J-S68010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JUSTIN CURL,

                            Appellant                No. 3110 EDA 2014


            Appeal from the Judgment of Sentence October 22, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010020-2013


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED DECEMBER 10, 2015

        Justin Curl appeals from the judgment of sentence of time served to

twenty-three months’ incarceration followed by three years’ probation,

imposed October 22, 2014, following a jury trial resulting in his conviction

for criminal trespass, simple assault, and recklessly endangering another

person.1 We affirm.

        We adopt the following statement of facts:

        On June 18, 2013, at 10:30 AM, Miles Nutter (“Complainant”)
        was at his home located at 1234 Robin Street in Northeast
        Philadelphia with his wife, Sarah Allen, and their two-year-old
        son. There are two doorways to the house, which includes a
        door that leads from the basement and the front door. The only
        entranceway to the house is the front door because the landlord
        bolted the basement door from the inside after the couple was
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1
    Respectively, see 18 Pa.C.S. 3503(a)(ii), 2701(a), and 2705.
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     robbed. On the day in question, Complainant and Ms. Allen
     testified that the front door was shut, but were unsure if it was
     locked. However, Complainant testified that he usually locks his
     door because “everyone knows to lock your door when you come
     in the house.” Ms. Allen also testified that the couple normally
     locks their door when they come home. They both testified that
     [C]omplainant is the only one with a key to the house.

     Earlier in the day in question, Complain[ant], Ms. Allen, and their
     son returned from a clothing convention in Washington, D.C. As
     they prepared for bed, the couple got in an argument about their
     sex life. Ms. Allen then went downstairs to get their son milk [to
     drink] and encountered [Appellant]. She asked him why [he
     was] there and told him to leave. She testified that, although
     she knew [Appellant], she never invited him over that day nor
     gave him permission to enter onto the property.

     Ms. Allen went back upstairs to distract her husband so
     [Appellant] could leave without incident. Five minutes later …
     Complainant went downstairs to lift weights and relieve tension.
     He opened the basement door, which was on the right side of
     the kitchen, and saw [Appellant] hiding behind the door.
     [Appellant] charged at … Complainant with what Complainant
     thought to be an object in [Appellant’s] hand. Complainant
     immediately grabbed [Appellant’s] forearm and wrist area. He
     testified that he was worried for his wife and child[] and wanted
     to get [Appellant] out of the house.

     A tussle ensued from the kitchen to the living room, into the
     dining room, and back to the living room. They slammed into
     the banister and into a large fish tank. Ms. Allen testified that
     she came downstairs when she heard loud noises and started
     screaming when she saw the tussle. She then went upstairs to
     find her cell phone and called the cops.

     [Appellant] and Complainant continued to tussle and slammed
     into the front door’s glass window and landed outside.
     Complainant then testified that the glass [gouged] his arm and
     he was bleeding profusely. They continued to tussle outside and
     Complainant fell down four steps. [Appellant] got on top of …
     Complainant and started hitting him with his fist while …
     Complainant was on the ground. He testified that he could not
     defend himself because of his arm, so he curled up in a ball and
     was punched four or five times. Complainant’s artery was cut

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       from the tussle, and he had to undergo surgery. As a result, he
       has a six-inch scar.

       …

       Sergeant [James] Hawe testified that he arrived on the scene
       after receiving a radio call about a person with a weapon and a
       fight at 1234 Robin Street.       When he arrived, he saw …
       Complainant’s body lying on the sidewalk bleeding profusely. He
       further testified that there was broken glass and a blood trail
       from the curb, up the steps, onto the second set of steps, and
       through the doorway and entranceway. Officer [Stephen] Long
       testified that he found [Appellant] with no shirt on and covered
       in blood. Although he saw a few cuts on [Appellant], he testified
       that the bleeding could not have been caused by those cuts.

Trial Court Opinion, 02/09/2015, at 1-4 (some punctuation modified;

internal citations omitted).

       In July 2014, following trial, a jury convicted Appellant of the crimes

cited above. The trial court imposed an aggregate sentence of time served

to twenty-three months’ incarceration, to be followed by three years’

probation.    Appellant timely appealed and filed a court-ordered Pa.R.A.P.

1925(b) statement. The trial court issued a responsive opinion.

       On appeal, Appellant challenges the sufficiency of the evidence to

convict him of criminal trespass graded as a felony of the second degree.2

The crime of criminal trespass is defined in relevant part as follows:

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2
  Appellant concedes the evidence may have been sufficient to convict him of
defiant trespass, a misdemeanor crime. See Appellant’s Brief at 12-13
(citing 18 Pa.C.S. § 3503(b)).       Alternatively, Appellant suggests the
evidence may have been sufficient to support his conviction of criminal
trespass graded as a felony of the third degree. Id. at 13-14; see also 18
(Footnote Continued Next Page)


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      (a) Buildings and occupied structures.--

          (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 secured or occupied portion
             thereof; or

             (ii) breaks into any building or occupied structure or
             separately secured or occupied portion thereof.

          (2) An offense under paragraph (1)(i) is a felony of the
          third degree, and an offense under paragraph (1)(ii) is a
          felony of the second degree.

          (3) As used in this subsection:

             “Breaks into.” To gain entry by force, breaking,
             intimidation, unauthorized opening of locks, or
             through an opening not designed for human access.

18 Pa.C.S. § 3503(a).

      Specifically, Appellant claims there was insufficient evidence that he

gained entry to Complainant’s home “by force, breaking, intimidation,

unauthorized opening of locks or through an opening not designed for




                       _______________________
(Footnote Continued)

Pa.C.S. § 3503(a)(1)(i). Appellant failed to request a jury instruction on
these lesser charges prior to or during trial. Accordingly, Appellant has
waived any challenge to the grading of this offense. See Commonwealth
v. Ryan, 909 A.2d 839, 845 (Pa. Super. 2006).




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human access.”         18 Pa.C.S. § 3503(a)(3); see Appellant’s Brief at 9.

Appellant’s claim is without merit.3

       We review a challenge to the sufficiency of the evidence in the

following manner:

       In determining whether there was sufficient evidentiary support
       for a jury's finding [], the reviewing court inquires whether the
       proofs, considered in the light most favorable to the
       Commonwealth as verdict winner, are sufficient to enable a
       reasonable jury to find every element of the crime beyond a
       reasonable doubt.        The court bears in mind that: the
       Commonwealth may sustain its burden by means of wholly
       circumstantial evidence; the entire trial record should be
       evaluated and all evidence received considered, whether or not
       the trial court's rulings thereon were correct; and the trier of
       fact, while passing upon the credibility of witnesses and the
       weight of the evidence, is free to believe all, part, or none of the
       evidence.

Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations

omitted).

       Here, Appellant suggests there was no evidence that he broke into

Complainant’s house, because “[b]oth … [C]omplainant and Ms. Allen were
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3
  Appellant also argues that the evidence was insufficient to establish that
Appellant knew he was not privileged to enter Complainant’s house, because
Ms. Allen had invited him into the house on another occasion.            See
Appellant’s Brief at 12; see also 18 Pa.C.S. § 3503(a)(1) (“A person
commits an offense if, knowing that he is not licensed or privileged to do so
… .”) (emphasis added). Appellant failed to preserve this issue. See
Appellant’s Rule 1925(b) Statement. Accordingly, we deem it waived. See
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013). Absent
waiver, we note that Appellant concedes Ms. Allen’s testimony that she
informed Appellant that “he did not have permission to be in the house on
that day.” Appellant’s Brief at 10. Accordingly, his argument is without
merit.



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unsure if either of them had locked the front door.” Appellant’s Brief at 13.

Further, Appellant notes there was no testimony or evidence of damage to

the front door.      Id.   Thus, Appellant concludes, the evidence merely

supports an inference that he entered though an unlocked front door, an act

of lesser culpability. Id. at 14 (citing in support Commonwealth v. Cook,

547 A.2d 406 (Pa. Super. 1988)).

     Appellant’s reliance on Cook is not persuasive.          In Cook, the

defendant was discovered in the stockroom of a store carrying concealed

items of clothing.   Cook, 547 A.2d at 408.    At a bench trial, the parties

stipulated that the stock room was not open to members of the public and

was secured by an unlocked padlock. Id. The trial court found defendant

guilty of criminal trespass generally but sentenced him as if he had

committed a felony of the second degree. Id. at 410. On appeal, this Court

vacated Appellant’s judgment of sentence for criminal trespass graded as a

felony of the second degree, concluding that “[b]ecause [the] appellant did

not gain entrance to the stockroom by breaking into it, but merely entered

through an unlocked door, his crime was a felony of the third degree.” Id.

at 411.

     Here, however, Complainant and his wife both testified that it was

their habit of locking the door behind them when they entered their home.

See Notes of Testimony (N.T.), 07/18/2014, at 41-43, 122-123.         In the

words of Complainant, “[e]veryone knows – I mean, you lock your door


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when you come in the house[.]” N.T. at 43. Based upon this evidence and

mindful of our standard of review, the jury could reasonably infer that (1)

Complainant or his wife had locked their front door and (2) Appellant had

gained entry by the “unauthorized opening” of this lock.          18 Pa.C.S. §

3503(a)(3); see also Commonwealth v. Harris, 852 A.2d 1168, 1178 (Pa.

2004) (noting that Pennsylvania Rule of Evidence 406 provides that evidence

of habit is relevant and admissible to establish conduct in conformity

therewith).4     Accordingly, the evidence was sufficient to establish that

Appellant was guilty of criminal trespass graded as a felony of the second

degree.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2015




____________________________________________


4
    Appellant did not object to the admission of this evidence.



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