J-S01001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellee               :
                                         :
            v.                           :
                                         :
JACQUARRY BENZO,                         :
                                         :
                  Appellant              :           No. 567 WDA 2013

     Appeal from the Judgment of Sentence entered on March 6, 2013
            in the Court of Common Pleas of Allegheny County,
              Criminal Division, No. CP-02-CR-0013131-2012

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

MEMORANDUM BY MUSMANNO, J.:                     FILED FEBRUARY 5, 2015

      Jacquarry Benzo (“Benzo”) appeals from the judgment of sentence

entered following his conviction of defiant trespass.     See 18 Pa.C.S.A.

§ 3503(b)(1)(i). We affirm.

      The trial court aptly summarized the relevant history underlying the

instant appeal as follows:

            [Benzo] was accused [in the instant case] of defiant
      trespass at a public housing complex known as Leland Point
      [Apartments]. He had previously pled guilty to four (4) separate
      cases [of] defiant trespass at that same location (2011-15069,
      2011-15073, 2011-15239, 2012-5066). The [trial] court had
      sentenced [Benzo] to periods of probation at each of the four (4)
      previous cases, and a no[-]contact provision with Leland Point
      was imposed as a term of each probationary period. During the
      stipulated nonjury trial [in the instant case], the Commonwealth
      and [Benzo] stipulated to the facts contained in the Affidavit of
      Probable Cause. The Commonwealth also introduced as Exhibit
      One the Notice of Criminal Trespass that had previously been
      signed by, and served on, [Benzo]. The Notice of Criminal
      Trespass specifically informed [Benzo] that he was “NOT TO
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      ENTER UPON THE LAND AND PREMISES, DESCRIBED AS LELAND
      POINT APARTMENTS, PITTSBURGH, PA.” The notice further
      advised that [Benzo] would be charged with Criminal Trespass
      for violating the terms of the Notice.

            Following the close of the Commonwealth’s case, [Benzo]
      moved for a Judgment of Acquittal, asserting, first, that [Benzo]
      was an invited guest of a tenant of the apartment complex,
      thereby giving him privilege to be present, and, second, that his
      exclusion from the apartment complex by the owner of the
      complex and the court’s no[-]contact [O]rder at previous cases
      violated his right to association. Th[e trial] court denied the
      motion. [Benzo] and the Commonwealth then stipulated in the
      defense case that [Benzo] was an invited guest of a tenant at
      Leland Point, after which [Benzo] rested.

Trial Court Opinion, 7/21/14, at 2-3.

      The trial court convicted Benzo of defiant trespass, and sentenced him

to one year of probation.   The trial court additionally sentenced Benzo, at

case numbers 2012-5066 and 2011-15069, to one-year terms of probation,

for a total sentence of three years of probation.    Thereafter, Benzo timely

filed a Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

      In this appeal, Benzo claims that the evidence is insufficient to sustain

his conviction of defiant trespass. Brief for Appellant at 11. Benzo asserts

that he was invited onto the premises of Leland Point Apartments, and, as

an invited guest, reasonably believed that he was privileged to be present in

the apartment complex.       Id. at 13.    Benzo cites Commonwealth v.

Sherlock, 473 A.2d 629 (Pa. Super. 1984), and Commonwealth v.

Burton, 445 A.2d 191 (Pa. Super. 1982), in support, arguing that a tenant



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retains the authority to give an individual permission to be on the premises,

even when the owner has ordered that person to leave. Brief for Appellant

at 13.

         In reviewing a challenge to the sufficiency of the evidence, we

evaluate the record “in the light most favorable to the verdict winner[,]

giving the prosecution the benefit of all reasonable inferences to be drawn

from the evidence.”       Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa.

Super. 2009) (citation omitted).

         Evidence will be deemed sufficient to support the verdict when it
         established each element of the crime charged and the
         commission thereof by the accused, beyond a reasonable doubt.
         Nevertheless, the Commonwealth need not establish guilt to a
         mathematical certainty, and may sustain its burden by means of
         wholly circumstantial evidence.     Significantly, [we] may not
         substitute [our] judgment for that of the factfinder; if the record
         contains support for the convictions they may not be disturbed.

Id. (citation and quotation marks omitted).             “Any doubt about the

defendant’s guilt is to be resolved by the factfinder 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.” Commonwealth v. Scott, 967

A.2d 995, 998 (Pa. Super. 2009).

         Benzo challenges the sufficiency of the evidence underlying his

conviction of defiant trespass.       A person commits the crime of defiant

trespass if, “knowing that he is not licensed or privileged to do so, he enters

or remains in any place as to which notice against trespass is given by …

actual communication to the actor[.]” 18 Pa.C.S.A. § 3503(b)(1)(i).


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      In its Opinion, the trial court addressed Benzo’s claim and concluded

that it lacks merit. Trial Court Opinion, 7/21/14, at 7-9. We agree with the

sound reasoning of the trial court and affirm on that basis.     See id.    We

additionally observe the following.

      Benzo relies upon this Court’s decisions in Sherlock and Burton.

However, neither case is on point. In both cases, the owner of the premises

had asked the defendant to leave. Sherlock, 473 A.2d at 630; Burton, 445

A.2d at 192.   In the instant case, as part of Benzo’s sentence in a prior

criminal case, the trial court ordered Benzo not to return to the apartment

complex. Trial Court Opinion, 7/21/14, at 3-5; N.T., 7/18/12, at 12-14, 15.

The trial court repeatedly told Benzo that, during his term of probation,

      you will have absolutely no contact with the apartment complex
      previously known as Leland Point [Apartments] or currently
      known as the Residences of South Hills. That means, sir, you
      can’t go to that complex for any reason whatsoever[,] as I
      explained to you earlier, not to visit friends or relatives, nor to
      go hang out, not to use a restroom in the place or a telephone.
      I don’t care what’s going on. If your car breaks down right in
      front of it, you cannot go in to call a tow truck. Do you
      understand?

      [Benzo]: Yes.

Trial Court Opinion, 7/21/14, at 5 (quoting N.T., 7/18/12, at 15).      Under

these circumstances, Benzo had no reasonable belief of a privilege to be

present on the premises.      Accordingly, we affirm Benzo’s judgment of

sentence.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/5/2015




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