Com. v. Cabrera, O. ( 2019 )

J-S71021-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OLIVER CABRERA :
:
Appellant : No. 4070 EDA 2017
Appeal from the Judgment of Sentence November 28, 2017
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001470-2017
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED APRIL 15, 2019
Appellant Oliver Cabrera appeals from the judgment of sentence for 154
to 308 months’ imprisonment following a jury trial and his convictions for
corrupt organizations, robbery, aggravated assault, burglary, conspiracy,
theft by unlawful taking or disposition, receiving stolen property, simple
assault, and criminal mischief.1 Appellant alleges the trial court erred by
denying his motion to sever, motion to suppress, and motion to preclude
evidence of a prior bad act. He also challenges the discretionary aspects of
his sentence and the sufficiency of evidence for his convictions of corrupt
organization and burglary. We affirm.
____________________________________________
1 18 Pa.C.S. §§ 911, 3701, 2702, 3502, 903, 3921, 3925, 2701, 3304.
J-S71021-18
We adopt the trial court’s facts and procedural history. See Trial Ct.
Op., 4/4/18, at 1-11. The court sentenced Appellant on November 28, 2017.
Appellant filed, and the court denied, a timely post-sentence motion
requesting reconsideration of his sentence. Appellant timely appealed and
timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
On appeal, Appellant raises the following questions:
[1]. Did the trial court abuse its discretion by not granting
Appellant’s motion to sever?
[2]. Did the trial court error in not granting Appellant’s motion to
suppress?
[3]. Did the trial court error in not granting Appellant’s motion in
limine?
[4]. Did the trial court’s sentence rise to the level of manifest
abuse of discretion?
[5]. Was the evidence sufficient to support the conviction?
Appellant’s Brief at 4.
After careful review of the parties’ briefs, the record, and the trial court’s
decision, we adopt and affirm on the basis of the trial court’s decision
addressing the merits of the issues raised in this appeal. 2 See Trial Ct. Op.
____________________________________________
2 We do not, however, adopt the trial court’s rationale for the initial vehicle
stop, as Appellant did not challenge the initial stop on appeal. See Trial Ct.
Op. at 19-20. We also do not adopt the trial court’s assertion that Appellant
waived his sufficiency challenge due to a vague Pa.R.A.P. 1925(b) statement,
see id. at 30-31, because the trial court addressed Appellant’s challenges to
the sufficiency of evidence for corrupt organizations and burglary.
-2-
J-S71021-18
at 11-19, 20-30. The trial court reasoned that Appellant’s motion to sever the
robbery was properly denied for a few reasons. First, evidence of the robbery
would permit the Commonwealth to prove the offense of corrupt organizations
and conspiracy. See id. at 11-13. Second, evidence of the robbery would be
admissible to establish a common plan or scheme. See id. at 13-14. As for
Appellant’s challenge to his motion to suppress, we agree with the trial court
that the police were justified in searching the vehicle’s interior given the
occupants’ furtive movements. See id. at 21-22. Similarly, we see no abuse
of discretion with the trial court’s decision to admit evidence of the New Jersey
burglary and robbery because it helped prove the charges of corrupt
organizations and conspiracy. See id. at 22-24. Finally, after reviewing the
record in the light most favorable to the Commonwealth, we agree there was
sufficient evidence to sustain Appellant’s convictions for burglary and corrupt
organizations. See id. at 31-32. We add that Appellant has fulfilled the
preliminary elements identified in Commonwealth v. Colon, 102 A.3d 1033,
1042-43 (Pa. Super. 2014), for challenging the discretionary aspects of his
sentence, but we agree with the trial court that he is not entitled to relief.
See Trial Ct. Op. at 24-29. Accordingly, having discerned no abuse of
discretion or error of law, we affirm the judgment of sentence entered below.
Judgment of sentence affirmed.
-3-
J-S71021-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/19
-4-
Circulated 03/08/2019 09:11 AM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA: No. CP-09-CR-0001470-2017
v. [4070 EDA 2017)
OLIVER CABRERA
OPINION
The Defendant, Oliver Cabrera, has appealed from the judgment of sentence entered on
November 28, 2017.
On August 25, 2017, following a trial by jury, the Defendant was convicted of one count
of Corrupt Organizations, 18 Pa.C.S. §91 l(b)(l), one count of Criminal Conspiracy, 18 Pa.C.S.
§903, one count of Burglary - Overnight Accommodation, Person Present, 18 Pa.C.S.
§3502(a)(l), two counts of Robbery, 18 Pa.C.S. §3701(a)(l)(iv), two counts of Simple Assault,
18 Pa.C.S. §2701 (a)( l ), five counts of Burglary - Overnight Accommodation, No Person Present,
18 Pa.C.S. §3502(a)(2), six counts of Theft by Unlawful Taking, 18 Pa.C.S. §392l(a), six counts
of Receiving Stolen Property, 18 Pa.C.S. §3925(a), and six counts of Criminal Mischief, 18
Pa.C.S. §3304(a)(2). The Defendant was sentenced on November 28, 2017. On December 1,
201 7, the Defendant filed a Motion to Reconsider Sentence. That motion was denied by Order
dated December 1 1, 201 7.
The charges in this matter arose out of the Defendant's participation in a burglary ring
.......
....
operated out of Trenton, New Jersey by the Defendant, Alex Lora, Raymond Munn, Chr1sfopher 7
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Upshur and Chris Rodriguez. The ring operated in New Jersey and in Bucks County. Tille group
Lv • 1
initially committed daytime burglaries of unoccupied residences. Later, the group begaoto ,
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..
• r,
burglarize occupied residences. targeting individuals who sold goods at flea m�kets. �·; 0
The first Bucks County burglary occurred on July 30. 2012 at the residence ofNancy
Harris located at435 Stoneybrook Road in Newtown, Upper Makefield Township. When Mrs.
Harris left her home at 8:00 that morning, her late husband's Lexus was parked in the garage.
When she returned two hours later, she found that her home had been burglarized and the Lexus
had been taken. Her home had been ransacked; drawers were pulled out and their contents were
scattered on the floor. Items stolen during the burglary included a Rolex watch and jewelry,
including diamond rings, gold bracelets; pearl earrings, emerald earrings and various necklaces
her husband had given her throughout their marriage. N.T, 8/23/17, pp. 100-111.
The second Bucks County burglary occurred on August 8, 2012 at the residence of
Dorothy and John Carr located at 5 St. James Place in Yardley. The Carrs left their home at
10:45 that morning to go to the market. When they returned an hour and a half later, the Carrs
found that their home had been burglarized. The home had been ransacked; drawers were pulled
out and their contents were scattered on the floor. Valuable pieces of china the couple had.
purchased on their honeymoon had been broken. It was later determined that forcible entry had
been made into the home through a firstfloor window in.the back of the home. Jewelry,
wedding rings, three firearms, cameras, distinctive pillowcases and other items had been stolen
fromthe home. Although some costume-jewelry and the pillow cases were ultimately returned,
the valuables were not recovered. N.T. 8/23/17, pp.122-132.
The third Bucks County burglary occurred on August 2l, 2012 at.the residence of Karen
Zewe and her husband located at 1605 Ginko Lane in Yardley. Mrs. Zewe left her home that
morning to go to the bank and the store. When she returned approximately fifteen minutes later,
she found the police at her home and realized that her home had been burglarized. The
bedrooms were ransacked, drawers were pulled out of dressers and closet doors were open. A
2
computer, an iPad, all of Mrs. Zewe'sjewelry, a coin collection, and other items had been stolen
from the home. N,T. 8/23/17, pp. 208-214, 217-218; Exs. C-28 through C-44. It was later
determined that forcible entry into the residence had been made through a window in the back of
the home. N.T. 8/24/17, pp. 152-154.
The fourth Bucks County burglary occurred on September 1, 2012 atthe residence of Jim
Abramson and his wife located at 701 River Road in Yardley. Mr. Abramson left his home the
previous day to go to the New Jersey shore for the Labor Day weekend; In the late afternoon
hours of Saturday, September 1, 2012, Mr. Abramson received a report from his alarm company
that his home alarm had been activated. Mr. Abramson instructed the alarm company to call the
police. When he returned home at approximately 7 :00 p.m., the police were at his residence.
The home had been vandalized; every dresser drawer had been emptied onto the floor. An iPad,
watches and a safe containing important paperwork and most of Mrs. Abramson's jewelry had
been stolen from the home. It was later determined that forcible entry had been made through a
window at the back of the home. Only the iPad was recovered. N.T. 8/24/17, pp.147-159,
The fifth Bucks County burglary occurred at the residence of Patricia Stone and her
husband located at 909 Rivet Road in Washington Crossing. The burglary was discovered on
Monday, September 3, 2012; when Mrs. Stone returned from a trip and found that her home had
been burglarized. The home had been ransacked; the contents of drawers and closets emptied
onto the floor. An antique engraved bracelet, two antique guns and other items had been stolen
from the home. N.T, 8/23/17, pp. 223-229. It was later determined that forcible entry had been
made through a window in the family room at the rear of the home. N.T. 8/23/17, p. 230. All of
Mrs. Stone's property was recovered later that day. N.T. 8/23/17, pp. 230-232; Ex. C-52.
3
The sixth Bucks County burglary occurredat the residence of Harvey Gray, age 84, and
his wife Rebecca Gray; age 82, located at 1708 Fite Terrace in Langhorne, Mr. Gray ran a junk
yard, dismantling cars and trucks and selling the parts at flea markets. At 9:55 p.rri. on
September 10, 2012, he was at home with his wife when someone knocked 011 the door. When
Mrs. Gray opened the door, three men barged through knocking her to the floor. Her hands were
bound behind her back with zip ties and couch cushions were placed around her so that she could
not see. One of the intruders pointed a gun at Mr. Gray, told him he was going to be shot and
ordered him to get his money; Mr. Gray, dressed only in a tee shirt and underwear, had his
hands bound behind his back with zip ties and was forced from room to room to show the
intruders where money and valuables were kept. When.he told them thathe did not have a safe,
the intruders began to tear pictures from the walls and break through drywall looking for one.
When the intruders left his home, Mr. Gray, barefoot, in his underwear, arms still tied behind his
back, left the residence in search of help. His neighbors, not aware of what had occurred, called
the police to report a suspicious person .. NT. 8/24/17, pp. 54-68.
Officer Scott Patrick of the Middletown Township Police Department responded to the
call and found Mr. Gray standing in the middle of the street, hands still bound behind his back,
bleeding from his face, head and the back of his hands. N.T. 8/24/17, pp. 126-128. Mr. Gray
told Officer Patrick that he had been robbed and that his wife was still inside the house, Mrs.
Gray was taken from the house and her restraints were removed. The zip ties were secured so
tightly, her wrists were bleeding. and her hands were purple. N.T. 8/24/17, p. 129-30. Officer
Patrick described the scene as being in total disarray. Every cabinet was open, beds were
overturned and there were holes in the drywall. .N.T. 8/24/17, p. 131; Exs. C-6(5 through C-74.,
Valuables, $4,500 in cash, Mr. Gray's fire company badge and numerous other items of
4
sentimental value had been taken. N.T. 8/24/17, pp. 70-71. Some of the items were later found
in the residence of Christopher Upshur in Trenton. N.T. 8/24/17, pp. 215-216, 236-237.
James and Mary Orisack were in the business of buying and selling antique jewelry at the
Columbus Flea Market in New Jersey. On September 21, 2012, police responded to a home
invasion robbery at 304 Colonial Drive in Toms River, New Jersey and found the homeowners,
James and Mary Orisack, inside the home, their wrists and ankles bound with wire ties. N.T.
8/24/17, pp. 200-201. The Orisacks reported that they were sleeping when three individuals
woke them up at gunpoint, bound them and ransacked their home. Detective Roger Hull of the
Toms River Township Police Department testified that every room in the house, including the
garage, was ransacked; every drawer was opened, furniture was overturned and things were
ripped offthe walls. Approximately $100,000 in jewelry and $17,000 in cash was stolen during
the burglary, The Orisacks reported that they had seen a Toyota parked near the residence earlier
in the evening. N.T. 8/24/17, pp. 202-203.
During the period of time this group was operating, police stopped members of the ring
on two occasions. The first stop occurred on August 16, 2.012. On that date, Raymond Munn
was stopped in New Jersey driving the Lexus stolen from Mrs. Harris' home. N.T. 8123117, pp.
182-184. Pillow cases filled with jewelry, laptops, a camera, bolt cutters, three sets of gloves, a
pocket knife and a "walkie-talkie" were found inside the vehicle. Some, but not all, ofthese
items belonged to Mrs. Harris. Although the Lexus was recovered, no other items of
significance were.returnedto her. N.T. 8/23/17,pp. 111, 13l-132;N.T. 8/24/17,pp.138-141.
The second.stop occurred on September 3, 2012, the date the Stone burglary was
reported. On that date, three men in a red pickup truck appeared at the residence of Autumn
Lucas and her boyfriend located at 835 River Road in Lower Makefield Township. One man got
5
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out of the truck and knocked on the door. When her boyfriend opened the door, the man stated
that their vehicle was overheatingand they needed a gallon of water. Ms. Lucas found the
explanation given for their presence suspicious due to the fact that her home was located far from
the road and there were other homes nearby located dose to the road. Ms. Lucas' suspicions
were also aroused due to the fact that her home appeared to be unoccupied. There were no
vehicles at the home, the shades were drawn and the exterior lights were on in the middle of the
day. Ms. Lucas called 911, reported the incident and provided descriptions of the men and the
vehicle. N.T. 8/24/17, pp. 4-11.
At 1 :30 p.m., Officer David Kasprzyk of the Lower Makefield Township Police
Department responded to the call of a suspicious vehicle. When he arrived in the area where the
call originated, he observed a pickup truck matching the description given by the caller. N. T.
8/24/17, pp. 18-21. He stopped the truck and identified the occupants as the Defendant, Alex
Lora and Chris Rodriguez. During this initial contact, he observed jewelry inside the cab of the
truck. N.T. 8/24/17, pp. 22-26. After he removed the occupants from the truck, Officer
Kasprzyk observed a pool cue converted into a club, a fifteen-inch-long flathead screwdriver and
multiple gloves including a pair of work gloves with a textured, hard rubber studded grip inside
the cab of the truck. N.T. 8/24/17, pp. 26-27, 37-39; Exs. C-55 through C-59. All three men
were taken into custody on weapons charges. They were released a few days later. N.T.
8/24/17, p. 30. The vehicle was towed to police headquarters and was later searched pursuant to
a search warrant. N.T. 8/24/17, p. 41. During the search, pillow cases full of jewelry and
valuables from the Stone residence were found underneath scrap metal in the bed of the truck.
N.T. 8/24/17, p. 267. Police also found three cell phones and two "walkie-talkie" type two-way
radios. N.T. 8/24/17, p. 268; Ex. C-98.
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Detective John Campbell of the Lower MakefieldTownship Police Department
investigated the burglaries at the Carr, Zewe and Abramson residences. All three homes were
located near major arteries which connect that area of Bucks County to Trenton, New Jersey. In
all three cases, forcible entry had been made through a rear window of the home and the homes
had been subjected to the same type of heavy ransacking. The same tool mark was found at each
point of entry. N.T. 8/24/17, pp. 244-247. Detective Campbell examined the fifteen-inch
flathead screwdriver and the gloves that had been seized from the red pickup truck. N.T.
8/24/17, pp. 249-250; Exs. C"'58, C-59. The flathead screwdriver physically matched the pry
marks found on the windows at the Stone, Zewe and Abramson residences. N.T. 8/24/17, pp.
256-257; Exs. C-88 through C-96. The dimple pattern on the gloves matched the glove print
pattern found on windows at the Zewe and Abramson residences. N.T. 8/24/17, p. 251; Exs. C-
84 through C-86. Detective Campbell also compared sneakers taken from Alex Lora on the day
he was stopped in Lower Makefield with the footprint found at the scene of the Stone burglary.
N.T. 8/24/17, pp. 262-265; Exs. C-76, C-97. The shoe print found at the Stone residence and the
sole of the sneaker taken from Lora had the same distinctive pattern. N.T. 8/24/17, p. 265. Cell
tower data placed the Defendant's phone in the area ofthe Zewe residence on the date that home
was burglarized and i11 the area of the Abramson residence on the date that home was
burglarized. N.T 8/24/17, p. 275-:277.
Detective Hulltestified that a soft-sided laundry bag containing the Orisack's business
cards and some other property that had been taken from their home was found on Cherry Street
in Trenton near the residences of Christopher Upshur and Alex Lora. Mr. Orisack advised
Detective Hull that he recently had business dealings with "Alex" and provided police with the
telephone numbers he had for him. One of those phone numbers belonged to Christopher
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Upshur. Christopher Upshur's mother was identified as Kathleen Mezaros. She resided with
Alex Lora. N.T. 8/24/17, pp. 204-207. Trenton police searched Lora's residence and recovered
property belonging to the Ori sacks, specifically, pieces of mail, pieces of their safe, a bag of
loose diamonds, a jewelry testing kit and handwritten tags for costume jewelry that matched the
jewelry found on Cherry Street. N.T. 8/24/17, p, 209.
A Toyota matching the description of the vehicle seen at the Orisack residence was found
at the residence of Christopher Upshur. The vehicle was registered to his mother, Kathleen
Mezaros, A BMW with a temporary tag in the name of Kathleen Mezaros was also at Upshur' s
residence. Search warrants were obtained and the vehicles were searched. Inside the Toyota,
police found a ski mask and a Tupperware lid. The police were aware that the individuals who
had robbed the Orisacks wore ski masks and also that the Orisacks stored their jewelry in
Tupperware containers. In addition, a shirt matching one worn by one of the individuals who
had robbed the Orisacks was found in the BMW. N.T. 8/24/17, pp. 210-212.
A search warrant was also obtained for Upshur's residence. N.T. 8/24/17, pp. 212-214.
During the search, police located and seized an Apple iPad, Apple Computer, a set of cufflinks
with the initials ''H.G.," and a Newtown fire badge, all of which were reported stolen in the
Bucks County cases. Police also seized two jewelry boxes, one with a large amount of foreign
coins, a television, a handgun, clothing and several video game consoles. N .T. 8/24/17, pp. 215-
216. Two-way radios that matched the make and model and had consecutive serial numbers to
the two-way radios found in the red pickup truck occupied by the Defendant, Alex Lora and
Chris Rodriguez were also found. N.T. 8/24/17, pp. 215-217, 280-281, Ex. C-98.
Co-conspirator Raymond Munn was called as a Commonwealth witness. He testified
that he knew the Defendant, Alex Lora, Chris Rodriguez and Christopher Upshur. He stated that
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he.Alex Lora, and the Defendant discussed committing burglaries together in July of 2012 and
immediately began committing burglaries in the area surrounding Trenton. Munn testified that
the group committed "a couple" burglaries a day, about twice a week. All of the burglaries were
committed during the day. Houses were selected based on apparent wealth. The house would be
burglarized if no one was home. In the burglaries committed by Munn, Lora and Munn entered
the homes and went directly to the master bedrooms in search of money and jewelry. They
quickly ransacked the residences, placing any valuables they found in pillow cases or any other
bags they found in the home. The Defendant acted as driver and lookout. The group used
walkie-talkies to communicate with each other. The burglaries were committed in less than five
minutes. The stolen property was sold atthe Columbus Farmer's Market or pawned at Trenton
pawnshops. The group split the proceeds. Munn specificallyrecalled participating in the July
30, 2012 burglary of the Harris residence. He testified that he saw keys to the Lexus and decided
to take the car on his way out. N.T. 8/23/17, pp. 165-181.
Co-Conspirator Christopher Upshur was also called as a Commonwealth witness. He
testified that in the summer of 2012, he, Munn, Rodriguez and the Defendant came up With a
plan to make money by committing burglaries. He testified that not every conspirator was
present at each burglary.' He admitted that he personally participated in approximately three
burglaries in Pennsylvania. N.T. 8/24/17, pp. 83-85. His description of.how the group operated
was consistent with the description given by Munn. Upshur testified that the group approached a
house and knocked hard on the front door to see if anyone answered. Ifsomeone answered, an
I
Initially, Upshur testified he, Rodriguez and Munn were the only participants in the burglaries and home invasion
and refused to implicate the Defendant. N.T. 8/24/17, pp. 95-96. After being confronted with prior inconsistent
statements in which he implicated the Defendant, Upshur stated that his prior testimony that the Defendant was a
member of the conspiracy and participated in the burglaries was truthful. N;T. 8/24/17, pp. 1 l 7s 118.
9
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excuse would be given for their presence and they would leave. If no one answered, forcible
entry was made, Oneach occasion that he was present, Upshur entered and ransacked the
homes, taking whatever items of value they found out ofthe house in pillow cases. N.T. 8/24/17,
pp. 86-88. The stolen property was pawned in Trenton and the proceeds were divided. Upshur
testified that even those conspirators who were not present received a share of the proceeds from
each burglary in order "to look out for one another." N.T. 8/24/17, pp. 89-90. Upshur further
testified that in August or September of 2012, the conspirators decided to "up [their] game." All
of the conspirators agreed to rob Mr. and Mrs. Gray in their home at gunpoint N.T. 8/24/17, pp.
89-91. Upshur testified that he and the Defendant participated in the armed robbery. He testified
that three men entered the borne, tied up the Grays using zip ties and ransacked the house. After
"grabbing a few things and Ieaving," they returned to Upshur's home in Trenton. Every member
of the conspiracy received a share of those proceeds. N.T. 8/24/17, pp. 93-96.
The final co-conspirator called as a Commonwealth witness was Chris Rodriguez who
testified that he, the Defendant, Munn, Upshur and Lora decided to commit burglaries and
discussed the role each of them would play. His description of how the group operated was
consistent with the descriptions given by Munn and Upshur. He estimated that approximately
five burglaries were committed in Pennsylvania by various members of the group, N.T. 8/24/17,
pp, 168-178. He stated that on the day he, Lora and the Defendant were stopped in Lower
Makefield, they had committed two burglaries and attempted a third. After they were.released,
they continued to commit burglaries in New Jersey and Pennsylvania. N.T. 8/24/17, pp. 179-
183. Rodriguez, Lora, Upshur and the Defendant then discussed robbing Mr. and Mrs. Gray
based on information from Lora that they would be able to get $200,000.2 Afterfollowing the
2
Munn was incarcerated at this time and therefore did not participate. N.T. 8/24/17, p. 183.
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Grays for a week, the group was satisfied they had identified where the Grays lived. N.T.
8/24/17, pp. 182-185. Rodriguez testified that he, Upshur and the Defendant committed the
robbery and that he and Upshur were armed. Jewelry and $7000 to $8000 in cash was taken
during the robbery. N.T. 8/24/17, pp. 185-188.
The Commonwealth charged the Defendant with all of the offenses committed in Bucks
County in a single information pursuant to Rule 563 of the Pennsylvania Rules of Criminal
Procedure which provides:
(A) Two or more offenses, of any grade, may be charged in the same
information if:
(1) 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; or
(2) the offenses charged are based on the same act or
transaction.
Pa.R.Crim.P. 563. The Defendant filed a motion to sever the robbery from the remaining
charges. Rule 583 provides:
The court may order separate trials of offenses or defendants, or
provide other appropriate relief, if it appears that any party may be
prejudiced by offenses or defendants being tried together.
Pa.R.Crim.P. 583. That motion was denied on August 22, 2017. The Defendant challenges that
ruling on appeal.
In the instant case, the Defendant was charged with Corrupt Organizations. The Corrupt
Organizations statute provides:
It shall be unlawful for any person who has received any income
derived, directly or indirectly, from a pattern of racketeering activity
in which such person participated as a principal, to use or invest,
directly or indirectly, any part of such income, or the proceeds of
such income, in the acquisition of any interest in, or the
establishment or operation of, any enterprise •...
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18 Pa.CS. §911. "Pattern of racketeering activity" is defined as "a course of conduct requiring
two or more acts ofracketeering activity." 18 Pa.C.S. §91l(h)(4). The crimes of Robbery and
Theft constitute "racketeering activity't underthe statute. 18 Pa.C.S. §9U(h)(l)(i). Here, the
Commonwealth alleged that the robbery ofthe Grays was an act of racketeering. "Where proof
of an offense with which a defendantis charged requires proof of another crime or wrong,
evidence of the other crime or wrong is necessarily admissible." Commonwealth v. Johnson,
160 A.3d 127, 144-45 (Pa.2017)). The Defendant's motion to sever the robbery was therefore
properly denied since evidence of the robbery was necessary to establish an element of the
Corrupt Organizations charge.
Similarly, the Commonwealth charged the Defendant with engaging in an ongoing
conspiracy to carry out burglaries of unoccupied and occupied residences, To sustain a
conviction for Criminal Conspiracy, the Commonwealth was required to establish that the
Defendant: (1) entered into an agreement to commit or aid in an unlawful act with another person
or persons; (2) with a shared criminal intent and; (3) an overt act was done in furtherance of the
conspiracy. Commonwealth v. Fisher, 80 A.3d 1186, 1190-1191 (Pa.2013) (internal quotations,
citations, and corrections omitted); see also 18 Pa.C.S. §903. An "overt act" means an act done
in furtherance of the object of the conspiracy. Commonwealth v. Gross, 101 A.3d28, 34
(Pa.2014); see 18 Pa.C.S. §903(e). If a person conspires to commit a number of crimes, heis
guilty of only one conspiracy so long as such multiple crimes are the object of the same
agreement or continuous conspiratorial relationship. 18Pa.C.S. §903(c). In the instant case, the
robbery of Mr. and Mrs. Gray in their home constituted an overt act done in furtherance of the
continuous conspiratorial relationship that existed among the named conspirators, The
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Defendant's motion to sever the robbery charge was therefore properly denied since the robbery
was admissible to establish an element of Criminal Conspiracy.
If the robbery is not deemed to be part of the same act or transaction, the following
inquiries must be made:
[W]hether the evidence ofeach of the offenses would be admissible
in a separate trial for the other; whether such evidence is capable of
separation by thejury so as to avoid danger of confusion; and, if the
answers to these inquiries are in the affirmative, whether the
defendant will be unduly prejudiced by the consolidation of
offenses.
Coinmonwealth v. Torres, 177 A.3d 263, 277 (Pa.Super.2017) (quoting Commonwealth v.
Thomas, 879 A.2d 246, 260 {Pa.Super.2005)); see Pa.R.Crim.P 523 and 583. It is well
established that "proofs of distinct crimes" is admissible "to show a common plan, scheme or
design embracing commission of multiple crimes, or to establish the identity of the perpetrator,
so long as proof of one crime tends to prove the others." Commonwealth v. Cousar, 928 A.2d
1025, 1037 (Pa.2007) (quoting Commonwealth v. Keaton, 729 A.2d 529, 537 (Pa.1999)
(quotation marks omitted).
In this case, evidence of the robbery of the Grays in their home would be admissible in a
separate trial of the other burglaries and vice versa to establish common plan, scheme and design
and, therefore, the identity of the perpetrators in all ofthe burglaries. As the facts set forth above
demonstrate, the burglaries were committed close in time and in the same vicinity. The group
operated in a highly organized fashion, targeting homeowners they believed would possess large
amounts of cash and valuables that could easily be converted into cash, i.e, jewelry. All of the
crimes were conducted methodically, with speed and precision. The perpetrators utilized the
quickest and surest means of finding all items of value by quickly emptying all receptacles where
such items may have been stored or hidden; drawers were removed and overturned and closets
13
were emptied. The only distinction betweenthe offenses committed by the members ofthis
organization was the fact that on two occasions the group targeted occupied residences. That
however does not undermine the fact that these were signature crimes. The difference between
their invasions of unoccupied homes and their invasion of occupied homes only demonstrates the
natural evolution of the group and an increased willingness to take greater risks in exchange for
greater reward. Moreover, the evidence relating to the Gray burglary/robbery and the other
burglaries was Clearly capable of separation by the jury so that there was no danger of confusion.
While all of the burglaries were related, each was a distinct event. Finally, the Defendant
suffered no undue prejudice given the amount and weight of the evidence connecting him to each
of the crimes charged.
The Defendant next challenges this Court's denial of his motion to suppress the traffic
stop of the red pickup truck in Lower Makefield Township on September 3, 2012 and the
subsequent search of the cab of that vehicle.' The evidence introduced at the suppression
hearing established that prior to the challenged car stop; Officer David Kasprzyk of the Lower
Makefield Township Police Departmenthadreceived information from his department's
detective di vision that a rash of burglaries had occurred in Lower Makefield Township and
surrounding jurisdictions. N.T. 8/22/17, pp. 33-34. All of the burglaries occurred during
daytime hours and involved residences located close one anotherand close to the Pennsylvania-
Trenton, New Jersey border. N.T. 8/22/17, pp. 34-35. As a result of this information, in addition
to his normal duties, Officer Kasprzyk was on the lookout for suspicious vehicles in residential
neighborhoods. N.T. 8/22/17, pp. 33-34.
3
This Court's findings of fact and conclusions of law with regard to this issue are set forth at N.T. 8(25/17, pp. 2-20.
14
... ,,,,,. -------·--··---·---·------- ------··--·---------·--·--------------------
On September 3, 2012, Officer Kasprzyk was on routine patrol. N.T. 8/22/17, pp. 32-33.
At approximately 1 :30 p.m., he received a call of a suspicious vehicle. The complainant had
called from an address on River Road, in the immediate vicinity of where other burglaries had
occurred. The suspicious vehicle was described as a red pickup truck with New Jersey license
plates, The complainant reported the vehicle had three male occupants and that one of the
occupants had approached her house and knocked on the door. N.T. 8/22/17, pp. 36-39. She
stated that she found the fact thatthese individuals approached her home to be suspicious due to
the fact that her home was set back· far from the road and the home would have appeared to be
unoccupied since the shades were drawn, no vehicles were in the driveway and the exterior lights
were on in the middle of the day. N.T. 8/22/17, pp. 37-38.
Officer Kasprzyk immediately respondedto the area and within minutes observed a
vehicle matching the complainant's description within three-quarters ofa mile of the
complainant's address. N.T. 8/22/17, pp. 39-40. Officer Kasprzyk observed the vehicle make a
tum without using a tum signal. N.T. 8/22/17, p. 58. He also observed an unsecured load of
scrap in the bed of the truck. N.T� 8/22/17, pp. 47, 54-55; Exs. CP-1 through CP-3. After
making these observations, Officer Kasprzyk stopped the vehicle;
Prior to approaching the vehicle, Officer Kasprzyk observed three occupants inside the
cab of the truck. All three occupants were making furtive movements, reaching down towards
the floor ofthe cab causing the officer to lose sight of all three men at times. Officer Kasprzyk
called for backup and approachedthe vehicle. N.T. 8/22/17, pp. 40-42. As he approached, all
three individuals continued their furtive movements. When he got to the cab of the truck, Officer
Kasprzykinstructed the occupants to stop moving. N.T. 8/22/17, p. 44.
15
The driver of the truck was identified as Oliver Cabrera, the Defendant. The individual
seated nextto him was identified as Chris Rodriguez, the individual seated next to him was
identified as Alexander Lora. N.T. 8/22117, p. 42-43. Officer Kasprzyk asked for vehicle
registration and proof of insurance. The Defendant advised the officer that he did not have the
requested documentation. He statedthatthe vehicle was owned by his girlfriend. N.T. 8/22/17,
p. 45. Looking into the vehicle, Officer Kasprzyk could. see that there was no key in the tum-key
ignition although the vehicle was still running. N.T. 8/22/17, p. 46. He also saw women's
jewelryin a compartmenton the dash of the vehicle. N.T. 8/22/17, pp. 47, 49; Exs. CP-2, CP-3.
When backup officers arrived, the occupants were removed from the vehicle. N.T.
8/22117, pp. 45-46, 47-48. Officer Kasprzyk then observed, in plain view, a handle ofapool cue
with a lanyard attached sticking out from under the seat of the truck. N.T. 8/22/17, p. 48. On the
floor of the cab, in plain view, were pills, a fifteen inch flathead screwdriver and gloves with
rubber textured finger/hand grips. N.T. 8/22/17, pp.49-50. Police seized the items they
observed in plain view and conducted a cursory search of the cab of the vehicle for weapons.
N.T. 8/22/17, pp. 47-48. Once the pool cue and been removed from under the seat, it became
clear that it had been converted into a club to be used as a weapon. N,T. 8/22117, p. 4. Other
than the screwdriver, no other tools were foundin the truck. N.T. 8/22/17, p. 49.
The Defendant, Rodriguez and Lora were taken into custody for possession ofa
prohibited offensive weapon and possession ofa controlled substance. N:T. 8/22/17, p. 50. The
pickup truck was towed to headquarters and a search warrant was obtained. N.T. 8/22/17, p. 51.
Whe11 the search warrant was executed, police found a number ofitems concealed under the
scrap in in the bed of the truck, including pillow cases. jewelry, household items and other
valuables. N.T. 8/22/17, p. 51.
16
The Fourth Amendment of the Federal Constitution provides, ''[t]he tight of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated ... '' U.S. Const. amend. IV. Article I, Section 8 of the
Pennsylvania Constitutionstates, "[t]hepeopleshall be secure in their persons, houses, papers
and possessions from unreasonable searches and seizures ... " Pa. Const. Art. I, §8. A defendant
moving to suppress evidence seized during the course of a search has the preliminary burden of
establishing standing, i.e. a legitimate expectation of privacy in the area searched .
. Commonwealth v. Burton. 973 A.2d 428, 435 (Pa.Super.2009) (en bane). Although standing
was not raised as an issue at the time of the suppression hearing, a review of the record
establishes that the Defendant failed to establish that he had a reasonable expectation of privacy
in the pickup truck that was the subject of the challenged search. The only evidence introduced
at the suppression hearing regarding the Defendant's interest in the truck came from Officer
Kasprzyk who testified that the Defendant told him that his girlfriend owrted the truck. He did
not have registration or insurance documents for the truck and was operating the truck without
the ignition key. N.T. 8/22/17, 45-46. Officer Kasprzyk confirmed that.the registered owner of
the vehicle was Kathleen Mezaros, N.T. 8/22/17, pp. 61-62. There was no evidence that the
Defendant had permission to drive or otherwise usethat vehicle from Ms. Mezaros or from any
other person authorized to give such permission.
If a defendant does not own the vehicle that is subject to the search, he must establish that
the registered owner gave him permission to use the vehicle in order to establish a reasonable
expectation of privacy in that vehicle, The only evidence regarding the Defendant's use of the
vehicle was the Defendant's statement at the time of the stop that the truck was owned by his
girlfriend. The mere fact that a vehicle is owned by a defendant's girlfriend is insufficient to
17
establish a reasonable expectation of privacy in that vehicle. In Commonwealth v. Maldonado,
14A.3d 907, 911 (2011), the court stated,
The fact that Maldonado and Vasquez [the owner of the vehicle]
might have lived together and had a romantic relationship does not
foreclose the possibility that Maldonado was driving Vasquez's
vehicle without her knowledge or permission. For that reason, we
conclude that Maldonado failed to establish an expectation of
privacy in the vehicle he was driving, which "he did not own, that
was not registered to him, and for which he has not shown authority
to operate."
Here, the Defendant failed to establish that he had a reasonable expectation of privacy in the
pickup truck. He therefore had no standing to challenge the search of that truck.
In any case, this Court found that the seizure of the various items at the scene of the
vehicle stop was proper. There are three levels of intrusion in interactions between members of
the public and the police.
The first of these is a "mere encounter" ( or request for information)
which need not be supported by any level of suspicion, but carries
no official compulsion to stop or respond. The second, an
"investigative detention" must be supported by reasonable
suspicion; it subjects a suspect to a stop and period of detention, but
does not involve such coercive conditions as to constitute the
functional equivalent of arrest. Finally, an .arrest or "custodial
detention" must be supported by probable cause.
Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa.1995) (citations and footnote omitted).
Here, this Court found that the stop was an "investigatory detention" that was supported
by reasonable suspicion. Officer Kasprzyk was dispatched for a report of a suspicious vehicle at
a residence on River Road in Lower Makefield Township. The suspicious vehicle was described
as a red pickup truck with three occupants and a New Jersey license plate. The conduct of the
occupants was clearly suspicious. They were allegedly in search of water for their overheated
vehicle but chose to approach a home that was situated far from the road and that appeared to be
unoccupied. At the time he received this information, Officer Kasprzyk was aware that other
18
residential burglaries had occurred on River Road, in the immediate vicinity to where the call
originated. He knew that the homes had been completely ransacked and that jewelry and other
valuables had been stolen. He was aware that each of the homes had been burglarized during
daytime hours and that the burglaries were connected since they had been committed in the same
unique fashion. And finally, he was aware that the caller's residence and the homes that had
been burglarized were all in the immediate vicinity of the Township's border with Trenton, New
Jersey where similar burglaries were occurring. N .T. 8/22/17, pp .. 33� 3 9. Based on these facts
and circumstances and the reasonable inferences that arise from those facts and circumstances,
Officer Kasprzyk clearly had sufficient cause to conduct an investigatory detention when, within
minutes ofthe call, he observed the vehicle the caller had described bearing New Jersey tags
within three qua.rters of a mile of the caller's home. N.T. 8/22/17, p. 40.
Officer Kasprzyk was also entitled to stop the truck for vehicle code violations. He had
observed a turn signal violation in violation of Section 3334 of the Vehicle Code. 75 Pa.C.S.
§3334. Because no further investigation was required to establish the turn signal violation,
Officer Kasprzyk was required to have probable cause to initiate the stop. Commonwealth v.
Brown, 64 A.3d 1101, 1105 (Pa.Super.2013). Here, the officer's first hand observation of the
Defendant's failure to use his tum signal was sufficient to establish probable cause to stop the
vehicle for a violation of Section 3334. Id.In addition, Officer Kasprzyk had observed a violation of Section 4903 of the Vehicle
Code which prohibits a vehicle from being driven on any highway unless it is loaded to "prevent
any of its load from dropping, sifting, leaking or otherwise escaping," and requires "[ejvery load
on a vehicle shall be fastened so as to prevent the load or covering from becoming loose,
detached or in any manner a hazard to other users of the highway." 75 Pa.C.S. §4903(a), (b).
19
·�.
Officer Kasprzyktestimony and the photographs of the vehicle established that the bed of the
vehicle was filled with "a mound" ofloose objects, some of which extended over the top and
sides of the truck bed. N.T. 8/22/17, pp. 47, 54-55; Exs. CP-1, CP-2. The officer's first hand
observations were sufficient to establish probable cause to stop the vehicle for a violation of75
Pa.C.S. §4903(b).
If further investigation of the potential violation was needed, Officer Kasprzyk was still
entitled to stop the vehicle. A police officer is permitted by statute to conduct a vehicle stop ifhe
has reasonable suspicion to believe that a violation of the Motor Vehicle Code is occurring or has
occurred. Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2011); 75 Pa.C.S. §6308(b). It is
axiomatic that to establish reasonable suspicion, an officer "must be able to articulate something
more than an.inchoate and particularized suspicion or hunch." Commonwealth v. Williams, 125
A.3d 425, 432 (Pa.Super.2015). To establish reasonable suspicion in the vehicle stop context,
"an officer must be able to point to specific and articulable facts which led him to reasonably
suspect a violation of the Motor Vehicle Code." Id. (emphasis omitted). The test of whether an
officer had reasonable suspicion is objective and reviewed from the standpoint ofan objectively
reasonable police officer, according to the totality of the circumstances. Id. at 96. Here, the
officer's first hand observations of the unsecured load in the bed of the truck was clearly
sufficient to establish reasonable suspicion that a violation of 75 Pa.C.S. §4903(b) was occurring,
Once the vehicle was properly stopped, Officer Kasprzyk was permitted to have the
occupants step out of the truck. "[Ijtis well-established that when an officer detains a vehicle for
violation of a traffic law, it is inherently reasonable that.he or she be concerned With safety and,
as a result, may order the occupants of the vehicle to alight from the car." Commonwealth v.
Han-is, 176 A.3d 1009, 1020-21 (Pa.Super.2017) {quotation marks omitted). Once the occupants
20
had been lawfully removed from the vehicle, Officer Kasprzyk observed a makeshift weapon in
plain view. The officer's subsequent seizure of the makeshift club was permissible under the
"plain view doctrine" which allows a warrantless seizure item where:
(1) the police have not violated the Fourth Amendment in
arriving at the location from which the item could be viewed; (2)
the item is in plain view; (3) the incriminating character of the
item is immediately apparent; and (4) the police have a lawful
right ofaccess to the item itself.
Commonwealth v. Jones, 988 A.2d 649, 656 (Pa. 2010).
In addition, Officer Kasprzyk was justified in conducting a limited search for weapons
and, therefore, were entitled to search the cab interior. "[A]n officer has the right to conduct a
weapons search of an automobile if there is a reasonable belief that the suspect is dangerous and
that the suspect might gain immediate control of weapons." Commonwealth v. Boyd, 17 A.3d
1274, 1277 (Pa.Super.2011 ). Here, Officer Kasprzyk was responding to a call of a suspicious
vehicle that had approached a residence in a neighborhood where burglaries were occurring.
Those burglaries were part of a larger burglary spree which were occurring in New Jersey and
Bucks County. Upon stopping the vehicle, the officer observed all three occupants reaching
down toward the floor of the vehicle. All three continued these movements as he approached the
truck. The vehicle was being operated without an ignition key and none of the occupants
produced registration or insurance documents for the vehicle. Once the occupants were outside
the vehicle, Officer Kasprzyk saw what appeared to be a home-made weapon on the floor of the
truck. Under these circumstances, Officer Kasprzyk reasonably concluded that the occupants
posed a danger to himself and others and therefore was permitted to conduct a limited search of
the cab of the truck for weapons in any area where the occupants of the vehicle may have
reached. Commonwealth v. Morris, 644 A.2d 721, 723 (Pa. I 994) ("[A]n officer could conduct a
warrantless search of those portions of the passenger compartment of a vehicle in which a
21
.-,_
weapon could be hidden when the circumstances were such that a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or the safety of the others was in
danger, so long as this beliefwas based on specific articulable facts.") (quotation marks omitted).
Similarly, seizure of the screwdriver.gloves and women'sjewelry was also permitted
underthe plain view doctrine. Commonwealth v. Jones, supra. The officer was lawfully in a
position to see the items, the items were in plain view and their incriminating nature was
apparent. The items, considered together and considered in the light of the surrounding
circumstances, were clearly the tools and proceeds of a burglary or burglaries. Seizure of the
items at the scene of the stop was therefore permissible.
Finally, assuming arguendo that the search ofthe truck at the time of the stop was illegal,
the Defendant is still not entitled to relief. Illegally seized evidence is admissible at trial under
the inevitable discovery doctrine where the Commonwealth demonstrates by a preponderance of
the evidence that the illegally obtained evidence inevitably would have been discovered through
lawful means. Commonwealth v. Bailey, 986 A.2d 860, 862 (Pa.Super.2009). Here, the club,
jewelry, screwdriver and gloves would have been discovered during the execution of the search
warrant for the truck, the validity of which is unchallenged. The evidence was therefore properly
admitted at trial. See, Commonwealth v. Anderson, 40 A.3d 1245, 1249 {Pa,Super.2012) (drug
evidence improperly seized was admissible under the inevitable discovery doctrine since the
evidence would have been discovered during valid search).
The Defendant next challenges the admission of evidence regarding the burglary and
robbery that occurred at the residence of Mr. and Mrs. Orisack in Toms River, New Jersey on the
grounds that the evidence constituted improper character evidence in violation of Rule 404(b) of·
the Rules of Evidence. This Court found that the evidence did not constitute evidence of other
22
crimes under Rule 404(b) but rather was admissible to establish the crime of Corrupt
Organizations and was part of the ongoing Criminal Conspiracy with which the Defendant was
charged.
As previous explained, the Commonwealth was required to establish "pattern of
racketeering activity" which is defined as "a course of conduct requiring two or more acts of
racketeering activity'' in order to convict the Defendant of Corrupt Organizations. 18 Pa.C.S.
§91 l(h)(4). The crimes of Robbery and Theft constitute "racketeering activity" under the
Corrupt Organizations statute. 18 Pa.C.S. §911 (h)(l )(i). Here; the robbery and theft that
occurred at the Orisack's residence were properly admitted to establish racketeering activity.
The offenses were also committed pursuant to an ongoing criminal conspiracy and were
therefore properly admitted to prove the Criminal Conspiracy charge. "Where proof of an
offense with which a defendant is charged requires proof of another crime or wrong, evidence of
the other crime or wrong is necessarily admissible." Commonwealth v. Johnson, cited above at
144-45-.
The Orisack burglary/robbery was also admissible to prove the identity ofthe
perpetrators of the Gray burglary/robbery. It is well settled that, "[w]hile proofs concerning
distinct crimes is inadmissible solely to demonstrate a defendant's bad character or his propensity
to commit crimes ... such evidence is permitted 'to show a common plan, scheme or design
embracing commission of multiple crimes, or to establish the identity of the perpetrator, so long
as proof of one crime tends to prove the others.'" Commonwealth v. Cousar, cited above at
103 7. "Evidence of another crime is admissible where the conduct at issue is so closely related
that proof of one criminal act tends to prove the other." Commonwealth v. Natividad, 773 A.2d
167, 174 (Pa.2001 ), abrogated on other grounds by Commonwealth v. Freeman, 827 A.2d 38523
(Pa.2003). "Such evidence is particularly relevant to prove 'identity," Id e•
The similarity between the Orisack and Gray home invasion robberies was sufficient to
satisfy the common plan, scheme and design exception to the rule excluding evidence ofother
bad acts. The victims were chosen because they sold items at flea markets and dealt in cash
proceeds. Both of the homes were staked out ahead of time. Each burglary/robbery involved
elderly couples and occurred at night. In each, three members of the group entered the home,
bound the victims and went from room to room, ransacking the house. In both incidents,
firearms were used. In both, the participating conspirators left the couple tied up inside their
home and fled to Trenton to divide the proceeds. N,T. 8/22/17, pp. 5-7.
The Defendant next argues that his sentence was excessive. A challenge to an alleged
excessive sentence is a challenge to the discretionary aspects of a sentence. Commonwealth v.
Ahmad, 961 A.2d 884, 886 (Pa.Super.2008). To preserve a challenge to the discretionary
aspects of a sentence for appellate review, the claim must be raised during the sentencing
proceedings or in a post-sentence motion. Commonwealth v. Heaster, 201TPA Super 298, 171
A.3d 268 (2017). The Defendant failed to raise the claim that the sentence imposed was
excessive at the time of sentencing and in his motion for reconsideration of sentence: The claim
is therefore waived.
The Defendant's claim also lacks substantive merit. The standard of review applicable to
a challenge to the discretionary aspects of sentence is well settled. A sentence will not be
overturned unless the record shows a manifest abuse of discretion, which is more than mere error
in judgment. Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super.2015). A defendant
must establish 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.
24
Id. The decision of the sentencing judge should be given great deference since he or she is in the
best position to view the defendant and evaluate the individual circumstances of the case.
Commonwealth v. Walls, 926 A.2d 957 (Pa.2007).
As the Court in Walls explained,
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing court
is "in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it." Commonwealth v. Ward, 524 Pa. 48, 568.
A2d 1242, 1243 (1990); see also Commonwealth v. Jones, 418
Pa.Super. 93, 613 A.2d 587, 591 (1992} (enbane) (offering that the
sentencing court is in a superior position to "view the defendant's
character, displays of remorse, defiance or indifference and the
overall effect and nature of the crime."}. Simply stated, the
sentencing court sentences flesh-and-blood defendants and the
nuances of sentencing decisions are difficult to gauge from the cold
transcript used upon appellate review. Moreover, the sentencing
court enjoys an institutional advantage to appellate review, bringing
to its decisions an expertise, experience, and judgment that should
not be lightly disturbed. Even with the advent of the sentencing
guidelines, the power of sentencing is a function to be performed by
the sentencing court. Ward, 568 A.2d at 1243. Thus, rather than
cabin the exercise of a sentencing court's discretion, the guidelines
merely inform the sentencing decision. See also United States v.
Salinas, 365 F.3d 582, 588 (71h Cir.2004).
Id. at 961-962 (footnotes omitted).
When imposing a sentence, a court must consider the factors set forth in 42 Pa.C.S.
§9721 (b). Specifically, the court is required to consider the protection ofthe public, the gravity
of the offense as it relates to the impact on the victim and the community, the defendant's
rehabilitative needs and the sentencing guidelines. 42 Pa.C.S. §9721 (b). As to the sentencing
guidelines, the court in Walls reaffirmed that the guidelines "have no binding effect, create no
presumption in sentencing, and do not predominate over other sentencing factors - they are
advisory guideposts that are valuable, may provide an essential starting point, and that must be
25
respected and considered; they recommend, however, rather than require a particular sentence."
Walls, 926A.2d at 964-965. Where the sentence imposed is within the sentencing guidelines,
the sentence must be affirmed unless an appellate court finds "the case involves circumstances
where the application of the guidelines would be clearly unreasonable." 42 Pa.C.S. §9781(c)(2)
( emphasis added). Where the sentence imposed exceeds the sentencing guidelines, the sentence
is reviewed to determine if it is "unreasonable." Walls, 926 A.2d at 963; 42 Pa.C.S.
§9781(c)(3). The parameters of that inquiry were explained as follows:
... we decline to fashion any concrete rules as to the
unreasonableness inquiry for a sentence that falls outside of
applicable guidelines under Section 978l(c)(3). We are of the view,
however, that the Legislature intended that considerations found in
Section 9721 inform appellate review for unreasonableness. That is,
while a sentence may be found to be unreasonable after review of
Section 9781 (d)'s four statutory factors, in addition a sentence may
also be unreasonable if the appellate court finds that the sentence
was imposed without express or implicit consideration by the
sentencing court of the general standards applicable to sentencing
found in Section 9721, i.e., the protection of the public; the gravity
of the offense in relation to the impact on the victim and the
community; and the rehabilitative needs of the defendant. 42
Pa.C.S. § 972l(b).
Id. at 963-964. The existence of a pre-sentence report creates a presumption that the sentencing
court was aware of the relevant information regarding the Defendant's character and weighed
those considerations along with mitigating statutory factors. Commonwealth v. Devers, 546
A.2d 12, 18 (Pa.1988).
ln the instant case, the following sentences were imposed:
Burglary of the Harris residence on July 30, 2012: 14 to 28
months;
Burglary of the Carr residence on August 8, 2012: 14 to 28
months;
Burglary ofthe Zeweresidence on August 21, 2012: 14 to 28
· months;
26
Burglary of the Abramson residence on September 1, 2012: 14 to
28 months;
Burglary of the Stone residence on September 3, 2012: 14 to 28
months.
Robbery of Rebecca and Harvey Gray on September 10, 2012: 60
to 120 months;
Burglary ofthe Gray residence on September 10, 2012: 24 months
to 48 months.
These sentences were imposed consecutive to one another. N.T. 11/28/17, pp. 35-39. For the
crime of Corrupt Organizations, the Defendant was sentenced to a term of probation of 20 years
to run concurrent to the sentences of incarceration." N.T. 11./28/12, pp. 40, 46.
The sentences imposed on the Burglary convictions were within the standard range of the
sentencing guidelines.5 Therefore, the only issue as to the sentences imposed for these crimes is
whether "the case involves circumstances where the application of the guidelines would be
clearly unreasonable." 42 Pa.C.S. § 9781(c)(2) (emphasis added). The sentence imposed on the
Robbery conviction exceeded the sentencing guidelines.6 The issue is therefore whether the
sentence imposed is "unreasonable." Walls, 926A.2d at 963; 42 Pa.C.S. §9781(c)(3).
In imposing these sentences, this Court considered all of the factors set forth in the
Sentencing Code, i.e., the gravity of the offense in relation to the impact on the victim and the
communityrand the rehabilitative needs of the Defendant. N.T. I 1/28/17, pp. 16-36. The crimes
4
The sentence imposed for Corrupt Organizations was below the mitigated range of the sentencing guidelines. The
guidelines called for: mitigated> 12 months; standard - 21-28 months; aggravated - 37 months.
5 The guidelines for Burglary of the unoccupied residences (Le., the Harris, Carr, Zewe, Abramson and Stone
residences) called for: mitigated - RS; standard- 6 to 14 months; aggravated - 20 months. The guidelines for
Burglary of an occupied residence (i.e., the Gray residence) called for: mitigated - RS; standard - 12 to 24 months;
aggravated - 36 months.
6 The guidelines for Robbery called for: mitigated - 6 months; standard - 12 to 20 months; aggravated- 26 months.
The guideline ranges set forth in the Presentence Investigation Report and utilized by the Court for the crime of
Robbery were incorrect. The guidelines reflected an Offense Gravity Score for Robbery-finflicting serious bodily
injury), 18 Pa.C.S. §3701 (a)( l)(i). However, demurrer was granted as to that offense and the lesser included offense
of Robbery (inflicting bodily injury), 18 Pa.CS. §370 I (a){ l)(iv), was submitted to the jury. The resulting change in
the guidelines does not alter this Court's view as to the appropriate sentence for this conviction. It was this Court's
intention to impose a minimum sentence of five years based on the facts and circumstances of this case.
27
themselves were sophisticated, well planned and carried out with speed and precision. To avoid
suspicion as they drove through residential neighborhoods looking for homesto burglarize, the
conspirators used the necessary props to blend into the neighborhood, appearing to be yard
workers or handymen. Once a home was selected and determined to be unoccupied, they acted
quickly, ransacking the home and removing portable valuables in bags taken from inside the
residence. Communication was maintained by the use of two-way radios. The burglaries were
committed in less than five minutes to reduce the risk of apprehension.
The gravity of the offenses as related to the impact on the community was also noted.
The Defendant and his co-conspirators created an organization designed to prey Oil the
community, relentlessly and violently, without justification or excuse. They did so forthe sole
purpose of making easy money. The areas affected in that part of Bucks County and in adjoining
areas in New Jersey, were subjected to a crime spree of felonies, undermining their ability to feel
safe and secure in their own homes. Handguns that had been taken during the burglaries are now
presumably on the street. The victims collectively suffered property loss $84, 136.96. More
importantly, they lost items of sentimental value that are irreplaceable. Even after law
enforcement intervened on September 3, 2012, the organization's criminal activity did not abate,
in fact, it escalated. Unsatisfied with the money they were making by committing daytime
burglaries of unoccupied residences, the group targeted specific individuals they believed would
have large amounts of cash and jewelry in their homes. They began to enter homes armed,
binding and terrorizing the homeowners and forcing them to tum over their money and other
valuables. In addition to removing drawers and throwing personal belongings on the floor in
their Search for valuables, the participants tore down drywall looking for hidden valuables. This
Court specifically commented on the violence and cruelty of the crimes inflicted upon the Grays.
28
These victims were seniors who the Defendant had no reason to believe could survive the type of
physical and mental mistreatment they were subjected to at the hands of the Defendant and his
co-conspirators. One victim told the Court, ''They were surprised they survived. They were
ready to die." N.T. 11/28/17, p. 30.
Under the facts and circumstances of this case, a sentence for each burglary within the
standard range of the sentencing guidelines cannot be deemed "clearly unreasonable." 42
Pa.C.S. §9781(c)(2) (emphasis added). A sentence outside the sentencing guidelines for the
charge of Robbery cannot be deemed "unreasonable? 42 Pa.C.S. §9781(c)(3) (emphasis
added}. The fact that the sentences ofincarceration were imposed to run consecutively does not
alter that conclusion, These were separate felony offenses, committed on different dates, against
different victims, which caused unique, particularized harm. Separate and distinct felony
offenses which cause separate and distinct harms call for imposition of separate and distinct
sentences. See Commonwealth v. Swope, 123 A.3d 333, 341 (Pa.Super.2015) (citation omitted)
("Appellant is not entitled to a volume discount for his crimes.").
In his final allegation of error, the Defendant asserts the evidence was insufficient to
sustain a criminal conviction on all charges. The standards for evaluating the sufficiency of the
evidence are well established. Where the evidence admitted attrial, and allreasonable
inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict-
winner, are sufficient to enable the factfinder to conclude that the Commonwealth established all
of the elements of the offense beyond a reasonable doubt, there is sufficient evidence to sustain a
conviction. Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014) cert. denied Martin v.
Pennsylvania, 136 S. Ct. 201, 193 L. Ed. 2d 155 (2015} The Commonwealth may sustain its
burden of proof by means of wholly circumstantial evidence. Id. Moreover, the evidence need
29
not preclude every possibility of innocence. Any doubts regarding a defendant's guilt maybe
resolved by the factfirider 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. Commonwealth v.
Gooding. 818 A.2d 546, 549 (Pa.Super.2003). In determining the credibility of witnesses and
the weight of the evidence, the finder of fact is free to believe all, part or none of the evidence.
Commonwealth v. Martin, supra.
In his statement of matters complained of on appeal, the Defendant.has failed to identify
which elements of which charges the Commonwealth has failed to prove. A Rule 1925(b)
statement must state with specificity the element or elements upon which the appellant alleges
that the evidence was insufficient. Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa.Supef.2016),
appeal denied sub nom. Commonwealth v. Stiles, 163 A.3d 403 (Pa. 2016). A failure to do so
risks waiver of the issue. Id. In Commonwealth v. Freeman, 128 A.3d 1231, 1247-1248
(Pa.Super.2015), the court found that the appellant's claim that "the evidence attrial was
insufficientto sustain a conviction of the crimes charged" was too vague to warrant meaningful
review and therefore held thattheappellant waived that claim. Id. at 1247-1248. In doing so,
the Court stated,
The Pennsylvania Supreme Court has explained that Rule 1925 is a
crucial component of the appellate process, which "is intended to
aid trial judges in identifying and focusing upoh those issues which
the parties plan to raise on appeal." Commonwealth v. Lord, 553
Pa. 415, 719 A.2d 306, 308 (1998). "When an appellant fails
adequately to identify in a concise manner the issues soughtto be
pursued on appeal, the trial court is impeded in its preparation ofa
legal analysis which is pertinent to those issues.'' In re Estate of
Daubert, 757 A.2d 962, 963 (Pa.Super.2000). "In other words, a
Concise Statement which is too vague. to allow the court to identify
the issues raised on appeal is the functional equivalent of no Concise
Statement at all." Commonwealth v. Dowling, 778 A.2d 683, 686
(Pa.Super.2001).
30
.. -,,.
Id. at 1248. In the instant case, twenty-nine separate criminal offenses were submitted to the jury.
The Defendant's bald allegation of insufficiency without specifying which element or elements of
the relevant crimes the Commonwealth failed to prove is too vague to allow this Court to identify
the issue raised and therefore cannot support a claim for relief.
The only claims this Court can address are those claims raised by the Defendant at the
close of the Commonwealth's case. At that time, the Defendant demurred to the charge of
Corrupt Organizations arguing that there was no testimony that the Defendant received any
money or thatthe funds were reinvested in the criminal organization. N.T. 8/25/17, pp. 21-22.
As to the Burglary charges, the Defendant asserted there was no evidence as to which houses the
Defendant entered. N.T. 8/25/17, pp. 21-23.
The crime of corrupt organizations is codified at Section 91 l of the Crimes Code, which
provides, in relevant part:
It shall be unlawful for any person who has received any income derived,
directly or indirectly, from a pattern of racketeering activity in which such
person participated as a principal, to use or invest; directly or indirectly, any
part of such income, or the proceeds of such income, in the acquisition of
any interest in, or the establishment or operation of, any enterprise.
18 Pa.C.S. §911 (b )(1 ). The Defendant's assertion that there was no evidence that he received any
of the proceeds of the burglaries is belied by the record. Co-conspirators Raymond Munn,
Christopher Upshur and Chris Rodriguez all testified that the proceeds of the burglaries were
distributed among the group and identified the Defendant as a member of that group. The
element that the Defendant received income from the racketeering activity was therefore
established. His claim that there was no evidence that funds were reinvested into the organization
is also belied by the record. In dividing proceeds, members of the organization received a share
whether or notthey participated in a specific burglary, so as "to look out for one another." N.T.
31
8/24/17, p. 89. Based on this evidence, the jury could reasonably find that the organization used
its income to maintain its membership and thus continue its operations. The element that the
Defendant directly or indirectly reinvest in the enterprise was therefore established.
With regard tothe Burglary convictions, while the evidence did not place the defendant at
the scene of each burglary, the evidence clearly established that he was a member of an ongoing
conspiracy that came together to commit residential burglaries. A conspiracy is established
where, "The defendant entered an agreement to commit or aid in an unlawful act with another
person or persons with a shared criminal intent and an overt act was do rte in furtherance of the
conspiracy." Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super.2002).
The essence of a criminal conspiracy is the common understanding
that a particular criminal objective is to be accomplished. Mere
association with the perpetrators, mere presence at the scene, or
mere knowledge of the crime is insufficient. Rather, the
Commonwealth must prove that the defendant shared the criminal
intent, i.e., that the Appellant was an active participant in the
criminal enterprise and that he had knowledge of the conspiratorial
agreement. The defendant does not need to commit the overt act; a
co-conspirator may commit the overt act.
Id. (internal citations and quotation marks omitted). "Once there is evidence of the presence of a
conspiracy, conspirators ate liable fot acts of co-conspirators committed in furtherance of the
conspiracy," whether or not the conspirator acted as a principal in the commission of the
underlying crime. Id.Here, the evidence established that the Defendant, Lora, Munn, Upshur and Rodriguez
entered into an agreement to commit residential burglaries and that the Defendant was. an active
participant in that enterprise, Each burglary for which the Defendant was convicted was
committed in furtherance of that conspiracy. Accordingly, the Defendant was criminally liable
for each burglary that was committed.
32
33
For the reasons set forth above, this Court found the Defendant's claims to be without
merit.
BY THE COURT:
J-+- 3, i B
Date
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DIANE E. GIBBONS,
�Lk�xid
L :r.- ..
Antonetta Stancu, Chief Deputy District Attorney
Bucks County District Attorney's Office
100 N. Main Street
Doylestown PA 18901
SharifN. Abaza, Esquire
244 East Court Street
Doylestown PA 1890 I