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Commonwealth of Pennsylvania v. Thomas W. Graham

December 21, 2010


Appeal from the Order of the Superior Court entered May 13, 2008 at No. 1498 WDA 2006, affirming the Judgment of Sentence of the Court of Common Pleas of Butler County entered November 7, 2005, as amended on March 9, 2006, at No. CP-10-CR-0001947-2004.

The opinion of the court was delivered by: Mr. Justice SAYLOR*fn1


ARGUED: September 15, 2009


Resolution of this appeal centers on the appropriate understanding, for purposes of burglary gradation, of when a structure is adapted for overnight accommodation.

In June 2005, Appellant was convicted of burglary and related offenses, resulting from a criminal episode in which he and an accomplice unlawfully entered a house under construction and removed appliances and tools. After the items were taken, Appellant destroyed the building by setting it on fire, for which he also was convicted of arson and a related offense.

Under the Crimes Code, a burglary is generally a felony of the first degree. See 18 Pa.C.S. §3502(c)(1). If, however, the building, structure, or portion entered is not adapted for overnight accommodation, and no individual is present at the time of entry, burglary is a felony of the second degree. See id. §3502(c)(2). Here, it is undisputed that no person (other than Appellant and his accomplice) was present at the time of Appellant's crimes. Hence, the appropriate grading depended on whether the home under construction may be regarded as a "structure . . . adapted for overnight accommodation." Id.

At Appellant's trial, the owner of the burglarized structure provided uncontradicted testimony that, immediately before the burglary and fire, the exterior work on the building was complete; windows and doors were installed, albeit lacking trim; concrete was poured; electrical and plumbing rough-in work had been accomplished; temporary heat was available for construction purposes; and running water was available via two spigots, one located on the building's exterior and the other in the garage. On the other hand, the owner stated that: only two electrical circuits were active for construction purposes; plumbing was stub, with no fixtures in place and only an unattached pedestal sink on premises; walls were framed, but the framing remained open and uncovered; drywall was on premises but uninstalled; lighting was limited to construction and security purposes; the permanent furnace was in place but not operational; kitchen appliances and cabinets remained packed and stored in the basement; and there was no running water in the planned living space.

The owner-victim's testimony culminated in the following interchange on cross-examination, encapsulating the progress of the construction:

Q: [Is it] [f]air to say that you didn't get the house to the point where you could live in it yet, correct?

A: That's fair to say, yes.

N.T., June 27, 2005, at 142.

The jury returned verdicts of guilt on counts of burglary and related offenses. Concerning the burglary conviction, the verdict was a general one, with no special findings. As to arson, Appellant was acquitted of the greater offense of arson endangering persons, which encompasses intentionally starting a fire with the purpose of destroying or damaging an inhabited building or occupied structure of another.*fn2 See 18 Pa.C.S. §3301(a)(1)(ii). The verdict of guilt attached to a distinct count for "Arson endangering property," which encompasses intentionally starting a fire with the intent of destroying or damaging a building or unoccupied structure of another. See id. §3301(c)(1).

From the time of the verdicts, the trial court consistently couched the burglary conviction as a first-degree felony. See, e.g., N.T., June 29, 2005, at 241. In a later opinion, the court explained that, "[t]he Burglary was graded as a first degree felony based upon a jury finding that the loss exceeded $25,000." Commonwealth v. Graham, C.A. #1947/04, slip op. at 1 (C.P. Butler, Mar. 9, 2006).*fn3 Appellant's ultimate sentence for burglary also reflected the first-degree felony status. Post-sentence motions were denied by operation of law on account of the trial court's failure to comply with its obligation to decide them within 120 days. See Pa.R.Crim.P. 720(B)(3).

On appeal, the Superior Court affirmed the judgments of sentence over Appellant's challenges, including one directed to the appropriate grading of the burglary conviction. See Commonwealth v. Graham, 949 A.2d 939 (Pa. Super. 2008). Based on the owner-victim's testimony, the majority found the evidence sufficient to support a conclusion that the burglarized structure was adapted for overnight accommodation, since "the house was habitable, equipped with heat, light, and water, albeit rustic by modern standards." Id. at 944. The majority also referenced the reasoning from Commonwealth v. Nixon, 801 A.2d 1241 (Pa. Super. 2002) (holding that a completed and furnished row house under renovation, with water and electricity services suspended, was adapted for overnight accommodation), as supportive. In particular, the majority emphasized Nixon's directive that "the focus of the determination of whether a structure is adapted for overnight accommodation should be the nature of the structure itself and its intended use, and not whether the structure is in fact inhabited." Graham, 949 A.2d at 944 (quoting Nixon, 801 A.2d at 1247).

Judge Bender concurred based on precedent, but provided his independent merits assessment, as follows:

It is clear the building was not occupied. While the building was being adapted for overnight accommodation it had not been so adapted at the time of the burglary. It was in the process of construction. No one was living there. The statutory distinction is intended to more severely punish a burglary which involves an occupied structure or one that could be occupied. The reason for the increased punishment is that burglary of occupied structures increases the risk of injury or death to persons involved. The structure in the instant case was a home under construction. I see no reason to torture the plain meaning of the statute in such a manner simply to sentence the defendant to a term of imprisonment as a felony of the first degree rather than as a felony of the second degree. The punishment permitted as a felony of the second degree is sufficient.

Graham, 949 A.2d at 945-46 (Bender, J., concurring).

This Court subsequently allowed appeal limited to the burglary gradation issue. As this question entails both statutory construction (in terms of the scope of the legislative conception of adaptation for overnight accommodation) and evidentiary sufficiency, our review is plenary. See Spahn v. ZBA, 602 Pa. 83, 100, 977 A.2d 1132, 1142 (2009) (statutory construction); Commonwealth v. Meals, 590 Pa. 110, 119, 912 A.2d 213, 218 (2006) (evidentiary sufficiency). In terms of statutory construction, given the plethora of circumstances in which the concept of adaptation may apply, we deem its use by the Legislature to be sufficiently unclear so as to permit reference to tools of statutory construction, including consideration of the occasion and necessity for the statute, the object to be attained, and the consequences of a particular interpretation. See DPW v. W.C.A.B. (Harvey), ___ Pa. ___, ___, 993 ...

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