J-S59036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JERICK MARINEY                             :
                                               :
                       Appellant               :   No. 3305 EDA 2017

          Appeal from the Judgment of Sentence September 5, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0005261-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                              FILED DECEMBER 31, 2018

       Jerick Mariney appeals from the judgment of sentence1 imposed on

September 5, 2014, in the Court of Common Pleas of Philadelphia County

following his conviction by a judge on the charges of burglary, criminal

trespass, conspiracy, attempted theft and criminal mischief.2           Mariney

received an aggregate sentence of 34½ to 69 months’ incarceration followed

by five years of probation. In this appeal, Mariney challenges the sufficiency

of the evidence of all crimes as well as a claim the verdict was against the

weight of the evidence.         After a thorough review of the certified record,

submissions by the parties and relevant law, we affirm.

____________________________________________


1 Mariney’s direct appeal rights were reinstated by order of the PCRA court
on September 17, 2017.

2 18 Pa.C.S. §§ 3502(a)(4), 3503(a)(1)(ii), 903, 901, and 3304(a)(2),
respectively.
J-S59036-18



      We quote the factual history from the Pa.R.A.P. 1925(a) opinion of the

trial court.

      It was shortly after midnight on April 2, 2013, when Philadelphia
      Police Officer Brendan Donahue responded to a motorcycle/dirt
      bike shop at 2008 Clifford Street in Philadelphia. As he pulled up,
      Officer Donahue observed a running white van parked in near the
      shop. He blocked the van with his marked police patrol car and
      approached the van. Although it was running, there was no one
      in the van.

      Officer Donahue then approached the garage doors to the
      motorcycle shop when he noticed flashlights moving around
      inside. He proceeded to hug the wall and pull his gun. The first
      door that he came to was missing a window, and there was broken
      glass on the ground. As he moved along the wall toward the
      garage door, it started to lift up, whereupon the officer
      encountered three males, one of whom was [Mariney]. Several
      ATV or dirt bikes were lined up in the area of the three men as
      they opened the door.

      Officer Donahue identified himself, whereupon all three men fled.
      Two of the men fled eastbound on Montgomery Avenue, while
      [Mariney] ran past the officer and fled west on Montgomery, then
      south on 31st Street.        Officer Donahue gave chase and
      apprehended [Mariney] after about a block, just as backup officers
      arrived on the scene. One of those backup officers was Milor
      Celce, who coincidentally was also a frequent customer of the
      business, where he had work done on his own motorcycle.

      Upon returning to the shop area, Officer Donahue noted pry marks
      and missing paint on another door to the property, located about
      twenty to thirty feet from where the running van was parked. The
      back door was damaged and appeared to have been forced. He
      also examined the van and found it to have an open cargo area
      behind the two front seats.

      Officer Celce, the back-up officer, also examined the property and
      observed damage to the rear door and that one of the front glass
      panes was broken out. He confirmed that two bikes were right at
      the opened garage door, not where they would ordinarily be
      stored based on his familiarity with the operation of the shop.

                                     -2-
J-S59036-18



Trial Court Opinion, 1/30/2017, at 2-3.

     Against this backdrop of evidence, Mariney argues there was insufficient

evidence to convict him of burglary, conspiracy and criminal trespass.

Specifically, he claims the only thing the Commonwealth proved was that he

was in the shop after hours and all other facts needed to convict were merely

rank speculation.

     When addressing a claim of insufficient evidence, we are mindful that:

     A claim impugning the sufficiency of the evidence presents us with
     a question of law. Commonwealth v. Widmer, 560 Pa. 308, 744
     A.2d 745, 751 (2000). Our standard of review is well-established:

         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 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 evidence
         actually received must be considered. Finally, the finder
         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.
     Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa. Super.
     2011) (citing Commonwealth v. Brooks, 7 A.3d 852, 856-57
     (Pa. Super. 2010)). “This standard is equally applicable to cases


                                     -3-
J-S59036-18


      where the evidence is circumstantial rather than direct so long as
      the combination of the evidence links the accused to the crime
      beyond a reasonable doubt.” (Commonwealth v. Sanders, 426
      Pa.Super. 362, 627 A.2d 183, 185 (1993)).            “Although a
      conviction must be based on ‘more than mere suspicion or
      conjecture, the Commonwealth need not establish guilt to a
      mathematical certainty.’ ” Commonwealth v. Gainer, 7 A.3d
      291, 292 (Pa. Super. 2010) (quoting Commonwealth v.
      Badman, 398 Pa.Super. 315, 580 A.2d 1367, 1372 (1990)).

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014).

      The trial court’s Pa.R.A.P. 1925(a) opinion has accurately described the

elements of the crimes and analyzed Mariney’s claims, finding no merit to

them. Our review confirms the trial court’s determinations and we rely on the

trial court’s opinion in this respect. See Trial Court Opinion, 1/30/2017, at 3-

7. Although we rely on the trial court’s opinion, we highlight aspects of that

decision.

      The circumstantial evidence against Mariney was substantial. He was

discovered in a business, after hours, in the middle of the night, using a

flashlight to navigate his way though the building. He and his companions had

left a van, capable of transporting stolen vehicles, running outside the

building. Merchandise was lined up near the garage door, as if being readied

for transport. A window was broken out and a door had pry marks on it,

clearly suggesting, along with all of the other relevant facts, entry was not by

permission.   Finally, consciousness of guilt was established by his and his

companions’ flight.   When viewed in totality, and in the light most favorable

to the Commonwealth as verdict winner, there is no doubt that all the

elements of burglary, criminal trespass and conspiracy have been met.


                                     -4-
J-S59036-18



Mariney’s suggestion that, “[w]hat occurred here is certainly consistent with

[Mariney] and others entering the building so as to examine the very nice

motorcycles that were there,” borders on the nonsensical. Mariney’s Brief at

8.

      Finally, we note that Mariney’s claim the verdict is against the weight of

the evidence has been waived.

      [A] challenge to the weight of the evidence must be preserved
      either in a post-sentence motion, by a written motion before
      sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607(A)(1)-
      (3). “The purpose of this rule is to make it clear that a challenge
      to the weight of the evidence must be raised with the trial judge
      or it will be waived.” Comment to Pa.R.Crim.P. 607. If an appellant
      never gives the trial court the opportunity to provide relief, then
      there is no discretionary act that this Court can review.
      Commonwealth v. Thompson, 93 A.3d 478, 491 (Pa. Super.
      2014). Further, […] , issues not presented in a court-ordered
      Pa.R.A.P. 1925(b) statement are deemed waived on appeal.
      Pa.R.A.P. 1925(b)(4)(vii).

Commonwealth v. Jones, 191 A.3d 830, 834-35 (Pa. Super. 2018)

(footnotes omitted).

      Because Mariney neither raised the issue before the trial court, nor

included it in his Pa.R.A.P. 1925(b) statement, the claim has been waived.

      Judgment of sentence affirmed. Parties are directed to attach a copy of

the January 30, 2017, trial court opinion in the event of further proceedings.




                                     -5-
J-S59036-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/31/18




                          -6-
                                                                                                                 Circulated 12/17/2018 02:28 PM




                                      I
                                            TN THE COURT OF COMMON PLEAS
                                   FOR THE FIRST JUDICIAL DISTRICT OF PENNSYLVAN1A
                                               TRTAL DIVTSlON - CRIMINAL

              COMMONWEALTH OF PA                                                         CP-5l-CR-0005261-2013
                                                 ..--       --      --·.            ·-
                                                   CP-51-CR--00u5,Sl-201:J Co,iwn. v l.larine J . .
                                                                                             v. eoe1<
                         v.                                           Opinion



              JERJCK MARJNEY
                                                             .
                                                                          I    lllllfIll lllllll
                                                                 11 f 111_ /I8063532371

                                                                                                                       �"'
                                                  MF.MORANDUM OPINION

              CAAfPBELL, J.                                                                                 January--.JJ ,2017

            . Procedural History


                         On April 21, 2014, Appellant Jerick Mariney proceeded to trial before this Court, sitting

              without a jury. The Court held the verdict under advisement. On May 12, 20 I 4, the Court found

             Appellant guilty of Burglary (l 8 Pa. C.S. § 3502(!\) (4)), Criminal Trespass (18 Pa. C.S. § 3503(A)

             (])_(ii)), Conspiracy (18 Pa. C.S. § 903), Attempted Theft (18 Pa. C.S. § 901), and Criminal

             Mischief ( 18 Pa. C.S. § 3304 (A)(2)).

                        On September 5, 20 l 4, Appellant was sentenced to consecutive sentences ofl 1 Yz - 23

             months imprisonment on the burglary conviction, 11 y; - 23 months imprisonment on the criminal

             trespass conviction, and 11 y; - 23 months imprisonment on the conspiracy conviction, followed

             hy a consecutive period of five years probation on the attempted theft conviction. Appellant was

             ordered eligible for work release. No further penalty was imposed on the criminal mischief

             conviction.

                        On May 18, 2015, Appellant filed a prose petition under the Post-Conviction Relief Act



                       The petition was assigned to this Court on November 4, 2016.

                        An amended PCRA petition was filed by appointed counsel on January 31, 2017.
-- ··- ---Reaeivea----- --                -             ·                                                   ·---- - ---          -··

         JAN 3 0 2018
      Office of Judicial Records
          Appea!s/POst Trial
                On September 7, 2017, the Court granted the PCRA petition and reinstated Appellant' s

   appellate rights, nunc pro tune.

                A timely notice of appeal was filed on October 4, 20 I 7.

                Pursuant to Pa.RAP. 1925(b)(2) and (3), the Coun entered an order on October 12, 2017,

  'directing the filing of a Statement of Errors Complained of on Appeal, not later than twenty-one

  (21) days after entry of the order.

                On December 3, 2017, Appellant filed a timely Statement of Errors Complained of on

  Appeal. That filing was deemed timely by order of this Court dated December 18, 2017.

  Factual History

               It was shortly after midnight on April 2, 2013, when Philadelphia Police Officer Brendan

  Donahue responded to a motorcycle/dirt bike shop at 2008 Clifford Street in Philadelphia. NT

  4/21/14, 10, 12. As he pulled up, Officer Donahue observed a running white van parked in near

  the shop.        NT 4/21/14, 14, 15.          He blocked the van with his marked police patrol car and

  approached the van. Although it was running, there was no one in the van. NT 4/21114, 14-16.

               Officer Donahue then approached the garage doors     to the motorcycle shop when he noticed
  flashlights moving around inside. NT 4/21/14, 16, 28-29. He proceeded to hug the wall and pull

  his gun. NT 4/21/14, 16. The first door that he came to was missing a window, and there was

 broken glass on the ground. NT 4/21/14, 17-20, 29, 33, 34, 35, 37, 38-39. As he moved along the

 wall toward the garage door, it started to lift up, whereupon the officer encountered three males,

 one of whom was Appellant. NT 4/21 I 14, 21. Several ATV or dirt bikes were lined up in the area

 of the three men as they opened the door. NT 4/21/14, 26.
_____.,   ..        ..&.               •   ,,_._,             _       ,,__           ·-:····--·
                                                                                                             . ... -···. -i,
               Officer Donahue identified himself,' whereupon all three men fled. NT 4/21/14, 21-22.


                                                          2

                           - - -   .   ---------- --------
   Two of the men fled eastbound on Montgomery Avenue, while Appellant ran past the officer and

   fled west on Montgomery, then south on 31st Street. NT 4/21 /l 4: 22. Officer Donahue gave chase

   and apprehended Appellant after about a block, just as backup officers arrived on the scene. NT

  4/21/14, 22-23. One of those backup officers was Miler Celce, who coincidentally was also a

  frequent customer of the business, where he had work done on his own motorcycle, NT 4/21/14,

  42-43.

            Upon returning to the shop area, Officer Donahue noted pr)' marks and missing paint on

  another door to the property, located about twenty to thirty feet from where the running van was

  parked. NT 4/2 l/ I 4, 26-27, 3 7, 3 8. The back door was damaged and appeared to have been forced.

  NT 4/21/14, 46-47. He also examined the van and found it to have an open cargo area behind the

  two front seats. NT 4/2 l/14, 27-28.

           Officer Celce, the back-up officer, also examined the property and observed damage to the
               .                                                                                   .
  rear door and that one of the front glass panes was broken out NT 4/21114, 46-48. He confirmed

 that two bikes were right at the opened garage door, not where they �ould ordinarily be slored.

 based on his familiarity with the operation of the shop. NT 4/21/14, 50-51.

 Discussion

           Appellant challenges the sufficiency of the evidence to support the convictions.

         The evidence was sufficient to establish the crimes of burglary, criminal trespass and
         conspiracy.

        · A claim challenging the sufficiency of the evidence presents a question of law.

 Commonwealth v. Widmer, 560,Pa. 308, 744 A.2d 745, 751 (2000). We must determine "whether

 the evj���e:e-� -�u_Qicient to proye _ eyery_ element of the crime.. beyond a reasonable. doubt, '.'
         ·� ... - ·- .    .       .     -- . . .            .      . . ...               .   ..

 Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1267 (1989). We "must view evidence in

                                                   3

-····- ···-·-·--·-·-·-···-    -·--------
       the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence

       and all reasonable inferences therefrom upon which, if believed, the fact finder properly could
                                                                                        .           .
       have based its verdict." Id.

                Our Supreme Court has instructed:

               [T]he 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. Moreover, in applying the above test, the entire record must be
               evaluated and all 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.
               Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1236 n. 2 (2007).

       Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa.Super. 2013).

               Other factors found relevant in determining whether a defendant possessed the requisite

      mens rea include the defendant's flight from the police. See Commonwealth v. Stevenson, 242 Pa.

       Super. 31, 363' A.2d 1144, 1 J 45 (Pa. Super. 1976) ("[C)riminal intent or guilty knowledge may be

       inferred where facts and evidence are such as to show that element of the crime.''). Circumstantial

      evidence of guilty knowledge may include attempts to flee apprehension, Commonwealth v.

      Brabham, 268 Pa. Super. 35, 407 A.2d 424, 426-27 (Pa. Super. 1979) (flight from Jaw enforcement

     · at the time of arrest).

               a. Burglary

               Appellant alleges that the burglary conviction should fail because the 'evidence was

      insufficient to show ownership and non-penn.ission for his presence on the premises, and because

      of a lack of evidence showing entry with intent to commit a crime. He is incorrect on both counts.




                                                       4

·----- ---·-·- --------·-- -·--·------                         ....
prove. Rather, permission is an affirmative defense upon which a defendant bears the burden. 18

Pa. C.S. § 3502(b) (3). "A person commits the offense of burglary if, with the intent to commit a

crime therein, the person: enters a building or occupied structure, or separately secured or occupied

portion thereof that is not adapted for overnight accommodations inwhich at the time of the offense

no person is present." 18 Pa.C.S. § 3502(a) (4).

        Moreover, granting all reasonable inferences to the Commonwealth as the verdict winner,

the circumstantial evidence here established: a break-in by force (missing window with broken

glass on the ground and pry marks on the door), into a corrunerciaJ establishment, after midnight,

attempt at concealment (moving around the inside of the shop at night with flashlights), a means

of transporting stolen motorcycles (an empty cargo van, with the motor running), consciousness

of guilt demonstrated by flight of Appellant and two others from inside the premises when the

officer identified himself." See Commonwealth v. Smith, 2013 Pa. Super. Unpub. LEX[S 299, * 10-

11 (Pa. Super. 2013) (collecting cases on flight with other relevant circumstances showing
                                              '
consciousness of guilt). Nor does the fact that the officer was unable to say when the window was

broken aid Appellant's argument. See Commonwealth v. Morgan, 401 A.2d 1182 (Pa. Super 1979)

(fact that hole in screen door could have been made earlier in day goes to weight not sufficiency

of the evidence).

       "The Commonwealth may prove [burglary] by circumstantial evidence, and the specific

intent to commit a crime necessary to establish the second element of burglary may thus be found

in the [d]cfcndant's words or conduct, or from the attendant circumstances together with all

reasonable inferences therefrom." Commonwealth v, Tingle, 419 A.2d 6, 9 (Pa. Super. l 980).




                                                   5

      ---   -·-   ··------
            entered the property, with his co-conspirators, to commit the crime of theft of A1V's or mini-

            bikes, and his flight when confronted by police confirmed his knowledge and intent. Accordingly,

            the evidence was sufficient to support the burglary conviction.

                              b. Criminal Trespass

                              By contrast, "[t]he crime of criminal trespass has a scienter requirement not 'necessary to

           prove the crime of burglary ... " Commonwealth v. Carter, 393 A.2d 660, 661 (Pa. 197.8) (citations

           omitted). "A person commits a [ criminal trespass] if, knowing that he is not I icensed or privileged

           to do so, he ... breaks into any building or occupied structure or separately secured or occupied

           portion thereof.. .                   'Breaks into' [ means t Jo gain entry by force, breaking, intimidation,

           unauthorized opening of locks, or through an opening not designed for human access." 18 Pa.C.S.

           § 3503 (a).

                             Again, the circumstances presented here -- a break-in by force, attempt at concealment, a

          getaway vehicle, and flight .: sufficiently demonstrate that appellant knew that he was not licensed

          or privileged to enter the closed motorcycle store, after midnight, along with his two co-

       · conspirators. Accordingly, the evidence was sufficient to support the conviction for criminal

          trespass.

                             c. Conspiracy

                             A "common agreement or understanding, is an essential element of the crime of conspiracy.                       II
           I 8 Pa.C.S. § 903; Commonwealth v. Roux, 350 A.2d 867 (Pa. 1976). The existence of a common                                       I

          agreement may be inferred from the evidence of the circumstances surrounding the allegedly
                                                                                                                                             1.
                                                                                                                                             I
                                                                                                                                             I


         conspiratorial activities. Commonwealth v. Tumminello, 437 A.2d 435 (Pa. Super. 1981). When




                                                                         6

....... ,_. ...... ·-·-·· ...... ... ·-�·   ·-           --------·      ·-   ·- ---··- -- -·-· .....                        -- . - -- -. --r·i ·-
                                                                                                                                            .
                        '      ._




                                                                                                                                            I
                  was the requisite criminal agreement, Commonwealth v. Johnson, 402 A.2d 507, 509 (Pa.Super.

                  1979).

                           Here, we have three individuals, inside a closed motorcycle shop, after midnight, using

                  flashlights inside the building, with evidence of forced entry. The getaway vehicle which can

                  accommodate the motorcycles which were the obvious target of the burglary and theft, was parked

                  by the door and left running. And upon being confronted by an armed, uniformed police officer,

                  all three men fled.

                           This evidence demonstrates the requisite common agreement - to enter the motorcycle

                  sh?P and steal vehicles. Likewise, there are numerous overt acts in furtherance of this conspiracy.

                  Accordingly, there was ample evidence from which the Court could 'conclude that Appellant was

                  a co-conspirator in this criminal venture.

                  Conclusion

                           For aH the reasons set forth herein, Appellant's conviction should be affirmed.




                                                                                                                        I
                                                                                                                        I
                                                                                                                        I



                                                                                                                        I
                                                                                                                        !:-:. �
                                --··-               ·-· ··.--. ---·-.
                                                                . -


                                                                                                                        l-
                                                                    .




                                                                    7                                                   1

--· -·-- ..   .
                                                                              ·-----------··- ---�------·· -
                                                                                                                        1-·
                                                                                                                        I
I
'I   •




                   Commonwealth v . .Jerick Mariney                     Case Number: CP-51-CR-5261-2013


                                                                 PROOF OF SERVICE

                  I hereby certify that I am this day serving.the foregoing upon the pcrson(s), and in the
                  manner indicated above, which service satisfies the requirements of Pa.R.Crim.P.114:

                 Defense Counsel/Party;

                                           David Rudenstein, Esquire
                                           220 N Centre St,
                                           Merchantville, NJ 08109

                Type of Service:           () Personal (X) First Class Mail

                District Attorney:
                                       Lawrence Krasner, Esquire
                                       Office of the District Attorney
                                       Three South Perm Square
                                       PhiladeJphia, PA 19107
               Type of Service         () Personal (X) First Class Mail
                                                                                                                            I



                                                                                                                            I
                                                                                                                            I
              Vanessa A. Monto                                                                                          j
             Judicial Secretaryto
           . Honorable Giovanni o. Campbell


                                                                                                                    I
                                                                                                                        I
                                                                                                                   I
                                                                                                                  .I
                                                                                                                    I




                  _
          . --- .. . .... ·-· - ....   -
                                       -
                                            .   _   .
                                                        -
                                                            ,_
                                                             .                                               ·.... J�--
                                                                                                                   r..

· -- ------�-----'-'----·-·----·-·---------· -·                        ----          ·- ...           _
