J-S84022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARQUIS NASIR BROWNLEE                     :
                                               :
                       Appellant               :   No. 1802 EDA 2018

         Appeal from the Judgment of Sentence Entered May 17, 2018
               In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0000410-2017


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

MEMORANDUM BY OTT, J.:                                  FILED MARCH 20, 2019

        Marquis Nasir Brownlee appeals from the judgment of sentence imposed

May 17, 2018, in the Monroe County Court of Common Pleas, after the trial

court granted, in part, Brownlee’s post-sentence motion.         The trial court

resentenced Brownlee to a term of imprisonment of one year, less one day,

to two years, less one day, followed by three years’ probation, after a jury

found him guilty of simple assault, burglary and harassment.1          On appeal,

Brownlee challenges only his conviction of burglary, arguing (1) the evidence

was insufficient to establish the elements of the offense and (2) the guilty

verdict was inconsistent with the jury’s acquittal on a charge of criminal

trespass. For the reasons below, we affirm.




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1   See 18 Pa.C.S. §§ 2701(a)(1), 3502(a)(1), and 2709(a)(1).
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       The facts underlying Brownlee’s arrest and conviction as developed

during his jury trial, are as follows.         On February 20, 2017, Brownlee, Ed

Mupondo, and Elizabeth Padula decided to attend a party at a house rented

by five East Stroudesburg University (“ESU”) students, Aaron Arizmendi (the

victim), Keith Young-Smith, Terrell Pittinger, Thomas House, and Ronald

Sarajian. Brownlee and Mupondo were also students at ESU, and Padula was

visiting them for the night. Padula was also friendly with Arizmendi, and had

been invited to a party at his house that evening.          Padula, Brownlee, and

Mupondo decided to go to the party, before going to a bar.            According to

Padula, Brownlee was getting “riled up” on the walk over to the house because

he did not want to pay a cover charge to get into the party. N.T., 9/19/2017,

at 233.

       When the three arrived, Arizmendi and Pittenger were stationed at the

door, collecting a $5.00 cover charge.           Arizmendi allowed Padula to enter

without paying a cover. Brownlee became angry and aggressive when he was

told he and Mupondo would have to pay to enter, but eventually, someone

paid $10.00 for them both to attend the party. See id. at 72, 75, 159-161.

However, once inside Brownlee continued to act aggressively, and two of the

roommates returned his money and kicked him out.2 See id. at 77, 162-163.

Mupondo and Padula left with him, and all three went to a nearby bar. Shortly
____________________________________________


2 Pittinger testified Brownlee threatened to “knock [Arizmendi] the f--- out.”
N.T., 9/19/2017, at 77. See also id. at 163 (Arizmendi testified Brownlee
threatened him saying, “I’m coming back and [will] fight you guys”).


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thereafter, Pittinger and Arizmendi left the party and ended up at the same

bar as Brownlee. Brownlee approached them aggressively, and threatened

them again. See id. at 80 (Pittinger stated Brownlee “kept saying I’ll kill you,

you’re going to die tonight. I’ll knock you the f--- out.”); see also id. at 163.

However, the two eventually left and went to another bar without incident.

       Padula testified she had intended to stay in Brownlee’s room that night,

but felt unsafe because he was still “enraged” about the party. Id. at 248-

249. She called Arizmendi, and asked him to pick her up at about 2:30 a.m.

He did, and they returned to his house, where the two had sex. See id. at

251. By the time they arrived at the house, the party had long ended.3 At

approximately 3:00 a.m., Brownlee and Mupondo returned to the house in

search of Padula.4 Both Pittinger and Arizmendi heard a knock on Arizmendi’s

second-floor bedroom door. See id. at 85, 170. Arizmendi opened the door

and Brownlee punched him in the face so hard that he fell to the floor.5
____________________________________________


3 House testified the party ended around 1:00 a.m., while Young-Smith
estimated that everyone had left by 2:00 a.m. See N.T., 9/19/2017, at 46,
126-127. Pittinger testified that when he and Arizmendi returned to the house
at approximately 2:30 a.m., it was “literally completely empty,” with the
exception of his roommates who were “all in their rooms.” Id. at 84.

4 Both Brownlee and Mupondo testified that they believed Padula returned to
the party. They claimed they intended to continue to party, and, also return
Padula’s wallet and shoes, which she had left in Mupondo’s room. See N.T.,
9/20/2017, at 38-39, 101-103.

5Brownlee did not deny punching Arizmendi, but claimed Arizmendi swung at
him first, and missed. See N.T., 9/20/2017, at 106. Brownlee also claimed
he threw just one punch. See id.



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Brownlee punched him another time before Pittinger intervened with his

licensed shotgun. See id. at 85-86, 170. At that time, Brownlee and Mupondo

left the house. The argument continued briefly outside before they dispersed.

Arizmendi suffered a fractured jawbone as a result of the assault.

       Brownlee was charged with aggravated assault, simple assault,

burglary, criminal trespass, terroristic threats, and harassment.6    His case

proceeded to a jury trial, and on September 20, 2017, a jury returned a verdict

of guilty on the charges of simple assault, burglary and harassment. The jury

found him not guilty of the remaining offenses. On January 16, 2018, the trial

court originally sentenced Brownlee to a term of one year, less one day, to

two years’, less one day, imprisonment, plus one year probation, for his

conviction of burglary, a consecutive term of two years’ probation for his

conviction of simple assault, and a fine for his conviction of harassment. On

January 26, 2018, Brownlee filed a post-sentence motion challenging the

weight and sufficiency of the evidence supporting his burglary conviction, the

inconsistency of the jury’s verdict of not guilty for the crime of criminal

trespass, and the court’s imposition of consecutive sentences for the crime of

simple assault and harassment. Following a hearing conducted on May 17,

2018, the trial court granted in part, and denied in part, Brownlee’s post-

sentence motion.       The court agreed the convictions of simple assault and
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6 See 18 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), 3502(a)(1), 3503(a)(1),
2706(a)(1), and 2709(a)(1), respectively.


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harassment should have merged with the conviction of burglary, and

resentenced Brownlee to a term of imprisonment of one year, less one day,

to two years, less one day, plus three years’ probation, for his conviction of

burglary. This timely appeal followed.7

       In his first issue, Brownlee contends the evidence was insufficient to

support his conviction of burglary. Specifically, he insists the Commonwealth

failed to prove he “knew he was not licensed or privileged to enter the

house[.]” Brownlee’s Brief at 12 (emphasis in original).

       Our review of a sufficiency claim is well-established:

       In reviewing the sufficiency of the evidence, we must determine
       whether the evidence admitted at trial, and all reasonable
       inferences drawn from that evidence, when viewed in the light
       most favorable to the Commonwealth as verdict winner, was
       sufficient to enable the fact finder to conclude that the
       Commonwealth established all of the elements of the offense
       beyond a reasonable doubt. The Commonwealth may sustain its
       burden by means of wholly circumstantial evidence. Further, the
       trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Rayner, 153 A.3d 1049, 1054 (Pa. Super. 2016)

(quotation omitted), appeal denied, 169 A.3d 1046 (Pa. 2017), cert. denied,

138 S.Ct. 976 (U.S. 2018).

       Pursuant to Section 3502(a)(1)(i) of the Crimes Code:



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7On July 10, 2018, the trial court ordered Brownlee to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Brownlee
complied with the court’s directive, and filed a concise statement on July 27,
2018.


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      A person commits the offense of burglary if, with the intent to
      commit a crime therein, the person:

      (1)(i) enters a building or occupied structure, ... that is adapted
      for overnight accommodations in which at the time of the offense
      any person is present and the person commits, attempts or
      threatens to commit a bodily injury crime therein[.]

18 Pa.C.S. § 3502(a)(1)(i). It is a defense to the crime if, at the time of the

offense, either the premises was open to the public or the defendant was

“licensed or privileged to enter.” 18 Pa.C.S. § 3502(b)(1), (3).

      Here, Brownlee maintains the testimony at trial was “inconsistent

regarding what time the ‘party’ disbanded, and whether or not [he] was

privileged to be in the house.” Brownlee’s Brief at 12 (record citation omitted).

He argues both he and Mupondo testified that people were still leaving the

party when they returned around 3:00 a.m. Accordingly, he contends it would

have been reasonable for the jury to conclude he “did not believe he was not

licensed or privileged to enter the house and/or that the party was ongoing

and the house was still open to the public.” Id.

      We find Brownlee’s claim is meritless. First, we do not agree the house

was open to the public. Although the testimony revealed the residents held a

party that evening, two of them stood by the door to collect a cover charge,

and control who could enter. In fact, Brownlee was asked to leave the party

earlier that evening because he had acted aggressively towards Arizmendi.

Second, with respect to whether Brownlee knew he was not licensed or

privileged to enter at the time of the offense, all of the Commonwealth’s

witnesses testified the party had ended well before Brownlee returned to the


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house and assaulted Arizmendi. See N.T., 9/19/2017, at 46, 84, 126, 167-

168, 251. Although Brownlee testified Padula told him she returned to the

party, she denied this.   See id. at 253.    The jury was free to believe the

testimony of the Commonwealth’s witnesses that the party ended before

Brownlee returned, and that he did so with the intent to assault either

Arizmendi or Pittinger, both of whom he threatened earlier that evening. See

id. at 77, 80, 163. Accordingly, Brownlee is entitled to no relief on this claim.

      Next, Brownlee argues his burglary conviction should be vacated

because it is inconsistent with the jury’s acquittal on the charge of criminal

trespass. See Brownlee’s Brief at 13. Because both crimes require proof that

the defendant knew he was not licensed or privileged to enter the house,

Brownlee insists his acquittal of criminal trespass proves the jury found the

Commonwealth failed to establish this critical element of the offense. See id.

Again, we disagree.

      The Pennsylvania Supreme Court has “long recognized that jury

acquittals may not be interpreted as specific factual findings with regard to

the evidence, as an acquittal does not definitively establish that the jury was

not convinced of a defendant’s guilt.” Commonwealth v. Moore, 103 A.3d

1240, 1246 (Pa. 2014). Accordingly, the Court has consistently rejected the

argument that a jury’s inconsistent verdict provides a basis for relief. See id.

at 1247. A panel of this Court explained:

      [I]nconsistent verdicts, while often perplexing, are not considered
      mistakes and do not constitute a basis for reversal.”
      Commonwealth         v.   Petteway,      847    A.2d    713,    718

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      (Pa.Super.2004) (citations omitted). Rather, “[t]he rationale for
      allowing inconsistent verdicts is that it is the jury’s sole
      prerogative to decide on which counts to convict in order to
      provide     a    defendant     with     sufficient   punishment.”
      Commonwealth. v. Miller, 441 Pa.Super. 320, 657 A.2d 946,
      948 (1995) (citations omitted). “When an acquittal on one count
      in an indictment is inconsistent with a conviction on a second
      count, the court looks upon the acquittal as no more than the
      jury’s assumption of a power which they had no right to exercise,
      but to which they were disposed through lenity. Thus, this Court
      will not disturb guilty verdicts on the basis of apparent
      inconsistencies as long as there is sufficient evidence to support
      the verdict.” Petteway, supra.

Commonwealth v. Frisbie, 889 A.2d 1271, 1273 (Pa. Super. 2005), appeal

denied, 902 A.2d 1239 (Pa. 2006).

      Brownlee does not even address, much less attempt to distinguish, this

well-settled law in his brief. See Brownlee’s Brief at 13. At the conclusion of

the hearing on Brownlee’s post-sentence motion, the trial court commented:

      I’m not even sure that this was an inconsistent verdict at least in
      the legal sense of the term. Again, the conflation of a defense for
      burglary and an element of the criminal trespass crime does not
      necessarily mean that this jury found that [Brownlee] had some
      license or privilege to enter into the premises; it merely finds that
      they either compromised or maybe found some other reason that
      he should not be convicted of criminal trespass but that doesn’t
      necessarily indicate that for purposes of burglary he established
      any fact-based defense.

            And the law … pretty clearly indicates that courts are not
      permitted to speculate as to what the meaning of verdicts are
      even if they are considered to be inconsistent.

            So relief is not warranted on the grounds that the verdict
      was inconsistent with respect to the crimes for which [Brownlee]
      was convicted and not.




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N.T., 5/17/2018, at 14-15.8           We find no basis to disagree.    Therefore,

Brownlee’s second claim fails, and he is entitled to no relief.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/19




____________________________________________


8 We note the trial court did not specifically address either of Brownlee’s claims
in its Pa.R.A.P. 1925(a) opinion, but rather relied upon the reasoning it
provided during the May 17, 2018, hearing. See Trial Court Opinion,
8/20/2018, at 3.

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