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Commonwealth v. Furness

Superior Court of Pennsylvania

December 22, 2016

COMMONWEALTH OF PENNSYLVANIA
v.
PAUL FURNESS, Appellant

         Appeal from the Judgment of Sentence August 5, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0009880-2012

          BEFORE: BOWES, MOULTON and MUSMANNO, JJ.

          OPINION

          MUSMANNO, J.

         Paul Furness ("Furness") appeals from the judgment of sentence imposed following his convictions for criminal trespass, attempted burglary, and possessing instruments of crime.[1] We affirm in part, reverse in part, and remand for resentencing.

         The trial court set forth the relevant facts as follows:

On July 20, 2012, at approximately 10:00 a.m., Christopher Babiarz [("Babiarz")] saw [Furness] attempt to enter his home, located at 3170 Richmond Street, [Philadelphia, ] through the window. On that morning, [Babiarz] heard "some rustling and banging at the back door" and observed a silhouette walk past the window with "something like a screwdriver in his hands, " attempting to pry open the windows. [Babiarz] opened up the blinds and positively saw [Furness]. [Furness] looked at [Babiarz] and proceeded to run away. [Babiarz] opened the door[] and saw a second person, whom he could not identify, run through the back gate of his yard. He described the second person as "about his height … with dirty blond or brown hair, wearing a green shirt, " as "5'10["], 150 pounds, approximately [age] 25 to 30 … wearing jeans." Babiarz testified that he knew [Furness] from the neighborhood, even though they were not part of the same circle due to age differences.
[Babiarz] called the police and Officer [Edward] Berrthcsi [("Officer Berrthcsi")] arrived. They observed tool marks on the window, with the bottom pane indented and the capping bent. [Babiarz] testified that there were no damages prior to this incident. In addition, [Babiarz] recovered a bag of tools outside of the back door that did not belong to him, which included a screwdriver, multi-tool, paint chisel, and a vise-grip. Officer Berrthcsi testified that on that day, he received a radio call for a burglary at 3170 Richmond Street. [Babiarz] gave him a description of both males and positively recognized one of the males as [Furness]. Officer Berrthcsi observed pry marks on [Babiarz's] rear door and on the side window at the rear property. He also saw tools on the porch that included a screwdriver, vise-grip, and other tools.
The Commonwealth next called Detective [John] Ellis [("Detective Ellis")], Detective [James] McCullough [("Detective McCullough")], and Detective Randall Farward [("Detective Farward")] to testify. Detective Ellis testified that he and Detective McCullough went out to 3170 Richmond Street on that day and met with [Babiarz]. He recovered one green nylon bag containing silver colored vise-grips, a Stanley screwdriver with [a] red and yellow plastic grip, a Hyde scraper with a black handle, and a Great Neck ratchet driver with [a] red and black handle, which were all placed on property receipts. Detective McCullough testified that he arrived with Detective Ellis on that day, took photos of the scene, and recovered tools that [Babiarz] turned over. Detective Farward testified that [Babiarz] told him he knew who attempted to burglarize his home and positively identified [Furness] by photo.
The defense [] called Carolyn Furness [("Carolyn")], Cheryl Neumann [("Cheryl")], and Carol Furness [("Carol")] as their alibi witnesses. [Carolyn, Furness's] sister, testified that on that day, [Furness], her friend Cheryl, and herself began setting up for their mother's retirement party at approximately 8:30 a.m. [Cheryl] testified that she went over to [Furness's] house at approximately 9:00 a.m. to help [Furness] and [Carolyn] prepare for the retirement party. [Cheryl] also testified that [Furness] was there the entire time. Lastly, [Carol, Furness's] mother, testified that she retired on that day, as a court order process clerk for the City of Philadelphia[, ] after 26 years of employment. She came home around 11:00 a.m. and saw [Furness] present at the party.

Trial Court Opinion, 1/11/16, at 2-4 (citations and brackets omitted).

         Following a jury trial, Furness was convicted of the above-mentioned crimes. The trial court deferred sentencing and ordered a pre-sentence investigation report ("PSI"). On July 6, 2015, after reviewing the PSI, the trial court sentenced Furness to a prison term of 12½ to 25 years for attempted burglary and a concurrent term of 5 to 10 years for criminal trespass, followed by 5 years of probation for possessing instruments of crime.

         Furness filed a post-sentence Motion, which the trial court granted in part and denied in part. The trial court re-sentenced Furness to 10 to 20 years in prison for his attempted burglary conviction, a consecutive 2½ to 5 years in prison for his criminal trespass conviction, and a consecutive 5 years of probation for his possessing instruments of crime conviction. Furness subsequently filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal.

         On appeal, Furness raises the following questions for our review:

I. Was the evidence presented at trial sufficient as a matter of law to support the conviction for criminal trespass as set forth in 18 Pa.C.S.A. § 3503(a)(1), where the evidence of record did not establish beyond a reasonable doubt that [Furness] broke into any building or structure[, ] as the only evidence at trial indicated that the gate to the yard [Furness] was alleged to have entered was possibly left unlocked by a tenant at the property, and the only evidence at trial indicated that [Furness] fled before entering any building or structure, and the yard [Furness] was alleged to have entered is not a building or structure or separately secured or occupied portion thereof as set forth in [Section] 3503?
II. Is the sentence imposed in this matter illegal due to the fact that the sentences for burglary and criminal trespass are required to merge for sentencing purposes?
III. With respect to the charges of attempted burglary, criminal trespass, and possessing an instrument of crime, was the verdict [] against the weight of the evidence and so contrary to the evidence that it shocks one's sense of justice in light of the circumstances as set forth in the evidence presented at trial?
IV. Should the mandatory minimum sentence imposed by the trial court under 42 Pa.C.S.A. § 9714 be vacated, and this matter remanded for a new sentencing hearing, due to the fact that the jury did not expressly find beyond a reasonable doubt all facts necessary to require imposition of a mandatory minimum sentence under that statute?
V. Should the mandatory minimum sentence imposed by the trial court under 42 Pa.C.S.A. ยง 9714 be vacated, and this matter remanded for a new sentencing hearing, due to the fact that ...

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