Com. v. Whitaker, L.

J-S10011-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LORENZO WHITAKER :
:
Appellant : No. 1231 EDA 2021
Appeal from the Judgment of Sentence Entered July 31, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006995-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LORENZO WHITAKER :
:
Appellant : No. 1232 EDA 2021
Appeal from the Judgment of Sentence Entered July 31, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006996-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LORENZO WHITAKER :
:
Appellant : No. 1233 EDA 2021
Appeal from the Judgment of Sentence Entered July 31, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006998-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S10011-23
:
v. :
:
:
LORENZO WHITAKER :
:
Appellant : No. 1234 EDA 2021
Appeal from the Judgment of Sentence Entered July 31, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007000-2014
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY PANELLA, P.J.: FILED JUNE 6, 2023
Lorenzo Whitaker appeals, nunc pro tunc, from the judgment of
sentence imposed following his convictions for four counts each of burglary,
criminal trespass, criminal mischief, and possession of instruments of crime;
three counts of criminal attempt; and two counts each of theft by unlawful
taking and receiving stolen property.1 Whitaker now challenges the trial
court’s finding that similarities among the offenses displayed a common
scheme. He also challenges the sufficiency and weight of the evidence
supporting his convictions, as well as the discretionary aspects of his sentence.
We affirm.
The trial court adeptly summarized the relevant factual history as
follows:
[Whitaker] perpetrated a series of commercial burglaries in
2013. Both direct and circumstantial evidence identified
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1 See 18 Pa.C.S.A. §§ 3502(a)(3), (4); 3503(a)(1)(ii); 3304(a)(2); 907;
901(a); 3921(a); 3925(a).
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[Whitaker] as the perpetrator. On July 3, 2013, owners of the Stop
and Shop [on] Dickinson Street were alerted to a burglary at their
store. The owners discovered holes cut in the ceiling and roof and
$12,000 missing from the ATM.
On December 8, 2013, a similar burglary occurred at Point
Save Supermarket [on] Point Breeze Ave. The perpetrator had
gained access to the store through the ceiling and had broken into
the ATM. Video surveillance showed a masked person wearing a
headlamp and gray-striped shirt descend into the store on a rope
through a hole in the ceiling. Video further showed the perpetrator
taking money and cigarettes before leaving through the roof. The
crime scene was processed and the broken off tip of a screwdriver
was found in the store’s ATM.
On December 12, 2013, … [Whitaker] was stopped in a U-
Haul truck in front of 3801 Kensington Ave. [Whitaker] was unable
to produce a rental agreement for the U-Haul. Police searched the
U-Haul [the following day] and recovered a gray-striped shirt,
headlamp, screwdriver with broken tip, two black knit hats, white
dust masks, a pickax, and a disposable camera. On the camera
were photographs of large amounts of United States currency
[sprawled] across the floor at someone’s feet. Also in the U-Haul
was a Home Depot receipt for a camera, rope, a crowbar, electrical
tape, a utility knife and a screwdriver. Much of what was found in
the U-Haul matched items seen on video surveillance footage of
the Point Save Supermarket burglary.
On December 19, 2013, an employee came to open the
Point Breakfast [on] Point Breeze Avenue when he noticed lights
moving around on the ATM and a person inside. Police responded,
but the perpetrator was gone. Police did recover a rope and noted
a hole in the ceiling as well as pry marks on the ATM.
On December 25, 2013, [Whitaker] was caught hiding
behind the deli counter at the Stop and Shop [on] Dickinson – the
same location as the burglary on July 3, 2013. There was a hole
in the ceiling and damage to the ATM. Recovered amongst a bag
of tools was a screwdriver with a broken tip – an exact match to
the broken tip found at [the Point Save Supermarket].
Trial Court Opinion, 4/13/22, at 2-3 (unnumbered).
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Whitaker was convicted of the above-mentioned offenses, across four
trial court dockets, after a bench trial. Following completion of a presentence
investigation report (“PSI”) and a mental health evaluation, the trial court
sentenced Whitaker to an aggregate term of 6 to 12 years in prison, followed
by 5 years of probation.
This Court affirmed Whitaker’s judgment of sentence. See
Commonwealth v. Whitaker, 175 A.3d 1073, 2720 EDA 2015 (Pa. Super.
filed Aug. 15, 2017) (unpublished memorandum).2 Significantly, this Court
concluded that Whitaker’s appellate claims were waived based on his failure
to develop them, and because Whitaker failed to preserve his challenge to the
weight of the evidence before the trial court or in a post-sentence motion. See
id.Whitaker promptly filed a pro se PCRA petition on December 18, 2017.
Citing our memorandum decision, Whitaker argued his appellate counsel
rendered ineffective assistance on direct appeal. Appointed PCRA counsel
subsequently filed an amended PCRA petition explicitly requesting
reinstatement of Whitaker’s direct appeal rights, nunc pro tunc, based on trial
counsel’s ineffectiveness. The Commonwealth submitted a response indicating
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2 We note that this appeal included an additional trial court docket number,
CP-51-CR-0006993-2014. At that docket, Whitaker was convicted for
unauthorized use of a motor vehicle and was sentenced to 1 to 2 years in
prison. The remaining prison terms were directed to run consecutive to No.
6993-2014, for an aggregate sentence of 7 to 14 years in prison.
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it did not oppose reinstatement of Whitaker’s direct appeal rights. The PCRA
court restored Whitaker’s direct appeal rights on January 7, 2021.3
Whitaker subsequently filed a post-sentence motion challenging the
sufficiency and weight of the evidence supporting his convictions, as well as
the discretionary aspects of his sentence. The post-sentence motion was
denied by operation of law. This timely appeal followed.4
In his first issue, Whitaker asserts the trial court erred by determining
the method of gaining entry into the businesses and ATMs constituted a
signature crime under Pa.R.E. 404(b). See Appellant’s Brief at 21-23. Rule
404(b) generally precludes evidence of other crimes or acts “to prove a
person’s character in order to show that on a particular occasion the person
acted in accordance with the character.” Pa.R.E. 404(b)(1). However, other
crimes evidence may be admissible to establish, among other exceptions, a
common scheme or plan. See Pa.R.E. 404(b)(2); see also Commonwealth
v. Semenza, 127 A.3d 1, 7 (Pa. Super. 2015). Whitaker points to the
Commonwealth’s decision to nolle prosse charges at an additional docket in
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3 Despite Whitaker’s inclusion of No. 6993-2014 in his pro se petition, the
amended PCRA petition filed by counsel did not identify that docket. As no
explanation for its omission is clear from the record, it is possible that No.
6993-2014 was simply overlooked by counsel. Nevertheless, No. 6993-2014
does not appear on the court’s order reinstating Whitaker’s direct appeal
rights, nor is it included on any subsequent filings.
4 Whitaker filed a notice of appeal at each docket number. This Court, sua
sponte, consolidated the appeals for review.
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light of medical records establishing that Whitaker was hospitalized at the time
of that burglary. See id. at 22.
Whitaker’s first claim is a challenge to the admissibility of evidence.
First, we note that the focus of Rule 404(b) is on prior bad acts. See generally
Commonwealth v. Weakley, 972 A.2d 1182, 1189 (Pa. Super. 2009)
(explaining that “[e]vidence of distinct crimes is not admissible against a
defendant being prosecuted for another crime solely to show his bad character
and his propensity for committing criminal acts….” (citation omitted)).
However, Whitaker does not reference the introduction of prior bad acts at
trial, and there is no indication that Whitaker made an objection under Rule
404(b) at trial. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are
waived and cannot be raised for the first time on appeal.”).5 Accordingly,
Whitaker’s first claim is waived.
In his second issue, Whitaker claims there was insufficient evidence to
support his convictions of burglary “and related offenses.” Appellant’s Brief at
23. Whitaker generally argues there was no evidence that he was not
privileged or licensed to enter the premises; there was no DNA evidence
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5 In its opinion, the trial court references case law concerning joinder of
separate offenses displaying a distinctive modus operandi. See Trial Court
Opinion, 4/13/22, at 3 (unnumbered). There is no indication from the record
that Whitaker moved to sever the informations filed against him. Therefore,
to the extent Whitaker intends to challenge the joinder of these cases for trial,
such claim is also waived.
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linking him to the crime; and the trial court relied on its ruling that the
burglaries were signature crimes. See id. at 23-24.
Whitaker’s argument is not sufficiently developed for review. Whitaker
simply lists each docket number, indicates he wishes to challenge the burglary
conviction at each docket, and succinctly identifies evidence which he believes
was lacking. Whitaker has failed to set forth the elements of burglary or to
identify the elements the Commonwealth failed to establish. 6 Whitaker also
fails to cite any legal authority beyond a statement of our standard of review
for sufficiency claims. Therefore, this claim is waived. See Pa.R.A.P. 2119(a);
see also Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009)
(concluding that appellant waived challenge to the sufficiency of the evidence
where he failed to set forth the elements of the crimes he was convicted of,
identify which elements were not met, or cite to legal authority).
In his third issue, Whitaker contends the verdict was against the weight
of the evidence. See Appellant’s Brief at 24. As he did in his sufficiency claim,
Whitaker merely lists the relevant docket numbers and the burglary offenses
____________________________________________
6 We note that the Commonwealth did present evidence that Whitaker was
not privileged or licensed to enter the stores at the times when the burglaries
occurred. See N.T., 4/23/2015, at 27-28; 88; 103-104. We also note that,
contrary to Whitaker’s assertion in his brief, his identity as the perpetrator of
the burglaries was not based “solely” on the similarity in circumstances of
each burglary. To the contrary, the Commonwealth presented evidence that
Whitaker was caught while burglarizing the Stop and Shop on December 25,
2013. See id. at 61-62. Further, Whitaker was found in possession of a
distinctive shirt that was seen in the surveillance video of the December 8,
2013 burglary of the Point Save store. See id. at 43.
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and complains of the lack of DNA evidence or testimony that he was not
licensed or privileged to enter the premises. See id. at 25-26. Whitaker fails
to develop this argument with citation to and discussion of relevant legal
authority. See Pa.R.A.P. 2119(a); Gibbs, 981 A.2d at 281. Whitaker also
primarily relies on his sufficiency argument. See Commonwealth v. Sexton,
222 A.3d 405, 416 (Pa. Super. 2019) (“[I]n relying upon his argument in
support of his sufficiency challenge, [a]ppellant conflates weight and
sufficiency claims and has essentially failed to develop a challenge to the
weight of the evidence.”). For these reasons, this issue is also waived.
In his fourth and final issue, Whitaker argues the trial court abused its
discretion by imposing consecutive sentences without justification. See
Appellant’s Brief at 26-27. There is no automatic right to appeal the
discretionary aspects of a sentence. See Commonwealth v. Mrozik, 213
A.3d 273, 275 (Pa. Super. 2019). Instead, an appellant must invoke this
Court’s jurisdiction. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (citation omitted).
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, 42 Pa.C.S.A. § 9781(b).
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The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial question
exists only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.
Moury, 992 A.2d at 170 (quotation marks, brackets, and some citations
omitted).
Here, Whitaker preserved his sentencing challenge in his nunc pro tunc
post-sentence motion and filed a timely notice of appeal. He also included a
separate Rule 2119(f) statement in his appellate brief, asserting the trial court
imposed a manifestly excessive sentence by ordering each sentence to run
consecutively, without consideration of mitigating circumstances, and without
providing sufficient reasons. See Appellant’s Brief at 20. Whitaker also claims
the trial court was “overly focused on the offense itself” when imposing
sentence. Id. We conclude that, taken together, Whitaker’s assertions raise a
substantial question for review, and we proceed to the merits of his sentencing
challenge. See Commonwealth v. McNabb, 819 A.2d 54, 56 (Pa. Super.
2003) (concluding appellant’s claim that sentencing court did not sufficiently
state its reasons for imposing sentence raised a substantial question);
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en
banc) (“This Court has [] held that an excessive sentence claim—in
conjunction with an assertion that the [trial] court failed to consider mitigating
factors—raises a substantial question.” (citation omitted)); Commonwealth
v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013) (“[A] claim that the trial
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court focused solely on the nature of the offense, without considering the
protection of the public or the rehabilitative needs of the appellant … presents
a substantial question.” (citation omitted)).
We review discretionary sentencing challenges with great deference to
the sentencing court:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017)
(citations and quotation marks omitted).
“In every case in which the court imposes a sentence for a felony … the
court shall make as a part of the record, and disclose in open court at the time
of sentencing, a statement of the reason or reasons for the sentence
imposed.” 42 Pa.C.S.A. § 9721(b); see also Commonwealth v. Mouzon,
812 A.2d 617, 620-21 (Pa. 2002) (plurality). “In considering these factors,
the court should refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.” Commonwealth v.
Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014) (citation omitted). The trial
court must also consider the Sentencing Guidelines. See 42 Pa.C.S.A. §
9721(b); see also Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.
Super. 2008) (stating that “[w]hen imposing a sentence, the [trial] court is
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required to consider the sentence ranges set forth in the Sentencing
Guidelines….”). Moreover, “the imposition of consecutive rather than
concurrent sentences lies within the sound discretion of the sentencing court.”
Commonwealth v. Redmond, 273 A.3d 1247, 1254 (Pa. Super. 2022)
(citation and quotation marks omitted).
Whitaker had a prior record score of 5, and his burglary convictions carry
an offense gravity score of 5. Therefore, the Sentencing Guidelines
recommend a minimum sentence of 12 to 18 months in prison, plus or minus
3 months for aggravating or mitigating circumstances. See 204 Pa. Code §
303.16(a). For each of Whitaker’s burglary convictions, the trial court imposed
a sentence of 18 to 36 months in prison. Because Whitaker’s individual
sentences are within the standard range of the Sentencing Guidelines, we
presume the sentence is reasonable, and we will vacate the sentence only if
application of the guidelines is clearly unreasonable. See 42 Pa.C.S.A. §
9781(c)(2) (providing that an appellate court may vacate a sentence within
the guidelines only if “the case involves circumstances where the application
of the guidelines would be clearly unreasonable”); Moury, 992 A.2d at 171(“[W]here a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the Sentencing
Code.” (citation omitted)).
During the sentencing hearing, defense counsel provided argument
concerning Whitaker’s family support and his mental health struggles. See
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N.T., Sentencing, 7/31/15, at 7-8. The Commonwealth highlighted the
extensive property damage and monetary losses involved in Whitaker’s
crimes. See id. at 9. Before imposing sentence, the trial court explained that
Whitaker had not exhibited actual remorse. See id. at 12. The court also
recognized Whitaker’s prior criminal history and suggested his crimes have
escalated. See id. at 12 (“[Y]ou’re a career criminal. You went from cars to
burglaries. And you seem to be serving a life sentence. You’re just doing it on
an installment program.”).
We conclude that Whitaker has failed to establish the circumstances
surrounding his case made the imposition of consecutive, standard-range
sentences unreasonable. The record also confirms the trial court was aware of
and considered all relevant sentencing factors in fashioning Whitaker’s
sentence. Moreover, where, as here, the trial court has the benefit of a PSI,
“we can assume the sentencing court was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Moury, 992 A.2d at 171. Based upon the
foregoing, and because we otherwise discern no abuse of the trial court’s
sentencing discretion, Whitaker is not entitled to relief on this claim.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2023
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