Com. v. Smith, C.

J-S52034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER RONALD SMITH :
:
Appellant : No. 716 MDA 2016

Appeal from the Judgment of Sentence August 14, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005342-2014

BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 22, 2017

Appellant, Christopher Ronald Smith, appeals nunc pro tunc from the

judgment of sentence entered in the York County Court of Common Pleas,

following his jury trial conviction for criminal trespass and his bench trial

conviction for criminal mischief.1 We affirm and grant counsel’s petition to

withdraw.

The trial court set forth the relevant facts of this case as follows:

On July 29, 2014, at approximately 1:14 A.M., Officer
Christopher Roosen of the York County Police Department
was on routine patrol in the area of North Beaver Street
and Philadelphia Street in York, Pennsylvania when he
heard glass breaking from across the street.
Subsequently, Officer Roosen traveled south to the vicinity
of 48 North Beaver Street, which is the address of the
____________________________________________

1
18 Pa.C.S.A. §§ 3503(a)(1)(ii), 3304(a)(5), respectively.
J-S52034-17

White Rose Bar & Grill, to investigate the origin of the
sound. At that point, Officer Roosen heard the sound a
second and third time. After hearing the sound a third
time, Officer Roosen exited his patrol car and started to
walk around the perimeter of the White Rose Bar & Grill to
investigate further. While walking by the establishment’s
patio area, the office[r] observed the figure of a person
within the patio. The patio was enclosed by a tarp, used to
secure the property at night and during inclement weather.
Officer Roosen shined his flashlight on the individual and
directed him to keep his hands visible. At that point,
Officer Roosen called for backup.

Once backup arrived, Officer Roosen and another officer
went around the rear of the establishment, into Stogies, a
separate but attached bar, and through a connecting
kitchen in order to access the patio area of the White Rose
Bar & Grill. However, before [Officer Roosen] reached
[Appellant], another officer found a way under the tarp
and onto the patio in order to detain [Appellant]. Once on
the patio, Officer Roosen observed a windowpane that had
been broken, with shards of glass going into the building.
Additionally, [a] surveillance video from that night
captured a shadow of [a] person on the patio area.

* * *

On July 14, 2015, after a two day trial, a [j]ury found
[Appellant] guilty of Criminal Trespass, not guilty of
Burglary, [and] not guilty of Criminal Attempt to Burglary.
Additionally, [the court] found [Appellant] guilty on the
summary offense of Criminal Mischief.

(Trial Court Opinion, filed July 21, 2016, at 1-3) (internal citations omitted).

The court sentenced Appellant on August 14, 2015, to twenty-one (21)

to forty-two (42) months’ imprisonment for criminal trespass, with no

further penalty for criminal mischief. Appellant timely filed a pro se petition

under the Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”)

on January 27, 2016. On February 9, 2016, the court appointed counsel

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who filed an amended PCRA petition on March 7, 2016, seeking

reinstatement of his direct appeal rights nunc pro tunc, which the court

granted on April 8, 2016. Appellant timely filed a notice of appeal nunc pro

tunc on May 4, 2016. On May 11, 2016, the court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). After the court granted an extension, Appellant timely filed his

Rule 1925(b) statement on June 16, 2016.

As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.

159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance

with these requirements is sufficient. Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent

requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

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J-S52034-17

frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa.Super. 1997)).

In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

Neither Anders nor McClendon[2] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.

* * *

Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set
forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.
____________________________________________

2
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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J-S52034-17

Instantly, appellate counsel filed a petition for leave to withdraw. The

petition states counsel performed a conscientious review of the record and

concluded the appeal is wholly frivolous. Counsel also supplied Appellant

with a copy of the withdrawal petition, the brief, and a letter explaining

Appellant’s right to proceed pro se or with new privately-retained counsel to

raise any additional points Appellant deems worthy of this Court’s attention.

In his Anders brief, counsel provides a summary of the facts and procedural

history of the case. Counsel refers to facts in the record that might arguably

support the issues raised on appeal and offers citations to relevant law. The

brief also provides counsel’s reasons for concluding that the appeal is

frivolous. Thus, counsel has substantially complied with the requirements of

Anders and Santiago.

Appellant has filed neither a pro se brief nor a counseled brief with

new privately-retained counsel; we will first review the issues raised in the

Anders brief:

WHETHER THE VERDICT OF GUILTY OF CRIMINAL
TRESPASS WAS AGAINST THE WEIGHT OF THE EVIDENCE
PRESENTED AT TRIAL?

WHETHER THE COMMONWEALTH FAILED TO PRESENT
SUFFICIENT EVIDENCE TO CONVICT APPELLANT OF
CRIMINAL TRESPASS WHEN THE EVIDENCE PRESENTED
AT TRIAL FAILED TO ESTABLISH BEYOND A REASONABLE
DOUBT THAT APPELLANT BROKE INTO THE WHITE ROSE
BAR AND GRILL?

(Anders Brief at 4).

Our standard and scope of review in this case are as follows:

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J-S52034-17

When examining a challenge to the sufficiency of the
evidence:

The standard we apply…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 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.

This standard is equally applicable in cases where the
evidence is circumstantial, rather than direct, provided
that the combination of evidence links the accused to the
crime beyond a reasonable doubt.

Additionally, the following principles apply to our review of
a weight of the evidence claim:

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…verdict if it is so contrary to
the evidence as to shock one’s sense of justice.

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J-S52034-17

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. Orr, 38 A.3d 868, 872-73 (Pa.Super. 2011) (en banc),

appeal denied, 617 Pa. 637, 54 A.3d 348 (2012) (internal citations,

quotation marks, and emphasis omitted).

Appellant argues the Commonwealth offered no evidence to establish

the breaking element of criminal trespass. As presented, Appellant

challenges only his criminal trespass conviction. Appellant complains the

verdict was against the weight of the evidence, and the Commonwealth

presented insufficient evidence to sustain the verdict. For the following

reasons, we disagree.

With respect to Appellant’s weight issue, generally, a challenge to the

weight of the evidence must be preserved by a motion for a new trial.

Pa.R.Crim.P. 607. The Rule provides:

Rule 607. Challenges to the Weight of the Evidence

(A) A claim that the verdict was against the weight of
the evidence shall be raised with the trial judge in a
motion for a new trial:

(1) orally, on the record, at any time before
sentencing;

(2) by written motion at any time before sentencing;
or

(3) in a post-sentence motion.

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J-S52034-17

Pa.R.Crim.P. 607(A)(1)-(3). “As noted in the comment to Rule 607, the

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal

denied, 581 Pa. 672, 863 A.2d 1143 (2004) (internal quotation marks

omitted). An appellant’s failure to avail himself of any of the prescribed

methods for presenting a weight of the evidence issue to the trial court

constitutes waiver of that claim, even if the trial court responds to the claim

in its Rule 1925(a) opinion. Commonwealth v. Burkett, 830 A.2d 1034

(Pa.Super. 2003). See also Pa.R.Crim.P. 720(A)(1) (explaining written

post-sentence motion shall be filed no later than 10 days after imposition of

sentence).

Instantly, the court sentenced Appellant on August 14, 2015. The

record demonstrates Appellant did not file a post-sentence motion raising a

weight claim. Therefore, Appellant waived his first issue. See Pa.R.Crim.P.

607; 720; Gillard, supra; Burkett, supra. Moreover, even if Appellant

had properly preserved his weight claim, we would affirm based on the trial

court’s analysis:

[The court’s] sense of justice was not shocked by the
verdict.

* * *

The phrase “breaks into” requires a person “to gain entry
by force, breaking, intimidation, unauthorized opening of

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J-S52034-17

locks, or through an opening not designed for human
access.” There is significant evidence to show [Appellant]
gained entry onto the White Rose Bar & Grill’s patio
through an opening not designed for human access. Thus,
establishing the breaking element of [c]riminal [t]respass.

[Appellant] does not deny he was inside the patio area on
July 29, 2014, and that he gained access by manipulating
the tarp used to secure the patio at night. [Appellant]
testified he entered onto the patio because he was
homeless and needed a place to sleep. Further,
[Appellant] stated: “I slept in…this bar here like twelve
(12) times, maybe more, on the porch area. The porch
has a little screen on it you tie. [The bar owner] might
have [a] lock on it, but you tie it at the bottom, and I just
slid right on in there and I laid down.”

When asked to describe the patio area, Jeremiah
Anderson, part owner of the White Rose Bar & Grill,
testified: “[i]t’s a raised concrete area with, it is like
wrought iron [metal] fencing around it, [and] it’s covered
with a canvas canopy, and it also has vinyl clear and black
sides that are on rollers that slide off to the different
corners and are secured[.] … [A]t nighttime we close
those vinyl areas which are secured with zippers as well as
little clips that are like hurricane straps that we put on the
outside that…secure it to the rail.”

Additionally, when describing how he obtained access to
the patio, Officer Roosen testified to going through an
adjoining bar through the kitchen to gain access to the
inside of the property in order to enter out onto the patio.

Thus, in light of these facts, together with all the facts
presented to [the court], there was considerable evidence
presented to establish [Appellant] entered onto the White
Rose Bar & Grill’s patio by opening a portion of the
encompassing protective tarp, and through the wrought
iron fence, not designed for human access. The jury heard
the witnesses, evaluated the evidence, and was convinced
of [Appellant’s] guilt. [The court] finds that upon careful
consideration of the record in its entirety, that there is
substantial evidence to prove all the elements of [c]riminal
[t]respass beyond a reasonable doubt.

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J-S52034-17

(Trial Court Opinion at 5-7) (internal citations omitted). Thus, even if

Appellant had properly preserved his weight challenge, it would merit no

relief.

With respect to Appellant’s challenge to the sufficiency of the evidence,

after a thorough review of the record, the briefs of the parties, the applicable

law, and the well-reasoned opinion of the Honorable Maria Musti Cook, we

conclude Appellant’s second issue merits no relief. The trial court opinion

addresses and properly disposes of that question. (See id. at 7-8) (finding:

evidence showed Appellant broke into closed patio of White Rose Bar & Grill

through opening not designed for human access; Appellant knew he was not

licensed or privileged to enter patio; Commonwealth presented sufficient

evidence at trial to sustain conviction of criminal trespass). Regarding

Appellant’s challenge to the sufficiency of the evidence, we affirm on the

basis of the trial court’s opinion. Following our independent review of the

record, we conclude the appeal is frivolous. See Palm, supra. Accordingly,

we affirm the judgment of sentence and grant counsel’s petition to

withdraw.

Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

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J-S52034-17

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2017

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 Circulated 09/14/2017 04:19 PM

. 'i

IN THE COURT OF COMMON PLEAS OF YORK COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF NO. CP-67-CR-0005342-2014
PENNSYLVANIA

v. ~r:··!
(_:--,,

L

,)
CHRISTOPHER RONALD SMITH,
Defendant

STATEMENT OF LOWER COURT PURSUANTTO
PA.R.A.P.1925(a)
AND NOW, this olJ.s.faay of July 2016, upon receipt of a notice

that an appeal has been filed in this matter, and in consideration of the

Concise Statement of Matters Complained Of on Appeal filed on behalf of

Christopher Ronald Smith ("Defendant"), by and through his attorney,

Christopher D. Moore, Esquire, the undersigned files this statement pursuant

to PA.R.A.P. 1925(a). The reasons for this Court's denial of Defendant's

post-sentence motion can be found herein.

FACTUAL AND PROCEDURAL HISTORY

On July 29, 2014, at approximately 1:14 A.M., Officer Christopher

Roosen of the York County Police Department was on routine patrol in the

area of North Beaver Street and Philadelphia Street in York, Pennsylvania
1
when he heard glass breaking from across the street. (Notes of Testimony,

Jury Trial ("N.T."), 7/13/2015-7 /14/2015, at 65). Subsequently, Officer

Roosen traveled south to the vicinity of 48 North Beaver Street, which is the

address of the White Rose Bar & Grill, to investigate the origin of the sound.

Id. At that point, Officer Roosen heard the sound a second and third time. Id.

After hearing the sound a third time, Officer Roosen exited his patrol car and

started to walk around the perimeter of White Rose Bar & Grill to investigate

further. Id. While walking by the establishment's patio area, the office

observed the figure of a person within the patio. Id. at 66. The patio was

enclosed by a tarp, used to secure the property at night and during inclement

weather. Id. Officer Roosen shined his flashlight on the individual and

directed him to keep his hands visible. Id. At that point, Officer Roosen

called for backup. Id. at 67.

Once backup arrived, Officer Roosen and another officer went around

the rear of the establishment, into Stogies, a separate but attached bar, and

through a connecting kitchen in order to access the patio area of the White

Rose Bar & Grill. Id. However, before the Officer Roosen reached the

Defendant, another officer found a way under the tarp and onto the patio in

2
 order to detain the Defendant. Id. Once on the patio, Officer Roosen

observed a windowpane that had been broken, with shards of glass going into

the building. Id. at 68. Additionally, A surveillance video from that night

captured a shadow of person on the patio area. Id. at 105.

Defendant was charged with Criminal Trespass under 18 Pa. C.S.A .
.~
3503(a)(l )(ii); Burglary under 18 Pa. C.S.A. 3502(a)(4); Criminal Attempt to

Burglary under 18 Pa. C.S.A. 901(a), 18 Pa. C.S.A. 3502(a)(4); and, Criminal

Mischiefunder 18 Pa. C.S.A. 3304(a)(5). On July 14, 2015, after a two day

trial, a Jury found Defendant guilty of Criminal Trespass, not guilty of

Burglary, not guilty of Criminal Attempt to Burglary. Additionally, this

Court found Defendant guilty on the summary offense of Criminal Mischief.

Defendant raises two issues on review. First, that the verdict was

against the weight of the evidence, as no evidence was presented to establish

the breaking element of criminal trespass. Second, that the verdict was based

on insufficient evidence, as no evidence was presented to establish the

breaking element of criminal trespass.

3
')

'\

j)

:I
DISCUSSION

With respect to Defendant's conviction of Criminal Trespass, the

verdict of guilty was not against the weight of the evidence as the jury's

verdict was not so contrary to the evidence as to shock one's sense of justice .
•J

An allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court. A new
trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. A trial judge must do more than
reassess the credibility of the witnesses and allege that he would
not have assented to the verdict if he were a juror. Trial judges,
in reviewing a claim that the verdict is against the weight of the
evidence do not sit as the thirteenth juror. Rather, the role of the
trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.

Commonwealth v. Widmer, 560 Pa. 308, 319-20, 744 A.2d 745, 751-

52 (2000) (internal citations and quotes omitted).

"It has often been stated that 'a new trial should be awarded when the

jury's verdict is so contrary to the evidence as to shock one's sense of justice

and the award of a new trial is imperative so that right may be given another

opportunity to prevail."' Commonwealth v. Giordano, 2015 PA Super 167,

4
 121 A.3d 998, 1007 (Pa. Super. 2015) (quoting Commonwealth v. Brown,

538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994)).

In denying Defendant's post-sentence motion, this Court's sense of

justice was not shocked by the verdict. Under the Criminal Code Pa. C.S.A. §
,J
-~
;) 3503(a)(l )(ii), "criminal trespass" is defined 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; or

(ii) breaks into any building or occupied structure or
separately secured or occupied portion thereof.

The phrase "breaks into" requires a person ''to gain entry by force,

breaking, intimidation, unauthorized opening oflocks, or through an opening

not designed for human access." Id. at § 3503(a)(3). There is significant

evidence to show Defendant gained entry onto the White Rose Bar & Grill's

patio through an opening not designed for human access. Thus, establishing

the breaking element of Criminal Trespass.

5
 The Defendant does not deny he was inside the patio area on July 29,

2014, and that he gained access by manipulating the tarp used to secure the

patio at night. Defendant testified he entered onto the patio because he was

homeless and needed a place to sleep. Id. at 118. Further, Defendant stated:

"I slept in ... this bar here like twelve (12) times, maybe more, on the porch

area. The porch has a little screen on it you tie. He might have the lock on it,

but you tie it at the bottom, and I just slid right on in there and I laid down."

(Id. at 118, 119.)

When asked to describe the patio area, Jeremiah Anderson, part owner

of the White Rose Bar & Grill, testified: "[i]t's a raised concrete area with, it

is like wrought iron me-to.\ fencing around it, anlit's covered with a canvas

canopy, and it also has vinyl clear and black sides that are on rollers that slide

off to the different comers and are secured .... at nighttime we close those

vinyl areas which are secured with zippers as well as little clips that are like

hurricane straps that we put on the outside that.. .secure it to the rail." (Id. at

96, 97.)

6
 Additionally, when describing how he obtained access to the patio,

Officer Roos en testified to going through an adjoining bar through the kitchen

to gain access to the inside of the property in order to enter out onto the patio.

Id.

Thus, in light of these facts, together with all the facts presented to this

court, there was considerable evidence presented to establish Defendant

entered onto the White Rose Bar & Grill's patio by opening a portion of the

encompassing protective tarp, and through the wrought iron fence, not

designed for human access. The jury heard the witnesses, evaluated the

evidence, and was convinced of Defendant's guilt. This Court finds that upon

careful consideration of the record in its entirety, that there is substantial

evidence to prove all the elements of Criminal Trespass beyond a reasonable

doubt.

Defendant next argues that the evidence presented at trial was

insufficient to sustain his conviction for criminal trespass because the

Commonwealth failed to present evidence to establish the breaking element

of Criminal Trespass. Again, the legislature has defined "breaks into" as "[t]o

7
gain entry." Id.,§ 3503(a)(3). Based on these standards, this Court finds the

evidence presented at trial was sufficient to establish that the Defendant broke

into the White Rose Bar & Grill 's patio by an opening not designed for

human access, knowing he was not licensed or privileged to do so.

For the same reasons stated above, this Court concludes that the

evidence presented at trial was sufficient to sustain the Defendant's conviction

of criminal trespass as a second-degree felony.

CONCLUSION

Based on the above reasons, this Court respectfully urges affirmance of

the Jury's verdict on July 14, 2015.

The Clerk of Courts is directed to provide notice of the entry of this

Statement to counsel of record.

MARIA MUSTI COOK, JUDGE

8