J-A18001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                            IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                             Appellee

                       v.

DOMINIC S. BURNO,

                             Appellant                        No. 1572 MDA 2015


         Appeal from the Judgment of Sentence Entered August 26, 2015
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0005415-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

CONCURRING AND DISSENTING MEMORANDUM BY BENDER, P.J.E.:

FILED MARCH 03, 2017

         I concur in the Majority’s determination that the trial court did not lack

subject matter jurisdiction in this case. I must disagree, however, with the

Majority’s      conclusion   that   there      was   sufficient   evidence   to   support

Appellant’s conviction of Criminal Trespass – Building or Occupied Structure,

18 Pa.C.S. § 3503(a)(1)(i).          Consequently, I respectfully dissent on that

issue.

         Initially, I concur with the Majority that the trial court did not err when

it denied Appellant’s motion to dismiss the charges for lack of subject matter

jurisdiction.     Nevertheless, based on undisputed facts solicited at trial, I
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*
    Former Justice specially assigned to the Superior Court.
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believe a landlord/tenant relationship existed between Appellant and Ms.

Hutchinson, and that this case is a civil — not criminal — matter. This Court

has explained that “[t]he relation of landlord and tenant is always created by

contract, either express or implied. It cannot exist without such contract[.]”

See Jones v. Levin, 940 A.2d 451, 455 (Pa. Super. 2007) (citations

omitted; brackets in original).        Further, “the payment of rent is not in all

cases essential to the creation of a landlord-tenant relationship[,]” as “courts

have in certain cases concluded that a lease existed despite the lack of rent

paid, but in such cases, there was evidence of some form of rent substitute,

i.e., an alternative benefit or return to the landlord, offered and accepted as

consideration.”     Id. (citations omitted).     Here, Ms. Hutchinson testified to

entering an oral agreement that Ms. Hoffman, Appellant, Chris and Kayla

Hodges, and Ms. Hoffman’s youngest daughter would move into the Camp

Street property, for an unspecified term, in exchange for paying the

mortgage, utilities, and the costs of making certain repairs to the property.1

See N.T. Jury Trial, 8/10/15-8/12/15, at 10-13. Ms. Hutchinson received an

alternative benefit, or a rent substitute, for allowing the group to live at the

Camp Street house, namely repairs and payment of the mortgage.



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1
  I note that, “[r]eal property, including any personal property thereon, may
be leased for a term of not more than three years by a landlord or his agent
to a tenant or his agent, by oral or written contract or agreement.” 68 P.S.
§ 250.201.



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Accordingly, in my view, a landlord/tenant relationship existed between Ms.

Hutchinson and the group, including Appellant.

     Because    a   landlord/tenant   relationship   existed,   I   believe   Ms.

Hutchinson should have utilized the procedures set forth in the Landlord

Tenant Act of 1951, 68 P.S. § 250.101 et seq., to lawfully evict Appellant.

Indeed, Ms. Hutchinson conceded that she could have filed a landlord/tenant

complaint, and that the district justice’s office was willing to accept her

complaint for a fee.   N.T. Jury Trial, at 72-73.    Our Supreme Court has

explained that the Landlord Tenant Act “sets up the procedure whereby a

landlord may repossess premises if he has a right to evict the tenant.”

Warren v. City of Philadelphia, 115 A.2d 218, 221 (Pa. 1955) (emphasis

in original). The Landlord Tenant Act states that all other inconsistent acts

are repealed and that “[i]t is intended that this act shall furnish a complete

and exclusive system in itself.”      68 P.S. § 250.602 (emphasis added).

Generally, the statutory procedures set forth in the Landlord Tenant Act, in

conjunction with applicable case law and prevailing public policy, tend to

provide protections for tenants and discourage landlords from evicting

tenants through self-help, which includes acts such as “barring entry by the

tenant, removing the tenant’s personal property, the use of force or

violence, or by deteriorating the physical condition of the premises by

reducing or discontinuing utility services or by removing parts of the




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structure itself such as doors or windows.” Lenair v. Campbell, 31 Pa. D.

& C.3d 237, 240 (Philadelphia Cty. 1984).2 In my opinion, it is improper to

sidestep the procedures of the Landlord Tenant Act — which, again, are

meant to constitute a complete and exclusive system — and negate the

obvious efforts made by our Legislature to protect tenants through the law. 3

I also disapprove of using the criminal process to resolve landlord/tenant


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2
  See, e.g., O’Brien v. Jacob Engle Foundation, Inc., 47 Pa. D. & C.3d
557, 558-59 (Cumberland Cty. 1987) (noting that self-help should not be
used where judicial procedures, like the Landlord Tenant Act, are available)
(internal citations omitted); Lenair, 31 Pa. D. & C.3d at 241 (“Upon
reviewing the [Landlord Tenant Act] in its entirety, it becomes apparent that
self-help eviction is not a remedy under any circumstances. … [T]he
legislature clearly expressed its intention that the Act be the sole source of
rights,   remedies     and   procedures     governing    the   landlord/tenant
relationship.”); Wofford v. Vavreck, 22 Pa. D. & C. 3d 444, 453 (Crawford
Cty. 1981) (“A landlord desirous of seeking repossession of his leased
premises from his tenant for nonpayment of rent must do so either by
bringing an action under the Landlord and Tenant Act [], and the related
Pennsylvania Rules of Civil Procedure for Justices of the Peace, or by
bringing an action in ejectment.”). See also Kuriger v. Cramer, 498 A.2d
1331, 1337 n.14 (Pa. Super. 1985) (observing that “in Pennsylvania[,]
landlords have been enjoined from proceeding with self-help evictions on the
basis that their exclusive remedy was an action in ejectment, or by summary
process as provided for by the Pennsylvania Landlord and Tenant Act, [] and
the related Pennsylvania Rules of Civil Procedure for District Justices”)
(internal citation omitted).
3
  In Wofford, the court addressed why safeguards for tenants are necessary
and self-help evictions are disfavored, particularly in cases involving the
nonpayment of rent. The court discerned that self-help evictions are likely
to increase the potential for violent confrontations between landlords and
tenants, violate the due process rights of tenants, and undermine the
implied warranty of habitability recognized by our Supreme Court.
Wofford, 2 Pa. D. & C.3d at 450-51.



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disputes.    Eviction cases, including the case at bar, should be brought by

aggrieved landlords in the appropriate civil forum, as opposed to burdening

and abusing the criminal justice system with such matters.4

       Notwithstanding, with respect to Appellant’s sufficiency of the evidence

claim, a person commits criminal trespass “if, knowing that he is not

licensed or privileged to do so, he … enters, gains entry by subterfuge or

surreptitiously remains in any building or occupied structure or separately

secured or occupied portion thereof[.]”          18 Pa.C.S. § 3503(a)(1)(i).5

Because Appellant began residing in the house as Ms. Hutchinson’s tenant, I

do not believe that there was sufficient evidence to prove that Appellant did

not have a license or privilege to be on the property. The Commonwealth

failed to demonstrate that Appellant was lawfully evicted and, therefore, that

he was not licensed or privileged to be in the house. Without proving that a

lawful eviction took place, Appellant continued to have a viable property

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4
  The Majority relies on Commonwealth v. Groft, 623 A.2d 341 (Pa. Super.
1993), for the proposition that “[t]he subject matter addressed in a civil
lawsuit and a criminal prosecution do not have to be mutually exclusive.”
Id. at 344. I note that the Landlord Tenant Act does not appear to be
specifically at issue in that case and there was no evidence of either an oral
or written lease agreement between the appellant and his mother; instead,
this Court considered whether the appellant had an ownership interest in the
home he shared with his mother where he had contributed money for
purchasing the land and had helped construct the home. Id.
5
  “A person is privileged … if he may naturally be expected to be on the
premises often and in the natural course of his duties or habits….”
Commonwealth v. Benito, 133 A.3d 333, 335 (Pa. Super. 2016).



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interest in the house, and his license or privilege to remain on the property

persisted.    It is the Commonwealth’s burden to prove each element of a

crime beyond a reasonable doubt, and it has not met its burden of proving a

lack of license or privilege in this case. See Commonwealth v. Thomas,

561 A.2d 699, 704 (Pa. 1989) (citations omitted) (“To sustain a conviction,

the facts and circumstances which the Commonwealth must prove must be

such that every essential element of the crime is established beyond a

reasonable doubt.”).       Therefore, I would conclude that the evidence was

insufficient to support Appellant’s conviction of criminal trespass and, as a

result, I would vacate his judgment of sentence.6




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6
 Because I would vacate Appellant’s judgment of sentence on that basis, I
would not address Appellant’s third issue raised on appeal regarding a
question of law posed by the jury.



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