J-S15011-15

                                   2015 PA Super 66



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KEVIN ADOLFO JACQUEZ

                            Appellant                 No. 1231 MDA 2014


             Appeal from the Judgment of Sentence June 19, 2014
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003170-2013


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

OPINION BY LAZARUS, J.:                                FILED APRIL 06, 2015

        Kevin Adolfo Jacquez appeals from the judgment of sentence imposed

by the Court of Common Pleas of Berks County following his conviction for

conspiracy to commit burglary,1 theft by unlawful taking (M3),2 conspiracy to

commit theft by unlawful taking,3 and receiving stolen property.4         After

careful review, we affirm.

        The trial court summarized the facts of this case as follows:



____________________________________________


1
    18 Pa.C.S. §§ 903(a)(1), 3502(a)(2).
2
    18 Pa.C.S. § 3921(a).
3
    18 Pa.C.S. §§ 903(a)(1), 3921(a).
4
    18 Pa.C.S. § 3925(a).
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     On the morning of April 4, 2013, Antonio Fernandez arrived at
     the store he owns and manages, La Esquina Famosa at 1300
     North 10th Street in the City of Reading, and discovered its
     contents strewn across the floor. Fernandez had closed the
     store around 10:30 p.m. the previous night, and the door was
     still locked the next morning. He noticed that one of the ceiling
     panels had been moved, and that the items on a shelf
     underneath the panel were positioned, “as if somebody had
     stepped on there.” Fernandez investigated the ceiling panel and
     noticed a large hole leading to the upstairs apartment.
     Fernandez also recognized that numerous items were missing,
     including a bank envelope, cigars, cigar wrappers, cigarettes, a
     water jug filled with change, and other store merchandise.

     Fernandez called the police, and at approximately 7:50 a.m.,
     Officer James Yeasted arrived and spoke with Fernandez.
     Yeasted saw [Jacquez] standing outside the store; [Jacquez],
     holding two black garbage bags, was next to a nearby door
     landing to stairs to an apartment.        Yeasted learned that
     [Jacquez] lived in an apartment above the store with his
     girlfriend, who was the only individual who had keys. [Jacquez]
     stated that they had been moving out of the apartment the night
     before, and that he had returned that morning to move
     additional items.

     [Jacquez] granted them permission to look around inside. In the
     corner of the main room, Yeasted observed an empty water jug
     identical to the one missing from the store. Inside the kitchen
     stove, there was a black backpack containing Fernandez’s
     laptop, loose change, and some other items. Inside a closet, the
     carpet was lifted up and a tile underneath was broken. Beneath
     the tile, the loose floorboards could be removed, and you could
     see down into the store below.          The resulting hole was
     approximately two feet by one-and-a-half feet.

     Fernandez also came up to the apartment, and he identified
     multiple items that were sold in his store. Fernandez recognized
     [Jacquez] because he came into the store almost daily, where he
     would buy cigars and random food items. [Jacquez’s] girlfriend
     would come into the store to purchase cigarettes. Outside on
     the sidewalk, Fernandez found a bag containing cigar wrappers
     and store-related paperwork that had been taken. The bag also
     contained construction materials, evidently from the hole put in
     the floor between the store and apartment.


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     Criminal Investigator Joseph Snell joined the investigation of the
     apartment later that morning. He testified as to a strange
     conversation with [Jacquez] regarding some of the purported
     evidence:

        Q:      Did you speak to him while the search was being
        conducted, before or after?

        A:        While the search was being conducted I asked
        him, I said are those your bags? Did you guys use these
        bags to pack? Because he told me they were moving out
        the night before. And the girlfriend of his also stated that
        they left around like 11:30 was the last run and the place
        was locked up.

        I pointed out the bags, is this any of the items that you
        guys were using to pack. No. The water jug. I asked
        [Jacquez] is that your water jug? He’s like no. I was here
        early. I got here in the morning. I had to move it, too,
        because I wanted to see if the store was open, he told me.

        Q:       He moved the water jug to see if the store was
        open?

        A:       Yes.

        ...

        Q:       How about the items in the kitchen . . .?

        A:       Okay. I questioned [Jacquez] about this. I asked
        him if those were his, if he noticed those items. He said
        they weren’t his items. I asked him if he touched any of
        the items. He stated that he took a drink out of the Sprite.

        Q:       The green item on the right-hand side?

        A:       Yes, but he had no explanation why those items
        were in there.

           [Jacquez] was also unable to explain bags recovered within
     the apartment that contained other items stolen from the store.

     Jacquez indicated that Philip Nieves had been one of several
     people to help them move out of the apartment the previous
     evening.   Subsequent forensic testing revealed fingerprints
     belonging to both [Jacquez] and Nieves on several items that
     had been stolen from the store.

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Trial Court Opinion, 9/29/14, at 2-4.

       On June 19, 2014, after a two-day trial, a jury convicted Jacquez of

the above-referenced offenses. The same day, the court sentenced Jacquez

to 18 to 120 months’ incarceration for conspiracy to commit burglary,

followed by 6 to 12 months’ incarceration for theft by unlawful taking (M3). 5

       Jacquez filed a post-sentence motion on June 25, 2014, which the trial

court denied the following day.            This timely appeal followed, in which

Jacquez raises the following issues for our review:

       1. Whether the trial court erred in sentencing Jacquez on both
          conspiracy to commit burglary and theft by unlawful taking
          when a person convicted of burglary and theft by unlawful
          taking could not be so sentenced pursuant to 18 Pa.C.S. §
          3502(d), rendering the sentence imposed illegal.

       2. Whether the evidence presented at trial was sufficient to
          establish the charges of conspiracy to commit burglary and
          theft by unlawful taking as mere access to the point of entry
          and/or knowledge of the crime is insufficient to establish the
          charges?

Brief of Appellant, at 6.

       Jacquez asserts that his sentence is illegal and unconstitutional.

Accordingly, our scope of review is plenary, and our standard of review is de

novo. See Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. Super.

2009) (challenge to legality of sentence); and Commonwealth v. Bullock,

913 A.2d 207, 212 (Pa. 2006) (challenge to constitutionality of statute).

____________________________________________


5
  The court was in possession of a pre-sentence investigation report at the
time of sentencing.



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       Jacquez’s argument focuses on section 3502 of the Crimes Code,

which provides, in relevant part:

       § 3502 Burglary

                                          *****

       (d) Multiple convictions. – A person may not be sentenced
       both for burglary and for the offense which it was his intent to
       commit after the 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. § 3502(d).

       As section 3502(d) makes clear, a person who commits burglary and

theft by unlawful taking (M3) after the burglarious entry, may not be

sentenced for both offenses. However, in the instant matter, Jacquez was

found guilty of conspiracy to commit burglary and theft by unlawful taking

(M3). Because the trial court determined that a conviction for conspiracy to

commit     burglary    did    not   implicate    the   prohibition   against   multiple

convictions under section 3502(d), it imposed separate sentences for each

offense.

       Jacquez asserts that the failure to include a conspirator to burglary in

the sentencing exemption of section 3052(d) constitutes a violation of equal

protection under the 14th Amendment to the United States Constitution.6

____________________________________________


6
  Because Jacquez has failed to engage in an analysis of the four factors
required by Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), we
are precluded from considering whether the statute violates the equal
protection clause of the Pennsylvania Constitution.



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      “The essence of the constitutional principle of equal protection under

the law is that like persons in like circumstances will be treated similarly.

However, it does not require that all persons under all circumstances enjoy

identical protection under the law.” Commonwealth v. Shawver, 18 A.3d

1190, 1194 (Pa. Super. 2011) (citation omitted).

      Jacquez cites School Districts of Deer Lakes and Allegheny v.

Kane, 345 A.2d 658 (Pa. 1975), for the proposition that a party attacking

the constitutional validity of a statute shoulders a heavy burden of proof, as

legislative   enactments    are   presumed   constitutionally   valid.    Citing

Eisenstadt v. Baird, 405 U.S. 438 (1972), he also recognizes that he must

show that no rational basis existed to exempt conspirators from section

3502(d).

      Despite this recognition, Jacquez fails to explain why it is irrational to

treat conspirators and burglars differently for purposes of sentencing.

Rather, he simply concludes, “no rational basis exists to exclude the

conspirator to burglary from the sentencing exemption of [section] 3502(d).”

Appellant’s Brief, at 16.

      “The crime of conspiracy . . . is separate and distinct from the

underlying substantive crime.”     Commonwealth v. Ritter, 615 A.2d 442,

444 (Pa. Super. 1992).       Furthermore, the crime of conspiracy does not

merge with the substantive offense that is the subject of the conspiracy.

Commonwealth v. Miller, 364 A.2d 886, 888 (Pa. 1976). In light of these

well-settled principles, of which the General Assembly was surely aware, its

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decision not to extend to conspirators the same lenity that it extended to

burglars, and those who attempt to commit burglary, through section

3502(d) appears to reflect legislative intent. Even if this were not the case,

“a court cannot supply an apparent omission in a statute even though it

appears    that   the   omission   resulted   from   the   [L]egislature’s   mere

inadvertence or failure to foresee or contemplate a case in question.”

Palmosina v. Laidlaw Transit Co., Inc., 664 A.2d 1038, 1039 (Pa. Super.

1995) (citation omitted).

      “A legislative enactment is presumed to be constitutional and will not

be declared unconstitutional unless it clearly, palpably and plainly violates

the Constitution.” Commonwealth v. Mockaitis, 834 A.2d 488, 497 (Pa.

2003).    Because Jacquez has not met the burden of establishing that

imposing different sentences on defendants who commit conspiracy to

commit burglary and those who commit burglary offends the Constitution,

he is not entitled to relief on this claim.

      Jacquez next argues that there was insufficient evidence to support his

convictions for conspiracy to commit burglary and theft by unlawful taking.

      Where an appellant challenges the sufficiency of the evidence, this

Court “must determine whether the evidence and all reasonable inferences

deducible therefrom, when viewed in the light most favorable to the verdict-

winner . . . are sufficient to establish all elements of the crime charged

beyond a reasonable doubt.” Commonwealth v. Rakowski, 987 A.2d

1215, 1217 (Pa. Super. 2010) (quoting Commonwealth v. Parker, 957

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A.2d 311, 317 (Pa. Super. 2008) (citations omitted)).           Further, “the

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Commonwealth v. Abed, 989 A.2d 23, 26 (Pa. Super. 2010)

(citations omitted).       “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.” Id. at 26-27.

       “A person is guilty of conspiracy with another person . . . to commit a

crime if with the intent of promoting or facilitating its commission, he agrees

with such other person . . . that they . . . will engage in conduct which

constitutes such crime.” 18 Pa.C.S. § 903(a)(1). Here, the Commonwealth

charged Jacquez with conspiring to commit burglary, defined in relevant part

as entering, with intent to commit a crime, “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. § 3502(a)(2).7

       The evidence established that Fernandez arrived at his store on the

morning of April 4, 2013, and discovered merchandise strewn on the floor.

He noticed that a ceiling tile had been moved and, upon further inspection,

discovered a hole in the ceiling opening directly into Jacquez’s apartment.

____________________________________________


7
  In his brief, Jacquez does not discuss theft by unlawful taking or conspiracy
to commit theft by unlawful taking.



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Fernandez called police, who saw Jacquez coming down from the upstairs

apartment carrying two black trash bags. Jacquez told officers that he had

moved out of the apartment the day before and came back to retrieve the

rest of his belongings.   He stated that several people helped him move,

including Nieves.

      Jacquez allowed police into the apartment where they found several

items from the ground-level store including a water cooler jug that had

previously been half-filled with coins and a laptop computer.

      At some point, Fernandez saw Jacquez discard a black trash bag into

the dumpster.   When police retrieved the bag, they found a bank deposit

bag from the store, bills addressed to the store, cigar wrappers and

construction tools. Further investigation revealed Jacquez’s fingerprints and

Nieves’ palm print on the items.

      “Circumstantial evidence may provide proof of [a] conspiracy.      The

conduct of the parties and the circumstances surrounding such conduct may

create a web of evidence linking the accused to the alleged conspiracy

beyond a reasonable doubt.” Commonwealth v. Bricker, 882 A.2d 1008,

1017 (Pa. Super. 2005).       The evidence cited above was sufficient, if

believed, to establish that Jacquez conspired to commit a burglary at La

Esquina Famosa.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2015




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