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                                   2016 PA Super 30

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                       v.

BRENT BENITO

                             Appellant                No. 149 EDA 2015


           Appeal from the Judgment of Sentence December 9, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0001077-2014


BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.

OPINION BY LAZARUS, J.:                           FILED FEBRUARY 09, 2016

        Brent Benito appeals from the judgment of sentence imposed in the

Court of Common Pleas of Delaware County after a jury found him guilty of

sexual assault1 and criminal trespass.2 Upon careful review, we affirm.

        Benito and the victim, L.C., were married in Trinidad in 2011. Benito

remained in Trinidad. In 2012, L.C. rented an apartment in Upper Darby,

Delaware County.            On September 4, 2013, Benito moved into L.C.’s

apartment. The apartment lease remained at all times in L.C.’s name alone.

After Benito moved in with L.C., the relationship deteriorated. L.C. testified

that Benito physically abused her on more than one occasion.

____________________________________________


1
    18 Pa.C.S.A. § 3124.1.
2
    18 Pa.C.S.A. § 3503(a)(1)(ii).
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      On December 21, 2013, at Benito’s request, L.C. purchased Benito a

one-way train ticket to Connecticut, where he planned to spend Christmas

with his friend, Nicholas. On December 26, while he was still in Connecticut,

Benito testified that L.C. told him to “stay by your bitch you spend Christmas

with” rather than return to Upper Darby on that date as he planned. N.T.

Trial, 9/4/14, at 17-18.     On December 27, L.C. changed the locks to her

apartment because she “didn’t want [Benito] to come back.”             N.T. Trial,

9/3/14, Vol. I at 89.

      On December 29, Benito called L.C., wanting to return to her

apartment.     L.C. told him she would be out of town for New Year’s Eve.

Nonetheless,     Benito   returned   to    the   apartment   that   same   day   at

approximately 9:00 p.m.       When Benito reached the apartment door, he

realized the locks had been changed and called L.C.’s phone four times. She

did not answer, although Benito could hear the phone ringing inside the

apartment.     Benito proceeded to knock on the door.        L.C. asked who was

there and Benito identified himself. L.C. asked what he was doing there and

told him to “Go back by your bitch you spend Christmas with.” N.T. Trial,

9/4/14, at 19.    She also told him to go to his aunt’s house.        Benito then

forced his way through the door and into the apartment. L.C. attempted to

flee, but Benito stopped her. He instructed her to call in sick to work and

placed a suitcase in front of the damaged door to prevent it from opening.

Benito also instructed L.C. to call his aunt; L.C. did so and informed the aunt

that Benito had broken down the apartment door. Benito obtained a knife

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from the kitchen and placed it in his pocket. Thereafter, he directed her into

the bedroom, where he sexually assaulted her.

      On September 5, 2014, a jury convicted Benito of the above offenses

and, on December 9, 2014, the court sentenced him to 4 to 8 years’

imprisonment for sexual assault and a consecutive term of probation of 2

years for criminal trespass. Benito did not file post-sentence motions. He

filed a timely notice of appeal to this Court on January 7, 2015, followed by

a court-ordered statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). On appeal, Benito challenges the sufficiency of the

evidence to establish the crime of criminal trespass.

      We begin by noting our well-settled standard of review.

      In reviewing the sufficiency of the evidence, we consider
      whether the evidence presented at trial, and all reasonable
      inferences drawn therefrom, viewed in a light most favorable to
      the Commonwealth as the verdict winner, support the jury’s
      verdict beyond a reasonable doubt. The Commonwealth can
      meet its burden 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. As an appellate court, we must review
      the entire record and all evidence actually received. The trier 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. Because evidentiary sufficiency is a
      question of law, our standard of review is de novo and our scope
      of review is plenary.

Commonwealth v. Dawson, 2015 Pa. Super. LEXIS 804, *9-10 (Pa.

Super. 2015) (internal citations and punctuation omitted).




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       Benito challenges his conviction for criminal trespass, which is defined

as follows:

       § 3503. Criminal trespass.

       (a) Buildings and occupied structures.

           (1) A person commits an offense if, knowing that he is not
       licensed or privileged to do so, he:

                                           ...

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

18 Pa.C.S.A. § 3503(a)(1)(ii).            This Court has previously adopted the

following definition of privilege: “A person is privileged, within the meaning

of a burglary statute,[3] if he may naturally be expected to be on the

premises often and in the natural course of his duties or habits. . . . Further,

a person who is privileged may still commit burglary if he would not

reasonably be expected to be present[.]” Commonwealth v. Corbin, 446

A.2d 308, 311 (Pa. Super. 1982).

       Here, Benito claims that, because he resided with the victim – his wife

– in the apartment in question, he was “licensed and privileged” to enter the

premises and, therefore, he could not be convicted of trespass.          Benito

____________________________________________


3
  Criminal trespass is similar to burglary and both require a finding that the
actor lacked license or privilege to enter the building or structure in
question. See Commonwealth v. Walker, 559 A.2d 579, 583 (Pa. Super.
1989); 18 Pa.C.S.A. § 3502. Accordingly, case law interpreting the “license
or privilege” element of burglary is relevant to our analysis of that same
element of the crime of criminal trespass.



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argues that he had lived in the apartment for approximately four months

and had thus established that his presence on the premises was in the

natural course of his duties or habits. See id. Accordingly, despite the fact

that wife was the sole lessee of the property and did not wish for him to

enter the premises, Benito argues his privilege was established.

        The Commonwealth emphasizes that L.C. was the sole tenant listed on

the lease and that Benito had only resided on the premises for “a scant four

months” prior to the incident. Brief of Appellee, at 7. The Commonwealth

concedes that “if [Benito’s] name was listed on the lease or there had been

an official sublet agreement, [Benito’s] return to the apartment would

arguably be a reasonable part of his ‘natural course or duties or habits.’”

Brief of Appellee, at 10.      However, under the facts of this case, the

Commonwealth asserts, Benito’s “privilege to enter or be in L.C.’s apartment

is completely dependent upon L.C.’s discretion, and she clearly revoked any

invitation and privilege to enter.” Id. In the alternative, the Commonwealth

argues that even if Benito did possess a property interest in L.C.’s

apartment, “marriage does not provide absolute privilege to each . . . other’s

property.” Id. at 8.

        This appears to be a case of first impression in Pennsylvania. Neither

party has cited a case directly on point, and our own research has uncovered

none.    Benito cites three cases in which courts concluded that a spouse

lacked a license or privilege to enter the marital abode, but distinguishes

them from the instant matter based on either: (1) the presence of a court

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order excluding one spouse from the property, or (2) the existence of a

significant period of separation, extinguishing the defendant’s privilege. See

Commonwealth v. Wholaver, 903 A.2d 1178 (Pa. 2006) (existence of PFA

demonstrated    absence   of   license   to   enter   former   marital   home);

Commonwealth v. Stallworth, 781 A.2d 110 (Pa. Super. 2001) (existence

of PFA, as well as use of force to enter residence, established absence of

license or privilege); Commonwealth v. Woods, 638 A.2d 1013 (Pa.

Super. 1994) (absence of license found where couple had been living apart

and husband used force to enter residence). However, Benito provides no

support for his contention that the mere fact of the parties’ marriage grants

him automatic license to enter the victim’s domicile over her emphatic

objection.

      In its brief, the Commonwealth notes that a lack of privilege may be

found from the surrounding circumstances, Commonwealth v. Gordon,

477 A.2d 1342, 1348 (Pa. Super. 1984), and highlights the following facts:

(1) L.C. was the sole person on the lease and controlled who could enter;

(2) Benito left his key in the apartment when he traveled to Connecticut; (3)

L.C. spoke to Benito while he was in Connecticut and told him not to return;

(4) L.C. changed the locks to the apartment while Benito was gone; (5) L.C.

refused to let Benito in when he returned on December 29 and told him to

go to his aunt’s house; and (6) Benito used force to enter the apartment.

      We conclude that the evidence adduced at trial, viewed in the light

most favorable to the Commonwealth as verdict winner, supports the verdict

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in this matter.   Benito’s privilege to be present in the apartment flowed

directly from the license granted to him by L.C. Once L.C. repeatedly made

it clear to Benito that she did not want him on the premises, his privilege

was revoked. This lack of privilege – and Benito’s knowledge thereof – is

evidenced by the fact that he resorted to kicking in the door to gain entry.

See Stallworth, 781 A.2d at 118 (citing eyewitness testimony that

defendant – victim’s estranged husband – had kicked victim’s door down as

evidence tending to establish “lack of privilege or license” element of crime

of burglary). Accordingly, we affirm Benito’s judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2016




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