J-A29031-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KHIRI KASHIER SPAIN :
:
Appellant : No. 122 MDA 2020
Appeal from the Judgment of Sentence Entered December 19, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0001786-2019
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED DECEMBER 24, 2020
Appellant, Khiri Kashier Spain, appeals from the aggregate judgment of
sentence of six to twenty years of confinement, which was imposed after his
jury trial convictions for: burglary – 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; theft by unlawful taking or disposition – movable property; receiving
stolen property; loitering and prowling at night time; and criminal trespass –
enters, gains entry by subterfuge or surreptitiously remains in any building or
occupied structure.1 We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3502(a)(4), 3921(a), 3925(a), 5506, and 3503(a)(1)(i),
respectively.
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The facts underlying this appeal are as follows. On September 30, 2018,
at about 2:30 A.M., Officer Matthew Nguyen of the West Reading Police
Department was on bicycle patrol when he observed a man peering into
multiple vehicles. N.T. Trial at 160, 162-63. After calling the suspicious
behavior in to his supervisor, Officer Nguyen observed the man cutting
through backyards headed towards Wyomissing, Berks County. Id. at 166-
67. When another officer attempted to make contact with the man, he fled
through the backyards towards Wyomissing. Id. at 167.
Police later recovered a cellular telephone laying in the one in of yards.
Id. at 180. A search warrant was obtained for the cell phone, id. at 188, and
police discovered photographs of Appellant and a Facebook account in his
name on the phone. Id. at 190-91.
At 7:00 A.M. that same day, Kristine Seibert awoke in her home in
Wyomissing, blocks away from where Officer Nguyen had seen Appellant, and
discovered that all her kitchen cabinets were open and ransacked. Id. at 100-
02, 132, 162-64, 169. A jar of change was missing from the kitchen, as was
an iPad and a Bluetooth speaker. Id. at 107-09. Ms. Seibert called for her
husband, who had gone to sleep after her and had been awake until around
1:00 A.M. Id. at 102, 127. When he came downstairs, he noticed that the
doors to their yard were ajar, even though they had been closed when he
went to bed; the yard leads to their detached garage. Id. at 102, 106-07.
When they entered the garage, they saw that Ms. Seibert’s bicycle was
missing; it had been strapped to their car, since they had been out cycling the
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day before. Id. at 114-15. Police later collected DNA evidence from the
straps, and, at trial, an expert forensic scientist testified that “the probability
of randomly selecting an unrelated individual exhibiting this combination of
DNA types is approximately 1 in 370 sextillion from the Caucasian
population[,] 1 in 7.8 sextillion from the African American population[,] and 1
in 89 sextillion from the Hispanic population.” Id. at 281. The expert further
testified that DNA transfer was improbable, as this sample was not a mixture
of DNA from multiple people. Id. at 289, 291. The Seiberts also found that
Mr. Seibert’s backpack was missing and that a fire-proof box in their basement
had been rummaged through, although nothing was gone from the box. Id.
at 102, 106, 111, 132. Neither of the Seiberts knew Appellant and did not
give him permission to be in their garage or home. Id. at 124, 133-34.
Detective Kevin Quinter of the Borough of Wyomissing Police
Department received a notice that the Seiberts’ stolen iPad was sold at a kiosk
at the Walmart in Wyomissing. Id. at 202. The seller was identified as
Raymeesha Leatherbury. Id. at 203-04. Camera footage from the kiosk
revealed that Appellant was in the store with Leatherbury at the time of the
sale. Id. at 204. Leatherbury later testified that Appellant had given her the
iPad, but she “didn’t know where it came from.” Id. at 233. She stated that
he had asked her to sell it, because he did not have the requisite identification
to hawk it at the Walmart kiosk. Id. at 234, 245. She agreed, because she
was homeless at the time and needed money for a hotel room. Id. at 231,
233-34. Leatherbury had initially been reluctant to talk to police since she
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was “ashamed” and “scared” and “didn’t want to be labeled as a snitch[.]” Id.
at 232, 238, 248. She informed the jury that she was never charged with
receiving stolen property or any crime related to the burglary at issue and was
never asked for a DNA sample by police during their investigation. Id. at 246-
47.
Appellant testified in his own defense at trial, during which he admitted
to being in the neighborhood where the crime occurred at approximately
2:00 A.M. on September 30, 2018, and that the cell phone found by police in
the area that night belonged to him. Id. at 311-12, 319.
The jury convicted Appellant of the aforementioned charges, including
burglary of the garage. However, the jury found him not guilty of burglary of
the Seiberts’ house.2
On December 19, 2019, the trial court sentenced Appellant to: three to
ten years of confinement for burglary; 18 months to five years of confinement
for receiving stolen property; three to twelve months of confinement for
loitering and prowling at night time; and 18 months to five years of
confinement for criminal trespass. He received no punishment for theft by
unlawful taking or disposition. His sentences for burglary, receiving stolen
property, and criminal trespass are to be served consecutively to each other;
____________________________________________
2 Id. § 3502(a)(1)(ii) (“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 adapted
for overnight accommodations in which at the time of the offense any person
is present”).
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his sentence for loitering and prowling at night time is to be served
concurrently. Consequently, his aggregate judgment of sentence is six to
twenty years of confinement.
On December 30, 2019, Appellant filed timely post-sentence motions,
including a motion for new trial on the basis that the verdicts were against the
weight of the evidence and a motion to modify sentence. The latter motion
stated, in its entirety:
9. Defendant avers that the total aggregate sentence imposed
is excessive.
10. Defendant avers that this [c]ourt abused its discretion by
sentencing Defendant to consecutive sentences at the top of the
standard range on three counts. The sentence is a greater period
of confinement than that which was consistent with the protection
of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the
rehabilitative needs of Defendant.
11. In reconsidering the sentence imposed, Defendant asks that
the [c]ourt consider the mitigating factors:
a. Defendant’s largely untreated history of mental health
and drug addiction beginning as a child and adolescent;
b. Defendant’s ability to obtain meaningful employment
when not incarcerated;
c. Defendant’s attempt to better himself by pursuing higher
education with hopeful future business plans;
d. Defendant’s relationship with his 1 year old child now and
in the future; and
e. Defendant’s overall life circumstances which have shaped
his past criminal infractions.
WHEREFORE, Defendant respectfully requests that the
Honorable Court grant this motion and modify the sentence
imposed.
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Post Sentence Motions, 12/30/2019, at 2-3 (not paginated) ¶¶ 9-11
(emphasis in original). After the trial court denied these motions on
January 3, 2020, Appellant filed this timely direct appeal on January 15,
2020.3
On July 9, 2020, Appellant filed his brief with this Court. On July 29,
2020, Appellant filed an application for remand to file a supplemental post-
sentence motion or, in the alternative, to file a supplemental appellate brief.
See Pa.R.A.P. 2113(c) (“No further briefs may be filed except with leave of
court.”).4 On August 3, 2020, this Court denied the application for remand
but granted the application to file a supplemental brief. On August 6, 2020,
Appellant filed his supplemental brief.
In his main brief to this Court, Appellant presents the following issues
for our review:
Whether the guilty verdicts were supported by the weight of the
evidence?
Whether the evidence was sufficient to support the verdict of
Burglary?
Whether the evidence was sufficient to support the verdict of
Criminal Trespass?
____________________________________________
3Appellant contemporaneously filed his statement of errors complained of on
appeal. The trial court entered its opinion on June 10, 2020.
4 The Commonwealth had not yet filed its brief and would not do so until
September 2, 2020. Thus, Appellant’s brief was not a reply brief. See
Pa.R.A.P. 2113(a) (“the appellant may file a brief in reply to matters raised by
appellee’s brief . . . and not previously addressed in appellant’s brief”).
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Whether the evidence was sufficient to support the verdict of Theft
by Unlawful Taking?
Whether the evidence was sufficient to support the verdict of
Receiving Stolen Property?
Whether the evidence was sufficient to support the verdict of
Loitering and Prowling at Night Time?
Whether the trial court abused its discretion by sentencing
[Appellant] to consecutive sentences at the top of the standard
range on three counts.
Appellant’s Brief at 15-16 (suggested answers and trial court’s answers
omitted).
Appellant’s supplemental appellate brief does not include a statement of
questions involved pursuant to Pa.R.A.P. 2116 but raises “[a] claim that the
sentencing court misapplied the sentencing guidelines[.]” Appellant’s
Supplemental Brief at 2.
Weight of the Evidence
Appellant first contends that the verdicts were against the weight of the
evidence, Appellant’s Brief at 33, “because the evidence supported the
conclusion that other individuals, never pursued by law enforcement, were
likelier to have committed the alleged crimes.” Id. at 34. He accuses
Leatherbury as a potential perpetrator. Id. (citing N.T. Trial at 204).
When reviewing a challenge to the weight of the evidence, we
review the trial court’s exercise of discretion. A reversal of a
verdict is not necessary unless it is so contrary to the evidence as
to shock one’s sense of justice. The weight of the evidence is
exclusively for the finder of fact, who is free to believe all, none
or some of the evidence and to determine the credibility of the
witnesses. The fact-finder also has the responsibility of resolving
contradictory testimony and questions of credibility. We give
great deference to the trial court’s decision regarding a weight of
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the evidence claim because it had the opportunity to hear and see
the evidence presented.
Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super. 2019) (internal
citations and quotation marks omitted).
Appellant challenges Leatherbury’s credibility and notes inconsistencies
in her statements to police and trial testimony. Appellant’s Brief at 34-35
(citing N.T. Trial at 204, 233-34, 245-47). However, Leatherbury explained
that her statements had been inconsistent, because she was ashamed and
afraid of being labelled a “snitch.” N.T. Trial at 232, 238, 248. In any event,
such concerns are the prerogative of the jury, as fact-finder, to resolve.
Roane, 204 A.3d at 1001. The jurors were also made aware that Leatherbury
had not been charged with any crimes related to the burglary and that police
had never taken her DNA to test during this investigation, and they considered
these facts accordingly. N.T. Trial at 246-47. Thus, Appellant’s challenge to
the weight of the evidence fails.
Sufficiency of the Evidence
Next, Appellant challenges the sufficiency of the evidence to support all
his convictions.
This Court’s standard for reviewing sufficiency of the evidence
claims is as follows:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the trier
of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
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The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe
all, part, or none of the evidence presented. It is not within
the province of this Court to re-weigh the evidence and
substitute our judgment for that of the fact-finder. The
Commonwealth’s burden may be met by wholly
circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the fact-finder unless
the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super.
2016) (quoting Commonwealth v. Tarrach, 42 A.3d 342, 345
(Pa.Super. 2012)).
Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017) (internal
brackets omitted).
Burglary
Appellant begins by challenging the sufficiency of the evidence to
support his conviction for burglary. Appellant’s Brief at 37. He was convicted
of burglary pursuant to 18 Pa.C.S. § 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.
Id. (emphasis added).
Appellant argues that “[t]here was no evidence that [he] entered the
Seibert[s’] garage with the intent to commit a crime therein. The specific
intent requirement of burglary cannot be inferred solely from the actus reus
of entering.” Appellant’s Brief at 38. He largely relies on Commonwealth v.
Crowson, 405 A.2d 1295 (Pa. Super. 1979), maintaining that “that the fact
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that the defendant committed a crime within the structure was insufficient to
prove his intent to commit a crime at the time of the entry.” Appellant’s Brief
at 38 (citing Crowson, 405 A.2d at 1297).
However, the facts in the current action are distinguishable from those
of Crowson. In Crowson, 405 A.2d at 1296-97, this Court found the record
to be bereft of facts establishing intent:
[T]here is no evidence that appellant entered the Harris residence
surreptitiously or by force. In fact, there is no evidence at all
regarding the manner of entry by appellant. We know nothing
about the circumstances regarding appellant’s entry. . . . Because
there is no evidence from which it may be inferred that appellant
entered the Harris residence with the intent to commit a crime
therein, the evidence is insufficient to sustain the burglary
conviction.
By contrast, in the current appeal, there was evidence from which it may
be inferred that Appellant entered the Seiberts’ home with the intent to
commit a crime therein. See id. First, Appellant’s entry occurred between
1:00 A.M. and 7:00 A.M., when the Seiberts were asleep. N.T. Trial at 101,
127. Additionally, the Seiberts did not know Appellant nor did they allow him
into their home or garage. Id. at 124, 133-34. Also, Appellant’s entry was
so quiet that he did not wake either of the sleeping residents, and he
proceeded to rummage through cabinets and a fire-proof box. Id. at 101-02,
111, 127, 132. Finally, he had been seen exhibiting suspicious behavior
nearby that night – i.e., looking into multiple vehicles – until he was
interrupted by police and fled in the direction of the Seiberts’ residence Id.
at 160, 162-63, 166-67.
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All of this evidence and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as verdict winner,
Izurieta, 171 A.3d at 806, support the conclusion that Appellant had intended
to commit a crime that night and had no reason to be in the Seiberts’ house
in the middle of the night other than to commit a crime. See N.T. Trial at
101-02, 111, 124, 127, 132-34, 160, 162-63, 166-67. Consequently, the
Commonwealth established that he entered the building with the intent to
commit a crime therein and thus presented sufficient evidence to support
Appellant’s burglary conviction. 18 Pa.C.S. § 3502(a)(4).5
Criminal Trespass
Next, Appellant challenges the sufficiency of the evidence to establish
his conviction for criminal trespass, urging this Court to find that “the
Commonwealth failed to prove Appellant entered the Seibert[s’] home[.]”
Appellant’s Brief at 42-43.
Appellant was convicted of criminal trespass pursuant to 18 Pa.C.S.
§ 3503(a)(1)(i): “A person commits an offense if, knowing that he is not
licensed or privileged to do so, he . . . enters, gains entry by subterfuge or
surreptitiously remains in any building or occupied structure or separately
secured or occupied portion thereof[.]”
____________________________________________
5 To the extent that Appellant also challenges the sufficiency of the evidence
to establish that he entered the building, Appellant’s Brief at 39, proof of entry
is discussed in more detail herein pursuant to his challenge to the sufficiency
of the evidence to establish criminal trespass.
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In the current case, there was sufficient evidence to enable the trier of
fact to find the element of entry was established beyond a reasonable doubt.
Id.; Izurieta, 171 A.3d at 806. The discovery of Appellant’s phone and his
own admission establish that he was in the area of the Seiberts’ residence in
the early morning hours of September 30, 2018. N.T. Trial at 180, 190-91,
311-12, 319. His DNA was found on the bike straps that attached
Ms. Seibert’s bicycle to the Seiberts’ automobile. Id. at 114-15, 281, 289,
291. Other than Appellant being in the garage and touching those straps to
remove the bicycle, there is no legitimate reason why Appellant’s DNA would
be on those straps, and the forensic expert stated that DNA transfer was highly
unlikely. Id. at 281, 289, 290. In addition, although the jury did not convict
Appellant of burglary of the Seiberts’ residence, this verdict is irrelevant to the
jury’s determination that Appellant had entered the Seiberts’ garage. For
these reasons, the sufficiency of the evidence claim must fail. Izurieta, 171
A.3d at 806.
Theft by Unlawful Taking or Disposition
Appellant likewise challenges the sufficiency of the evidence to establish
his conviction for theft by unlawful taking or disposition, Appellant’s Brief at
43, maintaining that “[t]he Commonwealth failed to present sufficient
evidence that [he] took any property from the Seiberts.” Id. at 45.
Appellant was convicted of theft by unlawful taking or disposition
pursuant to 18 Pa.C.S. § 3921(a): “A person is guilty of theft if he unlawfully
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takes, or exercises unlawful control over, movable property of another
with intent to deprive him thereof.” Id. (emphasis added).
Preliminarily, we note that the Commonwealth does not need to
establish that Appellant directly took the property, only that he “exercises
unlawful control over” it. Compare Appellant’s Brief at 45 with 18 Pa.C.S.
§ 3921(a).
Appellant was observed on camera at Walmart with Leatherbury while
she was in possession of the iPad; Leatherbury testified that the iPad was not
hers but that Appellant had merely handed her the iPad to sell, as he lacked
the required identification to make the transaction. N.T. Trial at 204, 233-34,
245. Ergo, Appellant exercised unlawful control over the iPad.
Furthermore, the cases cited by Appellant in his brief are inapposite.
Appellant references three cases:
In Commw[ealth] v. Keller, 378 A.2d 347, 349 (Pa. Super 1977)
Appellant and two others were standing near a coin box and a
laundry machine. When the complainant arrived, Appellant and
the others jumped into a car and left the scene. Id. The
complainant then saw that the coin box was damaged, and the
coin box was missing from one of the cleaners. Id. However, the
court has repeatedly stated that mere presence of an individual at
the scene of a crime is not a sufficient circumstance upon which
guilt may be predicated. Id. The Superior Court reversed the
conviction because no evidence was introduced to show that the
appellant had tampered with the coin boxes or taken anything
from them. Id. at 349-350.
In Commw[ealth] v. Roach, 393 A.2d 1253 (Pa. Super. 1977),
the Superior Court vacated a conviction when there was
circumstantial evidence that left open a significant possibility that
a gun-rack had been stolen not by defendant but by an unknown
person who broke into an apartment. Id. at 1256. The court
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stated that the evidence was therefore insufficient to support
conviction of theft by unlawful taking. Id.
In Interest of J.B., 189 A.3d 390, 421 (Pa. 2018) the Supreme
Court stated that there was a reasonable inference that defendant
was not the person . . . who fired the lethal shotgun blast which
killed the victim and it could have been in fact another unknown
person.
Appellant’s Brief at 43-44.
We note that the appellant in In re J.B., 189 A.3d 390 (Pa. 2018), was
not charged with theft by unlawful taking or disposition, so that case is of
limited value. Assuming that we can use it as guidance, we note that --
the trial evidence [in J.B.] equally supported two reasonable but
diametrically opposed ultimate inferences: one that the
defendant committed the murder, and the second that he did not
commit the murder. . . . [I]n those atypical situations, our
[Supreme] Court has consistently held that we are not bound by
the factual findings and credibility determinations rendered by the
finder of fact, and we are compelled in such circumstances to
reverse a legally erroneous conviction.
Id. at 409. Nonetheless, we discern no support in the case at bar for
competing reasonable but diametrically opposed ultimate inferences, nor does
Appellant articulate what these diametrically opposed ultimate inferences
could be.
As for the remaining two cases, Appellant similarly fails to explain how
they are analogous to his situation; simply because circumstantial evidence
was found to be insufficient in these cases does not automatically mean that
circumstantial evidence is always insufficient. See Commonwealth v. Quel,
27 A.3d 1033 (Pa. Super. 2011) (circumstantial evidence was sufficient to
support conviction for theft by unlawful taking or disposition of movable
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property); see also Izurieta, 171 A.3d at 806 (“Commonwealth’s burden
may be met by wholly circumstantial evidence”).
As discussed above, the evidence established more than Appellant’s
mere presence at the scene of the crime. See Commonwealth v. Hanes,
522 A.2d 622, 624 (Pa. Super. 1987) (finding Commonwealth v. Keller, 378
A.2d 347 (Pa. Super 1977), which had been cited by the appellant, to be
inapposite, where “[t]he evidence (viewed in the light most favorable to the
Commonwealth as the verdict winner), and the reasonable inferences
deducible therefrom, established more than appellant’s mere presence at the
scene of the crime”). Instead, Appellant’s “exercise[ of] unlawful control over”
the iPad, 18 Pa.C.S. § 3921(a), was established through Leatherbury’s direct
testimony that Appellant gave her the iPad to sell, N.T. Trial at 233, not merely
through circumstantial evidence and inferences – and the jury, as fact-finder,
was free to believe all, part, or none of the evidence presented. Izurieta,
171 A.3d at 806.
For these reasons, Appellant’s challenge to the sufficiency of the
evidence to establish his conviction for theft by unlawful taking or disposition
is meritless. See Appellant’s Brief at 43-46.
Receiving Stolen Property
Appellant’s next argument is, in its entirety:
Commonwealth must establish, beyond a reasonable doubt, that
Appellant received or retained the moveable property of another
knowing that it had been stolen or believing that it had probably
been stolen. 18 Pa.C.S. § 3925(a).
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The Commonwealth failed to present sufficient evidence that
Appellant ever received or retained any of the Seiberts’ property,
as discussed fully above.
Appellant’s Brief at 47.
Appellant provides no citations to case law or to any other supporting
authority for this issue; his claim is thus waived. See Kelly v. The Carman
Corporation, 229 A.3d 634, 656 (Pa. Super. 2020) (citing Pa.R.A.P. 2119(a)
(argument shall include citation of authorities); see also, e.g.,
Commonwealth v. Spotz, 18 A.3d 244, 281 n.21 (Pa. 2011) (without a
“developed, reasoned, supported, or even intelligible argument[, t]he matter
is waived for lack of development”); In re Estate of Whitley, 50 A.3d 203,
209 (Pa. Super. 2012) (“The argument portion of an appellate brief must
include a pertinent discussion of the particular point raised along with
discussion and citation of pertinent authorities[; t]his Court will not consider
the merits of an argument which fails to cite relevant case or statutory
authority” (internal citations and quotation marks omitted)); Lackner v.
Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (explaining appellant’s
arguments must adhere to rules of appellate procedure, and arguments which
are not appropriately developed are waived on appeal; arguments not
appropriately developed include those where party has failed to cite any
authority in support of contention).6
____________________________________________
6 To the extent that this issue is preserved, it would fail for the same reasons
that Appellant’s other sufficiency claims, discussed above, have failed.
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Loitering and Prowling at Night Time
Appellant’s final sufficiency claim challenges the evidence to establish
his conviction for loitering and prowling at night time. Appellant’s Brief at 47.
He asserts that “[t]he Commonwealth failed to present sufficient evidence that
[he] loitered or prowled around the Seibert[s’] home” – “[i]n fact, the officers
testified that Appellant ran away from them in the area of [the] Seibert[s’]
home.” Id. at 48. He continues that the Commonwealth also failed to
establish that he “had any intent to do a wrongful act.” Id.
Appellant was convicted of loitering and prowling at night time
(hereinafter, “Loitering”) pursuant to 18 Pa.C.S. § 5506: “Whoever at night
time maliciously loiters or maliciously prowls around a dwelling house or any
other place used wholly or in part for living or dwelling purposes, belonging to
or occupied by another, is guilty of a misdemeanor of the third degree.” This
Court also has defined several terms in Section 5506 as follows:
“Malicious”, as used in the instant statute, means an intent to do
a wrongful act or having as its purpose injury to the privacy,
person, or property of another. . . . To “loiter” is “to stand around
or move slowly about; to spend time idly; to saunter; to delay; to
linger; to lag behind”. To “prowl” is “to rove or wander over in a
stealthy manner; to pace or roam furtively”.
Commonwealth v. Belz, 441 A.2d 410, 411 (Pa. Super. 1982) (quoting
Commonwealth v. DeWan, 124 A.2d 139 (Pa. Super. 1956)).
In Commonwealth v. Giddings, 686 A.2d 6 (Pa. Super. 1996),
overruled on other grounds by Commonwealth v. Clark, 746 A.2d 1128 (Pa.
Super. 2000) (en banc), this Court concluded that evidence was sufficient to
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support a conviction for Loitering, despite Appellant’s claim that he openly
jumped from the victim’s porch as police arrived. Accordingly, Appellant’s
assertion that he “ran away from [officers] in the area of” the victims’ home
does not negate the possibility that he could have been loitering and prowling
prior to being confronted by police. Compare Appellant’s Brief at 48 and N.T.
Trial at 167 with Giddings, 686 A.2d 6.
Moreover, in Commonwealth v. Melnyczenko, 619 A.2d 719, 720,
722 (Pa. Super. 1992), the requisite “maliciousness” to establish Loitering was
proven by the testimony of a trooper who had witnessed that the appellant,
Peter Melnyczenko, had “walked” “very cautiously” “through the back yards of
four or five houses for approximately six or seven minutes.” This evidence of
Melnyczenko “wandering through the yards in a stealthy manner . . .
support[ed] the conclusion that appellant was reconnoitering the area with
the intent to commit a burglary.” Id. at 722. In the current action, a police
officer witnessed Appellant looking into many vehicles then moving through
the backyards of multiple houses. N.T. Trial at 160, 162-63, 166-67. The
officer’s testimony about Appellant’s suspicious behavior of peering into many
vehicles is analogous to the trooper’s testimony about Melnyczenko’s “very
cautious[]” behavior. Compare id. at 160, 162-63 with Melnyczenko, 619
A.2d at 722. More importantly, the officer’s testimony about Appellant moving
through the backyards of numerous houses parallels the trooper’s testimony
that Melnyczenko walked through the backyards of numerous houses for
several minutes. Compare N.T. Trial at 166-67 with Melnyczenko, 610
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A.2d at 722. As the evidence in Melnyczenko, 610 A.2d at 722, was sufficient
to establish the element of maliciousness for Loitering, similar evidence in the
current appeal is also sufficient to establish the element of maliciousness,
thereby contradicting Appellant’s allegation that the Commonwealth failed to
establish that he “had any intent to do a wrongful act.” Appellant’s Brief at
48.
We also compare the current case to Commonwealth v. Williams, 574
A.2d 1161, 1165 (Pa. Super. 1990), in which this Court again considered
whether the evidence presented in the matter was sufficient to establish
Loitering.
[The a]ppellant argue[d] that he did not loiter “around” the
apartment building; he emphasize[d] that his activities took place
in the parking lot outside the apartment building and were
directed at cars in the parking lot rather than at specific rental
units. However, in Commonwealth v. Duncan, 456 Pa. 495,
321 A.2d 917 (1974), the Pennsylvania Supreme Court broadly
defined the word “around” as used in section 5506 as meaning “in
the vicinity or neighborhood.” Id. at 499, 321 A.2d at 919.[7]
The Court further noted that the purpose of section 5506 was to
“alleviate the danger to human life and quiet enjoyment of one’s
dwelling which is presented by the nighttime loitering or prowling
of malicious-minded individuals.” Id. at 499, 321 A.2d at 919.
[The a]ppellant clearly violated both the letter and the spirit of the
statute by entering and lurking inside a car owned by a resident
of the apartment house that was parked about thirty-five feet
away from the apartment house in a lot designed for use by the
tenants.
____________________________________________
7Hence, the Commonwealth did not even need to establish that Appellant was
immediately outside the Seiberts’ home in order for him to be convicted of
Loitering; he merely could have been in the environs.
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Id. In the instant action, Appellant comparably “violated both the letter and
the spirit” of the Loitering statute, id., by peering into strangers’ vehicles,
wandering through neighborhood backyards, and lurking in the Seiberts’
garage and yard. N.T. Trial at 102, 106-07, 114-15, 160, 162-63, 166-67,
180, 281, 289, 291.
Thus, pursuant to Giddings, 686 A.2d 6, Melnyczenko, 619 A.2d at
720, 722, and Williams, 574 A.2d at 1165, the Commonwealth presented
sufficient evidence to establish that Appellant committed Loitering.
Accordingly, Appellant’s final sufficient challenge is also meritless.
Sentencing
The last issue in Appellant’s initial appellate brief is a challenge to the
discretionary aspects of his sentence. Appellant’s Brief at 49.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right. Prior to reaching the
merits of a discretionary sentencing issue[, w]e 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).
Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)
(quotation marks and some citations omitted), reargument denied (July 7,
2018).
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In the current case, Appellant filed a timely notice of appeal and
preserved his issue in a post-sentence motion, and his brief contains a
statement pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”).
Appellant’s Brief at 31-33. The final requirement, whether the question raised
by Appellant is a substantial question meriting our discretionary review, “must
be evaluated on a case-by-case basis. A substantial question exists only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Manivannan, 186 A.3d at 489 (quotation marks
and some citations omitted).
According to the Rule 2119(f) Statement, “[t]he sentencing court
imposed a sentence on Appellant that was in the top of the standard range
and run consecutively” and “did not adequately consider Appellant’s mental
health, dire financial situation, current family situation or future plans.”
Appellant’s Brief at 32-33.
We stated in Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super.
2013):
To make it clear, a defendant may raise a substantial question
where he receives consecutive sentences within the guideline
ranges if the case involves circumstances where the application of
the guidelines would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of excessiveness due
to the consecutive nature of a sentence will not raise a substantial
question.
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Id. at 1270 (emphasis in original). Appellant does not contend that the
imposition of consecutive sentences within the guideline range is clearly
unreasonable. See Appellant’s Brief at 32. Accordingly, his argument that
the trial court abused its discretion due to the consecutive nature of his
sentence does not raise a substantial question. Dodge, 77 A.3d at 1270.
Additionally, this Court has held that a claim of inadequate consideration
of mental health issues does not raise a substantial question.
Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa. Super. 2015) (citing
Commonwealth v. Cannon, 954 A.2d 1222, 1229 (Pa. Super. 2008)).
Appellant does not allege that the trial court was unaware of his mental health
issues. Consequently, this claim likewise fails to present a substantial
question for our review.
Appellant’s argument that the trial court failed to consider his other
individual family and financial needs similarly fails to raise a substantial
question. See Commonwealth v. Ladamus, 896 A.2d 592, 596 (Pa. Super.
2006) (appellant’s argument that the trial court did not consider his status as
the primary caregiver for his mother did not raise a substantial question);
Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa. Super. 1999) (appellant’s
argument that “the sentencing court did not adequately consider her personal
life situation as a grandmother who has to provide care for a small child” did
not raise a substantial question such as to permit appellate review of the
discretionary aspects of her sentence).
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Moreover, although the Rule 2119(f) Statement does not specify what
Appellant’s “future plans” may be, Appellant’s Brief at 33, we believe that such
an assertion would also be considered a “personal life situation[.]” Kraft, 737
A.2d at 757.8 The trial court’s alleged failure to consider these future plans
consequently would not raise a substantial question such as to permit our
review of the discretionary aspects of Appellant’s sentence. Id.
Thus, Appellant’s initial brief has failed to “advance[] a colorable
argument” that a substantial question exists and hence failed to preserve any
of the challenges to the discretionary aspects of his sentence raised therein.
Manivannan, 186 A.3d at 489.
The new challenge raised in Appellant’s supplemental brief is that the
trial court miscalculated his prior record score (“PRS”). Appellant’s
Supplemental Brief at 3-4. The Commonwealth does not oppose vacating
Appellant’s judgment of sentence, due to this incorrect PRS, and remanding
for resentencing. Commonwealth’s Brief at 20. However, we cannot reach
this claim.
Preliminarily, we note that Appellant did not include a statement of
questions involved pursuant to Pa.R.A.P. 2116 in his supplemental brief. We
could find his novel claim raised therein waived for this reason alone.
____________________________________________
8 “[W]e cannot look beyond the statement of questions presented and the
prefatory 2119(f) statement to determine whether a substantial question
exists.” Commonwealth v. Diehl, 140 A.3d 34, 45 (Pa. Super. 2016). Thus,
we cannot look at Appellant’s post-sentence motion or the argument sections
of his initial appellate brief to provide us with more details about his future
plans.
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Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.”).
More importantly, a challenge to the calculation of a PRS is a challenge
to the discretionary aspects of sentencing, not the legality of the sentence.
See Commonwealth v. Medley, 725 A.2d 1225, 1228 (Pa. Super. 1999)
(“[a]ppellant’s claim that the lower court erred when calculating his prior
record score presents a substantial question that the lower court abused its
discretion at the time of sentencing”); see also Commonwealth v. Cook,
941 A.2d 7, 11 (Pa. Super. 2007) (“A claim that the sentencing court
misapplied the Sentencing Guidelines presents a substantial question.”); cf.
Commonwealth v. Archer, 722 A.2d 203, 211 (Pa. Super. 1998) (allegation
that trial court miscalculated offense gravity score presents a “legal question,”
not appealable as of right, but appealable because it raises a substantial
question regarding the discretionary aspects of sentence). Thus, Appellant
would have had to have raised the claim before the trial court in order to
preserve it, which he did not do. Manivannan, 186 A.3d at 489 (in order to
reach the merits of a discretionary issue, this Court must first determine, inter
alia, “whether the issue was properly preserved at sentencing or in a motion
to reconsider and modify sentence, see Pa.R.Crim.P. 720”); see Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.”); Post Sentence Motions, 12/30/2019, at 2-3
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¶¶ 9-11.9 Accordingly, Appellant’s sentencing claim based upon a challenge
to his PRS was waived, and we cannot reach it in this appeal.
* * *
Based on the foregoing, Appellant is not entitled to relief. We therefore
affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/2020
____________________________________________
9In addition, as a challenge to a PRS is a challenge to the discretionary aspects
of sentencing and not to the legality of the sentence, we cannot raise the issue
sua sponte, either. See Commonwealth v. Randal, 837 A.2d 1211, 1214
(Pa. Super. 2003) (en banc) (“challenges to an illegal sentence can never be
waived and may be reviewed sua sponte by this Court” (some formatting)).
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