J. A18001/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                              :         PENNSYLVANIA
                    v.                        :
                                              :
DOMINIC S. BURNO,                             :          No. 1572 MDA 2015
                                              :
                          Appellant           :


           Appeal from the Judgment of Sentence, August 26, 2015,
              in the Court of Common Pleas of Dauphin County
              Criminal Division at No. CP-22-CR-0005415-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED MARCH 03, 2017

      Appellant, Dominic S. Burno, appeals from the judgment of sentence

of 36 months of county intermediate punishment, as well as restitution, a

$500 fine, and costs of prosecution, imposed following his conviction of

Criminal   Trespass      --   Building   or   Occupied    Structure,   18 Pa.C.S.A.

§ 3503(a)(1)(i).1     On appeal, appellant raises issues relating to subject

matter jurisdiction, sufficiency of the evidence, and the trial court’s refusal

to answer a question posed by the jury concerning the law of eviction. For

the reasons stated herein, we affirm.




* Former Justice specially assigned to the Superior Court.
1
 Appellant’s intermediate punishment sentence consists of 3 months in the
Dauphin County Work Release Center, followed by 3 months of house arrest,
and, finally, 30 months of supervised probation.
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      The trial court provided a detailed factual background, which we set

forth, in pertinent part, as follows:

                  A jury trial was held in this matter on
            August 10-1[2], 2015. The testimony established
            that, at the time of trial, Donna Rayson-Hutchinson
            (“Ms. Hutchinson”) owned a home at 527 Camp
            Street, Harrisburg, Pennsylvania, a location where
            she no longer lives. Ms. Hutchinson described the
            home as a three story residence . . . .

                  Sometime in September 2013, Ms. Hutchinson
            verbally agreed that four people could live in the
            Camp Street house – Chris Hodges (her nephew),
            Kayla Hodges (Chris’[s] [w]ife]), Brenda Hoffman
            (Chris’[s] [m]other-[i]n-[l]aw/Kayla’s [m]other)[,]
            and Dominic Burno ([Ms. Hoffman’s] boyfriend). For
            a short period of time, Ms. Hoffman’s younger
            daughter, Jalyn[,] also lived in the house.

                   Ms. Hutchinson and Ms. Hoffman worked out
            an agreement between them which required the new
            Camp Street residents to pay the monthly mortgage
            of $540, pay for the utilities used at the home[,] and
            to make repairs to the residence.         According to
            Ms. Hutchinson, upon walking through the house and
            seeing the various areas of disrepair, Ms. Hoffman
            came up with the idea of making the repairs so that
            the group could move in as soon as possible.
            Ms. Hutchinson testified that when the group moved
            in, the repair issues included holes in the floor and
            ceiling near plumbing where vandals had been
            searching for copper piping along with mold on the
            ceiling above the 1st floor shower. Ms. Hoffman
            stated that, during the walk through, there were no
            apparent piping issues.       Ms. Hutchinson did not
            receive rent payments from Ms. Hoffman.

                 Ms. Hoffman testified to her version of the
            agreement to live in the Camp Street house.
            Ms. Hoffman stated that [Mr. and Mrs. Hodges]
            would continue to live there and that she,
            [a]ppellant[,] and her youngest daughter, Jalyn[,]


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          would move in. The residents were to pay $500 per
          month to cover the mortgage along with the utilities.
          Her understanding with regard to repairs was that
          they were responsible to patch the existing holes in
          the walls and ceiling.

                According   to   the   residents,    between
          September 2013 and December 2013, several
          problems arose that necessitated repairs to the
          house. Brenda Hoffman had previously been in the
          house when only Chris and Kayla Hodges lived there.
          She also walked through the house in September
          2013, at which time she decided to move in.
          Ms. Hoffman described smashed steps on the porch,
          holes in the ceilings but [] no obvious piping
          problem.

                At the trial, Ms. Hoffman described the
          problems that arose after moving into the Camp
          Street house. She said that due to a leak in a
          bathroom on the third floor, water was dripping into
          the second floor bathroom and, eventually, part of
          the ceiling collapsed.     Ms. Hoffman stated she
          discovered the second floor bathroom leaking
          through the walls into the dining room causing a wet
          spot on the wood floor. A friend of Ms. Hoffman’s
          plugged the leak and used a heater to dry the floor.

                In the same area of the dining room,
          Ms. Hoffman observed what she described as
          mushrooms growing on the wall after discovering a
          wet rug near the table. She observed the same
          growth on the walls in the basement when she went
          down to explore the source of the moisture. A
          plumber eventually determined that a leak was
          running from the second floor bathroom through the
          walls and doorframe of the first floor bathroom which
          caused the “mushrooms” and wet rug. The ceiling in
          the first floor [] bathroom [later] collapsed.
          Ms. Hoffman testified that she and [a]ppellant were
          paying for all of the repair bills.

                Later in December, the residents began
          smelling a foul odor. In the basement[,] a problem


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          was uncovered with the sewage pipes.            The
          basement floor had to be dug up and the drains
          unclogged by a plumber at the cost of approximately
          $2,200.00. Ms. Hoffman’s father, John Hoffman,
          testified to his involvement in repairing plumbing
          problems in the house. He replaced a pipe to stop
          the leak from the second floor bathroom into the
          dining room and he tried to work on the clogged line
          in the basement but [] determined that the problem
          required a professional plumber.

                 Ms. Hoffman conceded that the group had only
          made one mortgage payment and a late fee in
          October.     In December, Ms. Hoffman had a
          conversation with Ms. Hutchinson during which she
          stated that Ms. Hutchinson had to pay for any further
          repairs. According to Ms. Hoffman, Ms. Hutchinson
          refused to pay for repairs and stated that she was
          going to increase the monthly payment to cover a
          mortgage escrow account shortage. Ms. Hoffman
          testified that she would be unable to pay the
          increased amount and continue to pay for repairs.
          According to Ms. Hoffman, [Ms.] Hutchinson
          indicated that, if the residents could not pay an
          increased amount and pay for repairs, she would
          close the house and let the mortgage company take
          it. Ms. Hoffman responded by stating that she was
          done with the arrangement and that they would be
          leaving. Ms. Hoffman, Mr. Hodges and Ms. Hodges
          moved out in February 2014. Mr. Hoffman stated
          that he helped Ms. Hoffman, [and Mr. and
          Mrs. Hodges] move out of the Camp Street house
          and into his own house in February 2014. He said
          that [a]ppellant did not come with the rest.

                Ms. Hutchinson testified that the December
          encounter with Ms. Hoffman was a heated discussion
          that resulted in her telling them all to leave the
          house.    Based on information from her nephew,
          Chris Hodges, all of the residents were moving out
          by February 1, 2014, so she proceeded as if it were
          true. Ms. Hutchinson testified that she explicitly told
          them all to leave.



                                   -4-
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                Following a trip to Jamaica, Ms. Hutchinson
          returned to the Camp Street house in early March
          2014, where she discovered [a]ppellant in a
          bedroom with a broken leg.        She also saw his
          personal belongings and mail in the mailbox
          addressed to him.        Appellant told her that
          Chris Hodges said he had her permission to stay as
          he had nowhere to go while recuperating.
          Ms. Hutchinson denied this was true especially since
          she did not have a phone number for [Mr. Hodges]
          at the time. Ms. Hutchinson said [a]ppellant had to
          be out before she returned to the residence.

                 Ms. Hutchinson returned to the Camp Street
          house again in May 2014, when she discovered that
          the room where [a]ppellant had been staying was
          still occupied and additional personal property was
          present that she had not seen before. While there,
          she had occasion to wash her hands which caused
          her to realize that the water service was on. This
          discovery prompted her to contact the City of
          Harrisburg to have the water service turned off.

                In July 2014, Ms. Hutchinson went to the
          house with one Quentin Payne (“Mr. Payne”), a
          friend she hires for construction work and home
          repairs, for the purpose of repairing the porch steps.
          She discovered that [a]ppellant was still living in the
          house. Ms. Hutchinson told him that he had to leave
          but [a]ppellant refused. After exchanging words,
          Ms. Hutchinson called the police who informed her
          that they could not assist her because they deemed
          the situation to be a landlord/tenant issue.
          Additionally, [a]ppellant would not let Mr. Payne
          perform the work saying it was his electricity and it
          was not for use. Mr. Payne stated that [a]ppellant
          acted as if he owned the property. Ms. Hutchinson
          also learned that the water service had been turned
          on without her authorization again; therefore, she
          contacted the City to terminate service.

               At the time she was interacting with
          [a]ppellant, two other unknown men arrived at the
          house and attempted to enter. As the men passed


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          her, Ms. Hutchinson tried to verbally and physically
          prevent them from entering the house.             They
          responded by saying that they lived there as they
          rented from [a]ppellant. Mr. Payne also testified to
          this fact. She also testified that [a]ppellant stepped
          forward during the interaction and instructed the
          men to only deal with him. After the July visit,
          Ms. Hutchinson had Mr. Payne change the door locks
          and screw down the windows of the house.

                Ms. Hutchinson once again returned to the
          house in September 2014. The door was locked and
          she did not have a key. She proceeded to go to a
          Magisterial District Justice’s (“MDJ”) office only to be
          told that it was a housing problem. Ms. Hutchinson
          tearfully explained the entire story to the office
          personnel there and, when the manager became
          involved, her name and phone number were taken
          and she was told that someone would be in touch
          with her.

                 Ms. Hutchinson was later contacted by
          Detective William Jackson (“Det. Jackson”), an
          investigator with the Dauphin County District
          Attorney’s Office. Det. Jackson explained that he had
          received information about Ms. Hutchinson’s problem
          from the MDJ’s office manager. He considered the
          call an “on-the-street” complaint and, after review of
          the possible merits with the District Attorney’s office,
          he set out to investigate further. He began by
          reviewing Ms. Hutchinson’s call to 911 made on
          July 8, 2014, during which the dispatcher told her it
          was a housing complaint. The pair later met so
          Ms. Hutchinson     could    provide    a    statement.
          [Det.] Jackson then made arrangements to meet
          [a]ppellant   at    the   Camp     Street    residence.
          Det. Jackson and Ms. Hutchinson entered the house
          and observed [a]ppellant’s personal property.
          Appellant was not there but a note was attached to
          the front door that said either “Dominic” or “Burno”
          and listed a phone number.

               Det. Jackson called the number on the note
          and reached a person who identified himself as


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              [a]ppellant. When asked why he was still in the
              house, [a]ppellant responded by “ranting and raving”
              about how Ms. Hutchinson knew he was still there as
              she had let him stay in the house.         While this
              interaction    was    happening,      Ms.   Hoffman
              unexpectedly arrived to retrieve [a]ppellant’s
              property. When questioned about [a]ppellant’s living
              arrangements, Ms. Hoffman told Det. Jackson that
              she thought he had moved out in February when the
              rest of them had moved. Upon examination of the
              house, Det. Jackson observed empty screw holes in
              windows where Mr. Payne had drilled them. He also
              agreed that a person could gain access to the house
              by way of the balconies on the first and second floor
              without force.

Trial court opinion, 3/8/16 at 2-8.

      Following a jury trial, appellant was found guilty of criminal trespass.

On August 26, 2015, the trial court imposed the above-stated sentence on

appellant.    Appellant subsequently filed a notice of appeal and a timely

concise   statement    of   errors   complained   of   on   appeal   pursuant   to

Pa.R.A.P. 1925(b). In his appellate brief, appellant presents three issues for

our review:

              1.   Did the trial court err where it denied
                   [appellant’s] omnibus pretrial motion to
                   dismiss charges for lack of subject matter
                   jurisdiction, pursuant to the Landlord Tenant
                   Act (68 P.S. § 250.101)?

              2.   Was the evidence at trial insufficient to sustain
                   [] appellant’s conviction for the charge of
                   criminal trespass where the evidence showed
                   that appellant was a tenant of the residence at
                   issue and had not been properly evicted
                   pursuant to the Landlord Tenant Act (68 P.S.
                   § 250.101)?



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            3.    Did the trial court err where it denied
                  [appellant’s] request to answer the jury’s
                  question of law regarding a tenant’s rights as
                  they apply to an eviction proceeding?

Appellant’s brief at 7 (unnecessary capitalization and emphasis omitted).

      We first review whether the trial court erred when it denied appellant’s

motion to dismiss the charges for lack of subject matter jurisdiction.      We

note that “[i]ssues pertaining to jurisdiction are pure questions of law, and

an appellate court’s scope of review is plenary. Questions of law are subject

to a de novo standard of review.”       Robert Half Int’l, Inc. v. Marlton

Technologies, Inc., 902 A.2d 519, 524 (Pa.Super. 2006) (en banc)

(internal citations omitted).   Here, appellant argues that because “the

underlying issue in this case is that of a landlord and tenant complaint,

which had not yet been filed with the appropriate magisterial office, let alone

resolved, the Commonwealth and therefore the trial court lacked jurisdiction

to proceed on this matter in a criminal court.”     (Appellant’s brief at 13.)

Appellant asserts that “[p]roper jurisdiction for all [l]andlord and [t]enant

matters is before a Justice of the Peace and not the Court of Common

Pleas.” (Id.)

      “Subject matter jurisdiction relates to the competency of a court to

hear and decide the type of controversy presented. Jurisdiction is a matter

of substantive law.”   Commonwealth v. Bethea, 828 A.2d 1066, 1074

(Pa.Super. 2003). Further, “[e]xcept where exclusive original jurisdiction of

an action or proceeding is by statute or by general rule . . . vested in


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another court of this Commonwealth, the courts of common pleas shall have

unlimited original jurisdiction of all actions and proceedings, including all

actions and proceedings heretofore cognizable by law or usage in the courts

of common pleas.”        See 42 Pa.C.S.A. § 931(a).    Our supreme court has

stated that “[c]ontroversies arising out of violations of the Crimes Code are

entrusted to the original jurisdiction of the courts of common pleas for

resolution.”   Bethea, 828 A.2d at 1074, citing 18 Pa.C.S.A. § 102.       See

also Commonwealth v. Seiders, 11 A.3d 495, 497 (Pa.Super. 2010) (“All

jurists within that tier [(courts of common pleas)] of the unified judicial

system are competent to hear and resolve a matter arising out of the Crimes

Code.” (citations omitted)).

      Regardless    of    whether   Ms.   Hutchinson   could   have   filed   a

landlord/tenant action seeking appellant’s eviction in magisterial district

court, the Commonwealth ultimately charged appellant with criminal

trespass, a violation of the Crimes Code entrusted to the original jurisdiction

of the courts of common pleas.        See Bethea, supra.       Accordingly, we

cannot conclude that the trial court erred when it denied appellant’s omnibus

pretrial motion to dismiss the charges for lack of subject matter jurisdiction,

particularly because the Commonwealth, and not Ms. Hutchinson, brought

this action against appellant.

      Next, we consider whether the evidence at trial was sufficient to

sustain appellant’s conviction of criminal trespass.    Specifically, appellant



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contends that “because [he] was never served with written notice of eviction

and afforded his rights as a tenant, he maintained his license and privilege

to reside within the Camp Street residence.” (Appellant’s brief at 18.)

            In considering this challenge to appellant’s
            conviction, we are mindful that our review is limited.
            In reviewing the sufficiency of the evidence, we must
            determine whether the evidence, and all reasonable
            inferences deducible therefrom, viewed in the light
            most     favorable   to    the    Commonwealth      as
            verdict-winner, are sufficient to establish all the
            elements of the crime charged beyond a reasonable
            doubt.

Commonwealth v. Namack, 663 A.2d 191, 193 (Pa.Super. 1995), citing

Commonwealth v. May, 656 A.2d 1335 (Pa. 1995) (emphasis deleted).

      Criminal trespass is defined, in relevant part, as follows:

            (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
                              separately     secured      or
                              occupied portion thereof[.]

18 Pa.C.S.A. § 3503(a)(1)(i).       “The crime of [criminal] trespass thus

includes an element of intent or mens rea.”       Namack, 663 A.2d at 194,

citing Commonwealth v. Carter, 393 A.2d 660 (Pa. 1978) (additional

citation omitted). “This element of intent, like every other element of the




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crime, must be proven beyond a reasonable doubt if the conviction is to

survive a challenge to the sufficiency of the evidence.” Id.

      “The crime of criminal trespass involves either entering or remaining in

a place, while knowing that one is not licensed or privileged to do so.”

Commonwealth v. Walker, 559 A.2d 579, 582 (Pa.Super. 1989).                  “The

purpose of the criminal trespass statute is to prevent unlawful intrusion onto

real property or remainder thereon or to prevent unlawful breaches of the

peace relating to realty.”    Commonwealth v. White, 492 A.2d 32, 36

(Pa.Super. 1985).

      As recounted in the trial court’s recitation of the facts, this was an oral,

month-to-month lease agreement between Ms. Hutchinson, the owner of the

property, and Ms. Hoffman.         (See trial court opinion, 3/8/16 at 10

(“Appellant did not verbally participate in setting the terms of the agreement

between Ms. Hutchinson and Ms. Hoffman despite being present for the

conversation.”).) Appellant was, at best, a sub-tenant of Ms. Hoffman. The

lease was terminated in December 2013 when Ms. Hoffman indicated that

she could no longer afford to pay for the extensive repairs necessary to

make the property habitable.      All of the tenants, including Ms. Hoffman,

vacated the property by February 2014; however, appellant remained

behind.

      In the months that followed, appellant was told multiple times by

Ms. Hutchinson to vacate the premises, but he refused. The water was shut



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off because the property was considered to be vacant; however, appellant

turned it back on from the curb using illegal methods.         (Id. at 8-9.)

Ms. Hutchinson had her contractor, Mr. Payne, board up the windows and

screw them shut; appellant removed the screws. Ms. Hutchinson changed

the locks, but appellant continued to live in the house, even sub-letting the

property to unknown individuals. At this point, appellant was essentially a

squatter with no legal right to remain on the premises. Appellant was not

paying rent or making the mortgage payments, nor was he making repairs

to the property.

      As the trial court observed, “Review of the record shows that the

agreement for anyone to live in the house was made between Hutchinson

and Hoffman and that agreement ended as of February 2014.” (Trial court

opinion, 3/8/16 at 15.)        “The only evidence presented to dispute the

Commonwealth’s case was [a]ppellant’s testimony which was internally

inconsistent.”     (Id.)   Even assuming, arguendo, that a landlord/tenant

relationship existed at one time between Ms. Hutchinson and appellant, we

reject the argument that without a formal eviction notice, appellant

somehow remained licensed or privileged to remain in the house. Appellant

was told repeatedly to vacate the premises and he refused.

      The case of Commonwealth v. Groft, 623 A.2d 341 (Pa.Super.

1993), is instructive. In Groft, the 56-year-old defendant had been living

continuously in his mother’s home for 25-30 years. Id. at 344. In fact, he



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had contributed money towards the purchase of the land and helped his

father and brother construct the house. Id. However, the title to the home

was vested in the defendant’s mother, and he had no ownership interest.

Id. For a period of 4-5 years prior to trial, the defendant and his mother

had not gotten along, and she, as well as other family members, had told

the defendant on numerous occasions that he should move out and find his

own place. Id. However, the defendant refused. Id.

      This court found the evidence was sufficient to support the defendant’s

conviction of defiant trespass pursuant to 18 Pa.C.S.A. § 3503(b)(1)(i),

rejecting the defendant’s argument that he lacked the requisite intent where

he had been told repeatedly to leave his mother’s home. Groft at 344. In

addition, the Groft court was not convinced by the defendant’s claim that

the dispute should have been addressed in a civil action rather than in

criminal court:

            While it may be true, as appellant suggests, that a
            civil action could have been brought by his mother,
            this does not necessarily make inappropriate a
            criminal prosecution based upon the same events.
            The subject matter addressed in a civil lawsuit and a
            criminal prosecution do not have to be mutually
            exclusive. Rather, “it is elementary that a person
            may offend against the Commonwealth and also be
            liable for civil damages or other relief growing out of
            the same offense.”        Pearl Assurance Co. v.
            National Insurance Agency, 151 Pa.Super. 146,
            157, 30 A.2d 333, 338 (1943). See also: 1 Pa.C.S.
            § 1929. Because there was sufficient evidence that
            appellant did, in fact, commit the crime of defiant
            trespass, it cannot be said that the criminal process
            was abused by the instant prosecution.


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Id. at 344-345.

      We acknowledge that self-help evictions are disfavored in the law.

See Lenair v. Campbell, 31 Pa. D.& C.3d 237, 242 (Pa.Com.Pl. 1984) (the

legislature envisioned the Landlord Tenant Act as a “complete and exclusive

remedy for a landlord seeking to vindicate his rights”); see also O'Brien v.

Jacob Engle Found, Inc., 47 Pa. D.&C.3d 557, 560 (Pa.Com.Pl. 1987).

However, as stated above, the Commonwealth decided to charge appellant

criminally in this case. Appellant cites no authority for the proposition that if

Ms. Hutchinson could have filed a landlord/tenant action seeking appellant’s

eviction in magisterial district court, her failure to do so foreclosed

alternative means of redress, including criminal charges. Ultimately, it was

the Commonwealth that made the decision to charge appellant with criminal

trespass, a violation of the Crimes Code.

      When the evidence is viewed most favorably to the Commonwealth, as

is our standard of review, it fully supports the conclusion that appellant knew

he was not licensed or privileged to remain on the property but persisted in

doing so nonetheless, thereby exposing himself to criminal liability.

Appellant’s sufficiency of the evidence claim fails.

      Regarding appellant’s third issue, that the trial court abused its

discretion by refusing to answer the jury’s question regarding eviction, we

agree with the trial court that the question was irrelevant.         The jury’s

question was, “Does a homeowner have a right to lawfully evict a person


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without filing paperwork[?]” (Notes of testimony, 8/10-12/15 at 291-292.)

As the trial court explained, “[T]he trial in this matter concerned a criminal

prosecution for trespass[,] not a civil matter disposing of a landlord/tenant

dispute. Accordingly, the Landlord Tenant Act and any eviction procedures

provided therein are not implicated in any way in the criminal prosecution of

[a]ppellant.” (Trial court opinion, 3/8/16 at 16-17 (footnote omitted).) We

agree.   Having determined that appellant’s issues on appeal are without

merit and do not afford him relief, we will affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Stevens, P.J.E. joins this Memorandum.

      Bender, P.J.E. files a Concurring and Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2017




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