J-S24009-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIAM BERRY

Appellant No. 2087 EDA 2014

Appeal from the Judgment of Sentence June 30, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010341-2013

BEFORE: GANTMAN, P.J., ALLEN, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 24, 2015

Appellant, William Berry, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common pleas, following his 

bench trial convictions for attempted criminal trespass and criminal 

conspiracy.1 We affirm. 

In its opinion, the trial court fully set forth the relevant facts and 

procedural history of this case. Therefore, we have no reason to restate 

them. 

Appellant raises the following issues for our review:

THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE 

BECAUSE...THE EVIDENCE WAS NOT BEYOND A 

REASONABLE DOUBT TO CONVICT [APPELLANT] OF 

____________________________________________

1 18 Pa.C.S.A. §§ 901, 3503, and 903, respectively. 
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ATTEMPTED CRIMINAL TRESPASS AND CRIMINAL 

CONSPIRACY.

THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE 

VERDICT BECAUSE...THERE WAS INSUFFICIENT EVIDENCE 

TO CONVICT [APPELLANT] OF ATTEMPTED CRIMINAL 

TRESPASS AND CRIMINAL CONSPIRACY.

(Appellant’s Brief at 3). 

As a preliminary matter, generally, a challenge to the weight of the 

evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607. 

The Rule provides: 

Rule 607. Challenges to the Weight of the Evidence

(A) A claim that the verdict was against the weight of the 

evidence shall be raised with the trial judge in a motion for 

a new trial:

(1) orally, on the record, at any time before

sentencing;

(2) by written motion at any time before 

sentencing; or

(3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-(3). “As noted in the comment to Rule 607, the 

purpose of this rule is to make it clear that a challenge to the weight of the 

evidence must be raised with the trial judge or it will be waived.” 

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal 

denied, 581 Pa. 672, 863 A.2d 1143 (2004). A claim challenging the weight 

of the evidence generally cannot be raised for the first time in a [Pa.R.A.P.] 

1925(b) statement. Commonwealth v. Burkett, 830 A.2d 1034 
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(Pa.Super. 2003). An appellant’s failure to avail himself of any of the 

prescribed methods for presenting a weight of the evidence issue to the trial 

court constitutes waiver of that claim, even if the trial court responds to the 

claim in its Rule 1925(a) opinion. Id. 

Instantly, Appellant failed to challenge the weight of the evidence 

before the trial court in a motion for a new trial. Rather, Appellant raised his 

weight claim for the first time in his Rule 1925(b) statement. Thus, his first 

issue on appeal is waived.2 See Pa.R.Crim.P. 607; Gillard, supra; 

Burkett, supra. 

With respect to Appellant’s challenge to the sufficiency of the evidence, 

after a thorough review of the record, the briefs of the parties, the applicable 

law, and the well-reasoned opinion of the Honorable J. Scott O’Keefe, we 

conclude Appellant’s second issue merits no relief. The trial court opinion 

comprehensively discusses and properly disposes of this issue. See Trial 

Court Opinion, filed December 22, 2014, at 3-5 (finding: testimony 

____________________________________________

2 Moreover, the trial court credited the testimony of Ms. Brown and Officer 

Auty, and concluded, based on the strength of the Commonwealth’s 

evidence, that the verdict did not shock the court’s sense of justice. Thus, 

even if Appellant had properly preserved his weight claim for appellate 

review, we would see no error in the court’s decision to deny relief. See

Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403 (2003), cert. 

denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) (explaining 

weight of evidence is exclusively for finder of fact who is free to believe all, 

part, or none of evidence and to determine credibility of witnesses; this 

Court cannot substitute its judgment for that of fact-finder and may reverse 

verdict only if it is so contrary to evidence as to shock one’s sense of 

justice). 
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established occupant of home, Ms. Brown, heard Appellant and two cohorts 

attempting to gain entry to house through kitchen and basement doors; Ms. 

Brown looked out of her window and observed one perpetrator on elevated 

porch at kitchen door; porch was accessible only from inside kitchen, which 

meant that individual climbed onto porch to attempt to gain entry to house; 

other two individuals were on ground near basement door; Ms. Brown heard 

sounds that made it clear Appellant and two cohorts were attempting to gain 

entry through locked doors; noises continued for some time and doors 

needed repair after incident; Officer Auty was five blocks away when he 

received radio call regarding incident; as he approached property in back 

alley in marked patrol car, officer observed Appellant and two cohorts at rear 

of property; Appellant and two cohorts immediately fled when they saw 

police car; Officer Auty identified Appellant, at scene and at trial, as one of 

males at rear door of property who fled; Appellant was apprehended by 

police as he ran out of alley; evidence was sufficient to convict Appellant of 

attempted criminal trespass; evidence also was sufficient to convict 

Appellant of criminal conspiracy, in light of concerted actions of Appellant 

and his co-conspirators to break into home, and their flight together when 

police approached). Accordingly, Appellant’s first issue is waived; with 

respect to Appellant’s second issue, we affirm on the basis of the trial court 

opinion. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/24/2015
1 

this defendant receiving a sentence of two years probation. Mr. Berry filed this timely appeal. 

granted prior to the bench trial. The defendants were convicted of all the remaining charge, with 

A Motion to Quash the attempted burglary changes was filed by both defendants, and 

held on August 13, 2013 at which time both defendants were held for court on all charges. 

Attempted Burglary, Attempted Criminal Trespass and Conspiracy. A preliminary hearing was 

William Berry and Terrell Parker were arrested on June 7, 2013 and charged with 

PROCEDURAL IDSTORY: 

subsequently sentenced to twenty-four months probation. 

defendant was found guilty of Attempted Criminal Trespass and Criminal Conspiracy and 

from a waiver trial in the Philadelphia Court of Common Pleas on April 17, 2014, wherein the 

Defendant, William Berry, appeals from a conviction and judgment of sentence resulting 

Ill/I I/ I 111111 I II I/I Ill 

O'KEEFE,J. 7237298541 

CP-51-CR-0010341-2013 C . 

Opinio~- v. Beny, wm,am 

FILED CP-Sl-CR-0010341-2013 

DEC 2 2 2014 

Crimina\ App~a\~ Unit 

eirst Judicia\ o,stnct of PA 

r OPINION 

WILIAM BERRY 

v. 2087 EDA 2014 

COMMONWEAL TH OF PENNSYLVANIA CRIMINAL TRIAL DIVISION 

IN THE COURT OF COMMON PLEAS OF PIDLADELPHIA COU_NTY 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

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The trial testimony established that at approximately 11:15 a.m. on the morning of lune 

7, 2013, Ms. Joyce Brown was at her home at 5743 North 121h Street in Philadelphia when she 

heard a loud noise in the rear of her house. Ms. Brown looked out her upstairs window and saw 

three males attempting to gain entry into the back of her house. One individual was up on the 

kitchen deck, another was under the deck and the third at the basement door. The deck is only 

legitimately accessed from the kitchen - there are no steps allowing access from the ground. As 

FACTS: 

A claim that the verdict was against the weight of the evidence requires that the court 

examine the record to determine whether the fact finder's verdict was so contrary to the evidence 

as to shock one's sense of justice and thereby mandate the granting of a new trial. 

Commonwealth v. Habay, 934 A.2d 732 (Pa. Super. 2007), appeal denied, 954 A.2d 575 (Pa. 

2008). Whether or not a new trial should be granted on the grounds that the verdict is against the 

weight of the evidence is addressed to the sound discretion of the trial court, whose decision will 

not be reversed absent a showing of an abuse of discretion. Commonwealth v. Widmer, 560 Pa. 

308, 744 A.2d 745 (2000); Commonwealth v. Brown 538 Pa. 410, 648 A.2d 1177 (1994). 

When a claim of insufficiency of the evidence is made an appellate court views the 

evidence in a light most favorable to the Commonwealth, and determines whether the evidence 

presented at trial, including all reasonable inferences that may be drawn therefrom, was 

sufficient to prove all of the elements of the crime beyond a reasonable doubt. Commonwealth v. 

McCalman, 795 A.2d 412 (Pa. Super. 2002). 

STANDARD OF REVIEW: 

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The defendant contends that the evidence was insufficient as a matter oflaw, in that there 

was no competent evidence that either defendant attempted to break into the residence of the 

complainant, and further that the verdict was against the weight of the evidence. 

In order to prove the charge of criminal attempt, the Commonwealth must prove that a 

defendant, with a conscious object to commit a specific crime, does any act which contributes a 

substantial step toward the commission of that crime. 18 Pa.C.S. § 901. Commonwealth v. 

Gilliam, 417 A.2d 1203 (Pa. Super. 1980), Commonwealth v. McCollum, 926 A.2d 527 (Pa. 

Super. 2007). The prosecution charged the defendant in this case with attempted criminal 

trespass. In order to find a defendant guilty of criminal trespass the state need prove that the 

defendant broke into a location that he knew he did not have permission or lawful authority to 

LEGAL DISCUSSION: 

Ms. Brown observed these individuals at the kitchen and back doors, she continued to hear 

noises coming from both doors as the three men attempted to gain entry. Ms. Brown called the 

police and fled through the front door to seek the safety of a neighbor's house. 

Police Officers Auty and Gugger responded to the corresponding radio call and upon 

arrival observed the three males at the back door of Ms. Brown's house. The males looked in the 

direction of the police and immediately took off running. Officer Auty radioed fl.ash descriptive 

information of the males and chased one of the individuals, although unable to catch that 

individual. Officer DelRici likewise responded to the radio call and · caught Terrell Parker 

running down the alley behind 5751 North 12th Street. Sergeant Williams arrived moments later 

and apprehended William Berry running out of the same alley onto Chew Street. 

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The testimony in the instant case established that Ms. Brown was in her home when she 

heard these two defendants and another male attempting to gain entry to her house through both 

the kitchen and basement doors. She looked out her third floor window and observed one male 

on her porch at the kitchen door. There are no steps to access this porch from the ground; the 

only access is through the kitchen. Obviously, this male climbed up on the porch and was 

attempting to gain entry through that door. The other two males were on the ground at the 

basement door, and the sounds emanating therefrom made it patently clear that these men were 

attempting to gain entry through the locked doors. Ms. Brown further testified that the noises at 

the doors continued for some time and that the doors needed to be adjusted after this incident. 

Officer Auty credibly testified that he was approximately five blocks away when he 

received the radio call, that he responded to the rear of the property and as he approached from 

the alleyway in his patrol car, he observed the three males at the rear of the property. The three 

looked at the police car and took off running. One got away, however co-defendant Parker was 

arrested in the alley and this defendant was arrested running out of the alley. Officer Auty 

positively and unhesitatingly identified the two defendants, both at the scene and at trial, as two 

of the three males at the rear door of the property who fled. Flight, combined with the actions of 

these three males makes it crystal clear they were attempting to force the doors open to get into 

the occupied home of Ms. Brown. That they were unsuccessful is the reason they were only 

charged with criminal attempt. Accordingly there was more than sufficient evidence to convict 

the two defendants and that verdict does not shock one's sense of justice. 

enter and that the premises was an occupied structure, 18 Pa.C.S. § 3503. Commonwealth v. 

Giddings, 686 A.2d 6 (Pa. Super. 1996). 

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BY THE COURT: 

It is plain in the instant case, from the actions of the defendants, the circumstances 

surrounding their activities, as well as their flight together when the police were approaching, 

that they were acting together towards one goal, the entry of Ms. Brown's residence. 

Obviously, the evidence was more than sufficient to support the verdict and was not 

contrary to the evidence, and accordingly the defendant's appeal should be denied. 

To prove the charge of criminal conspiracy, the state need prove that the defendant and 

another, with a conscious object of promoting or facilitating the commission of a crime, agree to 

commit the crime and take a substantial step towards the commission of that crime. 18 Pa.C.S. § 

903. Commonwealth v. Weimer, 602 Pa. 33, 977 A.2d 1103 (Pa. 2009). Commonwealth v. Rios, 

546 Pa. 271, 684 A.2d 1025 (Pa. 1996). The law is definate that an agreement to comm.it a crime 

subsumes an agreement to attempt to commit the crime. Thus, the conspiracy would be 

complete upon the performance of an overt act pursuant to the agreement. Commonwealth v. 

Rios, supra. The Commonwealth may prove criminal conspiracy by circumstantial evidence. 

Indeed, people who conspire most often do so in secrecy, and circumstantial evidence is quite 

often the only means of proving a conspiracy. The conspiracy can be proved by the conduct and 

acts of the defendant and his co-conspirators and the circumstances surrounding their activities. 

Commonwealth v. Hughes, 68 A.3d 357, (Pa. Super. 2013), Commonwealth v. Grekis, 601 A.2d 

1275, 1283 (Pa. Super. 1992). 

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Date: 12-22-14 

Type of Service: ( ) Personal ( ) First Class Mail (X) Interoffice ( ) Other, please specify 

Hugh Bums, Esquire 

District Attorney's Office 

Chief - Appeals Unit 

3 South Penn Square 

Philadelphia, PA 19107 

District Attorney: 

Type of Service: ( ) Personal ( ) First Class Mail ( X) Interoffice ( ) Other, please 

specify 

Todd Fiore, Esquire 

211 North 13th Street 

Philadelphia, PA 19107 

Defense Attorney: 

I hereby certify that I am on this day serving the foregoing Court's Opinion upon the 

person(s), and in the manner indicated below, which service satisfies the requirements of 

Pa.R.Crim.P. 114: 

Proof of Service 

WILIAM BERRY CP-51-CR-0010341-2013 

v. 2087 EDA 2014 

COMMONWEAL TH OF PENNSYLVANIA CRIMINAL TRIAL DIVISION 

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

DATE: 12-22-14 

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