J-A25008-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                  Appellee               :
                                         :
            v.                           :
                                         :
ROBERT UPSHAW,                           :
                                         :
                  Appellant              : No. 310 EDA 2015

        Appeal from the Judgment of Sentence December 23, 2014,
               Court of Common Pleas, Philadelphia County,
            Criminal Division at No. CP-51-CR-0015017-2013

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED OCTOBER 20, 2015

      Appellant, Robert Upshaw (“Upshaw”), appeals from the judgment of

sentence entered on December 23, 2014 by the Court of Common Pleas of

Philadelphia County, Criminal Division, following his convictions of burglary,

criminal trespass, criminal mischief, theft by unlawful taking, and receiving

stolen property.1 For the reasons that follow, we vacate Upshaw’s judgment

of sentence and remand for resentencing.

      We summarize the relevant facts and procedural history of this case as

follows. On October 5, 2013, Veronica Joyner (“Joyner”) went to her house

at 2118 West Tioga Street, Philadelphia, Pennsylvania (“the property”)

because her neighbors had told her they saw a man enter the house. When

she arrived at the property, Joyner called the police and waited out front for


1
    18 Pa.C.S.A. §§ 3502(a)(2), 3303(a)(1)(ii), 3304(a)(2), 3921(a),
3925(a).


*Former Justice specially assigned to the Superior Court.
J-A25008-15


assistance to arrive. Soon thereafter, Officer Matthew Lally (“Officer Lally”)

arrived at the scene and entered the property through a cellar door that he

testified looked like someone had forced open.     Once inside the property,

Officer Lally found Upshaw crouched behind a couch on the first floor.

Joyner testified that Upshaw did not have her permission to be inside the

property. After Officer Lally placed Upshaw under arrest, Joyner entered the

property and observed that the stained glass windows had been removed, a

door had been taken off its hinges, and that clothing, shoes and tools were

missing.   Joyner testified that there was $3,000 worth of damage to the

property and another “couple of thousand dollars” worth of personal

property was missing.

      Regarding the condition of the property, Joyner testified that she did

not live fulltime at the property because it did not have electricity, water or

heat. Joyner explained that she spent her afternoons at the property, but

would usually spend the night at her other house located about six doors

away. Joyner stated that the property contained furniture, including a bed

and sofa, and several general household objects. While she did not normally

spend the night at the property, Joyner testified that she had stayed there

overnight three or four days before the incident.2        Joyner stated that



2
   Upshaw disputes that Joyner testified that she had spent the night at
property three or four days prior to this incident. See Upshaw’s Brief at 6
n.2. Joyner’s testimony clearly reveals, however, that she did spend the
night at the property three or four days prior to the incident:


                                     -2-
J-A25008-15


approximately three weeks prior to this incident, the property was

burglarized and its locks broken, so she boarded the doors and windows and

secured the front door with a padlock and deadbolt.

      Upshaw waived his right to a trial by jury. On September 5, 2014, at

the conclusion of his bench trial, the trial court found Upshaw guilty of the

above-referenced crimes. On December 23, 2014, the trial court sentenced

Upshaw to three to six years of incarceration on the burglary charge,

followed by three years of probation. The trial court also sentenced Upshaw

to three years of probation on the criminal mischief charge, consecutive to

the burglary sentence, three years of probation on the theft charge,

concurrent to the criminal mischief sentence, and no further penalty on the

remaining charges.

      On January 7, 2015, Upshaw filed a motion for modification of

sentence, alleging that his sentence for theft was illegal because it merged

with burglary for purposes of sentencing.     On January 16, 2015, the trial

court granted Upshaw’s motion and vacated the three-year probationary

sentence for theft.   On January 22, 2015, Upshaw filed a timely notice of

appeal.   On January 23, 2015, the trial court ordered Upshaw to file a



            Q.   And when -- before the date of October 5th,
            when was the last time you spent the night there?

            A.    Three or four days prior.

N.T., 9/5/14, at 9.


                                    -3-
J-A25008-15


concise statement of the errors complained of on appeal pursuant to Rule

1925(b) of the Pennsylvania Rules of Appellate Procedure. On February 12,

2015, Upshaw filed a timely Rule 1925(b) statement.

      On appeal, Upshaw raises the following issues for our review:

            1.    Was not the evidence insufficient to sustain a
            conviction for burglary as a felony of the first degree,
            18 Pa.C.S. § 3502(a)(2), because the property,
            which had no electricity, plumbing or heat, was not
            adapted for overnight accommodation?

            2.    As the lower court agreed in its Rule 1925
            [o]pinion, was not the evidence insufficient to
            sustain a conviction for criminal mischief graded as a
            felony of the third degree where the estimated
            damage was about $3,000, not loss in excess of
            $5,000 as required by 18 Pa.C.S. § 3304(b).

Upshaw’s Brief at 3.

      The issues Upshaw raises on appeal challenge the sufficiency of the

evidence for his burglary and criminal mischief convictions. We utilize the

following standard of review when presented with a challenge to the

sufficiency of the evidence:

               As a general matter, our standard of review of
            sufficiency claims requires that we evaluate the
            record “in the light most favorable to the verdict
            winner giving the prosecution the benefit of all
            reasonable inferences to be drawn from the
            evidence.” Commonwealth v. Widmer, [] 744
            A.2d 745, 751 ([Pa.] 2000).      “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.
            Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005).



                                     -4-
J-A25008-15


           Nevertheless,    “the    Commonwealth     need     not
           establish guilt to a mathematical certainty.” Id.;
           see also Commonwealth v. Aguado, 760 A.2d
           1181, 1185 (Pa. Super. 2000) (“[T]he facts and
           circumstances established by the Commonwealth
           need not be absolutely incompatible with the
           defendant's innocence”).      Any doubt about the
           defendant’s guilt is to be resolved by the fact finder
           unless the evidence is so weak and inconclusive that,
           as a matter of law, no probability of fact can be
           drawn from the combined circumstances.            See
           Commonwealth v. DiStefano, 782 A.2d 574, 582
           (Pa. Super. 2001).

                               *     *     *

              Significantly, we may not substitute our judgment
           for that of the fact finder; thus, so long as the
           evidence adduced, accepted in the light most
           favorable to the Commonwealth, demonstrates the
           respective elements of a defendant’s crimes beyond
           a reasonable doubt, the appellant’s convictions will
           be upheld. See Brewer, 876 A.2d at 1032.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa.

Super. 2013)).

     For his first issue on appeal, Upshaw argues that the trial court erred

in convicting him of burglary graded as a first-degree felony pursuant to 18

Pa.C.S.A. § 3502(a)(1).   See Upshaw’s Brief at 10-16.     Upshaw contends

that the property was not adapted for overnight accommodation, as required

for a conviction under section 3502(a)(1), because it did not have any

water, electricity or heat and had boarded up doors and windows. See id.

Instead, Upshaw contends that under our Supreme Court’s decision in



                                   -5-
J-A25008-15


Commonwealth v. Graham, 9 A.3d 196 (Pa. 2010), the trial court should

have graded his burglary conviction as a second-degree felony pursuant to

18 Pa.C.S.A. § 3502(a)(4). See Upshaw’s Brief at 10-16.

      Section 3502 of the Pennsylvania Crimes Code defines burglary, in

pertinent part, as follows:

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

                                *    *     *

                  (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;

                                *    *     *

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

18 Pa.C.S.A. § 3502(a)(2), (4) (emphasis added).     Burglary under section

3502(a)(2) is graded as a first-degree felony, while burglary under section

3502(a)(4) is graded as a second-degree felony. 18 Pa.C.S.A. § 3502(c).

      Here, in determining that the property was adapted for overnight

accommodation, and therefore, that Upshaw’s burglary conviction fell under

section 3502(a)(2), the trial court relied on Commonwealth v. Nixon, 801

A.2d 1241 (Pa. Super. 2002). See Trial Court Opinion, 3/16/15, at 3-4. In



                                    -6-
J-A25008-15


Nixon, this Court faced the issue of whether an unoccupied row home that

was undergoing a renovation and had its water and electricity turned off

constituted a building adapted for overnight accommodation.          Nixon, 801

A.2d at 1243. The daughter and grandson of the owner occupied the home

up until a few months prior to the burglary.       Id.   Around the time of the

burglary, the home was undergoing renovations. See id. During this time,

the house was still furnished, but the water and electricity had been shut off.

Id.

      In   concluding   that   the   row   home   was    adapted   for   overnight

accommodation, see id. at 1247-48, our Court explained, “[t]he Courts of

this Commonwealth have not set forth either a test or a list of factors to be

considered in determining whether a structure is adapted for overnight

accommodation.”     Id. at 1244 (footnote omitted).       “Although no clear-cut

test exists, we believe … that the focus of the determination of whether a

structure is adapted for overnight accommodation should be the nature of

the structure itself and its intended use, and not whether the structure is in

fact inhabited.”   Id. at 1247.      Our Court   ultimately concluded that “[a]n

examination of the house burglarized in the instant case leads us to the

reasonable conclusion that it was intended to be used as a residential

property and was adapted for overnight accommodation as found by the

[t]rial [c]ourt.” Id. at 1247-48.




                                        -7-
J-A25008-15


      Upshaw, however, asserts that our Supreme Court’s decision in

Graham compels the determination that the property was not adapted for

overnight accommodation. See Upshaw’s Brief at 11-16. Somewhat similar

to Nixon, Graham involved the burglary (and arson) of a new house under

construction. See Graham, 9 A.3d at 197. In Graham, the house at issue

had the following characteristics immediately prior to the burglary:

                [T]he exterior work on the building was complete;
            windows and doors were installed, albeit lacking
            trim; concrete was poured; electrical and plumbing
            rough-in work had been accomplished; temporary
            heat was available for construction purposes; and
            running water was available via two spigots, one
            located on the building’s exterior and the other in the
            garage. On the other hand, the owner stated that:
            only two electrical circuits were active for
            construction purposes; plumbing was stub, with no
            fixtures in place and only an unattached pedestal
            sink on premises; walls were framed, but the
            framing remained open and uncovered; drywall was
            on premises but uninstalled; lighting was limited to
            construction and security purposes; the permanent
            furnace was in place but not operational; kitchen
            appliances and cabinets remained packed and stored
            in the basement; and there was no running water in
            the planned living space.

Id.   Our Supreme Court determined that “the evidence presented in this

case is insufficient to support a finding that the subject structure was

adapted for overnight accommodation at the time of Appellant’s illegal

entry.” Id. at 204. In so holding, the Supreme Court relied on the following

characteristics of the house at issue in that case:




                                     -8-
J-A25008-15


              [R]unning water was available in the planned living
              space solely via attachment of a garden hose to
              spigots in the garage or on the exterior; no toilet
              facilities were present; and there were no furnishings
              available for sleeping.     According to the owner-
              victim’s uncontradicted testimony, all working utility
              services were configured for construction purposes
              only.

Id. at 203.

     The Supreme Court emphasized the difference between a structure

already adapted for overnight accommodations and those that are on their

way to being so adapted. See id. at 203-04. The Court explained:

                 As other courts have recognized, the adaptation
              inquiry is fact intensive, and material differences will
              arise depending on the form and degree of
              adaptation intended and accomplished.                In
              particular, there are pertinent differences between
              structures which have been fully adapted for
              overnight accommodation, but which temporarily
              lack services or other features of full adaptation, and
              those which have never been so adapted, albeit work
              may be underway in furtherance of such objective.

Id. at 204. Importantly, the Supreme distinguished the Graham decision

from our Court’s decision in Nixon:

                  We have no difficulty with the Nixon [C]ourt’s
              explanation that the primary focus, in assessing
              adaptation, should be the nature of the structure and
              its intended use, as distinguished from present use
              for inhabitation. See Nixon, 801 A.2d at 1247. We
              believe, however, that the “nature” criterion is broad
              enough to subsume consideration of the progress of
              a planned adaptation in construction scenarios.
              Indeed, as recognized by the Texas court in
              [Blankenship v. State, 780 S.W.2d 198 (Tex. Crim.
              App. 1989) (en banc)], there are a multitude of sub-



                                       -9-
J-A25008-15


              factors which may be considered.[3]     See [id.] at
              209.

                  Finally, the Nixon holding – that a previously
              completed row house under renovation, with electric
              and water services suspended, was adapted for
              overnight accommodation – is not before us
              presently. We merely reiterate that a finding of
              adaptation is substantially more reasonable in
              circumstances in which an already adapted structure
              lacks features supporting continuous overnight
              accommodation for some temporary period, than in a
              situation in which the structure has not yet been
              adapted for overnight accommodation, albeit the
              adaptation may be planned and underway.

Id. at 204.

     We conclude that in this case, the property is more akin to the row

home undergoing renovations in Nixon than the new house under



3
   The passage from Blankenship to which the Supreme Court referred
provides:

                 What makes a structure “suitable” or “not
              suitable” for overnight accommodation is a complex,
              subjective factual question fit for a jury’s
              determination. Their inquiry could be guided by
              reference to whether someone was using the
              structure or vehicle as a residence at the time of the
              offense; whether the structure or vehicle contained
              bedding, furniture, utilities, or other belongings
              common to a residential structure; and whether the
              structure is of such a character that it was probably
              intended to accommodate persons overnight (e.g.
              house, apartment, condominium, sleeping car,
              mobile home, house trailer). All of these factors are
              relevant; none are essential or necessarily
              dispositive.

Graham, 9 A.3d at 200-01 (quoting Blankenship, 780 S.W.2d at 209).


                                      - 10 -
J-A25008-15


construction in Graham.       While the property had boarded doors and

windows, and no water, electricity or heat, the nature of the property and

the manner in which Joyner used it indicates that it was adapted for

overnight accommodation.      Joyner testified that although she did not

regularly sleep at the property, she frequently spent her days there and had

spent the night in the house as recently as three or four nights prior to the

burglary.   N.T., 9/5/14, at 9.   Joyner further testified that the property

contained several general household items, including, inter alia, clothing,

shoes, bedding, paperwork, Christmas decorations, and blinds.      Id. at 10-

11. The certified record reflects that the property was furnished, and those

furnishings included, inter alia, a bed, a sofa, and a coffee table. Id. at 9,

51.

      As both our Supreme Court in Graham and this Court in Nixon

emphasized, there are a multitude of factors courts can consider in an

adaptation analysis, and that the focus in assessing adaptation should be on

the nature of the structure and its intended use. See Graham, 9 A.3d at

204; Nixon, 801 A.2d at 1247. Therefore, the lack of any water, electricity

or heat, or any evidence of there ever being such utilities, in the property

does not automatically require its classification as not adapted for overnight

accommodations.4    Thus, we conclude, based on the evidence presented,



4
   For example, a cabin in the woods, used by the owner for vacation
purposes may not be inhabited fulltime, and if it is particularly remote, may


                                    - 11 -
J-A25008-15


viewed in the light most favorable to the Commonwealth as the verdict

winner, that the trial court did not err in concluding that the property was

adapted for overnight accommodation.          Accordingly, the evidence was

sufficient to sustain Upshaw’s conviction of burglary as a first-degree felony.

      For his second issue on appeal, Upshaw argues that the evidence was

insufficient to sustain his conviction of criminal mischief graded as third-

degree felony because the estimated damage to the property was $3,000,

which did not exceed $5,000 as required by section 3304(b) of the Crimes

Code. See Upshaw’s Brief at 16-17. Upshaw therefore asserts that the trial

court should have graded his criminal mischief conviction as a second-

degree misdemeanor. See id.

      Section 3304(b) provides as follows:

            (b) Grading.--Criminal mischief is a felony of the
            third degree if the actor intentionally causes
            pecuniary loss in excess of $5,000, or a substantial
            interruption or impairment of public communication,
            transportation, supply of water, gas or power, or
            other public service. It is a misdemeanor of the
            second degree if the actor intentionally causes
            pecuniary loss in excess of $1,000, or a
            misdemeanor of the third degree if he intentionally
            or recklessly causes pecuniary loss in excess of $500
            or causes a loss in excess of $150 for a violation of
            subsection (a)(4). Otherwise criminal mischief is a
            summary offense.


not have utilities such as water, electricity or heat. If, however, the owner
from time to time spends the night in the cabin, the cabin is furnished with
beds and seating, and the cabin contains other household items, the nature
of the structure and its intended use would indicate that the structure is
adapted for overnight accommodation.


                                    - 12 -
J-A25008-15



18 Pa.C.S.A. § 3304(b) (emphasis added).

      Regarding the losses she incurred as a result of the burglary of the

property, Joyner testified as follows:

            Q.  Now, did you ever receive an estimate for
            damage that was done to your property?

            A.    Informal, yes. I didn’t ask immediately for a --

            Q.    And what was that?

            A.    About $3,000.

                                 *       *    *

            Q.    What was the value, approximately, of the
            items that were missing?

            A.   A couple thousand [] dollars, jackets, suits.
            Brand-new stuff that I had just stored up there
            because it was there, the space.

N.T., 9/5/14, at 16.

      The Commonwealth contends that the record reflects that Joyner

sustained losses well in excess of $5,000 resulting from the burglary. See

Commonwealth’s Brief at 13-14. The Commonwealth argues that the word

“couple” means two and that therefore, Joyner testified that she lost $2,000

worth of property from the burglary in addition to the approximately $3,000

worth of damage that the property sustained. See id.

      Even if we were to make the leap requested by the Commonwealth,

and interpret Joyner’s testimony that she lost a “couple” of thousand dollars




                                     - 13 -
J-A25008-15


of property during the burglary to mean that she lost $2,000 from the

burglary, the total loss Joyner sustained would only amount to $5,000.

Section 3304(b) unequivocally requires “pecuniary loss in excess of

$5,000” in order for criminal mischief to be graded as a third-degree felony.

18 Pa.C.S.A. § 3304(b) (emphasis added). Indeed, the trial court concedes

that it incorrectly graded Upshaw’s criminal mischief conviction as a third-

degree felony and that it should be corrected to a second-degree

misdemeanor. Trial Court Opinion, 3/16/15, at 6. Therefore, we conclude

that the evidence was insufficient to sustain Upshaw’s conviction of criminal

mischief as a third-degree felony.    Because Joyner did testify that she

received an estimate for $3,000 worth of damage to her house, we conclude

that the evidence was sufficient to sustain Upshaw’s conviction of criminal

mischief as a second-degree misdemeanor. See id.

     We further find unavailing the Commonwealth’s argument that there is

evidence in the record that the property actually sustained $20,000 worth of

damage. The Commonwealth points to defense counsel’s cross-examination

of Joyner, during which defense counsel brought out that Joyner, in her

police statement that she gave on the day of the burglary, stated that she

sustained $20,000 worth of damage from the burglary. See N.T., 9/5/14, at

42-43. We emphasize that when assessing the sufficiency of the evidence,

the factfinder “is free to believe all, part or none of the evidence.”

Commonwealth v. Garland, 63 A.3d 339, 345 (Pa. Super. 2013)



                                   - 14 -
J-A25008-15


(quotations and citation omitted). Here, the trial court credited Joyner’s trial

testimony that she sustained $3,000 in property damage. See N.T., 9/5/14,

at 67.   By conceding that it incorrectly graded Upshaw’s criminal mischief

conviction as a third-degree felony, the trial court implicitly discredited

Joyner’s statement to police that her home sustained $20,000 worth of

damage during the burglary. Accordingly, the record does not support the

Commonwealth’s assertion that the property sustained $20,000 worth of

damage.

      Because the trial court imposed Upshaw’s probationary sentence for

criminal mischief consecutive to his probationary sentence for burglary, our

disposition has disturbed the trial court’s overall sentencing scheme.

Accordingly, we vacate Upshaw’s judgment of sentence in its entirety and

remand for resentencing on all charges. See Commonwealth v. Williams,

997 A.2d 1205, 1210–11 (Pa. Super. 2010) (“if a correction by this Court

may upset the sentencing scheme envisioned by the trial court, the better

practice is to remand [for resentencing]”) (internal quotations, citations, and

corrections omitted).

      Judgment    of    sentence   vacated.    Case    remanded    for   further

proceedings consistent with this memorandum. Jurisdiction relinquished.

      Mundy, J. joins the Memorandum.

      Fitzgerald, J. concurs in the result.




                                     - 15 -
J-A25008-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2015




                          - 16 -
