Com. v. Benzo, J.

J-S01001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JACQUARRY BENZO, : : Appellant : No. 567 WDA 2013

Appeal from the Judgment of Sentence entered on March 6, 2013 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CP-02-CR-0013131-2012

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 5, 2015

Jacquarry Benzo (“Benzo”) appeals from the judgment of sentence entered following his conviction of defiant trespass. See 18 Pa.C.S.A. § 3503(b)(1)(i). We affirm.

The trial court aptly summarized the relevant history underlying the instant appeal as follows:

[Benzo] was accused [in the instant case] of defiant trespass at a public housing complex known as Leland Point [Apartments]. He had previously pled guilty to four (4) separate cases [of] defiant trespass at that same location (2011-15069, 2011-15073, 2011-15239, 2012-5066). The [trial] court had sentenced [Benzo] to periods of probation at each of the four (4) previous cases, and a no[-]contact provision with Leland Point was imposed as a term of each probationary period. During the stipulated nonjury trial [in the instant case], the Commonwealth and [Benzo] stipulated to the facts contained in the Affidavit of Probable Cause. The Commonwealth also introduced as Exhibit One the Notice of Criminal Trespass that had previously been signed by, and served on, [Benzo]. The Notice of Criminal Trespass specifically informed [Benzo] that he was “NOT TO

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ENTER UPON THE LAND AND PREMISES, DESCRIBED AS LELAND POINT APARTMENTS, PITTSBURGH, PA.” The notice further advised that [Benzo] would be charged with Criminal Trespass for violating the terms of the Notice.

Following the close of the Commonwealth’s case, [Benzo] moved for a Judgment of Acquittal, asserting, first, that [Benzo] was an invited guest of a tenant of the apartment complex, thereby giving him privilege to be present, and, second, that his exclusion from the apartment complex by the owner of the complex and the court’s no[-]contact [O]rder at previous cases violated his right to association. Th[e trial] court denied the motion. [Benzo] and the Commonwealth then stipulated in the defense case that [Benzo] was an invited guest of a tenant at Leland Point, after which [Benzo] rested.

Trial Court Opinion, 7/21/14, at 2-3.

The trial court convicted Benzo of defiant trespass, and sentenced him to one year of probation. The trial court additionally sentenced Benzo, at case numbers 2012-5066 and 2011-15069, to one-year terms of probation, for a total sentence of three years of probation. Thereafter, Benzo timely filed a Notice of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

In this appeal, Benzo claims that the evidence is insufficient to sustain his conviction of defiant trespass. Brief for Appellant at 11. Benzo asserts that he was invited onto the premises of Leland Point Apartments, and, as an invited guest, reasonably believed that he was privileged to be present in the apartment complex. Id. at 13. Benzo cites Commonwealth v. Sherlock, 473 A.2d 629 (Pa. Super. 1984), and Commonwealth v. Burton, 445 A.2d 191 (Pa. Super. 1982), in support, arguing that a tenant

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retains the authority to give an individual permission to be on the premises, even when the owner has ordered that person to leave. Brief for Appellant at 13.

In reviewing a challenge to the sufficiency of the evidence, we evaluate the record “in the light most favorable to the verdict winner[,] giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.” Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa. Super. 2009) (citation omitted).

Evidence will be deemed sufficient to support the verdict when it established each element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty, and may sustain its burden by means of wholly circumstantial evidence. Significantly, [we] may not substitute [our] judgment for that of the factfinder; if the record contains support for the convictions they may not be disturbed.

Id. (citation and quotation marks omitted). “Any doubt about the defendant’s guilt is to be resolved by the factfinder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.” Commonwealth v. Scott, 967 A.2d 995, 998 (Pa. Super. 2009).

Benzo challenges the sufficiency of the evidence underlying his conviction of defiant trespass. A person commits the crime of defiant trespass if, “knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by … actual communication to the actor[.]” 18 Pa.C.S.A. § 3503(b)(1)(i).

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In its Opinion, the trial court addressed Benzo’s claim and concluded that it lacks merit. Trial Court Opinion, 7/21/14, at 7-9. We agree with the sound reasoning of the trial court and affirm on that basis. See id. We additionally observe the following.

Benzo relies upon this Court’s decisions in Sherlock and Burton. However, neither case is on point. In both cases, the owner of the premises had asked the defendant to leave. Sherlock, 473 A.2d at 630; Burton, 445 A.2d at 192. In the instant case, as part of Benzo’s sentence in a prior criminal case, the trial court ordered Benzo not to return to the apartment complex. Trial Court Opinion, 7/21/14, at 3-5; N.T., 7/18/12, at 12-14, 15. The trial court repeatedly told Benzo that, during his term of probation,

you will have absolutely no contact with the apartment complex previously known as Leland Point [Apartments] or currently known as the Residences of South Hills. That means, sir, you can’t go to that complex for any reason whatsoever[,] as I explained to you earlier, not to visit friends or relatives, nor to go hang out, not to use a restroom in the place or a telephone. I don’t care what’s going on. If your car breaks down right in front of it, you cannot go in to call a tow truck. Do you understand?

[Benzo]: Yes. Trial Court Opinion, 7/21/14, at 5 (quoting N.T., 7/18/12, at 15). Under these circumstances, Benzo had no reasonable belief of a privilege to be present on the premises. Accordingly, we affirm Benzo’s judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/5/2015

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