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[U] Commonwealth v. Postley

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
WENDELL POSTLEY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of December 11, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0001021-2012

BEFORE: BOWES, J., LAZARUS, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Wendell Postley ("Appellant") appeals from the judgment of sentence entered on December 11, 2012. We affirm.

The trial court set forth the pertinent facts of this case as follows:

[A]t approximately 9:56 p.m. on January 3, 2012, the [c]omplainant, Tamica Brown [("Brown")], saw [Appellant] sitting on her front porch. When Appellant saw [Brown], he acted like he had a gun in his hand, said "Here I go bitch" and came to the front door of the house where [Brown] was standing. [Brown's] entranceway consisted of three doors – [(1)] a front security or storm door that was made of metal and glass; (2) a front entrance door with a peep hole; and (3) a vestibule area with an interior door.
[Brown] went inside the house, closed the door and asked [Appellant] what he wanted. [Appellant] again responded that "I want you bitch". [Appellant] picked up a broken drain pipe and began banging on [Brown's] front window and hitting and kicking the front storm door.
As [Appellant] was kicking and pulling on the outside security door, he was yelling for Brown to "Open up the door", "I'm going to kill you bitch. Come here bitch" and repeatedly used the word bitch. [Appellant] stayed on the front porch of the house and alternated between banging on the front window and then returning to kick, pull, and bang on the front door. [Appellant] kicked out the glass to the outside security door and was hitting the front window so hard that Brown thought [it] was going to bust.
The police arrived approximately ten minutes after the incident started. When the police arrived, [Appellant] started to walk real slow [sic] towards the police car and acted like he was pointing a gun. [Appellant] went over to the police officer and swung at him. Other officers arrived on the scene and [Appellant] was taken into custody.
[Brown] had never seen Appellant prior to this incident and she did not give [him] permission to be on her front porch.
Officer Sczcekowski testified that when he arrived at [Brown's] residence, he observed [Appellant] repeatedly kicking [Brown's] front door and heard him say "Let me in". Officer Sczcekowski announced himself multiple times. When [Appellant] observed the officer, he crouched down and made a gun like gesture with his fingers pointing at the officer. [Appellant] approached the officer, balled up his fist and took a swing at Officer Sczcekowski. The officer struck [Appellant] with his asp three or four times to subdue him and placed him under arrest. [Appellant] told Officer Sczcekowski that he had smoked PCP.
In his defense, [Appellant] testified that he used PCP after work on the night of the incident. He further testified that he did not remember anything that occurred that night other than waking up in the hospital.

Trial Court Opinion ("T.C.O."), 2/22/2013, at 2-3.

Following a bench trial on September 6, 2012, Appellant was found guilty of attempted burglary, criminal trespass, [1] and other related charges. On December 11, 2012, Appellant was sentenced to an aggregate sentence of seven years' probation.

On January 3, 2013, Appellant filed a notice of appeal. On January 11, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. On February 22, 2013, the trial court filed its Rule 1925(a) opinion.

Appellant presents two issues for our consideration:

1. Was not the evidence insufficient to support Appellant's conviction for attempted burglary where the Commonwealth failed to establish that Appellant had the specific intent either to enter the complainant's home or to commit a crime within the home?
2. Was not the evidence insufficient to support Appellant's conviction for the crime of criminal trespass because the evidence did not establish that Appellant broke into the complainant's home?

Brief for Appellant at 4.[2]

Both of Appellant's issues challenge the sufficiency of the evidence. Our standard of review is well-settled:

We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in [the] light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find [that] every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and 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.

Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa.Super. 2010) (quoting Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa.Super. 2010)); see Commonwealth v. Auker, 681 A.2d 1305, 1314 (Pa. 1996).

Under the provision of the Crimes Code applicable at the time of Appellant's offense, a person was guilty of burglary "if he enter[ed] a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises [were] at the time open to the public or the actor [was] licensed or privileged to enter." 18 Pa.C.S. § 3502(a).[3] Thus, the Commonwealth was required to prove that Appellant attempted entry with the intent to commit a crime, and "proof of two distinct attempts on the part of [the] appellant was necessary: the intent to enter the house, and the intent to [harm or kill the victim] after entry." Commonwealth v. Morgan, 401 A.2d 1182, 1186 (Pa.Super. 1979).

"A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S. § 901(a). Often, intent must be inferred from examination of the facts and circumstances of the case. Morgan, 401 A.2d at 1187 (Pa.Super. 1979).

According to Appellant, the Commonwealth failed to present evidence sufficient to establish beyond a reasonable doubt that he intended to enter Brown's residence. Brief for Appellant at 12-13. Appellant argues that the testimony regarding his "crazy PCP-induced madness" is insufficient to indicate the specific intent to enter the home by force. Id. at 12. Appellant also contends that the evidence was insufficient to demonstrate that he possessed any contemporaneous intent to commit a crime upon entry. Id. at 13-14.

At trial, Brown testified that Appellant forcefully and repeatedly pounded on her front window with a broken drain pipe. Notes of Testimony ("N.T."), 9/6/2012, at 13. Although the two main entry doors to the home remained undamaged, Appellant successfully knocked out the glass portion of Brown's outer security door. N.T. at 17. Appellant then continued to pull on the front door handle while demanding to be let inside. N.T. at 21. Brown further testified that Appellant said "I'm going to kill you bitch, " and made hand gestures suggesting that he had a firearm. N.T. at 11-12, 21, 25. This behavior continued for approximately ten minutes until the police arrived. N.T. at 22.

Based upon this evidence, the trial court concluded that Appellant intended to enter Brown's home with the intent to harm or kill her, and that his actions constituted a substantial step toward the commission of burglary. T.C.O. at 6. In Commonwealth v. Galindes, 786 A.2d 1004 (Pa.Super. 2001), under similar circumstances, this Court found sufficient evidence to support an attempted burglary conviction. In Galindes, the defendant came to the victims' home and knocked on the front door three times. When no one answered, he went around the house with his companion and began to bang and kick on the back door. A woman inside made her presence known, and defendant and the other man briefly stopped attempting to force the door. Shortly thereafter they resumed banging and kicking, and continued until a man inside the house made his presence known, whereupon the defendants attempted to flee. The home's back door and a frame were destroyed. Id. at 1009-10. We held as follows:

[The defendant's] attempt to gain entry by kicking the back door constituted a substantial step toward committing burglary. Moreover, the circumstances surrounding the incident, the late hour, the knock at the front door, the kicking of the back door, the fleeing when confronted . . ., all allowed the trial court to reasonably infer [the defendant] possessed the intent to commit a crime.

Id. at 1010.

Viewed in the light most favorable to the Commonwealth, Appellant's attempts to break both the door and the window, his employment of a drain pipe in so doing, his threats of violence against Brown, and the duration and persistence of this behavior, as well as the damage to the exterior storm door, all sufficed to establish that Appellant took a substantial step toward entering Brown's home with the intent to commit a crime therein. Accordingly, we find that the evidence adduced at trial was sufficient to support Appellant's conviction of attempted burglary.

Appellant next argues that the evidence was insufficient to support his conviction for criminal trespass. A person is guilty of criminal trespass if, "knowing that he is not licensed or privileged to do so, he . . . breaks into any building or occupied structure or separately secured or occupied portion thereof." 18 Pa.C.S. § 3503(a)(1)(ii). "Breaks into" is defined as "gain[ing] entry by force, breaking, intimidation, unauthorized opening of locks, or through an opening not designed for human access." 18 Pa.C.S. § 3503(a)(3).

Appellant claims that the Commonwealth failed to demonstrate that he physically entered Brown's home. Brief for Appellant at 15. Appellant also disputes the trial court's finding that an elevated porch connected to a residential dwelling may constitute a separately secured portion of a building or structure for purposes of the criminal trespass statute. But Appellant does so only by reference to case law in which an enclosed yard, rather than a structure appurtenant to a home, was determined not to constitute a separately secured building or structure. Brief for Appellant at 16 (citing Commonwealth v. Cannon, 443 A.2d 322, 323 (Pa.Super. 1982) (fenced residential back yard not "a building or occupied structure" for purposes of trespass)) cf. id. (citing Commonwealth v. Hagan, 654 A.2d 541, 545 (Pa. 1995) (fenced and secured business storage lot an "occupied structure" for purposes of burglary and criminal trespass)).

At trial, Brown testified that Appellant did not have permission to be on her property, and that she demanded multiple times that he leave. N.T. at 21-23. Brown also testified that Appellant kicked out a glass panel on her outermost storm door while simultaneously demanding that she "open up the door." N.T. at 17, 20. The trial court also viewed photographs depicting the damage to Brown's storm door, and heard testimony from the arresting officer. Officer Sczcekowski testified that he observed Appellant repeatedly kicking Brown's front door, and heard him yell "Let me in." N.T. at 41.

"The purpose of the criminal trespass statute is to prevent unlawful intrusion onto real property." Commonwealth v. White, 492 A.2d 32, 36 (Pa.Super. 1985). It is immaterial whether entry into the building or occupied structure was by Appellant's hand, arm, finger, fingernail, or by any instrument he controlled. See Commonwealth. v. Giddings, 686 A.2d 6, 9-10 (Pa.Super. 1996) (reviewing cases); overruled on other grounds, Commonwealth v. Clark, 746 A.2d 1128 (Pa.Super. 2000).

Viewed in the light most favorable to the Commonwealth, the trial court reasonably could infer from the evidence that Appellant made the requisite, if minimal, intrusion into Brown's home when Appellant knocked out the window to the screen door, whether with his hand, foot, or the drain pipe he used to bang on the window. Given this evidence, we cannot conclude that "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 Mobley, supra. The evidence presented at trial was sufficient to support the trial court's conclusion beyond a reasonable doubt that Appellant gained entry "force" or "breaking" into Brown's residence.[4]

Viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, we conclude that the evidence presented at trial was sufficient to find Appellant guilty of attempted burglary and criminal trespass.

Judgment of sentence affirmed.

Judgment Entered.


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