Com. v. Wronski, K.

J-S51042-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KOREY ROBERT WRONSKI :
:
Appellant : No. 632 MDA 2020
Appeal from the Judgment of Sentence Entered March 18, 2020
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0002369-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: JANUARY 21, 2021
Korey Robert Wronski (Appellant) appeals from the judgment of
sentence entered in the Schuylkill County Court of Common Pleas following
his conviction of one count of burglary.1 Appellant argues the trial court
applied the wrong offense gravity score to his conviction when it found a
person was present during the course of a home burglary. Appellant’s Brief
at 5.2 We affirm.
The trial court summarized the facts as follows:
____________________________________________
1 18 Pa.C.S. § 3502. Appellant was also convicted of criminal trespass, 18
Pa.C.S. § 3503(a)(1)(i), theft by unlawful taking, 18 Pa.C.S. § 3921(a), and
receiving stolen property, 18 Pa.C.S. § 3925(a). However, he confines his
appeal to his burglary conviction and the sentence arising therefrom.
2 We note that the Commonwealth declined to file a brief in this matter.
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On February 4, 2020, a jury found the [Appellant] . . . guilty of
burglary, criminal trespass, theft, and receiving stolen property.
The victim, Thomas Kane [(T. Kane)], testified at trial that on
December 10, 2018, at approximately 9:00pm or 9:30pm, while
he and his family were away on a trip to New York City . . . [he]
received a notification on his telephone that their surveillance
system at their residence . . . detected motion inside the home.
[T. Kane] was able to observe an intruder in the home in their
kitchen. The intruder had a hoodie on and knocked over the
camera in the kitchen area. The Kanes could no longer see what
was going on, but they could hear the intruder.
Meanwhile, [T. Kane’s] daughter called 911 to report the break-
in. The Kanes also contacted a neighbor and nearby friend to go
to the residence to investigate. The Kanes observed the neighbors
after they entered the home and uprighted the knocked over
camera. The Kanes then observed the police come into the home,
go up the stairs, and bring the intruder down from an upstairs
floor after taking him into custody.
When the Kanes returned home, they found that thing[s] in the
home had been moved around and placed in small piles, such as
jars containing loose change, as if the intruder was sorting
through items he later intended to remove. Kane testified that his
wife went to the police station to identify and retrieve items the
intruder was found to have had in his pockets.
[T. Kane] estimated that the entire ordeal took
approximately 15-20 minutes from the time the intruder entered
until the police apprehended him. At trial, [T. Kane] identified
[Appellant] as a former employee of the Kanes’ deli and catering
business. [T. Kane] was not able to identify the intruder during
the incident because it was dark and he had a hoodie on.
Next, Dylan Anastacio (“Anastacio”) testified that when his
girlfriend, Elena Ryan (“Ryan”), received a call from the Kanes, he
went to check it to see if anyone was in the [Kanes’] home and to
stop them. They walked to the Kanes’ residence which was two
houses away, and he went through the entire home and did not
see anyone. When the police came in, Anastacio and Ryan waited
downstairs while the police went upstairs and located and
apprehended [Appellant]. Anastacio testified that while he was
there, another neighbor and Anastacio’s father also came into the
home.
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Ryan testified that when they entered the home, they yelled
and heard someone upstairs. She stayed on the first floor of the
home until police arrived.
Officer Frank Gallo of the Mahanoy City Police Department
testified that he was on duty with another officer when they
received a call of a possible burglary at the Kane residence. When
they arrived on scene, the back door was open. They met with
the Kanes’ friends inside the door. They searched the second and
third floors and found [Appellant] lying under a blanket with his
feet sticking out in a room on the second floor. Officer Gallo
positively identified [Appellant] present in the courtroom [ ]. They
removed the blanket and took [Appellant] into custody. A search
revealed that [Appellant] had taken possession of a golden wrist
watch and a bag of coins.
Trial Ct. Op., June 9, 2020, at 1-3.
On March 18, 2020, the trial court sentenced Appellant to a term of 60
to 120 months’ imprisonment. The court applied an offense gravity score of
nine because it determined a person was present at the time of the burglary.
Appellant filed a timely post-sentence motion challenging the offense gravity
score applied at sentencing. Appellant argues the court should have applied
the lower offense gravity score corresponding to no persons being present at
the time of the burglary, which would have been a seven. See 204 Pa. Code
§ 303.15 (effective June 1, 2018, to December 6, 2019).
The trial court denied the motion on April 14, 2020, and this timely
appeal followed. Thereafter, Appellant complied with the trial court’s order
directing him to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
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Appellant raises a single issue on appeal:
Did the Court of Common Pleas of Schuylkill County apply the
wrong offense gravity score to Appellant’s burglary conviction?
Appellant’s Brief at 5.
Appellant frames his claim on appeal as a challenge to the discretionary
aspects of his sentence. See Commonwealth v. Archer, 722 A.2d 203, 211
(Pa. Super. 1998) (en banc); but see Commonwealth v. Bradley, 834 A.2d
1127, 1131 (Pa. 2003) (where appellant argues “three strikes” provision was
erroneously applied, the question is one of statutory construction, a pure
question of law, and thus does not sound entirely in discretionary aspects; if
it did, the Court would lack jurisdiction). In cases involving the discretionary
aspects of sentence,
An appellant challenging the discretionary aspects of his sentence
must invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) 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 reconsider 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.
Bradley, 237 A.3d at 1138.
Appellant filed a timely notice of appeal and preserved his claim in a
timely-filed post-sentence motion. See Appellant’s Post-Sentence Motion,
3/30/20. In addition, he timely filed a concise statement of reasons relied
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upon for appeal pursuant to Pa.R.A.P. 1925(b). See Appellant’s Brief at 8.
Further, his brief includes a statement per Pa.R.A.P. 2119(f). An appellant
“presents a substantial question when he sets forth a plausible argument that
the sentence violates a provision of the sentencing code or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v. Conte,
198 A.3d 1169, 1174 (Pa. Super. 2018) (citation omitted), appeal denied, 206
A.3d 1029 (Pa. 2019).
Appellant avers the court applied an incorrect offense gravity score to
his conviction when it determined a person was present during the burglary.
Appellant argues he was discovered via the video surveillance system prior to
entry by any other persons, as distinguished from cases where a home’s
occupants arrive while the burglar is still present. See id. at 10-11. Appellant
posits that this situation is distinguishable from both Commonwealth v.
Stepp, 652 A.2d 922 (Pa. Super. 1995), and Commonwealth v. Knowles,
891 A.2d 745 (Pa. Super. 2006), which the Commonwealth relies upon in its
argument, because in those cases the homeowners returned while the burglar
was still present. Id. at 11. Appellant asserts that when the neighbors
entered the home, it was at the homeowner’s instruction, meaning “[t]hey
were not present when the entry to the premises was made[.]” Id. at 12.
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Thus, Appellant would have this court adopt a definition of burglary to confine
the offense to the precise moment of entry. Further, Appellant would have us
limit the “persons present” analysis to homeowners. As such, Appellant would
limit this Court’s focus to the moment when the Kane’s neighbors entered the
home after learning that someone had broken in, thus distinguishing Stepp
and Knowles, where occupants re-entered their home without such
knowledge. Id. at 11-12.
Appellant reasons that his conviction and sentence, if upheld by this
Court, would lead to “the arrival of the police creat[ing] a situation where a
person is present, as does arrival of the mailman, the garbage man, the
telephone service representative or anyone who may enter the yard or porch
area of the residence.” Appellant’s Brief at 12. He further states that the trial
court’s reasoning could extend to scenarios where an initial burglar breaks
into a residence and then a second, unaffiliated burglar also enters the
residence while the first burglar is still present. Id. at 12-13. In such a
hypothetical, both burglars would unknowingly subject themselves to the
higher penalties associated with Section 3502(a)(1), as opposed to
3502(a)(2). We reject this argument.
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This Court has stated “[a]n improper calculation of the offense gravity
score affects the outcome of the sentencing recommendations . . . thereby
compromising . . . the sentencing process” and presents a substantial
question. See Archer, 722 A.2d at 210-11. However, the sentencing
guidelines are not mandatory, but merely instructive and the failure to
sentence within the guidelines is not a per se basis for remand. See
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super 2014).
“The different gravity scores for burglaries committed of structures
where persons are present and structures where persons are not present is
premised upon the likelihood of greater mischief in the former situation.”
Stepp, 652 A.2d at 923 (citation omitted). When a person is on the premises
during the course of a burglary, there is a higher likelihood of potential harm
to persons and so a higher offense gravity score will be applied. See id. at
923-24. Additionally, this heightened level of danger remains the same
whether the person confronts the burglar upon re-entry to the home or
happens upon the intruder during the initial entry because “[the potential for
a] violent encounter exists whenever a person discovers an intruder inside his
home.” Id. at 924 (footnote omitted).
Upon review of the record, we find no basis to conclude the offense
gravity score applied by the trial court was inappropriate. Appellant’s
argument implies that because the homeowner was not the one present, that
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no “person” was inside the home. However, the subsection in question applies
when, during a burglary, “at the time of the offense any person is present.”
18 Pa.C.S. § 3502(a)(1)(ii). Thus, by its own language, the section is not
limited to the property owner. Appellant asks this Court to limit its inquiry to
the initial entry arguing the crime of burglary can only be accomplished at the
time of entry. Burglary (as opposed to theft and related offenses) is not an
“ongoing” offense and therefore because nobody was in the Kane home when
Appellant initially broke in, the lower offense gravity score should apply. See
Appellant’s Concise Statement of Matters Complained of on Appeal, 5/8/20.
Appellant attempts to distinguish this conduct from both Stepp and Knowles.
In Stepp and Knowles, the victims entered the home after the burglary
had commenced, and both cases affirm application of Section 3502(a)(1)(ii).
In Knowles, the victim was not aware of the burglar’s presence before entry;
rather, he assumed that his daughter had come home from work early. See
Knowles, 891 A.2d at 746. In Stepp, the homeowner quickly surmised that
a break-in had occurred and might be ongoing, and reached into his home to
grab his shotgun. See Stepp, 652 A.2d at 922. Similarly, here, the Kanes’
neighbors were aware of the potential presence of a burglar and entered the
home with the consent of the owner. The neighbors knowingly confronting a
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burglar inside the Kane home sufficiently qualifies as a “person present” under
the statute. See Stepp, 652 A.2d at 924; see also Knowles, 891 A.2d at
749 (holding that burglary of a home in which at the time of the offense “any
person is present,” covers scenarios where “a person returns to the structure
while the perpetrator is still present.”) (citations omitted). Additionally, we
accept the trial court’s view that 18 Pa.C.S. § 3502(a)(1)(ii)’s “any person”
language refers to any person, “not just to the homeowner.” See Trial Ct.
Op. at 5-6.
We need not reach Appellant’s argument that recognizing the victim’s
neighbors as “persons present” will lead to situations where “anyone who may
enter the yard or porch area” may be deemed as persons present under the
statute, thereby raising the offense gravity score. See Appellant’s Brief at 12.
These situations are distinguishable from the facts here and are not before us.
Appellant’s situation is most comparable to Stepp, where the Court held that
a returning occupant falls under the “any person” language because the
likelihood of greater danger where a burglar might encounter a lawful
occupant “is equally present both when a person returns to their residence
and discovers an intruder and when a person already within the home
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discovers an intruder.” Stepp, 652 A.2d at 924. Stepp quotes the 1988
commentary by the Commission on Sentencing as follows:
The burglary subcategories were designed to differentiate crimes
with different potential for injury and impact on the life of the
victim. Burglaries ‘of a structure adapted for overnight
accommodation’ include homes, hotels, motels, camp structures,
house trailers, etc. . . . Burglaries ‘in which at the time of the
offense any person is present’ include burglaries where the
defendant did not know when he entered the structure that
someone was present, and burglaries where someone such as
a returning resident or a policeman enters the structure
when the defendant is still inside.
Id. (citation omitted).
Stepp controls, and Appellant’s argument is governed thereby.
Because Appellant cannot demonstrate that his sentence was illegal or the
result of an abuse of discretion, we affirm.
Judgment of sentence affirmed.
Judge Murray joins this memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/21/2021
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