J-S44036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
             v.                           :
                                          :
LUNDES GARRETT,                           :
                                          :
                  Appellant               :           No. 3491 EDA 2015

           Appeal from the Judgment of Sentence October 22, 2015
               in the Court of Common Pleas of Monroe County,
              Criminal Division, No(s): CP-45-SA-0000072-2015

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 29, 2016

       Lundes Garrett (“Garrett”), pro se, appeals from the judgment of

sentence entered following his conviction of the summary offense of not

obtaining a construction permit as required under 34 Pa. Code § 403.62,1 a

violation of the Pennsylvania Construction Code Act (“the Code”).2        We

affirm.

       The trial court summarized the facts underlying the instant appeal as

follows:

       [Garrett] resides at 127 Rose Drive in Chestnuthill Township,
       Saylorsburg, PA. Terrence O’ Connor [“O’Connor”], [Garrett’s]
       neighbor across the street at 126 Rose Drive, testified that
       [Garrett] was running a generator on his property for 24 hours a

1
  Section 403.62 provides, in relevant part, that “[a]n owner or authorized
agent who intends to … install, …alter, … convert or replace an electrical …
system regulated by the … Code shall first apply to the building code official
and obtain the required permit under § 403.62a (relating to permit
application).” 34 Pa. Code § 403.62.
2
    See 35 P.S. §§ 7210.101-7210.1103.
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      day, seven days a week[,] beginning the July 4th weekend of
      2014. This went on for about a year. [] O’Connor testified that
      it appeared [that Garrett] was running the generator to provide
      electricity to his residence.

            Hazel Goddard [“Goddard”] testified that she lives next
      door to [Garrett]. She confirmed the generator was running 24
      hours a day, seven (7) days a week starting July 4, 2014[,] until
      July 9th of 2015….

             Paul Jarrett [“Jarrett”] was the building code officer for
      Chestnuthill Township. He responded to a complaint made about
      [Garrett’s] residence at 127 Rose Drive for a generator running
      continuously at the property. [] Jarrett went to the property in
      July 2014 and saw the generator outside [of Garrett’s]
      residence[,] with a cord running from the generator into the
      residence. As a result, he left a violation notice on the door of
      [Garrett’s] residence. [] Jarrett testified that [Garrett] called
      him twenty-one (21) days later, and [] Jarrett advised him to
      obtain a permit for the generator. [] Jarrett testified that the
      building code requires a permit for any changes to an electrical
      system, whether for repairs, alterations or new, and that the
      generator being used on a regular basis was an alteration to the
      electrical system. [] Jarrett sent a legal notice to [Garrett] on
      September 18, 2014. [] Jarrett was able to confirm from his
      observation in July 2014 that the house had no power[,] as the
      electrical meter was locked….

Trial Court Opinion, 1/8/16, at 3-4 (citations omitted).

      A magistrate found Garrett guilty of violating the above-described

offense. Following an appeal de novo to the trial court, Garrett was again

convicted of the above summary offense, and fined $5.00 per day for each

of the 370 days he was in violation of the Code.               See 35 P.S.

§ 7210.903(a)(1) (penalties).    Thereafter, Garrett timely filed the instant

timely appeal.

      Garrett presents the following claims for our review:



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      1. Did the [trial c]ourt err[] when it refused to hear evidence[]
      of Magisterial District Court Judge Colleen Mancuso[’s (“Judge
      Mancuso”)] violations of Canons and various state and federal
      laws that prejudiced [Garrett], which included, falsifying
      representation of the Commonwealth of Pennsylvania with a
      private attorney representing the Commonwealth[’s] interest,
      and falsifying in documentation that this same private attorney
      was [Garrett’s] attorney, and utilizing official government
      stationary to commit this fraud[?]

      2. Did the [trial c]ourt err[] when it aided and abetted in the
      cover up of Judge [] Mancuso’s violations of Canons and various
      state and federal laws, which prejudiced [Garrett] and gave the
      State an undue and bias[ed] advantage, which predicated upon
      [sic] the violations of [Garrett’s] due process rights[?]

      3. Did the [trial c]ourt err[] when it wrongfully interpreted the
      law under [34 Pa. Code §] 403.62, concerning [Garrett’s] failure
      to obtain a permit, in light of the fact that no “work” was being
      performed[?]

      4. Did the [trial c]ourt err[] when it denied [Garrett’s M]otion to
      dismiss[?]

      5. Did the [trial c]ourt err[] when it abused its authority and
      wrongfully interpreted the law under [34 Pa. Code §] 403.62,
      concerning [Garrett’s] failure to obtain a permit, in light of the
      fact that no “work” was being performed[?]

Brief for Appellant at 4-5 (issues renumbered for ease of disposition).

      Our standard of review for an appeal of a summary conviction,

following a de novo trial, is whether an error of law has been committed and

whether the findings of fact are supported by the record. Commonwealth

v. Eyiwunmi Akinsanmi, 55 A.3d 539, 540 (Pa. Super. 2012). “The trial

court’s verdict will only be disturbed if there was a manifest abuse of

discretion.” Id.




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      In his first two claims, Garrett challenges the trial court’s refusal to

consider events that took place at his summary trial before the district

magistrate.   Brief for Appellant at 16-17.      However, as this Court has

concluded, where an appellant is afforded a trial de novo, all matters

pertaining to the proceedings before the district magistrate are irrelevant.

Commonwealth v. Appel, 652 A.2d 341, 343 (Pa. Super. 1994); accord

Commonwealth v. Beaufort, 112 A.3d 1267, 1269 (Pa. Super. 2015).

Accordingly, we cannot grant Garrett relief on these claims.

      In his third, fourth and fifth claims, Garrett challenges the sufficiency

of the evidence underlying his conviction. In reviewing a challenge to the

sufficiency of the evidence,

      [t]he standard we apply … is whether[,] 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 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
      [finder] 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.




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Commonwealth v. Fabian, 60 A.3d 146, 150-51 (Pa. Super. 2013)

(citation omitted).   “This standard of deference is not altered in cases

involving a bench trial, because the province of a trial judge sitting without a

jury is to do what a jury is required to do.” Commonwealth v. Lee, 956

A.2d 1024, 1027 (Pa. Super, 2008) (internal quotation marks and citation

omitted).

      Garret argues that 34 Pa. Code § 403.62 does not apply, because his

home was built in 1999, and completed in April 2000. Brief for Appellant at

7. Garrett contends that the Code applies only to homes built after April 9,

2004. Brief for Appellant at 7. We disagree.

      Code section 403.1 provides, in relevant part, as follows:

      The [] applies to the construction, alteration, repair,
      movement,     equipment,      removal,     demolition,    location,
      maintenance, occupancy or change of occupancy of every
      building or structure which occurs on or after April 9,
      2004, and all existing structures that are not legally occupied.

34 Pa. Code § 403.1(a)(1) (emphasis added).

      The trial court addressed Garrett’s claims as follows:

      … In his appeal, [Garrett] contends [that] no “work” was being
      done by him, and therefore, the Act does not apply. However,
      by the express terms of Section 403.62, a permit is required
      when someone alters an electrical system. Here, [Garrett] did
      just that; he tied in a generator to run his electrical system, and
      did not use the electrical power supplied by [the power
      company]. Clearly, the electrical system in his residence was
      not being run as it was initially intended. We found this was an
      alteration of an electrical system requiring a permit from the
      Chestnuthill Township building code officer.




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      … The plain meaning of 35 [P.S.] § 7210.104, “Application,” and
      34 Pa. Code 403.62 applies to the actions of [Garrett] and no
      exclusions apply. It is the date of activity by [Garrett] that
      requires a permit under the Act, and not the fact that the
      residence was built before the effective date of the Act. In this
      case, [Garrett] conducted the activity of altering the electrical
      system after the effective date of the Act. He failed to obtain a
      permit. [Garrett] continued to refuse to obtain a permit for the
      generator after receiving a [N]otice of violation. Therefore, the
      Commonwealth met its burden in this case.

Trial Court Opinion, 1/8/16, at 5-6 (emphasis in original).    We agree with

the trial court’s analysis and conclusion, as set forth above, and affirm the

trial court’s resolution of Garrett’s sufficiency challenges on this basis. See

id.

      To the extent that Garrett challenges the credibility determinations

made by the trial court, see Brief for Appellant at 16, we observe that the

trial judge, as fact-finder, was free to believe all, part or none of the

evidence. See Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super.

2011) (recognizing that the finder of fact is free to believe all, part or none

of the evidence). “Significantly, [we] may not substitute [our] judgment for

that of the fact[-]finder; if the record contains support for the convictions

they may not be disturbed.” Commonwealth v. Bibbs, 970 A.2d 440, 445

(Pa. Super. 2009).    As the record supports the trial court’s findings, we

cannot grant Garrett relief on his claim.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2016




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