J-S68007-14



                                  2014 PA Super 264



COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

WILLIAM CONAWAY,

                            Appellant                       No. 2312 EDA 2013


         Appeal from the Judgment of Sentence entered April 26, 2013,
                in the Court of Common Pleas of Bucks County,
             Criminal Division, at No(s): CP-09-CR-0006897-2012


BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

OPINION BY ALLEN, J.:                                  FILED NOVEMBER 26, 2014

        William Conaway, (“Appellant”), appeals from the judgment of

sentence imposed following his conviction by a jury of burglary, for which

the trial court sentenced Appellant to a term of imprisonment of five to ten

years.1    Appellant was additionally convicted of theft by unlawful taking,

receiving stolen property, and fleeing and eluding a police officer. 2            On

appeal, Appellant does not challenge his convictions or judgment of sentence

regarding these additional crimes.3            After careful consideration, we vacate
____________________________________________


1
    18 Pa.C.S.A. §§ 3502(a)(1).
2
    18 Pa.C.S.A. §§ 3921(a), 3925(a), and 3733(a).
3
  While the trial court did not impose penalties regarding Appellant’s
convictions for theft by unlawful taking or for receiving stolen property, the
(Footnote Continued Next Page)
J-S68007-14



Appellant’s judgment of sentence. Additionally, we remand for a new trial

regarding Appellant’s burglary conviction only.

      The trial court set forth the factual background relative to this action

as follows:

            On September 4, 2012, Nancy Shvanda was at home
      watching her grandchildren while her son Jason Shvanda, who
      lived with her at the time, was at work. N.T. 2/26/2013, p. 45,
      71. Ms. Shvanda's home is located in Doylestown, Pennsylvania.
      N.T. 2/26/2013, p. 34. This home's garage is attached to the
      kitchen. N.T. 2/26/2013, p. 38. Ms. Shvanda was the owner of
      a 2002 Lexus which she stored in her home's garage. N.T.
      2/26/2013, p. 43.

            Upon Mr. Shvanda's arrival home from work, Ms. Shvanda
      got ready to leave the home. She placed her purse and several
      food containers into her car and started the ignition. She then
      went back into the house after realizing she had forgotten
      something.    N.T. 2/26/2013, pp. 45-48, 73.        As she was
      retrieving the forgotten item, she noticed that her car was
      leaving her garage. N.T. 2/26/2013, p. 50, 74.

             Ms. Shvanda and Mr. Shvanda realized that the car was
      being stolen. Mr. Shvanda chased after the car while Ms.
      Shvanda ran inside to call 911. N.T. 2/26/2013, pp. 51-52, 75.
      The driver's side door opened and the occupant threw the purse
      out of the car. N.T. 2/26/2013, p. 76. Ms. Shvanda's purse was
      later recovered in the street near her house. Mr. Shvanda ran
      alongside the car and punched the driver's side window, and
      while doing so he observed an older white male driving the car.
      N.T. 2/26/2013, p. 76.

           Ms. Shvanda never saw the person who stole her car, but
      she believes she did see his shadow. N.T. 2/26/2013, p. 66.
      Mr. Shvanda chased the car but stopped when he realized that
                       _______________________
(Footnote Continued)

trial court did impose a sentence of eighteen months to three years for
Appellant’s conviction for fleeing or attempting to elude an officer, to run
consecutively with Appellant’s sentence for burglary.



                                            -2-
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     the car would remain in the neighborhood, given the series of
     turns it had made and the fact that Blakemore Court is a cul-de-
     sac. N.T. 2/26/2013, p. 78. The car reappeared around the
     same time that law enforcement arrived on the scene. N.T.
     2/26/2013, pp. 79-80.

           Sergeant Wetmore of the Doylestown Township Police
     Department was on duty and riding alone in a patrol car on the
     day of the incident. N.T. 2/26/2013, pp. 92-93. He heard via
     radio that a vehicle had been stolen from a garage in Doylestown
     and traveled to that location. N.T. 2/26/2013, p. 94. As
     Sergeant Wetmore's car and the Lexus approached each other
     head-on, the Lexus swerved at the latest possible moment,
     driving over the curb and narrowly missing a tree.           N.T.
     2/26/2013, pp. 81, 95.

            Mr. Shvanda again approached the car for the purpose of
     being able to identify the driver at a future time. He observed
     that the driver was a white male with short gray hair wearing a
     gray shirt. Mr. Shvanda looked at him for three or four seconds.
     At trial, Mr. Shvanda identified [Appellant] as the same man he
     had seen inside the Lexus on that day. N.T. 2/26/2013, pp. 81-
     82. Mr. Shvanda also provided the police officer on scene
     information about the direction in which the Lexus had traveled.
     N.T. 2/26/2013, p. 83. After avoiding a head-on collision and
     failing to heed Sergeant Wetmore's direction to stop, the driver
     of the Lexus left the cul-de-sac in which the Shvanda house was
     located and turned onto Lower State Road toward Doylestown
     Township. N.T. 2/26/2013, pp. 95-96.

            Officer Stephen Thomas of the Buckingham Township
     Police Department was also on duty on September 4, 2012. N.T.
     2/26/2013, p. 104. He heard a radio transmission about a car
     being stolen out of a woman's garage, and he positioned his
     vehicle on PA Route 611 in such a way that it stopped all of the
     traffic from proceeding through the intersection with Almshouse
     Road. The Lexus emerged from the line of cars stopped by
     Officer Thomas and then traveled on the southbound shoulder
     past Officer Thomas's vehicle, followed by a Doylestown
     Township police car. N.T. 2/26/2013, pp. 105-06. Officer
     Thomas continued following the Lexus and soon became the lead
     vehicle behind it. He observed the driver of the Lexus weaving
     through traffic to get away from police. N.T. 2/26/2013, p. 108.
     The chase continued over several roads, and at one point, they
     were travelling at 75 miles per hour (MPH) in a 45-MPH zone.

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     N.T. 2/26/2013, p. 109. Officer Thomas discontinued the chase
     because he felt it had become too dangerous. He observed that
     the driver of the car was an older male, but did not see him well
     enough to be able to recognize him if he saw him again. N.T.
     2/26/2013, pp. 110-11.

           Stanley Weber lives in Warminster, PA, and was at home
     on September 4, 2012. After receiving a phone call from a
     neighbor at around 7:30 P.M., Mr. Weber went outside and saw
     a man inside his van, which was parked in the driveway. The
     man was going through a box of clothing that Mr. Weber
     intended to donate to charity. N.T. 2/26/2013, p. 113-16. The
     driver's side door was open and the man had one foot on the
     ground and the other on the sill of the van. Mr. Weber grabbed
     him, pulled him out of the van, and asked what he was doing.
     The man replied that he was looking for his uncle.          N.T.
     2/26/2013, p. 117. Mr. Weber observed the man to be a white
     male approximately in his forties with a shaved head and a large
     scar on the back of his head, wearing sweatpants and a
     sweatshirt that were "graying in color." Mr. Weber identified
     [Appellant] as the man he saw in his van on September 4, 2012.
     N.T. 2/25/2013, pp. 117-18.        The man walked down the
     driveway and made a right turn as Mr. Weber was calling 911.
     N.T. 2/26/2013, p. 119.

           Officer Christopher O'Neill of the Warminster Township
     Police Department K-9 Unit was also on duty on September 4,
     2012. N.T. 2/26/2013, pp. 122-23. He responded to a call
     regarding a suspicious vehicle in Warminster Township. Once
     there, he spoke with a woman and observed someone in a yard
     bordering Mr. Weber's home. The individual was a white male
     wearing gray sweatpants but no shirt, and he was raking leaves.
     He told Officer O'Neill that his name was Phil Morrow, and he
     lived at the property, which was owned by his uncle. N.T.
     2/26/2013, pp. 125-26. He was wearing a hospital bracelet that
     said his name was William Conaway. This individual was then
     placed in the patrol car and his pockets were emptied. N.T.
     2/26/2013, pp. 127-28. A Visa debit card and a MasterCard in
     the name of William Conaway were found in his pockets. A 2002
     Lexus was found in Mr. Weber's driveway. N.T. 2/26/2013, p.
     129. The K-9, Blitz, tracked the scent from the Lexus to Mr.
     Weber's and back to the bordering yard. N.T. 2/26/2013, pp.
     137-40.



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J-S68007-14


          Sergeant Bryon Rose of the Doylestown Township Police
     Department investigated the theft of the car in Doylestown. He
     photographed and inventoried the 2002 Lexus on September 5,
     2012, and he found medical papers inside the vehicle, including
     a hospital discharge form with the name William Conaway. N.T.
     2/26/2013, pp. 152-61.

            Sergeant Lance Carlen of the Doylestown Borough Police
     Department testified that he responded to the area of the theft
     in Doylestown Township on the evening of September 4, 2012.
     N.T. 2/27/2013, pp. 12-15. He received word via radio that the
     vehicle, a silver Lexus, was departing the area. N.T. 2/27/2013,
     pp. 15-17. En route, Sergeant Carlen observed a silver Lexus
     that fit the stolen vehicle's description, and he followed it. N.T.
     2/27/2013, pp. 16-17. The Lexus evaded Sergeant Carlen and
     ran multiple stop signs without stopping, exceeding the posted
     speed of 25 MPH. N.T. 2/27/2013, pp. 17-22.

            At one point during the pursuit on State Street, Sergeant
     Carlen got beside the Lexus, observed the driver, and noted that
     he was an older white male with salt and pepper cropped hair
     and a gray sweatshirt. N.T. 2/27/2013, p. 22. Sergeant Carlen
     identified [Appellant] as the individual driving the Lexus on
     September 4, 2012. N.T. 2/27/2013, p. 22. The sergeant
     chased the vehicle through Doylestown Borough and when he
     got beside the vehicle again, he observed the driver a second
     time for a period of one to two seconds. N.T. 2/27/2013, p. 23.

            After following the Lexus South on 611, Sergeant Carlen
     ceased pursuit because he determined it was no longer safe.
     N.T. 2/27/2013, pp. 27-29. Sergeant Carlen was well out of his
     jurisdiction, and other law enforcement vehicles were following
     the silver Lexus.      N.T. 2/27/2013, pp. 27-29.   Later that
     evening, Sergeant Carlen received a call from Warminster
     Township Police, requesting that he attempt to identify an
     individual believed to be the driver of the Lexus.         N.T.
     2/27/2013, p. 34. Sergeant Carlen responded and identified the
     apprehended individual as [Appellant]. N.T. 2/27/2013, pp. 35-
     36.

           Sergeant Charles Zeigler of the Doylestown Township
     Police Department testified that he participated in the
     investigation on September 4, 2013. N.T. 2/27/2013, pp. 51-
     52. He took possession of evidence which included a gray
     sweatshirt and debit and credit cards with the names William


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J-S68007-14


       Conway and William Conaway.       N.T. 2/27/2013, p. 58.
       Doylestown Hospital and the Shvanda home are within
       approximately 15-20 minutes walking distance of each other.
       N.T. 2/27/2013, p. 60.

Trial Court Opinion, 1/23/14, at 1-6.

       Appellant was charged with the aforementioned crimes. The trial court

summarized the procedural posture that followed:

             [Appellant] waived his arraignment on November 16,
       2012. His trial was initially scheduled for January 7, 2013, but
       was continued several times. The trial commenced on February
       25, 2013, and a verdict was returned on February 27, 2013.
       The jury found [Appellant] guilty of Counts 1 through 4.
       Sentencing was deferred until a pre-sentence investigation
       ("PSI”) could be completed, and on April 26, 2013, [Appellant]
       was sentenced as follows:

          On Count 1, burglary, five to ten years imprisonment, and
          [o]n Count 4, fleeing or attempting to elude an officer,
          eighteen months to three years imprisonment, to run
          consecutively to the sentence imposed on Count 1.4

Id. at 7-8.

       This appeal followed. Both Appellant and the trial court have complied

with Pa.R.A.P. 1925. Appellant presents the following issues for our review:

       I. WHETHER THE TRIAL COURT ABUSE[D] ITS DISCRETION BY
       INSTRUCTING THE JURY THAT THE COMMONWEALTH PROVED
       BEYOND A REASONABLE DOUBT THAT THE PROPERTY ENTERED
       WAS “A BUILDING OR OCCUPIED STRUCTURE, OR SEPARATELY
       SECURED OR OCCUPIED PORTION THEREOF THAT IS ADAPTED
       FOR OVERNIGHT ACCOMMODATIONS”?


____________________________________________


4
  As noted, supra, the trial court did not impose further penalties at Count 2,
theft by unlawful taking, and Count 3, receiving stolen property.



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      II. WHETHER THERE WAS SUFFICIENT EVIDENCE PRESENTED
      BY THE COMMONWEALTH AT TRIAL TO PROVE BEYOND A
      REASONABLE DOUBT THAT [APPELLANT] ENTERED A BUILDING
      OR OCCUPIED STRUCTURE, OR A SEPARATELY SECURED OR
      OCCUPIED PORTION THEREOF THAT IS ADAPTED FOR
      OVERNIGHT   ACCOMMODATIONS,    WHEN   THE   PROPERTY
      ENTERED WAS AN ATTACHED GARAGE?

      III. WHETHER THE CRIMINAL INFORMATION FAILED TO SET
      FORTH THE ESSENTIAL ELEMENTS OF THE BURGLARY OFFENSE
      IN A PLAIN AND CONCISE MANNER SUFFICIENT TO INFORM THE
      APPELLANT OF THE NATURE AND CAUSE OF ACTION AGAINST
      HIM?

Appellant’s Brief at 4.

      With regard to Appellant’s first issue challenging the trial court’s jury

instruction, the trial court instructed the jury on Count 1 as follows:

         [Appellant] has been charged with burglary.        To find
         [Appellant] guilty of this offense you must find that all of
         the following elements have been proven beyond a
         reasonable doubt.

         First, that [Appellant] entered       16   Blakemore    Court,
         Doylestown, Pennsylvania.

         Second, that [Appellant] entered 16 Blakemore Court with
         the intent to commit a crime therein.

         Third, that 16 Blakemore Court was not opened to the
         public at the time.

         And, fourth, that [Appellant] did not have permission or
         lawful authority to enter.

         Fifth, that 16 Blakemore was a building or occupied
         structure or separately secured or occupied portion thereof
         that is adapted for overnight accommodation.

         Six, that the person was present at the time of the
         offense.

      N.T. 2/27/2013, pp. 141-42. The Court provided the additional
      instruction regarding the fifth element: "If you find -- and it will

                                      -7-
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      be for you to find whether or not the garage was entered in this
      case. I will tell you that the Commonwealth has met the fifth
      prong because this is a legal determination that the Court will
      deal with in this case."        N.T. 2/27/2013, pp. 141-143.
      [Appellant’s] counsel objected to the instruction, asserting that it
      should be a factual determination.

Trial Court Opinion, 1/23/14, at 7.

      In challenging this instruction, Appellant contends:

             [T]he trial court erred when it instructed the jury that the
      court had determined that the Commonwealth had [established]
      [the fifth prong of the burglary charge] that the property entered
      was a building or occupied structure or separately secured
      portion thereof that is adapted for overnight accommodations.

            The Sixth Amendment guarantees the right to a trial by a
      jury and that each element of each crime charged is to be
      proven to that jury, beyond a reasonable doubt. The trial court’s
      instruction usurped the jury’s function as the ultimate fact
      finder[.]

Appellant’s Brief at 11. Appellant further maintains that “[p]ursuant to the

Federal and State constitutions, and the holdings of Apprendi and Alleyne,

the absence of a jury finding on the fifth prong of the burglary charge

renders Appellant’s conviction invalid and the sentence imposed illegal.” Id.

at 18. We agree with Appellant that the trial court impermissibly usurped

the jury’s fact-finding role as to the fifth element of the burglary charge, and

find that Appellant is entitled to a new trial for the reasons set forth below.

      “When reviewing a challenge to part of a jury instruction, we must

review the jury charge as a whole to determine if it is fair and complete. A

trial court has wide discretion in phrasing its jury instructions, and can

choose its own words as long as the law is clearly, adequately, and


                                      -8-
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accurately presented to the jury for its consideration.       The trial court

commits an abuse of discretion only when there is an inaccurate statement

of the law.”   Commonwealth v. Roser, 914 A.2d 447, 455 (Pa. Super.

2006) (internal citation omitted).

      Moreover, we have explained:

              “A challenge to the legality of the sentence may be raised
      as a matter of right, is non-waivable, and may be entertained so
      long as the reviewing court has jurisdiction.” Commonwealth v.
      Robinson, 931 A.2d 15, 19–20 (Pa.Super. 2007) (en banc). The
      phrase ‘illegal sentence’ is a term of art in Pennsylvania Courts
      that is applied to three narrow categories of cases. Id. at 21.
      Those categories are: “(1) claims that the sentence fell ‘outside
      of the legal parameters prescribed by the applicable statute’; (2)
      claims involving merger/double jeopardy; and (3) claims
      implicating the rule in Apprendi v. New Jersey, 530 U.S. 466,
      120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).” Id. The instant case
      falls into the latter category.

             In Apprendi, the Supreme Court of the United States held
      that “[o]ther than the fact of a prior conviction, any fact that
      increases the penalty for a crime beyond the prescribed
      statutory maximum must be submitted to a jury, and proved
      beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120
      S.Ct. 2348. Stated another way, it “is unconstitutional for a
      legislature to remove from the jury the assessment of facts that
      increase the prescribed range of penalties to which a criminal
      defendant is exposed. It is equally clear that such facts must be
      established by proof beyond a reasonable doubt.” Id. (quoting
      Jones v. United States, 526 U.S. 227, 252–53, 119 S.Ct. 1215,
      143 L.Ed.2d 311, (1999) (Stevens, J. concurring)).

                                     ***

            [Subsequently] in Alleyne [v. United States, -- U.S. --,
      133 S.Ct. 2151 (2013)], the United States Supreme
      Court…h[eld] that any fact that increases the mandatory
      minimum sentence for a crime “is ‘an element’ that must be
      submitted to the jury and found beyond a reasonable doubt.”
      Alleyne, 133 S.Ct. at 2155, 2163.        The Alleyne majority


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     reasoned that “[w]hile Harris [v. United States, 536 U.S. 545
     (2002),] limited Apprendi to facts increasing the statutory
     maximum, the principle applied in Apprendi applies with equal
     force to facts increasing the mandatory minimum.” Alleyne, 133
     S.Ct. at 2160. This is because “[i]t is impossible to dissociate
     the floor of a sentencing range from the penalty affixed to the
     crime[,]” and “it is impossible to dispute that facts increasing the
     legally prescribed floor aggravate the punishment.” Id. at 2161.
     Thus, “[t]his reality demonstrates that the core crime and the
     fact triggering the mandatory minimum sentence together
     constitute a new, aggravated crime, each element of which must
     be submitted to the jury.” Id.

Commonwealth v. Munday, 78 A.3d 661, 664-666 (Pa. Super. 2013).

     The Crimes Code provides in pertinent part:

     § 3502. Burglary

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

     (1) 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 any person
     is present;

     (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;

     (3) 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 any person
     is present; or

     (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.

                                   ***

     (c) Grading.--

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J-S68007-14


     (1) Except as provided in paragraph (2), burglary is a felony of
     the first degree.

     (2) As follows:

     (i) Except under subparagraph (ii), an offense under subsection
     (a)(4) is a felony of the second degree.

     (ii) If the actor's intent upon entering the building, structure or
     portion under subparagraph (i) is to commit theft of a controlled
     substance or designer drug as those terms are defined in section
     2 of the act of April 14, 1972 (P.L. 233, No. 64), known as The
     Controlled Substance, Drug, Device and Cosmetic Act, burglary
     is a felony of the first degree.

18 Pa.C.S.A. § 3502 (footnote omitted).

     In positing that its jury instruction regarding Appellant’s burglary

charge was proper, the trial court reasoned:

           ‘A person commits the offense of burglary if, with the
     intent to commit a crime therein, the person: (1) 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 any person is present[.]’ 18 Pa.
     C.S. § 3502(a)(1) (effective September 4, 2012). ‘Occupied
     structure’ is separately defined as ‘[a]ny structure, vehicle or
     place adapted for overnight accommodation of persons, or for
     carrying on business therein, whether or not a person is actually
     present.’ 18 Pa. C.S. § 3501. The focus of the determination of
     whether a structure is adapted for overnight accommodation is
     the nature of the structure itself and its intended use, and not
     whether the structure is in fact inhabited. Com. v. Nixon, 801
     A.2d 1241, 1247 (Pa. Super. 2002) (upholding a burglary
     conviction based on a determination that an unoccupied row
     home undergoing renovation without electricity or water was a
     structure adapted for overnight accommodation within the
     meaning of the statute); Com. v. Rivera, 983 A.2d 767 (Pa.
     Super. 2009) (upholding a conviction relying on a determination
     that a basement was adapted for overnight accommodation,
     although it was not accessible from the rest of a house divided
     into separate apartments); Com. v. Jackson, 585 A.2d 533 (Pa.
     Super. 1991) (upholding a finding that a house was an occupied


                                   - 11 -
J-S68007-14


     structure, where the victim was sitting on the back porch but
     unaware of the defendant's entry).

                                   ***

           The instruction given in this case on the fifth element of
     the burglary charge was proper. This element involves a mixed
     issue of fact and law. The issue of fact is whether [Appellant]
     entered the structure at issue. The question of law is whether
     that portion of the structure is a ‘building or occupied structure,
     or separately secured or occupied portion thereof that is adapted
     for overnight accommodations.’ Like the back porch in Jackson,
     and the basement in Rivera, the attached garage in this case is
     inherently part of 16 Blakemore Court. Uncontradicted evidence
     demonstrated that three adults and one child lived continuously
     in the home, that the garage attached directly to the kitchen,
     and that the family frequently used the garage. In addition, at
     the time of the offense, Ms. Shvanda was actually in the
     doorway between the kitchen and garage.              Under these
     circumstances, the garage was a part of an ‘occupied structure’
     as defined by the statute and caselaw.

            The Court did not usurp the jury's role as the factfinder.
     The jury made a factual finding on the fifth element about
     whether [Appellant] entered the garage. Allowing arguments
     regarding whether the garage constituted an ‘occupied structure’
     or whether it was a ‘portion thereof that [was] adapted for
     overnight accommodations’ would have served only to
     unnecessarily confuse the jury.     Thus, the Court struck an
     appropriate balance framing the legal issue and allowing the jury
     to find whether the defendant entered the garage.

Trial Court Opinion, 1/23/14, at 11-14. We cannot agree.

     In Commonwealth v. Burwell, we found that the trial court had

committed reversible error in instructing the jury in an aggravated assault

case, and reasoned:

     [The trial court] stated the following in his instructions to the
     jury:

        Now, serious bodily injury means impairment of physical
        condition which increased a substantial risk of death or

                                   - 12 -
J-S68007-14


        which causes serious permanent disfigurement or
        protracted loss or impairment of the function of any bodily
        member or organ. Now, under the circumstances, it
        appears that the injuries suffered by Mr. Regruth
        constitute serious bodily injury. But that is a decision
        for you to make.

     N.T. Jury Trial, 3/18/2009, at 73–74 (emphasis added).
     Although we are well aware that the trial court informed the jury
     that the question of whether Burwell caused the victim to suffer
     serious bodily injury was ultimately its decision, we cannot
     underestimate the weight that a jury would afford the opinion of
     a trial judge who opines that the element of serious bodily injury
     was proven in a case.           Commonwealth v. Claiborne, 175
     Pa.Super. 42, 102 A.2d 900 (1953) (“[J]udge occupies an
     exalted and dignified position; he is the one person to whom the
     jury, with rare exceptions, looks for guidance[.]”). It is very
     possible that the judge's comments usurped the jury's fact-
     finding role and prejudiced Burwell. See Commonwealth v.
     McCoy, 401 Pa. 100, 162 A.2d 636 (1960) (trial judge's negative
     characterization of defendant in charge to jury prejudiced
     defendant's right to fair trial before impartial jury despite judge's
     statement that jury had absolute discretion to determine
     verdict)[.]

Commonwealth v. Burwell, 42 A.3d 1077, 1083-1084 (Pa. Super. 2012).

     Given that in Burwell we found that the trial court committed

reversible error in opining to the jury that the Commonwealth had proved an

element of the charged crime, it follows here that the trial court likewise

erred in specifically instructing the jury that the Commonwealth had

established an element of the burglary charge because that disputed

element was a grading factor.    See 18 Pa.C.S.A. § 3502(a)(3), and 3502

(c)(1)-(2); see also Munday, 78 A.3d at 664-666.          As in Burwell, our

determination is not affected by the fact that the trial court instructed the

jury that the jury would be the fact finder regarding the remaining elements


                                    - 13 -
J-S68007-14



of burglary. Burwell, supra, at 1083. Accordingly, we find that Appellant’s

first issue warrants relief.

      In his second issue, Appellant contends that “there was insufficient

evidence for the trial court to conclude that the attached garage was a

building or occupied structure or separately secured or occupied portion

thereof that was adapted for overnight accommodation.” Appellant’s Brief at

18.   Our reversal of Appellant’s burglary conviction renders Appellant’s

sufficiency challenge moot, and we decline to reach it.

      In his third issue, Appellant challenges the sufficiency of the criminal

information, which the Commonwealth filed relative to the burglary charge.

We will reach this issue since it will be relevant on remand.     Specifically,

Appellant contends:

      [T]he [c]riminal [i]information filed by the Commonwealth failed
      to set forth essential elements of the burglary offense in a
      manner that sufficiently informed [Appellant] of the elements of
      the crime charged. Under the subsection of the burglary statute
      that the Appellant was charged, the Commonwealth was
      required to prove that Appellant entered a structure adapted for
      overnight accommodation and that a person was present. As
      those elements were missing from the information, the
      Commonwealth failed to provide sufficient notice of the charge it
      intended to prove, in violation of the United States and
      Pennsylvania Constitutions and the Pennsylvania Rules of
      Criminal Procedure.

Appellant’s Brief at 11-12. We disagree.

      We have opined:

      The purpose of an Information or an Indictment is to provide the
      accused with sufficient notice to prepare a defense, and to
      ensure that he will not be tried twice for the same act.

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     Commonwealth v. Ohle, 503 Pa. 566, 588, 470 A.2d 61, 73
     (1983); Commonwealth v. Diaz, 477 Pa. 122, 383 A.2d 852
     (1978); Commonwealth v. Rolinski, 267 Pa.Super. 199, 406 A.2d
     763 (1979). An Indictment or an Information is sufficient if it
     sets forth the elements of the offense intended to be charged
     with sufficient detail that the defendant is apprised of what he
     must be prepared to meet, and may plead double jeopardy in a
     future prosecution based on the same set of events.
     Commonwealth v. Bell, 512 Pa. 334, 343, 516 A.2d 1172, 1177
     (1986); Commonwealth v. Ohle, 503 Pa. 566, 588, 470 A.2d 61,
     73 (1983); Russell v. United States, 369 U.S. 749, 763, 82 S.Ct.
     1038, 8 L.Ed.2d 240 (1962); See Pa.R.Crim.P. 225(b). This may
     be accomplished through use of the words of the statute itself as
     long as “those words of themselves fully, directly, and expressly,
     without any uncertainty or ambiguity, set forth all the elements
     necessary to constitute the offense intended to be punished.”
     Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41
     L.Ed.2d 590 (1974), quoting, United States v. Carll, 105 U.S.
     611, 612, 26 L.Ed. 1135 (1882 [1881]).

Commonwealth v. Chambers, 852 A.2d 1197, 1199 (Pa. Super. 2004)

citing Commonwealth v. Alston, 651 A.2d 1092, 1095-1096 (Pa. 1994).

     Here, the criminal information provided in pertinent part:

     The Attorney for the Commonwealth of Bucks County by this
     information charges that in the County of Bucks, Pennsylvania,
     [Appellant]:

     Count 1:    Burglary–Overnight     Accomodation,             Person
                 Present - (F1) 18 [Pa.C.S.A.] §§ A1

     Offense Date: 9/4/12

     [D]id enter a building or occupied structure, or separately
     secured or occupied portion thereof, to wit, 16 Blakemore Court,
     Doylestown, with intent to commit a crime therein, and the
     premises were not open to the public nor was the actor licensed
     or privileged to enter.

                                   ***

     Citation of Statute and Section:

     1. 18 [Pa.C.S.A.] § 3502 §§ A1 (F1)[.]

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J-S68007-14



Information, 11/14/12, at 1 (emphasis in original).

      Contrary to Appellant’s assertion, the criminal information on its face

did   set    forth,   in   bold   script,   the    required   elements   of   “Overnight

Accommodation” and “Person Present” relative to Appellant’s burglary

charge. Moreover, in at least two locations, the Commonwealth noted the

specific penal statute, subsection, and felony grade with which Appellant was

charged.      We agree with the trial court that “[t]aken as a whole, this

provided [Appellant] with sufficient detail about the accusation and elements

and enough notice in order to prepare a defense. Therefore, the information

was sufficient.”      Trial Court Opinion, 1/23/14, at 10.             Appellant’s claim

regarding his criminal information is unavailing.

      Given the foregoing, we vacate Appellant’s burglary conviction and

remand for a new trial on the burglary count only.                 Appellant’s remaining

convictions stand.         However, because we are vacating a conviction in a

multiple count case, and vacating Appellant’s burglary conviction may upset

the overall sentencing scheme vis-a-vis Appellant’s other convictions, we

vacate the entire judgment of sentence. See Commonwealth v. Brown,

26    A.3d    485,    510     (Pa.   Super.       2011)   citing   Commonwealth       v.

Goldhammer, 517 A.2d 1280, 1283-84 (Pa. 1986).

      Case remanded for a new trial regarding burglary only, and for re-

sentencing on all convictions. Jurisdiction relinquished.




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J-S68007-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2014




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