J-S36017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MARVIN M. JACKSON

                            Appellant                   No. 1501 WDA 2014


              Appeal from the Judgment of Sentence April 4, 2014
              In the Court of Common Pleas of Allegheny County
                Civil Division at No(s): CP-02-CR-0007398-2012

BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                                FILED JULY 21, 2015

        Following a bench trial, the trial court found Marvin Jackson guilty of

burglary,1 criminal trespass,2 theft by unlawful taking,3 receiving stolen

property4 and criminal mischief.5          The court sentenced Jackson to 35-70

months’ imprisonment and five years’ consecutive probation for burglary and

imposed no further penalty on the remaining convictions.           Jackson filed

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3502(a)(2).
2
    18 Pa.C.S. § 3503.
3
    18 Pa.C.S. § 3921.
4
    18 Pa.C.S. § 3925.
5
    18 Pa.C.S. § 3304.
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timely post-sentence motions challenging the weight of the evidence, which

were denied by operation of law.      Jackson filed a timely notice of direct

appeal and a timely Pa.R.A.P. 1925(b) statement.       The trial court filed a

Pa.R.A.P. 1925(a) opinion reasoning that the evidence was sufficient to

support Jackson’s convictions, and that the evidence did not shock its

conscience. In this appeal, Jackson challenges the sufficiency and weight of

the evidence underlying his convictions. We affirm.

        The following evidence was adduced during trial: upon returning home

on the evening of May 10, 2012 following a nearly two-week work trip to

Washington, D.C, Dawn DePasquale discovered that someone had broken

into her home at 2415 Marbury Road, Churchill Borough, while she was

gone.     N.T., 11/20/13, at 7-9, 19-20. DePasquale found her bedroom

ransacked, with drawers turned over and jewelry boxes strewn about. Id.

at 8, 22-23. Jewelry, two flat-screen television sets and multiple computers

were missing, along with cash and other items.        Id. at 8, 18-19.    The

approximate value of the missing items was $10,000.00. Id. at 9.

        Nobody was permitted to enter DePasquale’s residence while she was

away except her cleaning service, Affordable Maids.      Id.   An Affordable

Maids employee visited the residence once while DePasquale was away and

reported that everything appeared to be in order. Id. at 20. Jackson does

not work for Affordable Maids. Id. at 19.

        DePasquale’s bedroom could be accessed through a set of sliding glass

doors that led out to her backyard. Id. at 8, 11, 23. The doors were out of

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sight of most neighbors. Id. at 8, 11, 23-24. The screen had been intact

and the doors had been closed prior to DePasquale leaving town. Id. at 8,

22-23.   Upon her return, however, the doors, including the screen door,

were open, and the screen had been cut.           Id. at 8, 11.     DePasquale

contacted police, and the next day, a forensic team from the District

Attorney’s Office processed the crime scene for fingerprints. Id. at 24. The

team found a fingerprint belonging to Jackson on the locking mechanism of

the sliding screen door inside the location where the screen had been cut.

Id. at 26.

      Jackson was arrested and charged with burglary.         Id.   He told the

officer investigating the burglary, Officer Fabrizi, that he had not been in the

Churchill Borough area since January and had never been to 2415 Marbury

Road. Id. at 30. At that point, the officer told Jackson that his fingerprint

was found at that location. Jackson replied that if he had done a burglary,

he would have worn gloves. Id. at 30-31.

      At the preliminary hearing several days later, Jackson told Officer

Fabrizi that his memory had been jogged, and that he may have been at

DePasquale’s home on a prior occasion doing some work for a man named

“D”. Id. at 31. Officer Fabrizi mentioned this information to DePasquale,

who said that she had a past relationship with a man who went by the name

“D” — Dennis Seraly — but she did not recall Jackson. Id. at 13-14, 31. A

few months later, DePasquale contacted Officer Fabrizi and told him that it


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was possible that Jackson had been at her home on one occasion nine

months before the burglary, when Seraly brought a man to her house to

move and reassemble a piece of furniture.         Id. at 10, 13-14, 31-32.

DePasquale stated, however, that Jackson would not have had access to the

sliding doors in the bedroom on that date, because they were blocked by

other pieces of furniture at that time. Id. at 12-13.

            Jackson raises two issues in this appeal:

            Did the Commonwealth present insufficient evidence
            to establish beyond a reasonable doubt that []
            Jackson committed each of the counts [for] which he
            was convicted?

            Was the verdict rendered so contrary to the evidence
            that it shocks one’s sense of justice and the award of
            a new trial is imperative so that right may be given
            another opportunity to prevail?

Brief For Appellant, p. 4.

      Our standard of review for a challenge to the sufficiency of the

evidence is:

            [W]hether[,] viewing all the evidence admitted at
            trial   in    the  light most     favorable   to  the
            [Commonwealth as the] verdict winner, there is
            sufficient evidence to enable the fact-finder to find
            every element of the crime beyond a reasonable
            doubt. In applying [the above] test, we may not
            weigh the evidence and substitute our judgment for
            the fact-finder. In addition, we note that the facts
            and       circumstances     established     by    the
            Commonwealth need not preclude every possibility
            of innocence. Any doubts regarding a defendant’s
            guilt may be resolved by the fact-finder unless the
            evidence is so weak and inconclusive that as a
            matter of law no probability of fact may be drawn

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            from    the    combined       circumstances.    The
            Commonwealth may sustain its burden of proving
            every element of the crime beyond a reasonable
            doubt by means of wholly circumstantial evidence.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations

omitted); see also Commonwealth v. Bostick, 958 A.2d 543, 560

(Pa.Super.2008) (quoting Commonwealth v. Smith, 956 A.2d 1029, 1035-

36 (Pa.Super.2008)).

     The burglary statute provides in relevant part: “A person commits the

offense of burglary if, with the intent to commit a crime therein, [he] …

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.” 18 Pa.C.S. § 3502(a)(2). We will

uphold a burglary conviction “where fresh fingerprints are found at the place

of illegal entry to private burglarized premises where a defendant’s presence

is unexplained.”   Commonwealth v. Donohue, 62 A.3d 1033, 1036

(Pa.Super.2013).    “Similarly, if the prints are discovered in a place

accessible only by force or on objects that the defendant could not have

contacted under legitimate circumstances, a conviction will be upheld.” Id.

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

is sufficient to establish Jackson’s guilt for burglary. DePasquale’s bedroom

in her residence was accessible by a sliding screen door that led out to her

backyard.   The door was closed when DePasquale left on her trip but was

open on her return. The screen on this door was intact when DePasquale

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left but was cut on her return.    Jackson’s fingerprint was found on the

locking mechanism of the door. DePasquale’s bedroom was ransacked, and

approximately $10,000.00 in jewelry, televisions, computers, cash and other

items were stolen. The only persons whom DePasquale permitted inside her

residence during her trip were Affordable Maids employees, but Jackson did

not work for Affordable Maids. There was no innocent explanation for the

presence of Jackson’s fingerprint on the sliding screen door at the crime

scene. The burglarized premises were a private residence, and Jackson had

no right to be there.   Thus, Jackson’s challenge to the sufficiency of the

evidence underlying his burglary conviction fails.    Donohue, 62 A.3d at

1037 (evidence of defendant’s fingerprints on opened bottle of soda that

victim had left inside kitchen cabinet of home, by itself, was sufficient to

support convictions for burglary and related offenses, where victim did not

know defendant and had not given him permission to enter home, bottle was

unopened when victim left residence, and there was no innocent explanation

for presence of defendant’s fingerprints); Commonwealth v. Price, 420

A.2d   527,   529-30    (Pa.Super.1980)   (evidence   sufficient   to   support

convictions for burglary and theft by unlawful taking, where all doors were

locked and windows closed when complainants left their house, house was

ransacked and certain items were missing when they returned, police

discovered defendant’s fingerprint on television set in living room near open

window, complainant wife had not given anyone permission to enter the


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house and did not know defendant, and defendant was unable to explain

presence of his fingerprint on television).

      Jackson contends that the evidence against him was insufficient,

because he could have innocently left his fingerprint on the locking

mechanism of the screen door nine months earlier on the day he helped “D”

move furniture in DePasquale’s house. DePasquale refuted this claim at trial

by testifying that there was “no way” that Jackson could have accessed the

door on that occasion because the door was blocked at that time by other

furniture.    Jackson offers that the bedroom doors likely were only blocked

from the inside, not the outside, suggesting that he could have left his

fingerprints there in an attempt to enter from the outside nine months

earlier.     Under the sufficiency of the evidence standard, Jackson is not

entitled to this inference, because we must view the record in the light most

favorable to the Commonwealth. DePasquale stated in no uncertain terms

that the doors were blocked and inaccessible to Jackson nine months before

the burglary, and it is not for him to suggest that they were perhaps only

blocked on one side during the remodeling project.

      The same evidence supports Jackson’s conviction for theft by unlawful

taking under 18 Pa.C.S. § 3921, which provides: “A person is guilty of theft

if he unlawfully takes, or exercises unlawful control over, movable property

of another with intent to deprive him thereof.” The evidence demonstrates

that Jackson broke into DePasquale’s residence and took multiple types of


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movable property (jewelry, televisions, computers, cash and other items)

with intent to deprive DePasquale of this property.

      Jackson waived his challenge to the sufficiency of the evidence

underlying his other convictions for criminal trespass, receiving stolen

property and criminal mischief by failing to challenge these convictions in his

Pa.R.A.P. 1925(b) statement.     See Commonwealth v. Carpenter, 955

A.2d 411, 415 (Pa.Super.2008) (defendant waived challenge to sufficiency of

evidence underlying conspiracy conviction by failing to place this claim in

court-ordered statement of errors complained of on appeal).

      Jackson’s second argument on appeal is that he is entitled to a new

trial because the verdict is contrary to the weight of the evidence.       The

weight of the evidence is a matter exclusively for the finder of fact, who is

free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses. Commonwealth v. Forbes, 867 A.2d 1268,

1273–74 (Pa.Super.2005). A new trial is not warranted because of “a mere

conflict in the testimony” and must have a stronger foundation than a

reassessment of the credibility of witnesses. Commonwealth v. Bruce, 916

A.2d 657, 665 (2007). Rather, the role of the trial judge is to determine that

notwithstanding all the facts, certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny

justice. Id. On appeal, “our purview is extremely limited and is confined to

whether the trial court abused its discretion in finding that the jury verdict


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did not shock its conscience. Thus, appellate review of a weight claim

consists of a review of the trial court’s exercise of discretion, not a review of

the underlying question of whether the verdict is against the weight of the

evidence.” Commonwealth v. Knox, 50 A.3d 732, 738 (Pa.Super.2012).

An appellate court may not reverse a verdict unless it is so contrary to the

evidence as to shock one’s sense of justice. Forbes, 867 A.2d at 1273–74.

      Jackson claims that the verdict shocks the conscience because the

“only evidence” linking him to the burglary was the fingerprint at a home

that he had permission to enter on one occasion nine months earlier. Brief

for Appellant, at 16.    We disagree.     Not only was Jackson’s fingerprint

present, but it was also on the same screen door that was slashed in order

for the perpetrator to gain illegal entry into the home – a door to which

Jackson did not have access during his visit nine months earlier. It also is

logical to infer that if Jackson had left a fingerprint nine months earlier, it

would not have been recoverable due to exposure to the elements. It also is

significant that upon his arrest, Jackson falsely stated that he had never

been to DePasquale’s residence. He only admitted that he had been there

after the investigating officer confronted him with the evidence of his

fingerprint.   The implausibility of Jackson’s contention that he left the

fingerprint on the door nine months before the burglary, combined with his

dishonest answer to the investigating officer following his arrest, severely

damages the credibility of his position. The trial court thus acted within its


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discretion by determining that the evidence did not shock its conscience.

Johnson is not entitled to a new trial.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2015




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