Opinion
J-A18036-19 No. 1766 WDA 2018
10-16-2019
COMMONWEALTH OF PENNSYLVANIA v. ROBERT JOHN HAVRILLA, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered October 31, 2018 in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009273-2017 BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Robert John Havrilla ("Havrilla") appeals from the judgment of sentence imposed after a jury convicted him of one count of criminal trespass. We affirm in part and reverse in part.
See 18 Pa.C.S.A. § 3503(a)(1)(i).
The trial court concisely set forth the relevant procedural and factual history in its Opinion, which we incorporate as though fully set forth herein. See Trial Court Opinion, 2/20/19, at 1-4.
In summary, in July 2018, Havrilla invaded the attic of his neighbors' ("victims") residence, located at 524 N. Taylor Avenue, Pittsburgh, PA (hereinafter, "victims' Property"). Havrilla owns a vacant investment residential property, 522 N. Taylor Avenue, Pittsburgh, PA (hereinafter, "Havrilla's Property"), which is located directly next door to the victims' Property. The two row houses have a shared wall, and are connected by a common attic crawl space, to which Havrilla had access via Havrilla's Property. After suspecting that Havrilla had trespassed into the section of the attic crawl space associated with the victims' Property (hereinafter, "the victims' crawl space"), the victims installed a video surveillance camera in the area. The video recording revealed that, on July 17, 2018, Havrilla trespassed into the victims' crawl space, and remained there for 25 minutes.
Following Havrilla's conviction for criminal trespass, on October 31, 2018, the trial court sentenced him to five years of probation, and ordered him to pay the victims $2,245.00 in restitution. Notably to this appeal, the court imposed a probation condition prohibiting Havrilla from accessing Havrilla's Property, aside from the time frame from 10:00 a.m. to 2:00 p.m., on Mondays through Fridays (hereinafter, the "probation condition"). The court also prohibited Havrilla from entering the victims' Property, and imposed a no-contact Order concerning the victims (hereinafter, the "No-contact Order").
In this timely appeal, Havrilla presents the following issues for our review:
I. WHETHER THE TRIAL COURT ERRED IN ADMITTING VIDEO RECORDINGS THAT WERE SECONDARY RECORDINGS OF THE ORIGINAL VIDEO[,] AND IN VIOLATION OF THE BEST EVIDENCE RULE?
II. WHETHER THE COMMONWEALTH PRESENTED INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT [HAVRILLA] ENTERED [THE VICTIMS' PROPERTY] WITH THE
KNOWLEDGE THAT HE WAS NOT LICENSED OR PRIVILEGED TO DO SO?Brief for Appellant at 13 (issues renumbered, capitalization in original).
III. WHETHER [HAVRILLA'S] CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE?
IV. WHETHER THE TRIAL COURT ERRED IN ORDERING [HAVRILLA] TO PAY RESTITUTION[,] WHEN THERE WAS NO EVIDENCE TO CONNECT THE RESTITUTION TO THE CRIME [OF] WHICH [HAVRILLA] WAS HELD CRIMINALLY RESPONSIBLE?
V. WHETHER THE TRIAL COURT ERRED IN INCLUDING AN UNCONSTITUTIONAL [PROBATION] CONDITION ... WHEN FORBIDDING [HAVRILLA] FROM GOING TO [HAVRILLA'S] PROPERTY FOR TWENTY HOURS EACH DAY AND ON WEEKENDS?
In his first issue, Havrilla argues that the trial court erred in denying his Motion in limine, wherein his trial counsel sought the exclusion of the video evidence that showed Havrilla entering the victims' crawl space. See id. at 26-34. Havrilla points out that the victims had "re-recorded" the original video footage captured by the surveillance camera (i.e., by using the victims' home computer to make a recording of the original video), and it was this "secondary" recording that the trial court improperly admitted at trial. Id. at 29. According to Havrilla, this video was not the "best evidence" for purposes of admissibility, and thus should have been excluded, where the original surveillance video was not preserved. Id. at 30.
The trial court explained the "Best Evidence Rule" in its Opinion, which we discuss infra.
When considering challenges to the admissibility of evidence, we employ a well-settled standard of review:
The admission of evidence is solely within the discretion of the trial court, and a trial court's evidentiary rulings will be reversed on appeal only upon an abuse of that discretion. An abuse of discretion will not be found based on a mere error of judgment, but rather occurs where the court has reached a conclusion that overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.Commonwealth v. McGriff , 160 A.3d 863, 871 (Pa. Super. 2017) (citations omitted).
In its Opinion, the trial court summarized the law pertaining to the Best Evidence Rule, addressed Havrilla's challenge to the admissibility of the video evidence, and correctly determined that this claim lacks merit. See Trial Court Opinion, 2/20/19, at 4-5. We agree with the trial court's analysis and determination, and discern no abuse of its discretion. Therefore, we affirm on this basis in rejecting Havrilla's first issue. See id.
Additionally, our review reveals that the case upon which Havrilla relies in support of his claim, Commonwealth v. Lewis , 623 A.2d 355 (Pa. Super. 1993), is distinguishable and unavailing.
In his second issue, Havrilla challenges the sufficiency of the evidence supporting his trespass conviction, asserting that it cannot stand because the Commonwealth failed to prove that he entered the victims' Property knowing that he was not licensed or privileged to do so. See Brief for Appellant at 34- 37 (citing 18 Pa.C.S.A. § 3503(a)(1)(i) (providing that "[a] person commits an offense if, knowing that he is not licensed or privileged to do so, he ... enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure ....") (emphasis added)). Havrilla asserts that
the testimony given at trial not only proved that [the victims] and [Havrilla] never discussed whether [Havrilla] was allowed to enter the [victims'] crawl space, but it also showed that [Havrilla] was previously authorized to be on the [victims'] [P]roperty ... by a previous tenant and possible owners of said [P]roperty.Brief for Appellant at 35. Additionally, Havrilla contends that
[o]n one of his visits to renovate Havrilla's Property, [Havrilla] observed a cat destroying [Havrilla's] [P]roperty[,] before returning to [the victims'] [P]roperty [by] utilizing a small hole in the drywall of the [victims'] crawl space. [Havrilla] decided to enter the [victims'] crawl space and patch the hole himself in order to remedy the cat issue[,] ... with minimal intrusion on [the victims].Id. at 35-36; see also id. at 37 (asserting that only Havrilla, not the victims, had access to the victims' crawl space).
We apply the following standard of review when considering a challenge to the sufficiency of the evidence:
[W]hether[,] 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 finder 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. Melvin , 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation omitted).
In its Opinion, the trial court addressed and rejected Havrilla's sufficiency challenge, finding that the Commonwealth presented "an abundance of evidence regarding the element of knowledge." Trial Court Opinion, 2/20/19, at 6; see also id. at 6-7. We agree with the trial court's sound analysis and determination, and therefore affirm on this basis with regard to this issue. See id. at 6-7.
In his third issue, Havrilla contends that the jury's verdict was against the weight of the evidence, and the trial court abused its discretion in rejecting Havrilla's weight challenge. See Brief for Appellant at 47. In support of this bald claim, Havrilla merely "incorporates by reference" his argument in connection with his sufficiency challenge, which we already rejected above. Nevertheless, we will briefly review this claim.
Havrilla preserved his challenge to the weight of the evidence in his timely Post-sentence Motion.
In order for an appellant to prevail on a challenge to the weight of evidence, he or she must establish that the evidence supporting a conviction is "so tenuous, vague, and uncertain that the verdict shocks the conscience of the court." Commonwealth v. Smith , 146 A.3d 257, 265 (Pa. Super. 2016) (citation omitted). "One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of evidence...." Commonwealth v. Clay , 64 A.3d 1049, 1055 (Pa. 2013). Moreover, "[t]he weight of the evidence is exclusively for the finder of fact[,] who is free to believe all, none, or some of the evidence and to determine the credibility of the witnesses." Commonwealth v. Talbert , 129 A.3d 536, 545 (Pa. Super. 2015) (citation omitted).
In its Opinion, the trial court addressed Havrilla's challenge to the weight of the evidence and determined that it did not abuse its discretion in rejecting this claim. See Trial Court Opinion, 2/20/19, at 7-8. Since we agree with the sound reasoning of the trial court, and the verdict also does not shock our collective conscience, we affirm on this basis as to this issue. See id.
In his fourth issue, Havrilla argues that the trial court imposed an illegal sentence, insofar as the record does not support the award of $2,245.00 in restitution to the victims (the "restitution Order"). See Brief for Appellant at 38-41. Havrilla urges that there is no nexus between his alleged conduct and the restitution ordered, pointing to the victims' allegation that Havrilla had removed insulation from the victims' crawl space, which the victims had to replace. See id. at 39-40 (stating that "the insulation that was shown to be replaced on the receipt provided by [the victims] does not show that the replacement insulation was being placed in any portion of the [victims' crawl space] to which [Havrilla] was said to have entered."). Havrilla further emphasizes that the Commonwealth did not charge him with any crime that stemmed from his purported removal of insulation from the victims' Property, nor did the video surveillance footage show Havrilla removing or destroying any insulation. Id. at 40.
Where an appellant challenges the legality of a restitution order, our standard of review is whether an error of law occurred. Commonwealth v. Dietrich , 970 A.2d 1131, 1133 (Pa. 2009). When evaluating a legality claim, this Court's standard of review is de novo and our scope of review is plenary. Commonwealth v. Stokes , 38 A.3d 846, 858 (Pa. Super. 2011).
In its Opinion, the trial court set forth the applicable law, addressed Havrilla's claim, and determined that the restitution Order was lawful and appropriate in light of the record. See Trial Court Opinion, 2/20/19, at 9-10. As the trial court's determination is supported by the record, and we discern no error of law, we affirm on this basis in rejecting Havrilla's claim. See id.
As an addendum, we note that at sentencing, the trial court admitted into evidence an estimate prepared by an insulation installation company, which stated that it would cost $2,245.00 to repair the problems in the victims' crawl space (i.e., the amount of restitution eventually ordered by the trial court). N.T., 3/31/18, at 14 (Commonwealth's Exhibit 1).
In his final issue, Havrilla asserts that the trial court unlawfully imposed the probation condition, which must be vacated as being unduly restrictive and improperly punitive. See Brief for Appellant at 41-46. We agree.
We acknowledge the Commonwealth's contention that Havrilla's claim presents a challenge to the discretionary aspects of the sentence, see , e.g., Commonwealth v. Dewey , 57 A.3d 1267, 1269 (Pa. Super. 2012), and that the Commonwealth objects to the absence of a Pa.R.A.P. 2119(f) statement in Havrilla's brief. See Brief for the Commonwealth at 39; see also Commonwealth v. Robinson , 931 A.2d 15, 19 (Pa. Super. 2007) (en banc) (stating that if an appellant raising a challenge to the discretionary aspects of sentencing fails to include a Rule 2119(f) statement in the brief, and the Commonwealth objects to this failure, then the claim is waived). However, we do not find the rule in Robinson to be applicable to the instant case, where (1) the related cases that we discuss infra do not expressly identify the relevant claims as challenges to the discretionary aspects of sentencing; and (2) Havrilla's claim is meritorious.
Havrilla directs our attention to the statute governing probation conditions, 42 Pa.C.S.A. § 9754(b) and (c), and the trial court's determination that the probation condition was authorized and appropriate under subsection 9754(c)(13), which permits a court to require an offender "[t]o satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience." Id. § 9754(c)(13) (emphasis added). According to Havrilla, the probation condition is punitive, not rehabilitative, in nature, and therefore unlawful. See Brief for Appellant at 43-44 (citing Commonwealth v. Crosby , 568 A.2d 233, 235 (Pa. Super. 1990) (explaining that the authorized probation conditions of section 9754(c) are behavioral restrictions or conditions, and are not punitive, and vacating the condition of defendant's probationary sentence wherein the court ordered the forfeiture of defendant's truck, which was punitive in nature)).
In its Opinion, the trial court stated as follows in support of its determination that the probation condition is lawful and appropriate:
By restricting [Havrilla's] access to [Havrilla's] [P]roperty to between the hours of 10:00 A.M. and 2:00 P.M., Monday through Friday, the [c]ourt did not prohibit or deny [Havrilla] use of his property, but rather[,] struck a balance between the rights of [Havrilla] and the need to enforce and promote the [N]o-contact [Order] with the victims, who are the immediate neighbors of [Havrilla]. The [victims'] [P]roperty ... has been the victims' residence for eight [] years. The adjoining [Havrilla's] [P]roperty ... is an investment property that has been without electricity for the entire eighteen [] years [that Havrilla] has owned it. The lack of utilities makes the residence uninhabitable and restricts [Havrilla] to working on [Havrilla's] [P]roperty solely during daytime hours. Accordingly, twenty-four [] hour access to [Havrilla's] [P]roperty is unnecessary. The [c]ourt's probation condition is consistent with the daytime hours that [Havrilla] utilizes [Havrilla's] [P]roperty and is not unduly restrictive.Trial Court Opinion, 2/20/19, at 8-9 (emphasis in original, footnote citations omitted).
The [c]ourt also had to consider the reality of the situation, [i.e.,] that the victims and [Havrilla] have the chance for incidental contact for the foreseeable future, since they are immediate neighbors. Due to the nature of the crime, the unique relationship between the parties and the imposition of a [N]o-contact [O]rder, the [probation] condition subjecting [Havrilla] to limited use of his uninhabited investment property is both reasonable and in furtherance of his rehabilitative needs, as it substantially limits potential contact with the victims, while serving to remind [Havrilla] of his illegal conduct.
Havrilla counters that, since he and the victims reside in the same neighborhood, the probation condition will not necessarily aid in limiting contact between the victims and Havrilla. Brief for Appellant at 44. Additionally, Havrilla complains that the probation condition, which permits him to access Havrilla's Property for merely four hours per weekday, "does not allow him to be a responsible and attentive property owner[,]" and has resulted in weather-related damage to Havrilla's Property, which Havrilla is "powerless to fix." Id. at 45. Finally, according to Havrilla, since his arrest, he has blocked his access to the victims' crawl space with plywood. Id. at 42.
Contrary to the trial court, we conclude that the probation condition is unduly restrictive, and therefore in violation of 42 Pa.C.S.A. § 9754(c)(13) (providing that a condition of probation must not be unduly restrictive). Moreover, there are less restrictive alternatives already in place that limit contact between Havrilla and the victims, i.e., the No-contact Order, and the condition of probation barring Havrilla from accessing the victims' Property in any fashion. Nor can we agree with the trial court that the probation condition is "reasonably related to the rehabilitation" of Havrilla, see id., where its primary purpose was to limit contact between the victims and Havrilla, rather than rehabilitation. See Commonwealth v. Hall , 994 A.2d 1141, 1145 (Pa. Super. 2010) (en banc) (relying upon Crosby , supra , and holding that the sentencing court erred when it ordered the defendant, as a condition of probation pursuant to subsection 9754(c)(13), to contribute to the financial support of the young children of the individual who the defendant had killed, where "the true purpose behind the order was clearly to support the decedent's children and not to rehabilitate [the defendant]." (emphasis omitted)). Accordingly, we must vacate the probation condition, see id., but affirm Havrilla's judgment of sentence in all other respects.
A review of the sentencing transcript reveals that the No-contact Order is clear and sufficiently restrictive. See , e.g., N.T., 3/31/18, at 17 (entering the No-contact Order on the record, and emphasizing that Havrilla "really ha[s] no need to even lay eyes on [the victims,]" and directing that, in the event Havrilla comes into contact with the victims, he must immediately take action to avoid interacting with them), 18-22 (exhaustively cautioning Havrilla that if he violates any condition of his probation, or "step[s] one toe off of the razor's edge into my purview[,]" the trial court will revoke Havrilla's probation and impose a prison sentence).
Because vacating the probation condition does not disturb the overall sentencing scheme (particularly where the No-contact Order is already in place), no remand for resentencing is required. See Commonwealth v. Thur , 906 A.2d 552, 570 (Pa. Super. 2006) (finding no need for remand because vacating a particular penalty did not disturb the sentencing court's overall sentencing scheme). --------
Judgment of sentence affirmed in part and reversed and vacated in part, in accordance with this Memorandum. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/16/2019
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