J-S96028-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                   v.

THOMAS BEAL

                        Appellant                      No. 899 WDA 2016


           Appeal from the Judgment of Sentence May 31, 2016
             In the Court of Common Pleas of Fayette County
           Criminal Division at No(s): CP-26-CR-0002208-2015



BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.:                               FILED APRIL 10, 2017

     Thomas Beal appeals from the judgment of sentence of forty-six to

240 months incarceration imposed following his convictions for burglary,

criminal trespass, and criminal mischief. We affirm.

     We adopt the trial court’s cogent recitation of the facts set forth in its

Pa.R.A.P. 1925(a) opinion.

     Doris Pastorius has been a baker at Pechin Superfoods Market
     (hereinafter “Pechin’s”) for twenty-seven years. On November
     3, 2015, Pastorius, along with two other bakers, Steve Borek
     and Andy Pletcher, were scheduled to start their work shift at
     two o’clock a.m.     On that morning, Pastorius and Pletcher
     arrived at Pechin’s around 1:50 a.m. They entered Pechin’s
     through the front door and went to the bakery department.

     Approximately forty-five minutes into her shift, Pastorius noticed
     a rope ladder hanging down from the ceiling through a HVAC
     unit. After observing this oddity, Pastorius alerted Borek and
     Stanley Angel, a security guard employed by Pechin’s. Angel
     walked into the market and immediately saw the rope ladder
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      hanging from the ceiling. Angel testified that after he came into
      the market, he went over to the rope ladder and started to hear
      movement above. At that time, a person started to climb down
      the ladder. Pastorius testified that when she looked up, she saw
      two feet. Angel testified that a man with boots, jeans, and a
      grey hooded sweatshirt kicked out the grate from the HVAC unit
      and started to climb down the ladder. The individual then
      suddenly climbed back up the ladder. Immediately following
      that, Pastorius called Don D’Amico, the owner of Pechin’s and
      Angel called the police.

      The police arrived on scene a few minutes after the call.
      Troopers Ryan Butka and Shane Reaghard of the Pennsylvania
      State Police approached the back of the building. They climbed
      up on the roof and began their search. They first found an open
      air conditioning unit with a rope ladder hanging down into the
      building. Continuing on with their search, the troopers got to
      the opposite end of the building. Trooper Butka found Appellant
      under an air conditioning unit in an “army crawl” position.

      Trooper Butka identified himself as the police, pointed his
      weapon and informed Appellant to come out from underneath
      the unit. When Trooper Butka asked Appellant what he was
      doing up on the roof, Appellant replied he was there sleeping.
      Appellant was then placed in handcuffs and the troopers, along
      with the local fire department, assisted Appellant off of the roof.

Trial Court Opinion, 8/15/16, at 3-4 (citations to transcript omitted).

      We add the following pertinent facts.             Mr. D’Amico took two

photographs    while   police   arrested   Appellant,     two   of   which   the

Commonwealth introduced. They depicted authorities assisting Appellant off

the roof.   Appellant’s clothing is plainly visible in the photographs, which

depict him wearing jeans, gloves, a gray hooded sweatshirt, and brown

boots.   Second, Pechin’s is one of several properties in the Laurel Mall

complex, with all businesses sharing a common roof. Third, Appellant was



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located at the far end of the building, approximately 100 to 150 yards from

the burglar’s point of entry.

      Appellant filed timely post-sentence motions for relief and a notice of

appeal.      The trial court and Appellant complied with the procedural

requirements of Pa.R.A.P. 1925, and the matter is now ready for our review.

Appellant presents the following issues.

      I.     Whether the evidence was sufficient to support the
             defendant’s conviction of criminal trespass and burglary?

      II.    Whether the jury verdict was against the weight of the
             evidence?

      III.   Did the trial court err in admitting the photographs of the
             defendant after he was taken into custody on the roof of
             the Laurel Mall?

Appellant’s brief at 7.

      Appellant’s first claim concerns the sufficiency of the evidence.

Whether the evidence was sufficient to support the conviction presents a

matter of law; our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Walls, 144 A.3d 926, 931 (Pa.Super. 2016)

(citation omitted). In conducting our inquiry, we

      examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury's finding of all the elements of the offense beyond a
      reasonable doubt. The Commonwealth may sustain its burden by
      means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).



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        The trial court deemed this issue waived and, in the alternative,

meritless. With respect to waiver, Appellant’s concise statement of matters

complained of on appeal simply stated that the convictions for criminal

trespass and burglary were insufficient.     Concise Statement, 7/5/16, at

unnumbered 1. As we stated in Commonwealth v. Garland, 63 A.3d 339,

344 (Pa.Super. 2013), to preserve a challenge to the sufficiency of the

evidence on appeal the concise statement “must state with specificity the

element or elements upon which the appellant alleges that the evidence was

insufficient.” Id. at 344. Appellant's boilerplate statement failed to do so.

Therefore, we could find the issue waived.

      However, since the claim presents a question of law that the court

readily apprehended, we shall address it. See Commonwealth v. Laboy,

936 A.2d 1058 (Pa. 2007) (less strict waiver approach where case was not

complex and trial court addressed claim).      Instantly, Appellant does not

argue that the Commonwealth failed to establish any particular element of

the crimes; instead, he posits that the Commonwealth did not prove

identity.   His argument implicates the well-established rule that, while the

Commonwealth may sustain its burden with wholly circumstantial evidence,

mere presence at a crime scene alone cannot justify a conviction.         In

support, Appellant points to the absence of any tools, instruments, or

fingerprints, and highlights that the roof in question encompassed several

separate businesses.

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     Numerous cases have addressed the sufficiency of evidence when a

burglar enters a building through a roof or other means not readily

accessible to the public. Cases where there is strong circumstantial evidence

of guilt pose little difficulty. See Commonwealth v. Viall, 420 A.2d 710

(Pa.Super. 1980) (after hearing footsteps on roof of burglarized building,

officer observed appellant climbing down from roof).

     Less direct evidence of concealment or flight has also been deemed

relevant in establishing more than mere presence. In Commonwealth v.

Jones, 444 A.2d 729 (Pa.Super. 1982), police responded to a laundromat

for a reported burglary in progress. When Officer Thomas Christy arrived, a

number of police officers were already on scene. Officer Christy climbed to

the roof of a nearby building and observed several individuals running,

including Jones, who refused an order to stop. Shortly thereafter, Jones was

found in an alleyway with no incriminating items on his person. Id. at 731.

We held that the evidence was sufficient to convict:

     The evidence in the instant case, although circumstantial, was
     sufficient to sustain the convictions. Shortly after midnight,
     appellant was seen running across the roof of a building adjacent
     to a laundromat to which access had been gained through the
     roof. He was taken into custody by police while attempting to
     conceal himself in the doorway opening onto a neighboring alley.
     Inside the premises an attempt had been made to remove
     money      from   coin-operated    laundry    machines.    These
     circumstances had greater probative value than mere presence
     at the scene of a crime. They were sufficient to enable a jury to
     infer that entry had been effected to commit the crime of theft
     and that appellant was a participant. Moreover, an attempt to



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      flee or conceal oneself from the police is an additional
      circumstance from which guilt can be inferred.

Id. at 731–32. Hence, while Jones was not directly observed running from

the burglarized building in response to the police investigation, the

circumstantial evidence sufficed to affirm the convictions.

      At the other end of the spectrum is Commonwealth v. Weaver, 455

A.2d 1199 (Pa.Super. 1982).     Therein, an officer responded to a reported

burglary at a jewelry store and observed two males inside. Id. at 1200-01.

Since all entrances were secured, officers checked the roof and discovered a

hole. The two perpetrators, both white juveniles, were quickly apprehended

and both possessed merchandise from the store. Weaver, a twenty-seven-

year-old black male, was found by police on the roof of another

establishment two buildings away from the jewelry store. This building was

easily accessible from the jewelry store as the buildings were separated by

two-foot high partitions. Weaver was located approximately fifty feet from

the hole in the roof, in a fetal position, with no merchandise or incriminating

tools. Id. at 1201. He was convicted of, inter alia, burglary and conspiracy.

We discharged all convictions on sufficiency grounds.

      While the discovery by police of a man just two buildings away
      from the site of a breaking and entering at 12:20 a.m. may
      conjure up the highest degree of suspicion as to his involvement
      in the criminal incident, without more, this Court is precluded
      from connecting appellant with the burglary of the nearby
      jewelry store unless the connection or association of appellant
      with those apprehended is established beyond a reasonable
      doubt insofar as the crime is concerned.


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Id. at 1201. The majority opinion in Weaver did not discuss Jones, but did

note that Weaver made no attempt to flee.

       Returning to the present circumstances, the facts are superficially

similar to Weaver as both cases involve men who were located a short

distance from the means of access on the common roof of a building. Like

the appellant in Weaver, no one observed Appellant concealing himself or

fleeing the scene, nor did anyone see the burglar’s face. However, we find

that sufficient additional facts link Appellant to the burglary.        Most

significantly, Appellant’s clothing matched the description of the man Mr.

Angel observed descending the steps. Mr. Angel testified that upon seeing

legs, he “used some words I shouldn’t have, but I said come on down . . . I

saw boots, I saw jeans, I saw gray hoodie, and then all of a sudden, going

back up the ladder.”       N.T., 5/2-3/16, at 62-63.   Appellant suggested on

cross-examination that Mr. Angel’s description was tainted by his later

observation of Appellant being escorted from the roof. Id. at 69. Mr. Angel

disagreed.     Id.   While Appellant maintains that this testimony is not

believable as a matter of weight, see infra, the jury was free to credit or

discredit the testimony.

       Moreover, Weaver is further distinguishable in that the case stressed

a lack of Weaver’s connection to the crime as a matter of accomplice

liability.   The Commonwealth had failed to establish a “connection or

association . . . with those apprehended[.]”           Id. at 1201 (emphasis

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added). Herein, all eyewitnesses to this crime described one suspect and no

one else was in the immediate vicinity.        While Appellant informed the

arresting officer that he had been sleeping on the roof, the jury was entitled

to credit or discredit this explanation. See Commonwealth v. Scott, 146

A.3d 775 (Pa.Super. 2016) (appellant claimed mere presence near a

burglarized building; offered alternative explanation for presence of his DNA

on discarded cigarette). Appellant’s explanation that he was on the roof to

sleep was rejected by the jury. Drawing all reasonable inferences in favor of

the Commonwealth, as we must, these additional facts establish that

Appellant’s conviction was not based on mere presence.

      Appellant’s second claim attacks the weight of the evidence.        This

issue was raised in a post-sentence motion and preserved for review.

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012).               Our

standard of review is well-settled. We review the exercise of the trial court's

discretion in ruling on the weight claim, not the underlying question of

whether the verdict is against the weight of the evidence. Commonwealth

v. Leatherby, 116 A.3d 73, 82 (Pa.Super. 2015) (citing Commonwealth v.

Brown, 23 A.3d 544, 558 (Pa.Super. 2011)). “One of the least assailable

reasons for granting or denying a new trial is the lower court's conviction

that the verdict was or was not against the weight of the evidence and that a

new trial should be granted in the interest of justice.” Id. at 82.




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       To overcome this heavy burden, Appellant highlights that Mr. Angel’s

testimony contradicted Ms. Pastorius’s testimony.            Specifically, Appellant

notes that she saw only the burglar’s feet, while Mr. Angel stated he

observed the burglar’s entire body except for his head. In addressing this

claim, the trial court acknowledged that the testimony was inconsistent 1 but

found that the verdict did not shock its sense of justice. We have no license

to override that determination.         “Of equal importance is the precept that,

‘The finder of fact . . .        exclusively weighs the evidence, assesses the

credibility of witnesses, and may choose to believe all, part, or none of the

evidence.’”    Commonwealth v. Konias, 136 A.3d 1014, 1023 (Pa.Super.

2016) (quoting Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011)).

       Appellant’s third issue faults the trial court for permitting the

admission of two photographs taken by Mr. D’Amico. We employ an abuse

of   discretion   standard     in   reviewing    the   admission   of   photographs.

Commonwealth v. Haney, 131 A.3d 24, 37 (Pa. 2015).                      A trial court

applies a two-part test to determine if the photograph is inflammatory, and,

if so, whether the photograph has essential evidentiary value.                  See

Commonwealth v. Funk, 29 A.3d 28, 33 (Pa.Super. 2011) (en banc). The

usual context for this analysis is photographs of crime scenes, autopsies, or
____________________________________________


1
   We note that Ms. Pastorius testified that once she saw two feet she “got
scared and . . . moved away because Stan [Angel] and Steve [Borek] were
standing there.” N.T., 5/2-3/16, at 18-19.



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other representations of the aftermath of violent crimes.     “This Court has

interpreted inflammatory to mean the photo is so gruesome it would tend to

cloud the jury's objective assessment of the guilt or innocence of the

defendant.” Id. (citation omitted).

      We are not presented with an inflammatory photograph in that sense.

Instead, Appellant maintains that the photograph is prejudicial, which

implicates the familiar principle that “any evidence, including demonstrative

. . . involves a weighing of the probative value versus prejudicial effect. We

have held that the trial court must decide first if the evidence is relevant

and, if so, whether its probative value outweighs its prejudicial effect.”

Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006).

      Applying this test, Appellant does not claim that the photos were

irrelevant.   Rather, he maintains that their introduction prejudiced him

insofar as they necessarily conveyed guilt. “Appellant’s hands are behind his

back, likely handcuffed, and the trooper is holding Appellant’s upper right

arm. Permitting the jury to see these images removed Appellant’s garb of

innocence.” Appellant’s brief at 15-16.

      It is well-settled “that a fair trial, without prejudice, requires

defendants to appear free from shackles or other physical restraints.”

Commonwealth v. Pezzeca, 749 A.2d 968, 970 (Pa.Super. 2000).              See

Deck v. Missouri, 544 U.S. 622, 630 (2005) (identifying reasons for

presumptively barring physical restraints at trial).   Appellant assumes that

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these principles apply equally to depictions of a defendant outside the

courtroom.2 Assuming arguendo that Appellant is correct, we find that the

photographs      do   not    clearly    show   any   form   of   restraint.   Having

independently reviewed the photographs, we agree with the trial court that

the first photograph, which shows the trooper walking Appellant to the fire

truck ladder, merely suggests that Appellant’s hands are restrained since his

hands are behind his back.             Additionally, the second photograph, which

shows Appellant’s left arm grasping the fire truck’s ladder, clearly shows his

left arm and wrist unencumbered by any restraint. Appellant was not shown

in handcuffs and we therefore agree with the trial court that the prejudicial

effect of these photographs is non-existent.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2017

____________________________________________


2
  There is reason to doubt this proposition. See Holbrook v. Flynn, 475
U.S. 560, 567 (1986) (“[J]urors are quite aware that the defendant
appearing before them did not arrive there by choice or happenstance[.]”).



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