Com. v. Conaway, W. , 105 A.3d 755 ( 2014 )

J-S68007-14
2014 Pa. Super. 264
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM CONAWAY,
Appellant No. 2312 EDA 2013
Appeal from the Judgment of Sentence entered April 26, 2013,
in the Court of Common Pleas of Bucks County,
Criminal Division, at No(s): CP-09-CR-0006897-2012
BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.
OPINION BY ALLEN, J.: FILED NOVEMBER 26, 2014
William Conaway, (“Appellant”), appeals from the judgment of
sentence imposed following his conviction by a jury of burglary, for which
the trial court sentenced Appellant to a term of imprisonment of five to ten
years.1 Appellant was additionally convicted of theft by unlawful taking,
receiving stolen property, and fleeing and eluding a police officer. 2 On
appeal, Appellant does not challenge his convictions or judgment of sentence
regarding these additional crimes.3 After careful consideration, we vacate
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1
18 Pa.C.S.A. §§ 3502(a)(1).
2
18 Pa.C.S.A. §§ 3921(a), 3925(a), and 3733(a).
3
While the trial court did not impose penalties regarding Appellant’s
convictions for theft by unlawful taking or for receiving stolen property, the
(Footnote Continued Next Page)
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Appellant’s judgment of sentence. Additionally, we remand for a new trial
regarding Appellant’s burglary conviction only.
The trial court set forth the factual background relative to this action
as follows:
On September 4, 2012, Nancy Shvanda was at home
watching her grandchildren while her son Jason Shvanda, who
lived with her at the time, was at work. N.T. 2/26/2013, p. 45,
71. Ms. Shvanda's home is located in Doylestown, Pennsylvania.
N.T. 2/26/2013, p. 34. This home's garage is attached to the
kitchen. N.T. 2/26/2013, p. 38. Ms. Shvanda was the owner of
a 2002 Lexus which she stored in her home's garage. N.T.
2/26/2013, p. 43.
Upon Mr. Shvanda's arrival home from work, Ms. Shvanda
got ready to leave the home. She placed her purse and several
food containers into her car and started the ignition. She then
went back into the house after realizing she had forgotten
something. N.T. 2/26/2013, pp. 45-48, 73. As she was
retrieving the forgotten item, she noticed that her car was
leaving her garage. N.T. 2/26/2013, p. 50, 74.
Ms. Shvanda and Mr. Shvanda realized that the car was
being stolen. Mr. Shvanda chased after the car while Ms.
Shvanda ran inside to call 911. N.T. 2/26/2013, pp. 51-52, 75.
The driver's side door opened and the occupant threw the purse
out of the car. N.T. 2/26/2013, p. 76. Ms. Shvanda's purse was
later recovered in the street near her house. Mr. Shvanda ran
alongside the car and punched the driver's side window, and
while doing so he observed an older white male driving the car.
N.T. 2/26/2013, p. 76.
Ms. Shvanda never saw the person who stole her car, but
she believes she did see his shadow. N.T. 2/26/2013, p. 66.
Mr. Shvanda chased the car but stopped when he realized that
_______________________
(Footnote Continued)
trial court did impose a sentence of eighteen months to three years for
Appellant’s conviction for fleeing or attempting to elude an officer, to run
consecutively with Appellant’s sentence for burglary.
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the car would remain in the neighborhood, given the series of
turns it had made and the fact that Blakemore Court is a cul-de-
sac. N.T. 2/26/2013, p. 78. The car reappeared around the
same time that law enforcement arrived on the scene. N.T.
2/26/2013, pp. 79-80.
Sergeant Wetmore of the Doylestown Township Police
Department was on duty and riding alone in a patrol car on the
day of the incident. N.T. 2/26/2013, pp. 92-93. He heard via
radio that a vehicle had been stolen from a garage in Doylestown
and traveled to that location. N.T. 2/26/2013, p. 94. As
Sergeant Wetmore's car and the Lexus approached each other
head-on, the Lexus swerved at the latest possible moment,
driving over the curb and narrowly missing a tree. N.T.
2/26/2013, pp. 81, 95.
Mr. Shvanda again approached the car for the purpose of
being able to identify the driver at a future time. He observed
that the driver was a white male with short gray hair wearing a
gray shirt. Mr. Shvanda looked at him for three or four seconds.
At trial, Mr. Shvanda identified [Appellant] as the same man he
had seen inside the Lexus on that day. N.T. 2/26/2013, pp. 81-
82. Mr. Shvanda also provided the police officer on scene
information about the direction in which the Lexus had traveled.
N.T. 2/26/2013, p. 83. After avoiding a head-on collision and
failing to heed Sergeant Wetmore's direction to stop, the driver
of the Lexus left the cul-de-sac in which the Shvanda house was
located and turned onto Lower State Road toward Doylestown
Township. N.T. 2/26/2013, pp. 95-96.
Officer Stephen Thomas of the Buckingham Township
Police Department was also on duty on September 4, 2012. N.T.
2/26/2013, p. 104. He heard a radio transmission about a car
being stolen out of a woman's garage, and he positioned his
vehicle on PA Route 611 in such a way that it stopped all of the
traffic from proceeding through the intersection with Almshouse
Road. The Lexus emerged from the line of cars stopped by
Officer Thomas and then traveled on the southbound shoulder
past Officer Thomas's vehicle, followed by a Doylestown
Township police car. N.T. 2/26/2013, pp. 105-06. Officer
Thomas continued following the Lexus and soon became the lead
vehicle behind it. He observed the driver of the Lexus weaving
through traffic to get away from police. N.T. 2/26/2013, p. 108.
The chase continued over several roads, and at one point, they
were travelling at 75 miles per hour (MPH) in a 45-MPH zone.
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N.T. 2/26/2013, p. 109. Officer Thomas discontinued the chase
because he felt it had become too dangerous. He observed that
the driver of the car was an older male, but did not see him well
enough to be able to recognize him if he saw him again. N.T.
2/26/2013, pp. 110-11.
Stanley Weber lives in Warminster, PA, and was at home
on September 4, 2012. After receiving a phone call from a
neighbor at around 7:30 P.M., Mr. Weber went outside and saw
a man inside his van, which was parked in the driveway. The
man was going through a box of clothing that Mr. Weber
intended to donate to charity. N.T. 2/26/2013, p. 113-16. The
driver's side door was open and the man had one foot on the
ground and the other on the sill of the van. Mr. Weber grabbed
him, pulled him out of the van, and asked what he was doing.
The man replied that he was looking for his uncle. N.T.
2/26/2013, p. 117. Mr. Weber observed the man to be a white
male approximately in his forties with a shaved head and a large
scar on the back of his head, wearing sweatpants and a
sweatshirt that were "graying in color." Mr. Weber identified
[Appellant] as the man he saw in his van on September 4, 2012.
N.T. 2/25/2013, pp. 117-18. The man walked down the
driveway and made a right turn as Mr. Weber was calling 911.
N.T. 2/26/2013, p. 119.
Officer Christopher O'Neill of the Warminster Township
Police Department K-9 Unit was also on duty on September 4,
2012. N.T. 2/26/2013, pp. 122-23. He responded to a call
regarding a suspicious vehicle in Warminster Township. Once
there, he spoke with a woman and observed someone in a yard
bordering Mr. Weber's home. The individual was a white male
wearing gray sweatpants but no shirt, and he was raking leaves.
He told Officer O'Neill that his name was Phil Morrow, and he
lived at the property, which was owned by his uncle. N.T.
2/26/2013, pp. 125-26. He was wearing a hospital bracelet that
said his name was William Conaway. This individual was then
placed in the patrol car and his pockets were emptied. N.T.
2/26/2013, pp. 127-28. A Visa debit card and a MasterCard in
the name of William Conaway were found in his pockets. A 2002
Lexus was found in Mr. Weber's driveway. N.T. 2/26/2013, p.
129. The K-9, Blitz, tracked the scent from the Lexus to Mr.
Weber's and back to the bordering yard. N.T. 2/26/2013, pp.
137-40.
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Sergeant Bryon Rose of the Doylestown Township Police
Department investigated the theft of the car in Doylestown. He
photographed and inventoried the 2002 Lexus on September 5,
2012, and he found medical papers inside the vehicle, including
a hospital discharge form with the name William Conaway. N.T.
2/26/2013, pp. 152-61.
Sergeant Lance Carlen of the Doylestown Borough Police
Department testified that he responded to the area of the theft
in Doylestown Township on the evening of September 4, 2012.
N.T. 2/27/2013, pp. 12-15. He received word via radio that the
vehicle, a silver Lexus, was departing the area. N.T. 2/27/2013,
pp. 15-17. En route, Sergeant Carlen observed a silver Lexus
that fit the stolen vehicle's description, and he followed it. N.T.
2/27/2013, pp. 16-17. The Lexus evaded Sergeant Carlen and
ran multiple stop signs without stopping, exceeding the posted
speed of 25 MPH. N.T. 2/27/2013, pp. 17-22.
At one point during the pursuit on State Street, Sergeant
Carlen got beside the Lexus, observed the driver, and noted that
he was an older white male with salt and pepper cropped hair
and a gray sweatshirt. N.T. 2/27/2013, p. 22. Sergeant Carlen
identified [Appellant] as the individual driving the Lexus on
September 4, 2012. N.T. 2/27/2013, p. 22. The sergeant
chased the vehicle through Doylestown Borough and when he
got beside the vehicle again, he observed the driver a second
time for a period of one to two seconds. N.T. 2/27/2013, p. 23.
After following the Lexus South on 611, Sergeant Carlen
ceased pursuit because he determined it was no longer safe.
N.T. 2/27/2013, pp. 27-29. Sergeant Carlen was well out of his
jurisdiction, and other law enforcement vehicles were following
the silver Lexus. N.T. 2/27/2013, pp. 27-29. Later that
evening, Sergeant Carlen received a call from Warminster
Township Police, requesting that he attempt to identify an
individual believed to be the driver of the Lexus. N.T.
2/27/2013, p. 34. Sergeant Carlen responded and identified the
apprehended individual as [Appellant]. N.T. 2/27/2013, pp. 35-
36.
Sergeant Charles Zeigler of the Doylestown Township
Police Department testified that he participated in the
investigation on September 4, 2013. N.T. 2/27/2013, pp. 51-
52. He took possession of evidence which included a gray
sweatshirt and debit and credit cards with the names William
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Conway and William Conaway. N.T. 2/27/2013, p. 58.
Doylestown Hospital and the Shvanda home are within
approximately 15-20 minutes walking distance of each other.
N.T. 2/27/2013, p. 60.
Trial Court Opinion, 1/23/14, at 1-6.
Appellant was charged with the aforementioned crimes. The trial court
summarized the procedural posture that followed:
[Appellant] waived his arraignment on November 16,
2012. His trial was initially scheduled for January 7, 2013, but
was continued several times. The trial commenced on February
25, 2013, and a verdict was returned on February 27, 2013.
The jury found [Appellant] guilty of Counts 1 through 4.
Sentencing was deferred until a pre-sentence investigation
("PSI”) could be completed, and on April 26, 2013, [Appellant]
was sentenced as follows:
On Count 1, burglary, five to ten years imprisonment, and
[o]n Count 4, fleeing or attempting to elude an officer,
eighteen months to three years imprisonment, to run
consecutively to the sentence imposed on Count 1.4
Id. at 7-8.
This appeal followed. Both Appellant and the trial court have complied
with Pa.R.A.P. 1925. Appellant presents the following issues for our review:
I. WHETHER THE TRIAL COURT ABUSE[D] ITS DISCRETION BY
INSTRUCTING THE JURY THAT THE COMMONWEALTH PROVED
BEYOND A REASONABLE DOUBT THAT THE PROPERTY ENTERED
WAS “A BUILDING OR OCCUPIED STRUCTURE, OR SEPARATELY
SECURED OR OCCUPIED PORTION THEREOF THAT IS ADAPTED
FOR OVERNIGHT ACCOMMODATIONS”?
____________________________________________
4
As noted, supra, the trial court did not impose further penalties at Count 2,
theft by unlawful taking, and Count 3, receiving stolen property.
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II. WHETHER THERE WAS SUFFICIENT EVIDENCE PRESENTED
BY THE COMMONWEALTH AT TRIAL TO PROVE BEYOND A
REASONABLE DOUBT THAT [APPELLANT] ENTERED A BUILDING
OR OCCUPIED STRUCTURE, OR A SEPARATELY SECURED OR
OCCUPIED PORTION THEREOF THAT IS ADAPTED FOR
OVERNIGHT ACCOMMODATIONS, WHEN THE PROPERTY
ENTERED WAS AN ATTACHED GARAGE?
III. WHETHER THE CRIMINAL INFORMATION FAILED TO SET
FORTH THE ESSENTIAL ELEMENTS OF THE BURGLARY OFFENSE
IN A PLAIN AND CONCISE MANNER SUFFICIENT TO INFORM THE
APPELLANT OF THE NATURE AND CAUSE OF ACTION AGAINST
HIM?
Appellant’s Brief at 4.
With regard to Appellant’s first issue challenging the trial court’s jury
instruction, the trial court instructed the jury on Count 1 as follows:
[Appellant] has been charged with burglary. To find
[Appellant] guilty of this offense you must find that all of
the following elements have been proven beyond a
reasonable doubt.
First, that [Appellant] entered 16 Blakemore Court,
Doylestown, Pennsylvania.
Second, that [Appellant] entered 16 Blakemore Court with
the intent to commit a crime therein.
Third, that 16 Blakemore Court was not opened to the
public at the time.
And, fourth, that [Appellant] did not have permission or
lawful authority to enter.
Fifth, that 16 Blakemore was a building or occupied
structure or separately secured or occupied portion thereof
that is adapted for overnight accommodation.
Six, that the person was present at the time of the
offense.
N.T. 2/27/2013, pp. 141-42. The Court provided the additional
instruction regarding the fifth element: "If you find -- and it will
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be for you to find whether or not the garage was entered in this
case. I will tell you that the Commonwealth has met the fifth
prong because this is a legal determination that the Court will
deal with in this case." N.T. 2/27/2013, pp. 141-143.
[Appellant’s] counsel objected to the instruction, asserting that it
should be a factual determination.
Trial Court Opinion, 1/23/14, at 7.
In challenging this instruction, Appellant contends:
[T]he trial court erred when it instructed the jury that the
court had determined that the Commonwealth had [established]
[the fifth prong of the burglary charge] that the property entered
was a building or occupied structure or separately secured
portion thereof that is adapted for overnight accommodations.
The Sixth Amendment guarantees the right to a trial by a
jury and that each element of each crime charged is to be
proven to that jury, beyond a reasonable doubt. The trial court’s
instruction usurped the jury’s function as the ultimate fact
finder[.]
Appellant’s Brief at 11. Appellant further maintains that “[p]ursuant to the
Federal and State constitutions, and the holdings of Apprendi and Alleyne,
the absence of a jury finding on the fifth prong of the burglary charge
renders Appellant’s conviction invalid and the sentence imposed illegal.” Id.
at 18. We agree with Appellant that the trial court impermissibly usurped
the jury’s fact-finding role as to the fifth element of the burglary charge, and
find that Appellant is entitled to a new trial for the reasons set forth below.
“When reviewing a challenge to part of a jury instruction, we must
review the jury charge as a whole to determine if it is fair and complete. A
trial court has wide discretion in phrasing its jury instructions, and can
choose its own words as long as the law is clearly, adequately, and
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accurately presented to the jury for its consideration. The trial court
commits an abuse of discretion only when there is an inaccurate statement
of the law.” Commonwealth v. Roser, 914 A.2d 447, 455 (Pa. Super.
2006) (internal citation omitted).
Moreover, we have explained:
“A challenge to the legality of the sentence may be raised
as a matter of right, is non-waivable, and may be entertained so
long as the reviewing court has jurisdiction.” Commonwealth v.
Robinson, 931 A.2d 15, 19–20 (Pa.Super. 2007) (en banc). The
phrase ‘illegal sentence’ is a term of art in Pennsylvania Courts
that is applied to three narrow categories of cases. Id. at 21.
Those categories are: “(1) claims that the sentence fell ‘outside
of the legal parameters prescribed by the applicable statute’; (2)
claims involving merger/double jeopardy; and (3) claims
implicating the rule in Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).” Id. The instant case
falls into the latter category.
In Apprendi, the Supreme Court of the United States held
that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120
S. Ct. 2348. Stated another way, it “is unconstitutional for a
legislature to remove from the jury the assessment of facts that
increase the prescribed range of penalties to which a criminal
defendant is exposed. It is equally clear that such facts must be
established by proof beyond a reasonable doubt.” Id. (quoting
Jones v. United States, 526 U.S. 227, 252–53, 119 S. Ct. 1215,
143 L. Ed. 2d 311, (1999) (Stevens, J. concurring)).
***
[Subsequently] in Alleyne [v. United States, -- U.S. --,
133 S. Ct. 2151 (2013)], the United States Supreme
Court…h[eld] that any fact that increases the mandatory
minimum sentence for a crime “is ‘an element’ that must be
submitted to the jury and found beyond a reasonable doubt.”
Alleyne, 133 S. Ct. at 2155, 2163. The Alleyne majority
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reasoned that “[w]hile Harris [v. United States, 536 U.S. 545
(2002),] limited Apprendi to facts increasing the statutory
maximum, the principle applied in Apprendi applies with equal
force to facts increasing the mandatory minimum.” Alleyne, 133
S. Ct. at 2160. This is because “[i]t is impossible to dissociate
the floor of a sentencing range from the penalty affixed to the
crime[,]” and “it is impossible to dispute that facts increasing the
legally prescribed floor aggravate the punishment.” Id. at 2161.
Thus, “[t]his reality demonstrates that the core crime and the
fact triggering the mandatory minimum sentence together
constitute a new, aggravated crime, each element of which must
be submitted to the jury.” Id.
Commonwealth v. Munday, 78 A.3d 661, 664-666 (Pa. Super. 2013).
The Crimes Code provides in pertinent part:
§ 3502. Burglary
(a) Offense defined.--A person commits the offense of
burglary if, with the intent to commit a crime therein, the
person:
(1) 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;
(2) enters a building or occupied structure, or separately secured
or occupied portion thereof that is adapted for overnight
accommodations in which at the time of the offense no person is
present;
(3) 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 any person
is present; or
(4) 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.
***
(c) Grading.--
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(1) Except as provided in paragraph (2), burglary is a felony of
the first degree.
(2) As follows:
(i) Except under subparagraph (ii), an offense under subsection
(a)(4) is a felony of the second degree.
(ii) If the actor's intent upon entering the building, structure or
portion under subparagraph (i) is to commit theft of a controlled
substance or designer drug as those terms are defined in section
2 of the act of April 14, 1972 (P.L. 233, No. 64), known as The
Controlled Substance, Drug, Device and Cosmetic Act, burglary
is a felony of the first degree.
18 Pa.C.S.A. § 3502 (footnote omitted).
In positing that its jury instruction regarding Appellant’s burglary
charge was proper, the trial court reasoned:
‘A person commits the offense of burglary if, with the
intent to commit a crime therein, the person: (1) 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[.]’ 18 Pa.
C.S. § 3502(a)(1) (effective September 4, 2012). ‘Occupied
structure’ is separately defined as ‘[a]ny structure, vehicle or
place adapted for overnight accommodation of persons, or for
carrying on business therein, whether or not a person is actually
present.’ 18 Pa. C.S. § 3501. The focus of the determination of
whether a structure is adapted for overnight accommodation is
the nature of the structure itself and its intended use, and not
whether the structure is in fact inhabited. Com. v. Nixon, 801
A.2d 1241, 1247 (Pa. Super. 2002) (upholding a burglary
conviction based on a determination that an unoccupied row
home undergoing renovation without electricity or water was a
structure adapted for overnight accommodation within the
meaning of the statute); Com. v. Rivera, 983 A.2d 767 (Pa.
Super. 2009) (upholding a conviction relying on a determination
that a basement was adapted for overnight accommodation,
although it was not accessible from the rest of a house divided
into separate apartments); Com. v. Jackson, 585 A.2d 533 (Pa.
Super. 1991) (upholding a finding that a house was an occupied
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structure, where the victim was sitting on the back porch but
unaware of the defendant's entry).
***
The instruction given in this case on the fifth element of
the burglary charge was proper. This element involves a mixed
issue of fact and law. The issue of fact is whether [Appellant]
entered the structure at issue. The question of law is whether
that portion of the structure is a ‘building or occupied structure,
or separately secured or occupied portion thereof that is adapted
for overnight accommodations.’ Like the back porch in Jackson,
and the basement in Rivera, the attached garage in this case is
inherently part of 16 Blakemore Court. Uncontradicted evidence
demonstrated that three adults and one child lived continuously
in the home, that the garage attached directly to the kitchen,
and that the family frequently used the garage. In addition, at
the time of the offense, Ms. Shvanda was actually in the
doorway between the kitchen and garage. Under these
circumstances, the garage was a part of an ‘occupied structure’
as defined by the statute and caselaw.
The Court did not usurp the jury's role as the factfinder.
The jury made a factual finding on the fifth element about
whether [Appellant] entered the garage. Allowing arguments
regarding whether the garage constituted an ‘occupied structure’
or whether it was a ‘portion thereof that [was] adapted for
overnight accommodations’ would have served only to
unnecessarily confuse the jury. Thus, the Court struck an
appropriate balance framing the legal issue and allowing the jury
to find whether the defendant entered the garage.
Trial Court Opinion, 1/23/14, at 11-14. We cannot agree.
In Commonwealth v. Burwell, we found that the trial court had
committed reversible error in instructing the jury in an aggravated assault
case, and reasoned:
[The trial court] stated the following in his instructions to the
jury:
Now, serious bodily injury means impairment of physical
condition which increased a substantial risk of death or
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which causes serious permanent disfigurement or
protracted loss or impairment of the function of any bodily
member or organ. Now, under the circumstances, it
appears that the injuries suffered by Mr. Regruth
constitute serious bodily injury. But that is a decision
for you to make.
N.T. Jury Trial, 3/18/2009, at 73–74 (emphasis added).
Although we are well aware that the trial court informed the jury
that the question of whether Burwell caused the victim to suffer
serious bodily injury was ultimately its decision, we cannot
underestimate the weight that a jury would afford the opinion of
a trial judge who opines that the element of serious bodily injury
was proven in a case. Commonwealth v. Claiborne, 175
Pa.Super. 42, 102 A.2d 900 (1953) (“[J]udge occupies an
exalted and dignified position; he is the one person to whom the
jury, with rare exceptions, looks for guidance[.]”). It is very
possible that the judge's comments usurped the jury's fact-
finding role and prejudiced Burwell. See Commonwealth v.
McCoy, 401 Pa. 100, 162 A.2d 636 (1960) (trial judge's negative
characterization of defendant in charge to jury prejudiced
defendant's right to fair trial before impartial jury despite judge's
statement that jury had absolute discretion to determine
verdict)[.]
Commonwealth v. Burwell, 42 A.3d 1077, 1083-1084 (Pa. Super. 2012).
Given that in Burwell we found that the trial court committed
reversible error in opining to the jury that the Commonwealth had proved an
element of the charged crime, it follows here that the trial court likewise
erred in specifically instructing the jury that the Commonwealth had
established an element of the burglary charge because that disputed
element was a grading factor. See 18 Pa.C.S.A. § 3502(a)(3), and 3502
(c)(1)-(2); see also Munday, 78 A.3d at 664-666. As in Burwell, our
determination is not affected by the fact that the trial court instructed the
jury that the jury would be the fact finder regarding the remaining elements
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of burglary. Burwell, supra, at 1083. Accordingly, we find that Appellant’s
first issue warrants relief.
In his second issue, Appellant contends that “there was insufficient
evidence for the trial court to conclude that the attached garage was a
building or occupied structure or separately secured or occupied portion
thereof that was adapted for overnight accommodation.” Appellant’s Brief at
18. Our reversal of Appellant’s burglary conviction renders Appellant’s
sufficiency challenge moot, and we decline to reach it.
In his third issue, Appellant challenges the sufficiency of the criminal
information, which the Commonwealth filed relative to the burglary charge.
We will reach this issue since it will be relevant on remand. Specifically,
Appellant contends:
[T]he [c]riminal [i]information filed by the Commonwealth failed
to set forth essential elements of the burglary offense in a
manner that sufficiently informed [Appellant] of the elements of
the crime charged. Under the subsection of the burglary statute
that the Appellant was charged, the Commonwealth was
required to prove that Appellant entered a structure adapted for
overnight accommodation and that a person was present. As
those elements were missing from the information, the
Commonwealth failed to provide sufficient notice of the charge it
intended to prove, in violation of the United States and
Pennsylvania Constitutions and the Pennsylvania Rules of
Criminal Procedure.
Appellant’s Brief at 11-12. We disagree.
We have opined:
The purpose of an Information or an Indictment is to provide the
accused with sufficient notice to prepare a defense, and to
ensure that he will not be tried twice for the same act.
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Commonwealth v. Ohle, 503 Pa. 566, 588, 470 A.2d 61, 73
(1983); Commonwealth v. Diaz, 477 Pa. 122, 383 A.2d 852
(1978); Commonwealth v. Rolinski, 267 Pa.Super. 199, 406 A.2d
763 (1979). An Indictment or an Information is sufficient if it
sets forth the elements of the offense intended to be charged
with sufficient detail that the defendant is apprised of what he
must be prepared to meet, and may plead double jeopardy in a
future prosecution based on the same set of events.
Commonwealth v. Bell, 512 Pa. 334, 343, 516 A.2d 1172, 1177
(1986); Commonwealth v. Ohle, 503 Pa. 566, 588, 470 A.2d 61,
73 (1983); Russell v. United States, 369 U.S. 749, 763, 82 S. Ct.
1038, 8 L. Ed. 2d 240 (1962); See Pa.R.Crim.P. 225(b). This may
be accomplished through use of the words of the statute itself as
long as “those words of themselves fully, directly, and expressly,
without any uncertainty or ambiguity, set forth all the elements
necessary to constitute the offense intended to be punished.”
Hamling v. United States, 418 U.S. 87, 117, 94 S. Ct. 2887, 41
L. Ed. 2d 590 (1974), quoting, United States v. Carll, 105 U.S.
611, 612, 26 L. Ed. 1135 (1882 [1881]).
Commonwealth v. Chambers, 852 A.2d 1197, 1199 (Pa. Super. 2004)
citing Commonwealth v. Alston, 651 A.2d 1092, 1095-1096 (Pa. 1994).
Here, the criminal information provided in pertinent part:
The Attorney for the Commonwealth of Bucks County by this
information charges that in the County of Bucks, Pennsylvania,
[Appellant]:
Count 1: Burglary–Overnight Accomodation, Person
Present - (F1) 18 [Pa.C.S.A.] §§ A1
Offense Date: 9/4/12
[D]id enter a building or occupied structure, or separately
secured or occupied portion thereof, to wit, 16 Blakemore Court,
Doylestown, with intent to commit a crime therein, and the
premises were not open to the public nor was the actor licensed
or privileged to enter.
***
Citation of Statute and Section:
1. 18 [Pa.C.S.A.] § 3502 §§ A1 (F1)[.]
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Information, 11/14/12, at 1 (emphasis in original).
Contrary to Appellant’s assertion, the criminal information on its face
did set forth, in bold script, the required elements of “Overnight
Accommodation” and “Person Present” relative to Appellant’s burglary
charge. Moreover, in at least two locations, the Commonwealth noted the
specific penal statute, subsection, and felony grade with which Appellant was
charged. We agree with the trial court that “[t]aken as a whole, this
provided [Appellant] with sufficient detail about the accusation and elements
and enough notice in order to prepare a defense. Therefore, the information
was sufficient.” Trial Court Opinion, 1/23/14, at 10. Appellant’s claim
regarding his criminal information is unavailing.
Given the foregoing, we vacate Appellant’s burglary conviction and
remand for a new trial on the burglary count only. Appellant’s remaining
convictions stand. However, because we are vacating a conviction in a
multiple count case, and vacating Appellant’s burglary conviction may upset
the overall sentencing scheme vis-a-vis Appellant’s other convictions, we
vacate the entire judgment of sentence. See Commonwealth v. Brown,
26 A.3d 485, 510 (Pa. Super. 2011) citing Commonwealth v.
Goldhammer, 517 A.2d 1280, 1283-84 (Pa. 1986).
Case remanded for a new trial regarding burglary only, and for re-
sentencing on all convictions. Jurisdiction relinquished.
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J-S68007-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2014
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