J-S34004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 DERRIAN BIBBS                            :
                                          :
                    Appellant             :   No. 908 WDA 2017

           Appeal from the Judgment of Sentence May 22, 2017
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                        CP-25-CR-0002809-2016

BEFORE:      BOWES, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                               FILED JULY 20, 2018

      Derrian Bibbs appeals from the judgment of sentence of nine to twenty-

three months imprisonment, followed by six years probation. We affirm.

      The trial court offered the following summary of the underlying facts of

this case.

            During the early morning hours of June 22, 2016,
      employees of a Pepsi bottling plant on Perry Highway noticed
      suspicious activity around the Pepsi plant and a neighboring
      church named the Triumphant Life Church. A Pepsi employee,
      Ronald Gilkinson, saw a vehicle in the plant’s driveway around 4
      AM on June 22. He approached the vehicle and made contact with
      a young lady, who[m] he asked to move the vehicle. He described
      the vehicle as a Ford Expedition or Jeep Cherokee with a broken
      out back window. Another Pepsi employee, Robert Welker, saw
      two individuals walking around the church next door, looking
      through windows and checking doors between 4:30 and 5:00 AM.
      Welker testified a third Pepsi employee stated he was going to call
      the Millcreek police.

            The Triumphant Life Church had an evening service planned
      for June 22. The first person to arrive was the principal of the


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     school attached to the church, Michael Donch. He immediately
     observed broken glass, things out of place and items missing.

           Gregory Buzzanco, a senior pastor at Triumphant Life
     Church, described a long list of items which were missing from the
     church after the June 22 burglary, including cameras,
     microphones, a tenor saxophone, DVDs, TVs, DVD players, and a
     computer. The value of the high-definition camera alone was in
     the thousands. The effect on the church’s television and music
     ministries was substantial. Items of financial and sentimental
     value were taken. Donch had a very expensive tenor saxophone,
     originally his father’s, stolen. Pastor Buzzanco’s sister-in-law had
     a Bible stolen.

           Pastor Buzzanco discussed three individuals coming to the
     church a few weeks before the burglary asking for help. He
     described the trio as one heavyset male, one thin male, and a
     heavyset female. They sat outside the church during a prayer
     meeting one evening saying they needed rest. Principal Donch
     recognized Appellant and his co-defendants from that interaction.

           Detective-Lieutenant Donald Kucenski arrived at the scene
     the evening of June 22. He found tire marks in the grass beside
     the church.    After speaking to Pastor Buzzanco, Detective
     Kucenski observed a broken window and blood in the area of it. A
     screen was removed from a door. There was also a door open
     which was not used by members of the church.

           Subsequently a parishioner, Frank Michael DeFazio, was
     approached by a man named Steve Newman wanting to know if
     he was interested in buying television equipment. When DeFazio
     met with Newman to view the equipment, DeFazio recognized it
     as church property stolen during the June 22 burglary.

            The police were able to locate a vehicle matching the
     description given by the Pepsi employee that had been impounded
     by the city due to an incident on June 22. The vehicle had a
     license plate on it that was not registered to that vehicle. Inside
     the vehicle were a parking ticket and court documents with
     Appellant’s name on them. The parking ticket had an address for
     the 900 block of West 20th Street. The legal mail with Appellant’s
     name on it had an address of 904 West 20th Street, Apartment 2.
     This led to an investigation of that address.


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            As part of a sting operation, officers entered Appellant’s
      apartment that he was sharing with two others. His roommates
      were a large Caucasian male identified as Kenneth Bartella, and a
      shorter, heavy-set female named Jennifer Edwards. Appellant is
      a thin male. These physical descriptions generally matched the
      three people who were at the church seeking help before the
      burglary. Police also found several items stolen from Triumphant
      Life Church. Among them was a Bible with the name Jennifer
      Buzzanco on the inside. There were also other Bibles, a VCR, a
      laptop, and keys that belonged to the church.

            On July 22, Appellant spoke with Detective Kucenski. In a
      video-taped interview, Appellant admitted to being in the vehicle
      the night of the church burglary and moving it when asked by the
      Pepsi employee. After further questioning, Appellant admitted he
      carried various items from inside the church into his vehicle.

            At trial, Appellant refuted much of his video-taped
      statement, claiming he was scared and nervous at the time of the
      statement. Nonetheless, the jury could determine what to accept
      as credible in his video statement and/or his trial testimony.

              In his trial testimony, Appellant described Kenneth Bartella
      as the uncle of the mother of his son. Mr. Bartella and his
      girlfriend were staying with Appellant at 904 West 20th Street.
      Appellant testified Bartella woke him up the night of June 21 with
      a bloody hand. After helping wrap up the hand, Appellant joined
      Bartella and Edwards in the Jeep and Appellant drove them to the
      church. Appellant claims he did not know where he was going nor
      what was happening. Appellant stated he and Edwards stayed in
      the vehicle at first, but after five minutes, Appellant went to go
      look for Bartella. Appellant said he held a bag but did not go into
      the church and carry stuff out, in contradiction to what he said in
      the video. At all times relevant to the crime, Appellant claims he
      did not know what Bartella was doing. On cross-examination,
      Appellant explained the timeline by saying he was only in the
      vehicle around midnight and Bartella must have returned later
      that night when the Pepsi employees saw the vehicle.

Trial Court Opinion, 8/21/17, at 1-4 (citations omitted).

      Upon this evidence, a jury found Appellant guilty of burglary, conspiracy,

theft by unlawful taking, and criminal mischief. Appellant was sentenced as

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indicated above on May 22, 2017.         Appellant did not file a post-sentence

motion, but filed a timely notice of appeal. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents this Court with the same three questions

raised in his 1925(b) statement: (1) whether the evidence was insufficient to

sustain his convictions; (2) whether the trial court violated Appellant’s rights

under the federal and state constitutions, as well as the Rules of Criminal

Procedure,    in   declining   Appellant’s   mid-trial   request   to   enter   plea

negotiations; and (3) whether Appellant’s sentence is manifestly excessive

and unreasonable. Appellant’s brief at 3.

      We begin with Appellant’s sufficiency claim, for which our standard and

scope of review are de novo and plenary, respectively. Commonwealth v.

Williams, 176 A.3d 298, 305 (Pa.Super. 2017). A conviction is based upon

sufficient evidence if “the evidence admitted at trial and all reasonable

inferences drawn therefrom, viewed in the light most favorable to the

Commonwealth as verdict winner, were sufficient to prove every element of

the offense beyond a reasonable doubt.” Id. at 305-06. The Commonwealth

may sustain its burden through wholly circumstantial evidence, and need not

preclude all possibility of innocence. Id. at 306. “It is within the province of

the fact-finder to determine the weight to be accorded to each witness’s

testimony and to believe all, part, or none of the evidence.” Id. “Moreover,




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as an appellate court, we may not re-weigh the evidence and substitute our

judgment for that of the fact-finder.” Id.

      Appellant was convicted of conspiracy to commit burglary, burglary,

theft by unlawful taking, and criminal mischief. The following explains the

requirements and effect of proof of a criminal conspiracy.

      To convict a defendant of conspiracy, the trier of fact must find
      that: (1) the defendant intended to commit or aid in the
      commission of the criminal act; (2) the defendant entered into an
      agreement with another (a “co-conspirator”) to engage in the
      crime; and (3) the defendant or one or more of the other co-
      conspirators committed an overt act in furtherance of the agreed
      upon crime. The essence of a criminal conspiracy . . . is the
      agreement made between the co-conspirators.

      [M]ere association with the perpetrators, mere presence at the
      scene, or mere knowledge of the crime is insufficient to establish
      that a defendant was part of a conspiratorial agreement to commit
      the crime. There needs to be some additional proof that the
      defendant intended to commit the crime along with his co-
      conspirator. Direct evidence of the defendant’s criminal intent or
      the conspiratorial agreement, however, is rarely available.
      Consequently, the defendant’s intent as well as the agreement is
      almost always proven through circumstantial evidence, such as by
      the relations, conduct or circumstances of the parties or overt acts
      on the part of the co-conspirators. Once the trier of fact finds that
      there was an agreement and the defendant intentionally entered
      into the agreement, that defendant may be liable for the overt
      acts committed in furtherance of the conspiracy regardless of
      which co-conspirator committed the act.

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (citations and

quotation marks omitted).

      In challenging his convictions, Appellant contends that he was just in

the wrong place at the wrong time, that he was merely found guilty based

upon his association with Bartella and Edwards, and that the Commonwealth


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failed to offer any forensic evidence, video surveillance, or direct testimony to

connect Appellant to the criminal activities of Bartella and Edwards.

Appellant’s brief at 17-18. We disagree.

       Appellant concedes that the Commonwealth produced evidence that

Bartella, Edwards, “and perhaps” Appellant went to the church a few weeks

before the burglary, that Appellant knew that his co-defendants planned to

burglarize the church and were in the process of burglarizing the church on

the night in question, and that Appellant knew that Bartella and Edwards kept

items stolen from the church in the apartment where all three of them were

living.   Id. at 16-17.        The Commonwealth also offered evidence that

Appellant’s vehicle was the one utilized for the crimes. Most importantly, in

his statement to police that was played at trial, Appellant acknowledges that

he was at the church with Bartella and Edwards that night, and that he helped

them remove items from the church, load them into his vehicle, and store

them at his residence. See Trial Court Opinion, 8/21/17, at 7-8.1

       Upon this record, we readily conclude that the jury was able to find

beyond a reasonable doubt that Appellant conspired with Bartella and Edwards

to burglarize the church. See, e.g., Commonwealth v. Garcia, 847 A.2d

67, 71 (Pa.Super. 2004) (holding circumstantial evidence was sufficient to


____________________________________________


1 Neither the video recording of Appellant’s statement played to the jury nor
a transcript thereof is included in the certified record. However, our review is
not hampered by its absence, as Appellant does not dispute the trial court’s
representation of its contents.

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prove agreement to commit robbery where the appellant drove the car and

stopped on co-defendant’s order; both the appellant and his co-defendant

participated in the robbery of the victim, during which the victim was shot;

the appellant drove with his co-defendant for an extended time after the

shooting; and the appellant attempted to dispose of the murder weapon);

Commonwealth v. Diehl, 585 A.2d 1112, 1114 (Pa.Super. 1991) (finding

evidence sufficient for jury to infer appellant was part of conspiracy where

appellant was present when co-defendants discussed robbery plan, drove

them to and from the store that was robbed, and housed stolen merchandise

in his car).

      Therefore, because the evidence was sufficient to sustain Appellant’s

conspiracy conviction, it matters not whether it was Appellant or one of his

co-conspirators who perpetrated the additional criminal actions taken in

furtherance of the conspiracy. In this instance, those additional actions are:

entry into a building that is not adapted for overnight accommodations for the

purpose of committing a crime therein when no person is present; the unlawful

taking of the movable property of another with the intent to deprive the owner

thereof; and the intentional damage of the property of another.           See,

respectively, 18 Pa.C.S. §§ 3502(a)(4) (burglary), 3921(a) (theft by unlawful

taking), and 3304(a)(1) (criminal mischief).

      The Commonwealth’s evidence discussed above unquestionably showed

that at least one of the co-conspirators broke a window to get into the church,


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which was an unoccupied building not adapted for overnight accommodations,

for the purpose of taking and carting away property located within that did

not belong to them, and in fact depriving rightful owners of their property.

Whether Appellant committed some, none, or all of those actions, he is guilty

just the same because the crimes were committed in furtherance of the

conspiracy. See, e.g., Commonwealth v. Ruiz, 819 A.2d 92, 98 (Pa.Super.

2003) (holding that, because a conspiracy was proven, the evidence was

sufficient to find the appellant guilty of the crimes committed by his co-

conspirator). Thus, Appellant’s sufficiency challenges fail.

       Appellant also contends that the trial court erred in refusing to allow him

to enter a negotiated plea during trial.2 Appellant’s brief at 11. Appellant

claims that the trial court’s ruling “violated his rights under the Constitutions

of the United States and the Commonwealth of Pennsylvania and violated

Criminal Rule of [Procedure] 590(B).” Id.

       The record reveals that, after the Commonwealth rested on the second

day of trial, Appellant’s counsel requested a sidebar at which he said “Your

Honor, I approached [the ADA] with the possibility of if we could resolve the


____________________________________________


2 In his brief, Appellant also argues that the trial court “in essence” rejected
his second ARD application by calling the case for trial, rather than granting a
request to delay trial, to give the District Attorney’s Office time to consider
the application. Appellant’s brief at 11, 14-15. These claims were not
specified in Appellant’s 1925(b) statement, and were not addressed by the
trial court. Accordingly, they are not properly before us. See, e.g.,
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“Any issues not
raised in a Pa.R.A.P.1925(b) statement will be deemed waived.”).

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trial, possibly with a plea. I don’t know if you would entertain that.” N.T.

Trial, 4/5/17, at 110. The trial court responded “We’ve gone this far. Let’s

go.” Id. The court then asked if Appellant had evidence to offer, and counsel

asked for a ten-minute recess, which the court denied, indicating that a recess

had already been taken. Id. Appellant then testified in his defense.

      Assuming arguendo that this discussion preserved the issue for our

review, the trial court aptly explained its lack of merit as follows.

            [Appellant] does not have a constitutional right to [a] plea
      bargain offer or disposition. Commonwealth v. McElroy, 665
      A.2d 813 (Pa.Super. 1995). . . . The Commonwealth is not under
      any legal obligation to offer a plea bargain to a defendant. See,
      e.g., Commonwealth v. Stafford, 416 A.2d 570, 573 (Pa.Super.
      1979). Courts are not required to accept plea agreements agreed
      upon between the Commonwealth and defendant.                  See
      Pa.R.Crim.P. 590(A)(3).

             At the close of the Commonwealth’s case, Appellant’s
      counsel notified the court that he approached the District Attorney
      with the possibility of entering a negotiated plea and asked if the
      court would entertain such a resolution. However, there is no
      evidence a plea offer was available or that the Commonwealth was
      willing to tender one.

            Appellant was arrested on these charges on October 20,
      2016. Appellant was represented by counsel and had months to
      enter a negotiated plea before his trial on April 5, 2017. Appellant
      exercised his right to a jury trial and put the Commonwealth to
      the burden of presenting a case in chief to the jury. The court
      was not required to stop the trial after the Commonwealth’s case
      and allow a plea bargain simply because Appellant requested a
      plea offer from the Commonwealth.

Trial Court Opinion, 8/21/17, at 5 (unnecessary capitalization and some

citations omitted).     As Appellant does not specify what constitutional

provisions are implicated, let alone offer authority to support his position that

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he had a right to commence plea negotiations after the Commonwealth put

on its case, we discern no constitutional basis for disturbing the trial court’s

ruling.

      Appellant also contends that Pa.R.Crim.P. 590, which governs pleas and

plea agreements, required the trial court to conduct an inquiry on the record

before denying his request. Appellant’s brief at 13-14. Specifically, Appellant

points to the following provisions of the Rule.

      (A) Generally

            ....

            (3) The judge may refuse to accept a plea of guilty or nolo
            contendere, and shall not accept it unless the judge
            determines after inquiry of the defendant that the plea is
            voluntarily and understandingly tendered. Such inquiry
            shall appear on the record.

      (B) Plea agreements.

            (1) At any time prior to the verdict, when counsel for both
            sides have arrived at a plea agreement, they shall state on
            the record in open court, in the presence of the defendant,
            the terms of the agreement, unless the judge orders, for
            good cause shown and with the consent of the defendant,
            counsel for the defendant, and the attorney for the
            Commonwealth, that specific conditions in the agreement
            be placed on the record in camera and the record sealed.

            (2) The judge shall conduct a separate inquiry of the
            defendant on the record to determine whether the
            defendant understands and voluntarily accepts the terms of
            the plea agreement on which the guilty plea or plea of nolo
            contendere is based.

Pa.R.Crim.P. 590(A), (B).




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      From its plain language, this Rule has no relevance to the instant case.

Subsection (A)(3) requires no inquiry of a defendant if it decides to reject his

or her plea; rather, it requires the judge to conduct an inquiry into the

defendant’s understanding before it may accept the plea. Likewise, subsection

(B) requires the court to ensure that a defendant’s decision to enter a plea

agreement is voluntary after the Commonwealth and defendant represent on

the record that they reached an agreement. When, as in the instant case,

there is no representation that an agreement has been reached, the trial

court’s duty to undertake an inquiry is not triggered. Accordingly, we find no

merit in Appellant’s issue concerning his mid-trial request to initiate plea

negotiations with the Commonwealth.

      Appellant’s final issue is a challenge to the discretionary aspects of his

sentence. The following principles apply to our review.

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

            (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. 2119(f); and (4) whether there
            is a substantial question that the sentence appealed
            from is not appropriate under the Sentencing Code,
            42 Pa.C.S.[] § 9781(b).




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Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(some citations omitted).

       Although he filed a timely notice of appeal and included a Rule 2119(f)

statement in his brief, Appellant did not object to the discretionary aspects of

his sentence at the sentencing hearing 3 or in a post-sentence motion.4

Accordingly, he has not preserved the issue for our review.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2018


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3 Although the language used in the trial court’s opinion suggests that
Appellant made an argument at the sentencing hearing about the length of
the sentence imposed, see Trial Court Opinion, 8/21/17, at 9 (“Appellant
argued the court erred at the time of sentencing . . . .”), the nine-page
sentencing transcript reveals no comments from Appellant or his counsel after
the sentence was announced. See N.T., Sentencing, 5/22/17, at 8-9.

4  In his brief, Appellant avers that he preserved his issue in a post-sentence
motion. Appellant’s brief at 21. However, no post-sentence motion was
entered on the docket or included in the certified record. Further, Appellant
filed his notice of appeal on the thirtieth day after he was sentenced, which is
the proper time to appeal when no post-sentence motion is filed, and is not
the proper timing for an appeal after the filing of a timely post-sentence
motion. Compare Pa.R.Crim.P. 720(A)(1) with Pa.R.Crim.P. 720(A)(2). We
assume Appellant’s statement to the contrary in his brief was made
mistakenly, rather than with intent to mislead this Court.

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