Com v. Phinizy, C.

J-S70040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
COREY PHINIZY
Appellant No. 1627 EDA 2015
Appeal from the Judgment of Sentence April 9, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000358-2014
BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 02, 2015
Corey Phinizy appeals from the judgment of sentence entered in the
Court of Common Pleas of Montgomery County following his convictions for
burglary1 and criminal trespass.2 After our review, we affirm.
On October 21, 2013, Jayson Leypolt was awakened in the early
morning by a rustling sound in his bedroom; he saw a man using a cell
phone for light and rummaging through his closet. Leypolt was able to
chase Phinizy from his home. Leypolt reported the incident to the
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3502.
2
18 Pa.C.S.A. § 3503.
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Conshohocken Borough Police Department and identified Phinizy from a
photo array.
At trial, Phinizy admitted on cross-examination that he did not know
the victim. He admitted that he entered the victim’s apartment without
permission, that he was trespassing, and that he went there to buy
marijuana from someone named Dwayne Johnson. N.T. Trial, 12/22/14, at
87-89, 91.
Following trial, a jury convicted Phinizy of burglary and criminal
trespass. The court sentenced him to a term of imprisonment of five to
fifteen years’ imprisonment. On appeal, Phinizy raises one issue for our
review: “Did the trial court err in denying the motion for judgment of
acquittal and thereafter finding appellant guilty of the crime of burglary since
there was no sufficient evidence beyond a reasonable doubt of unlicensed
entering with intent to commit a crime therein?”
Phinizy’s claim is waived. The court ordered Phinizy to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal. Trial Court Order,
6/9/15. In his Rule 1925(b) Statement, Phinizy stated: “The evidence was
insufficient as a matter of law to convict appellant of Burglary[.]” Pa.R.A.P.
1925(b) Statement, 6/29/15. The trial court noted that Phinizy failed to
identify which elements of his burglary conviction were not established at
trial. See Trial Court Opinion, 7/14/15, at 4.
In order to preserve a challenge to sufficiency of the evidence on
appeal, an appellant must state with specificity the element or elements of
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the crime upon which he alleges the evidence was insufficient. See
Commonwealth v. Veon, 109 A.3d 754, 775 (Pa. Super. 2015), citing
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) and
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009). Here,
Phinizy’s Rule 1925(b) Statement fails to identify which specific element of
his burglary conviction lacked sufficient evidence. See Garland.
Accordingly, we find Phinizy’s claim waived on appeal.3
Judgment of sentence affirmed.
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3
Were we to address the merits of this claim, we would find the evidence
sufficient to support the burglary conviction. In a challenge to sufficiency of
the evidence, we view the evidence and all reasonable inferences arising
therefrom in the light most favorable to the Commonwealth as the verdict
winner. Commonwealth v. Hall, 701 A.2d 190, 195 (Pa. 1997). The
Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial
evidence. Commonwealth v. Dellavecchia, 725 A.2d 186, 188 (Pa. Super.
1998)(en banc).
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[.]” 18 Pa.C.S.A. § 3502. Phinizy argues he had no intention of
stealing anything or of committing any violent act. He claims his actions
were a result of “mere stupidity as opposed to criminality.” Appellant’s
Brief, at 9. The jury, however, was convinced otherwise. The victim awoke
to find Phinizy rifling through bags in his bedroom closet. The jury could
certainly infer that Phinizy was searching for items to steal. The
circumstantial evidence was sufficient to support Phinizy’s burglary
conviction.
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J-S70040-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2015
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