Com. v. Harvey, C.

J-S59002-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

COREY LEE HARVEY,

Appellant No. 2215 EDA 2015

Appeal from the Judgment of Sentence Entered May 26, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003188-2014

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 16, 2016

Appellant, Corey Lee Harvey, appeals from the judgment of sentence

of an aggregate term of 5 to 14 years’ imprisonment, imposed after he was

convicted of one count each of burglary,1 conspiracy to commit burglary,2

criminal trespass,3 and theft by unlawful taking.4 Appellant challenges the

sufficiency of the evidence to sustain his convictions and alleges the verdict

is against the weight of the evidence. Appellant also asserts that his

____________________________________________

*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3502(a)(2).
2
18 Pa.C.S. §§ 903, 3502(a)(2).
3
18 Pa.C.S. § 3503(a)(1)(ii).
4
18 Pa.C.S. § 3921(a).
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sentence is manifestly excessive and an abuse of the trial court’s discretion.

We affirm.

Appellant’s convictions stemmed from a burglary that occurred on

March 28, 2014. Following a jury trial, Appellant was found guilty of the

above-stated charges and sentenced to the following: 3 to 10 years’

imprisonment on the charge of burglary; a consecutive sentence of 2 to 4

years’ imprisonment on the charge of criminal conspiracy to commit

burglary; and a concurrent sentence of 15 to 30 months’ imprisonment on

the charge of criminal trespass. The charge of theft by unlawful taking

merged with the burglary charge for sentencing purposes. Trial Court

Opinion, 8/19/15, at 2. Subsequently, Appellant filed a post-sentence

motion which challenged the sufficiency and weight of the evidence and

requested that the court reconsider his sentence. Appellant’s request for

relief was denied by the trial court on June 23, 2015. Id.

On July 21, 2015, Appellant filed a timely notice of appeal, followed by

a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b).5 Herein, Appellant presents the following issues for our review:

I. Whether or not the evidence as presented was sufficient as
a matter of law to support the conviction for burglary,
criminal conspiracy, and criminal trespass when the
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5
All of the matters stated within Appellant’s Rule 1925(b) statement were
previously addressed by the trial court in its opinion docketed on June 24,
2015. Consequently, the trial court incorporated said opinion into its August
19, 2015 Rule 1925(a) opinion. Id.

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evidence that [Appellant] was aware of the illegal activity
was questionable and uncertain?

II. Was the verdict against the weight of the evidence in
regards to the proof of whether or not [Appellant] was
guilty of the charges and was aware that a burglary was
occurring?

III. Whether the sentences as imposed were manifestly
excessive as they were in the aggravated range of
[Appellant’s] applicable sentencing guidelines and were not
justified by the overall history and circumstances in
[Appellant’s] life?

Appellant’s Brief at 8-9 (unnecessary capitalization omitted).

To begin, we note our standard of review of a challenge to the

sufficiency of the evidence:

In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted).

Appellant challenges the sufficiency of the evidence to support his

convictions of burglary and conspiracy to commit burglary.6 “A person
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6
Although Appellant’s first issue references the sufficiency of the evidence to
support his conviction of criminal trespass in addition to burglary and
conspiracy to commit burglary, his brief lacks any argument whatsoever
regarding the sufficiency of evidence to support his criminal trespass
conviction. Accordingly, we deem Appellant’s sufficiency claim regarding his
criminal trespass conviction waived and treat this issue as a sufficiency
(Footnote Continued Next Page)

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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 adapted for overnight accommodations in

which at the time of the offense no person is present.” 18 Pa.C.S. §

3502(a)(2). Moreover, it is well-established that “[t]o sustain a conviction

for criminal conspiracy, the Commonwealth must establish the defendant:

(1) entered into an agreement to commit or aid in an unlawful act with

another person or persons; (2) with a shared criminal intent; and (3) an

overt act was done in furtherance of the conspiracy.” Commonwealth v.

Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011). “This overt act need not be

committed by the defendant; it need only be committed by a co-

conspirator.” Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa.

Super. 2000) (citations omitted).

Before addressing whether the elements of the above-stated crimes

have been met, we review the facts reflected in the record of the jury trial

which led to Appellant’s convictions, summarized by the trial court as

follows:

[T]he evidence established that on March 28, 2014, at
approximately 11:50 a.m., Officer Anthony Scocca of the
_______________________
(Footnote Continued)

challenge only to his convictions of burglary and conspiracy to commit
burglary. See Butler v. Illes, 747 A.2d 943, 944 (Pa. Super 2000) (holding
“[w]hen issues are not properly raised and developed in briefs, when briefs
are wholly inadequate to present specific issues for review, a court will not
consider the merits thereof”).

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Allentown Police Department was dispatched to 960 West
Emmaus Avenue, Allentown, Lehigh County, Pennsylvania, for a
burglary in progress. As he arrived on scene, he observed
Officer Mark Dean of the Allentown Police Department on the
front lawn of the premises with two (2) males in custody. The
two (2) males were subsequently identified as [Appellant,] Corey
Harvey[,] and Co-Defendant[,] Zachary Schanenberger. Officer
Scocca ultimately placed [Mr.] Schanenberger into police
custody. A pat down of [Mr.] Schanenberger was performed by
Officer Scocca and he located a camera that belonged to the
tenants of 960 West Emmaus Avenue, Apartment 126, in [his]
left pants pocket. In addition, [Mr.] Schanenberger possessed
two (2) cellular telephones. He indicated that one (1) cellular
telephone belonged to him and that the other one was taken
from the residence located at 960 West Emmaus Avenue. [Mr.]
Schanenberger indicated to Officer Scocca that they were there
to retrieve items for “Rachel.”

Josefina Baez, a resident of 960 West Emmaus Avenue,
Apartment 126, Allentown, received a telephone call from her
neighbor while she was at work. The neighbor advised her that
two (2) men were in her home. When Ms. Baez arrived on scene
approximately five (5) minutes later, she observed three (3)
officers and two (2) males on her lawn with garbage bags (taken
from her residence) filled with her belongings. Inside the
garbage bags were, inter alia, Ms. Baez’s jewelry box containing
jewelry valued at approximately [$125.00], a Play Station, her
husband’s sneakers, a laptop computer, and a Tasmanian Devil
bank containing approximately [$125.00] in cash. She noted
that her apartment had been ransacked and was in total
disarray. In addition, Ms. Baez observed that a screen had been
cut and removed from the back bedroom window, and a white
plastic lawn chair had been placed under it. Ms. Baez testified
that she did not know [Appellant], and she did not give him
permission to enter her residence or remove anything therefrom.

Ms. Baez lives with her husband, Victor Brown, and their
two (2) daughters. Mr. Brown did not know [Appellant], and he
did not grant him permission to enter his residence or remove
anything therefrom. Upon questioning Ms. Baez about the
identity of “Rachel,” the authorities learned that Rachel was Ms.
Baez’s 21 year old daughter. Ms. Baez informed the officers that
Rachel had stayed in the apartment located at 960 West
Emmaus Avenue from December of 2013 through February of

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2014. However, Rachel was never provided with a key to the
residence.

[Mr.] Schanenberger testified that he was familiar with Rachel.
In particular, he stated that he, [Appellant], William Medina, and
Rachel had discussed burglarizing Rachel’s mother’s apartment
approximately two (2) weeks prior to March 28, 2014. [Mr.]
Schanenberger indicated that Rachel wanted to retaliate against
her mother because her mother, [Ms.] Baez, had kicked her out
of the house. Rachel had told them that between the hours of
9:30 a.m. and 11:00 a.m., the residence would be empty and
that her mother had jewelry, cash, and electronics in the home.
Consequently, on March 28, 2014, at approximately 8:00 a.m.,
[Mr.] Schanenberger, [Appellant], and [Mr.] Medina drove to
960 West Emmaus Avenue. [Mr.] Schanenberger testified that
the back door of the residence was supposed to be unlocked, but
it was not. Therefore, he gained entrance through an open
window in the rear of the apartment complex. Upon entering,
[Mr.] Schanenberger unlocked the door and called [Appellant]
over from the truck. [Appellant] initially grabbed the garbage
bags. He then took a Play Station, a laptop, and a few other
items from the living room and kitchen areas, while [Mr.]
Schanenberger took items from the bedroom. While [Appellant]
and [Mr.] Schanenberger were exiting the residence, each with a
garbage bag in their hands, the police were out front. They
were immediately detained. [Mr.] Schanenberger revealed that
the plan was to sell the items that they took from the apartment
for money in order to get [Mr.] Medina’s truck repaired.

Trial Court Opinion (TCO), 6/24/15, at 4-8.

On appeal, Appellant argues that the evidence was insufficient to

prove beyond a reasonable doubt that he knowingly committed a burglary or

that he was involved in a conspiracy to commit a burglary. Appellant’s Brief

at 14. After careful review, we discern Appellant’s contentions to be wholly

without merit.

At his jury trial, Appellant testified that he and Mr. Medina traveled to

the residence at 960 W. Emmaus Avenue “at the request of [Mr.]

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Schanenberger[,] in order to retrieve property belonging to Rachel[,] who

was a friend of Mr. Schanenberger.” Id. at 15. Appellant further asserts

that he had no knowledge at the time that they did not have permission to

be there or that Mr. Schanenberger was going there with the intent to

commit a burglary. Id. at 16. However, the Commonwealth presented

contradictory evidence that demonstrated Appellant was a knowing and

willing participant in the burglary. Id. More specifically, Mr. Schanenberger

testified that he, Mr. Medina, Rachel, and Appellant had discussed

burglarizing Rachel’s mother’s apartment approximately two weeks prior to

the date of the incident. TCO at 7. “At the conclusion of the jury trial, the

jury had no doubt that [Appellant] entered the residence [of Ms. Baez] when

no one was present, with the intent to commit a crime therein, and

conspired to do same.” TCO at 8. “It is well-settled that the jury is free to

believe all, part or none of the evidence and must determine the credibility

of the witnesses.” Commonwealth v. Orie, 88 A.3d 983 (Pa. Super.

2014). Viewing the evidence in a light most favorable to the

Commonwealth, we conclude that the evidence was clearly sufficient to

support the jury’s finding Appellant guilty of burglary and conspiracy to

commit burglary. Therefore, we uphold Appellant’s convictions.

Next, we address Appellant’s challenge to the weight of the evidence

to support his convictions.

A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial

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court’s discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the jury is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and a new trial
based on a weight of the evidence claim is only warranted where
the jury’s verdict is so contrary to the evidence that it shocks
one’s sense of justice. In determining whether this standard has
been met, appellate review is limited to whether the trial judge’s
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

Appellant acknowledges that he carried items out of Ms. Baez’s

residence. He argues, however, that whether he committed a criminal act

hinges on whether he thought he was “doing a favor for a friend.”

Appellant’s Brief at 20. Appellant avers that the jury improperly gave weight

to the testimony of Mr. Schanenberger over his own testimony. However, as

the trial court stated:

From the evidence [of record], it is reasonable to have concluded
that [Appellant] was the individual who entered onto the
premises located at 960 West Emmaus Avenue, Apartment 126,
when no one was present, with the intent to commit a crime
therein, and conspired to do same. Also, based on the evidence,
it is reasonable to have concluded that [Appellant], knowing that
he was not licensed or privileged to do so, broke into the subject
premises and unlawfully took property of Ms. Baez and Mr.
Brown with the intent to deprive them thereof. Accordingly,
[Appellant’s] challenge to the weight of the evidence must fail.

TCO at 9.

Moreover, we note that Appellant’s argument ignores the well-settled

principles of law that the finder of fact makes credibility determinations and

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is free to believe all, part, or none of the evidence. Commonwealth v.

Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009). The jury was free to believe

the testimony of Mr. Schanenberger over that of Appellant and to weigh the

testimony accordingly. Based on our review of the record, we ascertain no

abuse of discretion by the trial court.

Finally, we address Appellant’s claim that his sentence is manifestly

excessive. Appellant avers that the trial court failed to provide any

appropriate reasons for sentencing him in the aggravated range and failed to

consider any mitigating factors prior to the imposition of his sentence.

Appellant’s Brief at 12. We note that Appellant’s allegations relate to the

discretionary aspects of his sentence.

Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. 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, 42 Pa.C.S.A. § 9781(b).

Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and internal quotations omitted).

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Here, the record clearly reflects that Appellant filed a timely notice of

appeal, properly preserved his claim in his post-sentence motion, and

included a separate, concise Rule 2119(f) statement in his appellate brief in

compliance with the Pennsylvania Rules of Appellate Procedure. Thus, we

proceed to determine whether Appellant has raised a substantial question to

meet the fourth requirement of the four-part test outlined above.

Appellant asserts that the trial court sentenced him in the aggravated

range without providing adequate reasons and without giving appropriate

consideration to mitigating factors. Appellant’s Brief at 12. Based on

Appellant’s arguments and the case law on which he relies, we conclude that

he has presented a substantial question for our review. See

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003)

(finding a substantial question existed where the appellant argued that the

sentencing court erred by imposing an aggravated range sentence without

consideration of mitigating circumstances). Accordingly, we will review the

merits of his claim, keeping in mind that,

[t]he sentencing court is given broad discretion in determining
whether a sentence is manifestly excessive because the
sentencing judge is in the “best position to measure factors such
as the nature of the crime, the defendant’s character and the
defendant’s display of remorse, defiance, or indifference.”
Commonwealth v. Andrews, 720 A.2d 764, 768 (Pa. Super.
1998) (quoting Commonwealth v. Ellis, 700 A.2d 948, 958
(Pa. Super. 1997)). In order to find that a trial court imposed an
“unreasonable” sentence, we must determine that the
sentencing court imposed the sentence irrationally and that the
court was “not guided by sound judgment.” Commonwealth v.
Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007).

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Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012).

We further note:

When imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In particular, the court should refer to the
defendant’s prior criminal record, his age, personal
characteristics and his potential for rehabilitation. Where the
sentencing court had the benefit of a presentence investigation
report (“PSI”), we can assume the sentencing court was aware
of the relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory
factors. Further, where a sentence is within the standard range
of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code.

Moury, 992 A.2d at 171 (citations and internal quotation marks omitted).

Here, not only did the trial court have the benefit of a PSI, it expressly

stated that it considered all of the appropriate relevant factors, as explained

in the following portion of its Rule 1925(a) opinion:

This [c]ourt considered all the required statutory factors in
sentencing [Appellant]. Indeed, in imposing [Appellant’s]
sentence, this [c]ourt considered the ‘protection of the public,
the gravity of the offense as it relates to the impact on the
victim and the community, the defendant’s rehabilitative needs,
and the sentencing guidelines.’ 42 Pa.C.S. § 9721(b);
Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super.
2008).

Prior to sentencing this [c]ourt carefully reviewed the Pre-
Sentencing Investigation Report prepared on May 19, 2015. The
[c]ourt was aware of all of the information contained therein.
Therefore, this [c]ourt did not fail to consider mitigating factors.
Indeed, this [c]ourt was cognizant of [Appellant’s] behavior
while in Lehigh County Prison, the recommendation of the
Probation Officer, [Appellant’s] family situation, [Appellant’s]
employment history and new business venture, [Appellant’s
community involvement prior to incarceration, [Appellant’s]
failure to comply with supervision in the past, [Appellant’s] lack

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of remorse or acceptance of responsibility, and the
circumstances and facts giving rise to the crimes. Additionally,
this [c]ourt articulated on the record the reasons for the
imposition of the sentence on the charge of Burglary within the
aggravated range of the guidelines: (1) the guidelines do not
accurately reflect the seriousness of the crime; and (2) the
guidelines do not reflect that [Appellant’s] prior criminal history
involves similar types of crimes such as thefts, robberies and
firearms offenses.

TCO at 12-13 (internal citations omitted).

After careful review of the record, we are satisfied that the trial court

gave appropriate consideration to the relevant factors before issuing

Appellant’s sentence, and we ascertain no abuse of discretion. Appellant’s

claim regarding the length of his sentence is without merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2016

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