Com. v. Jordan, D. ( 2014 )

J.S45038/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
DEVON JORDON, :
:
Appellant : No. 2386 EDA 2013
Appeal from the Judgment of Sentence August 9, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0002767-2013
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 08, 2014
Appellant, Devon Jordon, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following a waiver
trial and his convictions for burglary, criminal trespass, theft by unlawful
taking, and receiving stolen property.1 Appellant contends the evidence was
insufficient to find him guilty based solely upon a single palm print found at
the scene of the crime. We affirm.
The victim in this case, Carol Butter, did not know Appellant and had
never seen him before. N.T. Trial, 6/12/13, at 13. At the non-jury trial, she
testified that when she left the house on October 17, 2012, she left her front
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 3502(a), 3503(a)(1)(i), 3921(a), 3925(a).
J. S45038/14
door closed but unlocked. Id. at 12. The facts of this case, as summarized
by the trial court, are as follows:
On October 17, 2012, at approximately 2 p.m., [Butter]
arrived at her home . . . with her grandchildren. She
noticed Appellant [ ] standing in between the storm door
and the front door of her home. Both doors were open.
Appellant told Butter that he was just knocking on her door
to ask if he could use her wifi to access the Internet on his
cell phone. Appellant asked for permission to sit on her
porch and use the wifi. Butter hurried inside her home
with her grandchildren and told Appellant he could use the
wifi on her porch. Appellant sat on Butter’s bench, near
the railing of the porch, for approximately twenty minutes
before leaving.
On October 18, 2012, around 2 a.m., the police
responded to a 9-1-1 call reporting a possible burglary at
Butter’s home. Police told Butter, who had slept through
the incident, that her front window and back door were
open. Police told Butter that the assailant entered
the home through the front window. Butter told police
that her flat screen TV, Wii game system and Wii games,
Comcast box, computer, kitchen knives, music stand, a
wallet, DVD’s, small DVD player, and radio were missing.
Police recovered a large duffle bag and a child’s book bag
from the street. The large bag which [sic] contained the
stolen items. Detective Robert Schill checked Butter’s
home for fingerprints. Detective Schill was able to lift a
total of seven prints. Prints 1-4 came from the front glass
window and prints 5-7 came from the computer, DVD
player, and radio. Appellant’s bottom right palm, print 4,
was present on the front glass window.
On January 16, 2013, Butter was asked to come to
North East Detectives station to try to identify the man she
saw on her porch on October 17, 2012. Butter identified
Appellant out of a photo array.
Trial Ct. Op., 12/11/13, at 1-2 (emphasis added).
At trial, a friend of Butter’s daughter, Alan Serge, testified that he was
-2-
J. S45038/14
sleeping at Butter’s home on the evening of October 17, 2012. N.T. at 34.
He testified, inter alia, as follows:
[Commonwealth]: . . . Did anything cause you to wake up
during the early morning hours of October 18th of 2012?
A: Yes, the police woke us all up saying that there was a
break-in.
* * *
They came in the house and they─actually, the house is
three stories. They came up to the second story, woke up
[Butter], and then everybody else, woke us all up. They
said how many floors is this? We said three floors and
they said there was a break-in so we all had to come
downstairs.
* * *
Q: Did you see the mode of entry used by the perpetrator?
A: Yes.
Q: Where was it?
A: It was the first window right after the door.
* * *
Q: When you went to sleep, what was the condition of the
first floor living room windows [sic] that’s right off the
porch area?
A: The one didn’t lock. So is that what you’re talking
about?
Q: Yes.
A: The one window, I put a piece of PVC pipe in there to
try to lock it.
* * *
-3-
J. S45038/14
Because [Butter] was nervous about someone being on the
porch during that day so we locked all the windows but
that one wouldn’t lock in general.
* * *
Q: . . . When you came down in response to the police
officers telling you there had been a break-in, did you
notice the windows, anything different about the windows?
* * *
A: The window was just open. The pipe didn’t work.
* * *
Q: . . . As a result of this incident, did you have anything
taken, any of your personal belongings?
* * *
A: My wallet.
Id. at 34, 35-36, 38-39 (emphasis added).
The Commonwealth and defense counsel stipulated that if Officer
Rice,2 the first responding officer, were called to testify, she would state as
follows:
[O]n October 18th of 2012 at approximately 2:02 a.m.,
she responded to the [Butter] property . . . . Response
was for radio call of a burglary.
She was met by a neighbor. The neighbor is identified
by name, date of birth, address in [her report]. The
neighbor called the police after noticing the front window
to the property was open. Police did knock on the doors
with negative response.
2
Our review of the record did not reveal Officer Rice’s first name.
-4-
J. S45038/14
. . . [S]he would testify that within 30 minutes of being
there, this large case was presented to her, that from
being found outside on the street and it contained the
aforementioned stolen items, the computer, the computer
tower and . . . the computer keyboard.
And also the [sic] Officer Rice would testify that during
this same period, a child’s backpack was recovered outside
and brought in her presence to [ ] Butter and opened and
that that also had the radio and speakers to the radio
which were inside the property when everybody went to
bed on October 17th of 2012 and now outside the property
on October 18, 2012.
Nothing else was brought or confiscated or recovered
outside in this officer’s presence . . . .
Id. at 48-49.
Appellant did not testify, and the sole evidence he presented was
fingerprint testing results which showed that six fingerprints found were not
a match to his. Id. at 59.
The trial court found Appellant guilty of one count each of burglary and
criminal trespass, and two counts each of theft by unlawful taking and
receiving stolen property. On August 9, 2013, the court imposed a sentence
of eleven and one-half to twenty-three months’ incarceration, plus five
years’ reporting probation for burglary. It assessed no further penalty for
the additional charges. This timely appeal followed.3 Appellant filed a court-
3
Appellant did not file a post-sentence motion. However, a sufficiency of
the evidence claim can be raised for the first time on appeal.
Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011);
Pa.R.Crim.P. 606(A)(7).
-5-
J. S45038/14
ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal 4 and
the trial court filed a responsive opinion.
Appellant raises the following issue for our review:
Was not the evidence insufficient to find Appellant guilty
of burglary and related charges beyond a reasonable doubt
where the evidence of a single palm print at the scene of
the crime did not prove that he entered the property with
the intent to commit a theft, that he stole anything, or that
he was in possession of stolen property?
Appellant’s Brief at 4. He argues5
[t]he sole evidence linking [him] to the scene of the
burglary was one palm print recovered from the
outside glass of a window on the complainant’s
porch, where Appellant had been given permission to be
present the previous day. The Commonwealth failed to
present evidence that Appellant’s palm print, or any
fingerprints attributable to him, were present inside the
house or on items from the house found outside after the
burglary.
Id. at 11 (emphasis added). We find no relief is due.
Our standard of review of a sufficiency of the evidence challenge is to
determine if the Commonwealth established beyond
a reasonable doubt each of the elements of the
4
We note that the trial court granted Appellant’s request for an extension of
time within which to file his Rule 1925(b) statement.
5
Although Appellant avers the evidence was insufficient to prove “he
entered the property with the intent to commit a theft, that he stole
anything, or that he was in possession of stolen property,” Appellant’s Brief
at 11, he fails to set forth the definitions of his offenses. The argument
section of an appellate brief must include “discussion and citation of
authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). Nevertheless, we
decline to find waiver.
-6-
J. S45038/14
offense, considering all the evidence admitted at
trial, and drawing all reasonable inferences
therefrom in favor of the Commonwealth as the
verdict-winner. The trier of fact bears the
responsibility of assessing the credibility of the
witnesses and weighing the evidence presented. In
doing so, the trier of fact is free to believe all, part,
or none of the evidence.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence, and we must evaluate the
entire trial record and consider all evidence received
against the defendant.
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (citation
omitted), appeal denied, 63 A.3d 1243 (Pa. 2013).
Appellant was convicted under the prior burglary statute:6
(a) Offense defined.─A person is guilty of burglary if
he enters a building or occupied structure, or separately
secured or occupied portion thereof, with intent to commit
a crime therein, unless the premises are at the time open
to the public or the actor is licensed or privileged to enter.
See 18 Pa.C.S. § 3502(a).
Appellant was also convicted under the following subsection of the
6
We note that after Appellant was convicted, Section 3502(a) was amended,
effective February 21, 2014, and now provides in pertinent part:
(a) Offense defined.─A person commits the offense of
burglary if, with the intent to commit a crime therein, the
person:
(1) enters a building or occupied structure, or
separately secured or occupied portion thereof that is
adapted for overnight accommodations in which at the
time of the offense any person is present . . . .
See 18 Pa.C.S. § 3502(a)(1).
-7-
J. S45038/14
criminal trespass statute: “A person commits an offense 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 or
separately secured or occupied portion thereof[.]” See 18 Pa.C.S. §
3503(a)(1)(i). Theft by unlawful taking is defined as follows: “A person is
guilty of theft if he unlawfully takes, or exercises unlawful control over,
movable property of another with intent to deprive him thereof.” 18 Pa.C.S.
§ 3921(a). Finally, receiving stolen property is defined as: “A person is
guilty of theft if he intentionally receives, retains, or disposes of movable
property of another knowing that it has been stolen, or believing that it has
probably been stolen, unless the property is received, retained, or disposed
with intent to restore it to the owner.” 18 Pa.C.S. § 3925(a).
In Commonwealth v. Hunter, 338 A.2d 623 (Pa. Super. 1975), a
burglary occurred in an electronics plant. Id. at 624. A piece of sheet metal
had previously been placed on a broken window in the plant. Id. An
employee discovered that the sheet metal was removed. Id. The detective
later concluded that the broken window “was the method used to gain entry
to the building.” Id. The detective “lifted several fingerprints from the
premises, including one from the sheet metal,” and “determined that only
one of the prints was identifiable[;]” a fingerprint from the sheet metal
matched the defendant. Id.
The defendant argued that the evidence was insufficient to convict him
-8-
J. S45038/14
of burglary. Id. at 625. He contended that “it [was] just as reasonable to
conclude the fingerprint was impressed on the visit ‘a couple of weeks’ prior
to the burglary on his brief visit seeking employment.” Id. This Court
disagreed and opined:
[T]he [defendant’s] fingerprint was found at the place of
illegal entry to the burglarized premises, was not in a
public place where [the defendant] may have had
legitimate innocent contact, was not in a readily accessible
place for legitimate innocent contact, was not on an object
that was readily movable and in common usage and was
impressed at or about the time of the crime.
Under these circumstances the Commonwealth’s
case is more than the fingerprint; it is a chain of
circumstantial evidence that is more than suspicion or
conjecture. The evidence is sufficient to sustain the
[defendant’s] conviction.
Id. at 625 (emphases added), cited with approval in Commonwealth v.
Pettyjohn, 64 A.3d 1072, 1077 (Pa. Super. 2013); Commonwealth v.
Donohue, 62 A.3d 1033, 1037 (Pa. Super. 2013), appeal denied, 74 A.3d
125 (Pa. 2013).
In the case sub judice, the trial court opined:
[T]he fact that Appellant’s prints were not found on the
stolen items does not mean that the evidence is
insufficient to convict him of burglary. Appellant was
discovered on Butter’s porch, standing in between her
storm door and her front door, with the front door open.
The following morning, Butter’s home was burglarized and
police discovered that the burglar entered the home during
the night when its occupants were sleeping. The point of
entry was through the front glass window located on the
porch. Appellant’s bottom right palm print was found on
the front glass window. The fact that Appellant was on
Butter’s property the day before the burglary and had
-9-
J. S45038/14
opened her door without permission is indicative of intent
to break into the home and commit a crime therein.
Appellant’s palm print was found on the same window that
served as the entry point for the burglar. The fact that
Appellant’s fingerprints were not found on the stolen items
does not mean that Appellant did not break into Butter’s
home.
The credibility and weight of the witnesses’ testimony is
for the finder of fact to determine. Viewed in the light
most favorable to the Commonwealth as verdict winner,
the evidence presented at trial was sufficient to support
the verdict of guilty of burglary in the first degree . . . .
Trial Ct. Op. at 4-5. We agree.
In the case sub judice the Commonwealth has presented more
evidence than a mere palm print. See Hunter, 338 A.2d at 625. The
Commonwealth showed that earlier in the day of the burglary, Appellant was
on Butter’s porch, between the screen door and front door, both of which
were open. Butter testified that when she left her house that day, the doors
were closed, albeit unlocked. Appellant sat on her porch for twenty minutes
before leaving. Meanwhile, Butter’s porch window did not lock. The police
determined that the assailant entered through the front window, and
Appellant’s palm print was found on this window. We do not disturb the
finding of the trial court, who sat as finder of fact, that the Commonwealth
established “a chain of circumstantial evidence that is more than suspicion or
conjecture.” See Hunter, 338 A.2d at 625. We discern no abuse of
discretion by the trial court. See Brown, 48 A.3d at 430.
Judgment of sentence affirmed.
- 10 -
J. S45038/14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/8/2014
- 11 -