J-S60043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    FRANCES DELCARMEN                          :
                                               :
                       Appellant               :   No. 374 MDA 2019

       Appeal from the Judgment of Sentence Entered February 25, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0004036-2017


BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                       FILED NOVEMBER 26, 2019

        Frances Delcarmen (Delcarmen) appeals the judgment of sentence

entered on February 25, 2019, by the Berks County Court of Common Pleas

(trial court).   Following a bench trial, Delcarmen was convicted of criminal

trespass, simple assault and harassment, and she was sentenced to an

aggregate prison term of nine to 23 months, followed by two years of

probation.       On appeal, she contends that the Commonwealth elicited

insufficient evidence to sustain the trespass conviction. We affirm.




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*   Retired Senior Judge assigned to the Superior Court.
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                                               I.

       This bizarre case concerns a love triangle, the dubious use of a house

key and the disturbing practice of dark arts. The trial court recounted the

pertinent facts as follows:

       In and around the years 2016-2017, [Delcarmen] was in a
       romantic relationship with Victor Melendez. At the same time
       Melendez was married to "N.M." N.M. rented an apartment unit
       [in] Wyomissing, PA. Melendez had a key to the apartment unit,
       and he spent time at both N.M.'s apartment unit and
       [Delcarmen’s] residence during the course of the affair. At some
       point in the spring or summer of 2017 Melendez ended the affair
       with [Delcarmen] and began spending nights with his wife, N.M.,
       at her . . . apartment.

       On July 21, 2017, at approximately 4:45 a.m., [Delcarmen]
       arrived by car at N.M.'s apartment building and used a key to
       enter N.M.'s specific unit as N.M., Melendez, and N.M.’s adolescent
       son slept. N.M. and Melendez were sleeping in the same bed and
       bedroom, and the minor was in his own, separate room.
       [Delcarmen] did not knock or announce herself, and she was not
       invited to the apartment unit that night.

       [Delcarmen] proceeded to the bedroom where N.M. and Melendez
       lay asleep in the same bed. Shortly thereafter, N.M. awoke in
       darkness to find an unknown person (later identified as
       [Delcarmen]) shaking the contents of a bottle onto the floor.1
       [Delcarmen] testified that she entered the apartment unit to cast
       a spell and was, in fact, casting the spell by sprinkling powder
       within the bedroom when N.M. woke up and noticed [Delcarmen]
       in the bedroom. N.M. immediately screamed and Melendez
       chased [Delcarmen] into the living room, tackling her and
       wrestling her to the ground. Melendez held down [Delcarmen]
       while N.M. called police. When officers arrived, they handcuffed
       [Delcarmen] in the living room and lifted her off the floor. A


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1N.M. also testified that Delcarmen had aimed a firearm at her face while she
emptied the contents of the bottle. See Trial Transcript, 12/21/2018, at 12.


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       loaded, semi-automatic          handgun       was   located   underneath
       [Delcarmen].

       A key to N.M.’s apartment was also found attached to a key ring,
       which [Delcarmen] had used to enter the apartment. [Delcarmen]
       testified that Melendez provided her with the key during the affair
       and authorized her to use it to enter N.M.’s apartment unit. In
       contrast, Melendez said he never gave [Delcarmen] a key. N.M.
       further testified that she did not give [Delcarmen] a key, and that
       she never gave [Delcarmen] permission to enter her apartment
       unit.

Trial Court 1925(a) Opinion, 6/20/2019, at 1-2.2

       Delcarmen timely appealed.               Both Delcarmen and the trial court

complied with Pa.R.A.P. 1925. Delcarmen now contends that her conviction

of trespass should be reversed because there was no evidence establishing

that she knowingly entered the victim’s apartment without permission.2 She

emphasizes that she used a key to open the front door to the unit and that

Melendez had invited her over without saying that N.M. was home.                  The

Commonwealth argues that there was sufficient evidence to sustain the

conviction because Melendez denied giving Delcarmen a key or permission to

enter N.M.’s home.

                                               II.

       A person commits the offense of criminal trespass into a residence by

entering or gaining “entry by subterfuge or surreptitiously remain[ing] in any



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2 The issue presented in Delcarmen’s brief coincides with the sole issue raised
in her 1925(b) statement of issues complained of on appeal.


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building or occupied structure or separate secured occupied portion thereof[.]”

18 Pa.C.S. § 3503(a)(1)(i).          Another element of the offense is that the

defendant knew she lacked the privilege to enter at the time of her entry. Id.

at § 3503(a)(1); see Commonwealth v. Quintua, 56 A.3d 399, 402 (Pa.

Super. 2012).      A defendant’s knowledge of a lack of privilege to enter a

residence may be inferred from the circumstances. See Commonwealth v.

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

Benito, 133 A.3d 333 (Pa. Super. 2016) (same).

       Evidence is sufficient to sustain a criminal conviction when, viewing the

evidence in the light most favorable to the verdict winner, a trier of fact can

find that each element is established beyond a reasonable doubt.              See

Commonwealth v. Thompson, 778 A.2d 1215, 1217-18 (Pa. Super. 2001).3

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3      Our standard of review for a challenge to the sufficiency of the
       evidence is to determine whether, when viewed in a light most
       favorable to the Commonwealth as verdict winner, the evidence
       at trial and all reasonable inferences therefrom are sufficient for
       the trier of fact to find that each element of the crimes charged is
       established beyond a reasonable doubt. See Commonwealth v.
       Dale, 836 A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth
       may sustain its burden of proving every element of the crime
       beyond a reasonable doubt by means of wholly circumstantial
       evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.
       Super. 2007) (citation omitted).

       “The facts and circumstances established by the Commonwealth
       need not preclude every possibility of innocence.” Id. (citation
       omitted). “As an appellate court, we do not assess credibility nor
       do we assign weight to any of the testimony of record.”
       Commonwealth v. Kinney, 863 A.2d 581, 584 (Pa. Super.



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The role of the trier of fact is to resolve any conflicts in the evidence before it.

See id.

       In this case, the sole point in dispute is whether the Commonwealth

elicited evidence from which the finder of fact could determine that Delcarmen

knew she lacked permission to enter N.M.’s residence. Delcarmen testified

that Melendez gave her the key and invited her to N.M.’s home the night of

the incident. However, both Melendez and N.M. testified to the contrary –

that they never gave Delcarmen permission to enter the home, much less a

key to the front door.

       The trier of fact resolves conflicts in evidence and it could, therefore,

credit the testimony of Melendez and N.M. to conclude that Delcarmen knew

she lacked permission to enter N.M.’s home. Even if Melendez gave her a key,

the trier of fact was free to determine that Delcarmen nevertheless knew she

lacked permission to enter the premises at 4:45 a.m. while armed and with

an intent to cast spells. See Commonwealth v. Baskerville, 681 A.2d 195,



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       2004). Therefore, we will not disturb the verdict “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.” Bruce, 916 A.2d at 661 (citation omitted).
       Furthermore, a mere conflict in the testimony of the witnesses
       does not render the evidence insufficient because the factfinder is
       free to believe all, part, or none of the evidence. Commonwealth
       v. Baskerville, 681 A.2d 195, 200 (Pa. Super. 1996).

Commonwealth v. Lineman, 1326 EDA 2018, at *2 (Pa. Super. September
16, 2019) (some citations omitted).

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200 (Pa. Super. 1996) (trier of fact is free to believe or disbelieve testimony);

Thompson, 778 A.2d at 1219 (the trier of fact “was free to believe that

Appellant’s explanation as to why he entered the victims’ residences was a

pretext for some other criminal motive, and, therefore, that Appellant did not

reasonably believe that the victims would permit entry into their home.”).

Accordingly, the evidence was sufficient as to the trespass conviction and the

judgment of sentence is affirmed.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2019




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