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HomeMy WebLinkAboutCP-21-CR-0000136-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF OF PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-0136-2009 : CHARGE: (1) BURGLARY : (2) CRIMINAL CONSPIRACY : TO BURGLARY V. : (3) CRIMINAL TRESPASS : (4) CRIMINAL ATTEMPT TO : THEFT BY UNLAWFUL : TAKING OR DISPOSITION : : ANDREW PAUL SMITH : OTN: K743826-6 : AFFIANT: PTL. SUZANNE M. COY IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, Jr., J., January 15, 2010 – Defendant Andrew Paul Smith(hereinafter “Defendant”) has filed an appeal following a jury trial and sentencing. Defendant was found guilty at Count 1 of Burglary, Count 2 of Criminal Conspiracy to Commit Burglary, Count 3 of Criminal Trespass, and Count 4 of 1 Criminal Attempt to Commit Theft by Unlawful Taking or Disposition. Subsequently, Defendant received an aggregate sentence of three years to ten years in a state correctional 2 institute, which is a standard range sentence in this case. Defendant appeals his conviction on the charges of Burglary, Criminal Trespass, and Criminal Attempt to Commit Theft by Unlawful Taking or Disposition. Interestingly, the Defendant did not include his conviction for Criminal Conspiracy to Commit Burglary in his Concise Statement of Matters Complained of on Appeal. Technically, it would appear that this issue is now waived. Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007). 1 See Order of Court, Oct. 16, 2009. 2 See id. The Defendant maintains that because he broke into two non-motorized storage trailers which were not adapted for overnight accommodations, one of the elements of the crimes of 3 burglary and criminal trespass cannot be proven beyond a reasonable doubt. Additionally, Defendant asserts that the claimed evidence of burglary and criminal trespass presented at trial prejudiced and misled the jury on the charge of criminal attempt to commit theft by unlawful 4 taking or disposition. STATEMENT OF FACTS On October 7, 2007, police responded to a reported burglary at Miller’s Racing Parts in Mechanicsburg, PA. Two trailers, used for storing racing parts and equipment which were for sale, were located in the business’ parking lot immediately adjacent to the main business building. Both trailers were padlocked. The latches on the trailers had been cut, and inventory removed from the trailers. Video surveillance showed two suspects breaking into the trailers. A hat and two gloves were located near the scene and matched the hat and gloves seen in the surveillance footage. DNA extracted from one of the gloves matched that of Defendant. Additionally, still photographs extracted from the surveillance footage were identified to be the Defendant by Defendant’s mother-in-law. DISCUSSION The issue on appeal is whether two non-motorized, storage trailers with wheels, which were not adapted for overnight accommodation and not connected to a building or surrounded by 3 See Defendant’s Concise Statement of Errors Complained of on Appeal at 1-3, filed Dec. 7, 2009. 4 See id. at 4. 2 a fence, fall within the definition of an “occupied structure” as used in the burglary and criminal trespass statutes. I.Burglary 18 Pa.C.S.A. 3502 defines Burglary as: § (a) OFFENSE DEFINED. --A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is 5 licensed or privileged to enter. To meet the definition of burglary, the trailers must be considered either buildings or occupied 67 structures. 18 Pa.C.S.A. §3501 defines an occupied structure as: "OCCUPIED STRUCTURE." Any structure, vehicle or place adapted for overnight accommodation of persons, or for carrying 8 on business therein, whether or not a person is actually present. The trailers in question are clearly “vehicles.” The Pennsylvania Vehicle Code defines “vehicle” as “every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks.” 75 Pa.C.S.A. Section 102. Miller’s Racing Parts used their vehicles as a storage place for inventory during the weekdays and then transported them to various race tracks to sell parts on the weekends. 5 18 Pa.C.S.A. §3502 (a). 6 See id. 7 The definition of an “occupied structure” given in 18 Pa.C.S.A. §3501 differs from the definition of “structure” that Defendant quoted from Ballentine’s Law Dictionary; however, the definition in 18 Pa.C.S.A. §3501 states that it is the definition applicable to the provisions provided in that chapter unless clearly indicated otherwise. As no such indication is made for either 18 Pa.C.S.A. §3502 (Burglary) or 18 Pa.C.S.A. §3503(Criminal Trespass), the definition provided in 18 Pa.C.S.A. §3501 is the one appropriate in this case. 8 18 Pa.C.S.A. §3501 (emphasis added). 3 “Simply put, storage is a business activity no less than any other facet of a business such as 9 manufacturing, retail sales or distribution.” The Supreme Court in Hagan went on to say “… the very act of storage is an activity that furthers the purpose of business. Thus any secured facility where goods are stored is a place adapted for the carrying on of a business and, therefore, 10 an occupied structure for the purposes of the criminal trespass and burglary statutes.” Therefore, the trailers in this case fall under the definition of an “occupied structure.” Accordingly, this element of the crime of burglary has been established. An argument was made that the trailers were not surrounded by a fence, differing from 1112 the precedents set forth in Commonwealth v. Hagan and Commonwealth v. Evans. However, in all three cases within those opinions, the fence that surrounded the lot was the only barrier between the defendant and the burglarized items. The padlocked exterior of the storage trailers in this case, must be considered even more “separately secured” than the locked fences in Hagan and Evans. II.Criminal Trespass 18 Pa.C.S.A. §3502 defines Criminal Trespass as: (a) BUILDINGS AND OCCUPIED STRUCTURES. -- (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 9 Commonwealth v. Hagan, 654 A.2d 541, 544 (Pa. 1995) (citing Commonwealth v. Evans, 574 A.2d 1051, 1054 (Pa. Super. 1990)). 10 Id. 11 In Commonwealth v. Hagan, the lot that was burglarized contained two vacant buildings and was surrounded by a chain-link fence and lock. Property stolen was from the lot and not from the vacant buildings. See Hagan, 539 Pa. at 612. 12 Commonwealth v. Evans was a consolidation of two cases. In the first case, the defendant bypassed the fence through a hole and was found removing aluminum sheeting from a tank. In the second case, the defendant broke into a SEPTA bus storage yard through a locked fence and was observed removing a bus window frame. See Evans, 393 Pa. Super. at 503. 4 (ii) breaks into any building or occupied structure or 13 separately secured or occupied portion thereof. As in burglary, to meet the definition of criminal trespass, the trailers must be considered either buildings or occupied structures. Here, using the same definition and logic as in burglary, the trailers meet the definition of occupied structures and no further discussion is necessary. III.Criminal Attempt to Commit Theft by Unlawful Taking or Disposition Defendant asserts that he was prejudiced at trial on the charge of criminal attempt to commit theft by unlawful taking or disposition because the Commonwealth presented evidence of burglary and criminal trespass when he claims there was no basis to bring these charges. This argument has no merit. This Court has determined that the trailers were “occupied structures,” providing a basis for the charges of burglary and criminal trespass. Equally, important, is that on the record of this case, there is more than adequate evidence to prove the crime of Criminal Attempt to Commit Theft by Unlawful Taking. Merchandise belonging to Miller’s Racing was removed from securely padlocked storage trailers, moved to an area which was identified as being on the way to a secluded parking area, and the Defendant’s gloves and hat with his DNA was found in close proximity to the stolen merchandise. Clearly the removal of the items from the secured trailer was a substantial step in committing the crime of Theft by Unlawful Taking even if the stolen merchandise was abandoned. CONCLUSION For the foregoing reasons, this Court did not err in viewing the trailers as an “occupied structure” for the counts of Burglary and Criminal Trespass. Furthermore, there was adequate evidence to prove the Defendant guilty beyond a reasonable doubt of the charge of Criminal 13 18 Pa.C.S.A. §3502. 5 Attempt to Commit Theft by Unlawful Taking. The Defendant was not prejudiced by the evidence presented in the case to prove the crimes of Burglary and Criminal Trespass. By the Court, M. L. Ebert, Jr., J. Christylee Peck, Esquire Senior Assistant District Attorney Peter B. Foster, Esquire Counsel for Defendant 6