Com v. Phinizy, C.

• Court: Superior Court of Pennsylvania
• Decided: December 2, 2015
• Docket: 1627 EDA 2015
• Status: Unpublished

Opinion

J-S70040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

COREY PHINIZY

Appellant No. 1627 EDA 2015

Appeal from the Judgment of Sentence April 9, 2015 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0000358-2014

BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 02, 2015

Corey Phinizy appeals from the judgment of sentence entered in the

Court of Common Pleas of Montgomery County following his convictions for

burglary1 and criminal trespass.2 After our review, we affirm.

On October 21, 2013, Jayson Leypolt was awakened in the early

morning by a rustling sound in his bedroom; he saw a man using a cell

phone for light and rummaging through his closet. Leypolt was able to

chase Phinizy from his home. Leypolt reported the incident to the

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* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. § 3502. 2 18 Pa.C.S.A. § 3503. J-S70040-15

Conshohocken Borough Police Department and identified Phinizy from a

photo array.

At trial, Phinizy admitted on cross-examination that he did not know

the victim. He admitted that he entered the victim’s apartment without

permission, that he was trespassing, and that he went there to buy

marijuana from someone named Dwayne Johnson. N.T. Trial, 12/22/14, at

87-89, 91.

Following trial, a jury convicted Phinizy of burglary and criminal

trespass. The court sentenced him to a term of imprisonment of five to

fifteen years’ imprisonment. On appeal, Phinizy raises one issue for our

review: “Did the trial court err in denying the motion for judgment of

acquittal and thereafter finding appellant guilty of the crime of burglary since

there was no sufficient evidence beyond a reasonable doubt of unlicensed

entering with intent to commit a crime therein?”

Phinizy’s claim is waived. The court ordered Phinizy to file a Pa.R.A.P.

1925(b) statement of errors complained of on appeal. Trial Court Order,

6/9/15. In his Rule 1925(b) Statement, Phinizy stated: “The evidence was

insufficient as a matter of law to convict appellant of Burglary[.]” Pa.R.A.P.

1925(b) Statement, 6/29/15. The trial court noted that Phinizy failed to

identify which elements of his burglary conviction were not established at

trial. See Trial Court Opinion, 7/14/15, at 4.

In order to preserve a challenge to sufficiency of the evidence on

appeal, an appellant must state with specificity the element or elements of

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the crime upon which he alleges the evidence was insufficient. See

Commonwealth v. Veon, 109 A.3d 754, 775 (Pa. Super. 2015), citing

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) and

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009). Here,

Phinizy’s Rule 1925(b) Statement fails to identify which specific element of

his burglary conviction lacked sufficient evidence. See Garland.

Accordingly, we find Phinizy’s claim waived on appeal.3

Judgment of sentence affirmed.

3 Were we to address the merits of this claim, we would find the evidence sufficient to support the burglary conviction. In a challenge to sufficiency of the evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Hall, 701 A.2d 190, 195 (Pa. 1997). The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Commonwealth v. Dellavecchia, 725 A.2d 186, 188 (Pa. Super. 1998)(en banc). 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.A. § 3502. Phinizy argues he had no intention of stealing anything or of committing any violent act. He claims his actions were a result of “mere stupidity as opposed to criminality.” Appellant’s Brief, at 9. The jury, however, was convinced otherwise. The victim awoke to find Phinizy rifling through bags in his bedroom closet. The jury could certainly infer that Phinizy was searching for items to steal. The circumstantial evidence was sufficient to support Phinizy’s burglary conviction.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/2/2015

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