J-A21027-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN SMIERCIAK,
Appellant No. 1561 WDA 2016
Appeal from the Judgment of Sentence May 5, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014309-2015
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 18, 2017
Appellant, John Smierciak, appeals from the judgment of sentence
entered on May 5, 2016, as made final by the denial of his post-sentence
motion on September 15, 2016, following his bench trial convictions for
criminal attempt – criminal trespass and harassment.1 We affirm.
We briefly summarize the facts and procedural history of this case as
follows. Appellant and the victim, T.H.,2 met in 2010 at work. The victim
moved into Appellant’s house in December 2012. The parties had private
sleeping arrangements and the victim maintained that they were in a
platonic relationship. Approximately three years later, the victim decided to
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1
18 Pa.C.S.A. §§ 3503/901 and 2709, respectively.
2
We use the victim’s initials to protect her identity.
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move out of Appellant’s home to live with her mother. She did not discuss
the matter with Appellant, however, because she felt that Appellant wanted
a romantic relationship and had begun acting strangely, including sleeping in
her bed when she was not present. On September 26, 2015, the victim
rented a moving van and moved her belongings out of Appellant’s house
with the assistance of her brother, sister, and a police escort. Appellant
became emotional and when he began crying and banging on the walls,
police intervened. After the victim finished retrieving her belongings, she
handed her keys to Appellant’s residence over to the police. The victim’s
brother told Appellant to stay away from the victim and their mother’s
house. An hour later, the victim was in her mother’s yard when she saw
Appellant drive quickly towards her and park erratically and illegally in front
of her mother’s house. The victim ran inside, locked the door, and spoke
with police. Appellant pushed past a family friend who was on the front
porch and tried to force the front door open with his shoulder. Appellant
said that the victim was “his woman” and that she was “going to come with”
him. A family member came outside and confronted Appellant. Police
arrived shortly thereafter and arrested Appellant.
The Commonwealth charged Appellant with the aforementioned
charges, as well as simple assault. The trial court held a two-day, non-jury
trial and convicted Appellant of criminal attempt – criminal trespass and
harassment and acquitted him of simple assault. The trial court sentenced
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Appellant to an aggregate term of five years of probation. The trial court
also directed Appellant to complete anger management classes and ordered
no contact with the victim. Appellant filed a timely post-sentence motion.
The trial court denied relief on September 15, 2016. This timely appeal
resulted.3
On appeal, Appellant presents the following issues for our review:
I. Did the Commonwealth fail to present sufficient evidence
to convict [Appellant] of [c]riminal attempt – criminal
trespass?
II. Did the Commonwealth fail to present sufficient evidence
to convict [Appellant] of [h]arassment?
Appellant’s Brief at 5.
Both of Appellant’s issues challenge the sufficiency of the evidence
presented by the Commonwealth. Our standard of review is as follows:
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
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3
Appellant filed a notice of appeal on October 14, 2016. On October 19,
2016, the trial court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on January 3, 2017.
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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 trier 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. Fitzpatrick, 159 A.3d 562, 567 (Pa. Super. 2017).
In his first issue presented, Appellant “contends that the
Commonwealth presented insufficient evidence to convict him of [criminal
attempt – criminal trespass], as the Commonwealth did not prove, beyond a
reasonable doubt, that he was not in fact licensed to enter [the residence of
the victim’s mother] on the day in question, much less that he knew he was
not so licensed.” Appellant’s Brief at 13-14 (emphasis in original). He
claims there was no evidence that the victim’s mother, who owned the
house in question, had “extended to [the victim] or [her brother] the
authority to grant or revoke permission to enter the residence.” Id. at 15.
Appellant maintains that he had a long-term relationship with the victim,
had been invited into the residence in question on previous occasions, and,
therefore, he did not know that his entry into the home would be
unauthorized. Id. at 17-18.
“A person commits an attempt when, with intent to commit a specific
crime, he does any act which constitutes a substantial step toward the
commission of that crime.” 18 Pa.C.S.A. § 901.
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Criminal trespass, is defined as follows:
§ 3503. Criminal trespass.
(a) Buildings and occupied structures.
(1) A person commits an offense if, knowing that he is not
licensed or privileged to do so, he:
* * *
(ii) breaks into any building or occupied structure or
separately secured or occupied portion thereof.
18 Pa.C.S.A. § 3503(a)(1)(ii).
This Court has previously adopted the following definition of privilege:
A person is privileged [] if he may naturally be expected to be on
the premises often and in the natural course of his duties or
habits.... Further, a person who is privileged may still commit
[criminal trespass] if he would not reasonably be expected to be
present.
Commonwealth v. Benito, 133 A.3d 333, 335 n.3 (Pa. Super. 2016)
(citation omitted).
The victim testified that no one gave Appellant permission to enter the
house on the day in question. N.T., 5/4/2016, at 54. The victim’s brother
explicitly warned Appellant not to contact the victim, including coming to her
mother’s house. Id. at 55. The victim’s brother stated that he also lived at
the residence and specifically told Appellant to stay away an hour or two
prior to the incident at issue. Id. at 55, 58, and 64-65. The victim and her
brother testified that Appellant, upon the victim’s invitation, had been to
their mother’s home no more than three times before the victim moved. Id.
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at 29, 42, and 60. The victim testified, however, that her family generally
did not spend social time with Appellant. Id. at 52. Her brother testified
similarly. Id. at 60, 66-67.
Here, the trial court credited the testimony of the victim and her
brother that Appellant was warned specifically to stay away from the
residence at issue. Trial Court Opinion, 1/3/2017, at 8. The trial court
further determined:
In addition to this explicit warning to avoid contact with [the
victim] and her mother’s home, [the victim’s] reaction to seeing
[Appellant] speeding down the street towards her mother’s
home also was sufficient to communicate to [Appellant] that he
was not welcome at that property. As noted, [the victim]
immediately ran away from [Appellant], shut the gate behind
her, retreated inside the house, and asked [a family friend] for
help because she was afraid of [Appellant].
* * *
The evidence viewed in the light most favorable to the
Commonwealth established that any belief possessed by
[Appellant] that he was welcome at the property was entirely
unreasonable under the circumstances.
Id. We agree and discern no abuse of discretion or error of law. Moreover,
we note that, upon review of the record, Appellant had only been to the
home on a few occasions, so there was no evidence that he was expected to
be on the premises often and in the natural course of his habits. For all of
these reasons, Appellant knew he did not have privilege to access the
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property. As such, we reject Appellant’s argument that there was
insufficient evidence to convict him of criminal attempt–criminal trespass.4
Next, Appellant claims that there was insufficient evidence to convict
him of harassment. He claims that, “[b]ecause the statements made by
[Appellant] during the incident in question were not, when considered in the
context of their relationship, of threatening nature, the Commonwealth failed
to prove, beyond a reasonable doubt, that [Appellant] made a threatening
statement to [the victim] with the intent to harass, annoy or alarm her.”
Appellant’s Brief at 20. Appellant avers that “it can be inferred from the
context that [Appellant] was stating his desire for [the victim] to return to
the residence that they had shared and begin a romantic relationship with
him.” Id.
The Commonwealth charged Appellant under subsection (a)(4) of the
harassment statute, which defines the offense as follows:
A person commits the crime of harassment when, with intent to
harass, annoy or alarm another, the person: […] communicates
to or about such other person any lewd, lascivious, threatening
or obscene words, language, drawings or caricatures[.]
18 Pa.C.S.A. § 2709(a)(4). “An intent to harass may be inferred from the
totality of the circumstances.” Commonwealth v. Cox, 72 A.3d 719, 721
(Pa. Super. 2013).
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4
Because Appellant only challenges the element of license regarding
criminal trespass and does not challenge the elements of criminal attempt,
we need not address the other elements of the offense.
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Here, the victim testified that she did not want a romantic relationship
with Appellant, moved out of his residence and made clear (through family
members and with the use of a police escort) that she did not want
Appellant to contact her at her mother’s house. Appellant tried to contact
the victim almost immediately thereafter, approaching the house quickly and
causing the victim to flee inside the house. Appellant continued to pursue
her after she locked the door and despite two men intervening on her behalf.
The victim testified that she felt threatened when Appellant said she “was
going to come with him[.]” N.T., 5/4/2016, at 53. Appellant admitted that
he said, “[t]hat’s my woman.” Id. at 82, 87. Despite all of the victim’s
concerted efforts to distance herself from Appellant, Appellant used
possessory language to describe the victim and demanded that she come
with him, which showed his intent to harass the victim by threat. Hence, we
discern the trial court did not abuse its discretion in finding sufficient
evidence to support Appellant’s conviction for harassment. Appellant’s
second issue lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2017
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