J-S02022-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL GIDDINGS, 

Appellant.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 701 EDA 2017

Appeal from the Judgment of Sentence, March 16, 2015,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0008546-2013.

BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 23, 2019

Daniel Giddings appeals, nunc pro tunc, from the judgment of sentence

imposed after a jury convicted him of burglary, conspiracy, criminal trespass, 

and two counts of criminal attempt.

1

 After careful review, we affirm.

The trial court summarized the testimony presented by the 

Commonwealth at trial as follows:

At trial, the Commonwealth first presented the testimony 

of Philadelphia Police Officer Daniel Loesch. Officer Loesch 

testified that on March 20, 2013 at approximately 11:46 

a.m., he was on routine patrol with his partner, Officer 

[Ryan] Saunders, when he received a radio call for a

burglary in progress at 2031 North 32nd Street. The officers, 

who were approximately two blocks away, responded to that 

address within 20 to 30 seconds. Upon arrival, Officer 

Loesch immediately observed a green Ford pickup truck 

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1 18 Pa.C.S.A. §§ 3502(a)(2), 903, 3503(a)(1)(i), and 901, respectively.
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parked in front of the residence. In the bed of the truck, 

there were numerous items, including a refrigerator, stove, 

radiator and several pipes. The officers approached the 

residence, which had its front door ajar, and Officer Loesch 

immediately observed two men trying to carry a bathtub out 

the front door; a third man behind them was carrying a 

radiator. Officer Loesch ordered the men to stop, and asked 

them to produce identification to determine if any of them 

lived there. “[N]one of the men could produce . . . any kind 

of credentials that they lived at the residence.”

Officer Loesch testified that, shortly thereafter, the 

owner of the property, Eric Williams, arrived at the scene 

and stated that none of the males had permission to be 

inside. At that point, the three males - - [Giddings], CoDefendant Abdul Bailey, and Benjamin Gardner - - were 

placed under arrest. [Gardner pled guilty to burglary and 

conspiracy prior to trial.] Officer Loesch also was presented 

with various photographs taken at the scene which depicted, 

and he described, the numerous items of property stripped 

from the residence[.]

Philadelphia Police Officer Ryan Saunders testified next 

for the Commonwealth. Officer Saunders testified that, on 

March 20, 2013, he and his partner, Officer Loesch, 

responded to a burglary in progress call at 2031 North 32nd

Street. There, they encountered two males who were trying 

to remove a cast iron bathtub from the residence, and a 

third male carrying a large heater. The males, later 

identified as [Giddings], Co-Defendant Bailey and Benjamin 

Gardner, provided information indicating that they did not 

live at the premises.

Next, the Commonwealth called Eric Williams to the 

stand. Mr. Williams testified that he was the owner of the 

home at issue, which his father transferred to him via deed 

in 1987. Prior to that, his father had owned the home for 

quite a few years. Mr. Williams testified that both he and 

his father had rented the home to Vito Bueano and his family 

for many years. Commencing in late 2011, however, Mr. 

Bueano began falling back on his rental payments, 

prompting Mr. Williams to issue three successive late rent 

notices[.] Mr. Williams thereafter issued Mr. Bueano a 60-

day notice to vacate the premises, no later than May 18, 
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2012. Mr. Bueano moved out of the home on May 1, 2012, 

at which time he surrendered all the keys to the residence.

After Mr. Bueno moved out, Mr. Williams started 

renovating the property to turn it into a duplex. Mr. 

Williams, who worked as a barber, visited the home every 

couple of weeks to perform the renovations. In fact, he had 

been at the home at nine o’clock in the morning on March 

20, 2013 - - the day of the burglary - - to drop off some 

recessed lighting prior to work. Upon receiving a telephone 

call from his father later that day, he returned to the home 

to find several police cars and a pickup truck containing 

numerous items, in addition to items on the sidewalk and in 

the front living room, all of which had been removed from 

his home. . . . Mr. Williams also testified that he did not 

give anyone permission to remove the items from his 

property, and did not know/had never before seen 

[Giddings], Co-Defendant Bailey or Benjamin Gardner.

Finally, Mr. Williams testified that, when he left the 

property on the morning of March 20, he locked the front 

door and there was no damage to it. When he returned later 

that day, however, he found that his front door had been 

broken into: “where the doorknob would be, it was a hole, 

and the outside of it was completely missing. . . . There was 

a hole and you could see straight through. And the wood 

that separates the handle from the outside of the door, it as 

[a] complete hole, like it had been torn out.”

Trial Court Opinion, 12/20/17, at 2-4 (citations and footnotes omitted).

The trial court also summarized the case presented by the defense as 

follows:

For his case in chief, [Giddings] presented the testimony 

of his wife, Raina Giddings, and friend, Benjamin Gardner. 

Mrs. Giddings testified that she was the owner of the green 

Ford pickup truck that contained the items from 2031 North 

32nd Street. She testified that on the previous night, March 

19th, [Giddings] had told her that a friend would be coming 

by to “rent” her truck. She explained that she typically 

rented her truck out to friends for $10. At approximately 

8:30 p.m. that evening, a man she had never met before, 
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“Ben”, came to her door; the man, later identified as 

Benjamin Gardner, was alone at the time. She handed Ben 

the keys to her truck, bud did not receive any rental money 

because, in her words, “I felt that was between him and 

[Giddings].” Nor did she obtain any paperwork or 

documentation from Ben. She simply handed him the keys 

“and that was that”. [While Mrs. Giddings never had 

previously met Gardner, she was acquainted with CoDefendant Bailey as her husband’s friend].

Finally, [Giddings] called Benjamin Gardner to the stand. 

Mr. Gardner testified that on March 20, 2013, he had been 

living at 2031 North 32nd Street for “about six months”. He 

had been living with Vito Bueano - - a friend since childhood 

- - but Vito had moved out “about a month prior”. Before 

living there, Mr. Gardner had lived many years at 2022 

North 32nd Street (right across the street) with his 

grandmother. Although he was not working at the time, he 

claimed the he was paying Vito $300 per month to live there 

through his Social Security check. [Although Gardner 

produced a letter from the Social Security Administration 

addressed to him at 2031 North 32nd Street, it was dated 

July 3, 2103, more than three months after the burglary for 

which he and Giddings were charged].

Mr. Gardner admitted to removing all the items from the 

residence. He claimed that he was planning to so some 

remodeling in the following month. Although he admittedly 

did not have money to pay for the remodeling, he was 

planning to settle a lawsuit from a car accident, and fund 

the project with those proceeds. On March 19, 2013, a 

friend named “Rich” drove him to [Giddings’] house, where 

he rented the pickup truck from [Giddings’] wife. He then 

commenced removing the items from 2031 North 32nd

Street with two friends, [a different man named] Rich and 

Bobby. Mr. Gardner admitted, however, that [Giddings] 

was standing right next to him and the bathtub when police 

arrived, and Co-Defendant Bailey, who is Mr. Gardner’s 

cousin, also was present.

Later on in his testimony, but still on direct examination, 

Mr. Gardner’s story started to change. He claimed that it 

was Vito Bueano who was doing the renovations - - even 

though Vito did not live there anymore - - and Vito wanted 

to “start scrapping it.” When Vito made these plans known 
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to Mr. Gardner, Mr. Gardner volunteered to do the 

“scrapping” for him. Mr. Gardner also admitted to pleading 

guilty to burglary and conspiracy for the events at issue, and 

that, in addition to the burglary conviction, he had been 

convicted of other crimen falsi offenses in 2010.

On cross-examination, Mr. Gardner admitted that he 

never met the landlord in the six months that he claimed to 

live [on] the first floor, front living room of the residence, 

and further, that he told police at the scene, “I had nothing 

in the house to show that I lived there.” Additionally, Mr. 

Gardner admitted that, even though he claimed to be 

actively living there, he removed “two bathtubs, two bath 

sinks, a stove, kitchen sinks, a refrigerator and eight 

radiators, six ceiling lights and copper and iron pipes” - -

i.e., the very items which made the residence habitable. 

Trial Court Opinion, 12/20/17, at 4-6 (citations and footnotes omitted).

Based upon the above evidence, the jury convicted Giddings on all 

charges. On March 16, 2015, the trial court sentenced Giddings to an 

aggregate term of two to eight years of incarceration, followed by five years

of probation. Giddings filed neither a post-sentence motion nor an appeal to 

this Court. On August 3, 2015, he filed a pro se post-conviction petition, which 

sought to reinstate his direct appeal rights nunc pro tunc. Following the 

appointment of new counsel, the parties stipulated to the reinstatement of 

Giddings’ direct appeal rights. This timely appeal followed. Both the trial 

court and Giddings have complied with Pa.R.A.P. 1925. 

In this appeal, Giddings phrases his sole issue as “Whether the evidence 

submitted was insufficient as a matter of law to convict [him] of Burglary (F1), 

Conspiracy (F1), Criminal Trespass (F2) and related charges.” Giddings’ Brief 

at 6 (footnotes omitted). According to Giddings, the evidence presented 
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against him “was wholly insufficient to prove beyond a reasonable doubt that 

[he] had the necessary mens rea to commit the crimes of Burglary, 

Conspiracy, and Criminal Trespass. He then continues:

Evidence was admitted proving conclusively that Gardner 

appeared to reside at 2031 North 32nd Street. Without 

knowing Williams, [the true owner of the property,] 

[Giddings] had no reason not to believe that Gardner was 

licensed to be at the property, and was able to extend that 

license to [Giddings]. Furthermore, [Giddings’] calm 

composure, compliance, and no attempt to flee the scene 

once the police arrived indicate that he did not believe he 

was committing a crime. Therefore, the record is 

completely devoid of any indication that [Giddings] 

intentionally or knowingly entered 2031 North 32nd Street 

with the intent to commit a crime, let alone that he 

conspired to do so, or even knew that a crime was being 

committed at that property.

Giddings’ Brief at 12. 

When evaluating a sufficiency of the evidence claim, this Court is limited 

to considering 

the evidence admitted at trial and all reasonable inferences 

therefrom in the light most favorable to the Commonwealth 

as the verdict winner. An appellate court may not substitute 

its judgment for that of the fact-finder; the critical inquiry is 

not whether the court believes the evidence established 

guilt beyond a reasonable doubt, but whether the evidence 

believed by the fact-finder was sufficient to support the 

verdict. The proper question is not whether the defendant's 

contentions are supported by the record, but whether the 

verdict is so supported.

Commonwealth v. Sinnott, 30 A.3d 1105, 1110 (Pa. 2011). Moreover, “the 

[trier] of fact, while passing upon the credibility of the witnesses and the 
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weight of the evidence produced, is free to believe all, part or none of the 

evidence.” Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) 

(citation omitted). 

We first address Giddings’ sufficiency claim as to his burglary conviction. 

“A person is guilty of burglary if he or she enters a building or occupied 

structure with the intent to commit a crime therein, unless he or she is licensed 

or privileged to enter. 18 Pa.C.S.A. § 3502(a).” Commonwealth v. 

Lambert, 795 A.2d 1010, 1015 (Pa. Super. 2002). In Lambert, we explained 

the jury may find the mens rea for burglary solely through circumstantial 

evidence.

The intent to commit a crime after entry may be inferred

from the circumstances surrounding the incident. While this 

intent may be inferred from actions as well as words, the 

actions must bear a reasonable relation to the commission 

of a crime. Once one has entered a private residence by 

criminal means, we can infer that the person intended a 

criminal purpose based upon the totality of the 

circumstances. The Commonwealth is not required to allege 

or prove what particular crime a defendant intended to 

commit after his forcible entry into the private residence.

Id. at 1022 (citations omitted).

Giddings contended at trial, and maintains in this appeal, that he had 

no knowledge that he was participating in a burglary. According to Giddings, 

he believed Gardner had authority to be on the property and to remove the 

items at issue. Therefore, he claims his criminal acts stemmed from a mistake 

of fact. In support of his contention, Giddings relies on this Court’s previous 

decisions in Commonwealth v. Namack, 663 A.2d 191 (Pa. Super. 1995), 
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and Commonwealth v. Muniem, 303 A.2d 528 (Pa. Super. 1973). In both 

cases this Court reversed the defendants’ convictions because the evidence 

established a bona fide, reasonable mistake of fact, which, under the 

circumstances, negated the element of criminal intent.

In Namack, this Court reversed the defendant’s conviction for defiant 

trespass for using a trail through woods on a neighbor’s property because he 

did so based on any attorney’s advice that he possessed a prescriptive 

easement over the property. In Muniem, this Court reversed the defendant’s 

burglary conviction after he was observed walking to out of a vacant 

warehouse’s half-open door; Muniem ran when the police arrived, but he had 

nothing in his possession. In reversing, this Court explained:

In the instant case, the only evidence produced against 

appellant is his presence, perhaps as a trespasser, in a 

vacant building in daylight about noontime. When found by 

the police, he was walking to the open door by which he 

testified that he entered the building. The owner of the 

building testified that nothing was missing and there was no 

evidence of a [forcible] entry, or possession of any burglary 

tools, other tools or anything else.

Each case must stand on its own facts in determining 

whether the Commonwealth has sustained its burden of 

proof. At best, the evidence of the Commonwealth may give 

rise to suspicion and conjecture of guilt but most certainly 

does not have such volume and quality capable of 

reasonably and naturally justifying an inference of a willful 

and malicious entry into a building with the intent to commit 

a felony so as to overcome the presumption of innocence 

and establish guilt beyond a reasonable doubt of the crime 

of burglary.

Muniem, 303 A.2d at 529.
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Although Giddings claims that his case is analogous to Muniem, his case 

is readily distinguishable. As stated above, “each case must stand on its own 

facts,” and the facts in Giddings’ case are much different from those presented 

in Muniem. Here, police found Giddings coming out of an empty house that 

had been broken into, carrying a household fixture, unlike, Muniem, who had 

no stolen items, but merely was trespassing.

The trial court rejected Giddings’ sufficiency challenge as a matter of 

credibility for the jury to determine. The court reasoned:

[Giddings’] contention that Mr. Gardner and, by extension, 

[Giddings], had permission to be present is strictly a matter 

of credibility particularly vis-à-vis Mr. Williams’ unequivocal 

testimony and documentary evidence to the contrary. As 

such, [Giddings’] contention regarding alleged permission 

goes to the weight, and not the sufficiency, of the evidence. 

In that regard, it is axiomatic that the jury is free to believe 

all, part or none of the evidence. 

Trial Court Opinion, 12/20/17, at 10 (citation omitted).

We agree. Hansley, supra. Giddings and the Commonwealth 

presented two different versions of the same incident, and the jury obviously 

found the Commonwealth’s evidence and arguments more credible and 

persuasive. As the trial court rightly acknowledged, “there simply exists no 

basis for invading [the jury’s] province” where it chooses to believe one 

witness’ testimony over another. Id. Thus, Giddings’ sufficiency challenge to 

his burglary conviction fails. 

This same adverse credibility determination by the jury also renders

meritless Giddings’ claims that the Commonwealth failed to present sufficient 
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evidence that he had the requisite mens rea necessary to convict him for 

conspiracy and criminal trespass. A conviction for conspiracy requires proof 

of a shared criminal intent. Commonwealth v. Knox, 50 A.3d 749, 755 (Pa. 

Super. 2012) (citation omitted). A person commits the crime of criminal 

trespass if, “knowing that he is not licensed or privileged to do so” he “enters, 

gains entry by subterfuge or surreptitiously remains in any building or 

occupied structure[.]” 18 Pa.C.S.A. § 3503(a)(1).

After hearing the evidence, the jury found Giddings guilty of both of 

these charges. Giddings’ claim that the jury “would have had to apply a strict 

liability standard” in order to convict him is meritless. As noted above, the 

jury chose to believe the Commonwealth’s witnesses and their version of the 

case rather than the testimony presented by Giddings. See Commonwealth 

v. Montini, 712 A.2d 761 767-68 (Pa. Super. 1998) (stating “a mere conflict 

in the testimony of the witnesses does not render the evidence insufficient 

because it is within the province of the factfinder to determine the weight to 

be given to the testimony and to believe all, part, or none of the evidence”).

Moreover, circumstantial evidence indicated Giddings was well aware 

that Gardner did not have authority to remove the items from this home. 

Given the relationship of these men, the broken front door, and the type of 

items being removed, a jury could infer that the Commonwealth proved 

Giddings had the requisite mens rea to be convicted of these crimes. 

In sum, viewing the evidence and all reasonable inferences drawn in 

favor of the Commonwealth, we find that the evidence was sufficient for the 
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jury to conclude that Giddings possessed the requisite mens rea for the crimes 

of which he was convicted. Thus, there was sufficient evidence to sustain 

Giddings’ convictions for burglary, conspiracy, and criminal trespass.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/23/19