Com. v. Fortson, T., Jr.

• Court: Superior Court of Pennsylvania
• Decided: January 23, 2023
• Docket: 570 MDA 2021
• Status: Unpublished

Opinion

J-A19028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TERRY LEE FORTSON JR. : : Appellant : No. 570 MDA 2021

Appeal from the Judgment of Sentence Entered December 9, 2020 In the Court of Common Pleas of Juniata County Criminal Division at No(s): CP-34-CR-0000086-2019

BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.: FILED JANUARY 23, 2023

Appellant, Terry Lee Fortson, Jr., appeals from the judgment of sentence

entered in the Juniata County Court of Common Pleas, following his jury trial

convictions for burglary, attempted burglary, criminal trespass, possession of

marijuana, possession of drug paraphernalia, theft by unlawful taking, and

harassment.1 We affirm Appellant’s convictions; however, we vacate the

sentence imposed for his conviction for theft by unlawful taking.

The relevant facts and procedural history of this case are as follows. On

March 29, 2019, Appellant and his co-defendant, Kristy LaRosa, traveled to

Brookline Manor, a long-term and short-term care facility. Appellant entered

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3502(a)(1)(ii), 901(a), 3503(a)(1)(i); 35 P.S. § 780- 113(a)(31)(i), (a)(32); 18 Pa.C.S.A. §§ 3921(a), 2709(a)(1). J-A19028-22

Brookline Manor through the main entrance and then proceeded down the

administrative hallway to the office of the activity director. Upon returning to

her office, the activity director, Stephanie Stein, found Appellant standing

behind the door of her office. (N.T. Trial, 9/21/20, at 26). Appellant was not

permitted to be in her office, and there was no reason for him to be there.

(Id. at 25, 30). Ms. Stein led Appellant back into the hallway, where he

pushed her shoulder. Ms. Stein then ducked into the business manager’s

office and called 911. (Id. at 27). After the police arrived, Ms. Stein returned

to her office and noticed that the $20 bill she had taken from the ATM earlier

that day was not in her wallet. (Id. at 32).

After the incident at Brookline Manor, Appellant and LaRosa drove to the

Bargain Barn. While they were driving, Appellant gave LaRosa a $20 bill for

gas money. (Id. at 71). She then dropped him off at the Bargain Barn and

waited in her car. (Id.)

Alesia Dalton, an associate at Bargain Barn, testified that she saw

Appellant come into the store, and then walk behind the counter, where the

cash register and other paperwork is located and where the workers sort

clothing. She explained that behind the counter is the business area of the

store where customers are not typically allowed. (Id. at 47-48). Ms. Dalton

asked Appellant if he needed help and he said he was looking for some jeans.

(Id. at 45-46). Ms. Dalton recalled that she escorted him to the men’s jeans

section, but then left the store immediately to call her boss. She explained to

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her boss that Appellant was acting strange and that she wanted him to come

to the store. (Id. at 49).

While she was outside, Ms. Dalton looked through the glass door and

noticed Appellant again behind the counter, this time pushing buttons on the

cash register. (Id. at 50). She confronted Appellant and he left without

opening the cash register. (Id.) Ms. Dalton then called 911.

Police arrived and apprehended Appellant nearby. During his arrest,

Appellant was found to be in possession of a small amount of marijuana and

a glass pipe. The Commonwealth charged Appellant with burglary in

connection with the Brookline Manor incident, attempted burglary in

connection with the Bargain Barn incident, criminal trespass of Brookline

Manor, possession of a small amount of marijuana, possession of drug

paraphernalia, theft by unlawful taking, and harassment.

On September 21, 2020, a jury convicted Appellant of all charges. On

December 9, 2020, the court sentenced Appellant to five to ten years of

incarceration for burglary; one to two years of incarceration for attempted

burglary, consecutive to the sentence for burglary; six to twelve months of

incarceration, concurrently, for criminal trespass; fifteen to thirty days’

imprisonment, concurrently, for possession of marijuana; three to six months

of incarceration, concurrently, for possession of drug paraphernalia; three to

six months of incarceration, concurrently, for theft by unlawful taking; and

imposed a $25 fine for harassment.

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Appellant filed a timely post sentence motion, which the trial court

denied on March 30, 2021. Appellant filed a timely notice of appeal on April

26, 2021. On June 4, 2021, the court ordered Appellant to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b), and

Appellant timely complied.

Appellant raises the following five issues:

1. Was the evidence at trial insufficient to prove beyond a reasonable doubt that Appellant committed the crime of burglary where the Commonwealth failed to prove that Appellant entered a portion of Brookline Manor adapted for overnight accommodations?

2. Was the evidence at trial insufficient to prove beyond a reasonable doubt that Appellant committed the crime of attempted burglary, where the Commonwealth failed to prove that Appellant entered a separately secured portion of the Bargain Barn business that was open to the public?

3. Did the trial court err in denying Appellant’s post-sentence motion requesting vacated sentences, arrest of judgment and a new trial, where the verdict for the charges of burglary and theft by unlawful taking were so contrary to the weight of the evidence that it shocks one’s sense of justice, where the Commonwealth’s witness, Kristy LaRosa, testified that the $20.00 recovered from her was in her possession prior to criminal activity and where no witness testified that they observed Appellant in possession of the twenty-dollar bill allegedly taken from Brookline Manor?

4. Did the trial court err in failing to merge the crimes of criminal trespass and burglary for purposes of sentencing, thereby resulting in an illegal sentence?

5. Did the trial court err in failing to merge the crimes of theft by unlawful taking and burglary for purposes of sentencing, thereby resulting in an illegal sentence?

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(Appellant’s Brief at 6-7).

Appellant’s first two issues concern the sufficiency of the evidence to

support his convictions for burglary and attempted burglary. In reviewing a

challenge to the sufficiency of the evidence, our well-settled standard of

review is as follows:

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. 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. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. 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.

The Commonwealth may sustain its burden by means of wholly circumstantial evidence. Accordingly, [t]he fact that the evidence establishing a defendant’s participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. 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.

Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019)

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

2013)).

In his first issue, Appellant argues that the Commonwealth failed to

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prove that the structure he entered at Brookline Manor was adapted for

overnight accommodations. Specifically, Appellant claims the area of

Brookline Manor which he entered was an administrative wing, separate from

the portion of the building adapted for overnight accommodations and not part

of the living spaces dedicated to the residents. Appellant insists that because

the evidence adduced at trial did not establish that he entered any portion of

the residential wings, the Commonwealth failed to prove the overnight

accommodation element necessary to support his burglary conviction.

(Appellant’s Brief at 18-19). We disagree.

The version of Section 3502 of the Crimes Code that was in effect at the

time of Appellant’s offenses defines burglary, in relevant part, as follows:

§ 3502. Burglary

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

(1)(i) 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 and the person commits, attempts or threatens to commit a bodily injury crime therein;

18 Pa.C.S.A. § 3502(a)(1)(i) (effective Jan. 3, 2017 to September 8, 2022).

“To determine whether a structure is adapted for overnight

accommodation, a court considers ‘the nature of the structure itself and its

intended use, and not whether the structure is in fact inhabited.’”

Commonwealth v. Rivera, 983 A.2d 767, 769 (Pa.Super. 2009), appeal

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denied, 606 Pa. 647, 992 A.2d 888 (2010) (quoting Commonwealth v.

Nixon, 801 A.2d 1241, 1247 (Pa.Super. 2002)).

In Rivera, supra, this Court considered whether evidence established

that a structure was adapted for overnight accommodation. There, the

structure in question was the complainant’s basement which was “accessed

only through an exterior entrance” but was “below the apartments under the

same roof, and the complainant use[d] it to store personal belongings.” Id.

at 770-71. This Court noted that the fact that the basement was accessible

only through a separate exterior entrance “does not sever it from the rest of

the house.” Id. at 771. The Court held that the basement was functionally

connected to the rest of the house and was habitable itself, therefore meeting

the definition of a place adapted for overnight accommodations. Id.

Compare Commonwealth v. Waters, 988 A.2d 681, 684 (Pa.Super. 2009)

(holding Commonwealth failed to show that the “building, structure or portion

entered was part of the living space of the larger structure or was otherwise

adapted for overnight accommodation,” where Commonwealth produced no

evidence that: tenants of apartments had keys or access to basements

burglarized by defendants, (2) basements were part of living space of houses

for any of tenants, or (3) basements were otherwise accommodated for

overnight accommodation, e.g., had running water or electricity, contained

bed or any other furniture, etc.).

Instantly, the Commonwealth produced evidence that Brookline Manor

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is a care facility with a capacity for housing 85 patients. The building has one

main entrance which then branches off into three hallways: one for long-term

care, one for short-term care, and an administrative hallway. (N.T. Trial at

25). The administrative hallway has four offices and a restroom. Ms. Stein

testified that her office, which Appellant entered, has hooks for coats, a

bookcase with a microwave and refrigerator on it, and her desk. (Id. at 28-

29).

Viewed in the light most favorable to the Commonwealth as verdict

winner, the evidence was sufficient to sustain Appellant’s burglary conviction.

Sebolka, supra. Brookline Manor provides overnight accommodations for up

to 85 patients. The administrative wing of that facility uses the same main

entrance as the patient care wings. The areas are within one contiguous

structure, which has been adapted for overnight accommodation.

Significantly, the administrative wing is not severed from the rest of the

facility. Moreover, Ms. Stein’s office within the administrative wing contained

a desk, coat hooks, a bookcase, a microwave, and a refrigerator. As such, we

conclude that Brookside Manor, including Ms. Stein’s office within the

administrative wing, meets the definition of a place adapted for overnight

accommodation. See Rivera, supra. Therefore, the evidence support’s

Appellant’s conviction for burglary. Appellant’s first issue merits no relief.

In his second issue, Appellant challenges the sufficiency of the evidence

to support his conviction for attempted burglary of the Bargain Barn.

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Appellant claims that the Commonwealth failed to establish that the portion

of the Bargain Barn he entered where the cash register was located was not

a separately secured or occupied portion of the business. (Appellant’s Brief

at 19-20). Appellant alleges that the store was open to the public when he

entered, and the counter with the cash register was not blocked off in any way

from the parts of the store that were open to the public. Appellant concludes

the evidence was insufficient to prove he was guilty of attempted burglary,

and this Court must grant relief. We disagree.

An individual commits the offense of attempted2 burglary under the

subsection charged 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 in

which at the time of the offense any person is present[.]” 18 Pa.C.S.A. §

3502(a)(3) (effective Jan. 3, 2017 to September 8, 2022).

Although there is a dearth of case law specifically analyzing “separately

secured” for purposes of the burglary statute, this Court has considered such

language for purposes of the criminal trespass statute. See, e.g.,

Commonwealth v. Cook, 547 A.2d 406, 409 (Pa.Super. 1988) (affirming

appellant’s conviction for criminal trespass where appellant entered stockroom

2“A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S.A. § 901(a).

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which had closed door that was secured by unlocked padlock);

Commonwealth v. White, 538 A.2d 887, 888 (Pa.Super. 1988) (holding that

ladies’ room entered by appellant was separately secured or occupied portion

of country club).

Here, the record demonstrates that the area behind the cashier’s

register was a separately secured portion of the store, akin to an “employee’s

only” section where store patrons are not permitted. On this record and

viewed in the evidence most favorable to the Commonwealth as verdict-

winner, the evidence was sufficient to convict Appellant of attempted burglary.

See Sebolka, supra. Appellant’s second issue merits no relief.

In his third issue, Appellant claims the jury’s burglary verdict was

against the weight of the evidence. Initially, however, we must consider

whether Appellant has preserved this claim for our review. “[I]ssues not

raised in a [Rule] 1925(b) statement will be deemed waived.”

Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005)

(quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309

(1998)). “Rule 1925(b) waivers may be raised by the appellate court sua

sponte.” Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484, 494

(2011), (overruled on other grounds by Commonwealth v. Bradley, 609 Pa.

410, 261 A.3d 381 (2021)).

Here, although Appellant raised his challenge to the weight of the

evidence in his post-sentence motion, he did not include this claim in his Rule

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1925(b) statement of errors complained of on appeal. (See Statement of

Errors Complained of on Appeal, filed 6/25/21). Therefore, the trial court did

not address this argument in its Rule 1925(a) opinion. (See Trial Court

Opinion, filed 10/12/21). Accordingly, Appellant’s weight claim is waived.3

In his fourth issue, Appellant argues the trial court imposed an illegal

sentence when it failed to merge for sentencing purposes Appellant’s burglary

and criminal trespass convictions. Therefore, Appellant claims the sentence

imposed is an illegal sentence which must be vacated.4 (Appellant’s Brief at

26-28). We disagree.

A claim that the trial court imposed an illegal sentence by failing to

3 Moreover, even if not waived, Appellant’s claim would not merit relief. We review a challenge to the weight of the evidence for an abuse of discretion. Commonwealth v. Houser, 610 Pa. 264, 276, 18 A.3d 1128, 1135 (2011) Here, Ms. Stein testified that she had a $20 bill in her wallet prior to Appellant entering her office, which was no longer there when she searched her purse after he left. Additionally, LaRosa testified that when she picked up Appellant outside Brookline Manor, he handed her a $20 bill. The jury found that this circumstantial evidence proved Appellant was guilty of burglary. Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa.Super. 2011) (explaining that Commonwealth may satisfy its burden of proof through wholly circumstantial evidence). The trial court denied Appellant’s post-sentence motion, finding that the verdict did not shock one’s sense of justice. See Houser, supra at 276, 18 A.3d at 1135-36 (stating: “[A] new trial based on a weight of the evidence claim is only warranted where the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice”) (citation omitted). Upon review, we conclude that the trial court did not abuse its discretion in denying Appellant’s weight challenge. See id.

4 Although Appellant acknowledges that this Court has held that criminal trespass does not merge with burglary for sentencing purposes, he indicated that he wants “to preserve this issue for en banc consideration or Supreme Court review.” (Appellant’s Brief at 27).

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merge sentences is a question of law. Commonwealth v. Allen, 24 A.3d

1058, 1062 (Pa.Super. 2011). Accordingly, our standard of review is de novo

and our scope of review is plenary. Id.

Our legislature has addressed the mandatory merger of crimes for the

purpose of sentencing in Section 9765 of the Sentencing Code, which

provides:

§ 9765. Merger of sentences

No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765. Concerning the appropriate test for merger of crimes

for sentencing, “[t]he statute’s mandate is clear. It prohibits merger unless

two distinct facts are present: 1) the crimes arise from a single criminal act;

and 2) all of the statutory elements of one of the offenses are included in the

statutory elements of the other.” Commonwealth v. Baldwin, 604 Pa. 34,

39, 985 A.2d 830, 833 (2009). However, “there is no merger if each offense

requires proof of an element the other does not.” Commonwealth v.

Quintua, 56 A.3d 399, 401 (Pa.Super. 2012), appeal denied, 620 Pa. 730, 70

A.3d 810 (2013) (citations omitted).

In Quintua, supra, this Court considered the same issue raised in this

matter, whether criminal trespass and burglary should merge for sentencing

purposes. There, the court concluded that:

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[e]xamining the elements of criminal trespass,[5] a conviction for that offense requires a person: (1) to break or enter into with subterfuge any building or occupied structure; (2) knowing he is not licensed or privileged to do so. See 18 Pa.C.S.A. § 3503(a)(1). On the other hand, to commit burglary, a person must: (1) enter a building or occupied structure; (2) with intent to commit a crime therein. See 18 Pa.C.S.A. § 3502(a). The plain language of the respective statutes demonstrates why they do not merge. Criminal trespass contains an element of knowledge—a person committing that offense must know he is not privileged to enter the premises. Burglary has no such knowledge requirement. Burglary does, however, require intent to commit a crime within the premises, an element that criminal trespass lacks. As each offense requires proof of an element the other does not, the sentences should not merge.

Id. at 402 (case citation omitted).

Based on the discussion and holding in Quintua, Appellant’s argument

is meritless. His sentences for burglary and criminal trespass do not merge.

Thus, Appellant’s fourth issue merits no relief.

5At the time of Appellant’s offense, the Crimes Code defined criminal trespass as follows:

§ 3503. Criminal trespass

(a) Buildings and occupied structures.—

(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:

(i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof.

18 Pa.C.S.A. § 3503(a)(1)(i) (effective June 20, 2016 to January 26, 2020).

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In his final issue, Appellant claims that his misdemeanor theft by

unlawful taking conviction should have merged for sentencing with his

burglary conviction. (Appellant’s Brief at 29-30). Both the trial court and

Commonwealth agree that the charges should have merged for sentencing.

(See Trial Court Opinion at 7; Commonwealth’s Brief at 16). We agree.

Section 3502(d) of the Crimes Code states: “A person may not be

sentenced both for burglary and for the offense which it was his intent to

commit after the burglarious entry or for an attempt to commit that offense,

unless the additional offense constitutes a felony of the first or second

degree.” 18 Pa.C.S.A. § 3502(d). See also Commonwealth v. Diaz, 867

A.2d 1285, 1288 (Pa.Super. 2005) (holding that theft that occurred during

course of burglary merges with corresponding burglary).

Based on the language of Section 3502(d), we agree with the parties

that Appellant should not have been sentenced for both the burglary and the

misdemeanor theft conviction. Accordingly, we affirm Appellant’s convictions

but vacate only his sentence of three to six months of incarceration for theft.

However, because this sentence was imposed concurrent to the remainder of

Appellant’s sentences, vacating Appellant’s theft sentence does not upset the

trial court’s sentencing scheme. Therefore, we are not required to remand to

the trial court. See Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.Super.

2006), appeal denied, 596 Pa. 745, 946 A.2d 687 (2008) (stating: “[I]f our

decision does not alter the overall scheme, there is no need for a remand”)

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(citation omitted).

Convictions affirmed. Judgment of sentence vacated in part.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/23/2023

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