Opinion
J-S59004-13 No. 3280 EDA 2011
03-26-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DONALD CANTY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence December 2, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005019-2011
BEFORE: BOWES, PANELLA, and FITZGERALD, JJ. MEMORANDUM BY BOWES, J.:
Former Justice specially assigned to the Superior Court.
Justice Fitzgerald did not participate in the consideration or decision of this case.
Donald Canty appeals from the judgment of sentence of nine to eighteen months imprisonment followed by two years probation. Sentence was imposed after Appellant was convicted at a bench trial of burglary, trespass, attempted theft by unlawful taking, and risking a catastrophe. We affirm.
The proof supporting Appellant's convictions was as follows. At 1:45 p.m. on March 7, 2011, Philadelphia Police Officer Latonya Bey received a dispatch that a burglary was in progress at 6072 Chester Avenue, Philadelphia. When she arrived at that destination, the fire department was present, and she immediately smelled a strong odor of gas emanating from the property. She and her partner proceeded to investigate, and, as they were "going through the back alleyway," they "saw [Appellant] actually come out the back door of that property." N.T. Trial, 12/2/11, at 9. Officer Bey identified Appellant in the courtroom as the man whom she observed exit the house when the burglary and gas leak were discovered.
When she saw Appellant, Officer Bey yelled, "Police," and, "[a]t that point, [Appellant] proceeded to run down the alleyway." Id. at 10. Officer Bey apprehended Appellant shortly thereafter. She observed that Appellant "was dirty. He had dirty boots, hands and clothing as well." Id. at 11. Officer Bey arrested Appellant, transported him to the police station, and returned to the property. She observed that "the back door was kicked off the hinges." Id. Additionally, in the basement, she discovered "copper piping that was disconnected from various areas like the furnace, water heater, and it was all piled up as if it was ready to be taken out." Id. Specifically, the piping was located near the stairway leading to the first floor.
Bernard James Breslin, a field supervisor for the Philadelphia Gas Works, testified as follows. He responded to a report from the fire department of a gas leak at 6072 Chester Avenue on March 7, 2011. When he arrived, a police officer and a service technician were at the scene. Even though the service technician had already turned off the gas to the property, Mr. Breslin could "still smell gas. There were still readings" in the house, which had to be ventilated. Id. at 20. Mr. Breslin, who was qualified as an expert witness, opined that the gas leak could have resulted in a fire, explosion, and personal injury.
Based on this evidence, Appellant was convicted of the above-described offenses and sentenced to county incarceration followed by probation. In this appeal from imposition of sentence, Appellant raises these averments:
A. Was not the evidence insufficient to sustain Appellant's conviction for burglary, criminal trespass and attempted theft [by unlawful taking] where the Commonwealth did not disprove the properly raised affirmative defense that the property was abandoned?Appellant's brief at 3-4.
B. Was not the evidence insufficient to sustain Appellant's conviction for burglary and attempted theft [by unlawful taking] beyond a reasonable doubt because the Commonwealth failed to prove that upon entry appellant had the intent to commit a crime inside or deprive another of property where the house and its contents reasonably appeared abandoned?
C. Was not the evidence insufficient to sustain Appellant's conviction for risking a catastrophe, and attempted theft [by] unlawful taking because there was no evidence that appellant was the party responsible for touching, removing or attempting to remove copper pipes from the house or that he was the individual responsible for releasing gas into the building?
D. Was not the evidence insufficient to sustain a conviction for criminal trespass as a felony of the second degree because the evidence was insufficient to prove that appellant broke the door to the house?
We engage in the following standard of review regarding Appellant's sufficiency contentions:
As a general matter, our standard of review of sufficiency claims requires that we evaluate the record "in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence." Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (Pa. 2000). "Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt." Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.Super. 2005). Nevertheless, "the Commonwealth need not establish guilt to a mathematical certainty." Id.; see also Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa.Super. 2000) ("The facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence."). Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. See Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001).Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa.Super. 2013) (citation omitted).
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. See Brewer, 876 A.2d at 1032. Accordingly, "the fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence." Id. (quoting Commonwealth v. Murphy, 795 A.2d 1025, 1038-39 (Pa.Super. 2002)). Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a reasonable doubt, the appellant's convictions will be upheld. See Brewer, 876 A.2d at 1032.
We first outline the elements of the crimes in question. At the time that Appellant committed the present crimes, burglary was defined as follows: "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) (superceded). An occupied structure is, "Any structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present." 18 Pa.C.S. § 3501.
Effective September 4, 2012, the crime of burglary was amended to read:
(a) Offense defined.--A person commits the offense of burglary if, with the intent to commit a crime therein, the person:18 Pa.C.S. § 3502. We note that § 3502 was further amended in 2013. That legislation altered the grading of burglary when the defendant's intent in entering the structure was to commit a theft of a controlled substance or designer drug. See 2013 Pa. Legis. Serv. Act 2013-131.
(1) enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense any person is present;
(2) enters a building or occupied structure, or separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense no person is present;
(3) enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense any person is present; or
(4) enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense no person is present.
A person commits criminal trespass "if, knowing that he is not licensed or privileged to do so, he" either "enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof" or if he "breaks into any building or occupied structure or separately secured or occupied portion thereof." 18 Pa.C.S. § 350 (a)(1)(i-ii). "A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof." 18 Pa.C.S. § 3921(a)(1). "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. § 901. Finally, the crime of causing or risking a catastrophe is outlined in 18 Pa.C.S. § 3302, as follows:
a) Causing catastrophe.-- A person who causes a catastrophe by explosion, fire, flood, avalanche, collapse of building, release of poison gas, radioactive material or other harmful or destructive force or substance, or by any other means of causing potentially widespread injury or damage, including selling, dealing in or otherwise providing licenses or permits to transport hazardous materials in violation of 75 Pa.C.S. Ch. 83 (relating to hazardous materials transportation), commits a felony of the first degree if he does so intentionally or knowingly, or a felony of the second degree if he does so recklessly.
(b) Risking catastrophe.-- A person is guilty of a felony of the third degree if he recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous means listed in subsection (a) of this section.
In this case, the Commonwealth's evidence and inferences therefrom established the following. Appellant entered a home with the intent to take copper piping from it, and he broke through a door in order to conduct that activity. He took a substantial step toward removing the piping when he cut it and placed it near an exit of the basement. Removal of the piping created a risk of fire or explosion because it was transporting natural gas. The gas was pervasive both inside and outside the house after the piping was cut. Hence, all of the elements of each crime were established by the Commonwealth's proof.
Appellant first argues that the evidence was insufficient to sustain the verdict as to burglary, trespass, and attempted theft in that the evidence did not establish beyond a reasonable doubt that the property was not abandoned. Section 3502(b) at the relevant time provided that it is a "defense to prosecution for burglary if the building or structure was abandoned." 18 Pa.C.S. § 3502(b) (superceded). Likewise, abandonment is a defense to criminal trespass. 18 Pa.C.S. § 3503(c)(1) ("It is a defense to prosecution under this section that a building or occupied structure involved in an offense under subsection (a) of this section was abandoned[.]"); see also Commonwealth v. Goldsborough, 426 A.2d 126 (Pa.Super. 1981).
The legislature also amended § 3502(b), effective September 4, 2012, and it now states:
(b) Defense.It is a defense to prosecution for burglary if any of the following exists at the time of the commission of the offense:18 Pa.C.S. § 3502(b).
(1) The building or structure was abandoned.
(2) The premises are open to the public.
(3) The actor is licensed or privileged to enter.
While abandonment is not an outlined defense to theft, it logically must be inferred to be a defense under the elements of theft. Specifically, to commit theft, one must take movable property of another. If the owner of property has abandoned it, that property no longer is owned by the person. Otherwise, one could be convicted of theft by, for example, taking objects from someone's garbage or retrieving an item lying on the ground. Moreover, we ruled that abandonment was a defense to the crime of larceny, which was a common law crime in existence prior to the enactment of the Crimes Code. We observed in Commonwealth v. Meinhart, 98 A.2d 392, 394 (Pa.Super. 1953), "One of the elements of larceny is a specific intent to steal (animus furandi)—an intent to convert the goods wrongfully to the taker's own use or permanently deprive the owner of their possession. Moreover, since larceny is a crime against possession, in order to sustain a conviction of larceny it must appear not only that there was a wrongful caption and asportation of the goods by the defendant, with specific criminal intent, but that the property itself was the subject of larceny." Thus, larceny encompasses the criminal behavior proscribed by the present crime of theft. In Meinhart, we observed that if a person stole abandoned property, that person was not guilty of larceny. We reasoned that abandoned property since it "belongs to no one, nor is it regarded as being in the possession of any one. Because there is no property right in it in any one it cannot be the subject of larceny." Id. at 395.
Having concluded that abandonment provides a defense to the three crimes in question, we now examine the definition of abandon. In Commonwealth v. Henderson, 419 A.2d 1366, 1367 (Pa.Super. 1980), wen noted:
Webster defines abandon as 1) to forsake entirely; as, to abandon a hopeless enterprise 2) to renounce and forsake; to leave with a view never to return. Thus a building that has been abandoned is one that is wholly forsaken or deserted. Webster's New Twentieth Century Dictionary, Unabridged, Second Edition, (1979).Similarly, in Commonwealth ex rel. Lamberson v. Batyko, 43 A.2d 364, 365 (Pa.Super. 1945) (citation omitted), we observed: "To abandon is totally to withdraw ourselves from an object; to lay aside all care for it; to leave it altogether to itself." Thus, a house that is not occupied is not necessarily abandoned. Instead, the circumstances must indicate that the owner has completely forsaken the property and has no intention of returning to it. Likewise, a piece of property is not necessarily abandoned if it is located inside a building that is not abandoned.
Herein, Appellant contends that he raised the affirmative defense of abandonment and that the Commonwealth failed to disprove that circumstance beyond a reasonable doubt. Specifically, at trial, Appellant asked Mr. Breslin, "Did the house appear abandoned to you?" N.T. Trial, 12/2/11, at 22. The witness responded affirmatively and also indicated that there were many pipes removed in a number of rooms.
The trial court rejected Appellant's position that the house was abandoned. It premised its finding on the fact that entry to the house had to be gained through a locked door, which was broken, as well as the fact that the gas was still operational on the structure. We concur with the trial court's assessment. If the house was totally abandoned, gas service would have undoubtedly been disconnected from the property. There also would not have been a locked door.
Defense counsel admitted during closing remarks that the house appeared to be under construction. Specifically, Appellant's counsel argued to the trial judge as follows: "There's a house that's abandoned that's obviously under some sort of construction. There's a lot of pipes ripped out and things ripped out. It's clearly an abandoned house that's having work done to it in some way." Id. at 27. As we noted in Commonwealth v. Johnson, 961 A.2d 877, 882 (Pa.Super. 2008),
it has long been the rule in this Commonwealth that "counsel represent their client and their admissions are prima facie his admissions. Certainly so even in criminal cases when made in his presence and to the jury." Commonwealth v. McMurray, 198 Pa. 51, 60-61, 47 A. 952, 953 (1901). "In trials for felony, admissions of fact which the government is bound to prove are not permitted unless made at the trial in open court by the prisoner or his counsel." Id. See also Commonwealth v. Phillips, 273 Pa.Super. 321, 417 A.2d 669, 671-672 (1979) (ruling permissible the trial court's instruction to the jury that defense counsel's admissions during closing argument could be treated as evidence proved against the appellant).
Thus, Appellant's counsel's statement to the factfinder during closing remarks that the house was under renovations of some type can be viewed as an admission that construction work was being performed on it. Id. The existence of construction activity demonstrated that the house, contrary to being abandoned, was being repaired so that it could be occupied. Hence, the Commonwealth disproved beyond a reasonable doubt Appellant's defense that the property was abandoned, and we reject this challenge to the sufficiency of the evidence supporting the offenses of burglary, trespass, and attempted theft.
Appellant's next averment relates to the sufficiency of the evidence supporting the offenses of burglary and attempted theft. He maintains that the proof failed to demonstrate that he had the specific intent to commit a crime on the property or a theft of the removed piping because the house and its contents appeared to be abandoned. We reject this challenge on the same basis as outlined infra. The house and its contents did not reasonably appear to have been abandoned since the house was locked and the door had to be broken to gain entry. Additionally, when Appellant removed the piping to the furnace and water heater, the smell of gas would have been apparent. He thus would have known that someone was still paying for that utility. Finally, there was construction activity occurring on the premises. Appellant could not have reasonably believed that the house and its contents were abandoned by the owner.
Appellant's third position is that the evidence was insufficient to sustain the finding that he was guilty of risking a catastrophe and attempted theft. He maintains that there was no proof that he was the individual who cut the copper piping, which created the gas leak, and placed that piping by the basement stairs to be removed. His final allegation involves the identical stance in that he suggests that the trespass conviction is infirm since there was no evidence that he was responsible for breaking the door to the property to gain entry to it.
It is well established that the Commonwealth is entitled to all reasonable inferences created by the evidence presented. Lynch, supra. In this case, police received a report that a burglary was in progress at 6072 Chester Avenue. When they arrived, the smell of gas was pervasive. As Officer Bey approached the rear of the house, she observed Appellant exiting that structure. Upon seeing police, Appellant fled, an action that proves his consciousness of guilt. Commonwealth v. Hudson, 955 A.2d 1031 (Pa.Super. 2008). When arrested shortly thereafter, Appellant and his clothing were dirty, which gives rise to the inference that he was involved in cutting the pipes.
Given Appellant's presence in the house contemporaneously with the burglary report and discovery of the gas leak, together with his flight from police, the fact finder was permitted to infer that he was the person responsible for breaking into the house and removing the copper piping that resulted in the gas leak. Commonwealth v. Cimaszewski, 288 A.2d 805 (Pa. 1972); Commonwealth v. Viall, 420 A.2d 710 (Pa.Super. 1980). The circumstances presented herein, together with the reasonable inferences to be drawn therefrom, also were sufficient to permit the trial judge to conclude that Appellant was the person who broke into the house. Hence, we reject Appellant's final two challenges to the sufficiency of the evidence and affirm.
Judgment of sentence affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary