J-S25013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BOBBY STANFORD JOHNSON,

                            Appellant                No. 1305 WDA 2014


         Appeal from the Judgment of Sentence Entered July 10, 2014
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-03-CR-0009830-2013


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 03, 2015

        Appellant, Bobby Stanford Johnson, appeals from the judgment of

sentence of 6-12 months’ incarceration and a concurrent term of 10 years’

probation, imposed following his conviction for burglary and related offenses.

After careful review, we affirm.

        Appellant’s conviction stems from the events of June 17, 2013, when

Jonathan Marshall discovered Appellant inside a house at 223 Spruce Street

in Clairton (House), the home of Marshall’s deceased mother who had

passed away five years prior. At around 9 p.m., Marshall picked up his wife

and six children from a bible school held at a church across the street from

the House.      At that time, he noticed the door of the House was open.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Marshall recalled locking the door a few days earlier. He went to the House

to investigate, and on the way he discovered Dehlia Brown in a blue van

parked in front of the House. Marshall informed Brown that he was going to

call the police, and she urged him against that course of action.

      After the short exchange with Brown, Marshall proceeded to walk

towards the House. Marshall then entered the House and found Appellant,

whom Marshall knew from previous encounters, and another man, Jordan

Spencer, standing in the living room. Marshall observed Appellant holding

the stainless-steel door of a refrigerator in his hands. He also saw that the

House’s stove and several beds had been moved into the living room.

Marshall confronted Appellant, asking Appellant what he was doing in the

House.      Appellant replied that he did not know the House belonged to

Marshall.

      Marshall followed as Appellant left the House.     Marshall watched as

Appellant got into the blue van with Brown and Spencer. Marshall testified

that he saw them put something into the van, but Marshall did not know

what it was.     The van then quickly departed.    Marshall’s wife called the

police, who traced the blue van’s license plate, leading to Brown’s home,

where Brown and Spencer were arrested that same evening.            Marshall

picked Appellant and Spencer from a police photo array as the two men he

observed in the House.      Appellant eventually turned himself in after a

warrant was issued for his arrest.




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        The   Commonwealth        charged      Appellant   with   burglary,1   criminal

conspiracy,2 criminal trespass,3 theft,4 terroristic threats,5 simple assault,6

and attempted theft.7 The terroristic threats, simple assault, and attempted

theft charges were withdrawn prior to trial.          Following a jury trial held on

April 15-16, 2014, Appellant was found guilty of burglary and criminal

trespass, and not guilty of conspiracy and theft.

        On April 28, 2014, Appellant filed a motion for judgment of acquittal,

which was denied by the trial court on July 10, 2014. Also on July 10, 2014,

the trial court sentenced Appellant to 6-12 months’ incarceration and a

concurrent term of 10 years’ probation for burglary, and to no further

penalty for criminal trespass. On August 8, 2014, Appellant filed a timely

notice of appeal and a Pa.R.A.P. 1925(b) statement. The trial court issued

its Rule 1925(a) opinion on December 12, 2014.

        Appellant now presents the following questions for our review:
____________________________________________


1
    18 Pa.C.S. § 3502(a)(2).
2
    18 Pa.C.S. § 903.
3
    18 Pa.C.S. § 3503(a)(1)(ii).
4
    18 Pa.C.S. § 3921(a).
5
    18 Pa.C.S. § 2706(a)(1).
6
    18 Pa.C.S. § 2701(a)(3).
7
    18 Pa.C.S. § 901.




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      1. Whether the Court of Common Pleas erred as a matter of law
      by entering a guilty verdict against Appellant as to the charge of
      Burglary, when the defense of Abandonment presented by the
      Appellant was a full and complete defense to the said offense.

      2. Whether the Court of Common Pleas erred as a matter of law
      by entering a guilty verdict against Appellant as to the charge of
      Burglary, when the Commonwealth failed to present sufficient
      evidence that Appellant had the requisite intent to commit a
      crime in the structure.

      3. Whether the Court of Common Pleas erred as a matter of law
      when it entered a guilty verdict against Appellant as to the
      charge of Criminal Trespass, when Commonwealth failed to
      present sufficient evidence to satisfy the "breaks in to" element
      necessary to support a conviction [] under 18 Pa.[]C.S. §
      3503([a])(1)([ii]).

Appellant’s Brief, at 5.

      Each of Appellant’s claims presents a challenge to the sufficiency of

the Commonwealth’s evidence supporting his convictions for burglary and

criminal trespass.    Our standard of review of sufficiency claims is well-

settled:

             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support
      the verdict when it establishes each material element of the
      crime charged and the commission thereof by the accused,
      beyond a reasonable doubt. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim[,] the court is required to view the evidence 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. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).



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      Appellant’s first sufficiency claim concerns the matter of abandonment.

Appellant contends that because the House was abandoned,             “It is a

defense to prosecution for burglary if[,] … at the time of the commission of

the offense[,] … [t]he building or structure was abandoned.” 18 Pa.C.S. §

3502(b)(1). In Commonwealth v. Henderson, 419 A.2d 1366 (Pa. Super.

1980), this Court held that an abandoned building or structure is one that

has been “wholly forsaken or deserted.” Id. at 1367. Thus, abandonment is

not proven merely because a building or structure is uninhabited; evidence

that the building or structure is being maintained is enough to render the

defense of abandonment inapplicable. See id. And, because the “defense

of abandonment has no mental element,” a mistake of fact regarding

whether a building or structure has been abandoned is “irrelevant” to the

defense of abandonment. Id. at 1368.

      Appellant contends that the evidence at trial suggested that the House

is

      a rundown, ramshackle of a house, that is titled to a person who
      has been dead for over five years, [where the] radiators have
      been removed, [where the] front door is frequently [left] wide
      open, and that had been vacant for well over a year by the time
      of the alleged burglary; all factors which, when taken together,
      indicate that the property has been forsaken or deserted and
      therefore, abandoned.

Appellant’s Brief, at 13.

      It is certainly true that Appellant’s testimony and Appellant’s mother’s

testimony support this characterization of the House.         However, that

testimony conflicted with Marshall’s testimony.    Marshall testified that he

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inherited the House after the death of his mother and brother, and that it

had been occupied by his sons only a few months prior to the June 17, 2013

incident.   N.T., 4/15/14, at 35-36.    He stated that the House “was pretty

much in order. Because I always kept it just like my mother’s house, like a

shrine kind of [sic] to me.” Id. at 36. During cross-examination, Marshall

maintained that although he no longer lived there—and had not for the

better part of 30 years—he did maintenance on the House and paid someone

to cut the grass. Id. at 46. He also stated that he checked on the House

“on a regular basis.” Id. at 51.

      Our standard of review dictates that we must view this conflicting

evidence “in the light most favorable to the verdict winner giving the

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

evidence.” Widmer, 744 A.2d at 751. Moreover, the jury, “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.

Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003). Thus, the jury was free to

believe Marshall’s testimony, and also free to find the defense witnesses’

testimony not credible.   Accordingly, we conclude that the Commonwealth

produced sufficient evidence that the House had not been “wholly forsaken

or deserted.” Henderson, 419 A.2d at 1367. Thus, Appellant’s first claim

lacks merit.




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       Next, Appellant claims that there was insufficient evidence that he

intended to commit a crime in the House and, thus, that there was

insufficient evidence to prove the mens rea element of burglary.

       “Under Pennsylvania law the crime of burglary is defined as an

unauthorized entry with the intent to commit a crime after entry.”

Commonwealth v. Alston, 651 A.2d 1092, 1094 (Pa. 1994) (emphasis

added) (citing 18 Pa.C.S. § 3502).    The requisite intent “may be inferred

from    the   circumstances   surrounding    the   incident.”      Id.   (citing

Commonwealth        v.   Hardick,   380     A.2d   1235   (Pa.   1977);    and

Commonwealth v. Wilamowski, 633 A.2d 141 (Pa. 1993)). Furthermore,

“[t]his intent may be inferred from actions as well as words.        However,

actions must bear a reasonable relation to the commission of a crime.” Id.

Nevertheless, merely being unlawfully present in the building or structure is

not enough to demonstrate the mens rea element of burglary.                See

Commonwealth v. Muniem, 303 A.2d 528, 529 (Pa. Super. 528).

       Appellant argues that that he did not possess any instrument of crime,

no thieves’ tools, no means of forcible entry, no weapon, and nothing to hide

his identity. Appellant points to the fact that his entry occurred in daylight

and right across the street from a church, circumstances that are “not

suggestive of [] intent to engage in criminal activity.” Appellant’s Brief, at

15.    He also claims there was no evidence that he forcibly entered the

House. He also downplays being caught with a refrigerator door in his hand,

“which appears to have been lying about in the house before Appellant

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entered the house, and which is an innocuous item that is not suggestive of

any criminal intent.” Id.

        The trial court found, however, that sufficient evidence was offered to

support the mens rea element of burglary:

        When the home owner, Mr. Marshall[,] entered the home
        through the damaged door area, he saw [Appellant] with the
        stainless steel door of his refrigerator in his hands. Upon being
        caught, [Appellant] dropped the door, made his way past Mr.
        Marshall[,] and quickly left the house. Intent to take things
        which were not his was established to a sufficient degree to
        justify the jury’s verdict.

Trial Court Opinion, 12/12/14, at 5.

        We agree with the trial court, and disagree with Appellant, regarding

the import of Marshall’s finding Appellant with the refrigerator door in his

hand.    Appellant is disingenuous in suggesting the innocuousness of that

fact.   The door had at least some value as scrap.      It was also within the

purview of the jury to determine whether there might be any non-criminal

reason why Marshall would be holding that door other than because he

intended to steal it.   Marshall also testified that a stove and several beds

from the House had been moved into the living room, and the jury could

have inferred that the items were moved by Appellant and Spencer given

their physical and temporal proximity to the items and Marshall’s surprise at

their resting place. Additionally, Brown was waiting outside in a van, which

ultimately departed the House with Appellant and Spencer as passengers, an

additional fact that supported Appellant’s criminal intent.



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      We conclude that the jury could have reasonably surmised from these

collective facts that Appellant intended to use the van to steal several large

items from the House, a plan that was thwarted when Marshall unexpectedly

interrupted it. Accordingly, Appellant’s second claim lacks merit.

      Finally, Appellant claims that there was insufficient evidence to support

his conviction for criminal trespass, asserting that there was no evidence

that he broke into the House.

      A person commits [the offense of criminal trespass] 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.

18 Pa.C.S. § 3503(a)(1).

      Appellant argues that because there was some evidence that the

doors of the House were frequently open, and because no one observed

Appellant breaking into the home, there was insufficient evidence that he

broke into it. We disagree. Appellant testified that he had been at the home

a few days before this incident, and that the door was locked at that time,

and that he was the only person with a key. After Appellant fled, Marshall

also noticed that the lock on the front door had been damaged. The jury

was free to infer from these facts that Appellant had broken into the House.

      In any event, proof that Appellant broke into the House was not

necessary to convict him for criminal trespass.        “The crime of criminal

trespass is committed when a person enters a building or occupied structure


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knowing that he is not licensed to do so.”     Commonwealth v. Thomas,

561 A.2d 699, 709 (Pa. 1989).          Although 18 Pa.C.S. § 3503(a)(1)(ii)

contains the phrase, “breaks into[,]” Section 3503(a)(1)(i) does not.    A

conviction for criminal trespass may be secured under either Section

3503(a)(1)(i) or 3503(a)(1)(ii).      18 Pa.C.S. § 3503(a)(1).   Thus, the

Commonwealth did not need to show that Appellant ‘broke into’ the House to

prove the elements of criminal trespass.      Accordingly, we conclude that

Appellant’s third claim also lacks merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2015




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