                                   [J-39-2018]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                  :   No. 47 MAP 2017
                                                :
                      Appellee                  :   Appeal from the Order of the Superior
                                                :   Court at No. 1572 MDA 2015 dated
                                                :   March 3, 2017 Affirming the
               v.                               :   Judgment of Sentence of the Dauphin
                                                :   County Court of Common Pleas,
                                                :   Criminal Division, at No. CP-22-CR-
 DOMINIC S. BURNO,                              :   0005415-2014 dated August 26, 2015
                                                :
                      Appellant                 :   ARGUED: May 17, 2018


                              CONCURRING STATEMENT

JUSTICE WECHT                                                   FILED: August 21, 2018

       While I agree with my colleagues that we granted review improvidently in this case,

I nonetheless believe that the concerns that originally prompted us to take the case

warrant comment. Because they bear some relation, I discuss both topics below.

       Dominic Burno has challenged the sufficiency of the evidence to support his

conviction for the crime of criminal trespass, which 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; or

              (ii) breaks into any building or occupied structure or separately
              secured or occupied portion thereof.

18 Pa.C.S. § 3503.
      Burno contends that he and several others were parties to an oral lease with Donna

Rayson-Hutchinson, which established his legal tenancy in the residential property as to

which he was convicted of trespass. As a tenant, he argues, he was licensed and/or

privileged to occupy the property, precluding the jury from concluding that he knew that

he had no such license or privilege. Put simply, if Burno had license or privilege, then,

as a matter of both law and common sense, no jury could convict him of trespass. Cf.

Commonwealth v. Burford, 73 A. 1064 (Pa. 1909) (holding that a conviction for trespass

cannot stand where the landowner has entered into any contract with the other person

giving him the right of entry or occupancy). Accordingly, Burno could not be convicted of

criminal trespass, and could be removed from the property only pursuant to the

protections of the Landlord and Tenant Act of 1951, 68 P.S. §§ 250.101, et seq. (“LTA”),1

which prescribes a rigorous and exclusive procedure for the eviction of a tenant.2

      Burno’s Petition for Allowance of Appeal reflected this understanding of his

argument. As presented, Burno’s issue presupposes his legal tenancy in the property.

Specifically, he sought, and this Court granted, allowance of appeal as to the following

question, taken verbatim from his Petition for Allowance of Appeal:

      Whether the Superior Court erred in concluding that the evidence was
      sufficient to convict [Burno] of criminal trespass, where the evidence
      showed that [Burno] was a tenant of the residence at issue and had not



1     Act of April 6, 1951, P.L. 69, art I, § 101.
2     See 68 P.S. §§ 250.501, 502, 503; see generally Nellom v. Borough, Civ. No. 12-
4627, 2012 WL 6525668, at *3 n.13 (E.D.Pa. Dec. 13, 2012) (summarizing the eviction
process).




                                      [J-39-2018] - 2
       been properly evicted pursuant to the [LTA] prior to the criminal action
       having been filed against him?

Commonwealth v. Burno, 170 A.3d 1028 (Pa. 2017) (per curiam) (emphasis added).

       Only a barebones account of the facts, which we must view in the light most

favorable to the Commonwealth, need be recited.3            Brenda Hoffman engaged in

discussions with Hutchinson concerning a living arrangement in a home owned by

Hutchinson. Specifically, in exchange for her tenancy in the home, Hoffman agreed to

cover a certain number of Hutchinson’s mortgage payments and perform certain repairs

on the property. The discussions in question occurred solely between Hutchinson and

Hoffman. Moreover, when the agreement soured, Hutchinson dealt solely with Hoffman,

and Hoffman characterized the obligations in lieu of rent as her own. However, several

other people were present for the property walk-through and when the oral agreement

was struck following Hutchinson’s and Hoffman’s negotiation, including Burno (Hoffman’s

boyfriend at the time) and Chris Hodges. Hutchinson undisputedly understood that they

and others intended to live in the home with Hoffman.

       The difficulty that arises upon review of the record, performed with due regard to

our deferential standard of review,4 is that Burno’s putative legal tenancy cannot be taken



3    A fuller account of the underlying events may be found in the Superior Court’s
memorandum decision. See Commonwealth v. Burno, 1572 MDA 2015, 2017 WL
838233 (Pa. Super. Mar. 3, 2017).
4      “Evidence will be deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof by the accused,
beyond a reasonable doubt. . . . When reviewing a sufficiency claim the court is required
to view the evidence in the light most favorable to the verdict winner giving the prosecution




                                      [J-39-2018] - 3
as given. While the record certainly enabled a jury to find factual predicates that would

support a judicial finding that Burno was a party to an oral lease with the concomitant right

to possess the property, the record did not compel the jury to do so. Consequently, our

standard of review obligates us to assume that the jury did not share Burno’s view of his

legal relationship with Hutchinson.

       “[A] lease is in the nature of a contract and is to be controlled by principles of

contract law.” Pugh v. Holmes, 405 A.2d 897, 903 (Pa. 1979). Whether an oral contract

has been formed, and the contours of any such agreement, present questions of law for

the court to answer. See Witten v. Stout, 131 A. 360, 361 (Pa. 1925). However, the

court’s legal interpretation of the existence and nature of a given oral agreement hinge

first and foremost upon the findings of fact that provide the circumstances against which

the legal question must be resolved. See GMH Assocs., Inc. v. Prudential Realty Grp.,

752 A.2d 889, 898 (Pa. Super. 2000) (“In the case of a disputed oral contract, what was

said and done by the parties as well as what was intended by what was said and done

by them are questions of fact.”); cf. Thatcher’s Drug Store of West Goshen, Inc. v. Consol.

Supermarkets, Inc., 636 A.2d 156, 160 (Pa. 1994) (embracing the same distinction

between questions of law and the fact-finding necessary to enable legal determinations

in the related context of promissory estoppel).

       Here, the procedural posture—i.e., a sufficiency of the evidence challenge to a

criminal conviction—requires us to construe all such facts in favor of the Commonwealth.




the benefit of all reasonable inferences to be drawn from the evidence.” Commonwealth
v. Widmer, 744 A.2d 745, 751 (Pa. 2000).



                                      [J-39-2018] - 4
Accordingly, we must focus solely upon the evidence that militates in favor of a finding

that Burno had no license or privilege to the property at the relevant time. This entails

construing the evidence in favor of finding no understanding, no quid pro quo, between

Hutchinson and Burno that would support the legal conclusion that they intended to enter,

or by conduct entered, into a legally binding oral lease supported by an offer, an

acceptance, and an exchange of consideration—that their intent to be bound was

demonstrated in their words or deeds. See Pulse Techs., Inc. v. Notaro, 67 A.3d 778,

783 (Pa. 2013); Liss & Marion, P.C. v. Recordex Acquisition Corp., 983 A.2d 652, 659

(Pa. 2009) (holding that the intention to enter into a contract may be inferred “from acts

in the light of the surrounding circumstances”); see also Rambo v. Greene, 906 A.2d

1232, 1236 (Pa. Super. 2006) (holding that “objective manifestations” may establish an

intent to be bound absent a formal “meeting of minds”).

       The nature of the relationship between Hutchinson and Burno was anything but

uncontested. The testimony regarding the facts and circumstances of the agreement

pursuant to which the living arrangement at issue came to be were consistent with the

conclusion that the oral lease negotiated by Hutchinson and Hoffman vested Burno with

a legal tenancy.5 Unfortunately for Burno, the testimony also was consistent with the




5      See, e.g., Notes of Trial Testimony at 12-13 (Hutchinson indicating her
understanding that “[Hoffman], her boyfriend [Burno], my nephew Chris, his wife Kayla,
and sometimes [Hoffman’s] other daughter would be there”), 71-73 (Hutchinson testifying
that Burno received mail and utility bills in his name), 167 (Hoffman testifying that “[t]he
agreement was that [Burno] and I, my youngest daughter, Jalyn, would move into the
property, and Kayla and Chris would continue to live there, and we would pay the amount




                                      [J-39-2018] - 5
contrary conclusion—that only Hutchinson and Hoffman agreed to the terms of the lease

as asserted herein, notwithstanding Hutchinson’s foreknowledge that Hoffman would

allow others to live with her in the residence under the umbrella of her lease agreement

with Hutchinson.6 Furthermore, although Burno’s exclusive reliance upon the assumed

premise of tenancy renders this issue moot, the testimony also provided ample basis for

a jury to conclude that, not only was Burno not licensed or privileged to remain on the

property after Hoffman and the others left, but he knew that he lacked such license or

privilege.7



of [Hutchinson’s] mortgage payment”), 217 (Burno testifying that “[w]e all had an
agreement”).
6       See, e.g., Notes of Trial Testimony at 11 (Hutchinson testifying that “[i]t was
[Hoffman] who wanted to rent the place,” and that “[w]e entered into an agreement where
she would pay the mortgage and the utilities, and she would do whatever repairs needed
to be done”), 12 (Hutchinson agreeing that it was Hoffman’s “idea to do the repairs,” that
“[Hoffman] wanted to move into the house,” and that Hutchinson did not think it was
“necessary” to “write up a lease to have her sign”), 100 (Christopher Hodges testifying
that, as far as he was aware, the “agreement” was “between” Hutchinson and Hoffman,
and that Hodges was neither doing repair work nor paying rent), 180-81 (Hoffman again
testifying in terms suggesting that she alone was bound to Hutchinson, that Hutchinson
and Burno had no “independent conversations” about the agreement, and that Burno was
merely “present” during Hoffman’s phone conversations with Hutchinson).
7      See, e.g., Notes of Trial Testimony at 17 (Hutchinson testifying that, when she
found Burno at the property after she had asked everyone to leave, she informed him that
“[w]hen I come back I don’t want you in here,” and he responded, “Okay. I understand”),
20 (Hutchinson: “He was trying to convince me that I should let him stay. I said no.”), 83
(responding “no” to the question whether from February to July (i.e., after Hoffman and
the others left) she ever gave Burno permission to remain in the house), 101 (Christopher
Hodges testifying that in February Hoffman told them they had to move out, and that
Hodges’ understanding was “that everybody had to leave”).




                                     [J-39-2018] - 6
       These discrepancies necessarily render any legal opinion we issue on a question

that assumes Burno’s legal tenancy provisional and advisory. However, it is not our

practice to render such opinions.8 Consequently, I agree with my fellow Justices that we

granted review improvidently, because the question we sought to consider depends upon

a premise that our standard of review precludes us from accepting as true, rendering any

putative decision hypothetical at best.

       I write separately because I find it regrettable that this circumstance precludes us

from reaching a question of importance to many residential renters in Pennsylvania. The

law recognizes the home as sacrosanct, an overarching principle evident in everything

from the law governing search and seizure9 to mortgage foreclosure10 to eviction. In the

realm of residential leases, in particular, the law, both statutory and common, long has

resisted landlord “self-help” in its multifarious forms.11 Many of these appeared in this



8      See Phila. Entm’t & Dev. Partners, L.P. v. City of Phila., 937 A.2d 385, 392
(Pa. 2007) (“[C]ourts should not give answers to academic questions or render advisory
opinions or make decisions based on assertions as to hypothetical events that might
occur in the future.”).
9      “[W]hen it comes to the Fourth Amendment, the home is first among equals.”
Florida v. Jardines, 569 U.S. 1, 6 (2013).
10     See Bennett v. Seave, 554 A.2d 886 (Pa. 1989) (reviewing the suite of statutory
protections against foreclosure that ensure that debtors have every opportunity to avoid
the loss of their homes).
11     See Smith v. Coyne, 722 A.2d 1022, 1024-25 (Pa. 1999) (“With the passage of the
[LTA], the landlord’s common[-]law remedies to regain possession of his property were
severely limited. Common[-]law remedies included self-help, distraint, and confession of
judgment, all of which were modified by the [LTA] and by the forty years of case[ ]law and
rules changes which followed it. . . . [T]he federal courts have imposed significant




                                      [J-39-2018] - 7
case—Hutchinson’s unilateral cancellation of essential utility services, her efforts to

secure the residence against Burno’s entry, and, of course, her engagement of the

criminal justice system.12 To enshrine this principle, the General Assembly long ago

implemented the time-consuming and demanding eviction procedure prescribed by the

LTA, which undisputedly applies when a legal tenancy is established.            Cf. 68 P.S.

§ 250.602 (“It is intended that this act shall furnish a complete and exclusive system in

itself.”). Those protections must not be discarded lightly.

       Concurring and dissenting below in this case, President Judge Emeritus Bender

observed, and I agree, that “[e]viction cases . . . should be brought by aggrieved landlords

in the appropriate civil forum, as opposed to burdening and abusing the criminal justice

system.”   See Commonwealth v. Burno, 1572 MDA 2015, 2017 WL 838233, at *7

(Pa. Super. Mar. 3, 2017) (Bender, P.J.E., concurring and dissenting). But it is not just

the criminal justice system that is abused. If criminal trespass is allowed to displace the

LTA in close cases, it signals to landlords and law enforcement authorities that resort to

the Crimes Code presents a ready alternative to engaging the LTA’s more laborious, time-

consuming process, with potentially injurious consequences for tenants who are legally

entitled to the LTA’s protections.




restrictions on the landlord’s right to self-help, Williams v. Guzzardi, 875 F.2d 46 (3d Cir.
1989).”).
12     That being said, Burno’s undisputed, illegal reactivation of the water service and
forced entries into the home further illustrated his awareness that any license or privilege
he once had to enter the home had been revoked.



                                      [J-39-2018] - 8
      The LTA eviction process provides an important bulwark against precipitous and

mis- or malfeasant evictions.   Consequently, it is imperative that Pennsylvania law

enforcement authorities and courts remain vigilant for such abuses, examining criminal

prosecutions arising from circumstances similar to these with great skepticism, and that

they err in favor of the LTA’s protections wherever they may apply.




                                     [J-39-2018] - 9
