Opinion
J-A14003-18 No. 3423 EDA 2017
07-13-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. LEWIS VINCENT SYKES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 16, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005667-2015 BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Lewis Vincent Sykes, appeals nunc pro tunc from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following his bench trial convictions for criminal trespass-breaking into, criminal trespass-entering the structure, criminal mischief, and attempted burglary. We affirm.
18 Pa.C.S.A. §§ 3503(a)(1)(ii), 3503(a)(1)(i), 3304(a)(5), and 901, respectively.
Our Supreme Court in Leach v. Commonwealth , 636 Pa. 81, 141 A.3d 426 (2016), declared void in its entirety Act 192 of 2014, which included, inter alia, amendments to 18 Pa.C.S.A. § 3503(b.1)(1)(iv) and § 3503(b.1)(2), (criminal trespass to steal defined secondary metals), because it violated the single-subject rule of the Pennsylvania Constitution. Leach , however, does not affect this case, because Appellant was not convicted of trespass to steal secondary metals. Rather, Appellant was convicted and sentenced under subsections 3503(a)(1)(i) (surreptitious entry or remaining in building or occupied structure) and 3503(a)(1)(ii) (entry into occupied building or structure).
In its opinion, the trial court fully and correctly sets forth the relevant facts. Therefore, we have no reason to restate them. Procedurally, Appellant proceeded to a bench trial on June 6, 2016. On June 7, 2016, the court convicted Appellant of three counts of criminal trespass and one count each of attempted burglary and criminal mischief. The court sentenced Appellant on September 16, 2016, to an aggregate term of twenty-three (23) to fifty-six (56) years' incarceration. Appellant filed no post-sentence motions and sought no direct review.
Prior to the current convictions, Appellant had been convicted twice of rape. Appellant's attempted burglary conviction in the current case constituted a third strike offense.
On March 3, 2017, Appellant timely filed his first pro se PCRA petition. The PCRA court appointed PCRA counsel on March 17, 2017. On May 23, 2017, Appellant filed an amended PCRA petition, asserting several claims of ineffective assistance of trial counsel and seeking reinstatement of his direct appeal rights nunc pro tunc.
The PCRA court conducted an evidentiary hearing on August 11, 2017. On September 26, 2017, the PCRA court granted relief in part and reinstated Appellant's direct appeal rights nunc pro tunc. Appellant timely filed his notice of appeal from the judgment of sentence nunc pro tunc on October 18, 2017. The court ordered Appellant on October 19, 2017, to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b); Appellant complied on November 9, 2017.
Appellant raises the following issues for our review:
WHETHER, WHERE THE EVIDENCE DID NOT SUPPORT AN INFERENCE OF INTENT TO COMMIT ANY CRIME WITHIN A DWELLING, APPELLANT'S CONVICTION ON ATTEMPTED BURGLARY IS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE[?](Appellant's Brief at 4).
WHETHER, WHERE THE EVIDENCE REVEALED THAT APPELLANT WAS NOT THE PERSON WITHIN THE DWELLING DURING THE INITIAL ENCOUNTER WITH VICTIM PURSUANT TO UNCONTESTED POLICE OFFICERS' TESTIMONY, APPELLANT'S CONVICTIONS FOR CRIMINAL TRESPASS ARE AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE[?]
WHETHER, WHERE THE EVIDENCE REVEALED THAT APPELLANT WAS NOT THE PERSON WITHIN THE DWELLING DURING THE INITIAL ENCOUNTER WITH VICTIM PURSUANT TO UNCONTESTED POLICE OFFICERS' TESTIMONY, APPELLANT'S CONVICTION FOR ATTEMPTED BURGLARY IS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE AS...APPELLANT COULD NOT HAVE THEN RETURNED TO THE RESIDENCE AS DETERMINED BY THE COURT[?]
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING APPELLANT GUILTY OF ATTEMPTED BURGLARY ON THE SECOND, SEPARATE INCIDENT WHEN THE COMMONWEALTH AMENDED THE BILLS OF INFORMATION TO ADD ATTEMPTED BURGLARY AS AN INCHOATE OFFENSE TO THE ORIGINAL BURGLARY CHARGE RELATED TO THE FIRST INCIDENT, AS THE COMMONWEALTH STATED AT TRIAL THAT THE COURT COULD FIND APPELLANT GUILTY OF THE ADDED ATTEMPTED BURGLARY CHARGE[S] EVEN WITHOUT THE AMENDMENT[?]
To the extent Appellant challenges the credibility of Victim's trial testimony, Appellant failed to file any post-sentence motions. Therefore, any challenge to the weight of the evidence, including Victim's credibility, is waived. See Commonwealth v. W.H.M , 932 A.2d 155, 159-60 (Pa.Super. 2007) (explaining argument that fact-finder should have discredited witness' testimony goes to weight of evidence, not sufficiency of evidence); Pa.R.Crim.P. 607(A) (providing challenge to weight of evidence must be raised with trial judge or it will be waived). --------
The Pennsylvania Crimes Code defines criminal trespass as follows:
§ 3503. Criminal trespass
(a) Buildings and occupied structures.—
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:
18 Pa.C.S.A. § 3503(a)(1).(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.
* * *
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Garrett D. Page, we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed December 12, 2017, at 5-15) (finding: (1) Appellant's cutting window screen, his possession of items which can be used to conceal identity, possession of Vaseline, flight from Victim and police, and spurious excuse constitute sufficient evidence to establish Appellant intended to commit crime within Victim's home; to extent Appellant raises weight of evidence claim, Appellant waived that claim; Appellant did not request and PCRA court did not grant reinstatement of Appellant's post-sentence motion rights nunc pro tunc, and Appellant filed no post-sentence motions; (2-3) Victim credibly testified Appellant was individual who twice entered her house; based on record and court's credibility determinations, Appellant's claim cannot be basis for finding conviction against weight or sufficiency of evidence; (4) Appellant failed to object to Commonwealth's request to amend bills of information to include charge of attempted burglary; therefore, this claim is waived; factual scenario set forth in original information placed Appellant on notice Commonwealth sought to charge him with regard to two separate entries into Victim's home; Appellant failed to prove he suffered prejudice as result of amendment; amendment did not change facts underlying charges or add new facts, alter description of charges, or affect Appellant's defense strategy). The record supports the trial court's rationale. Accordingly, we affirm on the basis of the trial court's opinion.
Judgment of sentence affirmed. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/13/2018
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