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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSHUA RYAN CRESSWELL, : No. 739 WDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered April 5, 2019,
in the Court of Common Pleas of Mercer County
Criminal Division at No. CP-43-CR-0001174-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 14, 2020
Joshua Ryan Cresswell appeals from the April 5, 2019 judgment of
sentence entered in the Court of Common Pleas of Mercer County after a jury
convicted appellant of burglary, theft by unlawful taking, and criminal
trespass.1 Appellant was sentenced to an aggregate 48 to 120 months’
incarceration with no credit for time served. We affirm.
The sentencing court summarized the factual history as follows:
The crimes of which [appellant] was convicted were
committed on Memorial Day, May 28, 2018. The
victim [] lives in a [d]uplex apartment alone. She had
recently arrived home after visiting her son in the
hospital and she went outside around dusk to take
down her flag. She saw a young man wearing a blue
shirt walking near a line of pine trees that were
approximately 100 yards from her garage. There was
a brief exchange between [her] and the young man.
1 18 Pa.C.S.A. §§ 3502(a)(1)(ii), 3921(a) and 3503(a)(1)(i), respectively.
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The victim then went to water her plants in front of
her apartment, after which she cut through the
apartment and specifically her office in order to go and
water her plants in the rear of the apartment. She
then saw the young man, who was wearing the same
shirt, inside of her office. The victim did not clearly
see the man’s face because he had his shirt pulled up
to his nose. She did however notice that the man had
tattoos. The man ran down a hallway and out a
garage door, then he went towards the Busy Beaver
home improvement store which was approximately
100 yards from the row of pine trees. The victim
realized that a number of items were missing from her
purse, including a Kindle Fire device, a wallet, cash, a
driver’s license, and various cards. The man did not
have permission to be in the victim’s home. The
victim called 911.
Officer Daniel McCloskey, a Patrolman with the
Hempfield Township Police Department responded
and met with the victim. The victim described the
man to the officer as having dark hair, a blue shirt,
glasses, and tattoos on his arms. Officer McCloskey
was able to obtain video and photos from
Busy Beaver[,] which has conspicuous surveillance
cameras on its property. Commonwealth’s Exhibit 1B
is a blown up photograph from the Busy Beaver[,]
which shows a man with dark hair, glasses, a blue
shirt and tattoos. Commonwealth’s Exhibit 1C is
another blown up photograph from Busy Beaver
depicting what appears to be the same man as in
Commonwealth’s Exhibit 1B but with his shirt over his
head and covering his face. Tattoos are also visible
on the man’s right and left arms in Commonwealth’s
Exhibit 1C. Officer McCloskey circulated a photograph
of the man obtained from Busy Beaver to law
enforcement agencies, after which Officer McCloskey
met with [appellant] and identified [appellant] as the
man in the photograph.
Sentencing court opinion, 6/28/19 at 3-4.
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The record reveals that on June 4, 2018, appellant was taken into
custody and subsequently charged with the aforementioned crimes at trial
court docket CP-43-CR-0001174-2018 (“CR-1174-2018”). Also on June 4,
2018, appellant was found to be in possession of drug paraphernalia, a
violation of 35 P.S. § 780-113(a)(32), and subsequently charged with this
crime at trial court docket CP-XX-XXXXXXX-2018 (“CR-1173-2018”).
On February 5, 2019, appellant plead guilty to possession of drug
paraphernalia at CR-1173-2018. On March 13, 2019, a jury convicted
appellant of one count each of burglary, theft by unlawful taking, and criminal
trespass at CR-1174-2018. On April 5, 2019, the sentencing court sentenced
appellant, at CR-1173-2018, to 150 to 304 days’ incarceration. The
sentencing court calculated appellant’s credit for time served to be 304 days
and appellant concurred with this calculation. (Notes of testimony, 4/5/19 at
14.) The sentencing court applied the entire credit to the sentence imposed
at CR-1173-2018. Finding that appellant served the maximum sentence at
CR-1173-2018, the sentencing court closed CR-1173-2018. On the same day,
appellant was also sentenced at CR-1174-2018 to an aggregate 48 to 120
months’ incarceration in a state correctional institution and ordered to pay
costs and restitution. At CR-1174-2018, appellant received no credit for time
served. Appellant did not file any post-sentence motions at CR-1174-2018.
Appellant filed a timely notice of appeal at CR-1174-2018. The
sentencing court ordered appellant to file a concise statement of errors
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complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely
complied. The sentencing court subsequently filed its Rule 1925(a) opinion.
Appellant raises the following issues for our review:
1. Did the [sentencing] court err as a matter of law or
abuse its discretion in failing to allocate any credit
for time served in the present matter when
[a]ppellant had bail set in this matter and failed to
post said bail at any time during the proceedings
of the case, and the [sentencing] court instead
allocated all credit time to a separate case, being
Case No. CP-43-CR-0001173-2018, which events
leading to [a]ppellant’s arrest occurred after the
events of the present matter?
2. Could a reasonable jury have found [a]ppellant
guilty based on the sufficiency of the evidence by
which [appellant] was identified as the perpetrator
of the crime through the testimony of Hempfield
Township Police Officer McCloskey?
3. Could a reasonable jury have found [a]ppellant
guilty based on the sufficiency of the evidence by
which [appellant] was identified as the perpetrator
of the crime through the testimony of the victim,
who had no prior knowledge of [a]ppellant, was not
able to identify [a]ppellant to police, and was not
presented with any sort of lineup to identify
[a]ppellant as the perpetrator of the crime?
Appellant’s brief at 3-4.
In his first issue, appellant contends the sentencing court erred in
allocating the 304 days of credit for time served to the sentence imposed at
CR-1173-2018. (Id. at 11.) Appellant argues that because the crimes at
CR-1174-2018 occurred first and that he was arrested for those crimes first,
the sentencing court should have allocated the credit for time served to the
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sentence imposed at CR-1174-2018 and not at CR-1173-2018 or at a
minimum allocated a portion of the credit for time served to both cases. (Id.)
This court has held that a claim asserting that the sentencing court failed
to properly award credit for time served implicates the legality of sentence.
Commonwealth v. Gibbs, 181 A.3d 1165, 1166 (Pa.Super. 2018) (citation
omitted). Issues relating to the legality of sentence are questions of law and
our standard of review is de novo and our scope of review is plenary. Id.
(citation omitted). Section 9760 of the Sentencing Code governing how a
sentencing court applies credit for time served states, in pertinent part,
(1) Credit against the maximum term and any
minimum term shall be given to the defendant
for all time spent in custody as a result of the
criminal charge for which a prison sentence is
imposed or as a result of the conduct on which
such a charge is based. Credit shall include
credit for time spent in custody prior to trial,
during trial, pending sentence, and pending the
resolution of an appeal.
....
(4) If the defendant is arrested on one charge and
later prosecuted on another charge growing out
of an act or acts that occurred prior to his arrest,
credit against the maximum term and any
minimum term of any sentence resulting from
such prosecution shall be given for all time
spent in custody under the former charge that
has not been credited against another sentence.
42 Pa.C.S.A. §9760(1) & (4). This court has held that “a defendant shall be
given credit for any days spent in custody prior to the imposition of sentence,
but only if such commitment is on the offense for which sentence is imposed.
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Credit is not given, however, for a commitment by reason of a separate and
distinct offense.” Commonwealth v. Richard, 150 A.3d 504, 520-521
(Pa.Super. 2016) (original quotation marks omitted), citing Commonwealth
v. Clark, 885 A.2d 1030, 1034 (Pa.Super. 2005). “While in cases involving a
multitude of offenses occurring in quick succession determining which
sentences a defendant is entitled to credit for presentence detainment
becomes more difficult, the general rule regarding the inquiry seems simple
enough - a defendant is entitled to credit only once for presentence
detainment.” Commonwealth v. Davis, 852 A.2d 392, 400 (Pa.Super.
2004) (emphasis added; citation omitted), appeal denied, 686 A.2d 1197
(Pa. 2005). When credit for time served is attributed equally to more than
one set of offenses and each set of offenses results in the imposition of distinct
sentences, the credit for time served may be applied to any one of the
sentences. Commonwealth v. Smith, 853 A.2d 1020, 1026 (Pa.Super.
2004), relying on Martin v. Pennsylvania Bd. of Prob. and Parole, 840
A.2d 299 (Pa. 2003).
Here, the record demonstrates that appellant was sentenced at both
CR-1173-2018 and CR-1174-2018 on April 5, 2019. Appellant agreed that he
was to receive a credit of 304 days for time served. (Notes of testimony,
4/5/19 at 14.) The offenses in each case occurred in quick succession and
the period of time appellant served applied equally to both sets of offenses.
The sentencing court choose to apply the entire 304 days of credit for time
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served to the sentence imposed at CR-1173-2018 and closed that case.
Having applied the entire credit for time served at CR-1173-2018, the
sentencing court was without any remaining balance of credit for time served
to apply at CR-1174-2018. Appellant agreed he was to receive no credit for
time served at CR-1174-2018. (Id. at 16.) Based upon the record, we discern
no error of law in the sentence imposed on appellant at CR-1174-2018.
Appellant raises insufficient evidence claims in his second and third
issues challenging the element of his identification as the perpetrator.
(Appellant’s brief at 11-16.) Our standard and scope of review for a sufficiency
of the evidence claim is well settled.
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 proof or 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 the evidence actually received must be
considered. Finally, the trier 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.
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Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004). In criminal
cases, our supreme court has held that:
[p]roof beyond a reasonable doubt of the identity of
the accused as the person who committed the crime
is essential to a conviction. The evidence of
identification, however, needn’t be positive and
certain in order to convict, although any indefiniteness
and uncertainty in the identification testimony goes to
its weight. Direct evidence of identity is, of course,
not necessary and a defendant may be convicted
solely on circumstantial evidence.
Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (citations
omitted).
Here, the record demonstrates that the victim was able to provide
Officer McCloskey with a description of the intruder in her home, including that
the intruder was wearing a blue shirt and glasses, had dark hair, and had
tattoos on his arms. (Notes of testimony, 3/12/19 at 9, 11-12, 20; 3/13/19
at 70.) The victim, however, was unable to see the intruder’s face because
he had his shirt pulled up over his nose. (Notes of testimony, 3/12/19 at 11.)
Upon discovery, the intruder fled the victim’s duplex and ran towards the
Busy Beaver store. (Id. at 12.) Officer McCloskey, upon reviewing the video
surveillance of the area surrounding the Busy Beaver store, observed a man
matching the victim’s description of the perpetrator walking at a time in close
proximity to the occurrence of the home invasion. (Id. at 33-35, 37-39;
3/13/19 at 47.) The man in the video surveillance was identified as appellant,
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and Officer McCloskey stated that his comparison of appellant’s driver’s license
photo confirmed appellant was the man observed in the video surveillance.
(Notes of testimony, 3/12/19 at 36-37; 3/13/19 at 62.)
In viewing the evidence in the light most favorable to the
Commonwealth, as verdict winner, we find there was sufficient evidence to
enable the jury, as fact-finder, to determine that appellant was the intruder
the victim found in her home on the day of the home invasion. Therefore,
appellant’s sufficiency claims are without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2020
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