Appeal from the order of the Superior Court entered on May 4, 2007 at No. 1108 EDA 2005.
The opinion of the court was delivered by: Madame Justice Todd
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.
In this direct appeal, we are asked to determine whether the sentencing court erred in making the factual determination that Appellant Eric Samuel's burglary conviction was a "crime of violence," triggering the mandatory "two-strikes" sentencing provision of 42 Pa.C.S.A. § 9714(g). For the following reasons, we find no error in the sentencing court's application of the two-strikes provision in this case, and affirm.
On November 13, 2003, by his own admission, Appellant burglarized the apartment of his neighbor, Jamaal Garnett, on Spring Garden Street in Philadelphia. The uncontradicted trial testimony revealed that at about 1:30 p.m., Garnett was in the living room of his second floor apartment when he heard a loud crashing noise. He went to investigate and came upon Appellant raising his second floor bathroom window in an apparent attempt to break into the apartment. Garnett recognized Appellant from the neighborhood and called 911 from his cell phone as he ran out of the apartment, forgetting his keys. When the police arrived a short time later, Garnett was unable to let them into the building, and ran back up the fire escape. Upon entering his apartment, he observed Appellant inside with Garnett's VCR in his hands. Appellant escaped out a second-story window carrying a duffel bag.
Appellant was apprehended nearby, and a search of his duffel bag yielded a VCR. Garnett identified his VCR and Appellant at the scene of the arrest. Following Appellant's arrest, Detective William Farrell administered Miranda warnings and took Appellant's statement, wherein he admitted to climbing into Garnett's apartment through the bathroom window and removing Garnett's VCR and $10 in cash. Appellant also admitted to having committed two other burglaries at the homes of Ruth Mack and Paul White in August and November 2003, respectively.
Based on Appellant's confession to the three burglaries, Appellant was charged with three counts of burglary as felonies of the first degree*fn1 and three counts of theft by unlawful taking.*fn2 He was tried by a jury on October 28, 2004 before the Honorable Shelley Robins New. At trial, the Commonwealth presented abundant evidence against Appellant, including not only the eyewitness testimony of Garnett and the arresting officers, but also Appellant's confession, wherein he acknowledged that a person was present at the time he committed the Garnett burglary:
Q: How did you get into the apartment?
A: Second floor bathroom window. I climbed up the rear using gates on the windows. The bathroom window was closed but unlocked. I opened the window, climbed inside. After getting inside, the bathroom door was closed. I walked out of the bathroom into like the bedroom. I picked up $10 and some change. Then I turned around and I looked and unplugged and took the VCR. That's when the guy came back. I ran towards the window, climbed down, and was arrested by police.
N.T. Trial, 10/28/04, at 123. In addition, in a strategic move in which Appellant conceded having burglarized Garnett's home in order to make his challenge at trial of the other two burglaries seem more plausible to the jury, Appellant's counsel openly acknowledged during closing arguments that Garnett witnessed Appellant enter the apartment through the bathroom window. He further acknowledged that Garnett saw Appellant in Garnett's apartment holding Garnett's VCR when Garnett briefly returned. Appellant's counsel told the jury:
They have the eyewitnesses. Mr. Garnett himself saw [Appellant] in the apartment [and] coming into the apartment. They have the officers outside who saw him leaving with Mr. Garnett's items in his hand. There's no reasonable doubt in that case. That's the kind of case where they have met their burden of proof.
In the charge to the jury, the trial court defined burglary according to its statutory definition under Section 3502(a) of the Crimes Code. 18 Pa.C.S.A. § 3502(a). Apparently anticipating the Commonwealth would seek application of the two-strikes provision in 42 Pa.C.S.A. § 9714 - which, as we discuss more fully below, provides a mandatory minimum sentence when a defendant commits a second "crime of violence" including, inter alia, "burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present," id. § 9714(g) - the trial judge indicated in her Pa.R.A.P. 1925(a) opinion that she offered the Commonwealth the opportunity to request a separate finding by the jury that Garnett was present at the time of the November 13, 2003 burglary, but the Commonwealth ...