J-S23007-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
LAMARR CLEMENTE,                          :
                                          :
                   Appellant              : No. 82 EDA 2014

          Appeal from the Judgment of Sentence December 12, 2013,
                 Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0012419-2012

BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED MAY 15, 2015

       Lamarr Clemente (“Clemente”) appeals from the December 12, 2013

judgment of sentence entered by the Philadelphia County Court of Common

Pleas following his convictions of burglary, criminal conspiracy, criminal

trespass and theft by unlawful taking.1     The trial court sentenced him on

December 12, 2013 to two concurrent terms of incarceration of two to four

years, followed by two years of reporting probation. In this timely appeal,

Clemente challenges the sufficiency of the evidence to support his

convictions of burglary, conspiracy and trespass.      Clemente’s Brief at 3.

After careful review, we affirm.

       Appellate review of a challenge to the sufficiency of the evidence is de

novo. Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014). “[O]ur



1
    18 Pa.C.S.A. §§ 3502(a)(2), 903, 3503(a)(1)(ii), 3921(a).


*Retired Senior Judge assigned to the Superior Court.
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scope of review is limited to considering the evidence of record, and all

reasonable inferences arising therefrom, viewed in the light most favorable

to the Commonwealth as the verdict winner.”                 Id. at 420-21.      “The

Commonwealth may sustain its burden by means of wholly circumstantial

evidence.”     Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014)

(citation and quotation omitted).          “Further, we note that the entire trial

record is evaluated and all evidence received against the defendant is

considered, being cognizant that the trier of fact is free to believe all, part,

or none of the evidence.” Id. It is for the finder of fact to pass upon the

credibility   of   the   witnesses   and    weight   of   the   evidence   presented.

Commonwealth v. Melvin, 103 A.3d 1, 40 (Pa. Super. 2014).

      The trial court provided the following summary of the evidence

presented at the October 7, 2013 bench trial, viewed in the light most

favorable to the Commonwealth:

                 On August 13, 2012, at approximately 8:45 a.m.,
              Richard S. Giliberti, a construction foreman, was
              driving by one of his job sites on 3416 Sydenham
              Street. N.T.[,] 10/7/13, [at] 16-17, 19. Mr. Giliberti
              was approximately 40-50 feet away from the site
              when he noticed [Clemente] and a second person
              standing on the top of the deck of the property. [Id.
              at] 17, 20-22. Mr. Giliberti observed that the second
              person was holding a threshold and another
              unknown item while standing on top of the deck.
              [Id. at] 27. Both [Clemente] and the second
              individual saw Mr. Giliberti watch them. [Id. at] 23.
              As Mr. Giliberti exited his car, [Clemente] began to
              walk off the deck, carrying a can of spackle and a
              second threshold. [Id. at] 22-23, 25. The other



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          individual left the threshold and an unknown item on
          top of the deck. [Id. at] 25-26, 36. [Clemente] and
          the second person walked down the handicap ramp.
          Id. [Clemente] left the can of spackle and threshold
          at the bottom of the handicap ramp, and both men
          walked away from the property together. [Id. at]
          24-26, 37, 39. Mr. Giliberti called the police. [Id. at]
          23.

             Following their departure, Mr. Giliberti walked to
          the deck and observed that a door had been kicked
          in from an apartment that was used to store
          construction materials. [Id. at] 27. He did not touch
          anything as he walked up the ramp and into the
          property. Id. Mr. Giliberti entered the apartment and
          observed [that] a chop saw and dishwasher were
          missing. [Id. at] 29. Mr. Giliberti visited the property
          approximately two weeks earlier. [Id. at] 27, 34. At
          that time, the door was intact and Mr. Giliberti
          secured the premises upon departure. [Id. at] 27,
          34. At the time of that visit, the chop saw and
          dishwasher were present. [Id. at] 34. The
          dishwasher and chop saw were never recovered. [Id.
          at] 37.

             Mr. Giliberti observed the second person return
          and enter a gray sedan. [Id. at] 24, 40, 44. He
          drove past Mr. Giliberti. [Id. at] 25. Mr. Giliberti was
          unable to see whether the chop saw or dishwasher
          were in the car. [Id. at] 48.

              Police Officers Agront and Collins arrived
          approximately fifteen minutes after Mr. Giliberti’s
          call. [Id. at] 26, 51. Police Officer Agront contacted
          a fingerprint technician to process the scene. [Id. at]
          51. No one touched any of the items carried by
          [Clemente]. [Id. at] 52. Police Officer Drobonick
          arrived and processed the premises. [Id. at] 55-56.
          He took pictures of the scene and obtained latent
          fingerprints of [Clemente] from the door threshold at
          the bottom of the ramp. [Id. at] 56-57, 67-68.
          [Clemente] was not employed by the construction
          company renovating the building[,] nor did he have



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            permission to be on the premises. [Id. at] 29, 65-
            66.

Trial Court Opinion, 6/30/14, at 2-4.

      We begin with the sufficiency of the evidence to support Clemente’s

convictions of burglary and criminal trespass. For Clemente to be convicted

of burglary, the Commonwealth had to prove, in relevant part that, “with the

intent to commit a crime therein, [Clemente] … enter[ed] a building or

occupied structure, or separately secured or occupied portion thereof that is

adapted for overnight accommodations in which at the time of the offense

no person is present[.]” 18 Pa.C.S.A. § 3502(a)(2). For criminal trespass,

the Commonwealth had to establish that Clemente, “knowing that he [was]

not licensed or privileged to do so, … [broke] into [a] building or occupied

structure or separately secured or occupied portion thereof.” 18 Pa.C.S.A. §

3503(a)(1)(ii).

      Clemente asserts that the evidence was insufficient to convict him of

these crimes, as “the testimony failed to show that [Clemente] ever broke

into or entered the apartment in question as the eyewitness only observed

[Clemente] outside [of] the apartment, which had been left unattended for

at least the two preceding weeks.”      Clemente’s Brief at 11.   According to

Clemente, the only thing the Commonwealth proved is that he was present

outside of the property and “briefly in possession of items formerly in the

apartment.” Id. at 13. Because it had been several weeks since either the




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owner or the construction foreman had been to the property, and the

property had been burglarized five or six times previously, Clemente argues

that his mere possession of the spackle and threshold do not permit an

inference that he broke into the property and removed the items from

inside.   Id. at 14-16.   Clemente states that he “clearly” did not take the

dishwasher and chop saw that were missing from the property, as he “left on

foot empty-handed,” and his coconspirator could not have concealed the

dishwasher in his car, and thus, someone else must have kicked in the door

during a prior, undetected burglary. Id. at 16. Clemente points to his own

testimony that the threshold and spackle were outside of the apartment and

asserts that this “un-rebutted explanation” adequately proved that he did

not break into the apartment. Id. at 17.

      The trial court found as follows:

                Here, the evidence showed that [Clemente], who
             did not have permission to be on the premises,
             entered the apartment where building materials were
             stored and removed items. Mr. Giliberti observed the
             door leading into the apartment kicked in.
             [Clemente] was observed standing on the deck of
             the property with another person holding items that
             had been stored inside the property. [Clemente] was
             observed walking off with a can of spackle and a
             door threshold. He ultimately left the items at the
             bottom of the handicap ramp where his fingerprints
             were recovered from the door threshold.

Trial Court Opinion, 6/30/14, at 5.




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      The record, viewed in the light most favorable to the Commonwealth

as our standard of review requires, supports the trial court’s conclusion. It

is uncontested that Clemente was at the property in question, holding two

items that had previously been inside of the apartment. N.T., 10/7/13, at

27. The door to the apartment was kicked in. Id. Mr. Giliberti testified that

the last time he was at the apartment, approximately two weeks prior to the

burglary in question, he secured all of the doors and ensured they were

locked and that the door was intact at that time.        Id.   Clemente was not

invited or permitted to enter the premises. Id. at 66. Clemente does not

claim, and the record does not support a finding, that he was unaware that

he was not invited or permitted to enter the building.

      Although Clemente testified that he obtained the threshold and spackle

from outside of the apartment, having found them among some boxes and

other trash, see id. at 78, no other witness corroborated that testimony.

Nor was his testimony “un-rebutted,” as Clemente claims. To the contrary,

Mr. Giliberti testified that when he arrived and observed Clemente and his

coconspirator on the day in question, there was no trash on the property and

that the items Clemente and his coconspirator dropped on the ramp were

inside of the apartment prior to this incident. Id. at 27, 36. Officer Agront

likewise testified that he did not remember seeing anything outside of the

apartment other than the items Clemente and his coconspirator had

possessed. Id. at 53.



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       Furthermore, there is no evidentiary support for Clemente’s contention

that he and his coconspirator could not have stolen the dishwasher and chop

saw.     Mr. Giliberti testified that he did not look inside the trunk of

Clemente’s coconspirator’s vehicle, and could not see what was in the

backseat because the driver of the car “peeled out” and sped past Mr.

Giliberti.   See id. at 41, 48.    It is therefore entirely possible that the

dishwasher and chop saw were in the car, and just not seen as Clemente’s

coconspirator drove away.

       Clemente cites several cases in support of the contention that where

some time has passed between the occurrence of a crime and the

defendant’s apprehension, mere possession of stolen property does not

necessarily permit an inference that the defendant was responsible for the

underlying crime.   See Clemente’s Brief at 14-16.      All of the cases upon

which he relies relate to a defendant being found in possession of stolen

property after the underlying crime was committed.2         Thus, Clemente’s



2
   See, e.g., Commonwealth v. McFarland, 308 A.2d 592, 595 (Pa. 1973)
(“[T]here is not sufficient evidence to sustain the inference that appellants
participated in the burglary and larceny merely because the stolen items
were found in their possession over eleven months later.”);
Commonwealth v. Matthews, 632 A.2d 570, 572 (Pa. Super. 1993)
(finding insufficient evidence of mens rea required for conviction of receiving
stolen property where the defendant was found driving a stolen car three
days after its theft and the defendant provided an unrebutted explanation
for his belief that he was in lawful possession of the car); but see, e.g.,
Commonwealth v. Price, 420 A.2d 527, 529 (Pa. Super. 1980) (finding
the evidence sufficient to support conviction of burglary based on testimony
that the defendant and another man were observed riding one of the stolen


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argument requires that we assume that the items found in his possession

were outside of the apartment, as he claimed during his testimony. In other

words, Clemente would have us view the facts in the light most favorable to

him and reverse the trial court’s credibility determinations. As stated above,

our standard of review prohibits us from doing either.       See Rushing, 99

A.3d at 420-21; Melvin, 103 A.3d at 40.

      Clemente was caught red-handed with items that had been inside of

the apartment while standing on the deck of the property, with the door

kicked in. He was not invited or permitted to be inside of the apartment.

Testimony by the Commonwealth’s witnesses contradicted Clemente’s claim

that he found the items outside of the apartment, and the trial court found

the Commonwealth’s witnesses credible.      Under these circumstances, the

Commonwealth,     through   the   presentation   of   circumstantial   evidence,

satisfied its burden of proving that Clemente was criminally responsible for

burglary and trespass. See Martin, 101 A.3d at 718.

      Turning to his conviction of conspiracy, Clemente asserts, “the

testimony merely showed that there was another person present, but not

that [Clemente] entered into an agreement with him to commit a crime.”

Clemente’s Brief at 20. Clemente states that he was simply outside of the

apartment at the same time as the other person and did not interact with


motorcycles and the defendant was in possession of rolled coins from the
burglarized store ninety minutes after the burglary and three miles from the
store, despite the defendant providing a contrary explanation).


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him, giving rise only to a finding of a “mere association” between the two

and the “happening of a crime in which several people participate,” neither

of which proves a conspiratorial relationship. Id. at 23.

      The trial court found that the “conduct and circumstances” of Clemente

and the other person gave rise to the inference of a conspiracy. Trial Court

Opinion, 6/30/14, at 7.   Based upon Clemente’s and the other individual’s

presence on the property together, both holding items from inside of the

apartment, and then walking away together, the trial court concluded that

the evidence was sufficient for a conspiracy conviction. Id.

      The Pennsylvania Crimes Code defines conspiracy as follows:

            A person is guilty of conspiracy with another person
            or persons to commit a crime if with the intent of
            promoting or facilitating its commission he:

            (1) agrees with such other person or persons that
            they or one or more of them will engage in conduct
            which constitutes such crime or an attempt or
            solicitation to commit such crime; or

            (2) agrees to aid such other person or persons in the
            planning or commission of such crime or of an
            attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903(a).     “No person may be convicted of conspiracy to

commit a crime unless an overt act in pursuance of such conspiracy is

alleged and proved to have been done by him or by a person with whom he

conspired.” 18 Pa.C.S.A. § 903(e).

            The essence of a criminal conspiracy is a common
            understanding, no matter how it came into being,
            that a particular criminal objective be accomplished.


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           Therefore, a conviction for conspiracy requires proof
           of the existence of a shared criminal intent. An
           explicit or formal agreement to commit crimes can
           seldom, if ever, be proved and it need not be, for
           proof of a criminal partnership is almost invariably
           extracted from the circumstances that attend its
           activities. Thus, a conspiracy may be inferred where
           it is demonstrated that the relation, conduct, or
           circumstances of the parties, and the overt acts of
           the co-conspirators sufficiently prove the formation
           of a criminal confederation. The conduct of the
           parties and the circumstances surrounding their
           conduct may create a web of evidence linking the
           accused to the alleged conspiracy beyond a
           reasonable doubt.

Melvin, 103 A.3d at 42-43 (citation omitted).

     As stated hereinabove, the evidence presented sufficiently, albeit

circumstantially, proved that Clemente and another individual trespassed

into and burglarized the apartment.           The record further reflects that

Clemente and this other individual were standing together on the deck of the

apartment, where the door had been kicked in, and each was holding a

threshold and another item that had been inside of the apartment.        N.T.,

10/7/13, at 20, 23, 25.    When Mr. Giliberti arrived at the property, the

unidentified person followed Clemente down the ramp from the apartment

onto the sidewalk.   Id. at 22-23.    Clemente and the other person walked

away from the scene together, first traveling south on Sydenham Street and

then turning east onto Ontario Street. Id. at 23-24.

     Based upon the conduct of Clemente and the other person as well as

the overt acts performed by each of them, the Commonwealth sufficiently



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proved that there existed “a common understanding … that a particular

criminal objective be accomplished,” and “a shared criminal intent.” Melvin,

103 A.3d at 42-43. We therefore agree with the trial court that Clemente’s

conspiracy conviction was supported by sufficient evidence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2015




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