J-S20035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

SETH DAVID BYRD

                            Appellant                     No. 1744 WDA 2014


          Appeal from the Judgment of Sentence of October 15, 2014
               In the Court of Common Pleas of Fayette County
              Criminal Division at No.: CP-26-CR-0000172-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                                       FILED JULY 07, 2015

       Seth David Byrd appeals his October 15, 2014 judgment of sentence,

which was entered following his jury convictions of burglary, criminal

trespass, and theft by unlawful taking of movable property.1 We affirm.

       The evidence adduced at trial, viewed in the light most favorable to

the Commonwealth as verdict-winner, supports the following account of the

factual history of this case.        On the morning of September 1, 2013, the

victim, Ronald Ritenour, accompanied his wife to the hospital and did not

return home until that evening. On that same evening, between 7 p.m. and

7:30 p.m.,     while   Ritenour     was    away   from   his   residence,   Ritenour’s

neighbors, Beulah and Lynn Keslar, witnessed Byrd approach Ritenour’s

____________________________________________


1
       See 18 Pa.C.S. §§ 3502(a)(2), 3503(a)(1)(i), 3921(a), respectively.
J-S20035-15



residence in Acme, Pennsylvania, in Fayette County, in a red Ford Explorer.

Byrd, a close friend to the Ritenour family, then entered the porch attached

to Ritenour’s residence. Shortly thereafter, Byrd exited Ritenour’s porch and

visited the trailer next door, where Ritenour’s son lived. Finding Ritenour’s

son also away from his residence, Byrd returned to and reentered Ritenour’s

home.     Five to ten minutes later, Byrd exited the home, returned to his

vehicle, and drove away. The next day, the Keslars notified Ritenour that

Byrd had entered his house on the previous evening.2

       On September 4, 2013, three days after Byrd was seen entering

Ritenour’s home, Ritenour noticed that the safe deposit box in his kitchen

was empty.      $677.02 was missing from this safe, which was precisely the

amount of money that Ritenour took home from his deposit of a retirement

check the prior week.        Unable to find the missing money, Ritenour’s wife

Judy contacted the police on September 16, 2013. That same day, Officer

Robert Broadwater met with Judy Ritenour, Ronald Ritenour, Beulah Keslar,

and Lynn Keslar and learned that Byrd had been present at Ritenour’s

residence on September 1, 2013.
____________________________________________


2
      At trial, Beulah Keslar and Lynn Keslar testified that the front door to
Ritenour’s residence is enclosed by a front porch area, which they saw Byrd
enter. Notes of Testimony, 10/8/2014, at 30-32; 35-36. Neither Beulah
Keslar nor Lynn Keslar witnessed Byrd enter Ritenour’s front door because
the enclosure obstructed their view. Id. However, viewing all of the facts,
including their testimony, in a light most favorable to the Commonwealth, it
was reasonable to conclude that Byrd entered the interior of Ritenour’s
house after entering the enclosed front porch.



                                           -2-
J-S20035-15



       On September 18, 2013, Officer Broadwater visited Byrd at his home

in White, Pennsylvania.         Officer Broadwater informed Byrd that he was

conducting an investigation regarding Ritenour and asked Byrd if he had any

information.     According to Officer Broadwater, Byrd asserted that he was

present at Ritenour’s residence on September 1, 2013, and that “[h]e saw

some money sitting on the table and thumbed through it.”                        Notes of

Testimony (“N.T.”), 10/8/2014, at 59-60. Byrd also told Officer Broadwater

that “nobody was home at the time he was at the house,” and that “he took

a couple twenties but could not remember how much it was.” Id.

       Officer Broadwater returned to Byrd’s residence on September 20,

2013, to obtain a written statement from Byrd. Byrd knowingly and freely

provided Officer Broadwater with a non-custodial written statement, which

detailed   the    following    account    of   his   visit   to   Ritenour’s   house   on

September 1, 2013:

       I pulled into [Ritenour’s] driveway, knocked on [his] door
       because on the day my Great Aunt Shirley passed away I called
       to check on Judy [Ritenour] and she didn’t sound good. So I
       was there to check on her. When she didn’t answer[,] I walked
       to [Ritenour’s son’s trailer] [and] knocked and yelled figuring
       something was wrong. I walked back to [Ritenour’s house] and
       knocked and yelled again[,] and whenever I was leaving the
       porch I picked up a [twenty-dollar bill] from the right side of the
       deep freezer. I assumed I dropped it from the side of my
       cigarette pack[,] and then I left the place and came home.[3]

____________________________________________


3
     Byrd’s non-custodial written statement was read into evidence,
verbatim, at trial, by Officer Broadwater.



                                           -3-
J-S20035-15



Id. at 63.

       On November 11, 2013, charges were filed against Byrd.        Byrd was

arrested on November 14, 2013.

       After a two-day jury trial, Byrd was convicted on October 9, 2014, of

burglary, criminal trespass, and theft by unlawful taking of movable

property. On October 15, 2014, Byrd was sentenced to one to two years’

imprisonment and ordered to pay Ritenour forty dollars in restitution. Byrd

did not file a post-sentence motion.

       On October 23, 2014, Byrd simultaneously filed a notice of appeal and

his concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).4      On December 9, 2014, the trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a) in response to Byrd’s concise statement.

       Byrd raises the following issues on appeal:

____________________________________________


4
       Apparently unaware that Byrd already had filed a concise statement of
the errors complained of on appeal pursuant to Pa.R.A.P. 1925, on
November 5, 2014, the trial court directed Byrd to file his concise statement,
which he previously had filed on October 23, 2014. This Court has indicated
in prior cases, if by implication, that the premature filing of a Rule 1925(b)
statement has no negative consequence when the trial court addresses the
issues contained in that statement. Cf. Commonwealth v. Smith, 955
A.2d 391, 393 (Pa. Super. 2008) (limiting the Commonwealth to issues
included in its Rule 1925(b) statement when the Commonwealth filed it
without being ordered to do so and the trial court restricted its review to the
issues raised therein).       Because the trial court clearly prepared its
Rule 1925(a) opinion with the benefit of Byrd’s statement, we find no
impediment to review. However, because a trial court’s decision to seek
such a statement is discretionary, we advise counsel to await such an order
before filing his concise statement in the future.



                                           -4-
J-S20035-15


       1) Did the Court err in permitting the Commonwealth to
          introduce [Byrd’s] statement over defense counsel’s objection
          based on corpus [delicti] when no evidence of [Byrd] or
          anyone else committing a crime had been introduced?

       2) Did the Commonwealth fail to establish beyond a reasonable
          doubt that [Byrd] ever entered the unoccupied residence at
          any time as required of the crime of burglary and criminal
          trespass?

       3) Did the Commonwealth fail to establish beyond a reasonable
          doubt that [Byrd] took any money from the residence in
          question?

Brief for Byrd at 7 (capitalization omitted; italics added).

       In his first issue, Byrd argues that the trial court misapplied the corpus

delicti rule when it “permitted the introduction of [Byrd’s] statements

without evidence of an actual crime.” Id. at. 12. In the instant case, Byrd

provided Officer Broadwater with two separate statements: a verbal

statement on September 18, 2013, and a written statement on September

20, 2013. In his brief, however, Byrd does not indicate whether he wishes

to challenge a specific statement or both statements pursuant to the corpus

delicti rule.5     Notably, both statements that Byrd provided to Officer

Broadwater were inculpatory. For these reasons, we review the applicability

of   the   corpus     delicti   rule   to      both   of   Byrd’s   statements.   See

Commonwealth v. Verticelli, 706 A.2d 820, 824 (Pa. 1998), abrogated on

other grounds by Commonwealth v. Taylor, 831 A.2d 587 (Pa. 2003)
____________________________________________


5
       Byrd’s counsel raised objections during trial pursuant to the corpus
delicti rule regarding both the September 18 and September 20, 2013
statements. N.T., 10/8/2014, at 58, 61.



                                            -5-
J-S20035-15



(holding that only inculpatory statements of an accused are subject to the

corpus delicti rule).

      Our standard of review for a challenge to the corpus delicti rule is well

settled:

      The corpus delicti rule is designed to guard against the hasty and
      unguarded character which is often attached to confessions and
      admissions and the consequent danger of a conviction where no
      crime has in fact been committed. The corpus delicti rule is a
      rule of evidence. Our standard of review on appeals challenging
      an evidentiary ruling of the trial court is limited to a
      determination of whether the trial court abused its discretion.
      The corpus delicti rule places the burden on the prosecution to
      establish that a crime has actually occurred before a confession
      or admission of the accused connecting him to the crime can be
      admitted. The corpus delicti is literally the body of the crime; it
      consists of proof that a loss or injury has occurred as a result of
      the criminal conduct of someone. The criminal responsibility of
      the accused for the loss or injury is not a component of the rule.
      The historical purpose of the rule is to prevent a conviction
      based solely upon a confession or admission, where in fact no
      crime has been committed.            The corpus delicti may be
      established by circumstantial evidence. Establishing the corpus
      delicti in Pennsylvania is a two-step process. The first step
      concerns the trial judge’s admission of the accused’s
      statements[,] and the second step concerns the fact[-]finder’s
      consideration of those statements. In order for the statement to
      be admitted, the Commonwealth must prove the corpus delicti
      by a preponderance of the evidence. In order for the statement
      to be considered by the fact[-]finder, the Commonwealth must
      establish the corpus delicti beyond a reasonable doubt.

Commonwealth v. Young, 904 A.2d 947, 956 (Pa. Super. 2006) (internal

quotation marks omitted; emphasis in original) (quoting Commonwealth v.

Rivera, 828 A.2d 1094, 1103-04 & n.10 (Pa. Super. 2003)).




                                     -6-
J-S20035-15



        After carefully reviewing the record, we find no abuse of discretion.

Prior    to   the   fact-finder’s   consideration    of    Byrd’s   statements,   the

Commonwealth produced ample evidence to establish beyond a reasonable

doubt the crimes of burglary, criminal trespass, and theft by unlawful taking

of movable property.

        A person commits a burglary when, “with the intent to commit a crime

therein,” he “enters a building or occupied structure . . . in which at the time

of the offense no person is present,” 18 Pa.C.S. § 3502(a)(2), unless the

building is abandoned, the premises are open to the public, or he is licensed

or privileged to enter. 18 Pa.C.S. § 3502(b). A person is guilty of criminal

trespass if, “knowing that he is not licensed or privileged to do so, he . . .

enters, gains entry by subterfuge[,] or surreptitiously remains in any

building or occupied structure.”       18 Pa.C.S. § 3503(a)(1)(i).      An occupied

structure is defined as “[a]ny structure, vehicle or place adapted for

overnight accommodation of persons, or for carrying on business therein,

whether or not a person is actually present.” 18 Pa.C.S. § 3501.

        A person commits theft by unlawful taking of movable property when

he “unlawfully takes, or exercises unlawful control over, movable property of

another with intent to deprive him thereof.” 18 Pa.C.S. § 3921(a). Movable

property is defined as “[p]roperty the location of which can be changed.”

18 Pa.C.S. § 3901.        Property of another is defined, in relevant part, as

“property in which any person other than the actor has an interest which the

actor is not privileged to infringe.”          Id.        Deprivation is defined as

                                         -7-
J-S20035-15



“dispos[ing] of the property so as to make it unlikely that the owner will

recover it.” Id.

      First, Ritenour’s son, Ronald, testified that Byrd was his cousin and a

close friend that once stayed with the Ritenour family “for a long time.” N.T.

at 10-12. Ronald also testified that Ritenour generally locked the front door

to his home, but the location of a spare key to that door was “common

knowledge.” Id. at 23-24. Additionally, Ritenour testified that he locked his

front door before he left his residence on September 1, 2013, and that

nobody, other than he and his wife, had permission to enter their home. Id.

at 42, 47. Beulah Keslar and Lynn Keslar both testified that they witnessed

Byrd enter Ritenour’s enclosed porch on September 1, 2013, while Ritenour

was out of the house. Id. at 30-32; 35-36.

      Ritenour testified that $677.02 remained in his unlocked safe before

he left for the hospital on September 1, 2013.      Id. at 43.   Shortly after

September 1, Ritenour discovered that his money was missing and learned

that Ritenour was present at his home on September 1, 2013. Id. at 37,

47. Accordingly, Ritenour and Byrd were the only people to enter his home

on September 1, 2013. Id. at 47. Further, Judy Ritenour, who remained in

the hospital between September 1 and September 9, 2013, was the only

person other than Ritenour who had permission to enter the safe. Id. at 47.

Thus, Byrd was the only person present at Ritenour’s home on September 1,

2013, who lacked permission to enter the safe.




                                    -8-
J-S20035-15



     All of the above-mentioned testimony was adduced before Officer

Broadwater testified regarding Byrd’s statements. This body of testimony,

viewed independently of Byrd’s statement, clearly establishes each of the

necessary     elements     of   the    charged    crimes.       Consequently,      the

Commonwealth established the corpus delicti of the charged crimes beyond

a reasonable doubt before Officer Broadwater testified regarding Byrd’s

statements. Thus, Byrd’s statements to Officer Broadwater were admissible

and the jury properly considered those statements in reaching its verdict.

     In     his   second   issue,     Byrd   challenges   the   sufficiency   of   the

Commonwealth’s evidence to convict him of burglary and criminal trespass.

See Brief for Byrd at 13. When examining a challenge to the sufficiency of

evidence, we apply the following standard of review:

     The standard we apply . . . 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[’s]. 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
     [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.



                                         -9-
J-S20035-15



Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (quoting

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa. Super. 2005)).

Circumstantial evidence itself is sufficient to prove any element or all of the

elements of burglary and criminal trespass. Commonwealth v. Pettyjohn,

64 A.3d 1072, 1077-78 (Pa. Super. 2013).

       Byrd argues that the Commonwealth failed to prove beyond a

reasonable doubt that he entered Ritenour’s residence, a necessary element

to prove burglary. See 18 Pa.C.S. § 3502(a)(2). Although Byrd does not

dispute that he was present at Ritenour’s residence6 on September 1, 2013,

he maintains that he only entered the enclosed front porch area in order to

knock on the front door. Brief for Byrd at 13-14. .

       According to Officer Broadwater, in Byrd’s September 18, 2013 oral

statement, he told Officer Broadwater that he entered Ritenour’s unoccupied

residence on September 1, 2013.                N.T. at 59.   Byrd also told Officer

Broadwater that he took some money that was sitting on a table in

Ritenour’s residence. Id. Because these statements standing alone provide

sufficient evidence to establish that Byrd met the principal elements of

burglary and trespass, Byrd’s claim necessarily hinges upon the argument

that the statements he gave to Officer Broadwater were inadmissible.
____________________________________________


6
       Byrd concedes that Ritenour’s residence constitutes a building or
occupied structure pursuant to 18 Pa.C.S. § 3502 (a)(2). Brief for Byrd
at 13.




                                          - 10 -
J-S20035-15



However, Byrd’s statements were admissible, and the jury properly

considered those statements in reaching its verdict.

     Consequently, we need only to determine whether Byrd was licensed

or privileged to enter Ritenour’s residence on September 1, 2013. To that

end, Ritenour testified that he locked his front door before he left his

residence on September 1, 2013, and that he did not give Byrd permission

to enter his home. Id. at 42, 47. Viewing all of 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 burglary and

criminal trespass, including the lack of a license or privilege, beyond a

reasonable doubt.

     In his final issue, Byrd challenges the sufficiency of the evidence

developed by the Commonwealth to convict him of theft by unlawful taking

of movable property.      Id. at 15.     Specifically, Byrd argues that the

statements he made to Officer Broadwater should not have been introduced

at trial, and, without those statements, “there is no other evidence that he

took the money from the Ritenour residence.” Id.

     Circumstantial evidence is sufficient to establish all of the elements of

unlawful taking of movable property, including intent. Commonwealth v.

Lloyd, 509 A.2d 868, 870 (Pa. Super. 1986). Once more, Byrd’s argument

clearly hinges upon the exclusion of his inculpatory statements.    See Brief

for Byrd at 15. Byrd’s statements, which were admissible, viewed in tandem

with the corroborating witness testimony, provide sufficient evidence to

                                    - 11 -
J-S20035-15



support the jury’s finding that Byrd intended to deprive Ritenour of his

property. For these reasons, Byrd’s third claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




                                    - 12 -
