Com. v. Holloway, I., Sr. ( 2016 )

J-S62039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
IVAN T. HOLLOWAY, SR.
Appellant No. 63 MDA 2016
Appeal from the Judgment of Sentence December 16, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0005408-2014
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 15, 2016
Appellant, Ivan T. Holloway, Sr., appeals from the judgment of
sentence entered in the Dauphin County Court of Common Pleas, following
his jury trial convictions of three counts of burglary and one count each of
flight to avoid apprehension and attempted burglary.1 We reverse
Appellant’s conviction for flight to avoid apprehension and affirm the
remaining convictions. Because reversal of the conviction for flight to avoid
apprehension will not upset the overall sentencing scheme, however, we
decline to remand for resentencing; and, we affirm the judgment of
sentence.
The trial court opinion fully sets forth the relevant facts of this case.
____________________________________________
1
18 Pa.C.S.A. §§ 3502, 5126, and 901, respectively.
J-S62039-16
Therefore, we will only briefly summarize them. On September 20, 2014, a
neighbor observed Appellant removing items from the garage of 1614 Herr
Street, in a cart, and reported Appellant’s behavior to police. While
responding to the burglary complaint, police encountered and attempted to
initiate contact with Appellant, who matched the complaint description and
was walking with a cart containing various items. When police directed him
to stop, Appellant abandoned the cart and ran from police. Police pursued
Appellant to the rear of the residence at 236 North 15th Street, where an
officer drew his firearm and commanded Appellant to stop. Appellant
continued to run from police and unsuccessfully attempted to enter 236
North 15th Street by throwing his body into the back door, which Appellant
dented. Appellant then entered two residences, 238 and 240 North 15 th
Street, before police detained him. While inside 238 North 15 th Street,
Appellant removed a clothes washer and dryer from the wall to barricade a
door. Appellant also damaged a window in 240 North 15th Street. Appellant
did not have permission to enter the garage or the North 15 th Street homes.
The owner of 1614 Herr Street identified as hers the items police recovered
from the cart Appellant had abandoned.
On September 20, 2014, the Commonwealth charged Appellant with
several counts of burglary and related offenses. Following a three-day trial,
on October 28, 2015, a jury found Appellant guilty of three counts of
burglary and one count each of flight to avoid apprehension and attempted
-2-
J-S62039-16
burglary. With the benefit of a pre-sentence investigation (“PSI”) report, the
court held a sentencing hearing on December 16, 2015. At the conclusion of
the hearing, the court sentenced Appellant to twelve (12) to sixty (60)
months’ imprisonment for the burglary of the 1614 Herr Street garage; six
(6) to twenty (20) years’ imprisonment for the burglary of 240 North 15 th
Street consecutive to the term for the garage burglary; and two concurrent
terms of eighteen (18) to thirty-six (36) months’ imprisonment each for the
attempted burglary of 236 North 15th Street and the burglary of 238 North
15th Street, concurrent with the sentence for the 240 North 15 th Street
burglary. The court imposed no sentence on the flight to avoid
apprehension count. In total, the court sentenced Appellant to an aggregate
term of seven (7) to twenty-five (25) years’ incarceration.
Appellant timely filed an amended post-sentence motion on December
22, 2015, which the court denied on December 31, 2015.2 Appellant timely
filed a notice of appeal on January 8, 2016. On January 19, 2016, the court
ordered Appellant to file a concise statement of errors complained of on
appeal, pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on January
28, 2016.
Appellant raises three issues for our review:
WHETHER THE TRIAL COURT ERRED IN DENYING
____________________________________________
2
The certified record does not indicate when Appellant filed his original post-
sentence motion.
-3-
J-S62039-16
APPELLANT’S POST-SENTENCE MOTION WHERE THE
VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE
SO AS TO SHOCK ONE’S SENSE OF JUSTICE WHERE THE
COMMONWEALTH NEVER SHOWED THAT…APPELLANT
ENTERED THE GARAGE OF 1614 HERR STREET AND
THEREFORE COMMITTED THE CRIME OF BURGLARY?
WHETHER THE COMMONWEALTH FAILED TO PRESENT
SUFFICIENT EVIDENCE TO SUSTAIN APPELLANT’S
CONVICTIONS WHERE THE COMMONWEALTH DID NOT
PROVE THAT APPELLANT FLED TO AVOID APPREHENSION
ON A PREVIOUS CHARGE OR CONVICTION, NOR DID [IT]
PROVE THAT APPELLANT INTENDED TO COMMIT A CRIME
IN ANY OF THE HOUSES ON NORTH 15TH STREET, PRIOR
TO ENTERING?
WHETHER THE TRIAL COURT ERRED IN DENYING
APPELLANT’S POST-SENTENCE MOTION WHERE HIS
SENTENCE IS EXCESSIVE AND UNREASONABLE AND
CONSTITUTES TOO SEVERE A PUNISHMENT IN LIGHT OF
APPELLANT’S REHABILITATIVE NEEDS, THE GRAVITY OF
THE OFFENSE, AND WHAT IS NEEDED TO PROTECT THE
PUBLIC?
(Appellant’s Brief at 8).3
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable William T.
Tully, we conclude Appellant’s weight issue merits no relief. The trial court
opinion comprehensively discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed March 7, 2016, at 3-6, 11)
(finding: owner of 1614 Herr Street testified she did not give Appellant
permission to enter garage, and items in Appellant’s cart were hers;
____________________________________________
3
For the purposes of our disposition, we have reordered Appellant’s issues.
-4-
J-S62039-16
neighbor of 1614 Herr Street testified he had observed Appellant removing
items from garage and called police; responding officer encountered
Appellant, who matched complaint description, with cart containing various
items; trying to evade police, Appellant unsuccessfully attempted to enter
one home and successfully entered two other homes on North 15 th Street;
weight of evidence supports jury’s findings). The record supports the court’s
reasoning; therefore, we have no reason to disturb it. Accordingly, we
affirm as to Appellant’s weight claim on the basis of the trial court opinion.
In his second issue, Appellant argues the Commonwealth failed to
present evidence at trial to demonstrate Appellant had previously been
charged with or convicted of an offense, from which Appellant fled on
September 20, 2014. Appellant submits the evidence at trial was insufficient
to support his conviction for flight to avoid apprehension. Appellant
contends the Commonwealth failed to present evidence that Appellant had
intended to commit a crime inside the North 15th Street homes, other than
to run from the police. Because the evidence was insufficient to support his
conviction for flight to avoid apprehension, Appellant asserts the evidence
was also insufficient to support his convictions for the three North 15 th Street
burglaries. Appellant concludes this Court should vacate his convictions for
flight to avoid apprehension, attempted burglary of 236 North 15 th Street,
and burglary of 238 North 15th Street and 240 North 15th Street,
respectively. We agree in part.
-5-
J-S62039-16
With respect to a sufficiency claim:
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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
The Crimes Code defines the offense of flight to avoid apprehension,
trial or punishment, as follows:
§ 5126. Flight to avoid apprehension, trial or
punishment
(a) Offense defined.—A person who willfully
conceals himself or moves or travels within or outside this
Commonwealth with the intent to avoid apprehension, trial
or punishment commits a felony of the third degree when
the crime which he has been charged with or has been
convicted of is a felony and commits a misdemeanor of the
-6-
J-S62039-16
second degree when the crime which he has been charged
with or has been convicted of is a misdemeanor.
(b) Exception.—Subsection (a) shall not apply to a
person set at liberty by court order who fails to appear at
the time or place specified in the order.
18 Pa.C.S.A. § 5126. This Court has stated:
[T]he plain language of the statute requires that the
defendant intend to avoid apprehension, trial or
punishment. … [N]othing in the statutory language
requires that police have knowledge of the underlying
charge or conviction. It is sufficient for the defendant to
intentionally elude law enforcement to avoid apprehension,
trial or punishment on a charge or conviction.
Commonwealth v. Steffy, 36 A.3d 1109, 1111-12 (Pa.Super. 2012). The
statute requires the defendant to have been previously charged with or
convicted of a crime at the time the defendant fled. Commonwealth v.
Phillips, 129 A.3d 513, 518-19 (Pa.Super. 2015).
The burglary statute provides, in relevant part, as follows:
§ 3502. Burglary
(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;
(2) 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 no person is present;
* * *
-7-
J-S62039-16
(4) enters a building or occupied structure, or
separately secured or occupied portion thereof that is
not adapted for overnight accommodations in which at
the time of the offense no person is present.
18 Pa.C.S.A. § 3502(a)(1), (2), (4). “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.” Commonwealth v. Lambert,
795 A.2d 1010, 1022 (Pa.Super. 2002) (en banc), appeal denied, 569 Pa.
701, 805 A.2d 521 (2002) (citing Commonwealth v. Alston, 539 Pa. 202,
651 A.2d 1092, 1095 (1994)). “The intent to commit a crime after entry
may be inferred from the circumstances surrounding the incident.” Id.As a preliminary matter, issues not raised in a Pa.R.A.P. 1925(b)
statement will be deemed waived for appellate review. Commonwealth v.
Castillo, 585 Pa. 395, 888 A.2d 775 (2005). A Rule 1925(b) statement that
is not specific enough for the trial court to identify and address the issues
the defendant wishes to raise on appeal may also result in waiver.
Commonwealth v. Reeves, 907 A.2d 1 (Pa.Super. 2006), appeal denied,
591 Pa. 712, 919 A.2d 956 (2007).
When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.
When an appellant fails adequately to identify in a concise
manner the issues sought to be pursued on appeal, the
trial court is impeded in its preparation of a legal analysis
which is pertinent to those issues. In other words, a
Concise Statement which is too vague to allow the court to
identify the issues raised on appeal is the functional
equivalent of no Concise Statement at all.
-8-
J-S62039-16
Id. at 2.
Instantly, Appellant did not specifically challenge the flight to avoid
apprehension conviction in his Rule 1925(b) statement. Thus, Appellant’s
flight to avoid apprehension claim is arguably waived. See Reeves, supra.Nevertheless, in an abundance of caution, in the interest of judicial
economy, and to the extent we can elicit the flight to avoid apprehension
challenge from Appellant’s Rule 1925(b) statement, we choose to address it
on appeal. The record demonstrates, and the Commonwealth concedes, the
Commonwealth presented no evidence at trial to establish that Appellant had
been charged with or convicted of an offense prior to September 20, 2014,
to support a flight to avoid apprehension charge. See Phillips, supra.
Accordingly, we reverse Appellant’s flight to avoid apprehension conviction.
We observe the court did not sentence Appellant on the flight to avoid
apprehension count. Accordingly, our disposition does not affect the overall
sentence, and we decline to remand for resentencing on this basis.
Appellant’s convictions for attempted burglary and burglary of the
North 15th Street residences, however, are sound. Although the record does
not establish Appellant intended to flee from apprehension when he entered
the residences, the Commonwealth’s failure to plead or prove what offense
Appellant did intend to commit does not affect Appellant’s convictions for
attempted burglary and burglary of the North 15th Street residences. See
Lambert, supra. Accordingly, we affirm Appellant’s North 15th Street
-9-
J-S62039-16
attempted burglary and burglary convictions.
In his third issue, Appellant argues his sentence is excessive because
the court did not properly consider mitigating factors under 42 Pa.C.S.A. §
9721, including the gravity of the offense, Appellant’s rehabilitative needs,
and his history and character. Appellant submits he did not injure anyone
and did not steal anything during the events in question. Appellant claims
he has eight children and five grandchildren, and suffers from sarcoidosis of
the lungs. Appellant submits he did not deny his actions on the day in
question and evaded police out of fear. Appellant concludes the court
abused its discretion by imposing an excessive sentence. Appellant’s
challenge is to the discretionary aspects of his sentence. See
Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim
that sentence is manifestly excessive challenges discretionary aspects of
sentencing). See also Commonwealth v. Dodge, 77 A.3d 1263, 1268
(Pa.Super. 2013), appeal denied, 625 Pa. 648, 91 A.3d 161 (2014) (stating
argument that court disregarded factors, such as rehabilitation and nature
and circumstances of offenses, implicates discretionary aspects of
sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
- 10 -
J-S62039-16
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a motion to modify
the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d
788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The requirement that an appellant separately set forth the
reasons relied upon for allowance of appeal ‘furthers the purpose evident in
the Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision
to exceptional cases.’” Commonwealth v. Phillips, 946 A.2d 103, 112
(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d
- 11 -
J-S62039-16
240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387
(Pa.Super. 1989) (en banc) (emphasis in original)).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Anderson, 830
A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra at 912-13 (quoting Commonwealth v.
Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567
Pa. 755, 790 A.2d 1013 (2001)).
A claim that a sentence is manifestly excessive might raise a
substantial question if the appellant’s Rule 2119(f) statement sufficiently
articulates the manner in which the sentence imposed violates a specific
provision of the Sentencing Code or the norms underlying the sentencing
process. Mouzon, supra at 435, 812 A.2d at 627. Nevertheless, as a
general rule, “[a]n allegation that a sentencing court ‘failed to consider’ or
‘did not adequately consider’ certain factors does not raise a substantial
question that the sentence was inappropriate.” Commonwealth v. Cruz-
Centeno, 668 A.2d 536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653,
676 A.2d 1195 (1996) (quoting Commonwealth v. Urrutia, 653 A.2d 706,
710 (Pa.Super. 1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)).
- 12 -
J-S62039-16
See also Commonwealth v. Kane, 10 A.3d 327, 335-36 (Pa.Super. 2010),
appeal denied, 612 Pa. 689, 29 A.3d 796 (2011) (stating bald claim that
sentencing court “failed to consider” factors set forth in 42 Pa.C.S.A.
9721(b) does not raise substantial question). Moreover, where the
sentencing court had the benefit of a PSI, the law presumes the court was
aware of and weighed relevant information regarding a defendant’s
character along with mitigating statutory factors. Commonwealth v.
Tirado, 870 A.2d 362, 366 n.6 (Pa.Super. 2005).
Instantly, Appellant’s bald assertion that the court improperly weighed
the mitigating factors does not raise a substantial question. See Cruz-
Centeno, supra. The court had the benefit of a PSI report. (See N.T.
Sentencing Hearing, 12/16/15, at 2.) Therefore, we can presume the court
considered the relevant information and mitigating factors. See Tirado,
supra. Accordingly, Appellant is not entitled to relief on his challenge to the
discretionary aspects of sentencing; and we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/15/2016
- 13 -
Circulated 11/01/2016 10:04 AM
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
v.
NO. 63 MDA 2016
IVAN HOLLOWAY,
Defendant/Appellant TRIAL COURT NO. 5408 CR 2014
OPINION
[Pursuant to Pa. R.A.P. 1925(a)]
Presently before the Superior Court of Pennsylvania is the appeal of Ivan
Holloway (hereinafter "Defendant" or "Appellant") from our Order of December 30, 2015,
denying his Post-Sentence Motions.
PROCEDURAL HISTORY
On September 20, 2014, Defendant was charged with two (2) counts Burglary -
Overnight Accommodation, Person Present1, one (1) count Burglary - Not Adapted for
Overnight Accommodation, No Person Present2, three (3) counts Criminal Mischief -
Damage Property'; one (1) count Flight to Avoid Apprehensionffrial/Punishment4, one
(1) count Criminal Trespass - Break into Structure5, arid one (1) count Criminal Attempt
- Burglary - Overnight Accommodation, Person Present6. Defendant's three (3) counts
of Criminal Mischief and one (1) count of Criminal Trespass were subsequently
withdrawn.
A jury trial was held before the Honorable William T. Tully on October 26 through
28, 2015 and Defendant was found guilty of the remaining counts - (1) Burglary - Not
Adapted for Overnight Accommodation, No Person Present (1614 Herr Street); (2)
1
18 Pa.C.S.A. § 3502(a)(1).
2
18 Pa.C.S.A. § 3502(a)(4).
3
18 Pa.C.S.A. § 3304(a)(5).
418
Pa.C.S.A. § 5126(a).
518
Pa.C.S.A. § 3503(a)(1)(ii).
6
18 Pa.C.S.A. § 901 (a).
Criminal Attempt - Burglary - Overnight Accommodation, Person Present (236 N. 15th
Street); (3) Burglary - Overnight Accommodation, No Person Present (238 N. 151h
Street); (4) Burglary - Overnight Accommodation, Person Present (240 N. 15th Street);
and (5) Flight to Avoid Apprehension, Trial, or Punishment. Sentencing was deferred
pending a pre-sentence investigation. On December 16, 2015, this Court sentenced
Defendant to an aggregate term of seven (7) to twenty-five (25) years of incarceration at
a State Correctional Institution, broken down as follows:
• Count 1 -twelve (12) to sixty (60) months incarceration;
• Count 2 - aggregate term of eighteen (18) to thirty-six (36) months
incarceration, concurrent with Count 4;
• Count 3 - aggregate term of eighteen (18) to thirty-six {36) months
incarceration, concurrent with Count 4;
• Count 4 - six (6) to twenty (20) years incarceration, consecutive with Count 1;
• Count 5 - no further penalty imposed.
Defendant received time credit from September 20, 2014 through December 16,
2015. On December 22, 2015 Defendant filed a Post-Sentence Motion. Defendant filed
an Amended Post-Sentence Motion on December 23, 2015 which was subsequently
denied. Defendant filed a Notice of Appeal on January 8, 2016. On January 19, 2016,
Defendant was directed to file a Concise Statement of Errors Complained of on Appeal.
Appellant's Statement of Errors Complained of on Appeal
Appellant alleges the following errors:
1. The Commonwealth failed to present sufficient evidence to sustain
Appellant's convictions where the Commonwealth did not prove; inter alaia
[sic], that AppeHant intended to commit a crime in any of the building [sic] he
entered.
2. The trial court erred in denying Appellant's Post-Sentence Motion where the
verdict was against the weight of the evidence so as to shock one's sense of
justice where the Commonwealth never showed, inter a/aia [sic], that
Appellant intended to commit a crime in any of the building [sic] he entered.
3. The trial court erred in denying Appellant's Post-Sentence Motion where
Appellant's sentence was excessive and unreasonable and constitutes too
severe a punishment in light of the gravity of the offense, the impact on the
community, and Appellant's rehabilitative needs. The punitive measures
inherent in the sentencing scheme could have been accomplished by the
imposition of a lesser and/or concurrent sentence.
(Statement of Errors, January 28, 2016).
FACTUAL BACKGROUND
On September 20, 2014, Timothy Zerbe· (hereinafter "Mr. Zerbe") was inside his
home when he heard noises from the alleyway. (Notes of Testimony, Trial 10/26-28/15
("N.T. Trial") at 42-43.) At approximately 7:00 A.M., Mr. Zerbe went outside to
investigate where the sound was coming from. (N.T. Trial at 43). In doing so, he
observed Appellant coming out of the yard of 1614 Herr Street carrying a number of
items. (N.T. Trial at 44). Mr. Zerbe asked Appellant if he had permission to be in the
yard, and he responded no. (kt) Mr. Zerbe then informed Appellant that he did not
care what Appellant does in the alleyway, but warned him to keep out of the yard and
garage at 1614 Herr Street. (lgJ A number of items had spilled out into the alleyway
and had remained there for two (2) to three (3) months. (gL) Mr. Zerbe explained that
he did not care whether Appellant wanted to go through the items in the alleyway
because he considered those to be trash. (N.T. Trial at 44, 46, 53).
After the initial contact with Appellant, Mr. Zerbe walked over to a neighbor's
home on 1ih Street. (N.T. Trial at 47). Upon his return home, he observed Appellant
picking through the stuff that was in the alleyway. (kt) At approximately 9:00 A.M., Mr.
Zerbe went to his car to run an errand and heard noises again. _(N.T. Trial at 47). He
pulled his car down the street to a place where· he was able to see directly into the
garage at 1614 Herr Street and saw Appellant taking things from the Qarage. (N.T. Trial
at 47-48, 54). At that point, Mr. Zerbe decided to call the police. (N.T. Trial at 48, 54).
Officer Matthew Galleup (hereinafter "Officer Galleup") of the Harrisburg City
Police Department responded to the call in a marked vehicle. (N.T. Trial at 56-57, 58).
On his way to the address, Officer Galleup came into contact with Appellant, who
matched the description of the suspect (black male wearing a gray hat and gray hooded
sweatshirt pushing a shopping cart), in the area of 15th and Briggs Streets. (N.T. Trial at
57-58). Officer Gaelleup tried to initiate contact with Appellant on three (3) occasions
and was unsuccessful. (N.T. Trial at 58). The first two (2) times, Appellant did not
· acknowledge Officer Galleup's calls to talk to him. ~) The third time, Officer Galleup
told Appellant to stop so he could speak with him. (N.T. Trial at 59). Appellant then
pushed the shopping cart away and began to run away from Officer Galleup - a chase
ensued. ~) At this point, Officer Galleup testified that he never informed Appellant of
why he wanted to talk with him, but believed he found the suspect who was the subject
of the initial police call. (N.T. Trial at 69-70).
Officer Christopher Thomas (hereinafter "Officer Thomas") also responded to the
call and arrived on scene while Officer Galleup was engaged in a foot chase of
Appellant, and he assisted in the chase. (N.T. Trial at 88-89). Officer Galleup came into
contact with Appellant again to the rear of 236 North 15th Street. (lgJ He drew his gun
and gave Appellant commands to lie down on the ground and show his hands, but
Appellant continued to try and run away. (N.T. Trial at 60, 72). Appellant ran towards
the back door of 236 North 15th Street and started throwing his shoulder into it in an
attempt to get. inside. {ld.) While doing so, Officer Galleup testified that Appellant was
yelling that he lived there. (N.T. Trial at 60-61). Appellant was unsuccessful in gaining
entry, but caused the door to be dented. (N.T. Trial at 61). Officer Galleup then
observed Appellant climb the fence and wall separating 236 and 238 North 15th Street.
(ill) At that point, Officer Galleup lost visual sight of Appellant, but heard what sounded
like a door being kicked and then shutting. (ill) Officer Galleup then went around to
the front of the home to secure the door, and while he was on the porch, residents from
236 came outside and asked if he was the person banging on their back door. (N.T.
Trial at 61-62).
While Officer Galleup was out front, Officer Thomas subsequently gained entry to
the rear of 238 North 15th Street, along with Officer Cynthia Kreiser (hereinafter "Officer
Kreiser") and heard footsteps running up the steps. (N.T. Trial at 89-90). Officer Kreiser
testified that a dryer was pushed in front of the back door. (N.T. at 97). Upon reaching
the second floor, Officer Thomas saw that the back window was open. (N.T. Trial at
90). After a few minutes, he was notified by other officers that Appellant was in the
home on the opposite side from where they were. llil) Officers Galleup and Thomas
were informed by radio that Appellant had exited a third floor window of 238 North is"
Street, run across the roof to 240, and entered 240 North 15th Street through a window.
(N.T. Trial at 62-63).
Appellant quickly came back out of 240 through the same window and back
towards 238. (N.T. Trial at 63). At this point, Officer Kreiser just began climbing the
third floor steps of 238 North 15th Street where she saw a male "standing there with his
hands getting ready to push the window back open to come back through." (N.T. at 97-
98). She then yelled for Appellant to show his hands (N.T. Trial at 98). Appellant
began backing away from the window as Officer Kreiser reached the top of the steps.
(kl) Officer Kreiser stated that she had her weapon out at this point, and went out on to
the roof where Appellant was. (lg,_) Appellant was standing at the edge when Officer
Kreiser again commanded that he show his hands. (lg.J That is when Appellant jumped
from the roof and was apprehended by officers who were on the ground. (N.T. Trial at
99).
Upon arrest, Appellant was searched and officers found two (2) receipts from
Consolidated Scrapping Resources on Cameron Street. (N.T. Trial at 63-54). The
receipts were dated September 20, 2014 and time-stamped at 8:06 A.M. and 9:51 A.M.7
(N.T. Trial at 65). ·
DISCUSSION
A. SUFFICIENT DIRECT AND CIRCUMSTANTIAL EVIDENCE SUPPORTS THE
GUil TY VERDICTS
Appellant first alleges that the Commonwealth failed · to present sufficient
evidence to prove Appellant intended to commit a crime in any of the buildings he
entered. The standard for review of a claim of lack of sufficiency is well settled:
whether, viewing all evidence admitted at trial, together with all reasonable
inference therefrom, in the light most favorable to the Commonwealth, the
trier of fact could have found that each element of the offense charged
was supported by evidence and inferences sufficient in law to prove guilt
beyond a reasonable doubt.
Commonwealth v. Yanoff, 690 A.2d 260, 263 (Pa. Super. 1997).
7
The receipts were marked and admitted into evidence as Commonwealth Exhibit 4 (8:06 AM.) and
Exhibit 5 (9:51 A.M).
In applying this test, the enter record must be considered and "the trier of fact, in
passing upon the credibility of witnesses and the weight of the evidence produced, is
free to believe all, part, or none of the evidence presented." Mere conflict in the
testimony or the fact that a judge on the same facts would have arrived at a different
conclusion does not warrant a new trial."
In Pennsylvania, burglary is defined as an unauthorized entry with the intent to
commit a crime after entry." This intent must be formed contemporaneous to the
entering, and is determined by using a totality of the circumstances test.11 "The
Commonwealth may prove its case by circumstantial evidence, and the specific intent to
commit a crime necessary to establish the second element of burglary may thus be
found in the Defendant's words or conduct, or from the attendant circumstances
together with all reasonable inferences therefrom."12 Further, the Commonwealth is not
required to allege or prove what particular crime a defendant intended to commit after
an unauthorized entry into a building or occupied structure.13
In the instant case, the Commonwealth presented sufficient evidence to support
the finding that Appellant committed the crimes. With regard to 1614 Herr Street, the
Commonwealth presented the testimony of Mr. Zerbe, Officer Galleup and Lily Chang
("Ms. Chang"). Ms. Chang was the owner of 1614 Herr Street at the time of the
incident, but was not residing here. (N.T. Trial at 77-78). She testified that she did not
B Id.9
Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000).
1018
Pa.C.S.A. § 3502.
11
Commonwealth v. Magnum, 654 A.2d 1146, 1147 (Pa. Super. 1995).
12
Commonwealth v. Tingle, 419 A.2d 6, 9 (Pa. Super. 1980) citing Commonwealth v. Madison, 397 A.2d
818, 823(Pa 1979).
13
Commonwealth v. Alston, 651 A.2d 1092, 1095 (Pa. 1994).
give Appellant permission to go into the garage on her property, and that the items in
the shopping cart were hers. (N.T. Trial at 78-79)
As described above, Mr. Zerbe testified regarding his contact with Appellant on
three (3) occasions the morning of September 20, 2014. The first contact was when he
first saw Appellant and inquired whether he had authorization to be in the garage of
1614 Herr Street, and advised him not to go into the garage or yard of the property.
The second contact was upon Mr. Zerbe's return from a neighbor and he saw Appellant
going through the items in the alleyway. The last contact was when Mr. Zerbe called
the police after observing Appellant removing things from the garage at 1614 Herr
Street.
The testimony of Officer Galleup described the events as they unfolded on
September 20, 2014 beginning with his initial contact with Appellant in the area of 15th
and Briggs Street, up until the point Appellant was detained and transported for
booking.14 It was Officer Galleup's belief that Appellant matched the description of the
suspect of the call to which he was responding. Based upon the totality of the
circumstances, the Commonwealth presented sufficient testimony to sustain a
conviction of Burglary at 1614 Herr Street.
With regard to 238 North 15th Street, the Commonwealth presented the testimony
of Andrea Vaughan (hereinafter "Ms. Vaughan"), Officer Galleup, Officer Thomas, and
Officer Kreiser. Officer Galleup testified that he tried to engage Appellant three (3)
times before Appellant fled. Officer Galleup chased Appellant to the rear of 236 North
15th Street. In an attempt to evade police, Appellant tried to enter 236 North 15th Street
and was unsuccessful. Rather than stop and talk to the police officers who were
14
This testimony is described in more detail above.
chasing him, Appellant decided to jump the fence to the rear of 238 North 15th Street
where he gained entry. Appellant was then seen by officers exiting the window of 238
North 15th Street, running across the roof to 240 North 15th Street, entering 240 North
is" Street through a window, quickly exit through the same window, run back towards
238 North 15th Street, and eventually jump off the roof to the ground where he was
detained. There were approximately ten (10) officers between Harrisburg City Police
Department and the Capitol Police Department involved.
Ms. Vaughan was the owner of 238 North 15th Street on the day of the incident.
She testified that she did not give Appellant permission to enter her home. (N.T. Trial at
83). She indicated that she was not home at the time, but arrived home to find officers
still outside of her home. (kl) The back door was completely broken and the washer
and dryer were ripped from the wall as they were used to barricade the back entrance.
(N.T. Trial at 84). Based upon the totality of the circumstances, the Commonwealth
presented sufficient evidence for a jury to reasonably infer that Appellant intended to
commit the crime of flight to avoid apprehension when he entered 238 North is" Street
without permission.
With regard to 240 North 15th Street, the Commonwealth presented the testimony
of Raul Velasco (hereinafter "Mr. Velasco") and Officer Galleup. Mr. Velasco was the
owner of 240 North is" Street at the time of the incident. (N.T. Trial at 85). He testified
that he did not give Appellant permission to enter his home. (N.T. Trial at 86). He also
stated that he and his wife were home at the time and that his wife heard a noise and
went to investigate. (N.T. Trial at 85). When she opened to the door to her son's room,
. she saw Appellant closing the closet door and screamed. (kh) By the time Mr. Velasco
ran up the stairs, Appellant had already gone out the same window he came in. (~)
Although Mr. Velasco stated that the window was not locked, it was damaged to the
point where he need to purchase a new window and frame. (N.T. Trial at 86-87).
Based upon the totality of the circumstances, the Commonwealth presented
sufficient evidence for a jury to reasonably infer that Appellant intended to commit the
crime of flight to avoid apprehension when he entered 240 North 15th Street without
permission. Therefore, this Court finds that the Commonwealth presented sufficient
evidence to sustain a conviction for three (3) counts of Burglary (1614 Herr Street, 238
North 15th Street, and 240 North 15th Street).
B. THE WEIGHT OF THE EVIDENCE SUPPORTS THE GUil TY VERDICTS ON
CHARGES OF BURGLARY.
Appellant next alleges that this Court erred in denying his Post-Sentence Motion
because the verdict was against the weight of the evidence.
It is well established that:
A true weight of the evidence challenge 'concedes that sufficient evidence
exists to sustain the verdict' but questions which evidence is to be
believes. An appellate court may review the trial court's decision to
determine whether there was an abuse of discretion, but It may not
substitute its judgment for that of the lower court. Indeed, an appellate
court should not entertain challenges to the weight of the evidence since
[the appellate court's] examination is confined to the "cold record" [and]
may not reverse a verdict unless it is so contrary to the· evidence as to
shock one's sense of justice.
Commonwealth v. Galindes, 786 A.2d 1004, 1011 (Pa. 2001) (internal citations
omitted).
In reviewing the trial court's denial of a motion for a new trial based upon a
challenge to the weight of the evidence, the appellate court will give "the gravest
consideration to the findings and reasons advanced by the trial judge."15
The weight of the evidence supports the jury's findings. As cited at length above,
the evidence demonstrated that Defendant removed items from the garage located at
1614 Herr Street, fled from police when Officer Galleup attempted to talk to Appellant
regarding the call for a potential burglary, attempted to enter 236 North 15th Street to
avoid talking to the police, and actually entered 238 and 240 North 15th Street without
permission to avoid talking to the police.
C. THE SENTENCING COURT PROPERLY EXERCISED ITS DISCRETION AND
GAVE DUE CONSIDERATION TO RELEVANT FACTORS IN IMPOSING THE
SENTENCES
Appellant also contends that this Court erred in denying his Post-Sentence
Motions because the sentence was excessive and unreasonable. Appellant was
convicted of three (3) counts of Burglary, one (1) count of Attempted Burglary, and one
(1) count of Flight to Avoid Apprehension. Appellant has a prior record score of five (5)
for sentencing purposes. (Notes of Testimony, Sentencing 12/16/15 ("N.T. Sentencing")
at 4). With a prior record score of five (5), the standard ranges for Appellant's
convictions are as follows:
• Burglary - Not Adapted for Overnight Accommodation, No Person Present -
twelve (12) to eighteen (18) months;
• Burglary - Overnight Accommodation, No Person Present - twenty-four (24)
to thirty (30) months;
• Burglary - Overnight Accommodation, Person Present - forty-eiqht (48) to
sixty (60) months;
15
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal citations omitted).
• Flight to Avoid Apprehension, Trial, or Punishment - twelve (12) to eighteen
(18) months; ·
• Criminal Attempt - Burglary - Overnight Accommodation, Person Present -
twenty-seven (27) to thirty-three (33) months
At the sentencing hearing, the Court thoroughly explained it's reasoning behind
the unusual sentence on the record. That explanation is as follows:
So instead of going with a particular sentence and running things
consecutive with all the subsequent burglaries, I don't think that helps you
with the parole board in deciding when you become eligible for all the
various portions of that. ...
And that would be then at Count 1, this would be the garage, the
original crime, the defendant ... shall be sentenced to a state correctional
institution for a period of not less than 12 months nor more than 60
months. And you would be eligible for credit in the amount of 14 months
27 days ....
Then we're going to skip to Count 4. . . . Now in lieu of doing a
bunch of standard consecutive sentences it's the intention of the Court to
actually sentence above the standard range on this count and . then
aggregate the other ones as concurrent sentences with it. All right.
And what I'm assuring you is if I were to do the consecutive
sentences on each of those it would be in excess of this particular
sentence. But I'm giving that as a basis for why this count will be outside
the standard range. It'll be above it because I want to structure a
sentence that works better for you when the parole board -- ...
And so at Count 4 ... and this would be the house with the people
present at the time the break in occurred, the defendant ... shall be
sentenced to a term of 6 to 20 years in a state correctional institution.
That sentence will be consecutive to the sentence that was previously
imposed at Count 1.
And again, the reason that is a higher one is it's going to be the
intent of the Court to merge the flight to avoid apprehension since that is
the element of the burglary charge that made those criminal trespasses
into burglary ....
So then at Count 2, this could be the burglary of a home with the
person not present and an attempted burglary ... at that. And at that
sentence the defendant shall. be sentenced to a mitigated sentence of 18
months to 36 months. And the reason I'm mitigating that sentence is
because I am aggravating the sentence that was imposed at Count 4.
And that sentence shall run concurrent with the sentence at Count 4.
At Count 3, again, burglary of the home no person presented .... a
mitigated . sentence of 18 months to 36 months, and shall also be
concurrent with the sentence imposed at Count 4.
Count 5, flight to avoid apprehension, we're satisfied that count is
satisfied based upon the others and no further sentence will be imposed at
Count 5 ....
So what we've done in effect is given you a lesser sentence than if
we would have done it by a bunch of consecutive sentences. I've given
you mitigated to offset those but I think that'll make it easier for the parole
board to move forward with the parole process. ... .
If you would prefer not to have an aggravated range on that and
you would like consecutive sentences you can file that motion to
reconsider and we will structure - it'll be the same total sentence but we'll
break it down into the counts where they all become standard range
sentences.
(Notes of Testimony, Sentencing at 15-21).
Accordingly, we ask the Superior Court of Pennsylvania to affirm the Order of
December 30, 2015 denying Appellant's Post-Sentence Motions, and dismiss the
appeal in this matter.
Date: .,A.,ffb!'.4, 'f:I ~01, Respectfullysubmitted:
William T. Tully, J.
,....,
c::> f:-)
C:)
);;- a::: :--
c :z Pl
::::0 0 ·:
u
"'Q ::c::
~ ~'.'T!f~
rr,- I O~C
:z:Z: -J ,,<; _;_
.....
T.
Zr:; c,rrl<
J>O -·,:a
rr
:it
g~c: :
-
c
``_
.....
--. 9 ~
-< (X)
en
DISTRIBUTION:
Joseph P. Cardinale, Jr., Esquire - District Attorney's Offic~
Jonathan White, Esquire - Public Defender's Office g..,e,J
Clerk of Courts Y-
Court Administration::u>
~FILE "'i--