Com. v. Cherry, G. ( 2018 )

J-S48033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GERALD CHERRY :
:
Appellant : No. 2591 EDA 2017
Appeal from the Judgment of Sentence July 12, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0008501-2016
BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED OCTOBER 10, 2018
Appellant, Gerald Cherry, appeals from the judgment of sentence
imposed following his non-jury trial conviction of burglary, criminal trespass,
and receiving stolen property.1 Specifically, he challenges the sufficiency of
the evidence to sustain his conviction, and argues that his sentence is illegal.
We affirm in part and vacate in part.
We take the factual and procedural history in this matter from our
review of the certified record and the trial court’s December 15, 2017 opinion.
Appellant was arrested in relation to a burglary of a convenience store. During
a non-jury trial on May 8, 2017, the Commonwealth introduced the testimony
of Ms. Maria Prats, the storeowner. She testified that during the night between
August 16 and 17, 2016, the back door of her convenience store was broken
____________________________________________
1 18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(ii), and 3925(a), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S48033-18
into and many items were taken from the store. (See N.T. Trial, 5/08/17, at
6-8). She confirmed that she had video surveillance of the store, and stated
that the two men who were on the video tape during the burglary were not
permitted to be in the store. (See id. at 9-15). Ms. Prats was not initially
able to identify either man in the video. On cross-examination, she
acknowledged that Appellant was a regular customer in the store, and on re-
direct examination, stated that he was one of the people on the surveillance
video. (See id. at 20-22).
One of the men in the surveillance video had a distinctive tattoo on one
of his forearms and, prior to resting, the Commonwealth requested that
Appellant display the tattoo on his arm for the court. (See id. at 23).
Appellant testified on his own behalf concerning the tattoo, and stated that
other people in his neighborhood have the same tattoo and it is available in
several tattoo parlors. (See id. at 24-25). At the conclusion of trial, the
court found Appellant guilty of all charges. (See id. at 31).
On July 12, 2017, the court imposed a sentence of not less than two
and one-half years nor more than five years’ imprisonment for burglary,
followed by a consecutive sentence of five years of probation for criminal
trespass, and five years of probation for receiving stolen property, concurrent
to the other probation sentence. Appellant did not file a post-sentence motion.
This timely appeal followed.
On September 13, 2017, the court issued an order directing that
Appellant file a concise statement of errors pursuant to Rule 1925(b) no later
-2-
J-S48033-18
than twenty-one days after entry of its order. The trial court entered its
opinion on December 15, 2017, noting that Appellant had failed to comply
with its order and timely file a statement of errors. See Pa.R.A.P. 1925(a).
Appellant filed his concise statement of errors complained of on appeal on
December 19, 2017. See Pa.R.A.P. 1925(b).2
Appellant raises three issues on appeal.
1. Was not the evidence legally insufficient to establish
[Appellant’s] identity as one of the men who committed the
crimes?
2. Does not a misdemeanor theft charge, based on a theft being
the intended crime committed in a burglary, merge for
sentencing with a burglary sentence under 18 Pa.C.S.[A.] §
3502(d)?
3. Did not the conviction for criminal trespass merge for
sentencing with burglary under 42 Pa.C.S.[A.] § 9765, and
would not a contrary ruling require that the statute be declared
unconstitutional on its face or as applied under the
Pennsylvania Constitution as a violation of separation of powers
and double jeopardy rights?
(Appellant’s Brief, at 2) (unnecessary capitalization omitted).
Appellant’s first issue challenges the sufficiency of the evidence to
support his conviction, for which our standard of review is well settled.
The standard we apply . . . is whether viewing all the
evidence admitted at trial in the light most favorable to the verdict
winner, there is sufficient evidence to enable the fact-finder to find
____________________________________________
2 Although Appellant failed to comply with the court’s order and timely file his
Rule 1925(b) statement, we decline to find that he waived his issues because
the trial court was able to adequately address Appellant’s sufficiency of the
evidence claim, and Appellant’s challenges to the legality of his sentence are
not waivable. See Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.
Super. 2001).
-3-
J-S48033-18
every element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence and
substitute our judgment for the fact-finder. In addition, we note
that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
Any doubts regarding a defendant’s guilt may be resolved by the
fact-finder unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part or
none of the evidence.
Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa. Super. 2011) (en banc),
appeal denied, 54 A.3d 348 (Pa. 2012) (citation and emphases omitted).
Appellant challenges the sufficiency of the identification evidence
against him. (See Appellant’s Brief, at 9-13). Specifically, he argues that Ms.
Prats was initially unable to identify either man in the surveillance video, and
only on redirect examination stated that the man in the darker shirt was
Appellant. (See id. at 9-10). Further, he claims that the similarity between
the tattoo on his arm, which he displayed during trial, and the tattoo on the
perpetrator’s arm, was insufficient to establish his identity. (See id. at 10-
12). We disagree.
“[E]vidence of identification need not be positive and certain to sustain
a conviction.” Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa. Super.
2008), appeal denied, 962 A.2d 1196 (Pa. 2008) (citation omitted).
Furthermore, “[a]lthough common items of clothing and general physical
-4-
J-S48033-18
characteristics are usually insufficient to support a conviction, such evidence
can be used as other circumstances to establish the identity of a perpetrator.”
Orr, supra at 874 (citation omitted).
In the instant case, the Commonwealth presented a surveillance video,
which depicted the perpetrator’s image, (see N.T. Trial, at 10-15), the
testimony of Ms. Prats, who explained that Appellant, who was a regular
customer in her store, was the person she saw on the surveillance video, (see
id. at 21-22), and evidence of Appellant’s tattoo on his left arm, which was
similar to the tattoo on the left arm of the perpetrator in the video. (See id.
at 23).
Upon review, considering all circumstantial evidence in the light most
favorable to the Commonwealth as verdict winner, we conclude that the
evidence was sufficient to establish Appellant’s identity as one of the
perpetrators of the burglary, and to sustain his conviction. See Orr, supra
at 872-74. Appellant’s first issue does not merit relief.
In his second issue, Appellant challenges the legality of his sentence.
Specifically, he argues that his misdemeanor theft by receiving stolen property
count should have merged for sentencing with his burglary count. (See
Appellant’s Brief, at 13-14). The Commonwealth concedes that the charges
should have merged for sentencing. (See Commonwealth’s Brief, at 11). We
agree.
18 Pa.C.S.A. § 3502 states: “A person may not be sentenced both for
burglary and for the offense which it was his intent to commit after the
-5-
J-S48033-18
burglarious entry or for an attempt to commit that offense, unless the
additional offense constitutes a felony of the first or second degree.” 18
Pa.C.S.A. § 3502(d); see Commonwealth v. Diaz, 867 A.2d 1285, 1288
(Pa. Super. 2005) (holding that theft that occurred during course of burglary
merges with corresponding burglary).
In the instant case, it is clear that Appellant’s intent in burglarizing the
store was to commit theft. Accordingly, based on section 3502(d), he should
not have been sentenced for both the burglary and the misdemeanor theft
conviction. Thus, we vacate Appellant’s sentence of five years of probation
for theft. However, because this probationary sentence was imposed
concurrent to a five-year probationary sentence for criminal trespass, vacation
of Appellant’s theft sentence does not upset the trial court’s sentencing
scheme. Therefore, we are not required to remand to the trial court. See
Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006), appeal
denied, 946 A.2d 687 (Pa. 2008) (“[I]f our decision does not alter the overall
scheme, there is no need for a remand.”) (citation omitted).
In his third issue, Appellant argues that his conviction of criminal
trespass should merge with his conviction for burglary for sentencing
purposes. (See Appellant’s Brief, at 14-29). Appellant acknowledges that
this Court has held that criminal trespass does not merge with burglary for
sentencing purposes, but “wishes to preserve this issue . . . for en banc
consideration and Supreme Court review.” (Id. at 15). In addition, Appellant
argues that “the legislative enactment, 42 Pa.C.S.[A.] § 9765, is
-6-
J-S48033-18
unconstitutional on its face or as applied, because it violates separation of
powers and double jeopardy rights guaranteed by the Pennsylvania
Constitution.” (Id. at 21) (unnecessary capitalization omitted). Appellant’s
claim does not merit relief.
A claim that crimes should have merged for sentencing
purposes raises a challenge to the legality of the sentence.
Commonwealth v. Allen, 24 A.3d 1058, 1062 (Pa. Super.
2011). Therefore, our standard of review is de novo and our scope
of review is plenary. Id.The Crimes Code defines burglary as follows:
§ 3502. Burglary
(a) Offense defined.—A person is guilty of burglary
if he enters a building or occupied structure, or
separately secured or occupied portion thereof, with
intent to commit a crime therein, unless the premises
are at the time open to the public or the actor is
licensed or privileged to enter.
18 Pa.C.S.A. § 3502(a).
The Crimes Code defines criminal trespass as follows:
§ 3503. Criminal trespass
(a) Buildings and occupied structures.—
(1) A person commits an offense if,
knowing that he is not licensed or
privileged to do so, he:
(i) enters, gains entry by subterfuge or
surreptitiously remains in any building or
occupied structure or separately secured
or occupied portion thereof; or
(ii) breaks into any building or occupied
structure or separately secured or
occupied portion thereof.
18 Pa.C.S.A. § 3503(a)(1).
-7-
J-S48033-18
Whether these two offenses merge will turn on Section 9765
of the Sentencing Code, which addresses merger and provides:
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless
the crimes arise from a single criminal act and all of
the statutory elements of one offense are included in
the statutory elements of the other offense. Where
crimes merge for sentencing purposes, the court may
sentence the defendant only on the higher graded
offense.
42 Pa.C.S.A. § 9765 (emphasis added).
Commonwealth v. Quintua, 56 A.3d 399, 400-01 (Pa. Super. 2012), appeal
denied, 70 A.3d 810 (Pa. 2013).
In Quintua, this Court considered the same issue raised in this matter,
whether criminal trespass and burglary should merge for sentencing purposes.
The Quintua Court stated that our Supreme Court in Commonwealth v
Baldwin, 985 A.2d 830 (Pa. 2009), held that the plain language of section
9765 demonstrated “a legislative intent ‘to preclude the courts of this
Commonwealth from merging sentences for two offenses that are based on a
single criminal act unless all of the statutory elements of one of the offenses
are included in the statutory elements of the other.’” Quintua, supra at 401(quoting Baldwin, supra at 837).
The Quintua Court then applied Pennsylvania’s merger law and
concluded that:
[e]xamining the elements of criminal trespass, a conviction
for that offense requires a person: (1) to break or enter into with
subterfuge any building or occupied structure; (2) knowing he is
not licensed or privileged to do so. See 18 Pa.C.S.A. §
3503(a)(1). On the other hand, to commit burglary, a person
-8-
J-S48033-18
must: (1) enter a building or occupied structure; (2) with intent
to commit a crime therein. See 18 Pa.C.S.A. § 3502(a). The plain
language of the respective statutes demonstrates why they do not
merge. Criminal trespass contains an element of knowledge—a
person committing that offense must know he is not privileged to
enter the premises. Burglary has no such knowledge requirement.
Burglary does, however, require intent to commit a crime within
the premises, an element that criminal trespass lacks. As each
offense requires proof of an element the other does not, the
sentences should not merge.
Id. at 402 (case citation omitted).
Instantly, Appellant has acknowledged that this Court is bound by the
Quintua Court’s rulings. (See Appellant’s Brief, at 15). We agree, and thus
conclude that, because criminal trespass does not merge with burglary,
Appellant’s third issue is meritless.3
Judgment of sentence affirmed in part and vacated in part.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/18
____________________________________________
3 To the extent that Appellant attempts to argue an issue concerning the
constitutionality of section 9765, adopting the separation of power and double
jeopardy concerns raised by Chief Justice Castille’s concurrence in Baldwin,
(see Appellant’s Brief, at 21-29), we find that argument waived for failure to
raise it before the trial court. See Commonwealth v. Cline, 177 A.3d 922,
927 (Pa. Super. 2017), appeal denied, 187 A.3d 210 (Pa. 2018) (“The law is
clear that issues, even those of constitutional dimension, are waived if not
raised in the trial court.”) (citation and internal quotation marks omitted); see
also Pa.R.A.P. 302(a).
-9-