Com. v. Wilson, C.

J-S33036-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

CALVIN WILSON

Appellant No. 2136 EDA 2014

Appeal from the Judgment of Sentence June 19, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010812-2013

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.: FILED JULY 07, 2015

Calvin Wilson appeals from his judgment of sentence, imposed in the

Court of Common Pleas of Philadelphia County, following his convictions for

burglary1 (F-2), criminal trespass2 and criminal mischief.3 Wilson was
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1
See 18 Pa.C.S. § 3502(a)(4). Pursuant to section 3502(a)(4):

A person commits the offense of burglary if, with the intent to
commit a crime therein, the person . . . 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.

The owner of the premises, Mr. Phillip Yannella, testified that at the time of
the break in, the property was unfurnished, was in the process of being
converted for overnight accommodations, and did not have electricity. N.T.
Non-Jury Trial, 4/17/2014, at 7.
2
See 18 Pa.C.S. § 3503(a)(1).
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sentenced to four to ten years’ incarceration for burglary, followed by one

year of probation for criminal mischief.4 On appeal, Wilson challenges the

sufficiency of the evidence5 to support his burglary conviction and the

discretionary aspects of his sentence. After careful review, we affirm.

The burglary in question occurred on July 7, 2013. The property

owner, Phillip Yannella, arrived at his residence, located at 1113 Lakeside

Avenue in Philadelphia, and was unable to enter the premises because the

three entrances had been blocked from the inside. N.T. Non-Jury Trial

4/17/14, at 7-8. Yannella testified that he had been at the property working

on construction the day prior to the incident and nothing had been

disturbed. When he could not enter the premises on July 7, he called the

police. When the police arrived, Officer Andy Yun climbed through a broken

first-floor window and announced himself as a police officer multiple times,

but received no response. Id. at 17-18. Officer Yun then saw Wilson

_______________________
(Footnote Continued)
3
See 18 Pa.C.S. § 3504(a)(5).
4
No further penalty was imposed on the trespass charge.
5
In reviewing a challenge to the sufficiency of the evidence, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that each and every element of
the crimes charged was established beyond a reasonable doubt.
Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).

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crouching down and hiding inside of a first-floor bedroom closet.6 Id. at 18-

19. Wilson was then placed in custody. Id. at 19.

While in the premises, Officer Yun also discovered that one of the

kitchen cabinet doors was wedged between the front door and the staircase.

He noticed damage to the first-floor window and kitchen cabinets. Id. at

19-20. Yannella also testified that the tile floor had been broken, the sliding

glass door and three kitchen cabinet doors had been removed, a screwdriver

was jammed into the garage door track, personal property was removed

from the closets, and a blue crack pipe was found within the premises. Id.

He also observed that a pair of jeans and a roll of paper towels had been

used to make a makeshift bed. Id. at 9-10. Yannella acknowledged,

however, that nothing had been removed from the house, although Wilson

was still inside when the police arrived. Id. at 14.

Wilson first asserts that the evidence presented by the Commonwealth

was insufficient to support his burglary conviction because the

Commonwealth did not prove that, at the time he entered the property, he

had the intent to commit a crime.

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6
Wilson testified at his sentencing hearing that he was on probation at the
time of the incident, and the reason that he broke into the property was
because he was hiding from the police on an outstanding arrest warrant.
N.T. Sentencing Hearing, 6/19/14, at 9.

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In Pennsylvania, a person commits burglary, a second-degree- felony,

when:

[I] f, with the intent to commit a crime therein, [he] 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. § 3502(a)(4). Our Supreme Court has held that the crime of

burglary requires the specific intent to commit a crime; however, this

specific intent element relates to whether the accused entered the premises

with the general criminal intent to commit any crime. Commonwealth v.

Alston, 651 A.2d 1092, 1095 (Pa. 1994); see In re Golden, 365 A.2d 157

(Pa. Super. 1976) (entry, even with intent to commit summary offense

inside dwelling, is burglary). Further, the Commonwealth need not prove

the underlying crime to sustain a burglary conviction. See Commonwealth

v. Lease, 703 A.2d 506 (Pa. Super. 1997).

The Commonwealth may prove a defendant guilty of burglary by

circumstantial evidence, and “the specific intent to commit a crime

necessary to establish the second element of burglary may thus be found in

the defendant’s words or conduct, or from the attendant circumstances

together with all reasonable inferences therefrom.” Commonwealth v.

Franklin, 452 A.2d 797, 799 (Pa. Super. 1982) (citations omitted);

Commonwealth v. Hardick, 380 A.2d 1235, 1237 (Pa. 1977)

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(Commonwealth is not required to prove intent directly; it may be inferred

from circumstances surrounding incident out of which charges arise).

Evidence of a forced entry into a structure does not per se give rise to

a sufficient inference of an intent to commit a crime therein.

Commonwealth v. Wilamowski, 633 A.2d 141 (Pa. Super. 1993). The

prosecution must establish more than a mere break-in to meet its burden.

Commonwealth v. Freeman, 313 A.2d 770 (Pa. Super. 1973). It has long

been the law that mere presence at the scene is insufficient to support a

conviction for burglary. Commonwealth v. Roscioli, 309 A.2d 396 (Pa.

1973).

Here, Wilson intentionally entered the premises surreptitiously by

breaking a window, having seen the occupants leave for the day. While

Wilson concedes he had no right to be on the property, he contends he was

only on the premises to hide from the police and sleep, not to commit a

crime. However, once inside, Wilson destroyed the interior of the premises

and removed the owner’s belongings from the closets. He barricaded

himself in the home by blockading all the entrances. Moreover, while on the

premises Yannella found a blue crack pipe, which the trial court inferred

belonged to Wilson.7 Wilson’s attempt to hide in a closet and his failure to

____________________________________________

7
Wilson denied that the crack pipe was his and that he does not use drugs,
despite a prior conviction for drug usage as well as a pre-sentence report
from 2010 indicating a history of cocaine addiction, and a 1993 pre-sentence
(Footnote Continued Next Page)

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respond to Officer Yun’s multiple requests to make his presence known are

additional indicia of guilt.

Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, we conclude that there was sufficient evidence presented

to prove, beyond a reasonable doubt, that Wilson intended to commit a

crime when he entered the premises. Randall, supra. As such, we find no

merit to this claim.

In his second issue on appeal, Wilson raises a discretionary aspect of

sentence claim, contending he is entitled to be resentenced because the trial

court’s sentence is unreasonable, excessive, and his prior record was

“double counted” against him. Wilson also claims that the trial court failed

to consider his rehabilitative needs when fashioning its sentence.

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. Commonwealth v. Johnson, 666 A.2d 691, 693 (Pa.

Super. 1995) (quoting Commonwealth v. Dotter, 589 A.2d 726 (Pa.

Super. 1991)).

A four-pronged analysis is required before the Pennsylvania
Superior Court will review the merits of a challenge to the
discretionary aspects of a sentence. Those prongs are: (1)
whether the appellant has filed a timely notice of appeal,
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
_______________________
(Footnote Continued)

report indicating an extensive $200-a-day cocaine habit. Trial Court
Opinion, 12/16/14, at 6.

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preserved at sentencing or in a motion to consider and modify
sentence, 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. § 9781(b).

Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005). An

appellant raises a substantial question when he shows that the sentencing

court’s actions were inconsistent with the Sentencing Code or contrary to the

fundamental norms underlying the sentencing process. Pa.R.A.P. 2119(f);

Commonwealth v. Ferguson, 893 A.2d 735 (Pa. Super. 2006).

Instantly, Wilson has complied with the four prongs outlined in

Hyland. He has filed a timely notice of appeal, filed a motion for

reconsideration of sentence, included a Rule 2119(f) statement in his

appellate brief, and also raised substantial questions to invoke our appellate

review. See Commonwealth v. Hanson, 856 A.2d 1257 (Pa. Super. 2004)

(claim that sentencing court imposed unreasonable sentence by sentencing

outside guidelines presents substantial question); Commonwealth v.

Boyer, 856 A.2d 151 (Pa. Super. 2003), aff'd, 891 A.2d 1265 (Pa. 2006)

(substantial claim raised where the trial court imposed a manifestly

excessive sentence and focused solely on the serious nature of the crimes

[defendant] committed); Commonwealth v. Goggins, 748 A.2d 731 (Pa.

Super. 2000) (en banc) (substantial question raised by claim that prior

record was double-counted); and Commonwealth v. Dodge 77 A.3d 1273

(Pa. Super. 2013) (substantial question raised by claiming sentencing court

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disregarded rehabilitative needs and nature of offense). Accordingly, we

will address the merits of Wilson’s claims.

Here, Wilson was sentenced to four to ten years’ imprisonment for

second-degree burglary, followed by one year of probation for criminal

mischief. At the sentencing hearing, the parties agreed that Wilson’s prior

record score (PRS) was properly classified as a repeat felony offender

(“RFEL”) with an offense gravity score (OGS) of five. N.T. Trial, 6/19/14, at

3. A standard-range sentence for his offense (with a PRS of RFEL and an

OGS of 5) is twenty-four to thirty-six months’ incarceration, plus or minus

three months for aggravating or mitigating circumstances. See 204. Pa.

Code § 303.16 (Basic Sentencing Matrix). The trial court chose to sentence

Wilson above the aggravated range, to a four to ten year term of

imprisonment. The statutory maximum sentence for a second-degree felony

is ten years. 18 Pa.C.S. § 1103(2). Therefore, while Wilson’s sentence was

outside of the Sentencing Guidelines, it did not exceed the statutory limit.

A sentencing judge may deviate from the Guidelines, so long as he

states on the record the factual basis and specific reasons which compelled

him to deviate from the guideline range. Commonwealth v. Johnson, 666

A.2d 690 (Pa. Super. 1995); 42 Pa.C.S. § 9721(b). Moreover, when a

court deviates from the Guidelines, it must indicate that it understands the

suggested sentencing range. Commonwealth v. Rodda, 723 A.2d 212

(Pa. Super. 1999). Finally, our Supreme Court has held that where the trial

court possesses a pre-sentence report, it is presumed that the court is aware

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of all appropriate sentencing factors and considerations, and that where the

court has been so informed, its discretion should not be disturbed.

Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988).

After trial, Wilson’s attorney requested a pre-sentence investigation

(PSI) report. The court considered the PSI prior to sentencing Wilson,

specifically noting that Wilson had an extensive criminal history, which

involved primarily crimes of a similar nature. The record also reveals that

the court considered Wilson’s own statements made at sentencing and took

into account the need to protect the public from any future criminal

behavior. In his Pa.R.A.P. 1925(a) opinion, the trial judge provided the

following reasons for Wilson’s sentence:

This defendant has not learned to live in our society, and our
society needs to be protected from the likes of Mr. Wilson. This
defendant has had numerous chances at rehabilitation and all
have failed. At sentencing, defendant lacked any remorse. He
has been convicted twenty-two times. The defendant believed
that he was justified in breaking into someone else’s property
because the police had a warrant for him and he needed to hide.
To make such a statement shows that this defendant does still
not understand what is required of him to live in our society. Mr.
Wilson’s lack of candor, both with the court and the presentence
investigator, shows that he has not changed his ways. He has
shown no remorse, and in fact hasn’t acknowledged his wrong
doing at all . . . [H]is entire criminal record was considered and
it is deplorable . . . Not only was the sentence imposed fair and
just under the circumstances, Mr. Wilson is lucky that he only
received four to ten years[‘] incarceration.

Trial Court Opinion, 12/16/14, at 7-8.

Accordingly, we find that the trial court imposed a reasonable sentence

in light of Wilson’s extensive criminal history, as well as taking in to account

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the sentencing factors outlined in the Sentencing Code. See 42 Pa.C.S. §

9721(b) (court shall follow general principle that sentence imposed should

call for confinement that is consistent with protection of public, gravity of

offense as it relates to impact on life of victim and on community, and

rehabilitative needs of appellant; court shall also consider applicable

sentencing guidelines). Based upon the record, we can discern no abuse of

the trial court’s discretion in sentencing Wilson to four to ten years’

imprisonment. Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/7/2015

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