J-S78037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                 Appellee                 :
                                          :
           v.                             :
                                          :
PATRICK J. TSHUDY,                        :
                                          :
                 Appellant                :           No. 1311 MDA 2014

     Appeal from the Judgment of Sentence entered on April 23, 2014
            in the Court of Common Pleas of Lebanon County,
              Criminal Division, No. CP-38-CR-0001676-2013

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED JANUARY 22, 2015

     Patrick J. Tshudy (“Tshudy”) appeals from the judgment of sentence

imposed following his conviction of criminal trespass.      See 18 Pa.C.S.A.

§ 3503(a)(1)(i). We affirm.

     The trial court set forth the relevant underlying facts as follows:

     Mark Kinney [“Kinney”] testified that he resided at 27 South
     King Street, Annville[, Pennsylvania]. [] Kinney also stated that
     the building was a two story house[,] but that it was set up with
     an upstairs apartment and a downstairs apartment. [] Kinney
     further stated that he resided in the first floor apartment[,]
     known as Apartment B. The testimony of [] Kinney revealed
     that there were two doors that were required to be opened in
     order to enter his living room; a door to enter the building and
     another door to enter his apartment. [] Kinney stated that the
     door to enter the building was not locked.

     [] Kinney testified that on October 25, 2013, at approximately
     3:45 a.m.[,] he and his wife, Laura, were sleeping. [] Kinney
     was sleeping on a recliner located in the living room of his
     apartment and his wife was sleeping in the bedroom of the
     apartment. He stated that his dog began barking and awoke
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     him. At that point[,] he observed [Tshudy] in his apartment. At
     first he thought [Tshudy] was someone he knew but then
     realized that he did not know the person in his apartment.

     [Tshudy] told [] Kinney that “he was cold and that … God spoke
     to him and led him to our apartment and so he didn’t freeze to
     death.” [] Kinney testified that he never heard anyone knock on
     his door, nor did he tell anyone that they could enter his
     apartment. When [] Kinney realized that [Tshudy] was not his
     buddy, he became startled and a little scared. According to []
     Kinney, [Tshudy’s] clothing [was] soaked.           On multiple
     occasions, [] Kinney asked [Tshudy] to leave but [Tshudy] did
     not do so. [] Kinney testified that he believed [Tshudy] was
     drinking as he could smell alcohol on him. [] Kinney did not
     actually call [the] police immediately as [Tshudy] looked like he
     needed help. [] Kinney called several people in order to try to
     help [Tshudy].

     Officer William Strickler [“Officer Strickler”]… is employed by the
     Annville Township Police Department. Officer Strickler is trained
     in standardized field sobriety testing and also attended PLCB
     Liquor Law trainings.

     Officer Strickler stated that on October 25, 2013, he responded
     to 27 South King Street after receiving a phone call from a
     resident who said someone that he did not know was inside his
     apartment. Upon Officer Strickler’s arrival at 27 South King
     Street, Officer Strickler recognized [Tshudy]. [Tshudy] was all
     wet. When asked by Officer Strickler why he was all wet,
     [Tshudy] had no answer.          Officer Strickler observed that
     [Tshudy] “had red, bloodshot, glassy eyes. He had a strong
     odor of alcohol emitting from his person. … [H]e lacked balance
     and lacked coordination. His movements, when he went to get
     his wallet out, it was real slow and then [Officer Strickler] ID’s
     him as [Tshudy] ….” [Tshudy’s] ID revealed that he did not live
     at the 27 South King Street residence, but rather that he lived
     on Bellegrove Road in Palmyra, [Pennsylvania].

     Officer Strickler testified that [Tshudy] appeared to be
     intoxicated. Officer Strickler contacted EMS to come to the
     scene to make sure that [Tshudy] was okay. EMS personnel
     determined that other than being intoxicated, there were no
     medical issues with [Tshudy].



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      [Tshudy was subsequently arrested and charged with criminal
      trespass.] On April 9, 2014, [Tshudy’s] case was called for trial.
      He refused to participate. [The trial c]ourt afforded [Tshudy]
      with multiple chances to attend and participate in his trial. [The
      trial court] directed that his attorney meet with him to persuade
      him to participate. … Eventually, [the trial court] determined
      that [Tshudy’s] trial should proceed in abstentia. During trial,
      [Tshudy’s] interests were represented by counsel.

      Following trial in abstentia, the jury found [Tshudy] guilty of one
      count of [c]riminal [t]respass. On April 23, 2014[, Tshudy] was
      sentenced to the Lebanon County Correctional Facility for a
      period of time served to 2 years less one day. Given that
      [Tshudy] had already served his minimum sentence, he was
      made immediately eligible for parole. As special conditions of his
      parole, [Tshudy] was to obtain a mental health evaluation and
      comply with all recommendations of his mental health
      professionals, including medication recommendations. [Tshudy]
      was also directed not to set foot within 30 feet of the residence
      located at 27 South King Street in Annville at any time for any
      reason. [Tshudy] filed timely Post-Sentence Motions on May 5,
      2014.

Trial Court Opinion, 7/22/14, at 2-5 (citations omitted).

      The trial court denied Tshudy’s Post-Sentence Motions.           Tshudy

subsequently filed a timely Notice of Appeal.

      On appeal, Tshudy raises the following question for our review:

“Whether [Tshudy] should be acquitted because there was not sufficient

evidence presented at trial to prove beyond a reasonable doubt that he

committed the crime of criminal trespass?” Brief for Appellant at 4.

      Tshudy contends that the evidence was insufficient to support his

conviction because Kinney allowed Tshudy to stay in the residence after

discovering Tshudy.     Id. at 8-9.     Tshudy argues that as a result, he

reasonably believed that Kinney had licensed him to enter or remain. Id. at


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9. Tshudy asserts that based on Kinney’s actions of trying to help, Tshudy

has established a legitimate defense to the crime of criminal trespass. Id.

      Our standard of review with regard to a sufficiency challenge is as

follows:

      The standard we apply in reviewing the sufficiency of the
      evidence 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.

Commonwealth v. Valentine, 101 A.3d 801, 805 (Pa. Super. 2014)

(citation omitted).

      The Crimes Code defines criminal trespass 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:




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            (i) enters, gains entry by subterfuge or surreptitiously
            remains in any building or occupied structure or separately
            secured or occupied portion thereof…

                                        ***

      (c) Defenses.--It is a defense to prosecution under this section
      that:

                                        ***

      (3) the actor reasonably believed that the owner of the
      premises, or other person empowered to license access thereto,
      would have licensed him to enter or remain.

18 Pa.C.S.A. § 3503.

      The trial court addressed Tshudy’s claim as follows:

      In this case [Tshudy] entered the premises located at 27 South
      King Street in Annville, [Pennsylvania,] at 3:45 a.m.[,] on
      October 25, 2013[,] without the permission from the occupants
      of said premises.    The victims … were asleep at the time
      [Tshudy] entered their apartment.       [Tshudy] entered two
      separate doors before entering Apartment B. [] Kinney was
      startled and scared when he realized [Tshudy] was in his
      apartment and that he did not know him.

      [Tshudy] did not leave the premises when asked “multiple times”
      to do so by [] Kinney. Because [Tshudy] refused to leave the
      premises, [] Kinney tried calling people to come get [Tshudy].
      The police were finally called to remove [Tshudy] from the
      premises.

Trial Court Opinion, 7/22/14, at 6-7.

      Here, the evidence presented demonstrated Tshudy was not privileged

or licensed to enter the premises. See Commonwealth v. Thompson, 778

A.2d 1215, 1218-19 (Pa. Super. 2001) (concluding that evidence was

sufficient to support criminal trespass conviction where homeowners testified



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that defendant entered their houses without permission and refused to

leave, and defendant’s claim that he was being chased was unsupported by

the evidence); Valentine, 101 A.3d at 805 (stating that the finder of fact in

this case, was free to believe all, part, or none of the evidence and to

determine the credibility of the witnesses). The fact that Kinney attempted

to provide Tshudy aid after he illegally entered the premises does not grant

Tshudy a privilege or license to enter or remain on the premises.       See

generally 18 Pa.C.S.A. § 308 (stating that voluntary intoxication is not a

defense to a criminal charge). Indeed, Tshudy does not cite to any case law

to support such a proposition.    See Pa.R.A.P. 2119(a) (stating that the

argument shall contain citation of authorities as are deemed pertinent).

Based upon the foregoing, we conclude that there was sufficient evidence to

support Tshudy’s criminal trespass conviction.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/22/2015




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