J-S02022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
                 v.                             :
                                                :
                                                :
    DANIEL GIDDINGS,                            :
                                                :
                        Appellant.              :    No. 701 EDA 2017


              Appeal from the Judgment of Sentence, March 16, 2015,
               in the Court of Common Pleas of Philadelphia County,
               Criminal Division at No(s): CP-51-CR-0008546-2013.


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                               FILED APRIL 23, 2019

        Daniel Giddings appeals, nunc pro tunc, from the judgment of sentence

imposed after a jury convicted him of burglary, conspiracy, criminal trespass,

and two counts of criminal attempt.1 After careful review, we affirm.

        The    trial   court   summarized      the   testimony   presented   by   the

Commonwealth at trial as follows:

              At trial, the Commonwealth first presented the testimony
           of Philadelphia Police Officer Daniel Loesch. Officer Loesch
           testified that on March 20, 2013 at approximately 11:46
           a.m., he was on routine patrol with his partner, Officer
           [Ryan] Saunders, when he received a radio call for a
           burglary in progress at 2031 North 32nd Street. The officers,
           who were approximately two blocks away, responded to that
           address within 20 to 30 seconds. Upon arrival, Officer
           Loesch immediately observed a green Ford pickup truck
____________________________________________


1   18 Pa.C.S.A. §§ 3502(a)(2), 903, 3503(a)(1)(i), and 901, respectively.
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       parked in front of the residence. In the bed of the truck,
       there were numerous items, including a refrigerator, stove,
       radiator and several pipes. The officers approached the
       residence, which had its front door ajar, and Officer Loesch
       immediately observed two men trying to carry a bathtub out
       the front door; a third man behind them was carrying a
       radiator. Officer Loesch ordered the men to stop, and asked
       them to produce identification to determine if any of them
       lived there. “[N]one of the men could produce . . . any kind
       of credentials that they lived at the residence.”

          Officer Loesch testified that, shortly thereafter, the
       owner of the property, Eric Williams, arrived at the scene
       and stated that none of the males had permission to be
       inside. At that point, the three males - - [Giddings], Co-
       Defendant Abdul Bailey, and Benjamin Gardner - - were
       placed under arrest. [Gardner pled guilty to burglary and
       conspiracy prior to trial.] Officer Loesch also was presented
       with various photographs taken at the scene which depicted,
       and he described, the numerous items of property stripped
       from the residence[.]

           Philadelphia Police Officer Ryan Saunders testified next
       for the Commonwealth. Officer Saunders testified that, on
       March 20, 2013, he and his partner, Officer Loesch,
       responded to a burglary in progress call at 2031 North 32 nd
       Street. There, they encountered two males who were trying
       to remove a cast iron bathtub from the residence, and a
       third male carrying a large heater.       The males, later
       identified as [Giddings], Co-Defendant Bailey and Benjamin
       Gardner, provided information indicating that they did not
       live at the premises.

          Next, the Commonwealth called Eric Williams to the
       stand. Mr. Williams testified that he was the owner of the
       home at issue, which his father transferred to him via deed
       in 1987. Prior to that, his father had owned the home for
       quite a few years. Mr. Williams testified that both he and
       his father had rented the home to Vito Bueano and his family
       for many years. Commencing in late 2011, however, Mr.
       Bueano began falling back on his rental payments,
       prompting Mr. Williams to issue three successive late rent
       notices[.] Mr. Williams thereafter issued Mr. Bueano a 60-
       day notice to vacate the premises, no later than May 18,


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           2012. Mr. Bueano moved out of the home on May 1, 2012,
           at which time he surrendered all the keys to the residence.

              After Mr. Bueno moved out, Mr. Williams started
           renovating the property to turn it into a duplex. Mr.
           Williams, who worked as a barber, visited the home every
           couple of weeks to perform the renovations. In fact, he had
           been at the home at nine o’clock in the morning on March
           20, 2013 - - the day of the burglary - - to drop off some
           recessed lighting prior to work. Upon receiving a telephone
           call from his father later that day, he returned to the home
           to find several police cars and a pickup truck containing
           numerous items, in addition to items on the sidewalk and in
           the front living room, all of which had been removed from
           his home. . . . Mr. Williams also testified that he did not
           give anyone permission to remove the items from his
           property, and did not know/had never before seen
           [Giddings], Co-Defendant Bailey or Benjamin Gardner.

              Finally, Mr. Williams testified that, when he left the
           property on the morning of March 20, he locked the front
           door and there was no damage to it. When he returned later
           that day, however, he found that his front door had been
           broken into: “where the doorknob would be, it was a hole,
           and the outside of it was completely missing. . . . There was
           a hole and you could see straight through. And the wood
           that separates the handle from the outside of the door, it as
           [a] complete hole, like it had been torn out.”

Trial Court Opinion, 12/20/17, at 2-4 (citations and footnotes omitted).

      The trial court also summarized the case presented by the defense as

follows:

              For his case in chief, [Giddings] presented the testimony
           of his wife, Raina Giddings, and friend, Benjamin Gardner.
           Mrs. Giddings testified that she was the owner of the green
           Ford pickup truck that contained the items from 2031 North
           32nd Street. She testified that on the previous night, March
           19th, [Giddings] had told her that a friend would be coming
           by to “rent” her truck. She explained that she typically
           rented her truck out to friends for $10. At approximately
           8:30 p.m. that evening, a man she had never met before,


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       “Ben”, came to her door; the man, later identified as
       Benjamin Gardner, was alone at the time. She handed Ben
       the keys to her truck, bud did not receive any rental money
       because, in her words, “I felt that was between him and
       [Giddings].”    Nor did she obtain any paperwork or
       documentation from Ben. She simply handed him the keys
       “and that was that”. [While Mrs. Giddings never had
       previously met Gardner, she was acquainted with Co-
       Defendant Bailey as her husband’s friend].

           Finally, [Giddings] called Benjamin Gardner to the stand.
       Mr. Gardner testified that on March 20, 2013, he had been
       living at 2031 North 32nd Street for “about six months”. He
       had been living with Vito Bueano - - a friend since childhood
       - - but Vito had moved out “about a month prior”. Before
       living there, Mr. Gardner had lived many years at 2022
       North 32nd Street (right across the street) with his
       grandmother. Although he was not working at the time, he
       claimed the he was paying Vito $300 per month to live there
       through his Social Security check.        [Although Gardner
       produced a letter from the Social Security Administration
       addressed to him at 2031 North 32nd Street, it was dated
       July 3, 2103, more than three months after the burglary for
       which he and Giddings were charged].

           Mr. Gardner admitted to removing all the items from the
       residence. He claimed that he was planning to so some
       remodeling in the following month. Although he admittedly
       did not have money to pay for the remodeling, he was
       planning to settle a lawsuit from a car accident, and fund
       the project with those proceeds. On March 19, 2013, a
       friend named “Rich” drove him to [Giddings’] house, where
       he rented the pickup truck from [Giddings’] wife. He then
       commenced removing the items from 2031 North 32nd
       Street with two friends, [a different man named] Rich and
       Bobby. Mr. Gardner admitted, however, that [Giddings]
       was standing right next to him and the bathtub when police
       arrived, and Co-Defendant Bailey, who is Mr. Gardner’s
       cousin, also was present.

          Later on in his testimony, but still on direct examination,
       Mr. Gardner’s story started to change. He claimed that it
       was Vito Bueano who was doing the renovations - - even
       though Vito did not live there anymore - - and Vito wanted
       to “start scrapping it.” When Vito made these plans known

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           to Mr. Gardner, Mr. Gardner volunteered to do the
           “scrapping” for him. Mr. Gardner also admitted to pleading
           guilty to burglary and conspiracy for the events at issue, and
           that, in addition to the burglary conviction, he had been
           convicted of other crimen falsi offenses in 2010.

               On cross-examination, Mr. Gardner admitted that he
           never met the landlord in the six months that he claimed to
           live [on] the first floor, front living room of the residence,
           and further, that he told police at the scene, “I had nothing
           in the house to show that I lived there.” Additionally, Mr.
           Gardner admitted that, even though he claimed to be
           actively living there, he removed “two bathtubs, two bath
           sinks, a stove, kitchen sinks, a refrigerator and eight
           radiators, six ceiling lights and copper and iron pipes” - -
           i.e., the very items which made the residence habitable.

Trial Court Opinion, 12/20/17, at 4-6 (citations and footnotes omitted).

      Based upon the above evidence, the jury convicted Giddings on all

charges.     On March 16, 2015, the trial court sentenced Giddings to an

aggregate term of two to eight years of incarceration, followed by five years

of probation. Giddings filed neither a post-sentence motion nor an appeal to

this Court. On August 3, 2015, he filed a pro se post-conviction petition, which

sought to reinstate his direct appeal rights nunc pro tunc.         Following the

appointment of new counsel, the parties stipulated to the reinstatement of

Giddings’ direct appeal rights.    This timely appeal followed.    Both the trial

court and Giddings have complied with Pa.R.A.P. 1925.

      In this appeal, Giddings phrases his sole issue as “Whether the evidence

submitted was insufficient as a matter of law to convict [him] of Burglary (F1),

Conspiracy (F1), Criminal Trespass (F2) and related charges.” Giddings’ Brief

at 6 (footnotes omitted).      According to Giddings, the evidence presented


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against him “was wholly insufficient to prove beyond a reasonable doubt that

[he] had the necessary mens rea to commit the crimes of Burglary,

Conspiracy, and Criminal Trespass. He then continues:


         Evidence was admitted proving conclusively that Gardner
         appeared to reside at 2031 North 32nd Street. Without
         knowing Williams, [the true owner of the property,]
         [Giddings] had no reason not to believe that Gardner was
         licensed to be at the property, and was able to extend that
         license to [Giddings].     Furthermore, [Giddings’] calm
         composure, compliance, and no attempt to flee the scene
         once the police arrived indicate that he did not believe he
         was committing a crime.          Therefore, the record is
         completely devoid of any indication that [Giddings]
         intentionally or knowingly entered 2031 North 32nd Street
         with the intent to commit a crime, let alone that he
         conspired to do so, or even knew that a crime was being
         committed at that property.

Giddings’ Brief at 12.

      When evaluating a sufficiency of the evidence claim, this Court is limited

to considering

         the evidence admitted at trial and all reasonable inferences
         therefrom in the light most favorable to the Commonwealth
         as the verdict winner. An appellate court may not substitute
         its judgment for that of the fact-finder; the critical inquiry is
         not whether the court believes the evidence established
         guilt beyond a reasonable doubt, but whether the evidence
         believed by the fact-finder was sufficient to support the
         verdict. The proper question is not whether the defendant's
         contentions are supported by the record, but whether the
         verdict is so supported.

Commonwealth v. Sinnott, 30 A.3d 1105, 1110 (Pa. 2011). Moreover, “the

[trier] of fact, while passing upon the credibility of the witnesses and the



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weight of the evidence produced, is free to believe all, part or none of the

evidence.” Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011)

(citation omitted).

      We first address Giddings’ sufficiency claim as to his burglary conviction.

“A person is guilty of burglary if he or she enters a building or occupied

structure with the intent to commit a crime therein, unless he or she is licensed

or privileged to enter. 18 Pa.C.S.A. § 3502(a).”           Commonwealth v.

Lambert, 795 A.2d 1010, 1015 (Pa. Super. 2002). In Lambert, we explained

the jury may find the mens rea for burglary solely through circumstantial

evidence.

         The intent to commit a crime after entry may be inferred
         from the circumstances surrounding the incident. While this
         intent may be inferred from actions as well as words, the
         actions must bear a reasonable relation to the commission
         of a crime. Once one has entered a private residence by
         criminal means, we can infer that the person intended a
         criminal purpose based upon the totality of the
         circumstances. The Commonwealth is not required to allege
         or prove what particular crime a defendant intended to
         commit after his forcible entry into the private residence.

Id. at 1022 (citations omitted).

      Giddings contended at trial, and maintains in this appeal, that he had

no knowledge that he was participating in a burglary. According to Giddings,

he believed Gardner had authority to be on the property and to remove the

items at issue. Therefore, he claims his criminal acts stemmed from a mistake

of fact. In support of his contention, Giddings relies on this Court’s previous

decisions in Commonwealth v. Namack, 663 A.2d 191 (Pa. Super. 1995),


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and Commonwealth v. Muniem, 303 A.2d 528 (Pa. Super. 1973). In both

cases this Court reversed the defendants’ convictions because the evidence

established a bona fide, reasonable mistake of fact, which, under the

circumstances, negated the element of criminal intent.

     In Namack, this Court reversed the defendant’s conviction for defiant

trespass for using a trail through woods on a neighbor’s property because he

did so based on any attorney’s advice that he possessed a prescriptive

easement over the property. In Muniem, this Court reversed the defendant’s

burglary conviction after he was observed walking to out of a vacant

warehouse’s half-open door; Muniem ran when the police arrived, but he had

nothing in his possession. In reversing, this Court explained:

           In the instant case, the only evidence produced against
        appellant is his presence, perhaps as a trespasser, in a
        vacant building in daylight about noontime. When found by
        the police, he was walking to the open door by which he
        testified that he entered the building. The owner of the
        building testified that nothing was missing and there was no
        evidence of a [forcible] entry, or possession of any burglary
        tools, other tools or anything else.

           Each case must stand on its own facts in determining
        whether the Commonwealth has sustained its burden of
        proof. At best, the evidence of the Commonwealth may give
        rise to suspicion and conjecture of guilt but most certainly
        does not have such volume and quality capable of
        reasonably and naturally justifying an inference of a willful
        and malicious entry into a building with the intent to commit
        a felony so as to overcome the presumption of innocence
        and establish guilt beyond a reasonable doubt of the crime
        of burglary.

Muniem, 303 A.2d at 529.


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      Although Giddings claims that his case is analogous to Muniem, his case

is readily distinguishable. As stated above, “each case must stand on its own

facts,” and the facts in Giddings’ case are much different from those presented

in Muniem.     Here, police found Giddings coming out of an empty house that

had been broken into, carrying a household fixture, unlike, Muniem, who had

no stolen items, but merely was trespassing.

      The trial court rejected Giddings’ sufficiency challenge as a matter of

credibility for the jury to determine. The court reasoned:

         [Giddings’] contention that Mr. Gardner and, by extension,
         [Giddings], had permission to be present is strictly a matter
         of credibility particularly vis-à-vis Mr. Williams’ unequivocal
         testimony and documentary evidence to the contrary. As
         such, [Giddings’] contention regarding alleged permission
         goes to the weight, and not the sufficiency, of the evidence.
         In that regard, it is axiomatic that the jury is free to believe
         all, part or none of the evidence.

Trial Court Opinion, 12/20/17, at 10 (citation omitted).

      We agree.      Hansley, supra.        Giddings and the Commonwealth

presented two different versions of the same incident, and the jury obviously

found the Commonwealth’s evidence and arguments more credible and

persuasive. As the trial court rightly acknowledged, “there simply exists no

basis for invading [the jury’s] province” where it chooses to believe one

witness’ testimony over another. Id. Thus, Giddings’ sufficiency challenge to

his burglary conviction fails.

      This same adverse credibility determination by the jury also renders

meritless Giddings’ claims that the Commonwealth failed to present sufficient


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evidence that he had the requisite mens rea necessary to convict him for

conspiracy and criminal trespass. A conviction for conspiracy requires proof

of a shared criminal intent. Commonwealth v. Knox, 50 A.3d 749, 755 (Pa.

Super. 2012) (citation omitted).     A person commits the crime of 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[.]” 18 Pa.C.S.A. § 3503(a)(1).

      After hearing the evidence, the jury found Giddings guilty of both of

these charges. Giddings’ claim that the jury “would have had to apply a strict

liability standard” in order to convict him is meritless. As noted above, the

jury chose to believe the Commonwealth’s witnesses and their version of the

case rather than the testimony presented by Giddings. See Commonwealth

v. Montini, 712 A.2d 761 767-68 (Pa. Super. 1998) (stating “a mere conflict

in the testimony of the witnesses does not render the evidence insufficient

because it is within the province of the factfinder to determine the weight to

be given to the testimony and to believe all, part, or none of the evidence”).

      Moreover, circumstantial evidence indicated Giddings was well aware

that Gardner did not have authority to remove the items from this home.

Given the relationship of these men, the broken front door, and the type of

items being removed, a jury could infer that the Commonwealth proved

Giddings had the requisite mens rea to be convicted of these crimes.

      In sum, viewing the evidence and all reasonable inferences drawn in

favor of the Commonwealth, we find that the evidence was sufficient for the

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jury to conclude that Giddings possessed the requisite mens rea for the crimes

of which he was convicted.    Thus, there was sufficient evidence to sustain

Giddings’ convictions for burglary, conspiracy, and criminal trespass.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/19




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