Com. v. Wilson, N. ( 2023 )

J-S07044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NICHOLAS ANTHONY WILSON :
:
Appellant : No. 1589 EDA 2022
Appeal from the Judgment of Sentence Entered January 18, 2022
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0004629-2020
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED AUGUST 28, 2023
Appellant, Nicholas Anthony Wilson, appeals from the judgment of
sentence imposed by the Bucks County Court of Common Pleas, following his
jury trial convictions for burglary, criminal trespass, criminal attempt to
commit a theft by unlawful taking of movable property, and criminal attempt
to receive stolen property.1 We affirm.
The trial court set forth the relevant facts and procedural history in this
matter as follows:
On March 18, 2020, Warminster Township Police
Department responded to a report of a burglary in progress.
(N.T. Trial, 8/9/21, at 59). Victim reported that she had left
her house to go grocery shopping for about thirty (30)
minutes. (Id. at 18). Victim had left her seventeen (17)
year old son home. (Id. at 16, 18). When she returned
home from grocery shopping her front door was open. (Id.
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1 18 Pa.C.S.A. §§ 3502(a)(1)(ii), 3503(a)(1)(i), and 901(a) respectively.
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at 21). She entered her home and found Appellant, a man
who she did not know and had never seen before, inside her
house. (Id. at 21-22). Appellant was holding a yoga mat,
hoverboard, and a pair of UGGs in a box, which belonged to
the Victim and her family. (Id. at 22). Victim told Appellant
to leave her home and she followed him out. (Id. at 26).
She then called 911. (Id. at 27). Appellant proceeded to
leave the residence before police officers arrived. (Id. at
86-87). Victim’s son was in the home throughout the entire
ordeal. (Id. at 62).
* * *
Prior to Appellant’s jury trial, Appellant was offered a
negotiated guilty plea by the Commonwealth. Before the
start of the jury trial, this [c]ourt ensured Appellant was
aware that if he was found guilty by a jury, he would be
subject to a mandatory minimum sentence. Appellant, after
knowingly and intelligently acknowledging the mandatory
minimum, refused the negotiated guilty plea and proceeded
to trial.
On August 9, 2021, Appellant’s jury trial began. On August
10, 2021, the jury found him guilty as to burglary of
overnight accommodations with a person present, criminal
trespass by entering a structure, criminal attempt to commit
a theft by unlawful taking of movable property, and criminal
attempt to receive stolen property. Sentencing was
deferred at the request of Appellant.
On August 11, 2021, the Commonwealth filed notice of
mandatory minimum sentence, which stated:
1. In the event of conviction of the crime of burglary
(F1), 18 Pa.C.S. § 3502(a)(1)(ii) as charged in the
above-captioned criminal case, the court is required
by law to sentence [Appellant], who has been
previously convicted of a crime of violence
(aggravated assault, (F1), 18 Pa.C.S. § 2702(a)(1)),
in accordance with Section 9714 of Title 42 of the
Pennsylvania Consolidated Statutes, (Sentences for
second and subsequent offenses), which requires the
imposition of a minimum sentence of at least ten (10)
years’ incarceration. 42 Pa.C.S. § 9714(a)(1).
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Sentencing was originally scheduled for November 22,
2021, this was continued at the request of Appellant. On
January 18, 2022, Appellant requested another continuance
of sentencing. [The trial] court denied that request and
sentencing proceeded on that day. Appellant was then
sentenced to a period of ten to twenty years’ imprisonment
at a state correctional institution on the charge of burglary,
all other charges merged with the burglary charge.
Appella[nt] was given credit for time-served between March
18, 2020 (his initial date of incarceration) through July 9,
2020 (the date he received bail), as well as credit for time-
served between May 20, 2021 (his date of re-incarceration
after violating the terms of his bail) through January 18,
2022 (the date of this sentencing).
On January 26, 2022, Appellant filed a motion to modify
and/or reconsider sentence and a motion to bar application
of mandatory minimum sentencing statute. [The trial] court
held a hearing for reconsideration of sentence on May 20,
2022. On that day, [the trial] court denied Appellant’s
motions. Subsequently, Appellant filed notice of this appeal
on June 17, 2022. On June 21, 2022, [the trial] court filed
an order for a concise statement. Appellant filed his concise
statement of errors complained [of] on appeal on November
1, 2022.
(Trial Court Opinion, filed 11/21/22, at 1-3) (record citation formatting
provided; footnotes and unnecessary capitalization omitted).
Appellant raises the following four issues on appeal:
A. Was the verdict of guilty of burglary supported by
sufficient evidence?
B. Did the trial court err in precluding Appellant from
presenting evidence regarding a large monetary judgment
he received on the day of the incident?
C. Did the trial court err in admitting the testimony of
Detective Bunda regarding DNA evidence?
D. Did the trial court err in imposing a mandatory minimum
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sentence in violation of the United States and Pennsylvania
Constitutions’ prohibitions against cruel and unusual
punishment?
(Appellant’s Brief at 8) (unnecessary capitalization omitted).
In his first issue, Appellant contends that the evidence presented by the
Commonwealth at trial was insufficient to establish his guilt of burglary.
Appellant asserts that the Commonwealth failed to prove the requisite mens
rea, namely, that he entered the house with the intent to commit a crime
therein. Appellant insists that his actions at the time of the incident do not
support an inference that he had the intent to commit a crime inside the home.
Specifically, Appellant maintains that he entered the home because the door
was unlocked and there was a “for sale” sign on the property. Appellant
emphasizes that he did not attempt to conceal his identity, and he left the
premises when Victim asked him to do so. Appellant concludes the evidence
was insufficient to support his burglary conviction, and this Court must grant
relief. We disagree.
In reviewing a challenge to the sufficiency of the evidence, our well-
settled standard of review is as follows:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence. Evidence will be deemed sufficient to support the
verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. Any doubt about the defendant’s guilt is to be
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resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that
the evidence establishing a defendant’s participation in a
crime is circumstantial does not preclude a conviction where
the evidence coupled with the reasonable inferences drawn
therefrom overcomes the presumption of innocence.
Significantly, we may not substitute our judgment for that
of the fact finder; thus, so long as the evidence adduced,
accepted in the light most favorable to the Commonwealth,
demonstrates the respective elements of a defendant’s
crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.
Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019)
(quoting Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa.Super.
2013)).
The version of Section 3502 of the Crimes Code that was in effect at the
time of Appellant’s offenses defined burglary, in relevant part, as follows:
§ 3502. Burglary
(a) Offense defined.—A person commits the offense of
burglary if, with the intent to commit a crime therein, the
person:
(1)(i) 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 and the person commits,
attempts or threatens to commit a bodily injury crime
therein;
18 Pa.C.S.A. § 3502(a)(1)(i) (effective Jan. 3, 2017 to Sept. 8, 2022).
The Commonwealth is not required to specify what crime a defendant is
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intending to commit and it need not prove the underlying crime in order to
sustain a conviction. Commonwealth v. Brown, 886 A.2d 256, 260
(Pa.Super. 2005), appeal denied, 588 Pa. 743, 902 A.2d 969 (2006). Rather,
“[t]he intent to commit a crime after entry may be inferred from the
circumstances surrounding the incident.” Commonwealth v. Lambert, 795
A.2d 1010, 1022 (Pa.Super. 2002), appeal denied, 569 Pa. 701, 805 A.2d 521(2002) (citation omitted). “While this intent may be inferred from actions as
well as words, the actions must bear a reasonable relation to the commission
of a crime. Once one has entered a private residence by criminal means, we
can infer that the person intended a criminal purpose based upon the totality
of the circumstances.” Id. (citations omitted).
Instantly, Appellant entered the house of a stranger and gathered
several items—a yoga mat, a hoverboard, and a pair of UGG boots—all without
permission. Viewed in the light most favorable to the Commonwealth as
verdict winner, it was reasonable for the jury to infer that under the totality
of the circumstances, Appellant intended to commit a crime in the home. See
Sebolka, supra; Lambert, supra. Accordingly, Appellant’s first issue is
meritless.
In his second issue, Appellant argues that the trial court erred when it
precluded him from offering evidence of a monetary judgment which he had
learned he was entitled to earlier on the day of the events at issue. Appellant
claims that this evidence was relevant to whether he would have entered the
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home with an intent to commit a theft. Appellant insists he had a right to
present this relevant evidence in his defense. Appellant concludes the court’s
evidentiary ruling was erroneous, and this Court must grant relief. We
disagree.
When reviewing the admission or exclusion of evidence, our standard of
review is well established and very narrow:
Admission of evidence is a matter within the sound
discretion of the trial court, and will not be reversed absent
a showing that the trial court clearly abused its discretion.
We can affirm the court’s decision if there is any basis to
support it, even if we rely on different grounds to affirm.
Not merely an error in judgment, an abuse of discretion
occurs when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will, as shown by
the evidence on record.
Commonwealth v. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009),
cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal
citations and quotation marks omitted). Our scope of review in cases where
the trial court explains the basis for its evidentiary ruling is limited to an
examination of the stated reason. Commonwealth v. Stephens, 74 A.3d
1034, 1037 (Pa.Super. 2013). “We must also be mindful that a discretionary
ruling cannot be overturned simply because a reviewing court disagrees with
the trial court’s conclusion.” Commonwealth v. O’Brien, 836 A.2d 966, 968
(Pa.Super. 2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004).
Pennsylvania Rule of Evidence 401 defines relevant
evidence as “evidence having any tendency to make the
existence of any fact that is of consequence to the
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determination of the action more probable or less probable
than it would be without the evidence.” Pa.R.E. 401.
Building upon this definition, Rule 402 provides, in full, as
follows: “All relevant evidence is admissible, except as
otherwise provided by law. Evidence that is not relevant is
not admissible.” Pa.R.E. 402. Thus, while the general rule
of the admissibility of relevant evidence is subject to various
exceptions, the rule that irrelevant evidence is not
admissible is categorical. Accordingly, “[t]he threshold
inquiry with admission of evidence is whether the evidence
is relevant.” Commonwealth v. Collins, 585 Pa. 45, 888
A.2d 564, 577 (2005); Commonwealth v. Treiber, 582
Pa. 646, 874 A.2d 26, 32 (2005); Commonwealth v.
Robinson, 554 Pa. 293, 721 A.2d 344, 350 (1998).
Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008).
Instantly, the trial court stated that it excluded Appellant’s proposed
testimony that he was getting a $10,000.00 judgment “because it is irrelevant
to the case at hand.” (Trial Court Opinion at 10). The court continued that
“[t]he fact that Appellant had a piece of paper stating that at some point in
the future he may receive $10,000 does not tend to make it more or less
probable that he committed a burglary on the date in question.” (Id.) We
see no abuse of discretion in the court’s evidentiary ruling.2 See Cook,
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2 In support of this issue, Appellant relies on Commonwealth v. Yale, ___
Pa. ___, 249 A.3d 1001 (2021). In Yale, the Pennsylvania Supreme Court
considered whether a defendant was entitled to introduce evidence of third
person guilt to show that the defendant was not the perpetrator of the crime
charged. Our Supreme Court held that the heightened standard for
admissibility of “bad acts” evidence under Rule 404(b) did not apply to
evidence introduced against a third party, rather than the defendant. The
Court concluded that determining the admissibility of third person guilt
evidence requires nothing more than the traditional inquiries prompted by
Rules 401, 402 and 403. Yale, supra at ____, 249 A.3d at 1022.
(Footnote Continued Next Page)
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supra. See also Montalvo, supra. Thus, Appellant’s second issue merits
no relief.
In his third issue, Appellant claims that the trial court erred when it
permitted the Commonwealth to introduce testimony from Officer Bunda that
DNA testing of swabs collected at the residence would have cost hundreds or
thousands of dollars. Appellant insists that evidence concerning the cost of
DNA testing was irrelevant and inadmissible. He further argues that admitting
the testimony suggested that the Commonwealth would be relieved of its
burden of proof if recovering evidence costs too much money. Appellant
concludes that admission of this testimony was improper, and this Court must
grant relief. We disagree.
It is well settled that “trial judges retain wide latitude as to the scope of
cross-examination and will not be reversed absent an abuse of that
discretion.” Commonwealth v. Murphy, 182 A.3d 1002, 1005 (Pa.Super.
2018) (citation omitted). As this Court has explained:
One who induces a trial court to let down the bars to a field
of inquiry that is not competent or relevant to the issues
cannot complain if his adversary is also allowed to avail
himself of that opening. The phrase ‘opening the door’... by
cross examination involves a waiver. If defendant delves
into what would be objectionable testimony on the part of
____________________________________________
Here, Appellant is not seeking to admit evidence of third person guilt, and the
trial court did not exclude the evidence based on Rule 404(b). Rather, the
court found that the proposed testimony concerning the $10,000.00 judgment
was irrelevant. Therefore, the court’s ruling did not violate our Supreme
Court’s holding in Yale, supra and that decision is distinguishable.
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the Commonwealth, then the Commonwealth can probe
further into the objectionable area.
Commonwealth v. Lewis, 885 A.2d 51, 54-55 (Pa.Super. 2005) (quoting
Commonwealth v. Stakley, 365 A.2d 1298, 1299-1300 (Pa.Super. 1976)).
Here, the trial court analyzed this issue as follows:
Defense [c]ounsel broached the topic of DNA testing during
cross examination of the first testifying officer. (N.T. Trial
at 72). Defense counsel then extensively questioned the
second testifying officer regarding DNA testing. (Id. at 95-
97). It was not until the redirect of the second testifying
officer that the Commonwealth introduced testimony
regarding DNA testing, which was directly in response to
statements elicited by the [d]efense on cross examination.
(Id. at 98).
* * *
Once again it should be noted that… Appellant opened the
door to any testimony regarding DNA testing. Additionally,
Appellant explicitly stated he would be requesting an
adverse inference because DNA analysis did not occur. (Id.
at 76). Thus, to rebut this defense, testimony regarding
DNA testimony was highly relevant and properly admitted.
(Trial Court Opinion at 8) (record citation formatting provided). On this
record, we see no abuse of discretion in the trial court’s ruling permitting the
Commonwealth to introduce testimony concerning the DNA testing. See
Murphy, supra; Lewis, supra. Appellant’s third issue merits no relief.
In his final issue, Appellant claims that his mandatory minimum
sentence violated the United States and Pennsylvania Constitution’s
prohibition against cruel and unusual sentences. He initially claims that based
on the particular facts and circumstances of this offense, the instant conviction
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for burglary should not be considered a crime of violence for purposes of the
recidivist statute. In addition, Appellant argues that the sentence in this
matter was grossly disproportionate to the crime, where he left when asked
to do so and he had no contact with the individual who was in the home at the
time. Appellant concludes that his sentence of 10 to 20 years’ imprisonment
(which was double the guideline range had the mandatory minimum sentence
not applied) constitutes cruel and unusual punishment and must be vacated.
We disagree.
Appellant’s challenge to the application of a mandatory minimum
sentencing provision constitutes a challenge to the legality of sentence.
Commonwealth v. Foster, 960 A.2d 160, 168 (Pa.Super. 2008), aff’d, 609
Pa. 502, 17 A.3d 332 (2011). Our scope and standard of review in such cases
is well settled: “If no statutory authorization exists for a particular sentence,
that sentence is illegal and subject to correction. An illegal sentence must be
vacated.” Commonwealth v. Leverette, 911 A.2d 998, 1001 (Pa.Super.
2006) (citations omitted). “In evaluating a trial court’s application of a
statute, our standard of review is plenary and is limited to determining
whether the trial court committed an error of law.” Id. Furthermore, to the
extent that Appellant is challenging the constitutionally of the statute imposing
a mandatory minimum sentence, “because the constitutionality of a statute is
a question of law, our standard of review is de novo and our scope is plenary.”
Commonwealth v. Baker, 621 Pa. 401, 406 n.3, 78 A.3d 1044, 1047 n.3
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(2013).
The Pennsylvania Sentencing Code provides as follows:
§ 9714. Sentences for second and subsequent
offenses
(a) Mandatory sentence.—
(1) Any person who is convicted in any court of this
Commonwealth of a crime of violence shall, if at the time of
the commission of the current offense the person had
previously been convicted of a crime of violence, be
sentenced to a minimum sentence of at least ten years of
total confinement, notwithstanding any other provision of
this title or other statute to the contrary.
42 Pa.C.S.A. § 9714(a)(1). “Burglary is a crime of violence as a matter of
law.” Commonwealth v. Spotz, 616 Pa. 164, 232, 47 A.3d 63, 104 (2012).
See also Commonwealth v. Chester, 627 Pa. 429, 443, 101 A.3d 56, 64
(2014) (stating: “[I]t is well established within our case law that ‘[b]urglary
is a crime of violence as a matter of law,’ signifying that first-degree burglary
necessarily constitutes violent behavior in all contexts”) (quoting Spotz,
supra at 232, 47 A.3d at 104).
Here, Appellant was convicted of burglary, which is a crime of violence
as a matter of law. See Spotz, supra. The Commonwealth notified both the
trial court and Appellant that it intended to seek the mandatory minimum
sentence. Appellant does not dispute that at the time of the commission of
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the crimes at issue he had previously been convicted of a crime of violence.3
Therefore, the mandatory minimum sentencing provisions of Section
9714(a)(1) apply; and, based on the statute, the trial court was required to
sentence him to a minimum sentence of at least ten years of total
confinement. See 42 Pa.C.S.A. § 9714(a)(1).
Next, we consider whether the statutory minimum sentence itself
constitutes cruel and unusual punishment under either the Eighth Amendment
of the United States Constitution or Article 1, § 13 of the Pennsylvania
Constitution.4 “The Eighth Amendment does not require strict proportionality
between crime and sentence. Rather, it forbids only extreme sentences which
are grossly disproportionate to the crime.” Baker, supra at 406, 78 A.3d at
1047 (citation omitted). In reviewing whether a sentence is grossly
disproportionate, we consider: “(i) the gravity of the offense and the
harshness of the penalty; (ii) the sentences imposed on other criminals in the
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3 Appellant has an extensive criminal history, commencing with his
adjudication of delinquency of aggravated assault while a juvenile. As an
adult, he was convicted of simple assault in December 2000; forgery in March
2001; driving under the influence in April 2003; receiving stolen property in
September 2004; aggravated assault, defiant trespass and attempted retail
theft in March 2005, and retail theft in June 2020. (N.T. Trial, 8/10/21, at
174).
4 “The Pennsylvania prohibition against cruel and unusual punishment is
coextensive with the Eighth and Fourteenth Amendment of the United States
Constitution. Therefore, the Pennsylvania Constitution affords no broader
protection against excessive sentences than that provided by the Eighth
Amendment to the United States Constitution.” Commonwealth v.
Yasipour, 957 A.2d 734, 743 (Pa.Super. 2008) (citations omitted).
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same jurisdiction; and (iii) the sentences imposed for commission of the same
crime in other jurisdictions.” Baker, supra (quoting Commonwealth v.
Spells, 612 A.2d 458, 462 (Pa.Super. 1992) (en banc)). Notably, this Court
is not obligated to reach the second or third prongs of the test unless “a
threshold comparison of the crime committed and the sentence imposed leads
to an inference of gross disproportionality.” Id. (citation omitted).
A presumption exists that the General Assembly does not
intend to violate the Constitution of the United States or of
this Commonwealth when promulgating legislation. Duly
enacted legislation is presumed valid, and unless it clearly,
palpably and plainly violates the Constitution, it will not be
declared unconstitutional. Accordingly, the party
challenging the constitutionality of a statute bears a heavy
burden of persuasion. Moreover, this Court has articulated
the principle that the Pennsylvania prohibition against cruel
punishments, like its federal counterpart against cruel and
unusual punishments, is not a static concept. The concept
must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society. The
most accurate indicators of those evolving standards of
decency are the enactments of the elected representatives
of the people in the legislature.
Id. at 411–12, 78 A.3d at 1050 (citations, internal quotation marks and
brackets omitted). “In weighing the offense’s gravity, both [an individual’s]
current felony and his long history of felony recidivism must be placed on the
scales. Any other approach would not accord proper deference to the policy
judgments that find expression in the legislature’s choice of sanctions.”
Ewing v. California, 538 U.S. 11, 12, 123 S. Ct. 1179, 1181, 155 L.Ed.2d
108 (2003).
Here, in considering whether Appellant’s sentence of 10 to 20 years’
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imprisonment was grossly disproportionate to his burglary conviction, we
must consider both the facts of the instant matter, Appellant’s conviction of a
felony crime of violence, as well as his history of felony recidivism. See
Ewing, supra. Appellant was sentenced to a mandatory minimum ten years
of imprisonment after committing a burglary of a stranger’s home. This crime
of violence was preceded by his lengthy criminal history with a prior crime of
violence—a felony conviction for aggravated assault from 2005. Ultimately,
considering both crimes of violence, and Appellant’s criminal history generally,
we conclude that the mandatory minimum sentence imposed in this matter
was not grossly disproportionate to the crime. Rather, the sentence was
amply supported by Appellant’s criminal record. The instant sentence fell
squarely within the legislature’s choice of sanctions and is “justified by the
[legislature’s] public-safety interest in incapacitating and deterring recidivist
felons.” Ewing, supra at 12, 123 S.Ct. at 1181, 155 L.Ed.2d 108. As
Appellant has not established that the mandatory minimum sentence he
received was grossly disproportionate to the crimes which he committed, it is
unnecessary to consider the second and third prongs of the comparative
analysis for cruel and unusual sentences. See Baker, supra. Thus,
Appellant’s final issue merits no relief. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2023
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