Commonwealth v. Jacquez

J-S15011-15
2015 Pa. Super. 66
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEVIN ADOLFO JACQUEZ
Appellant No. 1231 MDA 2014
Appeal from the Judgment of Sentence June 19, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003170-2013
BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.
OPINION BY LAZARUS, J.: FILED APRIL 06, 2015
Kevin Adolfo Jacquez appeals from the judgment of sentence imposed
by the Court of Common Pleas of Berks County following his conviction for
conspiracy to commit burglary,1 theft by unlawful taking (M3),2 conspiracy to
commit theft by unlawful taking,3 and receiving stolen property.4 After
careful review, we affirm.
The trial court summarized the facts of this case as follows:
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1
18 Pa.C.S. §§ 903(a)(1), 3502(a)(2).
2
18 Pa.C.S. § 3921(a).
3
18 Pa.C.S. §§ 903(a)(1), 3921(a).
4
18 Pa.C.S. § 3925(a).
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On the morning of April 4, 2013, Antonio Fernandez arrived at
the store he owns and manages, La Esquina Famosa at 1300
North 10th Street in the City of Reading, and discovered its
contents strewn across the floor. Fernandez had closed the
store around 10:30 p.m. the previous night, and the door was
still locked the next morning. He noticed that one of the ceiling
panels had been moved, and that the items on a shelf
underneath the panel were positioned, “as if somebody had
stepped on there.” Fernandez investigated the ceiling panel and
noticed a large hole leading to the upstairs apartment.
Fernandez also recognized that numerous items were missing,
including a bank envelope, cigars, cigar wrappers, cigarettes, a
water jug filled with change, and other store merchandise.
Fernandez called the police, and at approximately 7:50 a.m.,
Officer James Yeasted arrived and spoke with Fernandez.
Yeasted saw [Jacquez] standing outside the store; [Jacquez],
holding two black garbage bags, was next to a nearby door
landing to stairs to an apartment. Yeasted learned that
[Jacquez] lived in an apartment above the store with his
girlfriend, who was the only individual who had keys. [Jacquez]
stated that they had been moving out of the apartment the night
before, and that he had returned that morning to move
additional items.
[Jacquez] granted them permission to look around inside. In the
corner of the main room, Yeasted observed an empty water jug
identical to the one missing from the store. Inside the kitchen
stove, there was a black backpack containing Fernandez’s
laptop, loose change, and some other items. Inside a closet, the
carpet was lifted up and a tile underneath was broken. Beneath
the tile, the loose floorboards could be removed, and you could
see down into the store below. The resulting hole was
approximately two feet by one-and-a-half feet.
Fernandez also came up to the apartment, and he identified
multiple items that were sold in his store. Fernandez recognized
[Jacquez] because he came into the store almost daily, where he
would buy cigars and random food items. [Jacquez’s] girlfriend
would come into the store to purchase cigarettes. Outside on
the sidewalk, Fernandez found a bag containing cigar wrappers
and store-related paperwork that had been taken. The bag also
contained construction materials, evidently from the hole put in
the floor between the store and apartment.
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Criminal Investigator Joseph Snell joined the investigation of the
apartment later that morning. He testified as to a strange
conversation with [Jacquez] regarding some of the purported
evidence:
Q: Did you speak to him while the search was being
conducted, before or after?
A: While the search was being conducted I asked
him, I said are those your bags? Did you guys use these
bags to pack? Because he told me they were moving out
the night before. And the girlfriend of his also stated that
they left around like 11:30 was the last run and the place
was locked up.
I pointed out the bags, is this any of the items that you
guys were using to pack. No. The water jug. I asked
[Jacquez] is that your water jug? He’s like no. I was here
early. I got here in the morning. I had to move it, too,
because I wanted to see if the store was open, he told me.
Q: He moved the water jug to see if the store was
open?
A: Yes.
...
Q: How about the items in the kitchen . . .?
A: Okay. I questioned [Jacquez] about this. I asked
him if those were his, if he noticed those items. He said
they weren’t his items. I asked him if he touched any of
the items. He stated that he took a drink out of the Sprite.
Q: The green item on the right-hand side?
A: Yes, but he had no explanation why those items
were in there.
[Jacquez] was also unable to explain bags recovered within
the apartment that contained other items stolen from the store.
Jacquez indicated that Philip Nieves had been one of several
people to help them move out of the apartment the previous
evening. Subsequent forensic testing revealed fingerprints
belonging to both [Jacquez] and Nieves on several items that
had been stolen from the store.
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Trial Court Opinion, 9/29/14, at 2-4.
On June 19, 2014, after a two-day trial, a jury convicted Jacquez of
the above-referenced offenses. The same day, the court sentenced Jacquez
to 18 to 120 months’ incarceration for conspiracy to commit burglary,
followed by 6 to 12 months’ incarceration for theft by unlawful taking (M3). 5
Jacquez filed a post-sentence motion on June 25, 2014, which the trial
court denied the following day. This timely appeal followed, in which
Jacquez raises the following issues for our review:
1. Whether the trial court erred in sentencing Jacquez on both
conspiracy to commit burglary and theft by unlawful taking
when a person convicted of burglary and theft by unlawful
taking could not be so sentenced pursuant to 18 Pa.C.S. §
3502(d), rendering the sentence imposed illegal.
2. Whether the evidence presented at trial was sufficient to
establish the charges of conspiracy to commit burglary and
theft by unlawful taking as mere access to the point of entry
and/or knowledge of the crime is insufficient to establish the
charges?
Brief of Appellant, at 6.
Jacquez asserts that his sentence is illegal and unconstitutional.
Accordingly, our scope of review is plenary, and our standard of review is de
novo. See Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. Super.
2009) (challenge to legality of sentence); and Commonwealth v. Bullock,
913 A.2d 207, 212 (Pa. 2006) (challenge to constitutionality of statute).
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5
The court was in possession of a pre-sentence investigation report at the
time of sentencing.
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Jacquez’s argument focuses on section 3502 of the Crimes Code,
which provides, in relevant part:
§ 3502 Burglary
*****
(d) Multiple convictions. – A person may not be sentenced
both for burglary and for the offense which it was his intent to
commit after the burglarious entry or for an attempt to commit
that offense, unless the additional offense constitutes a felony of
the first or second degree.
18 Pa.C.S. § 3502(d).
As section 3502(d) makes clear, a person who commits burglary and
theft by unlawful taking (M3) after the burglarious entry, may not be
sentenced for both offenses. However, in the instant matter, Jacquez was
found guilty of conspiracy to commit burglary and theft by unlawful taking
(M3). Because the trial court determined that a conviction for conspiracy to
commit burglary did not implicate the prohibition against multiple
convictions under section 3502(d), it imposed separate sentences for each
offense.
Jacquez asserts that the failure to include a conspirator to burglary in
the sentencing exemption of section 3052(d) constitutes a violation of equal
protection under the 14th Amendment to the United States Constitution.6
____________________________________________
6
Because Jacquez has failed to engage in an analysis of the four factors
required by Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), we
are precluded from considering whether the statute violates the equal
protection clause of the Pennsylvania Constitution.
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“The essence of the constitutional principle of equal protection under
the law is that like persons in like circumstances will be treated similarly.
However, it does not require that all persons under all circumstances enjoy
identical protection under the law.” Commonwealth v. Shawver, 18 A.3d
1190, 1194 (Pa. Super. 2011) (citation omitted).
Jacquez cites School Districts of Deer Lakes and Allegheny v.
Kane, 345 A.2d 658 (Pa. 1975), for the proposition that a party attacking
the constitutional validity of a statute shoulders a heavy burden of proof, as
legislative enactments are presumed constitutionally valid. Citing
Eisenstadt v. Baird, 405 U.S. 438 (1972), he also recognizes that he must
show that no rational basis existed to exempt conspirators from section
3502(d).
Despite this recognition, Jacquez fails to explain why it is irrational to
treat conspirators and burglars differently for purposes of sentencing.
Rather, he simply concludes, “no rational basis exists to exclude the
conspirator to burglary from the sentencing exemption of [section] 3502(d).”
Appellant’s Brief, at 16.
“The crime of conspiracy . . . is separate and distinct from the
underlying substantive crime.” Commonwealth v. Ritter, 615 A.2d 442,
444 (Pa. Super. 1992). Furthermore, the crime of conspiracy does not
merge with the substantive offense that is the subject of the conspiracy.
Commonwealth v. Miller, 364 A.2d 886, 888 (Pa. 1976). In light of these
well-settled principles, of which the General Assembly was surely aware, its
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decision not to extend to conspirators the same lenity that it extended to
burglars, and those who attempt to commit burglary, through section
3502(d) appears to reflect legislative intent. Even if this were not the case,
“a court cannot supply an apparent omission in a statute even though it
appears that the omission resulted from the [L]egislature’s mere
inadvertence or failure to foresee or contemplate a case in question.”
Palmosina v. Laidlaw Transit Co., Inc., 664 A.2d 1038, 1039 (Pa. Super.
1995) (citation omitted).
“A legislative enactment is presumed to be constitutional and will not
be declared unconstitutional unless it clearly, palpably and plainly violates
the Constitution.” Commonwealth v. Mockaitis, 834 A.2d 488, 497 (Pa.
2003). Because Jacquez has not met the burden of establishing that
imposing different sentences on defendants who commit conspiracy to
commit burglary and those who commit burglary offends the Constitution,
he is not entitled to relief on this claim.
Jacquez next argues that there was insufficient evidence to support his
convictions for conspiracy to commit burglary and theft by unlawful taking.
Where an appellant challenges the sufficiency of the evidence, this
Court “must determine whether the evidence and all reasonable inferences
deducible therefrom, when viewed in the light most favorable to the verdict-
winner . . . are sufficient to establish all elements of the crime charged
beyond a reasonable doubt.” Commonwealth v. Rakowski, 987 A.2d
1215, 1217 (Pa. Super. 2010) (quoting Commonwealth v. Parker, 957
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A.2d 311, 317 (Pa. Super. 2008) (citations omitted)). Further, “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. Abed, 989 A.2d 23, 26 (Pa. Super. 2010)
(citations omitted). “Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced is free to
believe all, part or none of the evidence.” Id. at 26-27.
“A person is guilty of conspiracy with another person . . . to commit a
crime if with the intent of promoting or facilitating its commission, he agrees
with such other person . . . that they . . . will engage in conduct which
constitutes such crime.” 18 Pa.C.S. § 903(a)(1). Here, the Commonwealth
charged Jacquez with conspiring to commit burglary, defined in relevant part
as entering, with intent to commit a crime, “a building or occupied structure,
or separately secured or occupied portion thereof that is adapted for
overnight accommodations in which at the time of the offense no person is
present.” 18 Pa.C.S. § 3502(a)(2).7
The evidence established that Fernandez arrived at his store on the
morning of April 4, 2013, and discovered merchandise strewn on the floor.
He noticed that a ceiling tile had been moved and, upon further inspection,
discovered a hole in the ceiling opening directly into Jacquez’s apartment.
____________________________________________
7
In his brief, Jacquez does not discuss theft by unlawful taking or conspiracy
to commit theft by unlawful taking.
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Fernandez called police, who saw Jacquez coming down from the upstairs
apartment carrying two black trash bags. Jacquez told officers that he had
moved out of the apartment the day before and came back to retrieve the
rest of his belongings. He stated that several people helped him move,
including Nieves.
Jacquez allowed police into the apartment where they found several
items from the ground-level store including a water cooler jug that had
previously been half-filled with coins and a laptop computer.
At some point, Fernandez saw Jacquez discard a black trash bag into
the dumpster. When police retrieved the bag, they found a bank deposit
bag from the store, bills addressed to the store, cigar wrappers and
construction tools. Further investigation revealed Jacquez’s fingerprints and
Nieves’ palm print on the items.
“Circumstantial evidence may provide proof of [a] conspiracy. The
conduct of the parties and the circumstances surrounding such conduct may
create a web of evidence linking the accused to the alleged conspiracy
beyond a reasonable doubt.” Commonwealth v. Bricker, 882 A.2d 1008,
1017 (Pa. Super. 2005). The evidence cited above was sufficient, if
believed, to establish that Jacquez conspired to commit a burglary at La
Esquina Famosa.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2015
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