J-S47023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

 JOSEPH WEST

                             Appellant                   No. 2498 EDA 2015


               Appeal from the Judgment of Sentence July 13, 2015
               In the Court of Common Pleas of Montgomery County
                Criminal Division at No(s): CP-46-CR-0006619-2013


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                          FILED DECEMBER 01, 2017

       Joseph West appeals from the July 13, 2015 judgment of sentence

entered in the Montgomery County Court of Common Pleas following his

convictions for criminal attempt to commit burglary, conspiracy to commit

burglary, and conspiracy to commit criminal trespass.1 We affirm.

       The opinion of the Honorable Thomas P. Rogers summarized the

relevant factual and procedural history of this matter as follows:

            On Tuesday, March 19, 2013, Dr. Roger Tsai and his wife
            were relaxing downstairs in their two-story home on
            Gwynedd Lea Drive in the North Wales section of
            Montgomery Township, Montgomery County, between 1:00
            and 1:30 p.m. when they heard the doorbell ring and a
            knock at their front door. (Notes of Testimony (“N.T.”) Trial,
            4/8/15, at 29-31; Commonwealth Exhibit C-1 Photograph of
            Tsai two-story home). Believing that it was probably a
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       1   18 Pa.C.S. §§ 901(a), 903(a)(1), and 903(a)(1), respectively.
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       delivery from a carrier who would leave a package outside,
       they ignored the doorbell. (Id. at 31). Dr. Tsai was not
       expecting anyone at his home at that time. (Id. at 32).
       When the doorbell ringing and knocking persisted, and
       thinking it was unusual, Dr. Tsai went upstairs to look
       outside a window over the front entrance to see who was at
       their door. (Id.). Once there, Dr. Tsai saw two (2) African–
       American males that he did not recognize and had not seen
       before wearing dark sweatshirts at his front door entrance.
       (Id. at 32-33).

          Following a minute or two of knocking and ringing of the
       doorbell without getting a response, Dr. Tsai observed the
       two men walk away from his front door and over to a van
       parked across the street. (Id. at 33-34). Dr. Tsai watched
       as the two men got into the van. Because of what had just
       occurred, Dr. Tsai retrieved his camera with a zoom lens and
       photographed the vehicle with its license plate (JFE 9210)
       before it drove away. (Id. at 34-35; Commonwealth Exhibit
       C-2 Photograph of vehicle).

           After the van pulled away, it drove around the block,
       passed by the Tsai home and parked a few houses down on
       the street. (Id.). Dr. Tsai watched as three (3) men got
       out of the van, crossed the street and walked toward his
       house. (Id. at 35). Dr. Tsai took photographs of one of the
       men as he approached the Tsai home. (Id. at 35-36;
       Commonwealth Exhibit C-2). As the men got closer to his
       home, Dr. Tsai dialed 911. (Id. at 36). While Dr. Tsai was
       on the phone with the police, he lost sight of the men as
       they got very close to the front of his house. At this point
       he heard a loud banging noise coming from the front of his
       house. (Id. at 36-37). He looked down to the first floor
       living room and noticed an open window. (Id. at 37; N.T.
       Sentencing Hearing, 7/13/15, at 18). Since it was the
       middle of March and cold outside, he knew that neither he
       nor his wife had opened that window. (N.T. Trial 4/8/15 at
       37-38). Dr. Tsai started yelling so that the men could hear
       him. (Id. at 37). Looking out the second floor window
       again, he saw the three men walking away from his house
       and he took another photograph. (Id. at 37-38;
       Commonwealth Exhibit C-2 Photograph of three men
       walking away from the Tsai home).



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          Montgomery Township Police Department responded to
       the call at 1:47 p.m. and investigated the open window on
       the front of the Tsai home. (N.T. Trial 4/8/15, at 40;
       Affidavit of Probable Cause sworn on 8/6/13). Dr. Tsai
       noticed pry marks on the window that had just been
       installed as new a few months before, indicating an
       attempted forced entry. (Id. at 38, 39). In addition, Dr.
       Tsai noticed that the window lock had been broken. (Id. at
       39-40).

           Montgomery Township Police Department broadcasted a
       description of the suspects and their vehicle to area police
       departments. (N.T. Sentencing at 18-19). At approximately
       2:00 p.m. on March 19, 2013, a gold Dodge Caravan with
       license plate number JFE 9210 was reported stolen to the
       Philadelphia Police Department. (N.T. Sentencing at 19;
       Affidavit of Probable Cause). Cheltenham Township Police
       Department located the same gold Dodge Caravan shortly
       after 2:00 p.m. that day in an Aldi parking lot. (N.T. Trial
       4/8/15, at 46). After securing a search warrant, a search of
       the Caravan by Montgomery Township Police Department
       netted several items, including two (2) crowbars, a
       screwdriver, two (2) sweatshirts, one (1) black leather Nike
       glove and two (2) black knit gloves. (Id. at 47-51; N.T.
       Habeas Corpus Hearing 1/8/14, Commonwealth Exhibit C-5
       Receipt/Inventory). DNA testing from these items resulted
       in no interpretable results. (N.T. Trial 4/8/15, at 46).
       Fingerprint testing resulted in a match for only one person,
       not [West]. (Id.).

          After showing the photographs taken by Dr. Tsai on
       March 19, 2013, to other law enforcement officers, police
       were eventually able to identify [West] as one of the men in
       those photographs.       (Id.; N.T. Sentencing at 19).
       Montgomery Township Police Department filed a criminal
       complaint with an affidavit of probable cause and arrested
       [West] on August 15, 2013. [West] filed a petition for writ
       of habeas corpus and, after a hearing on January 8, 2014,
       the court found that the Commonwealth had met its burden
       of establishing a prima facie case. (N.T. Habeas Corpus
       Hearing 1/8/14 at 37). [West] proceeded to trial. On April
       6, 2015, the Commonwealth filed a motion in limine to
       introduce [West]’s police booking photographs at trial to
       help prove that [West] was the person shown in Dr. Tsai’s
       photographs approaching the Tsai home on March 19, 2013.

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       (Commonwealth’s Motion in Limine filed April 6, 2015). On
       the morning of the first day of trial, counsel reached an
       agreement that resulted in the Commonwealth taking
       photographs of [West] that day in the courtroom outside the
       presence of the jury instead of using the police booking
       photographs. (N.T. Trial 4/8/15, at 3-4).

           The Commonwealth presented the testimony of Dr. Tsai
       regarding the events of March 19, 2013, at his home and
       what     Dr.   Tsai   personally   heard,   observed   and
       photographed. (Id. at 29-39; Commonwealth Exhibits C-1,
       2). [West] had the opportunity to test that evidence on
       cross examination. (Id. at 39-44). The Commonwealth then
       presented the testimony of Montgomery Township Police
       Officer Daniel Rose.      Officer Rose testified about his
       execution of a search warrant on the gold Dodge Caravan
       and the items he recovered therein. (Id. at 47-52). [West]
       again tested the Commonwealth’s evidence on cross
       examination. (Id. at 52-55). At the close of testimony, the
       Commonwealth introduced photographs by agreement that
       fairly and accurately showed what [West] looked like in the
       courtroom on that day. (N.T. Trial 4/8/15, at 57-58;
       Commonwealth Exhibit C-7).

          In his opening statement and at the close of trial,
       Defense Counsel pointed to the lack of DNA, fingerprint and
       cell phone evidence as well as Dr. Tsai’s failure on the
       witness stand to identify [West] as the person in the
       photograph that Dr. Tsai took, in support of Counsel’s
       argument that the Commonwealth had not proven its case
       beyond a reasonable doubt. (N.T. Trial Opening Statements
       and Closing Arguments 4/8/15 and 4/9/15 at 8-9, 10-15).
       Counsel conceded that there were similarities between the
       individual in the photograph taken on March 19, 2013, and
       [West], but argued that the photographs were insufficient
       evidence without anything else to put him at the Tsai home
       or in the stolen van. (Id. at 14-15).

          For his closing argument, Assistant District Attorney
       Benjamin McKenna presented a detailed, comparative
       analysis of the photographs taken of [West] in the
       courtroom with the photographs taken by Dr. Tsai on March
       19, 2013. (Id. at 22-25). He explained that even if Dr. Tsai
       had identified [West] from the witness stand, the jury
       members would still have to weigh the evidence and come

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        to their own conclusion regarding the photograph taken on
        March 19, 2013. (Id. at 20-21). Using blow-ups of two of
        the photographs in evidence, ADA McKenna specifically
        pointed to the marked similarities between the two,
        including: the hairline, chinstrap beard, hair (including
        sparse spots, waves and curls), nose, lips, chin, ear,
        mustache, forehead, mark on the forehead and eyebrow.
        (Id. at 22-25; N.T. Trial 4/9/15 at 38-39).

           As noted above, the jury found [West] guilty on one
        count of criminal attempt and two counts of criminal
        conspiracy. The court granted the Commonwealth’s motion
        to nol[le] pros count 4 criminal mischief and count 5
        possession of an instrument of crime. On June 5, 2015,
        [West] mailed a pro se Petition for Judgement [sic] of
        Acquital [sic], which the Clerk of Courts docketed on June
        9, 2015. This court denied the petition on June 23, 2015.
        The undersigned imposed [West]’s sentence on Monday,
        July 13, 2015. (N.T. Sentencing Hearing 7/13/15, at 23-
        24). [West] did not file any post-sentence motions. Instead,
        [West] sent a pro se Petition for Post-Conviction Collateral
        Relief dated July 14, 2015, which the Clerk of Courts
        docketed on July 22, 2015. On July 15, 2015, [West] mailed
        a pro se notice of appeal, which the Clerk of Courts docketed
        on August 17, 2015.

           The undersigned appointed the Montgomery County
        Public Defender’s Office to represent [West] and directed
        [West] to file a Concise Statement of the Matters
        Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b)
        (“Statement”) by order dated August 20, 2015. The court
        granted [West]’s two requests (September 18, 2015 and
        December 1, 2015) for extensions to file his Statement. On
        September 4, 2015, this court also granted [West]’s request
        to withdraw his pro se PCRA petition without prejudice
        pending his direct appeal. [West] subsequently filed his
        Statement on December 31, 2015.

Opinion, 12/29/16, at 2-8 (“1925(a) Op.”).

     West raises the following issues on appeal:

        I. Was the evidence insufficient to prove [West]’s guilt
        beyond a reasonable doubt, where the evidence was
        insufficient to identify [West] as the perpetrator of the
        charged offenses?

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         II. Was the evidence insufficient to establish each element
         of the crimes of attempt burglary and conspiracy to commit
         burglary beyond a reasonable doubt where, at most, the
         evidence and reasonable inferences only established the
         crime of criminal trespass?

West’s Br. at 4 (answers below omitted).

      Our standard of review for a claim challenging sufficiency of the

evidence is well-settled:

             We must determine whether the evidence admitted at
         trial, and all reasonable inferences drawn therefrom, when
         viewed in a light most favorable to the Commonwealth as
         verdict winner, support the conviction beyond a reasonable
         doubt. Where there is sufficient evidence to enable the trier
         of fact to find every element of the crime has been
         established beyond a reasonable doubt, the sufficiency of
         the evidence claim must fail.

             The evidence established at trial need not preclude every
         possibility of innocence and the fact-finder is free to believe
         all, part, or none of the evidence presented. It is not within
         the province of this Court to re-weigh the evidence and
         substitute our judgment for that of the fact-finder. 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.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

      West first claims that the evidence was insufficient to identify him as the

perpetrator of the crimes committed.     “[E]vidence of identification need not

be positive and certain to sustain a conviction.” Commonwealth v. Orr, 38

A.3d 868, 874 (Pa.Super. 2011) (quoting Commonwealth v. Jones, 954



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A.2d 1194, 1197 (Pa.Super. 2008)). “[A]ny indefiniteness and uncertainty in

. . . identification testimony goes to its weight.” Id. (quoting Commonwealth

v. Minnis, 458 A.2d 231, 233 (Pa.Super. 1983)). Accordingly, “[t]he weight

to   be     given   to   identification   testimony   is   for   the   trier   of   fact.”

Commonwealth v. Whitman, 380 A.2d 1284, 1289 (Pa.Super. 1977).

       At trial, the Commonwealth admitted photographs taken by Dr. Tsai on

the day of the incident into evidence. N.T., 4/8/16, at 34. Dr. Tsai described

one photograph as “a picture of the one of the man [sic] that approached my

house” and another photograph as “the same person, a little bit close up,

different shot.”     Id. at 35-36. The Commonwealth also admitted, without

objection, another photograph that the parties stipulated “fairly and

accurately shows what [West] looks like today in court.” Id. at 57. Viewing

the evidence in the light most favorable to the Commonwealth as the verdict

winner, we conclude that there was sufficient evidence to support the

identification of West as the perpetrator of the crimes. Any indefiniteness and

uncertainty regarding the photographic evidence admitted goes to its weight,

which is a question for the jury as fact-finder.2

       West next challenges the sufficiency of the evidence supporting his

convictions for attempted burglary and conspiracy to commit burglary.




____________________________________________


       2   West does not challenge the weight of the evidence on appeal.

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Specifically, West contends that there was no evidence that any of the

intruders intended to commit a crime inside the home.

     “At both common law and statutory law, the crime of burglary or

attempted burglary encompasses the element of intent to commit a felony or

any qualified crime within the burglarized premises.”    Commonwealth v.

Wilamowski, 633 A.2d 141, 142 (Pa. 1993). “[I]ntent . . . can be inferred

from the circumstantial evidence surrounding the incident.”    Id. We have

discussed the elements of criminal conspiracy as follows:

            A conviction for criminal conspiracy, 18 Pa.C.S.[] § 903,
        is sustained where the Commonwealth establishes that the
        defendant entered an agreement to commit or aid in an
        unlawful act with another person or persons with a shared
        criminal intent and an overt act was done in furtherance of
        the conspiracy.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002).

     The trial court found that:

           Instantly, the Commonwealth presented evidence that
        two men Dr. Tsai did not know and did not invite to his home
        came to his front door on March 19, 2013, rang the doorbell
        and knocked several times before walking away, having
        received no response. One logical inference is that those
        two men were casing the home. The two men got into a
        Dodge Caravan, which then drove around the block and
        parked further away on the street from the Tsai home before
        three men got out. Those three men then approached the
        Tsai home. Dr. Tsai took close-up photographs of one of
        those three men. While Dr. Tsai was upstairs and lost visual
        contact of the men because they were close to his house,
        he heard a banging noise on the front of his house. When
        he looked down into the first floor living area, Dr. Tsai saw
        the curtains on one window blowing into the house and
        realized that the window had been opened. Since it was
        mid-March and cold outside, he knew that neither he nor his


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           wife had opened that window. After Dr. Tsai yelled loudly,
           the three men then walked away from the Tsai home and
           got back into the Dodge Caravan. Dr. Tsai testified that the
           window and frame were new and had just been installed in
           their home a few months earlier and now had pry marks on
           it and a broken lock. Shortly thereafter, police officers found
           two crowbars, a screwdriver, two black sweatshirts and
           gloves inside of that same Dodge Caravan, which had been
           reported stolen after the attempted burglary. Police officers
           later identified [West] as the person they recognized in Dr.
           Tsai’s photograph.

               One logical inference is that after receiving no response
           to their initial knocking and ringing of the doorbell to see if
           anyone was home, the three men moved the van farther
           away from the Tsai home before attempting to enter it so
           that no one would later connect the vehicle with the Tsai
           home. Another logical inference is that at least one of these
           three men used a crowbar to break the lock and pry open
           the downstairs window of the Tsai home with the intent to
           gain entry for an illegal purpose. Once they realized that
           someone was actually inside the house, the three men left.
           It is not necessarily surprising that they walked away, rather
           than ran, so as to avoid drawing attention to themselves
           and raising suspicion by anyone else in the neighborhood
           that may have been home at the time. The Commonwealth
           established sufficient evidence at trial to sustain a conviction
           for attempted burglary, criminal conspiracy to commit
           burglary and criminal conspiracy to commit trespass.[3]

1925(a) Op. at 14-15. Viewing the evidence in the light most favorable to the

Commonwealth as the verdict winner, we agree with the trial court’s

conclusion that there was sufficient evidence to support West’s convictions for

attempted burglary and conspiracy to commit burglary, including that West

intended to commit a crime within the burglarized premises.


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       3West does not challenge his conviction for conspiracy to commit
trespass on appeal.

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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2017




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