J-S51008-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

TRAVANTI LEWIS

                        Appellant                  No. 2997 EDA 2016


           Appeal from the Judgment of Sentence August 23, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0011962-2015


BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                        FILED OCTOBER 02, 2017

      Travanti Lewis appeals from the August 23, 2016 judgment of

sentence of six to twelve months imprisonment followed by three years of

probation, which was imposed after he was convicted at a non-jury trial of

criminal trespass. He challenges the sufficiency of the evidence. We affirm.

      The facts giving rise to Appellant’s conviction were summarized by the

trial court.

           Roosevelt Rosenberg testified that on October 21, 2015 at
      approximately 12:30 A.M., he was walking home from work at
      60th and Chestnut in Philadelphia to his home at 60th and
      Sansom. While on the 6000 block of Sansom, he observed a
      man in the window of his next door neighbor’s rowhome. Mr.
      Rosenberg saw the man try to pry open the window. When the
      man noticed Mr. Rosenberg walking by, he promptly stopped
      what he was doing and started using his cell phone.          Mr.
      Rosenberg testified that he recognized the individual because he
      had previously called the police on him when he was trying to

* Former Justice specially assigned to the Superior Court.
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     break into a house on the block. Mr. Rosenberg made an in-
     court-identification of the Defendant. (Notes of Testimony,
     6/24/16 pp. 9-16).

           Mr. Rosenberg called the police, and went into his own
     house. The police arrived and stood next to the neighbor’s door.
     Mr. Rosenberg stated that the basement light in the house
     turned off at that point. He watched from his backyard as the
     Defendant jumped out of the second floor window and alerted
     the police officers that he was running away. (Id. at 23-24).

            Police Officer William Kolb testified that on October 21,
     2015, he and his partner, Officer Abdul Malik, responded to a
     burglar alarm at 6046 Sansom Street. When they arrived, they
     noticed the light on in the basement of the house. While
     standing outside the rear of the house, Officer Kolb observed a
     loud banging noise he perceived to be coming from the
     basement of the house. It sounded like a hammer or wrench
     banging on pipes. None of the windows or doors of the house
     were open. After Officers had surrounded the house for 30—40
     minutes, securing the premises, Officer Kolb noticed the
     basement light had turned off so he ran to the back of the
     house. He [saw] the back upstairs window was completely wide
     open and heard rustling in the alleyway. He was subsequently
     notified by radio that Sergeant [Andre] Simpson had a male
     stopped on the block. (Id. at 32-38).

           Sergeant Simpson testified that officers ran after the
     Defendant in the alleyway. While he was speaking with the
     neighbor, Mr. Rosenberg, [he] noticed that the Defendant was
     actually standing down the street at towards [sic] 60th Street.
     When Sergeant Simpson stepped down onto the sidewalk,
     looking in the Defendant’s direction, he dipped in between two
     cars and continued running and ducking. Sergeant Simpson
     eventually ordered him down off the porch of a house at 6017
     Sansom and officers placed him in custody. The Defendant was
     bleeding profusely. He matched the original description provided
     by Mr. [Rosenberg] in his 911 call. (Id. at 42-48).

           The Commonwealth also called Anthony DiLella, a member
     of the BTR Commercial Holdings LLC, which owns the property at
     6046 Sansom Street, to testify. He stated that he did not know
     the Defendant and the Defendant had no permission or lease to

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      be inside the property on October 21, 2015. At that time, the
      company was trying to re-rent the house because the prior
      tenant had recently moved out.        The rental property was
      habitable at the time, with running water and electricity. (Id. at
      53-55).

Trial Court Opinion, 12/21/16, at unnumbered 1-3.

      Appellant presents one question for our review: “Was not the evidence

insufficient to convict [A]ppellant of criminal trespass, graded as a felony of

the second degree, where there was insufficient evidence that [A]ppellant

gained entry into the property by force, breaking, intimidation, unauthorized

opening of locks or through an opening not designed for human access?”

Appellant’s brief at 3.   He contends that there was no evidence that he

gained entry to the house through force, and thus, the conviction of second-

degree rather than third-degree criminal trespass was not supported by the

evidence.

      In reviewing the sufficiency of the evidence, we are required to

“determine ‘whether the evidence admitted at trial, and all the reasonable

inferences derived therefrom viewed in favor of the Commonwealth as

verdict winner, supports the [fact finder’s] finding of all the elements of the

offense beyond a reasonable doubt.’” Commonwealth v. Packer, 2017 Pa.

LEXIS 1942 n.3 (Pa. 2017) (quoting Commonwealth v. Cash, 137 A.3d

1262, 1269 (Pa. 2016)).

      Criminal trespass is defined in relevant part as:

      (a) Buildings and occupied structures.

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     (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.

     (2) An offense under paragraph (1)(i) is a felony of the third
     degree, and an offense under paragraph (1)(ii) is a felony of the
     second degree.

     (3) As used in this subsection:

     “Breaks into.” —To gain entry by force, breaking, intimidation,
     unauthorized opening of locks, or through an opening not
     designed for human access.

18 Pa.C.S. § 3503 (emphasis added).

     Appellant was charged with violating § 3503(1)(ii), criminal trespass

by breaking into a building or occupied structure.    He contends that the

Commonwealth failed to establish that he broke into the property located at

6046 Sansom Street as required to sustain a conviction for second-degree

felony criminal trespass. According to Appellant, Mr. Rosenberg’s testimony

that Appellant was “trying to break in” was conjecture, supported only by

Mr. Rosenberg’s observation that Appellant was standing suspiciously around

the property. Appellant’s brief at 10. Appellant points out that there was no

damage to the house, the front, back door and side windows were locked,

and Officer Kolb did not see an open second floor window.        The officer

merely noticed a basement light initially was on, and then was turned off,

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and then the officer saw an open upstairs window, heard a dog barking, and

heard rustling in the backyard.

      Appellant acknowledges that Mr. Rosenberg observed him exiting from

the second floor window of the house. He contends, however, this evidence

failed to establish that he gained entry to the house by force as defined in

the statute.    While such evidence may have supported a conviction of a

lesser degree of criminal trespass, Appellant maintains that it does not make

out a case of second-degree felony criminal trespass. In support thereof, he

relies upon Commonwealth v. Cook, 547 A.2d 406 (Pa.Super. 1988),

where the defendant’s opening of an unlocked door was held to be

insufficient to increase the criminal trespass to a second-degree felony.

      According to the Commonwealth, direct evidence of breaking is not

required.      It relies upon Commonwealth v. Myers, 297 A.2d 151

(Pa.Super. 1972), where Appellant’s presence in front of a gas station at

3:10 a.m., where the door of the establishment had been splintered around

the lock assembly, and the window closest to the doorknob broken, was

sufficient to prove a forced entry. The Commonwealth contends that “strong

circumstantial evidence” indicated that Appellant broke a window to enter

the home. Mr. Rosenberg saw Appellant trying to pry open a window, and

then pretending to look at his phone when he realized he was being

observed. Mr. Rosenberg believed Appellant had already broken the window

and was trying to open it, a belief that was corroborated by the fact that a

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burglar alarm was activated, alerting police.       The Commonwealth also

maintains that the “breaks into” element was met with evidence of entry

“through an opening not designed for human access,” namely a window.

      The trial court concluded there was ample evidence of “breaking.” The

court relied upon Commonwealth v. Black, 580 A.2d 1391 (Pa.Super.

1990), where this Court held that evidence that a defendant tried to pry

open a window of a home was legally sufficient to sustain a conviction of an

attempted § 3503(a)(1)(ii) criminal trespass.      The behavior constituted a

substantial step to entering the home by force. The trial court herein found

that Mr. Rosenberg’s testimony that Appellant was attempting to lift a closed

window at 12:45 a.m., together with proof that Appellant gained access to

the property, established the breaking element beyond a reasonable doubt.

      After a thorough review of the record, we find the evidence that

Appellant broke into the property to be sufficient to sustain the conviction for

second-degree felony criminal trespass.        Mr. Rosenberg first observed

Appellant “trying to put the window up” on the property on October 15, 2015

at approximately 12:40 a.m., as he was returning home from work.             He

called police on that occasion, but surmised that Appellant left before police

arrived.

      A similar event occurred on October 21, 2015, at approximately the

same time of night. Mr. Rosenberg observed Appellant trying again to open

a window to gain access to the neighboring property. Appellant was wearing

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the same hoodie that he had been wearing the prior week. Mr. Rosenberg

called police to report a break in, but a burglar alarm had already alerted

police who were en route. When police arrived, the house was secured. All

doors and windows were locked. However, Officer Kolb could hear a banging

sound emanating from the basement. The officers observed a light in that

location, which was later extinguished.      Shortly thereafter, Mr. Rosenberg

saw Appellant jump from a second floor rear window and run away from

police.   He pointed out Appellant to Sergeant Simpson, who pursued

Appellant.   Officer Kolb verified that the previously closed second floor

window was now open. Appellant was apprehended close by and identified

by Mr. Rosenberg as the perpetrator. He was bleeding profusely from what

was stipulated to be a fractured jaw.        One of the owners of the home

testified that it was habitable, and that he did not know Appellant or give

him permission to enter the premises.

      The Commonwealth asked the trial court to infer that Appellant’s

injuries were sustained when he jumped from the second floor window and,

furthermore, that he was attempting to steal pipes. The court declined to

infer attempted theft or burglary since there was no evidence that anything

was missing or damaged. It concluded, however, that prying open a window

to gain access constituted a “breaking,” and that Appellant was guilty of

criminal trespass, a second-degree felony.




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      It is not the role of this Court to reweigh the evidence and substitute

our judgment for that of the finder of fact. If, viewing the evidence in the

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

factfinder reasonably could have determined from the evidence adduced that

all of the necessary elements of the crime were established beyond a

reasonable doubt, then that evidence will be deemed sufficient to support

the verdict.    Commonwealth v. Lewis, 911 A.2d 558 (Pa.Super. 2006).

That burden may be met with proof beyond a beyond a reasonable doubt of

every element of the crime by means of wholly circumstantial evidence.

Commonwealth v. Brooks, 7 A.3d 852 (Pa.Super. 2010).

      The fact finder credited Mr. Rosenberg’s testimony that he observed

Appellant trying to break in through the window of the residence.

Preliminarily, we agree with the Commonwealth that a door, rather than a

window, is designed for human access.           Moreover, there was considerable

circumstantial evidence that Appellant broke into the residence.                Mr.

Rosenberg immediately reported the event as a burglary in progress to

police.   Simultaneously, an armed burglar alarm was tripped, and police

were alerted that there was a possible intruder at the residence.            When

police arrived, all windows and doors were locked, but a light and noises

suggested      that   someone   was   inside.      The   light   was   subsequently

extinguished and, shortly thereafter, Mr. Rosenberg saw Appellant jump out

of a second floor window. When Appellant was apprehended moments later,

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he exhibited injuries consistent with the second-floor escape.            Such

circumstantial evidence was sufficient to support the trial court’s finding that

Appellant broke into the property, and his conviction for second-degree

felony criminal trespass.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2017




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