J-S68002-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JERRY GIPLE,

                            Appellant                  No. 940 EDA 2013


        Appeal from the Judgment of Sentence entered March 21, 2013,
            in the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No(s): CP-51-CR-0001319-2012


BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED OCTOBER 17, 2014

        Jerry Giple (“Appellant”) appeals from the judgment of sentence

entered after the trial court convicted him of burglary, criminal trespass, and

criminal mischief.1 We affirm.

        The trial court recounted the evidence presented at trial as follows:

              On September 27, 2011, at approximately 10:00 p.m., Ms.
        Carmella Lemery (hereinafter “Ms. Lemery”) and her (10) ten
        year old son were in the second floor bedroom of the residence,
        located at 241 East Albanus Street in Philadelphia, Pennsylvania,
        when they heard a loud “boom, boom, boom” sound. At the
        time, Ms. Lemery and her son were the only individuals living in
        the residence.    After hearing the loud sound, Mrs. Lemery
        instructed her son to remain in the bedroom as she proceeded
        down the stairs, with her cellular telephone in hand, to
        investigate the origin of the sounds. Ms. Lemery checked the
        front door but saw no one outside. She then opened the interior
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1
    18 Pa.C.S.A. §§ 3502, 3503, and 3304 respectively.
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      door leading to the basement and saw [Appellant] inside her
      home at the bottom of the staircase. Upon seeing Ms. Lemery,
      [Appellant] said, “I’m sorry, I’m sorry, I am on dippers.” Ms.
      Lemery immediately ordered [Appellant] to leave her house and
      informed him that she was calling the police. She then slammed
      the basement door to prevent [Appellant] from entering the
      other parts of her home.

             Thereafter, Ms. Lemery proceeded upstairs to her
      bedroom, where her son was located, and dialed 911. After
      entering her bedroom she shut the bedroom door. Moments
      later, [Appellant] forced his way through the bedroom door by
      breaking the doorframe from the wall. As the bedroom door
      gave way, [Appellant] fell to the ground. While [Appellant] was
      on the ground, Ms. Lemery grabbed her son and jumped over
      [Appellant] to escape from the bedroom. She and her son then
      ran down the hall, down the stairs, and out of the front door of
      their residence, chased by [Appellant]. Once on the street, Ms.
      Lemery and her son ran together, up the block, while screaming
      for help with [Appellant] in pursuit. At some point, Ms. Lemery
      lost her balance and fell to the ground, when [Appellant]
      bypassed her and continued to chase her son, who was still
      fleeing.   As [Appellant] pursued the boy, neighbors tackled
      [Appellant] to the ground and held him down until police officers
      arrived.

            Officer Patrick Dooley was called to the Lemery residence
      at approximately 11:30 p.m. on September 27, 2011. As Officer
      Dooley pulled up to the 200 block of Albanus Street, he saw a
      large group of people in the street. Officer Dooley testified that
      he saw Ms. Lemery being chased by [Appellant], as well as a
      group of approximately five or six people chasing [Appellant].
      Officer Dooley noted that as he was placing [Appellant] into his
      patrol car, [Appellant] was “completely belligerent,” sweating,
      shaking, and “…[had] a lot of saliva coming out of his mouth.”

Trial Court Opinion, 4/2/14, at 1-3 (citations to notes of testimony omitted).

      After hearing this evidence, the trial court convicted Appellant of the

aforementioned crimes.     On March 21, 2013, the trial court sentenced

Appellant to ten (10) to twenty (20) months of incarceration followed by



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three (3) years of probation. Appellant filed a timely appeal. Both the trial

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

      Appellant presents a single issue for our review:

            Was not the evidence insufficient to find beyond a
      reasonable doubt that [Appellant] had the intent to commit a
      crime when he entered the complainant’s house and, therefore,
      was not the evidence insufficient to find [Appellant] guilty of
      burglary?

Appellant’s Brief at 3.

      In cases challenging the sufficiency of the evidence, we recognize:

            We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed in a
      light most favorable to the Commonwealth as verdict winner,
      support the conviction beyond a reasonable doubt. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth's
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant's guilt is to be resolved by the fact
      finder unless the evidence is so weak and inconclusive that, as a
      matter of law, no probability of fact can be drawn from the
      combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012).

      Appellant argues that the evidence was insufficient to support his

burglary conviction because “the evidence was insufficient to find that

[Appellant] intended to commit a crime at the moment he entered the



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complainant’s house.”         Appellant’s Brief at 9.   Appellant references his

statement that he was “on dippers” as well as his “extreme physical and

mental state”, which suggested he “was under the influence of narcotics or

suffering from mental illness, or both” to explain his “aberrant behavior after

he entered the house.” Id. at 14. He maintains that “the bulk of evidence”,

“including that of his mental state, indicated an overall lack of planning …

that militated against the lower court’s conclusion that the evidence was

sufficient to prove beyond a reasonable doubt that [Appellant] had

formulated the intent to commit a crime before entering the complainant’s

house.” Id. at 14-15 (underline in original).

       At the time of the offense on September 27, 2011, a person was guilty

of burglary: 2


       (a)…if he enters a building or occupied structure, or separately
       secured or occupied portion thereof, with intent to commit a
       crime therein, unless the premises are at the time open to the
       public or the actor is licensed or privileged to enter.

18 Pa.C.S.A. § 3502.

       In concluding that Appellant committed burglary, the trial court

explained:

             To be found guilty of burglary, a defendant must enter a
       building or occupied structure with the intent to commit a crime
       therein, unless the premises are at the time open to the public,
____________________________________________


2
 The statute was amended on July 5, 2012, effective September 4, 2012, to
define the offense of burglary in four subsections. 18 Pa.C.S.A. § 3502(a).



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      or the defendant is licensed or privileged to enter. 18 Pa.C.S. §
      3502.     Generally, intent must be inferred solely from the
      defendant’s conduct and statements at the time of the incident.
      Commonwealth v. Madison, 397 A.2d 818, 823 (Pa. Super.
      1979). The determination of intent must be derived from a close
      scrutiny of all the facts and circumstances.         Id.   (Citing
      Commonwealth v. Abdo, 60 A.2d 419 (Pa. Super. 1948)). The
      intent to commit a crime must be formed when the defendant
      entered the building or residence in order to be found guilty of
      burglary. Commonwealth v. Russell, 460 A.2d 316, 321 (Pa.
      Super. 1983). The Commonwealth is not required to allege or
      prove what particular crime the defendant intended to commit
      after his forcible entry into a private residence. Commonwealth
      v. Alston, 651 A.2d 10 92, 1093 (Pa. Super. 1994).

             A thorough review of the factual circumstances in the
      present case demonstrates [Appellant’s] intent to commit a
      crime within the premises. In Commonwealth v. Alston, there
      was sufficient evidence the defendant possessed the intent to
      commit a crime where the defendant entered the basement of
      the home, ascended the stairs from the basement, and fled
      when confronted. 651 A.2d 1092 (Pa. Super. 1994). Similarly
      there was sufficient evidence of intent to commit a crime in
      Commonwealth v. Willetts, where late at night, the defendant
      attempted to break a padlock on a garage door, and fled when
      police arrived. 419 A.2d 1280, 1282 (Pa. Super. 1980). In the
      present case, [Appellant] entered the basement of the Lemery
      residence late at night. When confronted by the homeowner,
      Ms. Lemery, he refused to leave and chased her. Furthermore,
      [Appellant] continued to force his way through the home
      including the basement door and the upstairs bedroom door,
      chasing Ms. Lemery and her son. Both fled their home in fear of
      their safety and [Appellant] continued to pursue them until he
      was subdued by neighbors, who held [him] down until police
      officers arrived.

Trial Court Opinion, 4/2/14, at 4-5.

      The trial court accurately states the applicable law in this case. It is

well-settled that the intent to commit a crime after entry may be inferred

from the circumstances surrounding the incident.         Commonwealth v.



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Lambert, 795 A.2d 1010, 1022 (Pa. Super. 2002) (en banc) (citation

omitted). “While this intent may be inferred from actions as well as words,

the actions must bear a reasonable relation to the commission of the crime.

Once one has entered a private residence by criminal means, we can infer

that the person intended a criminal purpose based on 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.

      Here, our review of the record supports the trial court’s factual

recitation and analysis. Ms. Lemery testified that Appellant “broke into” her

home through her basement door.         N.T., 1/24/13, at 13.    After hearing a

“very loud” “boom, boom, boom” and encountering Appellant in her

basement, Ms. Lemery ran upstairs and called 911, telling the dispatcher

“that someone had broke into my home.” Id. at 14, 18, 27. She testified

that she “was terrified, not knowing what was going to happen to me. And

my son was terrified.” Id. at 24. Philadelphia Police Officer Patrick Dooley

testified to receiving a radio call “to someone breaking in” at Ms. Lemery’s

residence. Id. at 33. Following the neighbors’ chase of Appellant, who had

chased Ms. Lemery and her son out of their home, Officer Dooley

apprehended Appellant and placed him in custody. Id. at 34. The evidence,

viewed in the light most favorable to the Commonwealth as the verdict

winner, was sufficient for the trial court, as factfinder, to infer that Appellant




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entered Ms. Lemery’s residence with the intent to commit a crime.

Lambert, supra. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2014




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