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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. 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
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- 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 crimin al 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 AG AINST THE WEIGHT OF THE EVIDENCE BECAUSE...THE EVIDENCE WAS NOT BEYOND A REASONABLE DOUBT TO CONVICT [APPELLANT] OF

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________________________________ 1 18 Pa.C.S.A. §§ 901, 3503, and 903, respectively.J
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- ATTEMPTED CRIMINAL TRESPASS AND CRIMINAL CONSPIRACY. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT BECAUSE...THERE WAS INSUFFICIENT EVID ENCE 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 evi dence 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 fo r the first time in a [Pa.R.A.P.] 1925(b) statement. Commonwealth v. Burkett , 830 A.2d 1034J
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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 consti tutes 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

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________________________________ 2 Moreover, the trial court credited the testimony of Ms. Brown and Officer Auty, and conclu ded, 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 e vidence 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).J
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established occupant of home, Ms. Brown, heard Appellant and two c ohorts 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 climb ed 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; Appella nt 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 t o 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 appro ached). 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.J
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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/24/20151

this defendant receiving a sentence of two years probation

. 

### Mr. Berry filed this timel y appeal. granted prior to the b e nch trial. The defendants were c onvicted of all the remaining charge, wi t h A Motion to Quash the attempted burglary changes was filed b y both defendant s , 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 h e aring was William Berry and Terrell Parker were arrested on June 7, 2013 and charged wi t h PROCEDURAL IDSTORY: subsequently sentenced to twenty-four months probation. defendant was found guilty of Attempted Criminal Trespass and Criminal Conspira cy and from a waiver trial in the Philadelphia Court of Common Pleas on April 17 , 2014 , whe r ein the Defendant , William Berry, appeals from a conv i ction and judgment of sentence resulting 

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# o,stnct of PA r OPINION WILIAM BERRY 2087 EDA 2014



### v. CRIMINAL TRIAL DIVISION COMMONWEAL TH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF PIDLADELPHIA COU

_ NTY

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Circulated 04/15/2015 12:00 PM2 The trial testimony established th a t at app r oximate l y 11 : 15 a . m . on the morning of l une 7 , 2013, Ms. Joyce Brown was at her home at 5743 North 12 1 h Str e et in Phil a delphi a when s he heard a loud nois e in the rear of her house

. M s. Brown loo ke d out her upstair s w ind ow and s aw thre e mal e s att e mptin g to g a in e ntry into th e b a ck of her house. On e individual w as up on the kitchen deck, another was under the d ec k and the third at the bas e men t doo r . The d ec k is only legitimat e l y a c cessed fr om th e kitchen - there are no step s allo wi ng ac ce ss from the gr ound

. A s FACTS: A c l aim that the verdict was a g ainst the weight of the e v idence requ i res that the court

e x am i ne the record to d e t e rmine whether the fa c t finder's verdict was so c ontr ary to the ev iden c e as to shock one ' s sense of justice and thereby mandate the granting of a new trial. C om m onwealth v . Habay , 934 A.2 d 732 (Pa. Super. 2007), app e al d e nied, 9 54 A.2d 5 7 5 (P a . 2008)

. Whether or not a new tria l s h ould be granted on the grounds that the v erdict is against the weight of t he e v idence is addressed to the sound dis c retion of the tri a l court , whos e de ci sio n w ill not be reversed absent a showing of an abuse of discretion

. C omm o n wea l t h v . Widm er, 560 Pa. 308, 744 A.2d 745 (2000) ; C o mmonw e alth v . Brown 538 P a . 410 , 648 A.2d 1 1 77 (1994 )

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

e v idence in a light most fa v orable to the Commonwealth , and d e termines w hether the e vi den c e present e d at trial, including all reasonable i nferences that may be drawn the re from, was sufficient to prove all of the elements of the crime beyond a rea s onable doubt. Commo n wealt h v . M c Calman, 795 A.2d 412 (Pa. S u per . 2002)

. STANDARD OF REVIEW: Circulated 04/15/2015 12:00 PM3

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. Circulated 04/15/2015 12:00 PM4 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). Circulated 04/15/2015 12:00 PM5 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). Circulated 04/15/2015 12:00 PM6

Date: 12-22-14 ( ) Personal ( ) First Class Mail (X) Interoffice ( ) Other, please specify Type of Service: Hugh Bums, Esquire District Attorney's Office Chief - Appeals Unit 3 South Penn Square Philadelphia, PA 19107 District Attorney: ( ) Perso n al ( ) First Class Mail ( X) Interoffice ( ) Other, pleas e Type of Service: 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 CP-51-CR-0010341-2013 WILIAM BERRY 2087 EDA 2014



### v. CRIMINAL TRIAL DIVISION COMMONWEAL TH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA DATE: 12-22-14 Circulated 04/15/2015 12:00 PM