J-S25015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellee

                    v.

DEMETRIUS WHITE,

                         Appellant                 No. 1186 EDA 2016


       Appeal from the Judgment of Sentence Entered April 7, 2016
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0003653-2015


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                       FILED JUNE 12, 2017

      Appellant, Demetrius White, appeals from the judgment of sentence of

an aggregate term of three (3) years’ probation, imposed after he was

convicted of one count each of attempted criminal trespass (18 Pa.C.S. §§

901; 3503(a)(ii)), and possessing an instrument of crime (18 Pa.C.S. § 907)

(“PIC”). Appellant challenges the sufficiency of the evidence to sustain his

convictions and alleges the verdict is against the weight of the evidence.

After careful review, we reverse.

      Appellant’s convictions stem from an incident on March 23, 2015,

where two officers observed Appellant standing on a cinder block wall,

attempting to bash through a small boarded-up window with a crowbar, at

the rear of the property located at 1918 South 19 th Street in Philadelphia,

Pennsylvania (“Property”).    Appellant was arrested and ultimately found
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guilty of the above-stated offenses, following a non-jury trial on February 4,

2016.         On April 7, 2016, Appellant was sentenced to three (3) years’

probation. He filed a timely notice of appeal on April 13, 2016.

        Appellant now presents the following issues for our review:

        I.      Was the evidence presented insufficient as a matter of law
                to sustain a conviction for attempted criminal trespass, 18
                Pa.C.S. §§ 901, 3503(a)(ii), because the evidence failed to
                prove that [A]ppellant had no legal right to enter the
                property nor the mens rea necessary to commit the
                offense?

        II.     Was the evidence presented insufficient as a matter of law
                to sustain a [PIC conviction], 18 Pa.C.S. § 907[,] because
                a crow bar used to legally enter a property is within its
                appropriate use[?]

        III.    Was the verdict against the weight of the evidence
                because [Appellant’s] father retained partial ownership in
                the property, which was conceded by the complainant, she
                was not the legal owner, no documentation established her
                ownership or control, and [A]ppellant’s father testified that
                he asked [A]ppellant to enter the home?

Appellant’s Brief at 3.

        To begin, we note our standard of review:

        In reviewing a sufficiency of the evidence claim, we must
        determine whether the evidence admitted at trial, as well as all
        reasonable inferences drawn therefrom, when viewed in the light
        most favorable to the verdict winner, are sufficient to support all
        elements of the offense. Additionally, we may not reweigh the
        evidence or substitute our own judgment for that of the fact
        finder. The evidence may be entirely circumstantial as long as it
        links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted). “Because evidentiary sufficiency is a question of law, our standard

of review is de novo and our scope of review is plenary.” Commonwealth

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v. Diamond, 83 A.3d 119, 126 (Pa. 2013). A successful sufficiency of the

evidence challenge warrants discharge.     Commonwealth v. Brown, 52

A.3d 320, 323 (Pa. Super. 2012).

     With these principles in mind, we turn to Appellant’s challenge to the

sufficiency of the evidence supporting his convictions in the instant case.

Criminal trespass is defined by the Crimes Code as follows:

     § 3503. Criminal trespass

     (a)   Buildings and occupied structures.—

           (1)   A person commits an offense 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.

18 Pa.C.S. § 3503(a)(1).     Thus, “[e]xamining the elements of criminal

trespass, a conviction for that offense requires a person: (1) to break or

enter into with subterfuge any building or occupied structure; (2) knowing

he is not licensed or privileged to do so.” Commonwealth v. Quintua, 56

A.3d 399, 402 (Pa. Super. 2012) (emphasis added).       Pursuant to Section

901 of the Crimes Code, “[a] person commits an attempt when, with intent

to commit a specific crime, he does any act which constitutes a substantial

step toward the commission of that crime.” 18 Pa.C.S. § 901(a).




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       Notably, “[c]riminal trespass contains an element of knowledge—a

person committing that offense must know he is not privileged to enter the

premises.” Id. In fact, this Court has previously concluded that “if the actor

reasonably believed that the owner of the premises or other person

empowered to license access thereto, would have licensed him to enter or

remain in the building[,] the [appellant] is not guilty of any degree of the

offense of criminal trespass.” Commonwealth v. Goldsborough, 426 A.2d

126, 127 (Pa. Super. 1981) (citing 18 Pa.C.S. § 3503(c)(3) (providing an

actor’s reasonable belief that he is licensed by the owner to enter or remain

on the premises as an enumerated defense to prosecution of criminal

trespass)).

       Here, Appellant challenges the sufficiency of evidence regarding his

legal right to be on the Property and his mens rea to commit criminal

trespass. Appellant asserts that his father is part-owner of the Property and

that he was attempting to enter the vacant Property with his father’s

permission.     Appellant’s Brief at 12.       “[The] element of intent, like every

other element of the crime, must be proven beyond a reasonable doubt if

the conviction is to survive a challenge to the sufficiency of the evidence.”

Commonwealth v. Namack, 663 A.2d 191, 194 (Pa. Super. 1995).1 Thus,

we focus on the evidence from which Appellant’s mens rea could be inferred.

____________________________________________


1
  In Namack, the appellant was charged with defiant trespass under 18
Pa.C.S. § 3503(b)(1), which includes an element of intent or mens rea,
(Footnote Continued Next Page)


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      The evidence produced at trial established that Appellant’s father,

Kenneth White, was one of seven children born to Dolores White. Kenneth’s

sister, Sherilyn White, previously owned and lived in the Property. However,

Sherilyn passed away approximately 30 years ago, shortly after giving birth

to her son.    N.T. Trial, 2/4/16, at 33-34.      Although Sherilyn still remains

listed as the owner on the tax records, id. at. 19-20, Kenneth testified that

upon her death, Sherilyn left the Property to their mother, Dolores, and that

Dolores “took over the house and paid the mortgage for 25 years.” Id. at

33-34. For a number of years, Kenneth and Appellant lived in the Property

with Dolores and helped care for her. Id. at 27. They were no longer living

there, however, when Dolores passed away in December of 2012. Id. at 22,

34.

      Kenneth testified that he wanted to move back into the Property after

his mother died, because he and Appellant were living in a horrible, drug-

infested area in North Philadelphia, and he was the only sibling who did not

own a home. Id. at 34. Kenneth expressed his desire to his sister, Yolanda

Kirk, but she said “no,” claiming that the Property was “unlivable.”       Id. at

34.   Yolanda never lived in the Property, but claimed that since Dolores


                       _______________________
(Footnote Continued)

similar to the crime of criminal trespass under Section 3503(a)(1). See id.
(citing Commonwealth v. Carter, 393 A.2d 660 (Pa. 1978) (holding that
parallel language in 18 Pa.C.S. § 3503(a), defining crime of criminal
trespass, includes an element of scienter)).




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passed away, she has been “the person in charge of running the property.”

Id. at 22. Although she referred to the Property as her “mother’s property,”

during her testimony, Yolanda claimed that Sherilyn did not leave the

Property to their mother but, rather, left the Property to her son2 when she

died, “with [Dolores] sort of managing the estate, and giving [Dolores] the

opportunity to sell the [P]roperty….” Id. at 28.3

       Yolanda now wants to sell the Property and agreed that all of her

remaining siblings, including Appellant’s father, would have an ownership

interest in the proceeds from the sale. Id. at 27, 29. Yolanda further stated

that she did not give Appellant permission to enter the Property. Id. at 23.

However, Kenneth testified that after Yolanda told him that he could not

move into the Property because of its poor condition, he instructed Appellant

to “go and check it out.” Id. at 36. Both Kenneth and Appellant at one time

had keys to the Property, but their keys no longer worked because Yolanda

changed the locks. Id.

       On the date of the incident in question, Officer Raymond Rutter and

his partner, Officer Gallen, responded to a call at approximately 1:05 p.m.

Officer Rutter testified that when they arrived at the Property, two other
____________________________________________


2
  Yolanda and her husband became guardians to Sherilyn’s son after
Sherilyn’s death. Id. at 28.
3
 Yolanda made reference to “paperwork,” generally, and her mother’s will;
however, no such documentation was produced as evidence at trial. Id. at
28.



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uniformed officers were on foot in the front of the Property, so they went

around to the back. Id. at 7-8. There was a four-to-five foot cinder block

wall between the Property and the adjacent home. Officer Rutter described

that when they arrived at the back of the Property, they observed Appellant

standing on the cinder block wall, leaning over with a crow bar in his hand.

Id. at 10.   “[T]here was an opening, which looked like there once was a

window, a small window, and around that was plywood…. [Appellant] was

using the end [of the crowbar] to bash in through the wood because it was

all splintered and everything like that.” Id.   The officers laughed as they

stood there watching Appellant “hacking away” at the plywood for a few

moments, and then pulled their guns and whistled. Id. at 13-14. Appellant

stopped, turned around and looked surprised. Id. at 14. The officers told

Appellant to drop the crow bar and handcuffed him. Appellant proclaimed,

“What, I didn’t get in yet[,]” id. at 15, and then proceeded to explain to the

officers that the Property was his grandmother’s house. Id. at 18.

      The evidence presented at trial regarding ownership of the Property

was confusing, at best.     However, despite the question regarding who

rightfully owns the Property, for the purpose of determining whether

Appellant had the mens rea to commit criminal trespass, the relevant factor

here is whether Appellant reasonably believed that his father had an

ownership interest in the Property. The Property is clearly the subject of a

family dispute. The Commonwealth failed to provide a copy of a will or any

other documentation to establish ownership, nor did it produce any evidence

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to refute Kenneth’s testimony that he gave permission to Appellant to enter

the Property.       Given the surrounding circumstances and viewing the

evidence in the light most favorable to the Commonwealth, we are

convinced that the evidence established that Appellant reasonably believed

his father had a partial ownership interest in the Property and that he had

his father’s permission to enter the Property. Accordingly, we are compelled

to conclude that the evidence presented at trial was insufficient to establish

that Appellant had the requisite mens rea to sustain a conviction of criminal

trespass.

        Next, Appellant argues that the evidence was insufficient to support

his PIC conviction.      More specifically, Appellant asserts he only used the

crow bar for the lawful purpose of pulling down a board on his family’s

unoccupied Property so he could look inside. Appellant’s Brief at 19. The

Crimes Code defines the relevant offense, as follows: “A person commits a

misdemeanor of the first degree if he possesses any instrument of crime

with intent to employ it criminally.” 18 Pa.C.S. § 907(a). 4 Accordingly, to

____________________________________________


4
    An “instrument of crime” is defined by the Crimes Code as follows:

        (1)   Anything specially made or specially adapted for criminal
              use.

        (2)   Anything used for criminal purposes and possessed by the
              actor under circumstances not manifestly appropriate for
              lawful uses it may have.

18 Pa.C.S. § 907(d).



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sustain a PIC conviction, the Commonwealth must prove two elements: (1)

possession of an instrument of crime; and (2) intent to use the instrument of

crime criminally.

      “The Commonwealth must prove every element of the offense,

including criminal intent, beyond a reasonable doubt…. Although criminal

intent can be inferred beyond a reasonable doubt from the surrounding

circumstances,      it   cannot   be   inferred   from   mere       possession.”

Commonwealth v. Watson, 431 A.2d 949, 953 (Pa. 1981) (emphasis

added) (quoting Commonwealth v. Moore, 381 A.2d 845, 845 (Pa.

1978)); See also Commonwealth v. Hall, 450 A.2d 1018, 1020 (Pa.

Super. 1982) (holding that even where the appellant conceded that a steak

knife is an “instrument of crime,” mere possession of the knife was not

enough to show that the appellant intended to use it criminally).

      Moreover, it has been established that “where an appellant has been

acquitted of the underlying crime, and no other evidence has been presented

to establish criminal intent, an appellant cannot be deemed to possess the

requisite intent to employ [an instrument] criminally - a prerequisite to a

conviction for PIC.” Commonwealth v. Weston, 749 A.2d 458, 461 (Pa.

2000).   Thus, based on our foregoing conclusion that Appellant lacked the

mens rea to commit criminal trespass and that he reasonably believed he

had permission from a rightful owner to enter the Property, we are

constrained to conclude that there was no criminal intent in the instant case




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with regarding to Appellant’s use of the crow bar. Accordingly, we deem the

evidence insufficient to uphold Appellant’s PIC conviction.

         Finally, the foregoing discussion renders Appellant’s challenge to the

weight of the evidence moot. Thus, we need not address the merits of this

issue.

         In sum, the Commonwealth failed to satisfy its burden of proof to

support Appellant’s convictions of criminal trespass and possessing an

instrument of crime. Accordingly, we reverse the April 7, 2016 judgment of

sentence, and we order Appellant discharged.

         Judgment of sentence reversed.        Appellant discharged.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2017




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