Opinion
J-S40038-16 No. 1327 EDA 2015
06-28-2016
COMMONWEALTH OF PENNSYLVANIA v. JOHN VIDRA, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 31, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0006717-2014; CP-51-CR-0007097-2014; CP-51-CR-007098-2014 BEFORE: BOWES, MUNDY and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
John Vidra ("Vidra") appeals from the judgment of sentence imposed after he was convicted of three counts of criminal mischief, two counts of criminal trespass, and one count each of burglary, attempted burglary, and attempted criminal trespass. We affirm.
The trial court set forth the relevant factual and procedural history in its Opinion, which we incorporate herein by reference. See Trial Court Opinion, 11/5/15, at 1-6.
On appeal, Vidra presents the following issues for our review:
1. Did not the lower court violate the Rules of Criminal Procedure and prejudice [Vidra] by consolidating three unrelated burglary prosecutions into a single trial?
2. As to CP 51-CR-0006717-2014 [(hereinafter, "Case No. 6717")], [i.e.,] the incident at 3053 Agate Street
[(hereinafter, "the Agate Property")], did not the lower court violate the corpus delicti rule[,] as the Commonwealth failed to establish that a crime had occurred, as required for the admission and consideration of [Vidra's] statement?Brief for Appellant at 3-4.
3. In [Case No. 6717, i.e.,] the incident at [the] Agate [Property], and CP 51-CR-0007097-2014 [(hereinafter, "Case No. 7097")], i.e.,] the incident at 3224 Miller Street [(hereinafter, "the Miller Property")], was not the evidence insufficient to sustain the convictions for criminal trespass, graded as a felony of the second degree, because there was no evidence that [Vidra] broke into either property?
4. In [Case No. 7097, i.e.,] the incident at [the] Miller [Property], was not the evidence insufficient to sustain a conviction for criminal mischief, a felony of the third degree, where [Vidra] was seen exiting a property, which was then left unsecured, and the next day[,] found to have been ransacked?
5. As to CP 51-CR-0007098-2014 [(hereinafter, "Case No. 7098")], [i.e.,] the incident at 3471 Frankford Avenue [(hereinafter, "the Frankford Property")], was not the evidence insufficient to sustain a conviction for attempted burglary, as there was no intent to commit a crime therein?
Vidra first argues that the trial court erred and violated the Rules of Criminal Procedure by consolidating the three separate cases (Case Nos. 6717, 7097, and 7098). See id. at 13-24.
The principles governing our review are well settled:
In reviewing a trial court decision to consolidate or to sever offenses for trial, our standard is abuse of discretion. Offenses charged in separate informations may be tried together if ... "the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the
[fact-finder] so that there is no danger of confusion[.]" Pa.R.Crim.P[.] 582(A)(1)[(a)]. The court has discretion to order separate trials if "it appears that any party may be prejudiced" by consolidating the charges. Pa.R.Crim.P[.] 583.
Our Supreme Court has established a three[-]part test, incorporating these two rules, for deciding the issue of joinder versus severance of offenses from different informations. The court must determine
Commonwealth v. Thomas , 879 A.2d 246, 260 (Pa. Super. 2005) (some citations omitted); see also Commonwealth v. Robinson , 864 A.2d 460, 481 (Pa. 2004) (stating that "[w]hether or not separate indictments should be consolidated for trial is within the sole discretion of the trial court and such discretion will be reversed only for a manifest abuse of discretion or prejudice and clear injustice to the defendant.").[w]hether the evidence of each of the offenses would be admissible in a separate trial for the other; whether such evidence is capable of separation by the [fact-finder] so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, whether the defendant will be unduly prejudiced by the consolidation of offenses.
Vidra points out that the trial court held that evidence in the three separate cases involved herein was admissible in a consolidated trial, under an exception to our Rule of Evidence generally prohibiting the admission of other crimes, wrongs, or acts, Pa.R.E. 404(b), as evidence of a "common scheme, plan or design" (hereinafter, "the common plan exception"). See Brief for Appellant at 10-12.
Rule 404(b) provides, in relevant part, as follows:
(b) Other crimes, wrongs, or acts.Pa.R.E. 404(b)(1)-(3).
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
(3) Evidence of other crimes, wrongs, or acts proffered under subsection (b)(2) of this rule may be admitted in a criminal case only upon a showing that the probative value of the evidence outweighs its potential for prejudice.
In the context of consolidation involving the common plan exception, our Pennsylvania Supreme Court has stated that
[w]hile evidence of distinct crimes is inadmissible solely to demonstrate a defendant's criminal tendencies, such evidence is admissible ... to show a common plan, scheme or design embracing commission of multiple crimes, or to establish the identity of the perpetrator, so long as proof of one crime tends to prove the others. This will be true when there are shared similarities in the details of each crime.Robinson , 864 A.2d at 481 (citation omitted). "To establish similarity, several factors to be considered are the elapsed time between the crimes, the geographical proximity of the crime scenes, and the manner in which the crimes were committed." Id. (citation omitted).
Vidra asserts that the three separate incidents were not sufficiently similar for the following reasons:
• In Case No. 6717 (the Agate Property), police observed Vidra removing copper wire by hand; he had no tools. Brief for Appellant at 17. In contrast, the Miller Property (Case No. 7097) "was burglarized in a sophisticated way[,]" in that "there was a tall ladder placed against the second story window[, and] the burglar used tools to cut all of the copper pipes from the basement[.]" Id.Additionally, Vidra contends that the consolidation was highly prejudicial to him, particularly because of the admission into evidence of Vidra's inculpatory statement to police at Case No. 6717, and the fact that he was arrested in that case while extracting copper wire from the Agate Property. Id. at 24; see also id. (asserting that "[b]y granting consolidation, [Vidra's] admission in ... [C]ase [No. 6717] was improperly used to bolster the other two, far weaker cases.").
• "In [Case No. 6717], [] Vidra was found inside the [Agate Property] at 11:00 p.m. In contrast, the other two cases occurred in the morning." Id. at 18 (citation omitted).
• "Each of the homes had features that suggested they were vulnerable to burglary, but this is a generic trait of burglaries in general, and does not suggest a single perpetrator." Id.
Upon review, we discern a shared similarity in the details of the crimes that supports consolidation of the three separate cases. The crimes occurred in the same general section of northeast Philadelphia (within a 1.4- mile radius), and were committed within one month of each other. See N.T., 10/28/14, at 5-7. Moreover, in each incident, the perpetrator targeted houses that appeared from the outside to be vacant. Id. at 5-6. In similar factual circumstances, this Court has held that the similarity of the offenses supported consolidation. See Commonwealth v. Armstrong , 74 A.3d 228, 234 (Pa. Super. 2013) (upholding the trial court's consolidation of two attempted burglary indictments against the defendant, where the separate crimes "took place in close temporal and geographic proximity," (i.e., within two months of each other, and in the same section of Philadelphia), and there were similarities in the victims the defendant targeted and the means he employed in attempts to break into their apartments); Commonwealth v. Janda , 14 A.3d 147, 156 (Pa. Super. 2011) (affirming trial court's consolidation of two cases against defendant for nine separate home burglaries that occurred over the span of five months, within an approximately five-mile radius, and the targeted homes were all situated such that they were not visible from the road); see also Robinson , supra.
Additionally, the trial court, which sat as the fact finder at Vidra's consolidated trial, observed in its Opinion that
the evidence concerning each alleged victim was readily separable by the court ..., as each victim/witness testified to the distinctive events supporting the respective charges, corroborated by other distinguishable evidence. Moreover, [Vidra] was charged with numerous offenses and was only convicted of some of the charges against him. The trier-of-fact clearly was able to separate and distinguish each offense.Trial Court Opinion, 11/5/15, at 9. We agree with the trial court's determination that Vidra was not unduly prejudiced by consolidation. See id.; see also Commonwealth v. Kearney , 92 A.3d 51, 61 (Pa. Super. 2014) (stating that "[e]ven if prejudicial information was considered by the trial court, a judge, as fact finder, is presumed to disregard inadmissible evidence and consider only competent evidence.") (citation omitted).
Finally, consolidating the cases against Vidra also served the interest of judicial economy. "The general policy of the law is to encourage ... consolidation of indictments when judicial economy can thereby be affected, especially when the result will be to avoid the expensive and time-consuming duplication of evidence." Commonwealth v. Patterson , 546 A.2d 596, 600 (Pa. 1988). Any possibility of prejudice to Vidra did not outweigh this consideration. See Commonwealth v. Morris , 425 A.2d 715, 718 (Pa. 1981) (stating that "in determining whether the trial court abused its discretion, this Court must "weigh the possibility of prejudice and injustice caused by the consolidation against the consideration of judicial economy.").
Accordingly, we conclude that the trial court properly exercised its discretion in consolidating the three separate cases, and Vidra's first issue does not entitle him to relief.
In his second issue, Vidra contends that the trial court erred by admitting into evidence the inculpatory statement he made to police when he was arrested inside of the Agate Property, in violation of the corpus delicti rule. Brief for Appellant at 25 (citing, inter alia, Commonwealth v . Ware , 329 A.2d 258, 274 (Pa. 1974) (summarizing the corpus delicti rule as follows: "a criminal conviction may not be based on the extra-judicial confession or admission of the defendant unless it is corroborated by independent evidence establishing the corpus delicti."). Vidra maintains that (1) his burglary conviction concerning the Agate Property "was based upon [his] own statement that he did not live in the property, was homeless, and was pulling out wire to get something to eat and go to rehab"; and (2) "the property [owner] was not called as a witness, or even identified." Brief for Appellant at 25. According to Vidra,
[the] evidence did not establish that a crime was being committed by a preponderance of the evidence or beyond a reasonable doubt. There were no signs of forced entry to the [Agate P]roperty. The [Agate P]roperty was vacant, with "things scattered all over the floor," which is consistent with demolition or renovations. Although [] Vidra was pulling wire from the wall, this did not establish the corpus delicti. Pulling wiring from a wall is consistent not only with crime, but with the process of making a home safe, by removing faulty or dangerous wiring.Id. at 28.
In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the standard of review and the law concerning the corpus delicti rule, thoroughly addressed Vidra's claim, and determined that the Commonwealth proved the corpus delicti by both a preponderance of the evidence and beyond a reasonable doubt. See Trial Court Opinion, 11/5/15, at 10-12. As the trial court's rationale and determination is supported by the record and the law, we affirm on this basis with regard to Vidra's second issue. See id.
In his third issue, Vidra argues that the Commonwealth failed to present sufficient evidence to support his two convictions of criminal trespass in Case Nos. 6717 and 7097, graded as second-degree felonies (hereinafter referred to as "trespass - F2"). Brief for Appellant at 30. Specifically, Vidra contends that there was no evidence presented that he "broke into" either the Agate Property or the Miller Property, which is a necessary element of trespass - F2. See id. at 30-33. Specifically, Vidra asserts, there was no evidence that the doors to either property were locked, or that Vidra entered by force, breaking, or through an opening not designed for human access. See id. at 31-33. Thus, Vidra urges, the convictions should be graded as third-degree felonies, under section 3503(a)(1)(i). Id. at 30.
The criminal trespass statue, 18 Pa.C.S.A. § 3503, provides, in relevant part, 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.
Id. § 3503(a) (emphasis added).
(2) An offense under paragraph (1)(i) is a felony of the third degree, and an offense under paragraph (1)(ii) is a felony of the second degree.
(3) As used in this subsection:
"Breaks into." —To gain entry by force, breaking, intimidation, unauthorized opening of locks, or through an opening not designed for human access.
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. ... 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). On a sufficiency of the evidence claim, the Commonwealth is entitled to all reasonable inferences arising out of the evidence presented. Commonwealth v. Lyons , 79 A.3d 1053, 1062 (Pa. 2013).
In its Opinion, the trial court addressed and rejected Vidra's sufficiency challenge to his conviction of trespass - F2 concerning the Miller Property (Case No. 7097). See Trial Court Opinion, 11/5/15, at 14-16. We affirm based on the trial court's sound rationale with regard to this conviction, see id., with the following addendum concerning Case No. 6717 (the Agate Property).
Officer Patrick Gereaghty ("Officer Gereaghty") found Vidra inside of the Agate Property at approximately 11:00 p.m. N.T., 12/18/14, at 12. On the front door of the Agate Property was a sign stating that it was scheduled to be sold at a sheriff's sale. Id. Vidra was covered in drywall dust and ripping electric wiring out of the wall. Id. at 14. He admitted to Officer Gereaghty that he was stealing the wiring and that he did not have permission to be there. Id. at 15. We acknowledge that there was no direct evidence presented that Vidra had forced entry into the Agate Property. See id. at 25. However, the trial court, as the fact-finder, was entitled to reasonably infer that Vidra had "broken into" the Agate Property, see Lyons , supra , given that (1) the crime occurred late at night, inside of a house that was vacant and scheduled to be sold; and (2) Vidra admitted that he was there without permission to steal wiring. Accordingly, the trial court properly rejected Vidra's sufficiency challenge to his convictions of trespass - F2.
Officer Gereaghty testified that he had attempted to reach the owner of the Agate Property via telephone, by calling a phone number listed on the sheriff's sale sign. N.T., 12/18/14, at 24. No one answered the calls. Id.
In his fourth issue, Vidra contends that the evidence is insufficient to sustain his conviction, at Case No. 7097 (the Miller Property), of criminal mischief. Brief for Appellant at 34-36. Vidra points out that the owner of the Miller Property, Kathleen Reick ("Reick"), discovered, on May 18, 2014, that the Miller Property had been ransacked sometime after her contractor had last been at the Miller Property (and locked the doors), on May 12, 2014. Id. at 34. Vidra points out Reick's testimony that there was a previous break-in at the Miller Property, and, according to Vidra, "[a]nother person could have been inside the [Miller P]roperty and damaged it before Vidra entered" on May 17, 2014. Id. at 35; see also id. (pointing out that the police officer who arrested Vidra on May 17, 2014, did not thereafter secure the Miller Property, and asserting that the damage to the Miller Property, therefore, could have been caused by someone after Vidra was in custody). Additionally, Vidra asserts that "the nature of the damage in this case suggests that it was not [] Vidra who caused the damage. [Reick] found that all of the copper pipes had been cut out of the basement, and removed from the house[.] This is a task that requires tools, which [] Vidra did not have." Id. (internal citation omitted).
In its Opinion, the trial court discussed the applicable law, addressed Vidra's claim, and determined that the evidence was sufficient for the fact-finder to find him guilty of criminal mischief beyond a reasonable doubt. See Trial Court Opinion, 11/5/15, at 16-18. We affirm based on the trial court's rationale with regard to this issue. See id.
Moreover, as noted above, the trial court properly found that Vidra was involved in a common scheme of targeting vacant rowhomes in the area and ransacking them for copper materials contained therein.
In his final issue, Vidra argues that in Case No. 7098 (the Frankford Property), the evidence was insufficient to sustain his conviction of attempted burglary because the Commonwealth failed to prove beyond a reasonable doubt that he intended to commit a crime inside of the Frankford Property. See Brief for Appellant at 37-38. Vidra points out that the owner of the Frankford Property, Teresa Todd ("Todd"), testified that (1) she heard a loud noise coming from her private alleyway; (2) then saw Vidra run through her yard and climb her fence to leave the Property; and (3) thereafter discovered that her basement window, which was adjacent to the alleyway, had been broken. Id. at 38. According to Vidra, however, this evidence was insufficient to prove that he intended to commit a crime inside of the Frankford Property because (1) he never entered the residence; and (2) the police did not find any stolen property or tools on his person when they arrested him shortly after Todd called the police. Id.
Vidra does not challenge his convictions at Case No. 7098 of attempted criminal trespass and criminal mischief. Brief for Appellant at 38.
Concerning the damage, Todd stated that Vidra had removed an outer screen over the basement window, and then pushed on the window with such force that it broke the lock and the wooden frame around the window. See N.T., 12/18/14, at 58, 60-61.
In support of his claim, Vidra relies upon our Supreme Court's decision in Commonwealth v. Wilamowski , 633 A.2d 141 (Pa. 1993). In that case, the defendant kicked in a person's garage door and fled from the scene. Id. at 142. The Supreme Court held that the evidence was insufficient to convict the defendant of attempted burglary, reasoning as follows:
Although the Commonwealth's facts prove that [the defendant] kicked at the door and tore it off of its hinges, there was no additional evidence to establish that he possessed an intent to commit a crime inside. He broke the door and apparently walked away from it without any showing that he entered the structure or attempted to enter. His path into the structure was now unobstructed, but he chose to walk away and go to the neighbor's house to ask for directions. Evidence of [the defendant's] subsequent actions in flight is also insufficient, standing alone, to lend any support to a permissible inference of intent to commit a crime inside since the flight is consistent with his efforts to avoid apprehension for his conduct of breaking down the door.Id. at 144 (emphasis added); see also Commonwealth v. Alston , 651 A.2d 1092, 1094 (Pa. 1994) (explaining Wilamowski by stating that "[w]e held that a 'totality of the circumstances' approach is more appropriate when evaluating the Commonwealth's evidence supporting the intent element [for a conviction of attempted burglary]. We then held that more than merely breaking a door or window is required to support an inference of intent to commit a crime inside.") (emphasis in original).
In its Opinion, the trial court set forth the applicable law, addressed Vidra's claim, and determined that the evidence was sufficient for the fact- finder to find that Vidra had the necessary intent for a conviction of attempted burglary. See Trial Court Opinion, 11/5/15, at 18-20. We affirm based on the trial court's rationale with regard to this issue, see id., with the following addendum.
Contrary to Vidra's claim, Wilamowski is distinguishable and unavailing. In contrast to Wilamowski (where the defendant had departed after breaking the garage door, despite having an unobstructed path into the structure), here, the fact-finder could reasonably infer, from the totality of the circumstances, that Vidra fled the Frankford Property before entering it, not because he had no intent to enter it, but because he had been discovered breaking-in. After Vidra broke the basement window to the Frankford Property, a nearby dog began barking. N.T., 12/18/14, at 56, 73. According to Todd, after hearing the barking, Vidra "climbed the fence [in her backyard], and he was booking[, i.e., running,] because I think he thought the dog was in my house, but the dog was in the next yard." Id. at 73. Additionally, Todd stated that the window that Vidra had broken was inaccessible without climbing over a stockade fence, see id. at 74-75, which could further support a reasonable inference that Vidra broke the window with an intent to commit a crime inside the residence (and not merely for vandalism purposes). Finally, unlike the situation in Wilamowski , here, Vidra was involved in a common scheme of breaking into homes that appeared from the outside to be vacant, in the same neighborhood in which the Frankford Property was located. See supra (issue 1).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/28/2016
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