J-A21036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
              v.                           :
                                           :
HASSIEN SISTRUNK,                          :
                                           :
                    Appellant              :              No. 2816 EDA 2015

             Appeal from the Judgment of Sentence April 24, 2015
             in the Court of Common Pleas of Montgomery County,
               Criminal Division, No(s): CP-46-CR-0011738-2011

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED OCTOBER 24, 2016

        Hassein Sistrunk (“Sistrunk”) appeals from the judgment of sentence

imposed after a jury convicted him of two counts each of burglary and

conspiracy to commit burglary, and one count of criminal trespass. 1          We

affirm in part, and vacate in part.

        The trial court concisely set forth the relevant factual and procedural

history underlying this appeal, which we adopt as though fully set forth

herein. See Trial Court Opinion, 11/24/16, at 1-4.

        As an addendum, we observe the following.             Notably, the jury

acquitted Sistrunk of some of the charges against him, including theft by

unlawful taking or disposition, and receiving stolen property (hereinafter

collectively referred to as “the theft-related offenses”).         Additionally,

Sistrunk’s co-defendant, Michael Cannon (“Cannon”), entered an open guilty



1
    18 Pa.C.S.A. §§ 3502(a), 903(a)(1), 3503(a)(1)(ii).
J-A21036-16


plea to the charges against him arising out of the burglaries.             However,

Cannon failed to appear at his sentencing hearing, and a bench warrant was

issued for his arrest.      Cannon remains at large.       Finally, the amount of

restitution that the trial court ordered Sistrunk to pay, $27,685.53 (jointly

and severally with Cannon), represented the value of the victims’ personal

property that was stolen from their residences. At sentencing, the victims

testified as to their losses, and submitted victim impact testimony and

letters.

       In this timely appeal, Sistrunk presents the following issues for our

review:

       I.    Whether the judgment of sentence must be vacated and
             [Sistrunk] discharged because the trial court erred as a
             matter of law and abused its discretion in failing to set aside
             the jury’s guilty verdicts for burglary and conspiracy to
             commit burglary, when the trial record is void of any factual
             findings of what crime was committed inside the residences,
             or intended to be committed inside, and the jury expressly
             found that no theft[-]related crimes were committed[?]

       II.   Whether the trial court abused its discretion and erred as a
             matter of law when it denied [Sistrunk’s] Batson[2] challenge
             at the time of jury selection[?]

       III. Whether the judgment of sentence must be vacated and
            [Sistrunk] discharged because the record indicates, when
            compared to [Sistrunk’s] co-defendant, that [Sistrunk] was
            selectively prosecuted due to his decision to [i]nvoke his
            constitutional right to a jury trial, in violation of his state and
            federal constitutional rights, as evidenced by the disparaging
            treatment at the sentencings[?]



2
    Batson v. Kentucky, 476 U.S. 79 (1986).


                                     -2-
J-A21036-16


       IV. Whether the trial court abused its discretion when it
           considered victim impact testimony at the time of sentencing
           regarding losses from thefts and persons being present
           during a burglary, when the jury found that there were no
           losses from thefts and no persons were present at the time
           of the burglaries[?]

       V.   Whether the trial court erred as a matter of law in ordering
            restitution for allegedly stolen items when there is no causal
            connection between the jury verdict and the alleged losses
            sustained by the victims, as the jury made specific findings
            that there were no such losses[?]

Brief for Appellant at 4 (issues renumbered for ease of disposition; footnote

added; capitalization omitted).

        Sistrunk first argues that the trial court erred by failing to set aside his

convictions for burglary and conspiracy to commit burglary,3 where the jury

had acquitted him of the theft-related offenses. See id. at 14-17. Sistrunk

asserts that

        due to the Commonwealth’s request for restitution for the stolen
        items from the [burglarized] household[s], the Commonwealth
        implicitly specified the crime alleged to have occurred during the
        burglar[ies] – the theft of the items. Further, due to the trial
        court’s determination that restitution was warranted in this
        matter to cover the costs of the items stolen during the
        burglar[ies], the court made a judicial determination that a
        theft[-]related charge did occur inside the households. However,
        because the jury expressly determined that [] Sistrunk
        committed no crimes that would be related to the theft of
        personal items, the trial court committed an error [of] law by
        making such a determination and, based upon this
        determination, must set aside the convictions for burglary and
        conspiracy to commit burglary.




3
    Sistrunk does not challenge his conviction of criminal trespass.


                                     -3-
J-A21036-16


Id. at 14; see also id. at 15 (citing Commonwealth v. Brown, 886 A.2d

256, 260 (Pa. Super. 2005) (stating that “[w]hen the Commonwealth does

specify, in the information or indictment, the crime defendant intended to

commit, the Commonwealth must prove the requisite intent for that

particular crime in order to prove a burglary or attempted burglary.”)).4

      In its Opinion, the trial court set forth the relevant law, addressed

Sistrunk’s claims, and properly determined that his challenge to his

convictions lacks merit.   See Trial Court Opinion, 11/24/16, at 5-8.       We

affirm with regard to this issue based on the trial court’s sound rationale.

See id.

      In his second issue, Sistrunk contends that the trial court erred by

denying his Batson challenge, where the Commonwealth discriminated

against him by using its peremptory challenges to remove two African

American (Sistrunk’s race) potential jurors during voir dire.   See Brief for

Appellant at 23-30. Sistrunk argues that

      in the jury panel of forty[-]five [] potential jurors, there were
      only three [] African American potential jurors. [After one of
      these jurors was stricken for cause,] … [t]he Commonwealth
      used its p[er]emptory strikes to strike the remaining two African
      American prospective jurors, identified in the record as Juror
      Number 12 and Juror Number 18 [(collectively “the stricken
      venirepersons”)]. Accordingly, the prosecutor was required to
      provide adequate, neutral, legitimate, and reasonably specific
      explanations for striking [the stricken venirepersons]. However,
      the explanations provided were not adequate, [race-]neutral,

4
  Sistrunk concedes that, here, the Commonwealth did not specify, in the
information or indictment, the crime(s) that he intended to commit inside of
the victims’ residences. Brief for Appellant at 15.


                                 -4-
J-A21036-16


      legitimate, and reasonably specific, but rather[,] based upon the
      prosecutor’s “feelings” and “lack of confidence” in [the stricken
      venirepersons].

Id. at 24 (internal citation to record omitted) (citing Batson, 476 U.S. at 94

(stating that where an appellant “has made a prima facie showing of

purposeful discrimination, the burden shifts to the prosecution to come

forward with a clear and reasonably specific [race-]neutral explanation for

challenging such jurors”)).

      In its Opinion, the trial court set forth the applicable law, summarized

the relevant portions of the voir dire transcript containing the prosecutor’s

reasons for striking the stricken venirepersons, and opined that the court

properly denied Sistrunk’s Batson challenge, as the prosecutor gave

sufficient, race-neutral reasons for the challenges. See Trial Court Opinion,

11/24/16, at 9-14. We affirm with regard to this issue based on the trial

court’s reasoning. See id.; see also Commonwealth v. Sanchez, 36 A.3d

24, 45 (Pa. 2011) (rejecting the defendant’s Batson challenge and stating

that “[w]here, as here, there is little evidence bearing on the issue of the

prosecutor’s discriminatory intent, and the best evidence is the demeanor of

the attorney who exercises the challenge, the trial court’s determination will

turn on the court’s assessment of the prosecutor’s credibility[,]” which an

appellate court will ordinarily not disturb).

      In his third issue, Sistrunk contends that his judgment of sentence

must be vacated because the Commonwealth “selectively prosecuted” him



                                   -5-
J-A21036-16


(when compared to his co-defendant, Cannon, who entered an open guilty

plea), due to Sistrunk’s decision to exercise his constitutional right to a jury

trial. See Brief for Appellant at 30-34; see also id. at 32 (asserting that

“Cannon, although similarly situated, was not prosecuted for his similar

conduct.”).

      “In order to establish a prima facie case of selective prosecution, [an

a]ppellant must establish, first, that others similarly situated were not

prosecuted for similar conduct, and, second, that the Commonwealth's

discriminatory prosecutorial selection was based on impermissible grounds

such as race, religion, the exercise of some constitutional right, or any other

such arbitrary classification.” Commonwealth v. Childress, 799 A.2d 805,

811 (Pa. Super. 2002) (citation omitted). In the instant case, Sistrunk failed

to meet the first prong of the above test, as the Commonwealth, in fact,

prosecuted Cannon.

      Sistrunk’s claim is more properly viewed as alleging vindictive

prosecution. “The 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); see also Commonwealth v. Smith, 664 A.2d 622, 628-29 (Pa.

Super. 1995) (stating that prosecutorial vindictiveness exists “where the

accused is treated more harshly because he successfully exercised a lawful



                                  -6-
J-A21036-16


right, e.g., the right to seek a new trial.” (citation and brackets omitted)). A

claim of prosecutorial vindictiveness is a question of law and not of fact, and

is unrelated to the question of guilt or innocence. Butler, 601 A.2d at 270;

see also Commonwealth v. Raban, 85 A.3d 467, 468 (Pa. 2014) (stating

that where an issue implicates a question of law, our standard of review is

de novo and our scope of review is plenary).

      Sistrunk argues that the vindictiveness of the prosecution against him

is evident when compared with the disparate treatment that Cannon

received after he entered a guilty plea, despite being similarly-situated. See

Brief for Appellant at 32-34.    Sistrunk avers that, at his sentencing, the

Commonwealth (1) improperly presented victim impact statements that

referenced only Sistrunk, not Cannon; (2) “disagree[d] with the trial court

that the two co-defendants should be given the same consideration for their

same crimes”; and (3) “request[ed] [] the trial court … [to] sentence

[Sistrunk] in a harsher manner than Cannon.” Id. at 33, 34.5



5
  Sistrunk additionally alleges that the prosecutorial vindictiveness is evident
because the Commonwealth allegedly agreed for Cannon to be released on
bail following his guilty plea, whereas it asked the trial court to revoke
Sistrunk’s bail after he was convicted of the same offenses. Brief for
Appellant at 33-34. Sistrunk, however, has waived this claim by failing to
raise it before the trial court. See Pa.R.A.P. 302(a) (stating that an issue
cannot be raised for the first time on appeal); see also Commonwealth v.
Rosser, 135 A.3d 1077, 1086 (Pa. Super. 2016) (stating that “[w]here the
trial court denies relief on one theory, a defendant may not attain appellate
relief on a new theory for that same relief.”). Nevertheless, even if this
claim was properly preserved, we determine that it would not entitle
Sistrunk to relief.


                                  -7-
J-A21036-16


      Sistrunk offers nothing in support of his bald allegation that the

prosecution’s actions toward him were the result of his having exercised his

right to a jury trial, nor does our review of the record reveal any support for

such claim.    Indeed, a review of the sentencing transcript reveals no

indication that the prosecutor made statements evidencing vindictiveness

toward Sistrunk.    Moreover, to the extent that Sistrunk claims that the

prosecution announced an intent to seek a harsher sentence for Sistrunk

than Cannon, this claim is speculative and unavailing.           Even assuming,

arguendo, that Cannon was similarly situated to Sistrunk, Cannon absconded

and has not been sentenced. Finally, to the extent that Sistrunk points out

that the victim impact statements presented at his sentencing referenced

only him and not Cannon, this claim is unavailing and nonsensical.

      In his fourth issue, Sistrunk asserts that the sentencing court abused

its discretion when it considered victim impact testimony concerning the

victims’ losses from the thefts, prior to sentencing Sistrunk. See Brief for

Appellant at 35-37.    Specifically, Sistrunk contends that because the jury

acquitted him on the theft-related charges, the sentencing court improperly

considered victim impact testimony concerning those losses, as it was

irrelevant and “contradict[ed] the jury’s verdict.” Id. at 37.

      Sistrunk’s claim implicates the discretionary aspects of his sentence,

from which there is no absolute right to appeal. Commonwealth v. Hill,

66 A.3d 359, 363 (Pa. Super. 2013); see also Commonwealth v.



                                  -8-
J-A21036-16


McNabb, 819 A.2d 54, 57 (Pa. Super. 2003) (stating that a claim that a

sentencing court relied on impermissible factors constitutes a challenge to

the discretionary aspects of sentencing). Before this Court may address the

merits of a discretionary sentencing claim, the appellant must have set forth

in his or her brief a concise statement of the reasons relied upon for

allowance of appeal pursuant to Pennsylvania Rule of Appellate Procedure

2119(f). See Commonwealth v. Robinson, 931 A.2d 15, 19 (Pa. Super.

2007) (en banc). If, however, an appellant fails to include a Rule 2119(f)

statement in the brief, and the Commonwealth objects to this failure, then

the appellant’s discretionary sentencing claim is waived and this Court may

not review it. Id.

      Here, the Commonwealth objected to Sistrunk’s failure to include the

requisite Rule 2119(f) statement in his brief. See Commonwealth’s Brief at

31-32.    Accordingly, we deem Sistrunk’s discretionary sentencing claim

waived on this basis. See Robinson, 931 A.2d at 22 (finding waiver of the

appellant’s discretionary sentencing claim because he had failed to include

the claim in his Rule 2119(f) statement and the Commonwealth objected to

this failure).6

      Finally, Sistrunk argues that the sentencing court imposed an illegal

sentence when it ordered him to pay restitution to the victims for the items


6
  Even if we did not find waiver of Sistrunk’s claim, we would determine that
it lacks merit based upon the reasoning advanced by the trial court in its
Opinion. See Trial Court Opinion, 11/24/16, at 15-16.


                                 -9-
J-A21036-16


stolen from their homes during the burglaries, where the jury had acquitted

him of the theft-related offenses. See Brief for Appellant at 17-22.

               In the context of criminal proceedings, an order of
        restitution is not simply an award of damages, but, rather, a
        sentence. An appeal from an order of restitution[,] based upon
        a claim that a restitution order is unsupported by the record [or
        the law,] challenges the legality, rather than the discretionary
        aspects, of sentencing. The determination as to whether the
        trial court imposed an illegal sentence is a question of law; our
        standard of review in cases dealing with questions of law is
        plenary.

Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa. Super. 2012)

(citations and quotation marks omitted); see also Commonwealth v.

Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 2010). An illegal sentence of

restitution must be vacated.     Commonwealth v. Gentry, 101 A.3d 813,

817 (Pa. Super. 2014).

        A sentence of restitution must be based upon statutory authority.

Commonwealth v. Barger, 956 A.2d 458, 464 (Pa. Super. 2008) (en

banc). Section 1106 of the Crimes Code provides, in relevant part, that a

sentence of restitution may be imposed “[u]pon conviction for any crime

wherein property has been stolen, converted or otherwise unlawfully

obtained, or its value substantially decreased as a direct result of the crime

….”   18 Pa.C.S.A. § 1106(a).       Importantly, a defendant may only be held

accountable for restitution as to the “losses flowing from the conduct for

which     the    defendant    has     been    held   criminally   accountable.”

Commonwealth v. Cooper, 466 A.2d 195, 197 (Pa. Super. 1983); see



                                    - 10 -
J-A21036-16


also Commonwealth v. Harner, 617 A.2d 702, 706 (Pa. 1992) (stating

that section 1106 “is clear on its face and applies only for those crimes to

property or person where there has been a loss that flows from the conduct

which forms the basis of the crime for which a defendant is held criminally

accountable.”); Commonwealth v. Balisteri, 478 A.2d 5, 9 (Pa. Super.

1984) (stating that “[t]o order a defendant to pay restitution, his or her

criminal conduct must have caused the loss or injury being compensated

for.”).

      Sistrunk argues that the restitution order is unlawful and cannot stand

because

      there is no “causal connection” between the burglary charges [of
      which Sistrunk was convicted] and the restitution order due to
      the jury’s express finding that [Sistrunk] was not guilty of the
      theft[-related offenses].     Further, it cannot be assumed or
      speculated by the trial court that the jury determined that the
      crime underlying the burglary was related to the missing items.
      … [T]he jury clearly found that [Sistrunk] was not guilty of all
      theft[-related] … offenses, and there is no additional evidence or
      information on the record that would indicate that the burglaries
      directly resulted in the theft of such items.

Brief for Appellant at 19 (some quotation marks omitted).           We agree.

Because the jury did not hold Sistrunk criminally accountable for the theft of

any items from the victims’ homes, the trial court imposed an illegal

sentence when it ordered Sistrunk to pay restitution for the victims’ losses

incurred from the thefts. See, e.g., Barger, 956 A.2d at 465 (vacating the

trial court’s order that required the defendant to pay restitution for the value

of the victim’s couch that was allegedly lost, where “there was no direct


                                 - 11 -
J-A21036-16


nexus between the crime for which [the defendant] was convicted and the

loss of the couch, as Section 1106 requires.”); see also Cooper, 466 A.2d

at 197 (vacating the trial court’s order that required the defendant to pay

restitution for the costs connected with a victim’s death incurred by the

victim’s family because the defendant only pled guilty to leaving the scene of

the accident and was not found criminally responsible for having struck the

victim).

      Accordingly, we affirm the judgment of sentence of incarceration

imposed on Sistrunk’s convictions.     However, we vacate the judgment of

sentence insofar as it ordered Sistrunk to pay restitution.

      Judgment of sentence imposing restitution vacated.        Judgment of

sentence in all other respects affirmed.          Superior Court jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/24/2016




                                 - 12 -
                                                                       Circulated 09/30/2016 12:25 PM




              IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
                                  PENNSYLVANIA
                                CRIMINAL DIVISION


      COMMONWEALTH
                 OF PENNSYLVANIA                         No. 1738-11

                          v.

      HASSIENSISTRUNK
                                                                                     '')
                                        OPINION
                                                                                     I'\.)
                                                                                     (J.

      O'NEILL, J .                                              Novemberlj, 2015


             . Defendant, Hassien Sistrunk, appeals from the Order entered on August

     28, 2015, denying his Post Sentence Motion. For the reasons set forth below,

     the judgement of sentence should be affirmed.

        I.      Facts and Procedural History

              On May 26, 2010, the home at 680 Rittenhouse Place, Franconia

     Township, Montgomery County, Pennsylvania was burglarized.         Notes of

     Testimony {N.T.), Pretrial Motions/Trial by Jury, Jul. 8, 2014 at 85. While

     police were at the scene, a call came in for a burglary in progress nearby at 380

    Indian Creek Road. Id. at 85, 87. The following items, valued at over $20,000,

    were missing from the Thompson home on Rittenhouse Place: two gaming

    system and games, a computer screen, Mrs. Thompson's jewelry, her deceased

    mother's jewelry, her husband's antique watch collection and some of his

    jewelry as well as duffle bags to carry the items. Id. at 98-99, 101.

             The home on Indian Creek Road was entered through a window; the

    screen was slit and popped out of the window. Id. at 110. The following items,




!
L
   valued at over $10,000, were missing from the Brinton home on Indian Creek

   Road: jewelry, a Nintendo, iPads, watches, a ring, a piggy bank and

   miscellaneous cash. ld. ~ at 113. There was a case of water outside of this home

   from which the Defendant and the others took bottles and drank. N.T., Jul. 9,

  2014 at 153.

         Just before the burglaries, a public works employee, Joshua Worman,

  was cutting the grass in a park nearby, when he saw a silver car pull in to the

  parking lot. N.T., Jul. 8, 2014 at 125.     Three men, two African Americans and

  one Caucasian, got out of the car and walked up a. path and out of his view.

  Id. at 125-127.   Ten to fifteen minutes later, they returned to their car. Id. at

  155. Worman observed the three men in the vicinity of the crimes looking into

 windows and walking around the neighborhood.         kl   at 127-132, 156-157.

        The men left in the car, but returned an hour to hour and a half later, at

 which time the exited the vehicle and appeared to throw something in the

 trash. Id. at 129, 158-60.    Police later recovered a black latex glove from the

 trashcan.   Id. at 202. The men then crossed the field Worman was mowing and

walked very close to him. Id. a.t 131, 160. They continued       into another

development, out of his sight. Id. at 131..    Worman became suspicious, so he

took a picture of the car's license plate, which would later be identified as

belonging to Rochelle Brown, from whom the Defendant rented a room. !fl. at

132; N.T., Jul. 8, 2014 at 214-215.    A short time later, he saw the three men

running across the same field, one of the individuals now had a white bag in

his hand. N.T. Jul. 8, 2014 at 135.      The men got into the silver car and left

                                          2
     the area. !si. at 135. Mr. Worman was later able to identify the Defendant as

     one of them men he saw that day. 11:. at 140-144, 147.

           Other witnesses reported seeing two black males and a white male

    running from the scene.     N.T., Jul. 9, 2014 at 79. After the burglaries, the men

    disposed of the water bottles and gloves. !si. at 156. Some were thrown away

    in the park trashcan, some were thrown out front of the second house and

    some were tucked in the bushes.     Id. Several black latex gloves and water

    bottles were found in the area of the crimes. The Defendant could not be

    excluded as a contributor of the DNA on one of the water bottles, and one of

    the gloves contained a mixture of DNA that was probably the Defendant and an

    unknown contributor.      N.T., Jul. 10, 2014 at 37, 39.   Likewise, the

    Defendant's cell phone records placed his phone in the area of the crimes. See,

    N.T., Jul. 9, 2014 at 258-261.

          After several months of investigation, on or about February 9, 2011, the

Defendant was arrested and charged with Burglary", Conspiracy to Commit

Burglary>, Criminal Trespass>, Theft by Unlawful Taking", Receiving Stolen

Property>, Criminal Mischiefs, and Recklessly Endangering Another Person".

Following statements of the Defendant, Co-Defendant Michael Cannon was

later arrested.     The third man, Derrick Smith, was not charged.

 ' 18 Pa.C.S.A. §3502(a).
2  18 Pa.C.S.A. §903(a)(l).
3 18 Pa.C.S.A.  §3503(a)(l)(ii).
1 18 Pa.C.S.A. §392l(a).

s 18 Pa.C.S.A. §3925(a).
<> 18 Pa.C.S.A. §3304(a)(5).  This charge was withdrawn by the Commonwealth.
7 18 Pa.C.S.A. §2705. The Court granted Defendant's motion for judgement of

acquittal as to this charge.
                                            3
         Following a five day trial, a jury convicted the Defendant of Burglary and

 Conspiracy to Commit Burglary. On April 24, 2015 the Defendant was

sentenced to an aggregate 5-10 year term of imprisonment for the burglaries

plus a. consecutive 2 V2 to five years for the conspiracy to commit burglary. The

Defendant's sentence also included an order of restitution, joint and several

with Michael Cannon, in the amount of $27,685.53.

        On May 1, 2015, the Defendant filed a Post Sentence Motion.      Following

a. hearing on August 24, 2015, the Court denied the motion by order dated

August 28, 2015. This appeal followed. By Order of September 14, 2015, the

Court ordered the Defendant to produce a concise statement of errors; the

Defendant has since complied with this directive.

  II.      Issues

        The Defendant raises the fo1lowingissues in his concise statement:

              1. Whether the judgment of sentence must be vacated and
                  Appellant discharged because the trial court erred as a
                  matter of law and abused its discretion in failing to set
                  aside the jury's guilty verdicts for burglary and conspiracy
                  to commit burglary, when the trial record is void of any
                  factual findings of what crime was committed inside the
                  residences, or intended to be committed inside, and the
                 jury expressly found that no theft related crimes were
                 committed?

             2. Whether the trial court erred as a matter of law in
                ordering restitution for allegedly stolen items when there
                is no causal connection between the jury verdict and the
                alleged losses sustained by the victims, as the jury made
                specific findings that there were no such losses?

             3. Whether the trial court abused its discretion and erred as
                a matter of law when it denied the Defendant's Batson
                challenge at the time of jury selection?

                                         4
                4. Whether the judgement of sentence must be vacated and
                   Appellant discharged because the record indicates, when
                   compared to Appellant's co-defendant, that Appellant was
                   selectively prosecuted due to his decision to invoke his
                   constitutional right to a jury trial, in violation of his state
                   and federal constitutional    rights, as evidenced by the
                   disparaging treatment at the sentencings?

               5. Whether the trial court abused its discretion when it
                  considered    victim impact   testimony  at the time of
                  sentencing regarding losses from thefts and persons being
                  present during a burglary, when the jury found that there
                  were no losses from theft and no persons were present at
                  the time of the burglaries?

     III.   Discussion

            1. The jury verdict was proper.

        The Defendant's first claim is that the Court should have set aside his

 convictions for burglary and conspiracy to commit burglary because he was

 found not guilty of the theft and related charges.      This claim fails as a matter

 of law. The Commonwealth need not prove the underlying crime to sustain a

 burglary conviction. Commonwealth v. Brown, 886 A.2d 256, 260 (Pa. Super.

2005) (citing Commonwealth v. Lease, 703 A.2d 506 (Pa.Super.1997) (burglary

conviction affirmed where defendant was acquitted of the underlying crimes of

theft and receiving stolen property because the factfinder could have

determined that the defendant entered the residence with the intent to steal

but did not consummate the theft after entry.))       "Inconsistent   verdicts, while

often perplexing, are not considered mistakes and do not constitute a basis for

reversal." Commonwealth v. Stokes, 38 A.3d 846, 855 (Pa. Super. 2011)

(quoting Commonwealth v.:. J:'..~. !J~_wa_v.., 847 A.2d 713, 718 (Pa.Super.2004)

(internal citations omitted)). Rather, "the rationale for allowing inconsistent
                                           5
  verdicts is that it is the jury's sole prerogative to decide on which counts to

  convict in order to provide a defendant with sufficient               punishment."       Stokes, 38

  A.3d at 855 (quoting Commonwealth                v. Miller, 657 A.2d 946, 948 (Pa. Super.

  1995) (internal citations        omitted)).   "When an acquittal on one count in an

  indictment     is inconsistent     with a conviction on a second count, the court looks

  upon the acquittal     as no more than the jury's assumption               of a power which

  they had no right to exercise, but to which they were disposed through lenity.

 Thus, this Court will not disturb guilty verdicts on the basis of apparent

 inconsistencies     as long as there is sufficient evidence            to support     the verdict."

 Stokes, 38 A.3d at 855 (citing Petteway, 847 A.2d at 718).

        Furthermore,      insofar as this claim raises a challenge            to the sufficiency of

 the evidence, it must also fail. In reviewing the sufficiency of the evidence, we

 are required to view the evidence, and all permissible             inferences to be drawn

 therefrom,    in the light most favorable to the Commonwealth,                as verdict winner.

The test is whether, taking as true the evidence most favorable to the

Commonwealth,        together with all reasonable          inferences    therefrom.,     the evidence

is sufficient to prove appellant's guilt beyond a reasonable                doubt.

Commonwealth        v. Ruffin, 463 A.2d         1117,   1118-19 (Pa. Super.      1983) (citations

omitted).

      A person commits the offense of burglary if, with the intent                     to commit a

crime therein,    the person:

      ( l) enters a building or occupied structure, or separately secured
           or occupied    portion thereof that is adapted for overnight
           accommodations    in which at the time of the offense any person
           is present;

                                                   6
        (2) enters a building or occupied structure, or separately secured
            or occupied portion thereof that is adapted for overnight
            accommodations in which at the time of the offense no person
            is present;


        (3)   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 any person
              is present; or


        (4)   enters a building or occupied structure, or separately secured
              or occupied portion thereof Lhat is not adapted for overnight
              accommodations in which at the time of the offense no person
              is present.

 18 Pa. C.S.A.    § 3502(a).

       A person      is guilty of conspiracy with another   person or persons       to

 commit a crime if with the intent of promoting or facilitating its commission he:

       (1) agrees with such other person or persons that they or one or
           more of them will engage in conduct which constitutes such
           crime or an attempt or solicitation to commit such crime; or

       (2) agrees to aid such other person or persons in the planning or
           commission of such crime or of an attempt or solicitation to
           commit such crime.


18 Pa.C.S.A.     § 903

      Instantly, there was sufficient evidence to support the guilty verdicts for

burglary and conspiracy to commit burglary. As noted above, the

Commonwealth is not required to prove what crime the Defendant intended to

commit in order to sustain a conviction for burglary.   The inconsistent verdict

may simply have been the jury's improper exercise of leniency. There was


                                         7
  ample evidence that the Defendant was involved in the burglaries-the car that

  was at the scene was owned by Rochelle Brown, from whom he rented a room;

  the Defendant's DNA was found on a water bottle and on a glove that was

  recovered at or near the crime scenes; his cell phone records placed his phone

  in the area of the burglaries on the day in question.    There was also testimony

  that the Defendant and two other men travelled to the suburbs specifically to

 burglarize houses.   Therefore, the Court did not err is denying Defendant's

 motion for judgment of acquittal.

        2. The Court did not err in ordering restitution
                                                       .

       The Defendant's next contention       is that the Court erred in ordering

 restitution because the Defendant was found not guilty of the theft or receiving

 stolen property charges.   Imposition of restitution is within the sound

 discretion of the sentencing court and must be supported by record.

Commonwealth v. Figueroa, 691 A.2d 487 (Pa. Super. 1997).           The record

supports the order of restitution and this claim must fail.

       Restitution applies only for those crimes to property or person where

there has been a loss that flows from the conduct which forms the basis of the

crime for which a. defendant is held criminally accountable. Commonwealth v.

Wright, 722 A.2d 157, 159 (Pa. Super. 1998) (citation omitted).       The general

rule is that restitution must be properly included in a sentence.

Commonwealth     v. Dinoia, 801 A.2d 1254 (Pa. Super. 2002). At the time of

sentencing the court must specify the amount and method of restitution.            In

determining the amount and method of restitution, the court:


                                         8
          {i)    Shall consider   the extent of injury suffered by the victim, the
                 victim's request for restitution a.s presented to the district
                 attorney in accordance with paragraph (4) and such other
                 matters as it deems appropriate.

         (ii)     May order restitution in a lump sum, by monthly
                 installments or according to such other schedule as it deems
                 just.

         (iii)   Shall not order incarceration of a defendant for failure to pay
                 restitution if the failure results from the offender's inability
                 to pay.J

         (iv)    Shall consider any other preexisting orders imposed on the
                 defendant, including, but not. limited to, orders imposed
                 under this title or any other title.

     § l 106(C)(2).   ·

        Evidence adduced at trial indicated the value of the properly stolen from

 both homes. Likewise, the victims testified as to their losses at the sentencing.

 The losses were calculated based on receipts and other records the victims had

 for the property stolen.     The victims suffered these losses as a direct result of

 the burglaries committed by the Defendant and his co-conspirators.         But for

 these actions, the victims would have suffered no losses. Therefore, there was

a clear causal connection between the burglaries and the suffered losses

regardless of the jury's verdict and restitution was properly ordered.

       3. The Court properly denied the Defendant's Batson challenge.

       To establish any merit to a Batsons claim, the Defendant must establish

a prima facie case of improper use of peremptory challenges.

      To do so, a defendant must. establish that:



e Batson v. Kentu£.ky, 476 U.S. 79 (1986).

                                             9
       ( 1.) the defendant is a member of a cognizable racial group and the
       prosecutor exercised peremptory challenges to remove members of
       the defendant's race from the venire; (2) the defendant can then
      rely on the fact that the use of peremptory challenges permits
      "those to discriminate who are [of] a mind to discriminate"; and, (3)
      the defendant, through facts and circumstances, must raise an
      inference that the prosecutor excluded members of the venire on
      account of their race. Once the defendant makes a prima facie
      showing, the burden shifts to the Commonwealth to come forward
      with a neutral explanation for challenging black jurors.

Commonwealth v. Washington, 927 A.2d 586, 609-10 (Pa. 2007)(citations
omitted}.

      Instantly, the Defendant claims that the Commonwealth improperly used

peremptory challenges to remove the remaining two African Americans from

the jury. During the individual voir dire of potential juror 12, the following

exchange took place:

      The Court: Thank you very much for coming back. You answered
      three questions. I'm going to go in reverse order.

     Venire person 12: Okay.

     The Court: The first one was that you believe you have an
     extraordinary or undue hardship. What would that be?

     Venire person 12: Well, I just help my mom take care of my dad.
     He has frontal temporal lobe dementia. I help her take care of him.
     I wasn't really sure depending on how-

     The Court: Here's how we work. We go like 9:00 to maybe 4:30,
     except for if a jury is deliberating. If a jury is deliberating, they can
     go into the night. I don't tell the jury what to do when they're
     deliberating. That's the only time it would take you past that. You
     know, you have to arrive here about 9: 15. There's breaks. You
     know, generally we quit at 4:30 ....

    The Court: The next one I had was whether you or a very close
    family member had ever been convicted of a crime. We're not
    concerned about a close family member. Have you ever been
    convicted of a crime?

                                        10
        Venire person 12: No. No.

       The Court: The only-we ask it that way so we don't embarrass
       people.   The only thing we'd be concerned about a close family
       member is if it was such an impact upon you about the criminal
       justice system, fairness, or that you couldn't be fair and impartial.
       Do you believe that the fact that a family member was convicted of
       a crime would make you not be fair and impartial?

       Venire person 12: No, not at all ...

       The Court: And then I asked the question would anybody here be
       less likely to believe the testimony of a police officer because of his
       or her job. Your card stayed up. Is that your answer?

       Venirc person 12: I think-I don't lmow if I was answering right. I
       pretty much wouldn't just believe, you know, like it would be fair
       in my mind. Like I wouldn't count what they said as truth just
       because they're a police officer.

       The Court: That's good.

       Venire person 12: And T wouldn't count it as they're lying either,
       but I would count it-so I don't know if I even answered right.

      The Court: So police officer testimony is just the same as yours?

      Venire person 12: Right ....

      The Court: What we're trying to say is you won't be less likely to
      believe a police officer just because he's a police officer?

      Venire person 12: No. No.

      The Court: I'll put her.into the mix of the hardships, but she's okay
      for now.

N.T., Jul. 7, 2014 at 57-59.

      During the individual voir dire of potential juror 18, the following

exchange took place:

     The Court: How are you, Reverend?

     Venire person 18: Good.
                                         11
        The Court: The question that you left out there was a conviction.
        We are not really concerned about a close family member, but we
        ask it in case. We don't want to embarrass anybody. Have you
        ever been convicted of a crime? ...

        The Court: The answer is no?

       Venire person 18: No. I've been arrested.

       The Court: It's okay. We're only looking for convictions ... How
       about a family member convicted?

       Vcnire person 18:   My brother.   My brother is presently serving.

       The Court: The fact that you have a brother who was convicted of
       a crime,. would that in any way affect your ability in this case to be
       a fair and impartial juror?

       Venire person 18: 11.1 say I would hope not.

      The Court:      Well, we can't.- ... Hope doesn't help us because
      everybody's guessing, like, oh, geez ...    What disqualifies someone
      is if the impact or however you feel about your brother's conviction,
      about the criminal justice system or something like that, or
      something about the nature or something that triggers you and
      you go, oh, geez, I didn't think it, but I can't be fair in this case. So
      the question is you'd have to set it aside and guarantee us that the
      fact that you had a brother convicted- because that doesn't
      automatically disqualify you. Can you guarantee us it would not
      affect your ability to be fair and impartial?

      Venire person 18: I would sa.y yes, I couJd set it aside.

      The Court: I got that part. Can you guarantee us, because at this
      stage you're making an oath to follow the law and the Jaw says
      nothing will come in, won't trigger anything. So can you guarantee
      us that the fact you have a brother convicted will not affect your
      ability to be fair and impartial.

      Venire Person 18: (-Juror nods.)

N.T., Jul. 7, 2014 at 64-66.




                                         12
           Following the individual voir dire, the Commonwealth used peremptory

  strikes to remove these two potential jurors, at which time the Defendant

 raised a Batson challenge.      The Defendant argued that out of the 45 person

 pool of potential jurors, only three were African American.     ~ at 99-100. One

 of these jurors was struck for cause, and the other two were struck by the

 Commonwealth. Id. Following the Defendant's prima facie showing that he is

 an African American and all African Americans were struck from the Jury, the

 Commonwealth put forth race neutral reasons for striking these potential

 jurors.

           As to Juror 12, the Assistant District Attorney indicated that she was

 stricken for "the same reason we brought her back for individual. questioning.

In both her questionnaire and in court today she indicated that she was less

likely to believe the testimony of a police officer solely because they were a

police officer." ld. at 10J.    The Assistant District Attorney further indicated

that while the Court had rehabilitated her, he was not confident in her

rehabilitation, which was his sole reason for striking her from the jury. liL_ at

101-102.      He indicated that he was also concerned about her ability to "follow

the directions of the Court and/ or understand the Court's direction to her." Id.

at 102.

          As to Juror 18, the Assistant District Attorney indicated "his demeanor

when responding the Court's questions individually I lacked confidence in."         M:.
at 103.      The Defendant countered that the potential juror is a man of the

cloth and his demeanor when answering questions reflected his thoughtfulness

                                           13
  and the Defendant believed the juror was rehabilitated. Id. The Assistant

  District Attorney indicated that "he is a man of the cloth ... we don't know

  what effect that would have on his ability to sit as a juror. That is another

 reason he was stricken." Id.

          Based on the totality of the circumstances, the Court accepted the race

 neutral reasons for the strikes and determined that the Commonwealth did not

 use its peremptory strikes to impermissibly strike African Americans from the

 jury.    Therefore, this claim must also fail.

           4. The Defendant was not selectively prosecuted.

          The Defendant's next contention appears to be that, compared to co-

 defendant, Michael Cannon, he was selectively prosecuted as evidenced by the

 sentences each Defendant received.          This claim is overly vague and is,

 therefore, waived. Alternatively, this claim is wholly without merit, and must

fail.

         To establish a claim of selective prosecution, the Defendant must show:

"first, (1) that "others similarly situated were not prosecuted for similar

conduct;" and (2) that "the Commonwealth's discriminatory selection of them

for prosecution was based on impermissible grounds such as race, religion, the

exercise of some constitutional right, or any other such arbitrary

classification."   Comrnonwealth. __v. Mulholland, 702 A.2d 1027, 1034 (Pa. 1997)

(citation omitted).

         In the matter indexed at 6564-12,        Michael Cannon has not yet been

sentenced.      Therefore, the Defendant cannot support a claim that he was

                                             14
     selectively prosecuted based upon the "disparaging treatment at the

     sentencings.     n


             5. Victim impact testimony was properly allowed.

            Defendant's final contention is the Court abused its discretion by

     allowing victim impact testimony because the Defendant was found not guilty

     of the theft charges and the jury specifically found that a person was not

     present during the burglaries.

            At the discretion of the trial court, the Commonwealth      may present live

     testimony of the victim and the victim's family or friends, as well as other

    evidence such as photographs at sentencing on the relevant sentencing issue of

    "the gravity of the offense as it relates to the impact on the life of the victim a.nd

    on the community." Commonwealth v. Penrod, 578 A.2d 486, 491-92 (Pa.

    Super. 1990); 42 Pa.C.S.A. § 9721(c).    "Under our legislature's    'Basic Bill of

    Rights for Victims";' victims of all crimes have the same right to breathe life

    with all its emotions into their victim impact statements included in the PSI

    [Pre-sentence Investigation] Report."   Id. (citing Commonwealth v. McLaughlin,

    574 A.2d 610, 614-615 (Pa. Super. 1990)).

          Tnstantly, the Court heard victim· impact statements or testimony

    members of both families whose homes were burglarized.        It is immaterial that

the Defendant was not convicted of theft and the jury did not find that a person

was present during the burglary. The crimes of burglary and conspiracy to

commit burglary had an impact on these families, which they were properly


9   18 P.S. §11.201

                                             15
        allowed to express to the Court. Therefore, this cJaim is also without merit and

        must fail.

                IV.         Conclusion

                Based on the foregoing, the judgement of sentence should be affirmed.




                                                      BY THE COURT:




                                                      STEVEN T. O'NEILL       J.


Copies sent on J/J:itt!t S" to the following:
Robert Falin, Esq. (Jt>i'slrict Attorney's Office)
John Walko, Esq.ti'"
Clerk of Courts
    /       /           I   )
I       I         " 't.. __.    .    , .,
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 ,              (7
.s ccrctary




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