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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ALTON MCCOLLUM, :
:
Appellant : No. 618 WDA 2016
Appeal from the Judgment of Sentence April 20, 2016
in the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001073-2015
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 03, 2017
Alton McCollum (Appellant) appeals from the judgment of sentence
entered April 20, 2016, after he was found guilty of burglary, harassment,
and disorderly conduct. We affirm.
The trial court set forth the relevant factual background of this case as
follows.
[A]t approximately 2:00 p.m., on April 24, 2015 at 51
Pershing Court, an apartment in a public housing complex in
Uniontown, Fayette County, Pennsylvania[, Appellant] and a
female companion loudly knocked on the door of the apartment
where Megan Trombetta [(Ms. Trombetta)] was staying. Ms.
Trombetta thought the [person knocking was someone else, and
when she cracked open the door so as to see who it was,
[Appellant] and his companion forced their way in. The female
companion started to throw punches at Ms. Trombetta, and
[Appellant] hit her twice. [Appellant’s] first punch hit her in the
forehead and the second in her nose, and knocked her out. Ms.
Trombetta did not open the door completely, and did not invite
*
Retired Senior Judge assigned to the Superior Court.
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[Appellant] in, nor did she give him permission to enter the
residence. The punches from [Appellant] including the knock-
out, caused [Ms. Trombetta] severe pain, including a broken
nose[,] scrapes, and contusions. Ms. Trombetta went in and out
of consciousness after being knocked out, and heard [Appellant]
say he was going to take her to the mountains to kill her as he
and his companion were dragging her out to the car.
The lessee of the apartment at 51 Pershing Court on the
day of the crimes was Nicole Lloyd [(Ms. Lloyd)]. Although Ms.
Lloyd knew [Appellant] then, she did not invite him into her
house, did not give him permission to enter the apartment, and
she never indicated to him that he had free reign to come and go
as he pleased. Ms. Lloyd, who was upstairs [in] the apartment
at the time of the crimes, heard the commotion and called the
police. Another Commonwealth witness, Alvin Sapp, was
repairing a roof across the street when he witnessed the banging
on the door and the forcible entry into the apartment by a
woman and a man, although he was unable to identify the
persons. He subsequently saw the man and woman dragging
someone else out of the house and putting her into a car.
Trial Court Opinion (TCO), 5/3/2016, 1-2 (citations omitted).
On April 5, 2016, following a jury trial, Appellant was found guilty of
the aforementioned crimes.1 On April 20, 2015, Appellant received a
sentence of 12 to 24 months’ incarceration. This timely-filed appeal
followed.2
On appeal, Appellant challenges the sufficiency of the evidence to
sustain his burglary conviction. Appellant’s Brief at 7. We address
Appellant’s issue mindful of the following standard of review.
1
Pertinent to this appeal, Appellant was charged with, but ultimately found
not guilty of, simple assault.
2
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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[O]ur standard of review of sufficiency claims requires that 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. 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.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder 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. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013)
(internal citations and quotations omitted). The Commonwealth may sustain
its burden by means of wholly circumstantial evidence, and we must
evaluate the entire trial record and consider all evidence received against the
defendant. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).
To sustain a conviction for burglary, “the Commonwealth must prove that
the defendant entered a building or occupied structure with the intent of
committing a crime therein, unless the structure is open to the public or the
defendant had a license or privilege to enter the structure.”
Commonwealth v. Morales, 91 A.3d 80, 88 (Pa. 2014).
Appellant argues the Commonwealth failed to meet its burden in
establishing that he entered the apartment with the intent to commit a crime
therein. Appellant’s Brief at 11. Additionally, relying on this Court’s decision
in Commonwealth v. Brown, 886 A. 2d 256 (Pa. Super. 2005), Appellant
avers his conviction for burglary must be reversed since he was found not
guilty of simple assault. Appellant’s Brief at 12 (“The Commonwealth
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specifically stated that [Appellant] unlawfully entered the apartment with the
intent to commit the crime of simple assault. At trial, the jury found
[Appellant] not guilty of simple assault.”).
Considering all of the evidence, the trial court offered the following:
Clearly in light of the evidentiary summary set forth above,
the trial evidence was more than sufficient to establish that the
apartment at 51 Pershing Court was an occupied residence at
the time it was forcibly entered by [Appellant] and his
accomplice. That [Appellant] intended to commit the crime of
assault when he pushed his way in is amply demonstrated by the
immediate engaging in assaultive conduct by [Appellant] against
Ms. Trombetta, without asking any questions or making any
demand, as soon as his entry into the residence was complete.
TCO, 5/3/2016, at 2-3.
First, in reviewing the evidence in a light most favorable to the
Commonwealth, we disagree with Appellant’s contention that the
Commonwealth failed to establish all the elements of burglary. There was
ample testimony from multiple witnesses that both Appellant and his cohort
pushed their way into Ms. Trombetta’s residence without permission to do
so. N.T., 4/5/2016, at 8, 35, 41. Further, Appellant testified that he had
spent the morning looking for Ms. Trombetta’s whereabouts after he awoke
to find his belongings, including cash, missing from his home. Id. at 67-69,
79. He testified that he suspected Ms. Trombetta had stolen from him, and
intended to confront her. Id. at 69, 83. Based on this testimony and the
evidence presented, it was reasonable for a jury to conclude that Appellant
entered an occupied apartment, without permission, with the intent of
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committing a crime therein. See Commonwealth v. Lease, 703 A.2d 506,
509 (Pa. Super. 1997) (quoting Commonwealth v. Alston, 651 A.2d 1092,
1095 (Pa. 1994)) (“‘Once [a defendant] has entered [a] private residence by
criminal means we can infer that [defendant] intended a criminal purpose
based upon the totality of the circumstances.... [T]he Commonwealth is not
required to allege or prove what particular crime [defendant] intended to
commit after ... forcible entry[.]’”). Additionally, it is well-established that
“the evidence at trial need not preclude every possibility of innocence, and
the fact-finder is free to resolve any doubts regarding a defendant’s guilt
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.”
Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa. Super. 2006).
Next, we address Appellant’s argument, relying on Brown, that since
he was found not guilty of simple assault, his burglary conviction must be
reversed. In Brown, Brown was arrested and charged with, inter alia,
attempted burglary and attempted theft. 886 A.2d at 257. Pertinent to his
appeal, Brown’s charge for attempted burglary specifically stated that Brown
had unlawfully entered the building with the intent to commit a “theft.” Id.
Brown was ultimately acquitted of attempted theft, but was found guilty of
attempted burglary. Id. On appeal, Brown argued the evidence was
insufficient to convict him of attempted burglary “after the trial court found
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[he] did not have the specific intent to commit a theft, the specifically
charged predicate crime of the burglary[.]” Id. at 258.
The Brown Court concluded Brown’s claim had merit. Specifically,
while acknowledging that the Commonwealth need neither specify nor prove
the crime a defendant intends to commit, this Court nonetheless held that
when the Commonwealth does specify, “in the information or indictment,
the crime defendant intended to commit, the Commonwealth must prove the
requisite intent for that particular crime in order to prove a burglary.” Id. at
260.
Here, as cited by Appellant, the criminal information under the charge
of burglary stated that “the defendant entered the residence leased by
Nicole Lloyd at 51 Pershing Court, Uniontown City, Fayette County,
Pennsylvania, uninvited, and assaulted the victim, [Ms. Trombetta.]”
Appellant’s Brief 11-12. Because of this language, Appellant contends the
decision in Brown, “is directly on point.” Id. at 12.
We disagree. We find the criminal information sheet in Brown, which
listed the intended crime as “theft,” distinguishable from Appellant’s
information sheet. Specifically, under the charge of burglary, Appellant’s
information sheet did not list the intended crime as “assault.” Rather, the
information only provided a factual summary, in which it stated that
Appellant had entered the residence without permission and assaulted Ms.
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Trombetta. Notably, nowhere on the information sheet does it state that
Appellant entered 51 Pershing Court with the intent to commit assault.
Furthermore, the Commonwealth provided ample evidence through
several witnesses who testified that Appellant had forced his way into the
apartment and accosted Ms. Trombetta. Coupled with Appellant’s own
testimony that he arrived at 51 Perishing Court to confront Ms. Trombetta,
who he suspected had stolen from him, a factfinder could conclude that
Appellant entered, uninvited, with the intent to recover his belongings by
any means necessary.
Based on the testimony, the jury could have found that Appellant
entered the apartment with the intent to commit theft or kidnapping. That
he was acquitted of assault is of no moment. No relief is due.
In light of the foregoing, we find the evidence was more than sufficient
to permit the jury to conclude that Appellant committed a burglary.
Accordingly, Appellant’s claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2017
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