J-A21027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOHN SMIERCIAK,

                            Appellant                   No. 1561 WDA 2016


              Appeal from the Judgment of Sentence May 5, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0014309-2015


BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.

MEMORANDUM BY OLSON, J.:                          FILED SEPTEMBER 18, 2017

       Appellant, John Smierciak, appeals from the judgment of sentence

entered on May 5, 2016, as made final by the denial of his post-sentence

motion on September 15, 2016, following his bench trial convictions for

criminal attempt – criminal trespass and harassment.1          We affirm.

       We briefly summarize the facts and procedural history of this case as

follows. Appellant and the victim, T.H.,2 met in 2010 at work. The victim

moved into Appellant’s house in December 2012.              The parties had private

sleeping arrangements and the victim maintained that they were in a

platonic relationship. Approximately three years later, the victim decided to
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1
    18 Pa.C.S.A. §§ 3503/901 and 2709, respectively.
2
    We use the victim’s initials to protect her identity.
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move out of Appellant’s home to live with her mother. She did not discuss

the matter with Appellant, however, because she felt that Appellant wanted

a romantic relationship and had begun acting strangely, including sleeping in

her bed when she was not present.       On September 26, 2015, the victim

rented a moving van and moved her belongings out of Appellant’s house

with the assistance of her brother, sister, and a police escort.     Appellant

became emotional and when he began crying and banging on the walls,

police intervened. After the victim finished retrieving her belongings, she

handed her keys to Appellant’s residence over to the police.      The victim’s

brother told Appellant to stay away from the victim and their mother’s

house.    An hour later, the victim was in her mother’s yard when she saw

Appellant drive quickly towards her and park erratically and illegally in front

of her mother’s house. The victim ran inside, locked the door, and spoke

with police.   Appellant pushed past a family friend who was on the front

porch and tried to force the front door open with his shoulder.      Appellant

said that the victim was “his woman” and that she was “going to come with”

him.     A family member came outside and confronted Appellant.          Police

arrived shortly thereafter and arrested Appellant.

       The   Commonwealth charged Appellant with the           aforementioned

charges, as well as simple assault. The trial court held a two-day, non-jury

trial and convicted Appellant of criminal attempt – criminal trespass and

harassment and acquitted him of simple assault. The trial court sentenced


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Appellant to an aggregate term of five years of probation.      The trial court

also directed Appellant to complete anger management classes and ordered

no contact with the victim. Appellant filed a timely post-sentence motion.

The trial court denied relief on September 15, 2016.        This timely appeal

resulted.3

       On appeal, Appellant presents the following issues for our review:

       I.     Did the Commonwealth fail to present sufficient evidence
              to convict [Appellant] of [c]riminal attempt – criminal
              trespass?

       II.    Did the Commonwealth fail to present sufficient evidence
              to convict [Appellant] of [h]arassment?

Appellant’s Brief at 5.

       Both of Appellant’s issues challenge the sufficiency of the evidence

presented by the Commonwealth. Our standard of review is as follows:

       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
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3
  Appellant filed a notice of appeal on October 14, 2016. On October 19,
2016, the trial court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on January 3, 2017.



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     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 trier 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. Fitzpatrick, 159 A.3d 562, 567 (Pa. Super. 2017).

     In   his   first     issue   presented,   Appellant   “contends   that   the

Commonwealth presented insufficient evidence to convict him of [criminal

attempt – criminal trespass], as the Commonwealth did not prove, beyond a

reasonable doubt, that he was not in fact licensed to enter [the residence of

the victim’s mother] on the day in question, much less that he knew he was

not so licensed.”       Appellant’s Brief at 13-14 (emphasis in original).    He

claims there was no evidence that the victim’s mother, who owned the

house in question, had “extended to [the victim] or [her brother] the

authority to grant or revoke permission to enter the residence.” Id. at 15.

Appellant maintains that he had a long-term relationship with the victim,

had been invited into the residence in question on previous occasions, and,

therefore, he did not know that his entry into the home would be

unauthorized. Id. at 17-18.

     “A person commits an attempt when, with intent to commit a specific

crime, he does any act which constitutes a substantial step toward the

commission of that crime.” 18 Pa.C.S.A. § 901.


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      Criminal trespass, is defined as follows:

      § 3503. Criminal trespass.

      (a)   Buildings and occupied structures.

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

                          *            *           *

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

18 Pa.C.S.A. § 3503(a)(1)(ii).

      This Court has previously adopted the following definition of privilege:

      A person is privileged [] if he may naturally be expected to be on
      the premises often and in the natural course of his duties or
      habits.... Further, a person who is privileged may still commit
      [criminal trespass] if he would not reasonably be expected to be
      present.

Commonwealth v. Benito, 133 A.3d 333, 335 n.3 (Pa. Super. 2016)

(citation omitted).

      The victim testified that no one gave Appellant permission to enter the

house on the day in question. N.T., 5/4/2016, at 54. The victim’s brother

explicitly warned Appellant not to contact the victim, including coming to her

mother’s house. Id. at 55. The victim’s brother stated that he also lived at

the residence and specifically told Appellant to stay away an hour or two

prior to the incident at issue. Id. at 55, 58, and 64-65. The victim and her

brother testified that Appellant, upon the victim’s invitation, had been to

their mother’s home no more than three times before the victim moved. Id.


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at 29, 42, and 60.    The victim testified, however, that her family generally

did not spend social time with Appellant.   Id. at 52. Her brother testified

similarly. Id. at 60, 66-67.

      Here, the trial court credited the testimony of the victim and her

brother that Appellant was warned specifically to stay away from the

residence at issue.   Trial Court Opinion, 1/3/2017, at 8.    The trial court

further determined:

      In addition to this explicit warning to avoid contact with [the
      victim] and her mother’s home, [the victim’s] reaction to seeing
      [Appellant] speeding down the street towards her mother’s
      home also was sufficient to communicate to [Appellant] that he
      was not welcome at that property.        As noted, [the victim]
      immediately ran away from [Appellant], shut the gate behind
      her, retreated inside the house, and asked [a family friend] for
      help because she was afraid of [Appellant].

                          *           *           *

      The evidence viewed in the light most favorable to the
      Commonwealth established that any belief possessed by
      [Appellant] that he was welcome at the property was entirely
      unreasonable under the circumstances.

Id. We agree and discern no abuse of discretion or error of law. Moreover,

we note that, upon review of the record, Appellant had only been to the

home on a few occasions, so there was no evidence that he was expected to

be on the premises often and in the natural course of his habits. For all of

these reasons, Appellant knew he did not have privilege to access the




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property.      As such, we reject Appellant’s argument that there was

insufficient evidence to convict him of criminal attempt–criminal trespass.4

       Next, Appellant claims that there was insufficient evidence to convict

him of harassment.        He claims that, “[b]ecause the statements made by

[Appellant] during the incident in question were not, when considered in the

context of their relationship, of threatening nature, the Commonwealth failed

to prove, beyond a reasonable doubt, that [Appellant] made a threatening

statement to [the victim] with the intent to harass, annoy or alarm her.”

Appellant’s Brief at 20.       Appellant avers that “it can be inferred from the

context that [Appellant] was stating his desire for [the victim] to return to

the residence that they had shared and begin a romantic relationship with

him.” Id.

       The Commonwealth charged Appellant under subsection (a)(4) of the

harassment statute, which defines the offense as follows:

       A person commits the crime of harassment when, with intent to
       harass, annoy or alarm another, the person: […] communicates
       to or about such other person any lewd, lascivious, threatening
       or obscene words, language, drawings or caricatures[.]

18 Pa.C.S.A. § 2709(a)(4). “An intent to harass may be inferred from the

totality of the circumstances.” Commonwealth v. Cox, 72 A.3d 719, 721

(Pa. Super. 2013).
____________________________________________


4
     Because Appellant only challenges the element of license regarding
criminal trespass and does not challenge the elements of criminal attempt,
we need not address the other elements of the offense.



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     Here, the victim testified that she did not want a romantic relationship

with Appellant, moved out of his residence and made clear (through family

members and with the use of a police escort) that she did not want

Appellant to contact her at her mother’s house. Appellant tried to contact

the victim almost immediately thereafter, approaching the house quickly and

causing the victim to flee inside the house. Appellant continued to pursue

her after she locked the door and despite two men intervening on her behalf.

The victim testified that she felt threatened when Appellant said she “was

going to come with him[.]” N.T., 5/4/2016, at 53. Appellant admitted that

he said, “[t]hat’s my woman.”   Id. at 82, 87.    Despite all of the victim’s

concerted efforts to distance herself from Appellant, Appellant used

possessory language to describe the victim and demanded that she come

with him, which showed his intent to harass the victim by threat. Hence, we

discern the trial court did not abuse its discretion in finding sufficient

evidence to support Appellant’s conviction for harassment.        Appellant’s

second issue lacks merit.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017

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