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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v. RAYMOND CRAIG Appellant No. 407 EDA 2016

Appeal from the PCRA Order January 15 , 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP
- 51 - CR
- 0011797
- 2007
BEFORE: STABILE, MOULTON, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.: FILED FEBRUARY 28, 2017 Appellant Raymond Craig appeals from the January 15, 2016 order of the Court of Common Pleas of Philadelphia County, which denied his request for collateral relief under the Post Conviction Relief Act (the “Act”), 42 Pa.C. S.A. §§ 9541
- 46. Upon review, we affirm. The facts and procedural history underlying this appeal are undisputed. As a prior panel of this Court recounted on Appellant’s direct appeal: On July 29
- 30, 2009, this court conducted a jury trial. The victim M odibo Ballo (“Ballo”) testified first for the Commonwealth. Ballo testified that on September 23, 2007, in the early morning hours, he was inside his home at 1017 South 55th Street in the city of Philadelphia. Ballo stated that he had lived in this house since June 2007. He stated that he was making repairs and was in the process of purchasing the home. Ballo stated that he had a sofa, entertainment center, and six speakers in his living room. On the morning of September 23, 2007, he went downstairs an d found his front door open and discovered that two speakers and one amp were missing from his living room. He called 911 and then looked out the front

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door and saw that the basement window was broken. He immediately went into the basement to check on hi s newly installed heating system. When he came back upstairs, he saw Appellant inside his home in the living room. Ballo stated that Appellant ran out the front door and that he ran after Appellant and chased him several blocks. Ballo stated that Appella nt grabbed a stick from the ground and began swinging it at him and then dropped the stick and started walking away. Ballo chased him again. He then grabbed Appellant, pulled him to the ground, and sat on top of him. As an onlooker called 911, Ballo testi fied that Appellant stated ‘Let me go and I’ll get you back your stuff.’ Ballo then let Appellant stand up and the two men talked until the police arrived. Police Officer Charles Vallette (“Vallette”) testified next for the Commonwealth. He stated that he had worked for the Philadelphia Police Department for seven years and had been assigned to the 18th District for the entirety of those seven years. He testified that on September 23, 2007 he was assigned to the burglary detail unit and worked the 8 am to 4 pm shift. Immediately after starting work, Vallette stated that he received a radio call that two males were fighting on the highway at 52nd and Baltimore. Vallette arrived at the scene approximately one minute later and saw two males with their han ds on each other. When he approached the two men, he stated that Appellant tried to walk away but Vallette requested that he ‘sit tight’ and Appellant complied. After Vallette talked to Ballo, he placed Appellant in the back of his patrol car. Vallette then began to take down information to prepare a police report. Vallette testified that Appellant stated that he thought the place was abandoned at least three times. Police Office Michael Nuassner (“Naussner”) testified next for the Commonwealth. He s tated that he had worked for the Philadelphia Police Department for three years and had worked in the 18th District for two years. Naussner testified that he responded to a radio call for backup on September 23, 2007 around 8 am. When he arrived at 52nd and Baltimore, he stated that Appellant and Ballo were arguing and that Appellant was shirtless, sweating, and yelling. Ballo told police that Appellant had broken into his home, while Appellant screamed that he thought the house was abandoned. After App ellant was frisked and placed in the patrol car, Naussner stayed with him. Naussner testified that Appellant told him, ‘There was a piece of wood on the basement window and I went into it, and I thought the house was abandoned.’ Naussner then went to Bal lo’s home with Ballo to examine the property. He stated that the front door was wide open but he thought the place looked inhabited and was in decent condition.

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Commonwealth v. Craig , No. 3626 EDA 2009, unpublished memorandum, at 1 - 3 (Pa. Super. filed Jul y 26, 2011) (internal citation and quotation marks omitted). Appellant subsequently was charged and convicted by a jury of burglary under Section 3502 of the Crimes Code, 18 Pa.C.S.A. § 3502, and sentenced to 10 to 20 years’ imprisonment. Appellant timel y appealed to this Court. We affirmed his judgment of sentence, concluding, inter alia , that the evidence was sufficient to establish that Appellant entered Ballo’s house with the intention of committing theft. Appellant did not file a petition for allow ance of appeal with our Supreme Court. On July 18, 2012, Appellant pro se filed a PCRA petition. The PCRA court appointed counsel, who filed an amended PCRA petition, raising two ineffectiveness claims. Specifically, Appellant argued that his trial cou nsel was ineffective for failing to (1) challenge the weight of the evidence before the trial court and (2) request a lesser included charge of criminal trespass. On January 15, 2016, following a Pa.R.Crim.P. 907 notice, the PCRA court denied Appellant re lief for want of merit. Appellant timely appealed to this Court. On appeal, 1 

### Appellant repeats the same two ineffectiveness claims that he raised before the PCRA court. After careful review of the record and the

____________________________________________ 1 

### “On appeal from the denial of PCRA relief, our standard of review requires us to determine whether the ruling of the PCRA court is supported by the record and free of legal error.” Commonwealth v. Widgins , 29 A.3d 816, 819 (Pa. Super. 2011).

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relevant case law, we conclude that the PCRA court accurately and thoroughly addressed the merits of Appellant’s claims. See PCRA Court Rule 1925(a) Opinion, 2/10/16, at 4
- 10. Accordingly, we affirm the PCRA court’s January 15, 2016 order. We further direct that a copy of the PCRA court’s Fe bruary 10, 2016 Rule 1925(a) opinion be attached to any future filings in this case. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/28/20171

was represented at trial by John Konchak, Esquire. The Commonwealth called the complainant , assault. From July 29 to 30, 2009 , a jury trial was held in the presence of this Court. Defendant On September 23, 2007, Defendant was arrested and charged with burglary and simple

PROCEDURAL HISTORY AND FACTS affirmed. Defendant's petition without a hearing as being without merit. This Court's decision should be to the Superior Court. The sole issue in this op i n i on is whether this Court properly dismissed Defendant's petition based upon a lack of merit. Defendant appealed the dismissal of his petition Counsel's amended petition, and the Commonwealth's motion to dismiss, this Court dismissed ineffective assistance of counsel. After independent review of Defendant's 

### prose p e tition , PCRA Relief Act (PCRA), 42 Pa.C.S.A. § 9541 

### et seq. (eff. Jan. 16 , 1996) , raising a claim based upon Defendant Raymond Craig filed a p e tition for relief pursuant to the Post Conviction OPINION FEBRUARY 10, 2016 BRINKLEY, J. SUPERIOR COURT 254 EDA 2016 RAYMOND CRAIG vs. CP-51-CR-0011797-2007 COMMONWEALTH IN THE COURT OF COMMON PLEAS 

## FEB 

## 1·0 2016

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

## Criminal Appeals Unit CRIMINAL TRIAL DIVISION 

## First Judicial District of PA 

# F~lED Circulated 01/31/2017 04:41 PM2

M o dib o B all a (" B all a" ) as its fir s t w itnes s . Balla testified that , on th e mornin g of S e pt e mb e r 23, 2007 , h e w a s at hi s home on l 

### O 1 7 South 55 111 Str ee t w hen he w e nt d o wn s tair s and n o ticed th at hi s fr o nt d o or w as open and two spe akers and an amplifi e r w e r e mi ss ing fr o m hi s living room. Ballo furthe r t es ti fi ed that he h a d li v ed at that h o us e since June 2 007 and w a s in proc e ss of makin g repairs to th e hous e . Ball o state d th at he looked out the front door and s aw that th e windo w to his b a s e ment w as broke n , so he w e nt to the bas e ment to ch e ck on his n e wly installed h eatin g s ys tem. B allo furth e r s tated that , when h e cam e back upstairs, he saw D e fendant in his living room and De fe ndant subs equ e ntl y fled the hous e . Ball o te stifi e d that he c hased D efe nd ant down the street ,
an d wa s eve n tuall y able t o grab De fe ndant , pull him to the ground and s i t on top of him. Ball o furth e r testified that , a s an onl o oke r called 911 , Defendant st ated to him , "L et me g o and I' 11 get y ou back your stuff. " (N. T. 7 /29 /2009 p. 46-79). Th e Commonwealth call e d Offic e r C h arl e s Vall e tte ("Vallette " ) a s its next witnes s . V allette testi fi ed th at h e had worked a s a Philadelphi a Polic e Officer in th e 18 111 Distri c t for 7 ye ars. Vall e tte furth e r t e stifi e d that , shortly after starting hi s shift o n Sept ember 23 , 2007 , he

r e c e iv e d a radio call that two males were fighting on the hi g hway at 52 11 d and B altimore. Vall e tte

s t ated that h e arrived at the s c e ne app ro ximately a minut e late r and, when h e app ro a c hed the tw o

men , De fe ndant tried to walk a w ay but Vallett e told him to stay. V allette furthe r stated that h e

s poke t o Ballo and then arr e st e d D e fendant. Vall e tte testifi e d that D e fendant s tate d at l e a s t three
ti m es that he thought the house was aban doned whil e in his p res ence. (N. T. 7 /3 0/2009 p. 4-25). The Commonwealth called O ffic e r Michael Nau s sne r ("Naussner " ) as its next witness. Nau s sner te stified that he had been a Philad e lphia Pol i ce Officer for 3 ye ars and had been assigned to the 18 111 District for 2 y ears. Naussner further testified that, at approximatel y 8 a.m.

o n September 23 , 2007 , he responded t o a ra di o call for backup and, when he arrived at 52 11 d and3

Baltimore , he observed Defendant and Ballo arguing. Naussner stated that Ballo told police that Defendant had broken into his home while Defendant stated that he thought th e hou s e was abandon e d. Naussner further stated that he accompanied Ballo back to his r e sidence and that Ballo's house looked inhabited and in decent condition. Naussner testified that, after Defendant had been frisked and placed in the patrol car, Defendant told him that he had entered Ballo's house through the bas e ment window. Id. at 47-55. After Naussner testified, the Commonwealth and the d e fen s e rested. On July 31, 2009, the jury found Defendant guilty of burglary but deadlocked on the simple assault charge, which was subsequently nolle prossed by the Commonwealth. At that time, th e Commonwealth stated its intenti on to seek application of th e mandatory s e c o nd strike provisions at sentencing. On November 24, 2009, this Court sentenced Defendant to a mandatory minimum s e ntenc e of l Oto 20 years state incarceration. On December 16, 2009, Defendant filed a Notice of Appeal to the Superior Court. On May 7 , 2010, upon receipt of th e complete notes of testimony, this Court ordered appellate counsel to file a Concise Statement of Errors pursuant to Pa.R.A.P. l 925(b ). On June 1, 2010, appellate counsel filed the Concise Statement of Errors and rais e d two claims on appeal: (l) Whether th e evidence was sufficient to find Defendant guilty of burglary, and (2) Whether this Cami erred by imposing a second strike sentence. On July 30, 2010 , this Court filed its opinion in the matter. On July 26, 2011, the Superior C ami affirmed the judgment of sentence. D e fendant subsequently did not file a P e tition for Allowance of App e al with the Supr e me Court of P e nnsylvania. On July 18 , 2012 , Defendant filed a pro se petition for relief pursuant to the PCRA. On June 18 , 2013, Peter A. Levin, Esquire, was appointed as PCRA counsel. On February 8 , 2015 , Mr. Levin filed an amended petition , raising a claim of ineffective assistance of counsel based4

5 98 Pa. 5 84 , 959 A.2d 312 , 316 (2008) (citing Commonw ealth v . Duff ey , 585 P a . 493 , 8 89 A.2 d c o urt' s h e ari ng, vi e w e d in light m o st favorable to th e pre vailin g party . Comm o nw e alth v . Fahy, r ev ie w i s limit e d to the fin ding s of th e PCR A c o urt and the eviden c e o n the r e c o rd o f th e PCRA C ommo n w ealth v. Br eakiron , 5 6 6 P a . 323 , 781 A.2d 94 , 97 n. 4 (2001)). T he c ou rt 's sc op e of erro r. Co mm o nw e alth v. E dmiston, 61 9 Pa. 549 , 65 A.3d 339 , 3 45 (2013) (citin g det e rmini ng wh e th e r th e PCRA court's findin g s are s upp o rt e d b y th e re cord and with o ut l egal merit. When re v iewing the d e nial o f P CRA r e li e f, the appellat e court's review i s limite d to This C ourt prop e rly di s mis se d De fe n d ant 's petition without a h earin g as b e in g w ith o ut I. 

### THIS COURT PROPERLY DISMISSED DEFENDANT'S PETITION W I THOUT A HEARING AS BEING WITHOUT MERIT. DISCUSS I ON I. WH E TH E R THIS COURT PROPERLY DISMISSED DE F ENDANT'S PETITION WITHOUT A H E ARING AS BEING WITHOUT MERIT. ISSUES App eal t o the Su p erior C ourt. p e ti ti on b ase d up o n a l a ck of m e rit. On Janu ary 27 , 2016 , PCRA coun s el fil e d a Noti ce o f amended petition, and the C ommonwealth' s motion to di s mi ss, this Court di s miss e d D efe nd ant's J an u ary 15, 2 016, afte r i nd ep enden t rev iew of D efend ant 's 

### pr o s e p e titi o n , P C RA C ouns e l 's di s mis se d b as e d up on a l ac k o f m e rit. D efe nd ant did not fil e a re sp ons e to the 907 n o ti ce . O n thi s Co urt sent D e fend ant a notice p ur s uant t o Rul e 9 0 7, indicatin g th at hi s petiti o n wo ul d be tre s p ass . On July 3 , 2015 , th e C ommon w ealth filed a moti o n to dis mis s. On D e c e mber 14, 201 5 , of th e ev id en ce and failure t o re que s t a l e ss e r inclu de d o ffen se jury instructio n o n c ri mi n al u p o n trial c ou n se l' s failur e t o fil e a p os t- se nte nc e m o tion th at the v erdi ct was agai ns t the w e i g h t5

490 Pa. 296 , 416 A.2d 4 77 (1980)). Thi s is s o b e cau se an accus e d has n o abs o lute ri g ht to rais e v. Fran klin, 2003 PA Super 165, 823 A.2d 906, 908 (2003) (citin g Commonw e alth v. Wilker so n , or o n appeal, he is de e med to be ineffecti ve only if the issue is of arguabl e merit. Comm o nw ealth w as against the w e ight o f th e evidence. 

### If counsel fails to raise an issue in post-verdict m o tion s T rial couns e l was not in eff ective for failin g to file a post- s entenc e motion that th e verdict 1. Trial counsel was not ineffective for failing to file a post-sentence motion that the v erdict was against the weight of the evidence. 587 Pa. 304 , 8 9 9 A .2d 1060 , 1064 (2006) )

. C ommonwealth v. Dav ida, 10 6 A. 3 d 611 , 621 (Pa. 2014) (citin g Co mm o n w ealth v. Willi ams , o utcom e o f the proce e din gs w ould hav e be e n diff e re nt but for counsel's a ction or inaction. To e stablish pr e

judic e, the defendant must s h o w that ther e is a reason abl e probability that th e ineffecti v eness t es t. Id. (citing Comm o nw e alth v . Rolan, 964 A.2d 398 , 406 (Pa.Super.2008 ) ). onc e the co urt dete rmin e s that th e de fe ndant h as n o t e s tablish e d an y on e o f the pro n gs of the Id. (citin g 42 Pa
. C.S. 

### § 9543(a)(2)(ii)). Coun s el's a s s i s t anc e is deem e d con stitutio nally eff e cti ve d e t e rminin g process th at no re li able a djudicati o n of g uilt or innocenc e could h ave take n pl a c e . ass i s tan c e of c oun s el which , 

### i n th e circumstances of the partic ul ar c ase , so undermined the truthb y a pr ep o nderanc e of th e e videnc e, th at h i s co n victi on or s e nt e nce r e sulted from th e in effec tive Pa. 153, 527 A.2d 973 (1 9 87)). A PCRA peti ti o ner will b e granted reli e f o nly wh e n he proves, v. Fre e land, 2014 PA Super 274 , 106 A.3d 76 8, 775 (2014) (citin g Comm onwe alth v . Pi e rce, 515 or ina c tion c hos e n; and (3) couns e l's action or inaction prejudi ce d the petition e r. C ommon w ealth underl y in g claim has arguable merit ; ( 2) c o un se l h a d no r eas on abl e ba s is for the cour s e of action To es tablish trial coun s el' s ineffectiveness , a petition e r mu s t d e monstrate: (I) the pr e pon d eranc e of th e e vid e nc e that h e or s h e i s e ligibl e for PCRA re lief. 42 Pa. C .S.A 

### § 9543. 56 , 61 (2005)). T h e burd e n i s on th e petiti o n e r in th e P C RA p e tition t o d e mo n strate by a6

Unde r P e n n s yl v ani a l aw, a w e i g ht o f the e vidence cl aim c once d e s that th e ev id e nc e was

s u ffic ient to su s t ai n the verdi c t. Co mmon w e alth v . L y ons, 6 2 2 P a . 91 , 79 A.3d 1053 , 1067 ( 201 3) ( citing C ommo nwe alth v. Widm e r, 560 Pa
. 308 , 744 A.2d 745, 751-52 (20 0 0 ) ). Th e

we ight of the eviden c e i s " e x clu s ivel y fo r th e find e r o f fact who is fre e to beli ev e all , part , or

n one of the evi d enc e and t o d e termi ne the credibility o f the witn e s ses . " Lu s ter , 71 A.3d at 104 9 (quotin g Co mm o n w ealth v. C h ampn e y, 574 Pa. 435 , 832 A.2d 403 , 408 (2003)). A v e rdict is n o t
contrary to th e wei g ht of th e eviden c e becaus e of a conflict in te stimony o r because th e revi ew in g court o n the s am e facts might hav e arri ve d at a differe nt co n clu s ion than th e fa ctfinder. C omm onw e alth v. M orales , 91 A. 3d 80 , 91 (Pa. 2014) ( qu o tin g Co mmonwealth v . Th arp, 574 Pa. 202 , 8 3 0 A. 2 d 519 , 5 28 (2003)). R ather , a ne w trial is warrant e d onl y whe n th e jury 's

v e rdict is s o c ontrary t o the e videnc e that it s h ocks o n e 's se ns e o f ju s tic e and th e aw ar d o f a n e w trial i s imperativ e so that ri g ht may be g iven another o pportunity to prevail. Id. b as el ess claim s and c o un s el can n ot be faulted fo r n o t a d van c in g i s sues whi c h will not at l ea st

ar g u ably o bt ain so m e re lief fo r th e ac cu s ed. Id. In C omm o nw e alth v . Lu s t e r, the Superior Co urt held th at tri al c o un se l w a s n o t in e ff e ctiv e fo r failin g t o rai s e a post- sen te nce chall enge to the

w e i g ht o f th e ev id e n ce w h e n tri al counsel i n di c at e d that h e b e lieved the is s u e at trial i n v o lved a mi s appli cation o f the la w b y th e jury rathe r th an a mi s appr e hen s i o n of th e fa ct s an d th e r efo re fi l e d a p os t- se nte n ce moti o n c h allengi n g the suffi c i e ncy of the e vi de nce rath e r th an the wei g ht o f th e e vi den c e. 

### See Co mmon wealth v . Lu s ter , 201 3 PA Sup e r 2 04 , 71 A.3d 10 2 9 , 1049. Moreov e r , th e P C RA c o urt d e te rmi ne d th at e v e n i f th e cl aim h a d b ee n rai s ed , it wo uld h ave found th at " the jury ' s ver di c t w as no t s o contrary to the ev ide n ce as to s h o c k o n e' s sen se o f ju s tice " and that it "would not have grante d a n e w trial on a weight of the e viden ce ar g u m ent."7

In the case at bar, Defendant claims that trial counsel was ineffective for failing to file a post-sentence motion to preserve a weight of the evidence claim on appeal. However, as the underlying claim is without merit, Defendant's ineffectiveness claim is likewise without merit. Specifically, ther e was an overwhelming amount of credible evidence presented at trial which implicated Defendant in the burglary of Ballo's residence. Balla testified that he awoke on the morning of September 23, 2007 to find his front door open and his stereo and amplifier missing. Balla further testified that he went to his basement to check on his newly installed heating system after seeing that the basement window was broken and, when he came back upstairs, he saw Defendant in his living room. Balla stated that Defendant subsequently fled from the living room and he chased him down the street. Balla further stated that, after he caught Defendant and an onlooker phoned 911, Defendant stated to him, "let me go and I' 11 get you back your stuff." Vallette testified that Defendant repeatedly claimed that he thought the property was abandoned. However, Naussner testified that he accompanied Balla back to his residence and thought the place looked inhabited and in decent condition. Naussner further testified that Defendant told him he had entered the property through the basement window. Thus, the jury heard substantial credible evidence that Defendant entered Ballo's property while Balla was present with the int e ntion of committing a theft therein. Moreover, the jury heard evidence which rendered Defendant's claims that he thought the property was abandoned incredible. Consequently, it cannot be said that the verdict was so contrary to the evidence presented at trial so as to shock one's sense of justice. Therefore, as the verdict was not against the weight of the evidence, trial counsel could not have been ineffective for failing to file a post-sentence motion challenging the weight of the evidence.8

trial counsel was ineffective for failing to request a lesser included offens e instruction for offense requires proof of an el e ment the other does not. Consequently, Defendant's claim that reiterated in Quintua, criminal trespass is not a lesser included offense of burglary, as each request an instruction for a lesser included charge of criminal trespass. As the Superior Court In th e case at bar, Defendant claimed that tri al counsel was ineffective for failing to 238-39 (1995). included offens e of burglary. Commonwealth v. Harrison, 444 Pa.Super. 103, 663 A.2d 238 , a l e sser included charge instruction of criminal trespass because criminal tre spass is not a lesser element that criminal tre spass lacks. Id. Trial counsel cannot be ineffective for failing to request (2012). Burglary does, however, require intent to commit a crime within the premises , an such knowl e dge requirement. Commonw e alth v. Ouintua , 2012 PA Supe r 219, 56 A.3d 399, 402 committing that offense must know he is not privileged to enter the premises. Burglary has no A.2d 246 , 263 (Pa.Super.2005. Criminal trespass contains an element of knowledge-a person Evans, 2006 PA Super 132, 901 A.2d 528, 536-37 (2006) (citing Commonwealth v . Thomas, 879 other does not, then the crimes are not greater and lesse r included offenses. Commonwealth v. A.2d 190, 191 (Pa.Super.1999)). If two crimes each require proof of at least one element that the K e lly, 2014 PA Super 243, 102 A.3d 1025 , 1032 (2014) (quoting Commonwealth v. R e ese, 725 contains one or more elements not contained in th e lesser-included offense. Commonwealth v. the lesser-included offense are all contain e d in the greater offense; however, the greater offense are a nec e ssary subcomponent of elements of an other crime, the gre ater offense. The elements in instruction on criminal trespass. A lesser-included offense is a crime having elements of which Trial counsel was not ineffective for failing to request a les s er included offense jury 2. Trial counsel was not ineffective for failing to request a lesser-included offense jury instruction on criminal trespass.9

crimin al tresp a ss w a s w ithou t m e rit a s c rimin al tr es p a ss is n o t a l ess er in c lud e d off en s e o f bur g lary . E v e n i f tr es p ass was a l es ser included off e ns e o f bur g l ary , Defend ant wa s n o t prejudi ce d by tri al c oun s el' s failure to re qu e st a l e s se r includ e d o ff e ns e in s tru c tion a s th e ev id e n c e wa s

m o r e than suffi c i e nt to find D efe nd ant guil ty of bur g l ary . As pre viously di s cuss e d , Balla a woke

o n th e m o rnin g of Septemb er 2 3, 2 007 to fi nd hi s fr on t do o r o p e n an d hi s st e r eo and amplifier

mi ssi ng. A fter se e ing th at hi s b a s e ment window wa s broken, B allo went t o his b a s e m e nt to c he ck

o n his n ew ly installed heatin g s y stem and, w hen he c ame b a ck up s tair s , h e sa w D e f end an t in hi s livin g ro om. Balla th e n cha s ed Def e nd ant d ow n th e s tre et and, afte r he c aught him , Defe n dan t stated t o him, "l et m e go and I'll g et you b a ck your s tu ff. " Mo r eov e r, a f t e r he w a s plac e d in th e p atrol car, D efe ndant t o ld Naussner that h e had ent e red B a llos prop e rty thro u g h the b a s e m e nt windo w . Thus , th e C omm o nw e alth pre se n t ed s ufficient evidence at trial t o show that De fe nd ant

e nter ed an o c cupi e d structure wh ere an individual was pre sent with th e intent t o c ommit the f t th e rein. Th e r e fore , D efe nd ant w as n ot prejudiced by trial c ouns e l's failure to requ e st a le ss er includ e d off

e nse instruction a s th e e vidence was more th an s u ffi cient to find D e fendant g u i lty of bur g l ary.10

A fte r r e v i e w of th e app li cabl e c as e l aw , t e s tim o n y and s t atut e s, thi s Co urt co mmitte d n o

e rro r. D efe n d ant 's P C RA p e ti ti on w as pro p e rl y di s mi s se d w ith o u t a he ari n g as bei n g w ith o ut

me rit

. Acc o r d in g l y , thi s Co urt ' s d e ci s i o n s h o ul d b e affirm ed

. CONCLUSION 

## )