J-S49020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    MICHAEL CHRISTIAN

                             Appellant                  No. 2 EDA 2019


       Appeal from the Judgment of Sentence Entered November 20, 2018
                In the Court of Common Pleas of Delaware County
                  Criminal Division at No.: CP-XX-XXXXXXX-2017


BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                       FILED NOVEMBER 14, 2019

        Appellant Michael Christian appeals from the November 20, 2018

judgment of sentence entered in the Court of Common Pleas of Delaware

County (“trial court”), following his jury convictions for burglary and criminal

trespass.1 Upon review, we affirm.

        The facts and procedural history this case are undisputed.           On

September 27, 2017, Springfield Township Police Department charged

Appellant with, inter alia, the above-mentioned crimes.2       The affidavit of

probable cause accompanying the complaint provided in relevant part:


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*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S.A. §§ 3502(a)(1)(i), and 3503(a)(1)(i).
2Appellant also was charged with disorderly conduct under Section 5503(a)(4)
of the Crimes Code, 18 Pa.C.S.A. § 5503(a)(4). That charge, however, was
withdrawn.
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      On Wednesday, September 27, 2017, at 7:06 p.m., the
      Springfield Township Police Department received a report of a
      burglary interrupted at 233 Swarthmore Ave., Springfield
      Township. Officers Rick Christy and Scott Francis responded and
      spoke to Marie and Joseph Gousie, parents of the homeowners
      who were babysitting for their five and two year old grandchildren.
      Mrs. Gousie stated that she was upstairs in a bedroom when she
      noticed a man walk into her grandson’s bedroom. When she
      confronted the male, he turned around and headed down the
      staircase. She then yelled to her husband and he confronted the
      male at the bottom of the stairs. When Mr. Gousie asked the
      subject what he wanted, the response was “a glass of water.” The
      male was told to leave and he replied, “Yes sir.” The subject left
      through the open garage and fled the area on his bicycle. . . . A
      subject, later identified as [Appellant], was stopped by officers at
      Swarthmore and Yale Avenues, and positively identified by Mr.
      Gousie.

Affidavit of Probable Cause, 9/8/17 (sic). Appellant was held for court on all

charges.   The case ultimately proceeded to a jury trial, at which the

Commonwealth offered the testimony of Mr. Gousie, Fernando Gonzalez and

Sergeant Patrick Fisher, Nether Providence Police Department. The trial court

summarized the witness testimonies as follows, beginning with Mr. Gousie’s:

      On September 27, 2017, Mr. Gousie and his wife, Marie, were
      babysitting their grandchildren at 233 South Swarthmore Avenue
      in Springfield, Pennsylvania.

      Mr. Gousie was watching television in the living room with the
      children, ages five and two, when he heard his wife yell to
      someone upstairs, “What are you doing here?” When he entered
      the hall to investigate, Mr. Gousie saw Appellant coming down
      from upstairs. Mr. Gousie asked Appellant what he was doing
      there. To which, Appellant responded that he wanted a drink of
      water. Mr. Gousie told Appellant to leave and asked his wife to
      call the police. He then watched Appellant leave through the
      garage door, get on a bicycle, and start riding away. Before
      getting far, Appellant was stopped by police and arrested.

             Mr. Gousie explained that if Appellant had come in the house
      through the garage, he would have been in direct view of the
      kitchen, but instead Appellant went upstairs where Mrs. Gousie
      found him exiting one of the bedrooms. Appellant did not tell the
      Gousies that people were trying to kill him nor did he ask them to
      call 911 for him. Mr. Gousie admitted that nothing was taken from
      the house and no one was harmed. Appellant presumably entered
      the house through the garage which was unlocked.

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              The Commonwealth also presented the testimony of [Mr.]
        Gonzalez, the homeowner of 233 South Swarthmore Avenue [and
        Mr. Gousie’s son-in-law]. Mr. Gonzalez testified that he did not
        give Appellant permission to enter the home. Additionally, Mr.
        Gonzalez explained that, when he appeared for a hearing in
        November of 2017, Appellant approached him and apologized
        explaining that people were trying to kill him so he entered the
        house to hide.

              Finally, Sergeant [] Fisher of the Nether Providence Police
        Department testified on behalf of the Commonwealth. Sergeant
        Fisher was called to assist the Springfield Township Police with a
        robbery in progress at 233 South Swarthmore Avenue. Within a
        second or two prior to arriving at the residence, Sergeant Fisher
        observed a male, matching the description given by radio, riding
        a bike towards him. Appellant was waving his hands as if he was
        trying to flag the officer down. Sergeant Fisher stopped his vehicle
        and placed Appellant on the ground while another officer placed
        him under arrest. Appellant did not tell Sergeant Fisher that he
        was in fear of his life.

Trial Court Opinion, 1/22/19 at 1-3 (unnumbered) (internal record citations

omitted). Appellant did not testify in his own defense. On October 24, 2018,

at the conclusion of trial, the jury found Appellant guilty of burglary and

criminal trespass. On November 20, 2018, the trial court sentenced Appellant

to 54 to 108 months’ imprisonment for the burglary conviction.3 Appellant

timely appealed. Both the trial court and Appellant complied with Pa.R.A.P.

1925.

        On appeal, Appellant raises a single issue for our review. “Whether the

evidence was sufficient to sustain the conviction for burglary where the

Commonwealth failed to prove beyond a reasonable doubt that [Appellant]




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3 For purposes of sentencing, the conviction for criminal trespass merged with
burglary. As a result, the trial court imposed no additional penalty for criminal
trespass.

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entered the building with the intent to commit a crime therein?” Appellant’s

Brief at 5.

      “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial 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 finder 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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014).

      “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) (en banc), appeal denied,

805 A.2d 521 (Pa. 2002). In Lambert, we explained the jury may find the

mens rea for burglary solely through circumstantial evidence.

      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

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       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) (emphasis added).

       Instantly, based upon the evidence presented at trial, viewed in a light

most favorable to the Commonwealth, we agree with the trial court’s

conclusion that the Commonwealth proved beyond a reasonable doubt

Appellant committed burglary. As the trial court explained:

              In the case sub judice, the testimony of the three
       Commonwealth witnesses, when taken as a whole and viewed in
       the light most favorable to the Commonwealth, was sufficient for
       the jury to find that Appellant had the intent to commit a crime in
       the residence. Appellant entered the home surreptitiously, as
       evidenced by the fact that neither Mr. Gousie nor his wife noticed
       him enter. Once inside, Appellant bypassed the kitchen directly
       in front of him, where he could have obtained a drink of water,
       and went upstairs. In doing so, Appellant presumably slipped
       right past Mr. Gousie and the minor children. Appellant was first
       seen by Mrs. Gousie when she observed him exiting one of the
       upstairs bedrooms. Appellant could not have obtained a glass of
       water in a bedroom, as was his explanation to Mr. Gousie
       regarding why he was in the house. Interestingly enough,
       Appellant then contradicted his own explanation for why he was
       in the residence when he told Mr. Gonzalez that he was being
       chased and entered the house to hide.             These conflicting
       statements certainly affected Appellant’s credibility and supported
       the inference that Appellant entered the residence with the intent
       to commit a crime. All these circumstances, taken as a whole,
       were sufficient for the jury to infer that Appellant entered the
       residence with the intent to commit a crime.

Trial Court Opinion, 1/22/19 at 4-5 (unnumbered). Accordingly, Appellant is

not entitled to relief.4

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4 To the extent Appellant relies on Commonwealth v. Wilamowski, 633
A.2d 141 (Pa. 1993) for the proposition that he did not have an intent to
commit a crime once he entered the Gousies’ residence, such reliance is



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       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/19




____________________________________________


misplaced. In Wilamowski, the defendant kicked in a person’s garage door
and fled from the scene. Our Supreme Court reasoned that “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.” Id. at 144.
The Court further noted that the defendant’s “path into the structure was now
unobstructed, but he chose to walk away and go to the neighbor’s house to
ask for directions.” Id. Here, Appellant not only entered the Gousies’
residence, but he surreptitiously wandered all the way up to a second-floor
bedroom past Mr. Gousie who was watching TV with his two grandchildren
when Mrs. Gousie discovered him. As noted above, Appellant’s explanation
for being in the house changed from wanting a glass of water to hiding out in
the house because people allegedly were trying to kill him.

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