Opinion
92 EDA 2023 J-S36043-23
01-17-2024
COMMONWEALTH OF PENNSYLVANIA Appellee v. GEORGE ALUYSIUS FRANCIS, Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered October 7, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001421-2022
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., NICHOLS, J., and KING, J.
MEMORANDUM
KING, J.
Appellant, George Aluysius Francis, appeals from the judgment of sentence entered in the Delaware County Court of Common Pleas, following his bench trial convictions for burglary, criminal mischief, and theft by unlawful taking. We affirm.
18 Pa.C.S.A. §§ 3502(a)(2), 3304(a)(2), and 3921(a), respectively.
The trial court opinion set forth the relevant facts of this appeal as follows:
The evidence presented at trial established Appellant had been romantically involved with Qianta Smith, the victim, for over two years. In October of 2021, Ms. Smith learned Appellant was involved in an affair with another woman. As a result, Ms. Smith ended the relationship. Ms. Smith had ended all communication with Appellant in October of 2021 but on the evening of November 5, 2021, Appellant began calling her from different phone numbers, sending texts, and sending emails. Appellant asked Ms. Smith to go out
that night. Ms. Smith declined the invitation and instead went to a nightclub in South Philadelphia at around 11:30 p.m. with no intention of seeing Appellant. When Ms. Smith was standing at the bar speaking to a man, Appellant unexpectedly appeared and approached her. Appellant persisted in attempting to speak to Ms. Smith but she refused. Appellant left the club but came back after about 45 minutes. He approached Ms. Smith and she noticed he was "sweaty," and he whispered in her ear "the rest of your night is on me." Appellant left and Ms. Smith did not see him again that night.
When Ms. Smith arrived home at around 4:00 a.m. on November 6, she found her house had been ransacked. There was broken glass, broken furniture, broken televisions, her kitchen appliances, bathroom walls, toilet and sink were "smashed." The home was flooded with water. The circuit breaker box had been destroyed and the electric power was out. Ms. Smith later noticed her jewelry box had been taken.
After Ms. Smith discovered the destruction of her home, she received a telephone call from Appellant. She screamed to Appellant "why would you do this?" and he responded she "had no right to be there" and ended the call. Ms. Smith interpreted the comment as meaning she had no right to go to a nightclub.
The following day, November 7, 2021, Appellant sent Ms. Smith an email stating "I got 15 thousand for you if you want." When Ms. Smith expressed fear in meeting him, Appellant responded, "Well we can work out a way to get it to you. I am very scared of Aloysius. You met him Friday. I stay very far away from him. All I would want is things to go back the way they was." … During her testimony, Ms. Smith explained "Aloysius" is Appellant's middle name, and she knew Appellant to refer to "Aloysius" as his "alter ego" or his "evil twin."
Ms. Smith offered testimony concerning a subsequent encounter with Appellant. On November 22, 2021, Ms. Smith lost electric service to her home. That evening, she observed Appellant behind her house using a power tool to disconnect the electric service at the meter.(Trial Court Opinion, filed 2/24/23, at 3-5) (record citations omitted).
Appellant's middle name appears as both "Aloysius" and "Aluysius" throughout the certified record.
On April 20, 2022, the Commonwealth filed a criminal information charging Appellant with offenses related to the destruction of Ms. Smith's home and the theft of her jewelry box. Appellant proceeded to a bench trial on August 19, 2022. At the conclusion of trial, the court found Appellant guilty of burglary, criminal mischief, and theft by unlawful taking. On October 7, 2022, the court sentenced Appellant to an aggregate term of time served to twelve (12) months' imprisonment, followed by three (3) years of probation. The court also ordered Appellant to pay restitution in the amount of $38,099.90.
Appellant timely filed a post-sentence motion on October 14, 2022. In it, Appellant claimed that "the Commonwealth failed to prove that [Appellant] had entered or trespassed at the home [of] the alleged victim with the [intent] to commit any criminal offence." (Motion, filed 10/14/22, at ¶5). Appellant also emphasized that "the Commonwealth witnesses testified that they never saw [Appellant] in the building on … the day of the alleged burglary." (Id. at ¶6). By order entered December 14, 2022, the court denied Appellant's post-sentence motion.
Despite having counsel of record, Appellant filed a pro se notice of appeal on December 20, 2022. On January 10, 2023, counsel filed an amended notice of appeal on Appellant's behalf. On January 23, 2023, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant timely filed his Rule 1925(b) statement on February 6, 2023.
Appellant now raises three issues for this Court's review:
The trial court erred in finding Appellant guilty of burglary, a first-degree felony, where the Commonwealth failed to provide sufficient evidence at trial to prove that he was guilty of burglary beyond a reasonable doubt, where the Commonwealth presented no witness, during the trial, who could testify that Appellant entered the victim's home … on November 6, 2021, with the intent to commit a crime therein.
The trial court erred in finding Appellant guilty of theft by unlawful taking, where the Commonwealth failed to provide sufficient evidence at trial to prove that he was guilty of theft beyond a reasonable doubt, where the Commonwealth presented no witness, during the trial, who could testify that Appellant entered the victim's home … on November 6, 2021, and took the movable property of Qianta Smith with the intent to deprive her of said property.
The trial court erred in finding Appellant guilty of criminal mischief, where the Commonwealth failed to provide sufficient evidence at trial to prove that he was guilty of criminal mischief beyond a reasonable doubt, where the Commonwealth presented no witness, during the trial, who could testify that Appellant tampered, damaged, or destroyed the tangible property of Qianta Smith.(Appellant's Brief at 3-4).
Appellant's issues are related, and we address them together.Appellant contends that the Commonwealth's evidence failed to demonstrate that he entered Ms. Smith's home and committed any crimes therein. Appellant emphasizes that the Commonwealth's witnesses, Ms. Smith and City of Chester Police Officer Leon Mack, did not find the perpetrator inside the home after the crimes. Regarding Ms. Smith's testimony that Appellant offered her money after the crimes, Appellant maintains that "he offered the $15,000.00 to Ms. Smith because he always offered her money, and he wanted her back in his life." (Id. at 12). Moreover, "[a]t all times before, during, and after the trial, Appellant denied burglarizing, stealing, and destroying anything at [Ms. Smith's] residence[.]" (Id.) Appellant concludes that the Commonwealth presented insufficient evidence to demonstrate that he was the person who committed the offenses at issue, and this Court must vacate his judgment of sentence on this basis. We disagree.
Pursuant to Pa.R.A.P. 2119(a), the argument shall be divided into as many parts as there are questions to be argued. See Pa.R.A.P. 2119(a). Nevertheless, the argument section of Appellant's brief is not divided into sections that correspond to each question presented. Rather, the argument section addresses one overarching theme: the Commonwealth failed to establish Appellant's identity as the perpetrator.
In reviewing a challenge to the sufficiency of the evidence, our standard of review is as follows:
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. 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. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. 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.
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he 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. 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.Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019) (quoting Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa.Super. 2013)).
The Crimes Code defines burglary, in relevant part, as follows:
§ 3502. Burglary
(a) Offense defined.-A person commits the offense of burglary if, with the intent to commit a crime therein, the person:
* * *
(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[.]18 Pa.C.S.A. § 3502(a)(2).
The intent to commit a crime after entry may be inferred from the circumstances surrounding the incident. While this intent may be inferred from actions as well as words, the actions must bear a reasonable relation to the commission of a crime. Once one has entered a private residence by criminal means, we can infer that the person intended a criminal purpose based upon the totality of the circumstances. Commonwealth v. Lambert, 795 A.2d 1010, 1022 (Pa.Super. 2002), appeal denied, 569 Pa. 701, 805 A.2d 521 (2002) (citation omitted) (internal citations omitted).
Although our Legislature amended the burglary statute, effective September 9, 2022, this portion of the statute defining Appellant's offense did not change.
The Crimes Code defines criminal mischief, in relevant part, as follows:
§ 3304. Criminal mischief
(a) Offense defined.-A person is guilty of criminal mischief if he:
* * *
(2) intentionally or recklessly tampers with tangible property of another so as to endanger person or property[.]18 Pa.C.S.A. § 3304(a)(2).
Finally, the Crimes Code defines theft by unlawful taking as follows:
§ 3921. Theft by unlawful taking or disposition
(a) Movable property.―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.A. § 3921(a). "Movable property" is:
Property the location of which can be changed, including things growing on, affixed to, or found in land, and documents although the rights represented thereby have no physical location.18 Pa.C.S.A. § 3901. "Deprivation" occurs if a person: (1) "withhold[s] property of another permanently;" or (2) "dispose[s] of the property so as to make it unlikely that the owner will recover it." Id.
"In addition to proving the statutory elements of the crimes charged beyond a reasonable doubt, the Commonwealth must also establish the identity of the defendant as the perpetrator of the crimes." Commonwealth v. Smyser, 195 A.3d 912, 915 (Pa.Super. 2018) (quoting Commonwealth v. Brooks, 7 A.3d 852, 857 (Pa.Super. 2010)). "[A] perpetrator's identity may be established with circumstantial evidence." Commonwealth v. Dunkins, 229 A.3d 622, 632 (Pa.Super. 2020), cert. denied, __U.S.__, 142 S.Ct. 1679, 212 L.Ed.2d 584 (2022). "This Court has recognized that '[e]vidence of identification need not be positive and certain to sustain a conviction.'" Id. (quoting Commonwealth v. Ovalles, 144 A.3d 957, 969 (Pa.Super. 2016)).
Instantly, the trial judge sat as the finder of fact, and he concluded that sufficient circumstantial evidence established Appellant's identity as the perpetrator:
[T]he record established that, on November 5, 2021, Appellant had the opportunity and motive to commit the crime. It was established that Appellant is a contractor and
had made improvements to that home while he was in the relationship with Ms. Smith. On November 6, 2021, when he returned to the nightclub after leaving for 45 minutes, Appellant appeared to be overheated. This is consistent with a person who has just exerted significant physical effort to cause the level of damage depicted within the images placed in evidence.
The evidence further established Appellant made veiled confessions to the victim. After returning to the nightclub, Appellant told Ms. Smith "the rest of the night is on me." In his subsequent email, Appellant made reference to meeting Aloysius when the crime was committed. Through the Aloysius reference, Ms. Smith knew Appellant was referring to his negative and destructive behavior. Significantly, Appellant offered Ms. Smith $15,000 shortly after her home had been destroyed. This unsolicited offer came without prompting and suggested knowledge of the incident on the part of Appellant.(Trial Court Opinion at 5-6).
At trial, the Commonwealth introduced into evidence seven (7) photographs depicting the damage to Ms. Smith's home. (See N.T. Trial, 8/19/22, at 23-24). Officer Mack reviewed the photographs and confirmed that they accurately depicted the destruction he saw inside the residence. (Id. at 24).
The rest of the trial court opinion discusses the evidence supporting the remaining elements of the offenses at issue. (See Trial Court Opinion at 6-7). Nevertheless, we need not analyze the remaining elements of the offenses where Appellant's issue on appeal is limited to an attack on the identification evidence alone. See Commonwealth v. Cain, 906 A.2d 1242, 1244 (Pa.Super. 2006), appeal denied, 591 Pa. 670, 916 A.2d 1101 (2007) (declining to address evidence supporting every element of offenses at issue where appellant solely argued that evidence was insufficient to establish he was person who committed crimes in question).
Viewing this evidence in the light most favorable to the Commonwealth as verdict winner, the record supports the verdicts. See Sebolka, supra. We emphasize Ms. Smith's testimony that Appellant telephoned her on the night of the incident. (See N.T. Trial at 50). Ms. Smith asked Appellant, "Why would you do this?" (Id. at 51). Rather than denying any offensive conduct, Appellant responded that Ms. Smith "had no right to be there[.]" (Id.) Ms. Smith interpreted this comment to mean that Appellant was mad at her for going to the nightclub earlier that evening. (See id.)
Ms. Smith's testimony also established a link between Appellant, his "alter ego" of Aloysius, and the criminal conduct. (See id. at 64). During her direct examination, Ms. Smith read an email that Appellant sent to her November 7, 2021. The email stated, "I'm very scared of Aloysius. You met him Friday. I stay very far away from him. All I would want is things to go back the way they was[.]" (Id.) Ms. Smith then explained that Aloysius is Appellant's middle name, he sometimes uses it as his alter ego, and she interpreted the email "to mean that he was saying it was Aloysius that did the damage to my home[.]" (Id.)
The court found Ms. Smith to be credible, labelling her testimony "compelling and candid throughout." (Trial Court Opinion at 5). This testimony showed that Appellant did not deny involvement in the criminal conduct. In fact, Appellant's statement blaming "Aloysius" could be interpreted as a tacit admission of his own criminal behavior. On this record, sufficient, circumstantial evidence demonstrated Appellant's identity as the perpetrator, and we affirm the judgment of sentence. See Dunkins, supra.
Judgment of sentence affirmed.
Judgment Entered.