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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM THOMAS
Appellant No. 2518 EDA 2013
Appeal from the Judgment of Sentence August 22, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011144-2012
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED MARCH 24, 2015
Appellant, William Thomas, appeals from the August 22, 2013
aggregate judgment of sentence of four to eight years’ incarceration, plus
three years’ probation, imposed after he was found guilty following a nonjury
trial of burglary, criminal trespass, criminal mischief, and possession of an
instrument of crime.1 After careful review, we affirm.
The trial court supplied the following summary of the facts of the
incident.
On September 4, 2012, at approximately
12:00 a.m., Prentice Beckett was in his home,
located at 830 South 48th Street in Philadelphia,
when he received a call from his neighbor stating
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1
18 Pa.C.S.A. §§ 3502(a), 3503(a)(1), 3304(a)(2), and 907(a),
respectively.
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that police were outside of, and trying to get into, his
home. Mr. Beckett came downstairs and observed
[Appellant] on his porch with the police. Mr. Beckett
did not know [Appellant] and he never gave
[Appellant] permission to either enter his home or to
be on his porch. Prior to this incident, Mr. Beckett
had not noticed any damage to any of his window
screens; after this incident, Mr. Beckett noticed that
the front porch window screen was sliced.
On September 4, 2012, Officer Mitchell, a
Philadelphia Police Officer, was on patrol with his
partner, in the area of 48th and Warrington Streets,
when they received a radio call relative to the
property located at 830 South 48th Street.1 They
were also flagged down by an individual, Mr.
Denning, who directed them to 830 South 48th
Street. Upon arriving at the location, Officer Mitchell
observed [Appellant] on the porch of the property,
near the front window. Officer Mitchell shined his
flashlight on [Appellant], who laid on the porch to
avoid detection. Officer Mitchell directed [Appellant]
to come down the steps so that he and [Appellant]
could have a conversation.
[Appellant] told Officer Mitchell that he was
waiting for his friend, Reese, who lived at the
property. Mr. Beckett told Officer Mitchell that he
did not know anyone named Reese and further, that
[Appellant] had no right to be on his property.
[Appellant] also told Officer Mitchell that he could not
contact Reese because his phone was inoperable and
further, that he could not recall Reese’s last name or
how he knew Reese. Officer Mitchell placed
[Appellant] under arrest. He searched [Appellant],
incident to the arrest and as a result thereof, Officer
Mitchell recovered a padlock and a pair of edge
pliers, tin snips, which can be used to cut aluminum
and metal.
1
The 911 tape was entered into evidence as Exhibit
C-3 [by the Commonwealth]. [See N.T., 6/26/13, at
27.]
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Trial Court Opinion, 9/11/14, at 1-2 (footnote in original; citations omitted).
Later that day, Appellant was charged with the aforementioned
offenses. Appellant was found guilty of all charges after a one-day bench
trial on June 26, 2013. N.T., 6/26/13, at 58. Thereafter, on August 22,
2013, the trial court sentenced Appellant to an aggregate term of four to
eight years’ incarceration followed by three years’ probation.2 Appellant did
not file a post-sentence motion. On August 26, 2013, Appellant filed a
timely notice of appeal.3
On appeal, Appellant raises the following issue for our review.
Was not the evidence insufficient to make out
burglary where there was no entry into the building
and no intent to commit a crime inside the building?
Appellant’s Brief at 2.
“A claim impugning the sufficiency of the evidence presents us with a
question of law.” Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.
Super. 2014) (citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).
Our standard and scope of review is as follows.
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2
Specifically, the trial court sentenced Appellant to four to eight years’
incarceration on the burglary conviction. N.T., 8/22/13, at 10. Additionally,
the trial court sentenced Appellant to a consecutive term of three years’
probation on the criminal trespass conviction. Id. There was no further
penalty imposed on the two remaining convictions. Id.
3
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we
note that the facts and circumstances established by
the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be
drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] 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.
Commonwealth v. Fabian, 60 A.3d 146, 150-151 (Pa. Super. 2013)
(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013).
However, the inferences must flow from facts and
circumstances proven in the record, and must be of
such volume and quality as to overcome the
presumption of innocence and satisfy the jury of an
accused’s guilt beyond a reasonable doubt. The trier
of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on
suspicion will fail even under the limited scrutiny of
appellate review.
Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014) (citation
omitted), appeal denied, 101 A.3d 102 (Pa. 2014).
The Crimes Code defines burglary, in relevant part, as follows.
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§ 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 accommodation in
which at the time of the offense any person is
present[.]
18 Pa.C.S.A. § 3502(a)(1).
Before addressing the merits of Appellant’s claim, we must determine
whether Appellant has preserved his issues for appellate review. First, we
examine whether Appellant has complied with Pennsylvania Rule of Appellate
Procedure 1925(b). By its text, Rule 1925(b) requires that concise
statements “identify each ruling or error that the appellant intends to
challenge with sufficient detail to identify all pertinent issues for the judge.”
Pa.R.A.P. 1925(b)(4)(ii); see also Commonwealth v. Reeves, 907 A.2d 1,
2 (Pa. Super. 2006) (stating “[w]hen a court has to guess what issues an
appellant is appealing, that is not enough for meaningful review[]”), appeal
denied, 919 A.2d 956 (Pa. 2007). Any issues not raised in accordance with
Rule 1925(b)(4) will be deemed waived. Pa.R.A.P. 1925(b)(4)(vii). Our
Supreme Court has made clear that Rule 1925(b) is a bright-line rule.
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). Additionally, with
regard to claims pertaining to the sufficiency of the Commonwealth’s
evidence, we have stated as follows.
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In order to preserve a challenge to the sufficiency of
the evidence on appeal, an appellant’s Rule
1925(b) statement must state with specificity
the element or elements upon which the
appellant alleges that the evidence was
insufficient. Such specificity is of particular
importance in cases where, as here, the appellant
was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt.
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal
quotation marks and citations omitted; emphasis added).
In this case, on October 10, 2013, Appellant timely filed his Rule
1925(b) statement, which challenged the sufficiency of the evidence for his
burglary conviction based only on the element of “the intent to commit a
crime on the premises.” Appellant’s Statement of Errors Complained of on
Appeal, 10/10/13. On appeal, Appellant now contests the sufficiency of the
evidence to prove “entry into the building.”4 Appellant’s Brief at 2, 9-10.
Based on our cases, we are constrained to conclude that Appellant has
not complied with Rule 1925(b) because his concise statement failed to
specify he was challenging the sufficiency of the evidence on the element of
“entry.” See Garland, supra; Commonwealth v. Williams, 959 A.2d
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4
While the question presented also purports to raise the sufficiency of the
evidence on the element of “intent to commit a crime inside the building,”
Appellant did not develop an argument or cite any authority in support of
this claim. Appellant’s Brief at 9-10. Therefore, this issue is waived. See
Pa.R.A.P. 2119(a)-(c); Commonwealth v. Kearney, 92 A.3d 51, 66-67
(Pa. Super. 2014), appeal denied, 101 A.3d 102 (Pa. 2014).
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1252, 1257 (Pa. Super. 2008). Therefore, on this basis alone we deem
Appellant’s sufficiency of the evidence challenges waived. See Garland,
supra.
Moreover, had we not deemed Appellant’s issue waived for
noncompliance with Rule 1925(b), we note that Appellant has also waived
his claim based on his failure to ensure the trial exhibits, specifically the 911
tape, are part of the certified record. The certified record consists of the
“original papers and exhibits filed in the lower court, paper copies of legal
papers filed with the prothonotary by means of electronic filing, the
transcript of proceedings, if any, and a certified copy of the docket
entries[.]” Pa.R.A.P. 1921. “Our law is unequivocal that the responsibility
rests upon the appellant to ensure that the record certified on appeal is
complete in the sense that it contains all of the materials necessary for the
reviewing court to perform its duty.” Commonwealth v. Preston, 904
A.2d 1, 7 (Pa. Super. 2006) (en banc) (citation omitted), appeal denied, 916
A.2d 632 (Pa. 2007). To this end, Rule 1931(d) provides that the clerk of
the lower court shall “mail a copy of the list of record documents to all
counsel of record, or if unrepresented by counsel, to the parties[.]”
Pa.R.A.P. 1931(d). If an appellant discovers any material omissions from
the certified record, it must supplement the record pursuant to Rule
1926(b). “[T]he ultimate responsibility of ensuring that the transmitted
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record is complete rests solely upon the appellant and not upon the
appellate courts.” Preston, supra.
A review of the certified record reveals it does not contain either an
audio recording of the 911 call or a transcript thereof. The trial transcript
indicates that the “911 tape” was introduced as the Commonwealth’s exhibit
3. N.T., 7/26/13, at 27. The trial exhibits are not included in the clerk of
courts’ list of record documents supplied to the parties. See generally
Pa.R.A.P. 1931(d). Appellant has made no effort to ensure inclusion of the
missing exhibits. See generally id. at 1926(b). The 911 tape is critical to
our review because it contains the eyewitness’s description of Appellant’s
entry into Beckett’s residence. The trial court found the statements in the
911 tape were sufficient to prove Appellant entered the house. Trial Court
Opinion, 9/11/14, at 6. Without this piece of evidence, which was admitted
at trial, we cannot conduct a meaningful review of Appellant’s claim. See
Fabian, supra. Therefore, Appellant has waived his challenge to the
sufficiency of the evidence for failure to ensure that the certified record
contained the 911 tape. See Preston, supra.
Based on the foregoing, we conclude that Appellant has waived his
sole issue on appeal. Accordingly, the trial court’s August 22, 2013
judgment of sentence is affirmed.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2015
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Com. v. Thomas, W.
Combined Opinion