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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    FORREST JAMES WILSON,

                             Appellant                No. 866 EDA 2017


           Appeal from the Judgment of Sentence February 28, 2017
               In the Court of Common Pleas of Bucks County
              Criminal Division at No: CP-09-CR-0005263-2016

BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                            FILED APRIL 16, 2018

        Appellant Forrest James Wilson appeals from the February 28, 2017

judgment of sentence of 1-2 years’ imprisonment for criminal trespass1 and a

consecutive term of 3-12 months’ imprisonment for possession of drug

paraphernalia.2 Appellant argues that the evidence was insufficient to sustain

his conviction. We affirm.

        The following evidence was adduced during trial.   Dawn Catrimbone

owned 819 Cedar Avenue in Bristol Township, Bucks County, Pennsylvania.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3503(a)(1), (3). The jury found Appellant guilty of both
subsections, and the trial court sentenced Appellant to concurrent terms of 1-
2 years’ imprisonment for these offenses.

2   35 P.S. § 780-113(a)(32).
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The property was a rental property which had four apartment units. Appellant

rented unit No. 4 from Ms. Catrimbone.       Prior to January 2016, Appellant

stopped paying rent for a few months. As a result, eviction proceedings were

instituted against Appellant, and a magisterial district judge issued an eviction

order on January 12, 2016. Appellant failed to appear for the eviction hearing,

but the order was posted at the premises on the same date. On January 25,

2016, Appellant was evicted, and Ms. Catrimbone’s husband changed the lock

on the door.

      On May 4, 2016, Officer Jason Mancuso of the Bristol Township Police

Department saw Appellant at the district court that had issued the eviction

order. Officer Mancuso informed Appellant that he was not to return to 819

Cedar Avenue. He also heard the Magisterial District Judge inform Appellant

not to be at that property, because the eviction order was still in place.

      On May 6, 2016, at approximately 1:08 p.m., Officer Patrick

Kitchenenman of the Bristol Township Police Department responded to 819

Cedar Lane, Apartment 4, for the report of an unwanted person. Appellant

was at the property. Officer Kitchenenman met Dawn Catrimbone at the

property.   He and Officer Kelli Fronk, also of the Bristol Township Police

Department, went with Ms. Catrimbone to Apartment 4. Officer Kitchenenman

knocked several time but there was no response. Ms. Catrimbone indicated

that the lock had been changed since her husband had last changed it, and

she did not have a key.


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      Ms. Catrimbone asked the officers to force open the door.            Officer

Kitchenenman opened the door with one kick and found Appellant inside the

apartment, lying on a couch. The officer arrested Appellant and found drug

paraphernalia (a vial and straw) and .69 grams of marijuana on Appellant’s

person.   Officer Fronk recovered other items of drug paraphernalia in the

apartment—specifically, a brown pipe on the television next to Appellant’s

glasses, another pipe on the floor near the couch along with a vial containing

a white substance, and a grinder on the couch. Appellant admitted to using

the grinder, inhaling powered cocaine through a straw and smoking

marijuana.

      A jury found Appellant guilty of the foregoing offenses.       Following

sentencing, Appellant filed a timely notice of appeal, and both Appellant and

the trial court complied with Pa.R.A.P. 1925. Appellant’s sole argument in this

appeal is that the evidence was insufficient to support his convictions.

      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record “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).
      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.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

Commonwealth v. Rahman, 75 A.3d 497, 500-01 (Pa. Super. 2013).


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     The Crimes Code defines criminal trespass as follows:

     (1) A person commits an offense [of criminal trespass] 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.

                                    ****

     (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.A. § 3503(a)(1), (3).

     The evidence was sufficient to sustain Appellant’s convictions under

Section 3503(a)(1)(i). The evidence established that Appellant knew he had

been evicted from the apartment. The constables, along with his landlord’s

husband, served him with the eviction notice. He unhappily left the apartment

while the constables were present, and the landlord’s husband changed the

lock with the constables’ assistance.   Only two days before Appellant was

found on the property, Officer Mancuso told him that he was not permitted to

be on the premises or in the apartment. The magisterial district judge also

informed him that the eviction order was still valid. He had previously been

told that he would be arrested if found on the property. Thus, the evidence

shows that he gained entry into the apartment by subterfuge and

surreptitiously remained there until he was found inside on May 6, 2016.


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      The evidence also was sufficient to sustain Appellant’s conviction under

Section 3503(a)(1)(ii). “Breaking into” a structure includes the unauthorized

opening of a lock.   The evidence established that the landlord’s husband

changed the lock on the date of Appellant’s eviction in January 2016. When

the police responded to the apartment in May, they had to force open the door

because the lock had been changed. This circumstantial evidence establishes

that Appellant, after his eviction, broke into the apartment by an unauthorized

opening of the lock on the door and/or by changing the lock on the door.

      Relying on his own testimony, Appellant argues that the landlord

permitted him to re-enter the apartment. This argument fails, because we

are required to construe the evidence in the light most favorable to the

Commonwealth. Viewed in this light, the evidence establishes that Appellant

did not have permission to re-enter the apartment.

      The crime of possession of drug paraphernalia prohibits:

      The use of, or possession with intent to use, drug paraphernalia
      for the purpose of planting, propagating, cultivating, growing,
      harvesting, manufacturing, compounding, converting, producing,
      processing, preparing, testing, analyzing, packing, repacking,
      storing, containing, concealing, injecting, ingesting, inhaling or
      otherwise introducing into the human body a controlled substance
      in violation of this act.

35 P.S. §780-113(a)(32). A person can be found guilty of possessing drug

paraphernalia if he is found in actual possession of or has constructive

possession of paraphernalia.

      Constructive possession is an inference arising from a set of facts
      that possession of the contraband was more likely than not.

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         [Constructive possession is] conscious dominion [which is] the
         power to control the contraband and the intent to exercise that
         control[.] [C]onstructive possession may be established by the
         totality of the circumstances.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012).

         Appellant does not contest that the items were drug paraphernalia.

Instead, he contends that there was no evidence that he intended to possess

the contraband or that the paraphernalia did not belong to someone else. The

evidence, however, established Appellant’s guilt for possession of the

paraphernalia.     Appellant was the sole person in the apartment where the

paraphernalia was found.         He also had marijuana and other drug

paraphernalia, including a vial and a straw, on his person.      He admitted

smoking marijuana, ingesting cocaine and using the grinder found on the

couch where police found Appellant lying. A pipe was found on the floor a

short distance from the couch, and another pipe was found next to Appellant’s

glasses on a television several feet from the couch.      Thus, the evidence

showed that Appellant possessed, either actually or constructively, the drug

paraphernalia in the apartment.

         Accordingly, Appellant’s challenge to the sufficiency of the evidence

fails.

         Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/18




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