J-A28010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES HOLLAND
Appellant No. 3283 EDA 2015
Appeal from the Judgment of Sentence July 15, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005281-2014
BEFORE: PANELLA, J., SHOGAN, J., and PLATT*, J.
MEMORANDUM BY PANELLA, J. FILED February 27, 2017
Appellant, James Holland, appeals from the judgment of sentence
entered after a jury convicted him of burglary and conspiracy to commit
burglary.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On July 13, 2014, police responded to a 911 call reporting a burglary in
progress. The caller stated he lived next door to the property, and that his
neighbor, Frank Benditt, was away on vacation. When police arrived, they
found Appellant inside the home with his accomplice, Waleska Nunez.2
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3502(a)(2), 903.
2
Ms. Nunez’s first name is subject to a variety of spellings throughout the
certified record.
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Appellant was holding a purple drawstring bag with several items inside
belonging to Mr. Benditt. Appellant attempted to discard the bag and flee the
premises, but was unsuccessful. Other items belonging to Mr. Benditt were
found in bags throughout the house and outside the premises. Officers
discovered several credit cards in Mr. Benditt’s name in Appellant’s pockets.
They subsequently arrested Appellant and Nunez. Nunez told police she and
Appellant had entered the house in order to have sex. Nunez later admitted
she and Appellant had planned to steal items from the home and pawn
them, in order for Appellant to pay her for sex with the proceeds.
Appellant proceeded to jury selection, at which time Appellant’s
counsel raised a Batson3 challenge and requested that the jury not be
seated. The court denied counsel’s request. The case continued to trial, and
the jury convicted Appellant of burglary and criminal conspiracy.
The court sentenced Appellant to an aggregate term of 51-162
months’ incarceration, plus five years’ probation. Appellant timely filed a
post-sentence motion. The court denied Appellant’s motion, and he appealed
to this Court.
Appellant raises two issues for our review:
Did the [trial court err] by finding that the Commonwealth
presented sufficient evidence to support a verdict of guilty for
the crimes of criminal conspiracy to commit burglary and
burglary?
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3
Batson v. Kentucky, 476 U.S. 79 (1986).
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Did the trial court fail to declare a mistrial and improperly permit
the dismissal of four jurors who were African-American after a
Batson challenge by defense counsel?
Appellant’s Brief, at 2.
In his first issue, Appellant argues that the Commonwealth must
establish more than simply his unauthorized entry into an occupied structure
to prove the crime of burglary. Appellant asserts the Commonwealth failed
to prove his intent to commit a crime once inside, since Nunez stated the
two entered the home to have sex. Alternatively, Appellant insists Nunez
was an unreliable witness, since she admitted to being a drug user.
Appellant also objects to the Commonwealth’s failure to fingerprint the
home, and the Commonwealth’s reliance on Mr. Benditt’s inventory of his
missing and moved belongings. Appellant concludes the Commonwealth
presented insufficient evidence to support his convictions for burglary and
conspiracy.
Preliminarily, this Court has held that
[i]f [an appellant] wants to preserve a claim that the evidence
was insufficient, then the [Rule] 1925(b) statement needs to
specify the element or elements upon which the evidence was
insufficient. This Court can then analyze the element or elements
on appeal. [Where a Rule] 1925(b) statement does not specify
the allegedly unproven elements[,] … the sufficiency issue is
waived on appeal.
Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (citation
omitted).
Instantly, Appellant’s Rule 1925(b) statement asserted, “Appellant
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submits that the evidence produced by the Commonwealth was insufficient
as a matter of law to sustain [its] burden of proving the Appellant guilty
beyond a reasonable doubt.” Appellant’s Concise Statement of Matters
Complained of on Appeal, filed 11/30/15. This statement failed to object to
any particular element or elements of Appellant’s convictions as resting upon
insufficient evidence. Indeed, as the trial court notes, Appellant’s Rule
1925(b) statement fails to specify even which conviction he objects to as
sustained by insufficient evidence. Despite the Commonwealth’s failure to
raise waiver in its appellate brief, we find Appellant did not preserve this
issue for our review. See Tyack, 128 A.3d at 261 (holding Commonwealth’s
failure to object to Rule 1925(b) statement is not pertinent to this Court’s
analysis). Consequently, we find Appellant’s sufficiency challenge waived on
appeal.
Moreover, even if Appellant had not waived his sufficiency challenge,
we would have found it without merit. “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. Mauz, 122 A.3d 1039, 1041 (Pa. Super. 2015)
(citation omitted). “Under Pennsylvania law the crime of burglary is defined
as an unauthorized entry with the intent to commit a crime after entry.”
Commonwealth v. Alston, 651 A.2d 1092, 1094 (Pa. 1994). A conspiracy
conviction requires that the Commonwealth established “that the defendant
(1) entered into an agreement to commit or aid in an unlawful act with
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another person or persons, (2) with a shared criminal intent and (3) an
overt act was done in furtherance of the conspiracy.” Commonwealth v.
McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (citation omitted).
Here, the Commonwealth showed at trial that police caught Appellant
inside the residence. Mr. Benditt testified unequivocally that Appellant did
not have authorization to enter his home. Ms. Nunez, Appellant’s
accomplice, testified that she agreed to have sex with Appellant in exchange
for money. Ms. Nunez testified that Appellant did not have money at the
time, but that he proposed breaking into the home and stealing items to
pawn in order to pay her for sex.4 She agreed to the plan, and the two
attempted to cut open a window screen in Mr. Benditt’s home before
entering through the basement door. Once inside, Ms. Nunez testified she
helped Appellant place Mr. Benditt’s possessions into bags in order to
remove them from the home. One of the police officers who responded to
the scene and apprehended Appellant and Ms. Nunez testified he found the
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4
Throughout trial and again on appeal, Appellant argued that he intended to
go in the house to have sex with Ms. Nunez, not to commit a theft. However,
Ms. Nunez specifically testified that Appellant agreed to pay her for sex. See
Notes of Testimony, 5/13/15, at 119. Appellant did not dispute this aspect of
Ms. Nunez’s testimony. Patronizing prostitutes is an offense under 18
Pa.C.S.A. § 5902. Burglary requires intent to commit a crime following an
unauthorized entry, but does not specify a particular crime to be committed.
While the Commonwealth presented sufficient evidence to show Appellant
intended to commit a theft while inside the home, Appellant’s contention
that he did not commit a burglary because he unlawfully entered Mr.
Benditt’s home in order to have sex with Ms. Nunez would be unavailing.
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pair inside Mr. Benditt’s home, and that Appellant attempted to flee several
times. The officer testified that Appellant was holding a bag full of items
from the home, and Appellant’s pockets contained credit cards belonging to
Mr. Benditt. Based on the foregoing, we would have found that the
Commonwealth presented sufficient evidence to sustain Appellant’s
convictions for burglary and conspiracy.
In Appellant’s second issue on appeal, he challenges the trial court’s
refusal to grant a mistrial for an alleged Batson violation by the
Commonwealth. Appellant maintains that, as an African-American, he is a
member of a cognizable racial group. Appellant contends the Commonwealth
struck four prospective African-American jurors from the jury pool, but only
gave reasons for doing so in two instances. Appellant alleges the court
inappropriately placed the burden on the defense to identify the
venirepersons at issue. Appellant concedes the record is undeveloped as to
permit a full review of this challenge; nevertheless, he insists he established
a prima facie case under Batson. Appellant concludes this Court must
remand the matter for further development of the record. We disagree.
Our Supreme Court has previously articulated the requirements for
bringing a Batson claim as follows:
To establish a prima facie case under Batson, the defendant
must prove that: he is a member of a cognizable racial or ethnic
group; the [Commonwealth] exercised its peremptory challenges
to remove members of such group from the venire; and other
relevant circumstances raise an inference that the
[Commonwealth] used peremptory challenges to exclude
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venirepersons from the same racial or ethnic group. In
connection with this inquiry, the defendant is entitled to rely on
the fact that peremptory challenges constitute a jury selection
practice that permits those to discriminate who are of a mind to
discriminate. The necessary prima facie case (i.e., inference of
discrimination) may be demonstrated by reference to the totality
of relevant circumstances. For example, the inference may
derive from a pattern of strikes against minority jurors or from
the manner of the prosecution’s questions and statements during
voir dire examination.
On appeal, in determining whether a defendant has established a
prima facie case of a Batson violation … this Court has generally
enforced a requirement of a full and complete record of the
asserted violation. Specifically, the defendant has been required
to present a record identifying the race or ethnicity of the
venirepersons stricken by the Commonwealth, the race of
prospective jurors acceptable to the Commonwealth but stricken
by the defense, and the racial composition of the final jury
selected.
Commonwealth v. Uderra, 862 A.2d 74, 84 (Pa. 2004) (internal citations
and quotation marks omitted).
Instantly, Appellant’s contentions fall far short of meeting this
standard. Appellant’s argument that the trial court improperly placed the
burden on the defense to develop a full record is inapposite. The defense is
required to, at minimum, identify the race or ethnicity of the venirepersons
whom the Commonwealth excluded using peremptory challenges. As trial
began, Appellant’s counsel attempted to renew his objection to the
composition of the jury panel without success. See Notes of Testimony,
5/13/15, at 4. Appellant’s counsel was unable to remember even how many
African-Americans the Commonwealth struck from the venire, let alone
identifying details such as the names or juror numbers of those persons.
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See id., at 5. Counsel failed to offer any other evidence of circumstances to
raise an inference that the Commonwealth used peremptory challenges to
eliminate African-American prospective jurors because of their race. Clearly,
Appellant failed to establish a prima facie case under Batson.
Despite this, counsel for the Commonwealth nonetheless volunteered
that she recalled using peremptory strikes on three African-American jurors.
Of the three, she specifically remembered two, including their juror
numbers. She stated she used a peremptory challenge to strike one juror
whom she was concerned had too much prior experience testifying in court,
and stated Appellant’s counsel agreed at the time that the juror should be
excluded from the pool. See Notes of Testimony, 5/13/15, at 6. She used
another to strike a juror who rolled her eyes and seemed inattentive. See
id.
The record reveals no evidence that the Commonwealth exercised
peremptory challenges to exclude jurors based on race. Appellant’s inability
to make a prima facie case under Batson precludes us from granting relief
on his claim. Appellant is unable to expose even mere doubts about the use
of strikes which might encourage a remand for a fuller record. Consequently,
we decline to grant Appellant’s request to remand for development of his
Batson claim. Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2017
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