J-S04024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DONALD KNIGHT

                            Appellant                 No. 2540 EDA 2015


            Appeal from the Judgment of Sentence August 12, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011625-2014


BEFORE: SHOGAN, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                 FILED APRIL 18, 2017

        Donald Knight appeals from the judgment of sentence imposed on

August 12, 2015, in the Court of Common Pleas of Philadelphia County,

following his conviction by the trial judge on the charges of attempted

burglary, attempted criminal trespass (breaking into a structure), possession

of an instrument of crime, and criminal mischief (tampering with property).1

Knight was sentenced to nine to twenty-three months’ incarceration,

followed by three years of reporting probation.2        In this timely appeal,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   18 Pa.C.S. §§ 3502(a)(4), 3503(a)(1)(ii), 907(a), and 3304(a)(2),
respectively.
2
  The incarceration and probation was imposed on the attempted burglary
charge. Knight received no further punishment on the other charges.
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Knight claims the trial court violated the corpus delicti rule by allowing the

introduction of Knight’s statement when no corpus of the crime had been

shown and then in considering that statement when the corpus had not been

proven beyond a reasonable doubt. After a thorough review of the certified

record, the submissions by the parties and relevant law, we affirm.

      Initially,

      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.


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      Commonwealth v. Young, 904 A.2d 947, 956 (Pa. Super.
      2006), appeal denied, 591 Pa. 664, 916, A.2d 633 (2006)
      (quoting Commonwealth v. Rivera, 828 A.2d 1094, 1103-04,
      n. 10 (Pa. Super. 2004) appeal denied, 577 Pa. 672, 842 A.2d
      406 (2004)) (internal quotation marks omitted) (emphasis in
      original).

      Additionally,

      The corpus delicti rule is an evidentiary one. On a challenge to a
      trial court's evidentiary ruling, our standard of review is one of
      deference.

         The admissibility of evidence is solely within the discretion
         of the trial court and will be reversed only if the trial court
         has abused its discretion. An abuse of discretion is not
         merely an error of judgment, but is rather the overriding
         or misapplication of the law, or the exercise of judgment
         that is manifestly unreasonable, or the result of bias,
         prejudice, ill-will or partiality, as shown by the evidence of
         record.

      Commonwealth v. Herb, 852 A.2d 356, 363 (Pa. Super. 2004)
      (citations omitted).

Commonwealth v. Hernandez, 39 A.3d 409, 410-11 (Pa. Super. 2012).

We recite the underlying facts of this matter as related by the trial court in

its Pa.R.A.P. 1925(a) opinion.

      Philadelphia Police Officer William Benson testified that on July 9,
      2014 at approximately 2:30 a.m. his tour of duty took him to
      100 East Coulter Street, Philadelphia, Pennsylvania. (N.T.
      5/22/15 p. 10). Officer Benson stated that there is a
      convenience store at that location. Id. Officer Benson stated that
      upon arrival with his partner, Officer Baldino, he observed that
      the metal grated door at the rear of the convenience store was
      pried away. (N.T. 5/22/15 pp. 10-11). Officer Benson testified
      that his partner, Officer Baldino, then found a crowbar directly to
      the left of the grated door on a ledge about five (5) or six (6)
      feet tall. (N.T. 5/22/15 pp. 11 -12). Next, Officer Benson stated
      that he surveyed the area for a suspect. (N.T. 5/22/15 p. 14).
      Officer Benson observed his supervisor arrive on the scene and

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     pull out her cell phone on location to call police radio. Id. Based
     on the information that was communicated to him, Officer
     Benson went to 107 East Coulter Street where he found [Knight]
     on the porch in a black hoody, hidden, crouched behind a grill in
     a fetal position. (N.T. 5/22/15 pp. 15-16).

     Officer Benson placed [Knight] in custody and observed gloves in
     [Knight’s] left pocket, a small flashlight in [Knight’s] right
     pocket, and a second crowbar within arm's reach from [Knight]
     on the patio. (N.T. 5/22/15 pp. 15-17).

     Officer Benson identified Commonwealth Exhibit 2 (C-2), a
     photograph of the convenience store, as what the convenience
     store looked like on July 9, 2014. (N.T. 5/22/15 pp. 17-18).
     Officer Benson then identified Commonwealth Exhibit 3 (C-3),
     two photographs, as fair and accurate depictions of the property
     at the time of the incident. (N.T. 5/22/15 p. 18). He explained
     that the top photograph pictured the side of the convenience
     store and the bottom photograph displayed the door that was
     pried open. Id. Officer Benson also identified Commonwealth
     Exhibit 6 (C-6) as an accurate photograph of the damage done
     to the convenience store door that was pried open. (N.T.
     5/22/15 pp. 19-20).

     Next, the Commonwealth questioned Officer Benson about
     Commonwealth Exhibit 7 (C-7). (N.T. 5/22/15 p. 20). Officer
     Benson described C-7 as a photograph taken directly left of the
     grated door picturing a ledge where the first crowbar was
     located. Id. Lastly, the Commonwealth showed Officer Benson
     Commonwealth Exhibits 8 (C-8) and 9 (C-9). (N.T. 5/22/15 p.
     20). Officer Benson stated that C-8 pictured the porch area and
     was an accurate and fair depiction of the property he observed.
     Id. He further stated that C-9 pictured the view from the porch
     looking directly across the street through the grated door. (N.T.
     5/22/15 pp. 21-22).

     Officer Benson testified that the first crowbar was placed on
     Property Receipt No. 3155296 and that the other recovered
     items were placed on Property Receipt No. 3155297 marked as
     Commonwealth Exhibit 1 (C-1). Id.

     On cross-examination, Officer Benson testified that the property
     receipt was created in his presence and that the first crowbar
     was found on a ledge next to the door. (N.T. 5/22/15 p. 16).

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     Defense counsel asked Officer Benson to re-examine C-1 as she
     read from the document: "Police Officer Baldino located the
     crowbar on the concrete ledge of the building surrounded by
     grass and weeds." (N.T. 5/22/15 p. 26). Officer Benson affirmed
     this statement. (N.T. 5/22/15 p. 27). Defense counsel then
     approached Officer Benson with C-8 and asked him to identify
     where he found the second crowbar on the picture. Id. Officer
     Benson stated that the second crowbar was within arm's reach
     from [Knight] and indicated that location on the picture. Id.
     Officer Benson testified that upon his arrival he noticed damage
     to the property but did not know when the damage occurred. Id.
     Officer Benson further stated that he did not know the age of the
     property but stated that it was not new and affirmed that paint
     was missing on some areas of the building (N.T. 5/22/15 pp. 27-
     28). Officer Benson could not recall if bricks were crumbling on
     the building. (N.T. 5/22/15 p. 28). Officer Benson stated that
     when he first arrived on the scene, another officer stopped a
     man in a white shirt near the convenience store at the front
     entrance which is on the same sidewalk as the rear entrance of
     the store. Id.

     Detective John Schell testified that on July 9, 2015 at 3 p.m., he
     was assigned to the Northwest Detectives and was on duty to
     speak with [Knight]. (N.T. 5/22/15 p. 30). Detective Schell
     stated that he read [Knight] his Miranda Rights and that
     [Knight] wanted to make a statement. (N.T. 5/22/15 pp. 30-31).
     [Knight’s] statement was marked as Commonwealth Exhibit 11
     (C-11). (N.T. 5/22/15 p. 31). Detective Schell stated that the
     document contained the Miranda Warnings that he conducted
     and [Knight’s] signature at the bottom of the page. (N.T.
     5/22/15 p. 32). Detective Schell then identified the Defendant's
     signature on the second and third pages of the document. Id. He
     stated that [Knight] provided the information on the top of the
     page. Id. Detective Schell then read a portion of the document
     for the court:

       QUESTION: Did you try to break into 100 East Coulter?
       ANSWER: No, I wasn’t trying to break in. I was just bored
       and playing around at three in the morning.
       QUESTION: Why would I hear you kept dropping the –
       ANSWER: I did it.
       QUESTION: Did you get in?
       ANSWER: No.
       QUESTION: Did you take anything?

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          ANSWER: No.
          QUESTION: Where did you try to access the building?
          ANSWER: Rear door.
          QUESTION: Would your DNA be on that crowbar?
          ANSWER: Probably not.
          QUESTION: Because you had gloves?
          ANSWER: Something like that.

       (N.T. 5/22/15 pp. 33-34). Detective Schell then read the last
       question:

          QUESTION: Would you read over this statement after I
          print it out?
          ANSWER: Yes.

       (N.T. 5/22/15 pp. 34-35). Detective Schell stated that he
       observed [Knight] read over the statement. (N.T. 5/22/15 p.
       35). He stated that [Knight] had an opportunity to make
       corrections at that time but did not. Id.

       On cross-examination, Detective Schell stated he was not sure if
       [Knight] stated that he needed to go and get his mother. Id.[3]

Trial Court Opinion, 5/17/2016, at 2-5.

       Regarding the first stage of the corpus delicti analysis, the trial judge

determined that based on the evidence presented, the Commonwealth had

provided prima facie evidence of a crime having been committed, thereby

allowing Knight’s self-incriminating statement to be admitted into evidence.

The trial court found:

       In the instant matter, Philadelphia Police Officer William Benson
       testified credibly that on May 15, 2014, while on duty, he was
       called to the location of a convenience store on 100 East Coulter
____________________________________________


3
  Knight was also questioned about another attempted break-in in the
neighborhood earlier that night. Knight denied any involvement in that
incident and claimed his mother could provide an alibi for that crime.



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     Street. Officer Benson stated that upon arrival he observed that
     the back door had been “pried away” and discovered a crowbar
     next to the door on a ledge. Photographs were admitted into
     evidence by the Commonwealth depicting the damage to the
     back door of the convenience store.            Officer Benson’s
     observations of the damage to the door of the property, the
     discovery of the crowbar found next to the door, and the
     Commonwealth’s introduction of photographs displaying the
     damage to the door are sufficient for this court to find by a
     preponderance of the evidence that a crime occurred at 100 East
     Coulter Street.

Trial Court Opinion, 3/17/2016, at 9.

     It is important to describe the actual damage done to the property,

because the description “pried away” does not adequately convey the scene

as depicted in the photographs introduced as evidence at trial.         See

Commonwealth Exhibits C-4 and 6. These photographs show a door made

of metal grating attached to the back wall of the convenience store.    This

metal grate door prevented access to another, more traditionally appearing

door. The back wall is made of cinder block. A cinder block was partially

pried out of the wall at a place where the metal grate door apparently

latches closed.   Accordingly, this depiction, coupled with a crowbar found

within feet of the damage, leads us to agree with the trial court that the

Commonwealth had proved by a preponderance of the evidence that an




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attempted break-in had taken place.            Accordingly, the trial court properly

allowed Knight’s self-incriminating statement to be admitted into evidence.4

       The second aspect of Knight’s claim is that, having been admitted,

there was yet insufficient evidence to prove the corpus delicti beyond a

reasonable doubt, such that the incriminating statement could considered for

purposes of guilt determination. This argument similarly fails.

       The trial judge noted additional facts that led him to find that corpus

delicti had been proven beyond a reasonable doubt.

       Moreover, Officer Benson testified that [Knight] was found
       nearby the scene of the attempted burglary at 107 East Coulter
       Street in a black hoody, crouched down behind a grill in a fetal
       position with a crowbar within arm’s reach and gloves and
       flashlight in his pocket. [Knight’s] (1) proximity to the scene of
       the crime at 107 East Coulter Street; (2) body position by hiding
       behind a grill; (3) manner of dress in a black hoody; (4)
       possession of gloves in his back left hand pocket; (5) possession
       of a small flashlight in his back right hand pocket; and (6)
       proximity to a crowbar within arm’s reach, provide this court
       with sufficient evidence to conclude that [Knight] was involved in
       the criminal activity at 100 East Coulter Street based on the
       totality of the circumstances.

Id. at 9-10.

____________________________________________


4
  Although the trial court did not specifically rely on it, we are aware that the
property receipt for the crowbar found near the convenience store contains
the information that the police were called to the scene for a report of a
burglary in process. See Commonwealth Exhibit 1. The property receipt
was entered into evidence without limitation. N.T. Trial, 5/22/2015, at 38.
We also note that the police knew to look on the porch, behind the grill, at
107 East Coulter based upon information Officer Benson’s supervisor
received in a phone call to police radio (the dispatcher). Id., at 14-15.




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     Our independent review of the certified record leads us to conclude the

trial court committed no error in determining that an attempted burglary had

been committed at 100 East Coulter Street. Therefore, the trial court also

properly considered Knight’s statement as substantive evidence of his guilt.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2017




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