J-S79005-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMAL SWINTON
Appellant No. 2654 EDA 2014
Appeal from the Judgment of Sentence May 15, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011984-2012
BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 01, 2016
Appellant, Jamal Swinton, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following
Appellant’s bench trial convictions of one count each of criminal trespass,
conspiracy to commit trespass, and criminal mischief.1 We affirm.
The trial court opinion fully sets forth the relevant facts and procedural
history of this case. Therefore, we have no need to restate them.2
____________________________________________
1
18 Pa.C.S.A. § 3503(a)(1)(ii), 903(c), and 3304(a)(2), respectively.
2
Appellant filed a timely post-sentence motion on May 15, 2014.
Appellant’s motion was denied by operation of law on September 19, 2014,
and Appellant filed a timely notice of appeal that same day. On February 4,
2015, the court ordered Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b); and Appellant
timely complied on February 20, 2015.
J-S79005-16
Appellant raises two issues for our review:
WHETHER THE EVIDENCE WAS INSUFFICIENT TO
CONVICT APPELLANT OF CRIMINAL TRESPASS 18 PA.C.S.
§ 3503, CONSPIRACY 18 PA.C.S. § 903, AND CRIMINAL
MISCHIEF 18 PA.C.S. § 3304(B)?
WHETHER THE WEIGHT OF THE EVIDENCE IS AGAINST
APPELLANT’S CONVICTIONS FOR CRIMINAL TRESPASS 18
PA.C.S. § 3503, CONSPIRACY 18 PA.C.S. § 903, AND
CRIMINAL MISCHIEF 18 PA.C.S. § 3304(B)?
(Appellant’s Brief at 7).
With respect to a sufficiency claim:
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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
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J-S79005-16
Our standard of review for a challenge to the weight of the evidence is
as follows:
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. An
appellate court cannot substitute its judgment for that of
the finder of fact. Thus, we may only reverse the lower
court’s verdict if it is so contrary to the evidence as to
shock one’s sense of justice. Moreover, where the trial
court has ruled on the weight claim below, an appellate
court’s role is not to consider the underlying question of
whether the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight
claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(internal citations omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Anne Marie
B. Coyle, we conclude Appellant’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed February 17, 2016, at 4-10)
(finding: police officers saw torso and arms of Appellant’s co-conspirator
positioned inside front porch window of victim’s residence at approximately
12:30 a.m., while Appellant stood nearby and served as lookout; officers
observed Appellant alert co-conspirator to police presence, at which point
both assailants attempted to flee; Appellant and co-conspirator gave police
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J-S79005-16
incompatible explanations for their presence at victim’s residence, and
Appellant initially gave police false name; officers observed porch window
through which co-conspirator entered residence was damaged and occupants
of residence were frightened; Commonwealth witnesses’ testimony was
credible; Appellant’s explanation to officers at scene for his presence there
conflicted with Appellant’s witnesses’ testimony; Appellant and his co-
conspirator did not own residence and had no permission to enter residence;
Appellant and co-conspirator actively participated and shared common
intent; Appellant and his co-conspirator demonstrated consciousness of guilt
when they attempted to flee and gave dissimilar explanations to officers;
weight and sufficiency of evidence supported verdict for all charges). The
record supports the court’s decision. Thus, we affirm on the basis of the trial
court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2016
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Circulated 10/19/2016 11:01 AM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
co6IL.Eo
FEB· . ·
CRIMINAL TRIAL DIVISION l 7 20t6
CriminaJAp
FirstJudi · 1 · ~ea!s Unit
c,a D1strJctotPA
COMMONWEALTH OF PENNSYLVANIA ) PHILADELPHIA COUNTY
~ COURT OF COMMON PLEAS
)
vs.
~ NO. CP-51-CR-0011984-2012
)
JAMAL SWINTON
~
CP-51-CR-0011984-2012 Comm. v. Swinton Jamal
Opinion '
OPINION
11111111 11111111111111111
PROCEDURAL HISTORY 7407859881
Appellant, Jamal Swinton, as the above-named Defendant, seeks review of the
Order and Judgment of Sentence imposed on May 15, 2014 by the Honorable Anne
Marie Coyle, Judge of the First Judicial District Court of Common Pleas. Within the
Defendant's Statement of Matters Complained Of On Appeal Pursuant to Pa. R. P.
1925(b), the Appellant challenges the sufficiency of evidence supporting the trial court's
verdicts of guilty.
On March 17, 2014, following a bench trial before the Honorable Anne Marie
Coyle, Judge of the First Judicial District Court of Common Pleas, the Defendant Jamal
Swinton was found guilty of Pennsylvania Crimes Code, 18 Pa.C.S. § 3503 Criminal
Trespass, graded as a felony of the second degree, Pennsylvania Crimes Code, 18 Pa.C.S.
§ 903 Conspiracy, graded as a felony of the second degree, and Pennsylvania Crimes
Code, 18 Pa.C.S. § 3304(b) Criminal Mischief, graded as a summary offense. The Court
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found the Defendant not guilty of the crime of Burglary, Pennsylvania Crimes Code 18
Pa.C.S. § 3502, graded as a felony of the first degree. (N.T. 3/17/2014, p.42).
On May 15, 2014, this trial court sentenced the Defendant to a county term of
incarceration of time served to twenty-three months, followed by six years reporting
probation for Criminal Trespass. The same sentence was imposed for Criminal
Conspiracy. The sentences for each charge were ordered to be served concurrently to
each other. No further penalty was imposed for the summary offense of Criminal
Mischief. Timely filed Post Verdict Motions were denied by operation of law. On
September 19, 2014, the Defendant filed a timely Notice of Appeal.
In his Statement of Matters Complained of on Appeal, the Defendant asserts that
the evidence was insufficient to conclude guilt beyond a reasonable doubt on the charges
because there was no ownership and non-permission testimony. The Defendant also
claims that the verdict was against the weight of the evidence because he brought forth
two witnesses to testify on his behalf to explain his presence on the block of 1600 South
Frazier Street on September 5, 2012 at the time of the offense. After a careful review of
the issues presented and the compiled record, this Court finds both related claims to be
without merit.
FACTUAL HISTORY
At trial, the Commonwealth of Pennsylvania established that on September 5,
2012, at or about 12:30 a.rn., City of Philadelphia Police Officers Minor and Sergeant
Gordon, while driving in a marked patrol car and dressed in full uniform, were dispatched
by police radio to the location of 1622 South Frazier Street, Philadelphia, PA. (N. T.
3/17/2014, pp. 7-11). At this location, the officers observed the Defendant and a second
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male on the connected residential row home porches of 1620 and. 1622 South Frazier
Street, Philadelphia, PA respectively.
Officer Minor testified credibly that he immediately noticed the second male, the
Defendant's co-conspirator, with his body positioned halfway inside the damaged front
porch window of 1622 South Frazier Street, with his arms and head hanging inside the
window between the window frame and a front room air conditioner. As the officers
approached, Officer Minor saw the Defendant, who was standing approximately three
feet from his co-conspirator, yell to his cohort. The accomplice then looked in the
direction of the officers, immediately exited from his contorted position in the window,
and attempted to leave the porch. (N.T. 3/17/2014, pp. 8-13).
Immediately after seeing the police officers approach, the Defendant also tried to
walk away from Officer Minor and headed towards the front door of 1620 South Frazier
Street. Both individuals were then stopped by the officers. The male previously in the
window of 1622 South Frazier Street provided an incredible story that he had been at a
friend's house and that he was trying to get his bag of clothes from the residence. His
abnormal porch window method of entry into this occupied home at that time of the early
morning was not explained.
The Defendant gave an excuse for his presence that was far different from his
accomplice, when he told the officers that he was visiting 1620 South Frazier Street to
visit his girlfriend. (N.T. 3/17/2014, pp. 12-15). The Defendant also provided the false
name of Jamal Williams. (N.T. 3/17/2014, p. 12). Police officers spoke to both occupants
of 1622 South Frazier Street who had been fearfully peering from their residence. (N.T.
3/17/2014, pp. 16-22). After no occupant or resident at either home provided any
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information to the officers that supported either of the males' stories, both men were
placed under arrest.
DISCUSSION
The Defendant claims that, "the evidence was insufficient to conclude guilt
beyond a reasonable doubt on the charges because there was no ownership and non-
permission testimony." It is well established, however, that specific proof of ownership
is not a fundamental requisite to the Commonwealth's case when evidence is sufficient to
show an attempt to break and enter with intent to steal. Commonwealth v. Hicks, 209 Pa.
Super. 1, 8-9, 223 A.2d 873, 877 (1966). An attempt to break and enter with intent to
steal can be proven via circumstantial evidence and is sufficient as proof beyond a
reasonable doubt if the fact-finder could take all reasonable inferences from the evidence
believed and properly base their verdict. Commonwealth v. Cox, 460 Pa. 566, 569, 333
A.2d 917, 918 (1975).
In this instance, direct evidence demonstrated that the Defendant was observed by
police with a co-conspirator entering into an unlit residence at 12:30 a.m. through a porch
window instead of the front door which was few feet away. Officers saw the Defendant
alert his co-conspirator to the police presence whereupon he abruptly retreated. (N.T.
3/17/2014, pp. 10-13 ). This Court considered the totality of direct and circumstantial
evidence presented from the police officers including their observation of fearful
homeowners and neighbors, common sense deductions from the positioning and reaction
of both males on the porch and in the window at that time of the morning, and properly
inferred that neither the Defendant nor his co-conspirator owned the property at issue or
had been given permission to enter. The Court reasonably concluded by breaking into
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the residence at that time of night through a darkened residential porch while watching
out for police, the Defendant and his co-conspirator possessed the requisite criminal
intent. Upon such proof, the Commonwealth need not specifically prove non-ownership
in order to prove the criminal conduct at issue.
The Defendant argues that the evidence presented at trial was insufficient to
establish he committed Criminal Trespass, as a felony of the second degree, Criminal
Conspiracy, as a felony of the second degree, and Criminal Mischief as a summary
offense. The standard for reviewing whether the conviction was based on sufficient
evidence is whether, viewing all the evidence admitted at trial in the light most favorable
to the Commonwealth as verdict winner, the court is able to ascertain that there existed
sufficient evidence to enable the fact-finder to find every element of the crime beyond
reasonable doubt. Commonwealth v. Lewis, 2006 PA Super 314, 911 A.2d 558, 563-65
(Pa. Super Ct. 2006); Commonwealth v Widmer, 560 Pa. 308, 744 A.2d 745, 751 (Pa.
2000). When reviewing the evidence adduced at trial, the Court may not weigh the
evidence and substitute its judgment for that of the fact-finder. Commonwealth v. Derr,
841 A.2d 558, 560 (Pa. Super. 2004).
It is for the fact-finder to determine any doubts regarding the Defendant's guilt. If
the facts relied on by the fact-finder are so weak or inconclusive that, as a matter of law,
no probability of fact may be drawn from the circumstances, then the conviction in
question cannot stand. Commonwealth v. Kim, 888 A.2d 847, 851-52 (Pa. Super. 2005),
appeal denied, 587 Pa. 721, 899 A.2d 1122 (2006) (quoting Commonwealth v. Lehman,
820 A.2d 766, 772 (Pa. Super. 2003) (citations omitted)); see also Commonwealth v.
Meals, 590 Pa. 110, 912 A.2d 213, 218 (Pa. 2006) (holding that a sufficiency of the
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evidence claim is a question of law). Additionally, the Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence. Commonwealth v. Brooks, 7 A.3d 852, 856-857 (Pa.
Super. 2010).
To sustain a conviction for Criminal Trespass, in violation of 18 Pa.C.S. §
3503(a)(l)(ii), the Commonwealth was required to prove that the Defendant broke into an
occupied structure or building without license or privilege to do so. After arriving on the
scene, observing the Defendant, and detaining both males, Officer Minor knocked on the
door of 1622 South Frazier Street and established that two females were present inside
the property. Officer Minor further testified that the women in the house appeared were
fearful in the doorway in response. Both males presented clearly incompatible fictions to
explain their suspicious presence on the porches at the time of the morning. The
Defendant supplied a false name. The unique position of the second male in the window
along with his immediate attempt to retreat when notified of police arrival provided the
Court with ample direct and circumstantial evidence to convict the Defendant of Criminal
Trespass.
To sustain a conviction for Criminal Conspiracy, the Commonwealth must
establish that the offender entered into an agreement to commit or aid in an unlawful act
with another person or persons, with a shared criminal intent, and an overt act was done
in furtherance of the conspiracy. Commonwealth v Jones, 874 A.2d 108, 121-122
(Pa.Super.2005). "This overt act need not be committed by the Defendant; it need only
be committed by a co-conspirator." Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa.
Super. 2000). Further, circumstantial evidence may provide proof of the conspiracy.
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Commonwealth v. Green, 702 A.2d 547, 554 (Pa. Super. 1997). The conduct of the
parties and the circumstances surrounding such conduct may create a "web of evidence"
linking the accused to the alleged conspiracy beyond a reasonable doubt. Id.
Additionally, an agreement can be inferred from a variety of circumstances including, but
not limited to, the relation between the parties, knowledge of and participation in the
crime, and the circumstances and conduct of the parties surrounding the criminal episode.
Id. These factors may coalesce to establish a conspiratorial agreement beyond a
reasonable doubt where one factor alone might fail. Id.
In the case sub judice, both men actively participated in the commission of the
crime and shared a common intent. Although there was no direct evidence of an explicit
agreement to carry out the crime, it is clear that an agreement existed from the observed
cooperation between the Defendant and his co-conspirator. The Defendant served as a
look-out while his co-conspirator broke into the home located at 1622 South Frazier
Street. When Police Officer Michael Minor saw both men on the dark porch, the
Defendant was standing three feet from his cohort who was positioned halfway inside the
property between the window frame and the air conditioner with both arms and head
inside the window. Officer Minor further testified that the Defendant yelled to the co-
conspirator as the officer pulled up to the scene. Overt acts in furtherance of the
conspiracy were easily illustrated in the Defendant's conduct, in conjunction his co-
conspirator's physical efforts when climbing through the damaged porch window and
retreating upon alert.
Although the statement of Matters Complained Of On Appeal generally alleges
insufficiency of the evidence of all charges including Criminal Mischief on the grounds
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that there was neither ownership nor non-permission testimony, it was not debated at trial
that either of the arrested men ever resided or owned the residence at 1622 South Frazier
Street where the porch window was clearly damaged. Thus, no basis for an appeal based
upon this insufficiency ground can stand.
The Defendant subsequently contends that the verdict was against the weight of
evidence presented at trial because two witnesses testified on his behalf to explain his
presence on the block at issue. The weight given to the evidence, however, is wholly
within the province of the finder of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses. Commonwealth v. Hunzer, 868
A.2d 498, 506-507 (Pa. Super. Ct. 2005). An appellate court cannot substitute its
judgment for that of the finder of fact. Commonwealth v. Boyd, 73 A.3d 1269, 1274-1275
(Pa. Super. 2013) (citing Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super.
2007)). A verdict is against the weight of the evidence only if it is so contrary to the
evidence as to shock one's sense of justice. Commonwealth v. Brown, 648 A.2d 1177 (Pa.
1999). To obtain relief on this ground, a defendant must show that the lower court's
decision was manifestly unreasonable, that the law was not applied, or that the record
shows that the action is the result of partiality, prejudice, bias or ill will. Commonwealth
v. Widmer, 744 A.2d 745, 753 (Pa. 2000), quoting Coker v. S.M Flickinger Company,
Inc., 625 A.2d 1181, 1185 (Pa. 1993).
This Court, as the finder of facts at trial, determined that the testimony of the
Officer Minor as the Commonwealth's witness was convincing and credible. The Court
specifically found that the theory of the defense was not even supported by his own
witnesses produced at trial. The Defendant offered two persons who testified that the
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Defendant was at a friend's house, located at 581h Street and Kingsessing Avenue in
Southwest Philadelphia on the night of September 5, 2012. At around 12: 15 a.m., they
claimed that the Defendant and his friend began walking over to the Defendant's
girlfriend's house on the 5600 block of Springfield Street. (N.T. 3/17/2014, pp. 25-28).
The Defendant and his friend split up at Frazier Street, and the Defendant continued on
towards Springfield. Before reaching his girlfriend's house on Springfield Street
however, he was somehow arrested by the police for trespassing at 1622 South Frazier
Street. (N.T. 3/17/2014, pp. 32-33).
The Defendant, on the porch of 1622 Frazier Street, conversely claimed to the
responding patrol officers that he had been visiting his girlfriend at 1620 South Frazier
Street, Philadelphia, PA. (N.T. 3/17/2014, p.(5). His own words spoken to Officer Minor
contradict the testimony of his witnesses, one of whom claimed that she was the
Defendant's girlfriend he had been visiting. Each of these witnesses testified that the
correct address of his girlfriend to be within the 5600 block of Springfield Street,
Philadelphia, PA and certainly not at either residence located at 1620 or 1622 South
Frazier Street, Philadelphia, PA.
The Court carefully evaluated the contradicting testimony of the Defendant's
witnesses which flanked the testimony given by Officer Minor. The Court was well
within its discretion to conclude that, even if the Defendant had another remote reason for
being in the area of the 1600 block of Frazier Street, the testimony of the defense
witnesses did not sufficiently support the proffered explanation for either male's early
morning presence on a stranger's residential porch or inside the next door residential
front window. Similarly, no one accounted for the false name supplied by the Defendant.
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The Court made a common sense determination that the condemning testimony
introduced by the Commonwealth was far more plausible and stronger weighted than the
incredible contradicting versions of events proffered by the Defendant. Evidence
abundantly sustained the Court's belief that police had interrupted two men during their
late night criminal trespass of an occupied residence. The Defendant had been acting as
the lookout for his co-conspirator, who was entering the residence of 1622 South Frazier .
Street through the porch window. Both males demonstrated their consciousness of their
guilt when they attempted to retreat or flee at the sight of the officers and gave dissimilar
yarns.
The totality of the evidence sufficiently supported the verdicts of guilt for all
charges and convinced this finder of facts that the convictions were not against the weight
of the evidence. See Commonwealth v. Davidson, 2004 PA Super 396, ,r 12, 860 A.2d
575, 581 (2004) affd, 595 Pa. 1, 938 A.2d 198 (2007).
CONCLUSION
Upon careful review of this entire record, this Honorable Court finds no harmful,
prejudicial, or reversible error has been committed. The appellate claims and
corresponding request for relief filed on behalf of the Defendant Jamal Swinton should be
dismissed and judgment of the trial court should be affirmed.
By the Court,
DATE: February 17, 2016
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