Loading...
HomeMy WebLinkAboutCP-21-CR-1660-2003COMMONWEALTH : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, :PENNSYLVANIA : CP-21-CR-1660-2003 :CHARGES: (1) BURGLARY (2) THEFT BY UNLAWFUL TAKI N G (3) CRIMINAL TRESPASS TIMOTHY P. WOLFE, JR. OTN: H 705378-2 :AFFIANT: PTL. ADAM SHORE IN RE: OPINION PURSUANT TO P.A.R.A.P. 1925 HOFFER, P.J.: In this criminal case, the Defendant has appealed from a Sentence of Judgment following a jury trial in which he was found guilty of the above- captioned charges. He argues in his Concise Statement of Matters Complained of on Appeal that the evidence presented by the Commonwealth was insufficient to disprove his alibi evidence and, therefore, cannot sustain his convi~ions. STATEMENT OF FACTS The test for sufficiency of the evidence in a criminal case has been stated as follows: The test to be applied in determining the sufficiency of evidence to sustain a conviction is whether, accepting as true all the evidence and all reasonable inferences arising there from upon which, if believed, the trier of fact could properly have based its verdict, it is sufficient to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes with which he has been charged. As with all challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Barnes, 456 A.2d 1037, 1038 (Pa. Super. Ct. 1983). Moreover, the Commonwealth is entitled to the benefit of all reasonable inferences deducible from the evidence and all controverted factual questions should be resolved in its favor. Commonwealth v. Gease, 548 Pa. 165, 168, 696 A.2d 130, 132, cert, denied522 U.S. 935, 139 L. Ed. 2d. 266, 118 S. Ct. 343 (1997). Additionally, the trier of fact is "free to believe all, part or none of the evidence." Commonwealth v. Petaccio, 764 A.2d 582,585 (Pa. Super. Ct. 2000)(quoting Commonwealth v. Griscava.qe, 517 A.2d 1256, 1257 (Pa. 1986)). The jury trial in the Defendant's case commenced on January 20, 2004. Applying the aforementioned standard, the evidence presented at trial, viewed in the light most favorable to the Commonwealth, is that in the morning hours of June 3, 2003, Defendant Wolfe unlawfully broke into Jim Lovett's West Fairview home and proceeded to steal over $1000 worth of Mr. Lovett's possessions. The layout of West Fairview Borough is unique. (N.T. 12, Trial, January 20, 2003 (hereinafter N.T. )). There is only one exit leading out, which is located at a traffic light at Market and Routes 11 and 15. (Id.) A vehicle heading north into town has no exit out. (Id.) East Pennsboro Police Officers Shope and Eptein were on-duty and sitting in their patrol cars on North Front St. in West Fairview on June 3, 2003 at 10:24 a.m. when they received a dispatch which advised them that a burglary had just occurred on Second St. in West 2 Fairview. (N.T. 10.) The dispatcher advised them that the suspects were heading north on Second St. in a black Honda Civic with a distinctive high rear spoiler. (N.T. 12.) Within thirty seconds, Officer Eptein had stationed himself at the sole exit out of town, and Officer Shope was proceeding north on Second St. in pursuit of the getaway vehicle. (N.T. 12-13.) While driving down Second St., Officer Shope looked down an alley, and saw a black car. (N.T. 13.) He circled the block, and discovered a black Honda Civic with a high rear spoiler parked off-street in front of 312 Third St. (Id.) After getting out of his car, he noticed that the rain had not made the windshield wet yet and that the hood of the black Honda was very hot to touch, indicating that the car had just stopped. (N.T. 13-14.) Officer Shope then brought the victim, Mr. Lovett, to the house to see if he could positively identify the vehicle. (N.T. 16.) The victim identified the car, and told Officer Shope that he knew the man who lived at that house, a guy by the name of "Tim." (N.T. 17.) At this point, Officer Shope knocked on the door, and the Defendant answered after a few minutes. (N.T. 18.) He asked him who owned the black Honda out front, and the Defendant answered that it belonged to his friend, Dale Whitcomb, who was inside the house. (N.T. 19.) When the Defendant was asked where he had been that morning, he first answered that he had been at home, and then told Officer Shope that they had been out looking for jobs all morning. (N.T. 20.) The Defendant consented to a search of his house, during which nothing incriminating was found. (N.T. 23.) After the search, the 3 Defendant was brought outside the house, where the victim identified him and said, "if it wasn't you,..., it was your exact twin." (N.T. 22; N.T. 85.) The victim, Jim Lovett, testified that he was in his bedroom sleeping around 9:00 a.m. on June 3rd when he heard knocking at his door. (N.T. 68.) He wasn't expecting anyone, so he just got up and looked out his window. (Id.) He observed the Defendant, Tim Wolfe, walking away from the door. (N.T. 69.) He had met the Defendant several times before, and knew him as the boyfriend of his girlfriend's best friend's daughter. (N.T. 68.) He went back to sleep until about 10:00 a.m., when he heard some unusual noises downstairs. (Id.) He recalled hearing footsteps in the upstairs hall, and then saw a white man, wearing a hooded sweatshirt with the hood up, open his bedroom door. He testified that he was "about six feet away from the man, looked into his eyes, and immediately recognized him as "Tim."" (N.T. 70, 72.) Mr. Lovett chased the man down the hallway and observed him climbing into the passenger door of a black Honda with a high rear spoiler in the alley next to his yard. (N.T. 71 .) He then noticed that his X-box was missing, along with some video games, a digital voice recorder, and a diabetes test kit. (N.T. 74-75.) He also testified that he had locked all the doors before going to bed, but left one window partially open at the top. After he chased the intruder out, he noticed that this window and back door were completely open, and his daughter's plastic slide had been moved directly under the open window. (N.T. 78-79.) 4 In late July, the victim told his ex-girlfriend that he ran into the Defendant at the grocery store, and that he had admitted to stealing the victim's possessions. (Id.) The Defendant had told the victim that he made a mistake and wanted to give him some things back (Id.) Although the Defendant denied making these admissions, he confirmed this meeting at the grocery store. (N.T. 118-119.) The victim's ex-girlfriend, Kelly Hensley, testified that the Defendant appeared at her apartment that same evening in late July, and returned the same X-box and video games that were stolen on June 3rd. (N.T. 63; N.T. 89.) In addition to denying the burglary in his testimony, the Defendant also denied that he ever went Ms. Hensley's apartment. (N.T. 118-119.) Dale Whitcomb testified at trial that he accompanied his friend, the Defendant, to the victim's home on the morning of June 3rd. (N.T. 41-44.) He called the Defendant around 9:00 a.m. to ask if he was ready to go to an employment agency, and the Defendant told him that Jim Lovett was at work and suggested that they go over his house and steal stuff. (N.T. 38.) Mr. Whitcomb declined the offer, but still headed to the Defendant's house. (Id.) On his drive over, he was pulled over in his black Honda Civic with a high rear spoiler for speeding on Interstate 81. (Id.) He was cited at 9:40 a.m. (N.T. 39; Commonwealth's Ex. 4), and arrived at the Defendant's house about ten to fifteen minutes later, at 9:50 or 9:55 a.m. (N.T. 41). Defendant came out of his house to meet him alone. (Id.) After some urging, Mr. Whitcomb finally agreed to go with the Defendant to the victim's home. (N.T. 42.) They parked in the alley next the victim's home, walked through his backyard, and entered through the back door. (N.T. 43.) They both had gloves on their hands. (Id.) He testified that he saw the Defendant grab an X-box game station and some video games before leaving the house and getting into his car. (N.T. 46.) Soon after, the Defendant came running out of the home, told Mr. Whitcomb that he was being chased, and jumped into the passenger seat. (Id.) Mr. Whitcomb then pulled away and drove to the Defendant's house, two to three blocks away. (N.T. 48.) Within ten minutes of their return, the police arrived and the Defendant told Mr. Whitcomb that he was going to hide the stolen items in the flooded basement before he answered the door. (N.T. 50.) Although Mr. Whitcomb told police that he would talk to them later at the station regarding the incident, he never did. (N.T. 52.) He testified that he was afraid that he would get into trouble. (Id.) The Defendant asserted an alibi defense through the testimony of Ralph Rodriguez. Mr. Rodriguez had met the Defendant 18 months earlier while they were working together at a convenience store. (N.T. 103.) He testified that he arrived at the Defendant's house around 9:20 a.m. on June 3rd, and that he saw the Defendant arrive ten minutes later. (N.T. 104.) He testified that they watched a movie together for about one hour, and then he left. (Id.; N.T. 113). No one else saw them while they were together. (N.T. 105.) The Defendant testified that Mr. Whitcomb arrived a few minutes after Mr. Rodriguez left at 10:30 a.m. and a few minutes before the police arrived. (N.T. 114, 116.) DISCUSSION In Pennsylvania, "Burglary" is defined as unauthorized entry with intent to commit a crime after entry. See 18 Pa.C.S.A. § 3502 (2004). In order to prevail at trial, the Commonwealth must prove beyond a reasonable doubt the following three elements: (1) entry of a building or occupied structure by the defendant; (2) with the contemporaneous intent on the part of the defendant of committing a crime therein; (3) at a time when the premises are not opened to the public and the defendant was not then licensed or privileged to enter. Commonwealth v. Brosko, 365 A.2d 867, 868 (Pa. Super. Ct. 1976). Because the Commonwealth must independently establish all elements of a crime, there is no burden on a defendant to prove his absence from a crime scene. Commonwealth v. Bonomo, 151 A.2d 441,446 (Pa. 1959). However, when a defendant asserts the affirmative defense of alibi, he retains the burden of proving his alibi by a preponderance of the evidence. Although the Defendant denied all criminal allegations and Mr. Rodriguez supported his alibi which placed him away from the crime scene, it is the jury's province to pass on the credibility of witnesses and on the weight accorded to the evidence presented at trial. Commonwealth v. Vazquez, 476 A.2d 466, 468 (Pa. Super. Ct. 1984). Applying the aforementioned standard, there was sufficient evidence to enable the jury to find the Defendant guilty of burglary despite the alibi '7 testimony. As to the first and third elements, the Commonwealth offered the testimony of two people, the victim and Mr. Whitcomb, who witnessed the Defendant's actual entry and unauthorized presence in the victim's home. (N.T. 70, 72; N.T. 46.) The second element of intent to commit a crime may be proven with circumstantial evidence found through the Defendant's words and conduct. See Commonwealth v. Madison, 397 A.2d 818,823 (Pa. Super. Ct. 1979). Mr. Whitcomb testified that he was asked by the Defendant to go with him to the victim's home to "get stuff," (N.T. 38), and he observed the Defendant taking the victim's possessions. (N.T. 46). There was also testimony that the Defendant later admitted that he robbed the victim because he needed money that day. (N.T. 64; N.T. 90.) A person is guilty of theft by unlawful taking if he unlawfully takes, or exercises unlawful control over, movable property of another with the intent to deprive him thereof. 18 Pa.C.S.A. §3921 (2004). A person is guilty of criminal trespass 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. 18 Pa.C.S.A. §3503 (2004). In establishing the elements of burglary, the Commonwealth simultaneously offered evidence to enable the jury to find the Defendant guilty on the charges of theft and criminal trespass because they arose out of the same criminal incident as the act of burglary. Although these crimes have separate elements not included in burglary, evidence of unlawful entry and unlawful control of the victim's possessions help establish elements of these crimes. Mr. Lovett's testimony that he was missing specific items immediately after the unlawful entry, along with the return of these same items by the Defendant enabled the jury to convict on the theft charge. (N.T. 74-75.) Also, Ms. Hensley positively identified the returned items as the missing ones belonging to the victim. (Id.) Mr. Whitcomb's testimony that he was asked by the Defendant to go with him to the victim's home to "get stuff" also supports the conviction. (N.T. 38.) In addition to the evidence of unlawful entry, Mr. Whitcomb offered testimony that the Defendant knew he was unauthorized to enter the victim's home and that he put on gloves prior to entry, which enabled the jury to find him guilty of criminal trespass. (N.T. 38, 44.)