J-S40011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JOHN ALEXANDER TARGONSKI,

                         Appellant                    No. 1758 MDA 2013


      Appeal from the Judgment of Sentence Entered August 27, 2013
              In the Court of Common Pleas of Centre County
           Criminal Division at No(s): CP-14-CR-0001453-2012


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 26, 2014

      Appellant, John Alexander Targonski, appeals from the judgment of



                                     ng his conviction for criminal trespass and

simple assault, respectively.    Appellant challenges the sufficiency of the

evidence supporting his conviction for criminal trespass. He also claims that

the trial court erred in admitting evidence of bad acts that occurred after his

altercation with the victim.    After careful review, we reverse in part and

affirm in part.

      The trial court summarized the facts adduced at trial as follows:
            This case arises out of an altercation between two college
      students, [Appellant] and Peter Arsenault, in the hallway of the
      apartment building where they both resided. The altercation
      took place in the early morning hours of Thursday on the first
      week of fall classes at Penn State. Portions of the incident were
      captured by a hallway surveillance video camera.
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            The evidence at trial established that shortly after midnight
     on August 30, 2012, Peter Arsenault returned home to his
     apartment building to find a bag of trash that was leaking beer
     sitting in the hallway near his door.          [Appellant] and his
     roommates were hosting another large party across the hallway,
     the fourth one they had thrown that week. Tired of the noise
     and mess caused by the parties each night, Arsenault picked up
                                                              ent, which
     triggered [Appellant] and several other partygoers to come into
     the hallway and confront Arsenault.

           The confrontation turned physical and escalated.
     [Appellant] shoved Arsenault and punched him in the face
     repeatedly. While Arsenault was pushed up against his locked
     apartment door, his roommate Rosan Patel heard commotion,
     looked out the peephole, and saw Arsenault being punched. As
     Patel opened the door to let him in, Arsenault tumbled into the
                                                        n other people,
     including [Appellant]. In the apartment, [Appellant] pushed
     Arsenault into a wall, bounced his head off of a fire extinguisher,
     and punched him in the face.

          Arsenault's roommate eventually succeeded in removing
     [Appellant] and the others from the apartment and locked the
     door. For approximately an hour, [Appellant] returned to pound

     Arsenault and his roommate went out on their balcony, the
     balcony wall was pelted with cans and bottles thrown from

     apartment to investigate the disturbance.

           The officers who arrived on the scene found several males

     apartment was full of beer and liquor bottles. The officers asked
     [Appellant] to provide identification. He left to retrieve his
     identification but did not return. Officers found him lying in bed,
     intoxicated but uninjured, and placed him under arrest after a
     brief struggle. Arsenault was photographed with a bruised and
     swollen eye. Photographs were taken later of damage to


Trial Court Opinion (TCO), 11/7/13, at 1-3.




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      On    September   26,   2012,   the   Commonwealth     filed   a   criminal

information charging Appellant with burglary, 18 Pa.C.S. § 3502(a), a felony

of the first degree; criminal trespass, 18 Pa.C.S. § 3503(a)(1)(i), a felony of

the third degree; simple assault, 18 Pa.C.S. § 2701(a)(1), a misdemeanor of

the second degree; and consumption or possession of liquor or malt or

brewed beverages by a minor (underage drinking), 18 Pa.C.S. § 6308(a), a

summary offense. Appellant proceeded to a jury trial on July 3, 2013. The

jury found him guilty of criminal trespass and simple assault, but not guilty

of burglary. His simultaneously held bench trial for underage drinking also

resulted in a guilty verdict. On August 27, 2013, the trial court sentenced

                                                                                f

criminal trespass, and a concurrent term of probation of 1 year for the

offense of simple assault. The court imposed a $100 fine for the offense of

underage drinking.

      Appellant filed a timely notice of appeal. The trial court then ordered

him to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal

(concise statement).     He complied with that order, filing his concise

statement on October 21, 2013.        The trial court filed its Rule 1925(a)

opinion on November 7, 2013.          Appellant now presents the following

questions for our review:

       I.

            grabbed by Arsenault, did the Commonwealth fail to prove
            beyond reasonable doubt that Appellant possessed the


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              requisite mens rea to be convicted of the felony offense of
              Criminal Trespass?

      II.
              conduct and the conduct of his associates after the
              altercation with Arsenault, where Appellant was charged
              with no offenses pertaining to conduct after the altercation
              and the only identifiable purpose of that evidence was to
              prove that Appellant was a "bully"?




supporting his conviction for criminal trespass. We review sufficiency claims

under the following standard:
             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support
      the verdict when it establishes each material element of the
      crime charged and the commission thereof by the accused,
      beyond a reasonable doubt. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim the court is required to view the evidence in the
      light most favorable to the verdict winner giving the prosecution
      the benefit of all reasonable inferences to be drawn from the
      evidence.

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

citations omitted).

      The crime of criminal trespass is defined, in relevant part, as follows:
      (1) A person commits an offense if, knowing that he is not
      licensed or privileged to do so, he:

            (i) enters, gains entry by subterfuge or surreptitiously
            remains in any building or occupied structure or separately


18 Pa.C.S. § 3503(a)(1).



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      Appellant targets his sufficiency claim on the mens rea element(s) of

Section 3503(a)(1).    Specifically, he argues that the statute requires, and




contends that the Commonwealth failed to prove that he knowingly entered




                                                                            lant




We disagree with the trial court based upon the specific circumstances

before us.    In his concise s

Commonwealth presented sufficient evidence to prove beyond a reasonable



                                                 ¶                    he felony



culpability with respect to subsection (a) of Section 3503, as no other

subsections of the criminal trespass statute could result in a felony.

Furthermore, it was undisputed

apartment and that he did not have permission to do so; defense counsel

admitted as much during his closing argument. N.T., 7/2/13, at 263. Thus,

the only true point of contention at trial with regard to the sufficiency of the




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the mens rea element(s) of criminal trespass. We decline to find this issue



sufficiency claim was based in his concise statement does not hinder our

review in the circumstances of this case. See Taylor v. Owens-Corning

Fiberglas Corp.

                                              unless the failure to raise the




evidence presented at trial did not establish that he knowingly entered

                  ment.    The   Commonwealth     does   not   dispute   this



case that the Commonwealth present any evidence to show an intent to

                                                                    that the

mens rea




absurd and unintended results.    He offers the following hypothetical to

illustrate:
      Suppose that an earthquake strikes, opening a hole in the floor
      of the apartment of an upstairs tenant. The upstairs tenant
      knows that he would be unwelcome in the apartment beneath
      him. Nonetheless, when he falls through the earthquake-caused
      hole into the apartment below, can he be said to be guilty of




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      This controversy demands interpretation of the criminal trespass

statute.      When interpreting any statute, we adhere to the following

principles:


      construction of statutes is to ascertain and effectuate the
      intention of the General Assembly.    Every statute shall be

      Pa.C.S. § 1921(a).    In determining legislative intent, we must

      ea
               Hous. Auth. of County of Chester v. Pa. State Civil
                     , 556 Pa. 621, 730 A.2d 935, 945 (1999). We
      are not permitted to ignore the language of a statute, nor may
      we deem any language to be superfluous. 1 Pa.C.S. § 1921(a).

      When there is an interpretation available that gives effect to all
      of the statute's phrases and does not lead to an absurd result,
      that interpretation must prevail.

Commonwealth v. McCoy, 962 A.2d 1160, 1167-68 (Pa. 2009).

      Furthermore,


      1928(b)(1); see also Commonwealth v. McClintic, 589 Pa.
      465, 909 A.2d 1241, 1251 (2006). Of course, the mandate to

      principle that the words of a statute must be construed

      require this Court to give the words of a penal statute their
                                     Commonwealth v. Booth, 564

      however, that where ambiguity exists in the language of a penal
      statute, such language should be interpreted in the light most
      favorable to the accused. More specifically, where doubt exists
      concerning the proper scope of a penal statute, it is the accused
                                                     Id.

McCoy, 962 A.2d at 1168-69.




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      Additional principles are provided by the Crimes Code. For instance,



unless his liability is based on conduct which includes a voluntary act or the

omission to perform an act of

Section 302 provides even more specific guidance when our interpretation

turn upon the requisite level of culpability assigned to the material elements

of an offense:
      (a) Minimum requirements of culpability.--Except as
      provided in section 305 of this title (relating to limitations on
      scope of culpability requirements), a person is not guilty of an
      offense unless he acted intentionally, knowingly, recklessly or
      negligently, as the law may require, with respect to each
      material element of the offense.



      (c) Culpability required unless otherwise provided.--When
      the culpability sufficient to establish a material element of an
      offense is not prescribed by law, such element is established if a
      person acts intentionally, knowingly or recklessly with respect
      thereto.

      (d) Prescribed culpability requirement applies to all
      material elements.--When the law defining an offense
      prescribes the kind of culpability that is sufficient for the
      commission of an offense, without distinguishing among the
      material elements thereof, such provision shall apply to all the
      material elements of the offense, unless a contrary purpose
      plainly appears.

18 Pa.C.S. § 302.

      Here, there are two competing interpretations of the statute in

question.

in   Section   3503(a)(1)   does   not   apply   to   subsection   (a)(1)(i)   (the



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                                                               terpretation is

superior for several reasons.




                                             McCoy, 962 A.2d at 1168.     The



(a)(1)(i) independently from Section (a)(1).      This conflicts with the very

structure of the statute, as subsection (a)(1)(i) is contained within Section

(a)(1).

                        there is an interpretation available that gives effect

to all of the statute's phrases and does not lead to an absurd result, that

                                McCoy, 962 A.2d at 1168. As illustrated by

                                                       pretation can lead to

absurd results. Clearly the legislature did not intend to penalize accidental

or unintended trespasses as felonies.        Moreover, such a reading would



omission to



scope of criminal liability under the criminal trespass statute by permitting

mere accidental trespasses, whereas there is a statutory mandate that we

strictly construe criminal statutes.   We do not consider the terms of this

statute ambiguous as to its scope.       However, even if the terms were

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ambiguous, that ambiguity must be resolved in favor of Appellant, because

          oubt exists concerning the proper scope of a penal statute, it is the

                                                          McCoy, 962 A.2d at

1169.



Pa.C.S. § 302.     Section 302(d) p

offense prescribes the kind of culpability that is sufficient for the commission

of an offense, without distinguishing among the material elements thereof,

such provision shall apply to all the material elements of the offense, unless



provides a mens rea

limit) its applicability to the subsequent subsections that define the conduct

element(s) of the offense. Thus, Section 302(d) requires that the mens rea

           shall

                                                      Id. It must be said that

any such contrary purpose would unavoidably permit the absurdity of



                                                                Id.

        Accordingly, we conclude that the mens rea

contained in Section 3503(a)(1) also applies to the material element

contained in Section 3503(a)(1)(i), such that the statute requires that a




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       The Commonwealth argues that Commonwealth v. Schwartz, 615

A.2d 350 (Pa. Super. 1992), is in conflict with this conclusion. We disagree.

First, Schwartz is simply not factually analogous to the present case.    In

Schwartz, there was testimony that the appellant punched a pane of glass,

and that as a result his arm entered the home to which he had no

permission to enter.     Schwartz, 615 A.2d at 361.       Nevertheless, the

following passage from the Schwartz is construed by the Commonwealth,

when    examined   out    of   context

interpretation:
             Appellant contends that the Commonwealth did not
       present any valid evidence to support an intent to enter. No
       evidence was presented that shows he smashed the window and
       thrust his arm through the broken pane, appellant argues.
       Evidence of this nature did not have to be presented to
       support a conviction of criminal trespass.

Id. (emphasis added). No citation was provided for this conclusion by the

Schwartz Court apart from the statute itself.   Notably, too, at no point did

the Schwartz

trespass statute did not demand a mens rea requirement. Indeed, another

interpretation of the highlighted language above makes more sense. When

the Schwartz



                         s claim that the Commonwealth did not present



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J-S40011-14



                                                                      Id.   This

reading is consistent with the Schwartz




                                                 Id. at 361.    Certainly, there

appeared to be little doubt that the punch was intentional in the sense that it



demarked by the window and, thus, that he intended his fist and/or arm to

          See

                                                                 if the element

involves a result of his conduct, he is aware that it is practically certain that

                                                                      Schwartz

decision is also supported by the fact that in the 22 instances in which

Schwartz has been cited in subsequent cases, it has never been cited for

the proposition that the entry element of the criminal trespass statute does

not require an intent or mens rea element.            Thus, we conclude that

Schwartz                                              etation, and has simply

been misinterpreted by the Commonwealth.

      We must now address, of course, whether there was sufficient



conclude that there was not.       The undisputed facts at trial reveal that



                                                  entry into the apartment was

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involuntary.     There was no evidence presented that Appellant had any

intention   of   entering   Appe

roommate opened the door.

      However, the criminal trespass statute does not limit itself to

situations where a defendant knowingly enters a place that he is not licensed

or privileged to do so. A conviction can also be obtained where a defendant



question. 18 Pa.C.S. § 3503(a)(1)(i). Nevertheless, we conclude that the

Commonwealth did not present sufficient evidence supporting either of these

two alternatives.



instance, as is obvious from the manner in which Appellant entered




accurately representing the evidence, the Commonwealth overlooks the

qua




surreptitiously, as no evidence supporting that theory was presented at trial

and, in fact, the trial evidence directly contradicted such a theory.   There

was nothing remotely secretive or stealthy about the manner in which

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Appellant remained in the apartment.           See The American Heritage

Dictionary 827 (4th




      As Appellant was also convicted of simple assault and underage

drinking, we move on to address his remaining claim(s). Appellant argues




from A

this claim, in part, when he filed a pre-trial motion in limine

exclude evidence that, following the altercation and after Appellant had

                                       ant and his associates pounded on the



                                                                   Id. at 10.

These issues arose again during the course of the trial.

      We review claims of evidentiary error under the following standard:
      The admission of evidence is solely within the province of the
      trial court, and a decision thereto will not be disturbed absent a

      merely an error of judgment, but if in reaching a conclusion the
      law is overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias[,] or ill-

Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (internal

citations omitted).




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J-S40011-14



     Initially, we must note that Appellant is actually raising multiple claims

of error concerning each act of misconduct that occurred after he was

                                            ese multiple claims can be distilled



and, second, the misconduct of his associates.        Both sets of claims are

governed by Pa.R.E. 404(b).

                                                  dence of a crime, wrong, or

other act is not admissible to prove a person's character in order to show

that on a particular occasion the person acted in accordance with the



another purpose, such as proving motive, opportunity, intent, preparation,




case this evidence is admissible only if the probative value of the evidence

                                               Id.




apparently bashi



Arsenault and his roommate corroborating the video evidence and their

recollection of the verbal threats issued by Appellant during that time. The

trial court determined that this evidence was admissible because it was

                                                                    -defense in

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committing the offenses but that he knew what he was doing and intended

                     t 5.   The court also found this evidence admissible

                  res gestae exception, as the conduct was clearly related in

                                                               Id.

      We discern no abuse of discretion with the admission of this evidence.



acting in self-

after he was removed from Arsenault

and/or intent that contradicted his self-defense theory.




404(b).   Rule 404(b




                                                    haracter, as the evidence



      The trial court described how this matter arose at trial as follows:
      Arsenault's roommate Rosan Patel, in testifying about what he
      witnessed in the hallway and in the apartment, referred several

      that Patel's testimony about the group action was irrelevant to
      [Appellant]'s guilt and could improperly attribute conduct of
      others to [Appellant]. The Court gave the following response

      [the prosecutor] wants to focus in specifically on conduct that
      allegedly was committed by your client, she will here in a
      moment, but at this point in time I think you all understand he is


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J-S40011-14


      (Trial Transcript at p. 112-113.) In the testimony that followed,
      Patel clarified which actions he observed by [Appellant] in
      particular. Any confusion created by Patel's earlier testimony
      was cured by the Court's admonishment and the subsequent
      testimony by Patel.

TCO, at 7.

      We discern no abuse of discretion on the part of the trial court with




to be attributed to Appellant.    Moreover, the trial court cannot be said to

have improperly admitted that evidence under Rule 404(b)(2), because the

evidence did not fall within the purview of that rule.          If anything, the

evidence was objectionable as irrelevant.         Although Appellant raised a

relevancy objection to this evidence at trial, he has limited his argument in

his brief to its admissibility under Rule 404. Accordingly, he has waived the

claim that such evidence was irrelevant by failing to raise it in his brief.

                                                                    ith regard to

his conviction for criminal trespass is meritorious but that his evidentiary



trespass, but affirm the judgment of sentence with respect to his conviction

for simple assault.

      Affirmed in part, reversed in part. Jurisdiction relinquished.

      Judge Panella joins in the memorandum.

      Judge Bowes files a concurring and dissenting memorandum.




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J-S40011-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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