J-S55044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

KAREEM SANDERS

                            Appellant                    No. 866 EDA 2014


           Appeal from the Judgment of Sentence October 29, 2013
               In the Court of Common Pleas of Carbon County
             Criminal Division at No(s): CP-13-CR-0000389-2012


BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 10, 2015

        Kareem Sanders timely appeals from the judgment of sentence

imposed on October 29, 2013.1            A jury found Sanders guilty of burglary,

criminal trespass, and theft by unlawful taking.2 The trial court sentenced

Sanders to a term of imprisonment of three to six years.          In this appeal,

Sanders raises six questions, which may be distilled to two issues, namely,

challenges to the weight and sufficiency of the evidence with respect to his


____________________________________________


1
  Sanders purports to appeal from the order denying his post-sentence
motion. We have corrected the caption to reflect that Sanders’s appeal
properly lies from the judgment of sentence entered on October 29, 2013,
not the order denying his post-sentence motion. See Commonwealth v.
Mullins, 905 A.2d 1009, 1014 n.2 (Pa. Super. 2006), appeal denied, 937
A.2d 444 (Pa. 2007).
2
    18 Pa.C.S. §§ 3502(a), 3503(a)(1)(i), and 3921(a).
J-S55044-14



convictions for burglary and criminal trespass.3      Based upon the following,

we affirm.

       The trial court has aptly stated the factual and procedural history of

this case, and we need not repeat it here.            See Trial Court Opinion,

2/3/2014, at 1–6.

       We first address Sanders’s challenge to the weight of the evidence,

applying the following standard of review:

           A motion for a new trial based on a claim that the verdict
           is against the weight of the evidence is addressed to the
           discretion of the trial court... It has often been stated that
           “a new trial should be awarded when the jury’s verdict is
           so contrary to the evidence as to shock one's sense of
           justice and the award of a new trial is imperative so that
           right may be given another opportunity to prevail.”

       An appellate court’s standard of review when presented with a
       weight of the evidence claim is distinct from the standard of
       review applied by the trial court:

           Appellate review of a weight claim is a review of the
           exercise of discretion, not of the underlying question of
           whether the verdict is against the weight of the evidence.
           Because the trial judge has had the opportunity to hear
           and see the evidence presented, an appellate court will
           give the gravest consideration to the findings and reasons
           advanced by the trial judge when reviewing a trial court's
           determination that the verdict is against the weight of the
           evidence. One of the least assailable reasons for granting
           or denying a new trial is the lower court's conviction that
____________________________________________


3
  Sanders timely complied with the trial court’s order to file a Rule 1925(b)
statement of errors complained of on appeal, and preserved his weight claim
in a timely-filed post-sentence motion. See Pa.R.A.P. 1925(b); Pa.R.Crim.P.
607(A)(3).



                                           -2-
J-S55044-14


          the verdict was or was not against the weight of the
          evidence and that a new trial should be granted in the
          interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations

omitted) (italics in original).

      Here, the trial court rejected Sanders’s weight claim, reasoning:

      [Sanders] presents a single argument for why both his burglary
      and criminal trespass convictions were against the weight of the
      evidence. He argues that the verdict was against the weight of
      the evidence for these two crimes because he claims the
      evidence overwhelmingly supported the conclusion that he had
      license or privilege to enter Mr. Rehrig’s home.

      A defendant is not guilty of burglary if, at the time of the crime,
      the defendant was licensed or privileged to enter the burglarized
      home. 18 Pa.C.S.A. § 3502(b)(3) [See former Section 3502(a)].
      Similarly, a defendant is not guilty of criminal trespass if he or
      she “reasonably believed that the owner of the premises, or
      other person empowered to license access thereto, would have
      licensed him to enter or remain.” 18 Pa.C.S.A. § 3503(c)(3).
      Unlike burglary, criminal trespass has a scienter requirement for
      this defense that would allow for a defendant to be acquitted if
      he reasonably believed, albeit falsely, that he had license to
      enter. Commonwealth v. Carter, 393 A.2d 660, 661 (Pa.
      1978). “In most cases the Commonwealth will meet its burden of
      proving that the defendant was not licensed or privileged to
      enter by having the owner or occupant of the building testify
      that he or she did not give the defendant permission to enter.”
      Commonwealth v. Knight, 419 A.2d 492, 500 (Pa. Super.
      1980).

      [Sanders] argues that he had license or privilege to enter Mr.
      Rehrig’s home, or reasonably believed so, because he entered
      the home with Co-Defendant who, in the past, had a license or
      privilege to enter while visiting his mother. However, both Mr.
      Rehrig and Co-Defendant testified that Co-Defendant did not
      have permission to enter the home. [Sanders] claims that their
      testimony should be given little to no weight because the record
      established that Co-Defendant did have a license or privilege to
      enter Mr. Rehrig’s home. Contrary to [Sander’s] claim, the

                                     -3-
J-S55044-14


     testimony of Mr. Rehrig and Co-Defendant is overwhelmingly
     supported by the record.

     According to the Superior Court, a defendant is licensed or
     privileged to enter “if he may naturally be expected to be on the
     premises often and in the natural course of his duties or habits”
     or, more simply, a defendant lacks privilege “if he would not
     reasonably be expected to be present.” Commonwealth v.
     Corbin, 446 A.2d 308, 311 (Pa.Super. 1982). In Corbin, a
     defendant was convicted of burglary even though the burglary
     occurred in an office building the defendant had access to as a
     janitor. Id. at 310. On appeal, the Superior Court affirmed the
     defendant’s conviction because, contrary to the defendant’s
     argument, he did not have license or privilege to enter. Id. at
     311. The Superior Court held that the defendant’s license or
     privilege to enter the office building extended only to his work
     duties between 5:00 P.M. and 9:00 P.M. Id. It found that
     defendant exceeded that license or privilege when he entered
     the office building at 10:00 P.M. or 11:00 P.M. for non-work
     purposes. Id.

     Like in Corbin, the evidence established that when Co-
     Defendant entered Mr. Rehrig’s home at 5:00 A.M. on August 4,
     2011, he exceeded his license or privilege. Mr. Rehrig testified
     that Co-Defendant was only allowed in his home to visit his
     mother. As of August 4, 2011, Co-Defendant’s mother no longer
     lived with Mr. Rehrig. In fact, Co-Defendant’s mother had not
     lived with Mr. Rehrig since the summer of 2010 - a year before
     the incident.6 Based on this evidence, Co-Defendant exceeded
     his privilege to enter Mr. Rehrig’s home because his mother had
     moved out a year earlier. Thus, this evidence supported the
     testimony of Mr. Rehrig and Co-Defendant that Co-Defendant did
     not have a license or privilege to enter the home on August 4,
     2011.
     ____________________________________________
        6
         Mr. Rehrig did testify that Co-Defendant’s mother lived
        with him only a month or two before the incident. Mr.
        Rehrig was clearly mistaken because Co-Defendant’s
        mother died in October 2010.
     _____________________________________________

     The circumstances surrounding Defendant’s and Co-Defendant’s
     entry into Mr. Rehrig’s home also supported the testimony of Mr.

                                   -4-
J-S55044-14


     Rehrig and Co-Defendant. Co-Defendant testified that he and
     Defendant went to Mr. Rehrig’s home to steal his television.
     They entered Mr. Rehrig’s home at 5:00 A.M. and the home was
     mostly dark when they entered. Upon entering, [Sanders] placed
     a pillow over Ms. Williams[’] face, forced her to sit on a couch,
     and demanded money while he pretended to have a gun. While
     he was doing this, Co-Defendant unplugged the television and
     removed it from the home. [Sanders] then took $500 from Mr.
     Rehrig before he left. This conduct of entering a dark home in
     the early morning and proceeding to immediately confront and
     steal from the occupants clearly corroborated Co-Defendant’s
     testimony that the Co-Defendant and Defendant did not have a
     license or privilege to enter the home.

     Consequently, it does not shock our conscience that the jury
     relied on the direct testimony of Co-Defendant and Mr. Rehrig7
     to find that Co-Defendant, and thus [Sanders], did not have
     license or privilege to enter Mr. Rehrig’s home. The record
     provided substantial support for their testimony. [Sanders’s]
     post-sentence motion with regard to weight of the evidence is
     denied.8
     __________________________________________
        7
          [Sanders] also argues that Mr. Rehrig’s testimony that
        Co-Defendant did not have permission to enter his home
        deserves little weight because his testimony suggested
        uncertainty. Mr. Rehrig’s testimony on this question was
        as follows:

            Q: No, the day it happened, August 4th, did you give
            [Co- Defendant] permission to be in your house?

            A: To my knowledge, he wasn’t there. No, I didn’t
            give him no permission. He wasn’t there, to my
            knowledge, until I was told.

        Despite using a double negative, Mr. Rehrig’s testimony
        was clear that Co-Defendant did not have license or
        privilege to enter his home. Mr. Rehrig was only uncertain
        as to whether Co-Defendant actually entered his home
        because he slept through the incident.
        8
          [Sanders] also argues that his burglary conviction was
        against the weight of the evidence because Co-

                                   -5-
J-S55044-14


         Defendant’s testimony was contradictory on the reason
         why he and Defendant went to Mr. Rehrig’s home. He
         claims this contradiction makes the verdict against the
         weight of the evidence for his burglary conviction on the
         element of intent.

         Co-Defendant first testified that he and [Sanders] went to
         Mr. Rehrig’s home to confront Mr. Rehrig. However, after
         the Commonwealth showed Co-Defendant his statement
         to Officer Arner – where he told Officer Arner they went
         to Mr. Rehrig’s home to steal the television – he changed
         his testimony to reflect that in the statement. He testified
         on cross-examination that the statement he gave to
         police was accurate and that he misspoke in his earlier
         testimony.     Thus, based on this explanation, and
         [Sanders’s] conduct when he entered the home, it does
         not shock our conscience that the jury relied on Co-
         Defendant’s corrected testimony to find intent.
      _____________________________________________


Trial Court Opinion, 2/3/2014, at 7–11 (record citations omitted).

      Based on our review of the evidence, we see no abuse of discretion in

the trial court’s decision to deny Sanders relief on his weight claim.

      Nor do we find merit in Sanders’s sufficiency challenge to his

convictions for burglary and criminal trespass.      Sanders argues that, on

August 4, 2011, he had license or permission to enter the residence of

Robert Rehrig.    Specifically, Sanders argues that his co-defendant had

permission to enter the Rehrig residence, and that he was the guest of his

co-defendant.    In this regard, Sanders relies on the fact that his co-

defendant had previously visited his mother at the Rehrig residence, when

she had lived there for a time.     Sanders also contends the evidence was




                                     -6-
J-S55044-14



insufficient to show that he had formed an intent to commit a crime

contemporaneous with his entry into the residence.

      Our standard of review of a sufficiency claim is well settled:

      In evaluating a challenge to the sufficiency of the evidence, we
      must determine whether, viewing the evidence in the light most
      favorable to the Commonwealth as verdict winner, together with
      all reasonable inferences therefrom, the trier of fact could have
      found that each and every element of the crimes charged was
      established beyond a reasonable doubt. We may not weight the
      evidence and substitute our judgment for the fact-finder. To
      sustain a conviction, however, the facts and circumstances which
      the Commonwealth must prove must be such that every
      essential element of the crime is established beyond a
      reasonable doubt.

      Lastly, the finder of fact may believe all, some or none of a witness’s

testimony. Commonwealth v. Sloan, 67 A.3d 808, 814 (Pa. Super. 2013)

(citations omitted).

      Regarding the crime of burglary, at the time of the commission of the

offense, Section 3502 of the Crimes Code provided, in relevant part:

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


18 Pa.C.S. § 3502(a).        Furthermore, regarding the crime of criminal

trespass, Section 3503 provides, in pertinent part:

      (a)    Buildings and occupied structures.—

       (1)    A person commits an offense if, knowing that he is
              not licensed or privileged to do so, he:


                                      -7-
J-S55044-14


        (i)      enters,    gains   entry     by    subterfuge    or
                 surreptitiously remains in any building or occupied
                 structure or separately secured or occupied
                 portion thereof[.]


                                     ****
      (c) Defenses.—It is a defense to prosecution under this section
      that:

       (3) the actor reasonably believed that the owner of the
       premises, or other person empowered to license access
       thereto, would have licensed him to enter or remain.

18 Pa.C.S. § 3503(a)(1)(i), (c)(3).

      Here, the Commonwealth presented the testimony of the owner of the

residence, Rehrig, who testified he did not give Sanders’s co-defendant

permission to be inside his house on August 4, 2011, and he never knew

Sanders. The Commonwealth also presented the testimony of Sanders’s co-

defendant, who stated that he did not have permission to enter the

residence. In addition, from the circumstances of the case, the jury could

infer that Sanders and his co-defendant lacked permission from Tammy

Williams, another occupant of the residence, to enter the home. As already

stated, the jury heard Sanders’s co-defendant’s testimony that he did not

have permission to enter the residence. In addition, the jury also heard that

when Sanders and his co-defendant entered into the unlocked home at 5:00

A.M., which was mostly dark, Sanders immediately confronted Williams, who

was descending the stairs, put a pillow over her face, forced her to the

couch, demanded money, and pretended to have a gun. Accordingly, based

upon the above evidence, the Commonwealth established that neither


                                      -8-
J-S55044-14



Sanders’s co-defendant nor Sanders had permission to enter the Rehrig

residence. See 18 Pa.C.S. §§ 3502(a); 3503(a)(1)(i).

      Furthermore, the circumstances of this case, including the time of

entry and the actions of Sanders upon seeing Williams on the stairs,

establish that Sanders did not reasonably believe he had license to enter the

residence with his co-defendant. See 18 Pa.C.S. § 3503(c)(3), supra.

      Finally, with regard to the burglary element of intent, Sanders’s co-

defendant testified that Sanders asked him to help him steal the television

from Rehrig. Moreover, the circumstances of this case permitted the jury to

infer Sanders’s intent to commit the crime of theft contemporaneous with

Sanders’s entry into the residence. Here, the jury heard that Sanders and

his co-defendant entered the residence in the early morning, and that while

Sanders confronted Williams and demanded money, Sanders’s co-defendant

removed the television from the residence. The two men met up together

later, and Sanders gave his co-defendant $100.00 of the $500.00 he had

taken from Rehrig, who was asleep. Contrary to the argument of Sanders,

on this evidence, the Commonwealth established the element of intent. See

18 Pa.C.S. § 3502(a).

      Therefore, we reject Sanders’s sufficiency claim, as there was ample

evidence for the jury to conclude that Sanders was guilty of burglary and

criminal trespass.

      Accordingly, we affirm.




                                    -9-
J-S55044-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2015




                          - 10 -
