J-S22004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JERRY LEE RITCHEY, JR.

                            Appellant                 No. 96 WDA 2014


          Appeal from the Judgment of Sentence December 10, 2013
              In the Court of Common Pleas of Venango County
             Criminal Division at No(s): CP-61-CR-0000029-2012


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                              FILED JUNE 17, 2015

        Appellant, Jerry Lee Ritchey, Jr., appeals from the judgment of

sentence entered by the Honorable Oliver J. Lobaugh, Court of Common

Pleas of Venango County, after a jury convicted Ritchey on a variety of

charges arising from a string of late night commercial burglaries. We affirm.

        After an extensive investigation, including placing a GPS tracker on

Ritchey’s vehicle, the Commonwealth charged Ritchey with 16 counts of

crimes associated with the burglary of 5 buildings, as well as an attempted

burglary.     A jury convicted Ritchey on the 13 misdemeanor and felony

charges, while the trial court found Ritchey guilty on the remaining 3

charges of summary criminal mischief.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S22004-15


       On December 10, 2013, the trial court sentenced Ritchey to an

aggregate term of incarceration of 96 to 192 months.       This timely appeal

followed.

       On appeal, Ritchey raises six issues for our review.   The first three

issues concern the propriety of the trial court’s decision to permit the

Commonwealth to introduce evidence obtained pursuant to the GPS

tracking. After reviewing the briefs of the parties and the certified record,

we conclude that the trial court’s June 24, 2013 opinion thoroughly and

adequately addresses the issues raised by Ritchey.1 We therefore affirm on

____________________________________________


1
  The trial court found that Ritchey’s challenge to the jurisdiction of the
Allegheny County Court of Common Pleas merited no relief as the argument
was based on a subsequent amendment to the Wiretap Act and that under
the then-existing language of the Wiretap Act, Allegheny County Court of
Common Pleas had jurisdiction. While we agree with the trial court’s
reasoning, we further note that even under the subsequent amendment,
Allegheny County had jurisdiction to approve the wiretap application. Under
the amendment, the “court issuing the order must have jurisdiction over the
offense under investigation.” 18 Pa.C.S.A. § 5761(b).

       Controversies arising out of violations of the Crimes Code are
       entrusted to the original jurisdiction of the courts of common
       pleas for resolution. See 18 Pa.C.S. § 102. Every jurist within
       that tier of the unified judicial system is competent to hear and
       decide a matter arising out of the Crimes Code. Pa. Const. Art.
       5, § 5 (establishing the jurisdiction of the courts of common
       pleas within the unified judicial system).

Commonwealth v. Whanger, 30 A.3d 1212 (Pa. Super. 2011). Thus, the
amendment served to expand jurisdiction to any Common Pleas court, not
contract it.


(Footnote Continued Next Page)


                                           -2-
J-S22004-15


these issues on the basis of Judge Lobaugh’s well-written opinion. See Trial

Court Opinion, 6/24/13.

      Next, Ritchey challenges the sufficiency of the evidence supporting his

convictions. After reviewing the briefs of the parties and the certified record,

we conclude that the trial court’s June 17, 2014 opinion thoroughly and

adequately addresses this issue. See Trial Court Opinion, 6/17/14, at 5-12.

We therefore affirm on this issue on the basis of Judge Lobaugh’s well-

written opinion.

      Next, Ritchey challenges the trial court’s decision to allow the

introduction of evidence of prior criminal convictions. Specifically, the trial

court allowed the Commonwealth to present evidence of Ritchey’s burglary
                       _______________________
(Footnote Continued)

      We disagree with the concurring memorandum’s suggestion that the
foregoing is an “incorrect” summary of the law. Concurring Memorandum,
at 1-2. The concurring memorandum (and also 16 West Pa. Prac., Criminal
Practice § 11:4) cites an older Superior Court case that repeated a common
mistake, since explicitly repudiated by the Supreme Court of Pennsylvania,
of confusing jurisdiction with venue.

       In Commonwealth v. Bethea, 828 A.2d 1066 (Pa. 2003), the Court
noted that these terms were often used interchangeably, but reiterated that
they were distinct legal categories. See id., at 1074-1075. Importantly,
the Court stated that “each court of common pleas within this
Commonwealth possesses the same subject matter jurisdiction to resolve
cases arising under the Pennsylvania Crimes Code, that jurisdiction should
only be exercised beyond the territorial boundaries of the judicial district in
which it sits in the most limited of circumstances. Rules of venue recognize
the propriety of imposing geographic limitations on the exercise of
jurisdiction.” Id., at 1075 (emphasis added). And “venue pertains to the
locality most convenient to the proper disposition of a matter.” Id., at
1074-1075.



                                            -3-
J-S22004-15


convictions in Clearfield County as evidence of a common scheme, design or

plan. We note that

      the admission of evidence is within the sound discretion of the
      trial court and will be reversed only upon a showing that the trial
      court clearly abused its discretion. Admissibility depends on
      relevance and probative value. Evidence is relevant if it logically
      tends to establish a material fact in the case, tends to make a
      fact at issue more or less probable or supports a reasonable
      inference or presumption regarding a material fact. Evidence,
      even if relevant, may be excluded if its probative value is
      outweighed by the potential prejudice.

Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012)

(internal citations omitted).

      It is impermissible to present evidence at trial of a defendant’s prior

bad acts or crimes to establish the defendant’s criminal character or

proclivities.   See Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.

Super. 2008).     Such evidence, however, may be admissible “where it is

relevant for some other legitimate purpose and not utilized solely to blacken

the defendant’s character.”     Commonwealth v. Russell, 938 A.2d 1082,

1092 (Pa. Super. 2007) (citation omitted).

      Pennsylvania Rule of Evidence 404(b)(2) provides that “[e]vidence of

other crimes, wrongs, or acts may be admitted for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity

or absence of mistake or accident.”          Pa.R.E., Rule 404(b)(2).       Rule

404(b)(3), however, mandates that other crimes, wrongs, or acts evidence

“may be admitted in a criminal case only upon a showing that the probative


                                     -4-
J-S22004-15


value of the evidence outweighs its potential for prejudice.”    Pa.R.E., Rule

404(b)(3). See also Russell, 938 A.2d at 1092. “‘Unfair prejudice’ means a

tendency to suggest decision on an improper basis or divert the jury’s

attention away from its duty of weighing the evidence impartially.”

Commonwealth v. Wright, 961 A.2d 119, 151 (Pa. 2008) (citation

omitted).

      “[T]he function of the trial court is to balance the alleged prejudicial

effect of the evidence against its probative value and it is not for an

appellate court to usurp that function.” Commonwealth v. Parker, 882

A.2d 488, 492 (Pa. Super. 2005) (citation omitted).        The law does not

require a court to “sanitize a trial to eliminate all unpleasant facts from the

jury’s consideration where those facts are relevant to the issues at hand and

form part of the history and natural development of the events and offenses

for which the defendant is charged.”    Commonwealth v. Page, 965 A.2d

1212, 1220 (Pa. Super. 2009) (citation omitted).

      The trial court found that there were 10 “commonalities” between the

crimes for which Ritchey was being tried in Venango County and the crimes

committed in Clearfield County. These commonalities included the fact that

the victims were commercial businesses which were broken into after

business hours;   forcible entry using a pry bar; the disabling of security

cameras by cutting their electrical wires; the primary goal of the burglaries

was cash, not equipment or other products; evidence that the burglar


                                     -5-
J-S22004-15


utilized gloves during the break-ins; a unique shoe print was found at each

of the ten burglary sites; and that the defendant had bought shoes with that

print prior to the burglaries.   See Trial Court Opinion, 6/24/13, at 18-19.

We cannot conclude that the trial court’s reasoning constituted an abuse of

discretion, and therefore find that Ritchey’s argument merits no relief.

      In his final issue on appeal, Ritchey contends that the trial court

abused its discretion in imposing sentence.       Ritchey concedes that this

argument constitutes a challenge to the discretionary aspects of his

sentence. See Appellant’s Brief, at 24.

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence.        See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be

met before we will review this challenge on its merits.” McAfee, 849 A.2d

at 274 (citation omitted). “First, an appellant must set forth in his brief a

concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence.” Id. (citation omitted).

      “Second, the appellant must show that there is a substantial question

that the sentence imposed is not appropriate under the Sentencing Code.”


                                     -6-
J-S22004-15


Id. (citation omitted).    That is, “the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a

particular fundamental norm underlying the sentencing process.”      Tirado,

870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)

statement to determine whether a substantial question exists. See id. “Our

inquiry must focus on the reasons for which the appeal is sought, in contrast

to the facts underlying the appeal, which are necessary only to decide the

appeal on the merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f).

      In the present case, Ritchey’s appellate brief contains the requisite

Rule 2119(f) concise statement, and, as such, is in technical compliance with

the requirements to challenge the discretionary aspects of a sentence.

Ritchey argues in his Rule 2119(f) statement that the imposition of

consecutive standard range sentences, as opposed to concurrent sentences,

by the trial court was excessive, and that the trial court failed to consider

the impact of his sentence on his children and ill parents. Ritchey further

argues that the trial court failed to consider his remorsefulness.

      “[W]here a sentence is within the standard range of the guidelines,

Pennsylvania law views the sentence as appropriate under the Sentencing

Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)

(internal citations omitted). The imposition of consecutive, rather than

concurrent, sentences may raise a substantial question in only the most

extreme circumstances, such as where the aggregate sentence is unduly


                                     -7-
J-S22004-15


harsh, considering the nature of the crimes and the length of imprisonment.

See id., at 171-172 (Pa. Super. 2010). Given the pre-meditated nature of

Ritchey’s burglary spree, we conclude that the sentences at issue do not fall

into the category of extreme circumstances, and therefore, Ritchey has not

raised a substantial question.

      As we conclude that none of Ritchey’s issues on appeal merit relief, we

affirm the judgment of sentence.

      Judgment of sentence affirmed. Jurisdiction relinquished.

      Judge Lazarus joins the memorandum.

      Judge Strassburger files a concurring memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2015




                                    -8-
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            IN 'llll~ COUWI' OF COi'vlMON p1,1~,.\S OF VEN,\NGO                    COUNTY,
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                                       Ol'INJON OF COUHT                                                 .,.
                                                                                                        (.,.)
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          AN)) NOW, June       ;)}L 2013, the Com! has !~>r considcnulon           the ivtotion in

Llminc regarding the admission of evidence ohwincd tluuugh a OPS trucker filed by the

Dclcndnnt, Jerry Lee Ritchey. Jr. A hearin]; was held on tbo Motion                011   ,vl<1n;h 18. 20 l3 at

which time Dcfcndnnt was present und represented by counsel lk11j11mi11 Levine, Esq.

and the Co111111n11,wallh was represented by District Auomcy Mmic Vcon, The nuorncys

were gi vcn uni i I ~,Jmch 21 , 2013 lo It le n wri ucn memo on thu mot ion nnd the Court

heard nrgumcn! on Mm'ch 211 201 J. Defense Counsel filed his Memornndllm                       or Law in
Suppt»: oflssucs       Raised in Limlne Motion       011   ,vlnrd1 21, 2013. The Commonwcnlth filed

its Memorandum         in Opposition   10   the Dctcndants     Moti@ lo Suppress or Limit Evidcncc

on Mt1~· 7, 2011 After carclu] considenuion ul' the i\-101ion, 11,c urguuicnt» of counsel,

tcstimuny, and the Mc1rn1rn11dn filed by the C1\lor11cys, the Motion will be denied,

          The Criminal Complaint with attached ,\Jfolnvl\           or Probable Cause wns filed with
Mngh,tcri~ll Dbmict Judge Douglas Dinberg on November 23, 2011 nlkging                                      1hnt

:ml'lkicnt probuble cause existed lo believe tluu the defendant                hnd w1111ni11cd lh1rglnry

under 18 Pu. C.S.J\. ~3502 (a), Thell bv Unluwful Taking ur Dispositlo» under 18 Pn.

C.S.,\.   * 3~)21 (a). Criminul ivlbelikJ"u11dc1· 18 Pa. C.S.1\.          § J304 (u) (:il, and Criminal

Aucmpt to Commit Burg.lmy under 18 Pa. C.S.,\. 90 I               (H).   Dc:!'cmlant hrnl his preliminary
                                                                                                           Circulated 05/28/2015 10:46 AM




nrmigruncm on December                I, 2011. His preliminary               hearing     was cuntinucd once ru the

1\.'~lLWSl of'   the prosecution, once at the request ul' 1h~ defense attorney nnd wm; uliinuucly

wuivcd bv~ 1111.: Defendant on Januarv., I I.. 2012. On Mnrch 30.' 2012. an tnformution                                  \\'US

!ikd alleging Ilve counts           or Bmglnry,       second degn .'L\ Iclonics under I H l'u, C.S.A. *}502

(a); five counts of Thcl't by Unlnwl\11 Taking, misdemeanors of the first degree under 18

Pa. C.S.,t\.     * 3921 (u): live counts ol' Crimlnnl Mischief,                  :-:1111t1llHl'Y   offenses under 18 Pa.

C.S.J\. § .3304 (a)(5); nnd one count of Criminal Aucmpt to Commit nurgl!lr>·1 n second

degree felony under 18 Pn . C.S./\. § ~>01 and 18 Pa. C.S.1\. ~ 3502 (a).

          On September 27. 2012 the Honorable H. Willi nm White grnnll!d the i\fotlon                                      10

Wi thdruw lilcd hy        .r. D.   Ry1111) Esq.)   J)c l'cndunt'~    originu I counsel, On October I G. 2012

Auorncy Jeri Bohon entered her appeurance                      011   behalf     or the      Dclcndum for the l'ublic

Defender's        Ol'lict:. On Oc1obL·1· 26. 2012 this Court w·nnlcd a Mntion lc>r u Continuance
                                              •                         'r




of the trial Illcd bv. Defense
                          .    Counsel due to th,· volumlnous                       amount         or discovcrv .   received

from the Conuuonwcnlth.              On December 19, 2012 this Court granted nnmhcr Contiuunncc

or Jury Selection as the             1)1..fcndaru's    uuorncy was leaving her position at the Public

Defender's        Office nm! his now counxc] would need sufficient time to review the file and

meet with 1hc Dcfcndnn; to discuss hi\; cuse. 1\l1orncr l\c11ji1min Levine entered his

uppcarauce on bchnlf ol' the Defendant                  011   Fchrnnry 111 2013. 1\ jmy was selected on

i'vlnrch 4. 20 I J for ,, three day trial whicl: was scheduled for ~fon.:h IR, I(). nnd 21 . 2013

in Courtroom I nfihc Vcnungo County Courthouse.                              On the eve ot'rrinl, March 15, 2013,

Defense Counsel riled the instant Motiun in l.imine und nrnlly souglu u continuance                                        of

th<:   trinl. The cuntinuunce wos granted.
                                                                                                         Circulated 05/28/2015 10:46 AM




           In his i'v!otion in Li mine, the Di..·l~·ndant seeks the preclusion flt irinl of 1h1.· results

of' ihc Global l'uxitil)ning System device, heruinaftcr referred to us "(iJ>S," as well ns uny

mlditionnl evidence        procured through senrch warrunts hucr executed and bused in part

upon the nnulysls of the OPS evidence.                      Dcfenduuts       nrgument for suppression             or the
evidence is that the evidence obtained u~ing the OPS is inudmissiblc                                bused on the recent

Supreme Court decision          nr U.S.          v. Jones. 132 S. Ct. 9115 (2012) nm! the subsequent

Pennsylvania ~upei·lor Court decision ol' Com. ,·. /J/1/',l;lo.1·. <i1l 1\Jd (i41 (Pu. Super. 2013).

Dcfcudunt Iurt her urguos uuu, i r the evidence                     obtained      through the G PS is deemed

udmissibic, the evidence should still be suppressed                      us i1s probative vnluc is outweighed

hy the danger u] unluir prejudice, confusion of the issues, or mislvuding tJ)c jury, Final Ir,

the Delcndnnt         11rgt1cs tluu the Communwenlth                should not be nblc tn use the                111od11.1·


O/Jl!l'muli, identity exception      111   Pi\    kulc nl' Evidence      ~()<I   (h) in order to present evidence

or other    similar crimes, wrongs         01·   ucts ttl trial,

           Accordiug to the 1\t'l1<lnvit ol' Specific Articulublc                 FH1,;ls 1'01·    Jnsmlliug Electronic

Trucker the lucis alleged       IO   link the dclcndunt to the burglnrie» nre as follow», llctwccn

December       23, 20 IO and July I, 2011 there wus u string nl' twcuty-ninc                                  nighttime

commercial burglmil's in Vc1111ngl) County, PA. Each business was entered by force and

nny security      systems     were dis.1hkd prhuurily by cutting                           01·   dnmnging    pbono line

connections.     Tile burglar p1·irnul'ily removed cash trom the premises uud the combined

losses totaled uvcr $2.1,000.00. Due                   In   the dcfcndunt' s presence              ul   two cummcrciul

burglary ll>nt\tl)m, shortly bclorc the burglurics occurred und his prior criminal histoty ol'

lhel'l convictions,      the dcfcndun: Jerry l.co Ri1ch1J>'. .lr,                 '''LlS    developed as n suspect.

Clnrion County I'onnsylvunln Stntc Pollcc had also identified                              the del'e11dan1 us a suspect



                                                              ...
                                                              ,)
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in a commercial burglnry occurring in Clarion Co11111y in Jununry of 2011 based upon lire

truck imprints ul' Dunlop       SP (>0 tires recovered       111   the scene. On June 12, 2011 Clarion

PSP observed n 1998 Toyota Camry hearing l't\ REG HOK-82.10. registered 10 Jerry

Ritchoy Jr., with Dunlop ~p C,O tires, Clarion PSP nuulc contact with th<.: dclbnd11nt ubuut

thL' tires on his Tovotu Cnmry 011 June 15. 2011 in the pnrking lol of Sheetz in Clurlon,

Pcunsylvnniu. Aller 8pc:iking with the police, the dcfondant                     Ritchey replaced the tires         \)11



his Toyotu Conny.

           1\ccordi11g to the Alfidavi!    in question, the l'cnnsylvnuia Stt1lc Police beg1111 visuul

survcillunce     of the defendant during the nighunnc hours, Ritchey was observed m an Oil

City residence and a ~trnttanvilk             residence. H<.: wns observed npern(ing                       th~ Tuyotu

Cnmrv          and    the    20 IO        lvlazdn   sednn,          \I ch kit!       l<l1.:111i lkHl ion     Nnmher

.IM l BLI 8011\ I 225D4       on which the GPS unckcr              \\'Us   ovcntunlly installed. The t·vlnzdn

wnx owned by l<ilche~·':; employer Dunicl Luton or Luton l'lumbing uud Hcnting. While

he wus under visual surveillance             on July l. 201 l, the l)d'cnclrnll kit his Oil City

residence in the Muzdu at I :00 u.m. Shortly thcrcnfrcr visual survcilluncc ended                            10   avoid

detection. S11hi,cq11c11t!y1 between 2:20 a.m. and 2:25 n.m.,                       tho security       system wns

disabled at 84 L111nb\!r on Roule 25 7 in Cranberry                Townshi l\ V cna11g11 County, furced

1;111r,·' was mode.. and $600.00 in U.S. currcncv. wn~ taken nt1t                  or the office.     1\1 3: IO 11.m.

t111   electric plute render providing survc i I lance o [' Roule: 25 7 recorded the Mnzdu phue

HSD4223 travcliug northbound              away from R4 I .umbcr and towards the dctcndam is Oil

City residence. Hours before the b11rglnry1 the defendant                        visircd 811 L111nbL'l' and was

udmiucd 11., the office for ubout a half on hour. Addiiionul information from 84 Lumber




                                                    ,J
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includes n cell phone number of 814-516-3015                          provided    lo   them us a contact number by

Jerry i{ ilchcy.

         l3ased on these n1ets alleged in the nmduvi(, n GP~ tracking device was plncccl

underneath the ivlnzd11 by 11 Court Order pursuaut lo 18 Pa. C.S./\.                          §576 I obtained from

the Allegheny County Court or Common l'lcns on July !), 2011. Thu tracker placed the

1Vh1ida in the vicinity of four commercial burglaries thut occurred on the night                             or July 20   1




2011~.luly 21, 21)11, namely, The Apex Hydraulic und iV!achine Company,                                       and D.C.

Enterprises    both locutcd along the Philipslmrginiglor Highway                             111 Decatur Township.

Clearfield     County,        the T.L.              Bainey      Trucking         Compan)'      located      along       th~

Philipsburg/Biglcl'         Highway in Brndl'mu Tmvn:,;hip, and ihc Hrnd!'onl Township

Municipu] Building, Clcuriiold County. The defendant was seen by video surveillance Ill

the nrookYille Sheetz prior to the time the burglaries were committed                                    and wus seen

ex iring the M(lzdu when he returned to his home hy u member ol' the surveillance team,

A n~r   his arrest, subsequent search warrn 111.'> were executed                         tor Dclcndnnt' s Oil City

Residence uud Slrnttnnvi I 10 Residence and additionul evidence wns obtained lrom those

locations.

         I.         GPS Trncking Dcvlce

         To prevail on n motion to supprc~~ evidence, the dd~~IKl.\lll "hHS 1he prclimi\\nry

burden ol'cstnbli:;hing       stumling n11d         H   lcgirimute expectation ofprivacy." Com. ,,. 8111·/011,

1)73 /\.2d 1128, 435 (Pa. Super. 2009)(<!11 bane). When the object searched is                            II vehicle,   tho

delcnduru uiust provide proof' or ownership or a strong showing                             or II posscssory     interest

in thl.! vehicle.     1\1   the hcnring the Distric! Auornov                      conceded     1l1c1t   Dclcudnnt       hud

estnblishcd   swnding       and   :i   lcgitinuuc       cxpcctution     or privacy     in the Mnzdu vehicle with          II
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vehicle   idenliiicntiou      number of JMl.)LISCilJ\1225734                nnd n Pcnnsylvnnin Rcgisnution

N11n1b~r ol' HSD-4223 owned by defendant's                         employer Luton Plumbing und Hoatlng,

Ddendunt had a possossory interest in tho Mut'.dn as he was making monthly payments                                10

his employer       in order to purchase the Muzdu. Once the defendant                               hn:,; established

stnnding, the burden shins to the Commonwealth "to establish hy a prcpondernnce nf th0

evidence tluu !he challenged evidence is admissible."                      C:0111.   v. Powell. 99{l A,2d I 0%,

110 I (Pa. Super. 20 ! O)(citulions omitted).

          In 2012, nlkr the wircmp worrnnt hnd been obtained in t his case, the Un] tcd States

Supreme Court ruled in UnitiJcl States              11 •   Jones. thitl the placement of u GPS device on n

suspcct's car constitutes a search. 132 S.CI. 945, 949 (2() 12). Evidcnc(! obtained from a

warrnrulcss use of a OPS device on the supsccts car wn:; held to violate the Fourth

Amendment.       See Id. al 941). The rumificntlon» or this ruling have been discussed in two

Pcnnsylvnnin Superior Court decisions, Com. ,,. Arthur. 62 A.Jd 424 (Pa. Super. 2013)

and Com. ,,. B11l'gos, 611 A.Jd 641 (Pa. Super.2013).

          The Superior Court in H111·,!.!<>S uddrcs~cd the mutter                    or whether     lnstnllnllon nnd

subsequent monitoring or the GPS             LH\     Burgo's truck wes per se unreasonable where the

police obtained      11    statutorily prescribed          wirct11p order, approved          by judicial   mnhority,

pursuant to Section 576 ! as an issue                      or    Iirst imrre:rnion    tll   tho appellate level in

     .
Pcnnsvlvanin. <i42 1\Jd al 648. The Court in /Jur~os
                                                 ,_  noted that the Jones Court.. "did                            1101

nddres'}; whether the government must obtain a warrnnt to install and use u GPS trucklug

device, and i I' nut, what level o!' suspicion is reqiurcd, reasonable suspicion or probable

cause." Id. ,ll 649. The Rlfl'gns Court concluded thnl in order I'm the police 10 mrnel1 nnd

monitor a OPS tracking device to            :111   individual vehicle in Pcnnsylvuniu,              the police must



                                                             6
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have probable c1111:;c. Id at 652. In Burgo»; law enforcement       officers did obtain u coun-

authorized order pursuant 10 Section 5761 prim In nttacl1il1g the OPS device on Burgos'

vehicle, :ind rho Superior Court hl.'ld that this wus a vulid wurraut suppurtcd by probable

cause. hi. nt 65(i.



order. pursuant to the then existing version ol' Section 5761, prior to uuaching the CiPS



        The version of 18 Pu. C.S./\. *57(il in effect nt the time       or the issuance or the
Order to instnll 11nd use a mobile uncking device on the dclcndunt' s car stated:

        *5761. Mobi k track i11g devices. [Effoc:;1 Ive 11111 il December 211, 20 l 21
        (a) llm/11wiry 10 i.,·sue.-()rdcrs for the instnllutlo» and use 01· mobile tracking
             UC\'h:CS may be issued b~· a COUl'l of C01111HOI) plcus,
        (b) Jurtsdtctiun. - Orders permitted by this section mny authorize the use of
             mobile uucking devices within ihc jurisdiction 1>1' the court of common plcus,
             and outside that [urisdlction, ii' th.: device is insmllcd within the jurisdlction
             of tile court ol' COl1111H)ll pleas.               .
        (c) Stwulw·d.fhr issuance oforder. - An order mHhorizing the use or one or more
             mobile tracking devices mny he issued 10 un invcstlgmlve or lnw enforcement
             oniccr by the court or common plcns upon written upplkalion. Ei1ch
             appllcutlun sbnll be by written ulflduvit. signed and sworn to or ulfirmcd
             before I he court of conunon pkus:
                            I. stale the name und department, agency or address 1>!' the
                                u J'lia111;
                           2. idvnlil)' rho vehicles, contnincrs or items lo which, in whlch
                                1>1' DJ\ which the: mobile trnckinj; device shall be nll:ichcd or
                                be placed. and 1'11.: names (11' the owners or possessors or the
                                vchiclos, contniuers or items;
                           J. s1:11c the jurisdictionu! nrcn in which the vehicles, containers
                                or uoms ure expected l<1 be found; nnd
                           4. provide a statement :-il:lting l'ol'lh all !'act:,; and circumstances
                                whlch provide the upplicunt with n reasonable suspicion that
                                criminal nc1ivity hn:- been, is or \\'Ill be in progress nnd \hot
                                thl' use o!' a mobile tra<:king device will yield informntlon
                                r~kv111\I lo th~ invrstigutiou    ol' the criminul activity.
        (ti) Nottce. - The court o!' common ph.)!I:\ shall he 111llili~d in wri1i11g within 72
             hours of the time the mobile lrm:king device hus hcen ncrivmcd in pince 1)1\ or
             within the vehicles. corunincrs or items,


                                                7
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         (c) 'limn (?/'m11//orizmio11. - Authorizution by the court or common picas for the
               use of the mobile trncking device 11wy continue Ior 11 period or 90 dnys from
               the placement of the device. An extension for an mlditionul 90 tluys may he
               granted upon good cause shown.
         (I) Removut of dcvtce. ~ Wherever prncticablc, the mobile trucking device shnll
             be removed ultur tho authnrizntion period expires. IJ' removal is not
             pracricnblc . monitoring of' the mobile tracking device shall cease at the
             expiration or the authorlzntion order.
         (g) Movemi!l1l <l device. - Movement of tho lrni:king device within an urea
             protected by u reasouuble cxpcctutlon or privacy shall 1101 be monitored
             absent exigent clrcumstanccs or an order supported by probable cause that
             criminal activity has been, is (ll' will he in progress in the protected area and
             that the use or a mobile tracking device in the protected nrcu will yield
             information relevant to the investigation ul'Ihc crtminul activity.


The Wiretap 1\ct's constitutionality            tins been chullcuged and dctcrminort not 10 violate nn

intlivichml's right of privacy.       C:0111.   r. Doty. 498 t\.2cl 870, 876 (Pa. Super. 1~)85). The

Courl in lJ11rgos, concluded thm the wiretap orders, "serve as the functional equivalent of

trndit1om1l scorch warrants ... 1hc8c orders nn.: statutorily prescribed orders, approved und

issued by the judiciary,       which allow un invc~ligming. officer to conduct a senrcb vl«

interception   or an individunl und his or her property und cttccts, upon a showinj; of the

rcquisltc level ol' suspicion." /Jur.~os. 64 A.Jd 6tl l at 655.

         Herc, the law enforcement olflccr obtained n coun-nuthorizcd                order, pursunnt lo

s~1.:ti~1n 576\, for m\a1.:.hing \he OPS device         \O   <lcl0ndanl'~ vehicle on July i, 20\ 1. The

Order    or Court   used the lnnguagc, :;lh11l there is reusunahlc suspician lo believe iluu

criminal actlvity has been, is or will he i11 prngr(!S}; and the use of n mobile trucking

device auachcd lo      {H'   placed   011   a vehicle idcnti !10d ns n 20 IO 1vlm:do 323 sedan, P ,\

registration   HS0-4223, VIN ii .HvllT3J..1::;(lt,\1225734 will yield information relevant !O

the invcstlgutiun of' the criminal activity." Order 1\uthLit'i',dng the Installation and Use o!' u

Mobile    Trnd:ing Device (C.P. !\ llcghcny Cly .luly 8, 2U I 1 ). Thus, in on.lcr J'o1· the OPS
                                                                                                Circulated 05/28/2015 10:46 AM




pluccmcnt to be valid in light of U.•'i'. v. Jones nnd Com. v. /111r}{os, the Court must

determine whether the wiretap order wns supported h~' probublc cause                       1111dl.'r   *5761. The

stundurd relied upon by the lllil'gos court                  w111,   the li>lluwi11g: "the stuudard for

determining    whether probable          cnusc existed for an order authori;.,.ing intercept ion               or
telephone communications            is the same us thnt used          10   determine     probable cause for

search wnnnnts."      C:0111.   v. /3il'(/.,·e,11<1, 637 t\.2d I OJ<i, l ()41 ( Pu, Super. 1994), qf/"d, 670

J\.2ct 112~1 (Pu. 1996). !\:,; luid o.u by the Coint in 011rgos,

         The question ot' whether probublc cuuse cxi8lll Ior n wirerup must be adjudged by
         the tomlity of the circumstances. I'ursuan: to the ;'towlity or tile circumstances"
         1~st set forth by the Unil<:d ~1:110s Supreme Cnun ... the task ol' ! the trinl court'! is
         simply 10 make a practical, co11111101H,cn:,;c decision, whether, given nil 1)1' the
         circumstunces set forth in tile ol'l1dn\'il before him. iucluding the 'veracity' HIHI
         'basis or lrnowlellgi:1 or persons suppl;1i11g hearsay infornia1ion. there is n l'air
         probability that contrubund 01· evidence: of n crime will be found in u pnrticulnr
         place, Thus the toial i I y of the cl rcumsinnccs 11.'Sl pennils a bnlunced usscssmcnt ol'
         the relative weights or nil the various indlciu ol' rdiahili1y (one! unrcliubillty)
         :111cnding, an inlcll'llH\nl's 1ipj . .J" Cont. 1·. Torres, 764 /\.2d 532, 537<'18 (Pa. 200!).
         "An allidt1vil of probable i;aosc 10 ::-.nppurt a search warrant docs nut require a
         prima lnclc showing of criminal nctivity on tilt' pal'I or the occupants or the
         premises tn be searched." <.:11111. \'. Gutierrce. t){i9 t\.2d 582, 588 (Pu. Super. 2009)
         (quouuiou and quouuion marks umiucd), ap11cal denied, <)83 1\,2d 726 (Pt1. 2009).
         /\'lorcnv1,:r1 "ji, lr,:vkwing court may no\ conduct ft th: novo review or the issuing
         aulhori1{ ~ probable cause detcrmin.ulon. Thi; role or hnth the rcvicwlng court
         and the uppclluic emir! is confined w determining whether there is substantial
         evidence in the record supponing the decision to issue the warrant." Com. 1·.
         J/1(1//(1c1!, 953 A.2d 12581 1262 (Pa. Super. 200~) (quouuion und quouuinn murks
         omitted), 1'l.11•er.,·(!d 011 ot/,er .~rowuls. 42 1.\Jd l<MO (1'11. 2012). ··w,... 111u:-:t limit
         011r i11q11iry to the infonuation within the four corners ol' the nl'lldavit submiucd in
         :mpporl 111' probable cause when determining whether !lit• wnnnnt wus issued upon
         probable cause." (;0111. 1·. No,(.!ers. 615 A.2d 55, 6:l (Pu. Super, I !)92).

64 /\.Jd al 655-56. Thus, we cxnmine the inlhmrntlnn provided within the lour corners ol'

the 1\!'lhlavit ol'8pccilk      Aniculublc    !<'aels   Ior installing clccunnlc       trucker to determine if

there wus probable cause to support the officcrs               request for u wircrap order. Se« Com.           1·.


Stm111>,\', 427 t\.2d 1111,      143 (11.1. 1c)8I); Pt\. IC Crim. P. R11k 20:"> (IJ)(Thc issuing
                                                                                                            Circulated 05/28/2015 10:46 AM




authority, in determining             whether probable cause hns been cstnhlishcd, ma~·                       1101     consider

nnr evidence outside             or the ulfiduvits.").
              Under the totality         ul' the circumstances             lclll.   the Court     t8   sntisflcd thHI the

informnrion provided               in the Affidavit of Specific Articulable                       Facts fur Installing

Electronic Trucker rises not only to the                   IC\'Cl      of' rcusonnblc suspicion but ulso to the

nccessnry level or probable                     cause. "l'robuble           cnuso is not certitude,              nor even

prcpundcrancc; rather, il is merely u sulficicntly                          :-;nhstantive prohnbility        lo juslil)' the

intrusion involved." Com.              1·.   Doria. 57'1 1\.2<1 653, 657 (Pa. Super. 1990) (concurreuce):

Com.    11•    Gloss. 7511 ,\.2tl 655, 664 (J>u. 2000); See also ttttnots                   11•   Gates. 462 U.8. 21 J,

23 l ·32 (U.S. I 983)(Probnhle cuuse is u "prncticnl, nontccbnical conception." It                               j!{   "n fluid

conccpt-unuing           on the ussessmcnl of prohabilitic~ in pnrticulur luetuul contexts not

readily, or even usefully, reduced 10 u neut :wt ollcg«! rules."),

              Herc, th\) officer was able to pince the defendant at 1h0 scene of two of tho

burglnric» shortly before they occurred through independent                                eyewitness          inl'imnntion

obtained from employees nt the di Itercru businesses, Hurds W cldiug and \' oung 's Tires.

There    WH:l     no iudicntiun lhal the verncity or bnsis <it' kuowlcdgc o!' !Ill' employees was

suspect. S(•e Com.         1·.   Birdsey«. 637 t\.2d \03Ci, 10:12 (I'a, Super. Ct. 1994). Alter b0i11g

developed us        tt   suspect based on his presence al llurd's Welding                          1111<1   Ynung's Tires,

information corroborating               the suspicion    \\'ilS     gmhered in a number             or ways, including
pollce visual surveillance.              S,:e Com. ,,.   /1111°).!.0,\',   64 1\Jd ru 656.        1\II or the burglaries

occurred al conunercial              locutions, during the night1\111L'. the buildings were entered hy

force and "anv socurity S)'S1c111s were disuhkxl, primarily by cuuing or dninaging phone

I ine connect inns. Cnsl; w11:-. taken in various amounts." I\ Inda vi I                      or Spcci fie 1\ nlculuhlc


                                                             10
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 Facts for lustallina ,._ Elc::c1rnnic Tracker,    I. lnvcstiuation
                                                              ...               revealed    \hill the tire track

 evidence recovered 111 a Clnrlon County bmglmy scene matched the D1111lup SP 60 tires

 thnt Dcfendnnt had 011 his 1998 Toyotn Ca111ry. Sue Com.                 1•.   Mcfl1~ini. 386 /\.2d 482, 485,

 ,J87 (Pa. I 978)(Thut 11[ l,Jirc imprim:,; kn at the scene arc similar t<1 11npri111s of 1h0 tires 1)1'

 the Chevrolet 2-door Sedan registered in the numc ul' ne11y I{. M:tngini. Tag No.

 07044'1'" \\'as one    or the main spec] lie an iculablc        facts   or the case       supporting probable

 cause    for a search wnnnnt.)          'l'he delundant        wns then contacted              by the Clarion

 l'cnnsylvuniu     Stntc Police   (11   a Sheetz gm; station and the l)unlnp ~p 60 tires were

 discussed. A ilcr the convcrsnt ion with the Clarion Police, the D~lcm!.1111 replaced the ti res

 011 his Toyota Camrv. Dclcudan: had two residences i11 prnximity                      to the locutions     or tho
 burglaries,     48 West Fourth Stroot, Oil City, Venango County,                          l'cnnsylvnnia    and o

 Strnttcnvlllc    residence in Clarion County, l'vnnsvlvnnia.

           Physienl visunl surveillance of Jeri'}' Ritchey'» nighuimc activities begun 011 June

 27, 2011 hy Troopers from 13CI and Troop L·: Viel.' :i11d the survcillnncc                    revealed that the

 ~·1azdtt was in un urea near a lmrglnl'y nro1111<I the time the burglmy was committed, which

 led to 1hc belief thnt the l\fozdn wm: being used         10   (runsport the delcndent          10   nnd n·om ihc

 burglaries. Com 1•. /Jo(1·, 1198 i\.2d 870, 883 (Pu. Super. I 985). During survcillnncc                       the

 policcdiscovcn      ..'d that while Hitch!.!/~ girlfriend sometimes drove the 'fo>'<i(n Cam1')1,

· Ritcht.!y was the onl.v person who was observed driving the Mazdi1. Spcciflcnlly. on July

 11 201 I a white male was spoucd leaving the Oil Ci1y residence in the Mnzd;i nnd visua]

 surveillance     pursued. In order to uvoid being spotted by the driver. lhc police officers had

 to discontinue     pursuit n Iew minutes lnicr. 'l'hut 11igh1 a bmglary occurred <11 84 Lumber

 011   Route 2 57. 1\ t s,1 I.umber the phouc I iucs were c lit and I lie sec u ri l y system wns



                                                    II
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disabled    between        2:30 A.i'vl. and 2:53 ,Uvl.                   An image of the i\fozdn wus captured                        hr

electronic police surveillance               or vehicles     traveling       1111   Route 257        HI   3: IO ,\.i'vl.   011   June 1,

2011. traveling. nwu~' from 84 Lumber und towards Oil City. 1\Jdi1ionL1lly. an interview

with an 84 Lumber cmpluye0                      revealed that on June 30, 20111 within hours of the

bttrglnry.. terry Ritchey entered 84 I .umber around noon and s1:1y1.'d in tho office nrcn

apprnximutcly         n half hour before 1<.'avi11g. Ritchey provided 84 Lumber with a <:t.'11 phone

number      to contact           him. ,l,,,'ee. Co111. , •. We1>.1·1a, 4:'15 t\.2d                  1217. 1220 (Po. Super,

1981)(dckndant'~            proximity in both time and pince to the site olthc b\1rghll)' contribute

1u a !111di11g nl'probnblc cuusc).

           These burgjarics occurred on a regular basis                         0\'1.'t'   a pl'l'iod of many months trom

l.kcc111bi;r   or 2tl IO through            the time u Wiretap Ad wurranr was issued lo pen nil the

uuachment of the CiPS io dcfcndants                       car. Thus, the iuformruion cannot be seen us being

stale. Com.     1·.   Uurgos. 6~ ;\ .Jd ill 656. The col lcctcd                     i11lo1·11111t   ion was 111wl yzcd by law

cntorccmcnt,          including Ponnsylvanin 0H1tc Police Corporal John T. Tobin who hns hud

21.5 years experience               in the investigution                of crimes und seizure ol" evidence within

Pennsylvania          and who       WOK     lumiliar with the nielht>d~ used by burglurs to cununi: the

crimes und to conceal their nctivities rrom detection by law cnforccmcm                                         nuthorlties. Id. at

6%. Thus, h:i~cd           011   n tolulily ol' the circumstances,              there wns probable coma;                   lo    believe

1hnt defendant          lrnd resumed hi~ former trade as n loco! thief' and for supporting                                           the

Oflkc..:r\ request for u wirclnp order. Cu111.                    \>,   Doria, 574 A2d al 658.

           As probt1bk cause existed for the wiretap order when ii was issued the OPS

pluccmcnt      011    Dt..:fo11d;int 's   ivlni'.dn was    1101   an uurcusnnnblc scurch mid seizure under the

Fuurth Amendment and the evidence collected by lh~ OPS trucker will not he suppressed



                                                                  12
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as the Commonwealth                 has incl its burden          or establishing               by   I)         prcpondcrnncc                   01' the

evidence thut lhc challenged evidence is udinisslblc.

            Dcl'eml11111 ulsc nrgucs thnt the chnngu in the jurlsdiction«]                                 portion of tile Wircinp

1\el    §5 761 (h) would make the issuance or" warran: by and through /\ I leghcny ColJIH)'

lnadrnisslble for trials in lhi~ County.                  The [urisdictlonnl change removes n Court of

Common Plcus' authority 10 issue an order for the lll$lallalion und use of mobile tracking

device unless thul County hus jurisdiction over the oltcnsc under invcl>li~alio11. There is

no indication thal lhis change was prumpicd by the ruling in U.S.                                        11•    Jones, I 32 S.Cl. 945

(U.S. 2012).          Al thi:! time of the issuance                        or   the warrant, Allegheny                       County               hnd

jurisdiction     IO   enter the Order or Court. A uiul court is h> apply current statutory law until

the Legislature rcpcnls or amends it. Com.                           \i.    Thomas, 51 A.3d 255, 260 (1\1. Super.

2012)~ app '/ denied        ({J   1\Jd 1247 (Pit. 2013). 1\ddilionally1 "[n'[bseut clear nnd mnnifest

i utcnt r   legislation is presumed not to be rctroucf ve." kl.: See I Pn. C.S. A. 1926. Thus,                               *
we tkdinc to lndulgo in speculntiou                   11bo111   wluu would huvc transpired                               if the legislature

hnd pm~~et\ nnd rnt\l'\c(\ iho juri$c\ictionn\ chungo in *567 l (h)                             or the Wircrnp                        1\t.:1   before

the warrnm      WilS   obtained,

            In light ol' thiN finding, we need not reach the Connnouwcnlth's                                              argumcnr                that

this Court is lhccd with conl1kti11g opinions from                                  Co111111011m'<f/lh           1· •.   ilrthlll'. G2 1\Jd

42,1,   <Jn (Pa, Super. 2013) and Co111111om11ealrh 1·.                         IJ1ll'gos,   M t\Jd 641 (2013) issued lhc

same day by the Punnsylvunia Superior Coun. In !ltt/1111', the Pcunsylvunia                                                               Superior

Court held that,        ·:,w~     have cnrefully reviewed Jones. uud sec nothing in it that would

support the notion thnl,           11:-;   in the instant matter           or u GPS device placed onto                           il    vehicle in

full complinncc          with      Section 5761 of' the \\lirclnp Ac: offends                                      either         the l·'mtf'lh




                                                                13
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Amcudmcm        or Article          I, Section 8 M lht· Pcnnsylvanin             Constitution."      In !J11rgos, the

Superior Court hdd thn\ as u result o!' the decision in                   ./011~is th~·   Court   or Common      l'leas

mus! have probable cause lo issue                 illl   Order ins\ulling an clectronlc lrnckil\g device        0111\> a

cur.   We need not resolve these conflicting opinions m this lime ns we hold that the

uffidnvit in support           or thL' wlretup     warrruu rose to the level of probable cause sntisl)'ing

both 1/r1h11r   tt1KI    n,,r~os. We also need 1101 address the Commonwealth's                        urgumcnt thm

the good faith exception lo the exclnxionnry rule applies to ihe present mnuer.                               1\l~o in

ligh1 ol' the above finding. \\1C need 1101 ndclri::;~ Dctcndants                       11rg11111cn1 thut s11hscq11c111

search warrants         or Mr. Ritchev's         residences nro invalid as lruits or the poisonous tree. As

we have held Ihm the UP8 wiretap wm·1·,m1 wos supported                                   by probnhle cause, the

informntion gathered by the use ol' Ille OPS 1«.:cltnoh>gy on l\•lr. Ritchcy's                           vehicle was

properly included in the nnidavil:; or specific nniculnblc                             lhul:; for the suhsequcntly

executed scarcl: warrants for i\•lr. Ritchey's vehicles                   011d   rcsldcnccs and those wnrrnnts

remain valid.

         II.       Unfulr Prejudice

         Dcfcudnnt further argues                  that the evidence       collected      by tho (JPS should be

deemed     iuadmlsslble           us its udmissio»           would vnuse the defendant            undue prciudice.

Dofcndunr relics on Pcnnsylvanl«                     Rule    or Pvid..:ncc 403    which SHI\~:; "the court may

exclude relevant evidence if its probative value is outweigh . .xl by i1 danger ul' one or more

uf the 1'11llowi!lg: uulair prejudice, i.:@l't.tsing the issues, 111i:ilet1di11g the jury, undue delay,

wns1ing time or needlessly presenting                      cumulortvc evidence."        Defendant does not argue

1hn1 1'1e evidence collected hy the GPS is not relcvunt: ht: mg\l«:~ only thnl its prejudicial

value outweigh»         i11;   probative value.
                                                                                             Circulated 05/28/2015 10:46 AM




           i\frrcly   bccuuse   evidence    is unfavorable       to   II   part~· <Ines no; render it     IIHH'c


prejudicinl than prolunivc. Hutcluson 1·. Luddy. 7(i} ,\.2d 82(i, 847 (J>11. Super.                     2()()()),

l~vidcncc is deemed (o be prejudicial           nrn because it hurts a parly's case, but because it

hus an undue tendency to :;uggest thm a decision wus made on an improper basis. Leah»

1·. 1'fcC!ui11, 732 1\.2d 6191 62·1 (Pu. Super. 1999).                "Unluir preJu<licc" 111:-io refers ton

tendency to divert the jury'8 uucnrlon awny from its duty of weighing                          the evidence

impartinlly. Co111. , . Wright, %l A.2d 119, 151 (Pa. 2008).

           Dclcndant argues that to (tllow information collected by UPS imo evidence when

the w,11·1w1t for the CiPS was executed by u i.:m11·1 nearly JOO mile:-; uwny with no stake in

these outcomes          would tremendously prejudice             i\·lr. Ritchey nt iriul. However, tlw

information in the l\l'lldi1vi1 of'Spccific Articulable Fuels used 111 obtain the OPS wurrnnt

cumc ulmost exclusively         from Vc11n11go Co11n1y. The l)d\mdu11t has failed 10 explain how

[niving a warnnu validly isHucd by the 1\lk:ghcny Cuuiuy Colli'! nlCommun Pleas would

confuse or mislead          the jury. The wurnuu was issued in 1\lll'ghc11~1 C1>111Hy because

Defendant hud parked hl~ cm· ut the f>it1shmgh lntcrnutioual J\ii·pnrl while he wni;                    1)11   his

honeymoon. It is hard to conceive how that information                     could prejudice thejury against

Mr. Ritchey.

           There is u possible risk of prejudice             to Defendant from the intrnduction                of'

evidence     or other   crimes collected by the OPS hut not charged in the Venango County

Infornuuion. To
             .  counter that risk,. the Court ct111 ......uivc n cautlonnrv ., instruction       to the . j\11·v.

instructing the jury not        10   consider the evidence tluu lkfcndonl lrn:-; commiucd               similnr

crimes outside        or Venango      Cnunty u:-; estublishing        any clement uf any     or th<.l   \~rime~




                                                     15
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            II J.     ~fodm Operandi, ldcnlitr-Usc              of l~vidl'llct' h~· tho Conimunwenlth

            In general, evidence    11!' distinct   crimes is   1111t   admissible     ugnin:-;1 u delcndanr being

p1·o~cct1lcd I<)]' nnother crime t<i show bud cluuuctor or his propensity                         for committing

criminal acts, P,1. fU.~. ,rn,1 (b)(.'.,.J. The defendant                 is entitkd     to Ille pi-t:s11111ptio11 or

innocence and the Conunonwcalt]:             may not strip him           or that presumption      by proving 1hnt

he bas committed other criminal nets. lnstcud the Commonwealth                             must prove: beyond      ii

rcnsonablc doubr thut u defendant hns committed the particular                            crime 01 which he is

accusud. Sai: Com. "· Stanley, 39H 1\.2d 631, 633 (l'u. I <)79): Com. v. Cansuuu, 925 ,\.2d

8 !O. 821 (Pu, Super, 20t)7)1 opp'/ ,1ti11ied, !JJ2 ,\.2d 1285 (Pu. 2007). Evidence 01' other

crimes, wrongs. 1)r nets ls admissible              only upon a showing tho! the prnbutivc value of

such evidence outweighs the po:;sibilit)' of unfair prejudice                        to 1hc Dcfi.!1Hh1n1. Pa.R.E.

-'I 04 (b )(3 ).

                     In deciding whether the danger or unfair prejudice and the
                     like substantially outweighs the Incremental probative
                     value, n variety of matters 1m1s1 be considered, including
                     the strength of the evidence us to the commission or the
                     other crime, the sirnilaritk:-: between the crimes, tl1<.: interval
                     of' time tl1nt lw~ elapsed between lilt: crimes. the need Ior
                     the evidence, !ht: efficiency or ultcnuulvc proul. and lhe
                     degree 111 which the evidence probubly will rouse the jury
                     IO overmastering hostility,

McCormick           on Evidence,   * 190 p. 811 (4111. l.:d. 1992),           l'cnnsylvanin    Rule of E vidoncc

4!Jtl (b)(2) permits evidence         of priur bad nets lo he admissible                 when offered to prove

so111<.1   other relevant fuct, sucl: us mutivc, uppt>rlu1iil)', intent,                      prcpunuiuu, plun,

knowledge, identity, nnd absence ol'mistakc or accident. Com. ,·. Aikens. <)90 1\.2d I J 81,

1185 fPn. Super. 2010),




                                                        16
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           ll is crucial to note lhal the Roles of Evidence only ni111 to exclude evidence which

results in pr1..ju<licc which is unfair; nll evidence ii; prejudicial                    10   some degree-this        is its

Iunc: ion,    10   swny I he minds or the jmy. Se«, Co111.                  l'.   Peer, 68.:J /\.2d I 077, I 083 (Pa.

I 996) ("lhc test for ndmissibility is whether                         the challenged         evidence   i:- so 111?/'oirly

pr~ju<lidnl thttl its intlarnnuuory 1111t11rn mukcs its probative vulue de minimls'' [cmphusls

in \1riginol I). The prohibition            uguins1 tile intrcduction             or evidence     regarding   prior acts

contemplates that the nets arc distinct in time and pince from the crimes charged,                               <.:0111. 1·.


Pott», 566 ;\.2d 287. 294 (P:1. 1989). Prior                  ac111   evidence may be admissible when the ilCl~

arc necessary       10   detail till' overall sequence           or events        leading up to the crime charged.

C:0111.   r. 11'har1011, 607 t\.2cl 710, 720 (Pa. l 992).

           The l'cnnsylvania         Supreme Court has determined                       that. when used to prove

idcntiiv, evidence        nr prior   crimes may be nd11iissibk1

           lo prove other like crimes hy the accused so nearly idcnticul in m1.·1hocJ as 10
           earmark them as tho handiwork or the accused. He1'<J much uiore is denumd,•rl
           than the mere repeat c cl ,·v111111/s.\·io11 ,?f' ai111u,,· o] f Im sam« C'!aS,\', such as rep en red
                                       1


           burglaries or thefts, '111<! device llSl!d must bo so unusua! (111</ illstlnctlv« as tu he
           ltku " sl g11at 111·e.

Com. , . Ross. 57 t\.3d 851 I 02 (Pa. Super. 2012) q11oti11g Com. r. Shiv<!(\', 42~1 t\. 2d 125 7

(Pu. 1981 )( emphasis        in original). To preserve the purpose of' Rule 404 (b)(J )1 there must



hod acts to the crime in question." Com.                1·.    Ross, 57 ,\Jd m I 04.             This requires "such a

high correlation         in the details of the cri111<:8 thut proof' thnt II person committed                     one of

them makes il very unlikely                lhlll uuyonc else committed               the others." Cum. r. lfluokfoy,

972 ,\.2d l 182; 1189 (I'a. Super, 2009) ((jl/Ofing Co111. \'. Novusuk. 606 /\.2d 1177, 484                               ll,


7 (Pu. Super. J t)92)), appea! dC'lli<'d. 986 A.2d 150 (I'u. 2009).




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           Evidence from subsequent other crimes may he ndmiued                                     lo    show identity

"thorough selection of' a pnrtlculnr class               or victim und use of             idiosyncrntic      methods to

curry out the crimes. ·, Com. 1·. Wa11kley, 972 I\ .2d I I 82, I 188 (Pa. Super. 2009)1 appeal

denied 986 1\.2d 150 (PH. 2009). ln compuring the separate crimes, a court must examine

the slmilurltics between n number a lhet1lr~, including; '\I) the manner                                   in which the

crimes were commlttcd; (2) weapons used: (3) ostt:11:-dh!e purpusc                                 or the     crime: (4)

locution; and (5) type of victims. Rcmorcncss in lime between the crimes is ulso factored,

although     lts probative     value h11s been held inversclv proportional                         Lo     the degree ul'

simllnrily between crimes." Com.            1•.   /l'e(lk/cly, !>72 !\.2d ut 1189.

           In the present case, we conclude tktl the evidence in question is admissible under

lht· common scheme, design, or plan exccptlon                       1111d to       extahlish identity. Herc, the

itllt'<lLh1ctirn1 of tile evidence thnl l)cfcndm1t hus committed similnr                      burglaries on July 211

2011 has significant irnpnrtunce tu the nnrnulve integrity of the Cnnunonweulth's                                cnsc i11

csuibllshlng identity and showing the continuity of the presence                            or n distinct    four    (IITO\\'


puucrn on the soles or       w111c1·   shoes owned by the dl'lendn111 ut the burg! nrii'.cd businesses.

The Defendant wns convlctcd                uf Iour commercial           hlll'glnrics lo Clcurficld Crninty

conuniucd     on July 21, 2011. Thi.' theme or tlw prosecution is tluu the lour burglaries                                or
which the Dcfendunt has been convicted me so si111il11r                 10    thcJ six b11rgh1ric:- in tlw case 111

hand us to p<:rmil !ht.' conclusion        1hul they were connuitted by the sumc perpetrator                        as purt

of n common scheme or plun. Commonalities bet wren the crimes me:

        {I) the victims were ,Ill commcrcinl businesses which were entered aftcrhours

              during the nighuimc:

        (2) entry was gnioed I>>' force and pry bur murks                \\'1.!l'C.:   noted on nl I tile dt)l>r~;




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         (3) any !it'i.:uri1y systems \\\'I\! disuhler] by c11lling the clccuicu!            wires;

         (4) The otfices          of the busincsscx were urrgetcd and desk druwers nnd !)Jing

               cabinet» were rilled through;                      drawers were !di open und papers                were

               scuucrcd;

        (5) The burglar wus pl'imnrily concerned                        with only stcnling cash: u11d equipment

               or business product was not taken:

        (6) The burglar left evidence that he was \\'l:ntfog gloves;

        (7) Tile Dclcndnnt'x               Mn%du wns seen in the viclnlty            or seven   ol'   the burglnrle»

               around the rime rluu the business~:,; were b11rglnriz(;d;

        (8) Gcogrnphicallv,              11!1    ten   or lhc   burglaries were within driving dismncc ol' tlw

               Defendant 's , wo residences;

        (9) 1\ unique water shoe truck with u lour arrow design was l\iund al cnch of the

               ten burglmy sites:

        (JO_)            The defendant          bought a pair nJ' the wntcr shoes with the lour urrow sole

               pauern on Mny 211 2011 tluu nuuches rho shoe trucks kl'! ot the scene o]' nil

               the burglurlcs which occ nrrcd aflcr l'vln)' 21, 2011 .

Through video survclllnncc                 and receipts, l'~P Trooper Clark wn~ nblo to determine that

the Dcl~ndrnH had purchased                     water shoes with the pnrticuhu' lour nrrnw design             011   the

soles that matched the tracks lt:fl at the lour burglaries lrom the Clarion Wuhnart                         011   Mny

21, 2011 and .luly I 7, 201 l. A mere two dnys Inter the four nnnw pnucrned trucks wen:

fo1111d al the scene o!' each ol' tile three commercial burglaries committed                      011   ~vln~· 23-24.

20 l l and   \\'<:I'~'   also found   HI   the scenes ot' the subsequent burglnrie» dolcuclnnt i:. churgcd

with. It is unique und atypical                   10   find water shoe uucks at these particular cmnmerclul



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h11si11cSS(.'S. Heavy machinerv            and equipment              on the premises of these businesses!                        mah

steel-toed        shoes a much safer option              than water shoes lnicndcd for swimming, kaynking,

nr other water sports. Thus the presence of the water shoes .u each or thw bmglarized

businesses is u striking parallel between the crimes .. 'i'1!U Com                              11•    Aikeus. 91)0 :\.2d 1181,

1186 (Pu. Super. 2010). These water shoes arc asserted to he n part ol' this course of

conduct,      a menus which Dcfcnttnm 11scd lo ;1cco111plish the burglaries. Additionally,

Defendant 's ivl:wla wns trucked in the vicinity                           or rill    Ii -ur    or the          Clearfield County

bmglmks and           W(l:;   seen in the vicinity or 84 Lumber around the time                               1)1'   the burglaries. 1\

"review      or Rule     404(h) (I) nnd relevant jurisprudence                       shows the other crime need not

n1111ch every llH:t anti circumstance                   of thL' chnrgcd crime before il mny bo used to prow

ltlcnluv." Com. 1•. Weakley, 972 t\.2d ur 11 !)0. Considering :111                             or tile similuritics           b1.·11\·c~11

the details ()f th~ burglurics lends               10   the belief lh11t "pron I' that a person c.:0111111illcd one nl'

them mnkcs it vcrr unlikely thnt nuyono 1:1!;¢ cornmiucd the others." Com. 1·. Ross, 57

A.3d 85, I 02 (Pa. Super. 20 I 2).

           1\:;   for remoteness in time, it is            11011.!d   thilt the ~arlk:·il nl' the six burglnrics in 1his

cusc occ11rred         within two mouths, a luirly short time spun, ul' the burglnrics 1h111

Detcndant wn:-; convicted for i 11 Cl earfie Id CN111ty. See c!.g., Com. r. ttraushtein, 69 l

1\.2d 907, 91<> (Pn. 1997), cert, den. 522 U.S. 93(1 (1997)(11,·c weeks since another

similar rnbbery-murdcr): Com.                1·.   fla<'ket, 959 t\.2d 380, 393 (Pn. Super, 2008), appeal

granted 975 1\.2d               I OX2 (Pu.         200!>). order reversed                on           .YUJ)(ll'lffe    gro1111cls. (Pn.

2009)("1foth         incidents occurred            <!ming the snmc           :;11111mcr.,      scpurutcd              by nt most two

months"); Com. v. Cloy1011, 1183 ,\,2tl 1345. 13•19~50 (Po. 19K1l)(ntlcmplcd                                                   11H1rd1,.·r

1 'l'he buslnesscs nre: Whalen Co11~1r11..:1iu11. Inc .. I lnrds Welding, Thomas ,\uw. Ilcrt Klapec, Ille .. H&R
C111ntgl!, H•I Lumber, Brndt'ord '1'011·11:;hip M1111kip11l ll11illling, 1\1wx Hydn111lic l\·lm:hin..:. l.>.C. l:nJcl'pri~cs,
und Tl. lluincy Trucking.


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properly admitted m trial lor murder conuniucd                   IIH,:c   months earlier where crimes were

strlkl ugly si mi lnr in geographic local ion, I\Hll ivut ion 10 rob drug-deni ing vier ims. and

11101hod u I' exccut ing crime); Com. \'. l/11gh1is. 5 55 ,\. 2d 1264 (Pu, I 98!))(lcn months) The

imporinnce or the gnp in time is inversely proportionul                      In the similarity between the

crimes. Com.       1·.    Aikens. 990 1\.2d 1181, 1187 (Pa. 2010). Here, we have similar crimes

occurring in lili rlr quick succession.

        lln::;cd   <111   the foregoing discussion, we lind that the nlorcsuld lour convictious had

relevance    lo   pcnuissiblc     purpu:-:cs with respect   10   the six burglurics ln rbls case. However.

this is only the linn step in the unulysix because such relevant evidence is ultlntatcly 011ly

admissible    under Pennsylvnnln R11lc of' Evidence 40~(b) ii' its probative value outweighs

its potential for prejudice. Herc, such is the case. First, the probatlvc value of the

evidence is substuntiul. Similnritlcs bciwcc» the crlmc scenes relnte nm jus! to one. hut lo

sevcrnl lmportant           qucstitmS such ns plan, preparation.           common scheme or design. und

identity. Moreover.           it appears the evidence is not just minimally            relevant but. rather,

serves as foirly direct, logkill and elucidaung                   evidence     lying Dcfeudnnr 10 nil ten

ht1rgl11ric~. There is a need for the other crimes evidence because us in Com. r. /Ve(lk/ey.

"the evillcnc1..· upon which the prosecution is bnsccl is largely circumsuuuinl.               und it is the

specific purpose           of the 'other crimes'      evidence        IO give the jury    i11:;ighl i111t) the

signiflcnnce ot'these cireumsumccs." ')Tl ,\.2d 111 I 191.

        Second. there is n potential Ior prejudice to the Dcfcnikuu as tlw crimes arc so

similm' thnl a jury 111ig.l1l be templed to decide lhul bccnusc he was convicted                      or the
burglaries in Clcnrfield Counry he is uutomuticully                  guihy ut' the burgl11rk::; in Venango

County, I lowevcr, as wus           !iWtcd   above, "evidence will not he prohibited merely because



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ii is hunnlul to the dcfendunt."                     Ihuchisou >'.            /,11(/(~1·.         763 ,\.2d at 8~7. Pennsylvania

Courts have co11~is1c111ly "upheld the adruission                            or other             crimes evidence. when rclevunt,

even when the dcwil:-: of' the other crimes were extremely                                                  grotesque     and highly

prejudicial. ., Com.      1•.    Dtllon,     ns t\.2d       131 .. 14 l (Pn, 2007>.                     11 is nlso worth noting 1hn1

in the context       or the crimes          charged .. the four burglaries, while reprehensible,                         are unlikely

lo     he viewed by the jurv as so heinous                 .'.IS   lo     completely overwhelm their nbili1y lo weigh

!he evidence directly. lnstcud, ;is in Com.                         1•.    IVl!okley. the focnl point of the evidence is

the precise criuunul method used, 11s opp1iscd tn inlhuuing                                               the Jlu·y's emotions       111'

sympathy or hostllny. 972 1\.2d HI 1191. The convictions                                           do not tend 10 show Dclcndum

us n "bad person" in :111r way other 1h11n with respect lo the specific conduct nt issue.

Com.       1·.   Nat'ker. 959 t\.2d           ill   393. "Additionullv, when weighing the potcmiul for

prejudice, a trial court mav consider how a cau1iorn11)' jury instruction might nmcliorntc

the prejudicial clfccl           111'   the pnll'li,:rcd evidence." Co111.                  11•   Dil/011. 925 f\.2d al l.:.J I relylng

1111   Comment Pa. R.E. 1104(b.). The Cnun inrcnds                              10   issue a cmllio1rnry instruction            to   the

jury in this cuse.

            t\x the probative value of the relevant convictions                                      for burglnrv from Clearfield

Cotmty outweighs                iii;    potential l'c>I' prejudice, the evidence of' the convictions                                  is

admisslblc         i11 thii- cusc under             l'cnusvlvuniu             Rule          or      Evidence 401l(b). Thus, the

Comrucnwculrh shall be pcnnlucd                       lo   introduce evidence ol' the sitnilnrities                      of the lucts

n..·gmding the dcfcnrhuns                  conviction       Ior the four burglaries                      conuniucd i11 Clearfield

Co11111y on July 21. 2011 for th~ purpose ol'sll(lwing common scheme nnd plan us well as

idcnt] ty,




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       For the above    reasons, ii is hereby OIU)l~H l~I) and DECREED thnt the

Defendant's Motion in Liminc is   Dm,mm.




Marie Veon, !');\
l.knjarnin Levine: PD
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                        IN THE COURT OF COMMON PLEAS OF VENANGO COUNTY,
                                          PENNSYLVANIA

        COMMONWEALTH OF PENNSYLVANIA>                        : CRIMINAL DIVlSJON


                          v,

        JERRY LEE IUTCHEY, JR.,
                   Defendant.

                                             OPINION OF COURT


                 AND NOW, June _JJ__, 2014, the Court has for consideration the Statement of Matters

        Complained of on Appeal filed 011 behalf of the Appellant, Jerry Lee Ritchey, Jr., pursuant to Pa.

        R.A.P, 1925 (b) on June 3, 2014, The Appellant has appealed to the Superior Court ofl'ennsylvanla

        from this Court's Order of Sentence dated December IO, 2014. Appellant filed the Notice of

        Appeal on January 8, 2014. Pursuant to Pa. R.A.P. 1925 (a), this Court shall state its reasons for

        the Order in question.

                This case involved multiple commercial burglaries. A six day Jury trial was held in

       November of 2013. On November 25, 2013, the Jury found Appellant guilty of: Count 1, Burglary,

       In violation of 18 Pa. C.S.A. §3 502 (a), a Felony of the second degree; Count 2, Theft by Unlawful

       Taking, in violation of 18 Pa, C,S.A. §3921 (a) with a value of $200.00 or more, but not more than

       $2000.00, a Misdemeanor of the first degree; Count 4, Burglary, in violation of 18 Pa, C.S.A.

       §3502 (a), aPelony of the second degree; Count 5, Theft by Unlawful Taking, in violation of 18

       Pa. C.S.A. §3921 (a), 'Vi'.Hh a value of $200.00 or more, but not more than $2,000,00 a Misdemeanor

       of the first degree; Count 7, Criminal Attempt to Commit Burglary, in violation of 18 Pa. C.S.A.

       §901 (a) to commit 18 Pa. C.S.A. §3502 (a), a Felony of the second degree; Count 8, Criminal

       Mischief, in violation of 18 Pa, C,$,A, §3304 (a)(S), in the amount of more than $1,000.00, a




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           Misdemeanor of the second degree, Count 9, Burglary, in violation of 18 Pa. C,S,A, §3502 (a), a

           Felony of the second degree; Count 10, Theft by Unlawful Taking) in violation of 18 PA. C.S.A,

            §3921 (a), with a value of more than $2000.00, a Felony of the third degree; Count 11 > Criminal

           Mischief, in violation of 18 'Pa. C,S.A. §3304 (a)(5), in the amount of mote than $1,000.00, a

           Misdemeanor of the second degree; Count 12, Burglary, in violation of 18 Pa, C.S,A, §3502 (a), a

           Felony 2; Count 13, Theft by Unlawful Taking, in violation of 18 Pa. C.S.A. §3921 (a), with a

           value of $200.00 or more, but not more than $2000.00, a Misdemeanor of the first degree; Count

           15, Burglary, in violation of 18 Pa, C.S,A.§3502 (a), a Felony of the second degree; and Count 16,

           Theft by Unlawful Taking, in violation of 18 Pa, C,S,A. §3921 (a), with a value of $200.00 or

           more, but not more than $2000.00, a Misdemeanor of the first degree. The Court found the

           Defendant guilty of Count 3 Crlmlnal Mischief, in violation of 18 Pa. C,S,A. §3304 (a)(S), a
                                                  1




           summary offense; Count 6, Criminal Mischief, in violation of 18 .Pa. C.S,A. $3304 (a)(S), a

           summary offense, and Count 14, Criminal Mischief, in violation of 18 Pa. C.S.A. §3304 (a)(5), a

           summary offense.

                     On December 1 O, 2014, the Appellant was sentenced to an aggregate term of incerceretion

           of 96 months to 192 months. The aggregate sentence imposed is to run consecutlvely to any and

           all sentences previously imposed upon this Appellant. The Court did not impose sentence in this

           case on Count 2, Count 3, Count 5, Count 6, Count 8, Count 10, Count 11, Count 13, Count l4,

           and Count 16, pursuant to the provisions of 18 Pa. C.S.A. §3502(d). As was stated in tho Sentence

           Order of December 10, 2013, ''[t]hose are all standard range sentences. The court imposes this

          sentence because of the current number of multiple felony convictions, because the Defendant's

          conduct was ongoing and caused injury to many victims, because the Defendant has shown no

          remorse and has taken no responslblllty for his actions. This Judge sat as the Trial Judge in this


                                                                      2

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       case and observed that the Commonwealth, through an extensive investigation and much legwork

       and hard work, put together a strong and compelling case against this Defendant. The

       Commonwealth established that the aqua shoe foul' arrow footprints led to one person and that

       person is the Defendant. Also, because we believe any lesser sentence would depreciate the

       seriousness   of these crimes."
               On January 8, 2014, this Court received Appellant's Notice of Appeal and on January 10,

       2014, directed the Appellant to file a Concise Statement of Matters Complained of on Appeal. The

       Attorney who represented Appellant at trial resigned on January 6, 2014> and the Court granted

       her replacement an extension of time in which to file a final 1925 (b) statement to February 19,

       2014. The replacement attorney also resigned and Appellant's current counsel requested and was

       granted an extension of time to file the 1925 (b) statement to May 15, 2014. On May 14, 2014,

       Appellant filed a   3rd   Petition for Extension of Time in Which to Flle a Final 1925 (B) Statement

       of Matters Complained of on Appeal as he had not received any of the six days of trial transcrlpts

       and the Court granted Appellant an extension to file his 1925 (b) Statement by June 161 2014, The

       Court received Appellant's Statement of Matters Complained of on Appeal on June 3, 2014. Tn his.

       Statement, the Appellant sets forth six matters complained of from which the following is taken

       verbatim:

              (a) The GPS warrant is invalid due to the lack of probable cause or reasonable suspicion
                  to issue said warrant. The facts contained in the affidavit of the OPS warrant are general
                  and devoid of specificity linking Mr, Ritchey to the instant burglaries, either directly
                  or indirectly. As such) the affidavit lacks the particularity required to establish probable
                  cause 01· reasonably[slc.] suspicion to issue the OPS warrant. The affidavJt in question
                  which was attached to the OPS search warrant is attached to this document as Exhibit
                  A and is incorporated by reference as is specifically outlinejslc.] hereto. Also attached
                  ls Exhibit B, which is incorporated by reference as if specifically outlined hereto.
                  Exhibit B articulates the deficiencies of'the affidavit in question. Furthermore, evidence
                  collected as a result of the OPS warrant was subsequently used for the issuance of
                  additional warrants to search and seize additional evidence from Mr. Rltchey's vehicles




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                        and home. Said additional evidence was entered into evidence at trial and was used to
                        convict Mr. Ritchey of the crimes listed in paragraph 2 above,
                    (b) Tho GPS warrant is invalid because the court that Issued the ors warrant did not have
                        [urisdlctlon over the crimes to which Mr. Ritchey was ultimately convicted in thls case,
                        Furthermore, evidence collected as a result of tho GPS warrant was subsequently used
                        for the issuance of additional wanants to search and seize additional evidence from M1•,
                        Ritchey's vehicles and home. Said additional evidence was entered into evidence at
                        trial and was used to convict Mr. Ritchey or the crimes listed in paragraph 2 above;
                    (c) The GPS evidence, such as route travel and specific locations as determined by the
                        OPS device, is so prejudicial that it outweighs any probative value and as such would
                        prevent Mr. Ritchey from obtaining a fair trial;
                    (d) The Commonwealth failed to sustain its burden of proof at the time of trial and as such
                        the verdict was against the s'Officiency of the evidence. Given the totality of
                        circumstances, the evidence presented at the time of trial was insufficient to sustain the
                        guilty verdicts rendered by the jury in this case;
                    (e) The trial court admitted evidence into the record at trial about the defendant's prior
                        convictions of four burglaries in Clearfield County, Pennsylvania pursuant to Rule 404
                        (b ). The evidence of tho prior convictions was allowed Into evidence to prove common
                        scheme, design> 01· plan and to establish Identity, Furthermore the trial court concluded
                        said evidence's probative value outweighs Its potential for prejudice. The trial court's
                        conclusion in allowing the prior convictions into evidence was in error.
                    (f) The sentence received by tho defendant from the lower court in each of the counts listed
                        in paragraph 2 although in tho standard range, was too harsh for the conduct he was
                                         1

                        found guilty of committing.

          Appellant's Statement of Matters Complained of on Appeal. This Court adequately addressed the

          issues (a), (b), (c), and (e) raised by the Appellant in its Opinion and Order of Court dated June 241

          2013,

                   However, in regards to issues (c) and (e) the Court additionally notes that the cautionary

          instructions anticipated to be given to tho jury about the use of the GPS evidence and the evidence

          of prior convictions were in foot delivered to the jury. See Jury Trial Day One Tr. 76:l lu77:l 1

          (Nov. 15 2013). Before the Attorneys presented their opening arguments, the Court included
                     1




          within the opening instructions to the jury the following cautionary instruction.

                             Jurors, before we hoar from the attorneys in their opening statements and
                   before we hem· any testimony or evidence, I want to give you what we call a
                   "cautionary instructlon." This ls vel'y important and I ask that you pay close
                   attention,




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                        You will hear evidence in this case tending to prove that the Defendant was
               found guilty of offenses for which he is not on trial in this case. I am speaking of
               the testimony and evidence to the effect that the Defendant was convicted of
               burglaries in Clearfield County, Pennsylvania and testimony and evidence
               regarding the specific conduct allegedly involved in those burglaries, which the
               Commonwealth alleges will demonstrate slmilarltles between that alleged conduct
               in Cleal'fleJd County, Pennsylvania, and the conduct allegedly committed by the
               Defendant in this case. This evidence is before you for one limited purpose and that
               is for the purpose of allegedly tending to show a common scheme or plan and
               identity. This evidence must not be considered by you in any way other than for the
               p\lrp0$e I just stated. You must not regard this evidence as showing that the
             · defendant is a. person of bad character or criminal tendencies from which you might
               be inclined to infer guilt in this case.


       See Jury Tria! Day One Tr, 76:llu17:ll (Nov. 15, 2013). The Court repeated the cautionary

       instruction after one of Appellant's fellow inmates testified about conversations which occurred

       in jail. See Jury Trial Day Three Tr. 126: 15-127:13 (Nov. 19, 2013). The Court gave a third

       cautionary instruction when the District Attorney entered by stipulation that the Defendant was

       convicted on August 121\ 2012, of four counts of burglary in Clearfield County. See Jury Trial

      Day Four Tr. 122: 1H123:2 (Nov. 21, 2013). The Court also gave a cautionary lusuuction after

       Appellant testtfled on his own behalf and the Commonwealth introduced into the record certified

      copies of some additional prior criminal convictions of the Appellant. See Jury Trial Day FiveTr,

       80: 16- 83:8 (November 21, 2013).

              In his Concise Statement of Matters Complained of on Appeal (d), Appellant alleges in an

      all-encompassing statement that the Commonwealth did not carry its burden of proof at trial and

      that the evidence presented was not sufficient to support the gullty verdict, Thus, the Court must

      review the evidence of record,

              A claim challenging the sufficiency of the evidence is a question of law. Bvldence will be

      deemed sufficient to support the verdict when it establishes each material element of the crime charged

      and the commission thereof by the accused, beyond a reasonable doubt. Commonwealth v. Karkaria,


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          625 A. 2d 1167 (Pa. 1993), When reviewlng            a   sufficiency claim, the Court is required to view the

          evidence In the light most favorable to the verdict winner. However, while reasonable Inferences must

          be drawn In the Commonwealth's favor, the inferences must flow from facts and circumstances proven

          In the record, and must be of such volume and quantity as to overcome the presumption of Innocence

          and satisfy the jury of the accused's guilt beyond a reasonable doubt, Commonwealth v. Robinson,

          8)7 A. 2d    uss,   J   158 (Pa, Super. 2003). Furthermore, "[tJhe Commonwealth may sustain lrs burden

          by proving the crime's elements with evidence which Is entirely circumstantial and the trler of fact,

          who determines the credibility of witnesses and the weight to give the evidence produced, is free to

          believe all, part, or none of the evldence." Commonwealth v, Brown, 701 A.2d 252., 254 (P11. Super,

          1997), "Where no single bit of evidence will by itself conoluslvely establish guilt, the verdict will be

          sustained where the totality of the evidence supports the finding of gullt." Commonwealth v. Thomas,

          561 A.2d 699, 704 (Pa. 1989)(citatlons omitted).

                   In order to prevail on each burglary charge, the Commonwealth was required to prove beyond

          a reasonable doubt that Appellant entered a bulldlng that was not adapted for overnight accommodation

          at which time no person wae present, with the contemporaneous Intent of committing a crime, at a time

         when he was not licensed or privileged to enter. See 18 Pa, C.S. §3502 (a)(4), In order to prevail on

         the attempted burglary charge, the Commonwealth was required to prove beyond a reasonable doubt

         for the attempt that the Appellant had the Intent to comm it a specific crime and that he took n substantial

         step towerd the commission of that crime and for the burglary that Appellant attempted to enter a

         building with the Intent to commit a crime therein, See 18 Pa. C.S.A. § 3502(a) and 18 Pa. C.S.A. §90 l

         (a). Tho Superior Court has stnted, "[tjhus the Commonwealth must prove that the defendant had both

         the Intent to enter the building and tho Intent to commit a crime therein In order to sustain its burden

         of proof of attempted burglary." Commonwealth v. Willetts, 419 A,2d 1280, 1281 (Pa. Super. 1980).

         In order to prevail on each theft by unlawful toking charge, the Commonwealth was required to prove

         beyond n reasonable doubt that Appellant unlawfully took or exercised "unlawful control over,
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        movable property of another with the Intent to deprive him thereof," See 18 Pa, C,S.A. §3921 .In order

       to prevail on each criminal mischief charge, the Commonwealth was required to prove beyond                  I\

       reasonable doubt that Appellant intentionally damaged real or personal property of another, See 18 Pa.

       C.S.A, §3304(5). This Court has reviewed the evidence presented during the six day trial by the

       Commonwealth and finds It to be more than sufficient to sustain all sixteen of Appellant's convictions.

       As Defendant was only sentenced on the burglaries and attempted burglary the Court focuses only on

       those charges for the purposes of this appeal.

                    In her closing, Appellant's Attorney focused on tho differences between the five burglaries

       and one attempted burglary. Jury Trlal Day 6 Tr, 21: 13-43:25 (Nov. 25, 2013). She did not dispute

       that the burglaries, theft by unlawful taking) or criminal mischief occurred but rather argued that

       Appellant did not commit them. Jury Trial Day 6 Tr. 43: 18-44: 1 (Nov. 25, 2013), She concluded,

                I submit to you thnt his[Appellanes] testimony fell along the lines of all tho testimony of the
                officers. He's not contradicting what was going on here, The only thing that he is contradicting
                is that he committed the burglaries, I submit to you that he did not commit the burglaries and
                he should be found not gullty of these crimes,

       Id. Appellant, thus Is challenging the sufficiency of the evidence linking him to the crimes,
                The Commonwealth presented evidence that demonstrated that Appellant possessed tools

       which were substantially slmllar to those used in committing the burglaries and Indeed Appellant

       admitted to owning the tools, but argued that he possessed them for legitimate purposes such as

       renovating     a house he owned, See Jury T1•Jal Day 5 Tr. 40:3.43: 10 (Nov. 21, 2013). He kept many of

       the tools In a backpack in his bedroom not with the rest of his tools and not at the home which was

       being renovated, Id. A big crow bar was found in his vehlclo. Id.; See Commonwealth ex rel Miller v.

       Maroney, I 16 A.2d 755 (Pa. Super. 1955)(''Possesslon of burglary tools would not in itself be
       sufficient for a verdict of guilty, but jury may consider all the circumstances of the case, in addition to

       the possession     of the tools to determlne guilt, providing other evidence was produced relating to

       burglary and stolen artlcles so that the Jury could infer defendants had Intent to use tools fol' a felonious

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           purpose."). The Commonwealth presented the testimony of one of Appellant's             cellmates, Thomas

           Akroyd, who recounted that the Appellant had spoken to a great extent about the burglaries, See Jury

           Trial Day 3 Tr. J 19: 15J18 (Nov. 19, 2013). Mr. Akroyd testified that,

                     A. He[Appellant] did, he bragged that he was very smart, very intelllgont: ho claimed that he
                        had an engineering degree. You know, when you're in jail you sort of get to talk to people
                        and then you flnd out why they're in jail and he made it very clear that he was In Jail fol'
                        burglary, So he claimed he had an engineering degree. This didn't all come out at once,
                        you know, this is over a period of two, three days, you know. But he claimed that he was
                        very smart, he had and[slc.] englneerlng degree so therefore he had a vast knowledge of
                        heating and alr-condltlonlng systems, which really helped him wlth his knowledge of how
                        to get Into these places.
                     Q. And um did he talk about picking a building?
                     A. Ma'am, when he-"""it w~s a linle weird you know, when he spoke about this it was like a
                         twinkle In his eye and you know, his face lit up when he talked about breaking Into a
                         building and how ho would figure lt out and he would Just go from there.
                     Q. So he approached it sort of methematically?
                     A. Yes, ma'am, yes ma'am. He wasn't happy until he had the conclusion. That's the way he
                         described it to me.
                     Q. Dld he talk about the reasons why he did it?
                     A. You know he didn't really talk about why ho did It. You know he did mention a few
                          occasions where he was not flnanclally hurting to where he did need money and It was
                          more or less Just to prove that he could do it, you know, that' s the way he described It to
                          me,
                     Q. Did he talk about um ---the counties where the break-ins occurred?
                     A, Clearflcld and Venango.
                     Q. Clearfield and Venongo?
                     A. Vos Ma'am.

           Jmy Trlal bay 3 Tl'. 119; 15-121 :12 (Nov. 19, 2013). From this evidence, the jury was free to conclude

           that Appellant hod admitted and even bragged about committing burglaries within Venango County,

          See Commonwealth v, Staino, 204 A.2d 664 (Pa, Super. l 964)("Testimony         to the effect that defendants

           admitted to witness that they had partlclpated In burglary would be sufficient to convict, Irrespective

           of amount taken."). The jury was free to connect Mr, Akyrod's testimony about Appellant's knowledge

           of air-conditionlng      systems with the testimony of Mr. Greg Peiffer, manager of the 84 Lumber

          Company about how the 84 Lumber burglary was accomplished by removing the alr conditioner from

          the office window and the burglar had gained access by crawling through the opening created, See Jury




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               Tl'lal Day 2 Ti·. I I 6:4-1 I 9:7 (Nov. 18, 20 l 3 ). There was additional testimony that Appellant would

               have been able to fit through the opening created. Jury Trial Day 2 Tl', 134: 10~21 (Nov. 18, 2013).

                   There was also evidence presented showing dint the Appellant bought one pair of aqua shoes

               with a four arrow shoe pattern from Walmart on May 21, 2011 and one pair of aqua shoes with the

               same pattern from Walmart on July 17, 2011, Jury Trial Day 3 Tr. 128:14-156:8 (Nov. 19, 2013)

               (Corporal Donald Cloak). Appellant admitted to purchasing the shoes and claimed they were for

               use in Florida and at Lake Brie, Jury Trial Day 5 Tr. 43:13-46:4 (Nov. 19, 20l3), A mere two days

               after Appellant purchased the shoes, the four arrow patterned tracks were found at the scene of

               each of the three commercial burglaries committed on May 23-24 of20111 and were also found at

               the scenes of the subsequent burglaries Appellant was convicted of in this case. The burg lades at

               Klapec Trucking and R&R Garage occurred the same night June 1s1 through June                znd, 2011. 84
               Lumber was entered through the hole created by removing the air conditioner and the non-slip

               dotted glove pattern and four arrow shoe pattern was found on a blueprint that was on the table

           next to the hole created by the air conditioner. It is unique and atypical to find water shoe tracks at

           these particular commercial businesses, Heavy machinery and equipment on the premises of these

           businesses make steel-toed shoes a much safer option than aqua shoes which are intended for

           swimming, kayaking, or other water sports. This aqua shoe pattern was present at the scenes of the

           instant burglaries and the burglaries Appellant was convicted of in Clearfield County. The aqua

           shoe pattern was not found at the scene of the attempted burglary of Whalen Contractlng, but the

           attempt at Whalen Contracting occurred close in time and location to the burglaries which occurred

           the same night at Hards Welding and Thomas Auto which had the four arrow print design. See

           Commonwealth v. Brosko, 365 A.2d 867 (Pa, Super, 1976) ("Burglary conviction was supported


           I   Themas Auto and Hards Welding were broken Into in the evening hours ofMny 23·24, 2011 and the attempted
           burglary M Whalen'» Contracting occurred during that same time.

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           by evidence tha; defendant was found in possession of property burglarized from service station

           only several hours previously, and that modus operandi of burglary at such station matched that

           employed by defendant in burglarizing second service station,") and Commonwealth v. Burton,

           770 A.2d 771 (Fa, Super, 2001)> appeal denied, 868 A.2d 1197 (Pa. 2002)(4'Conviction for

           attempted burglary was supported by evidence that someone had entered home by pushing in

          window screen, that shoe impression on seat of chair under window matched shoes defendant was

          wearing at time of his arrest, and that defendant had burglarized two nearby residences on same
          evening."). The Commonwealth introduced evidence that at every burglary scene there were a pair

          of non-slip rubber dot gloves being worn. The burg lades were conducted after the businesses were

          closed between 11 p.m, and 4 a.m, when few cars are on the road, Each business had fllJng cablnet

          and desk drawers opened and papers scattered around the office. Money was primarily what was

          taken from the different businesses, with the exception of the securlty system taken from Klapec

          Trucking. The jury heard testimony from Trooper Rodinbaugh detailing tho Appellant's

          movements through the OPS tracker placed on the Mazdil the night of the Clearfield County

          burglaries which placed him in the vicinity of those burglaries. Jury Trial Day 4 Tr. 87 :20" 101 :6

          (Nov. 21, 2013). At all of the businesses burglarized any security systems were disabled, cable and

          phone lines were cut at each of the businesses. The jury heard testimony from Trooper David

          Brown that on tho night of the 84 Lumber burglary, the LSAG North American Plate Reader

          System on Route 257 between Oil City and 84 Lumber recorded Appellant's Mazda's license plate

          passing the camera at 3:10 a.m, Jury Trial Day 4 Tr. 105:23~109:16 (Nov, 21, 2013). From this

          evidence the Jury was free to believe that based on tho similarities in the details of the burglaries,
          "proof that a person. committed one of them makes it very unlikely that anyone else committed the

          others." See Commonwealth v. Ross, 57 A.3d 85, 105 (Prt. Super. 2012).



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                   The Jmy also heard evidence that after Corporal Cloak approached Appellant at the Sheetz

            in Clarion on June 15, 2011 and inquired about the tires that were on Appellant's Toyota Camry

            as they matched tire tracks at a burglary scene, Appellant went to Walmart and had his tires

            changed within two hours of the conversation with Corporal Cloak. Jury Trial Day 3 Tr, 128:14-

            156:8 (Nov. 192013) (Corporal Donald Cloak). The jury also heard testimony that when Appellant

        was arraigned in Clearfield County for burglary he asked to speak to Corporal Cloak and Trooper

        Ray and had the following conversation with them.

                          A. At that point he[Appellant] related a hypothetlcal to us. If a person was to·
                             commit these eighty to a hundred crimes that you guys say, and points to us,
                             would it be better for that person to got it out in the open at this time? And we
                             reassured him, yes it would.

        Id. at 143: 24~27. Additionally, the Jury heard testimony that the surveillance system that was

        stolen from Klapec's Trucking was discovered in Appellant's bedroom, Jury Trial Day 1 Tr. 99:

        20-112:4 (Nov. 15, 2013 )(Trooper Mark Swartfager). Appellant claimed that he had bought the

        security system outside of his mother's bait shop from a guy who he didn't remember in a white

        van for a big discount. Jury Trial Day S Tr. 53: 20- 55:9 (Nov, 21, 2013). Sec Commonwealth v.

        Weave1•1 280 A.2d 5 85 (Pa. Super. 197 l)C'Possession of stolen clock by witness, who had received

        it as a Christmas gift from the accused charged with burglary within minutes after burglary was

        circumstantial evidence from which a jury could draw inference of accused's guilt in view of the

        unreasonable explanation of its possession by accused") and Commonwealth v'. Fisher, 372 A.2d

        1 (Pa. Simer. 1977)("Evidonce, in prosecution of defendant for burglary and criminal conspiracy,

        including evidence that grandfather clock resembling stolen grandfather clock was found in

        defendant's apartment, was sufficient to support convlctlon.").       The jUty heard testimony that

        Appellant was near Hards Welding and in 84 Lumber earlier In the day before the burglaries took

        place, See Commonwealth v. Balch, 476 A,2d 458 (Pa. Super. 1984)C'Evidence that defendants

                                                          1]

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        were seen in vicinity of burglarized home on the day on which burglary occurred and that stolen

        items were later found in automobile in which defendants were riding was sufficient to sustain

        defendants' convictions for burglary and criminal conspiracy."). The [ury heard undisputed

        testimony from each of the victims as to the amount of damages that they suffered. Afte1• a careful

        review of the record> the Court rejects Appellant's challenge to the sufficiency of the evidence to

        support his convlctlons as merltless,

                Appellant's last contention is that his sentence Is too harsh for the conduct he was found

        guilty of committing, although he admits he received a standard range sentence. It ls noted at the

        outset that "sentencing is a matter vested in the sound discretion of the sentencing j\ldge) whose

       judgment will not be dtstorbed absent an abuse of discretion. Commonwealth v. Perry, 883 A,2d

        599, 602 (Pa.Super.2005).     11   A challenge to an alleged excessive sentence ls a challenge to the

        discretionary aspects of'a sentence." Commonwealth v. Pennington, 751 A.2d 212, 215 (Pa, Super.

        2000), "Challenges to the discretionary aspects of sentencing do not entitle an Appellant to review

        as of right," Commonwealth v. Moury, 992 A,2d 162, 170 (Pa. Super. 2010). Before an Appellant

        is entitled to review of the discretionary aspects of his sentence, he must satisfy a four-part test:

               [W]e conduct a four-part analysis to determine (l) whether appellant has filed a
               timely notice of appeal, see Pa. R.A,P. 902 and 903; (2) whether the issue was
               properly preserved at sentencing or in a motion to reoonslder and modify sentence)
               see Pa. R. Crim. P. [720]; (3) whether appellant's brief has a fatal defect, Pa. R.A.P.
               2119 (f); and (4) whether there is a substantial question that the sentence appealed
               from is not appropriate under the Sentencing Code, 42 Pa. C,S.A. §9781 (b),

       Commonwealth v. Evans, 901 A,2d 528> 533 (Pa. Super. 2006), appeal denied, 909 A.2d 303 (Pa.

       2006)(intemal citations omitted). A substantial question occurs,

                only when the appellant advances a colorable argument that the sentencing judge's
               actions were either: ( 1) lnconslstent with a specific provision of the Sentencing
               Code; or (2) contrary to the fundamental norms which underlie the sentencing
               process." Commonwealth v. Sferra, 752 A.2d 910, (Pa. Super. 2000). Generally,
               "[a]n allegation that the sentencing court failed to consider certain mitigating

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                   factors generally does not necessarily ridse a substantial question. Commonwealth
                   v. McNabb, 819 A.2d 54, 57 (Pa. Super, 2003). Accord Commonwealth v. Wellor,
                   731 A.2d 152, 155 (Pa. Super. l 999)(reiterating allegation that sentencing court
                   "failed to consider" or "did not adequately consider" certain factors generally does
                   not misc a substantial question),

          Commonwealth v, Moury, 992 A.2d at 171.
                   The Superior Court of Pennsylvania has stated that in exercising its discretion at

          sentencing, "the trial court must consider tho character of the defendant and the particular

          circumstances of the offense .•• , and must impose a sentence that is consistent with the protection

          of the public, the gravity of the offense, and the rehabilitative needs of tho defendant."

          Commonweath v. Guth, 735 A,2d 709, 711 (Pa, Super. 1999). More specifically, "the court should

          refer to the defendant's prior criminal record, his age, personal characteristics and his potential for

          rehabilitation," Commonwealth v. Gr(f]ln, 804 A.2d l, l O (Pa. Super, 2002), appeal denied, 868

          A.2d 1198 (Pa, 2005), cert. denied, 545 U.S. 1148 (2005). When the "sentencing court had the

          benefit of a presentence investigation report (HPSl"), we can assume the sentencing court 'was

          aware of relevant information regarding defendant's character and weighed those considerations

          along with mitigating .statutory factors.!" Commonwealth v. Moury, 992 A,2d at 171 (citations

          omitted). Additionally, "where a sentence is within the standard range of the guidelines,

         Pennsylvania law views the sentence as appropriate under the Sentencing Code." Moury, 992 A,2d

         at 17 L .Moreove1", "the imposition of consecutive, rather than concurrent) sentences may raise a

         substantial question in only the most extreme circumstances, such as where the aggregate sentence

         is unduly harsh, considering the nature of the crimes and length of imprisonment." Commonwealth

         v. Pass, 914 A,2d 442, 446-447 (Pa. Super. 2006). A "clalm of excessiveness may raise a

         substantial question where an appellant provides a plausible argument that the sentence is contrary




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         to the Sentencing Code or the fundamental norms underlying the sentencing process,"

         Commonwealthv, Mouzon, 812 A.2d 617 (Pa. 2002).

                  The Court notes that the sentences Appellant received are within the standard range of the

         sentencing guidelines. Burglary, where the building is not a home and no persons were present

        receives an offense gravity scorn of 5, 203 Pa. Code §303.15. Appellant had a prior record score

        of 3. Appellant was convicted of five separate counts of Burglary and one count of attempted

        Burglary and received a sentence of sixteen (16) months to thirty-two (32) months on the each

        count to run consecutive to one another. The standard minimum sentencing guideline range for

        this offense is 6 months to 16 months. Appellant's minimum sentence for each count of Burglary

        was the highest possible standard range minimum sentence. The statutory limit fo~· a minimum

        sentence for Burglary is slxty months,

                  In the instant matter, immediately before sentencing the Appellant, this Court stated on

        tho record the factors that were considered in imposing the sentence. Speclflcally, this Court stated:

                          In imposing sentence in this        CASO, we have considered the
                          Defendant's age, his education, the condition of his health, medical
                          history, including mental health, family history, employment history
                          and all the other information contained in the pre-sentence
                          investigation report. We have considered the Defendant's statement
                          made to U1e court at sentencing, the report from the Venango County
                          Prison, in the form of the Venango County Prison Inmate Evaluatlon
                          Report. We have considered the remarks of defense counsel at the
                          sentencing hearing and the recommendation made by the
                          Commonwealth at the sentencing hearing. We have considered the
                          circumstances surrounding all of these offenses; this Judge sat as the
                          Trial Judge in this case, The court has considered the sentencing
                          guidelines and all other relevant factors,

        Sentence Hr'g Tr. 25:18-26:12 (December 10> 2013). Furthermore in the December 101 2013,

        Order of Sentence, this CouL1 stated, "[tjhese are all standard range sentences. The court imposes

        this sentence because of the current number of multiple felony convlctlons, because the


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           Defendant's conduct was ongoing and caused injury to many victims) because the Defendant has

           shown no remorse and has taken no responsibility for his actions. This Judge sat as the Trial Judge

           in this case and observed that the Commonwealth, through an extensive investigation and much

           legwork and hard work, put together n strong and compelling case against this Defendant, The

           Commonwealth established that the aqua shoe four arrow footprints led to one person and that

           person is the Defendant. Also, because we believe any lesser sentence would depreciate the

           seriousness of these crimes."

                    At sentencing Appellant's counsel and Appellant sought concurrent sentences for the

           counts stating that they should be considered a crime spree. Sentence Hr 'e Tr. 22: 11-15

           (December 10, 2013). It is well settled that "In imposing sentence, a trial judge is given the

           discretion to determine whether, given the facts of a particular case, a given sentence should be

           consecutive to, or concurrent with, other sentences being imposed." Commonwealth v,

          Rickabaugh 706 A.2d 826, 847 (Po. Super, 1997). Appellant is not entitled to a "volume discount"

           for committing multiple burglaries. Appellant burglarlzed or attempted to burglarize six separate

          businesses which each suffered individualized damage and loss. This is not Appellant's first

          "crime spree," his PSI contained prior theft by unlawful taking convictions and burglary

          convictions. Consecutive sentences do not "present a substantial cuestlon regarding the

          discretionary aspects of the sentence." Com. v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995),

                    The allegation that the sentence received by the Appellant, although in the standard range,

          was too harsh for the conduct he was found guilty of committing, absent more, does not raise a

          substantial question. Moury, 992 A.2d at 175. Based on the foregoing, the sentence imposed by

          the Court is supported by sufficient explanation, is not unreasonable or unduly lengthy, and is




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       consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs

       of the Appellant.

              Based on the foregoing, the Appellant's issues raised I\S matters complained of on appeal

       are deemed without merit.

                                                       BY THE COURT,




       cc:    PA
              Jeffrey Misko, Esq.




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