Com. v. West, J. ( 2017 )

J-S47023-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JOSEPH WEST
Appellant No. 2498 EDA 2015
Appeal from the Judgment of Sentence July 13, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0006619-2013
BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MOULTON, J.: FILED DECEMBER 01, 2017
Joseph West appeals from the July 13, 2015 judgment of sentence
entered in the Montgomery County Court of Common Pleas following his
convictions for criminal attempt to commit burglary, conspiracy to commit
burglary, and conspiracy to commit criminal trespass.1 We affirm.
The opinion of the Honorable Thomas P. Rogers summarized the
relevant factual and procedural history of this matter as follows:
On Tuesday, March 19, 2013, Dr. Roger Tsai and his wife
were relaxing downstairs in their two-story home on
Gwynedd Lea Drive in the North Wales section of
Montgomery Township, Montgomery County, between 1:00
and 1:30 p.m. when they heard the doorbell ring and a
knock at their front door. (Notes of Testimony (“N.T.”) Trial,
4/8/15, at 29-31; Commonwealth Exhibit C-1 Photograph of
Tsai two-story home). Believing that it was probably a
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1 18 Pa.C.S. §§ 901(a), 903(a)(1), and 903(a)(1), respectively.
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delivery from a carrier who would leave a package outside,
they ignored the doorbell. (Id. at 31). Dr. Tsai was not
expecting anyone at his home at that time. (Id. at 32).
When the doorbell ringing and knocking persisted, and
thinking it was unusual, Dr. Tsai went upstairs to look
outside a window over the front entrance to see who was at
their door. (Id.). Once there, Dr. Tsai saw two (2) African–
American males that he did not recognize and had not seen
before wearing dark sweatshirts at his front door entrance.
(Id. at 32-33).
Following a minute or two of knocking and ringing of the
doorbell without getting a response, Dr. Tsai observed the
two men walk away from his front door and over to a van
parked across the street. (Id. at 33-34). Dr. Tsai watched
as the two men got into the van. Because of what had just
occurred, Dr. Tsai retrieved his camera with a zoom lens and
photographed the vehicle with its license plate (JFE 9210)
before it drove away. (Id. at 34-35; Commonwealth Exhibit
C-2 Photograph of vehicle).
After the van pulled away, it drove around the block,
passed by the Tsai home and parked a few houses down on
the street. (Id.). Dr. Tsai watched as three (3) men got
out of the van, crossed the street and walked toward his
house. (Id. at 35). Dr. Tsai took photographs of one of the
men as he approached the Tsai home. (Id. at 35-36;
Commonwealth Exhibit C-2). As the men got closer to his
home, Dr. Tsai dialed 911. (Id. at 36). While Dr. Tsai was
on the phone with the police, he lost sight of the men as
they got very close to the front of his house. At this point
he heard a loud banging noise coming from the front of his
house. (Id. at 36-37). He looked down to the first floor
living room and noticed an open window. (Id. at 37; N.T.
Sentencing Hearing, 7/13/15, at 18). Since it was the
middle of March and cold outside, he knew that neither he
nor his wife had opened that window. (N.T. Trial 4/8/15 at
37-38). Dr. Tsai started yelling so that the men could hear
him. (Id. at 37). Looking out the second floor window
again, he saw the three men walking away from his house
and he took another photograph. (Id. at 37-38;
Commonwealth Exhibit C-2 Photograph of three men
walking away from the Tsai home).
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Montgomery Township Police Department responded to
the call at 1:47 p.m. and investigated the open window on
the front of the Tsai home. (N.T. Trial 4/8/15, at 40;
Affidavit of Probable Cause sworn on 8/6/13). Dr. Tsai
noticed pry marks on the window that had just been
installed as new a few months before, indicating an
attempted forced entry. (Id. at 38, 39). In addition, Dr.
Tsai noticed that the window lock had been broken. (Id. at
39-40).
Montgomery Township Police Department broadcasted a
description of the suspects and their vehicle to area police
departments. (N.T. Sentencing at 18-19). At approximately
2:00 p.m. on March 19, 2013, a gold Dodge Caravan with
license plate number JFE 9210 was reported stolen to the
Philadelphia Police Department. (N.T. Sentencing at 19;
Affidavit of Probable Cause). Cheltenham Township Police
Department located the same gold Dodge Caravan shortly
after 2:00 p.m. that day in an Aldi parking lot. (N.T. Trial
4/8/15, at 46). After securing a search warrant, a search of
the Caravan by Montgomery Township Police Department
netted several items, including two (2) crowbars, a
screwdriver, two (2) sweatshirts, one (1) black leather Nike
glove and two (2) black knit gloves. (Id. at 47-51; N.T.
Habeas Corpus Hearing 1/8/14, Commonwealth Exhibit C-5
Receipt/Inventory). DNA testing from these items resulted
in no interpretable results. (N.T. Trial 4/8/15, at 46).
Fingerprint testing resulted in a match for only one person,
not [West]. (Id.).
After showing the photographs taken by Dr. Tsai on
March 19, 2013, to other law enforcement officers, police
were eventually able to identify [West] as one of the men in
those photographs. (Id.; N.T. Sentencing at 19).
Montgomery Township Police Department filed a criminal
complaint with an affidavit of probable cause and arrested
[West] on August 15, 2013. [West] filed a petition for writ
of habeas corpus and, after a hearing on January 8, 2014,
the court found that the Commonwealth had met its burden
of establishing a prima facie case. (N.T. Habeas Corpus
Hearing 1/8/14 at 37). [West] proceeded to trial. On April
6, 2015, the Commonwealth filed a motion in limine to
introduce [West]’s police booking photographs at trial to
help prove that [West] was the person shown in Dr. Tsai’s
photographs approaching the Tsai home on March 19, 2013.
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(Commonwealth’s Motion in Limine filed April 6, 2015). On
the morning of the first day of trial, counsel reached an
agreement that resulted in the Commonwealth taking
photographs of [West] that day in the courtroom outside the
presence of the jury instead of using the police booking
photographs. (N.T. Trial 4/8/15, at 3-4).
The Commonwealth presented the testimony of Dr. Tsai
regarding the events of March 19, 2013, at his home and
what Dr. Tsai personally heard, observed and
photographed. (Id. at 29-39; Commonwealth Exhibits C-1,
2). [West] had the opportunity to test that evidence on
cross examination. (Id. at 39-44). The Commonwealth then
presented the testimony of Montgomery Township Police
Officer Daniel Rose. Officer Rose testified about his
execution of a search warrant on the gold Dodge Caravan
and the items he recovered therein. (Id. at 47-52). [West]
again tested the Commonwealth’s evidence on cross
examination. (Id. at 52-55). At the close of testimony, the
Commonwealth introduced photographs by agreement that
fairly and accurately showed what [West] looked like in the
courtroom on that day. (N.T. Trial 4/8/15, at 57-58;
Commonwealth Exhibit C-7).
In his opening statement and at the close of trial,
Defense Counsel pointed to the lack of DNA, fingerprint and
cell phone evidence as well as Dr. Tsai’s failure on the
witness stand to identify [West] as the person in the
photograph that Dr. Tsai took, in support of Counsel’s
argument that the Commonwealth had not proven its case
beyond a reasonable doubt. (N.T. Trial Opening Statements
and Closing Arguments 4/8/15 and 4/9/15 at 8-9, 10-15).
Counsel conceded that there were similarities between the
individual in the photograph taken on March 19, 2013, and
[West], but argued that the photographs were insufficient
evidence without anything else to put him at the Tsai home
or in the stolen van. (Id. at 14-15).
For his closing argument, Assistant District Attorney
Benjamin McKenna presented a detailed, comparative
analysis of the photographs taken of [West] in the
courtroom with the photographs taken by Dr. Tsai on March
19, 2013. (Id. at 22-25). He explained that even if Dr. Tsai
had identified [West] from the witness stand, the jury
members would still have to weigh the evidence and come
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to their own conclusion regarding the photograph taken on
March 19, 2013. (Id. at 20-21). Using blow-ups of two of
the photographs in evidence, ADA McKenna specifically
pointed to the marked similarities between the two,
including: the hairline, chinstrap beard, hair (including
sparse spots, waves and curls), nose, lips, chin, ear,
mustache, forehead, mark on the forehead and eyebrow.
(Id. at 22-25; N.T. Trial 4/9/15 at 38-39).
As noted above, the jury found [West] guilty on one
count of criminal attempt and two counts of criminal
conspiracy. The court granted the Commonwealth’s motion
to nol[le] pros count 4 criminal mischief and count 5
possession of an instrument of crime. On June 5, 2015,
[West] mailed a pro se Petition for Judgement [sic] of
Acquital [sic], which the Clerk of Courts docketed on June
9, 2015. This court denied the petition on June 23, 2015.
The undersigned imposed [West]’s sentence on Monday,
July 13, 2015. (N.T. Sentencing Hearing 7/13/15, at 23-
24). [West] did not file any post-sentence motions. Instead,
[West] sent a pro se Petition for Post-Conviction Collateral
Relief dated July 14, 2015, which the Clerk of Courts
docketed on July 22, 2015. On July 15, 2015, [West] mailed
a pro se notice of appeal, which the Clerk of Courts docketed
on August 17, 2015.
The undersigned appointed the Montgomery County
Public Defender’s Office to represent [West] and directed
[West] to file a Concise Statement of the Matters
Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b)
(“Statement”) by order dated August 20, 2015. The court
granted [West]’s two requests (September 18, 2015 and
December 1, 2015) for extensions to file his Statement. On
September 4, 2015, this court also granted [West]’s request
to withdraw his pro se PCRA petition without prejudice
pending his direct appeal. [West] subsequently filed his
Statement on December 31, 2015.
Opinion, 12/29/16, at 2-8 (“1925(a) Op.”).
West raises the following issues on appeal:
I. Was the evidence insufficient to prove [West]’s guilt
beyond a reasonable doubt, where the evidence was
insufficient to identify [West] as the perpetrator of the
charged offenses?
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II. Was the evidence insufficient to establish each element
of the crimes of attempt burglary and conspiracy to commit
burglary beyond a reasonable doubt where, at most, the
evidence and reasonable inferences only established the
crime of criminal trespass?
West’s Br. at 4 (answers below omitted).
Our standard of review for a claim challenging sufficiency of the
evidence is well-settled:
We must determine whether the evidence admitted at
trial, and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the trier
of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe
all, part, or none of the evidence presented. It is not within
the province of this Court to re-weigh the evidence and
substitute our judgment for that of the fact-finder. The
Commonwealth’s burden may be met by wholly
circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the fact[-]finder unless
the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)
(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).
West first claims that the evidence was insufficient to identify him as the
perpetrator of the crimes committed. “[E]vidence of identification need not
be positive and certain to sustain a conviction.” Commonwealth v. Orr, 38
A.3d 868, 874 (Pa.Super. 2011) (quoting Commonwealth v. Jones, 954
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A.2d 1194, 1197 (Pa.Super. 2008)). “[A]ny indefiniteness and uncertainty in
. . . identification testimony goes to its weight.” Id. (quoting Commonwealth
v. Minnis, 458 A.2d 231, 233 (Pa.Super. 1983)). Accordingly, “[t]he weight
to be given to identification testimony is for the trier of fact.”
Commonwealth v. Whitman, 380 A.2d 1284, 1289 (Pa.Super. 1977).
At trial, the Commonwealth admitted photographs taken by Dr. Tsai on
the day of the incident into evidence. N.T., 4/8/16, at 34. Dr. Tsai described
one photograph as “a picture of the one of the man [sic] that approached my
house” and another photograph as “the same person, a little bit close up,
different shot.” Id. at 35-36. The Commonwealth also admitted, without
objection, another photograph that the parties stipulated “fairly and
accurately shows what [West] looks like today in court.” Id. at 57. Viewing
the evidence in the light most favorable to the Commonwealth as the verdict
winner, we conclude that there was sufficient evidence to support the
identification of West as the perpetrator of the crimes. Any indefiniteness and
uncertainty regarding the photographic evidence admitted goes to its weight,
which is a question for the jury as fact-finder.2
West next challenges the sufficiency of the evidence supporting his
convictions for attempted burglary and conspiracy to commit burglary.
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2 West does not challenge the weight of the evidence on appeal.
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Specifically, West contends that there was no evidence that any of the
intruders intended to commit a crime inside the home.
“At both common law and statutory law, the crime of burglary or
attempted burglary encompasses the element of intent to commit a felony or
any qualified crime within the burglarized premises.” Commonwealth v.
Wilamowski, 633 A.2d 141, 142 (Pa. 1993). “[I]ntent . . . can be inferred
from the circumstantial evidence surrounding the incident.” Id. We have
discussed the elements of criminal conspiracy as follows:
A conviction for criminal conspiracy, 18 Pa.C.S.[] § 903,
is sustained where the Commonwealth establishes that the
defendant entered an agreement to commit or aid in an
unlawful act with another person or persons with a shared
criminal intent and an overt act was done in furtherance of
the conspiracy.
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002).
The trial court found that:
Instantly, the Commonwealth presented evidence that
two men Dr. Tsai did not know and did not invite to his home
came to his front door on March 19, 2013, rang the doorbell
and knocked several times before walking away, having
received no response. One logical inference is that those
two men were casing the home. The two men got into a
Dodge Caravan, which then drove around the block and
parked further away on the street from the Tsai home before
three men got out. Those three men then approached the
Tsai home. Dr. Tsai took close-up photographs of one of
those three men. While Dr. Tsai was upstairs and lost visual
contact of the men because they were close to his house,
he heard a banging noise on the front of his house. When
he looked down into the first floor living area, Dr. Tsai saw
the curtains on one window blowing into the house and
realized that the window had been opened. Since it was
mid-March and cold outside, he knew that neither he nor his
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wife had opened that window. After Dr. Tsai yelled loudly,
the three men then walked away from the Tsai home and
got back into the Dodge Caravan. Dr. Tsai testified that the
window and frame were new and had just been installed in
their home a few months earlier and now had pry marks on
it and a broken lock. Shortly thereafter, police officers found
two crowbars, a screwdriver, two black sweatshirts and
gloves inside of that same Dodge Caravan, which had been
reported stolen after the attempted burglary. Police officers
later identified [West] as the person they recognized in Dr.
Tsai’s photograph.
One logical inference is that after receiving no response
to their initial knocking and ringing of the doorbell to see if
anyone was home, the three men moved the van farther
away from the Tsai home before attempting to enter it so
that no one would later connect the vehicle with the Tsai
home. Another logical inference is that at least one of these
three men used a crowbar to break the lock and pry open
the downstairs window of the Tsai home with the intent to
gain entry for an illegal purpose. Once they realized that
someone was actually inside the house, the three men left.
It is not necessarily surprising that they walked away, rather
than ran, so as to avoid drawing attention to themselves
and raising suspicion by anyone else in the neighborhood
that may have been home at the time. The Commonwealth
established sufficient evidence at trial to sustain a conviction
for attempted burglary, criminal conspiracy to commit
burglary and criminal conspiracy to commit trespass.[3]
1925(a) Op. at 14-15. Viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, we agree with the trial court’s
conclusion that there was sufficient evidence to support West’s convictions for
attempted burglary and conspiracy to commit burglary, including that West
intended to commit a crime within the burglarized premises.
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3West does not challenge his conviction for conspiracy to commit
trespass on appeal.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2017
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