Com. v. Jackson
| Decision Date | 06 February 1991 |
| Citation | 401 Pa.Super. 426,585 A.2d 533 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. William D. JACKSON, Appellant. |
| Court | Pennsylvania Superior Court |
Shelley Stark, Public Defender, Pittsburgh, for appellant.
Thaddeus A. Dutkowski, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
Before CAVANAUGH, POPOVICH and BROSKY, JJ.
Before us is an appeal from the judgement of sentence entered May 18, 1990. The sole issue on appeal is whether, for the purpose of the sentencing guidelines, a house is occupied when the owner or tenant is sitting on the back porch. We hold that when the rightful possessor is seated on the back porch of her home at the time it is burglarized, that person is within the structure for the purposes of calculating the gravity of the offense under the sentencing guidelines. We affirm the sentence.
On January 31, 1990 appellant, William Jackson, entered a plea of nolo contendere to the charges of Burglary, Theft By Unlawful Taking and Receiving Stolen Property. It was established during the plea colloquy that approximately noon on June 27, 1989, while driving his personal vehicle, a local police officer passed the residence of the victim. The officer, who knew the victim, observed her on the back porch. He also observed appellant enter the front door of the residence. The police officer turned his car around and continued to watch the house. After witnessing appellant come out the front door the officer called out for him to stop. When appellant fled, the officer gave chase. Appellant was apprehended by two citizens shortly thereafter. For the duration of these events, the victim was seated on a porch connected to the rear of the dwelling and was unaware of the crime until the police returned to the scene.
When applying the Pennsylvania sentencing guidelines the trial court used a value of seven (7) for the Offense Gravity Score. A value seven (7) Burglary is defined in the guidelines as:
Burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present.
A Burglary carrying a Gravity Value Score of six (6) is defined as:
Burglary of a structure adapted for overnight accommodation in which at the time of the offense no person is present.
The trial court concluded that a person on an attached back porch is within the structure of the dwelling for purposes of the guidelines. We agree. 1
Initially we conclude that appellant has raised a substantial question in his challenge to the discretionary aspects of sentencing. Where the appellant avers that the sentencing court failed to properly apply the sentencing guidelines a substantial question as to the appropriateness of the sentence has been raised. Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985). By asserting that the trial court applied the wrong Gravity Value Score in applying the sentencing guidelines, appellant has raised a substantial question that the sentence is not appropriate under the guidelines.
We turn now to the substance of appellant's challenge. We find the lower courts reasoning to be quite sound. In Commonwealth v. Dickison, 334 Pa.Super. 549, 483 A.2d 874 (1984), we stated:
The different gravity scores for burglaries committed of structures where persons are present and structures where persons are not present is premised upon the likelihood of greater mischief in the former situation. If a burglary is committed while the structure is occupied, the potential for additional and more serious offenses is always present. Even if no further crime is committed, the presence of the victims and the potential for harm to them suggest an offense possessing gravity greater than when no person is present.
In Dickison, we held that each unit of a motel complex was a...
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Commonwealth v. Conaway, 2312 EDA 2013
...for overnight accommodation, although it was not accessible from the rest of a house divided into separate apartments); Com. v. Jackson , 585 A.2d 533 (Pa.Super.1991) (upholding a finding that a house was an occupied structure, where the victim was sitting on the back porch but unaware of t......
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Com. v. Ott
...MITCHELL: That's correct Your Honor.MR. CAMPANA: Yes Your Honor.Trial Transcript at 5, 7/21/93.3 Compare Commonwealth v. Jackson, 401 Pa.Super. 426, 585 A.2d 533 (1991) (for the purposes of sentencing guidelines, pursuant to a charge of burglary, a house is "occupied" when owner or tenant i......
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Commonwealth v. Runk, J-A14024-15
...court used incorrect Offense Gravity Score raises a substantial question regarding discretionary aspect); see also Commonwealth v. Jackson, 585 A.2d 533, 534 (Pa.Super.1991) ("Where [an] appellant avers that the sentencing court failed to properly apply thesentencing guidelines a substantia......
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Commonwealth v. Palagonia, 2005 PA Super 51 (PA 2/9/2005)
...affirmed. 1. Appellant was also found guilty of loitering/prowling at nighttime. He was acquitted of burglary. 2. In Commonwealth v. Jackson, 585 A.2d 533 (Pa. Super. 1991), the defendant was convicted of burglary, but argued that his sentence was illegal because the statute required that t......