J-A13032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
           v.                             :
                                          :
KEVIN LUSTER,                             :
                                          :
                 Appellant                :           No. 1013 WDA 2015

           Appeal from the Judgment of Sentence April 14, 2015
            in the Court of Common Pleas of Allegheny County,
             Criminal Division, No(s): CP-02-CR-0012070-2014

BEFORE: OLSON, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JUNE 30, 2016

     Kevin Luster (“Luster”) appeals from the judgment of sentence

imposed following his conviction of possessing instruments of crime (“PIC”).

See 18 Pa.C.S.A. § 907(a). We affirm.

     The trial court set forth the relevant underlying facts as follows:

     Kimberly Nickens[] (hereinafter referred to as “Nickens”)[] was
     home at her residence on Graham Boulevard in the Penn Hills
     Section of Allegheny County on August 22, 2014.           [N.T.,
     4/14/15, at 5.] Nickens heard the doorbell ring at about 1:30 in
     the afternoon on that date. [Id. at 6.] Nickens was in the
     shower at that time, so she made no efforts to answer the door.
     [Id.]

     After Nickens exited the shower, she again heard the doorbell
     ring. [Id.] She estimated the second time that the doorbell
     rang was approximately five to ten minutes after the doorbell
     rang the initial time. [Id.] Following the second ringing of the
     doorbell, Nickens heard two “bams” on the door and believed
     that someone was trying to kick the door in. [Id. at 7.] Nickens
     ran down the stairs where she observed a man turn and start
     going down her steps. [Id. at 8, 14.] Nickens described the
     attire of the man as odd, as it was a hot day, yet the individual
     had on a long-sleeve shirt, long pants and a hat. [Id. at 8-9.]
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      The man was also carrying a blue Giant Eagle bag at that time.
      [Id. at 9.] Nickens proceeded to call the police who found the
      individual within minutes[,] a few doors away[,] wearing the
      same clothing. [Id. at 9-10.] Nickens identified Luster as the
      individual who the police apprehended and as the person who
      had attempted to kick in her door. [Id. at 10.] Scuffmarks
      were visible on her door after Luster had been apprehended.
      [Id. at 11.] Those scuff marks had not been on the door
      beforehand. [Id.] Luster had sought to change his appearance,
      as the long-sleeve shirt and hat had now been placed into the
      blue Giant Eagle bag. [Id. at 10, 15.]

      Police Officer[] Dennis Pape [(“Officer Pape”)] of the Penn Hills
      Police Department also testified at trial. [Id. at 16.] Officer
      Pape responded to the call that had been placed by Nickens.
      [Id. at 16-17.]     Officer Pape testified that Luster fit the
      description that had been provided to them of the prowler. [Id.
      at 17.] Upon detaining Luster, visible through the blue Giant
      Eagle bag were a screwdriver and chisel. [Id. at 17-18.] When
      told by Officer Pape that the Officer was going to bring the
      witness to the scene, Luster stated that “You can go get that
      woman and bring her down.” [Id. at 18.] [] Officer [Pape] had
      never identified the witness as either a male or female at the
      time that Luster made the above statement. [Id.]

Trial Court Opinion, 1/25/16, at 2-4.

      Luster was charged with one count each of criminal attempt (burglary)

and PIC.   The case proceeded to a bench trial, after which the trial court

acquitted Luster of criminal attempt, but found him guilty of PIC. The trial

court sentenced Luster to eighteen to thirty-six months in prison, followed

by two years of probation. Luster filed a Post-Sentence Motion, which was

denied.

      Luster filed a timely Notice of Appeal and a court-ordered Pennsylvania

Rule of Appellate Procedure 1925(b) Concise Statement.

      On appeal, Luster raises the following questions for our review:


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      I.    Did the Commonwealth prove beyond a reasonable doubt
            that [Luster], a handyman, intended to employ his
            handyman tools in a criminal manner to sustain a
            conviction of possessing instruments of crime when he
            merely rang the doorbell, pounded on the door, and
            walked away?

      II.   Did the Commonwealth prove beyond a reasonable doubt
            that [Luster’s] handyman tools were instruments of crime
            when [Luster] worked as a handyman and merely walked
            down the street after ringing the doorbell and pounding on
            someone’s front door?

Brief for Appellant at 4 (some capitalization omitted).

      Our standard of review when considering a challenge to the sufficiency

of the evidence is as follows:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial the
      in the light most favorable to the verdict winner, there is
      sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      the above test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence.         Any doubts
      regarding a defendant’s guilt may be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.         Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact[,] while passing upon the credibility of witnesses
      and the weight of the evidence produced is free to believe all,
      part or none of the evidence.

Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).



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     The Crimes Code provides that “[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.A. § 907(a).       Section 907 defines

instruments of crime as, inter alia, “[a]nything used for criminal purposes

and possessed by the actor under circumstances not manifestly appropriate

for lawful uses it may have.” Id. § 907(d).

     “[I]t is the actor’s criminal purpose that provides the touchstone of his

liability for possessing an instrument of crime.”       Commonwealth v.

Andrews, 768 A.2d 309, 317 (Pa. 2001) (citation omitted); see also

Commonwealth v. Naranjo, 53 A.3d 66, 71 (Pa. Super. 2012) (holding

that the PIC statute does not require that a crime be completed; the focus is

on whether the defendant possesses the instrument for any criminal

purpose).   Further, an intent to use tools found in the possession of an

accused for some criminal purpose “need not be directly proved, but may be

inferred from the circumstances surrounding the incident out of which the

charges arise.”   Commonwealth v. Hardick, 380 A.2d 1235, 1237 (Pa.

1977); see also Commonwealth v. Santiago, 980 A.2d 659, 662 (Pa.

Super. 2009) (stating that wholly circumstantial evidence is sufficient to

support a conviction of PIC). However, while “criminal intent can be inferred

beyond a reasonable doubt from the surrounding circumstances, it cannot be

inferred from mere possession.” Commonwealth v. Foster, 651 A.2d 163,

165 (Pa. Super. 1994).



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      We will address Luster’s claims together.           Luster contends that the

evidence   is   insufficient   to   sustain   his   PIC   conviction    because   “the

Commonwealth failed to present evidence of how [he] intended to use the

screwdriver and chisel for a criminal purpose.”           Brief for Appellant at 10.

Luster also asserts that the evidence was insufficient to demonstrate that

the tools were instruments of crime.1 Id. at 21, 23. Luster argues that the

evidence, viewed in       a    light   most   favorable    to   the    Commonwealth,

demonstrated that he rang the doorbell, banged on the door, and then left

the residence while carrying the screwdriver and chisel in a bag. Id. at 13,

18, 20, 25. Luster claims that he was a handyman and did not intend to

commit a crime.      Id. at 13, 23, 25; see also id. at 22 (wherein Luster

claims that the Commonwealth failed to prove that the tools were used in

the context of a burglary because he was acquitted of criminal attempt

(burglary)).    Luster argues that no evidence was presented that he had

removed the tools from his bag, that he used the tools on the door, or that

he was attempting to hide the tools. See id. at 10, 16, 23, 24; see also id.

at 13-14, 16-17, 18-19, 24 (noting that the incident occurred in the early

afternoon hours, when witnesses would be around to observe someone


1
  We note that Luster does not dispute that he was in possession of the
chisel and screwdriver at the time of his arrest, nor does he dispute that
such tools, if possessed under circumstances indicating a criminal intent,
may be classified as instruments of crime for purposes of section 907. See
Brief for Appellant at 21 (citing Commonwealth v. Jackson, 396 A.2d 436,
438 (Pa. Super. 1978) (stating, inter alia, that “[s]crewdrivers are obviously
of use to car thieves.”)).

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breaking into a home, and that no one observed Luster sneaking around the

residence); 15 (arguing that there was no indication that he caused the

scuffmarks on Nickens’s door); 19 (stating that he removed his long-sleeved

shirt and baseball cap because he was warm). Luster further points out that

he cooperated with the police investigation. Id. at 10, 14, 19, 20, 23.

      The trial court addressed Luster’s sufficiency claim, in light of the

above-stated testimony, as follows:

      The evidence here established that Luster possessed a
      screwdriver and a chisel with the intent to use them criminally.
      He twice rang the doorbell of a home.         These rings were
      approximately five to ten minutes apart.         He then twice
      apparently kicked or banged forcefully on the door. It was only
      when he observed the homeowner approaching that he turned
      and walked away. He later removed his shirt and hat and placed
      them into the bag along with the tools …. He admitted to the
      police that the witness against him was a female, supporting the
      premise that he knew who had seen and identified him as the
      prowler detained by the police.       Under the totality of the
      circumstances, the evidence establishes Luster’s guilt for the
      crime of possessing instruments of crime.

Trial Court Opinion, 1/25/16, at 4-5.

      Viewing the evidence, and all reasonable inferences to be drawn

therefrom, in the light most favorable to the Commonwealth as the verdict

winner, we agree with the trial court that Luster possessed the tools with the

requisite intent to employ them criminally, and adopt the court’s foregoing

reasoning on appeal. See id.; Commonwealth v. Brubaker, 5 A.3d 261,

263 (Pa. Super. 2010) (stating that, when reviewing a sufficiency claim, this

Court must view the evidence in the light most favorable to the verdict



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winner and give the prosecution the benefit of all reasonable inferences);

see also Commonwealth v. Morgan, 401 A.2d 1182, 1191 (Pa. Super.

1979) (noting that appellant’s possession of wirecutters was sufficient to

support a PIC conviction based on appellant’s action of ringing the front

doorbell two times before proceeding to the back door, where he cut a hole

in the screen door near the latch, and his explanation to the police for his

actions was not credible); Commonwealth v. Dalahan, 396 A.2d 1340,

1343 (Pa. Super. 1979) (rejecting a defendant’s sufficiency challenge where

his conviction of PIC was supported by logical inferences to be drawn from

the Commonwealth’s entirely circumstantial evidence that the defendant was

discovered crouching down in alleyway at 3:30 a.m.; immediately adjacent

to him was a tire iron; a window to the business appeared to have been

pried open; and the defendant’s explanation for his presence was entirely

inconsistent with other facts); Jackson, 396 A.2d at 437, 438 (holding that

there was sufficient evidence to sustain the defendant’s PIC conviction where

he was found lying down in the front seat of a car late at night; police saw

ignition wires hanging down from beneath the dashboard; and a screwdriver,

which the court found to properly be classified as an “instrument of crime”

under the circumstances, was found on the car floor near the defendant).

     We note the following as an addendum.       Luster argues that he was

merely a handyman carrying his tools in a bag, which he contends,

demonstrates that he did not possess the tools with any criminal intent.



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Here, the trier of fact was free to disbelieve this testimony. See Talbert,

129 A.3d at 543.          Indeed, based upon Luster’s actions, and the

circumstances surrounding the incident, the trier of fact inferred that Luster

intended to utilize the tools for a criminal purpose, not as a handyman.

Furthermore, the mere fact that the incident in question occurred in the

afternoon, as opposed to nighttime, does not demonstrate a lack of criminal

intent.    Based upon the foregoing, Luster’s challenge to his PIC conviction

fails.

         Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2016




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