J. S62035/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
JOSHUA RYAN CRESSWELL,                    :          No. 739 WDA 2019
                                          :
                          Appellant       :


          Appeal from the Judgment of Sentence Entered April 5, 2019,
                in the Court of Common Pleas of Mercer County
               Criminal Division at No. CP-43-CR-0001174-2018


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED FEBRUARY 14, 2020

        Joshua Ryan Cresswell appeals from the April 5, 2019 judgment of

sentence entered in the Court of Common Pleas of Mercer County after a jury

convicted appellant of burglary, theft by unlawful taking, and criminal

trespass.1    Appellant was sentenced to an aggregate 48 to 120 months’

incarceration with no credit for time served. We affirm.

        The sentencing court summarized the factual history as follows:

              The crimes of which [appellant] was convicted were
              committed on Memorial Day, May 28, 2018. The
              victim [] lives in a [d]uplex apartment alone. She had
              recently arrived home after visiting her son in the
              hospital and she went outside around dusk to take
              down her flag. She saw a young man wearing a blue
              shirt walking near a line of pine trees that were
              approximately 100 yards from her garage. There was
              a brief exchange between [her] and the young man.

1   18 Pa.C.S.A. §§ 3502(a)(1)(ii), 3921(a) and 3503(a)(1)(i), respectively.
J. S62035/19


           The victim then went to water her plants in front of
           her apartment, after which she cut through the
           apartment and specifically her office in order to go and
           water her plants in the rear of the apartment. She
           then saw the young man, who was wearing the same
           shirt, inside of her office. The victim did not clearly
           see the man’s face because he had his shirt pulled up
           to his nose. She did however notice that the man had
           tattoos. The man ran down a hallway and out a
           garage door, then he went towards the Busy Beaver
           home improvement store which was approximately
           100 yards from the row of pine trees. The victim
           realized that a number of items were missing from her
           purse, including a Kindle Fire device, a wallet, cash, a
           driver’s license, and various cards. The man did not
           have permission to be in the victim’s home. The
           victim called 911.

           Officer Daniel McCloskey, a Patrolman with the
           Hempfield Township Police Department responded
           and met with the victim. The victim described the
           man to the officer as having dark hair, a blue shirt,
           glasses, and tattoos on his arms. Officer McCloskey
           was able to obtain video and photos from
           Busy Beaver[,] which has conspicuous surveillance
           cameras on its property. Commonwealth’s Exhibit 1B
           is a blown up photograph from the Busy Beaver[,]
           which shows a man with dark hair, glasses, a blue
           shirt and tattoos. Commonwealth’s Exhibit 1C is
           another blown up photograph from Busy Beaver
           depicting what appears to be the same man as in
           Commonwealth’s Exhibit 1B but with his shirt over his
           head and covering his face. Tattoos are also visible
           on the man’s right and left arms in Commonwealth’s
           Exhibit 1C. Officer McCloskey circulated a photograph
           of the man obtained from Busy Beaver to law
           enforcement agencies, after which Officer McCloskey
           met with [appellant] and identified [appellant] as the
           man in the photograph.

Sentencing court opinion, 6/28/19 at 3-4.




                                    -2-
J. S62035/19


      The record reveals that on June 4, 2018, appellant was taken into

custody and subsequently charged with the aforementioned crimes at trial

court docket CP-43-CR-0001174-2018 (“CR-1174-2018”).          Also on June 4,

2018, appellant was found to be in possession of drug paraphernalia, a

violation of 35 P.S. § 780-113(a)(32), and subsequently charged with this

crime at trial court docket CP-XX-XXXXXXX-2018 (“CR-1173-2018”).

      On February 5, 2019, appellant plead guilty to possession of drug

paraphernalia at CR-1173-2018.       On March 13, 2019, a jury convicted

appellant of one count each of burglary, theft by unlawful taking, and criminal

trespass at CR-1174-2018. On April 5, 2019, the sentencing court sentenced

appellant, at CR-1173-2018, to 150 to 304 days’ incarceration.             The

sentencing court calculated appellant’s credit for time served to be 304 days

and appellant concurred with this calculation. (Notes of testimony, 4/5/19 at

14.) The sentencing court applied the entire credit to the sentence imposed

at CR-1173-2018. Finding that appellant served the maximum sentence at

CR-1173-2018, the sentencing court closed CR-1173-2018. On the same day,

appellant was also sentenced at CR-1174-2018 to an aggregate 48 to 120

months’ incarceration in a state correctional institution and ordered to pay

costs and restitution. At CR-1174-2018, appellant received no credit for time

served. Appellant did not file any post-sentence motions at CR-1174-2018.

      Appellant filed a timely notice of appeal at CR-1174-2018.           The

sentencing court ordered appellant to file a concise statement of errors



                                     -3-
J. S62035/19


complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Appellant timely

complied. The sentencing court subsequently filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

         1.    Did the [sentencing] court err as a matter of law or
               abuse its discretion in failing to allocate any credit
               for time served in the present matter when
               [a]ppellant had bail set in this matter and failed to
               post said bail at any time during the proceedings
               of the case, and the [sentencing] court instead
               allocated all credit time to a separate case, being
               Case No. CP-43-CR-0001173-2018, which events
               leading to [a]ppellant’s arrest occurred after the
               events of the present matter?

         2.    Could a reasonable jury have found [a]ppellant
               guilty based on the sufficiency of the evidence by
               which [appellant] was identified as the perpetrator
               of the crime through the testimony of Hempfield
               Township Police Officer McCloskey?

         3.    Could a reasonable jury have found [a]ppellant
               guilty based on the sufficiency of the evidence by
               which [appellant] was identified as the perpetrator
               of the crime through the testimony of the victim,
               who had no prior knowledge of [a]ppellant, was not
               able to identify [a]ppellant to police, and was not
               presented with any sort of lineup to identify
               [a]ppellant as the perpetrator of the crime?

Appellant’s brief at 3-4.

      In his first issue, appellant contends the sentencing court erred in

allocating the 304 days of credit for time served to the sentence imposed at

CR-1173-2018. (Id. at 11.) Appellant argues that because the crimes at

CR-1174-2018 occurred first and that he was arrested for those crimes first,

the sentencing court should have allocated the credit for time served to the



                                      -4-
J. S62035/19


sentence imposed at CR-1174-2018 and not at CR-1173-2018 or at a

minimum allocated a portion of the credit for time served to both cases. (Id.)

      This court has held that a claim asserting that the sentencing court failed

to properly award credit for time served implicates the legality of sentence.

Commonwealth v. Gibbs, 181 A.3d 1165, 1166 (Pa.Super. 2018) (citation

omitted). Issues relating to the legality of sentence are questions of law and

our standard of review is de novo and our scope of review is plenary. Id.

(citation omitted).   Section 9760 of the Sentencing Code governing how a

sentencing court applies credit for time served states, in pertinent part,

            (1)    Credit against the maximum term and any
                   minimum term shall be given to the defendant
                   for all time spent in custody as a result of the
                   criminal charge for which a prison sentence is
                   imposed or as a result of the conduct on which
                   such a charge is based. Credit shall include
                   credit for time spent in custody prior to trial,
                   during trial, pending sentence, and pending the
                   resolution of an appeal.

            ....

            (4)    If the defendant is arrested on one charge and
                   later prosecuted on another charge growing out
                   of an act or acts that occurred prior to his arrest,
                   credit against the maximum term and any
                   minimum term of any sentence resulting from
                   such prosecution shall be given for all time
                   spent in custody under the former charge that
                   has not been credited against another sentence.

42 Pa.C.S.A. §9760(1) & (4). This court has held that “a defendant shall be

given credit for any days spent in custody prior to the imposition of sentence,

but only if such commitment is on the offense for which sentence is imposed.


                                       -5-
J. S62035/19


Credit is not given, however, for a commitment by reason of a separate and

distinct offense.”   Commonwealth v. Richard, 150 A.3d 504, 520-521

(Pa.Super. 2016) (original quotation marks omitted), citing Commonwealth

v. Clark, 885 A.2d 1030, 1034 (Pa.Super. 2005). “While in cases involving a

multitude of offenses occurring in quick succession determining which

sentences a defendant is entitled to credit for presentence detainment

becomes more difficult, the general rule regarding the inquiry seems simple

enough - a defendant is entitled to credit only once for presentence

detainment.”     Commonwealth v. Davis, 852 A.2d 392, 400 (Pa.Super.

2004) (emphasis added; citation omitted), appeal denied, 686 A.2d 1197

(Pa. 2005). When credit for time served is attributed equally to more than

one set of offenses and each set of offenses results in the imposition of distinct

sentences, the credit for time served may be applied to any one of the

sentences.   Commonwealth v. Smith, 853 A.2d 1020, 1026 (Pa.Super.

2004), relying on Martin v. Pennsylvania Bd. of Prob. and Parole, 840

A.2d 299 (Pa. 2003).

      Here, the record demonstrates that appellant was sentenced at both

CR-1173-2018 and CR-1174-2018 on April 5, 2019. Appellant agreed that he

was to receive a credit of 304 days for time served. (Notes of testimony,

4/5/19 at 14.) The offenses in each case occurred in quick succession and

the period of time appellant served applied equally to both sets of offenses.

The sentencing court choose to apply the entire 304 days of credit for time



                                      -6-
J. S62035/19


served to the sentence imposed at CR-1173-2018 and closed that case.

Having applied the entire credit for time served at CR-1173-2018, the

sentencing court was without any remaining balance of credit for time served

to apply at CR-1174-2018. Appellant agreed he was to receive no credit for

time served at CR-1174-2018. (Id. at 16.) Based upon the record, we discern

no error of law in the sentence imposed on appellant at CR-1174-2018.

      Appellant raises insufficient evidence claims in his second and third

issues challenging the element of his identification as the perpetrator.

(Appellant’s brief at 11-16.) Our standard and scope of review for a sufficiency

of the evidence claim is well settled.

            The standard we apply in reviewing the sufficiency of
            the evidence is whether viewing all the evidence
            admitted at trial in the light most favorable to 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 from the
            combined circumstances. The Commonwealth may
            sustain its burden of proof or proving every element
            of the crime beyond a reasonable doubt by means of
            wholly circumstantial evidence. Moreover, in applying
            the above test, the entire record must be evaluated
            and all the evidence actually received must be
            considered. Finally, the trier of fact while passing
            upon the credibility of witnesses and the weight of the
            evidence produced, is free to believe all, part or none
            of the evidence.


                                         -7-
J. S62035/19



Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)

(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004). In criminal

cases, our supreme court has held that:

            [p]roof beyond a reasonable doubt of the identity of
            the accused as the person who committed the crime
            is essential to a conviction.         The evidence of
            identification, however, needn’t be positive and
            certain in order to convict, although any indefiniteness
            and uncertainty in the identification testimony goes to
            its weight. Direct evidence of identity is, of course,
            not necessary and a defendant may be convicted
            solely on circumstantial evidence.

Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (citations

omitted).

      Here, the record demonstrates that the victim was able to provide

Officer McCloskey with a description of the intruder in her home, including that

the intruder was wearing a blue shirt and glasses, had dark hair, and had

tattoos on his arms. (Notes of testimony, 3/12/19 at 9, 11-12, 20; 3/13/19

at 70.) The victim, however, was unable to see the intruder’s face because

he had his shirt pulled up over his nose. (Notes of testimony, 3/12/19 at 11.)

Upon discovery, the intruder fled the victim’s duplex and ran towards the

Busy Beaver store. (Id. at 12.) Officer McCloskey, upon reviewing the video

surveillance of the area surrounding the Busy Beaver store, observed a man

matching the victim’s description of the perpetrator walking at a time in close

proximity to the occurrence of the home invasion.       (Id. at 33-35, 37-39;

3/13/19 at 47.) The man in the video surveillance was identified as appellant,


                                     -8-
J. S62035/19


and Officer McCloskey stated that his comparison of appellant’s driver’s license

photo confirmed appellant was the man observed in the video surveillance.

(Notes of testimony, 3/12/19 at 36-37; 3/13/19 at 62.)

      In   viewing   the   evidence   in   the   light   most   favorable   to   the

Commonwealth, as verdict winner, we find there was sufficient evidence to

enable the jury, as fact-finder, to determine that appellant was the intruder

the victim found in her home on the day of the home invasion. Therefore,

appellant’s sufficiency claims are without merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2020




                                      -9-
