Com. v. Rucker, B. (memorandum)

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J-S13004-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. BERNARD RUCKER, Appellant No. 1937 EDA 2011 Appeal from the Judgment of Sentence May 6, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003663-2010 BEFORE: BOWES, GANTMAN, and MUSMANNO, JJ. MEMORANDUM BY BOWES, J.: FILED MAY 08, 2013 Bernard Rucker appeals from the judgment of sentence of fifteen to thirty months imprisonment followed by three years probation that was imposed after he was convicted at a bench trial of burglary, trespass, terroristic threats, theft, and receiving stolen property. We affirm. The trial court extensively delineated the facts adduced at Appellant s trial. For purposes of disposing of this appeal, we adopt its factual outline contained at pages two through four of its September 26, 2012 opinion. To summarize, the events occurred at 714 East Chelten Avenue, Philadelphia, a double house that shared a common wall with 716 Chelten Avenue. The victim, Bedner Emile, purchased 714 East Chelten Avenue at a sheriff s sale on May 4, 2009, and began to conduct improvements at the property, including restoring the wall that separated that residence from 716 East J-S13004-13 Chelten Avenue. From February 26, 2010, until March 10, 2010, Mr. Emile took a break from his construction efforts at that location. As he left, he locked all the doors and windows and left behind various construction materials, including tools and valuable copper piping. When Mr. Emile returned to the house with his business partner on March 10, 2010, his key no longer fit the lock to the front door. He discovered that his back door had been broken open and that the residence was robbed of all his tools and construction materials, including paint, tiles, cabinets, and doors. Additionally, someone had placed various items on the property, including a bed, clothing, and pictures. While Mr. Emile was inspecting the house, Appellant arrived, opened the front door with a key, and entered the residence. Appellant demanded that Mr. Emile leave. When Mr. Emile informed Appellant that he owned 714 East Chelten Avenue, Appellant became irate, claimed that he had bought 714 East Chelten, and threatened Mr. Emile. Appellant was then joined by five friends who began to yell at Mr. Emile to leave. Mr. Emile recovered the deed to the property and returned with police on March 12, 2010. Appellant was arrested and proceeded to a nonjury trial on February 7, 2011, when he was convicted of the above-described offenses. At trial, Appellant claimed that he mistakenly thought he was legally entitled to enter and reside at 714 East Chelten Avenue. He maintained that he specifically was advised by a legal assistant at the City -2- J-S13004-13 Law Department that he could enter vacant property in Philadelphia with delinquent taxes and live on and improve the premises and that he would be reimbursed for his expenses at any sheriff s sale. Appellant represented that he knew that 716 East Chelten Avenue was vacant and that he researched its tax records, discovering that there was a significant amount of unpaid tax debt on the premises. He stated that he entered 714 East Chelten Avenue under the reasonable but mistaken belief that he was legally entitled to do so based on the advice from the city official. Appellant admitted that he was aware that 714 East Chelten Avenue and 716 East Chelten Avenue had separate addresses, that he observed the wall separating 714 East Chelten Avenue from 716 East Chelten Avenue, and that 714 East Chelten Avenue had functioning electricity and plumbing while 716 East Chelten Avenue did not. As noted, Appellant also had to break into 714 East Chelten Avenue through the back door, even though 716 East Chelten Avenue s front door was damaged. He denied taking any objects from 714 East Chelten Avenue. Based on this proof, the trial court rejected Appellant s defense that he had a reasonable belief that he was entitled to enter 714 East Chelten Avenue, and it convicted him of the above-described offenses. Appellant was originally scheduled to be sentenced on March 28, 2011, but he disappeared during the course of that proceeding. He was apprehended on a bench warrant, and claimed at the second sentencing -3- J-S13004-13 hearing on May 6, 2011, that he fled because he panicked. Appellant, who had a prior record score of five and had committed felony offenses in three different states, was sentenced to fifteen to thirty months imprisonment followed by a three-year probationary term. Also, the victim was awarded restitution in the amount of $5,726 for the value of the items taken from his property. In this timely appeal following imposition of judgment of sentence, Appellant raises these claims: Did the trial court err as a matter of law by finding the defendant guilty of crimes that require a criminal intent? Did the trial court err as a matter of law by failing to recognize the defendant s defenses of justification and excuse, in that his conduct was in reliance on the advice, guidance, and information he received from the Law Department of the City of Philadelphia, regarding the concept of Equity or Right of Redemption? Appellant s brief at 3. Appellant s first position is that he did not commit the crimes of burglary, trespass, theft, and receiving stolen property because he lacked the necessary mens rea. Under the Crimes Code, 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. § 3502(a). Thus, in connection with this crime, Appellant maintains that he was licensed or privileged to enter 714 -4- J-S13004-13 East Chelten Avenue and that, based on that license or privilege, he did not intend to commit a crime therein. The Crimes Code defines criminal trespass as follows: (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. 18 Pa.C.S. § 3503(a)(1). Consistent with his position as to burglary, Appellant posits that he is not guilty of criminal trespass in that he thought he was licensed or privileged to break into the real estate in question. Theft is committed when a person, inter alia, unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof. 18 Pa.C.S. § 3921(a)(1). The crime of receiving stolen property is outlined in 18 Pa.C.S. § 3925(a), which provides, A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner. Appellant s position in connection with these two crimes is that he was unaware that the construction items that he removed from 714 East Chelten Avenue belonged to another person -5- J-S13004-13 due to his belief that the property was abandoned. Hence, he claims he is innocent of theft and receiving stolen property. To summarize, Appellant s position is that he operated under the reasonable but mistaken belief that he was legally permitted to enter 714 East Chelten Avenue and take possession of the premises and the objects since he thought that they did not belong to anyone. 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 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. Knox, 50 A.3d 749, 754 (Pa.Super. 2012) (quoting Commonwealth v. Brown, 23 A.3d 544, 559 60 (Pa.Super. 2011) (en banc)). Appellant presented a mistake-of-fact defense, and, in seeking reversal of his convictions for burglary, trespass, theft, and receiving stolen property, he relies upon our decision in Commonwealth v. Namack, 663 -6- J-S13004-13 A.2d 191 (Pa.Super. 1995), and Commonwealth v. Compel, 344 A.2d 701 (Pa.Super. 1975). It is well established that a bona fide, reasonable mistake of fact may, under certain circumstances, negate the element of criminal intent. 18 Pa.C.S.A. § 304 (providing, inter alia, that ignorance or mistake as to a matter of fact, for which there is a reasonable explanation or excuse, is a defense if the ignorance or mistake negatives the intent, knowledge, recklessness, or negligence required to establish a material element of the offense ); Commonwealth v. Compel, 236 Pa.Super. 404, 344 A.2d 701 (1975); Commonwealth v. Bollinger, 197 Pa.Super. 492, 179 A.2d 253, 255 (1962). It is not necessary that the facts be as the actor believed them to be; it is only necessary that he have a bona fide and reasonable belief in the existence of facts which, if they did exist, would render an act innocent. Commonwealth v. Lefever, 151 Pa.Super. 351, 30 A.2d 364, 365 (1943). See generally, Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Commonwealth v. Compel, supra, at 702-03. When evidence of a mistake of fact is introduced, the Commonwealth retains the burden of proving the necessary criminal intent beyond a reasonable doubt. Commonwealth v. Cottam, 420 Pa.Super. 311, 616 A.2d 988, 1000-01 (1992). In other words, the Commonwealth must prove either the absence of a bona fide, reasonable mistake, or that the mistake alleged would not have negated the intent necessary to prove the crime charged. Commonwealth v. Hamilton, 766 A.2d 874, 878-79 (Pa.Super. 2001) (quoting Namack, supra, at 194-95). Specifically, 18 Pa.C.S. § 304 provides: Ignorance or mistake as to a matter of fact, for which there is reasonable explanation or excuse, is a defense if: (1) the ignorance or mistake negatives the intent, knowledge, belief, recklessness, or negligence required to establish a material element of the offense; or -7- J-S13004-13 (2) the law provides that the state of mind established by such ignorance or mistake constitutes a defense. In Namack, the first case relied upon by Appellant, Namack was convicted of defiant trespass. We reversed that conviction based upon our conclusion that he had presented a valid mistake-of-fact defense. Specifically, Namack s conviction stemmed from his use of a trail located over the victims property that led to a river. The owners of the path had given various neighbors, including Namack, permission to use it to access the river. However, in 1993, the owners decided that they wanted Namack to execute an agreement releasing them from liability if he hurt himself while using the trail to reach the river. Namack refused to execute the agreement on the ground that it might compromise his ability to use the route. Namack was presented with a revised contract, which he took into his possession, stating that he would consider executing. At that time, the property owners advised Namack that he was no longer allowed to access the river over their property until he signed the document. When Namack began to use the path, one of the property owners confronted him. Namack responded that, while he had not signed the agreement, he had consulted a lawyer regarding his legal right to use the trail. He was charged by private complaint and convicted of defiant trespass in connection with this incident. -8- J-S13004-13 We concluded that Namack s conviction of defiant trespass was infirm since he lacked the mens rea to commit that crime. In so doing, we noted that Namack and his ancestors had used the route for years to gain access to the river, and that when the purported trespass occurred, Namack had consulted with a lawyer and been advised that he had a legal right to continue to use it as an easement by prescription. We held that even if Namack had not, in fact, acquired such an easement, the evidence nevertheless established that he reasonably, if mistakenly, believed that he had the legal right to travel on the path over the victims property. Commonwealth v. Compel, supra, involved convictions for burglary, larceny, and receiving stolen goods that were premised upon the defendant s removal of four horses from a stable. The defendant claimed that he reasonably believed that the horses belonged to him. We agreed that the defendant lacked the mens rea to commit the crimes on this basis under the following facts. The defendant arranged to board his five horses at the stable and paid for several months of board. After one of the defendant s five horses died, the defendant blamed the stable owner for the death, sued him for the loss, and ceased paying for the other four animals stabling fees. The stable owner informed the defendant that he was in arrearages and arranged for a public auction of the four horses. While notice of the auction was posted at the stable, notice was not published and there was no indication that the defendant saw the -9- J-S13004-13 posting at the stable. Under advice of his attorney and without knowledge of the ensuing auction of his four horses, the defendant openly drove to the stable with a truck capable of carrying the horses and removed them from the stable. In reversing his convictions of burglary, larceny, and receiving stolen goods, this Court concluded that the Commonwealth failed to establish that the defendant lacked a reasonable basis for his belief that the horses still belonged to him. This conclusion was premised upon the fact that the Commonwealth never established that the defendant had actual notice that his horses were sold and the existence of a reasonable dispute over the defendant s monetary obligation to continue to pay for board in light of the death of his other horse. The facts herein bear no resemblance to those in Namack and Compel. Herein, the Commonwealth s evidence was sufficient beyond a reasonable doubt to refute that Appellant was operating under a reasonable but mistaken belief that he was privileged or licensed to enter 714 East Chelten Avenue and take the construction materials located therein because those items did not belong to anyone. Its proof was as follows. Appellant was aware that 714 and 716 East Chelten Avenues were separate addresses, and he admittedly thought that he had the legal right to enter 716 East Chelten Avenue, which was the vacant property with unpaid taxes. The latter property had a broken front door while 714 East Chelten s front door - 10 - J-S13004-13 was locked; thus, Appellant had to enter that address by breaking the back door. When Appellant entered 714 East Chelten Avenue, it contained various building materials and tools and had a visible wall separating it from 716 East Chelten Avenue. Appellant admitted that 714 East Chelten Avenue had working electricity and plumbing while 716 East Chelten Avenue did not. Finally, there was a discrepancy between what Appellant told the victim on March 10, 2010, and Appellant s testimony at trial. Appellant informed Mr. Emile that he bought that property so that s his property, and not that he was there because there were back taxes owed on it and that he was improving it. N.T. Trial, 2/7/11, at 21. Thus, the Commonwealth disproved that Appellant had a reasonable belief that he was authorized to enter 714 East Chelten Avenue and take the items contained therein because no one owned them. Any purported evidence as to Appellant s good faith related only to 716 East Chelten Avenue, which was a distinct property from 714 East Chelten Avenue. Hence, we conclude that Appellant possessed the mens rea to commit burglary, trespass, theft, and receiving stolen property. Appellant s challenge to his terroristic threats conviction differs. He contends that he did not actually threaten the victim. This position rests on the fact that Appellant s native language is Creole and told Mr. Emile that he would blow him out of the house if he did not leave. N.T. Trial, 2/7/11, at - 11 - J-S13004-13 21. Appellant maintains that he actually meant that he was going to throw him out and, accordingly, did not threaten the victim. However, Appellant s conviction for terroristic premised upon this communication to Mr. Emile. threats was not Rather, the court concluded that the crime of terroristic threats occurred after Appellant told Mr. Emile that someone would get hurt if he did not leave on March 10, 2010, quickly followed by Appellant, together with five friends, screaming at the victim to leave or [s]omething will happen. Id. at 21, 23. The crime of terroristic threats is outlined in 18 Pa.C.S. § 2706(a), which provides in pertinent part that a person is guilty of that crime if he communicates, either directly or indirectly, a threat to . . . commit any crime of violence with intent to terrorize another[.] To establish commission of that crime, the Commonwealth must prove that 1) the defendant made a threat to commit a crime of violence, and 2) the threat was communicated with the intent to terrorize another or with reckless disregard for the risk of causing terror. Neither the ability to carry out the threat nor a belief by the persons threatened that it will be carried out is an essential element of the crime. Rather, the harm sought to be prevented by the statute is the psychological distress that follows from an invasion of another's sense of personal security. In re B.R., 732 A.2d 633, 636 (Pa.Super. 1999) (citations omitted). In this case, on March 10, 2010, Mr. Emile informed Appellant that he had to leave the house because Mr. Emile legally owned it. Appellant responded that he had purchased the house. When the victim asked for a - 12 - J-S13004-13 deed, Appellant told Mr. Emile and his partner, [L]ook, if you don t get out somebody would get hurt. N.T. Trial, 2/7/11, at 21. Since Appellant was uttering this language, he meant that either Mr. Emile or his partner would be harmed if they did not leave the house. Then, when Mr. Emile informed Appellant that his words constituted a threat, Appellant told him that he doesn t care if it s a threat or not[.] Id. Next, Appellant was joined by about five male friends, who yelled at Mr. Emile and his partner that they had to leave or [s]omething will happen. Id. at 23. This verbiage by Appellant and his cohorts also clearly communicated a threat to physically harm Mr. Emile and his partner in order to frighten them into exiting 714 East Chelten Avenue. Accordingly, Appellant s conviction of terroristic threats rests on sufficient evidence. Appellant s second position on appeal is that the trial court did not consider his defense of justifiable reliance, which was premised on the information that he was provided by the Philadelphia official that he could enter, reside on, and improve vacant property with delinquent taxes and then be reimbursed for his efforts at any ensuing tax sale. However, the court did consider this position by examining and rejecting it. See Trial Court Opinion, 9/26/12, at unnumbered pages 8-9. In Commonwealth v. Kratsas, 764 A.2d 20 (Pa. 2001), our Supreme Court discussed the doctrine of reliance on the advice of governmental officials as a defense to actions that constitute a crime. - 13 - It noted that the J-S13004-13 doctrine is considered an exception to the maxim that ignorance of the law is not a defense to a crime. It continued that the defense in question is permitted only in narrow circumstances in the jurisdictions to apply it and that it contained these elements: First, in order to support invocation of the doctrine, most jurisdictions require that there be an affirmative representation that certain conduct is legal. It is frequently observed that mere laxity in law enforcement will not satisfy this condition, nor will vague or contradictory messages. Second, the representation should be made by an official or a body charged by law with responsibility for defining permissible conduct respecting the offense at issue. Third, actual reliance upon the official's statements should be present, which condition has also been stated as a requirement that the defendant believe the official. Finally, the view is commonly held that reliance must be in good faith and reasonable given the identity of the government official, the point of law represented, and the substance of the statement. Reliance is reasonable and in good faith only where a person truly desirous of obeying the law would have accepted the information as true, and would not have been put on notice to make further inquiries. Courts generally impose the burden upon the defendant to satisfy all elements. Id. at 33-34 (citations and footnote omitted). The trial court rejected the defense in the present case because Appellant s reliance on governmental advice related to occupancy of 716 East Chelten Avenue while he, instead, entered, stole items and began to live at 714 East Chelten Avenue. Hence, the trial court s refusal to apply the reliance doctrine was sound in this case. Judgment of sentence affirmed. - 14 - J-S13004-13 Judgment Entered. Prothonotary Date: 5/8/2013 - 15 - FILED 1 ~EP 2(i £:.:12 IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CRIMINAL SECTION COlVIIVION\VEALTH OF PENNSYLVANIA "S. ~ost TrIal CP-51-CR-0003663-2010 19371WA 2011 BERNARD RUCKER OPINION COVINGTON, J. Procedural HistorY On February 7, 2011, following a.bench-trial, the defendant was found guilty of! . " I , Criminal Trespass-Breaking into a Structure (18 § 3503 §§ Al 11), Terroristic Threats Wirh Intent to Terrorize Another( 18 § 2706 §§ A I). Burglary (18 § 3502 §§ A), Theft By Unlawful'Jiaking (18 § 3921 §§ A), and Receiving Stolen Property (18 § 3925 §§ A). On May 6, 20 II, th~ defendant was sentenced to fifteen (15) to thirty (30) months of incarceration followed h)' three , (3) years of reporting probation. i , A motion for extraordinary relief was filed on May 10,20 I I, and heard and deni~d on ! July 5, 2011, On.r uly 21, 2011, the defendam filed a timely Notice of Appeal. The COll~t , ordered the defendant to file a Supplemental Statement of Errors Complained of on Appclal, in I accordance with Pa. R. A. P. 1925(b), The Court received the defendant's Statement of Errors ; Complained of on Appeal on August I I, 20 I I. 18 Unit Ir ! i,i II Ii I! Ii, I II fj II Factual Riston' Iv[r. Bedner purchased the housc at 714 East Chelten Ave on May 4,2009, in ord rto make improvements and sell it for a higher price. N. T. 21712011, p. II. On February 2 , 20 I0, ,I after working on the house, he locked the windows, locked the doors, and left. Id. at 13. Mr. I!, , Bedner did not return to the house again unti I March 10,2010. Id. Upon an'ival he founr his II ! ! : i I it key would not fit in the front door, despite never changing the locks nor giving anyone I! permission to do so. Jd. at 14. Mr. Bedner walked around to the rcar of the hOllse, Sll\\' tat the I! 1 ! Iii iI that copper piping, paint, and various supplies were missing from the house. Jd. at 16-17.. Mr. ! Bedner also noticed that someone had hung up personal pictures, huilt a bed, and brough clothes J I! I! i i! back door was broken, pushed it open, and entered the property. Iii. at 15. Ivlr. Bedner noticed I I , , While Mr. Bedner was inside trying to repair the back door, the Defendant arrive? at the , i ; J " J! I into the dwelling. III. at 28. front door, and used a key to enter. Id. at 20-21. Defendant prdered Mr. Bedner to get 0 This i property. Iii. at 21. Mr. Bedner informed Defendant the house was bis property, and be 'hould I leave. Jd. Mr. Bedner then asked Defenda,nt to,sh9W spme paperwork of ownership. I k[ The Defendant responded by saying, "If you don't get out someone will get hurL" III. Mr. 13cdner told Defendant that his statement was a threat. Jd. Defendant replied he didn't care jf it Las a threat or not, the house was his property, and iflv!r. Bedner didn't get out he would biOI' him ouL I Then apploximately fiv~ other people came into the house. Id at 22. They all begfn yelling for Mr Bednel to leal'e or, "something would happen." III. at 22-23 Mr Beline thell eXited the property. Id at 23 ' I I Mr. Rucker's native language is Creolc. and he had Dcfcndanl said "throw olli)" or some other phmse. I :I ", SOIll{' difficulties with English phrases. II is PossiblJhe I 19 .', \' On March 12, 20 10, Mr. Bedner went to the local police precinct and retlll'lled t( 714 East Chelten Avenue with police officers. N. T. 2/7/201 I, p. 26. Mr. Bedner again atte npted to use his key to enter the house, but it again did not fit. Jd. The police then knocked on t· e door twice and identified themselves and police officers. Id at 26. Defendant answered the oor and told the police the property belonged to him. /d. at 34. Mr. Bedner confirmed it Was hi house and provided proof of ownership. Jd. at 35. The police slibsequntly arrested the Defen ant and removed him fi'olll tile property. Id. The premises at 714 East Chelten Avenue lVas halfofa twin-hollse. connected 0 one side to 716 East Chelten Avenue. N. T. 2/7/201 I, p. 30. When Mr.l3edner purchased 7 4 East Chelten Ave, there was no wall dividing the two properties. Id. at 31. ivlr. Bedner repla ed a wall dividing the two properties one week after he purchased 714 East Chelten Avenue. Jd at 45. Defendant testified he knew the previous owner of 716 East Chelten Avenue and did some repair work for her. N. T. 21712010, p. 49. Defendant had not visited the hOllse in few years, but hemd the previolls oIVner was now in a nursing home. Id. at 51. The Defenda testified that in December 01'2009,716 East Chelten Avenue the front door was broken i ltO two pieces and the side window was shattered. Additionally, the back door of 714 East Chel en lVas kicked in. Id. at 50. Defendant stated he went tbthc sheriffs department on December 2, , I ¢ '", I 2009, to determine the statlls of the house and was subsequently directed him to go to (h Board of Revision of Taxes to look up the propert),. !d. at 52. Defendant testifred that $16,000'J} back taxes was owed on the propert)'. !d. Defendant stated he later visited the City's Law Department and spoke to Miss Carmen Sanchez, a legal assistant. lei. at 53. The Defend nt fWiher testified that he came to uJ}derstand a legal principle called the "law of equity of 20 il. j II Ii Ii II , , redemption." lei. at 54, Defendant explained he understood the law to mean that he coilld go ! into a property owned by the city, establish residency, fix it up, and then file a petition 90 days , I," " II'I , H ,I, 1 : III i before i1 goes up for sheriff sale, and then the costs of improvements would be deducte~ fi'om the house's market value. ld. Defendant testified he returned to the property through the damaged front door East Chelten Avenue and found, to his surprise. a wall now separating 716 fr0l11 714 East ! , I\i III 61' 71 6 Chehen Avenue. ld at 55. Defendant stated he then walked around to the back of the pi'operties 1\ ! and entered 714 East Chelten Ave through the broken back door. Iel. at 57. Once insid~, 1,' I 1.' Defendant saw painting ma1erials, celllent bags, some sinKS, and a bag filled with tiles. ~d i ' ! :! 1,1 Defendant noticed that unlike 716 East Chelten. on the 714 East Chelten side of the hOllse, there iii "II II was functioning electricity and pluillbing. lei. at 63. In spite of thesc observed renovations, , , il'! property ~eparate I,i Defendant testi fied he had no knowledge that that 714 East CheJten Ave WIlS I' III from 7 J 6 East Chelten Ave, nor 71 (1 East Cheiten was sold a1 a sheriff sale to Mr. Bedner. Id. at <1 !II 59-61. Defendllnl testified he believed lvlr. Bedner 10 be a robber when he approached him at \i 714 East Che/ten claiming he owned the property. Id. at 68. II II, II! t' Ii II II i , 1\ : III Standard of Review The test for sufficiency' of the evidence is "whether the evidence, viewed in the li~ht Illost favorable to the Commonwealth as vei'dict winner, is adequate to enable a reasonable jUly to find i evcry element of the crime beyond a reasonable doubt." Commonwealth v. Rega, 933 A.2d 997 (2007). Moreover, in applying the above test, the entire trial record must be evaluated and all I, II evidence actually received must be considered. Finally. the trier of fact. whilc passing Ilpon the , III credibility of witnesses and the weight to be afforded the evidence produced, is fi'ee to, believe It I· II; t i , 'j I "\ all, part or none of the evidence introduced at trial. Commol1wealth v, Proello, 771 Abd 823. i'\I'·,! '\ I) I ;1:1 i' t I 1.1 !I i; : ,' 11:! " ' 2t II II iI Ii I! i! S33 (Pa. Super. Ct. 2001). Under these standards, the Commonwealth's evidence was lore than .. I' ii iI !I ! I II I! l sufficient to sustain the convictions. Discussion ,I ' ! Pursuant to the 1925(b) Statement of Errors Complained of on Appeal, the efendant Ii II, , !I asserts the following arguments for appeal: (I) the evidence was insufficient to prove[he mens II rea necessary for conviction; and (2) the trial court erred in not recognizing the d 'rense of ,I f I i i t! I[ I!, , II I I justification and excuse. 1. The Evidence Presented was Sufficient to Prove the Mens Re:u for the Convictions A. Crimillal Trespass To be found guilty of Criminal Trespass, the Commonwealth mList prove ,eyond a I rcasonable doubt that the dcfendant: (I) knowing, that he is not liccnsed or privi leged to kio so ... (2) enters, gains entry by subterfuge or sLirreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof.... " IS Pa.C.S.A § 3503(a)(i)(ii). Liccnse means permission to act, and privilege means a right or immunity as a peCllli! benefit, I advantage, or favor. COJ//J//ol1ll'ealih ". Hopkins, 2000 PA Super 47 (Pa. Super. Ct. 2000) (eiling COIl/J//ol1ll'ea/lh 1'. Slarkes, 268 Pa, Super. 109 (1979) (eiling WeiJsler's Third Ilue '/lalionlll DicliOl/wJ'). The element of "license" and "privilege" in this context is similar to tl at of the defense of consent. lei. The Defendant clearly possessed ihe lilens· rell necessmy for Criminal Tresp ss. The mens rca for Criminal Trespass requires a defendant to know he is not licensed or priJileged to !: enter a building. It is not credible for the Defendant to believe that he bad license to 1nter 714 East Chclten Avenue. The Defendant asserts, based on the City's Law Department's adl·ice, that he had permission to clean, and rcpair 7 I 6 East Cheiten for his own purposes. The defendant I 22 further claims that his occupation of 714 East Chclten was under the assumption that the residence was actually all part of 714 East Chelten Avenue. The Coul1 finds this el im to be unfounded. In order for Defendant to enter 714 East Chellen Avenue, he had to walk a Olllld the building and enter through the broken back door. The two properties were separated ya wall. Once the Defendant entered 714 East Chellen Avenue, be saw evidence of renovatio s to the property, observing paint, sinks, tiles, and various tools typical of repairing a house, Beyond this, the Defendant observed that the 714 East Chelten Avenue property had fu ctioning plumbing and electricity, unlike 716 East Chelten Avenue, The Defendant was tl n given specific notice by Mr. Bedner on March 10, 2010, that the property belonged to b 111. The combination of the Defendant's observations and actions demonstrate he entered 14 East Cheilen Avenue knowing it was not part of the 716 East Chelten Property without pern ission 01' license. E, Terroristic Till'ellts A defendant commits the crime of terroristic threats when he communicates a thrcat to comillit an)' crime of violence with intcnt to terrorize another. 18 Pa,C.S,A § 27 6(a)(I), Defendant doesn't need specific intent to terrorize his viclim because the elements of t 'rrorislic threats are established so long as the evidence shows even "reckless disregard" for til risk of causing terror pursuant to 18 Pa.C.S, § 2706(a)(3), COll1monll'ealth 1'. Sinl1oll, 976 A. d 1184, (Pa. Super. 2009), At minimum, the Defendant acted with reckless disregard for the risk of causing lerror to Mr. Bedner. The Defendant said, "If you don't get out someone will get hnrt." This s atemen! could reasonably be interpreted as a threat to assault Mr. Bedner, In Commonwealth 1'. IItcilel', despite no specific crime of violence, the Defendant's statement "don't let me get ph)'si al" was 23 , j , affirmed to be reasonably interpreted as a threat to assauit the victim and intent to terrorize. 644 , A.2d 174, (Pa. Super. 1994). TIle statement made by the Defendant in this case rises t? a clear threat of violence. C. Burgh":J' A person is guilty of burglary if he enters a building with intent to commit ia crime therein, unless the premises are at the time open to the public or the actor is lic~nsed or privileged to enter. 18 Pa,C.S.A. § 3502(b). The Defendant entered 714 East Chelten Ol~ several occasions with the intent to commit a crime, Circllmstantial evidence supports Defend~llt stole Mr. Bedner's supplies and copper wiring from inside the property. The Defendant alsei entered , the building with the intent to exercise illegal possession over the property. and to subs~quelltl)' i I alter (i.e. damage) said property. D. Tlleft By VIII01l1111 Takil/g A persoll is guilty of theft if he exercises unlawful control over, immovable pr6perty of another with intent to benelit himself. 18 Pa,C.S.A, § 392I(b). The Defendant clearly intended to benefit himself in the current case by occupying 714 East Chclten live, while repairing 716 East Chelten Ave. The Defendant intended to reap the benefits of living in the buildibg nextdoor with plumbing and utilities. E. Receipt of Stolen Goods A person is guilty of theft if he intentionally receives, retains, or disposes of Inovable I II II I! II '".'.1 property of another knowing that it has been stolen, or believing that it has probably beeh stolen, unless the propel1y is received, retained, or disposed with intent to restore it to the owner. 18 Pa.C.S.A. § 3925. The Defendant entered 714 East Chelten Avenue intentionally, while i' 'I Ii I! .I ! 24 ,. knowing that it did not belong to him, as discussed supra. The Defendant also took plies and S\I copper piping that he was aware did not belong to him. II. The Trial Court did Not Err ill Denying The Defense of ./ustifica ion and Excuse A. Justificlltio/l II/ld Excuse is /lOt Applicable iI/ Ifle Defendant's Siluafiol/ The Reliance Doctrine (also known as the justification and cxcuse defense) has ~een described as a nanow exception to the maxim that ignorance of the law is 1I0 excuse. COII//Ilol/wealth v. Karlsas, 764 A.2d 20, 29 (Pa. 1999). Courts, ill attempting to apply tte doctrine within appropriate constraints, have framed a series of relevant considerations. vhich vary to some degree aillong jurisdictions. Ie/. "First in order to support invocation of thJ doctrin~. most jurisdictions rcquire there he an affirmative r~preSelllation that certain cOljdu,ct is legal. Second the represcntatlon should he made by an officwl or a body charged by lall \Yuh responsibility for defining permissible conduct respecting tile offensc at issue. Third, ac ual reliance upon the official's statements should be present. Finally the view is commoilly eld that I! ! I the reliance Illust be in good faith and reasonable given the identity of the government 0 ' Icial, the point of law represented, and the substance of the statement," !d. The J\lstification and Excuse defense, also known as the Reliance Doctrine, is no applicable because it doesn't meet the standard requirements. According to the Defendart's lestimony there was an affirmative representationlllacle, and act with reliance on this adltce, satisfying the nrst and third requirements. ThOU~h advice was given, the advice callie fr~m a legal assistant at the City Lm.\' Depmtment, not an ofllcial responsible for defining peml; sible conduct. Beyond this, it was unreasonable for the Defendant to rely on this advice, givel the 25 advice was from a legal assistant, was ofa specific obscure area of law, and seemed , i.;' substantively questionable. A reasonable perso~ would seek more advice than that of a egal assistant before occupying and rehabilitating a city-owned property. These circumstan s infer Defendant was not acting in good faith. B. Justijicatiollllllli Excuse is 1I0t App/icrrble to tile Specijic Propert)' Even if the defense of justification and excuse based on the light of redemption 'as proper for this Defendant, it was unreasonable for him to believe it applied to 714 East 'helten i\ venue. As demonstrated by the Defendant's own testimony and behavior, Defendant I ever believed or received advice that he could properly own 7 I4 East Chelten Avenue, only 16 East Ch,"~ A"" '''. ""r",dm,, '''' ifi" I" ""d"""d II" o,,,hy or redo""fl", "morn' hj w" "allowed to go enter a city owned property ... take p,.ictures of' the propel1y, establish resi(jenc)" fix it up, and then file a petition." The Defendant's owntestilllony requires his belief th t 714 Easl Chelten Avenue was a city owned property. The Defendant explains this by sayin~ that he believed 714 East Chelten Avenue to be part of the 716 East Chelten Property. The COl ·t finds this 10 lack credibility. The Defendmll immediately noticed a wall separating the two pr )perties. had to enter" separate door, saw supplies in the 714 East Chelten Avenue propert)', and lOticed the functioning utilities on the 714 East Chelten. Despite all the clear signs fbat 714 Eas Chelten was a propel'll' separatc from 716 East Chelten, Defendanl claims to have assllllled the p operties were one. 26 \ I I ·,1' Iii ill ill' I, Conclusion 1 The Defendant possessed the necessary mens rea for all crimes committed a~d has no appropriate defense for his actions, 11 ii, III Ii I iii BY THIS COURT: I 1 'j 1\' iii 1,' ' ,,1 Roxnihre" oyington SeptembeJ; 18, 2012 ' ' 'I I il i" " Iii ,' I1:1 11·\ , :1 II I I 'II Iii III Iii III II ! \" \1\ Ii Ii j ·1 . 'I " \ I' ,\1 III I' I 11 I :1 II 27

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