J-S79043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    ELLIOTT QUIJANO                            :
                                               :
                      Appellant                :      No. 1923 EDA 2016

              Appeal from the Judgment of Sentence May 19, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012987-2015


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                        FILED DECEMBER 19, 2017

        Appellant, Elliott Quijano1, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial conviction of attempted criminal trespass2 We affirm.

        The trial court opinion fully sets forth the relevant facts and procedural

history of this case. Therefore, we have no need to restate them. We add

only that Appellant filed a timely post-sentence motion on May 26, 2016,

which the court denied on June 2, 2016, and Appellant filed a timely notice

of appeal on June 16, 2016. On June 17, 2016, the court ordered Appellant


____________________________________________


1 The docket and other paperwork in this matter erroneously spell Mr.
Quijano’s surname as “Ouijano.”

2   18 Pa.C.S.A. § 3503, 901(a) related.
J-S79043-17


to file a concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b), which Appellant filed, after the grant of an extension, on

December 23, 2016.

      Appellant raises the following issues for our review.

         WAS    NOT     THE   EVIDENCE…INSUFFICIENT  FOR
         [APPELLANT’S] CONVICTION FOR ATTEMPTED CRIMINAL
         TRESPASS, INSOFAR AS THERE WAS INSUFFICIENT
         EVIDENCE OF ANY INTENT TO ACTUALLY ENTER THE
         BUILDING?

         IN THE ALTERNATIVE, WAS NOT THE DETERMINATION OF
         GUILT AGAINST THE WEIGHT OF THE EVIDENCE TO SUCH
         A DEGREE AS TO SHOCK THE CONSCIENCE?

(Appellant’s Brief at 4).

      After a thorough review of the record, the brief of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Mia Roberts

Perez, we conclude Appellants issues merit no relief. The trial court opinion

comprehensively     discusses   and   properly   disposes     of   the   questions

presented.    (See Trial Court Opinion, filed February 03, 2017, at 1-6)

(finding (1) evidence viewed in light most favorable to Commonwealth

showed Appellant lacked permission to enter Mr. King’s premises; Mr. King

testified credibly that Appellant was not invited into Mr. King’s residence on

evening in question; Appellant’s loud and disruptive attempt to enter Mr.

King’s home was foiled when Mr. King awoke and shooed Appellant away;

testimony regarding Appellant’s and Mr. King’s prior disputes served only to

advance conclusion that Appellant knew he had no license to enter Mr.


                                      -2-
J-S79043-17


King’s property; court found Appellant’s assertion, that he was simply trying

to close Mr. King’s window so Appellant’s exercise on porch would not be

disruptive, completely incredible and inconsistent with Mr. King’s description

of how Appellant’s outstretched arms were positioned, palms facing up; Mr.

King’s account described Appellant’s behavior as consistent with attempted

entry into his house; (2) court decided as fact-finder to reject Appellant’s

version    of   events;    verdict   was       not   against   weight   of   evidence).3.

Accordingly, we affirm based on that opinion.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




____________________________________________


3 Subsections (b.1)(1)(iv) and (b.1)(2) of Section 3503 Criminal Trespass,
were declared unconstitutional in Leach v. Commonwealth, 636 Pa. 81,
141 A.3d 426 (2016) (holding those subsections violate single subject rule of
Article III, Section 3 of Pennsylvania Constitution). The holding in Leach,
does not affect our disposition because Appellant was convicted and
sentenced under subsection (a)(1)(ii).



                                           -3-
                                                                                        Circulated 12/05/2017 02:46 PM




                           IN THE COURT OF COMMON PLEAS
                    Jl�IRST JUDICIAL DISTRICT OF PENNSYLVANIA
                          TRIAL DIVISION-CRIMINAL SECTION

COMMONWEAL TH OF PENNSYLVANIA                                                   CP-51-CR-12987-2015

                       V.                                                       1923 EDA 2016

               ELLIOT QUIJANO




                                                   OPINION


Perez, J.
                               cp.51.cR-0012987·2015 comm.v OUIJANO, F.LLIOTI
                                                  Opinion
                                                                                     FILED
                                                                                      FEBO 3·.20,t
                                    1111111\ \\ 1111 \ 11111111\1
                                             7898041031                           Criminal. App�al� Unit
PROCEDURAL HISTOR\                                                              First Judieta\ District of PA

        On March 10, 2016, Defendant was found guilty of attempted criminal trespass as felony

of the second degree. On May 19, 2016, following the denial of Defendant's oral motion for

extraordinary relief, he was sentenced to 11.5-23 months of incarceration followed by three years

of reporting probation. On June 16, 2016, a timely appeal was filed. On July 12, 2016, this Court

granted an extension for Defendant to file his Statement of Errors within 21 days of receiving the

trial transcripts. Defendant filed his Statement of Errors Complained of on Appeal on December

23, 2016 challenging the sufficiency and weight of evidence at trial. This trial court Opinion

follows.

FACTUAL HISTORY


        Jonathan King testified that on November 18, 2015, at approximately 9:55 P.M., he was

asleep in the basement of his home at 4434 Sherwood Road, located in the city and county of

Philadelphia. He was awoken by a strange noise that he described as "metal banging against

                                                            1
metal." Notes of Testimony 3/10/16 p. 13. The sound was loud and unusual enough to arouse

Mr. King's suspicion. He then heard the noise several more times and got up to determine what

was causing it. Upon investigation, Mr. King determined that the banging noises were coming

from outside his residence. Id.at 14-18. He ran up the stairs from the basement and turned on a

light in his dining room area and observed "arms out stretched reaching inside the house." (19.,. at

18). As he approached, he discovered that the man reaching into his house was his neighbor, the

Defendant. The Defendant had his palms facing upwards inside the house and was pulling down

on the interior part ofthe window. Id. at 19-20. He further explained that when he first observed

the window, it was opened at least 16 inches. Id. at 29. Mr. King testified that the Defendant did

not have permission to be inside his home on the evening in question.

       On cross examination, Mr. King stated that he and the Defendant share a back porch,

which also serves as a fire escape for the homes, Id. at 22-23. He further testified that he and the

Defendant were involved in an ongoing dispute over the Defendant's loud and disruptive

behavior on the porch. The Defendant had previously called the police to complain about this

dispute. The Defendant testified that he did in fact touch the Complainant's window, but only in

an effort to close it, not to enter. Id. at 46-47. Ultimately, defense counsel argued that Mr. King

called the police and pursued the complaint in retaliation against the Defendant

        Importantly, this Court found the Defendant> s testimony not credible with respect to the

intent behind his conduct. The Defendant' s assertion that he was simply attempting to close the

window was inconsistent with the Complainant's description of how the Defendant's

outstretched arms were positioned. Mr. King's account clearly described the Defendant's

behavior as being consistent with an attempted entrance into the house. The Defendant made a

significant amount of noise while manipulating the window and had his palms facing upwards as

                                                  2
he reached inside the house. Noticeably absent from the Defendant's narrative was any

explanation of why he was reaching up into his neighbors home. Had the Defendant attempted to

close the window to avoid a confrontation with Mr. King, he would have also avoided causing a

serious disturbance. To the contrary, he made such a commotion as to wake Mr. King up. who

reasonably believed someone was trying to break into his home.

STANDARD OF REVIEW
           In evaluating the sufficiency of the evidence a reviewing Court will determine:

              whether, viewing all the evidence admitted at trial, together with all
              reasonable inferences therefrom, in the light most favorable to the
              Commonwealth, the trier of fact could have found that each element of the
              offenses charged was supported by evidence and inferences sufficient in law
              to prove guilt beyond a reasonable doubt.


Commonwe�lth v. Jackson, 506 Pa. 469, 472·473, 485 A.2d 1102, 1103 (1984).
       i          .      .-   +.




           Our standard of review for a weight of the evidence challenge is as follows:

           The determination of whether to grant a new trial because the verdict is against the

weight of the evidence rests within the discretion of the trial court, and we will not disturb that

discretion absent an abuse of discretion. Where issues of credibility and weight of the evidence

are concerned, it is not the function of the appellate court to substitute its judgment based on a

cold record for that of the trial court. The weight to be accorded conflicting evidence is

exclusively for the fact finder, whose findings will not be disturbed on appeal if they are

supported by the record. A claim. that the evidence presented at trial was contradictory and

unable to support the verdict requires the grant ofa new trial only when the verdict is so contrary

to the evidence as to shock one's sense of justice.

           It must be emphasized that it is not for this Court or any appellate court to view the

evidence as if it was the jury. Our purview is extremely limited and is confined to whether the

                                                     3
trial court abused its discretion in finding that the jury verdict did not shock its conscience. Thus,

appellate review of a weight claim consists of a review of the trial court's exercise of discretion,

not a review of the underlying question of whether the verdict is against the weight of the

evidence . .Qomrnonwe!}.Uh Y.:-�� 980 A.2d 659, 663-64 (Pa.Super.2009) (citations

omitted).



LEGAL DISCUSSION


       The crime of criminal trespass is committed when a person enters a building or occupied

structure knowing that he is not licensed to do so (18 Pa.C.S. § 3503) and is graded as a felony of

the second degree. Criminal trespass is defined by statute as follows:


        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
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.

18 Pa.C.S.A. § 3503. The evidence, viewed in the light most favorable to the Commonwealth,

showed a lack of permission and an entry into the Complainant's premises. Mr. King testified

that Defendant was not invited to their residence on the evening in question, either by himself or

anyone else. ·


       Here, the Defendant was convicted only of an attempted criminal trespass. Our legislature

has defined an attempt as follows:


§ 901. Criminal attempt

       Definition of attempt.-A person commits an attempt when, with intent to commit a
       specific crime, he does any act whichconstitutes a substantial step toward the
       commission of that crime                     ·

                                                  4
 18 Pa.C.S.A. 901 (a). Here, the Defendant attempted to commit the crime of criminal trespass.

Importantly, the Superior Court has held that there is no requirement that the Commonwealth

demonstrate as an element of the criminal trespass offense that the actor entered the building

with any specific criminal intent. Commonwealth v. Goldsborough, 284 Pa.Super. 435, 438, 426

A.2d 126, 127 (1981). Certainly, the Superior Court has found insufficient mensrea to support a

trespass conviction where de fondant had a good faith belief that he had a prescriptive right to be

on the property in question. Commonwealth v. Johnson, 2003 PA Super 65, 818 A.2d 514

(2003).


          The Superior Court has defined entry to include passing an arm through a window.

Commonwealth v. Schwartz, 419 Pa.Super. 251, 273, 615 A.2d 350, 361 (1992); Commonwealth

v. Myers. 223 Pa.Super. 75, 297 A.2d 151 (1972). In Schwartz, a conviction for trespass was

upheld where the Defendant punched a window, breaking a pane of glass, but never entered the

property in any other manner.


          The evidence here, viewed in the light most favorable to the Commonwealth,

demonstrated a lack of permission and    an attempted.entry into the Complainant's premises. Mr.
King testified credibly that the Defendant was not invited into the residence on the evening in

question, either by himself or anyone else. The Defendant's loud and disruptive attempt was

foiled when Mr. King awoke and shooed the Defendant away from his property. The testimony

regarding the ongoing dispute between Defendant and Mr. King only serves to advance the

conclusion that Defendant was aware that he.had no license to enter. Moreover, this Court was

well within its province as the sole trier of fact to reject the Defendant's version of events.




                                                  s
CONCLUSION


For the foregoing reasons, the underlying judgment should be affirmed.




BY THE COURT:·


.Llti:_Z:2
!u(.�ia�oberts Perez




                                               6
