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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

CHRISTOPHER LEITNER, : No. 186 EDA 2011

:

 Appellant :

Appeal from the Judgment of Sentence, October 13, 2010,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0000137-2010

BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 10, 2015

Appellant, Christopher Leitner, appeals from the October 13, 2010 

judgment of sentence imposing a term of five to ten months’ imprisonment 

with immediate parole followed by three years’ probation, and entered after 

a bench trial where appellant was found guilty of criminal trespass, 

18 Pa.C.S.A. § 3503(a)(1). After careful review, we affirm.

The facts underlying this appeal, as summarized by the trial court, are 

as follows:

On October 18, 2009, at approximately 

1:30 p.m., Officer McCarthy was on duty in the area 

of 1452 East Wilt Street in the City and County of 

Philadelphia. (Notes of Testimony from 10/13/10 

(hereinafter N.T.) at 11) Officer McCarthy was in 

uniform and working solo in a marked police car. He 

responded to a home at that address after receiving 

a radio call and arrived at the same time as 

Officer Fisher, also solo and also in uniform and a 
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marked police car. Officer McCarthy exited his 

vehicle and noticed a for sale sign on the home and 

broken glass on the sidewalk by a basement window. 

(N.T. at 12) Officer McCarthy attempted to enter 

through the front door, which was locked. He then 

went down an alleyway and hopped a fence into the 

backyard. He and Officer Fisher entered the house 

through an unlocked rear door. Upon entering the 

dining room, Officer McCarthy saw Appellant coming 

upstairs from the basement with a black duffle bag. 

Upon seeing the Officers, Appellant dropped the bag 

and ran for the front door. (N.T. at 13) The officers 

quickly secured Appellant who stated that he was 

working on the home. (N.T. at 14) Appellant was 

wearing a black sweatshirt and Dickies, not a 

uniform, and there was no work truck outside the 

home. (N.T. at 15) Officer McCarthy testified that 

the home was vacant but had recently been 

renovated and that the work appeared to be 

completed (N.T. at 16-17). The officers recovered 

the black duffle ba[g], which contained 

approximately twenty pounds of used copper piping. 

(N.T. at 14)

Trial court opinion, 12/4/14 at 1-2.

Appellant was charged with burglary, theft by unlawful taking, 

receiving stolen property, criminal mischief, and criminal trespass. At the 

conclusion of his bench trial, appellant was found guilty of criminal trespass, 

graded as a felony of the third degree. Appellant was found not guilty of the 

remaining charges. Immediately following his trial, appellant was sentenced 

to five to ten months’ incarceration with immediate parole plus three years’ 

reporting probation. No direct appeal was filed.

On December 10, 2010, the trial court granted appellant’s petition for 

allowance of appeal nunc pro tunc and reinstated his direct appeal rights. 
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On January 10, 2011, appellant filed a timely notice of appeal.1 The trial 

court failed to order appellant to file a concise statement of errors 

complained of on appeal and, on August 16, 2013, wrote an opinion stating 

any appellate issues were waived. On October 21, 2013, this court granted 

appellant’s motion to vacate briefing schedule, remand for completion of the 

record, and directed the trial court to issue a Rule 1925(b) order. On 

March 18, 2014, appellant filed his Rule 1925(b) statement, and the trial 

court filed an opinion on December 4, 2014.

Appellant presents one issue for our review:

Was not the evidence presented insufficient as a 

matter of law to sustain appellant’s conviction for 

criminal trespass as a felony of the third degree, 

where evidence of flight alone cannot support a 

conviction and the trial court stated that 

non-criminal reasons could have explained 

appellant’s presence in the property?

Appellant’s brief at 4.

When reviewing a claim challenging the sufficiency of 

the evidence, we apply the following standard:

[W]hether 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 

 

1 The 30th day to file a timely notice of appeal fell on Sunday, January 9, 

2011. Consequently, that day is not included in the computation of time. 

See 1 Pa.C.S.A. § 1908 (excluding weekends and holidays from the 

computation of time).
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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 trier 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. Bullick, 830 A.2d 998, 1000 

(Pa.Super.2003) (quoting Commonwealth v. 

Gooding, 818 A.2d 546, 549 (Pa.Super.2003), 

appeal denied, 575 Pa. 691, 835 A.2d 709 (2003)).

Commonwealth v. Jannett, 58 A.3d 818, 819-820 (Pa.Super. 2012).

The Pennsylvania Crimes Code defines Criminal Trespass, in pertinent 

part, as follows:

§ 3503. Criminal trespass

(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 
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separately secured or occupied 

portion thereof[.]

18 Pa.C.S.A. § 3503(a)(1)(i). In accordance with these provisions, “[t]he 

crime of criminal trespass is committed when a person enters a building or 

occupied structure knowing that he is not licensed to do so.” 

Commonwealth v. Thomas, 561 A.2d 699, 709 (Pa. 1989). There is a 

scienter requirement to criminal trespass that the Commonwealth must 

prove in order to convict; namely, the Commonwealth must prove that the 

defendant reasonably knew that he was not permitted to be on the property. 

See, e.g., Commonwealth v. Jones, 912 A.2d 815 (Pa. 2006) (criminal 

trespass requires awareness of lack of privilege to enter).

Appellant concedes he was in the house. However, he argues the 

Commonwealth failed to prove that he lacked permission to be there. 

Appellant contends the Commonwealth failed to present an owner or 

non-permission witness to establish the scienter element, such as testimony 

regarding whether or when the renovations had been completed and by 

whom. According to appellant, the Commonwealth’s case was based on 

circumstantial evidence that established only that the arresting officer saw 

appellant in the middle of the afternoon inside a house that was newly 

renovated. Appellant does not dispute he tried to run to the front door when 

the police officer appeared, but upon apprehension, appellant stated that he 

was doing work at the house. Appellant points out that the only damage 

observed was a broken basement window; the front door was locked and 
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another door, through which the officers entered, was open and undamaged. 

Appellant concludes there was insufficient evidence to establish beyond a 

reasonable doubt that he knew he was not licensed or privileged to enter, or 

that he gained entry by subterfuge or was surreptitiously remaining on the 

premises. (Appellant’s brief at 11.)

The trial court, sitting as finder-of-fact in this non-jury case, opined:

There was only one witness and Appellant did not 

present any evidence to rebut Officer McCarthy’s 

version of events. The evidence showed that 

Appellant, immediately upon seeing the officers[,] 

ran and attempted to flee through the front door. It 

was not until the officers apprehended him that he 

claimed that he was working on the home. This is 

clear evidence that he was on the premises illegally 

and without permission. Appellant had a guilty 

conscious [sic] and was attempting to get away. 

Furthermore, Officer McCarthy testified that[:] 

Appellant was not wearing a worker’s uniform, there 

was no work truck at the site, and all renovations 

appeared to be complete and no longer in progress.

Trial court opinion, 12/4/14 at 3.

Based on the above, the trial court drew a reasonable inference that 

appellant entered the house through the broken basement window and was 

proceeding up the basement stairs, carrying a duffel bag filled with 

20 pounds of copper tubing, when the officers appeared. It is undisputed 

that appellant dropped the bag and immediately ran in an attempt to flee. 

Such evidence leads to a conclusion that appellant did not have permission 

to be in the house. See Commonwealth v. Fox, 498 A.2d 917, 918 

(Pa.Super. 1985) (finding sufficient evidence of non-permission where police 
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found defendant hiding next to a building with a broken window and 

defendant attempted to walk away from the officer).

Additionally, evidence that appellant attempted to flee the scene of a 

crime is admissible to show consciousness of guilt. See Commonwealth v. 

Hudson, 955 A.2d 1031, 1036 (Pa.Super. 2008) (flight is a circumstance 

tending to prove consciousness of guilt), appeal denied, 964 A.2d 1 (Pa. 

2009); Commonwealth v. Coyle, 203 A.2d 782 (Pa. 1964) (flight as 

evidence of consciousness of guilt may form the basis in connection with 

other proof from which guilt may be inferred).

We note Officer McCarthy testified that he smelled fresh paint and it 

appeared the house had been “recently renovated.” (Notes of testimony, 

10/13/10 at 18-19.) While appellant stated that he was working on the 

home, Officer McCarthy testified that it looked to him as though the work 

was completed. (Id. at 17.) Additionally, Officer McCarthy testified 

appellant was not wearing any type of work uniform nor was there a work 

vehicle outside the house. (Id. at 15.) All of these facts led the trial court 

to the conclusion that appellant was in the home without license or privilege. 

See Commonwealth v. Gordon, 477 A.2d 1342, 1348 (Pa.Super. 1984) 

(lack of privilege to enter may be proved from the surrounding 

circumstances).

Appellant also argues the record was insufficient because the 

Commonwealth did not introduce direct evidence of non-permission. That 
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argument lacks merit as such evidence is not required. The Commonwealth 

may sustain its burden entirely through circumstantial evidence. 

Commonwealth v. Valentine, 101 A.3d 801, 805 (Pa.Super. 2014).

Last, appellant contends his conviction cannot stand because the trial 

court stated it believed appellant’s behavior was equally consistent with 

non-criminal behavior. (Appellant’s brief at 12.) Appellant cites to a 

statement the trial judge made after finding him guilty of criminal trespass. 

The trial judge said, “I think you did it. But unfortunately, without a 

complaining witness, other things could have explained it.” (Notes of 

testimony, 10/13/10 at 39.)

Appellant omits an entire passage. Prior to announcing the verdicts, 

there was much discussion about the copper pipes appellant was carrying 

and whether there was damage to the house. (Id. at 36-38.) The notes of 

testimony show that the court first found appellant guilty of criminal 

trespass and then found appellant not guilty of burglary, theft by unlawful 

taking, receiving stolen property, and criminal mischief. (Id. at 38.) After 

finding appellant “not guilty” of those crimes, the court said:

And, Sir, I want to be clear on this. I think that you 

did it. I think the evidence shows you did it, but the 

standard of proof is beyond a reasonable doubt. 

Beyond a reasonable doubt, I’m finding you in that 

house without permission. That’s criminal trespass 

into a structure. I think you did it. But 

unfortunately without a complaining witness, other 

things could have explained it.
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I just want you to know that; that I do think 

you did it.

Id. at 38-39. It appears to this court the trial judge was indicating he 

believed appellant was guilty of the other crimes but the Commonwealth had 

not proved its case beyond a reasonable doubt. In fact, a review of the trial 

court’s opinion shows our interpretation is, indeed, what the trial court 

meant. The trial court explained: “Although this court believed Appellant 

was probably guilty of all the offenses he was originally charged with, many 

were not proven beyond a reasonable doubt. However, all the elements of 

criminal trespass were met since Appellant was in the home and was there 

without a license or privilege.” (Trial court opinion, 12/4/14 at 3.)

Accordingly, based on the above, we affirm appellant’s judgment of 

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/10/2015