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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 2808 EDA 2016
:
CHARLES RALSTON :
Appeal from the Order, August 3, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0008279-2012,
CP-51-CR-0008280-2012
BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 18, 2018
The Commonwealth appeals1 from the August 3, 2016 order quashing
the consolidated attempted burglary charges filed against appellee,
Charles Ralston.2 After careful review, we vacate the order and remand for
further proceedings.
The trial court summarized the relevant facts of this case as follows:
On November 11, 2011, complainant Monica
Robinson left her home at 1521 N. 20th Street
around 5[:]30 [p.m.] and returned around
8:00 [p.m.] Sometime after her return she noticed
that the first floor, rear window of her house was
broken. She did not see or hear anyone and no
1 The Commonwealth has certified, pursuant to Pa.R.A.P. 311(d), that the
trial court’s August 3, 2016 order will terminate or substantially handicap the
prosecution.
2 The record reflects that appellee has not filed a brief in this matter.
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entry was made into the house, nor was there
anything missing. After finding the broken window,
the complainant called the police. Police Officer
Crespo responded and assisted a fingerprint
technician in recovering fingerprints from the
outside, lower part of the broken double pane
window; not the inside pane. No fingerprints were
recovered from the glass on the ground. The
Commonwealth marked and moved the fingerprint
report matching the fingerprints recovered to
[a]ppellee.
Five days later, on November 16, 2011, at
6:30 [a.m.], someone rang the complainant’s
doorbell. Her dog started to bark and she checked
the peephole but did not see anybody. She returned
to her bedroom in the back of the house when the
sensor light went off in her open, non-fenced-in
yard. At that point the complainant saw a man
jiggling her doorknob. She then opened her window
and yelled at him, he quickly looked up and ran
away. The complainant identified [a]ppellee as this
man in court. The window was not replaced at this
point. Complainant had bars placed on the window
area until it could be replaced. On January 18,
2012, two months after the incidents, based on the
fingerprints recovered from the November 11, 2016
incident, Detective Anderson of the Philadelphia
Police Department, compiled a photo array
containing the photo of [a]ppellee. Complainant
identified [a]ppellee as the person she observed
outside of her door on November 16, 2011, the date
of the second incident.
Trial court opinion, 7/31/17 at 1-2 (citations to notes of testimony omitted).
Appellee was arrested in connection with this incident and charged
with criminal attempt – burglary, criminal attempt – criminal trespass, and
criminal mischief.3 On July 13, 2012, appellee appeared for a preliminary
3 18 Pa.C.S.A. §§ 901 (3503(a)(1) and 3502(a)) and 3304(a), respectively.
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hearing before the Honorable James M. DeLeon and was held for court on all
charges. Following multiple continuances, appellee filed a motion to
quash/petition for writ of habeas corpus on July 30, 2016. On August 2,
2016, a hearing was held before the Honorable Roxanne E. Covington.
Thereafter, on August 3, 2016, the trial court entered an order granting
appellee’s motion, in part, and quashing the consolidated attempted burglary
charges. The Commonwealth filed a timely appeal on August 31, 2016.
Although not ordered to do so, the Commonwealth filed a concise statement
of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b) that
same day. The trial court filed its Pa.R.A.P. 1925(a) opinion on July 31,
2017.
The Commonwealth argues that the trial court erred in granting
appellee’s motion to quash the consolidated attempted burglary charges.
(Commonwealth’s brief at 7, 11.) In support of this contention, the
Commonwealth avers that the evidence at the preliminary hearing, when
“[p]roperly viewed in the light most favorable to the Commonwealth,
establish[ed] [a] prima facie case of attempted burglary[.]” (Id.) We
agree.
A motion to quash a criminal information is the equivalent in
Philadelphia County to a pre-trial petition for a writ of habeas corpus.
Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016)
(en banc) (stating, “a pre-trial habeas corpus motion is the proper means
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for testing whether the Commonwealth has sufficient evidence to establish a
prima facie case.” (citation omitted)). A motion to quash should be
granted when, “examining the evidence and reasonable inferences derived
therefrom in a light most favorable to the Commonwealth[,]” the
Commonwealth fails to set forth a prima facie case of guilt. Id.
To establish a prima facie case,
[t]he Commonwealth must show sufficient probable
cause that the defendant committed the offense, and
the evidence should be such that if presented at
trial, and accepted as true, the judge would be
warranted in allowing the case to go to the jury.
When deciding whether a prima facie case
was established, we must view the evidence in the
light most favorable to the Commonwealth, and we
are to consider all reasonable inferences based on
that evidence which could support a guilty verdict.
The standard . . . does not require that the
Commonwealth prove the [defendant’s] guilt beyond
a reasonable doubt at this stage.
Commonwealth v. Patrick, 933 A.2d 1043, 1045 (Pa.Super. 2007)
(citations omitted), appeal denied, 940 A.2d 364 (Pa. 2007). Whether the
Commonwealth has presented sufficient evidence to establish a prima facie
case for a charged crime “is a question of law as to which an appellate
court’s review is plenary.” Commonwealth v. Karetny, 880 A.2d 505, 513
(Pa. 2005) (citation omitted).
Here, the trial court found that “the Commonwealth has failed to
present sufficient evidence to prove that [appellee] possessed the requisite
intent to commit a crime inside complainant’s home and thus cannot
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establish a prima facie case of [attempted] burglary.” (Trial court opinion,
7/31/17 at 5.) The trial court reasoned that “there is no per se assumption
that [evidence of a forced entry alone] automatically gives rise to a sufficient
inference of intent to commit a crime inside.” (Id. at 4.)
In reaching this conclusion, the trial court relied on our supreme
court’s decision in Commonwealth v. Wilamowski, 633 A.2d 141 (Pa.
1993). Wilamowski involved a defendant who was convicted of,
inter alia, attempted burglary after he kicked in a complainant’s garage
door and tore it off its hinges before simply walking away from the scene.
Id. at 142. The Wilamowski court found that the evidence was insufficient
to convict the defendant of attempted burglary, reasoning that the
Commonwealth must establish additional evidence of specific intent to
commit a crime within occupied structure “that goes beyond the mere
breaking in of a door or window.” Id. at 144. The Wilamowski court
stated:
Although the Commonwealth’s facts prove that [the
defendant] kicked at the door and tore it off of its
hinges, there was no additional evidence to establish
that he possessed an intent to commit a crime
inside. He broke the door and apparently walked
away from it without any showing that he entered
the structure or attempted to enter. His path into
the structure was now unobstructed, but he chose to
walk away and go to the neighbor’s house to ask for
directions. Evidence of [the defendant’s] subsequent
actions in flight is also insufficient, standing alone, to
lend any support to a permissible inference of intent
to commit a crime inside since the flight is consistent
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with his efforts to avoid apprehension for his conduct
of breaking down the door.
Id.
In Commonwealth v. Alston, 651 A.2d 1092 (Pa. 1994), our
supreme court made the following observations about its holding in
Wilamowski:
In Wilamowski, . . . we discussed circumstantial
proof of the intent element in situations involving
attempted burglary. There, we found unacceptable a
per se assumption that evidence of a forced opening
into an occupied structure automatically gives rise to
an inference of intent to commit a crime inside. We
held that a “totality of the circumstances” approach
is more appropriate when evaluating the
Commonwealth’s evidence supporting the intent
element. We then held that more than merely
breaking a door or window is required to support an
inference of intent to commit a crime inside.
Alston, 651 A.2d at 1094 (footnote and emphasis omitted; internal
quotation marks in original).
Viewing the evidence and reasonable inferences derived therefrom in a
light most favorable to the Commonwealth, we find that the Commonwealth
has set forth a prima facie case of attempted burglary in this matter. “A
person is guilty of burglary if he enters a building or occupied structure, or
separately secured or occupied portion thereof, with intent to commit a
crime therein, unless the premises are at the time open to the public or the
actor is licensed or privileged to enter.” 18 Pa.C.S.A. § 3502(a). “A person
commits an attempt when, with intent to commit a specific crime, he does
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any act which constitutes a substantial step toward the commission of that
crime.” 18 Pa.C.S.A. § 901(a). The specific intent necessary for burglary
“may be proved by direct evidence or inferred from circumstantial evidence”
surrounding the entry. Commonwealth v. Galindes, 786 A.2d 1004, 1010
(Pa.Super. 2001) (citations omitted), appeal denied, 803 A.2d 733 (Pa.
2002). Moreover, “the Commonwealth is not required to specify what crime
a defendant, who is charged with burglary (or attempted burglary), was
intending to commit.” Commonwealth v. Brown, 886 A.2d 256, 260
(Pa.Super. 2005) (citation omitted), appeal denied, 902 A.2d 969 (Pa.
2006).
Instantly, we find that the evidence presented at the July 13, 2012
preliminary hearing established a prima facie case that appellee intended
to both unlawfully enter complainant’s residence and commit a crime
therein. Specifically, Monica Robinson (hereinafter, “complainant”) testified
that on November 11, 2011, she returned home at approximately 8:00 p.m.
and discovered that a first-floor, rear window of her home had been broken.
(Notes of testimony, 7/13/12 at 4-5.) Complainant subsequently called the
police following this incident, who lifted appellee’s fingerprints from the
“lower bottom part of the glass” of the broken window. (Id. at 12-13). The
evidence further established that the window in question was a double pane
window and did not break all the way through. (Id. at 13.) Complainant
testified that she had bars put up that day until the window company could
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come out and fix the damage. (Id. at 9-10.) Complainant further testified
that although her backyard where this window is located is not fenced-in,
“there’s no street in [her] back yard” and it is essentially fenced-in on three
sides because “[her] neighbor behind [her] has a fence.” (Id. at 10.)
The evidence presented at the preliminary hearing further established
that appellee returned to complainant’s house five days later and once again
attempted to gain entry. Specifically, complainant testified that at
approximately 6:30 a.m. on the morning of November 16, 2011, her front
doorbell rang, but she could not see anyone through the peephole. (Id. at
6, 8.) Complainant testified that after she returned to her second-floor
bedroom, she noticed that her backyard motion-sensor lights were activated
and spotted appellee looking in her lower window and jiggling the rear
doorknob to her home. (Id.) Appellee fled after complainant screamed at
him from her second-floor window. (Id. at 7, 9.) At the preliminary
hearing, complainant identified appellee as the individual who was in her
backyard on November 16, 2011, and further testified that she had never
seen appellee prior to that date and never gave him permission to enter her
residence. (Id. at 8.) Complainant later identified appellee in a police photo
array. (See notes of testimony, 8/2/16 at 4-5.)
Additionally, we find that Wilamowski is distinguishable from the
instant matter. In contrast to Wilamowski, where the defendant simply
walked away from the damaged garage door “without any showing that he
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. . . attempted to enter[,]” see Wilamowski, 633 A.2d at 142, 144, one
could reasonably infer in the case sub judice that appellee fled the
complainant’s residence before entering it, not because he had no intent to
enter it, but because he had been discovered by complainant attempting to
gain entry. (See notes of testimony, 7/13/12 at 6-8.) Furthermore, unlike
the isolated incident in Wilamowski, here appellee’s combined acts of
breaking a window, returning to the same home less than a week later at an
early morning hour, and jiggling a rear doorknob after ringing the front
doorbell to see if anyone was home were indicative of his intent to commit a
crime therein.
Based on the totality of these circumstances, and examining these
incidents contemporaneously, we find that the Commonwealth set forth a
prima facie case of attempted burglary in this case. See, e.g., Dantzler,
135 A.3d at 1114 (noting that, “a prima facie case is a low threshold of
proof[.]”). Accordingly, the trial court’s August 3, 2016 order quashing the
consolidated attempted burglary charges was in error.
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/18
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