J-A28010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES HOLLAND

                            Appellant                No. 3283 EDA 2015


              Appeal from the Judgment of Sentence July 15, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0005281-2014


BEFORE: PANELLA, J., SHOGAN, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J.                         FILED February 27, 2017

        Appellant, James Holland, appeals from the judgment of sentence

entered after a jury convicted him of burglary and conspiracy to commit

burglary.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On July 13, 2014, police responded to a 911 call reporting a burglary in

progress. The caller stated he lived next door to the property, and that his

neighbor, Frank Benditt, was away on vacation. When police arrived, they

found Appellant inside the home with his accomplice, Waleska Nunez.2
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3502(a)(2), 903.
2
  Ms. Nunez’s first name is subject to a variety of spellings throughout the
certified record.
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Appellant was holding a purple drawstring bag with several items inside

belonging to Mr. Benditt. Appellant attempted to discard the bag and flee the

premises, but was unsuccessful. Other items belonging to Mr. Benditt were

found in bags throughout the house and outside the premises. Officers

discovered several credit cards in Mr. Benditt’s name in Appellant’s pockets.

They subsequently arrested Appellant and Nunez. Nunez told police she and

Appellant had entered the house in order to have sex. Nunez later admitted

she and Appellant had planned to steal items from the home and pawn

them, in order for Appellant to pay her for sex with the proceeds.

       Appellant proceeded to jury selection, at which time Appellant’s

counsel raised a Batson3 challenge and requested that the jury not be

seated. The court denied counsel’s request. The case continued to trial, and

the jury convicted Appellant of burglary and criminal conspiracy.

       The court sentenced Appellant to an aggregate term of 51-162

months’ incarceration, plus five years’ probation. Appellant timely filed a

post-sentence motion. The court denied Appellant’s motion, and he appealed

to this Court.

       Appellant raises two issues for our review:

       Did the [trial court err] by finding that the Commonwealth
       presented sufficient evidence to support a verdict of guilty for
       the crimes of criminal conspiracy to commit burglary and
       burglary?
____________________________________________


3
    Batson v. Kentucky, 476 U.S. 79 (1986).



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      Did the trial court fail to declare a mistrial and improperly permit
      the dismissal of four jurors who were African-American after a
      Batson challenge by defense counsel?

Appellant’s Brief, at 2.

      In his first issue, Appellant argues that the Commonwealth must

establish more than simply his unauthorized entry into an occupied structure

to prove the crime of burglary. Appellant asserts the Commonwealth failed

to prove his intent to commit a crime once inside, since Nunez stated the

two entered the home to have sex. Alternatively, Appellant insists Nunez

was an unreliable witness, since she admitted to being a drug user.

Appellant also objects to the Commonwealth’s failure to fingerprint the

home, and the Commonwealth’s reliance on Mr. Benditt’s inventory of his

missing and moved belongings. Appellant concludes the Commonwealth

presented insufficient evidence to support his convictions for burglary and

conspiracy.

      Preliminarily, this Court has held that

      [i]f [an appellant] wants to preserve a claim that the evidence
      was insufficient, then the [Rule] 1925(b) statement needs to
      specify the element or elements upon which the evidence was
      insufficient. This Court can then analyze the element or elements
      on appeal. [Where a Rule] 1925(b) statement does not specify
      the allegedly unproven elements[,] … the sufficiency issue is
      waived on appeal.

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (citation

omitted).

      Instantly, Appellant’s Rule 1925(b) statement asserted, “Appellant



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submits that the evidence produced by the Commonwealth was insufficient

as a matter of law to sustain [its] burden of proving the Appellant guilty

beyond a reasonable doubt.” Appellant’s Concise Statement of Matters

Complained of on Appeal, filed 11/30/15. This statement failed to object to

any particular element or elements of Appellant’s convictions as resting upon

insufficient evidence. Indeed, as the trial court notes, Appellant’s Rule

1925(b) statement fails to specify even which conviction he objects to as

sustained by insufficient evidence. Despite the Commonwealth’s failure to

raise waiver in its appellate brief, we find Appellant did not preserve this

issue for our review. See Tyack, 128 A.3d at 261 (holding Commonwealth’s

failure to object to Rule 1925(b) statement is not pertinent to this Court’s

analysis). Consequently, we find Appellant’s sufficiency challenge waived on

appeal.

     Moreover, even if Appellant had not waived his sufficiency challenge,

we would have found it without merit. “Evidence will be deemed sufficient to

support the verdict when it establishes each material element of the crime

charged and the commission thereof by the accused, beyond a reasonable

doubt.” Commonwealth v. Mauz, 122 A.3d 1039, 1041 (Pa. Super. 2015)

(citation omitted). “Under Pennsylvania law the crime of burglary is defined

as an unauthorized entry with the intent to commit a crime after entry.”

Commonwealth v. Alston, 651 A.2d 1092, 1094 (Pa. 1994). A conspiracy

conviction requires that the Commonwealth established “that the defendant

(1) entered into an agreement to commit or aid in an unlawful act with

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another person or persons, (2) with a shared criminal intent and (3) an

overt act was done in furtherance of the conspiracy.” Commonwealth v.

McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (citation omitted).

       Here, the Commonwealth showed at trial that police caught Appellant

inside the residence. Mr. Benditt testified unequivocally that Appellant did

not   have    authorization     to   enter     his   home.   Ms.   Nunez,   Appellant’s

accomplice, testified that she agreed to have sex with Appellant in exchange

for money. Ms. Nunez testified that Appellant did not have money at the

time, but that he proposed breaking into the home and stealing items to

pawn in order to pay her for sex.4 She agreed to the plan, and the two

attempted to cut open a window screen in Mr. Benditt’s home before

entering through the basement door. Once inside, Ms. Nunez testified she

helped Appellant place Mr. Benditt’s possessions into bags in order to

remove them from the home. One of the police officers who responded to

the scene and apprehended Appellant and Ms. Nunez testified he found the

____________________________________________


4
  Throughout trial and again on appeal, Appellant argued that he intended to
go in the house to have sex with Ms. Nunez, not to commit a theft. However,
Ms. Nunez specifically testified that Appellant agreed to pay her for sex. See
Notes of Testimony, 5/13/15, at 119. Appellant did not dispute this aspect of
Ms. Nunez’s testimony. Patronizing prostitutes is an offense under 18
Pa.C.S.A. § 5902. Burglary requires intent to commit a crime following an
unauthorized entry, but does not specify a particular crime to be committed.
While the Commonwealth presented sufficient evidence to show Appellant
intended to commit a theft while inside the home, Appellant’s contention
that he did not commit a burglary because he unlawfully entered Mr.
Benditt’s home in order to have sex with Ms. Nunez would be unavailing.



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pair inside Mr. Benditt’s home, and that Appellant attempted to flee several

times. The officer testified that Appellant was holding a bag full of items

from the home, and Appellant’s pockets contained credit cards belonging to

Mr. Benditt. Based on the foregoing, we would have found that the

Commonwealth      presented      sufficient   evidence     to   sustain     Appellant’s

convictions for burglary and conspiracy.

      In Appellant’s second issue on appeal, he challenges the trial court’s

refusal to grant a mistrial for an alleged Batson violation by the

Commonwealth. Appellant maintains that, as an African-American, he is a

member of a cognizable racial group. Appellant contends the Commonwealth

struck four prospective African-American jurors from the jury pool, but only

gave reasons for doing so in two instances. Appellant alleges the court

inappropriately   placed   the    burden      on   the   defense   to     identify   the

venirepersons at issue. Appellant concedes the record is undeveloped as to

permit a full review of this challenge; nevertheless, he insists he established

a prima facie case under Batson. Appellant concludes this Court must

remand the matter for further development of the record. We disagree.

      Our Supreme Court has previously articulated the requirements for

bringing a Batson claim as follows:

      To establish a prima facie case under Batson, the defendant
      must prove that: he is a member of a cognizable racial or ethnic
      group; the [Commonwealth] exercised its peremptory challenges
      to remove members of such group from the venire; and other
      relevant   circumstances   raise   an   inference    that    the
      [Commonwealth] used peremptory challenges to exclude


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     venirepersons from the same racial or ethnic group. In
     connection with this inquiry, the defendant is entitled to rely on
     the fact that peremptory challenges constitute a jury selection
     practice that permits those to discriminate who are of a mind to
     discriminate. The necessary prima facie case (i.e., inference of
     discrimination) may be demonstrated by reference to the totality
     of relevant circumstances. For example, the inference may
     derive from a pattern of strikes against minority jurors or from
     the manner of the prosecution’s questions and statements during
     voir dire examination.

     On appeal, in determining whether a defendant has established a
     prima facie case of a Batson violation … this Court has generally
     enforced a requirement of a full and complete record of the
     asserted violation. Specifically, the defendant has been required
     to present a record identifying the race or ethnicity of the
     venirepersons stricken by the Commonwealth, the race of
     prospective jurors acceptable to the Commonwealth but stricken
     by the defense, and the racial composition of the final jury
     selected.

Commonwealth v. Uderra, 862 A.2d 74, 84 (Pa. 2004) (internal citations

and quotation marks omitted).

     Instantly, Appellant’s contentions fall far short of meeting this

standard. Appellant’s argument that the trial court improperly placed the

burden on the defense to develop a full record is inapposite. The defense is

required to, at minimum, identify the race or ethnicity of the venirepersons

whom the Commonwealth excluded using peremptory challenges. As trial

began, Appellant’s counsel attempted to renew his objection to the

composition of the jury panel without success. See Notes of Testimony,

5/13/15, at 4. Appellant’s counsel was unable to remember even how many

African-Americans the Commonwealth struck from the venire, let alone

identifying details such as the names or juror numbers of those persons.



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See id., at 5. Counsel failed to offer any other evidence of circumstances to

raise an inference that the Commonwealth used peremptory challenges to

eliminate African-American prospective jurors because of their race. Clearly,

Appellant failed to establish a prima facie case under Batson.

      Despite this, counsel for the Commonwealth nonetheless volunteered

that she recalled using peremptory strikes on three African-American jurors.

Of the three, she specifically remembered two, including their juror

numbers. She stated she used a peremptory challenge to strike one juror

whom she was concerned had too much prior experience testifying in court,

and stated Appellant’s counsel agreed at the time that the juror should be

excluded from the pool. See Notes of Testimony, 5/13/15, at 6. She used

another to strike a juror who rolled her eyes and seemed inattentive. See

id.

      The record reveals no evidence that the Commonwealth exercised

peremptory challenges to exclude jurors based on race. Appellant’s inability

to make a prima facie case under Batson precludes us from granting relief

on his claim. Appellant is unable to expose even mere doubts about the use

of strikes which might encourage a remand for a fuller record. Consequently,

we decline to grant Appellant’s request to remand for development of his

Batson claim. Accordingly, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2017




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