J-S68021-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
GIOVANNI GONZALEZ,                       :
                                         :
                   Appellant             :   No. 1971 EDA 2014

            Appeal from the Judgment of Sentence June 11, 2014,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0006503-2013

BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED NOVEMBER 16, 2015

       Appellant, Giovanni Gonzalez (“Gonzalez”), appeals from the judgment

of sentence entered on June 11, 2014 by the Court of Common Pleas of

Philadelphia County, Criminal Division, following his convictions of burglary,

attempted burglary, loitering and prowling at night time, and criminal

trespass.1 We affirm in part and reverse in part.

       The trial court summarized the relevant factual history of this case as

follows:

                Lela Dowdy [(“Dowdy”)] testified that on April 2,
             2013, at about 2:00 a.m. at 1807 South 4th Street,
             in the City of Philadelphia, she was woken up by her
             brother who stated that he heard noises while in
             their bedroom. (N.T. 4/4/14 pp. 26, 27). [Dowdy]
             stated that she is [twelve] years old and shares the
             bedroom with her [ten-year-old] brother. ([Id. at] 8,
             14). [Dowdy] saw a light[-]skinned man with a


1
    18 Pa.C.S.A. §§ 3502(a)(1), 901(a), 5506, 3503(a)(1)(i).
J-S68021-15


            black hat and black clothing enter her window[,]
            which was partially cracked open. ([Id. at] 8-11).
            She described the black hat as one “that goes up to,
            like, the forehead, down your forehead.” ([Id. at]
            10). She described his black clothing as a black
            sweater and black pants. ([Id. at] 11). She stated
            that “a man broke into my window.” ([Id. at] 8).
            The man lifted his arm, tilted his body, and lifted his
            leg, but did not move any part of his body into the
            bedroom. ([Id. at] 9, 10). She testified that the
            man was at her window for about three [] minutes
            and that there was a nightlight in her room. ([Id.
            at] 11).     [Dowdy] made noises and the man
            retreated from the window. ([Id. at]. 9). [Dowdy]
            then went into her mother’s room to apprise her of
            what had happened.        Id.    Ms. Melony Merritt,
            [Dowdy]’s mother, called the police. Id.

                [Dowdy] testified that police officers arrived at
            her home within five [] minutes. ([Id. at] 13). She
            stated that she identified [Gonzalez] when officers
            brought him to her home.          ([Id. at] 12-13).
            [Dowdy] stated she had previously seen [Gonzalez]
            in the neighborhood, at the store across the street,
            and that he lived next door [to] her. Id. Her home
            is part of a set of row homes. ([Id. at] 14, 15, 22).
            [Dowdy] explained that the houses are connected
            and that below her window is the first floor roof.
            ([Id. at] 13-15).

Trial Court Opinion, 3/2/15, at 2-3 (footnotes omitted).

      On April 2, 2013, Gonzalez was arrested after being positively

identified by Dowdy as the man attempting to enter her bedroom window in

the middle of the night.     The trial court further provided the following

procedural history for this case:

               On April 4, 2014, a [nonjury] trial was held at
            which [Gonzalez] was found guilty of the
            aforementioned    [crimes].      A    pre-sentence



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           investigation was ordered. On June 11, 2014, this
           [c]ourt sentenced [Gonzalez] to nine [] to twenty-
           three [] months [of imprisonment] with credit for
           time served with immediate parole to house arrest
           with electronic monitoring followed by two [] years
           [of] reporting probation. (N.T. Sentencing 6/11/14
           pp. 15, 17, 20). On July 8, 2014, [Gonzalez] filed a
           timely Notice of Appeal. This [c]ourt ordered a
           Statement of Matters Complained of on Appeal
           pursuant to Pa.R.A.P. 1925(b) on August 1, 2014. A
           statement of intent to file an Anders/McClendon
           brief was filed on August 20, 2014.         In that
           statement, appellate counsel averred that the entire
           record had been reviewed and counsel had
           determined that there were no meritorious, non-
           frivolous issues to raise on appeal. Thereafter, this
           [c]ourt filed a Pa.R.A.P. 1925(a) Opinion on
           September 24, 2014.

              On January 14, 2015, after consideration of
           [Gonzalez]’s Petition To Vacate Briefing Schedule
           And To Remand Record To Trial Court, the Superior
           Court vacated the briefing schedule and permitted
           [Gonzalez] to file a Supplemental Statement of
           Errors Complained of on Appeal. On the same day,
           the Superior Court ordered this [c]ourt to prepare a
           Supplemental Opinion, pursuant to Pa.R.A.P.
           1925(a), within thirty [] days of receipt of
           [Gonzalez]’s Supplemental Rule 1925(b) Statement.
           On February 2, 2015, a Supplemental Statement of
           Errors Complained of on Appeal was filed by
           [Gonzalez].

Id. at 1-2 (footnotes omitted).

     On appeal, Gonzalez raises the following issues for our review:

           1.    Was not the evidence insufficient to convict
           appellant of burglary or its lesser[-]included offense,
           attempted burglary, where there was no evidence of
           entry or attempted entry into the property?




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            2.    Did not the lower court err as a matter of law
            in convicting [Gonzalez] of both attempted burglary
            and burglary for the same incident?

Gonzalez’s Brief at 3.

      For his first issue on appeal, Gonzalez challenges the sufficiency of the

evidence to support his burglary and attempted burglary convictions.      See

id. at 11-18. Because Gonzalez failed to raise a challenge to the sufficiency

of the evidence to support his attempted burglary conviction in his Rule

1925(b) statement, we must conclude that it is waived.

      In Commonwealth v. Hill, 16 A.3d 484 (Pa. 2011), our Supreme

Court stated the following with respect to waiver under Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure:

               Our jurisprudence is clear and well-settled, and
            firmly establishes that: Rule 1925(b) sets out a
            simple bright-line rule, which obligates an appellant
            to file and serve a Rule 1925(b) statement, when so
            ordered; any issues not raised in a Rule 1925(b)
            statement will be deemed waived; the courts lack
            the authority to countenance deviations from the
            Rule’s terms; the Rule’s provisions are not subject to
            ad hoc exceptions or selective enforcement;
            appellants and their counsel are responsible for
            complying with the Rule’s requirements; Rule 1925
            violations may be raised by the appellate court sua
            sponte, and the Rule applies notwithstanding an
            appellee’s request not to enforce it; and, if Rule
            1925 is not clear as to what is required of an
            appellant, on-the-record actions taken by the
            appellant aimed at compliance may satisfy the Rule.

Id. at 494 (footnote omitted).




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      Here, Gonzalez did not raise a challenge to the sufficiency of the

evidence with respect to his attempted burglary conviction in his Rule

1925(b) statement.      See generally Rule 1925(b) Statement, 2/2/15.

Rather, Gonzalez’s Rule 1925(b) statement exclusively challenges the

sufficiency of the evidence for his burglary conviction.     See id. ¶ 6.

Accordingly, Gonzalez has waived his challenge to the sufficiency of the

evidence of his attempted burglary conviction.

      Because Gonzalez has properly preserved his challenge to the

sufficiency of the evidence of his burglary conviction, we now turn our

attention to the merits of that issue. Gonzalez argues that the evidence was

insufficient to sustain his burglary conviction because the Commonwealth

failed to prove the entry element of that crime, namely that any portion of

his body entered Dowdy’s bedroom.      See Gonzalez’s Brief at 11-15.   We

utilize the following standard of review when presented with a challenge to

the sufficiency of the evidence:

               As a general matter, our standard of review of
            sufficiency claims requires that we evaluate the
            record “in the light most favorable to the verdict
            winner giving the prosecution the benefit of all
            reasonable inferences to be drawn from the
            evidence.” Commonwealth v. Widmer, [] 744
            A.2d 745, 751 ([Pa.] 2000).      “Evidence will be
            deemed sufficient to support the verdict when it
            establishes each material element of the crime
            charged and the commission thereof by the accused,
            beyond a reasonable doubt.” Commonwealth v.
            Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005).
            Nevertheless,    “the Commonwealth      need   not



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           establish guilt to a mathematical certainty.” Id.;
           see also Commonwealth v. Aguado, 760 A.2d
           1181, 1185 (Pa. Super. 2000) (“[T]he facts and
           circumstances established by the Commonwealth
           need not be absolutely incompatible with the
           defendant's innocence”).      Any doubt about the
           defendant’s guilt is to be resolved by the fact finder
           unless the evidence is so weak and inconclusive that,
           as a matter of law, no probability of fact can be
           drawn from the combined circumstances.            See
           Commonwealth v. DiStefano, 782 A.2d 574, 582
           (Pa. Super. 2001).

                               *     *     *

              Significantly, we may not substitute our judgment
           for that of the fact finder; thus, so long as the
           evidence adduced, accepted in the light most
           favorable to the Commonwealth, demonstrates the
           respective elements of a defendant’s crimes beyond
           a reasonable doubt, the appellant’s convictions will
           be upheld. See Brewer, 876 A.2d at 1032.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa.

Super. 2013)).

      Gonzalez was convicted of burglary as a first-degree felony under

section 3502(a)(1) of the Crimes Code.     Section 3502(a)(1) provides as

follows:

           (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




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                  in which at the time of the offense any person
                  is present[.]

18 Pa.C.S.A. § 3502(a)(1). This Court has held that “proof of entry does not

require proof of a breaking-in; it is sufficient to prove that any part of the

body of the intruder entered the premises.”    Commonwealth v. Gordon,

477 A.2d 1342, 1348 (Pa. Super. 1984).

      Dowdy testified on direct examination regarding Gonzalez’s actions on

the night in question as follows:

            Q. Did something happen when you were in your
            bed that brings you into court today?

            A. Yes.

            Q. What happened?

            A. A man broke into my window.

            Q. Okay. Well, can you tell Her Honor what exactly
            happened?

            A. I was sleeping. My brother was awake because
            he heard noises and he woke me up. And I saw the
            man that was trying to come in my room, but I kind
            of scared him by making noises and he ran out the
            door -- the window. So I went in my mom’s room
            and told her and she said that -- well, she called the
            cops.

            Q. Okay, can you describe -- where that man was
            when you saw him?

            A. He was right where the window -- like, he was
            beginning to come in the window, but he was --

            Q. So, the window was open?




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          A. No -- yeah, it was cracked.

          Q. It was cracked. Okay. And you said he was
          beginning to come inside the window.      What --
          where exactly was -- exactly how was this person’s
          body at the window?

          A. Like kind of curved. Like that.

          Q. Okay.

          [Commonwealth:]      So the witness was lifting her
          right arm?

          [Defense Counsel:] For the record, she turned her
          body slightly to the side.

          Q. What made you -- what did you see that made
          you think he was coming through the window?

          A. His leg and up started like --

          Q. I’m sorry. The last part -- I didn’t hear.

          A. I said his leg was up.

          Q. His leg was up. And where was his leg?

          A. It was up. I don’t know.

          Q. Was it inside or outside?

          A. It was outside.

          Q. Okay. And you said you made a noise. Did you -
          - did he come in the room at all?

          A. No.

          Q. All right. Did any part of his body come into the
          room?

          A. No.



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N.T., 4/4/14, at 8-10.

      We conclude that the Commonwealth failed to present evidence that

Gonzalez entered Dowdy’s bedroom.              Dowdy’s testimony reflects that

although Gonzalez appeared as though he was about to enter her bedroom,

Dowdy specifically stated that no part of Gonzalez’s body entered her

bedroom. Id. Based on our review of the certified record, there is no other

evidence      indicating   that   Gonzalez   ever   entered   Dowdy’s   bedroom.

Accordingly, the evidence was insufficient to sustain Gonzalez’s burglary

conviction.

      The trial court and the Commonwealth argue that Dowdy’s statement

on direct examination that Gonzalez “broke into my window” was sufficient

evidence to sustain Gonzalez’s burglary conviction. See Trial Court Opinion,

3/2/15, at 11; Commonwealth’s Brief at 8.               We find this argument

unavailing. While that statement alone may have been sufficient proof that

Gonzalez entered Ms. Dowdy’s bedroom, over the next several pages of

testimony, Dowdy went on to qualify what she meant when she said

Gonzalez “broke into my window.” See N.T., 4/4/14, at 8-10. In so doing,

Dowdy testified that Gonzalez appeared as though he was about to enter her

bedroom, but that no part of his body ever did. Id.

      The trial court and the Commonwealth further argue that there is

circumstantial evidence that Gonzalez entered Dowdy’s bedroom. See Trial




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Court Opinion, 3/2/15, at 11-12; Commonwealth’s Brief at 8-9.     The trial

court and the Commonwealth assert that because Dowdy, in her police

statement, indicated that she observed Gonzalez opening her window, it was

reasonable to infer that in the course of opening the window, some portion

of Gonzalez’s hand or arm entered Dowdy’s bedroom.         See id.   In so

arguing, the trial court and the Commonwealth rely on Commonwealth v.

Myers, 297 A.2d 151 (Pa. Super. 1972).

     We conclude, however, that Myers is inapplicable to this case.      In

Myers, police discovered the defendant standing in front of a door to a gas

station and the door to the station had been splintered around the lock

assembly, the window closest to the doorknob had been broken, and twenty

minutes before, police had inspected that same gas station and the door was

not damaged.     Id. at 152.    The trial court sustained the defendant’s

demurrer to the evidence on a charge of burglary finding that the evidence

was insufficient to establish the element of entry necessary for a burglary

conviction. Id. at 152. This Court reversed, finding:

              It is true that in this case there is no direct
           evidence of an entry. But the condition of the door
           suggests that an entry did in fact occur. The frame
           was damaged as if someone had attempted to batter
           in the door.    Since the window closest to the
           doorknob had been broken as well, it would not be
           unreasonable to assume that the defendant had
           reached his arm inside to try to unlock the door
           before resorting to breaking it down.      And the
           passing of an arm through a window is enough to




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            satisfy the entry requirement, for the entry of any
            part of the body is sufficient to constitute a burglary.

Id.

      Here, unlike Myers, there is no evidence that Gonzalez broke Dowdy’s

window. Additionally, although the certified record does reflect that Dowdy’s

window was open when Gonzalez was attempting to enter her bedroom,

there is no evidence in the certified record on appeal that Gonzalez opened

Dowdy’s window.2 Dowdy testified that she had left the window “cracked”

prior to the incident and Officer Phillip Muscarnero (“Officer Muscarnero”)

stated that he “observed the window open.” See N.T., 4/4/14, at 17-18, 36.

Neither Dowdy nor Officer Muscarnero testified that they observed Gonzalez

opening Dowdy’s bedroom window. Moreover, even if there was evidence of

record that Gonzalez opened Dowdy’s window, that does not indicate that a

portion of Gonzalez’s body entered Dowdy’s bedroom.             It is certainly

possible for a person to open an already cracked window from that window’s

exterior.



2
   The trial court and the Commonwealth assert that there is evidence in the
record that Gonzalez opened Dowdy’s bedroom window because Dowdy
indicated that he had done so in her police statement. See Trial Court
Opinion, 3/2/15, at 11-12; Commonwealth’s Brief at 9 n.3. Although
defense counsel impeached Dowdy with portions of her police statement on
cross-examination, that statement is not part of the certified record on
appeal, as defense counsel never moved for its introduction into evidence.
See N.T., 4/14/15, at 25-26. “It is black letter law in this jurisdiction that
an appellate court cannot consider anything which is not part of the record in
the case.” Commonwealth v. Martz, 926 A.2d 514, 524 (Pa. Super.
2007).


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     Therefore, based on our review of the certified record, it was not

reasonable for the trial court to infer that some portion of Gonzalez’s body

entered Dowdy’s bedroom.     Accordingly, we reverse Gonzalez’s burglary

conviction and remand this matter to the trial court for re-sentencing.

Because we are vacating Gonzalez’s burglary condition, we need not address

his second issue.

     Judgment of sentence affirmed in part and reversed in part.       Case

remanded. Jurisdiction relinquished.

     Bender, P.J.E. joins the Memorandum.

     Mundy, J. notes her dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2015




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