J-S21033-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                  :    IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                   Appellee                    :
                                               :
                     v.                        :
                                               :
DIONNE LEE MCKELVIN,                           :
                                               :
                   Appellant                   :    No. 1335 WDA 2016

            Appeal from the Judgment of Sentence April 26, 2016
           in the Court of Common Pleas of Westmoreland County
            Criminal Division, at No(s): CP-65-CR-0002790-2015

BEFORE:    LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED MAY 26, 2017

     Dionne Lee McKelvin (Appellant) appeals from the judgment of

sentence entered April 26, 2016, after he was found guilty of burglary and

criminal trespass. Upon review, we affirm.

     The   trial   court   set   forth   the   relevant   factual   and   procedural

background of this case as follows.

            Margaret Hill testified that on the afternoon before the
     crime, June 14, 2014, she was working as an assistant manager
     at First Niagara Bank at 411 Clay Avenue, Jeanette,
     Westmoreland County. Hill testified that before the bank closed
     for the evening, employees performed a full inspection upstairs
     and downstairs to ensure that the bank was empty. Employees
     then activated the security alarm for both the inner and outer
     doors of the bank. Hill confirmed that the bank was also using
     video surveillance at the time. She testified that at closing, the
     money from the tellers’ bank drawers was placed in the bank’s
     vault.




*Retired Senior Judge assigned to the Superior Court.
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            During the early morning hours of June 15, 2014, Hill
     received a phone call from the bank’s security company stating
     that there had been a break-in as well as shots fired at the bank.
     Motion sensors had also been activated. Upon receiving the call,
     Hill drove to the bank to observe the damage. She stated that
     the bank had two outside doors; one of them had been shattered
     and the door had fallen on top of the glass. The other was
     shattered, and blood was visible near the ground. She also
     testified that there was a blood trail leading into the teller line.
     Nothing inside the bank appeared to be missing. She noted,
     however, that a drawer behind the teller line had been opened,
     which contained only shipping bags, and remained in the drawer
     after the break-in. She stated that she watched the surveillance
     video along with Sergeant Donald Johnston. The surveillance
     video was not preserved for trial; however, the pair was able to
     make video snapshots from the video.

            Sergeant Donald Johnston of the Jeannette Police
     Department testified that he was on duty in the early morning
     hours of June 15, 2014. At 3:19 a.m., he received a dispatch
     stating that shots had been fired at the 400 block of Clay
     Avenue.      Westmoreland County 9-1-1 indicated that an
     individual had answered the phone at the bank, but quickly hung
     up.    After arriving at the bank, Sergeant Johnston noticed
     broken glass from the front doors. At that point, he contacted
     the Westmoreland County Detective’s Bureau to aid in the
     investigation.

            Lieutenant O’Neal of the Jeannette Police Department
     arrived soon after, and noted what appeared to be blood
     droplets leading from the bank on the sidewalk heading west on
     Clay Avenue. Sergeant Johnston followed the droplets toward
     South 5th Street, approximately one-half block from the bank.
     At the end of the trail of droplets, he observed a burgundy GMC
     Yukon parked on the corner of the sidewalk. Sergeant Johnston
     recognized the vehicle as belonging to [Appellant]. He also
     testified that he had seen [Appellant] operating the vehicle
     earlier that evening.

          Sergeant Johnston then reviewed the        snapshots created
     from the surveillance footage and was            able to identify
     [Appellant] as the individual who entered       the bank.    After
     recognizing [Appellant] in the surveillance     video and as the


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     owner of the vehicle parked in the street, Sergeant Johnston
     issued a [be on the lookout (BOLO)] for [Appellant]. When
     Sergeant Johnston travelled back outside, the Yukon was gone.
     At that point, Sergeant Johnston, [who had Appellant’s] phone
     number on file, contacted [Appellant], who agreed to meet with
     the Jeanette Police Department.

           Sergeant Johnston also testified that [Appellant] had called
     9-1-1 earlier in the day to report that there were ghosts in his
     home, and that [Appellant] had a history of mental health
     issues.   He indicated that on the day before the crime,
     [Appellant] appeared agitated and nervous.

            Detective Hugh Shearer testified that he was contacted by
     officers in the early morning hours of June 15, 2014 regarding
     the break-in.     He arrived at the First Niagara Bank at
     approximately 4:45 a.m. After he arrived at the scene, he
     travelled to the Jeanette Police Station, where he met
     [Appellant]. He stated that there were injuries to [Appellant’s]
     right hand. Specifically, his knuckles were scraped and the
     fronts of his hands were bleeding. He also noted that his
     clothing had spots which appeared to be blood.         Detective
     Shearer then returned to the crime scene at approximately
     [6:00] a.m.

           Detective Shearer then began examining the entrance to
     the bank. He noted drops of a red stain consistent with blood
     leading from the ATM machine in the front right corner of the
     bank leading down the hill away from the bank. Detective
     Shearer also photographed the shattered front doors of the
     building. He stated that he identified shell casings on the floor of
     the front vestibule which were from a 9 millimeter pistol.
     Moreover, there was also one present on the sidewalk, and three
     discharged on the vestibule floor. He also noted the impression
     of a shoe outsole, which was identified as an Air Nike, and was
     embedded with the logo “i5” in the same location.

           Later that morning, [Appellant] was served with a search
     warrant for his residence. A buccal swab was collected from
     [Appellant], along with a blood sample for the purposes of DNA
     testing.    A pair of Air Nike shoes was recovered from
     [Appellant’s] residence. Detective Shearer noted that there
     were fragments of glass embedded in the bottom of the shoes’


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        soles. He testified that in the tongue of the shoes, larger shards
        of glass were embedded within the laces. The same logo, “i5,”
        was also found on the recovered shoes.

               Inside the bank, four droplets of blood were recovered
        near the tellers’ desks. Three shell casings were also found in
        the back of the bank. The shell .casings were analyzed and
        identified as belonging to TulAmmo 9 millimeter pistol cartridges.
        TulAmmo 9 millimeter shell cartridges were also recovered from
        [Appellant’s] home pursuant to the search warrant. A ballistics
        report was ordered, which showed that the four shell casings
        analyzed were all discharged from the same firearm. A serology
        report was also ordered, where blood was lifted from the floor of
        the lobby of the bank. Compared to the buccal sample taken
        from [Appellant], the samples matched, with the probability of
        selecting an unrelated individual being 1 in 10 decillion from the
        Caucasian community, and 1 in 180 nonillion from the African
        American population.

              [Appellant] was charged with one count of burglary - not
        adapted for overnight accommodations, no person present, 18
        Pa.C.S.A. §3502(a)(4), one count of criminal trespass, 18
        Pa.C.S.A. §3503(a)(1)(ii), and one count of person not to
        possess a firearm, 18 Pa.C.S.A. §6105(c)(2).

              A jury found [Appellant] guilty of burglary and criminal
        trespass, and not guilty of person not to possess a firearm on
        January 14, 2016. [Appellant] was sentenced on April 26, 2016
        at count one to an aggregate term of one and one half to ten
        years[’] incarceration. Count 2 merged with count one.

Trial   Court   Opinion,   8/15/2016,    at   1-6   (citations   and   unnecessary

capitalization omitted).


        Appellant filed a post-sentence motion on May 5, 2016.          No hearing

was held, and on August 15, 2016, the trial court denied Appellant’s motion.




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This timely-filed appeal followed, wherein Appellant presents the following

issues for our review.1

      1. Whether the [trial court] erred in determining [] Appellant’s
         [b]urglary conviction was supported by sufficient evidence.

      2. Whether the [trial court] abused its discretion in sentencing []
         Appellant to the maximum lawful sentence for [burglary - not
         adapted for overnight accommodation, no person present].

Appellant’s Brief 2.

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

sustain his burglary conviction. Accordingly, we bear in mind the following.

      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.


1
  In response to Appellant’s concise statement, the trial court submitted a
statement stating it believed that its August 15, 2016 opinion following
Appellant’s post-sentence motion sufficiently addressed all the issues raised
by Appellant and thus, the court would rely on that opinion for the purposes
of this appeal. See Statement of the Court, 10/18/2016.

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      Further, in viewing the evidence in the light most favorable to
      the Commonwealth as the verdict winner, the court must give
      the prosecution the benefit of all reasonable inferences to be
      drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal

quotation marks and citations omitted).

      To   be   found   guilty   of   burglary,   not   adapted   for    overnight

accommodation, no person present, it must be proven that an individual,

having the intent to commit a crime therein, “enters a building or occupied

structure, or separately secured or occupied portion thereof that is not

adapted for overnight accommodations in which at the time of the offense

no person is present.” 18 Pa.C.S § 3502(a)(4).

      Instantly, Appellant concedes he forced his way into the bank, but

argues the Commonwealth failed to prove he forcibly entered the bank with

the intent to commit a crime.     Appellant’s Brief at 6.   His argument is as

follows: “Though the Commonwealth was under no obligation to prove which

crime [] Appellant intended to commit, in full consideration of [] Appellant’s

suspect mental health on the day in question, it is unclear [] Appellant

intended to commit any subsequent offenses.” Id. at 7.

      As correctly cited by the trial court, “the Pennsylvania Supreme Court

has rejected a per se assumption that forced entry alone is sufficient to allow

a jury to infer intent to commit an additional criminal act.”           Trial Court

Opinion, 8/15/2016, at 5 (citing Commonwealth v. Wilamowski, 633


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A.2d 141, 144 (Pa. 1993)). In Wilamowski, our Supreme Court concluded

that a “totality of the circumstances” approach was necessary when

evaluating whether an actor unlawfully entered by criminal means with the

intent to commit a crime. “The Commonwealth must establish, as part of its

evidentiary burden, additional evidence that goes beyond the mere breaking

in of a door or window.    Without this evidence the required inference of

intent will derive from mere conjecture or surmise and a defendant’s right to

rely on a presumption of innocence will be little more that illusory.”   633

A.2d, at 144.

     Reviewing the evidence in favor of the verdict winner, the testimony

established that Appellant had forcibly entered the First Niagara Bank in

Jeannette around 3:00 a.m. N.T., 1/13/2016, at 55-58. His forcible entry

occurred when he kicked and shot his way through the locked front door,

which set off an alarm. Id. at 55-57. The break-in activated the security

system, and the security company attempted to contact the bank. Sergeant

Johnston testified that he was informed that someone inside the bank had

answered the phone but quickly hung up.      Id. at 55. The bank assistant

manager, Ms. Hill, who received a call from the security company, testified

that she went to the bank and once there, noticed that a drawer behind a

teller station had been opened.   Id. at 43-44. Ms. Hill stated that before

closing the bank she removed all money from the teller drawers and placed




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them in the vault. Id. at 43. Appellant left the bank before police arrived.

Id. at 58.

      Examining    the   foregoing    and   reviewing    the   totality   of   the

circumstances, we find that there was sufficient evidence presented to show

Appellant unlawfully entered the bank with the intent to commit a crime

therein. In doing so, we find this case distinguishable from Wilamowski,

wherein the defendant’s conviction of burglary was reversed on appeal

because the Commonwealth failed to establish that the defendant, who

kicked at a door and tore it off its hinges, intended to commit a crime inside.

See Wilamowski, 633 A.2d at 144 (Noting that the defendant “broke the

door and apparently walked away from it without any showing that he

entered the structure or attempted to enter. His path into the structure was

now unobstructed, but he chose to walk away and go to the neighbor’s

house to ask for directions.”).    Here, Appellant forcibly entered the bank

after it had closed and once inside, opened one of the teller drawers. Based

on this evidence, one can infer Appellant’s intention was to commit a crime.

      Furthermore, we note that at trial Appellant elicited testimony

concerning his mental health to attempt to rebut the Commonwealth’s

theory that Appellant had entered the bank with the intent to commit a

crime. Nonetheless, in light of the verdict, the jury, sitting as finder of fact,

found the Commonwealth had met its burden.            See Commonwealth v.

Chambers, 599 A.2d 630, 642 (Pa. 1991) (“Issues of credibility are


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properly left to the trier of fact for resolution, and the finder of fact is free to

believe all, part, or none of the evidence.”). See also Commonwealth v.

Hughes, 908 A.2d 924, 928 (Pa. Super. 2006) (“[E]vidence at trial need not

preclude every possibility of innocence, and the fact-finder is free to resolve

any doubts regarding a defendant’s guilt 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.”).

      Based upon the foregoing, we cannot agree with Appellant that the

evidence presented was insufficient to prove that he intended to commit a

crime when he forcibly entered the bank.                Accordingly, Appellant’s

sufficiency-of-the-evidence challenge fails.

      Appellant’s final issue challenges the discretionary aspects of his

sentence.

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely [filed]; (2) whether Appellant preserved
         his issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate under
         the sentencing code.... [I]f the appeal satisfies each of
         these four requirements, we will then proceed to decide
         the substantive merits of the case.




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Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

     The record reflects that Appellant timely filed a notice of appeal and a

motion for reconsideration of his sentence. However, Appellant has failed to

include in his brief a statement pursuant to Pa.R.A.P. 2119(f), 2 and the

Commonwealth has objected to this omission. Commonwealth’s Brief at 5.

Appellant, therefore, has waived this issue. See Commonwealth v. Roser,

914 A.2d 447, 457 (Pa. Super. 2006) (“A failure to include the Rule 2119(f)

statement does not automatically waive an appellant’s [discretionary aspects

of sentencing] argument; however, we are precluded from reaching the

merits of the claim when the Commonwealth lodges an objection to the

omission of the statement.”) (quoting Commonwealth v. Love, 896 A.2d

1276, 1287 (Pa. Super. 2006)).

     Accordingly, after a review of the briefs, record, and applicable case

law, we are not persuaded that either of Appellant’s issues warrants relief

from this Court.

     Judgment of sentence affirmed.



2
  Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (quoting
Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (Pa.
2002)) (“An appellant must, pursuant to Pennsylvania Rule of Appellate
Procedure 2119(f), articulate ‘the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.’”).


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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/26/2017




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