Opinion
1162 MDA 2021
04-07-2022
COMMONWEALTH OF PENNSYLVANIA v. CARLOS AMADOR SANDOVAL-FLORES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered July 14, 2021 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000064-2021
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM
BOWES, J.
Carlos Amador Sandoval-Flores appeals from his July 14, 2021 judgment of sentence imposed after a jury convicted him of burglary and criminal trespass. We affirm.
On December 16, 2020, Flor Vasquez, Appellant's ex-wife ("Victim"), obtained a Protection from Abuse ("PFA") order against Appellant that barred him from harassing her or entering her residence in Reading, Pennsylvania. See N.T. Jury Trial, 7/14/21, at 64; see also Commonwealth's Exhibit 10. Nevertheless, on the morning of December 26, 2020, Victim awoke at her residence to find Appellant standing next to her bed. Id. at 49-50, 56-57, 58.
Although aware of the PFA order, Appellant obtained entry to the home through a screened in and locked bathroom window. Id. at 54-57, 83-84. Appellant proceeded to Victim's bedroom where he stood next to her while she was sleeping. Id. at 57. When she awoke, Appellant warned Victim that "if she wasn't for him, then she wasn't for anybody." Id. Victim noticed what appeared to be a knife in Appellant's hand, which was down by his side. Id. at 59. Afraid that Appellant "may do something to me," Victim asked permission to use the bathroom. Id. at 58. Once inside, she locked the door and called the police. Id. Meanwhile, Appellant attempted to break through the locked door. Id. at 60. Victim eventually exited the bathroom and told Appellant that she had called the police. Id. Appellant pushed Victim before fleeing the residence. Id. at 59-60. Within an hour of exiting, Appellant texted Victim letting her know that "we won't see each other anymore. You hurt me a lot." Id. at 73.
Thereafter, Officer Ervin Gonzalez of the Reading Police Department arrived at Victim's residence. Id. at 65, 76. After clearing the home, Officer Gonzalez obtained the contact information for Appellant and attempted to reach him on his cell phone. Id. at 79. Although Appellant answered Officer Gonzalez's call and agreed to return to the residence for questioning, he never did. Id. at 77. While waiting for Appellant to appear, Victim brought the Officer's attention to her torn bathroom window screen, broken bathroom window, and a knife lying on the kitchen table that she normally secured away for her children's safety. Id. at 61-63, 70. Officer Gonzalez photographed these items.
While Officer Gonzalez was preparing charges for Appellant's arrest, Appellant called Officer Gonzalez and agreed to meet him three or four blocks from Victim's residence. Id. at 79. During the meeting, Appellant explained that he and Victim were going through a "rough patch" in their relationship because Victim had been "very aggressive" towards him. Id. at 83. He indicated that she would "beat him up" and send him to work with black eyes. Id. However, Appellant also admitted that he had entered the residence through the window even though he was aware that the PFA excluded him from the residence and knew that his actions were "not right." Id. at 83-84.
Appellant was arrested and charged with burglary, criminal trespass, terroristic threats, and summary harassment. At his jury trial, Victim and Officer Gonzalez testified. Appellant elected not to testify, but trial counsel argued that the evidence was insufficient to convict Appellant of burglary, since he did not intend to commit a crime once he entered the residence. Id. at 98. The trial court granted counsel's motion for judgment of acquittal on the terroristic threats charge before proceeding to a jury instruction conference with the parties. Id. at 88-90. During the conference and, later, when the instructions were given to the jury, trial counsel objected to the use of the term "domestic violence" in the burglary instruction. Id. at 95, 117-18. Both times, his objection was overruled by the trial court. Id. Ultimately, the jury convicted Appellant of burglary and criminal trespass. Id. at 122. The court acquitted Appellant of summary harassment. Id.
After a short recess, the trial court sentenced Appellant to standard range sentences of two to four years of incarceration for burglary, followed by three years of probation for criminal trespass. See N.T. Sentencing Hearing, 7/14/21, at 9. Thereafter, Appellant filed a post-sentence motion challenging the discretionary aspects of his sentence, which was denied following a hearing. The instant appeal followed. Both Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Whether Appellant's burglary conviction was based on legally insufficient evidence where he did not enter a residential structure with an intent to commit any bodily injury crime therein: where the only possible predicate offense - one discrete and continuous PFA-violation - had already been committed (or begun) when he entered the property?
2. Whether a new trial is warranted because the lower court committed reversible error by needlessly including prejudicial language in its jury instruction: where, by adding to "protective order" the clause "issued as a result of an act related to domestic violence," it unduly suggested a history of violence against [Victim] in the past?
3. Whether the lower court abused its discretion by imposing a sentence of [two to four] years' imprisonment, to be followed by [three] years of probation, for two crimes that practically merge; and without even making a pretense of having considered the mitigating factors of his case, as statutorily required?Appellant's brief at 8-9.
In his first claim, Appellant alleges that the evidence was insufficient to sustain his burglary conviction. See Appellant's brief at 18. Our standard of review when considering a challenge to 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. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. 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. Gause, 164 A.3d 532, 540-41 (Pa.Super. 2017) (citations and quotation marks omitted).
Our legislature has defined burglary, in relevant part, as follows:
(a) Offense defined.--A person commits the offense of burglary if, with the intent to commit a crime therein, the person:
(1)(i) enters a building or occupied structure, or separately secured or occupied portion thereof, that is adapted for overnight accommodations in which at the time of the offense any person is present and the person commits, attempts or threatens to commit a bodily injury crime therein[.]18 Pa.C.S. § 3502(a)(1)(i). A "bodily injury crime," as applicable herein, includes "violations of any protective order issued as a result of an act related to domestic violence." 18 Pa.C.S. § 3502(e)(2).
It is undisputed that Appellant committed an unauthorized entry into a building adapted for overnight accommodation. Appellant argues that the evidence was insufficient because the burglary conviction had no predicate crime to support the intent element. See Appellant's brief at 24. We disagree.
The intent to commit a crime must be contemporaneous with entering the dwelling, and intent is determined based upon the totality of the surrounding circumstances. See Commonwealth v. Magnum, 654 A.2d 1146, 1147 (Pa.Super. 1995). "Often, intent cannot be proven directly but must be inferred from examination of the facts and circumstances of the case." Commonwealth v. Willetts, 419 A.2d 1280, 1281 (Pa.Super. 1980).
Appellant argues that, since he was acquitted of harassment and terroristic threats, those offenses cannot form the basis for his intent to commit a crime inside the residence. See Appellant's brief at 20. However, there was no requirement that the Commonwealth allege that the defendant intended to commit a particular crime to prove the intent element of burglary in this case. As our Supreme Court has explained:
We conclude that the specific intent element of the crime of burglary is limited to whether the accused entered with a "general criminal intent" to commit any crime. Thus, an intent to commit a particular crime is not a material element of the offense of burglary under the law of this Commonwealth to hold otherwise would require the Commonwealth to predict what crime Appellant intended to commit[.] Such a requirement would essentially eviscerate the Commonwealth's ability to prove the specific intent element of burglary based upon inference from the totality of the circumstances of Appellant's intrusion - a manner of proof to which the Commonwealth was clearly entitled.Commonwealth v. Alston, 651 A.2d 1092, 1095 n.7 (Pa. 1994). It is only when the Commonwealth identifies a specific crime in the criminal information that it is required to prove the requisite intent for a crime the defendant intended to commit. Commonwealth v. Brown, 886 A.2d 256, 260 (Pa.Super. 2005).
Here, the Commonwealth did not allege a specific underlying crime for Appellant's burglary charge in the criminal information. Therefore, the Commonwealth was not required to prove that Appellant intended to commit a particular crime to satisfy the intent element of burglary. See Alston, supra. Instead, the jury was permitted to find that Appellant entered Victim's residence with the intent to commit any crime that the evidence supported, such as terroristic threats or harassment. Accordingly, the fact that Appellant was acquitted of harassment and terroristic threats has no bearing on the determination of whether the Commonwealth proved that Appellant intended to commit a crime when he entered the residence
Additionally, Appellant claims that a finding that Appellant violated the PFA was insufficient to establish his intent to commit a bodily injury crime inside, since he had already finished committing the crime upon entry. See Appellant's brief at 21-24. In Appellant's view, to conclude that he committed multiple violations of the PFA order would violate his double jeopardy protections. Id. at 20-21, 23. We disagree, since Appellant's argument runs afoul of established precedent upholding multiple PFA violations for the same incident.
In Hill v. Randolph, 24 A.3d 866 (Pa.Super. 2011), the trial court found that the appellant violated a final PFA order in two distinct ways, by first entering the victim's residence and then physically attacking the victim. On appeal, the appellant argued that sentencing him separately for a single harm violated double jeopardy. We rejected the appellant's double jeopardy argument, finding instead, that "a PFA contemnor charged with multiple counts of [violating a PFA order] may very well have committed multiple criminal acts in the course of violating a PFA order." Id. at 873. We reasoned that, in such circumstances, merger analysis was inappropriate since "these two distinct acts were not simply two types of the same abuse but were, instead, two separate instances of abuse each deserving of its own charge and sentence." Id.
Here, as in Hill, the evidence, viewed in the light most favorable to the Commonwealth, supports the conclusion that Appellant violated the PFA order in two distinct ways. First, Appellant broke through a screened in and locked window to enter a residence that he was excluded from by a valid PFA order. See N.T. Jury Trial, 7/14/21, at 57-58, 83-84. The PFA court had also ordered Appellant to not "abuse, stalk, threaten, or attempt or threaten to use physical force against any of the above persons[, i.e., Victim, ] in any place where they might be found." See Commonwealth's Exhibit 10, 12/16/20, at 2. Nevertheless, he proceeded to Victim's bedroom, wherein he threatened and ultimately pushed Victim after attempting to break down the door behind which she had hidden. Id. at 57 (Victim testifying that Appellant told her "if I wasn't for him, then I wasn't going to be for anybody"); id. at 59-60 (Victim explaining that Appellant pushed her, but she managed to avoid falling down the stairs by grabbing a nearby handrail). Thus, the jury was well within its authority to conclude that Appellant entered the victim's home with "a general criminal intent" to commit a second PFA violation. See Alston, supra at 1095 n.7. Consequently, we find that the evidence was sufficient to sustain Appellant's conviction for burglary.
In his second claim, Appellant contends that the court provided a defective jury instruction on the offense of burglary. See Appellant's brief at 24. We review the trial court's jury instruction as follows:
[T]he reviewing court must consider the charge as a whole to determine if the charge was inadequate, erroneous, or prejudicial. The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. A new trial is required on account of an erroneous jury instruction only if the instruction under review contained fundamental error, misled, or confused the jury.Commonwealth v. Fletcher, 986 A.2d 759, 762 (Pa. 2009) (citations and quotations omitted).
"It is properly the function of the trial judge to define and frame for the jury those factual issues which are contested, and which require the weighing of conflicting evidence. In order to achieve this, it is frequently advisable to suggest less significance regarding issues where the evidence is not in dispute." Commonwealth v. Kelly, 446 A.2d 941, 942 (Pa.Super. 1982). Such instructions may be delivered at any time, "provided[:] (1) there is reasonable ground for any statement [the trial court] may make; and (2) [the trial court] clearly leaves to the jury the right to decide all the facts and every question involved in the case regardless of any opinion of the court thereon." Commonwealth v. Nesbitt, 419 A.2d 64, 67 (Pa.Super. 1980).
In the case sub judice, the court provided the jury with the following burglary instruction:
[Appellant] has been charged with burglary. To find [Appellant] guilty of this offense, you must find that all of the following elements have been proven beyond a reasonable doubt. First, that [Appellant] entered [Victim's residence]; second, that [Victim's residence] was a building or occupied structure or a separately secured or occupied portion thereof that is adapted for overnight accommodations in which at the time of the offense any person was present; and third, that [Appellant] committed a bodily injury crime therein. A bodily injury crime, as applicable here, includes violations of any protective order issued as a result of an act related to domestic violence.N.T. Jury Trial, 7/14/21, at 106-07 (emphasis added).
Both sides agree that the jury instruction "accurately reflect[ed] the actual language of the statute." Appellant's brief at 25; see also Commonwealth's brief at 17-18. However, Appellant argues that the instruction was "fatally prejudicial" because the court included the term "domestic violence" which, while legally accurate, carried the negative connotation that Appellant had physically abused the victim in the past. Id. at 26. The trial court disagreed, holding "firm in [its] belief that the instruction . . . clearly, adequately and accurately presented the law as was relevant to the instant matter." Trial Court Opinion, 11/1/21, at 10.
We agree with the trial court that the instruction given mirrored our legislature's definition of "bodily injury crime" in 18 Pa.C.S. § 3502(e)(2). Furthermore, Appellant suffered no prejudice from the court's inclusion of the term "domestic violence." During cross-examination, Appellant's counsel questioned Victim about the facts supporting the PFA order. See N.T. Jury Trial, 7/14/21, at 69. Victim confirmed that she applied for a PFA after Appellant followed her to work, waited for her to finish working, and followed her home. Id. Once Victim went inside her residence, she encountered Appellant on the second floor, where he grabbed onto and pushed her as she tried to walk past him. Id. Accordingly, since the jury was aware of the specific facts that gave rise to the PFA order, the court's instruction did not invite speculation. Consequently, Appellant's argument that he was prejudiced by the jury instruction merits no relief.
In his final claim, Appellant contends that he received an excessive sentence due to the trial court's failure to consider mitigating factors and the decision to run Appellant's sentences consecutively. See Appellant's brief at 27-32. The law is well-settled that sentencing is within the discretion of the trial court and should not be disturbed absent a clear abuse of discretion. See Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014). Furthermore, challenges to the discretionary aspects of a sentence do not automatically entitle an appellant to appellate review. See Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa.Super. 2018). Rather, an appellant must meet certain procedural prerequisites before an appellate court can entertain such a challenge. Specifically, we engage in a four-part analysis to determine whether: (1) the appeal is timely; (2) the issue has been preserved; (3) appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to discretionary aspects of sentence pursuant to Pa.R.A.P. 2119(f); and (4) the concise statement raises a substantial question that the sentence is inappropriate under the sentencing code. See Commonwealth v. Austin, 66 A.3d 798, 807-08 (Pa.Super. 2013). If each of these requirements is met, we will proceed to a determination on the merits. Id.
Appellant filed a timely appeal and post-sentence motion, as well as a concise statement challenging the court's decision to run his sentences consecutively. However, he did not allege in his post-sentence motion that the court erred by not considering any mitigating circumstances. Accordingly, Appellant's claim relating to the mitigating circumstances was not properly preserved and is waived. See Commonwealth v. Foster, 960 A.2d 160, 163 (Pa.Super. 2008).
Even if properly preserved, and a substantial question was raised, Appellant's claim merits no relief. Our review confirms that the trial court was aware of, considered, and weighed Appellant's mitigating factors, along with other relevant sentencing factors. The court considered Appellant's prior record score of zero and his work history, but found compelling the fact that Appellant "took no responsibility for what happened here." N.T. Sentencing Hearing, 7/14/21, at 8. We have no license to reweigh the mitigating circumstances against the aforementioned factors. Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009).
While Appellant litigated his challenge to the consecutive nature of his sentences in the trial court, he failed to include any reference to this issue in his Pa.R.A.P. 2119(f) statement. See Appellant's brief at 15-16. Therein, Appellant solely alleges that a substantial question is presented because "the sentencing court failed to consider mitigating factors," not because the court erred by running his sentences consecutively. Id. at 16. However, since the Commonwealth has not objected to its omission from the Rule 2119(f) statement, we may waive the procedural defect and consider whether Appellant has raised a substantial question. See Commonwealth v. Gambal, 561 A.2d 710 (Pa. 1988) (holding that if the Commonwealth does not file an objection, this Court may either enforce the procedural requirement or ignore the procedural defect, if the failure to file a Rule 2119(f) statement does not significantly hamper the Court's ability to determine whether a substantial question exists).
Ordinarily, a challenge to a sentencing court's discretion to impose multiple sentences consecutively does not raise a substantial question. See Commonwealth v. Raven, 97 A.3d 1244 (Pa.Super. 2014). Indeed, it is only in the rare case where the decision to sentence consecutively raises the aggregate sentence to what appears to be excessive in light of the criminal conduct at issue. See Commonwealth v. Gonzalez-DeJesus, 994 A.2d 595, 598-99 (Pa.Super. 2010). A key factor in this analysis is whether, by sentencing consecutively, the aggregate sentence appears to be excessive on its face considering the criminal conduct at issue. Id.
Appellant contends that the sentencing court should have run his sentences concurrently, since his convictions "practically merge." See Appellant's brief at 28-30. Appellant concedes that his convictions do not "technically" merge but argues that the court should have run his sentences concurrent "in keeping with common sense and common practice." Id. at 29-30. However, Appellant has not advanced any argument explaining why his case is one of the rare cases where imposition of a consecutive sentence would raise a substantial question. Given the nature of the offenses, the court's decision to impose these two standard range sentences consecutively gives us no legitimate reason to call that sentence into question.
Appellant has failed to persuade us that his three claims merit relief. Accordingly, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.