J-S48033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    GERALD CHERRY                              :
                                               :
                       Appellant               :     No. 2591 EDA 2017


              Appeal from the Judgment of Sentence July 12, 2017
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0008501-2016


BEFORE:      DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                             FILED OCTOBER 10, 2018

        Appellant, Gerald Cherry, appeals from the judgment of sentence

imposed following his non-jury trial conviction of burglary, criminal trespass,

and receiving stolen property.1 Specifically, he challenges the sufficiency of

the evidence to sustain his conviction, and argues that his sentence is illegal.

We affirm in part and vacate in part.

        We take the factual and procedural history in this matter from our

review of the certified record and the trial court’s December 15, 2017 opinion.

Appellant was arrested in relation to a burglary of a convenience store. During

a non-jury trial on May 8, 2017, the Commonwealth introduced the testimony

of Ms. Maria Prats, the storeowner. She testified that during the night between

August 16 and 17, 2016, the back door of her convenience store was broken
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1   18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(ii), and 3925(a), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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into and many items were taken from the store. (See N.T. Trial, 5/08/17, at

6-8). She confirmed that she had video surveillance of the store, and stated

that the two men who were on the video tape during the burglary were not

permitted to be in the store. (See id. at 9-15). Ms. Prats was not initially

able to identify either man in the video.        On cross-examination, she

acknowledged that Appellant was a regular customer in the store, and on re-

direct examination, stated that he was one of the people on the surveillance

video. (See id. at 20-22).

      One of the men in the surveillance video had a distinctive tattoo on one

of his forearms and, prior to resting, the Commonwealth requested that

Appellant display the tattoo on his arm for the court.          (See id. at 23).

Appellant testified on his own behalf concerning the tattoo, and stated that

other people in his neighborhood have the same tattoo and it is available in

several tattoo parlors.   (See id. at 24-25). At the conclusion of trial, the

court found Appellant guilty of all charges. (See id. at 31).

      On July 12, 2017, the court imposed a sentence of not less than two

and one-half years nor more than five years’ imprisonment for burglary,

followed by a consecutive sentence of five years of probation for criminal

trespass, and five years of probation for receiving stolen property, concurrent

to the other probation sentence. Appellant did not file a post-sentence motion.

This timely appeal followed.

      On September 13, 2017, the court issued an order directing that

Appellant file a concise statement of errors pursuant to Rule 1925(b) no later

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than twenty-one days after entry of its order.        The trial court entered its

opinion on December 15, 2017, noting that Appellant had failed to comply

with its order and timely file a statement of errors. See Pa.R.A.P. 1925(a).

Appellant filed his concise statement of errors complained of on appeal on

December 19, 2017. See Pa.R.A.P. 1925(b).2

       Appellant raises three issues on appeal.

       1. Was not the evidence legally insufficient to establish
          [Appellant’s] identity as one of the men who committed the
          crimes?

       2. Does not a misdemeanor theft charge, based on a theft being
          the intended crime committed in a burglary, merge for
          sentencing with a burglary sentence under 18 Pa.C.S.[A.] §
          3502(d)?

       3. Did not the conviction for criminal trespass merge for
          sentencing with burglary under 42 Pa.C.S.[A.] § 9765, and
          would not a contrary ruling require that the statute be declared
          unconstitutional on its face or as applied under the
          Pennsylvania Constitution as a violation of separation of powers
          and double jeopardy rights?

(Appellant’s Brief, at 2) (unnecessary capitalization omitted).

       Appellant’s first issue challenges the sufficiency of the evidence to

support his conviction, for which our standard of review is well settled.

             The standard we apply . . . is whether viewing all the
       evidence admitted at trial in the light most favorable to the verdict
       winner, there is sufficient evidence to enable the fact-finder to find
____________________________________________


2 Although Appellant failed to comply with the court’s order and timely file his
Rule 1925(b) statement, we decline to find that he waived his issues because
the trial court was able to adequately address Appellant’s sufficiency of the
evidence claim, and Appellant’s challenges to the legality of his sentence are
not waivable. See Commonwealth v. Edrington, 780 A.2d 721, 723 (Pa.
Super. 2001).

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      every element of the crime beyond a reasonable doubt. In
      applying [the above] test, we may not weigh the evidence and
      substitute our judgment for the fact-finder. In addition, we note
      that the facts and circumstances established by the
      Commonwealth need not preclude every possibility of innocence.
      Any doubts regarding a defendant’s guilt may be resolved by the
      fact-finder unless the evidence is so weak and inconclusive that
      as a matter of law no probability of fact may be drawn from the
      combined circumstances. The Commonwealth may sustain its
      burden of proving every element of the crime beyond a reasonable
      doubt by means of wholly circumstantial evidence. Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, 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.

Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa. Super. 2011) (en banc),

appeal denied, 54 A.3d 348 (Pa. 2012) (citation and emphases omitted).

      Appellant challenges the sufficiency of the identification evidence

against him. (See Appellant’s Brief, at 9-13). Specifically, he argues that Ms.

Prats was initially unable to identify either man in the surveillance video, and

only on redirect examination stated that the man in the darker shirt was

Appellant. (See id. at 9-10). Further, he claims that the similarity between

the tattoo on his arm, which he displayed during trial, and the tattoo on the

perpetrator’s arm, was insufficient to establish his identity. (See id. at 10-

12). We disagree.

      “[E]vidence of identification need not be positive and certain to sustain

a conviction.” Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa. Super.

2008), appeal denied, 962 A.2d 1196 (Pa. 2008) (citation omitted).

Furthermore, “[a]lthough common items of clothing and general physical



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characteristics are usually insufficient to support a conviction, such evidence

can be used as other circumstances to establish the identity of a perpetrator.”

Orr, supra at 874 (citation omitted).

      In the instant case, the Commonwealth presented a surveillance video,

which depicted the perpetrator’s image, (see N.T. Trial, at 10-15), the

testimony of Ms. Prats, who explained that Appellant, who was a regular

customer in her store, was the person she saw on the surveillance video, (see

id. at 21-22), and evidence of Appellant’s tattoo on his left arm, which was

similar to the tattoo on the left arm of the perpetrator in the video. (See id.

at 23).

      Upon review, considering all circumstantial evidence in the light most

favorable to the Commonwealth as verdict winner, we conclude that the

evidence was sufficient to establish Appellant’s identity as one of the

perpetrators of the burglary, and to sustain his conviction. See Orr, supra

at 872-74. Appellant’s first issue does not merit relief.

      In his second issue, Appellant challenges the legality of his sentence.

Specifically, he argues that his misdemeanor theft by receiving stolen property

count should have merged for sentencing with his burglary count.          (See

Appellant’s Brief, at 13-14). The Commonwealth concedes that the charges

should have merged for sentencing. (See Commonwealth’s Brief, at 11). We

agree.

      18 Pa.C.S.A. § 3502 states: “A person may not be sentenced both for

burglary and for the offense which it was his intent to commit after the

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burglarious entry or for an attempt to commit that offense, unless the

additional offense constitutes a felony of the first or second degree.”           18

Pa.C.S.A. § 3502(d); see Commonwealth v. Diaz, 867 A.2d 1285, 1288

(Pa. Super. 2005) (holding that theft that occurred during course of burglary

merges with corresponding burglary).

      In the instant case, it is clear that Appellant’s intent in burglarizing the

store was to commit theft. Accordingly, based on section 3502(d), he should

not have been sentenced for both the burglary and the misdemeanor theft

conviction. Thus, we vacate Appellant’s sentence of five years of probation

for theft.      However, because this probationary sentence was imposed

concurrent to a five-year probationary sentence for criminal trespass, vacation

of Appellant’s theft sentence does not upset the trial court’s sentencing

scheme. Therefore, we are not required to remand to the trial court. See

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006), appeal

denied, 946 A.2d 687 (Pa. 2008) (“[I]f our decision does not alter the overall

scheme, there is no need for a remand.”) (citation omitted).

      In his third issue, Appellant argues that his conviction of criminal

trespass should merge with his conviction for burglary for sentencing

purposes. (See Appellant’s Brief, at 14-29). Appellant acknowledges that

this Court has held that criminal trespass does not merge with burglary for

sentencing purposes, but “wishes to preserve this issue . . . for en banc

consideration and Supreme Court review.” (Id. at 15). In addition, Appellant

argues   that    “the   legislative   enactment,   42   Pa.C.S.[A.]   §   9765,   is

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unconstitutional on its face or as applied, because it violates separation of

powers and double jeopardy rights guaranteed by the Pennsylvania

Constitution.” (Id. at 21) (unnecessary capitalization omitted). Appellant’s

claim does not merit relief.

            A claim that crimes should have merged for sentencing
      purposes raises a challenge to the legality of the sentence.
      Commonwealth v. Allen, 24 A.3d 1058, 1062 (Pa. Super.
      2011). Therefore, our standard of review is de novo and our scope
      of review is plenary. Id.

      The Crimes Code defines burglary as follows:

            § 3502. Burglary

            (a) Offense defined.—A person is guilty of burglary
            if he enters a building or occupied structure, or
            separately secured or occupied portion thereof, with
            intent to commit a crime therein, unless the premises
            are at the time open to the public or the actor is
            licensed or privileged to enter.

      18 Pa.C.S.A. § 3502(a).

            The Crimes Code defines criminal trespass as follows:

            § 3503. Criminal trespass

            (a) Buildings and occupied structures.—

                  (1) A person commits an offense if,
                  knowing that he is not licensed or
                  privileged to do so, he:

                  (i) enters, gains entry by subterfuge or
                  surreptitiously remains in any building or
                  occupied structure or separately secured
                  or occupied portion thereof; or

                  (ii) breaks into any building or occupied
                  structure or separately secured or
                  occupied portion thereof.

      18 Pa.C.S.A. § 3503(a)(1).

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            Whether these two offenses merge will turn on Section 9765
      of the Sentencing Code, which addresses merger and provides:

            § 9765. Merger of sentences

            No crimes shall merge for sentencing purposes unless
            the crimes arise from a single criminal act and all of
            the statutory elements of one offense are included in
            the statutory elements of the other offense. Where
            crimes merge for sentencing purposes, the court may
            sentence the defendant only on the higher graded
            offense.

      42 Pa.C.S.A. § 9765 (emphasis added).

Commonwealth v. Quintua, 56 A.3d 399, 400-01 (Pa. Super. 2012), appeal

denied, 70 A.3d 810 (Pa. 2013).

      In Quintua, this Court considered the same issue raised in this matter,

whether criminal trespass and burglary should merge for sentencing purposes.

The Quintua Court stated that our Supreme Court in Commonwealth v

Baldwin, 985 A.2d 830 (Pa. 2009), held that the plain language of section

9765 demonstrated “a legislative intent ‘to preclude the courts of this

Commonwealth from merging sentences for two offenses that are based on a

single criminal act unless all of the statutory elements of one of the offenses

are included in the statutory elements of the other.’” Quintua, supra at 401

(quoting Baldwin, supra at 837).

      The Quintua Court then applied Pennsylvania’s merger law and

concluded that:

            [e]xamining the elements of criminal trespass, a conviction
      for that offense requires a person: (1) to break or enter into with
      subterfuge any building or occupied structure; (2) knowing he is
      not licensed or privileged to do so.         See 18 Pa.C.S.A. §
      3503(a)(1). On the other hand, to commit burglary, a person

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       must: (1) enter a building or occupied structure; (2) with intent
       to commit a crime therein. See 18 Pa.C.S.A. § 3502(a). The plain
       language of the respective statutes demonstrates why they do not
       merge. Criminal trespass contains an element of knowledge—a
       person committing that offense must know he is not privileged to
       enter the premises. Burglary has no such knowledge requirement.
       Burglary does, however, require intent to commit a crime within
       the premises, an element that criminal trespass lacks. As each
       offense requires proof of an element the other does not, the
       sentences should not merge.

Id. at 402 (case citation omitted).

       Instantly, Appellant has acknowledged that this Court is bound by the

Quintua Court’s rulings. (See Appellant’s Brief, at 15). We agree, and thus

conclude that, because criminal trespass does not merge with burglary,

Appellant’s third issue is meritless.3

     Judgment of sentence affirmed in part and vacated in part.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/18



____________________________________________


3 To the extent that Appellant attempts to argue an issue concerning the
constitutionality of section 9765, adopting the separation of power and double
jeopardy concerns raised by Chief Justice Castille’s concurrence in Baldwin,
(see Appellant’s Brief, at 21-29), we find that argument waived for failure to
raise it before the trial court. See Commonwealth v. Cline, 177 A.3d 922,
927 (Pa. Super. 2017), appeal denied, 187 A.3d 210 (Pa. 2018) (“The law is
clear that issues, even those of constitutional dimension, are waived if not
raised in the trial court.”) (citation and internal quotation marks omitted); see
also Pa.R.A.P. 302(a).


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