Com. v. Ritchey, J. ( 2015 )

J-S22004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERRY LEE RITCHEY, JR.
Appellant No. 96 WDA 2014
Appeal from the Judgment of Sentence December 10, 2013
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000029-2012
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JUNE 17, 2015
Appellant, Jerry Lee Ritchey, Jr., appeals from the judgment of
sentence entered by the Honorable Oliver J. Lobaugh, Court of Common
Pleas of Venango County, after a jury convicted Ritchey on a variety of
charges arising from a string of late night commercial burglaries. We affirm.
After an extensive investigation, including placing a GPS tracker on
Ritchey’s vehicle, the Commonwealth charged Ritchey with 16 counts of
crimes associated with the burglary of 5 buildings, as well as an attempted
burglary. A jury convicted Ritchey on the 13 misdemeanor and felony
charges, while the trial court found Ritchey guilty on the remaining 3
charges of summary criminal mischief.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S22004-15
On December 10, 2013, the trial court sentenced Ritchey to an
aggregate term of incarceration of 96 to 192 months. This timely appeal
followed.
On appeal, Ritchey raises six issues for our review. The first three
issues concern the propriety of the trial court’s decision to permit the
Commonwealth to introduce evidence obtained pursuant to the GPS
tracking. After reviewing the briefs of the parties and the certified record,
we conclude that the trial court’s June 24, 2013 opinion thoroughly and
adequately addresses the issues raised by Ritchey.1 We therefore affirm on
____________________________________________
1
The trial court found that Ritchey’s challenge to the jurisdiction of the
Allegheny County Court of Common Pleas merited no relief as the argument
was based on a subsequent amendment to the Wiretap Act and that under
the then-existing language of the Wiretap Act, Allegheny County Court of
Common Pleas had jurisdiction. While we agree with the trial court’s
reasoning, we further note that even under the subsequent amendment,
Allegheny County had jurisdiction to approve the wiretap application. Under
the amendment, the “court issuing the order must have jurisdiction over the
offense under investigation.” 18 Pa.C.S.A. § 5761(b).
Controversies arising out of violations of the Crimes Code are
entrusted to the original jurisdiction of the courts of common
pleas for resolution. See 18 Pa.C.S. § 102. Every jurist within
that tier of the unified judicial system is competent to hear and
decide a matter arising out of the Crimes Code. Pa. Const. Art.
5, § 5 (establishing the jurisdiction of the courts of common
pleas within the unified judicial system).
Commonwealth v. Whanger, 30 A.3d 1212 (Pa. Super. 2011). Thus, the
amendment served to expand jurisdiction to any Common Pleas court, not
contract it.
(Footnote Continued Next Page)
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these issues on the basis of Judge Lobaugh’s well-written opinion. See Trial
Court Opinion, 6/24/13.
Next, Ritchey challenges the sufficiency of the evidence supporting his
convictions. After reviewing the briefs of the parties and the certified record,
we conclude that the trial court’s June 17, 2014 opinion thoroughly and
adequately addresses this issue. See Trial Court Opinion, 6/17/14, at 5-12.
We therefore affirm on this issue on the basis of Judge Lobaugh’s well-
written opinion.
Next, Ritchey challenges the trial court’s decision to allow the
introduction of evidence of prior criminal convictions. Specifically, the trial
court allowed the Commonwealth to present evidence of Ritchey’s burglary
_______________________
(Footnote Continued)
We disagree with the concurring memorandum’s suggestion that the
foregoing is an “incorrect” summary of the law. Concurring Memorandum,
at 1-2. The concurring memorandum (and also 16 West Pa. Prac., Criminal
Practice § 11:4) cites an older Superior Court case that repeated a common
mistake, since explicitly repudiated by the Supreme Court of Pennsylvania,
of confusing jurisdiction with venue.
In Commonwealth v. Bethea, 828 A.2d 1066 (Pa. 2003), the Court
noted that these terms were often used interchangeably, but reiterated that
they were distinct legal categories. See id., at 1074-1075. Importantly,
the Court stated that “each court of common pleas within this
Commonwealth possesses the same subject matter jurisdiction to resolve
cases arising under the Pennsylvania Crimes Code, that jurisdiction should
only be exercised beyond the territorial boundaries of the judicial district in
which it sits in the most limited of circumstances. Rules of venue recognize
the propriety of imposing geographic limitations on the exercise of
jurisdiction.” Id., at 1075 (emphasis added). And “venue pertains to the
locality most convenient to the proper disposition of a matter.” Id., at
1074-1075.
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convictions in Clearfield County as evidence of a common scheme, design or
plan. We note that
the admission of evidence is within the sound discretion of the
trial court and will be reversed only upon a showing that the trial
court clearly abused its discretion. Admissibility depends on
relevance and probative value. Evidence is relevant if it logically
tends to establish a material fact in the case, tends to make a
fact at issue more or less probable or supports a reasonable
inference or presumption regarding a material fact. Evidence,
even if relevant, may be excluded if its probative value is
outweighed by the potential prejudice.
Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012)
(internal citations omitted).
It is impermissible to present evidence at trial of a defendant’s prior
bad acts or crimes to establish the defendant’s criminal character or
proclivities. See Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.
Super. 2008). Such evidence, however, may be admissible “where it is
relevant for some other legitimate purpose and not utilized solely to blacken
the defendant’s character.” Commonwealth v. Russell, 938 A.2d 1082,
1092 (Pa. Super. 2007) (citation omitted).
Pennsylvania Rule of Evidence 404(b)(2) provides that “[e]vidence of
other crimes, wrongs, or acts may be admitted for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity
or absence of mistake or accident.” Pa.R.E., Rule 404(b)(2). Rule
404(b)(3), however, mandates that other crimes, wrongs, or acts evidence
“may be admitted in a criminal case only upon a showing that the probative
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value of the evidence outweighs its potential for prejudice.” Pa.R.E., Rule
404(b)(3). See also Russell, 938 A.2d at 1092. “‘Unfair prejudice’ means a
tendency to suggest decision on an improper basis or divert the jury’s
attention away from its duty of weighing the evidence impartially.”
Commonwealth v. Wright, 961 A.2d 119, 151 (Pa. 2008) (citation
omitted).
“[T]he function of the trial court is to balance the alleged prejudicial
effect of the evidence against its probative value and it is not for an
appellate court to usurp that function.” Commonwealth v. Parker, 882
A.2d 488, 492 (Pa. Super. 2005) (citation omitted). The law does not
require a court to “sanitize a trial to eliminate all unpleasant facts from the
jury’s consideration where those facts are relevant to the issues at hand and
form part of the history and natural development of the events and offenses
for which the defendant is charged.” Commonwealth v. Page, 965 A.2d
1212, 1220 (Pa. Super. 2009) (citation omitted).
The trial court found that there were 10 “commonalities” between the
crimes for which Ritchey was being tried in Venango County and the crimes
committed in Clearfield County. These commonalities included the fact that
the victims were commercial businesses which were broken into after
business hours; forcible entry using a pry bar; the disabling of security
cameras by cutting their electrical wires; the primary goal of the burglaries
was cash, not equipment or other products; evidence that the burglar
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utilized gloves during the break-ins; a unique shoe print was found at each
of the ten burglary sites; and that the defendant had bought shoes with that
print prior to the burglaries. See Trial Court Opinion, 6/24/13, at 18-19.
We cannot conclude that the trial court’s reasoning constituted an abuse of
discretion, and therefore find that Ritchey’s argument merits no relief.
In his final issue on appeal, Ritchey contends that the trial court
abused its discretion in imposing sentence. Ritchey concedes that this
argument constitutes a challenge to the discretionary aspects of his
sentence. See Appellant’s Brief, at 24.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). When challenging the discretionary aspects
of the sentence imposed, an appellant must present a substantial question
as to the inappropriateness of the sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be
met before we will review this challenge on its merits.” McAfee, 849 A.2d
at 274 (citation omitted). “First, an appellant must set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Id. (citation omitted).
“Second, the appellant must show that there is a substantial question
that the sentence imposed is not appropriate under the Sentencing Code.”
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Id. (citation omitted). That is, “the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.” Tirado,
870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)
statement to determine whether a substantial question exists. See id. “Our
inquiry must focus on the reasons for which the appeal is sought, in contrast
to the facts underlying the appeal, which are necessary only to decide the
appeal on the merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f).
In the present case, Ritchey’s appellate brief contains the requisite
Rule 2119(f) concise statement, and, as such, is in technical compliance with
the requirements to challenge the discretionary aspects of a sentence.
Ritchey argues in his Rule 2119(f) statement that the imposition of
consecutive standard range sentences, as opposed to concurrent sentences,
by the trial court was excessive, and that the trial court failed to consider
the impact of his sentence on his children and ill parents. Ritchey further
argues that the trial court failed to consider his remorsefulness.
“[W]here a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the Sentencing
Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)
(internal citations omitted). The imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly
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harsh, considering the nature of the crimes and the length of imprisonment.
See id., at 171-172 (Pa. Super. 2010). Given the pre-meditated nature of
Ritchey’s burglary spree, we conclude that the sentences at issue do not fall
into the category of extreme circumstances, and therefore, Ritchey has not
raised a substantial question.
As we conclude that none of Ritchey’s issues on appeal merit relief, we
affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judge Lazarus joins the memorandum.
Judge Strassburger files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2015
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IN 'llll~ COUWI' OF COi'vlMON p1,1~,.\S OF VEN,\NGO COUNTY,
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AN)) NOW, June ;)}L 2013, the Com! has !~>r considcnulon the ivtotion in
Llminc regarding the admission of evidence ohwincd tluuugh a OPS trucker filed by the
Dclcndnnt, Jerry Lee Ritchey. Jr. A hearin]; was held on tbo Motion 011 ,vl<1n;h 18. 20 l3 at
which time Dcfcndnnt was present und represented by counsel lk11j11mi11 Levine, Esq.
and the Co111111n11,wallh was represented by District Auomcy Mmic Vcon, The nuorncys
were gi vcn uni i I ~,Jmch 21 , 2013 lo It le n wri ucn memo on thu mot ion nnd the Court
heard nrgumcn! on Mm'ch 211 201 J. Defense Counsel filed his Memornndllm or Law in
Suppt»: oflssucs Raised in Limlne Motion 011 ,vlnrd1 21, 2013. The Commonwcnlth filed
its Memorandum in Opposition 10 the Dctcndants Moti@ lo Suppress or Limit Evidcncc
on Mt1~· 7, 2011 After carclu] considenuion ul' the i\-101ion, 11,c urguuicnt» of counsel,
tcstimuny, and the Mc1rn1rn11dn filed by the C1\lor11cys, the Motion will be denied,
The Criminal Complaint with attached ,\Jfolnvl\ or Probable Cause wns filed with
Mngh,tcri~ll Dbmict Judge Douglas Dinberg on November 23, 2011 nlkging 1hnt
:ml'lkicnt probuble cause existed lo believe tluu the defendant hnd w1111ni11cd lh1rglnry
under 18 Pu. C.S.J\. ~3502 (a), Thell bv Unluwful Taking ur Dispositlo» under 18 Pn.
C.S.,\. * 3~)21 (a). Criminul ivlbelikJ"u11dc1· 18 Pa. C.S.1\. § J304 (u) (:il, and Criminal
Aucmpt to Commit Burg.lmy under 18 Pa. C.S.,\. 90 I (H). Dc:!'cmlant hrnl his preliminary
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nrmigruncm on December I, 2011. His preliminary hearing was cuntinucd once ru the
1\.'~lLWSl of' the prosecution, once at the request ul' 1h~ defense attorney nnd wm; uliinuucly
wuivcd bv~ 1111.: Defendant on Januarv., I I.. 2012. On Mnrch 30.' 2012. an tnformution \\'US
!ikd alleging Ilve counts or Bmglnry, second degn .'L\ Iclonics under I H l'u, C.S.A. *}502
(a); five counts of Thcl't by Unlnwl\11 Taking, misdemeanors of the first degree under 18
Pa. C.S.,t\. * 3921 (u): live counts ol' Crimlnnl Mischief, :-:1111t1llHl'Y offenses under 18 Pa.
C.S.J\. § .3304 (a)(5); nnd one count of Criminal Aucmpt to Commit nurgl!lr>·1 n second
degree felony under 18 Pn . C.S./\. § ~>01 and 18 Pa. C.S.1\. ~ 3502 (a).
On September 27. 2012 the Honorable H. Willi nm White grnnll!d the i\fotlon 10
Wi thdruw lilcd hy .r. D. Ry1111) Esq.) J)c l'cndunt'~ originu I counsel, On October I G. 2012
Auorncy Jeri Bohon entered her appeurance 011 behalf or the Dclcndum for the l'ublic
Defender's Ol'lict:. On Oc1obL·1· 26. 2012 this Court w·nnlcd a Mntion lc>r u Continuance
• 'r
of the trial Illcd bv. Defense
. Counsel due to th,· volumlnous amount or discovcrv . received
from the Conuuonwcnlth. On December 19, 2012 this Court granted nnmhcr Contiuunncc
or Jury Selection as the 1)1..fcndaru's uuorncy was leaving her position at the Public
Defender's Office nm! his now counxc] would need sufficient time to review the file and
meet with 1hc Dcfcndnn; to discuss hi\; cuse. 1\l1orncr l\c11ji1min Levine entered his
uppcarauce on bchnlf ol' the Defendant 011 Fchrnnry 111 2013. 1\ jmy was selected on
i'vlnrch 4. 20 I J for ,, three day trial whicl: was scheduled for ~fon.:h IR, I(). nnd 21 . 2013
in Courtroom I nfihc Vcnungo County Courthouse. On the eve ot'rrinl, March 15, 2013,
Defense Counsel riled the instant Motiun in l.imine und nrnlly souglu u continuance of
th<: trinl. The cuntinuunce wos granted.
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In his i'v!otion in Li mine, the Di..·l~·ndant seeks the preclusion flt irinl of 1h1.· results
of' ihc Global l'uxitil)ning System device, heruinaftcr referred to us "(iJ>S," as well ns uny
mlditionnl evidence procured through senrch warrunts hucr executed and bused in part
upon the nnulysls of the OPS evidence. Dcfenduuts nrgument for suppression or the
evidence is that the evidence obtained u~ing the OPS is inudmissiblc bused on the recent
Supreme Court decision nr U.S. v. Jones. 132 S. Ct. 9115 (2012) nm! the subsequent
Pennsylvania ~upei·lor Court decision ol' Com. ,·. /J/1/',l;lo.1·. nt\tl)m, shortly bclorc the burglurics occurred und his prior criminal histoty ol'
lhel'l convictions, the dcfcndun: Jerry l.co Ri1ch1J>'. .lr, '''LlS developed as n suspect.
Clnrion County I'onnsylvunln Stntc Pollcc had also identified the del'e11dan1 us a suspect
...
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in a commercial burglnry occurring in Clarion Co11111y in Jununry of 2011 based upon lire
truck imprints ul' Dunlop SP (>0 tires recovered 111 the scene. On June 12, 2011 Clarion
PSP observed n 1998 Toyota Camry hearing l't\ REG HOK-82.10. registered 10 Jerry
Ritchoy Jr., with Dunlop ~p C,O tires, Clarion PSP nuulc contact with th<.: dclbnd11nt ubuut
thL' tires on his Tovotu Cnmry 011 June 15. 2011 in the pnrking lol of Sheetz in Clurlon,
Pcunsylvnniu. Aller 8pc:iking with the police, the dcfondant Ritchey replaced the tires \)11
his Toyotu Conny.
1\ccordi11g to the Alfidavi! in question, the l'cnnsylvnuia Stt1lc Police beg1111 visuul
survcillunce of the defendant during the nighunnc hours, Ritchey was observed m an Oil
City residence and a ~trnttanvilk residence. H<.: wns observed npern(ing th~ Tuyotu
Cnmrv and the 20 IO lvlazdn sednn, \I ch kit! l were executed tor Dclcndnnt' s Oil City
Residence uud Slrnttnnvi I 10 Residence and additionul evidence wns obtained lrom those
locations.
I. GPS Trncking Dcvlce
To prevail on n motion to supprc`` evidence, the dd``IKl.\lll "hHS 1he prclimi\\nry
burden ol'cstnbli:;hing stumling n11d H lcgirimute expectation ofprivacy." Com. ,,. 8111·/011,
1)73 /\.2d 1128, 435 (Pa. Super. 2009)(S uddrcs~cd the mutter or whether lnstnllnllon nnd
subsequent monitoring or the GPS LH\ Burgo's truck wes per se unreasonable where the
police obtained 11 statutorily prescribed wirct11p order, approved by judicial mnhority,
pursuant to Section 576 ! as an issue or Iirst imrre:rnion tll tho appellate level in
.
Pcnnsvlvanin. 1' the court of common plcus,
and outside that [urisdlction, ii' th.: device is insmllcd within the jurisdlction
of tile court ol' COl1111H)ll pleas. .
(c) Stwulw·d.fhr issuance oforder. - An order mHhorizing the use or one or more
mobile tracking devices mny he issued 10 un invcstlgmlve or lnw enforcement
oniccr by the court or common plcns upon written upplkalion. Ei1ch
appllcutlun sbnll be by written ulflduvit. signed and sworn to or ulfirmcd
before I he court of conunon pkus:
I. stale the name und department, agency or address 1>!' the
u J'lia111;
2. idvnlil)' rho vehicles, contnincrs or items lo which, in whlch
1>1' DJ\ which the: mobile trnckinj; device shall be nll:ichcd or
be placed. and 1'11.: names (11' the owners or possessors or the
vchiclos, contniuers or items;
J. s1:11c the jurisdictionu! nrcn in which the vehicles, containers
or uoms ure expected l<1 be found; nnd
4. provide a statement :-il:lting l'ol'lh all !'act:,; and circumstances
whlch provide the upplicunt with n reasonable suspicion that
criminal nc1ivity hn:- been, is or \\'Ill be in progress nnd \hot
thl' use o!' a mobile tra<:king device will yield informntlon
r~kv111\I lo th~ invrstigutiou ol' the criminul activity.
(ti) Nottce. - The court o!' common ph.)!I:\ shall he 111llili~d in wri1i11g within 72
hours of the time the mobile lrm:king device hus hcen ncrivmcd in pince 1)1\ or
within the vehicles. corunincrs or items,
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(c) 'limn (?/'m11//orizmio11. - Authorizution by the court or common picas for the
use of the mobile trncking device 11wy continue Ior 11 period or 90 dnys from
the placement of the device. An extension for an mlditionul 90 tluys may he
granted upon good cause shown.
(I) Removut of dcvtce. ~ Wherever prncticablc, the mobile trucking device shnll
be removed ultur tho authnrizntion period expires. IJ' removal is not
pracricnblc . monitoring of' the mobile tracking device shall cease at the
expiration or the authorlzntion order.
(g) Movemi!l1l lluwi11g: "the stuudard for
determining whether probable cnusc existed for an order authori;.,.ing intercept ion or
telephone communications is the same us thnt used 10 determine probable cause for
search wnnnnts." C:0111. v. /3il'(/.,·e,11<1, 637 t\.2d I OJ953 A.2d 12581 1262 (Pa. Super. 200~) (quouuion und quouuinn murks
omitted), 1'l.11•er.,·(!d 011 ot/,er .~rowuls. 42 1.\Jd l615 A.2d 55, 6:l (Pu. Super, I !)92).
64 /\.Jd al 655-56. Thus, we cxnmine the inlhmrntlnn provided within the lour corners ol'
the 1\!'lhlavit ol'8pccilk Aniculublc !<'aels Ior installing clccunnlc trucker to determine if
there wus probable cause to support the officcrs request for u wircrap order. Se« Com. 1·.
Stm111>,\', 427 t\.2d 1111, 143 (11.1. 1c)8I); Pt\. IC Crim. P. R11k 20:"> (IJ)(Thc issuing
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authority, in determining whether probable cause hns been cstnhlishcd, ma~· 1101 consider
nnr evidence outside or the ulfiduvits.").
Under the totality ul' the circumstances lclll. the Court t8 sntisflcd thHI the
informnrion provided in the Affidavit of Specific Articulable Facts fur Installing
Electronic Trucker rises not only to the IC\'Cl of' rcusonnblc suspicion but ulso to the
nccessnry level or probable cause. "l'robuble cnuso is not certitude, nor even
prcpundcrancc; rather, il is merely u sulficicntly :-;nhstantive prohnbility lo juslil)' the
intrusion involved." Com. 1·. Doria. 57'1 1\.2<1 653, 657 (Pa. Super. 1990) (concurreuce):
Com. 11• Gloss. 7511 ,\.2tl 655, 664 (J>u. 2000); See also ttttnots 11• Gates. 462 U.8. 21 J,
23 l ·32 (U.S. I 983)(Probnhle cuuse is u "prncticnl, nontccbnical conception." It j!{ "n fluid
conccpt-unuing on the ussessmcnl of prohabilitic~ in pnrticulur luetuul contexts not
readily, or even usefully, reduced 10 u neut :wt ollcg«! rules."),
Herc, th\) officer was able to pince the defendant at 1h0 scene of two of tho
burglnric» shortly before they occurred through independent eyewitness inl'imnntion
obtained from employees nt the di Itercru businesses, Hurds W cldiug and \' oung 's Tires.
There WH:l no iudicntiun lhal the verncity or bnsis '.1·1a, 4:'15 t\.2d 1217. 1220 (Po. Super,
1981)(dckndant'~ proximity in both time and pince to the site olthc b\1rghll)' contribute
1u a !111di11g nl'probnblc cuusc).
These burgjarics occurred on a regular basis 0\'1.'t' a pl'l'iod of many months trom
l.kcc111bi;r or 2tl IO through the time u Wiretap Ad wurranr was issued lo pen nil the
uuachment of the CiPS io dcfcndants car. Thus, the iuformruion cannot be seen us being
stale. Com. 1·. Uurgos. 6~ ;\ .Jd ill 656. The col lcctcd i11lo1·11111t ion was 111wl yzcd by law
cntorccmcnt, including Ponnsylvanin 0H1tc Police Corporal John T. Tobin who hns hud
21.5 years experience in the investigution of crimes und seizure ol" evidence within
Pennsylvania and who WOK lumiliar with the nielht>d~ used by burglurs to cununi: the
crimes und to conceal their nctivities rrom detection by law cnforccmcm nuthorlties. Id. at
6%. Thus, h:i~cd 011 n tolulily ol' the circumstances, there wns probable coma; lo believe
1hnt defendant lrnd resumed hi~ former trade as n loco! thief' and for supporting the
Oflkc..:r\ request for u wirclnp order. Cu111. \>, Doria, 574 A2d al 658.
As probt1bk cause existed for the wiretap order when ii was issued the OPS
pluccmcnt 011 Dt..:fo11d;int 's ivlni'.dn was 1101 an uurcusnnnblc scurch mid seizure under the
Fuurth Amendment and the evidence collected by lh~ OPS trucker will not he suppressed
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as the Commonwealth has incl its burden or establishing by I) prcpondcrnncc 01' the
evidence thut lhc challenged evidence is udinisslblc.
Dcl'eml11111 ulsc nrgucs thnt the chnngu in the jurlsdiction«] portion of tile Wircinp
1\el §5 761 (h) would make the issuance or" warran: by and through /\ I leghcny ColJIH)'
lnadrnisslble for trials in lhi~ County. The [urisdictlonnl change removes n Court of
Common Plcus' authority 10 issue an order for the lll$lallalion und use of mobile tracking
device unless thul County hus jurisdiction over the oltcnsc under invcl>li~alio11. There is
no indication thal lhis change was prumpicd by the ruling in U.S. 11• Jones, I 32 S.Cl. 945
(U.S. 2012). Al thi:! time of the issuance or the warrant, Allegheny County hnd
jurisdiction IO enter the Order or Court. A uiul court is h> apply current statutory law until
the Legislature rcpcnls or amends it. Com. \i. Thomas, 51 A.3d 255, 260 (1\1. Super.
2012)~ app '/ denied ({J 1\Jd 1247 (Pit. 2013). 1\ddilionally1 "[n'[bseut clear nnd mnnifest
i utcnt r legislation is presumed not to be rctroucf ve." kl.: See I Pn. C.S. A. 1926. Thus, *
we tkdinc to lndulgo in speculntiou 11bo111 wluu would huvc transpired if the legislature
hnd pm``et\ nnd rnt\l'\c(\ iho juri$c\ictionn\ chungo in *567 l (h) or the Wircrnp 1\t.:1 before
the warrnm WilS obtained,
In light ol' thiN finding, we need not reach the Connnouwcnlth's argumcnr that
this Court is lhccd with conl1kti11g opinions from Co111111011m' a
cur. We need not resolve these conflicting opinions m this lime ns we hold that the
uffidnvit in support or thL' wlretup warrruu rose to the level of probable cause sntisl)'ing
both 1/r1h11r tt1KI n,,r~os. We also need 1101 address the Commonwealth's urgumcnt thm
the good faith exception lo the exclnxionnry rule applies to ihe present mnuer. 1\l~o in
ligh1 ol' the above finding. \\1C need 1101 ndclri::;~ Dctcndants 11rg11111cn1 thut s11hscq11c111
search warrants or Mr. Ritchev's residences nro invalid as lruits or the poisonous tree. As
we have held Ihm the UP8 wiretap wm·1·,m1 wos supported by probnhle cause, the
informntion gathered by the use ol' Ille OPS 1«.:cltnoh>gy on l\•lr. Ritchcy's vehicle was
properly included in the nnidavil:; or specific nniculnblc lhul:; for the suhsequcntly
executed scarcl: warrants for i\•lr. Ritchey's vehicles 011d rcsldcnccs and those wnrrnnts
remain valid.
II. Unfulr Prejudice
Dcfcudnnt further argues that the evidence collected by tho (JPS should be
deemed iuadmlsslble us its udmissio» would vnuse the defendant undue prciudice.
Dofcndunr relics on Pcnnsylvanl« Rule or Pvid..:ncc 403 which SHI\~:; "the court may
exclude relevant evidence if its probative value is outweigh . .xl by i1 danger ul' one or more
uf the 1'11llowi!lg: uulair prejudice, i.:@l't.tsing the issues, 111i:ilet1di11g the jury, undue delay,
wns1ing time or needlessly presenting cumulortvc evidence." Defendant does not argue
1hn1 1'1e evidence collected hy the GPS is not relcvunt: ht: mg\l«:~ only thnl its prejudicial
value outweigh» i11; probative value.
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i\frrcly bccuuse evidence is unfavorable to II part~· 11. Super. 2()()()),
l~vidcncc is deemed (o be prejudicial nrn because it hurts a parly's case, but because it
hus an undue tendency to :;uggest thm a decision wus made on an improper basis. Leah»
1·. 1'fcC!ui11, 732 1\.2d 6191 62·1 (Pu. Super. 1999). "Unluir preJu111Hy because
Defendant hud parked hl~ cm· ut the f>it1shmgh lntcrnutioual J\ii·pnrl while he wni; 1)11 his
honeymoon. It is hard to conceive how that information could prejudice thejury against
Mr. Ritchey.
There is u possible risk of prejudice to Defendant from the intrnduction of'
evidence or other crimes collected by the OPS hut not charged in the Venango County
Infornuuion. To
. counter that risk,. the Court ct111 ......uivc n cautlonnrv ., instruction to the . j\11·v.
instructing the jury not 10 consider the evidence tluu lkfcndonl lrn:-; commiucd similnr
crimes outside or Venango Cnunty u:-; estublishing any clement uf any or th<.l \~rime~
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II J. ~fodm Operandi, ldcnlitr-Usc of l~vidl'llct' h~· tho Conimunwenlth
In general, evidence 11!' distinct crimes is 1111t admissible ugnin:-;1 u delcndanr being
p1·o~cct1lcd I<)]' nnother crime trlu1iil)', intent, prcpunuiuu, plun,
knowledge, identity, nnd absence ol'mistakc or accident. Com. ,·. Aikens. <)90 1\.2d I J 81,
1185 fPn. Super. 2010),
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ll is crucial to note lhal the Roles of Evidence only ni111 to exclude evidence which
results in pr1..ju986 A.2d 150 (I'u. 2009).
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Evidence from subsequent other crimes may he ndmiued lo show identity
"thorough selection of' a pnrtlculnr class or victim und use of idiosyncrntic methods to
curry out the crimes. ·, Com. 1·. Wa11kley, 972 I\ .2d I I 82, I 188 (Pa. Super. 2009)1 appeal
denied 986 1\.2d 150 (PH. 2009). ln compuring the separate crimes, a court must examine
the slmilurltics between n number a lhet1lr~, including; '\I) the manner in which the
crimes were commlttcd; (2) weapons used: (3) ostt:11:-dh!e purpusc or the crime: (4)
locution; and (5) type of victims. Rcmorcncss in lime between the crimes is ulso factored,
although lts probative value h11s been held inversclv proportional Lo the degree ul'
simllnrily between crimes." Com. 1•. /l'e(lk/cly, !>72 !\.2d ut 1189.
In the present case, we conclude tktl the evidence in question is admissible under
lht· common scheme, design, or plan exccptlon 1111d to extahlish identity. Herc, the
itllt'>' force and pry bur murks \\'1.!l'C.: noted on nl I tile dt)l>r~;
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(3) any !it'i.:uri1y systems \\\'I\! disuhler] by c11lling the clccuicu! wires;
(4) The otfices of the busincsscx were urrgetcd and desk druwers nnd !)Jing
cabinet» were rilled through; drawers were !di open und papers were
scuucrcd;
(5) The burglar wus pl'imnrily concerned with only stcnling cash: u11d equipment
or business product was not taken:
(6) The burglar left evidence that he was \\'l:ntfog gloves;
(7) Tile Dclcndnnt'x Mn%du wns seen in the viclnlty or seven ol' the burglnrle»
around the rime rluu the business~:,; were b11rglnriz(;d;
(8) Gcogrnphicallv, 11!1 ten or lhc burglaries were within driving dismncc ol' tlw
Defendant 's , wo residences;
(9) 1\ unique water shoe truck with u lour arrow design was l\iund al cnch of the
ten burglmy sites:
(JO_) The defendant bought a pair nJ' the wntcr shoes with the lour urrow sole
pauern on Mny 211 2011 tluu nuuches rho shoe trucks kl'! ot the scene o]' nil
the burglurlcs which occ nrrcd aflcr l'vln)' 21, 2011 .
Through video survclllnncc and receipts, l'~P Trooper Clark wn~ nblo to determine that
the Dcl~ndrnH had purchased water shoes with the pnrticuhu' lour nrrnw design 011 the
soles that matched the tracks lt:fl at the lour burglaries lrom the Clarion Wuhnart 011 Mny
21, 2011 and .luly I 7, 201 l. A mere two dnys Inter the four nnnw pnucrned trucks wen:
fo1111d al the scene o!' each ol' tile three commercial burglaries committed 011 ~vln~· 23-24.
20 l l and \\'<:I'~' also found HI the scenes ot' the subsequent burglnrie» dolcuclnnt i:. churgcd
with. It is unique und atypical 10 find water shoe uucks at these particular cmnmerclul
I ()
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h11si11cSS(.'S. Heavy machinerv and equipment on the premises of these businesses! mah
steel-toed shoes a much safer option than water shoes lnicndcd for swimming, kaynking,
nr other water sports. Thus the presence of the water shoes .u each or thw bmglarized
businesses is u striking parallel between the crimes .. 'i'1!U Com 11• Aikeus. 91)0 :\.2d 1181,
1186 (Pu. Super. 2010). These water shoes arc asserted to he n part ol' this course of
conduct, a menus which Dcfcnttnm 11scd lo ;1cco111plish the burglaries. Additionally,
Defendant 's ivl:wla wns trucked in the vicinity or rill Ii -ur or the Clearfield County
bmglmks and W(l:; seen in the vicinity or 84 Lumber around the time 1)1' the burglaries. 1\
"review or Rule 404(h) (I) nnd relevant jurisprudence shows the other crime need not
n1111ch every llH:t anti circumstance of thL' chnrgcd crime before il mny bo used to prow
ltlcnluv." Com. 1•. Weakley, 972 t\.2d ur 11 !)0. Considering :111 or tile similuritics b1.·11\·c~11
the details ()f th~ burglurics lends 10 the belief lh11t "pron I' that a person c.:0111111illcd one nl'
them mnkcs it vcrr unlikely thnt nuyono 1:1!;¢ cornmiucd the others." Com. 1·. Ross, 57
A.3d 85, I 02 (Pa. Super. 20 I 2).
1\:; for remoteness in time, it is 11011.!d thilt the ~arlk:·il nl' the six burglnrics in 1his
cusc occ11rred within two mouths, a luirly short time spun, ul' the burglnrics 1h111
Detcndant wn:-; convicted for i 11 Cl earfie Id CN111ty. See c!.g., Com. r. ttraushtein, 69 l
1\.2d 907, 91<> (Pn. 1997), cert, den. 522 U.S. 93(1 (1997)(11,·c weeks since another
similar rnbbery-murdcr): Com. 1·. fla<'ket, 959 t\.2d 380, 393 (Pn. Super, 2008), appeal
granted 975 1\.2d I OX2 (Pu. 200!>). order reversed on .YUJ)(ll'lffe gro1111cls. (Pn.
2009)("1foth incidents occurred .C. l:nJcl'pri~cs,
und Tl. lluincy Trucking.
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properly admitted m trial lor murder conuniucd IIH,:c months earlier where crimes were
strlkl ugly si mi lnr in geographic local ion, I\Hll ivut ion 10 rob drug-deni ing vier ims. and
11101hod u I' exccut ing crime); Com. \'. l/11gh1is. 5 55 ,\. 2d 1264 (Pu, I 98!))(lcn months) The
imporinnce or the gnp in time is inversely proportionul In the similarity between the
crimes. Com. 1·. Aikens. 990 1\.2d 1181, 1187 (Pa. 2010). Here, we have similar crimes
occurring in lili rlr quick succession.
lln::;cd <111 the foregoing discussion, we lind that the nlorcsuld lour convictious had
relevance lo pcnuissiblc purpu:-:cs with respect 10 the six burglurics ln rbls case. However.
this is only the linn step in the unulysix because such relevant evidence is ultlntatcly 011ly
admissible under Pennsylvnnln R11lc of' Evidence 40~(b) ii' its probative value outweighs
its potential for prejudice. Herc, such is the case. First, the probatlvc value of the
evidence is substuntiul. Similnritlcs bciwcc» the crlmc scenes relnte nm jus! to one. hut lo
sevcrnl lmportant qucstitmS such ns plan, preparation. common scheme or design. und
identity. Moreover. it appears the evidence is not just minimally relevant but. rather,
serves as foirly direct, logkill and elucidaung evidence lying Dcfeudnnr 10 nil ten
ht1rgl11ric~. There is a need for the other crimes evidence because us in Com. r. /Ve(lk/ey.
"the evillcnc1..· upon which the prosecution is bnsccl is largely circumsuuuinl. und it is the
specific purpose of the 'other crimes' evidence IO give the jury i11:;ighl i111t) the
signiflcnnce ot'these cireumsumccs." ')Tl ,\.2d 111 I 191.
Second. there is n potential Ior prejudice to the Dcfcnikuu as tlw crimes arc so
similm' thnl a jury 111ig.l1l be templed to decide lhul bccnusc he was convicted or the
burglaries in Clcnrfield Counry he is uutomuticully guihy ut' the burgl11rk::; in Venango
County, I lowevcr, as wus !iWtcd above, "evidence will not he prohibited merely because
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ii is hunnlul to the dcfendunt." Ihuchisou >'. /,11(/(~1·. 763 ,\.2d at 8~7. Pennsylvania
Courts have co11~is1c111ly "upheld the adruission or other crimes evidence. when rclevunt,
even when the dcwil:-: of' the other crimes were extremely grotesque and highly
prejudicial. ., Com. 1•. Dtllon, ns t\.2d 131 .. 14 l (Pn, 2007>. 11 is nlso worth noting 1hn1
in the context or the crimes charged .. the four burglaries, while reprehensible, are unlikely
lo he viewed by the jurv as so heinous .'.IS lo completely overwhelm their nbili1y lo weigh
!he evidence directly. lnstcud, ;is in Com. 1•. IVl!okley. the focnl point of the evidence is
the precise criuunul method used, 11s opp1iscd tn inlhuuing the Jlu·y's emotions 111'
sympathy or hostllny. 972 1\.2d HI 1191. The convictions do not tend 10 show Dclcndum
us n "bad person" in :111r way other 1h11n with respect lo the specific conduct nt issue.
Com. 1·. Nat'ker. 959 t\.2d ill 393. "Additionullv, when weighing the potcmiul for
prejudice, a trial court mav consider how a cau1iorn11)' jury instruction might nmcliorntc
the prejudicial clfccl 111' the pnll'li,:rcd evidence." Co111. 11• Dil/011. 925 f\.2d al l.:.J I relylng
1111 Comment Pa. R.E. 1104(b.). The Cnun inrcnds 10 issue a cmllio1rnry instruction to the
jury in this cuse.
t\x the probative value of the relevant convictions for burglnrv from Clearfield
Cotmty outweighs iii; potential l'c>I' prejudice, the evidence of' the convictions is
admisslblc i11 thii- cusc under l'cnusvlvuniu Rule or Evidence 401l(b). Thus, the
Comrucnwculrh shall be pcnnlucd lo introduce evidence ol' the sitnilnrities of the lucts
n..·gmding the dcfcnrhuns conviction Ior the four burglaries conuniucd i11 Clearfield
Co11111y on July 21. 2011 for th~ purpose ol'sll(lwing common scheme nnd plan us well as
idcnt] ty,
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For the above reasons, ii is hereby OIU)l~H l~I) and DECREED thnt the
Defendant's Motion in Liminc is Dm,mm.
Marie Veon, !');\
l.knjarnin Levine: PD
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IN THE COURT OF COMMON PLEAS OF VENANGO COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA> : CRIMINAL DIVlSJON
v,
JERRY LEE IUTCHEY, JR.,
Defendant.
OPINION OF COURT
AND NOW, June _JJ__, 2014, the Court has for consideration the Statement of Matters
Complained of on Appeal filed 011 behalf of the Appellant, Jerry Lee Ritchey, Jr., pursuant to Pa.
R.A.P, 1925 (b) on June 3, 2014, The Appellant has appealed to the Superior Court ofl'ennsylvanla
from this Court's Order of Sentence dated December IO, 2014. Appellant filed the Notice of
Appeal on January 8, 2014. Pursuant to Pa. R.A.P. 1925 (a), this Court shall state its reasons for
the Order in question.
This case involved multiple commercial burglaries. A six day Jury trial was held in
November of 2013. On November 25, 2013, the Jury found Appellant guilty of: Count 1, Burglary,
In violation of 18 Pa. C.S.A. §3 502 (a), a Felony of the second degree; Count 2, Theft by Unlawful
Taking, in violation of 18 Pa, C,S.A. §3921 (a) with a value of $200.00 or more, but not more than
$2000.00, a Misdemeanor of the first degree; Count 4, Burglary, in violation of 18 Pa, C.S.A.
§3502 (a), aPelony of the second degree; Count 5, Theft by Unlawful Taking, in violation of 18
Pa. C.S.A. §3921 (a), 'Vi'.Hh a value of $200.00 or more, but not more than $2,000,00 a Misdemeanor
of the first degree; Count 7, Criminal Attempt to Commit Burglary, in violation of 18 Pa. C.S.A.
§901 (a) to commit 18 Pa. C.S.A. §3502 (a), a Felony of the second degree; Count 8, Criminal
Mischief, in violation of 18 Pa, C,$,A, §3304 (a)(S), in the amount of more than $1,000.00, a
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Misdemeanor of the second degree, Count 9, Burglary, in violation of 18 Pa. C,S,A, §3502 (a), a
Felony of the second degree; Count 10, Theft by Unlawful Taking) in violation of 18 PA. C.S.A,
§3921 (a), with a value of more than $2000.00, a Felony of the third degree; Count 11 > Criminal
Mischief, in violation of 18 'Pa. C,S.A. §3304 (a)(5), in the amount of mote than $1,000.00, a
Misdemeanor of the second degree; Count 12, Burglary, in violation of 18 Pa, C.S,A, §3502 (a), a
Felony 2; Count 13, Theft by Unlawful Taking, in violation of 18 Pa. C.S.A. §3921 (a), with a
value of $200.00 or more, but not more than $2000.00, a Misdemeanor of the first degree; Count
15, Burglary, in violation of 18 Pa, C.S,A.§3502 (a), a Felony of the second degree; and Count 16,
Theft by Unlawful Taking, in violation of 18 Pa, C,S,A. §3921 (a), with a value of $200.00 or
more, but not more than $2000.00, a Misdemeanor of the first degree. The Court found the
Defendant guilty of Count 3 Crlmlnal Mischief, in violation of 18 Pa. C,S,A. §3304 (a)(S), a
1
summary offense; Count 6, Criminal Mischief, in violation of 18 .Pa. C.S,A. $3304 (a)(S), a
summary offense, and Count 14, Criminal Mischief, in violation of 18 Pa. C.S.A. §3304 (a)(5), a
summary offense.
On December 1 O, 2014, the Appellant was sentenced to an aggregate term of incerceretion
of 96 months to 192 months. The aggregate sentence imposed is to run consecutlvely to any and
all sentences previously imposed upon this Appellant. The Court did not impose sentence in this
case on Count 2, Count 3, Count 5, Count 6, Count 8, Count 10, Count 11, Count 13, Count l4,
and Count 16, pursuant to the provisions of 18 Pa. C.S.A. §3502(d). As was stated in tho Sentence
Order of December 10, 2013, ''[t]hose are all standard range sentences. The court imposes this
sentence because of the current number of multiple felony convictions, because the Defendant's
conduct was ongoing and caused injury to many victims, because the Defendant has shown no
remorse and has taken no responslblllty for his actions. This Judge sat as the Trial Judge in this
2
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case and observed that the Commonwealth, through an extensive investigation and much legwork
and hard work, put together a strong and compelling case against this Defendant. The
Commonwealth established that the aqua shoe foul' arrow footprints led to one person and that
person is the Defendant. Also, because we believe any lesser sentence would depreciate the
seriousness of these crimes."
On January 8, 2014, this Court received Appellant's Notice of Appeal and on January 10,
2014, directed the Appellant to file a Concise Statement of Matters Complained of on Appeal. The
Attorney who represented Appellant at trial resigned on January 6, 2014> and the Court granted
her replacement an extension of time in which to file a final 1925 (b) statement to February 19,
2014. The replacement attorney also resigned and Appellant's current counsel requested and was
granted an extension of time to file the 1925 (b) statement to May 15, 2014. On May 14, 2014,
Appellant filed a 3rd Petition for Extension of Time in Which to Flle a Final 1925 (B) Statement
of Matters Complained of on Appeal as he had not received any of the six days of trial transcrlpts
and the Court granted Appellant an extension to file his 1925 (b) Statement by June 161 2014, The
Court received Appellant's Statement of Matters Complained of on Appeal on June 3, 2014. Tn his.
Statement, the Appellant sets forth six matters complained of from which the following is taken
verbatim:
(a) The GPS warrant is invalid due to the lack of probable cause or reasonable suspicion
to issue said warrant. The facts contained in the affidavit of the OPS warrant are general
and devoid of specificity linking Mr, Ritchey to the instant burglaries, either directly
or indirectly. As such) the affidavit lacks the particularity required to establish probable
cause 01· reasonably[slc.] suspicion to issue the OPS warrant. The affidavJt in question
which was attached to the OPS search warrant is attached to this document as Exhibit
A and is incorporated by reference as is specifically outlinejslc.] hereto. Also attached
ls Exhibit B, which is incorporated by reference as if specifically outlined hereto.
Exhibit B articulates the deficiencies of'the affidavit in question. Furthermore, evidence
collected as a result of the OPS warrant was subsequently used for the issuance of
additional warrants to search and seize additional evidence from Mr. Rltchey's vehicles
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and home. Said additional evidence was entered into evidence at trial and was used to
convict Mr. Ritchey of the crimes listed in paragraph 2 above,
(b) Tho GPS warrant is invalid because the court that Issued the ors warrant did not have
[urisdlctlon over the crimes to which Mr. Ritchey was ultimately convicted in thls case,
Furthermore, evidence collected as a result of tho GPS warrant was subsequently used
for the issuance of additional wanants to search and seize additional evidence from M1•,
Ritchey's vehicles and home. Said additional evidence was entered into evidence at
trial and was used to convict Mr. Ritchey or the crimes listed in paragraph 2 above;
(c) The GPS evidence, such as route travel and specific locations as determined by the
OPS device, is so prejudicial that it outweighs any probative value and as such would
prevent Mr. Ritchey from obtaining a fair trial;
(d) The Commonwealth failed to sustain its burden of proof at the time of trial and as such
the verdict was against the s'Officiency of the evidence. Given the totality of
circumstances, the evidence presented at the time of trial was insufficient to sustain the
guilty verdicts rendered by the jury in this case;
(e) The trial court admitted evidence into the record at trial about the defendant's prior
convictions of four burglaries in Clearfield County, Pennsylvania pursuant to Rule 404
(b ). The evidence of tho prior convictions was allowed Into evidence to prove common
scheme, design> 01· plan and to establish Identity, Furthermore the trial court concluded
said evidence's probative value outweighs Its potential for prejudice. The trial court's
conclusion in allowing the prior convictions into evidence was in error.
(f) The sentence received by tho defendant from the lower court in each of the counts listed
in paragraph 2 although in tho standard range, was too harsh for the conduct he was
1
found guilty of committing.
Appellant's Statement of Matters Complained of on Appeal. This Court adequately addressed the
issues (a), (b), (c), and (e) raised by the Appellant in its Opinion and Order of Court dated June 241
2013,
However, in regards to issues (c) and (e) the Court additionally notes that the cautionary
instructions anticipated to be given to tho jury about the use of the GPS evidence and the evidence
of prior convictions were in foot delivered to the jury. See Jury Trial Day One Tr. 76:l lu77:l 1
(Nov. 15 2013). Before the Attorneys presented their opening arguments, the Court included
1
within the opening instructions to the jury the following cautionary instruction.
Jurors, before we hoar from the attorneys in their opening statements and
before we hem· any testimony or evidence, I want to give you what we call a
"cautionary instructlon." This ls vel'y important and I ask that you pay close
attention,
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You will hear evidence in this case tending to prove that the Defendant was
found guilty of offenses for which he is not on trial in this case. I am speaking of
the testimony and evidence to the effect that the Defendant was convicted of
burglaries in Clearfield County, Pennsylvania and testimony and evidence
regarding the specific conduct allegedly involved in those burglaries, which the
Commonwealth alleges will demonstrate slmilarltles between that alleged conduct
in Cleal'fleJd County, Pennsylvania, and the conduct allegedly committed by the
Defendant in this case. This evidence is before you for one limited purpose and that
is for the purpose of allegedly tending to show a common scheme or plan and
identity. This evidence must not be considered by you in any way other than for the
p\lrp0$e I just stated. You must not regard this evidence as showing that the
· defendant is a. person of bad character or criminal tendencies from which you might
be inclined to infer guilt in this case.
See Jury Tria! Day One Tr, 76:llu17:ll (Nov. 15, 2013). The Court repeated the cautionary
instruction after one of Appellant's fellow inmates testified about conversations which occurred
in jail. See Jury Trial Day Three Tr. 126: 15-127:13 (Nov. 19, 2013). The Court gave a third
cautionary instruction when the District Attorney entered by stipulation that the Defendant was
convicted on August 121\ 2012, of four counts of burglary in Clearfield County. See Jury Trial
Day Four Tr. 122: 1H123:2 (Nov. 21, 2013). The Court also gave a cautionary lusuuction after
Appellant testtfled on his own behalf and the Commonwealth introduced into the record certified
copies of some additional prior criminal convictions of the Appellant. See Jury Trial Day FiveTr,
80: 16- 83:8 (November 21, 2013).
In his Concise Statement of Matters Complained of on Appeal (d), Appellant alleges in an
all-encompassing statement that the Commonwealth did not carry its burden of proof at trial and
that the evidence presented was not sufficient to support the gullty verdict, Thus, the Court must
review the evidence of record,
A claim challenging the sufficiency of the evidence is a question of law. Bvldence will be
deemed sufficient to support the verdict when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable doubt. Commonwealth v. Karkaria,
5
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625 A. 2d 1167 (Pa. 1993), When reviewlng a sufficiency claim, the Court is required to view the
evidence In the light most favorable to the verdict winner. However, while reasonable Inferences must
be drawn In the Commonwealth's favor, the inferences must flow from facts and circumstances proven
In the record, and must be of such volume and quantity as to overcome the presumption of Innocence
and satisfy the jury of the accused's guilt beyond a reasonable doubt, Commonwealth v. Robinson,
8)7 A. 2d uss, J 158 (Pa, Super. 2003). Furthermore, "[tJhe Commonwealth may sustain lrs burden
by proving the crime's elements with evidence which Is entirely circumstantial and the trler of fact,
who determines the credibility of witnesses and the weight to give the evidence produced, is free to
believe all, part, or none of the evldence." Commonwealth v, Brown, 701 A.2d 252., 254 (P11. Super,
1997), "Where no single bit of evidence will by itself conoluslvely establish guilt, the verdict will be
sustained where the totality of the evidence supports the finding of gullt." Commonwealth v. Thomas,
561 A.2d 699, 704 (Pa. 1989)(citatlons omitted).
In order to prevail on each burglary charge, the Commonwealth was required to prove beyond
a reasonable doubt that Appellant entered a bulldlng that was not adapted for overnight accommodation
at which time no person wae present, with the contemporaneous Intent of committing a crime, at a time
when he was not licensed or privileged to enter. See 18 Pa, C.S. §3502 (a)(4), In order to prevail on
the attempted burglary charge, the Commonwealth was required to prove beyond a reasonable doubt
for the attempt that the Appellant had the Intent to comm it a specific crime and that he took n substantial
step towerd the commission of that crime and for the burglary that Appellant attempted to enter a
building with the Intent to commit a crime therein, See 18 Pa. C.S.A. § 3502(a) and 18 Pa. C.S.A. §90 l
(a). Tho Superior Court has stnted, "[tjhus the Commonwealth must prove that the defendant had both
the Intent to enter the building and tho Intent to commit a crime therein In order to sustain its burden
of proof of attempted burglary." Commonwealth v. Willetts, 419 A,2d 1280, 1281 (Pa. Super. 1980).
In order to prevail on each theft by unlawful toking charge, the Commonwealth was required to prove
beyond n reasonable doubt that Appellant unlawfully took or exercised "unlawful control over,
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movable property of another with the Intent to deprive him thereof," See 18 Pa, C,S.A. §3921 .In order
to prevail on each criminal mischief charge, the Commonwealth was required to prove beyond I\
reasonable doubt that Appellant intentionally damaged real or personal property of another, See 18 Pa.
C.S.A, §3304(5). This Court has reviewed the evidence presented during the six day trial by the
Commonwealth and finds It to be more than sufficient to sustain all sixteen of Appellant's convictions.
As Defendant was only sentenced on the burglaries and attempted burglary the Court focuses only on
those charges for the purposes of this appeal.
In her closing, Appellant's Attorney focused on tho differences between the five burglaries
and one attempted burglary. Jury Trlal Day 6 Tr, 21: 13-43:25 (Nov. 25, 2013). She did not dispute
that the burglaries, theft by unlawful taking) or criminal mischief occurred but rather argued that
Appellant did not commit them. Jury Trial Day 6 Tr. 43: 18-44: 1 (Nov. 25, 2013), She concluded,
I submit to you thnt his[Appellanes] testimony fell along the lines of all tho testimony of the
officers. He's not contradicting what was going on here, The only thing that he is contradicting
is that he committed the burglaries, I submit to you that he did not commit the burglaries and
he should be found not gullty of these crimes,
Id. Appellant, thus Is challenging the sufficiency of the evidence linking him to the crimes,
The Commonwealth presented evidence that demonstrated that Appellant possessed tools
which were substantially slmllar to those used in committing the burglaries and Indeed Appellant
admitted to owning the tools, but argued that he possessed them for legitimate purposes such as
renovating a house he owned, See Jury T1•Jal Day 5 Tr. 40:3.43: 10 (Nov. 21, 2013). He kept many of
the tools In a backpack in his bedroom not with the rest of his tools and not at the home which was
being renovated, Id. A big crow bar was found in his vehlclo. Id.; See Commonwealth ex rel Miller v.
Maroney, I 16 A.2d 755 (Pa. Super. 1955)(''Possesslon of burglary tools would not in itself be
sufficient for a verdict of guilty, but jury may consider all the circumstances of the case, in addition to
the possession of the tools to determlne guilt, providing other evidence was produced relating to
burglary and stolen artlcles so that the Jury could infer defendants had Intent to use tools fol' a felonious
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purpose."). The Commonwealth presented the testimony of one of Appellant's cellmates, Thomas
Akroyd, who recounted that the Appellant had spoken to a great extent about the burglaries, See Jury
Trial Day 3 Tr. J 19: 15J18 (Nov. 19, 2013). Mr. Akroyd testified that,
A. He[Appellant] did, he bragged that he was very smart, very intelllgont: ho claimed that he
had an engineering degree. You know, when you're in jail you sort of get to talk to people
and then you flnd out why they're in jail and he made it very clear that he was In Jail fol'
burglary, So he claimed he had an engineering degree. This didn't all come out at once,
you know, this is over a period of two, three days, you know. But he claimed that he was
very smart, he had and[slc.] englneerlng degree so therefore he had a vast knowledge of
heating and alr-condltlonlng systems, which really helped him wlth his knowledge of how
to get Into these places.
Q. And um did he talk about picking a building?
A. Ma'am, when he-""it w~s a linle weird you know, when he spoke about this it was like a
twinkle In his eye and you know, his face lit up when he talked about breaking Into a
building and how ho would figure lt out and he would Just go from there.
Q. So he approached it sort of methematically?
A. Yes, ma'am, yes ma'am. He wasn't happy until he had the conclusion. That's the way he
described it to me.
Q. Dld he talk about the reasons why he did it?
A. You know he didn't really talk about why ho did It. You know he did mention a few
occasions where he was not flnanclally hurting to where he did need money and It was
more or less Just to prove that he could do it, you know, that' s the way he described It to
me,
Q. Did he talk about um ---the counties where the break-ins occurred?
A, Clearflcld and Venango.
Q. Clearfield and Venongo?
A. Vos Ma'am.
Jmy Trlal bay 3 Tl'. 119; 15-121 :12 (Nov. 19, 2013). From this evidence, the jury was free to conclude
that Appellant hod admitted and even bragged about committing burglaries within Venango County,
See Commonwealth v, Staino, 204 A.2d 664 (Pa, Super. l 964)("Testimony to the effect that defendants
admitted to witness that they had partlclpated In burglary would be sufficient to convict, Irrespective
of amount taken."). The jury was free to connect Mr, Akyrod's testimony about Appellant's knowledge
of air-conditionlng systems with the testimony of Mr. Greg Peiffer, manager of the 84 Lumber
Company about how the 84 Lumber burglary was accomplished by removing the alr conditioner from
the office window and the burglar had gained access by crawling through the opening created, See Jury
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Tl'lal Day 2 Ti·. I I 6:4-1 I 9:7 (Nov. 18, 20 l 3 ). There was additional testimony that Appellant would
have been able to fit through the opening created. Jury Trial Day 2 Tl', 134: 10~21 (Nov. 18, 2013).
There was also evidence presented showing dint the Appellant bought one pair of aqua shoes
with a four arrow shoe pattern from Walmart on May 21, 2011 and one pair of aqua shoes with the
same pattern from Walmart on July 17, 2011, Jury Trial Day 3 Tr. 128:14-156:8 (Nov. 19, 2013)
(Corporal Donald Cloak). Appellant admitted to purchasing the shoes and claimed they were for
use in Florida and at Lake Brie, Jury Trial Day 5 Tr. 43:13-46:4 (Nov. 19, 20l3), A mere two days
after Appellant purchased the shoes, the four arrow patterned tracks were found at the scene of
each of the three commercial burglaries committed on May 23-24 of20111 and were also found at
the scenes of the subsequent burglaries Appellant was convicted of in this case. The burg lades at
Klapec Trucking and R&R Garage occurred the same night June 1s1 through June znd, 2011. 84
Lumber was entered through the hole created by removing the air conditioner and the non-slip
dotted glove pattern and four arrow shoe pattern was found on a blueprint that was on the table
next to the hole created by the air conditioner. It is unique and atypical to find water shoe tracks at
these particular commercial businesses, Heavy machinery and equipment on the premises of these
businesses make steel-toed shoes a much safer option than aqua shoes which are intended for
swimming, kayaking, or other water sports. This aqua shoe pattern was present at the scenes of the
instant burglaries and the burglaries Appellant was convicted of in Clearfield County. The aqua
shoe pattern was not found at the scene of the attempted burglary of Whalen Contractlng, but the
attempt at Whalen Contracting occurred close in time and location to the burglaries which occurred
the same night at Hards Welding and Thomas Auto which had the four arrow print design. See
Commonwealth v. Brosko, 365 A.2d 867 (Pa, Super, 1976) ("Burglary conviction was supported
I Themas Auto and Hards Welding were broken Into in the evening hours ofMny 23·24, 2011 and the attempted
burglary M Whalen'» Contracting occurred during that same time.
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by evidence tha; defendant was found in possession of property burglarized from service station
only several hours previously, and that modus operandi of burglary at such station matched that
employed by defendant in burglarizing second service station,") and Commonwealth v. Burton,
770 A.2d 771 (Fa, Super, 2001)> appeal denied, 868 A.2d 1197 (Pa. 2002)(4'Conviction for
attempted burglary was supported by evidence that someone had entered home by pushing in
window screen, that shoe impression on seat of chair under window matched shoes defendant was
wearing at time of his arrest, and that defendant had burglarized two nearby residences on same
evening."). The Commonwealth introduced evidence that at every burglary scene there were a pair
of non-slip rubber dot gloves being worn. The burg lades were conducted after the businesses were
closed between 11 p.m, and 4 a.m, when few cars are on the road, Each business had fllJng cablnet
and desk drawers opened and papers scattered around the office. Money was primarily what was
taken from the different businesses, with the exception of the securlty system taken from Klapec
Trucking. The jury heard testimony from Trooper Rodinbaugh detailing tho Appellant's
movements through the OPS tracker placed on the Mazdil the night of the Clearfield County
burglaries which placed him in the vicinity of those burglaries. Jury Trial Day 4 Tr. 87 :20" 101 :6
(Nov. 21, 2013). At all of the businesses burglarized any security systems were disabled, cable and
phone lines were cut at each of the businesses. The jury heard testimony from Trooper David
Brown that on tho night of the 84 Lumber burglary, the LSAG North American Plate Reader
System on Route 257 between Oil City and 84 Lumber recorded Appellant's Mazda's license plate
passing the camera at 3:10 a.m, Jury Trial Day 4 Tr. 105:23~109:16 (Nov, 21, 2013). From this
evidence the Jury was free to believe that based on tho similarities in the details of the burglaries,
"proof that a person. committed one of them makes it very unlikely that anyone else committed the
others." See Commonwealth v. Ross, 57 A.3d 85, 105 (Prt. Super. 2012).
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The Jmy also heard evidence that after Corporal Cloak approached Appellant at the Sheetz
in Clarion on June 15, 2011 and inquired about the tires that were on Appellant's Toyota Camry
as they matched tire tracks at a burglary scene, Appellant went to Walmart and had his tires
changed within two hours of the conversation with Corporal Cloak. Jury Trial Day 3 Tr, 128:14-
156:8 (Nov. 192013) (Corporal Donald Cloak). The jury also heard testimony that when Appellant
was arraigned in Clearfield County for burglary he asked to speak to Corporal Cloak and Trooper
Ray and had the following conversation with them.
A. At that point he[Appellant] related a hypothetlcal to us. If a person was to·
commit these eighty to a hundred crimes that you guys say, and points to us,
would it be better for that person to got it out in the open at this time? And we
reassured him, yes it would.
Id. at 143: 24~27. Additionally, the Jury heard testimony that the surveillance system that was
stolen from Klapec's Trucking was discovered in Appellant's bedroom, Jury Trial Day 1 Tr. 99:
20-112:4 (Nov. 15, 2013 )(Trooper Mark Swartfager). Appellant claimed that he had bought the
security system outside of his mother's bait shop from a guy who he didn't remember in a white
van for a big discount. Jury Trial Day S Tr. 53: 20- 55:9 (Nov, 21, 2013). Sec Commonwealth v.
Weave1•1 280 A.2d 5 85 (Pa. Super. 197 l)C'Possession of stolen clock by witness, who had received
it as a Christmas gift from the accused charged with burglary within minutes after burglary was
circumstantial evidence from which a jury could draw inference of accused's guilt in view of the
unreasonable explanation of its possession by accused") and Commonwealth v'. Fisher, 372 A.2d
1 (Pa. Simer. 1977)("Evidonce, in prosecution of defendant for burglary and criminal conspiracy,
including evidence that grandfather clock resembling stolen grandfather clock was found in
defendant's apartment, was sufficient to support convlctlon."). The jUty heard testimony that
Appellant was near Hards Welding and in 84 Lumber earlier In the day before the burglaries took
place, See Commonwealth v. Balch, 476 A,2d 458 (Pa. Super. 1984)C'Evidence that defendants
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were seen in vicinity of burglarized home on the day on which burglary occurred and that stolen
items were later found in automobile in which defendants were riding was sufficient to sustain
defendants' convictions for burglary and criminal conspiracy."). The [ury heard undisputed
testimony from each of the victims as to the amount of damages that they suffered. Afte1• a careful
review of the record> the Court rejects Appellant's challenge to the sufficiency of the evidence to
support his convlctlons as merltless,
Appellant's last contention is that his sentence Is too harsh for the conduct he was found
guilty of committing, although he admits he received a standard range sentence. It ls noted at the
outset that "sentencing is a matter vested in the sound discretion of the sentencing j\ldge) whose
judgment will not be dtstorbed absent an abuse of discretion. Commonwealth v. Perry, 883 A,2d
599, 602 (Pa.Super.2005). 11 A challenge to an alleged excessive sentence ls a challenge to the
discretionary aspects of'a sentence." Commonwealth v. Pennington, 751 A.2d 212, 215 (Pa, Super.
2000), "Challenges to the discretionary aspects of sentencing do not entitle an Appellant to review
as of right," Commonwealth v. Moury, 992 A,2d 162, 170 (Pa. Super. 2010). Before an Appellant
is entitled to review of the discretionary aspects of his sentence, he must satisfy a four-part test:
[W]e conduct a four-part analysis to determine (l) 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 reoonslder 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, 909 A.2d 303 (Pa.
2006)(intemal citations omitted). A substantial question occurs,
only when the appellant advances a colorable argument that the sentencing judge's
actions were either: ( 1) lnconslstent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process." Commonwealth v. Sferra, 752 A.2d 910, (Pa. Super. 2000). Generally,
"[a]n allegation that the sentencing court failed to consider certain mitigating
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factors generally does not necessarily ridse a substantial question. Commonwealth
v. McNabb, 819 A.2d 54, 57 (Pa. Super, 2003). Accord Commonwealth v. Wellor,
731 A.2d 152, 155 (Pa. Super. l 999)(reiterating allegation that sentencing court
"failed to consider" or "did not adequately consider" certain factors generally does
not misc a substantial question),
Commonwealth v, Moury, 992 A.2d at 171.
The Superior Court of Pennsylvania has stated that in exercising its discretion at
sentencing, "the trial court must consider tho character of the defendant and the particular
circumstances of the offense .•• , and must impose a sentence that is consistent with the protection
of the public, the gravity of the offense, and the rehabilitative needs of tho defendant."
Commonweath v. Guth, 735 A,2d 709, 711 (Pa, Super. 1999). More specifically, "the court should
refer to the defendant's prior criminal record, his age, personal characteristics and his potential for
rehabilitation," Commonwealth v. Gr(f]ln, 804 A.2d l, l O (Pa. Super, 2002), appeal denied, 868
A.2d 1198 (Pa, 2005), cert. denied, 545 U.S. 1148 (2005). When the "sentencing court had the
benefit of a presentence investigation report (HPSl"), we can assume the sentencing court 'was
aware of relevant information regarding defendant's character and weighed those considerations
along with mitigating .statutory factors.!" Commonwealth v. Moury, 992 A,2d at 171 (citations
omitted). Additionally, "where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the Sentencing Code." Moury, 992 A,2d
at 17 L .Moreove1", "the imposition of consecutive, rather than concurrent) sentences may raise a
substantial question in only the most extreme circumstances, such as where the aggregate sentence
is unduly harsh, considering the nature of the crimes and length of imprisonment." Commonwealth
v. Pass, 914 A,2d 442, 446-447 (Pa. Super. 2006). A "clalm of excessiveness may raise a
substantial question where an appellant provides a plausible argument that the sentence is contrary
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to the Sentencing Code or the fundamental norms underlying the sentencing process,"
Commonwealthv, Mouzon, 812 A.2d 617 (Pa. 2002).
The Court notes that the sentences Appellant received are within the standard range of the
sentencing guidelines. Burglary, where the building is not a home and no persons were present
receives an offense gravity scorn of 5, 203 Pa. Code §303.15. Appellant had a prior record score
of 3. Appellant was convicted of five separate counts of Burglary and one count of attempted
Burglary and received a sentence of sixteen (16) months to thirty-two (32) months on the each
count to run consecutive to one another. The standard minimum sentencing guideline range for
this offense is 6 months to 16 months. Appellant's minimum sentence for each count of Burglary
was the highest possible standard range minimum sentence. The statutory limit fo~· a minimum
sentence for Burglary is slxty months,
In the instant matter, immediately before sentencing the Appellant, this Court stated on
tho record the factors that were considered in imposing the sentence. Speclflcally, this Court stated:
In imposing sentence in this CASO, we have considered the
Defendant's age, his education, the condition of his health, medical
history, including mental health, family history, employment history
and all the other information contained in the pre-sentence
investigation report. We have considered the Defendant's statement
made to U1e court at sentencing, the report from the Venango County
Prison, in the form of the Venango County Prison Inmate Evaluatlon
Report. We have considered the remarks of defense counsel at the
sentencing hearing and the recommendation made by the
Commonwealth at the sentencing hearing. We have considered the
circumstances surrounding all of these offenses; this Judge sat as the
Trial Judge in this case, The court has considered the sentencing
guidelines and all other relevant factors,
Sentence Hr'g Tr. 25:18-26:12 (December 10> 2013). Furthermore in the December 101 2013,
Order of Sentence, this CouL1 stated, "[tjhese are all standard range sentences. The court imposes
this sentence because of the current number of multiple felony convlctlons, because the
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Defendant's conduct was ongoing and caused injury to many victims) because the Defendant has
shown no remorse and has taken no responsibility for his actions. This Judge sat as the Trial Judge
in this case and observed that the Commonwealth, through an extensive investigation and much
legwork and hard work, put together n strong and compelling case against this Defendant, The
Commonwealth established that the aqua shoe four arrow footprints led to one person and that
person is the Defendant. Also, because we believe any lesser sentence would depreciate the
seriousness of these crimes."
At sentencing Appellant's counsel and Appellant sought concurrent sentences for the
counts stating that they should be considered a crime spree. Sentence Hr 'e Tr. 22: 11-15
(December 10, 2013). It is well settled that "In imposing sentence, a trial judge is given the
discretion to determine whether, given the facts of a particular case, a given sentence should be
consecutive to, or concurrent with, other sentences being imposed." Commonwealth v,
Rickabaugh 706 A.2d 826, 847 (Po. Super, 1997). Appellant is not entitled to a "volume discount"
for committing multiple burglaries. Appellant burglarlzed or attempted to burglarize six separate
businesses which each suffered individualized damage and loss. This is not Appellant's first
"crime spree," his PSI contained prior theft by unlawful taking convictions and burglary
convictions. Consecutive sentences do not "present a substantial cuestlon regarding the
discretionary aspects of the sentence." Com. v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995),
The allegation that the sentence received by the Appellant, although in the standard range,
was too harsh for the conduct he was found guilty of committing, absent more, does not raise a
substantial question. Moury, 992 A.2d at 175. Based on the foregoing, the sentence imposed by
the Court is supported by sufficient explanation, is not unreasonable or unduly lengthy, and is
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consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs
of the Appellant.
Based on the foregoing, the Appellant's issues raised I\S matters complained of on appeal
are deemed without merit.
BY THE COURT,
cc: PA
Jeffrey Misko, Esq.
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