Com. v. Foss, C.

J-S90040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

CLIFFORD MARK FOSS,

Appellant No. 1056 EDA 2016

Appeal from the Judgment of Sentence August 28, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0003900-2014 and
CP-48-CR-0003901-2014

BEFORE: OTT, J., SOLANO, J. AND JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED DECEMBER 16, 2016

A jury found Clifford Foss guilty of first degree burglary and numerous

related offenses for a series of crimes committed in July 2014. Foss files this

direct appeal from a judgment of sentence of 89-300 months’ imprisonment

with a Recidivism Risk Reduction Incentive (“RRRI”) minimum sentence of

74 months and 5 days. We conclude that none of Foss’s arguments have

merit.

Without filing its own notice of appeal, the Commonwealth contends

that Foss’s RRRI minimum sentence is illegal. Despite the Commonwealth’s

oversight, we have jurisdiction to review the legality of Foss’s sentence sua

sponte. We conclude that the trial court abused its discretion in granting a

RRRI minimum sentence due to his conviction for first degree burglary.

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Accordingly, we reverse the imposition of a RRRI sentence but affirm in all

other respects.

Foss was charged with stealing two all-terrain vehicles (“ATV’s”) from

a business establishment (Backwoods Outdoor Recreation) and attempting

to steal a third ATV from the same establishment on July 11, 2014. The

Commonwealth filed bills of information at No. 3900-2014 charging Foss

with theft by unlawful taking, receiving stolen property and attempted theft

by unlawful taking.1

Foss also was charged with burglarizing a pharmacy on July 13, 2014

and stealing prescription medicines. The Commonwealth filed bills of

information at No. 3901-2014 charging Foss with second degree burglary,

criminal trespass, theft by unlawful taking, receiving stolen property,

possession of instruments of crime and criminal mischief.2

The trial court granted the Commonwealth’s motion to consolidate the

charges at both caption numbers for trial. One month before trial, the court

granted the Commonwealth’s motion to amend the information at No. 3901-

____________________________________________

1
18 Pa.C.S. §§ 3921(a), 3925(a), and 901(a), respectively.
2
18 Pa.C.S. §§ 3502(a)(4), 3503(a)(1)(ii), 3921(a), 3925(a), 907(a), and
3304(a)(5), respectively.

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2014 to add a count of first degree burglary3 in addition to the existing count

of second degree burglary.

A police detective obtained a search warrant to obtain a DNA sample

from Foss via buccal swab. Several days before trial, Foss filed a motion to

suppress the buccal swab evidence. The trial court denied this motion prior

to jury selection.

Following a three-day trial, a jury found Foss guilty of all charges. The

trial court subsequently imposed the aforementioned sentence of

imprisonment. Foss filed timely post-sentence motions, which the court

denied by operation of law through an order dated March 3, 2016. Foss filed

a timely notice of appeal, and both Foss and the trial court complied with

Pa.R.A.P. 1925. The Commonwealth did not file a notice of appeal.

Foss raises ten issues in this appeal:

1. Whether the evidence was insufficient to support the
convictions on the ground that the evidence was not sufficient to
identify Foss as the individual who committed the thefts,
attempted theft, burglary and related lesser offenses?

2. Whether the trial court erred in granting joinder of the
informations for trial?

3. Whether the trial court erred in granting the request to amend
the information to include burglary as a felony of the first
degree?

____________________________________________

3
18 Pa.C.S. § 3502(c)(2)(ii).

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4. Whether the trial court erred in denying the motion to
suppress evidence obtained by search of Foss executed by
buccal swab to obtain DNA sample from Foss in that any search
warrant was not supported by probable cause?

5. Whether the trial court erred in admitting the text messages
in that such text messages were not properly authenticated and
such text messages were not sufficiently attributed to Foss so as
to overcome the hearsay rule?

6. Whether the trial court erred in admitting evidence of the
location of a certain cell telephone with reference to cell towers
in that such cell telephone was not sufficiently linked to Foss?

7. Whether the trial court erred in admitting evidence of text
messages to the extent that such text messages refer to
evidence of other crimes without notice as required by Pa.R.E.
404(b)(3)?

8. Whether the trial court erred in admitting evidence of DNA
identification in that the circumstances surrounding collection of
the DNA sample undermine the reliability of any DNA
identification?

9. Whether the trial court committed an abuse of discretion in
imposing an aggregate sentence which was clearly unreasonable
in light of the nature and circumstances of the offense?

10. Whether the trial court erred in imposing sentence on the
offenses of criminal trespass and criminal mischief in that such
offenses merged with the burglary?

Brief For Appellant, at 8-9.

In Foss’s first argument, he challenges the sufficiency of the evidence

against him. When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

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

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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 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
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.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011).

We first define the offenses that the Commonwealth charged Foss with

committing.

Theft by unlawful taking (charged at Nos. 3900-2014 and 3901-2014).

“A person is guilty of theft if he unlawfully takes, or exercises unlawful

control over, movable property of another with intent to deprive him

thereof.” 18 Pa.C.S. § 3921(a). “Movable property” is “property the

location of which can be changed.” 18 Pa.C.S. § 3901. A person who

“exercised unlawful control over movable property of another may be

convicted ... even though there is no evidence showing that he originally

misappropriated the property.” Commonwealth v. Shaffer, 420 A.2d 722,

726 (Pa.Super.1980).

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Attempted theft by unlawful taking (charged at No. 3900-2014). An

attempt to commit a crime occurs where a person “with intent to commit a

specific crime … does any act which constitutes a substantial step toward the

commission of that crime.” 18 Pa.C.S. § 901(a).

Burglary (charged at No. 3901-2014). A person is guilty of burglary

“if, with the intent of committing 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 with intent to commit a crime

therein, unless the premises are at the time open to the public or the actor

is licensed or privileged to enter.” 18 Pa.C.S. § 3502(a)(4). The

Commonwealth must establish “that the offender entered the premises, with

the contemporaneous intent of committing a crime, at a time when he was

not licensed or privileged to enter.” Commonwealth v. Cooper, 941 A.2d

655, 667 (Pa.2007).

The Commonwealth may prove burglary through circumstantial

evidence, including the possession of recently stolen goods.

Commonwealth v. Lloyd, 509 A.2d 868, 870 (Pa.Super.1986). Although

“evidence of possession alone is not sufficient to prove burglary,” possession

of recently stolen property is relevant in determining who stole it.

Commonwealth v. Simmons, 336 A.2d 624, 631 (Pa.Super.1975). A

court will look at the following factors when determining the proper inference

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to draw from possession of recently stolen goods: “the lapse of time

between the crime and the discovery of the property; the type and kind of

property; the amount and volume of the property; and the ease in which it

may be assimilated into trade channels.” Id. (citing Commonwealth v.

Dale, 335 A.2d 454, 458 (Pa.Super.1975)).

Receiving stolen property (charged at Nos. 3900-2014 and 3901-

2014). A person is guilty of receiving stolen property “if he intentionally

receives, retains, or disposes of movable property of another knowing that it

has been stolen, or believing that it has probably been stolen, unless the

property is received, retained, or disposed with intent to restore it to the

owner.” 18 Pa.C.S. § 3925(a). “Movable property” is defined as “property

the location of which can be changed.” 18 Pa.C.S. § 3901. “Based upon this

definition [of receiving stolen property,] th[e Superior Court] has identified

the elements of the crime ... to be: (1) intentionally acquiring possession of

the movable property of another; (2) with knowledge or belief that it was

probably stolen; and (3) the intent to deprive permanently.”

Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa.Super.2015).

Possession of an instrument of crime (charged at Nos. 3901-2014). A

person commits possession of an instrument of crime “if he possesses any

instrument of crime with intent to employ it criminally.” 18 Pa.C.S. §

907(a). An “instrument of crime” is defined as, inter alia, “[a]nything used

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for criminal purposes and possessed by the actor under circumstances not

manifestly appropriate for lawful uses it may have.” 18 Pa.C.S. § 907(d)(2).

Criminal trespass (charged at Nos. 3901-2014). A person is guilty of

criminal trespass “if, knowing that he is not licensed or privileged to do so,

he … breaks into any building or occupied structure or separately secured or

occupied portion thereof.” 18 Pa.C.S. § 3503(a)(1)(ii). “Breaks into” means

gaining “entry by force, breaking, intimidation, unauthorized opening or

locks, or through an opening not designed for human access.” 18 Pa.C.S. §

3503(a)(3). A person “is guilty of criminal mischief if he … intentionally

damages real or personal property of another.” 18 Pa.C.S. § 3304(a)(5).

The following evidence was adduced during trial. The Commonwealth

demonstrated that during prison intake, officials procured a cell phone from

Foss’s possessions nicknamed “Cliff’s iPhone” and backed up to a computer

named “Cliff’s HP”. Through phone records, the Commonwealth proved that

this cell phone was in the area of both the pharmacy burglary and the

commercial establishment, Backwoods Outdoor Recreation, at the time of

each incident.

The Commonwealth presented a video of the pharmacy burglary

depicting three males, one with a similar height, build, and hairstyle to Foss,

breaking down the back door and entering the pharmacy after hours.

Police officers recovered one of the stolen ATV’s in a garage rented by

Foss and recovered the key to the ATV in Foss’s hotel room. Foss’s DNA was

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present on a water bottle that was recovered from a storage compartment

within one of the stolen ATVs.

The jury also observed an impression of a distinctive Nike shoe print

found outside Backwoods Outdoor Recreation and a photograph of the

bottom of Foss’s Nike sneakers displaying a similar tread pattern.

Foss testified on his own behalf. Although he denied committing any

offense, he admitted that he came into contact with one of the stolen ATV’s;

that he knew how to hotwire an ATV; and that he drank out of a water bottle

while near the ATV.

Viewed in the light most favorable to the Commonwealth, this

circumstantial evidence collectively furnishes sufficient evidence to sustain

every element of the charged offenses beyond a reasonable doubt. The

evidence shows that Foss participated in the theft of the ATV’s from

Backwoods Outdoor Recreation, stored one of the stolen ATV’s in a garage

that he rented, and held the key to the stolen ATV in his hotel room. The

evidence further demonstrates that several days after stealing the ATV’s,

Foss broke into the pharmacy along with other individuals and stole

prescription medication.

In his second argument on appeal, Foss asserts that the trial court

erred in granting the Commonwealth’s motion to join the informations at

Nos. 3900-2014 and 3901-2014 for trial. We disagree.

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“Whether to join or sever offenses for trial is within the trial court’s

discretion and will not be reversed on appeal absent a manifest abuse

thereof, or prejudice and clear injustice to the defendant.” Commonwealth

v. Wholaver, 989 A.2d 883, 888 (Pa.2010). The Rules of Criminal

Procedure provide in relevant part: “Offenses charged in separate

indictments or informations may be tried together if … the evidence of each

of the offenses would be admissible in a separate trial for the other and is

capable of separation by the jury so that there is no danger of confusion …”

Pa.R.Crim.P. 582(A)(1)(a). Thus, “distinct offenses that do not arise out of

the same act or transaction may be tried together if the evidence of each

offense would be admissible in a separate trial for the other and is capable of

separation by the jury so that there is no danger of confusion.”

Commonwealth v. Cousar, 928 A.2d 1025, 1037 (Pa.2007). If the trial

court finds that the evidence is admissible and the jury can separate the

charges, it must then consider whether consolidation would unduly prejudice

the defendant. Commonwealth v. Thomas, 879 A.2d 246, 260

(Pa.Super.2005).

The trial court acted within its discretion by ordering joinder of the

informations against Foss. The Commonwealth tied the events in both

informations together by demonstrating that the purpose of stealing the

ATV’s (the subject of the information in No. 3900-2014) was to use them as

escape vehicles in the pharmacy burglary (the subject of the information at

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No. 3901-2014). Evidence of the theft of the ATV’s would have been

admissible in a separate trial concerning the pharmacy burglary as evidence

of preparation and plan. Pa.R.E. 404(b)(2). Evidence of the pharmacy

burglary would have been admissible in a separate trial concerning the ATV

theft to show evidence of motive. Id. Joinder of the informations did not

prejudice Foss. The jury was capable of separating the crimes so that there

was no risk of confusion, because the crimes took place at different locations

on different days, and different kinds of items were stolen.

In his third argument on appeal, Foss claims that the trial court

improperly granted the Commonwealth’s pretrial motion to amend the

criminal information at No. 3901-2014 to add one count of burglary as a

felony of the first degree. Foss claims the amendment was not proper

because it was done too close to trial, it added new facts, and it changed the

description of the charge.

The Rules of Criminal Procedure permit amendment of an information

“when there is a defect in form, the description of the offense(s), the

description of any person or any property, or the date charged, provided the

information as amended does not charge an additional or different offense.”

Pa.R.Crim.P. 564. The purpose of this rule is to “ensure that a defendant is

fully apprised of the charges, and to avoid prejudice by prohibiting the last

minute addition of alleged criminal acts of which the defendant is

uninformed.” Commonwealth v. Hoke, 928 A.2d 300, 303

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(Pa.Super.2007). “If there is no showing of prejudice, amendment of an

information to add an additional charge is proper even on the day of trial.”

Commonwealth v. Roser, 914 A.2d 447, 455 (Pa.Super.2006) (allowing

amendment just prior to closing arguments). The test to be applied is

[w]hether the crimes specified in the original indictment or
information involve the same basic elements and evolved out of
the same factual situation as the crimes specified in the
amended indictment or information. If so, then the defendant is
deemed to have been placed on notice regarding his alleged
criminal conduct. If, however, the amended provision alleges a
different set of events, or defenses to the amended crime are
materially different from the elements or defenses to the crime
originally charged, such that the defendant would be prejudiced
by the change, then the amendment is not permitted.

Commonwealth v. Bricker, 882 A.2d 1008, 1019 (Pa.Super.2005). Relief

is necessary only when the amendment prejudices the defendant. Roser,

914 A.2d at 454. To evaluate prejudice, the court should consider whether

the amendment changes the factual scenario; whether new facts, previously

unknown to the appellant, were added; whether the description of the

charges changed; whether the amendment necessitated a change in defense

strategy; and whether the timing of the request for the amendment allowed

for ample notice and preparation by appellant. Id.

The trial court acted within its discretion by permitting the

Commonwealth to amend the information at No. 3901-2014. The court

granted the amendment over one month before trial, giving Foss sufficient

notice and sufficient time to prepare. The amended information did not add

new facts previously unknown to Foss or change the factual scenario. The

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original information included a count of second degree burglary; the

amended information merely added another count of first degree burglary.

This amendment was proper because the burglary statute provides that the

offense is a first degree felony where the actor’s intent is to commit a theft

of controlled substances. 18 Pa.C.S. § 3502(c)(2)(ii). The evidence

indicated that Foss had precisely this intent. The amendment did not

change Foss’s defense strategy, because both before and after the

amendment, he contended that he did not commit the charged offenses. For

these reasons, the amendment did not prejudice Foss. Roser, 914 A.2d at

453-55 (information charging driving under the influence (“DUI”) of alcohol

could be amended just prior to closing argument, without prejudice to

defendant, to add DUI charges under two other subsections prohibiting

driving under the influence of drugs or a combination of alcohol and drugs,

even if amendment might have resulted in a more severe penalty, where

amendment did not change the factual scenario insofar as defendant drove

vehicle while highly intoxicated, and amendment was prompted by

defendant's own inculpatory testimony that he ingested gasoline and bug

and tar remover before driving).

In his fourth claim on appeal, Foss argues that the trial court erred in

denying his motion to suppress DNA evidence obtained as a result of the

search warrant to obtain his buccal swab. We disagree.

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Our standard of review in addressing a challenge to the denial of a

suppression motion is limited to determining

whether the suppression court’s factual findings are supported
by the record and whether the legal conclusions drawn from
those facts are correct. Because the Commonwealth prevailed
before the suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the context of
the record as a whole. Where the suppression court’s factual
findings are supported by the record, we are bound by these
findings and may reverse only if the court’s legal conclusions are
erroneous. Where ... the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the court[] below are subject to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010).

The Fourth Amendment and Article I, Section 8 of the Pennsylvania

Constitution each require that search warrants be supported by probable

cause. Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa.1991).

“Probable cause exists where the facts and circumstances within the affiant’s

knowledge and of which he has reasonably trustworthy information are

sufficient in themselves to warrant a man of reasonable caution in the belief

that a search should be conducted.” Commonwealth v. Thomas, 292 A.2d

352, 357 (Pa.1972).

In Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme

Court established the “totality of the circumstances” test for determining

whether a request for a search warrant under the Fourth Amendment is

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supported by probable cause. Three years after Gates, our Supreme Court

adopted the totality of the circumstances test for purposes of making and

reviewing probable cause determinations under Article I, Section 8.

Commonwealth v. Gray, 503 A.2d 921 (Pa.1986). Gray described this

test as follows:

[T]he task of an issuing authority is simply to make a practical,
common-sense decision whether, given all of the circumstances
set forth in the affidavit before him, including the veracity and
basis of knowledge of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a crime
will be found in a particular place.... It is the duty of a court
reviewing an issuing authority’s probable cause determination to
ensure that the magistrate had a substantial basis for concluding
that probable cause existed. In so doing, the reviewing court
must accord deference to the issuing authority’s probable cause
determination, and must view the information offered to
establish probable cause in a common-sense, non-technical
manner.

***

[Further,] a reviewing court [is] not to conduct a de novo review
of the issuing authority’s probable cause determination, but [is]
simply to determine whether or not there is substantial evidence
in the record supporting the decision to issue the warrant.

Commonwealth v. Torres, 764 A.2d 532, 537–38, 540 (Pa.2001). “A

grudging or negative attitude by reviewing courts towards warrants … is

inconsistent with the Fourth Amendment’s strong preference for searches

conducted pursuant to a warrant; courts should not invalidate warrants by

interpreting affidavits in a hypertechnical, rather than a commonsense,

manner.” Gates, 462 U.S. at 236; see also United States v. Leon, 468

U.S. 897, 914 (1984) (“reasonable minds frequently may differ on the

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question whether a particular affidavit establishes probable cause, and we

have thus concluded that the preference for warrants is most appropriately

effectuated by according ‘great deference’ to a magistrate’s determination”).

Here, the Commonwealth furnished probable cause in its search

warrant application to issue a warrant for Foss’s DNA. The affidavit of

probable cause, authored by a detective with over twenty years’ experience,

asserted multiple factors linking Foss to the burglaries of the ATV’s and

prescription medications. For example, the affidavit stated: (1) police

recovered one of the stolen ATV’s in a garage that Foss rented and

recovered the key to the stolen ATV inside Foss’s hotel room; (2) Foss had

been seen unloading this ATV from a truck with a friend; (3) while Foss was

in custody, the detective observed Foss wearing a pair of Nike sneakers with

a tread pattern that matched the distinctive tread pattern observed in a

footprint at the scene of the ATV theft; (4) the detective recovered

incriminating text messages on Foss’s cellphone linking him to both

burglaries and to another suspect the police were investigating for the same

crimes; (5) an empty water bottle was found in one of the stolen ATV’s, and

(6) police needed a buccal swab of Foss’s DNA for comparison with the DNA

recovered from the water bottle. These factors created probable cause to

obtain Foss’s buccal swab. See Commonwealth v. Rompilla, 653 A.2d

626, 632 (Pa.1995) (probable cause supported search warrant based on

detective’s averments that defendant was seen at location of crime and his

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sneaker tread matched footprint found at crime scene); Commonwealth v.

Cason, 476 A.2d 1353, 1355-56 (Pa.Super.1984) (probable cause existed to

support search of defendant’s home where shoe pattern found at scene of

burglary matched footprints leading to defendant’s residence).

Foss’s fifth through eighth arguments on appeal challenge the

admission of various pieces of evidence. Our standard of review for such

challenges

is one of deference. It is firmly established [that] questions
concerning the admissibility of evidence lie within the sound
discretion of the trial court, and [a reviewing court] will not
reverse the court’s decision on such a question absent a clear
abuse of discretion. An abuse of discretion requires: not merely
an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record
shows that the action is a result of partiality, prejudice, bias or ill
will.

Commonwealth v. Baker, 963 A.2d 495, 504 (Pa.Super.2008).

In his fifth argument on appeal, Foss contends that the trial court

erred in admitting text messages during trial, because the messages were

not properly authenticated and therefore were inadmissible hearsay. We

conclude that the Commonwealth properly authenticated the text messages

as having been authored by Foss, and that they were admissible under the

hearsay exception for statements by a party opponent.

“To satisfy the requirement of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient to support a

finding that the item is what the proponent claims it is.” Pa.R.E. 901(a).

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“Text messages are documents and subject to the same requirements for

authenticity as non–electronic documents generally.” Commonwealth v.

Koch, 39 A.3d 996, 1004 (Pa.Super.2011). Like any other documents, text

messages may be authenticated through direct proof or circumstantial

evidence. Id. The party seeking admission must introduce evidence that

corroborates the identity of the author of the text messages. Id. at 1005.

While text messages can be linked to a certain cell phone, “cellular phones

are not always exclusively used by the person to whom the phone number is

assigned.” Id. Therefore, mere ownership of a cell phone is not sufficient to

prove the author of particular text messages. Commonwealth v. Mosley,

114 A.3d 1072, 1081-82 (Pa.Super.2015) (authentication of text message

requires “more than mere confirmation that the number or address belonged

to a particular person”). A party seeking to admit text messages must also

present evidence “which tends to corroborate the identity of the sender.”

Id.

Here, the Commonwealth presented sufficient circumstantial evidence

to authenticate Foss as the author of the text messages. Prison officials

obtained the cell phone from Foss while processing him at the prison. The

phone was named “Cliff’s iPhone” and was backed up to a computer with the

name of “Cliff’s HP.” The content of several messages indicates that Foss

authored them. Several texts refer to an individual named Bill. Foss

testified that he knew someone named Bill and saw Bill with the ATV’s when

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Foss hotwired one of them. Further, one text message referred to a back

injury, and Foss testified that a doctor was treating him for back problems.

Nor were the text messages inadmissible hearsay. Hearsay is an out-

of-court statement that is offered for the truth of the matter asserted.

Pa.R.E. 801(c). Although hearsay generally is inadmissible, Pa.R.E. 802,

there are numerous exceptions to this rule. In this case, once the text

messages were properly authenticated, they were admissible under Pa.R.E.

803(25)(A), the exception permitting admission of statements by the

opposing party which are offered against that party. Because the

Commonwealth properly authenticated the text messages as Foss’s

statements, they became admissible under Rule 803(25)(A). See

Commonwealth v. Edwards, 903 A.2d 1139, 1157-58 (Pa.2006)

(defendant’s statement admissible under the party opponent exception to

hearsay rule); Commonwealth v. Barnes, 871 A.2d 812, 818

(Pa.Super.2005) (affirming admission of letters written by defendant under

party opponent exception).

In his sixth argument on appeal, Foss claims the trial court erred in

admitting evidence concerning the cell phone’s location in relation to cell

towers with which the phone connected at pertinent times on the dates of

the crimes. Much like his fifth argument, Foss claims this evidence was

improper because the cell phone was not sufficiently connected to him.

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The same evidence offered to prove authentication of text messages

on Foss’s cell phone supports the trial court’s decision to admit evidence of

cell phone tower location – specifically, prison officials obtained the cell

phone from Foss during prison intake; the cell phone was nicknamed with

Foss’s own name, and it was backed up to a computer that was also named

after Foss.

Moreover, the trial court properly restricted the testimony to the

phone number identified in the phone records and the locations of the calls.

The court prohibited Commonwealth witnesses from identifying the owner of

the cell phone. N.T., 6/2/15, at 159-60, 169 (“instead of [the witness]

saying the phone of Clifford Foss … she would be testifying that the phone

with a number of (570) 445-1113 made the following calls at the following

times, received the following calls at the following times, and was located in

this particular location”). The first witness who testified about the cell phone

tower locations provided mainly general information about cell phone

records and cell phone towers. Id. at 57-64, 86-89. The second witness

provided specific information but linked the locations only to the phone

number identified in the records, not to Foss. Id. at 154-74. We conclude

that the admission of this evidence was within the court’s discretion.

In his seventh argument on appeal, Foss claims that the trial court

erred in admitting text messages under Pa.R.E. 404(b) that Foss claimed

referred to other crimes. Foss claims that he received no notice prior to trial

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of this “other acts” evidence and insists that the Commonwealth introduced

the messages only as evidence of his bad character.

We reject this argument because the messages related to the crimes

with which Foss was charged. There was no evidence relating to uncharged

misconduct, the subject of Pa.R.E. 404(b). Foss’s text messages included

references to making a game plan for the night of the ATV burglary,

locations near the ATV dealership, and splitting the proceeds three ways

following the burglary. N.T., 6/2/15, at 227, 236-37, 242. Because this

evidence referred to the charges against Foss instead of uncharged

misconduct, Foss’s argument related to notice and prejudice under Rule

404(b) is misplaced.

In his eighth claim on appeal, Foss claims that the DNA sample taken

from the water bottle, which was then matched to Foss, was unreliable,

because even though the police observed a water bottle when they

recovered the stolen ATV three days after its theft from Backwoods Outdoor

Recreation, they did not collect the bottle at that time. Instead, the police

collected the water bottle approximately one month after returning the ATV

to the ATV dealership.

This Court has explained:

While the Commonwealth bears the burden of demonstrating
some reasonable connection between the proffered exhibits and
the true evidence, it need not establish the sanctity of its
exhibits beyond a moral certainty. The Commonwealth need not
produce every individual who came into contact with an item of
evidence, nor must it eliminate every hypothetical possibility of

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tampering. A complete chain of custody is not required so long
as the Commonwealth’s evidence, direct and circumstantial,
establishes a reasonable inference that the identity and condition
of the exhibits have remained the same from the time they were
first received until the time of trial.

Commonwealth v. Cugnini, 452 A.2d 1064, 1065 (Pa.Super.1982). Any

gaps in the chain of custody go to the weight of the evidence, not its

admissibility. Commonwealth v. Copenhefer, 719 A.2d 242, 256

(Pa.1998).

Here, the Commonwealth introduced evidence relating to the initial

discovery of the water bottle by the police at the time they recovered the

stolen ATV. An employee of the ATV dealership discovered the water bottle

after the police returned the ATV, and he contacted police. N.T., 6/2/15, at

195-96; N.T., 6/1/15, at 74-75. The Commonwealth also introduced

evidence establishing the chain of custody of the water bottle between the

time police collected it and its introduction at trial. See N.T., 6/2/15, at

196-97; N.T., 6/3/15, at 71-72, 90-91, 96. Thus, there was sufficient

evidence presented for the jury to infer that the water bottle was the bottle

that the police observed when they recovered the stolen ATV. Finally, Foss

testified that he drank out of this water bottle. N.T., 6/3/15, at 157. Any

gaps in the chain of custody, which the defense was free to challenge on

cross-examination, go to the weight to be given to the evidence, not its

admissibility. Commonwealth v. Welshans, 580 A.2d 379, 381-82

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(Pa.Super.1990) (affirming admission of BAC test results despite chain of

custody objection).

In Foss’s ninth claim, he argues that the trial court abused its

discretion in sentencing him because it failed to consider statutory factors,

the aggregate sentence was unreasonable, the court failed to provide

adequate reasons for its sentence, and the court improperly considered

several factors at the time of sentencing.

There is no absolute right of appeal to challenge the discretionary

aspects of sentence. Commonwealth v. Hornaman, 920 A.2d 1282, 1284

(Pa.Super.2007). Before we can address a discretionary challenge, we must

determine: (1) whether appellant has filed a timely notice of appeal; (2)

whether the issue was properly preserved at sentencing or in a motion to

reconsider and modify sentence; (3) whether appellant’s brief has a fatal

defect under 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. Commonwealth v. Swope, 123 A.3d 333, 337

(Pa.Super.2015).

Here, Foss filed a timely notice of appeal on March 29, 2016, properly

preserved his discretionary aspects of sentencing claim in his post-sentence

motion, and included the requisite Rule 2119(f) statement in his brief.

Further, his issue concerning a disproportionate sentence and the trial

court’s consideration of improper factors raises a substantial question.

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Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa.2002);

Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.Super.2003) (“this

Court has held that a claim that the sentence is excessive because the trial

court relied on impermissible factors raises a substantial question”).

Our standard for reviewing a claim challenging a discretionary aspect

of sentencing is as follows:

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. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super.2006). A

sentencing court has broad discretion in deciding the proper sentence,

following a careful consideration of the individual circumstances of the case

in light of statutory factors. Commonwealth v. Walls, 926 A.2d 957, 962-

63 (Pa.2007). Where the sentencing court reviews a pre-sentence

investigation report (“PSI”), “the presumption arises that the sentencing

court was aware of and weighed all relevant information contained therein

along with any mitigating sentencing factors.” Commonwealth v. Marts,

889 A.2d 608, 615 (Pa.Super.2005).

In this case, the trial court ordered a PSI and stated on the record that

it had reviewed the PSI. The court accepted several corrections to the PSI.

It also heard argument from counsel for both parties and a statement from

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Foss. Prior to imposing sentence, the court explained that Foss carried out a

sophisticated crime, and that his offenses in this case were consistent with

his prior record, which contained numerous burglary and theft convictions.

The trial court also noted the seriousness of these offenses and the need to

protect the community. In its Pa.R.A.P. 1925(a) opinion, the trial court

explained that in determining the appropriate sentence, it considered all

information in the PSI, including Foss’s educational background, employment

history, personal history, and prior record. Based on this information, the

court imposed standard range sentences within the Sentencing Guidelines.

The court also stated that Foss’s history made clear that prior state prison

sentences had not deterred him from committing crimes, and it was

concerned with protecting the community from his criminal behavior. We

conclude that Foss’s sentence was a proper exercise of the court’s discretion.

We do not accept Foss’s claim that the trial court gave improper

weight to his prior record and his assertion of innocence during sentencing.

The court specifically stated that it did not consider Foss’s claim of innocence

during the sentencing hearing or rely on that statement to enhance his

sentence in any way. Trial Court Opinion, at 19. With regard to the

defendant’s prior record, we have explained that “[i]t is impermissible for a

court to consider factors already included within the sentencing guidelines as

the sole reason for increasing or decreasing a sentence to the aggravated or

mitigated range.” Simpson, 829 A.2d at 339. However, courts are

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J-S90040-16

permitted to use factors already accounted for in the guidelines, such as a

defendant’s prior record, if “they are used to supplement other extraneous

sentencing information.” Id. Here, the trial court did not rely solely on

Foss’s prior record in sentencing him, and in any event, his sentences were

within the standard range. Thus, the trial court acted within its discretion in

considering Foss’s criminal history when imposing sentence. Id. (trial court

did not abuse its discretion in considering defendant’s prior record in

imposing sentence where it also considered impact on victim, threat to

community, fact that defendant was on probation at time of offense, and his

lack of successful rehabilitation); Shugars, 895 A.2d at 1275 (no abuse of

discretion where trial court considered defendant’s prior record along with

other factors in imposing sentence).

In his tenth issue on appeal, Foss argues that his sentence is illegal

because his sentences for criminal trespass and criminal mischief merged

with his sentence for first degree burglary.4 This argument lacks merit.

"Whether Appellant's convictions merge for sentencing is a question

implicating the legality of Appellant's sentence." Commonwealth v.

Baldwin, 985 A.2d 830, 833 (Pa. 2009). We have explained:

The issue of whether a sentence is illegal is a question of law;
therefore, our task is to determine whether the trial court erred
as a matter of law and, in doing so, our scope of review is
____________________________________________

4
The trial court determined that Foss’s sentence for second degree burglary
merged with his sentence for first degree burglary.

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J-S90040-16

plenary. Additionally, the trial court’s application of a statute is a
question of law that compels plenary review to determine
whether the court committed an error of law.

Commonwealth v. Williams, 871 A.2d 254, 262 (Pa.Super.2005). Section

9765 of the Judicial Code, which governs the merger of sentences, provides:

No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.

42 Pa.C.S. § 9765. In interpreting Section 9765, our Supreme Court has

mandated that courts apply an elements–based test when determining

questions of merger at the time of sentencing: “A plain language

interpretation of Section 9765 reveals the General Assembly's intent to

preclude the courts of this Commonwealth from merging sentences for two

offenses that are based on a single criminal act unless all of the statutory

elements of one of the offenses are included in the statutory elements of the

other.” Baldwin, 985 A.2d at 837. The Superior Court has explained:

The threshold question is whether Appellant committed one
solitary criminal act. The answer to this question does not turn
on whether there was a ‘break in the chain’ of criminal activity.
Rather, the answer turns on whether ‘the actor commits multiple
criminal acts beyond that which is necessary to establish the
bare elements of the additional crime[.]’ If so, then the
defendant has committed more than one criminal act. This focus
is designed to prevent defendants from receiving a ‘volume
discount on crime.’

Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa.Super.2014).

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J-S90040-16

Foss complains that his sentences for criminal trespass and criminal

mischief merge with his burglary sentence. With respect to merger of

criminal trespass and burglary, we have explained:

Examining the elements of criminal trespass, a conviction for
that offense requires a person: (1) to break or enter into with
subterfuge any building or occupied structure; (2) knowing he is
not licensed or privileged to do so. See 18 Pa.C.S.[] §
3503(a)(1). On the other hand, to commit burglary, a person
must: (1) enter a building or occupied structure; (2) with intent
to commit a crime therein. See 18 Pa.C.S.[] § 3502(a). The
plain language of the respective statutes demonstrates why they
do not merge. Criminal trespass contains an element of
knowledge - a person committing that offense must know he is
not privileged to enter the premises. Burglary has no such
knowledge requirement. Burglary does, however, require intent
to commit a crime within the premises, an element that criminal
trespass lacks. As each offense requires proof of an element the
other does not, the sentences should not merge.

Commonwealth v. Quintua, 56 A.3d 399, 402 (Pa.Super.2012).5 Based

on this analysis, it was correct not to merge Foss’s sentences for criminal

trespass and burglary.

Similarly, it was proper not to merge Foss’s convictions for criminal

mischief and burglary. As defined above, burglary requires entry into a

building or occupied structure and an intent to commit a crime therein. To

commit criminal mischief, a person must intentionally damage property of

another. 18 Pa.C.S. § 3304(a)(5). Each of these statutes contains an

element the other does not. Burglary requires entry into a building or
____________________________________________

5
Although we decided this case under prior versions of the relevant
statutes, the analysis remains applicable today.

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J-S90040-16

occupied structure, whereas criminal mischief does not. Criminal mischief

requires damage to property, which burglary does not. “Since both crimes

require proof of at least one element that the other does not, then the

sentences do not merge.” Commonwealth v. Johnson, 874 A.2d 66, 70

(Pa.Super.2005).

Finally, the Commonwealth argues in its appellate brief that Foss’s

sentence is illegal due to the imposition of a RRRI minimum sentence. We

have jurisdiction to review the legality of Foss’s sentence sua sponte.

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014) (challenge

to legality of sentence can never be waived and may be raised by this Court

sua sponte).

The RRRI Act “seeks to create a program that ensures appropriate

punishment for persons who commit crimes, encourages inmate participation

in evidence-based programs that reduce the risks of future crime and

ensures the openness and accountability of the criminal justice process while

ensuring fairness to crime victims.” 61 Pa.C.S. § 4502. As part of achieving

that aim, the RRRI Act requires the trial court to determine at the time of

sentencing whether the defendant is an “eligible offender.” 61 Pa.C.S. §

4505(a). If the court finds the defendant to be an eligible offender, or if the

prosecuting attorney waives the eligibility requirements under section

4505(b), the trial court must calculate minimum and maximum sentences,

and then impose the RRRI minimum sentence, which “shall be equal to

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J-S90040-16

three-fourths of the minimum sentence imposed when the minimum

sentence is three years or less,” or “shall be equal to five-sixths of the

minimum sentence if the minimum sentence is greater than three years.”

61 Pa.C.S. § 4505(c). If an eligible offender “successfully completes the

program plan, maintains a good conduct record and continues to remain an

eligible offender,” he or she may “be paroled on the RRRI minimum sentence

date unless the Board determines that parole would present an unreasonable

risk to public safety or that other specified conditions have not been

satisfied.” 37 Pa. Code § 96.1(b).

To become eligible for a RRRI minimum sentence, the RRRI Act

provides that a defendant must satisfy each of the following requirements,

the first of which is presently at issue in the case at bar. Specifically, a

defendant must establish that he:

(1) Does not demonstrate a history of present or past
violent behavior.

(2) Has not been subject to a sentence the calculation of which
includes an enhancement for the use of a deadly weapon as
defined under law or the sentencing guidelines promulgated by
the Pennsylvania Commission on Sentencing or the attorney for
the Commonwealth has not demonstrated that the defendant
has been found guilty of or was convicted of an offense involving
a deadly weapon or offense under 18 Pa.C.S. Ch. 61 (relating to
firearms and other dangerous articles) or the equivalent offense
under the laws of the United States or one of its territories or
possessions, another state, the District of Columbia, the
Commonwealth of Puerto Rico or a foreign nation.

(3) Has not been found guilty of or previously convicted of or
adjudicated delinquent for or an attempt or conspiracy to commit
a personal injury crime as defined under section 103 of the act

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J-S90040-16

of November 24, 1998 (P.L. 882, No. 111) [18 P.S. § 11.103],
known as the Crime Victims Act, except for an offense under 18
Pa.C.S. § 2701 (relating to simple assault) when the offense is a
misdemeanor of the third degree, or an equivalent offense under
the laws of the United States or one of its territories or
possessions, another state, the District of Columbia, the
Commonwealth of Puerto Rico or a foreign nation.

(4) Has not been found guilty or previously convicted or
adjudicated delinquent for violating any of the following
provisions or an equivalent offense under the laws of the United
States or one of its territories or possessions, another state, the
District of Columbia, the Commonwealth of Puerto Rico or a
foreign nation:

18 Pa.C.S. § 4302(a) (relating to incest).
18 Pa.C.S. § 5901 (relating to open lewdness).
18 Pa.C.S. Ch. 76 Subch. C (relating to Internet child
pornography).
Received a criminal sentence pursuant to 42 Pa.C.S. §
9712.1 (relating to sentences for certain drug offenses
committed with firearms).
Any offense for which registration is required under 42
Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual
offenders).

(5) Is not awaiting trial or sentencing for additional criminal
charges, if a conviction or sentence on the additional charges
would cause the defendant to become ineligible under this
definition.

(6) Has not been found guilty or previously convicted of violating
section 13(a)(14), (30) or (37) of the act of April 14, 1972 (P.L.
233, No. 64), ... known as The Controlled Substance, Drug,
Device and Cosmetic Act, where the sentence was imposed
pursuant to 18 Pa.C.S. § 7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii),
(7)(iii) or (8)(iii) (relating to drug trafficking sentencing and
penalties).

61 Pa.C.S.A. § 4503 (emphasis added).

Under two recent decisions that interpret “a history of present or past

violent behavior,” Foss is not eligible for a RRRI sentence. See

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Commonwealth v. Chester, 101 A.3d 56 (2014); Commonwealth v.

Cullen-Doyle, 133 A.3d 14 (Pa.Super.2016).

In Chester, our Supreme Court addressed whether a conviction for

first-degree burglary (burglary graded as a first degree felony) demonstrates

“violent behavior” under subsection 4503(1) as a matter of law. The

defendant in Chester entered an open guilty plea in Lancaster County to

three counts of first-degree burglary following his arrest for a series of

burglaries in Lancaster, Chester, and Delaware Counties. While awaiting

sentencing on the Lancaster County charges, the defendant pled guilty in

connection with the same episode in Chester County, where he received a

RRRI sentence for three counts of burglary. Thereafter, he requested a

RRRI sentence in Lancaster County on the ground that his first-degree

burglary convictions in Chester County did not constitute a “history of

present or past violent behavior” that precluded RRRI treatment under

subsection 4503(1). The Lancaster County court denied his motion, and the

Superior Court affirmed.

The Supreme Court held that the defendant’s history of first-degree

burglary convictions in Chester County rendered him ineligible under

subsection 4503(1) for RRRI treatment. Although burglary is not in the list

of crimes in subsections 4503(2)–(6) that automatically disqualify

defendants for RRRI sentences, the Court construed subsection 4503(1) as a

broad, “catchall” provision that covers “violent behaviors not otherwise

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J-S90040-16

identified in the RRRI Act’s definition of ‘eligible offender.’” Id., 101 A.3d at

63. First degree burglary fits well within this catchall category, given the

long legal tradition of treating burglary as a crime of violence because of the

threat posed to citizens by intrusions into their homes. Id. at 64-65.

Significantly, the Court

decline[d] … to depart from our well established case law --
finding burglaries to be violent by their very nature -- to instead
engage in a case-by-case evaluation into whether a particular
burglary conviction constitutes ‘violent behavior’ under Section
4503(1) … [W]e believe a conviction for first-degree burglary, a
crime of violence, constitutes violent behavior for purposes of
Section 4503(1).

Id. at 65. Thus, the defendant’s multiple first-degree burglary convictions in

Chester County were “more than sufficient to form a ‘history’ of ‘violent

behavior’ under section 4503(1).” Id.

More recently, in Cullen-Doyle, the defendant sought RRRI treatment

after pleading guilty to one count of first-degree burglary. The defendant

attempted to distinguish his case from Chester on the ground that he had

only one first-degree burglary conviction. The trial court determined that

the defendant was not eligible for RRRI treatment, and this Court affirmed.

We reasoned that “any” violent behavior constitutes a “history” of violent

behavior under subsection 4503(1), and therefore “a single conviction for

first-degree burglary, an admittedly violent act under long-standing

Pennsylvania law, is sufficient to establish a present history of violent

behavior.” Id., 133 A.3d at 21.

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In the present case, Foss has been convicted of one count of first

degree burglary. This conviction precluded the court from imposing a RRRI

minimum sentence, and we reverse this term of sentence. Fortunately, it is

not necessary to remand for resentencing, because reversal of the RRRI

term of sentence will not upset the remainder of the court’s sentencing

scheme. Compare Commonwealth v. Goldhammer, 517 A.2d 1280,

1283–84 (Pa.1986); Commonwealth v. Williams, 871 A.2d 254, 266

(Pa.Super.2005) (if trial court errs in its sentence on one count in multi-

count case, all sentences for all counts will be vacated so court can

restructure its entire sentencing scheme).

Appellant’s convictions affirmed; Appellant’s sentence of 89-300

months’ imprisonment affirmed; Appellant’s RRRI minimum sentence of 74

months and 5 days reversed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/16/2016

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