J-S59028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARON MARTIN                               :
                                               :
                       Appellant               :   No. 138 EDA 2017

            Appeal from the Judgment of Sentence December 5, 2016
              In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0007083-2014,
                             CP-46-CR-0008081-2014


BEFORE:      BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 20, 2017

        Daron Martin appeals from the judgment of sentence imposed December

5, 2016, in the Montgomery County Court of Common Pleas.              Martin was

sentenced to an aggregate term of four to eight years’ imprisonment, following

his conviction of persons not to possess firearms, burglary, conspiracy,

receiving stolen property (“RSP”) and theft.1 On appeal, he challenges the

sufficiency of the evidence supporting his convictions of burglary and




____________________________________________


   Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 6105(a)(1), 3502(a)(2), 903(a)(1), 3925(a), and
3921(a), respectively.
J-S59028-17



conspiracy, and asserts prosecutorial misconduct based upon allegations of

selective prosecution and vindictiveness.2 For the reasons below, we affirm.

       The facts underlying Martin’s conviction were summarized by the trial

court as follows:

              At trial, the Commonwealth moved into evidence a certified
       copy of [Martin’s] prior conviction for Burglary. Then, Mr. Joseph
       Anderson testified that he lived at 312 Newington Drive in
       Hatboro, Pennsylvania with his wife, Wendy and son, Christopher.
       Mr. Anderson identified the items in Commonwealth exhibit 2 A-C
       which Mr. Anderson testified depicted his weapons: his 20 gauge
       shotgun bolt action which had the bolt on the right side, a .22
       caliber semi-automatic carbine with a pinkish hue, and a white
       gun case in which Mr. Anderson stored his weapons. Mr. Anderson
       testified that there were distinctive features or markings that
       made it possible for him to identify the rifles as his. These
       weapons were kept by Mr. Anderson in the back of his bedroom
       closet, buried to keep anyone from finding them. Mr. Anderson
       discovered these guns missing on August 28, 2014, about three
       weeks after he had last checked the closet and had seen the
       shotguns. Mr. Anderson also discovered a change jar and small
       lockbox missing. There was also ammunition missing and the
       cash taken was worth a few hundred dollars. Mr. Anderson
       identified Commonwealth exhibit 3 as shotguns shells which were
       identical to those taken from his home. Finally, Mr. Anderson
       never got the rifles, case, money, or lockbox back and he never
       gave anyone permission to take those items or enter the bedroom.

             Christopher Anderson, the son of Joseph Anderson, testified
       that he lived with his father and that on August 20, 2014, Dustin
       Vorndran was at his house in the afternoon. Vorndran and
       Christopher were in his bedroom splitting a bag of heroin while
____________________________________________


2 We note Martin also appealed his sentence imposed at Docket No. 7083-
2014, following a guilty plea to one count of possession with intent to deliver
heroin. On December 5, 2016, the trial court sentenced Martin to a term of
one and one-half to three years’ incarceration, followed by two years’
probation, and imposed that sentence to run concurrently to the sentence
imposed on the burglary conviction. However, none of the claims raised on
appeal apply to the drug conviction.

                                           -2-
J-S59028-17


       Christopher’s mother was downstairs. At one point, Vorndran left
       and said he was going up the street to meet with [Martin]. When
       Vorndran came back, he just walked back into the house because
       Christopher had told him to come right back in. Vorndran told
       Christopher that [Martin] wanted to meet with him, so Christopher
       left Vorndran in his room and went 300-400 feet up the street to
       speak with [Martin,] who told Christopher he had pills he wanted
       to sell. When Christopher spoke to [Martin], he was in an orange
       sedan with two other people, a man and a woman named Grace.
       Christopher returned five to eight minutes later and Dustin
       Vorndran was sitting in his room, where they split another bag of
       heroin. Vorndran then asked Christopher to distract his mother
       so he could meet [Martin] who was going to pull up to the house.
       Christopher left his room and distracted his mother while Dustin
       Vorndran eventually left through a back door where he entered
       the orange sedan. Christopher had never given permission for
       Dustin Vorndran or anyone to take anything from inside the
       house. Up until that point, Vomdran was regularly at the house
       of Christopher until August 20, 2014, and the family even had a
       shed in which he sometimes stayed. Christopher had never given
       Dustin Vorndran any money for the heroin they shared together.

              Detective Richard Beaghley testified that he extracted
       information from a HTC One silver phone with a black case which
       counsel stipulated was found on [Martin’s] person and was the
       phone from which police extracted data. Detective Schramm went
       through the information obtained from the phone and discovered
       text messages from August 20, 2014 which were contained in
       Commonwealth exhibit C-5. Dustin Vorndran was sometimes
       called “Redz” and Christopher was sometimes called “Heron.”
       There were texts recovered from the phone between Redz,
       identified by Christopher Anderson to be Dustin Vorndran, with
       [Martin]. The following texts were exchanged between Redz
       (identified with a V for Dustin Vorndran) and [Martin] (identified
       with a D [for “defendant”]) on August 20, 2014 between the hours
       of 6:39:43 PM and 8:36:07 PM:[3]

             V: yo bro. in to crib now. moms outside gardening. Just
       gotta get em to leave so gimmiw a lil to get this goin.
       far so good tho.
____________________________________________


3 The texts were transcribed in their entirety, which included spelling and
grammatical errors.


                                           -3-
J-S59028-17


     im gonna have to get em to go outside for something ill be too
     loud if hes inside so ima have em go to the shed looking good so
     far.

           D: Ok.
     Dnt fuck. up.

           V: what you mean

           D: lol get the bread lol

            V: if u mean gettin the bread than just let me work it out.
     but if you mean like disapearing than u aint gotta worry. even if i
     don't get it for whatever reason than im still coming back.

           D: Ok

           V: i ard told em what up like I said “darons comin down soon
     to give ya a lil something for everything that happened nd shit”

           D: ok wat he say we still at the same spot right now

           V: the same spot u dropped me at?

           D: Yea we didnt leave yet

          V: im gonna see if maybe hell walk to the in &out and meet
     u himself. thatll gimmie plenty of time ya feel me?

            D: But u dont need it. that will. be fishy just ask. for
     something. out th shed and say weneed it for something. we about
     to. do

            V: i did but he also went down stairs real quick and when he
     did I went to scope out the bread but they musta stuck it further
     in the closet it looks like im gonna have to fish around for it and
     find the fuckin thing
     what u mean mean i don't need it? it aint even for me!?! Lol

            D: Oo ok dam an im.talking about the time rd send him out
     to talk to me where we at

           V: okay i did. but i said youll be there in like 3-5 mins cuz i
     didnt wanna make it fishy

           D: Ok


                                      -4-
J-S59028-17


            V: hes gonna leave in like a min. and i told em to get change
     cuz he wanted to get a cig from ant or grace so i was like "get a
     dollar in change so you can just buy it" that way i can watch where
     he goes to get it ya mean?
     here he comes

           D: ok
     U get it he on his way

           V: keep him for a min man

           D: He left quick tried convo.

           V: still wit em?

           D: He there

           V: damn man wtf that was so fast fuck mab

           D: i kno tell come here so i can.ask.about the mlrphine pills

          V: all.i.did was reach my hand in this change jawn. and got
     a buncha change in my pocket

           D: No bills??

           V: shit alright man. fuck.it was so.drawlin he walked in while
     i was goin ham lmao

           D: lol

           V: couldnt find the bills jawn lol

           D: Damn

           V: hold. up. convinciing him to. go back out lmao

           D: do u kno.where to look

           V: yeah in his dad room in.one of the closets sorry for takin
     a min. tell them im sorry for the wait. at least i got gas bills or
     that bad covered in changeep your eye out for me

           D: Ok

           V: hes finishing his bag than goin out



                                     -5-
J-S59028-17


           D: Ok

           V: at first he was like “tell em to just txt me” i said he has
     like 10 mins left on his phone lol

           D: lmao

           V: this is a hard one i cant lie hahaha but at least ill walk
     out with SOMETHING rather than nothing

           D: Tru but if u find it that would.lovely

           V: ight hell be walking out in the next 2-3 mins. canu see if
     his moms still outfront yo? i cant tell and i.dont wanna ask to draw
     attention

           D: I dont c her

           V: and yeah i know i know mannn trust me...i know. but im
     doin my best. the first time was sooooooo drawlin lol that almost
     gave up everything. i left the door wide open. he has not noticied
     that yet lol. i hope this tine works

           D: Ok

           V: ok well im gonna have to be EXTRA sneaky just let me
     know when he leaves this time. last time caught me.off gaurd. i
     thought youd talk to em for a good 5-10 mins lol i didn’t think itd
     be that quick man

           D: I tried

           V: hes finishing his cig now. make this one last a lil longer
     please

           D: ok

          V: just do.ya.best to make it last. his mom is bouta take the
     dogs outback in a sec. soon as she does ima send him out so ill
     be completley alone again

           D: Ok

            V: he comin
     he good?
     i got a safe, i.dont have the.key but we can bust it open, sonds
     like something good.inside man.i.hope

                                     -6-
J-S59028-17


     whats goin on??

           D: Ok well he might
     Talking

           V: okay i gotba lil safe

           D: He coming now

           V: give em a morphine, i think.the safe may be good

           D: I dont have it on me

          V: okay. im chillin. gotta big ass safe in my pants lmao
     we gonna have to bust it open

           D: Lol
     ok

           V: so drawlin lmai

           D: Lol

           V: comin out in a sec

           D: rdv

           V: gotta get em to distract his mom for me

           D: ok

           V: wait. did his mom leave by any chance??
     i hope something good in this jawn Lmao

           D: i kno
     Wya

           V: comin

           D: they getting irritated

           V: ok my bad

           D: Let the games begin




                                       -7-
J-S59028-17


          Additionally, there were texts between [Martin] and a
     person called KKK on August 20, 2014 between 7:20:02 PM and
     8:29:02 PM.

            D: Wyd

            KKK: Just got off work
     Wyd?

            D: Getting guns

            KKK: What kind?

            D: Shotgunz

            KKK: For how much

            D: Free

     Finally, there were texts between [Martin] and a person named
     Porsha between 7:20:10 PM and 7:50:56 PM:

            D: Hey, cuz

            P: Hey counsin wyd?

            D: Wyd

            P: Watching tv tryna borrow money u? How's the babys

            D: Tryna steal money

           Police executed a search warrant on [Martin’s] home where
     they found three 20 gauge shot gun shells, the same shells that
     Joseph Anderson identified in Commonwealth exhibit 2 as being
     identical to ammunition which was stolen. Police also recovered
     the photos depicted in Commonwealth exhibit 2 as being taken on
     [Martin’s] phone August 21, 2014, the same pictures depicting
     guns Joseph Anderson identified as having been stolen from him.
     Additionally, there were photos of [Martin] on the phone in the
     form of selfies identified in Commonwealth exhibit 6.

           Finally, Grace Mitchell testified that in late August of 2014
     she drove her bright orange Chevy Cobalt to a "neighborhood off
     Newington", a block away from the house of someone Vorndran
     knew. She stated that Vorndran and [Martin] were in the car with
     her and that she then drove to Heron's house. Heron was

                                     -8-
J-S59028-17


      identified as the street name for Christopher Anderson. Grace
      Mitchell testified that Heron left the house and spoke to [Martin],
      that [Martin] was on his phone while sitting in the car, and that
      after the first conversation with Vorndran, Dustin Vorndran
      entered Heron’s house and then came out a little while later. She
      testified that Dustin then reentered the house and when he came
      out again he had two rifles and a little safe. The rifles were inside
      white bags or cases, and Vorndran claimed they were collateral
      for money he couldn’t get. Grace Mitchell then drove to [Martin’s]
      house and left the keys with Vorndran. When Grace Mitchell had
      given a statement in September of 2014 she stated that she saw
      [Martin] holding a gun although at trial she was less sure.
      However, Grace Mitchell also testified that she knew the guns
      were going to [Martin] which was why they went to his house and
      took out the guns. Grace Mitchell originally believed they were
      going to Heron’s house to collect on a debt and that she might get
      money for helping.

Trial Court Opinion, 3/17/2017, at 2-7 (record citations omitted).

      As noted above, Martin was subsequently arrested and charged with

persons not to possess firearms, burglary, conspiracy to commit burglary,

receiving stolen property and theft.    Although similar charges filed against

Vorndran were initially consolidated for trial, on September 3, 2015, Vorndran

entered a guilty plea to one count of burglary. He was sentenced that same

day to a term of one to three years’ incarceration.

      Martin’s case proceeded to a non-jury trial conducted on February 8,

2016. At the conclusion of the trial, the court found him guilty of all charges.

On December 5, 2016, the trial court imposed the following sentence: (1) on

the charge of persons not to possess firearms, a term of four to eight years’

imprisonment; (2) on the charge of burglary, a concurrent term of one and

one-half to five years’ imprisonment; and (3) on the charge of conspiracy, a




                                      -9-
J-S59028-17



concurrent term of one and one-half to five years’ imprisonment.4 This timely

appeal followed.5

       In his first issue on appeal, Martin contends the evidence was insufficient

to support his convictions of burglary and conspiracy to commit burglary. 6

See Martin’s Brief at 17-27. Our review of a challenge to the sufficiency of

the evidence is well-settled:

        [W]e must determine whether the evidence admitted at trial, and
       all reasonable inferences derived therefrom, when viewed in the
       light most favorable to the Commonwealth as verdict-winner,
____________________________________________


4The court found Martin’s conviction of theft and RSP merged for sentencing
purposes.

5  On December 30, 2016, the trial court ordered Martin to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Martin filed a preliminary concise statement on January 5, 2017, but also
requested an extension of time to file a final statement since the notes of
testimony from the sentencing hearing had not been transcribed. By order
entered January 6, 2017, the court “granted in part” Martin’s request, and
directed that a final statement be filed no later than February 5, 2017. Order,
1/6/2017. Martin then filed an interim supplemental statement on January
17, 2017, raising an additional claim concerning the admission of certain
evidence. That same day, Martin filed a motion requesting the court vacate
its January 6, 2017, concise statement order because the court reporter for
the sentencing hearing was not responding to Martin’s request for a transcript.
Thereafter, on January 18, 2017, the trial court entered an order vacating its
January 6, 2017, order and directing Martin to file a final concise statement
20 days from receipt of the sentencing hearing transcript. The docket for
Martin’s companion case (7083-2014) reveals the sentencing transcript was
filed on January 26, 2017. Martin did not file any additional supplemental
concise statements after that time.

6Martin does not challenge his conviction of persons not to possess firearms,
RSP, or theft.




                                          - 10 -
J-S59028-17


        supports all of the elements of the offense beyond a reasonable
        doubt. In making this determination, we consider both direct and
        circumstantial evidence, cognizant that circumstantial evidence
        alone can be sufficient to prove every element of an offense. We
        may not substitute our own judgment for the [fact-finder’s], as it
        is the fact-finder’s province to weigh the evidence, determine the
        credibility of witnesses, and believe all, part, or none of the
        evidence submitted.

Commonwealth v. Sanchez, 82 A.3d 943, 972 (Pa. 2013) (internal citations

omitted), cert. denied, 135 S.Ct. 154 (U.S. 2014).

        A person is guilty of burglary “if, with the intent to commit a crime

therein, the person … enters a building … 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). Although it is a defense to the crime if the defendant

was “licensed or privileged to enter” the building,7 “[a]ny license or privilege

to enter a premises is negated when it is acquired by deception.” Sanchez,

supra, 82 A.3d at 973.

        In order to secure a conviction of criminal conspiracy,

        the Commonwealth must establish that a defendant entered into
        an agreement to commit or aid in an unlawful act with another
        person or persons, with a shared criminal intent, and an overt act
        was done in the conspiracy’s furtherance. 18 Pa.C.S. § 903[.]
        The overt act need not accomplish the crime-it need only be in
        furtherance thereof. In fact, no crime at all need be accomplished
        for the conspiracy to be committed. In most cases of conspiracy,
        it is difficult to prove an explicit or formal agreement; hence, the
        agreement is generally established via circumstantial evidence,
        such as by “the relations, conduct, or circumstances of the parties
        or overt acts on the part of co-conspirators.”

Id. (some citations omitted).

____________________________________________


7   18 Pa.C.S. § 3502(b)(3).

                                          - 11 -
J-S59028-17



     Furthermore, we note that:

           Once there is evidence of the presence of a conspiracy,
     conspirators are liable for acts of co-conspirators committed in
     furtherance of the conspiracy. Even if the conspirator did not act
     as a principal in committing the underlying crime, he is still
     criminally liable for the actions of his co-conspirators taken in
     furtherance of the conspiracy.

        The general rule of law pertaining to the culpability of
        conspirators is that each individual member of the
        conspiracy is criminally responsible for the acts of his co-
        conspirators committed in furtherance of the conspiracy.
        The co-conspirator rule assigns legal culpability equally to
        all members of the conspiracy. All co-conspirators are
        responsible for actions undertaken in furtherance of
        the conspiracy regardless of their individual
        knowledge of such actions and regardless of which
        member of the conspiracy undertook the action.

        The premise of the rule is that the conspirators have formed
        together for an unlawful purpose, and thus, they share the
        intent to commit any acts undertaken in order to achieve
        that purpose, regardless of whether they actually intended
        any distinct act undertaken in furtherance of the object of
        the conspiracy. It is the existence of shared criminal intent
        that “is the sine qua non of a conspiracy.”

Commonwealth v. Lambert, 795 A.2d 1010, 1016–1017 (Pa. Super. 2002)

(internal citations omitted and emphasis supplied), appeal denied, 805 A.2d

521 (Pa. 2002).

     In the present case, Martin insists the evidence was insufficient to

support his conviction of burglary because Vorndran “clearly had license,

privilege and permission to go in and out of” Anderson’s home. Martin’s Brief

at 20. He emphasizes Anderson welcomed Vorndran in the home that day to

do drugs, and he had stayed overnight in the family’s shed on prior occasions.

See id. Furthermore, Martin argues Vorndran did not use deception to gain

                                    - 12 -
J-S59028-17



entrance to the home; rather, “the only deception involved [was] used to

commit the theft when [Anderson] agreed to distract his mother so she

wouldn’t see Vorndran leave with the items of stolen property[.]” Id. at 21.

       With regard to his conviction of conspiracy, Martin contends that while

the evidence was sufficient to establish he “knew Vorndran was going to steal

money,” the evidence did not support the court’s conclusion that Martin

“conspired to commit the crime of burglary” 8 or that he agreed to steal

firearms. Id. at 22. Indeed, Martin maintains “the theft of the guns appears

to have been an opportunistic act on the part of Vorndran that came about as

he searched for the change jar.” Id. Accordingly, he asserts the evidence

was insufficient to support his convictions of burglary and conspiracy.

       The trial court, which sat as fact-finder, found the Commonwealth

proved beyond a reasonable doubt Martin and Vorndran “had an agreement

to steal money,” which led to the theft of money and firearms. Trial Court

Opinion, 3/17/2017, at 13. Based upon the text messages recovered from

Martin’s cell phone, the court determined there was “clear evidence of an

agreement to go to the home of Christopher Anderson and steal.”9           Id.

Moreover, as a result of this conspiratorial agreement, the court determined

Martin was “liable for all actions undertaken by Vorndran in furtherance of the
____________________________________________


8 Martin claims “there was no agreement between the two that Vorndran would
enter the premises by subterfuge or other illegal means.” Martin’s Brief at 23.
9 See N.T., 2/8/2016, at 68-69 (text messages between Vorndran and Martin;

Vorndran indicates he is in the house and will convince Anderson to leave so
he can search for the money, and Martin responds, “Okay. Then don’t fuck
up … LOL. Get the bread. LOL.”).

                                          - 13 -
J-S59028-17



conspiracy to enter the house and steal.” Id. Furthermore, the trial court

also concluded Vorndran gained entrance to the house through deception.

See id. at 14. The court explained:

      Here, Christopher Anderson invited Dustin Vorndran into the
      house to do drugs together, and hang out. [T]he true prupose of
      Dustin Vorndran’s entrance was concealed, and that deception is
      enough to negate any purported license or privilege that Vorndran
      had. The deception was used to gain entrance to the house of the
      victim, not to steal.

Id. at 15. Accordingly, the court determined there was sufficient evidence to

support Martin’s convictions of burglary and conspiracy to commit burglary.

      We find the trial court’s verdict is supported by the evidence. Grace

Mitchell testified that she, Martin, and her boyfriend Anthony Lochetto dropped

Vorndran off at Anderson’s house.      See N.T., 2/8/2016, at 86-88.       She

explained that Lochetto told her before the trip Vorndran owed Martin money,

and Vorndran “said that he was collecting money off of [Anderson].” Id. at

89, 95.    She also explained that Vorndran and Martin had a private

conversation outside the car before they drove to the Andersons’. See id. at

96. Accordingly, this testimony, coupled with the text messages exchanged

between Vorndran and Martin supports the court’s finding that the two men

conspired to steal money from Anderson, and agreed Vorndran would enter

the home under the guise of bringing Anderson drugs.

      The Supreme Court’s decision in Sanchez is instructive. In that case,

the defendant and two co-defendants agreed to assault Mendez Thomas. See

Sanchez, supra, 82 A.3d at 951. One of the co-defendants called Thomas


                                    - 14 -
J-S59028-17



and arranged a meeting “under the ruse of wanting to procure marijuana.”

Id. When they arrived at Thomas’s apartment, he and his girlfriend, Jessica

Carmona, were not home, but Carmona’s sister, Lisa Diaz, who was the

girlfriend of one of the co-defendant’s, permitted them to enter the apartment,

unaware of their true intent. See id. After Thomas and Carmona returned,

the defendant and Thomas got into an altercation, and the defendant shot and

killed Thomas and Diaz. Carmona survived the attack. See id.

      In affirming the judgment of sentence, the Supreme Court opined:

      [T]he jury could reasonably have concluded that all the elements
      of burglary and conspiracy to commit burglary had been
      established beyond a reasonable doubt. In other words, from the
      trial evidence, the jury could have reasonably concluded that by
      acting in concert pursuant to an agreed-upon plan, [the two co-
      defendants] helped Appellant gain unprivileged entry into the
      premises, by deception, with the shared intent to commit a crime
      therein.

Id. at 974. See also Commonwealth v. Edwards, 903 A.2d 1139, 1147-

1148 (Pa. 2006) (affirming defendant’s burglary conviction where defendant

gained entry into victim’s home by deception, telling victim he was there to

pay for previously stolen drugs), cert. denied, 549 U.S. 1344 (2007).

      The facts in the present case are similar to those in Sanchez. Although

Anderson invited Vorndran into his home, Vorndran entered under the

pretense of doing drugs, when, in actuality, he and Martin had conspired to

steal money from Anderson.      Therefore, Vorndran’s license to enter was

negated by his deception.    Further, both Mitchell’s testimony and the text

messages, exchanged between Martin and Vorndran, establish the two men


                                    - 15 -
J-S59028-17



agreed that Vorndran’s purpose in entering the home was to steal from

Anderson. The fact that Martin and Vorndran discussed how they would lure

Anderson from the home supports the court’s finding that Martin agreed

Vorndran would gain entry to the home through deception, that is, under the

ruse of drug use. Moreover, while it is unclear if the conspiratorial agreement

included the theft of firearms,10 we remind Martin that all co-conspirators

“share the intent to commit any acts undertaken in order to achieve [the]

purpose [of the agreement], regardless of whether they actually intended any

distinct act undertaken in furtherance of the object of the conspiracy.”

Lambert, supra, 795 A.2d at 1017 (citation omitted). Accordingly, Martin’s

first issue fails.

       In his second issue, Martin claims he was the subject of selective

prosecution and/or prosecutorial vindictiveness.

       “Because of the doctrine of separation of powers, the courts will not

lightly interfere with an executive’s decision of whom to prosecute.”

Commonwealth v. Murphy, 795 A.2d 997 (Pa. Super. 2002) (citation

omitted).

            To establish selective prosecution, an appellant has the
       burden of satisfying the two-pronged test set forth by the
       Pennsylvania    Supreme       Court     in Commonwealth         v.
       Mulholland, 549 Pa. 634, 702 A.2d 1027 (1997). An appellant
       must demonstrate “first, [that] others similarly situated were not
____________________________________________


10We note Martin texted “KKK” that he was “[g]etting guns” for “[f]ree.” N.T.,
2/8/2016, 74, 75. However, it is unclear whether this conversation took place
before or after Vorndran first entered Anderson’s home.


                                          - 16 -
J-S59028-17


     prosecuted for similar conduct, and, second, the Commonwealth’s
     discriminatory selection of [him] for prosecution was based on
     impermissible grounds such as race, religion, the exercise of some
     constitutional    right,   or    any    other    such     arbitrary
     classification.” Id. at 649, 702 A.2d at 1034 (citing Wayte v.
     United States, 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547
     (1985)).

Commonwealth v. Olavage, 894 A.2d 808, 811 (Pa. Super. 2006), appeal

denied, 907 A.2d 1102 (Pa. 2006). “Unequal application of the criminal laws

alone does not amount to a constitutional violation.”    Commonwealth v.

Wells, 657 A.2d 507, 510 (Pa. Super. 1995) (quotation omitted), appeal

denied,   668   A.2d   1131   (Pa.    1995).     Similarly,   “[t]he   defense

of prosecutorial vindictiveness is based upon the theory that due process

prohibits a prosecutor from punishing a criminal defendant in retaliation for

that defendant’s decision to exercise a constitutional right.” Commonwealth

v. Butler, 601 A.2d 268, 270 (Pa. 1991) (quotation omitted).

     Here, Martin argues he was “selectively and vindictively prosecuted”

because he is African-American, and choose to fight the charges at trial.

Martin’s Brief at 28. He emphasizes that all of the other people involved in

the crime – Vorndran (who actually stole the guns), Mitchell (who drove the

getaway vehicle), and Lochetto (who was in the vehicle) – are white. See id.

He also notes neither Mitchell nor Lochetto were charged with any crimes, and

although Vorndran was prosecuted for his participation, he was offered a very

favorable plea to one count of burglary and was sentenced to one year in

prison. See id. at 29. Martin explains:

     [T]he harsher treatment imposed upon [him] can only be
     explained by his decision to fight the burglary and conspiracy to

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       commit burglary charges. [His] only reason for going to trial was
       the excessively differential treatment he received compared to the
       other participants who were all white.

Id. at 30-31.

       The Commonwealth asserts Martin’s claim is waived. We agree. The

proper means to assert prosecutorial misconduct based upon selective

prosecution or vindictiveness is by raising the claim in a pretrial motion to

dismiss.    See Butler, supra, 601 A.2d at 270-271.        As the Butler Court

explained, “a claim of prosecutorial vindictiveness, like claims of other types

of prosecutorial misconduct, addresses itself to a concern that official

misconduct should prevent the institution or prosecution of criminal charges

against the defendant.” Id. at 271 n.3. Accordingly, because Martin raised

this claim for the first time in his preliminary concise statement, we find it is

waived on appeal.11

       Judgment of sentence affirmed.




____________________________________________


11 We note the issue, as framed in the concise statement, asserts only a claim
of selective prosecution based upon Martin’s race, and not prosecutorial
vindictiveness based upon his decision to proceed to trial. See Preliminary
Concise Statement, 1/5/2017, at 2-3. See also Pa.R.A.P. 1925(b)(4)(vii)
(“Issues not included in the [Concise] Statement … are waived.”).

       Nonetheless, even if this issue were properly preserved, we find the trial
court sufficiently addressed and properly disposed of this claim in its opinion.
See Trial Court Opinion, 3/17/2017, at 18-21 (finding Martin and the other
potential defendants were not similarly situated; that Martin was the “initiator
and director of the criminal activity”; and that Martin presented no evidence
his treatment was “racially motivated.”).

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J-S59028-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2017




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