Com. v. Ritchey, J.
This text of Com. v. Ritchey, J. (Com. v. Ritchey, J.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
J-S22004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JERRY LEE RITCHEY, JR.
Appellant No. 96 WDA 2014
Appeal from the Judgment of Sentence December 10, 2013 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000029-2012
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JUNE 17, 2015
Appellant, Jerry Lee Ritchey, Jr., appeals from the judgment of
sentence entered by the Honorable Oliver J. Lobaugh, Court of Common
Pleas of Venango County, after a jury convicted Ritchey on a variety of
charges arising from a string of late night commercial burglaries. We affirm.
After an extensive investigation, including placing a GPS tracker on
Ritchey’s vehicle, the Commonwealth charged Ritchey with 16 counts of
crimes associated with the burglary of 5 buildings, as well as an attempted
burglary. A jury convicted Ritchey on the 13 misdemeanor and felony
charges, while the trial court found Ritchey guilty on the remaining 3
charges of summary criminal mischief. ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S22004-15
On December 10, 2013, the trial court sentenced Ritchey to an
aggregate term of incarceration of 96 to 192 months. This timely appeal
followed.
On appeal, Ritchey raises six issues for our review. The first three
issues concern the propriety of the trial court’s decision to permit the
Commonwealth to introduce evidence obtained pursuant to the GPS
tracking. After reviewing the briefs of the parties and the certified record,
we conclude that the trial court’s June 24, 2013 opinion thoroughly and
adequately addresses the issues raised by Ritchey.1 We therefore affirm on
____________________________________________
1 The trial court found that Ritchey’s challenge to the jurisdiction of the Allegheny County Court of Common Pleas merited no relief as the argument was based on a subsequent amendment to the Wiretap Act and that under the then-existing language of the Wiretap Act, Allegheny County Court of Common Pleas had jurisdiction. While we agree with the trial court’s reasoning, we further note that even under the subsequent amendment, Allegheny County had jurisdiction to approve the wiretap application. Under the amendment, the “court issuing the order must have jurisdiction over the offense under investigation.” 18 Pa.C.S.A. § 5761(b).
Controversies arising out of violations of the Crimes Code are entrusted to the original jurisdiction of the courts of common pleas for resolution. See 18 Pa.C.S. § 102. Every jurist within that tier of the unified judicial system is competent to hear and decide a matter arising out of the Crimes Code. Pa. Const. Art. 5, § 5 (establishing the jurisdiction of the courts of common pleas within the unified judicial system).
Commonwealth v. Whanger, 30 A.3d 1212 (Pa. Super. 2011). Thus, the amendment served to expand jurisdiction to any Common Pleas court, not contract it.
(Footnote Continued Next Page)
-2- J-S22004-15
these issues on the basis of Judge Lobaugh’s well-written opinion. See Trial
Court Opinion, 6/24/13.
Next, Ritchey challenges the sufficiency of the evidence supporting his
convictions. After reviewing the briefs of the parties and the certified record,
we conclude that the trial court’s June 17, 2014 opinion thoroughly and
adequately addresses this issue. See Trial Court Opinion, 6/17/14, at 5-12.
We therefore affirm on this issue on the basis of Judge Lobaugh’s well-
written opinion.
Next, Ritchey challenges the trial court’s decision to allow the
introduction of evidence of prior criminal convictions. Specifically, the trial
court allowed the Commonwealth to present evidence of Ritchey’s burglary _______________________ (Footnote Continued)
We disagree with the concurring memorandum’s suggestion that the foregoing is an “incorrect” summary of the law. Concurring Memorandum, at 1-2. The concurring memorandum (and also 16 West Pa. Prac., Criminal Practice § 11:4) cites an older Superior Court case that repeated a common mistake, since explicitly repudiated by the Supreme Court of Pennsylvania, of confusing jurisdiction with venue.
In Commonwealth v. Bethea, 828 A.2d 1066 (Pa. 2003), the Court noted that these terms were often used interchangeably, but reiterated that they were distinct legal categories. See id., at 1074-1075. Importantly, the Court stated that “each court of common pleas within this Commonwealth possesses the same subject matter jurisdiction to resolve cases arising under the Pennsylvania Crimes Code, that jurisdiction should only be exercised beyond the territorial boundaries of the judicial district in which it sits in the most limited of circumstances. Rules of venue recognize the propriety of imposing geographic limitations on the exercise of jurisdiction.” Id., at 1075 (emphasis added). And “venue pertains to the locality most convenient to the proper disposition of a matter.” Id., at 1074-1075.
-3- J-S22004-15
convictions in Clearfield County as evidence of a common scheme, design or
plan. We note that
the admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact. Evidence, even if relevant, may be excluded if its probative value is outweighed by the potential prejudice.
Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012)
(internal citations omitted).
It is impermissible to present evidence at trial of a defendant’s prior
bad acts or crimes to establish the defendant’s criminal character or
proclivities. See Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.
Super. 2008). Such evidence, however, may be admissible “where it is
relevant for some other legitimate purpose and not utilized solely to blacken
the defendant’s character.” Commonwealth v. Russell, 938 A.2d 1082,
1092 (Pa. Super. 2007) (citation omitted).
Pennsylvania Rule of Evidence 404(b)(2) provides that “[e]vidence of
other crimes, wrongs, or acts may be admitted for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity
or absence of mistake or accident.” Pa.R.E., Rule 404(b)(2). Rule
404(b)(3), however, mandates that other crimes, wrongs, or acts evidence
“may be admitted in a criminal case only upon a showing that the probative
-4- J-S22004-15
value of the evidence outweighs its potential for prejudice.” Pa.R.E., Rule
404(b)(3). See also Russell, 938 A.2d at 1092. “‘Unfair prejudice’ means a
tendency to suggest decision on an improper basis or divert the jury’s
attention away from its duty of weighing the evidence impartially.”
Commonwealth v. Wright, 961 A.2d 119, 151 (Pa. 2008) (citation
omitted).
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J-S22004-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JERRY LEE RITCHEY, JR.
Appellant No. 96 WDA 2014
Appeal from the Judgment of Sentence December 10, 2013 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000029-2012
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JUNE 17, 2015
Appellant, Jerry Lee Ritchey, Jr., appeals from the judgment of
sentence entered by the Honorable Oliver J. Lobaugh, Court of Common
Pleas of Venango County, after a jury convicted Ritchey on a variety of
charges arising from a string of late night commercial burglaries. We affirm.
After an extensive investigation, including placing a GPS tracker on
Ritchey’s vehicle, the Commonwealth charged Ritchey with 16 counts of
crimes associated with the burglary of 5 buildings, as well as an attempted
burglary. A jury convicted Ritchey on the 13 misdemeanor and felony
charges, while the trial court found Ritchey guilty on the remaining 3
charges of summary criminal mischief. ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S22004-15
On December 10, 2013, the trial court sentenced Ritchey to an
aggregate term of incarceration of 96 to 192 months. This timely appeal
followed.
On appeal, Ritchey raises six issues for our review. The first three
issues concern the propriety of the trial court’s decision to permit the
Commonwealth to introduce evidence obtained pursuant to the GPS
tracking. After reviewing the briefs of the parties and the certified record,
we conclude that the trial court’s June 24, 2013 opinion thoroughly and
adequately addresses the issues raised by Ritchey.1 We therefore affirm on
____________________________________________
1 The trial court found that Ritchey’s challenge to the jurisdiction of the Allegheny County Court of Common Pleas merited no relief as the argument was based on a subsequent amendment to the Wiretap Act and that under the then-existing language of the Wiretap Act, Allegheny County Court of Common Pleas had jurisdiction. While we agree with the trial court’s reasoning, we further note that even under the subsequent amendment, Allegheny County had jurisdiction to approve the wiretap application. Under the amendment, the “court issuing the order must have jurisdiction over the offense under investigation.” 18 Pa.C.S.A. § 5761(b).
Controversies arising out of violations of the Crimes Code are entrusted to the original jurisdiction of the courts of common pleas for resolution. See 18 Pa.C.S. § 102. Every jurist within that tier of the unified judicial system is competent to hear and decide a matter arising out of the Crimes Code. Pa. Const. Art. 5, § 5 (establishing the jurisdiction of the courts of common pleas within the unified judicial system).
Commonwealth v. Whanger, 30 A.3d 1212 (Pa. Super. 2011). Thus, the amendment served to expand jurisdiction to any Common Pleas court, not contract it.
(Footnote Continued Next Page)
-2- J-S22004-15
these issues on the basis of Judge Lobaugh’s well-written opinion. See Trial
Court Opinion, 6/24/13.
Next, Ritchey challenges the sufficiency of the evidence supporting his
convictions. After reviewing the briefs of the parties and the certified record,
we conclude that the trial court’s June 17, 2014 opinion thoroughly and
adequately addresses this issue. See Trial Court Opinion, 6/17/14, at 5-12.
We therefore affirm on this issue on the basis of Judge Lobaugh’s well-
written opinion.
Next, Ritchey challenges the trial court’s decision to allow the
introduction of evidence of prior criminal convictions. Specifically, the trial
court allowed the Commonwealth to present evidence of Ritchey’s burglary _______________________ (Footnote Continued)
We disagree with the concurring memorandum’s suggestion that the foregoing is an “incorrect” summary of the law. Concurring Memorandum, at 1-2. The concurring memorandum (and also 16 West Pa. Prac., Criminal Practice § 11:4) cites an older Superior Court case that repeated a common mistake, since explicitly repudiated by the Supreme Court of Pennsylvania, of confusing jurisdiction with venue.
In Commonwealth v. Bethea, 828 A.2d 1066 (Pa. 2003), the Court noted that these terms were often used interchangeably, but reiterated that they were distinct legal categories. See id., at 1074-1075. Importantly, the Court stated that “each court of common pleas within this Commonwealth possesses the same subject matter jurisdiction to resolve cases arising under the Pennsylvania Crimes Code, that jurisdiction should only be exercised beyond the territorial boundaries of the judicial district in which it sits in the most limited of circumstances. Rules of venue recognize the propriety of imposing geographic limitations on the exercise of jurisdiction.” Id., at 1075 (emphasis added). And “venue pertains to the locality most convenient to the proper disposition of a matter.” Id., at 1074-1075.
-3- J-S22004-15
convictions in Clearfield County as evidence of a common scheme, design or
plan. We note that
the admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion. Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact. Evidence, even if relevant, may be excluded if its probative value is outweighed by the potential prejudice.
Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012)
(internal citations omitted).
It is impermissible to present evidence at trial of a defendant’s prior
bad acts or crimes to establish the defendant’s criminal character or
proclivities. See Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.
Super. 2008). Such evidence, however, may be admissible “where it is
relevant for some other legitimate purpose and not utilized solely to blacken
the defendant’s character.” Commonwealth v. Russell, 938 A.2d 1082,
1092 (Pa. Super. 2007) (citation omitted).
Pennsylvania Rule of Evidence 404(b)(2) provides that “[e]vidence of
other crimes, wrongs, or acts may be admitted for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity
or absence of mistake or accident.” Pa.R.E., Rule 404(b)(2). Rule
404(b)(3), however, mandates that other crimes, wrongs, or acts evidence
“may be admitted in a criminal case only upon a showing that the probative
-4- J-S22004-15
value of the evidence outweighs its potential for prejudice.” Pa.R.E., Rule
404(b)(3). See also Russell, 938 A.2d at 1092. “‘Unfair prejudice’ means a
tendency to suggest decision on an improper basis or divert the jury’s
attention away from its duty of weighing the evidence impartially.”
Commonwealth v. Wright, 961 A.2d 119, 151 (Pa. 2008) (citation
omitted).
“[T]he function of the trial court is to balance the alleged prejudicial
effect of the evidence against its probative value and it is not for an
appellate court to usurp that function.” Commonwealth v. Parker, 882
A.2d 488, 492 (Pa. Super. 2005) (citation omitted). The law does not
require a court to “sanitize a trial to eliminate all unpleasant facts from the
jury’s consideration where those facts are relevant to the issues at hand and
form part of the history and natural development of the events and offenses
for which the defendant is charged.” Commonwealth v. Page, 965 A.2d
1212, 1220 (Pa. Super. 2009) (citation omitted).
The trial court found that there were 10 “commonalities” between the
crimes for which Ritchey was being tried in Venango County and the crimes
committed in Clearfield County. These commonalities included the fact that
the victims were commercial businesses which were broken into after
business hours; forcible entry using a pry bar; the disabling of security
cameras by cutting their electrical wires; the primary goal of the burglaries
was cash, not equipment or other products; evidence that the burglar
-5- J-S22004-15
utilized gloves during the break-ins; a unique shoe print was found at each
of the ten burglary sites; and that the defendant had bought shoes with that
print prior to the burglaries. See Trial Court Opinion, 6/24/13, at 18-19.
We cannot conclude that the trial court’s reasoning constituted an abuse of
discretion, and therefore find that Ritchey’s argument merits no relief.
In his final issue on appeal, Ritchey contends that the trial court
abused its discretion in imposing sentence. Ritchey concedes that this
argument constitutes a challenge to the discretionary aspects of his
sentence. See Appellant’s Brief, at 24.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). When challenging the discretionary aspects
of the sentence imposed, an appellant must present a substantial question
as to the inappropriateness of the sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be
met before we will review this challenge on its merits.” McAfee, 849 A.2d
at 274 (citation omitted). “First, an appellant must set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Id. (citation omitted).
“Second, the appellant must show that there is a substantial question
that the sentence imposed is not appropriate under the Sentencing Code.”
-6- J-S22004-15
Id. (citation omitted). That is, “the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.” Tirado,
870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)
statement to determine whether a substantial question exists. See id. “Our
inquiry must focus on the reasons for which the appeal is sought, in contrast
to the facts underlying the appeal, which are necessary only to decide the
appeal on the merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f).
In the present case, Ritchey’s appellate brief contains the requisite
Rule 2119(f) concise statement, and, as such, is in technical compliance with
the requirements to challenge the discretionary aspects of a sentence.
Ritchey argues in his Rule 2119(f) statement that the imposition of
consecutive standard range sentences, as opposed to concurrent sentences,
by the trial court was excessive, and that the trial court failed to consider
the impact of his sentence on his children and ill parents. Ritchey further
argues that the trial court failed to consider his remorsefulness.
“[W]here a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the Sentencing
Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)
(internal citations omitted). The imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly
-7- J-S22004-15
harsh, considering the nature of the crimes and the length of imprisonment.
See id., at 171-172 (Pa. Super. 2010). Given the pre-meditated nature of
Ritchey’s burglary spree, we conclude that the sentences at issue do not fall
into the category of extreme circumstances, and therefore, Ritchey has not
raised a substantial question.
As we conclude that none of Ritchey’s issues on appeal merit relief, we
affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judge Lazarus joins the memorandum.
Judge Strassburger files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/17/2015
-8- Circulated 05/28/2015 10:46 AM
IN 'llll~ COUWI' OF COi'vlMON p1,1~,.\S OF VEN,\NGO COUNTY, l'L·:NNSYLV 1\Nl1\
CO!vltvlONWE,\LTH OF PENNS YI .V /\NI,\, , ..... :. r!..., !.,..''.-·:: No. 29-2012 (..O
c.; ~·- :.:~ ~ ::~~ ::.i::a v, $ ..,.__ i,) ::i·;.,, N C)··~:,_...: ~ -.r-~r JERRY I.EE RITCHEY. JR., C) l"!lf1l Dcfcndam, --0 ::,.:: sr'-o w ... ,,:, ,t•n \,/)
Ol'INJON OF COUHT .,. (.,.) '-'. ...··'~; AN)) NOW, June ;)}L 2013, the Com! has !~>r considcnulon the ivtotion in
Llminc regarding the admission of evidence ohwincd tluuugh a OPS trucker filed by the
Dclcndnnt, Jerry Lee Ritchey. Jr. A hearin]; was held on tbo Motion 011 ,vl<1n;h 18. 20 l3 at
which time Dcfcndnnt was present und represented by counsel lk11j11mi11 Levine, Esq.
and the Co111111n11,wallh was represented by District Auomcy Mmic Vcon, The nuorncys
were gi vcn uni i I ~,Jmch 21 , 2013 lo It le n wri ucn memo on thu mot ion nnd the Court
heard nrgumcn! on Mm'ch 211 201 J. Defense Counsel filed his Memornndllm or Law in Suppt»: oflssucs Raised in Limlne Motion 011 ,vlnrd1 21, 2013. The Commonwcnlth filed
its Memorandum in Opposition 10 the Dctcndants Moti@ lo Suppress or Limit Evidcncc
on Mt1~· 7, 2011 After carclu] considenuion ul' the i\-101ion, 11,c urguuicnt» of counsel,
tcstimuny, and the Mc1rn1rn11dn filed by the C1\lor11cys, the Motion will be denied,
The Criminal Complaint with attached ,\Jfolnvl\ or Probable Cause wns filed with Mngh,tcri~ll Dbmict Judge Douglas Dinberg on November 23, 2011 nlkging 1hnt
:ml'lkicnt probuble cause existed lo believe tluu the defendant hnd w1111ni11cd lh1rglnry
under 18 Pu. C.S.J\. ~3502 (a), Thell bv Unluwful Taking ur Dispositlo» under 18 Pn.
C.S.,\. * 3~)21 (a). Criminul ivlbelikJ"u11dc1· 18 Pa. C.S.1\. § J304 (u) (:il, and Criminal
Aucmpt to Commit Burg.lmy under 18 Pa. C.S.,\. 90 I (H). Dc:!'cmlant hrnl his preliminary Circulated 05/28/2015 10:46 AM
nrmigruncm on December I, 2011. His preliminary hearing was cuntinucd once ru the
1\.'~lLWSl of' the prosecution, once at the request ul' 1h~ defense attorney nnd wm; uliinuucly
wuivcd bv~ 1111.: Defendant on Januarv., I I.. 2012. On Mnrch 30.' 2012. an tnformution \\'US
!ikd alleging Ilve counts or Bmglnry, second degn .'L\ Iclonics under I H l'u, C.S.A. *}502
(a); five counts of Thcl't by Unlnwl\11 Taking, misdemeanors of the first degree under 18
Pa. C.S.,t\. * 3921 (u): live counts ol' Crimlnnl Mischief, :-:1111t1llHl'Y offenses under 18 Pa.
C.S.J\. § .3304 (a)(5); nnd one count of Criminal Aucmpt to Commit nurgl!lr>·1 n second
degree felony under 18 Pn . C.S./\. § ~>01 and 18 Pa. C.S.1\. ~ 3502 (a).
On September 27. 2012 the Honorable H. Willi nm White grnnll!d the i\fotlon 10
Wi thdruw lilcd hy .r. D. Ry1111) Esq.) J)c l'cndunt'~ originu I counsel, On October I G. 2012
Auorncy Jeri Bohon entered her appeurance 011 behalf or the Dclcndum for the l'ublic
Defender's Ol'lict:. On Oc1obL·1· 26. 2012 this Court w·nnlcd a Mntion lc>r u Continuance • 'r
of the trial Illcd bv. Defense . Counsel due to th,· volumlnous amount or discovcrv . received
from the Conuuonwcnlth. On December 19, 2012 this Court granted nnmhcr Contiuunncc
or Jury Selection as the 1)1..fcndaru's uuorncy was leaving her position at the Public
Defender's Office nm! his now counxc] would need sufficient time to review the file and
meet with 1hc Dcfcndnn; to discuss hi\; cuse. 1\l1orncr l\c11ji1min Levine entered his
uppcarauce on bchnlf ol' the Defendant 011 Fchrnnry 111 2013. 1\ jmy was selected on
i'vlnrch 4. 20 I J for ,, three day trial whicl: was scheduled for ~fon.:h IR, I(). nnd 21 . 2013
in Courtroom I nfihc Vcnungo County Courthouse. On the eve ot'rrinl, March 15, 2013,
Defense Counsel riled the instant Motiun in l.imine und nrnlly souglu u continuance of
th<: trinl. The cuntinuunce wos granted. Circulated 05/28/2015 10:46 AM
In his i'v!otion in Li mine, the Di..·l~·ndant seeks the preclusion flt irinl of 1h1.· results
of' ihc Global l'uxitil)ning System device, heruinaftcr referred to us "(iJ>S," as well ns uny
mlditionnl evidence procured through senrch warrunts hucr executed and bused in part
upon the nnulysls of the OPS evidence. Dcfenduuts nrgument for suppression or the evidence is that the evidence obtained u~ing the OPS is inudmissiblc bused on the recent
Supreme Court decision nr U.S. v. Jones. 132 S. Ct. 9115 (2012) nm! the subsequent
Pennsylvania ~upei·lor Court decision ol' Com. ,·. /J/1/',l;lo.1·. Dcfcudunt Iurt her urguos uuu, i r the evidence obtained through the G PS is deemed udmissibic, the evidence should still be suppressed us i1s probative vnluc is outweighed hy the danger u] unluir prejudice, confusion of the issues, or mislvuding tJ)c jury, Final Ir, the Delcndnnt 11rgt1cs tluu the Communwenlth should not be nblc tn use the 111od11.1· O/Jl!l'muli, identity exception 111 Pi\ kulc nl' Evidence ~()
or other similar crimes, wrongs 01· ucts ttl trial, Accordiug to the 1\t'l1 Trucker the lucis alleged IO link the dclcndunt to the burglnrie» nre as follow», llctwccn December 23, 20 IO and July I, 2011 there wus u string nl' twcuty-ninc nighttime commercial burglmil's in Vc1111ngl) County, PA. Each business was entered by force and nny security systems were dis.1hkd prhuurily by cutting 01· dnmnging pbono line connections. Tile burglar p1·irnul'ily removed cash trom the premises uud the combined losses totaled uvcr $2.1,000.00. Due In the dcfcndunt' s presence ul two cummcrciul burglary ll>nt\tl)m, shortly bclorc the burglurics occurred und his prior criminal histoty ol' lhel'l convictions, the dcfcndun: Jerry l.co Ri1ch1J>'. .lr, '''LlS developed as n suspect. Clnrion County I'onnsylvunln Stntc Pollcc had also identified the del'e11dan1 us a suspect ... ,) Circulated 05/28/2015 10:46 AM in a commercial burglnry occurring in Clarion Co11111y in Jununry of 2011 based upon lire truck imprints ul' Dunlop SP (>0 tires recovered 111 the scene. On June 12, 2011 Clarion PSP observed n 1998 Toyota Camry hearing l't\ REG HOK-82.10. registered 10 Jerry Ritchoy Jr., with Dunlop ~p C,O tires, Clarion PSP nuulc contact with th<.: dclbnd11nt ubuut thL' tires on his Tovotu Cnmry 011 June 15. 2011 in the pnrking lol of Sheetz in Clurlon, Pcunsylvnniu. Aller 8pc:iking with the police, the dcfondant Ritchey replaced the tires \)11 his Toyotu Conny. 1\ccordi11g to the Alfidavi! in question, the l'cnnsylvnuia Stt1lc Police beg1111 visuul survcillunce of the defendant during the nighunnc hours, Ritchey was observed m an Oil City residence and a ~trnttanvilk residence. H<.: wns observed npern(ing th~ Tuyotu Cnmrv and the 20 IO lvlazdn sednn, \I ch kit! l .IM l BLI 8011\ I 225D4 on which the GPS unckcr \\'Us ovcntunlly installed. The t·vlnzdn wnx owned by l he wus under visual surveillance on July l. 201 l, the l)d'cnclrnll kit his Oil City residence in the Muzdu at I :00 u.m. Shortly thcrcnfrcr visual survcilluncc ended 10 avoid detection. S11hi,cq11c11t!y1 between 2:20 a.m. and 2:25 n.m., tho security system wns disabled at 84 L111nb\!r on Roule 25 7 in Cranberry Townshi l\ V cna11g11 County, furced 1;111r,·' was mode.. and $600.00 in U.S. currcncv. wn~ taken nt1t or the office. 1\1 3: IO 11.m. t111 electric plute render providing survc i I lance o [' Roule: 25 7 recorded the Mnzdu phue HSD4223 travcliug northbound away from R4 I .umbcr and towards the dctcndam is Oil City residence. Hours before the b11rglnry1 the defendant visircd 811 L111nbL'l' and was udmiucd 11., the office for ubout a half on hour. Addiiionul information from 84 Lumber ,J Circulated 05/28/2015 10:46 AM includes n cell phone number of 814-516-3015 provided lo them us a contact number by Jerry i{ ilchcy. l3ased on these n1ets alleged in the nmduvi(, n GP~ tracking device was plncccl underneath the ivlnzd11 by 11 Court Order pursuaut lo 18 Pa. C.S./\. §576 I obtained from the Allegheny County Court or Common l'lcns on July !), 2011. Thu tracker placed the 1Vh1ida in the vicinity of four commercial burglaries thut occurred on the night or July 20 1 2011~.luly 21, 21)11, namely, The Apex Hydraulic und iV!achine Company, and D.C. Enterprises both locutcd along the Philipslmrginiglor Highway 111 Decatur Township. Clearfield County, the T.L. Bainey Trucking Compan)' located along th~ Philipsburg/Biglcl' Highway in Brndl'mu Tmvn:,;hip, and ihc Hrnd!'onl Township Municipu] Building, Clcuriiold County. The defendant was seen by video surveillance Ill the nrookYille Sheetz prior to the time the burglaries were committed and wus seen ex iring the M(lzdu when he returned to his home hy u member ol' the surveillance team, A n~r his arrest, subsequent search warrn 111.'> were executed tor Dclcndnnt' s Oil City Residence uud Slrnttnnvi I 10 Residence and additionul evidence wns obtained lrom those locations. To prevail on n motion to supprc~~ evidence, the dd~~IKl.\lll "hHS 1he prclimi\\nry burden ol'cstnbli:;hing stumling n11d H lcgirimute expectation ofprivacy." Com. ,,. 8111·/011, 1)73 /\.2d 1128, 435 (Pa. Super. 2009)(
delcnduru uiust provide proof' or ownership or a strong showing or II posscssory interest in thl.! vehicle. 1\1 the hcnring the Distric! Auornov conceded 1l1c1t Dclcudnnt hud estnblishcd swnding and :i lcgitinuuc cxpcctution or privacy in the Mnzdu vehicle with II Circulated 05/28/2015 10:46 AM vehicle idenliiicntiou number of JMl.)LISCilJ\1225734 nnd n Pcnnsylvnnin Rcgisnution N11n1b~r ol' HSD-4223 owned by defendant's employer Luton Plumbing und Hoatlng, Ddendunt had a possossory interest in tho Mut'.dn as he was making monthly payments 10 his employer in order to purchase the Muzdu. Once the defendant hn:,; established stnnding, the burden shins to the Commonwealth "to establish hy a prcpondernnce nf th0 evidence tluu !he challenged evidence is admissible." C:0111. v. Powell. 99{l A,2d I 0%, 110 I (Pa. Super. 20 ! O)(citulions omitted). In 2012, nlkr the wircmp worrnnt hnd been obtained in t his case, the Un] tcd States Supreme Court ruled in UnitiJcl States 11 • Jones. thitl the placement of u GPS device on n suspcct's car constitutes a search. 132 S.CI. 945, 949 (2() 12). Evidcnc(! obtained from a warrnrulcss use of a OPS device on the supsccts car wn:; held to violate the Fourth Amendment. See Id. al 941). The rumificntlon» or this ruling have been discussed in two Pcnnsylvnnin Superior Court decisions, Com. ,,. Arthur. 62 A.Jd 424 (Pa. Super. 2013) and Com. ,,. B11l'gos, 611 A.Jd 641 (Pa. Super.2013). The Superior Court in H111·,!.!<>S uddrcs~cd the mutter or whether lnstnllnllon nnd subsequent monitoring or the GPS LH\ Burgo's truck wes per se unreasonable where the police obtained 11 statutorily prescribed wirct11p order, approved by judicial mnhority, pursuant to Section 576 ! as an issue or Iirst imrre:rnion tll tho appellate level in . Pcnnsvlvanin. nddres'}; whether the government must obtain a warrnnt to install and use u GPS trucklug device, and i I' nut, what level o!' suspicion is reqiurcd, reasonable suspicion or probable cause." Id. ,ll 649. The Rlfl'gns Court concluded thnl in order I'm the police 10 mrnel1 nnd monitor a OPS tracking device to :111 individual vehicle in Pcnnsylvuniu, the police must 6 Circulated 05/28/2015 10:46 AM have probable c1111:;c. Id at 652. In Burgo»; law enforcement officers did obtain u coun- authorized order pursuant 10 Section 5761 prim In nttacl1il1g the OPS device on Burgos' vehicle, :ind rho Superior Court hl.'ld that this wus a vulid wurraut suppurtcd by probable cause. hi. nt 65(i. order. pursuant to the then existing version ol' Section 5761, prior to uuaching the CiPS The version of 18 Pu. C.S./\. *57(il in effect nt the time or the issuance or the Order to instnll 11nd use a mobile uncking device on the dclcndunt' s car stated: *5761. Mobi k track i11g devices. [Effoc:;1 Ive 11111 il December 211, 20 l 21 (a) llm/11wiry 10 i.,·sue.-()rdcrs for the instnllutlo» and use 01· mobile tracking UC\'h:CS may be issued b~· a COUl'l of C01111HOI) plcus, (b) Jurtsdtctiun. - Orders permitted by this section mny authorize the use of mobile uucking devices within ihc jurisdiction 1>1' the court of common plcus, and outside that [urisdlction, ii' th.: device is insmllcd within the jurisdlction of tile court ol' COl1111H)ll pleas. . (c) Stwulw·d.fhr issuance oforder. - An order mHhorizing the use or one or more mobile tracking devices mny he issued 10 un invcstlgmlve or lnw enforcement oniccr by the court or common plcns upon written upplkalion. Ei1ch appllcutlun sbnll be by written ulflduvit. signed and sworn to or ulfirmcd before I he court of conunon pkus: I. stale the name und department, agency or address 1>!' the u J'lia111; 2. idvnlil)' rho vehicles, contnincrs or items lo which, in whlch 1>1' DJ\ which the: mobile trnckinj; device shall be nll:ichcd or be placed. and 1'11.: names (11' the owners or possessors or the vchiclos, contniuers or items; J. s1:11c the jurisdictionu! nrcn in which the vehicles, containers or uoms ure expected l<1 be found; nnd 4. provide a statement :-il:lting l'ol'lh all !'act:,; and circumstances whlch provide the upplicunt with n reasonable suspicion that criminal nc1ivity hn:- been, is or \\'Ill be in progress nnd \hot thl' use o!' a mobile tra<:king device will yield informntlon r~kv111\I lo th~ invrstigutiou ol' the criminul activity. (ti) Nottce. - The court o!' common ph.)!I:\ shall he 111llili~d in wri1i11g within 72 hours of the time the mobile lrm:king device hus hcen ncrivmcd in pince 1)1\ or within the vehicles. corunincrs or items, 7 Circulated 05/28/2015 10:46 AM (c) 'limn (?/'m11//orizmio11. - Authorizution by the court or common picas for the use of the mobile trncking device 11wy continue Ior 11 period or 90 dnys from the placement of the device. An extension for an mlditionul 90 tluys may he granted upon good cause shown. (I) Removut of dcvtce. ~ Wherever prncticablc, the mobile trucking device shnll be removed ultur tho authnrizntion period expires. IJ' removal is not pracricnblc . monitoring of' the mobile tracking device shall cease at the expiration or the authorlzntion order. (g) Movemi!l1l The Wiretap 1\ct's constitutionality tins been chullcuged and dctcrminort not 10 violate nn intlivichml's right of privacy. C:0111. r. Doty. 498 t\.2cl 870, 876 (Pa. Super. 1~)85). The Courl in lJ11rgos, concluded thm the wiretap orders, "serve as the functional equivalent of trndit1om1l scorch warrants ... 1hc8c orders nn.: statutorily prescribed orders, approved und issued by the judiciary, which allow un invc~ligming. officer to conduct a senrcb vl« interception or an individunl und his or her property und cttccts, upon a showinj; of the rcquisltc level ol' suspicion." /Jur.~os. 64 A.Jd 6tl l at 655. Herc, the law enforcement olflccr obtained n coun-nuthorizcd order, pursunnt lo s~1.:ti~1n 576\, for m\a1.:.hing \he OPS device \O Order or Court used the lnnguagc, :;lh11l there is reusunahlc suspician lo believe iluu criminal actlvity has been, is or will he i11 prngr(!S}; and the use of n mobile trucking device auachcd lo {H' placed 011 a vehicle idcnti !10d ns n 20 IO 1vlm:do 323 sedan, P ,\ registration HS0-4223, VIN ii .HvllT3J..1::;(lt,\1225734 will yield information relevant !O the invcstlgutiun of' the criminal activity." Order 1\uthLit'i',dng the Installation and Use o!' u Mobile Trnd:ing Device (C.P. !\ llcghcny Cly .luly 8, 2U I 1 ). Thus, in on.lcr J'o1· the OPS Circulated 05/28/2015 10:46 AM pluccmcnt to be valid in light of U.•'i'. v. Jones nnd Com. v. /111r}{os, the Court must determine whether the wiretap order wns supported h~' probublc cause 1111dl.'r *5761. The stundurd relied upon by the lllil'gos court w111, the li>lluwi11g: "the stuudard for determining whether probable cnusc existed for an order authori;.,.ing intercept ion or telephone communications is the same us thnt used 10 determine probable cause for search wnnnnts." C:0111. v. /3il'(/.,·e,11<1, 637 t\.2d I OJ J\.2ct 112~1 (Pu. 1996). !\:,; luid o.u by the Coint in 011rgos, The question ot' whether probublc cuuse cxi8lll Ior n wirerup must be adjudged by the tomlity of the circumstances. I'ursuan: to the ;'towlity or tile circumstances" 1~st set forth by the Unil<:d ~1:110s Supreme Cnun ... the task ol' ! the trinl court'! is simply 10 make a practical, co11111101H,cn:,;c decision, whether, given nil 1)1' the circumstunces set forth in tile ol'l1dn\'il before him. iucluding the 'veracity' HIHI 'basis or lrnowlellgi:1 or persons suppl;1i11g hearsay infornia1ion. there is n l'air probability that contrubund 01· evidence: of n crime will be found in u pnrticulnr place, Thus the toial i I y of the cl rcumsinnccs 11.'Sl pennils a bnlunced usscssmcnt ol' the relative weights or nil the various indlciu ol' rdiahili1y (one! unrcliubillty) :111cnding, an inlcll'llH\nl's 1ipj . .J" Cont. 1·. Torres, 764 /\.2d 532, 537<'18 (Pa. 200!). "An allidt1vil of probable i;aosc 10 ::-.nppurt a search warrant docs nut require a prima lnclc showing of criminal nctivity on tilt' pal'I or the occupants or the premises tn be searched." <.:11111. \'. Gutierrce. t){i9 t\.2d 582, 588 (Pu. Super. 2009) (quouuiou and quouuion marks umiucd), ap11cal denied, <)83 1\,2d 726 (Pt1. 2009). /\'lorcnv1,:r1 "ji, lr,:vkwing court may no\ conduct ft th: novo review or the issuing aulhori1{ ~ probable cause detcrmin.ulon. Thi; role or hnth the rcvicwlng court and the uppclluic emir! is confined w determining whether there is substantial evidence in the record supponing the decision to issue the warrant." Com. 1·. J/1(1//(1c1!, 953 A.2d 12581 1262 (Pa. Super. 200~) (quouuion und quouuinn murks omitted), 1'l.11•er.,·(!d 011 ot/,er .~rowuls. 42 1.\Jd l 64 /\.Jd al 655-56. Thus, we cxnmine the inlhmrntlnn provided within the lour corners ol' the 1\!'lhlavit ol'8pccilk Aniculublc !<'aels Ior installing clccunnlc trucker to determine if there wus probable cause to support the officcrs request for u wircrap order. Se« Com. 1·. Stm111>,\', 427 t\.2d 1111, 143 (11.1. 1c)8I); Pt\. IC Crim. P. R11k 20:"> (IJ)(Thc issuing Circulated 05/28/2015 10:46 AM authority, in determining whether probable cause hns been cstnhlishcd, ma~· 1101 consider nnr evidence outside or the ulfiduvits."). Under the totality ul' the circumstances lclll. the Court t8 sntisflcd thHI the informnrion provided in the Affidavit of Specific Articulable Facts fur Installing Electronic Trucker rises not only to the IC\'Cl of' rcusonnblc suspicion but ulso to the nccessnry level or probable cause. "l'robuble cnuso is not certitude, nor even prcpundcrancc; rather, il is merely u sulficicntly :-;nhstantive prohnbility lo juslil)' the intrusion involved." Com. 1·. Doria. 57'1 1\.2<1 653, 657 (Pa. Super. 1990) (concurreuce): Com. 11• Gloss. 7511 ,\.2tl 655, 664 (J>u. 2000); See also ttttnots 11• Gates. 462 U.8. 21 J, 23 l ·32 (U.S. I 983)(Probnhle cuuse is u "prncticnl, nontccbnical conception." It j!{ "n fluid conccpt-unuing on the ussessmcnl of prohabilitic~ in pnrticulur luetuul contexts not readily, or even usefully, reduced 10 u neut :wt ollcg«! rules."), Herc, th\) officer was able to pince the defendant at 1h0 scene of two of tho burglnric» shortly before they occurred through independent eyewitness inl'imnntion obtained from employees nt the di Itercru businesses, Hurds W cldiug and \' oung 's Tires. There WH:l no iudicntiun lhal the verncity or bnsis suspect. S(•e Com. 1·. Birdsey«. 637 t\.2d \03Ci, 10:12 (I'a, Super. Ct. 1994). Alter b0i11g developed us tt suspect based on his presence al llurd's Welding 1111<1 Ynung's Tires, information corroborating the suspicion \\'ilS gmhered in a number or ways, including pollce visual surveillance. S,:e Com. ,,. /1111°).!.0,\', 64 1\Jd ru 656. 1\II or the burglaries occurred al conunercial locutions, during the night1\111L'. the buildings were entered hy force and "anv socurity S)'S1c111s were disuhkxl, primarily by cuuing or dninaging phone I ine connect inns. Cnsl; w11:-. taken in various amounts." I\ Inda vi I or Spcci fie 1\ nlculuhlc 10 Circulated 05/28/2015 10:46 AM Facts for lustallina ,._ Elc::c1rnnic Tracker, I. lnvcstiuation ... revealed \hill the tire track evidence recovered 111 a Clnrlon County bmglmy scene matched the D1111lup SP 60 tires thnt Dcfendnnt had 011 his 1998 Toyotn Ca111ry. Sue Com. 1•. Mcfl1~ini. 386 /\.2d 482, 485, ,J87 (Pa. I 978)(Thut 11[ l,Jirc imprim:,; kn at the scene arc similar t<1 11npri111s of 1h0 tires 1)1' the Chevrolet 2-door Sedan registered in the numc ul' ne11y I{. M:tngini. Tag No. 07044'1'" \\'as one or the main spec] lie an iculablc facts or the case supporting probable cause for a search wnnnnt.) 'l'he delundant wns then contacted by the Clarion l'cnnsylvuniu Stntc Police (11 a Sheetz gm; station and the l)unlnp ~p 60 tires were discussed. A ilcr the convcrsnt ion with the Clarion Police, the D~lcm!.1111 replaced the ti res 011 his Toyota Camrv. Dclcudan: had two residences i11 prnximity to the locutions or tho burglaries, 48 West Fourth Stroot, Oil City, Venango County, l'cnnsylvnnia and o Strnttcnvlllc residence in Clarion County, l'vnnsvlvnnia. Physienl visunl surveillance of Jeri'}' Ritchey'» nighuimc activities begun 011 June 27, 2011 hy Troopers from 13CI and Troop L·: Viel.' :i11d the survcillnncc revealed that the ~·1azdtt was in un urea near a lmrglnl'y nro1111
led to 1hc belief thnt the l\fozdn wm: being used 10 (runsport the delcndent 10 nnd n·om ihc burglaries. Com 1•. /Jo(1·, 1198 i\.2d 870, 883 (Pu. Super. I 985). During survcillnncc the policcdiscovcn ..'d that while Hitch!.!/~ girlfriend sometimes drove the 'fo>' · Ritcht.!y was the onl.v person who was observed driving the Mazdi1. Spcciflcnlly. on July 11 201 I a white male was spoucd leaving the Oil Ci1y residence in the Mnzd;i nnd visua] surveillance pursued. In order to uvoid being spotted by the driver. lhc police officers had to discontinue pursuit n Iew minutes lnicr. 'l'hut 11igh1 a bmglary occurred <11 84 Lumber 011 Route 2 57. 1\ t s,1 I.umber the phouc I iucs were c lit and I lie sec u ri l y system wns disabled between 2:30 A.i'vl. and 2:53 ,Uvl. An image of the i\fozdn wus captured hr electronic police surveillance or vehicles traveling 1111 Route 257 HI 3: IO ,\.i'vl. 011 June 1, 2011. traveling. nwu~' from 84 Lumber und towards Oil City. 1\Jdi1ionL1lly. an interview with an 84 Lumber cmpluye0 revealed that on June 30, 20111 within hours of the bttrglnry.. terry Ritchey entered 84 I .umber around noon and s1:1y1.'d in tho office nrcn apprnximutcly n half hour before 1<.'avi11g. Ritchey provided 84 Lumber with a <:t.'11 phone number to contact him. ,l,,,'ee. Co111. , •. We1>.1·1a, 4:'15 t\.2d 1217. 1220 (Po. Super, 1981)(dckndant'~ proximity in both time and pince to the site olthc b\1rghll)' contribute 1u a !111di11g nl'probnblc cuusc). These burgjarics occurred on a regular basis 0\'1.'t' a pl'l'iod of many months trom l.kcc111bi;r or 2tl IO through the time u Wiretap Ad wurranr was issued lo pen nil the uuachment of the CiPS io dcfcndants car. Thus, the iuformruion cannot be seen us being stale. Com. 1·. Uurgos. 6~ ;\ .Jd ill 656. The col lcctcd i11lo1·11111t ion was 111wl yzcd by law cntorccmcnt, including Ponnsylvanin 0H1tc Police Corporal John T. Tobin who hns hud 21.5 years experience in the investigution of crimes und seizure ol" evidence within Pennsylvania and who WOK lumiliar with the nielht>d~ used by burglurs to cununi: the crimes und to conceal their nctivities rrom detection by law cnforccmcm nuthorlties. Id. at 6%. Thus, h:i~cd 011 n tolulily ol' the circumstances, there wns probable coma; lo believe 1hnt defendant lrnd resumed hi~ former trade as n loco! thief' and for supporting the Oflkc..:r\ request for u wirclnp order. Cu111. \>, Doria, 574 A2d al 658. As probt1bk cause existed for the wiretap order when ii was issued the OPS pluccmcnt 011 Dt..:fo11d;int 's ivlni'.dn was 1101 an uurcusnnnblc scurch mid seizure under the Fuurth Amendment and the evidence collected by lh~ OPS trucker will not he suppressed 12 Circulated 05/28/2015 10:46 AM as the Commonwealth has incl its burden or establishing by I) prcpondcrnncc 01' the evidence thut lhc challenged evidence is udinisslblc. Dcl'eml11111 ulsc nrgucs thnt the chnngu in the jurlsdiction«] portion of tile Wircinp 1\el §5 761 (h) would make the issuance or" warran: by and through /\ I leghcny ColJIH)' lnadrnisslble for trials in lhi~ County. The [urisdictlonnl change removes n Court of Common Plcus' authority 10 issue an order for the lll$lallalion und use of mobile tracking device unless thul County hus jurisdiction over the oltcnsc under invcl>li~alio11. There is no indication thal lhis change was prumpicd by the ruling in U.S. 11• Jones, I 32 S.Cl. 945 (U.S. 2012). Al thi:! time of the issuance or the warrant, Allegheny County hnd jurisdiction IO enter the Order or Court. A uiul court is h> apply current statutory law until the Legislature rcpcnls or amends it. Com. \i. Thomas, 51 A.3d 255, 260 (1\1. Super. 2012)~ app '/ denied ({J 1\Jd 1247 (Pit. 2013). 1\ddilionally1 "[n'[bseut clear nnd mnnifest i utcnt r legislation is presumed not to be rctroucf ve." kl.: See I Pn. C.S. A. 1926. Thus, * we tkdinc to lndulgo in speculntiou 11bo111 wluu would huvc transpired if the legislature hnd pm~~et\ nnd rnt\l'\c(\ iho juri$c\ictionn\ chungo in *567 l (h) or the Wircrnp 1\t.:1 before the warrnm WilS obtained, In light ol' thiN finding, we need not reach the Connnouwcnlth's argumcnr that this Court is lhccd with conl1kti11g opinions from Co111111011m' 42,1, same day by the Punnsylvunia Superior Coun. In !ltt/1111', the Pcunsylvunia Superior Court held that, ·:,w~ have cnrefully reviewed Jones. uud sec nothing in it that would support the notion thnl, 11:-; in the instant matter or u GPS device placed onto il vehicle in full complinncc with Section 5761 of' the \\lirclnp Ac: offends either the l·'mtf'lh 13 Circulated 05/28/2015 10:46 AM Amcudmcm or Article I, Section 8 M lht· Pcnnsylvanin Constitution." In !J11rgos, the Superior Court hdd thn\ as u result o!' the decision in ./011~is th~· Court or Common l'leas mus! have probable cause lo issue illl Order ins\ulling an clectronlc lrnckil\g device 0111\> a cur. We need not resolve these conflicting opinions m this lime ns we hold that the uffidnvit in support or thL' wlretup warrruu rose to the level of probable cause sntisl)'ing both 1/r1h11r tt1KI n,,r~os. We also need 1101 address the Commonwealth's urgumcnt thm the good faith exception lo the exclnxionnry rule applies to ihe present mnuer. 1\l~o in ligh1 ol' the above finding. \\1C need 1101 ndclri::;~ Dctcndants 11rg11111cn1 thut s11hscq11c111 search warrants or Mr. Ritchev's residences nro invalid as lruits or the poisonous tree. As we have held Ihm the UP8 wiretap wm·1·,m1 wos supported by probnhle cause, the informntion gathered by the use ol' Ille OPS 1«.:cltnoh>gy on l\•lr. Ritchcy's vehicle was properly included in the nnidavil:; or specific nniculnblc lhul:; for the suhsequcntly executed scarcl: warrants for i\•lr. Ritchey's vehicles 011d rcsldcnccs and those wnrrnnts remain valid. Dcfcudnnt further argues that the evidence collected by tho (JPS should be deemed iuadmlsslble us its udmissio» would vnuse the defendant undue prciudice. Dofcndunr relics on Pcnnsylvanl« Rule or Pvid..:ncc 403 which SHI\~:; "the court may exclude relevant evidence if its probative value is outweigh . .xl by i1 danger ul' one or more uf the 1'11llowi!lg: uulair prejudice, i.:@l't.tsing the issues, 111i:ilet1di11g the jury, undue delay, wns1ing time or needlessly presenting cumulortvc evidence." Defendant does not argue 1hn1 1'1e evidence collected hy the GPS is not relcvunt: ht: mg\l«:~ only thnl its prejudicial value outweigh» i11; probative value. Circulated 05/28/2015 10:46 AM i\frrcly bccuuse evidence is unfavorable to II part~· prejudicinl than prolunivc. Hutcluson 1·. Luddy. 7(i} ,\.2d 82(i, 847 (J>11. Super. 2()()()), l~vidcncc is deemed (o be prejudicial nrn because it hurts a parly's case, but because it hus an undue tendency to :;uggest thm a decision wus made on an improper basis. Leah» 1·. 1'fcC!ui11, 732 1\.2d 6191 62·1 (Pu. Super. 1999). "Unluir preJu tendency to divert the jury'8 uucnrlon awny from its duty of weighing the evidence impartinlly. Co111. , . Wright, %l A.2d 119, 151 (Pa. 2008). Dclcndant argues that to (tllow information collected by UPS imo evidence when the w,11·1w1t for the CiPS was executed by u i.:m11·1 nearly JOO mile:-; uwny with no stake in these outcomes would tremendously prejudice i\·lr. Ritchey nt iriul. However, tlw information in the l\l'lldi1vi1 of'Spccific Articulable Fuels used 111 obtain the OPS wurrnnt cumc ulmost exclusively from Vc11n11go Co11n1y. The l)d\mdu11t has failed 10 explain how [niving a warnnu validly isHucd by the 1\lk:ghcny Cuuiuy Colli'! nlCommun Pleas would confuse or mislead the jury. The wurnuu was issued in 1\lll'ghc11~1 C1>111Hy because Defendant hud parked hl~ cm· ut the f>it1shmgh lntcrnutioual J\ii·pnrl while he wni; 1)11 his honeymoon. It is hard to conceive how that information could prejudice thejury against Mr. Ritchey. There is u possible risk of prejudice to Defendant from the intrnduction of' evidence or other crimes collected by the OPS hut not charged in the Venango County Infornuuion. To . counter that risk,. the Court ct111 ......uivc n cautlonnrv ., instruction to the . j\11·v. instructing the jury not 10 consider the evidence tluu lkfcndonl lrn:-; commiucd similnr crimes outside or Venango Cnunty u:-; estublishing any clement uf any or th<.l \~rime~ 15 Circulated 05/28/2015 10:46 AM In general, evidence 11!' distinct crimes is 1111t admissible ugnin:-;1 u delcndanr being p1·o~cct1lcd I<)]' nnother crime t
criminal acts, P,1. fU.~. ,rn,1 (b)(.'.,.J. The defendant is entitkd to Ille pi-t:s11111ptio11 or innocence and the Conunonwcalt]: may not strip him or that presumption by proving 1hnt he bas committed other criminal nets. lnstcud the Commonwealth must prove: beyond ii rcnsonablc doubr thut u defendant hns committed the particular crime 01 which he is accusud. Sai: Com. "· Stanley, 39H 1\.2d 631, 633 (l'u. I <)79): Com. v. Cansuuu, 925 ,\.2d 8 !O. 821 (Pu, Super, 20t)7)1 opp'/ ,1ti11ied, !JJ2 ,\.2d 1285 (Pu. 2007). Evidence 01' other crimes, wrongs. 1)r nets ls admissible only upon a showing tho! the prnbutivc value of such evidence outweighs the po:;sibilit)' of unfair prejudice to 1hc Dcfi.!1Hh1n1. Pa.R.E. -'I 04 (b )(3 ). In deciding whether the danger or unfair prejudice and the like substantially outweighs the Incremental probative value, n variety of matters 1m1s1 be considered, including the strength of the evidence us to the commission or the other crime, the sirnilaritk:-: between the crimes, tl1<.: interval of' time tl1nt lw~ elapsed between lilt: crimes. the need Ior the evidence, !ht: efficiency or ultcnuulvc proul. and lhe degree 111 which the evidence probubly will rouse the jury IO overmastering hostility, McCormick on Evidence, * 190 p. 811 (4111. l.:d. 1992), l'cnnsylvanin Rule of E vidoncc 4!Jtl (b)(2) permits evidence of priur bad nets lo he admissible when offered to prove so111<.1 other relevant fuct, sucl: us mutivc, uppt>rlu1iil)', intent, prcpunuiuu, plun, knowledge, identity, nnd absence ol'mistakc or accident. Com. ,·. Aikens. <)90 1\.2d I J 81, 1185 fPn. Super. 2010), 16 Circulated 05/28/2015 10:46 AM ll is crucial to note lhal the Roles of Evidence only ni111 to exclude evidence which results in pr1..ju Iunc: ion, 10 swny I he minds or the jmy. Se«, Co111. l'. Peer, 68.:J /\.2d I 077, I 083 (Pa. I 996) ("lhc test for ndmissibility is whether the challenged evidence i:- so 111?/'oirly pr~ju in \1riginol I). The prohibition uguins1 tile intrcduction or evidence regarding prior acts contemplates that the nets arc distinct in time and pince from the crimes charged, <.:0111. 1·. Pott», 566 ;\.2d 287. 294 (P:1. 1989). Prior ac111 evidence may be admissible when the ilCl~ arc necessary 10 detail till' overall sequence or events leading up to the crime charged. C:0111. r. 11'har1011, 607 t\.2cl 710, 720 (Pa. l 992). The l'cnnsylvania Supreme Court has determined that. when used to prove idcntiiv, evidence nr prior crimes may be nd11iissibk1 lo prove other like crimes hy the accused so nearly idcnticul in m1.·1hocJ as 10 earmark them as tho handiwork or the accused. He1' burglaries or thefts, '111
Com. , . Ross. 57 t\.3d 851 I 02 (Pa. Super. 2012) q11oti11g Com. r. Shiv
(Pu. 1981 )( emphasis in original). To preserve the purpose of' Rule 404 (b)(J )1 there must hod acts to the crime in question." Com. 1·. Ross, 57 ,\Jd m I 04. This requires "such a high correlation in the details of the cri111<:8 thut proof' thnt II person committed one of them makes il very unlikely lhlll uuyonc else committed the others." Cum. r. lfluokfoy, 972 ,\.2d l 182; 1189 (I'a. Super, 2009) ((jl/Ofing Co111. \'. Novusuk. 606 /\.2d 1177, 484 ll, 7 (Pu. Super. J t)92)), appea! dC'lli<'d. 986 A.2d 150 (I'u. 2009). 17 Circulated 05/28/2015 10:46 AM Evidence from subsequent other crimes may he ndmiued lo show identity "thorough selection of' a pnrtlculnr class or victim und use of idiosyncrntic methods to curry out the crimes. ·, Com. 1·. Wa11kley, 972 I\ .2d I I 82, I 188 (Pa. Super. 2009)1 appeal denied 986 1\.2d 150 (PH. 2009). ln compuring the separate crimes, a court must examine the slmilurltics between n number a lhet1lr~, including; '\I) the manner in which the crimes were commlttcd; (2) weapons used: (3) ostt:11:-dh!e purpusc or the crime: (4) locution; and (5) type of victims. Rcmorcncss in lime between the crimes is ulso factored, although lts probative value h11s been held inversclv proportional Lo the degree ul' simllnrily between crimes." Com. 1•. /l'e(lk/cly, !>72 !\.2d ut 1189. In the present case, we conclude tktl the evidence in question is admissible under lht· common scheme, design, or plan exccptlon 1111d to extahlish identity. Herc, the itllt' 2011 has significant irnpnrtunce tu the nnrnulve integrity of the Cnnunonweulth's cnsc i11 csuibllshlng identity and showing the continuity of the presence or n distinct four (IITO\\' puucrn on the soles or w111c1· shoes owned by the dl'lendn111 ut the burg! nrii'.cd businesses. The Defendant wns convlctcd uf Iour commercial hlll'glnrics lo Clcurficld Crninty conuniucd on July 21, 2011. Thi.' theme or tlw prosecution is tluu the lour burglaries or which the Dcfendunt has been convicted me so si111il11r 10 thcJ six b11rgh1ric:- in tlw case 111 hand us to p<:rmil !ht.' conclusion 1hul they were connuitted by the sumc perpetrator as purt of n common scheme or plun. Commonalities bet wren the crimes me: {I) the victims were ,Ill commcrcinl businesses which were entered aftcrhours during the nighuimc: (2) entry was gnioed I>>' force and pry bur murks \\'1.!l'C.: noted on nl I tile dt)l>r~; 18 Circulated 05/28/2015 10:46 AM (3) any !it'i.:uri1y systems \\\'I\! disuhler] by c11lling the clccuicu! wires; (4) The otfices of the busincsscx were urrgetcd and desk druwers nnd !)Jing cabinet» were rilled through; drawers were !di open und papers were scuucrcd; (5) The burglar wus pl'imnrily concerned with only stcnling cash: u11d equipment or business product was not taken: (6) The burglar left evidence that he was \\'l:ntfog gloves; (7) Tile Dclcndnnt'x Mn%du wns seen in the viclnlty or seven ol' the burglnrle» around the rime rluu the business~:,; were b11rglnriz(;d; (8) Gcogrnphicallv, 11!1 ten or lhc burglaries were within driving dismncc ol' tlw Defendant 's , wo residences; (9) 1\ unique water shoe truck with u lour arrow design was l\iund al cnch of the ten burglmy sites: (JO_) The defendant bought a pair nJ' the wntcr shoes with the lour urrow sole pauern on Mny 211 2011 tluu nuuches rho shoe trucks kl'! ot the scene o]' nil the burglurlcs which occ nrrcd aflcr l'vln)' 21, 2011 . Through video survclllnncc and receipts, l'~P Trooper Clark wn~ nblo to determine that the Dcl~ndrnH had purchased water shoes with the pnrticuhu' lour nrrnw design 011 the soles that matched the tracks lt:fl at the lour burglaries lrom the Clarion Wuhnart 011 Mny 21, 2011 and .luly I 7, 201 l. A mere two dnys Inter the four nnnw pnucrned trucks wen: fo1111d al the scene o!' each ol' tile three commercial burglaries committed 011 ~vln~· 23-24. 20 l l and \\'<:I'~' also found HI the scenes ot' the subsequent burglnrie» dolcuclnnt i:. churgcd with. It is unique und atypical 10 find water shoe uucks at these particular cmnmerclul h11si11cSS(.'S. Heavy machinerv and equipment on the premises of these businesses! mah steel-toed shoes a much safer option than water shoes lnicndcd for swimming, kaynking, nr other water sports. Thus the presence of the water shoes .u each or thw bmglarized businesses is u striking parallel between the crimes .. 'i'1!U Com 11• Aikeus. 91)0 :\.2d 1181, 1186 (Pu. Super. 2010). These water shoes arc asserted to he n part ol' this course of conduct, a menus which Dcfcnttnm 11scd lo ;1cco111plish the burglaries. Additionally, Defendant 's ivl:wla wns trucked in the vicinity or rill Ii -ur or the Clearfield County bmglmks and W(l:; seen in the vicinity or 84 Lumber around the time 1)1' the burglaries. 1\ "review or Rule 404(h) (I) nnd relevant jurisprudence shows the other crime need not n1111ch every llH:t anti circumstance of thL' chnrgcd crime before il mny bo used to prow ltlcnluv." Com. 1•. Weakley, 972 t\.2d ur 11 !)0. Considering :111 or tile similuritics b1.·11\·c~11 the details ()f th~ burglurics lends 10 the belief lh11t "pron I' that a person c.:0111111illcd one nl' them mnkcs it vcrr unlikely thnt nuyono 1:1!;¢ cornmiucd the others." Com. 1·. Ross, 57 A.3d 85, I 02 (Pa. Super. 20 I 2). 1\:; for remoteness in time, it is 11011.!d thilt the ~arlk:·il nl' the six burglnrics in 1his cusc occ11rred within two mouths, a luirly short time spun, ul' the burglnrics 1h111 Detcndant wn:-; convicted for i 11 Cl earfie Id CN111ty. See c!.g., Com. r. ttraushtein, 69 l 1\.2d 907, 91<> (Pn. 1997), cert, den. 522 U.S. 93(1 (1997)(11,·c weeks since another similar rnbbery-murdcr): Com. 1·. fla<'ket, 959 t\.2d 380, 393 (Pn. Super, 2008), appeal granted 975 1\.2d I OX2 (Pu. 200!>). order reversed on .YUJ)(ll'lffe gro1111cls. (Pn. 2009)("1foth incidents occurred
months"); Com. v. Cloy1011, 1183 ,\,2tl 1345. 13•19~50 (Po. 19K1l)(ntlcmplcd 11H1rd1,.·r 1 'l'he buslnesscs nre: Whalen Co11~1r11..:1iu11. Inc .. I lnrds Welding, Thomas ,\uw. Ilcrt Klapec, Ille .. H&R C111ntgl!, H•I Lumber, Brndt'ord '1'011·11:;hip M1111kip11l ll11illling, 1\1wx Hydn111lic l\·lm:hin..:. l.>.C. l:nJcl'pri~cs, und Tl. lluincy Trucking. 20 Circulated 05/28/2015 10:46 AM properly admitted m trial lor murder conuniucd IIH,:c months earlier where crimes were strlkl ugly si mi lnr in geographic local ion, I\Hll ivut ion 10 rob drug-deni ing vier ims. and 11101hod u I' exccut ing crime); Com. \'. l/11gh1is. 5 55 ,\. 2d 1264 (Pu, I 98!))(lcn months) The imporinnce or the gnp in time is inversely proportionul In the similarity between the crimes. Com. 1·. Aikens. 990 1\.2d 1181, 1187 (Pa. 2010). Here, we have similar crimes occurring in lili rlr quick succession. lln::;cd <111 the foregoing discussion, we lind that the nlorcsuld lour convictious had relevance lo pcnuissiblc purpu:-:cs with respect 10 the six burglurics ln rbls case. However. this is only the linn step in the unulysix because such relevant evidence is ultlntatcly 011ly admissible under Pennsylvnnln R11lc of' Evidence 40~(b) ii' its probative value outweighs its potential for prejudice. Herc, such is the case. First, the probatlvc value of the evidence is substuntiul. Similnritlcs bciwcc» the crlmc scenes relnte nm jus! to one. hut lo sevcrnl lmportant qucstitmS such ns plan, preparation. common scheme or design. und identity. Moreover. it appears the evidence is not just minimally relevant but. rather, serves as foirly direct, logkill and elucidaung evidence lying Dcfeudnnr 10 nil ten ht1rgl11ric~. There is a need for the other crimes evidence because us in Com. r. /Ve(lk/ey. "the evillcnc1..· upon which the prosecution is bnsccl is largely circumsuuuinl. und it is the specific purpose of the 'other crimes' evidence IO give the jury i11:;ighl i111t) the signiflcnnce ot'these cireumsumccs." ')Tl ,\.2d 111 I 191. Second. there is n potential Ior prejudice to the Dcfcnikuu as tlw crimes arc so similm' thnl a jury 111ig.l1l be templed to decide lhul bccnusc he was convicted or the burglaries in Clcnrfield Counry he is uutomuticully guihy ut' the burgl11rk::; in Venango County, I lowevcr, as wus !iWtcd above, "evidence will not he prohibited merely because 21 Circulated 05/28/2015 10:46 AM ii is hunnlul to the dcfendunt." Ihuchisou >'. /,11(/(~1·. 763 ,\.2d at 8~7. Pennsylvania Courts have co11~is1c111ly "upheld the adruission or other crimes evidence. when rclevunt, even when the dcwil:-: of' the other crimes were extremely grotesque and highly prejudicial. ., Com. 1•. Dtllon, ns t\.2d 131 .. 14 l (Pn, 2007>. 11 is nlso worth noting 1hn1 in the context or the crimes charged .. the four burglaries, while reprehensible, are unlikely lo he viewed by the jurv as so heinous .'.IS lo completely overwhelm their nbili1y lo weigh !he evidence directly. lnstcud, ;is in Com. 1•. IVl!okley. the focnl point of the evidence is the precise criuunul method used, 11s opp1iscd tn inlhuuing the Jlu·y's emotions 111' sympathy or hostllny. 972 1\.2d HI 1191. The convictions do not tend 10 show Dclcndum us n "bad person" in :111r way other 1h11n with respect lo the specific conduct nt issue. Com. 1·. Nat'ker. 959 t\.2d ill 393. "Additionullv, when weighing the potcmiul for prejudice, a trial court mav consider how a cau1iorn11)' jury instruction might nmcliorntc the prejudicial clfccl 111' the pnll'li,:rcd evidence." Co111. 11• Dil/011. 925 f\.2d al l.:.J I relylng 1111 Comment Pa. R.E. 1104(b.). The Cnun inrcnds 10 issue a cmllio1rnry instruction to the jury in this cuse. t\x the probative value of the relevant convictions for burglnrv from Clearfield Cotmty outweighs iii; potential l'c>I' prejudice, the evidence of' the convictions is admisslblc i11 thii- cusc under l'cnusvlvuniu Rule or Evidence 401l(b). Thus, the Comrucnwculrh shall be pcnnlucd lo introduce evidence ol' the sitnilnrities of the lucts n..·gmding the dcfcnrhuns conviction Ior the four burglaries conuniucd i11 Clearfield Co11111y on July 21. 2011 for th~ purpose ol'sll(lwing common scheme nnd plan us well as idcnt] ty, 22 Circulated 05/28/2015 10:46 AM For the above reasons, ii is hereby OIU)l~H l~I) and DECREED thnt the Defendant's Motion in Liminc is Dm,mm. Marie Veon, !');\ l.knjarnin Levine: PD . Jun. 17. 2"" 14 11 : 3 8 AM Judge's Chambers No.05/28/2015 Circulated 934 7 P.10:461116 AM IN THE COURT OF COMMON PLEAS OF VENANGO COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA> : CRIMINAL DIVlSJON v, JERRY LEE IUTCHEY, JR., Defendant. OPINION OF COURT AND NOW, June _JJ__, 2014, the Court has for consideration the Statement of Matters Complained of on Appeal filed 011 behalf of the Appellant, Jerry Lee Ritchey, Jr., pursuant to Pa. R.A.P, 1925 (b) on June 3, 2014, The Appellant has appealed to the Superior Court ofl'ennsylvanla from this Court's Order of Sentence dated December IO, 2014. Appellant filed the Notice of Appeal on January 8, 2014. Pursuant to Pa. R.A.P. 1925 (a), this Court shall state its reasons for the Order in question. This case involved multiple commercial burglaries. A six day Jury trial was held in November of 2013. On November 25, 2013, the Jury found Appellant guilty of: Count 1, Burglary, In violation of 18 Pa. C.S.A. §3 502 (a), a Felony of the second degree; Count 2, Theft by Unlawful Taking, in violation of 18 Pa, C,S.A. §3921 (a) with a value of $200.00 or more, but not more than $2000.00, a Misdemeanor of the first degree; Count 4, Burglary, in violation of 18 Pa, C.S.A. §3502 (a), aPelony of the second degree; Count 5, Theft by Unlawful Taking, in violation of 18 Pa. C.S.A. §3921 (a), 'Vi'.Hh a value of $200.00 or more, but not more than $2,000,00 a Misdemeanor of the first degree; Count 7, Criminal Attempt to Commit Burglary, in violation of 18 Pa. C.S.A. §901 (a) to commit 18 Pa. C.S.A. §3502 (a), a Felony of the second degree; Count 8, Criminal Mischief, in violation of 18 Pa, C,$,A, §3304 (a)(S), in the amount of more than $1,000.00, a Received'Time Juo.17. 2014 11:35AM No.0137 . Jun.17. 2014 11:38AM Judge's Chambers No. 05/28/2015 Circulated 934 7 P.10:46 2/16 AM Misdemeanor of the second degree, Count 9, Burglary, in violation of 18 Pa. C,S,A, §3502 (a), a Felony of the second degree; Count 10, Theft by Unlawful Taking) in violation of 18 PA. C.S.A, §3921 (a), with a value of more than $2000.00, a Felony of the third degree; Count 11 > Criminal Mischief, in violation of 18 'Pa. C,S.A. §3304 (a)(5), in the amount of mote than $1,000.00, a Misdemeanor of the second degree; Count 12, Burglary, in violation of 18 Pa, C.S,A, §3502 (a), a Felony 2; Count 13, Theft by Unlawful Taking, in violation of 18 Pa. C.S.A. §3921 (a), with a value of $200.00 or more, but not more than $2000.00, a Misdemeanor of the first degree; Count 15, Burglary, in violation of 18 Pa, C.S,A.§3502 (a), a Felony of the second degree; and Count 16, Theft by Unlawful Taking, in violation of 18 Pa, C,S,A. §3921 (a), with a value of $200.00 or more, but not more than $2000.00, a Misdemeanor of the first degree. The Court found the Defendant guilty of Count 3 Crlmlnal Mischief, in violation of 18 Pa. C,S,A. §3304 (a)(S), a 1 summary offense; Count 6, Criminal Mischief, in violation of 18 .Pa. C.S,A. $3304 (a)(S), a summary offense, and Count 14, Criminal Mischief, in violation of 18 Pa. C.S.A. §3304 (a)(5), a summary offense. On December 1 O, 2014, the Appellant was sentenced to an aggregate term of incerceretion of 96 months to 192 months. The aggregate sentence imposed is to run consecutlvely to any and all sentences previously imposed upon this Appellant. The Court did not impose sentence in this case on Count 2, Count 3, Count 5, Count 6, Count 8, Count 10, Count 11, Count 13, Count l4, and Count 16, pursuant to the provisions of 18 Pa. C.S.A. §3502(d). As was stated in tho Sentence Order of December 10, 2013, ''[t]hose are all standard range sentences. The court imposes this sentence because of the current number of multiple felony convictions, because the Defendant's conduct was ongoing and caused injury to many victims, because the Defendant has shown no remorse and has taken no responslblllty for his actions. This Judge sat as the Trial Judge in this R e c e i v e d T i m e J u n. 1 7. 2 0 14 11 : 3 5 AM N o. 0 1 3 7 · Jun.17. 2014 11:38AM Judge's Chambers No.05/28/2015 Circulated 934 7 10:46 P. 3/16 AM case and observed that the Commonwealth, through an extensive investigation and much legwork and hard work, put together a strong and compelling case against this Defendant. The Commonwealth established that the aqua shoe foul' arrow footprints led to one person and that person is the Defendant. Also, because we believe any lesser sentence would depreciate the seriousness of these crimes." On January 8, 2014, this Court received Appellant's Notice of Appeal and on January 10, 2014, directed the Appellant to file a Concise Statement of Matters Complained of on Appeal. The Attorney who represented Appellant at trial resigned on January 6, 2014> and the Court granted her replacement an extension of time in which to file a final 1925 (b) statement to February 19, 2014. The replacement attorney also resigned and Appellant's current counsel requested and was granted an extension of time to file the 1925 (b) statement to May 15, 2014. On May 14, 2014, Appellant filed a 3rd Petition for Extension of Time in Which to Flle a Final 1925 (B) Statement of Matters Complained of on Appeal as he had not received any of the six days of trial transcrlpts and the Court granted Appellant an extension to file his 1925 (b) Statement by June 161 2014, The Court received Appellant's Statement of Matters Complained of on Appeal on June 3, 2014. Tn his. Statement, the Appellant sets forth six matters complained of from which the following is taken verbatim: (a) The GPS warrant is invalid due to the lack of probable cause or reasonable suspicion to issue said warrant. The facts contained in the affidavit of the OPS warrant are general and devoid of specificity linking Mr, Ritchey to the instant burglaries, either directly or indirectly. As such) the affidavit lacks the particularity required to establish probable cause 01· reasonably[slc.] suspicion to issue the OPS warrant. The affidavJt in question which was attached to the OPS search warrant is attached to this document as Exhibit A and is incorporated by reference as is specifically outlinejslc.] hereto. Also attached ls Exhibit B, which is incorporated by reference as if specifically outlined hereto. Exhibit B articulates the deficiencies of'the affidavit in question. Furthermore, evidence collected as a result of the OPS warrant was subsequently used for the issuance of additional warrants to search and seize additional evidence from Mr. Rltchey's vehicles Received Time Jun.17. 2014 11:35AM No.0137 . J u n. 1 7. 2 0 14 11 : 3 8 AM Judge's Chambers No.05/28/2015 Circulated 934 7 P.10:46 4/16 AM and home. Said additional evidence was entered into evidence at trial and was used to convict Mr. Ritchey of the crimes listed in paragraph 2 above, (b) Tho GPS warrant is invalid because the court that Issued the ors warrant did not have [urisdlctlon over the crimes to which Mr. Ritchey was ultimately convicted in thls case, Furthermore, evidence collected as a result of tho GPS warrant was subsequently used for the issuance of additional wanants to search and seize additional evidence from M1•, Ritchey's vehicles and home. Said additional evidence was entered into evidence at trial and was used to convict Mr. Ritchey or the crimes listed in paragraph 2 above; (c) The GPS evidence, such as route travel and specific locations as determined by the OPS device, is so prejudicial that it outweighs any probative value and as such would prevent Mr. Ritchey from obtaining a fair trial; (d) The Commonwealth failed to sustain its burden of proof at the time of trial and as such the verdict was against the s'Officiency of the evidence. Given the totality of circumstances, the evidence presented at the time of trial was insufficient to sustain the guilty verdicts rendered by the jury in this case; (e) The trial court admitted evidence into the record at trial about the defendant's prior convictions of four burglaries in Clearfield County, Pennsylvania pursuant to Rule 404 (b ). The evidence of tho prior convictions was allowed Into evidence to prove common scheme, design> 01· plan and to establish Identity, Furthermore the trial court concluded said evidence's probative value outweighs Its potential for prejudice. The trial court's conclusion in allowing the prior convictions into evidence was in error. (f) The sentence received by tho defendant from the lower court in each of the counts listed in paragraph 2 although in tho standard range, was too harsh for the conduct he was 1 found guilty of committing. Appellant's Statement of Matters Complained of on Appeal. This Court adequately addressed the issues (a), (b), (c), and (e) raised by the Appellant in its Opinion and Order of Court dated June 241 2013, However, in regards to issues (c) and (e) the Court additionally notes that the cautionary instructions anticipated to be given to tho jury about the use of the GPS evidence and the evidence of prior convictions were in foot delivered to the jury. See Jury Trial Day One Tr. 76:l lu77:l 1 (Nov. 15 2013). Before the Attorneys presented their opening arguments, the Court included 1 within the opening instructions to the jury the following cautionary instruction. Jurors, before we hoar from the attorneys in their opening statements and before we hem· any testimony or evidence, I want to give you what we call a "cautionary instructlon." This ls vel'y important and I ask that you pay close attention, Re c e i v e d T i me Jun. 17. 2 0 14 11 : 3 5 AM No. 0 1 3 7 , Jun. 17. 2014 11:38AM Judge's Chambers Circulated No. 05/28/2015 9347 P.10:46 AM 5/16 You will hear evidence in this case tending to prove that the Defendant was found guilty of offenses for which he is not on trial in this case. I am speaking of the testimony and evidence to the effect that the Defendant was convicted of burglaries in Clearfield County, Pennsylvania and testimony and evidence regarding the specific conduct allegedly involved in those burglaries, which the Commonwealth alleges will demonstrate slmilarltles between that alleged conduct in Cleal'fleJd County, Pennsylvania, and the conduct allegedly committed by the Defendant in this case. This evidence is before you for one limited purpose and that is for the purpose of allegedly tending to show a common scheme or plan and identity. This evidence must not be considered by you in any way other than for the p\lrp0$e I just stated. You must not regard this evidence as showing that the · defendant is a. person of bad character or criminal tendencies from which you might be inclined to infer guilt in this case. See Jury Tria! Day One Tr, 76:llu17:ll (Nov. 15, 2013). The Court repeated the cautionary instruction after one of Appellant's fellow inmates testified about conversations which occurred in jail. See Jury Trial Day Three Tr. 126: 15-127:13 (Nov. 19, 2013). The Court gave a third cautionary instruction when the District Attorney entered by stipulation that the Defendant was convicted on August 121\ 2012, of four counts of burglary in Clearfield County. See Jury Trial Day Four Tr. 122: 1H123:2 (Nov. 21, 2013). The Court also gave a cautionary lusuuction after Appellant testtfled on his own behalf and the Commonwealth introduced into the record certified copies of some additional prior criminal convictions of the Appellant. See Jury Trial Day FiveTr, 80: 16- 83:8 (November 21, 2013). In his Concise Statement of Matters Complained of on Appeal (d), Appellant alleges in an all-encompassing statement that the Commonwealth did not carry its burden of proof at trial and that the evidence presented was not sufficient to support the gullty verdict, Thus, the Court must review the evidence of record, A claim challenging the sufficiency of the evidence is a question of law. Bvldence 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. Karkaria, 5 Received Time Jun.17. 2014 11:35AM No.0137 , Jun.17. 2014 11:38AM Judge's Chambers No.05/28/2015 Circulated 934 7 10:46 P. 6/16 AM 625 A. 2d 1167 (Pa. 1993), When reviewlng a sufficiency claim, the Court is required to view the evidence In the light most favorable to the verdict winner. However, while reasonable Inferences must be drawn In the Commonwealth's favor, the inferences must flow from facts and circumstances proven In the record, and must be of such volume and quantity as to overcome the presumption of Innocence and satisfy the jury of the accused's guilt beyond a reasonable doubt, Commonwealth v. Robinson, 8)7 A. 2d uss, J 158 (Pa, Super. 2003). Furthermore, "[tJhe Commonwealth may sustain lrs burden by proving the crime's elements with evidence which Is entirely circumstantial and the trler of fact, who determines the credibility of witnesses and the weight to give the evidence produced, is free to believe all, part, or none of the evldence." Commonwealth v, Brown, 701 A.2d 252., 254 (P11. Super, 1997), "Where no single bit of evidence will by itself conoluslvely establish guilt, the verdict will be sustained where the totality of the evidence supports the finding of gullt." Commonwealth v. Thomas, 561 A.2d 699, 704 (Pa. 1989)(citatlons omitted). In order to prevail on each burglary charge, the Commonwealth was required to prove beyond a reasonable doubt that Appellant entered a bulldlng that was not adapted for overnight accommodation at which time no person wae present, with the contemporaneous Intent of committing a crime, at a time when he was not licensed or privileged to enter. See 18 Pa, C.S. §3502 (a)(4), In order to prevail on the attempted burglary charge, the Commonwealth was required to prove beyond a reasonable doubt for the attempt that the Appellant had the Intent to comm it a specific crime and that he took n substantial step towerd the commission of that crime and for the burglary that Appellant attempted to enter a building with the Intent to commit a crime therein, See 18 Pa. C.S.A. § 3502(a) and 18 Pa. C.S.A. §90 l (a). Tho Superior Court has stnted, "[tjhus the Commonwealth must prove that the defendant had both the Intent to enter the building and tho Intent to commit a crime therein In order to sustain its burden of proof of attempted burglary." Commonwealth v. Willetts, 419 A,2d 1280, 1281 (Pa. Super. 1980). In order to prevail on each theft by unlawful toking charge, the Commonwealth was required to prove beyond n reasonable doubt that Appellant unlawfully took or exercised "unlawful control over, 6 Rec e i v e d T i me Ju n. 17. 2 0 14 11 : 3 5 AM No. 0 13 7 .Jun.17. 2014 11:38AM Judge's Chambers CirculatedNo. 9347 10:46 05/28/2015 P. 7/16 AM movable property of another with the Intent to deprive him thereof," See 18 Pa, C,S.A. §3921 .In order to prevail on each criminal mischief charge, the Commonwealth was required to prove beyond I\ reasonable doubt that Appellant intentionally damaged real or personal property of another, See 18 Pa. C.S.A, §3304(5). This Court has reviewed the evidence presented during the six day trial by the Commonwealth and finds It to be more than sufficient to sustain all sixteen of Appellant's convictions. As Defendant was only sentenced on the burglaries and attempted burglary the Court focuses only on those charges for the purposes of this appeal. In her closing, Appellant's Attorney focused on tho differences between the five burglaries and one attempted burglary. Jury Trlal Day 6 Tr, 21: 13-43:25 (Nov. 25, 2013). She did not dispute that the burglaries, theft by unlawful taking) or criminal mischief occurred but rather argued that Appellant did not commit them. Jury Trial Day 6 Tr. 43: 18-44: 1 (Nov. 25, 2013), She concluded, I submit to you thnt his[Appellanes] testimony fell along the lines of all tho testimony of the officers. He's not contradicting what was going on here, The only thing that he is contradicting is that he committed the burglaries, I submit to you that he did not commit the burglaries and he should be found not gullty of these crimes, Id. Appellant, thus Is challenging the sufficiency of the evidence linking him to the crimes, The Commonwealth presented evidence that demonstrated that Appellant possessed tools which were substantially slmllar to those used in committing the burglaries and Indeed Appellant admitted to owning the tools, but argued that he possessed them for legitimate purposes such as renovating a house he owned, See Jury T1•Jal Day 5 Tr. 40:3.43: 10 (Nov. 21, 2013). He kept many of the tools In a backpack in his bedroom not with the rest of his tools and not at the home which was being renovated, Id. A big crow bar was found in his vehlclo. Id.; See Commonwealth ex rel Miller v. Maroney, I 16 A.2d 755 (Pa. Super. 1955)(''Possesslon of burglary tools would not in itself be sufficient for a verdict of guilty, but jury may consider all the circumstances of the case, in addition to the possession of the tools to determlne guilt, providing other evidence was produced relating to burglary and stolen artlcles so that the Jury could infer defendants had Intent to use tools fol' a felonious 7 Received Time Jvn. 17. 2014 11:35AM No. 0137 · Jun.17. 2014 11:38AM Judge's Chambers No.9347 P. 8/16 Circulated 05/28/2015 10:46 AM purpose."). The Commonwealth presented the testimony of one of Appellant's cellmates, Thomas Akroyd, who recounted that the Appellant had spoken to a great extent about the burglaries, See Jury Trial Day 3 Tr. J 19: 15J18 (Nov. 19, 2013). Mr. Akroyd testified that, A. He[Appellant] did, he bragged that he was very smart, very intelllgont: ho claimed that he had an engineering degree. You know, when you're in jail you sort of get to talk to people and then you flnd out why they're in jail and he made it very clear that he was In Jail fol' burglary, So he claimed he had an engineering degree. This didn't all come out at once, you know, this is over a period of two, three days, you know. But he claimed that he was very smart, he had and[slc.] englneerlng degree so therefore he had a vast knowledge of heating and alr-condltlonlng systems, which really helped him wlth his knowledge of how to get Into these places. Q. And um did he talk about picking a building? A. Ma'am, when he-"""it w~s a linle weird you know, when he spoke about this it was like a twinkle In his eye and you know, his face lit up when he talked about breaking Into a building and how ho would figure lt out and he would Just go from there. Q. So he approached it sort of methematically? A. Yes, ma'am, yes ma'am. He wasn't happy until he had the conclusion. That's the way he described it to me. Q. Dld he talk about the reasons why he did it? A. You know he didn't really talk about why ho did It. You know he did mention a few occasions where he was not flnanclally hurting to where he did need money and It was more or less Just to prove that he could do it, you know, that' s the way he described It to me, Q. Did he talk about um ---the counties where the break-ins occurred? A, Clearflcld and Venango. Q. Clearfield and Venongo? A. Vos Ma'am. Jmy Trlal bay 3 Tl'. 119; 15-121 :12 (Nov. 19, 2013). From this evidence, the jury was free to conclude that Appellant hod admitted and even bragged about committing burglaries within Venango County, See Commonwealth v, Staino, 204 A.2d 664 (Pa, Super. l 964)("Testimony to the effect that defendants admitted to witness that they had partlclpated In burglary would be sufficient to convict, Irrespective of amount taken."). The jury was free to connect Mr, Akyrod's testimony about Appellant's knowledge of air-conditionlng systems with the testimony of Mr. Greg Peiffer, manager of the 84 Lumber Company about how the 84 Lumber burglary was accomplished by removing the alr conditioner from the office window and the burglar had gained access by crawling through the opening created, See Jury R e c e i v e d T i m e J u n. 17. 2 0 14 11 : 3 5 AM No. 0 1 3 7 . Jun. 17. 2 0 14 II : 3 9 AM Judge's Chambers No.05/28/2015 Circulated 934 7 P.10:469/16 AM Tl'lal Day 2 Ti·. I I 6:4-1 I 9:7 (Nov. 18, 20 l 3 ). There was additional testimony that Appellant would have been able to fit through the opening created. Jury Trial Day 2 Tl', 134: 10~21 (Nov. 18, 2013). There was also evidence presented showing dint the Appellant bought one pair of aqua shoes with a four arrow shoe pattern from Walmart on May 21, 2011 and one pair of aqua shoes with the same pattern from Walmart on July 17, 2011, Jury Trial Day 3 Tr. 128:14-156:8 (Nov. 19, 2013) (Corporal Donald Cloak). Appellant admitted to purchasing the shoes and claimed they were for use in Florida and at Lake Brie, Jury Trial Day 5 Tr. 43:13-46:4 (Nov. 19, 20l3), A mere two days after Appellant purchased the shoes, the four arrow patterned tracks were found at the scene of each of the three commercial burglaries committed on May 23-24 of20111 and were also found at the scenes of the subsequent burglaries Appellant was convicted of in this case. The burg lades at Klapec Trucking and R&R Garage occurred the same night June 1s1 through June znd, 2011. 84 Lumber was entered through the hole created by removing the air conditioner and the non-slip dotted glove pattern and four arrow shoe pattern was found on a blueprint that was on the table next to the hole created by the air conditioner. It is unique and atypical to find water shoe tracks at these particular commercial businesses, Heavy machinery and equipment on the premises of these businesses make steel-toed shoes a much safer option than aqua shoes which are intended for swimming, kayaking, or other water sports. This aqua shoe pattern was present at the scenes of the instant burglaries and the burglaries Appellant was convicted of in Clearfield County. The aqua shoe pattern was not found at the scene of the attempted burglary of Whalen Contractlng, but the attempt at Whalen Contracting occurred close in time and location to the burglaries which occurred the same night at Hards Welding and Thomas Auto which had the four arrow print design. See Commonwealth v. Brosko, 365 A.2d 867 (Pa, Super, 1976) ("Burglary conviction was supported I Themas Auto and Hards Welding were broken Into in the evening hours ofMny 23·24, 2011 and the attempted burglary M Whalen'» Contracting occurred during that same time. Received Time Jun.17. 2014 11:35AM No.0137 , J v n. 1 7. 2 0 14 11 : 3 9 AM Judge's Chambers No.05/28/2015 Circulated 9347 P.10:4610/16 AM by evidence tha; defendant was found in possession of property burglarized from service station only several hours previously, and that modus operandi of burglary at such station matched that employed by defendant in burglarizing second service station,") and Commonwealth v. Burton, 770 A.2d 771 (Fa, Super, 2001)> appeal denied, 868 A.2d 1197 (Pa. 2002)(4'Conviction for attempted burglary was supported by evidence that someone had entered home by pushing in window screen, that shoe impression on seat of chair under window matched shoes defendant was wearing at time of his arrest, and that defendant had burglarized two nearby residences on same evening."). The Commonwealth introduced evidence that at every burglary scene there were a pair of non-slip rubber dot gloves being worn. The burg lades were conducted after the businesses were closed between 11 p.m, and 4 a.m, when few cars are on the road, Each business had fllJng cablnet and desk drawers opened and papers scattered around the office. Money was primarily what was taken from the different businesses, with the exception of the securlty system taken from Klapec Trucking. The jury heard testimony from Trooper Rodinbaugh detailing tho Appellant's movements through the OPS tracker placed on the Mazdil the night of the Clearfield County burglaries which placed him in the vicinity of those burglaries. Jury Trial Day 4 Tr. 87 :20" 101 :6 (Nov. 21, 2013). At all of the businesses burglarized any security systems were disabled, cable and phone lines were cut at each of the businesses. The jury heard testimony from Trooper David Brown that on tho night of the 84 Lumber burglary, the LSAG North American Plate Reader System on Route 257 between Oil City and 84 Lumber recorded Appellant's Mazda's license plate passing the camera at 3:10 a.m, Jury Trial Day 4 Tr. 105:23~109:16 (Nov, 21, 2013). From this evidence the Jury was free to believe that based on tho similarities in the details of the burglaries, "proof that a person. committed one of them makes it very unlikely that anyone else committed the others." See Commonwealth v. Ross, 57 A.3d 85, 105 (Prt. Super. 2012). Re c e i v e d T i me J u n. 17. 2 0 14 11 : 3 5 AM No. 0 1 3 7 , Jun. 17. 2014 11: 39AM Judge's Chambers No.9347 Circulated 11/16 05/28/2015 P.10:46 AM The Jmy also heard evidence that after Corporal Cloak approached Appellant at the Sheetz in Clarion on June 15, 2011 and inquired about the tires that were on Appellant's Toyota Camry as they matched tire tracks at a burglary scene, Appellant went to Walmart and had his tires changed within two hours of the conversation with Corporal Cloak. Jury Trial Day 3 Tr, 128:14- 156:8 (Nov. 192013) (Corporal Donald Cloak). The jury also heard testimony that when Appellant was arraigned in Clearfield County for burglary he asked to speak to Corporal Cloak and Trooper Ray and had the following conversation with them. A. At that point he[Appellant] related a hypothetlcal to us. If a person was to· commit these eighty to a hundred crimes that you guys say, and points to us, would it be better for that person to got it out in the open at this time? And we reassured him, yes it would. Id. at 143: 24~27. Additionally, the Jury heard testimony that the surveillance system that was stolen from Klapec's Trucking was discovered in Appellant's bedroom, Jury Trial Day 1 Tr. 99: 20-112:4 (Nov. 15, 2013 )(Trooper Mark Swartfager). Appellant claimed that he had bought the security system outside of his mother's bait shop from a guy who he didn't remember in a white van for a big discount. Jury Trial Day S Tr. 53: 20- 55:9 (Nov, 21, 2013). Sec Commonwealth v. Weave1•1 280 A.2d 5 85 (Pa. Super. 197 l)C'Possession of stolen clock by witness, who had received it as a Christmas gift from the accused charged with burglary within minutes after burglary was circumstantial evidence from which a jury could draw inference of accused's guilt in view of the unreasonable explanation of its possession by accused") and Commonwealth v'. Fisher, 372 A.2d 1 (Pa. Simer. 1977)("Evidonce, in prosecution of defendant for burglary and criminal conspiracy, including evidence that grandfather clock resembling stolen grandfather clock was found in defendant's apartment, was sufficient to support convlctlon."). The jUty heard testimony that Appellant was near Hards Welding and in 84 Lumber earlier In the day before the burglaries took place, See Commonwealth v. Balch, 476 A,2d 458 (Pa. Super. 1984)C'Evidence that defendants 1] Received Time Jun.17. 2014 11:35AM No.0137 . Jun. 17. 2014 11:39AM Judge's Chambers No.9347 Circulated 05/28/2015 P. 12/16 10:46 AM were seen in vicinity of burglarized home on the day on which burglary occurred and that stolen items were later found in automobile in which defendants were riding was sufficient to sustain defendants' convictions for burglary and criminal conspiracy."). The [ury heard undisputed testimony from each of the victims as to the amount of damages that they suffered. Afte1• a careful review of the record> the Court rejects Appellant's challenge to the sufficiency of the evidence to support his convlctlons as merltless, Appellant's last contention is that his sentence Is too harsh for the conduct he was found guilty of committing, although he admits he received a standard range sentence. It ls noted at the outset that "sentencing is a matter vested in the sound discretion of the sentencing j\ldge) whose judgment will not be dtstorbed absent an abuse of discretion. Commonwealth v. Perry, 883 A,2d 599, 602 (Pa.Super.2005). 11 A challenge to an alleged excessive sentence ls a challenge to the discretionary aspects of'a sentence." Commonwealth v. Pennington, 751 A.2d 212, 215 (Pa, Super. 2000), "Challenges to the discretionary aspects of sentencing do not entitle an Appellant to review as of right," Commonwealth v. Moury, 992 A,2d 162, 170 (Pa. Super. 2010). Before an Appellant is entitled to review of the discretionary aspects of his sentence, he must satisfy a four-part test: [W]e conduct a four-part analysis to determine (l) whether appellant has filed a timely notice of appeal, see Pa. R.A,P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reoonslder and modify sentence) see Pa. R. Crim. P. [720]; (3) whether appellant's brief has a fatal defect, Pa. R.A.P. 2119 (f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa. C,S.A. §9781 (b), Commonwealth v. Evans, 901 A,2d 528> 533 (Pa. Super. 2006), appeal denied, 909 A.2d 303 (Pa. 2006)(intemal citations omitted). A substantial question occurs, only when the appellant advances a colorable argument that the sentencing judge's actions were either: ( 1) lnconslstent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Sferra, 752 A.2d 910, (Pa. Super. 2000). Generally, "[a]n allegation that the sentencing court failed to consider certain mitigating 12 Received Time Jun.17. 2014 11:35AM No.0137 . Jun. 17. 2014 ll:39AM Judge's Chambers 9347 P. 13/16 No.05/28/2015 10:46 AM Circulated factors generally does not necessarily ridse a substantial question. Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super, 2003). Accord Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. l 999)(reiterating allegation that sentencing court "failed to consider" or "did not adequately consider" certain factors generally does not misc a substantial question), Commonwealth v, Moury, 992 A.2d at 171. The Superior Court of Pennsylvania has stated that in exercising its discretion at sentencing, "the trial court must consider tho character of the defendant and the particular circumstances of the offense .•• , and must impose a sentence that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of tho defendant." Commonweath v. Guth, 735 A,2d 709, 711 (Pa, Super. 1999). More specifically, "the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation," Commonwealth v. Gr(f]ln, 804 A.2d l, l O (Pa. Super, 2002), appeal denied, 868 A.2d 1198 (Pa, 2005), cert. denied, 545 U.S. 1148 (2005). When the "sentencing court had the benefit of a presentence investigation report (HPSl"), we can assume the sentencing court 'was aware of relevant information regarding defendant's character and weighed those considerations along with mitigating .statutory factors.!" Commonwealth v. Moury, 992 A,2d at 171 (citations omitted). Additionally, "where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code." Moury, 992 A,2d at 17 L .Moreove1", "the imposition of consecutive, rather than concurrent) sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and length of imprisonment." Commonwealth v. Pass, 914 A,2d 442, 446-447 (Pa. Super. 2006). A "clalm of excessiveness may raise a substantial question where an appellant provides a plausible argument that the sentence is contrary Re c e i v e d T i me Jun. 17. 2 0 14 11 : 3 5 AM No. 0 13 7 . J u n. 17. 2 0 14 11 : 3 9 AM Judge's Cha.mbe rs No.05/28/2015 Circulated 9347 P.10:46 14/16 AM to the Sentencing Code or the fundamental norms underlying the sentencing process," Commonwealthv, Mouzon, 812 A.2d 617 (Pa. 2002). The Court notes that the sentences Appellant received are within the standard range of the sentencing guidelines. Burglary, where the building is not a home and no persons were present receives an offense gravity scorn of 5, 203 Pa. Code §303.15. Appellant had a prior record score of 3. Appellant was convicted of five separate counts of Burglary and one count of attempted Burglary and received a sentence of sixteen (16) months to thirty-two (32) months on the each count to run consecutive to one another. The standard minimum sentencing guideline range for this offense is 6 months to 16 months. Appellant's minimum sentence for each count of Burglary was the highest possible standard range minimum sentence. The statutory limit fo~· a minimum sentence for Burglary is slxty months, In the instant matter, immediately before sentencing the Appellant, this Court stated on tho record the factors that were considered in imposing the sentence. Speclflcally, this Court stated: In imposing sentence in this CASO, we have considered the Defendant's age, his education, the condition of his health, medical history, including mental health, family history, employment history and all the other information contained in the pre-sentence investigation report. We have considered the Defendant's statement made to U1e court at sentencing, the report from the Venango County Prison, in the form of the Venango County Prison Inmate Evaluatlon Report. We have considered the remarks of defense counsel at the sentencing hearing and the recommendation made by the Commonwealth at the sentencing hearing. We have considered the circumstances surrounding all of these offenses; this Judge sat as the Trial Judge in this case, The court has considered the sentencing guidelines and all other relevant factors, Sentence Hr'g Tr. 25:18-26:12 (December 10> 2013). Furthermore in the December 101 2013, Order of Sentence, this CouL1 stated, "[tjhese are all standard range sentences. The court imposes this sentence because of the current number of multiple felony convlctlons, because the 14 Received Time Jun. (7. 2014 11:35AM No.0137 . J u n . 1 7. 2 0 1 4 11 : 3 9 AM Judge's Chambers No.05/28/2015 Circulated 9347 P.10:4615/16 AM Defendant's conduct was ongoing and caused injury to many victims) because the Defendant has shown no remorse and has taken no responsibility for his actions. This Judge sat as the Trial Judge in this case and observed that the Commonwealth, through an extensive investigation and much legwork and hard work, put together n strong and compelling case against this Defendant, The Commonwealth established that the aqua shoe four arrow footprints led to one person and that person is the Defendant. Also, because we believe any lesser sentence would depreciate the seriousness of these crimes." At sentencing Appellant's counsel and Appellant sought concurrent sentences for the counts stating that they should be considered a crime spree. Sentence Hr 'e Tr. 22: 11-15 (December 10, 2013). It is well settled that "In imposing sentence, a trial judge is given the discretion to determine whether, given the facts of a particular case, a given sentence should be consecutive to, or concurrent with, other sentences being imposed." Commonwealth v, Rickabaugh 706 A.2d 826, 847 (Po. Super, 1997). Appellant is not entitled to a "volume discount" for committing multiple burglaries. Appellant burglarlzed or attempted to burglarize six separate businesses which each suffered individualized damage and loss. This is not Appellant's first "crime spree," his PSI contained prior theft by unlawful taking convictions and burglary convictions. Consecutive sentences do not "present a substantial cuestlon regarding the discretionary aspects of the sentence." Com. v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995), The allegation that the sentence received by the Appellant, although in the standard range, was too harsh for the conduct he was found guilty of committing, absent more, does not raise a substantial question. Moury, 992 A.2d at 175. Based on the foregoing, the sentence imposed by the Court is supported by sufficient explanation, is not unreasonable or unduly lengthy, and is l5 Re c e i v e d T , me J u n. 1 7. 2 0 14 11 : 3 5 AM No. 0 1 3 7 . Jun. 17. 2014.11:39AM Judge's Chambers 9347 P.10:46 No. 05/28/2015 Circulated 16/16 AM consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the Appellant. Based on the foregoing, the Appellant's issues raised I\S matters complained of on appeal are deemed without merit. BY THE COURT, cc: PA Jeffrey Misko, Esq. Received Time Jun. 17. 2014 11:35AM No. 0137I. GPS Trncking Dcvlce
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