J-S02006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

WILLIAM THOMAS

                            Appellant                      No. 2518 EDA 2013


            Appeal from the Judgment of Sentence August 22, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011144-2012


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                                   FILED MARCH 24, 2015

       Appellant, William Thomas, appeals from the August 22, 2013

aggregate judgment of sentence of four to eight years’ incarceration, plus

three years’ probation, imposed after he was found guilty following a nonjury

trial of burglary, criminal trespass, criminal mischief, and possession of an

instrument of crime.1 After careful review, we affirm.

       The trial court supplied the following summary of the facts of the

incident.

                    On September 4, 2012, at approximately
              12:00 a.m., Prentice Beckett was in his home,
              located at 830 South 48th Street in Philadelphia,
              when he received a call from his neighbor stating
____________________________________________


1
   18 Pa.C.S.A.        §§    3502(a),     3503(a)(1),    3304(a)(2),   and   907(a),
respectively.
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          that police were outside of, and trying to get into, his
          home. Mr. Beckett came downstairs and observed
          [Appellant] on his porch with the police. Mr. Beckett
          did not know [Appellant] and he never gave
          [Appellant] permission to either enter his home or to
          be on his porch. Prior to this incident, Mr. Beckett
          had not noticed any damage to any of his window
          screens; after this incident, Mr. Beckett noticed that
          the front porch window screen was sliced.

                 On September 4, 2012, Officer Mitchell, a
          Philadelphia Police Officer, was on patrol with his
          partner, in the area of 48th and Warrington Streets,
          when they received a radio call relative to the
          property located at 830 South 48th Street.1 They
          were also flagged down by an individual, Mr.
          Denning, who directed them to 830 South 48th
          Street. Upon arriving at the location, Officer Mitchell
          observed [Appellant] on the porch of the property,
          near the front window. Officer Mitchell shined his
          flashlight on [Appellant], who laid on the porch to
          avoid detection. Officer Mitchell directed [Appellant]
          to come down the steps so that he and [Appellant]
          could have a conversation.

                 [Appellant] told Officer Mitchell that he was
          waiting for his friend, Reese, who lived at the
          property. Mr. Beckett told Officer Mitchell that he
          did not know anyone named Reese and further, that
          [Appellant] had no right to be on his property.
          [Appellant] also told Officer Mitchell that he could not
          contact Reese because his phone was inoperable and
          further, that he could not recall Reese’s last name or
          how he knew Reese.            Officer Mitchell placed
          [Appellant] under arrest. He searched [Appellant],
          incident to the arrest and as a result thereof, Officer
          Mitchell recovered a padlock and a pair of edge
          pliers, tin snips, which can be used to cut aluminum
          and metal.


          1
           The 911 tape was entered into evidence as Exhibit
          C-3 [by the Commonwealth]. [See N.T., 6/26/13, at
          27.]

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Trial Court Opinion, 9/11/14, at 1-2 (footnote in original; citations omitted).

       Later that day, Appellant was charged with the aforementioned

offenses.    Appellant was found guilty of all charges after a one-day bench

trial on June 26, 2013.        N.T., 6/26/13, at 58.   Thereafter, on August 22,

2013, the trial court sentenced Appellant to an aggregate term of four to

eight years’ incarceration followed by three years’ probation.2 Appellant did

not file a post-sentence motion.           On August 26, 2013, Appellant filed a

timely notice of appeal.3

       On appeal, Appellant raises the following issue for our review.

              Was not the evidence insufficient to make out
              burglary where there was no entry into the building
              and no intent to commit a crime inside the building?

Appellant’s Brief at 2.

       “A claim impugning the sufficiency of the evidence presents us with a

question of law.”      Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.

Super. 2014) (citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014).

Our standard and scope of review is as follows.

____________________________________________


2
  Specifically, the trial court sentenced Appellant to four to eight years’
incarceration on the burglary conviction. N.T., 8/22/13, at 10. Additionally,
the trial court sentenced Appellant to a consecutive term of three years’
probation on the criminal trespass conviction. Id. There was no further
penalty imposed on the two remaining convictions. Id.
3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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           The standard we apply in reviewing the sufficiency of
           the evidence 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 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 [finder] 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. Fabian, 60 A.3d 146, 150-151 (Pa. Super. 2013)

(citation omitted), appeal denied, 69 A.3d 600 (Pa. 2013).

           However, the inferences must flow from facts and
           circumstances proven in the record, and must be of
           such volume and quality as to overcome the
           presumption of innocence and satisfy the jury of an
           accused’s guilt beyond a reasonable doubt. The trier
           of fact cannot base a conviction on conjecture and
           speculation and a verdict which is premised on
           suspicion will fail even under the limited scrutiny of
           appellate review.

Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super. 2014) (citation

omitted), appeal denied, 101 A.3d 102 (Pa. 2014).

     The Crimes Code defines burglary, in relevant part, as follows.

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            § 3502. Burglary

            (a) Offense defined.—A person commits the
            offense of burglary if, with the intent to commit a
            crime therein, the person:

                  (1) enters a building or occupied structure, or
                  separately secured or occupied portion thereof
                  that is adapted for overnight accommodation in
                  which at the time of the offense any person is
                  present[.]

18 Pa.C.S.A. § 3502(a)(1).

      Before addressing the merits of Appellant’s claim, we must determine

whether Appellant has preserved his issues for appellate review. First, we

examine whether Appellant has complied with Pennsylvania Rule of Appellate

Procedure 1925(b).       By its text, Rule 1925(b) requires that concise

statements “identify each ruling or error that the appellant intends to

challenge with sufficient detail to identify all pertinent issues for the judge.”

Pa.R.A.P. 1925(b)(4)(ii); see also Commonwealth v. Reeves, 907 A.2d 1,

2 (Pa. Super. 2006) (stating “[w]hen a court has to guess what issues an

appellant is appealing, that is not enough for meaningful review[]”), appeal

denied, 919 A.2d 956 (Pa. 2007). Any issues not raised in accordance with

Rule 1925(b)(4) will be deemed waived.         Pa.R.A.P. 1925(b)(4)(vii).    Our

Supreme Court has made clear that Rule 1925(b) is a bright-line rule.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).            Additionally, with

regard to claims pertaining to the sufficiency of the Commonwealth’s

evidence, we have stated as follows.


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              In order to preserve a challenge to the sufficiency of
              the evidence on appeal, an appellant’s Rule
              1925(b) statement must state with specificity
              the element or elements upon which the
              appellant alleges that the evidence was
              insufficient.    Such specificity is of particular
              importance in cases where, as here, the appellant
              was convicted of multiple crimes each of which
              contains numerous elements that the Commonwealth
              must prove beyond a reasonable doubt.

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (internal

quotation marks and citations omitted; emphasis added).

       In this case, on October 10, 2013, Appellant timely filed his Rule

1925(b) statement, which challenged the sufficiency of the evidence for his

burglary conviction based only on the element of “the intent to commit a

crime on the premises.” Appellant’s Statement of Errors Complained of on

Appeal, 10/10/13. On appeal, Appellant now contests the sufficiency of the

evidence to prove “entry into the building.”4 Appellant’s Brief at 2, 9-10.

       Based on our cases, we are constrained to conclude that Appellant has

not complied with Rule 1925(b) because his concise statement failed to

specify he was challenging the sufficiency of the evidence on the element of

“entry.”    See Garland, supra; Commonwealth v. Williams, 959 A.2d
____________________________________________


4
  While the question presented also purports to raise the sufficiency of the
evidence on the element of “intent to commit a crime inside the building,”
Appellant did not develop an argument or cite any authority in support of
this claim. Appellant’s Brief at 9-10. Therefore, this issue is waived. See
Pa.R.A.P. 2119(a)-(c); Commonwealth v. Kearney, 92 A.3d 51, 66-67
(Pa. Super. 2014), appeal denied, 101 A.3d 102 (Pa. 2014).




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1252, 1257 (Pa. Super. 2008).       Therefore, on this basis alone we deem

Appellant’s sufficiency of the evidence challenges waived.       See Garland,

supra.

      Moreover,    had   we   not   deemed     Appellant’s   issue   waived   for

noncompliance with Rule 1925(b), we note that Appellant has also waived

his claim based on his failure to ensure the trial exhibits, specifically the 911

tape, are part of the certified record.     The certified record consists of the

“original papers and exhibits filed in the lower court, paper copies of legal

papers filed with the prothonotary by means of electronic filing, the

transcript of proceedings, if any, and a certified copy of the docket

entries[.]” Pa.R.A.P. 1921. “Our law is unequivocal that the responsibility

rests upon the appellant to ensure that the record certified on appeal is

complete in the sense that it contains all of the materials necessary for the

reviewing court to perform its duty.”       Commonwealth v. Preston, 904

A.2d 1, 7 (Pa. Super. 2006) (en banc) (citation omitted), appeal denied, 916

A.2d 632 (Pa. 2007). To this end, Rule 1931(d) provides that the clerk of

the lower court shall “mail a copy of the list of record documents to all

counsel of record, or if unrepresented by counsel, to the parties[.]”

Pa.R.A.P. 1931(d).    If an appellant discovers any material omissions from

the certified record, it must supplement the record pursuant to Rule

1926(b).   “[T]he ultimate responsibility of ensuring that the transmitted




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record is complete rests solely upon the appellant and not upon the

appellate courts.” Preston, supra.

     A review of the certified record reveals it does not contain either an

audio recording of the 911 call or a transcript thereof. The trial transcript

indicates that the “911 tape” was introduced as the Commonwealth’s exhibit

3. N.T., 7/26/13, at 27. The trial exhibits are not included in the clerk of

courts’ list of record documents supplied to the parties.    See generally

Pa.R.A.P. 1931(d). Appellant has made no effort to ensure inclusion of the

missing exhibits. See generally id. at 1926(b). The 911 tape is critical to

our review because it contains the eyewitness’s description of Appellant’s

entry into Beckett’s residence. The trial court found the statements in the

911 tape were sufficient to prove Appellant entered the house. Trial Court

Opinion, 9/11/14, at 6. Without this piece of evidence, which was admitted

at trial, we cannot conduct a meaningful review of Appellant’s claim.   See

Fabian, supra.     Therefore, Appellant has waived his challenge to the

sufficiency of the evidence for failure to ensure that the certified record

contained the 911 tape. See Preston, supra.

     Based on the foregoing, we conclude that Appellant has waived his

sole issue on appeal.     Accordingly, the trial court’s August 22, 2013

judgment of sentence is affirmed.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2015




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