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[U] Commonwealth v. White

Superior Court of Pennsylvania

March 4, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BILLY WHITE, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of February 8, 2013 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002430-2012.

Joseph D. Seletyn, Esq.

BEFORE: GANTMAN, OLSON AND WECHT, JJ.

MEMORANDUM

OLSON, J.

Appellant, Billy White, appeals from the judgment of sentence entered on February 8, 2013. We affirm.

The trial court has explained, in part, the underlying facts of this case:

In the early morning hours of February 26, 2012, Appellant entered the home of his then-girlfriend, [T.T.] . . . . without permission. Appellant had a gun and threatened [T.T.] that he would pistol whip her if she did not go outside and talk to him about an incident that occurred with her daughter the previous day. [T.T.] complied out of fear. Once in Appellant's vehicle, Appellant threatened to knock [T.T.'s] teeth out if she did not listen to him talk. Responding to a 911 call at that location, the Lower Providence Township police arrived on scene [and arrested Appellant].
On November 26, 2012, [Appellant's] two-day jury trial began. . . . [T]he evidence adduced at trial established that the [subject] residence [that Appellant entered on February 26, 2012] was private property and the tenant of that property was [T.T.] only. Appellant did not have a key to the property. Despite his frequent stays at the property with [T.T.], Appellant was not invited [to stay with her] that night. . . . [Further, a]t trial, [Appellant's] counsel[] cross-examin[ed T.T. as to] whether Appellant had permission to be at [T.T.'s] home [on] the night of the incident[. T.T.] unequivocally testified that [Appellant] did not [have permission to be in her home at that time].
[During trial, ] the evidence showed that on February 26, 2012 at approximately 2:00 a.m.[, ] Appellant arrived at [T.T.'s] home and texted her to come outside, but [T.T.] refused. The two of them went back and forth, with [T.T.] at the second[-]floor bedroom window and Appellant in the driveway. [T.T.] testified that she did not invite Appellant into her house, and that she told him to leave the property. Appellant refused, and continued to ask [T.T.] to come outside and get into his car and talk to him.
Despite Appellant's insistence, [T.T.] was not willing to go outside and talk to Appellant. At some point in that argument, Appellant came into [T.T.'s] home through a screen door and made his way up the stairs to the second[-]floor bedroom. Not only was Appellant not invited to come inside, [but T.T.] was so fearful of Appellant that night, that as soon as she heard Appellant coming through the screen door she dialed 911. While in the second-floor hallway, Appellant pulled a gun on [T.T.] and threatened to pistol whip her if she did not come outside with him to his car to talk.[1]

Trial Court Opinion, 4/15/13, at 1-2 and 4-5 (internal citations omitted).

T.T. testified that she walked down the stairs to the vehicle and that, while she walked, Appellant followed her with his gun pointed at the back of her head. N.T. Trial, 11/26/12, at 59. As T.T. testified, when she got into Appellant's vehicle (which was parked inside of T.T.'s garage), Appellant began talking about T.T.'s daughter, B.T. T.T. testified: "[Appellant s]aid if I say anything he will knock the F-ing teeth out of my mouth and my daughter's." Id. at 60.

T.T. testified that she did not reply to Appellant and that she simply listened to Appellant speak because she "didn't want [her] teeth to get knocked out of [her] mouth." Id. at 63. As T.T. testified, she sat in Appellant's vehicle for approximately 60 seconds "when a [police] cruiser pulled up. And when [she] saw the headlights, that's when [she] jumped out [of] the car." Id.

Corporal Walter Trimbur of the Lower Providence Township Police Department testified that he was the first officer to arrive on scene and that he immediately ordered Appellant to step out of the vehicle. Id. at 27. As Corporal Trimbur testified, Appellant complied with the order and, during their ensuing conversation, the Corporal "was able to detect a strong odor of burnt marijuana being emitted from [Appellant]." Id. at 28. The Corporal then arrested Appellant. Id.

The police impounded Appellant's vehicle, obtained a search warrant for the vehicle, and, during the subsequent search, discovered: a plastic baggie containing marijuana; a loaded, operable revolver containing four rounds; and, a holster. N.T. Trial, 11/27/12, at 6-25. Appellant did not have a license for the firearm and testing revealed the presence of Appellant's DNA on the revolver. Id. at 25 and 91-93.

The Commonwealth charged Appellant with burglary, criminal trespass, terroristic threats, possession of marijuana, possession of drug paraphernalia, and carrying a firearm without a license.[2] The jury found Appellant guilty of all charges and, on February 8, 2013, the trial court sentenced Appellant to an aggregate term of five to ten years in prison.

Appellant did not file a post-sentence motion. Instead, Appellant filed a timely notice of appeal and the trial court ordered Appellant to file and serve a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

Appellant's Rule 1925(b) statement listed a number of boilerplate sufficiency of the evidence claims. In relevant part, Appellant's Rule 1925(b) statement declares:

1. There is legally insufficient evidence to support [Appellant's] conviction for the [offense] of burglary, in violation of 18 Pa.C.S. § 3502(a), criminal trespass, in violation of 18 Pa.C.S. § 3503(a), and firearms not to be carried without a [license], in violation of 18 Pa.C.S. § 6106(a), indexed at Docket Number CP-46-CR-0002430-2012.
2. There is not legally sufficient evidence to support [Appellant's] convictions for possessing a controlled substance with the intent to deliver, in violation of 35 P.S. § 780-113(a)(30), simple possession of a controlled substance, in violation of 35 P.S. § 780-113(a)(31), and possession of drug paraphernalia, in violation of 35 P.S. § 780-113[(a)(32)], indexed at docket number CP-46-CR-0002430-2012.

Appellant's Rule 1925(b) Statement, 4/4/13, at 1-2.[3]

After receiving Appellant's Rule 1925(b) statement, the trial court filed its Rule 1925(a) opinion. Although Appellant's Rule 1925(b) statement completely failed to "specify the element or elements upon which the evidence was insufficient" for any of Appellant's multiple convictions, the trial court was able to discern the following from Appellant's Rule 1925(b) statement: 1) with respect to Appellant's convictions for burglary and criminal trespass, Appellant wished to claim that the Commonwealth did not disprove his defense of privilege, and 2) with respect to Appellant's conviction for firearms not to be carried without a license, Appellant sought to claim that his conviction was against the weight of the evidence, as the jury should not have believed T.T. when she testified that Appellant possessed a firearm. Trial Court Opinion, 4/15/13, at 1-9. The trial court thus issued its Rule 1925(a) opinion and, within its opinion, the trial court analyzed the two claims that, it believed, Appellant wished to raise on appeal.

Within Appellant's brief to this Court, Appellant lists the following claims:

[1.] Did the Commonwealth present legally sufficient evidence to support [] Appellant's convictions for burglary where the Commonwealth's evidence showed that he was residing at the subject property at the time of the alleged crime and was not informed that he was not allowed to return and where the Commonwealth failed to prove that Appellant intended to commit a crime when he entered the residence?
[2.] Did the Commonwealth present legally sufficient evidence to support [] Appellant's conviction for criminal trespass where the Commonwealth's evidence showed that he was residing at the subject property and had not been informed that he was not allowed to return at the time of the alleged trespass?
[3.] Did the Commonwealth present legally sufficient evidence to support [] Appellant's convictions for possession of drug paraphernalia and unlawful possession of a firearm where the items were found inside of a vehicle which was left unsecured by police officers who permitted the alleged victim to return to the vehicle unescorted before the vehicle was searched?
[4.] Is the concurrent sentence of one to five years of incarceration for Appellant's conviction for terroristic threats an illegal sentence where it is graded as a first degree misdemeanor and where it is the only crime which Appellant could have "intended" to commit inside of the residence?

Appellant's Brief at 5.

We are constrained to conclude that Appellant's first three claims on appeal are waived, as Appellant's Rule 1925(b) statement did not sufficiently identify the error that Appellant intended to challenge on appeal.

As this Court has continuously held:

If Appellant wants to preserve a claim that the evidence was insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient. This Court can then analyze the element or elements on appeal. [Where a] 1925(b) statement [] does not specify the allegedly unproven elements[, ] . . . the sufficiency issue is waived [on appeal].

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.Super. 2008), quoting Commonwealth v. Flores, 921 A.2d 517, 522-523 (Pa.Super. 2007).

In this case, Appellant's Rule 1925(b) statement simply lists five of Appellant's six convictions and, in boilerplate fashion, declares that the evidence was insufficient to support the convictions. The statement thus fails to "specify the element or elements upon which the evidence was insufficient" to support any of the convictions – and we must conclude that Appellant's sufficiency of the evidence claims are waived on appeal. Williams, 959 A.2d at 1257.

Further, it is of no moment that the Commonwealth failed to object to the defect in Appellant's Rule 1925(b) statement or that the trial court was able to correctly guess some of the claims that Appellant wished to raise on appeal. As we have held:

The Commonwealth's failure [to object to the defect in the Rule 1925(b) statement] and the presence of a trial court opinion are of no moment to our analysis because we apply Pa.R.A.P. 1925(b) in a predictable, uniform fashion, not in a selective manner dependent on an appellee's argument or a trial court's choice to address an unpreserved claim. [Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005)], Commonwealth v. Butler, 812 A.2d 631, 634 (Pa. 2002). Thus, we find 1925(b) waiver where appropriate despite the lack of objection by an appellee and despite the presence of a trial court opinion. Castillo, 888 A.2d at 779, 780; Butler, 812 A.2d at 634.

Williams, 959 A.2d at 1257.

Appellant's first three claims are thus waived.

Moreover, we conclude that our holding of waiver is not affected by our Supreme Court's opinion in Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007). In Laboy, the Commonwealth charged Mr. Laboy with drug crimes and criminal conspiracy. At trial, the Commonwealth conceded that Mr. Laboy did not actually possess the contraband. The Commonwealth instead theorized that Mr. Laboy "acted as a lookout and money handler in connection with multiple sales of illicit drugs in Philadelphia." Id. at 1058.

At the conclusion of Mr. Laboy's brief trial – which "span[ned] a mere [30] pages of transcript" – Mr. Laboy was convicted of the charges. Id. at 1058 and 1060. Following Mr. Laboy's sentencing, Mr. Laboy filed a notice of appeal to this Court and the trial court ordered him to file a Rule 1925(b) statement. Mr. Laboy responded to the trial court's order with a boilerplate Rule 1925(b) statement, which simply declared that the "evidence . . . was insufficient" to support his convictions. Id. at 1058. Notwithstanding Mr. Laboy's boilerplate statement, the trial court knew that Mr. Laboy wished to raise the following claim on appeal: whether the evidence was sufficient to prove that Mr. Laboy "was vicariously liable for the actions of his co-defendant, as he neither possessed drugs personally nor was observed actually conducting a drug transaction." Id. at 1059. The trial court thus prepared a Rule 1925(a) opinion and addressed Mr. Laboy's claim. Id. at 1058-1059.

In Mr. Laboy's brief to this Court, Mr. Laboy raised the issue that the trial court addressed. However, we held that Mr. Laboy's claim was waived, as his Rule 1925(b) statement failed "to specify how the evidence failed to establish which element or elements of the offenses for which [Mr. Laboy] was convicted." Id. at 1059. Mr. Laboy filed a petition for allowance of appeal to our Supreme Court and the Supreme Court held that we erred in finding waiver. As the high Court held:

the Superior Court should have afforded the requested sufficiency review. In the present, relatively straightforward drug case, the evidentiary presentation spans a mere thirty pages of transcript. It may be possible in more complex criminal matters that the common pleas court may require a more detailed statement to address the basis for a sufficiency challenge. Here, however, the common pleas court readily apprehended Appellant's claim and addressed it in substantial detail.

Id. at 1060.

In the case at bar, however, Appellant was convicted of multiple, diverse crimes that occurred at separate times and locations. Further, some of the crimes for which Appellant was convicted (such as burglary) contain numerous elements that the Commonwealth was required to prove beyond a reasonable doubt – and that Appellant could conceivably challenge on appeal. Finally, Appellant's trial lasted two days and spanned over 300 pages of transcript.

Simply stated, the case at bar is not controlled by Laboy, as the case at bar is not akin to a "relatively straightforward drug case [with an] evidentiary presentation [that] spans a mere [30] pages of transcript." Id. at 1060. Therefore, Appellant's claims are waived on appeal.[4]

For Appellant's final claim on appeal, Appellant essentially claims that, for sentencing purposes, his terroristic threats conviction merged with his burglary conviction. Therefore, Appellant claims, his concurrent sentence of one to five years in prison for terroristic threats is illegal. This claim fails.

Initially, even though Appellant did not raise his illegal sentencing claim in his court-ordered Pennsylvania Rule of Appellate Procedure 1925(b) concise statement of errors complained of on appeal, "challenges to an illegal sentence can never be waived and may be raised sua sponte by this Court." Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa.Super. 2013) (internal quotations and citations omitted). Therefore, we will consider the claim on appeal.

"Whether Appellant's convictions merge for sentencing is a question implicating the legality of Appellant's sentence. Consequently, our standard of review is de novo and the scope of our review is plenary." Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).

Pennsylvania's merger doctrine is codified at 42 Pa.C.S.A. § 9765. This statute provides:

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.

As our Supreme Court has explained, the "mandate of [Section 9765] is clear. It prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other." Baldwin, 985 A.2d at 833.

Moreover, the burglary statute contains a specific merger provision. Section 3502(d) declares:

A person may not be sentenced both for burglary and for the offense which it was his intent to commit after the 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). As we have explained, "[t]he purpose of Section 3502(d) . . . is to prevent dual punishment for burglary and the offense which the accused intended to commit when he effected his entry." Commonwealth v. Downs, 483 A.2d 884, 890 (Pa.Super. 1984).

Appellant was convicted of burglary under 18 Pa.C.S.A. § 3502(a)(1). This section provides:

A person commits the offense of burglary if, with the intent to commit a crime therein, the person: (1) 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."

18 Pa.C.S.A. § 3502(a)(1).

Now on appeal, Appellant claims that – for sentencing purposes – his terroristic threats conviction merged with his burglary conviction. Specifically, Appellant cites to 18 Pa.C.S.A. § 3502(d) and claims that the crime of terroristic threats must have been "the offense which it was [Appellant's] intent to commit after the burglarious entry" because – of all of his convictions – "the terroristic threats conviction is the only crime that Appellant could . . . have 'intended' to commit inside of the residence." Appellant's Brief at 26. Appellant argues that, since his terroristic threats conviction is graded as a first-degree misdemeanor – and not a "felony of the first or second degree" – his terroristic threats conviction necessarily merged with his burglary conviction. Id. at 26-27. This claim fails.

Under the plain terms of Section 3502(a)(1), a person commits the crime of burglary if, at the time he illegally enters an occupied building, he possesses "the intent to commit a crime therein." 18 Pa.C.S.A. § 3502(a)(1) (emphasis added). Thus (and contrary to Appellant's current argument), to secure a burglary conviction, the Commonwealth is not required to actually convict an individual of an underlying crime. Indeed, in Commonwealth v. Alston, our Supreme Court held that, "to secure a conviction for burglary, " the Commonwealth need not even "allege or prove what particular crime Appellant intended to commit after his [illegal] entry into [a] private residence." Commonwealth v. Alston, 651 A.2d 1092, 1095 (Pa. 1994) (emphasis added).

In the case at bar, the Commonwealth's information did not specify what particular crime Appellant intended to commit after his illegal entry into T.T.'s residence.[5] Secondly, at trial, the trial court generally instructed the jury that, to convict Appellant of burglary, the jury needed to find that "[Appellant] entered [the building] with the intent to commit a crime inside." N.T. Trial, 11/27/12, at 160. Further, the evidence at trial supported numerous possible crimes for which the jury might have concluded Appellant "intended to commit" upon entry into T.T.'s residence. These crimes include (but are not limited to): simple assault, aggravated assault, kidnapping, recklessly endangering another person, harassment, and criminal mischief. Indeed, the evidence was also sufficient to establish that, at the time Appellant entered T.T.'s residence, Appellant intended to commit the crime of terroristic threats against T.T.'s daughter, B.T. See In re L.A., 853 A.2d 388, 392 (Pa.Super. 2004) ("[a] direct communication between the defendant and the victim is not required to establish the crime of terroristic threats"). Finally, even though the jury found Appellant guilty of terroristic threats, the jury did not necessarily conclude that, at the time Appellant entered T.T.'s residence, Appellant intended to commit the crime of terroristic threats against T.T. Rather, the jury might have concluded - and the evidence supports the conclusion - that Appellant formed the requisite intent after he had already illegally entered T.T.'s residence.

Therefore, when the jury found Appellant guilty of burglary, the jury did not necessarily conclude that - when Appellant entered T.T.'s residence - Appellant "intended to commit" the crime of terroristic threats against T.T. Appellant's terroristic threats conviction thus did not merge with Appellant's burglary conviction. Appellant's claim on appeal fails. Judgment of sentence affirmed.

Judgment Entered.


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