011.
Instead, we conclude that the court's evidentiary rulings were consistent and reasonable. The trial court determined that evidence of Appellant's flight from police and the circumstances of his apprehension "were relevant and admissible." Trial Court Opinion, 5/15/2012, at 10. We agree. Mrs. Salinski called police after witnessing Appellant break into her porch. Police responded to that call, as well as to Mr. Schlecht's reported theft, and encountered Appellant. Appellant fled from police but was ultimately apprehended. Based on these facts, the court did not err in permitting the Commonwealth to present evidence of Appellant's flight and apprehension to prove his consciousness of guilt regarding the break-in at Mrs. Salinski's residence. See Commonwealth v. Johnson, 838 A.2d 663, 681 (Pa. 2003) ("[W]here evidence exists that a defendant committed a crime, knew he was wanted, and fled or concealed himself, such evidence is admissible to establish consciousness of guilt.").
Moreover, the trial court appropriately ruled that the details of the alleged theft at Mr. Schlecht's home, including Mr. Schlecht's testimony that Appellant was not the perpetrator, were irrelevant. See N.T., 3/19/2012, at 13, 17-18 ("I don't see any relevance in the other investigations. So, obviously, those are not going to be admitted."). Appellant argues in his brief that Mr. Schlecht's testimony was relevant to establish that "there was a white male on that same day, that same street, riding a mountain style bicycle who was targeting and committing thefts from homes that was definitely not the Appellant, [and he] had a description [so] similar to the Appellant that the Police actually wrongfully arrested the Appellant." Appellant's Brief at 13-14. However, this argument was not presented to the trial court until Appellant filed post-sentence motions,  and he may not now rely upon it on appeal. See Commonwealth v. Metts, 669 A.2d 346, 357 (Pa.Super. 1995), reversed on other grounds, Commonwealth v. Ardestani, 736 A.2d 552 (Pa. 1999) ("The party specifying the purpose for which the testimony is admissible cannot argue on appeal that the evidence was admissible for a purpose other than that offered at trial. [Metts] has waived any grounds, other than those raised at trial, for the admission of Phillips' testimony.") (citations and quotation marks omitted); Commonwealth v. Newman, 555 A.2d 151, 156 (Pa.Super. 1989) ("Appellant is deemed to have waived any grounds, other than those offered at trial, for the admission of the evidence[.]") (citations omitted). We therefore conclude that the trial court did not abuse its discretion by refusing to admit the testimony of Mr. Schlecht.
In Appellant's next issue, he claims that his trial counsel rendered ineffective assistance of counsel (IAC) in various regards. We are precluded from reviewing these assertions under the general rule espoused by our Supreme Court in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). There, the Court held that, "as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review." Id. at 738. In a subsequent en banc decision by this Court, we held that "this Court cannot engage in review of ineffective assistance of counsel claims on direct appeal absent an 'express, knowing and voluntary waiver of [Post Conviction Relief Act (PCRA)] review.'" Commonwealth v. Barnett, 25 A.3d 371, 377 (Pa.Super. 2011) (quoting Commonwealth v. Liston, 977 A.2d 1089, 1096 (Pa. 2009) (Castille, C.J., concurring)). No waiver of Appellant's right to PCRA review exists in this case. Accordingly, Grant and Barnett preclude our review of his IAC claims on direct appeal.
Appellant addresses his remaining four issues together on the basis that "these last four questions … are general claims that the Commonwealth did not establish the requisite mens rea associated with the crime of burglary." Appellant's Brief at 22. While Appellant purports to challenge both the weight and sufficiency of the evidence supporting his convictions, his actual argument appears to be limited to sufficiency. Accordingly, we conclude that Appellant has failed to develop his weight claim,  and we apply the following standard of review:
In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. The evidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa.Super. 2011) (citations omitted).
This Court has set forth the definition of burglary as follows. "Burglary is defined in 18 Pa.C.S.A. § 3502. A person is guilty of burglary if he or she enters a building or occupied structure with the intent to commit a crime therein, unless he or she is licensed or privileged to enter. 18 Pa.C.S.A. § 3502(a)." Commonwealth v. Lambert, 795 A.2d 1010, 1015 (Pa.Super. 2002). In Lambert, we explained the mens rea element of the crime of burglary, stating as follows.
The intent to commit a crime after entry may be inferred from the circumstances surrounding the incident. While this intent may be inferred from actions as well as words, the actions must bear a reasonable relation to the commission of a crime. Once one has entered a private residence by criminal means, we can infer that the person intended a criminal purpose based upon the totality of the circumstances. The Commonwealth is not required to allege or prove what particular crime a defendant intended to commit after his forcible entry into the private residence.
Id. at 1022 (citations omitted).
Here, the evidence presented at Appellant's trial, when viewed in the light most favorable to the Commonwealth, established that Appellant rode his bicycle to the rear of Mrs. Salinski's home and removed a screen from her kitchen window. N.T., 3/19/2011, at 50-51, 56-57, 63-65. He then traveled to the side of her home and broke into her locked, screened-in porch. Id. at 51-53, 55. While the exact timeline of this break-in is unclear from the record, the evidence shows that Appellant unlocked Mrs. Salinski's porch door, ripped part of the screen surrounding the porch, and moved a piece of furniture inside. Id. at 53, 55, 60, 76. After a period of time, Appellant left Mrs. Salinski's porch and traveled across the street and up a neighbor's driveway. Id. at 53-54. Eventually, a police officer observed Appellant riding his bicycle a short distance away. Id. at 90-91. The officer exited his vehicle in an attempt to speak with Appellant. Id. at 91-92, 103-04. Before the officer could say a word, Appellant fled, smashed through a gate, and hid in some bushes until he was tracked down and apprehended. Id. at 93, 113, 126-27, 134-35; N.T., 3/20/2012, at 24.
Appellant now contends that this evidence was not sufficient to prove that he entered Mrs. Salinski's porch with the intent to commit a crime therein. Instead, Appellant maintains that the Commonwealth's evidence only demonstrated that he broke into Mrs. Salinski's porch, which alone is not enough to prove the intent element of burglary. In support of this argument, Appellant relies on our Supreme Court's decision in Commonwealth v. Wilamowski, 633 A.2d 141 (Pa. 1993). In that case, Wilamowski kicked in a person's garage door and fled from the scene. Id. at 142. Our Supreme Court concluded that the evidence was insufficient to convict Wilamowski of attempted burglary. Id. at 144. The Court reasoned as follows.
Although the Commonwealth's facts prove that [Wilamowski] kicked at the door and tore it off of its hinges, there was no additional evidence to establish that he possessed an intent to commit a crime inside. He broke the door and apparently walked away from it without any showing that he entered the structure or attempted to enter. His path into the structure was now unobstructed, but he chose to walk away and go to the neighbor's house to ask for directions. Evidence of [Wilamowski's] subsequent actions in flight is also insufficient, standing alone, to lend any support to a permissible inference of intent to commit a crime inside since the flight is consistent with his efforts to avoid apprehension for his conduct of breaking down the door.
Id. at 144 (emphasis added).
It is clear that the critical factor in our Supreme Court's decision was that Wilamowski did not enter, or attempt to enter, the victim's home after he kicked in the garage door. The facts of the present case provide a sharp contrast, as Appellant actually entered a portion of Mrs. Salinski's residence. The importance of this distinction was emphasized by our Supreme Court, only a year after Wilamowski was decided, in Commonwealth v. Alston, 651 A.2d 1092 (Pa. 1994). The facts of Alston are as follows.
On July 29, 1990, Mr. Leslie Frank was roused from his sleep by unusual noises including the burglar alarm of his residence. While investigating the occurrence, Mr. Frank saw [Alston] ascending the stairs from the basement. Upon seeing Mr. Frank, [Alston] immediately fled from the premises, and Mr. Frank called the police. Based upon Mr. Frank's description, [Alston] was located by the police in close proximity to the residence, detained, and identified by Mr. Frank minutes later. Upon further investigation it was discovered that the locked basement door of Mr. Frank's residence had been damaged as a result of forcible entry. [Alston] was subsequently convicted of burglary following a bench trial.
Id. at 1093.
In Alston, the Court addressed "whether the Commonwealth provided [Alston] with sufficient notice of all of the elements of the crime of burglary charged, where the Commonwealth's Information failed to specify what particular crime [Alston] allegedly intended to commit after his forcible entry into the private residence of another." Id. (italics in original). The Court concluded that "in order to secure a conviction for burglary, the Commonwealth is not required to allege or prove what particular crime [Alston] intended to commit after his forcible entry into the private residence." Id. at 1095. More critically, the Court made the following observations about its holding in Wilamowski.
In Wilamowski, … we discussed circumstantial proof of the intent element in situations involving attempted burglary. There, we found unacceptable a per se assumption that evidence of a forced opening into an occupied structure automatically gives rise to an inference of intent to commit a crime inside. We held that a "totality of the circumstances" approach is more appropriate when evaluating the Commonwealth's evidence supporting the intent element. We then held that more than merely breaking a door or window is required to support an inference of intent to commit a crime inside.2
2 The problem in Wilamowski with regard to circumstantial proof of the intent element is not present in the matter sub judice because the Commonwealth introduced evidence of not only an unauthorized forced opening, but of actual entry and subsequent flight upon discovery as well. Thus, the totality of the circumstances of the incident justifies the inference that at the time Appellant entered the private residence he possessed an intent to commit a crime therein.
Id. at 1094 (italics in original, bolding added).
Thus, our Supreme Court indicated that an unauthorized forced opening, followed by actual entry and flight upon discovery, is sufficient to demonstrate the intent necessary to support a conviction of burglary. The Court in Alston explained that "[o]nce [Alston] has entered the private residence by criminal means we can infer that [he] intended a criminal purpose based upon the totality of the circumstances, " id. at 1095, and quoted favorably the following language from the Opinion in Support of Affirmance in Commonwealth v. Wagner, 566 A.2d 1194, 1194 (Pa. 1989) (plurality).
When a stranger first tries to enter your garage, and then breaks the window of your door, on a given evening, neither you nor a jury should be considered harsh, if you believe he is not an aimless waif bringing compliments of the evening, or a passing sojourner of eccentric ways, or a harmless loiterer in the evening shadows.
Those supporting reversal would have us believe that hiding in your bedroom under such conditions is an unnecessary foolishness in the presence of simple pleasantries. They would see no evil through such jaundiced eyes, [and] hear none in the melodious tinkle of your breaking window…. The jury could find, and did, more sinister reasons afoot. I would leave the appellant where they found him, doing what they had every right to believe he was doing, attempting a burglary.
Alston, 651 A.2d at 1095 (quoting Wagner, 566 A.2d at 1194).
Similarly, the jury in this case was free to infer that Appellant had a criminal purpose based on his forced entry into Mrs. Salinski's screened-in porch. This inference is supported by the other circumstances surrounding Appellant's apprehension, including his removal of a screen from the victim's kitchen window and his unprovoked flight from police. We therefore conclude that sufficient evidence was presented to support Appellant's conviction for burglary.
Appellant additionally challenges his conviction of criminal mischief, arguing that there was "absolutely no direct evidence to establish  Appellant is in fact the person who damaged the screen porch." Appellant's Brief at 25. He asserts that Mrs. Salinski's identification was incredible and, in any event, it only established his "mere presence" at the scene. Id. Appellant further contends that because Mrs. Salinski was on vacation and her home was vacant for the week prior to this incident, "it is unclear when the actual damage occurred." Id.
"A person is guilty of criminal mischief if he … intentionally damages real or personal property of another." 18 Pa.C.S. § 3304(a)(5). Here, Mrs. Salinski testified that she witnessed Appellant on her property and inside her screened-in porch, which was locked on the morning of the incident. N.T., 3/19/2012, at 51-53. She later discovered that the door was unlocked, a screen on the porch was ripped, and a screen was removed from her kitchen window. Id. at 55-56. Mrs. Salinski stated that the screen on the kitchen window was in place before Appellant was present on her property. Id. At 56. However, on cross-examination, Mrs. Salinski admitted that she did not check for damage to her property or notice if the screen to her kitchen window was in place after returning from vacation and before seeing Appellant on her property. Id. at 73. Nevertheless, Appellant's unpermitted presence on Mrs. Salinkski's property and porch, followed shortly thereafter by Mrs. Salinski's observations of damage to her porch screen, was sufficient circumstantial evidence for the court to conclude that Appellant committed that damage. This is especially true in light of Appellant's subsequent flight from police, which indicated his consciousness of guilt. Accordingly, the evidence was also sufficient to sustain his criminal mischief conviction.
Because we conclude that Appellant has failed to demonstrate that he is entitled to relief, we affirm his judgment of sentence.
Judgment of sentence affirmed.
CONCURRING AND DISSENTING MEMORANDUM
While I agree with the Majority regarding its disposition of Appellant's first four issues, and its conclusion that the evidence was sufficient to sustain his conviction of criminal mischief, I respectfully dissent from the Majority's determination that the evidence was sufficient to support Appellant's conviction of burglary.
I acknowledge that, unlike the facts of Commonwealth v. Wilamowski, 633 A.2d 141 (Pa. 1993), Appellant actually entered Mrs. Salinksy's screened-in porch after breaking the lock on the door. However, he did not take anything from the porch or commit any crime therein. Moreover, there was no indication, such as fingerprint evidence, that Appellant attempted to enter Mrs. Salinsky's house by opening the kitchen window, or entering the door leading from Mrs. Salinsky's porch into her home. Appellant also left Mrs. Salinsky's porch of his own accord without taking any of her property.
It is also notable that this incident occurred in broad daylight at 8 a.m. on a Monday morning. Appellant was not dressed in such a way as to conceal his identity. When police subsequently apprehended him, he did not possess any weapons, tools, or other objects that would assist him in committing a crime inside Mrs. Salinsky's home. Finally, Appellant did not 'flee' from Mrs. Salinsky's property; instead, police encountered Appellant "traveling at a slow pace" on his bicycle a short distance away from Mrs. Salinsky's home. Trial Court Opinion (TCO), 6/25/12, at 5. It was not until an officer stopped "and exited his vehicle in an attempt to communicate" with Appellant that Appellant began to flee. Id. While Appellant's flight demonstrates his consciousness of guilt for the criminal mischief he had just committed at Mrs. Salinsky's residence, it does not establish that he intended to commit a crime inside her home.
Based on the totality of these circumstances, I would conclude that the Commonwealth failed to sustain its burden of proving, beyond a reasonable doubt, that Appellant entered Mrs. Salinsky's porch with the intent to commit a crime inside. Accordingly, I would reverse Appellant's burglary conviction.