Com. v. Targonski, J.

J-S40011-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JOHN ALEXANDER TARGONSKI,

Appellant No. 1758 MDA 2013

Appeal from the Judgment of Sentence Entered August 27, 2013
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001453-2012

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 26, 2014

Appellant, John Alexander Targonski, appeals from the judgment of

ng his conviction for criminal trespass and

simple assault, respectively. Appellant challenges the sufficiency of the

evidence supporting his conviction for criminal trespass. He also claims that

the trial court erred in admitting evidence of bad acts that occurred after his

altercation with the victim. After careful review, we reverse in part and

affirm in part.

The trial court summarized the facts adduced at trial as follows:
This case arises out of an altercation between two college
students, [Appellant] and Peter Arsenault, in the hallway of the
apartment building where they both resided. The altercation
took place in the early morning hours of Thursday on the first
week of fall classes at Penn State. Portions of the incident were
captured by a hallway surveillance video camera.
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The evidence at trial established that shortly after midnight
on August 30, 2012, Peter Arsenault returned home to his
apartment building to find a bag of trash that was leaking beer
sitting in the hallway near his door. [Appellant] and his
roommates were hosting another large party across the hallway,
the fourth one they had thrown that week. Tired of the noise
and mess caused by the parties each night, Arsenault picked up
ent, which
triggered [Appellant] and several other partygoers to come into
the hallway and confront Arsenault.

The confrontation turned physical and escalated.
[Appellant] shoved Arsenault and punched him in the face
repeatedly. While Arsenault was pushed up against his locked
apartment door, his roommate Rosan Patel heard commotion,
looked out the peephole, and saw Arsenault being punched. As
Patel opened the door to let him in, Arsenault tumbled into the
n other people,
including [Appellant]. In the apartment, [Appellant] pushed
Arsenault into a wall, bounced his head off of a fire extinguisher,
and punched him in the face.

Arsenault's roommate eventually succeeded in removing
[Appellant] and the others from the apartment and locked the
door. For approximately an hour, [Appellant] returned to pound

Arsenault and his roommate went out on their balcony, the
balcony wall was pelted with cans and bottles thrown from

apartment to investigate the disturbance.

The officers who arrived on the scene found several males

apartment was full of beer and liquor bottles. The officers asked
[Appellant] to provide identification. He left to retrieve his
identification but did not return. Officers found him lying in bed,
intoxicated but uninjured, and placed him under arrest after a
brief struggle. Arsenault was photographed with a bruised and
swollen eye. Photographs were taken later of damage to

Trial Court Opinion (TCO), 11/7/13, at 1-3.

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On September 26, 2012, the Commonwealth filed a criminal

information charging Appellant with burglary, 18 Pa.C.S. § 3502(a), a felony

of the first degree; criminal trespass, 18 Pa.C.S. § 3503(a)(1)(i), a felony of

the third degree; simple assault, 18 Pa.C.S. § 2701(a)(1), a misdemeanor of

the second degree; and consumption or possession of liquor or malt or

brewed beverages by a minor (underage drinking), 18 Pa.C.S. § 6308(a), a

summary offense. Appellant proceeded to a jury trial on July 3, 2013. The

jury found him guilty of criminal trespass and simple assault, but not guilty

of burglary. His simultaneously held bench trial for underage drinking also

resulted in a guilty verdict. On August 27, 2013, the trial court sentenced

f

criminal trespass, and a concurrent term of probation of 1 year for the

offense of simple assault. The court imposed a $100 fine for the offense of

underage drinking.

Appellant filed a timely notice of appeal. The trial court then ordered

him to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal

(concise statement). He complied with that order, filing his concise

statement on October 21, 2013. The trial court filed its Rule 1925(a)

opinion on November 7, 2013. Appellant now presents the following

questions for our review:

I.

grabbed by Arsenault, did the Commonwealth fail to prove
beyond reasonable doubt that Appellant possessed the

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requisite mens rea to be convicted of the felony offense of
Criminal Trespass?

II.
conduct and the conduct of his associates after the
altercation with Arsenault, where Appellant was charged
with no offenses pertaining to conduct after the altercation
and the only identifiable purpose of that evidence was to
prove that Appellant was a "bully"?

supporting his conviction for criminal trespass. We review sufficiency claims

under the following standard:
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).

The crime of criminal trespass is defined, in relevant part, as follows:
(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

18 Pa.C.S. § 3503(a)(1).

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Appellant targets his sufficiency claim on the mens rea element(s) of

Section 3503(a)(1). Specifically, he argues that the statute requires, and

contends that the Commonwealth failed to prove that he knowingly entered

lant

We disagree with the trial court based upon the specific circumstances

before us. In his concise s

Commonwealth presented sufficient evidence to prove beyond a reasonable

¶ he felony

culpability with respect to subsection (a) of Section 3503, as no other

subsections of the criminal trespass statute could result in a felony.

Furthermore, it was undisputed

apartment and that he did not have permission to do so; defense counsel

admitted as much during his closing argument. N.T., 7/2/13, at 263. Thus,

the only true point of contention at trial with regard to the sufficiency of the

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the mens rea element(s) of criminal trespass. We decline to find this issue

sufficiency claim was based in his concise statement does not hinder our

review in the circumstances of this case. See Taylor v. Owens-Corning

Fiberglas Corp.

unless the failure to raise the

evidence presented at trial did not establish that he knowingly entered

ment. The Commonwealth does not dispute this

case that the Commonwealth present any evidence to show an intent to

that the

mens rea

absurd and unintended results. He offers the following hypothetical to

illustrate:
Suppose that an earthquake strikes, opening a hole in the floor
of the apartment of an upstairs tenant. The upstairs tenant
knows that he would be unwelcome in the apartment beneath
him. Nonetheless, when he falls through the earthquake-caused
hole into the apartment below, can he be said to be guilty of

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This controversy demands interpretation of the criminal trespass

statute. When interpreting any statute, we adhere to the following

principles:

construction of statutes is to ascertain and effectuate the
intention of the General Assembly. Every statute shall be

Pa.C.S. § 1921(a). In determining legislative intent, we must

ea
Hous. Auth. of County of Chester v. Pa. State Civil
, 556 Pa. 621, 730 A.2d 935, 945 (1999). We
are not permitted to ignore the language of a statute, nor may
we deem any language to be superfluous. 1 Pa.C.S. § 1921(a).

When there is an interpretation available that gives effect to all
of the statute's phrases and does not lead to an absurd result,
that interpretation must prevail.

Commonwealth v. McCoy, 962 A.2d 1160, 1167-68 (Pa. 2009).

Furthermore,

1928(b)(1); see also Commonwealth v. McClintic, 589 Pa.
465, 909 A.2d 1241, 1251 (2006). Of course, the mandate to

principle that the words of a statute must be construed

require this Court to give the words of a penal statute their
Commonwealth v. Booth, 564

however, that where ambiguity exists in the language of a penal
statute, such language should be interpreted in the light most
favorable to the accused. More specifically, where doubt exists
concerning the proper scope of a penal statute, it is the accused
Id.

McCoy, 962 A.2d at 1168-69.

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Additional principles are provided by the Crimes Code. For instance,

unless his liability is based on conduct which includes a voluntary act or the

omission to perform an act of

Section 302 provides even more specific guidance when our interpretation

turn upon the requisite level of culpability assigned to the material elements

of an offense:
(a) Minimum requirements of culpability.--Except as
provided in section 305 of this title (relating to limitations on
scope of culpability requirements), a person is not guilty of an
offense unless he acted intentionally, knowingly, recklessly or
negligently, as the law may require, with respect to each
material element of the offense.

(c) Culpability required unless otherwise provided.--When
the culpability sufficient to establish a material element of an
offense is not prescribed by law, such element is established if a
person acts intentionally, knowingly or recklessly with respect
thereto.

(d) Prescribed culpability requirement applies to all
material elements.--When the law defining an offense
prescribes the kind of culpability that is sufficient for the
commission of an offense, without distinguishing among the
material elements thereof, such provision shall apply to all the
material elements of the offense, unless a contrary purpose
plainly appears.

18 Pa.C.S. § 302.

Here, there are two competing interpretations of the statute in

question.

in Section 3503(a)(1) does not apply to subsection (a)(1)(i) (the

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terpretation is

superior for several reasons.

McCoy, 962 A.2d at 1168. The

(a)(1)(i) independently from Section (a)(1). This conflicts with the very

structure of the statute, as subsection (a)(1)(i) is contained within Section

(a)(1).

there is an interpretation available that gives effect

to all of the statute's phrases and does not lead to an absurd result, that

McCoy, 962 A.2d at 1168. As illustrated by

pretation can lead to

absurd results. Clearly the legislature did not intend to penalize accidental

or unintended trespasses as felonies. Moreover, such a reading would

omission to

scope of criminal liability under the criminal trespass statute by permitting

mere accidental trespasses, whereas there is a statutory mandate that we

strictly construe criminal statutes. We do not consider the terms of this

statute ambiguous as to its scope. However, even if the terms were

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ambiguous, that ambiguity must be resolved in favor of Appellant, because

oubt exists concerning the proper scope of a penal statute, it is the

McCoy, 962 A.2d at

1169.

Pa.C.S. § 302. Section 302(d) p

offense prescribes the kind of culpability that is sufficient for the commission

of an offense, without distinguishing among the material elements thereof,

such provision shall apply to all the material elements of the offense, unless

provides a mens rea

limit) its applicability to the subsequent subsections that define the conduct

element(s) of the offense. Thus, Section 302(d) requires that the mens rea

shall

Id. It must be said that

any such contrary purpose would unavoidably permit the absurdity of

Id.

Accordingly, we conclude that the mens rea

contained in Section 3503(a)(1) also applies to the material element

contained in Section 3503(a)(1)(i), such that the statute requires that a

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The Commonwealth argues that Commonwealth v. Schwartz, 615

A.2d 350 (Pa. Super. 1992), is in conflict with this conclusion. We disagree.

First, Schwartz is simply not factually analogous to the present case. In

Schwartz, there was testimony that the appellant punched a pane of glass,

and that as a result his arm entered the home to which he had no

permission to enter. Schwartz, 615 A.2d at 361. Nevertheless, the

following passage from the Schwartz is construed by the Commonwealth,

when examined out of context

interpretation:
Appellant contends that the Commonwealth did not
present any valid evidence to support an intent to enter. No
evidence was presented that shows he smashed the window and
thrust his arm through the broken pane, appellant argues.
Evidence of this nature did not have to be presented to
support a conviction of criminal trespass.

Id. (emphasis added). No citation was provided for this conclusion by the

Schwartz Court apart from the statute itself. Notably, too, at no point did

the Schwartz

trespass statute did not demand a mens rea requirement. Indeed, another

interpretation of the highlighted language above makes more sense. When

the Schwartz

s claim that the Commonwealth did not present

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Id. This

reading is consistent with the Schwartz

Id. at 361. Certainly, there

appeared to be little doubt that the punch was intentional in the sense that it

demarked by the window and, thus, that he intended his fist and/or arm to

See

if the element

involves a result of his conduct, he is aware that it is practically certain that

Schwartz

decision is also supported by the fact that in the 22 instances in which

Schwartz has been cited in subsequent cases, it has never been cited for

the proposition that the entry element of the criminal trespass statute does

not require an intent or mens rea element. Thus, we conclude that

Schwartz etation, and has simply

been misinterpreted by the Commonwealth.

We must now address, of course, whether there was sufficient

conclude that there was not. The undisputed facts at trial reveal that

entry into the apartment was

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involuntary. There was no evidence presented that Appellant had any

intention of entering Appe

roommate opened the door.

However, the criminal trespass statute does not limit itself to

situations where a defendant knowingly enters a place that he is not licensed

or privileged to do so. A conviction can also be obtained where a defendant

question. 18 Pa.C.S. § 3503(a)(1)(i). Nevertheless, we conclude that the

Commonwealth did not present sufficient evidence supporting either of these

two alternatives.

instance, as is obvious from the manner in which Appellant entered

accurately representing the evidence, the Commonwealth overlooks the

qua

surreptitiously, as no evidence supporting that theory was presented at trial

and, in fact, the trial evidence directly contradicted such a theory. There

was nothing remotely secretive or stealthy about the manner in which

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Appellant remained in the apartment. See The American Heritage

Dictionary 827 (4th

As Appellant was also convicted of simple assault and underage

drinking, we move on to address his remaining claim(s). Appellant argues

from A

this claim, in part, when he filed a pre-trial motion in limine

exclude evidence that, following the altercation and after Appellant had

ant and his associates pounded on the

Id. at 10.

These issues arose again during the course of the trial.

We review claims of evidentiary error under the following standard:
The admission of evidence is solely within the province of the
trial court, and a decision thereto will not be disturbed absent a

merely an error of judgment, but if in reaching a conclusion the
law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias[,] or ill-

Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (internal

citations omitted).

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Initially, we must note that Appellant is actually raising multiple claims

of error concerning each act of misconduct that occurred after he was

ese multiple claims can be distilled

and, second, the misconduct of his associates. Both sets of claims are

governed by Pa.R.E. 404(b).

dence of a crime, wrong, or

other act is not admissible to prove a person's character in order to show

that on a particular occasion the person acted in accordance with the

another purpose, such as proving motive, opportunity, intent, preparation,

case this evidence is admissible only if the probative value of the evidence

Id.

apparently bashi

Arsenault and his roommate corroborating the video evidence and their

recollection of the verbal threats issued by Appellant during that time. The

trial court determined that this evidence was admissible because it was

-defense in

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committing the offenses but that he knew what he was doing and intended

t 5. The court also found this evidence admissible

res gestae exception, as the conduct was clearly related in

Id.

We discern no abuse of discretion with the admission of this evidence.

acting in self-

after he was removed from Arsenault

and/or intent that contradicted his self-defense theory.

404(b). Rule 404(b

haracter, as the evidence

The trial court described how this matter arose at trial as follows:
Arsenault's roommate Rosan Patel, in testifying about what he
witnessed in the hallway and in the apartment, referred several

that Patel's testimony about the group action was irrelevant to
[Appellant]'s guilt and could improperly attribute conduct of
others to [Appellant]. The Court gave the following response

[the prosecutor] wants to focus in specifically on conduct that
allegedly was committed by your client, she will here in a
moment, but at this point in time I think you all understand he is

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(Trial Transcript at p. 112-113.) In the testimony that followed,
Patel clarified which actions he observed by [Appellant] in
particular. Any confusion created by Patel's earlier testimony
was cured by the Court's admonishment and the subsequent
testimony by Patel.

TCO, at 7.

We discern no abuse of discretion on the part of the trial court with

to be attributed to Appellant. Moreover, the trial court cannot be said to

have improperly admitted that evidence under Rule 404(b)(2), because the

evidence did not fall within the purview of that rule. If anything, the

evidence was objectionable as irrelevant. Although Appellant raised a

relevancy objection to this evidence at trial, he has limited his argument in

his brief to its admissibility under Rule 404. Accordingly, he has waived the

claim that such evidence was irrelevant by failing to raise it in his brief.

ith regard to

his conviction for criminal trespass is meritorious but that his evidentiary

trespass, but affirm the judgment of sentence with respect to his conviction

for simple assault.

Affirmed in part, reversed in part. Jurisdiction relinquished.

Judge Panella joins in the memorandum.

Judge Bowes files a concurring and dissenting memorandum.

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J-S40011-14

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/26/2014

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