J-S78037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

PATRICK J. TSHUDY, :

:

Appellant : No. 1311 MDA 2014

Appeal from the Judgment of Sentence entered on April 23, 2014

in the Court of Common Pleas of Lebanon County,

Criminal Division, No. CP-38-CR-0001676-2013

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 22, 2015

Patrick J. Tshudy (“Tshudy”) appeals from the judgment of sentence 

imposed following his conviction of criminal trespass. See 18 Pa.C.S.A. 

§ 3503(a)(1)(i). We affirm.

The trial court set forth the relevant underlying facts as follows:

Mark Kinney [“Kinney”] testified that he resided at 27 South 

King Street, Annville[, Pennsylvania]. [] Kinney also stated that 

the building was a two story house[,] but that it was set up with 

an upstairs apartment and a downstairs apartment. [] Kinney 

further stated that he resided in the first floor apartment[,] 

known as Apartment B. The testimony of [] Kinney revealed 

that there were two doors that were required to be opened in 

order to enter his living room; a door to enter the building and 

another door to enter his apartment. [] Kinney stated that the 

door to enter the building was not locked.

[] Kinney testified that on October 25, 2013, at approximately 

3:45 a.m.[,] he and his wife, Laura, were sleeping. [] Kinney 

was sleeping on a recliner located in the living room of his 

apartment and his wife was sleeping in the bedroom of the 

apartment. He stated that his dog began barking and awoke 
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him. At that point[,] he observed [Tshudy] in his apartment. At 

first he thought [Tshudy] was someone he knew but then 

realized that he did not know the person in his apartment.

[Tshudy] told [] Kinney that “he was cold and that ... God spoke 

to him and led him to our apartment and so he didn’t freeze to 

death.” [] Kinney testified that he never heard anyone knock on 

his door, nor did he tell anyone that they could enter his 

apartment. When [] Kinney realized that [Tshudy] was not his 

buddy, he became startled and a little scared. According to [] 

Kinney, [Tshudy’s] clothing [was] soaked. On multiple 

occasions, [] Kinney asked [Tshudy] to leave but [Tshudy] did 

not do so. [] Kinney testified that he believed [Tshudy] was 

drinking as he could smell alcohol on him. [] Kinney did not 

actually call [the] police immediately as [Tshudy] looked like he 

needed help. [] Kinney called several people in order to try to 

help [Tshudy]. 

Officer William Strickler [“Officer Strickler”]... is employed by the 

Annville Township Police Department. Officer Strickler is trained 

in standardized field sobriety testing and also attended PLCB 

Liquor Law trainings.

Officer Strickler stated that on October 25, 2013, he responded 

to 27 South King Street after receiving a phone call from a 

resident who said someone that he did not know was inside his 

apartment. Upon Officer Strickler’s arrival at 27 South King 

Street, Officer Strickler recognized [Tshudy]. [Tshudy] was all 

wet. When asked by Officer Strickler why he was all wet, 

[Tshudy] had no answer. Officer Strickler observed that 

[Tshudy] “had red, bloodshot, glassy eyes. He had a strong 

odor of alcohol emitting from his person. ... [H]e lacked balance 

and lacked coordination. His movements, when he went to get 

his wallet out, it was real slow and then [Officer Strickler] ID’s 

him as [Tshudy] ....” [Tshudy’s] ID revealed that he did not live 

at the 27 South King Street residence, but rather that he lived 

on Bellegrove Road in Palmyra, [Pennsylvania].

Officer Strickler testified that [Tshudy] appeared to be 

intoxicated. Officer Strickler contacted EMS to come to the 

scene to make sure that [Tshudy] was okay. EMS personnel 

determined that other than being intoxicated, there were no 

medical issues with [Tshudy].
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[Tshudy was subsequently arrested and charged with criminal 

trespass.] On April 9, 2014, [Tshudy’s] case was called for trial. 

He refused to participate. [The trial c]ourt afforded [Tshudy] 

with multiple chances to attend and participate in his trial. [The 

trial court] directed that his attorney meet with him to persuade 

him to participate. ... Eventually, [the trial court] determined 

that [Tshudy’s] trial should proceed in abstentia. During trial, 

[Tshudy’s] interests were represented by counsel.

Following trial in abstentia, the jury found [Tshudy] guilty of one 

count of [c]riminal [t]respass. On April 23, 2014[, Tshudy] was 

sentenced to the Lebanon County Correctional Facility for a 

period of time served to 2 years less one day. Given that 

[Tshudy] had already served his minimum sentence, he was 

made immediately eligible for parole. As special conditions of his 

parole, [Tshudy] was to obtain a mental health evaluation and 

comply with all recommendations of his mental health 

professionals, including medication recommendations. [Tshudy] 

was also directed not to set foot within 30 feet of the residence 

located at 27 South King Street in Annville at any time for any 

reason. [Tshudy] filed timely Post-Sentence Motions on May 5, 

2014. 

Trial Court Opinion, 7/22/14, at 2-5 (citations omitted).

The trial court denied Tshudy’s Post-Sentence Motions. Tshudy 

subsequently filed a timely Notice of Appeal.

On appeal, Tshudy raises the following question for our review: 

“Whether [Tshudy] should be acquitted because there was not sufficient 

evidence presented at trial to prove beyond a reasonable doubt that he 

committed the crime of criminal trespass?” Brief for Appellant at 4.

Tshudy contends that the evidence was insufficient to support his 

conviction because Kinney allowed Tshudy to stay in the residence after 

discovering Tshudy. Id. at 8-9. Tshudy argues that as a result, he 

reasonably believed that Kinney had licensed him to enter or remain. Id. at
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9. Tshudy asserts that based on Kinney’s actions of trying to help, Tshudy 

has established a legitimate defense to the crime of criminal trespass. Id.

Our standard of review with regard to a sufficiency challenge is as 

follows:

The standard we apply in reviewing 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. Valentine, 101 A.3d 801, 805 (Pa. Super. 2014) 

(citation omitted).

The Crimes Code defines criminal trespass 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: 
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(i) enters, gains entry by subterfuge or surreptitiously 

remains in any building or occupied structure or separately 

secured or occupied portion thereof... 

***

(c) Defenses.--It is a defense to prosecution under this section 

that:

***

(3) the actor reasonably believed that the owner of the 

premises, or other person empowered to license access thereto, 

would have licensed him to enter or remain.

18 Pa.C.S.A. § 3503. 

The trial court addressed Tshudy’s claim as follows:

In this case [Tshudy] entered the premises located at 27 South 

King Street in Annville, [Pennsylvania,] at 3:45 a.m.[,] on 

October 25, 2013[,] without the permission from the occupants 

of said premises. The victims ... were asleep at the time 

[Tshudy] entered their apartment. [Tshudy] entered two 

separate doors before entering Apartment B. [] Kinney was 

startled and scared when he realized [Tshudy] was in his 

apartment and that he did not know him.

[Tshudy] did not leave the premises when asked “multiple times” 

to do so by [] Kinney. Because [Tshudy] refused to leave the 

premises, [] Kinney tried calling people to come get [Tshudy]. 

The police were finally called to remove [Tshudy] from the 

premises.

Trial Court Opinion, 7/22/14, at 6-7.

Here, the evidence presented demonstrated Tshudy was not privileged 

or licensed to enter the premises. See Commonwealth v. Thompson, 778 

A.2d 1215, 1218-19 (Pa. Super. 2001) (concluding that evidence was 

sufficient to support criminal trespass conviction where homeowners testified 
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that defendant entered their houses without permission and refused to 

leave, and defendant’s claim that he was being chased was unsupported by 

the evidence); Valentine, 101 A.3d at 805 (stating that the finder of fact in 

this case, was free to believe all, part, or none of the evidence and to 

determine the credibility of the witnesses). The fact that Kinney attempted 

to provide Tshudy aid after he illegally entered the premises does not grant 

Tshudy a privilege or license to enter or remain on the premises. See 

generally 18 Pa.C.S.A. § 308 (stating that voluntary intoxication is not a 

defense to a criminal charge). Indeed, Tshudy does not cite to any case law 

to support such a proposition. See Pa.R.A.P. 2119(a) (stating that the 

argument shall contain citation of authorities as are deemed pertinent). 

Based upon the foregoing, we conclude that there was sufficient evidence to 

support Tshudy’s criminal trespass conviction. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/22/2015