J-S04006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KENNETH MORRIS,

                            Appellant                   No. 5 EDA 2016


            Appeal from the Judgment of Sentence August 12, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008140-2010


BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                         FILED FEBRUARY 02, 2017

       Kenneth Morris (“Appellant”) appeals from the judgment of sentence

entered on August 12, 2015, by the Court of Common Pleas of Philadelphia

County, following his conviction of criminal trespass. We affirm.

       Two men entered the home of Ms. Loretta Thomas without permission

in the early morning hours of May 22, 2010. Ms. Thomas identified one of

the men as Appellant.         Appellant was charged with one count of criminal

trespass as a felony of the second degree in violation of 18 Pa.C.S. §

3503(a)(1)(ii).    Immediately after waiving his right to a jury trial on June

10, 2015, the trial court found Appellant guilty of criminal trespass as a

felony of the third degree, in violation of 18 Pa.C.S. § 3503(a)(1)(i), which
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*
    Former Justice specially assigned to the Superior Court.
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the trial court found to be a lesser-included offense of the charge under

section 3503(a)(1)(ii).     On August 12, 2015, the trial court sentenced

Appellant to incarceration for a term of two and one-half to five years

followed by a consecutive two-year term of reporting probation. Appellant

filed   a   timely   post-sentence   motion   on   August   20,   2015,   seeking

reconsideration of his sentence. The motion was denied by operation of law

on December 21, 2015. This timely appeal followed. The trial judge did not

order Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of

on appeal, and the judge retired without filing a Pa.R.A.P. 1925(a) opinion.

        On appeal, Appellant presents the          following questions for our

consideration:

        1. Did not the lower court abuse its discretion in sentencing
           [A]ppellant to a sentence beyond the aggravate [sic]
           guideline range, and by improperly using [A]ppellant’s
           criminal history as an aggravating factor?

        2. Did not the lower court err by finding sufficient evidence that
           [A]ppellant was the trespasser, where the victim who
           identified [A]ppellant as the trespasser also testified that she
           didn’t see the trespasser’s face, and where the circumstantial
           evidence was otherwise insufficient to establish [A]ppellant’s
           guilt?

Appellant’s Brief at 3.

        We address the sufficiency challenge first, as a finding of insufficient

evidence would result in a dismissal of the charge against Appellant. See

Commonwealth v. Ruffin, 463 A.2d 1117, 1118 n.5 (Pa. Super. 1983)

(stating that the appropriate remedy for insufficient evidence to support a


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conviction is dismissal and discharge of the defendant).        The basis for

Appellant’s sufficiency challenge is his claim that the Commonwealth failed

to prove that he was the trespasser. Appellant’s Brief at 22.

     In reviewing the sufficiency of the evidence:

     we consider whether the evidence presented at trial, and all
     reasonable inferences drawn therefrom, viewed in a light most
     favorable to the Commonwealth as the verdict winner, support
     the jury’s verdict beyond a reasonable doubt. The
     Commonwealth can meet its burden by wholly circumstantial
     evidence and any doubt about the defendant’s guilt is to be
     resolved by the fact finder unless the evidence is so weak and
     inconclusive that, as a matter of law, no probability of fact can
     be drawn from the combined circumstances. As an appellate
     court, we must review the entire record and all evidence actually
     received. The trier of fact while passing upon the credibility of
     witnesses and the weight of the evidence produced is free to
     believe all, part or none of the evidence. Because evidentiary
     sufficiency is a question of law, our standard of review is de novo
     and our scope of review is plenary.

Commonwealth v. Benito, 133 A.3d 333, 335 (Pa. Super. 2016), appeal

denied, 141 A.3d 477 (Pa. 2016) (quoting Commonwealth v. Dawson,

132 A.3d 996, 1001–1002 (Pa. Super. 2015) (internal citations and some

punctuation omitted)).

     Specifically regarding the issue of identity, our Supreme Court has

stated:

     Proof beyond a reasonable doubt of the identity of the accused
     as the person who committed the crime is essential to a
     conviction. The evidence of identification, however, needn’t be
     positive and certain in order to convict, although any
     indefiniteness and uncertainty in the identification testimony
     goes to its weight. Direct evidence of identity is, of course, not
     necessary and a defendant may be convicted solely on
     circumstantial evidence.

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Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (internal

citations and quotation marks omitted).

     Appellant contends that Ms. Thomas insufficiently identified Appellant

as the trespasser based on his skin color, the color of his t-shirt, and his

location in a nearby alley. Appellant’s Brief at 22, 24. He also complains

that, although Ms. Thomas had not seen the trespasser’s face, she identified

Appellant as the trespasser at trial, despite the absence of any physical

evidence to prove his guilt.    Id. at 27.   Contending the Commonwealth’s

case is circumstantial and that he was merely present in the alley near Ms.

Thomas’ house, Appellant argues that the Commonwealth did not present

sufficient evidence to link him to the trespass of Ms. Thomas’ home. Id. at

23. We disagree.

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

winner, the record reveals that Appellant and Ms. Thomas knew each other

from the neighborhood. N.T., 6/10/15, at 13. Appellant and his cousin had

been in Ms. Thomas’ house on prior occasions. Id. at 17–18. Ms. Thomas’

front door was never locked because she did not have a key, and her fire-

damaged back door was propped shut with a clothes dryer, a five-gallon

paint container, and a board.    Id. at 12, 15.   The day before the crime,

Appellant asked Ms. Thomas if she was going out later that night; he was

wearing a grey t-shirt at the time. Id. at 18, 24, 30–31.




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      Ms. Thomas left her house around 1:00 a.m. and went to a nearby

convenience store on May 22, 2010.      N.T., 6/10/15, at 9–10.   When she

returned home at approximately 2:00 a.m., she noticed a man inside,

peering out of the front door as if he “was looking for somebody.” Id. at 11.

As Ms. Thomas ran toward the house and up the steps screaming, the man

locked the front door from inside.   Id. at 11.   Looking to the side of her

house, Ms. Thomas saw two men run out of the back of the house, “leave

the backyard and jump the gate;” one of the men was wearing a grey t-

shirt; the other man had long hair and was wearing a hat. Id. at 13–14.

The back door of the house had been moved from its closed position. Id. at

16.

      Ms. Thomas contacted the police, and Officer (now Sargeant) Tamika

Reid responded. N.T., 6/10/15, at 14, 33–34. Within minutes, Officer Reid

observed Appellant coming out of a nearby alley behind Ms. Thomas’ house;

he was wearing a grey t-shirt. Id. at 15, 35. When the officer presented

Appellant to Ms. Thomas, she identified him as the man she saw leaving her

house. Id. at 16, 28, 33–35. Ms. Thomas also identified Appellant in court.

Id. at 9, 11.

      Appellant corroborated Ms. Thomas’ testimony about his cousin living

nearby, being in Ms. Thomas’ house previously, and talking with her the day

before about her going out that night, but he denied trespassing in her

house. N.T., 6/10/15, at 38–40. He explained that his grey t-shirt was torn


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in an incident with “a random person” as he was going to meet his cousin.

Id. at 42.

      As noted above, the factfinder was free to believe all, some, or none of

the evidence. Benito, 133 A.3d at 335. The trial court chose to believe Ms.

Thomas’ unwavering testimony that Appellant was the man she saw peering

out of her front door and fleeing through her backyard. We will not disturb

the factfinder’s credibility findings, which are supported by the evidence of

record.      Furthermore,   we    agree     with   the   Commonwealth         that   any

uncertainty    regarding    Ms.   Thomas’     in-court    identification     on   cross-

examination goes to the weight of her testimony, not the sufficiency of the

evidence. Commonwealth’s Brief at 12. Based on the record, we conclude

that the trial court did not err in denying Appellant’s sufficiency claim.

      Next, we address Appellant’s challenge to the length of his sentence as

an abuse of the trial court’s discretion.     Challenges     to   the      discretionary

aspects of sentencing do not entitle a petitioner to review as of right.

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). Before

this Court can address a discretionary challenge, an appellant must comply

with the following requirements:

              An appellant challenging the discretionary aspects of
              his sentence must invoke this Court’s jurisdiction by
              satisfying a four-part test: (1) 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 reconsider and
              modify sentence, see Pa.R.Crim.P. 720; (3) whether
              appellant’s brief has a fatal defect, Pa.R.A.P.

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            2119(f); and (4) whether there is a substantial
            question that the sentence appealed from is not
            appropriate under the Sentencing Code.

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015), appeal

denied, 126 A.3d 1282 (Pa. 2015) (quoting Allen, 24 A.3d at 1064).

      Presently, Appellant filed a timely notice of appeal and preserved this

issue in a post-sentence motion.       Further, Appellant’s brief includes a

concise statement of reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Appellant’s Brief at 14. We now must determine whether

Appellant presents a substantial question that the sentence appealed from is

not appropriate under the Sentencing Code.

            The determination of what constitutes a substantial
      question must be evaluated on a case-by-case basis. Further:

            A substantial question exists only when the appellant
            advances a colorable argument that the sentencing
            judge’s actions were either: (1) inconsistent with a
            specific provision of the Sentencing Code; or (2)
            contrary to the fundamental norms which underlie
            the sentencing process.

Caldwell, 117 A.3d at 768 (internal quotation marks and citations omitted).

      In his Pa.R.A.P. 2119(f) statement, Appellant claims that the trial court

abused its discretion “by failing to state sufficient reasons on the record for

imposing an aggravated range sentence and by improperly considering

[A]ppellant’s prior criminal record as an aggravating factor.”      Appellant’s

Brief at 14. According to Appellant, his sentence of “two and [one-]half to

five years incarceration (30 to 60 months) . . . for criminal trespass” as a


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third-degree felony “exceeded [the] top of the aggravated guideline range,

which would have called for a sentence of 19 to 38 months.” Id.1

       This Court has held that claims of a sentencing court imposing a

sentence outside of the standard guidelines without stating adequate

reasons on the record presents a substantial question. Commonwealth v.

Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014) (citing Commonwealth v.

Robinson, 931 A.2d 15, 26 (Pa. Super. 2007)).        Thus, we conclude that

Appellant’s claim presents a substantial question for our review, and we will

review the merits of Appellant’s challenge.

               Sentencing is a matter vested in the sound discretion of
       the sentencing judge, and a sentence will not be disturbed on
       appeal absent a manifest abuse of discretion. In this context, an
       abuse of discretion is not shown merely by an error in judgment.
       Rather, the appellant must establish, by reference to the record,
       that the sentencing court ignored or misapplied the law,
       exercised its judgment for reasons of partiality, prejudice, bias
       or ill will, or arrived at a manifestly unreasonable decision.

Caldwell, 117 A.3d at 770 (internal quotation marks and citations omitted).

Appellate courts afford the sentencing court great deference, as it is the

sentencing court that is in the best position to view the defendant’s

character, displays of remorse, defiance, or indifference, and the overall

effect and nature of the crime. Commonwealth v. Walls, 926 A.2d 957,

961 (Pa. 2007) (quotations and citations omitted).
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1
   Appellant’s prior record score of five and offense gravity score of three
warranted a minimum range sentence of six to sixteen months plus or minus
three months. Basic Sentencing Matrix, 204 Pa.Code § 303.16(a).



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      When imposing a sentence, the sentencing court must consider “the

protection of the public, the gravity of the offense as it relates to the impact

on the life of the victim and on the community, and the rehabilitative needs

of the defendant.”    42 Pa.C.S. § 9721(b).      Also, “a court is required to

consider the particular circumstances of the offense and the character of the

defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002).

In particular, the sentencing court should refer to the defendant’s prior

criminal record, his age, personal characteristics, and his potential for

rehabilitation. Id.; Commonwealth v. Fullin, 892 A.2d 843, 847–48 (Pa.

Super. 2006).

      We note that sentencing courts are not bound by the Sentencing

Guidelines because they are merely advisory. Commonwealth v. Sheller,

961 A.2d 187, 190 (Pa. Super. 2008) (citation omitted).        The sentencing

court “may depart from the [G]uidelines if necessary, to fashion a sentence

which takes into account the protection of the public, the rehabilitative

needs of the defendant, and the gravity of the particular offense as it relates

to the impact on the life of the victim and the community.”       Id. (internal

quotation marks and citation omitted).

      Our review of the record reflects that, at the time of Appellant’s

sentencing, the court was aware of the applicable guideline ranges. N.T.,

8/12/15, at 3–4.     In addition, defense counsel offered justification for a

“slightly aggravated” sentence, including Appellant’s personal history and


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the fact that Appellant waived his right to a jury trial.        Id. at 4–5.

Thereafter, Appellant personally addressed the court, denied committing any

crime in Philadelphia, and requested a county sentence so he could see his

family. Id. at 10.

     In response, the trial court stated on the record as follows:

           THE COURT: All right. Thank you. Listen, anyone who
     comes in here knows that I always look to see how people can
     assimilate back into society and be productive members and not
     be a threat to society. I always look to that first. I read these
     reports intensely. I look at them, I do some research, I ask for
     information. I do everything I can to see how you can come back
     and not be a threat.

          But here’s what I seen, and I’ve never really been taken
     back so much with any presentence report as yours, sir. You
     have 22 arrests, you have 20 convictions, you have 20
     commitments, 14 violations of probations, 14 revocations. You
     have started committing crimes when you were 16. You have
     assault on a female, inflicting serious injury, at the age of 18.
     You have your first gun charge at the age of 18. You have a
     second gun charge at the age of 19. You have another assault on
     a female, wanton injury, personal injury, when you’re 25. You
     have a resisting when you’re 26.

           Everybody keeps sending you back to North Carolina, and
     North Carolina keeps kicking you out on the street. Suspensed
     [sic] sentence, probation, suspended sentence, over 20 times.
     You had family then, you had other alternatives then. To me, I
     don’t know whether North Carolina is the place to get arrested
     because they don’t seem to have ever incarcerated you for any
     long periods of time for the cumulative crimes that you’ve
     committed. I’m taken back. Every chance that you’ve gotten, 20
     convictions. Not four, five, six, seven. Not, I tried to do this
     while I was in, or I tried to do that to better myself. I look for
     redeeming qualities. I have to be honest, I have not found any.

           I am more concerned than I have been with any case that
     I have had before me for sentencing about your threat to the
     rest of civilization where you live, I have to be honest with you.

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      It pains me to say that because I always look for the good in
      people. But you’ve gotten chance after chance.

             With that said, I'm going to sentence you to two and a half
      to five years in state prison with two years reporting probation
      consecutive after you’re out.

N.T., 8/12/15, at 10–12.

      Defense counsel then asked the trial court to put its reasons for the

aggravated sentence on the record. The trial court complied:

             THE COURT: I just -- I thought I put a whole bunch of
      reasons on. I have the most -- I never in my life been so afraid
      to let someone out after so many attempts to help and so many
      suspended sentences, probation, and every time he gets back to
      North Carolina, it’s something else. I put on the record the
      assaults on females, the resisting arrest, the gun charges. It’s
      always something else. I could not find any redeeming qualities
      on him. I believe that if this man is out again, he’s going to
      commit crimes and he’s going to kill somebody eventually. I
      can’t have that after all the times and all the breaks he’s got
      with suspended sentences and probation.

N.T., 8/12/15, at 13.

      Upon review, we discern no lack of reasons for the sentence or abuse

of the trial court’s discretion. Informed by Appellant’s presentence report,

the trial court referred to Appellant’s “prior criminal record, his age, personal

characteristics, and his potential for rehabilitation.” Griffin, 804 A.2d at 10.

Specifically, the trial court observed that the severity of Appellant’s crimes

had escalated over the years, that Appellant posed a threat to the

community, and that, having been given numerous opportunities to mend

his ways, Appellant failed to demonstrate any potential for rehabilitation.

Necessarily, the trial court deviated from the Guidelines and imposed a

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sentence which took into account “the protection of the public, the gravity of

the offense as it relates to the impact on the life of the . . . community, and

the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b); Sheller,

961 A.2d at 190.

      We reject Appellant’s assertion that the trial court double-counted

Appellant’s criminal record as an aggravating factor. Moreover, we find no

indication that the trial court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a

manifestly unreasonable decision. Caldwell, 117 A.3d at 770.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2017




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