J-S68002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    ASHA JONES                                      :
                                                    :
                       Appellant                    :   No. 1203 WDA 2018

         Appeal from the Judgment of Sentence Entered March 19, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0007647-2017


BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                            FILED FEBRUARY 04, 2020

        Asha Jones (Jones) appeals from the judgment of sentence imposed by

the Court of Common Pleas of Allegheny County (trial court) after her bench

trial convictions for burglary and conspiracy. On appeal, she challenges the

sufficiency of evidence for both convictions. After review, we find sufficient

evidence for conspiracy but vacate her burglary conviction and sentence and

remand for resentencing.

                                               I.

        On March 24, 2017, around 2:00 a.m., two men used a key to enter the

front entrance of a McDonald’s in downtown Pittsburgh. They went to the

circuit breaker to turn on the lights and opened the store’s electronic safe by


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*   Retired Senior Judge assigned to the Superior Court.
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using a magnetic key fob and pin code. The two men stole about $4,600 and

then left after being inside for only ten minutes. Two hours later, the opening

manager discovered the emptied safe and called the police.

       The police viewed surveillance footage of the burglary but could not

identify the two men. They did, however, find two key fobs near the safe.

One belonged to the general manager, Kiesha Wiley (Wiley); the other

belonged to Jones, who was a shift manager and had worked the day before.

Wiley called the safe company and confirmed that the burglars used Jones’s

key fob to open the safe. After the burglary, Jones never showed up for work

again nor did she give notice that she was quitting. She returned her front

entrance key a few weeks later but did so only after being contacted by the

store’s owner. She was eventually charged with burglary (not adapted for

overnight accommodations, no person present) and conspiracy to commit

burglary.1

       At Jones’s bench trial, Wiley testified that neither the circuit breaker nor

the safe could be seen by customers, implying that the burglars had advance

information. Wiley also explained that opening the safe required entering a

four-digit pin that was unique to each key fob.         Each shift manager was

assigned their own key fob and was not to share it with anyone else; if one



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1 18 Pa.C.S. §§ 3502(a)(4), 903(a)(1).           Both counts were second-degree
felonies. 18 Pa.C.S. § 3502(a)(c)(2)(i).


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was stolen or lost, then it was to be reported to Wiley so it could be

deactivated. However, Jones had never reported hers as being lost or stolen.

       Jones did not testify but did call Assata Liddell (Liddell), who worked at

McDonald’s at the time of the burglary.          She testified that shift managers

would often borrow each other’s key fob and leave it near the safe. All shift

managers, therefore, knew each other’s pin code. Jones contended that this

explained how her key fob could have come to be used in the burglary. Finding

this claim unpersuasive, the trial court found Jones guilty of both offenses and

sentenced her to two years’ probation for burglary and no further penalty for

conspiracy. After the denial of post-sentence motions, Jones appealed to raise

sufficiency challenges to both convictions.2


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2 In reviewing the sufficiency of the evidence, our standard of review is as
follows:

       The standard of review for a challenge to the sufficiency of the
       evidence is to determine whether, when viewed in a light most
       favorable to the verdict winner, the evidence at trial and all
       reasonable inferences therefrom is sufficient for the trier of fact to
       find that each element of the crimes charged is established beyond
       a reasonable doubt. The Commonwealth may sustain its burden
       of proving every element beyond a reasonable doubt by means of
       wholly circumstantial evidence.

       The facts and circumstances established by the Commonwealth
       need not preclude every possibility of innocence. Any doubt raised
       as to the accused’s guilt is to be resolved by the fact-finder. As
       an appellate court, we do not assess credibility nor do we assign
       weight to any of the testimony of record. Therefore, we will not
       disturb the verdict unless the evidence is so weak and inconclusive



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                                               II.

                                               A.

       We address Jones’s conspiracy conviction first. Conspiracy is defined in

the Crimes Code as follows:

       (a) Definition of conspiracy.--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. § 903(a).

       To sustain a conviction for criminal conspiracy, “the Commonwealth

must establish that the defendant (1) entered into an agreement to commit

or aid in an unlawful act with another person or persons, (2) with a shared

criminal intent and, (3) an overt act was done in furtherance of the

conspiracy.”    Commonwealth v. Fisher, 80 A.3d 1186, 1190 (Pa. 2013)

(citation omitted).

       [T]he essence of a criminal conspiracy is a common
       understanding, no matter how it came into being, that a particular
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       that as a matter of law no probability of fact may be drawn from
       the combined circumstances.

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)
(citations and quotation marks omitted).


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      criminal objective be accomplished. Therefore, a conviction for
      conspiracy requires proof of the existence of a shared criminal
      intent. An explicit or formal agreement to commit crimes can
      seldom, if ever, be proved and it need not be, for proof of a
      criminal partnership is almost invariably extracted from the
      circumstances that attend its activities. Thus, a conspiracy may
      be inferred where it is demonstrated that the relation, conduct, or
      circumstances of the parties, and the overt acts of the co-
      conspirators sufficiently prove the formation of a criminal
      confederation. The conduct of the parties and the circumstances
      surrounding their conduct may create a web of evidence linking
      the accused to the alleged conspiracy beyond a reasonable doubt.

Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018) (citation

omitted).

      Preliminarily, the circumstances of the crime suggested that the burglars

conspired with someone working at McDonald’s: they had a front entrance

key; they knew where to go for the circuit breaker and the safe; they knew

how to use the circuit breaker to turn on the lights; and they had a key fob

for the safe and knew its unique four-digit pin code. All of this was sufficient

to prove that the burglars conspired with someone who worked at McDonald’s;

the only question left was whether it was Jones and not someone else.

      Viewing the evidence in the light most favorable to the Commonwealth,

there was sufficient evidence to conclude that Jones conspired with the

burglars. That it was her key fob and not some other manager’s used in the

burglary directly links her to the crime. In the absence of an explanation for

why her key fob was used to open the safe—especially since it had never been

reported stolen or missing—the trial court could conclude that Jones gave it

to the burglars along with her pin code. In this sense, this case is similar to

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those where the defendant’s fingerprints are found at the scene of a burglary.

In those instances, this Court has found that unless there is a credible innocent

explanation for how the fingerprints were at the scene of a burglary, then the

factfinder has sufficient evidence to conclude that the defendant was involved

in the burglary. See, e.g., Commonwealth v. Donohue, 62 A.3d 1033,

1037 (Pa. Super. 2013) (finding sufficient evidence to convict defendant of

burglary where his fingerprints were found on a soda bottle of a private home

that was burglarized).

       Additionally, Jones never showed up for work after the burglary.3

Because this occurred immediately after the crime, the trial court could infer

from the timing of Jones quitting her job that it was connected to and not

coincidental to the crime, thus evidencing a consciousness of guilt. Further,

the fact that Jones never gave notice that she was quitting could, viewed in

the light most favorable to he Commonwealth, be inferred as evidence of her

involvement in the burglary. Taken together, these facts make any potential

innocent explanation for her key fob being used in the burglary less believable.

       Jones argued at trial that it was equally possible that someone else who

worked at McDonald’s conspired with the burglars.        Her basis for this was



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3 Jones notes that Liddell testified that Jones appeared for her regularly
scheduled shift after the burglary. However, this was contradicted by Wiley’s
testimony that Jones did not show for work at all after the burglary, including
on March 24, 2017, and the trial court as factfinder was free to so conclude.


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Liddell’s testimony that the shift managers knew each other’s pin codes and

would borrow and leave their key fobs near the safe. However, Liddell testified

only that this sometimes occurred; she did not testify that Jones left her key

fob for another manager the night before the burglary on March 23, 2017. On

this point, the relevant evidence was that Jones worked the day shift and that

she finished her shift before McDonald’s closed that night at 11:00 p.m.

Beyond this, there was no evidence that Jones left her key fob for another

manager. In the absence of such evidence, the trial court was not precluded,

as Jones seems to believe, from convicting her of conspiracy.

      Finally, Jones argues that reversal of her conspiracy conviction is

compelled by Commonwealth v. Chambers, 188 A.3d 400 (Pa. 2018), and

Commonwealth v. Swerdlow, 636 A.2d 1173 (Pa. Super. 1994).

Chambers is readily distinguishable, as it involved a street fight with multiple

participants. Swerdlow, meanwhile, is a bit more analogous but not enough

to compel a different outcome.       There, the defendant lived in a house

neighboring two homes that were burglarized. The police determined that the

burglar, who was a guest at the defendant’s home, used a connecting

crawlspace. This Court reversed the conspiracy conviction, finding there was

no evidence that the defendant agreed with the burglar to rob the neighbors’

homes. Absent evidence of such an agreement, it was speculative to conclude

that the burglar accessed the neighboring homes with the help of the

defendant. See Swerdlow, supra at 1177-78.


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      Swerdlow is similar in that there is no direct evidence of an agreement

between Jones and the burglars. However, in this case, there was evidence

that it was Jones’s key fob that was used to open the safe, thus directly linking

her to the burglary. Combined with the lack of a credible explanation for how

her key fob came to be used, as well as her abruptly quitting work, Swerdlow

is factually distinguishable.

      In sum, we find that there was sufficient evidence to convict Jones of

conspiracy based on: (1) her key fob and four-digit pin being used in the

burglary; (2) her abruptly quitting her job and not giving notice immediately

after the burglary; and (3) the lack of any evidence that she left her key fob

out the night before the burglary.

                                       B.

      Jones also raises a sufficiency challenge to her burglary conviction.

Under the subsection charged in this case, a person commits the offense of

burglary if, with the intent to commit a crime, the person “enters a building

or occupied structure, or separately secured or occupied portion thereof that

is not adapted for overnight accommodations in which at the time of the

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

Jones argues that the Commonwealth failed to present sufficient evidence to

convict her of burglary, as there was no evidence that she was one of the

burglars who entered McDonald’s. We agree.




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      We first observe that there was no real dispute whether she was one of

the burglars. Although the Commonwealth did not present the surveillance

footage at trial, Pittsburgh Police Detective Patrick Moffatt testified to viewing

the footage and that it showed the burglars were men. See N.T., 3/19/18, at

39-40.   Because of the surveillance footage, the Commonwealth conceded

that there was no direct evidence that Jones was one of the burglars. See id.

at 66. Thus, for this Court to sustain the burglary conviction, it would need

to be under a theory of vicarious criminal liability.     Recognizing this, the

Commonwealth urges this Court to sustain the conviction by finding sufficient

evidence under accomplice liability. See 18 Pa.C.S. § 306(b)(3) (“A person

is legally accountable for the conduct of another person when … he is an

accomplice of such other person in the commission of the offense.”).          We

decline to do so.

      As Jones notes in her brief, the Commonwealth did not charge her with

committing burglary as an accomplice. Instead, in its criminal information,

the Commonwealth made the following allegation for burglary:

      [Jones], with the intent to commit a crime therein, entered a
      building or occupied structure, namely, McDonald’s located at 500
      Liberty Avenue, Pittsburgh, PA 15222, or a separately secured or
      occupied portion thereof, that was not adapted for overnight
      accommodation, in which, at the time, no person was present, in
      violation of Sections 3502(a)(4) and (c)(2) of the Pennsylvania
      Crimes Code, Act of December 6, 1972, 18 Pa.C.S. §§ 3502(a)(4)
      and (c)(2), amended.

Criminal Information, 8/9/17, at 2.




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       The Commonwealth never sought to amend its information before or

during trial, nor did it argue to the trial court that Jones be found guilty of

burglary as an accomplice. In fact, the first time that the notion of accomplice

liability was raised in this case was by Jones in her Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.

       Despite this being the case, the Commonwealth urges this Court to find

sufficient evidence to convict for burglary because this Court can affirm a trial

court on any valid basis appearing of record. Jones, however, cites two cases,

Commonwealth        v.   Frey,   412    A.2d    629   (Pa.   Super.   1979),   and

Commonwealth v. Chambers, 188 A.3d 400 (Pa. 2018), that undercuts the

Commonwealth’s request that we overlook that it never charged Jones as an

accomplice for burglary.

       In Frey, the defendant was convicted by a jury of unauthorized use of

an automobile but the trial court granted an arrest of judgment because he

never drove the car.       On appeal, the Commonwealth argued that the

defendant was convicted as an accomplice, even though he was not charged

as one. This Court rejected this argument, noting that the Commonwealth

had never requested an accomplice instruction at trial.        Consequently, the

defendant’s conviction could not be sustained on accomplice grounds since he

had no notice to defend against such grounds and the jury had not been

instructed that it could convict him as an accomplice. See Frey, supra at

630.


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      Meanwhile, in Chambers, our Supreme Court reversed a panel of this

Court which had affirmed a defendant’s aggravated assault with a deadly

weapon conviction on co-conspiratorial and accomplice liability theories,

neither of which had been charged. Finding there was insufficient evidence to

establish that the defendant conspired with the person who assaulted the

victim, the Chambers majority went on to criticize the panel for finding

sufficient evidence to convict on accomplice liability grounds:

      We also find the Superior Court’s accomplice liability rationale to
      be flawed. The panel held that it “agree[d]” with the trial court’s
      holding that Chambers was liable for the mace-spraying woman’s
      actions as an accomplice. But the trial court made no such
      holding. The trial court’s verdict was based upon conspiratorial
      liability alone, and in no way upon Chambers being an accomplice
      to the mace-wielding woman. Chambers was not charged as an
      accomplice, nor did the Commonwealth pursue a conviction upon
      accomplice liability at trial. In fact, during closing arguments, the
      prosecutor argued that Chambers attempted to cause serious
      bodily injury and should be found guilty of aggravated assault as
      a first-degree felony based upon his own actions.

      Not only did the Commonwealth not pursue accomplice liability at
      trial, it did not do so before the Superior Court either. To the
      contrary, the Commonwealth conceded that the trial court found
      Chambers guilty only as a co-conspirator.            The notion of
      accomplice liability only was introduced into the case by Chambers
      in his Rule 1925(b) statement, presumably as a protective
      measure to avoid waiver when appealing from the trial court’s
      less-than-clear verdict. The trial court did not explain that its
      verdict was based upon conspiratorial liability until its Rule
      1925(a) opinion. Thus, it was reasonable for Chambers to include
      accomplice liability in his Rule 1925(b) statement, if for no other
      reason than to ensure preservation of all potential defenses or
      issues. However, in point of fact, accomplice liability played no
      role in the Commonwealth’s theory of the case, the closing
      arguments, the trial court’s deliberation, or the actual verdicts
      here.


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Chambers, supra at 414-15. (internal citation to record omitted).4

       Besides never charging Jones as an accomplice in its burglary count, the

Commonwealth never argued that Jones be convicted of burglary as an

accomplice, even though there was no direct evidence of her acting as a

principal in the burglary.       Likewise, the trial court has not stated that it

convicted Jones of burglary as an accomplice. Despite this being the case,

the Commonwealth requests this Court to do the very thing that the

Chambers majority disapproved: find sufficient evidence for the defendant’s

conviction on uncharged grounds for which there has not been any notice and

the trial court did not convict on. As a result, because there was insufficient

evidence to convict Jones as a principal in committing the burglary, which is

what she was charged with, we reverse her burglary conviction and sentence.

       Having found sufficient evidence for conspiracy but not burglary, our

decision likely upsets the trial court’s sentencing scheme.       We, therefore,

remand for a new sentencing hearing on Jones’s remaining conviction for

conspiracy.

       Conviction and judgment of sentence vacated for count one (burglary).

Conviction affirmed but judgment of sentence vacated for count two



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4 While the Chambers majority did go on to conduct sufficiency review of
aggravated assault under accomplice liability, we note that it did so after
already concluding that there was insufficient evidence to establish that the
defendant was a co-conspirator to the person who used the deadly weapon.
See Chambers, supra at 415.

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(conspiracy).   Case remanded for resentencing on count two.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/4/2020




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