J-S20005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KHALIL OTHA ABDUL HAKIM

                            Appellant                 No. 192 WDA 2015


          Appeal from the Judgment of Sentence December 22, 2014
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-00002045-2014
                                        CP-02-CR-0000345-2014


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                             FILED APRIL 26, 2016

        Appellant, Khalil Otha Abdul Hakim, appeals from the judgment of

sentence entered after the trial court, following a bench trial, found him

guilty of fleeing apprehension and criminal trespass. Hakim challenges the

sufficiency of the evidence supporting both convictions. Specifically, Hakim

argues that the Commonwealth failed to prove that he knew the police were

looking to apprehend him, and that the Commonwealth failed to prove that

he was not privileged to be in his girlfriend’s apartment. After careful review,

we conclude that the evidence in both instances was sufficient, and therefore

affirm the judgment of sentence.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     This appeal concerns two separate incidents. The first incident

occurred on December 27, 2013. On that evening, police officers attempted

to execute an arrest warrant on Hakim in his apartment. When they knocked

on the door, they heard rustling, but no verbal reply. The officers then

announced their identities, and after waiting for approximately a minute with

no verbal response, forcibly entered Hakim’s apartment.

     Upon entry, the officers noticed an open window that was providing a

draft from the sub-freezing temperatures outside. Looking through the open

window, the officers observed Hakim on the snow-covered ground. There

were no footprints leading to the area where Hakim was standing. The

officers apprehended Hakim, who claimed to have been taking out garbage.

No garbage was found in the area.

     The second incident occurred on February 5, 2014. The McKeesport

Police Department received a radio report indicating a 911 call from the

apartment of Trina Avrytt asserting that Hakim was inside engaged in a

violent confrontation with Avrytt, the caller’s mother. Upon arriving at the

scene, officers found Avrytt, who stated that Hakim had assaulted her. While

Avrytt testified that she had voluntarily allowed Hakim to enter her

apartment, the Commonwealth presented the testimony of Tim Brophy,

Avrytt’s landlord. Brophy testified that he had previously informed Hakim

that he was no longer permitted to be on the property of Avrytt’s apartment.




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       The trial court found Hakim guilty of evading apprehension for his

actions on December 27, 2013, and guilty of criminal trespass for his actions

on February 5, 2014. The trial court subsequently sentenced to Hakim to a

term    of   imprisonment      of   time   served,   320   days,   on   the   avoiding

apprehension conviction and two years of probation on the criminal trespass

conviction. This timely appeal followed.1

       Both of Hakim’s arguments on appeal raise challenges to the

sufficiency of the evidence supporting his convictions. In reviewing a

challenge to the sufficiency of the evidence, “[w]e must determine whether

the evidence admitted at trial, and all reasonable inferences derived

therefrom, when viewed in the light most favorable to the Commonwealth as

verdict winner, support all of the elements of the offense beyond a

reasonable doubt.” Commonwealth v. Cooper, 941 A.2d 655, 662 (Pa.

2007) (citation omitted).

       Our scope of review is plenary. See Commonwealth v. Weston, 749

A.2d 458, 460 n.8 (Pa. 2000). We may not weigh the evidence and

substitute our judgment for the fact-finder’s, as the fact-finder solely

determines the credibility of witnesses and is free to believe all, part or none
____________________________________________


1
   Hakim’s pro se notice of appeal was filed 31 days after the judgment of
sentence was entered. Technically, this was outside the thirty day window to
file a timely appeal. However, Hakim was imprisoned at the time, and
therefore application of the ”prisoner mailbox rule” to these facts indicates
that Hakim’s notice of appeal was timely filed. See Commonwealth v.
Jones, 700 A.2d 423, 426 (Pa. 1997).



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of the evidence submitted. See Cooper, 941 A.2d at 662. “This standard is

equally applicable to cases where the evidence is circumstantial rather than

direct so long as the combination of the evidence links the accused to the

crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 636

A.2d 1173, 1176 (Pa. Super. 1994) (citation omitted).

      Hakim first argues that his conviction for avoiding apprehension is not

supported by the record. The relevant section of the Crimes Code, 18

Pa.C.S. § 5126(a), provides that “[a] person who willfully conceals himself

or moves or travels within or outside this Commonwealth with the intent to

avoid apprehension, trial or punishment commits a [crime.]” Id. Hakim

contends that the evidence was insufficient to establish that he intended to

avoid apprehension.

      Officer David Finnerty testified that he knocked on Hakim’s door in an

effort to arrest Hakim. It was cold and dark outside, and snow was on the

ground. See N.T., Trial, 10/7/14, at 12. After knocking on the door, he

heard scuffling from inside Hakim’s apartment, but no verbal response. See

id., at 13. Officer Finnerty and another officer then announced their identity

and their intent to arrest Hakim. See id., at 13-14. After about 60 seconds,

the officers forced entry into Hakim’s apartment. See id., at 14.

      When they entered, they noticed an open window with the curtains

blowing in from a cold breeze from the outside. See id. There was no screen

in the window. See id. Looking out the window, Officer Finnerty saw Hakim


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standing on the ground in a gated walkway, the entrances to which were

both locked on the outside. See id., at 15-16. There were no footprints in

the snow around Hakim. See id., at 18. Hakim claimed that he had been

taking out garbage, even though no garbage was found in the area. See id.

      This evidence was sufficient to establish circumstantially that Hakim

intentionally fled out his window when the officers announced their intent to

arrest him. We therefore conclude that Hakim’s first issue on appeal merits

no relief.

      In his second issue, Hakim contends that the evidence was insufficient

to support his conviction for criminal trespass. A person is guilty 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 or separately secured or occupied portion thereof[.]” 18

Pa.C.S.A § 3503(a)(1)(i). Hakim argues that the evidence at trial was

insufficient to establish that he was not privileged to enter Avrytt’s

apartment.

      It is true that the evidence at trial can only be reasonably interpreted

to find that Avrytt voluntarily gave Hakim entrance to the property on the

date of the incident. Furthermore, the Commonwealth’s attempt to establish

that Hakim was legally barred from the property by a protection from abuse

(“PFA”) order failed when the Commonwealth was unable to present a copy




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of the order, and Hakim successfully objected to testimony regarding the

contents of the PFA order. See N.T., Trial, 12/8/14, at 86.

      However, the Commonwealth presented the testimony of Avrytt’s

landlord, Brophy. Brophy testified that Hakim was not on the lease for

Avrytt’s apartment. See id., at 50. Furthermore, he testified that he had

sent a text to Hakim informing him that he was no longer welcome on the

property due to allegations of property damage. See id., at 53. In this text,

Brophy informed Hakim that he would consider Hakim a trespasser and call

the police if he ever found Hakim on the property. See id.

      We acknowledge that, with the absence of the governing lease from

the record, there is a gap in the Commonwealth’s case regarding Brophy’s

authority to revoke Hakim’s privilege to be in Avrytt’s apartment. However,

since both Avrytt and Hakim testified at trial, and there was no indication

that Brophy had overstepped his authority, we conclude that the trial court,

as fact-finder, was entitled to find that Brophy was acting within his

authority. We therefore conclude that the evidence at trial was sufficient to

establish that Hakim was on the property without privilege. Hakim’s final

issue on appeal merits no relief.


      Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2016




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