J-S06037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                   PENNSYLVANIA
                                 :
               v.                :
                                 :
                                 :
    JERVE B. HAMILTON,           :
                                 :
                   Appellant     :                No. 1450 EDA 2017


           Appeal from the Judgment of Sentence February 28, 2017
               in the Court of Common Pleas of Monroe County,
             Criminal Division at No(s): CP-45-CR-0002717-2015

BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED MAY 09, 2018

        Jerve B. Hamilton (“Hamilton”) appeals from the judgment of sentence

imposed following his convictions of criminal trespass and criminal mischief. 1

We affirm.

        On November 19, 2015, just before 9:00 a.m., Pocono Mountain

Regional Police Officer Maurice Vaccaro (“Officer Vaccaro”) was dispatched to

6379 Baltic Terrace in the A Pocono Country Place residential community,

based on a report of a burglary in progress.      After two additional officers

arrived on the scene, Officer Vaccaro approached the house. Officer Vaccaro

noticed that the doorjamb had been “busted” to force entry through the front

door.    The officers announced their presence, and, receiving no response,

entered the house.
____________________________________________


1   18 Pa.C.S.A. §§ 3503(a)(1)(ii), 3304.
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       The officers observed extensive water damage to the first floor of the

house. Water was pouring down from the walls and ceiling, and the kitchen

was flooded. The officers then went upstairs, where they observed Hamilton,

soaking wet, and lying in the garden tub in the master bathroom.

       Officer Vaccaro noticed that the side panel of the tub had been ripped

into pieces. Officer Vaccaro also identified a broken pipe, from which water

was flowing over the floor of the master bathroom.           The officers asked

Hamilton to get out of the tub several times, but he did not respond. The

three officers lifted Hamilton out of the tub and placed him in custody. The

officers also called for an ambulance, and Hamilton was transported to Pocono

Medical Center.

       Hamilton was charged with one count of burglary, and two counts each

of criminal trespass and criminal mischief. Following a jury trial, Hamilton was

found guilty of one count each of criminal trespass and criminal mischief, 2 and

not guilty of burglary. The trial court deferred sentencing and ordered a pre-

sentence investigation report.           The trial court subsequently sentenced

Hamilton to two concurrent terms of 18 to 36 months in prison, and ordered

Hamilton to pay court costs and restitution to Classic Quality Homes3 in the

amount of $14,000.


____________________________________________


2   The Commonwealth withdrew one count of each charge.

3The house located at 6379 Baltic Terrace was newly built by Classic Quality
Homes.

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      Hamilton filed a timely Post-Sentence Motion, in which he sought

permission to amend his Motion upon the receipt of trial transcripts. The trial

court directed that any additional post-sentence motion be filed by November

4, 2016. Hamilton filed an Amended Post-Sentence Motion on November 4,

2016, asserting, inter alia, that the prior record score applied during

sentencing was incorrect because one of his prior convictions had been

overturned.   Following a hearing, the trial court agreed that Hamilton’s

overturned conviction should not have been considered in calculating his prior

record score, and therefore, the prior record score applied during sentencing

was incorrect. The trial court vacated Hamilton’s judgment of sentence and

scheduled a resentencing hearing. The trial court dismissed the remaining

claims in Hamilton’s Post-Sentence Motion without prejudice.

      Following a hearing, the trial court resentenced Hamilton to two

concurrent terms of 16 to 32 months in prison, with credit for time served,

and ordered Hamilton to pay court costs and restitution to Classic Quality

Homes in the amount of $14,000.       Hamilton filed a Post-Sentence Motion,

which the trial court denied following a hearing. Hamilton filed a timely Notice

of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

      On appeal, Hamilton raises the following questions for our review:

      1. Did the [trial] court abuse its discretion and commit reversible
      error by allowing the jury instruction regarding voluntary
      intoxication to be given to the jury, where there was no evidence
      entered that documented [that Hamilton] was under the
      influence?

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      2. Did the [trial] court abuse its discretion and commit reversible
      error by not setting aside the verdict of criminal trespass –
      breaking into structure because it was against the sufficiency of
      the evidence?

      3. Did the [trial] court abuse its discretion and commit reversible
      error by not setting aside the verdict of criminal trespass –
      breaking into structure because it was against the weight of the
      evidence?

      4. Did the [trial] court abuse its discretion and commit reversible
      error when the [trial] court awarded restitution where there were
      no invoices for the purchase of repair items provided[,] and
      without the invoices the amount requested and awarded cannot
      be substantiated?

Brief for Appellant at 4 (issues renumbered).

      In his first claim, Hamilton contends that the trial court erred by

instructing the jury on voluntary intoxication.        Id. at 9.     Hamilton

acknowledges his testimony that he had taken some medication, but argues

that there was no evidence introduced at trial to document his level of

intoxication.   Id. at 9-10.   Additionally, Hamilton states that “[w]hen the

Commonwealth tried to have [Hamilton] admit that there was cocaine in his

system, the trial court sustained the objection.”    Id. at 10-11.   Hamilton

claims that the instruction was prejudicial because it “took away the decision

making of the trier of fact to make the determination if [Hamilton] was

intoxicated or having a medical episode.” Id. at 11.

             When reviewing a challenge to jury instructions, the
      reviewing court must consider the charge as a whole to determine
      if the charge was inadequate, erroneous, or prejudicial. The trial
      court has broad discretion in phrasing its instructions, and may
      choose its own wording so long as the law is clearly, adequately,
      and accurately presented to the jury for its consideration. A new

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       trial is required on account of an erroneous jury instruction only if
       the instruction under review contained fundamental error, misled,
       or confused the jury.

Commonwealth v. Fletcher, 986 A.2d 759, 792 (Pa. 2009).

       The Commonwealth states, and our review of the record confirms, that

Hamilton did not object to the jury instruction prior to deliberations. Thus, his

challenge to the voluntary intoxication instruction is waived. See Pa.R.Crim.P.

647(C) (providing that “[n]o portions of the charge nor omissions from the

charge may be assigned as error, unless specific objections are made thereto

before the jury retires to deliberate. All such objections shall be made beyond

the hearing of the jury.”); see also Commonwealth v. Moury, 992 A.2d

162, 178 (Pa. Super. 2010) (stating that “[a] specific and timely objection

must be made to preserve a challenge to a particular jury instruction. Failure

to do so results in waiver.” (citation omitted)).4

       In his second claim, Hamilton argues that there was insufficient

evidence to support his criminal trespass conviction. Brief for Appellant at 12.

Hamilton concedes that there was evidence that the front door had been

forced open.     Id. at 13.     However, Hamilton argues that no footprints or

fingerprints had been matched to him, and no witnesses saw him breaking

into the house. Id.


____________________________________________


4 Even if Hamilton had raised a timely objection to the voluntary intoxication
instruction, we would conclude that Hamilton’s claim is without merit, for the
reasons stated by the trial court in its Rule 1925(a) Opinion. See Trial Court
Opinion, 7/5/17, at 5-6.

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             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 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 finder 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. Furness, 153 A.3d 397, 401 (Pa. Super. 2016) (citation

and brackets omitted).

      A person commits the offense of criminal trespass “if, knowing that he

is not licensed or privileged to do so, he breaks into any building or occupied

structure or separately secured or occupied portion thereof.” 18 Pa.C.S.A.

§ 3503(a)(1)(ii). A person “break[s] into” a building or occupied structure if

he “gain[s] entry by force, breaking, intimidation, unauthorized opening of

locks, or through an opening not designed for human access.”                Id.

§ 3503(a)(3).

      At trial, Officer Vaccaro testified that just before 9:00 a.m. on November

19, 2015, he was dispatched to 6379 Baltic Terrace in A Pocono Country Place

based on a report of a burglary in progress.     See N.T., 7/7/16, at 12-13.

When Officer Vaccaro arrived at the scene, he made contact with the individual


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who had called 911, a construction worker who was working on another

residence in the community, but who was familiar with the house. See id. at

13-14. According to Officer Vaccaro, the individual told Officer Vaccaro that

he had noticed that the front door of the house was open, and a man was

lying on the bathroom floor.       See id. at 14.    Additionally, Officer Vaccaro

testified that A Pocono Country Place security guards were at the scene to

make sure that no one exited the house.          See id. at 28.   Officer Vaccaro

waited for additional officers to arrive, then approached the house. See id.

         Officer Vaccaro “noticed [] that there was forced entry to the front door.

The doorjamb was busted.”         Id.   Officer Vaccaro testified that there was

extensive water damage to the first floor of the house; water was actively

pouring down from the walls and ceiling; and the kitchen was entirely flooded.

See id. at 16. The officers then proceeded to the upstairs master bathroom,

where they found Hamilton lying in the garden tub, soaking wet, with his pants

pulled down to his ankles. See id. at 18-19. Officer Vaccaro stated that the

side panel of the garden tub had been ripped off and was in pieces, and there

was a broken pipe from which water was flowing onto the floor. See id. at

19. Officer Vaccaro testified that he and the other officers asked Hamilton

questions, and directed him to get out of the tub, but he did not respond. See

id.   After multiple commands to get out of the tub went unanswered, the

officers lifted Hamilton out of the tub and placed him in custody. See id. The

officers also found Hamilton’s pit bull at the house, without a leash. See id.

at 29.

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      David Wengerd (“Wengerd”), the president and owner of Classic Quality

Homes, testified that the house had been completed about a week prior to the

closing date (which was originally scheduled to occur a few days after the

break-in), and was move-in ready when he had last viewed it. See id. at 34.

Wengerd also testified that he did not allow Hamilton into the house at 6379

Baltic Terrace on November 19, 2015. See id. at 41.

      Upon review, we conclude that the evidence of record, and the

reasonable inferences drawn therefrom, viewed in the light most favorable to

the Commonwealth as the verdict winner, was sufficient to sustain Hamilton’s

conviction for criminal trespass. The evidence presented at trial demonstrated

that the doorjamb on the front door of the house had been broken; no one

had left the house since the construction worker called 911 to report a burglary

in progress; Hamilton was found inside the tub of the master bathroom,

unresponsive and soaking wet; and the pipe next to the tub where Hamilton

was found was broken and water was leaking out of it. Thus, “[t]he jury could

reasonably conclude, based on the direct and circumstantial evidence

introduced and undisputed at trial, that [Hamilton] broke into the residence,

and did so knowing that he was not licensed or privileged to do so.” Trial

Court Opinion, 7/5/17, at 8. Thus, Hamilton is not entitled to relief on this

claim.

      In his third claim, Hamilton argues that his criminal trespass conviction

is against the weight of the evidence. Brief for Appellant at 14-15. Hamilton


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again claims that no footprints or fingerprints had been matched to him, and

no witnesses saw him breaking into the house. Id. at 15.

      As this Court has recognized,

      [a]ppellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying questions 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 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. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)

(citation omitted); see also Commonwealth v. Smith, 146 A.3d 257, 265

(Pa. Super. 2016) (stating that “[i]n order for an appellant to prevail on a

challenge to the weight of the evidence, the evidence must be so tenuous,

vague and uncertain that the verdict shocks the conscience of the court.”

(citation omitted)).

      Here, the jury evaluated the evidence and determined that Hamilton’s

actions constituted a criminal trespass. Although Hamilton now claims that

there was a lack of certain physical evidence, it was for the jury to weigh the

evidence and determine his guilt beyond a reasonable doubt, based on the

evidence presented at trial. See Talbert, 129 A.3d at 545 (stating that “[t]he

weight of the evidence is exclusively for the finder of fact, who is free to

believe all, none or some of the evidence and to determine the credibility of


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the witnesses.” (citation and brackets omitted)).      Because the evidence

supports the jury’s verdict, and we discern no abuse of discretion by the trial

court, this claim is without merit.

      In his fourth claim, Hamilton asserts that the trial court erred by

ordering the payment of restitution where the invoice supplied by Wengerd

was not specific enough to substantiate the necessary repairs.        Brief for

Appellant at 7. Hamilton claims that the amounts supplied by Wengerd reflect

the amounts that a homeowner would pay a contractor to complete the

repairs, and that, because Wengerd is a contractor, “the amount requested is

excessive and … gives the victim a profit over the actual damages.” Id. at 8.

             In the context of criminal proceedings, an order of
      restitution is not simply an award of damages, but, rather, a
      sentence. An appeal from an order of restitution based upon a
      claim that a restitution order is unsupported by the record
      challenges the legality, rather than the discretionary aspects, of
      sentencing. The determination as to whether the trial court
      imposed an illegal sentence is a question of law; our standard of
      review in cases dealing with questions of law is plenary.

Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa. Super. 2012)

(citations and quotation marks omitted); see also Commonwealth v.

Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010). An illegal sentence of

restitution must be vacated. Commonwealth v. Gentry, 101 A.3d 813, 817

(Pa. Super. 2014).

      The imposition of restitution, as part of a defendant’s sentence, is

governed by 18 Pa.C.S.A. § 1106. Section 1106 provides, in relevant part, as

follows:


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     (a) General rule.—Upon conviction for a crime wherein property
     has been stolen, converted or otherwise unlawfully obtained, or
     its value substantially decreased as a direct result of the crime, or
     wherein the victim suffered personal injury directly resulting from
     the crime, the offender shall be sentenced to make restitution in
     addition to the punishment prescribed therefor.

                                     ***

     (c) Mandatory restitution.—

        (1) The court shall order full restitution:

           (i) Regardless of the current financial resources of the
           defendant, so as to provide the victim with the fullest
           compensation for the loss. …

                                     ***

        (2) At the time of sentencing the court shall specify the amount
        and method of restitution. In determining the amount and
        method of restitution, the court:

           (i) Shall consider the extent of injury suffered by the victim,
           the victim’s request for restitution as presented to the
           district attorney … and such other matters as it deems
           appropriate.

                                     ***

        (4)(i) It shall be the responsibility of the district attorneys of
        the respective counties to make a recommendation to the court
        at or prior to the time of sentencing as to the amount of
        restitution to be ordered. This recommendation shall be based
        upon information solicited by the district attorney and received
        from the victim.

18 Pa.C.S.A. § 1106(a), (c). Additionally,

     restitution may be imposed only for those crimes to property or
     person where the victim suffered a loss that flows from the
     conduct that forms the basis of the crime for which the defendant

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     is held criminally accountable. … Because restitution is a sentence,
     the amount ordered must be supported by the record; it may not
     be speculative or excessive. The amount of a restitution order is
     limited by the loss or damages sustained as a direct result of [the]
     defendant’s criminal conduct and by the amount supported by the
     record.

Commonwealth v. Poplawski, 158 A.3d 671, 674 (Pa. Super. 2017)

(citation and brackets omitted).

     At trial, Wengerd testified that the house at 6379 Baltic Terrace was

newly built, and move-in ready when he had last viewed it in November 2015.

See N.T., 7/7/16, at 33-34.    Wengerd testified that when he was able to

inspect the house following the incident, he observed water damage to the

bathroom rug and vanities, as well as the kitchen cabinets. See id. at 36.

According to Wengerd, the water had come from the master bathroom, near

the tub. See id. Wengerd stated that the pipes were torn apart. See id.

Wengerd also noted damage to the front door.        See id. at 37.   Wengerd

affirmed that the photographs presented by the Commonwealth accurately

depicted the damages he observed on November 19, 2015. See id.

     Wengerd testified that, as the president and owner of Classic Quality

Homes, he was responsible for the repairs, because the house had been sold,

and “everything had to be perfect for the home buyer.” Id. at 38. Wengerd

testified that the rugs were torn out and treated for mold, and the plumbing,

vanities and front door were replaced.       See id. at 37-38.   Wengerd also

provided an estimate for the damages and repair costs, totaling $14,000,

which was admitted into evidence at trial. See id. at 39 (wherein the trial

court admitted the “estimate” into evidence as Commonwealth’s Exhibit 11).

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Wengerd testified that he had written the estimate after the repairs had been

completed. See id. at 44. Wengerd also described the estimate as “very

conservative,” and stated that the repairs cost approximately $20,000. Id.

at 40. Wengerd testified that the repairs were completed before December 4,

2015. See id.

       The trial court reviewed Wengerd’s testimony, as well as the testimony

of Officer Vaccaro regarding the damage he noticed upon entering the house,

and stated that it had imposed restitution “based on the property losses

directly resulting from criminal trespass – breaking into a structure.” Trial

Court Opinion, 7/5/17, at 4 (capitalization omitted).      Additionally, the trial

court specifically determined that restitution in the amount of $14,000 was

supported by the record.        Id.    Upon review, we agree that the amount of

restitution imposed is adequately supported by the record before us,5 and is

not illegal. Thus, Hamilton is not entitled to relief on this claim.

       Judgment of sentence affirmed.




____________________________________________


5 However, we note that the transcript from the original sentencing hearing is
not contained in the electronic record certified to this Court.                See
Commonwealth v. Lesko, 15 A.3d 345, 410 (Pa. 2011) (explaining that it
is the responsibility of the appellant, not the trial court, to provide a complete
record for review, including any necessary transcripts).          Additionally, our
review of the certified record reveals that Hamilton did not request
transcription of the original sentencing hearing. Accordingly, our review is
necessarily limited to the trial testimony regarding repair costs, and the
analysis set forth by the trial court in its Rule 1925(a) Opinion.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/18




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