J-A10002-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA,
Appellee
v.
ANDTHONY RAY SPEARS,
Appellant
: IN THE SUPERIOR COURT OF
:
PENNSYLVANIA
:
:
:
:
:
:
: No. 1613 MDA 2013
Appeal from the Judgment of Sentence April 18, 2013,
Court of Common Pleas, Dauphin County,
Criminal Division at No. CP-22-CR-0005226-2010
BEFORE: DONOHUE, ALLEN and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.:
Appellant,
Andthony
Ray
FILED MAY 22, 2014
Spears
(“Spears”),
appeals
from
the
judgment of sentence entered on April 18, 2013, following his conviction by
a jury for three counts of burglary, 18 Pa. C.S.A. § 3502(a), and one count
of receiving stolen property, 18 Pa. C.S.A. § 3925(a). For the reasons that
follow, we affirm the judgment of sentence.
The trial court summarized the evidence introduced at trial as follows:
Here, the evidence submitted would allow a jury to
find that [Spears] entered the Magical Incense Shop
with the specific intent to commit a theft therein.
The surveillance video inside the Magical Incense
Shop showed [Spears] entering the store at 9:51
a.m. by shattering the glass of its door, rummaging
through the store and peering through the glass
display cases, and finally leaving the store. (N.T. at
104-106; 121-122). During the break-in, [Spears]
was carrying a duffel bag and wearing a white and
black checkered sweatshirt and gloves. (N.T. at 77;
113-114).
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The individual in the still photographs developed
from the store’s video surveillance was identified as
[Spears] by the store owner, Theodore Zieders and
by his [Spears’] sister, Christina Thompson. (N.T. at
106; 112-113; 123). Mrs. Thompson also identified
the sweatshirt and gloves the individual was wearing
as belonging to [Spears]. (N.T. at 113-114).
*
*
*
The evidence submitted was also sufficient for a jury
to find that [Spears] committed each residential
burglary.
The first residential burglary at 133
Beacon Drive in Williamsburg Estates was near
[Spears’] residence at 224 Beacon Drive, also in
Williamsburg Estates.
The resident’s unique 25hours watch (purchased in Malaysia), Canon digital
camera, and unique camera bag (purchased in
Singapore) were all found in a closet reserved for
[Spears’] use at his sister’s home forty-five days
after they were stolen.
[Spears’] sister Mrs.
Thompson also indicated that she recognized the
Canon
digital
camera
and
recalled
taking
photographs of [Spears] with the camera.
The vehicle and watch stolen in the second
residential burglary was also found in [Spears’]
possession. Specifically, Ms. Eagle testified that she
observed [Spears] leaving the Magical Incense Shop
after the break-in, walking directly to the driver’s
seat of the stolen vehicle, whose license plate
number she recorded, and driving away. Further,
the gold Pulsar watch, stolen in the second
residential burglary was found in [Spears’]
possession 15-16 days after it was stolen.
The
stolen vehicle was found about 100-150 yards [from
Spears’] residence.
Trial Court Opinion, 7/31/2013, at 2-4.
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On February 28, 2013, a jury convicted Spears of the abovereferenced crimes, and on April 18, 2013, the trial court sentenced him to an
aggregate term of incarceration of 15 to 30 years. Following the trial court’s
denial of post-sentence motions, this timely appeal followed, in which Spears
raises the following two issues for our consideration and determination:
1.
There was insufficient evidence to sustain [Spears’]
burglary conviction where the Commonwealth failed
to prove that [Spears] possessed specific intent to
commit a crime within the store he allegedly
entered.
2.
The trial court erred in denying [Spears’] postsentence motion where the jury’s verdict was against
the weight of the evidence so as to shock one’s
sense of justice as [Spears] was never shown to
have committed the home burglaries in question due
to the manifest discrepancies in modi [sic] operandi.
Spears’ Brief at 1.
For his first issue on appeal, Spears contends that the Commonwealth
failed to introduce sufficient evidence to prove that he possessed the specific
intent to commit a crime while inside the Magical Incense Shop. Id. at 14.
In particular, Spears points out that the video evidence does not show
Spears removing any items from the store and the owner testified that
nothing was missing from the store. Id. at 14-15.
Our standard of review when faced with a challenge to the sufficiency
of the evidence is as follows:
As a general matter, our standard of review of
sufficiency claims requires that we evaluate the
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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, 560 Pa.
308, 744 A.2d 745, 751 (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).
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).
Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013).
18 Pa.C.S.A. § 3502(a) defines the crime of burglary as follows:
§ 3502. Burglary
(a) Offense defined.--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;
(2) enters a building or occupied
structure, or separately secured or
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occupied portion thereof that is adapted
for overnight accommodations in which
at the time of the offense no person is
present;
(3) 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 any
person is present; or
(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). For a burglary conviction, the Commonwealth must
prove beyond a reasonable doubt that the offender entered the premises
with the contemporaneous intent of committing a crime therein, at a time
when he or she was not licensed or privileged to enter. Commonwealth v.
Sanchez, 82 A.3d 943, 973 (Pa. 2013). The intent to commit a crime after
entry may be inferred from the totality of the circumstances surrounding the
incident.
Commonwealth v. Alston, 651 A.2d 1092, 1094 (Pa. 1994).
The Commonwealth is not required to allege or prove what particular crime a
defendant intended to commit after entry.
Commonwealth v. Lambert,
795 A.2d 1010, 1022 (Pa. Super. 2002).
Spears relies primarily on this Court’s decision in Commonwealth v.
Freeman, 313 A.2d 770 (Pa. Super. 1973).
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In Freeman, two police
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officers observed the appellant enter and leave the vestibules of several
buildings before opening a gate and entering the basement of a brown-stone
apartment building.
A few minutes later, he emerged empty-handed and
attempted to hide behind bushes to avoid detection and apprehension by the
police officers. This Court held that while the appellant was clearly guilty of
the crime of unlawful entry, there was insufficient evidence of an intent to
commit a larceny while inside the apartment building, rejecting the
Commonwealth’s argument that the basement contained furniture and other
items available for taking (as well as access to the apartments). Id. at 772.
This Court did not focus on the fact that the appellant apparently forced his
way into the basement, as the door handle showed scratches suggestive of a
forced entry. Id.
In subsequent cases, however, contrary to Freeman, the forced
nature of the entry was an important consideration in establishing the intent
element for the crime of burglary.
In three cases, Commonwealth v.
Lynch, 323 A.2d 808, 810 (Pa. Super. 1974), Commonwealth v. Tingle,
419 A.2d 6, 9 (Pa. Super. 1980), and Commonwealth v. Gordon, 477
A.2d 1342, 1348 (Pa. Super. 1984), this Court held that evidence of entry
by force may be sufficient to establish the criminal intent of the intruder.
Applying this principle, in Commonwealth v. Otto, 495 A.2d 554 (Pa.
Super. 1985), we affirmed a burglary conviction after witnesses observed
appellant standing two to three feet away from a broken window of a
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shopping center and facing towards it. The appellant had blood on his hand,
suggesting that he had broken the glass. We stated that, “[I]t is clear, a
fortiori, that when one attempts to enter a building by knocking out an
opening in a window of that building, it is with the intent to commit a crime
inside.” Id. at 559. Distinguishing the case from prior circumstances that
merely showed a person’s presence near the scene of a crime, we
highlighted that the breaking of the window (as established by the blood on
the appellant’s hand) “constitutes a substantial step towards the commission
of the crime of burglary.” Id. at 560.
In the present case, Spears unquestionably gained access to the inside
of the Magical Incense Shop through a forced entry, as the surveillance
video shows Spears entering by shattering its glass door.
Pursuant to
Lynch, Tingle, Gordon, and Otto, the proof of this forced entry likely
satisfies the intent element for burglary without more.
Here, however,
there is more evidence of Spears’ intent to commit a crime, as the
surveillance video shows that he entered the shop carrying an empty duffel
bag. It was clearly within the jury’s province to find that Spears intended to
use the empty duffel bag to provide him with a convenient means of carrying
stolen items from the store.
Viewing the evidence in the light most
favorable to the Commonwealth, as our standard of review requires, the
empty duffel bag shows that Spears had the intent to steal items from the
store at the time he entered, but that, for some unknown reason, after his
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unlawful entry he decided not to take any items with him as he existed. The
intent element requires only that the perpetrator entered the premises with
the contemporaneous intent of committing a crime therein upon unlawful
entry. Sanchez, 82 A.3d at 973. As such, the Commonwealth did not have
to prove that Spears maintained the intent to commit a crime throughout
the entire event, and thus had no obligation to offer evidence to explain why
Spears, after entering the shop with the intent to carry items out (in the
duffel bag), later may have changed his mind and decided to leave emptyhanded.
For his second issue on appeal, Spears argues that the jury’s verdicts
on the two residential burglary charges are against the weight of the
evidence. Specifically, Spears argues that the modus operandi for the two
residential burglaries, unlike the commercial burglary, was that they were
committed in the quiet of the night, from occupied structures, and in a
manner that did not awaken the occupants and left the homes largely
undisturbed. Spears’ Brief at 17.
Our standard of review on a claim that a jury’s verdict is against the
weight of the evidence is as follows:
A motion for a new trial based on a claim that the
verdict is against the weight of the evidence is
addressed to the discretion of the trial court. A new
trial should not be granted because of a mere conflict
in the testimony or because the judge on the same
facts would have arrived at a different conclusion.
Rather, ‘the role of the trial judge is to determine
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that ‘notwithstanding all the facts, certain facts are
so clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny
justice.’’ It has often been stated that ‘a new trial
should be awarded when the jury's verdict is so
contrary to the evidence as to shock one's sense of
justice and the award of a new trial is imperative so
that right may be given another opportunity to
prevail.’
*
*
*
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence.
Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court's determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court's
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (quoting
Commonwealth v. Widmer, 5744 A.2d 745, 751–52 (Pa. 2000) (citations
omitted)).
While we agree with Spears that the modus operandi for the two
residential burglaries differed materially from that of the Magical Incense
Shop, this distinction does not form the basis for a successful weight of the
evidence challenge. The jury did not have to find that Spears committed all
three burglaries in precisely the same fashion, and instead its only obligation
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was to determine that he committed all three offenses. In this regard, we
find no basis on which to disturb the trial court’s decision that the jury’s
verdict on the two residential burglary convictions was not so contrary to the
evidence so as to shock one’s sense of justice. As set forth hereinabove, the
trial court’s review of the evidence introduced at trial shows that the jury
was presented with a substantial quantum of evidence that Spears
committed both residential burglaries, including that many of the items
stolen were found in his possession and control. The jury is free to believe
all, part, or none of the evidence and to determine the credibility of the
witnesses. Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011).
While it is certainly possible, as Spears now contends, that the evidence was
also consistent with his acquisition of the items in question from the “actual
burglar,” Spears’ Brief at 19, nothing in the evidence presented compels
such a conclusion. As a result, the trial court did not abuse its discretion in
rejecting this suggestion and denying Spears’ post-sentence motion for a
new trial on this basis.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2014
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