J-S15002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 JESSE PAUL KINDER                    :
                                      :
                   Appellant          :   No. 693 WDA 2019

          Appeal from the Judgment Entered January 24, 2019
  In the Court of Common Pleas of Crawford County Criminal Division at
                    No(s): CP-20-CR-0000314-2018

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 JESSE PAUL KINDER                    :
                                      :
                   Appellant          :   No. 694 WDA 2019

      Appeal from the Judgment of Sentence Entered March 29, 2019
  In the Court of Common Pleas of Crawford County Criminal Division at
                    No(s): CP-20-CR-0000314-2018

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 JESSE PAUL KINDER                    :
                                      :
                   Appellant          :   No. 695 WDA 2019

      Appeal from the Judgment of Sentence Entered March 29, 2019
  In the Court of Common Pleas of Crawford County Criminal Division at
                    No(s): CP-20-CR-0000306-2018

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
J-S15002-20


                                                 :
                v.                               :
                                                 :
                                                 :
    JESSE PAUL KINDER                            :
                                                 :
                       Appellant                 :   No. 696 WDA 2019

             Appeal from the Judgment Entered January 24, 2019
     In the Court of Common Pleas of Crawford County Criminal Division at
                       No(s): CP-20-CR-0000306-2018


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                                FILED JUNE 2, 2020

        In these consolidated cases, Jesse Paul Kinder (Appellant) appeals from

the aggregate judgment of sentence of 10 to 20 years’ incarceration, imposed

after he was convicted in two separate cases, following a consolidated non-

jury trial, of offenses stemming from his burglarizing two businesses in

Crawford County, Pennsylvania. Appellant challenges the sufficiency of the

evidence to sustain his convictions, as well as the sentence imposed by the

court. After careful review, we quash Appellant’s appeals in cases 693 WDA

2019 and 696 WDA 2019; we affirm his judgment of sentence in case 695

WDA 2019 (hereinafter “the Hite case”); and we vacate his judgment of

sentence in case 694 WDA 2019 (hereinafter “the Bucket of Suds case”) and

remand for resentencing.

                     Hite Case Facts & Procedural History



____________________________________________


*   Former Justice specially assigned to the Superior Court.


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        In the Hite case (695 WDA 2019 and 696 WDA 2019), the trial court

summarized the facts, as follows:

               The Hite Company is an electric distributor located on …
        Baldwin Street Park Road.[1] Bruce Ridgeway, its manager, on
        entering a side man [sic] door of the premises on the morning of
        March 12, 2018, discovered that the safe, located in the office at
        the back of the store, had been pried open and its contents
        scattered on the floor. A window in the back door also [had] been
        smashed, and “a whole bunch of Milwaukee tools that were
        hanging on the wall behind the counter ... were all gone.” N.T.
        [Trial], 1/24/19 (1:15), at 10. A security camera located behind
        the service counter recorded the presence, at around 2 a.m. that
        morning, of an individual dressed in dark clothing with some sort
        of lighter face mask and a head lamp, wearing patterned gloves
        and carrying a crowbar. A camera located outside above the
        store’s loading dock also recorded the movements of an individual
        at this time, and the apparent loading of a vehicle that pulled up
        and later drove off.

               Mitchell Parker of the Meadville City Police Department,
        responding to Bruce Ridgeway’s 911 call, found there was also
        damage to the coinage portion of a beverage vending machine
        located inside the store. Lying on the floor was an inventory tag
        for a Klein backpack that was also missing. Officer Parker noticed
        that yellow paint had been transferred onto the safe when it was
        pried open, and onto an office filing cabinet that had also been
        damaged.

____________________________________________


1   The court stated that its factual summary is

           based upon the credible testimony of the Commonwealth’s
           five witnesses and the twenty-eight photographs, inventory,
           cost estimates, and DVD (surveillance videos) admitted
           without objection (except for Commonwealth’s Exhibit 24…,
           the objection to which was overruled). [Appellant], who was
           unrepresented but assisted by standby counsel, did not offer
           any testimony or other evidence. A summary of this
           [c]ourt’s factual findings was also placed on the record. N.T.
           [Trial], 1/24/19 (3:25 p.m., after recess), [at] 30-39.

Trial Court Opinion (TCO I), 6/11/19, at 2 n.7.

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              Within a week thereafter, [Appellant] was arrested at the
       Bucket of Suds car wash in Saegertown for burglary. Evidence
       collected there included two pry bars, a new Milwaukee tool
       grinder, battery packs for the grinder, a Klein camouflaged-
       colored backpack, and a head lamp. The backpack was of the type
       stolen from the Hite Company, and the grinder bore the same
       model number as the missing one. Yellow paint found on the Hite
       Company safe tested consistent visually, microscopically, and
       instrumentally with the yellow paint on the smaller crowbar. The
       clothing [Appellant] was wearing included black gray-patterned
       gloves, black sweatpants, lighter blue cut-off[s] of some sort, and
       [a] black hooded sweatshirt with a white and green football logo
       on the left breast. The logo patch appears to match the one visible
       on the chest of the Hite Company intruder, whose physique
       matches that of [Appellant].

TCO I at 2-4 (footnotes omitted).

       At the close of Appellant’s non-jury trial on January 24, 2019, the court

convicted him in the Hite case of burglary, criminal trespass, theft by unlawful

taking, and criminal mischief. On March 29, 2019, the court sentenced him

to an aggregate term of 36 to 72 months’ incarceration. Appellant did not file

a post-sentence motion.

       On April 29, 2019, Appellant filed two, pro se notices of appeal in this

case.2   In the appeal docketed by this Court at 695 WDA 2019, Appellant

appealed from his March 29, 2019 judgment of sentence.           In the appeal

docketed at 696 WDA 2019, Appellant appealed from the court’s verdict

entered on January 24, 2019. As Appellant’s appeal properly stems from his


____________________________________________


2 On June 4, 2019, the trial court issued an order stating that, following a
hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), it
was granting Appellant’s request to proceed pro se on appeal. However, the
attorney who acted as Appellant’s stand-by counsel at trial thereafter filed a
brief on Appellant’s behalf.

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judgment of sentence, rather than the court’s verdict, we hereby quash

Appellant’s duplicative appeal at 696 WDA 2019.            Commonwealth v.

Neitzel, 678 A.2d 369, 370 n.1 (Pa. Super. 1996) (concluding that Neitzel

erred by characterizing his appeal as stemming from an order where “a direct

appeal following the entry of the verdict and imposition of sentence is an

appeal from the judgment of sentence”) (citation omitted).

                  Bucket of Suds Case Facts & Procedural History

        In the cases docketed at 693 WDA 2019 and 694 WDA 2019, the trial

court summarized the facts, as follows:
               Kevin Byers, in the early morning hours of March 19, 2018,
        could not sleep, and so was sitting in his upstairs living room.[3]
        He heard banging, and looking out his window, saw “two people
        trying to bang through the door” to the Bucket of Suds, a manual
        car wash located adjacent to his residence in Saegertown. N.T.
        [Trial] … at 7…. He called the Pennsylvania State Police (PSP), the
        borough manager, and Philip A. Koon, owner of the Bucket of
        Suds, to report this. Seeing one of the two people run down the
        back alley, he dressed and went to investigate, and found the door
        to the car wash office had been kicked in. He was about to enter
        when he heard grinding noises, and realized that someone was
        inside. Trooper Cody Northcott of the PSP, who arrived at about
____________________________________________


3   The trial court stated that its factual summary is
        based upon the credible testimony of the Commonwealth’s four
        witnesses, three photographs (admitted without objection), and
        [a] CD of recorded telephone calls (admitted over [Appellant’s]
        objection). [Appellant], who was unrepresented but assisted by
        standby counsel, did not offer any testimony or other evidence. A
        summary of this [c]ourt’s factual findings was also placed on the
        record. N.T [Trial at] 94-99.

Trial Court Opinion (TCO II), 6/11/19, at 2 n.8.



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        2 a.m. with Trooper Zachary Kosko, talked with Mr. Byers,
        observed the damaged door, and also heard grinding noises. He
        and Trooper Kosko entered the office by pushing the door in,
        finding [Appellant] with a Milwaukee grinder tool within arms’
        reach. [Appellant] was immediately arrested. Also found inside
        the office (which was in disarray) were battery packs for the
        grinder, two pry bars, and a Klein backpack, none of which
        belonged to Mr. Koon. Inside the backpack were some lottery
        tickets and coins totaling $203.16, which had previously been on
        Mr. Koon’s desk. Dust had fallen from a coin machine, which bore
        grinding marks.

               A woman identified as [Maegan] Duda, who had been
        observed driving past the car wash and subjected to a traffic stop,
        returned and asked whether she should be on the lookout for
        anyone. [Appellant] later, at the correctional facility, placed two
        recorded calls to Duda’s telephone number in which he expressed
        regret that he had not left sooner (“I should have just took what
        I had and left. It was like $300.”), and surprise at being caught at
        2 a.m. (“like the entire neighborhood was out”). Id. at 57…; [id.
        at] 70…. The woman he spoke with stated that she had been
        “pulled over in Saegertown that night because they [we]re looking
        for a second person.” Id. at 63….[4]

TCO II at 2-3 (footnotes omitted).

        Following a non-jury trial, the court convicted Appellant in the Bucket of

Suds case of burglary, criminal trespass, theft by unlawful taking, and

receiving stolen property. On March 29, 2019, the court sentenced him to an

aggregate term of 84 to 168 months’ incarceration, to run consecutive to his

sentence in the Hite case. Appellant did not file a post-sentence motion.

        On April 29, 2019, Appellant filed two, pro se notices of appeal in this

case.    In the appeal docketed by this Court at 694 WDA 2019, Appellant

appealed from his March 29, 2019 judgment of sentence.             In the appeal

____________________________________________


4 Duda ultimately pled guilty to conspiring with Appellant to commit the
burglary of the Bucket of Suds car wash. See TCO II at 2.

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docketed at 693 WDA 2019, Appellant appealed from the court’s verdict

entered on January 24, 2019. As Appellant’s appeal properly stems from his

judgment of sentence, rather than the court’s verdict, we hereby quash

Appellant’s duplicative appeal at 693 WDA 2019. See Neitzel, supra.

                           Consolidated Issues

     In both cases, the trial court ordered Appellant to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. However, prior

to the entry of that order, Appellant had already filed pro se concise

statements in each case on April 22, 2019, which are labeled as “pro se

correspondence” on the dockets.      After the court’s Rule 1925(b) order,

Appellant timely served the court with his pro se Rule 1925(b) statements on

May 16, 2019, and he also sent copies of the statements to the Court

Administrator. See TCO I at 1 n.2; TCO II at 1 n.2. While Appellant did not

re-file his concise statements, we do not consider his claims waived, as his

Rule 1925(b) statements were filed in each case on April 22, 2019. On June

4, 2019, the court issued its Rule 1925(a) opinions.

     We now review the following four issues that Appellant states on appeal:

     I. Whether the grading for [Appellant’s] conviction for criminal
     mischief, [a] felony [of the] third degree, [in the Bucket of Suds
     case], should be corrected to reflect grading as a misdemeanor of
     the second degree?

     II. Whether the trial court erred in imposing separate sentences
     for [Appellant’s] burglary and criminal trespass convictions [in]
     both [the Hite case] and [the Bucket of Suds case], based on the
     doctrine of merger?



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      III. Whether the trial court improperly based its guilty verdicts [in
      the Hite case] on [Appellant’s] possession of certain items after
      previously determining that [Appellant] did not possess these
      items during disposition of a pre-trial suppression motion?

      IV. Whether the evidence [in the Hite case] was insufficient to
      sustain [Appellant’s] convictions?

Appellant’s Brief at 6 (unnecessary capitalization omitted).

      In Appellant’s first issue, he challenges the legality of his sentence for

criminal mischief in the Bucket of Suds case, contending that the grading of

that offense was incorrect. See Commonwealth v. Aiken, 139 A.3d 244,

245 (Pa. Super. 2016) (“[T]he proper grading of an offense pertains to the

legality of the sentence.”). We agree. Under 18 Pa.C.S. § 3304(b), criminal

mischief is graded as a misdemeanor of the second degree if the pecuniary

loss caused is more than $1,000, but less than $5,000. The trial court and

the Commonwealth both concede that under this provision, Appellant’s

criminal mischief conviction should have been graded as a misdemeanor of

the second degree, as the amount of damage he caused was $3,280.29. See

TCO II at 12; Commonwealth’s Brief at 14-15.             Therefore, we vacate

Appellant’s judgment of sentence in the Bucket of Suds case (694 WDA 2019)

and remand for resentencing. See Commonwealth v. Thur, 906 A.2d 552,

569-70 (Pa. Super. 2006) (stating that if our disposition upsets the overall

sentencing scheme of the trial court, we must remand so that the court can

restructure its sentencing plan).




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      In Appellant’s second issue, he argues that his sentences for burglary

and criminal trespass in both the Hite case and the Bucket of Suds case are

illegal because those convictions should have merged for sentencing purposes.

In support, he relies on our Supreme Court’s plurality decision in

Commonwealth v. Jones, 912 A.2d 815 (Pa. 2006), where the Court

concluded that burglary and criminal trespass could merge for sentencing

purposes when a defendant is convicted under a single set of facts that satisfy

both offenses. However, Appellant disregards that

      [j]ust three years [after Jones], our Supreme Court revisited its
      approach to merger. See Commonwealth v. Baldwin, 604 Pa.
      34, 985 A.2d 830 (2009). In a majority decision, Baldwin … held
      the plain language of [42 Pa.C.S. §] 9765 reveals 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.” Id. at 45, 985
      A.2d at 837. Baldwin rejected the “practical, hybrid approach”
      advocated in the lead Jones plurality opinion. Id. at 42, 912
      A.2d at 835. Instead, Baldwin held that when each offense
      contains an element the other does not, merger is inappropriate.
      Id. at 45, 985 A.2d at 837.

Commonwealth v. Quintua, 56 A.3d 399, 401 (Pa. Super. 2012).

      In Quintua, we recognized that, “notwithstanding the plurality’s

conclusion in Jones regarding merger of criminal trespass and burglary, the

current state of merger law in Pennsylvania makes clear there is no merger if

each offense requires proof of an element the other does not.” Id. (citations

omitted). The Quintua panel then explained:

      Examining the elements of criminal trespass, a conviction for that
      offense requires a person: (1) to break or enter into with


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     subterfuge any building or occupied structure; (2) knowing he is
     not licensed or privileged to do so.        See 18 Pa.C.S.[] §
     3503(a)(1). On the other hand, to commit burglary, a person
     must: (1) enter a building or occupied structure; (2) with intent
     to commit a crime therein. See 18 Pa.C.S.[] § 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. See Jones, supra at 376, 912 A.2d
     at 827 (Newman, J., dissenting) (stating: “[N]ot every burglary is
     a criminal trespass, and vice versa.”).

Id. at 402.

     Based on our discussion and holding in Quintua, it is clear that

Appellant’s argument premised on Jones is meritless.       His sentences for

burglary and criminal trespass do not merge.

     Appellant’s next two claims challenge the sufficiency of the evidence to

sustain his convictions in the Hite case. To begin, we note our standard of

review:
           In reviewing a sufficiency of the evidence claim, we must
     determine whether the evidence admitted at trial, as well as all
     reasonable inferences drawn therefrom, when viewed in the light
     most favorable to the verdict winner, are sufficient to support all
     elements of the offense. Commonwealth v. Moreno, 14 A.3d
     133 (Pa. Super. 2011). Additionally, we may not reweigh the
     evidence or substitute our own judgment for that of the fact
     finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
     2009). The evidence may be entirely circumstantial as long as it
     links the accused to the crime beyond a reasonable doubt.
     Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).




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       In his third issue, Appellant contends that the trial court impermissibly

based its identification of him as the perpetrator of the Hite Company break-

in based on his possession of certain items — namely, the “Milwaukee grinder,

battery packs, a Klein back pack, and two crow bars” — that were found in

the Bucket of Suds office with Appellant when he was arrested one week later.

Appellant’s Brief at 20. He argues that the court’s finding that he possessed

these items contradicted its prior ruling on his pre-trial motion to suppress, in

which the court stated that,

      [t]here was no seizure of any of [Appellant’s] property[,] other
      than I gather his clothing after he was arrested and
      incarcerated[,] and that seizure was a consequence of a warrant.
      So I’m not here to even address that. The physical items were
      not — they did not belong to [Appellant], so there is not a seizure
      issue.

Id. at 21 (quoting N.T. Suppression Hearing, 12/3/18, at 35).           Appellant

insists that if the court found he did not own the at-issue items, it follows that

he also did not possess them. Id. Therefore, he claims that, under the legal

concept of “judicial estoppel,” the court “was bound to disassociate these

items with [Appellant’s] possession.” Id.

      Appellant’s argument is meritless.      The trial court never ruled that

Appellant did not possess the at-issue items during the suppression hearing;

instead, it simply stated that the items did not belong to him. See TCO I at

4 (citing N.T. Suppression Hearing at 35). The Commonwealth observes, and

we agree, that “possession and ownership can be mutually exclusive. One

need not own an item to possess it.” Commonwealth’s Brief at 19. Therefore,


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even if the trial court ruled that Appellant did not own the items for

suppression purposes, it was not bound to conclude that he did not possess

those items in determining his guilt. Appellant’s third issue is meritless.

      Finally, Appellant claims that the evidence was insufficient to prove that

he was the person who robbed the Hite Company.           He stresses that the

Commonwealth had only circumstantial proof of his identity, namely

“surveillance video showing the perpetrator’s generic clothing and alleged

possession [of] several generic tools of the same brand as were missing from

the [Hite Company,] and a paint sample taken from one of the tools matching

a paint transfer found on the safe.” Appellant’s Brief at 22. Appellant insists

that this evidence was inadequate to prove that he was the perpetrator in the

Hite case.

      We are unconvinced. As the Commonwealth explains, it

      elicited testimony from Bruce Ridgeway, the employee of the Hite
      Company, about the incident at his store on or about March 11-
      12, 2018. He testified as to the damage he observed when he
      arrived at the store. He noted a number of items that had been
      stolen, including Milwaukee tools and a camouflage Klein
      backpack. He testified that there was a broken window, damage
      to a Coke machine and damage to a safe. In addition to that direct
      evidence, the Commonwealth introduced photographs of the
      damaged areas and a surveillance video that caught the
      perpetrator inside and outside the building.

            The surveillance video showed the perpetrator wearing dark
      clothing, specifically gloves, dark pants, a hoodie with a light
      colored logo on the left chest area and a mask. At trial, the
      Commonwealth introduce[d] evidence that Appellant, when
      arrested at the Bucket of Suds car wash, was wearing similar
      clothing and was actually booked into the jail with that clothing.



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            The Commonwealth also introduced items recovered at the
      Bucket of Suds break in, specifically a Milwaukee grinder, batteries
      and a pry bar with yellow paint. The Milwaukee grinder and
      batteries were shown to be the same make and model as those
      stolen from the Hite Company. The[] yellow paint from the pry
      bar was found to be visually, microscopically, and instrumentally
      consistent with the yellow paint found on the Hite Company break
      in.

Commonwealth’s Brief at 21-22.

      We     agree   with   the   Commonwealth   that   this   evidence,     albeit

circumstantial, was sufficient to prove, beyond a reasonable doubt, that

Appellant was the perpetrator of the burglar at The Hite Company. See Koch,

39 A.2d at 1001 (stating that “[t]he evidence may be entirely circumstantial

as long as it links the accused to the crime beyond a reasonable doubt”)

(citation omitted); see also Commonwealth v. Feliciano, 67 A.3d 19, 23

(Pa. Super. 2013) (“The Commonwealth’s burden may be met by wholly

circumstantial evidence and any doubt about the defendant’s guilt is to be

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.” ) (citation omitted). Accordingly, Appellant’s challenge to the

sufficiency of the evidence to sustain his convictions in the Hite case is

meritless.

      Appeals at 693 WDA 2019 and 696 WDA 2019 quashed. Judgment of

sentence in 694 WDA 2019 vacated and case remanded for resentencing.

Judgment of sentence in 695 WDA 2019 affirmed.                  Superior Court




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Prothonotary is directed to return the certified record to the trial court.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2020




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