Com. v. Upshaw, R.

J-A25008-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT UPSHAW, :
:
Appellant : No. 310 EDA 2015
Appeal from the Judgment of Sentence December 23, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0015017-2013
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 20, 2015
Appellant, Robert Upshaw (“Upshaw”), appeals from the judgment of
sentence entered on December 23, 2014 by the Court of Common Pleas of
Philadelphia County, Criminal Division, following his convictions of burglary,
criminal trespass, criminal mischief, theft by unlawful taking, and receiving
stolen property.1 For the reasons that follow, we vacate Upshaw’s judgment
of sentence and remand for resentencing.
We summarize the relevant facts and procedural history of this case as
follows. On October 5, 2013, Veronica Joyner (“Joyner”) went to her house
at 2118 West Tioga Street, Philadelphia, Pennsylvania (“the property”)
because her neighbors had told her they saw a man enter the house. When
she arrived at the property, Joyner called the police and waited out front for
1
18 Pa.C.S.A. §§ 3502(a)(2), 3303(a)(1)(ii), 3304(a)(2), 3921(a),
3925(a).
*Former Justice specially assigned to the Superior Court.
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assistance to arrive. Soon thereafter, Officer Matthew Lally (“Officer Lally”)
arrived at the scene and entered the property through a cellar door that he
testified looked like someone had forced open. Once inside the property,
Officer Lally found Upshaw crouched behind a couch on the first floor.
Joyner testified that Upshaw did not have her permission to be inside the
property. After Officer Lally placed Upshaw under arrest, Joyner entered the
property and observed that the stained glass windows had been removed, a
door had been taken off its hinges, and that clothing, shoes and tools were
missing. Joyner testified that there was $3,000 worth of damage to the
property and another “couple of thousand dollars” worth of personal
property was missing.
Regarding the condition of the property, Joyner testified that she did
not live fulltime at the property because it did not have electricity, water or
heat. Joyner explained that she spent her afternoons at the property, but
would usually spend the night at her other house located about six doors
away. Joyner stated that the property contained furniture, including a bed
and sofa, and several general household objects. While she did not normally
spend the night at the property, Joyner testified that she had stayed there
overnight three or four days before the incident.2 Joyner stated that
2
Upshaw disputes that Joyner testified that she had spent the night at
property three or four days prior to this incident. See Upshaw’s Brief at 6
n.2. Joyner’s testimony clearly reveals, however, that she did spend the
night at the property three or four days prior to the incident:
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approximately three weeks prior to this incident, the property was
burglarized and its locks broken, so she boarded the doors and windows and
secured the front door with a padlock and deadbolt.
Upshaw waived his right to a trial by jury. On September 5, 2014, at
the conclusion of his bench trial, the trial court found Upshaw guilty of the
above-referenced crimes. On December 23, 2014, the trial court sentenced
Upshaw to three to six years of incarceration on the burglary charge,
followed by three years of probation. The trial court also sentenced Upshaw
to three years of probation on the criminal mischief charge, consecutive to
the burglary sentence, three years of probation on the theft charge,
concurrent to the criminal mischief sentence, and no further penalty on the
remaining charges.
On January 7, 2015, Upshaw filed a motion for modification of
sentence, alleging that his sentence for theft was illegal because it merged
with burglary for purposes of sentencing. On January 16, 2015, the trial
court granted Upshaw’s motion and vacated the three-year probationary
sentence for theft. On January 22, 2015, Upshaw filed a timely notice of
appeal. On January 23, 2015, the trial court ordered Upshaw to file a
Q. And when -- before the date of October 5th,
when was the last time you spent the night there?
A. Three or four days prior.
N.T., 9/5/14, at 9.
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concise statement of the errors complained of on appeal pursuant to Rule
1925(b) of the Pennsylvania Rules of Appellate Procedure. On February 12,
2015, Upshaw filed a timely Rule 1925(b) statement.
On appeal, Upshaw raises the following issues for our review:
1. Was not the evidence insufficient to sustain a
conviction for burglary as a felony of the first degree,
18 Pa.C.S. § 3502(a)(2), because the property,
which had no electricity, plumbing or heat, was not
adapted for overnight accommodation?
2. As the lower court agreed in its Rule 1925
[o]pinion, was not the evidence insufficient to
sustain a conviction for criminal mischief graded as a
felony of the third degree where the estimated
damage was about $3,000, not loss in excess of
$5,000 as required by 18 Pa.C.S. § 3304(b).
Upshaw’s Brief at 3.
The issues Upshaw raises on appeal challenge the sufficiency of the
evidence for his burglary and criminal mischief convictions. We utilize the
following standard of review when presented with a challenge to the
sufficiency of the evidence:
As a general matter, our standard of review of
sufficiency claims requires that we evaluate the
record “in the light most favorable to the verdict
winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the
evidence.” Commonwealth v. Widmer, [] 744
A.2d 745, 751 ([Pa.] 2000). “Evidence 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.
Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005).
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Nevertheless, “the Commonwealth need not
establish guilt to a mathematical certainty.” Id.;
see also Commonwealth v. Aguado, 760 A.2d
1181, 1185 (Pa. Super. 2000) (“[T]he facts and
circumstances established by the Commonwealth
need not be absolutely incompatible with the
defendant's innocence”). 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. See
Commonwealth v. DiStefano, 782 A.2d 574, 582
(Pa. Super. 2001).
* * *
Significantly, we may not substitute our judgment
for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the
respective elements of a defendant’s crimes beyond
a reasonable doubt, the appellant’s convictions will
be upheld. See Brewer, 876 A.2d at 1032.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa.
Super. 2013)).
For his first issue on appeal, Upshaw argues that the trial court erred
in convicting him of burglary graded as a first-degree felony pursuant to 18
Pa.C.S.A. § 3502(a)(1). See Upshaw’s Brief at 10-16. Upshaw contends
that the property was not adapted for overnight accommodation, as required
for a conviction under section 3502(a)(1), because it did not have any
water, electricity or heat and had boarded up doors and windows. See id.
Instead, Upshaw contends that under our Supreme Court’s decision in
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Commonwealth v. Graham, 9 A.3d 196 (Pa. 2010), the trial court should
have graded his burglary conviction as a second-degree felony pursuant to
18 Pa.C.S.A. § 3502(a)(4). See Upshaw’s Brief at 10-16.
Section 3502 of the Pennsylvania Crimes Code defines burglary, in
pertinent part, as follows:
(a) Offense defined.--A person commits the
offense of burglary if, with the intent to commit a
crime therein, the person:
* * *
(2) enters a building or occupied structure, or
separately secured or occupied portion thereof
that is adapted for overnight
accommodations in which at the time of the
offense no person is present;
* * *
(4) enters a building or occupied structure, or
separately secured or occupied portion thereof
that is not adapted for overnight
accommodations in which at the time of the
offense no person is present.
18 Pa.C.S.A. § 3502(a)(2), (4) (emphasis added). Burglary under section
3502(a)(2) is graded as a first-degree felony, while burglary under section
3502(a)(4) is graded as a second-degree felony. 18 Pa.C.S.A. § 3502(c).
Here, in determining that the property was adapted for overnight
accommodation, and therefore, that Upshaw’s burglary conviction fell under
section 3502(a)(2), the trial court relied on Commonwealth v. Nixon, 801
A.2d 1241 (Pa. Super. 2002). See Trial Court Opinion, 3/16/15, at 3-4. In
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Nixon, this Court faced the issue of whether an unoccupied row home that
was undergoing a renovation and had its water and electricity turned off
constituted a building adapted for overnight accommodation. Nixon, 801
A.2d at 1243. The daughter and grandson of the owner occupied the home
up until a few months prior to the burglary. Id. Around the time of the
burglary, the home was undergoing renovations. See id. During this time,
the house was still furnished, but the water and electricity had been shut off.
Id.
In concluding that the row home was adapted for overnight
accommodation, see id. at 1247-48, our Court explained, “[t]he Courts of
this Commonwealth have not set forth either a test or a list of factors to be
considered in determining whether a structure is adapted for overnight
accommodation.” Id. at 1244 (footnote omitted). “Although no clear-cut
test exists, we believe … that the focus of the determination of whether a
structure is adapted for overnight accommodation should be the nature of
the structure itself and its intended use, and not whether the structure is in
fact inhabited.” Id. at 1247. Our Court ultimately concluded that “[a]n
examination of the house burglarized in the instant case leads us to the
reasonable conclusion that it was intended to be used as a residential
property and was adapted for overnight accommodation as found by the
[t]rial [c]ourt.” Id. at 1247-48.
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Upshaw, however, asserts that our Supreme Court’s decision in
Graham compels the determination that the property was not adapted for
overnight accommodation. See Upshaw’s Brief at 11-16. Somewhat similar
to Nixon, Graham involved the burglary (and arson) of a new house under
construction. See Graham, 9 A.3d at 197. In Graham, the house at issue
had the following characteristics immediately prior to the burglary:
[T]he exterior work on the building was complete;
windows and doors were installed, albeit lacking
trim; concrete was poured; electrical and plumbing
rough-in work had been accomplished; temporary
heat was available for construction purposes; and
running water was available via two spigots, one
located on the building’s exterior and the other in the
garage. On the other hand, the owner stated that:
only two electrical circuits were active for
construction purposes; plumbing was stub, with no
fixtures in place and only an unattached pedestal
sink on premises; walls were framed, but the
framing remained open and uncovered; drywall was
on premises but uninstalled; lighting was limited to
construction and security purposes; the permanent
furnace was in place but not operational; kitchen
appliances and cabinets remained packed and stored
in the basement; and there was no running water in
the planned living space.
Id. Our Supreme Court determined that “the evidence presented in this
case is insufficient to support a finding that the subject structure was
adapted for overnight accommodation at the time of Appellant’s illegal
entry.” Id. at 204. In so holding, the Supreme Court relied on the following
characteristics of the house at issue in that case:
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[R]unning water was available in the planned living
space solely via attachment of a garden hose to
spigots in the garage or on the exterior; no toilet
facilities were present; and there were no furnishings
available for sleeping. According to the owner-
victim’s uncontradicted testimony, all working utility
services were configured for construction purposes
only.
Id. at 203.
The Supreme Court emphasized the difference between a structure
already adapted for overnight accommodations and those that are on their
way to being so adapted. See id. at 203-04. The Court explained:
As other courts have recognized, the adaptation
inquiry is fact intensive, and material differences will
arise depending on the form and degree of
adaptation intended and accomplished. In
particular, there are pertinent differences between
structures which have been fully adapted for
overnight accommodation, but which temporarily
lack services or other features of full adaptation, and
those which have never been so adapted, albeit work
may be underway in furtherance of such objective.
Id. at 204. Importantly, the Supreme distinguished the Graham decision
from our Court’s decision in Nixon:
We have no difficulty with the Nixon [C]ourt’s
explanation that the primary focus, in assessing
adaptation, should be the nature of the structure and
its intended use, as distinguished from present use
for inhabitation. See Nixon, 801 A.2d at 1247. We
believe, however, that the “nature” criterion is broad
enough to subsume consideration of the progress of
a planned adaptation in construction scenarios.
Indeed, as recognized by the Texas court in
[Blankenship v. State, 780 S.W.2d 198 (Tex. Crim.
App. 1989) (en banc)], there are a multitude of sub-
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factors which may be considered.[3] See [id.] at
209.
Finally, the Nixon holding – that a previously
completed row house under renovation, with electric
and water services suspended, was adapted for
overnight accommodation – is not before us
presently. We merely reiterate that a finding of
adaptation is substantially more reasonable in
circumstances in which an already adapted structure
lacks features supporting continuous overnight
accommodation for some temporary period, than in a
situation in which the structure has not yet been
adapted for overnight accommodation, albeit the
adaptation may be planned and underway.
Id. at 204.
We conclude that in this case, the property is more akin to the row
home undergoing renovations in Nixon than the new house under
3
The passage from Blankenship to which the Supreme Court referred
provides:
What makes a structure “suitable” or “not
suitable” for overnight accommodation is a complex,
subjective factual question fit for a jury’s
determination. Their inquiry could be guided by
reference to whether someone was using the
structure or vehicle as a residence at the time of the
offense; whether the structure or vehicle contained
bedding, furniture, utilities, or other belongings
common to a residential structure; and whether the
structure is of such a character that it was probably
intended to accommodate persons overnight (e.g.
house, apartment, condominium, sleeping car,
mobile home, house trailer). All of these factors are
relevant; none are essential or necessarily
dispositive.
Graham, 9 A.3d at 200-01 (quoting Blankenship, 780 S.W.2d at 209).
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construction in Graham. While the property had boarded doors and
windows, and no water, electricity or heat, the nature of the property and
the manner in which Joyner used it indicates that it was adapted for
overnight accommodation. Joyner testified that although she did not
regularly sleep at the property, she frequently spent her days there and had
spent the night in the house as recently as three or four nights prior to the
burglary. N.T., 9/5/14, at 9. Joyner further testified that the property
contained several general household items, including, inter alia, clothing,
shoes, bedding, paperwork, Christmas decorations, and blinds. Id. at 10-
11. The certified record reflects that the property was furnished, and those
furnishings included, inter alia, a bed, a sofa, and a coffee table. Id. at 9,
51.
As both our Supreme Court in Graham and this Court in Nixon
emphasized, there are a multitude of factors courts can consider in an
adaptation analysis, and that the focus in assessing adaptation should be on
the nature of the structure and its intended use. See Graham, 9 A.3d at
204; Nixon, 801 A.2d at 1247. Therefore, the lack of any water, electricity
or heat, or any evidence of there ever being such utilities, in the property
does not automatically require its classification as not adapted for overnight
accommodations.4 Thus, we conclude, based on the evidence presented,
4
For example, a cabin in the woods, used by the owner for vacation
purposes may not be inhabited fulltime, and if it is particularly remote, may
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viewed in the light most favorable to the Commonwealth as the verdict
winner, that the trial court did not err in concluding that the property was
adapted for overnight accommodation. Accordingly, the evidence was
sufficient to sustain Upshaw’s conviction of burglary as a first-degree felony.
For his second issue on appeal, Upshaw argues that the evidence was
insufficient to sustain his conviction of criminal mischief graded as third-
degree felony because the estimated damage to the property was $3,000,
which did not exceed $5,000 as required by section 3304(b) of the Crimes
Code. See Upshaw’s Brief at 16-17. Upshaw therefore asserts that the trial
court should have graded his criminal mischief conviction as a second-
degree misdemeanor. See id.
Section 3304(b) provides as follows:
(b) Grading.--Criminal mischief is a felony of the
third degree if the actor intentionally causes
pecuniary loss in excess of $5,000, or a substantial
interruption or impairment of public communication,
transportation, supply of water, gas or power, or
other public service. It is a misdemeanor of the
second degree if the actor intentionally causes
pecuniary loss in excess of $1,000, or a
misdemeanor of the third degree if he intentionally
or recklessly causes pecuniary loss in excess of $500
or causes a loss in excess of $150 for a violation of
subsection (a)(4). Otherwise criminal mischief is a
summary offense.
not have utilities such as water, electricity or heat. If, however, the owner
from time to time spends the night in the cabin, the cabin is furnished with
beds and seating, and the cabin contains other household items, the nature
of the structure and its intended use would indicate that the structure is
adapted for overnight accommodation.
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18 Pa.C.S.A. § 3304(b) (emphasis added).
Regarding the losses she incurred as a result of the burglary of the
property, Joyner testified as follows:
Q. Now, did you ever receive an estimate for
damage that was done to your property?
A. Informal, yes. I didn’t ask immediately for a --
Q. And what was that?
A. About $3,000.
* * *
Q. What was the value, approximately, of the
items that were missing?
A. A couple thousand [] dollars, jackets, suits.
Brand-new stuff that I had just stored up there
because it was there, the space.
N.T., 9/5/14, at 16.
The Commonwealth contends that the record reflects that Joyner
sustained losses well in excess of $5,000 resulting from the burglary. See
Commonwealth’s Brief at 13-14. The Commonwealth argues that the word
“couple” means two and that therefore, Joyner testified that she lost $2,000
worth of property from the burglary in addition to the approximately $3,000
worth of damage that the property sustained. See id.
Even if we were to make the leap requested by the Commonwealth,
and interpret Joyner’s testimony that she lost a “couple” of thousand dollars
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of property during the burglary to mean that she lost $2,000 from the
burglary, the total loss Joyner sustained would only amount to $5,000.
Section 3304(b) unequivocally requires “pecuniary loss in excess of
$5,000” in order for criminal mischief to be graded as a third-degree felony.
18 Pa.C.S.A. § 3304(b) (emphasis added). Indeed, the trial court concedes
that it incorrectly graded Upshaw’s criminal mischief conviction as a third-
degree felony and that it should be corrected to a second-degree
misdemeanor. Trial Court Opinion, 3/16/15, at 6. Therefore, we conclude
that the evidence was insufficient to sustain Upshaw’s conviction of criminal
mischief as a third-degree felony. Because Joyner did testify that she
received an estimate for $3,000 worth of damage to her house, we conclude
that the evidence was sufficient to sustain Upshaw’s conviction of criminal
mischief as a second-degree misdemeanor. See id.
We further find unavailing the Commonwealth’s argument that there is
evidence in the record that the property actually sustained $20,000 worth of
damage. The Commonwealth points to defense counsel’s cross-examination
of Joyner, during which defense counsel brought out that Joyner, in her
police statement that she gave on the day of the burglary, stated that she
sustained $20,000 worth of damage from the burglary. See N.T., 9/5/14, at
42-43. We emphasize that when assessing the sufficiency of the evidence,
the factfinder “is free to believe all, part or none of the evidence.”
Commonwealth v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013)
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(quotations and citation omitted). Here, the trial court credited Joyner’s trial
testimony that she sustained $3,000 in property damage. See N.T., 9/5/14,
at 67. By conceding that it incorrectly graded Upshaw’s criminal mischief
conviction as a third-degree felony, the trial court implicitly discredited
Joyner’s statement to police that her home sustained $20,000 worth of
damage during the burglary. Accordingly, the record does not support the
Commonwealth’s assertion that the property sustained $20,000 worth of
damage.
Because the trial court imposed Upshaw’s probationary sentence for
criminal mischief consecutive to his probationary sentence for burglary, our
disposition has disturbed the trial court’s overall sentencing scheme.
Accordingly, we vacate Upshaw’s judgment of sentence in its entirety and
remand for resentencing on all charges. See Commonwealth v. Williams,
997 A.2d 1205, 1210–11 (Pa. Super. 2010) (“if a correction by this Court
may upset the sentencing scheme envisioned by the trial court, the better
practice is to remand [for resentencing]”) (internal quotations, citations, and
corrections omitted).
Judgment of sentence vacated. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
Mundy, J. joins the Memorandum.
Fitzgerald, J. concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2015
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