J-S25008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    DEVON R. WEAVER

                             Appellant                 No. 999 MDA 2018


       Appeal from the Judgment of Sentence Entered February 28, 2018
                 In the Court of Common Pleas of Berks County
               Criminal Division at No: CP-06-CR-0005776-2017


BEFORE: STABILE, MURRAY, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                              FILED JUNE 25, 2019

        Appellant, Devon R. Weaver, appeals pro se1 from the February 28,

2018 judgment of sentence imposing an aggregate 32 months to 7 years of

incarceration for one count each of burglary and criminal trespass. 2       Also

pending before this Court is an application for relief in which Appellant

requests permission to proceed in forma pauperis because he cannot afford to



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1  Appellant also proceeded pro se at trial. On three separate occasions, the
trial court confirmed that Appellant understood his right to counsel and
entered a knowing, intelligent, and voluntary waiver pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988). Waiver forms were
docketed on January 29, 2018, February 28, 2018, and April 16, 2018. We
also observe that criminal trespass is not a lesser-included offense of burglary.
Commonwealth v. Harrison, 663 A.2d 238, 240 (Pa. Super. 1995), appeal
denied, 674 A.2d 1067 (Pa. 1996).

2    18 Pa.C.S.A. §§ 3502 and 3503, respectively.
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print the requisite number of briefs. We affirm the judgment of sentence and

deny the application as moot.

      The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a)

opinion.:

            In October 2016, tenants were evicted from an apartment
      building in Reading, PA.     Once the eviction occurred, the
      management company had a ‘No Trespassing’ sign placed on the
      door and the locks were changed. In November 2017, the
      managers of the apartment building found that the apartment,
      which had been unoccupied for at least six weeks, had an
      occupant. When the apartment managers saw him, they asked
      him to leave and he did. They noticed that a window had been
      broken, so they boarded it up. A week later, the managers went
      back to that same apartment and saw the same unauthorized
      occupant, [Appellant]. It appeared to the managers at that time
      that [Appellant] had been using the kitchen, the electricity, and
      the heating in the apartment. The door to the apartment was
      locked when the managers arrived, but on inspection of the
      apartment, they noticed that the boarding that was over the
      broken window had been removed. The managers called the
      police who arrived a few minutes later. [Appellant] was then
      detained by the police.

Trial Court Opinion, 1/14/19, at 2 (pagination ours).

      On February 28, 2018, at the conclusion of a two-day trial, a jury found

Appellant guilty of the aforementioned offenses.        The trial court imposed

sentence immediately following trial. Appellant filed a timely post-sentence

motion on March 8, 2018. The trial court denied relief on May 29, 2018. This

timely appeal followed.

      Appellant asks us to consider the following assertions of error:

            1. Whether the Commonwealth established sufficiency of
               the evidence […] to sustain the verdict of guilty [burglary
               and criminal trespass]?

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              2. Whether the trial court erred and abused its discretion
                 and committed reversible error pursuant to Pennsylvania
                 Rule of Criminal Procedure 564, by allowing the
                 Commonwealth to argue uncharged crimes to the jury?

              3. Whether the Commonwealth erred and abused its
                 discretion by withholding exculpatory evidence from the
                 defense, favorable to [Appellant’s] actual innocence?

              4. Whether the Commonwealth erred and abused its
                 discretion and committed reversible error by allowing
                 perjured testimony to be presented to the jury?

Appellant’s Brief at Statement of Questions Involved.3

       We review a challenge to the sufficiency of the evidence as follows:

              When evaluating a sufficiency claim, our standard is
       whether, viewing all the evidence and reasonable inferences in the
       light most favorable to the Commonwealth, the factfinder
       reasonably could have determined that each element of the crime
       was established beyond a reasonable doubt. This Court considers
       all the evidence admitted, without regard to any claim that some
       of the evidence was wrongly allowed. We do not weigh the
       evidence or make credibility determinations. Moreover, any
       doubts concerning a defendant’s guilt were to be resolved by the
       factfinder unless the evidence was so weak and inconclusive that
       no probability of fact could be drawn from that evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010).

       Appellant was convicted of burglary pursuant to § 3503(a)(2) of the

Crimes Code, which provdes:

       (a) Offense defined.--A person commits the offense of burglary
       if, with the intent to commit a crime therein, the person:

                                           […]



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3 Appellant’s brief is not paginated until the argument section, which begins
with page one.

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           (2) enters a building or occupied structure, or separately
     secured or occupied portion thereof that is adapted for overnight
     accommodations in which at the time of the offense no person is
     present[.]

18 Pa.C.S.A. § 3502(a)(2).

     Likewise,   he    was   convicted   of   criminal   trespass   pursuant   to

§ 3503(a)(1)(ii), which provides:

     (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).

     Appellant argues the evidence was insufficient because Commonwealth

witness, Eric Dinh, the manager of the apartment complex, is the only person

who saw Appellant inside the apartment.          Appellant argues that Dinh’s

testimony is hearsay, and that Appellant’s conviction cannot stand solely on

hearsay from one witness.           Appellant’s Brief at 3.     Appellant cites

Commonwealth ex. rel. Buchanan v. Verbonitz, 581 A.2d 172 (Pa. 1990),

in which our Supreme Court held that a police officer’s hearsay testimony was

insufficient to make out a prima facie case against the defendant at a

preliminary hearing.    Verbonitz is not on point, inasmuch as that case

involved a preliminary hearing.      Moreover, Appellant fails to explain why

Dinh’s testimony is hearsay. Hearsay is an out-of-court statement offered in


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court to prove the truth of the matter asserted. Pa.R.E. 801. Dinh’s account

of finding Appellant in the apartment is not hearsay. Appellant does not claim

that Dinh recounted the statement of a non-testifying declarant. Thus, this

argument fails.

       Appellant also claims his conviction was based upon nothing other than

his mere presence at the scene, but this claim is inaccurate. As the trial court

recounted, Appellant was found inside an apartment, where he had no lawful

right to be, on two occasions. A window was broken on the first occasion, and

the boarding over the broken window was removed on the second occasion.

The record indicates that Appellant used hot water, electricity, and gas for

which he did not pay.         This evidence plainly establishes much more than

Appellant’s mere presence. Appellant’s argument lacks merit.

       In his second argument, Appellant appears to claim the trial court erred

in permitting the Commonwealth to discuss uncharged offenses in its closing

argument to the jury. Appellant’s Brief at 7-10. Confusingly, Appellant also

argues that the trial court erred in permitting the Commonwealth to amend

the criminal information. Appellant does not address any charge added to the

information, nor does he explain why the amendment was improper under

Pa.R.Crim.P.     564.4      Rather,    Appellant   appears   to   believe   that   the

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4  Rule 564 of the Pennsylvania Rules of Criminal Procedure governs
amendment of an information:




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Commonwealth should not have been permitted to discuss Appellant’s

unlawful use of electricity, hot water, and gas for cooking without charging

Appellant with theft of services.5

       Appellant’s argument is unfounded. The burglary statute requires the

Commonwealth to prove a defendant entered a building with an intent to

commit a crime therein. A defendant’s intent to commit a crime is sufficient;

the Commonwealth need not charge the intended crime or prove the

defendant committed it. See Commonwealth v. Franklin, 452 A.2d 797,

800 (Pa. Super. 1982) (noting it is not necessary for an information to specify

the crime a burglary defendant intended to commit). To convict Appellant of

burglary, the Commonwealth needed to prove that he entered the apartment

with intent to commit a crime. Appellant has articulated no legal basis upon




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       The court may allow an information to be amended, provided that
       the information as amended does not charge offenses arising from
       a different set of events and that the amended charges are not so
       materially different from the original charge that the defendant
       would be unfairly prejudiced. Upon amendment, the court may
       grant such postponement of trial or other relief as is necessary in
       the interests of justice.

Pa.R.Crim.P. 564.

5  Theft of services occurs where a person “intentionally obtains services for
himself or for another which he knows are available only for compensation, by
deception [….]” Appellant does not argue that his use of water, gas, and
electricity, after breaking into an apartment, is insufficient to demonstrate his
intent to commit theft of services. 18 Pa.C.S.A. § 3926(a)(1).



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which Commonwealth should have                  been precluded from   establishing

Appellant’s intent to commit theft of services.

       Next,   Appellant     argues    the     Commonwealth   improperly   withheld

exculpatory evidence. He claims the apartment’s evicted former tenant broke

the apartment window during a domestic dispute for which the former tenant

was arrested. Appellant omitted this issue from his Rule 1925(b) statement,6

and therefore he has waived it. Pa.R.A.P. 1925(b)(4)(vii). In any event, the

issue is meritless.      The circumstances of the former tenant’s crime, if it

occurred, are not of record in this matter. Further, the record indicates that

the window was intact upon the former tenant’s eviction. Finally, even if the

former tenant returned and broke the window, the fact remains that Appellant

removed the boarding from the broken window to enter the apartment a

second time.

       Appellant’s final argument is that his conviction is based on perjured

testimony. Appellant does not develop this argument with citation to pertinent

authority and citation to the record, and therefore he has waived it. Pa.R.A.P.

2119(b), (c); Commonwealth v. Janda, 14 A.3d 147, 164 (Pa. Super.


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6  The trial court issued an opinion on September 5, 2018, recommending that
this appeal be dismissed for Appellant’s failure to file a Pa.R.A.P. 1925(b)
statement. On October 1, 2018, this Court issued an order directing the trial
court to ensure that transcripts were produced, made a part of the record,
and provided to Appellant in accord with an earlier trial court order. Appellant
filed a concise statement after he received the transcripts. The trial court’s
January 14, 2019 opinion addresses the issues Appellant raised in his concise
statement. We have done likewise.

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2011). Regardless, Appellant apparently bases this argument upon testimony

indicating that Appellant broke the apartment window, whereas Appellant

asserts that the former tenant broke the window and was prosecuted for it.

Thus, Appellant believes Commonwealth witnesses either lied or offered

testimony the Commonwealth knew to be inaccurate. Appellant’s argument,

even if preserved, would be unavailing because it depends on facts not of

record and because the facts of record support an inference that Appellant

removed boarding from the broken window to gain entry to the apartment.

      For all of the foregoing reasons, we find no merit to any of Appellant’s

assertions of error.

      Judgment of sentence affirmed. Application for relief denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/25/2019




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