Com. v. Burno, D.

J. A18001/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DOMINIC S. BURNO, : No. 1572 MDA 2015
:
Appellant :

Appeal from the Judgment of Sentence, August 26, 2015,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0005415-2014

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 03, 2017

Appellant, Dominic S. Burno, appeals from the judgment of sentence

of 36 months of county intermediate punishment, as well as restitution, a

$500 fine, and costs of prosecution, imposed following his conviction of

Criminal Trespass -- Building or Occupied Structure, 18 Pa.C.S.A.

§ 3503(a)(1)(i).1 On appeal, appellant raises issues relating to subject

matter jurisdiction, sufficiency of the evidence, and the trial court’s refusal

to answer a question posed by the jury concerning the law of eviction. For

the reasons stated herein, we affirm.

* Former Justice specially assigned to the Superior Court.
1
Appellant’s intermediate punishment sentence consists of 3 months in the
Dauphin County Work Release Center, followed by 3 months of house arrest,
and, finally, 30 months of supervised probation.
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The trial court provided a detailed factual background, which we set

forth, in pertinent part, as follows:

A jury trial was held in this matter on
August 10-1[2], 2015. The testimony established
that, at the time of trial, Donna Rayson-Hutchinson
(“Ms. Hutchinson”) owned a home at 527 Camp
Street, Harrisburg, Pennsylvania, a location where
she no longer lives. Ms. Hutchinson described the
home as a three story residence . . . .

Sometime in September 2013, Ms. Hutchinson
verbally agreed that four people could live in the
Camp Street house – Chris Hodges (her nephew),
Kayla Hodges (Chris’[s] [w]ife]), Brenda Hoffman
(Chris’[s] [m]other-[i]n-[l]aw/Kayla’s [m]other)[,]
and Dominic Burno ([Ms. Hoffman’s] boyfriend). For
a short period of time, Ms. Hoffman’s younger
daughter, Jalyn[,] also lived in the house.

Ms. Hutchinson and Ms. Hoffman worked out
an agreement between them which required the new
Camp Street residents to pay the monthly mortgage
of $540, pay for the utilities used at the home[,] and
to make repairs to the residence. According to
Ms. Hutchinson, upon walking through the house and
seeing the various areas of disrepair, Ms. Hoffman
came up with the idea of making the repairs so that
the group could move in as soon as possible.
Ms. Hutchinson testified that when the group moved
in, the repair issues included holes in the floor and
ceiling near plumbing where vandals had been
searching for copper piping along with mold on the
ceiling above the 1st floor shower. Ms. Hoffman
stated that, during the walk through, there were no
apparent piping issues. Ms. Hutchinson did not
receive rent payments from Ms. Hoffman.

Ms. Hoffman testified to her version of the
agreement to live in the Camp Street house.
Ms. Hoffman stated that [Mr. and Mrs. Hodges]
would continue to live there and that she,
[a]ppellant[,] and her youngest daughter, Jalyn[,]

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would move in. The residents were to pay $500 per
month to cover the mortgage along with the utilities.
Her understanding with regard to repairs was that
they were responsible to patch the existing holes in
the walls and ceiling.

According to the residents, between
September 2013 and December 2013, several
problems arose that necessitated repairs to the
house. Brenda Hoffman had previously been in the
house when only Chris and Kayla Hodges lived there.
She also walked through the house in September
2013, at which time she decided to move in.
Ms. Hoffman described smashed steps on the porch,
holes in the ceilings but [] no obvious piping
problem.

At the trial, Ms. Hoffman described the
problems that arose after moving into the Camp
Street house. She said that due to a leak in a
bathroom on the third floor, water was dripping into
the second floor bathroom and, eventually, part of
the ceiling collapsed. Ms. Hoffman stated she
discovered the second floor bathroom leaking
through the walls into the dining room causing a wet
spot on the wood floor. A friend of Ms. Hoffman’s
plugged the leak and used a heater to dry the floor.

In the same area of the dining room,
Ms. Hoffman observed what she described as
mushrooms growing on the wall after discovering a
wet rug near the table. She observed the same
growth on the walls in the basement when she went
down to explore the source of the moisture. A
plumber eventually determined that a leak was
running from the second floor bathroom through the
walls and doorframe of the first floor bathroom which
caused the “mushrooms” and wet rug. The ceiling in
the first floor [] bathroom [later] collapsed.
Ms. Hoffman testified that she and [a]ppellant were
paying for all of the repair bills.

Later in December, the residents began
smelling a foul odor. In the basement[,] a problem

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was uncovered with the sewage pipes. The
basement floor had to be dug up and the drains
unclogged by a plumber at the cost of approximately
$2,200.00. Ms. Hoffman’s father, John Hoffman,
testified to his involvement in repairing plumbing
problems in the house. He replaced a pipe to stop
the leak from the second floor bathroom into the
dining room and he tried to work on the clogged line
in the basement but [] determined that the problem
required a professional plumber.

Ms. Hoffman conceded that the group had only
made one mortgage payment and a late fee in
October. In December, Ms. Hoffman had a
conversation with Ms. Hutchinson during which she
stated that Ms. Hutchinson had to pay for any further
repairs. According to Ms. Hoffman, Ms. Hutchinson
refused to pay for repairs and stated that she was
going to increase the monthly payment to cover a
mortgage escrow account shortage. Ms. Hoffman
testified that she would be unable to pay the
increased amount and continue to pay for repairs.
According to Ms. Hoffman, [Ms.] Hutchinson
indicated that, if the residents could not pay an
increased amount and pay for repairs, she would
close the house and let the mortgage company take
it. Ms. Hoffman responded by stating that she was
done with the arrangement and that they would be
leaving. Ms. Hoffman, Mr. Hodges and Ms. Hodges
moved out in February 2014. Mr. Hoffman stated
that he helped Ms. Hoffman, [and Mr. and
Mrs. Hodges] move out of the Camp Street house
and into his own house in February 2014. He said
that [a]ppellant did not come with the rest.

Ms. Hutchinson testified that the December
encounter with Ms. Hoffman was a heated discussion
that resulted in her telling them all to leave the
house. Based on information from her nephew,
Chris Hodges, all of the residents were moving out
by February 1, 2014, so she proceeded as if it were
true. Ms. Hutchinson testified that she explicitly told
them all to leave.

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Following a trip to Jamaica, Ms. Hutchinson
returned to the Camp Street house in early March
2014, where she discovered [a]ppellant in a
bedroom with a broken leg. She also saw his
personal belongings and mail in the mailbox
addressed to him. Appellant told her that
Chris Hodges said he had her permission to stay as
he had nowhere to go while recuperating.
Ms. Hutchinson denied this was true especially since
she did not have a phone number for [Mr. Hodges]
at the time. Ms. Hutchinson said [a]ppellant had to
be out before she returned to the residence.

Ms. Hutchinson returned to the Camp Street
house again in May 2014, when she discovered that
the room where [a]ppellant had been staying was
still occupied and additional personal property was
present that she had not seen before. While there,
she had occasion to wash her hands which caused
her to realize that the water service was on. This
discovery prompted her to contact the City of
Harrisburg to have the water service turned off.

In July 2014, Ms. Hutchinson went to the
house with one Quentin Payne (“Mr. Payne”), a
friend she hires for construction work and home
repairs, for the purpose of repairing the porch steps.
She discovered that [a]ppellant was still living in the
house. Ms. Hutchinson told him that he had to leave
but [a]ppellant refused. After exchanging words,
Ms. Hutchinson called the police who informed her
that they could not assist her because they deemed
the situation to be a landlord/tenant issue.
Additionally, [a]ppellant would not let Mr. Payne
perform the work saying it was his electricity and it
was not for use. Mr. Payne stated that [a]ppellant
acted as if he owned the property. Ms. Hutchinson
also learned that the water service had been turned
on without her authorization again; therefore, she
contacted the City to terminate service.

At the time she was interacting with
[a]ppellant, two other unknown men arrived at the
house and attempted to enter. As the men passed

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her, Ms. Hutchinson tried to verbally and physically
prevent them from entering the house. They
responded by saying that they lived there as they
rented from [a]ppellant. Mr. Payne also testified to
this fact. She also testified that [a]ppellant stepped
forward during the interaction and instructed the
men to only deal with him. After the July visit,
Ms. Hutchinson had Mr. Payne change the door locks
and screw down the windows of the house.

Ms. Hutchinson once again returned to the
house in September 2014. The door was locked and
she did not have a key. She proceeded to go to a
Magisterial District Justice’s (“MDJ”) office only to be
told that it was a housing problem. Ms. Hutchinson
tearfully explained the entire story to the office
personnel there and, when the manager became
involved, her name and phone number were taken
and she was told that someone would be in touch
with her.

Ms. Hutchinson was later contacted by
Detective William Jackson (“Det. Jackson”), an
investigator with the Dauphin County District
Attorney’s Office. Det. Jackson explained that he had
received information about Ms. Hutchinson’s problem
from the MDJ’s office manager. He considered the
call an “on-the-street” complaint and, after review of
the possible merits with the District Attorney’s office,
he set out to investigate further. He began by
reviewing Ms. Hutchinson’s call to 911 made on
July 8, 2014, during which the dispatcher told her it
was a housing complaint. The pair later met so
Ms. Hutchinson could provide a statement.
[Det.] Jackson then made arrangements to meet
[a]ppellant at the Camp Street residence.
Det. Jackson and Ms. Hutchinson entered the house
and observed [a]ppellant’s personal property.
Appellant was not there but a note was attached to
the front door that said either “Dominic” or “Burno”
and listed a phone number.

Det. Jackson called the number on the note
and reached a person who identified himself as

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[a]ppellant. When asked why he was still in the
house, [a]ppellant responded by “ranting and raving”
about how Ms. Hutchinson knew he was still there as
she had let him stay in the house. While this
interaction was happening, Ms. Hoffman
unexpectedly arrived to retrieve [a]ppellant’s
property. When questioned about [a]ppellant’s living
arrangements, Ms. Hoffman told Det. Jackson that
she thought he had moved out in February when the
rest of them had moved. Upon examination of the
house, Det. Jackson observed empty screw holes in
windows where Mr. Payne had drilled them. He also
agreed that a person could gain access to the house
by way of the balconies on the first and second floor
without force.

Trial court opinion, 3/8/16 at 2-8.

Following a jury trial, appellant was found guilty of criminal trespass.

On August 26, 2015, the trial court imposed the above-stated sentence on

appellant. Appellant subsequently filed a notice of appeal and a timely

concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). In his appellate brief, appellant presents three issues for

our review:

1. Did the trial court err where it denied
[appellant’s] omnibus pretrial motion to
dismiss charges for lack of subject matter
jurisdiction, pursuant to the Landlord Tenant
Act (68 P.S. § 250.101)?

2. Was the evidence at trial insufficient to sustain
[] appellant’s conviction for the charge of
criminal trespass where the evidence showed
that appellant was a tenant of the residence at
issue and had not been properly evicted
pursuant to the Landlord Tenant Act (68 P.S.
§ 250.101)?

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3. Did the trial court err where it denied
[appellant’s] request to answer the jury’s
question of law regarding a tenant’s rights as
they apply to an eviction proceeding?

Appellant’s brief at 7 (unnecessary capitalization and emphasis omitted).

We first review whether the trial court erred when it denied appellant’s

motion to dismiss the charges for lack of subject matter jurisdiction. We

note that “[i]ssues pertaining to jurisdiction are pure questions of law, and

an appellate court’s scope of review is plenary. Questions of law are subject

to a de novo standard of review.” Robert Half Int’l, Inc. v. Marlton

Technologies, Inc., 902 A.2d 519, 524 (Pa.Super. 2006) (en banc)

(internal citations omitted). Here, appellant argues that because “the

underlying issue in this case is that of a landlord and tenant complaint,

which had not yet been filed with the appropriate magisterial office, let alone

resolved, the Commonwealth and therefore the trial court lacked jurisdiction

to proceed on this matter in a criminal court.” (Appellant’s brief at 13.)

Appellant asserts that “[p]roper jurisdiction for all [l]andlord and [t]enant

matters is before a Justice of the Peace and not the Court of Common

Pleas.” (Id.)

“Subject matter jurisdiction relates to the competency of a court to

hear and decide the type of controversy presented. Jurisdiction is a matter

of substantive law.” Commonwealth v. Bethea, 828 A.2d 1066, 1074

(Pa.Super. 2003). Further, “[e]xcept where exclusive original jurisdiction of

an action or proceeding is by statute or by general rule . . . vested in

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another court of this Commonwealth, the courts of common pleas shall have

unlimited original jurisdiction of all actions and proceedings, including all

actions and proceedings heretofore cognizable by law or usage in the courts

of common pleas.” See 42 Pa.C.S.A. § 931(a). Our supreme court has

stated that “[c]ontroversies arising out of violations of the Crimes Code are

entrusted to the original jurisdiction of the courts of common pleas for

resolution.” Bethea, 828 A.2d at 1074, citing 18 Pa.C.S.A. § 102. See

also Commonwealth v. Seiders, 11 A.3d 495, 497 (Pa.Super. 2010) (“All

jurists within that tier [(courts of common pleas)] of the unified judicial

system are competent to hear and resolve a matter arising out of the Crimes

Code.” (citations omitted)).

Regardless of whether Ms. Hutchinson could have filed a

landlord/tenant action seeking appellant’s eviction in magisterial district

court, the Commonwealth ultimately charged appellant with criminal

trespass, a violation of the Crimes Code entrusted to the original jurisdiction

of the courts of common pleas. See Bethea, supra. Accordingly, we

cannot conclude that the trial court erred when it denied appellant’s omnibus

pretrial motion to dismiss the charges for lack of subject matter jurisdiction,

particularly because the Commonwealth, and not Ms. Hutchinson, brought

this action against appellant.

Next, we consider whether the evidence at trial was sufficient to

sustain appellant’s conviction of criminal trespass. Specifically, appellant

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contends that “because [he] was never served with written notice of eviction

and afforded his rights as a tenant, he maintained his license and privilege

to reside within the Camp Street residence.” (Appellant’s brief at 18.)

In considering this challenge to appellant’s
conviction, we are mindful that our review is limited.
In reviewing the sufficiency of the evidence, we must
determine whether the evidence, and all reasonable
inferences deducible therefrom, viewed in the light
most favorable to the Commonwealth as
verdict-winner, are sufficient to establish all the
elements of the crime charged beyond a reasonable
doubt.

Commonwealth v. Namack, 663 A.2d 191, 193 (Pa.Super. 1995), citing

Commonwealth v. May, 656 A.2d 1335 (Pa. 1995) (emphasis deleted).

Criminal trespass is defined, in relevant part, as follows:

(a) Buildings and occupied structures.--

(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 secured or
occupied portion thereof[.]

18 Pa.C.S.A. § 3503(a)(1)(i). “The crime of [criminal] trespass thus

includes an element of intent or mens rea.” Namack, 663 A.2d at 194,

citing Commonwealth v. Carter, 393 A.2d 660 (Pa. 1978) (additional

citation omitted). “This element of intent, like every other element of the

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crime, must be proven beyond a reasonable doubt if the conviction is to

survive a challenge to the sufficiency of the evidence.” Id.

“The crime of criminal trespass involves either entering or remaining in

a place, while knowing that one is not licensed or privileged to do so.”

Commonwealth v. Walker, 559 A.2d 579, 582 (Pa.Super. 1989). “The

purpose of the criminal trespass statute is to prevent unlawful intrusion onto

real property or remainder thereon or to prevent unlawful breaches of the

peace relating to realty.” Commonwealth v. White, 492 A.2d 32, 36

(Pa.Super. 1985).

As recounted in the trial court’s recitation of the facts, this was an oral,

month-to-month lease agreement between Ms. Hutchinson, the owner of the

property, and Ms. Hoffman. (See trial court opinion, 3/8/16 at 10

(“Appellant did not verbally participate in setting the terms of the agreement

between Ms. Hutchinson and Ms. Hoffman despite being present for the

conversation.”).) Appellant was, at best, a sub-tenant of Ms. Hoffman. The

lease was terminated in December 2013 when Ms. Hoffman indicated that

she could no longer afford to pay for the extensive repairs necessary to

make the property habitable. All of the tenants, including Ms. Hoffman,

vacated the property by February 2014; however, appellant remained

behind.

In the months that followed, appellant was told multiple times by

Ms. Hutchinson to vacate the premises, but he refused. The water was shut

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off because the property was considered to be vacant; however, appellant

turned it back on from the curb using illegal methods. (Id. at 8-9.)

Ms. Hutchinson had her contractor, Mr. Payne, board up the windows and

screw them shut; appellant removed the screws. Ms. Hutchinson changed

the locks, but appellant continued to live in the house, even sub-letting the

property to unknown individuals. At this point, appellant was essentially a

squatter with no legal right to remain on the premises. Appellant was not

paying rent or making the mortgage payments, nor was he making repairs

to the property.

As the trial court observed, “Review of the record shows that the

agreement for anyone to live in the house was made between Hutchinson

and Hoffman and that agreement ended as of February 2014.” (Trial court

opinion, 3/8/16 at 15.) “The only evidence presented to dispute the

Commonwealth’s case was [a]ppellant’s testimony which was internally

inconsistent.” (Id.) Even assuming, arguendo, that a landlord/tenant

relationship existed at one time between Ms. Hutchinson and appellant, we

reject the argument that without a formal eviction notice, appellant

somehow remained licensed or privileged to remain in the house. Appellant

was told repeatedly to vacate the premises and he refused.

The case of Commonwealth v. Groft, 623 A.2d 341 (Pa.Super.

1993), is instructive. In Groft, the 56-year-old defendant had been living

continuously in his mother’s home for 25-30 years. Id. at 344. In fact, he

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had contributed money towards the purchase of the land and helped his

father and brother construct the house. Id. However, the title to the home

was vested in the defendant’s mother, and he had no ownership interest.

Id. For a period of 4-5 years prior to trial, the defendant and his mother

had not gotten along, and she, as well as other family members, had told

the defendant on numerous occasions that he should move out and find his

own place. Id. However, the defendant refused. Id.

This court found the evidence was sufficient to support the defendant’s

conviction of defiant trespass pursuant to 18 Pa.C.S.A. § 3503(b)(1)(i),

rejecting the defendant’s argument that he lacked the requisite intent where

he had been told repeatedly to leave his mother’s home. Groft at 344. In

addition, the Groft court was not convinced by the defendant’s claim that

the dispute should have been addressed in a civil action rather than in

criminal court:

While it may be true, as appellant suggests, that a
civil action could have been brought by his mother,
this does not necessarily make inappropriate a
criminal prosecution based upon the same events.
The subject matter addressed in a civil lawsuit and a
criminal prosecution do not have to be mutually
exclusive. Rather, “it is elementary that a person
may offend against the Commonwealth and also be
liable for civil damages or other relief growing out of
the same offense.” Pearl Assurance Co. v.
National Insurance Agency, 151 Pa.Super. 146,
157, 30 A.2d 333, 338 (1943). See also: 1 Pa.C.S.
§ 1929. Because there was sufficient evidence that
appellant did, in fact, commit the crime of defiant
trespass, it cannot be said that the criminal process
was abused by the instant prosecution.

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Id. at 344-345.

We acknowledge that self-help evictions are disfavored in the law.

See Lenair v. Campbell, 31 Pa. D.& C.3d 237, 242 (Pa.Com.Pl. 1984) (the

legislature envisioned the Landlord Tenant Act as a “complete and exclusive

remedy for a landlord seeking to vindicate his rights”); see also O'Brien v.

Jacob Engle Found, Inc., 47 Pa. D.&C.3d 557, 560 (Pa.Com.Pl. 1987).

However, as stated above, the Commonwealth decided to charge appellant

criminally in this case. Appellant cites no authority for the proposition that if

Ms. Hutchinson could have filed a landlord/tenant action seeking appellant’s

eviction in magisterial district court, her failure to do so foreclosed

alternative means of redress, including criminal charges. Ultimately, it was

the Commonwealth that made the decision to charge appellant with criminal

trespass, a violation of the Crimes Code.

When the evidence is viewed most favorably to the Commonwealth, as

is our standard of review, it fully supports the conclusion that appellant knew

he was not licensed or privileged to remain on the property but persisted in

doing so nonetheless, thereby exposing himself to criminal liability.

Appellant’s sufficiency of the evidence claim fails.

Regarding appellant’s third issue, that the trial court abused its

discretion by refusing to answer the jury’s question regarding eviction, we

agree with the trial court that the question was irrelevant. The jury’s

question was, “Does a homeowner have a right to lawfully evict a person

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without filing paperwork[?]” (Notes of testimony, 8/10-12/15 at 291-292.)

As the trial court explained, “[T]he trial in this matter concerned a criminal

prosecution for trespass[,] not a civil matter disposing of a landlord/tenant

dispute. Accordingly, the Landlord Tenant Act and any eviction procedures

provided therein are not implicated in any way in the criminal prosecution of

[a]ppellant.” (Trial court opinion, 3/8/16 at 16-17 (footnote omitted).) We

agree. Having determined that appellant’s issues on appeal are without

merit and do not afford him relief, we will affirm the judgment of sentence.

Judgment of sentence affirmed.

Stevens, P.J.E. joins this Memorandum.

Bender, P.J.E. files a Concurring and Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2017

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