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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                    v.                  :
                                        :
CHRISTOPHER LEITNER,                    :          No. 186 EDA 2011
                                        :
                         Appellant      :


         Appeal from the Judgment of Sentence, October 13, 2010,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0000137-2010


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 10, 2015

      Appellant, Christopher Leitner, appeals from the October 13, 2010

judgment of sentence imposing a term of five to ten months’ imprisonment

with immediate parole followed by three years’ probation, and entered after

a bench trial where appellant was found guilty of criminal trespass,

18 Pa.C.S.A. § 3503(a)(1). After careful review, we affirm.

      The facts underlying this appeal, as summarized by the trial court, are

as follows:

                    On October 18, 2009, at approximately
              1:30 p.m., Officer McCarthy was on duty in the area
              of 1452 East Wilt Street in the City and County of
              Philadelphia. (Notes of Testimony from 10/13/10
              (hereinafter N.T.) at 11) Officer McCarthy was in
              uniform and working solo in a marked police car. He
              responded to a home at that address after receiving
              a radio call and arrived at the same time as
              Officer Fisher, also solo and also in uniform and a


* Former Justice specially assigned to the Superior Court.
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            marked police car.      Officer McCarthy exited his
            vehicle and noticed a for sale sign on the home and
            broken glass on the sidewalk by a basement window.
            (N.T. at 12) Officer McCarthy attempted to enter
            through the front door, which was locked. He then
            went down an alleyway and hopped a fence into the
            backyard. He and Officer Fisher entered the house
            through an unlocked rear door. Upon entering the
            dining room, Officer McCarthy saw Appellant coming
            upstairs from the basement with a black duffle bag.
            Upon seeing the Officers, Appellant dropped the bag
            and ran for the front door. (N.T. at 13) The officers
            quickly secured Appellant who stated that he was
            working on the home. (N.T. at 14) Appellant was
            wearing a black sweatshirt and Dickies, not a
            uniform, and there was no work truck outside the
            home. (N.T. at 15) Officer McCarthy testified that
            the home was vacant but had recently been
            renovated and that the work appeared to be
            completed (N.T. at 16-17). The officers recovered
            the    black   duffle    ba[g],    which   contained
            approximately twenty pounds of used copper piping.
            (N.T. at 14)

Trial court opinion, 12/4/14 at 1-2.

      Appellant was charged with burglary, theft by unlawful taking,

receiving stolen property, criminal mischief, and criminal trespass.    At the

conclusion of his bench trial, appellant was found guilty of criminal trespass,

graded as a felony of the third degree. Appellant was found not guilty of the

remaining charges. Immediately following his trial, appellant was sentenced

to five to ten months’ incarceration with immediate parole plus three years’

reporting probation. No direct appeal was filed.

      On December 10, 2010, the trial court granted appellant’s petition for

allowance of appeal nunc pro tunc and reinstated his direct appeal rights.



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On January 10, 2011, appellant filed a timely notice of appeal. 1   The trial

court failed to order appellant to file a concise statement of errors

complained of on appeal and, on August 16, 2013, wrote an opinion stating

any appellate issues were waived. On October 21, 2013, this court granted

appellant’s motion to vacate briefing schedule, remand for completion of the

record, and directed the trial court to issue a Rule 1925(b) order.      On

March 18, 2014, appellant filed his Rule 1925(b) statement, and the trial

court filed an opinion on December 4, 2014.

      Appellant presents one issue for our review:

            Was not the evidence presented insufficient as a
            matter of law to sustain appellant’s conviction for
            criminal trespass as a felony of the third degree,
            where evidence of flight alone cannot support a
            conviction and the trial court stated that
            non-criminal    reasons    could    have  explained
            appellant’s presence in the property?

Appellant’s brief at 4.

            When reviewing a claim challenging the sufficiency of
            the evidence, we apply the following standard:

                   [W]hether viewing all the evidence
                   admitted at trial 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

1
  The 30th day to file a timely notice of appeal fell on Sunday, January 9,
2011. Consequently, that day is not included in the computation of time.
See 1 Pa.C.S.A. § 1908 (excluding weekends and holidays from the
computation of time).


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                    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 trier 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. Bullick, 830 A.2d 998, 1000
            (Pa.Super.2003)  (quoting   Commonwealth       v.
            Gooding, 818 A.2d 546, 549 (Pa.Super.2003),
            appeal denied, 575 Pa. 691, 835 A.2d 709 (2003)).

Commonwealth v. Jannett, 58 A.3d 818, 819-820 (Pa.Super. 2012).

      The Pennsylvania Crimes Code defines Criminal Trespass, in pertinent

part, as follows:

            § 3503. Criminal trespass

            (a)     Buildings and occupied structures.--

            (1)     A person commits an offense if, knowing that
                    he is not licensed or privileged to do so, he:

                    (i)   enters, gains entry by subterfuge
                          or surreptitiously remains in any
                          building or occupied structure or


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                         separately secured        or   occupied
                         portion thereof[.]

18 Pa.C.S.A. § 3503(a)(1)(i).     In accordance with these provisions, “[t]he

crime of criminal trespass is committed when a person enters a building or

occupied    structure   knowing   that   he   is    not    licensed   to    do   so.”

Commonwealth v. Thomas, 561 A.2d 699, 709 (Pa. 1989).                      There is a

scienter requirement to criminal trespass that the Commonwealth must

prove in order to convict; namely, the Commonwealth must prove that the

defendant reasonably knew that he was not permitted to be on the property.

See, e.g., Commonwealth v. Jones, 912 A.2d 815 (Pa. 2006) (criminal

trespass requires awareness of lack of privilege to enter).

      Appellant concedes he was in the house.             However, he argues the

Commonwealth failed to prove that he lacked permission to be there.

Appellant contends the Commonwealth failed to present an owner or

non-permission witness to establish the scienter element, such as testimony

regarding whether or when the renovations had been completed and by

whom.      According to appellant, the Commonwealth’s case was based on

circumstantial evidence that established only that the arresting officer saw

appellant in the middle of the afternoon inside a house that was newly

renovated. Appellant does not dispute he tried to run to the front door when

the police officer appeared, but upon apprehension, appellant stated that he

was doing work at the house.      Appellant points out that the only damage

observed was a broken basement window; the front door was locked and


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another door, through which the officers entered, was open and undamaged.

Appellant concludes there was insufficient evidence to establish beyond a

reasonable doubt that he knew he was not licensed or privileged to enter, or

that he gained entry by subterfuge or was surreptitiously remaining on the

premises. (Appellant’s brief at 11.)

      The trial court, sitting as finder-of-fact in this non-jury case, opined:

            There was only one witness and Appellant did not
            present any evidence to rebut Officer McCarthy’s
            version of events.      The evidence showed that
            Appellant, immediately upon seeing the officers[,]
            ran and attempted to flee through the front door. It
            was not until the officers apprehended him that he
            claimed that he was working on the home. This is
            clear evidence that he was on the premises illegally
            and without permission.      Appellant had a guilty
            conscious [sic] and was attempting to get away.
            Furthermore, Officer McCarthy testified that[:]
            Appellant was not wearing a worker’s uniform, there
            was no work truck at the site, and all renovations
            appeared to be complete and no longer in progress.

Trial court opinion, 12/4/14 at 3.

      Based on the above, the trial court drew a reasonable inference that

appellant entered the house through the broken basement window and was

proceeding up the basement stairs, carrying a duffel bag filled with

20 pounds of copper tubing, when the officers appeared.         It is undisputed

that appellant dropped the bag and immediately ran in an attempt to flee.

Such evidence leads to a conclusion that appellant did not have permission

to be in the house.     See Commonwealth v. Fox, 498 A.2d 917, 918

(Pa.Super. 1985) (finding sufficient evidence of non-permission where police


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found defendant hiding next to a building with a broken window and

defendant attempted to walk away from the officer).

        Additionally, evidence that appellant attempted to flee the scene of a

crime is admissible to show consciousness of guilt. See Commonwealth v.

Hudson, 955 A.2d 1031, 1036 (Pa.Super. 2008) (flight is a circumstance

tending to prove consciousness of guilt), appeal denied, 964 A.2d 1 (Pa.

2009); Commonwealth v. Coyle, 203 A.2d 782 (Pa. 1964) (flight as

evidence of consciousness of guilt may form the basis in connection with

other proof from which guilt may be inferred).

        We note Officer McCarthy testified that he smelled fresh paint and it

appeared the house had been “recently renovated.”             (Notes of testimony,

10/13/10 at 18-19.)         While appellant stated that he was working on the

home, Officer McCarthy testified that it looked to him as though the work

was completed.           (Id. at 17.)     Additionally, Officer McCarthy testified

appellant was not wearing any type of work uniform nor was there a work

vehicle outside the house. (Id. at 15.) All of these facts led the trial court

to the conclusion that appellant was in the home without license or privilege.

See Commonwealth v. Gordon, 477 A.2d 1342, 1348 (Pa.Super. 1984)

(lack   of   privilege    to   enter    may   be   proved   from   the   surrounding

circumstances).

        Appellant also      argues the    record was insufficient because        the

Commonwealth did not introduce direct evidence of non-permission.              That



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argument lacks merit as such evidence is not required. The Commonwealth

may    sustain   its   burden   entirely   through   circumstantial   evidence.

Commonwealth v. Valentine, 101 A.3d 801, 805 (Pa.Super. 2014).

      Last, appellant contends his conviction cannot stand because the trial

court stated it believed appellant’s behavior was equally consistent with

non-criminal behavior.     (Appellant’s brief at 12.)    Appellant cites to a

statement the trial judge made after finding him guilty of criminal trespass.

The trial judge said, “I think you did it.      But unfortunately, without a

complaining witness, other things could have explained it.”           (Notes of

testimony, 10/13/10 at 39.)

      Appellant omits an entire passage. Prior to announcing the verdicts,

there was much discussion about the copper pipes appellant was carrying

and whether there was damage to the house. (Id. at 36-38.) The notes of

testimony show that the court first found appellant guilty of criminal

trespass and then found appellant not guilty of burglary, theft by unlawful

taking, receiving stolen property, and criminal mischief. (Id. at 38.) After

finding appellant “not guilty” of those crimes, the court said:

            And, Sir, I want to be clear on this. I think that you
            did it. I think the evidence shows you did it, but the
            standard of proof is beyond a reasonable doubt.
            Beyond a reasonable doubt, I’m finding you in that
            house without permission. That’s criminal trespass
            into a structure.       I think you did it.        But
            unfortunately without a complaining witness, other
            things could have explained it.




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                  I just want you to know that; that I do think
            you did it.

Id. at 38-39.    It appears to this court the trial judge was indicating he

believed appellant was guilty of the other crimes but the Commonwealth had

not proved its case beyond a reasonable doubt. In fact, a review of the trial

court’s opinion shows our interpretation is, indeed, what the trial court

meant.   The trial court explained:   “Although this court believed Appellant

was probably guilty of all the offenses he was originally charged with, many

were not proven beyond a reasonable doubt. However, all the elements of

criminal trespass were met since Appellant was in the home and was there

without a license or privilege.” (Trial court opinion, 12/4/14 at 3.)

      Accordingly, based on the above, we affirm appellant’s judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/10/2015




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