Commonwealth v. Spain, No. 122 MDA 2020
| Decision Date | 24 December 2020 |
| Docket Number | No. 122 MDA 2020 |
| Citation | 245 A.3d 1101 (Table) |
| Parties | COMMONWEALTH of Pennsylvania v. Khiri Kashier SPAIN, Appellant |
| Court | Pennsylvania Superior Court |
Appellant, Khiri Kashier Spain, appeals from the aggregate judgment of sentence of six to twenty years of confinement, which was imposed after his jury trial convictions for: burglary – building or occupied structure, or separately secured or occupied portion thereof, that is not adapted for overnight accommodations in which at the time of the offense no person is present; theft by unlawful taking or disposition – movable property; receiving stolen property; loitering and prowling at night time; and criminal trespass – enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure. 1 We affirm.
The facts underlying this appeal are as follows. On September 30, 2018, at about 2:30 A.M., Officer Matthew Nguyen of the West Reading Police Department was on bicycle patrol when he observed a man peering into multiple vehicles. N.T. Trial at 160, 162-63. After calling the suspicious behavior in to his supervisor, Officer Nguyen observed the man cutting through backyards headed towards Wyomissing, Berks County. Id. at 166-67. When another officer attempted to make contact with the man, he fled through the backyards towards Wyomissing. Id. at 167.
Police later recovered a cellular telephone laying in the one in of yards. Id. at 180. A search warrant was obtained for the cell phone, id. at 188, and police discovered photographs of Appellant and a Facebook account in his name on the phone. Id. at 190-91.
At 7:00 A.M. that same day, Kristine Seibert awoke in her home in Wyomissing, blocks away from where Officer Nguyen had seen Appellant, and discovered that all her kitchen cabinets were open and ransacked. Id. at 100-02, 132, 162-64, 169. A jar of change was missing from the kitchen, as was an iPad and a Bluetooth speaker. Id. at 107-09. Ms. Seibert called for her husband, who had gone to sleep after her and had been awake until around 1:00 A.M. Id. at 102, 127. When he came downstairs, he noticed that the doors to their yard were ajar, even though they had been closed when he went to bed; the yard leads to their detached garage. Id. at 102, 106-07. When they entered the garage, they saw that Ms. Seibert's bicycle was missing; it had been strapped to their car, since they had been out cycling the day before. Id. at 114-15. Police later collected DNA evidence from the straps, and, at trial, an expert forensic scientist testified that "the probability of randomly selecting an unrelated individual exhibiting this combination of DNA types is approximately 1 in 370 sextillion from the Caucasian population[,] 1 in 7.8 sextillion from the African American population[,] and 1 in 89 sextillion from the Hispanic population." Id. at 281. The expert further testified that DNA transfer was improbable, as this sample was not a mixture of DNA from multiple people. Id. at 289, 291. The Seiberts also found that Mr. Seibert's backpack was missing and that a fire-proof box in their basement had been rummaged through, although nothing was gone from the box. Id. at 102, 106, 111, 132. Neither of the Seiberts knew Appellant and did not give him permission to be in their garage or home. Id. at 124, 133-34.
Detective Kevin Quinter of the Borough of Wyomissing Police Department received a notice that the Seiberts’ stolen iPad was sold at a kiosk at the Walmart in Wyomissing. Id. at 202. The seller was identified as Raymeesha Leatherbury. Id. at 203-04. Camera footage from the kiosk revealed that Appellant was in the store with Leatherbury at the time of the sale. Id. at 204. Leatherbury later testified that Appellant had given her the iPad, but she "didn't know where it came from." Id. at 233. She stated that he had asked her to sell it, because he did not have the requisite identification to hawk it at the Walmart kiosk. Id. at 234, 245. She agreed, because she was homeless at the time and needed money for a hotel room. Id. at 231, 233-34. Leatherbury had initially been reluctant to talk to police since she was "ashamed" and "scared" and "didn't want to be labeled as a snitch[.]" Id. at 232, 238, 248. She informed the jury that she was never charged with receiving stolen property or any crime related to the burglary at issue and was never asked for a DNA sample by police during their investigation. Id. at 246-47.
Appellant testified in his own defense at trial, during which he admitted to being in the neighborhood where the crime occurred at approximately 2:00 A.M. on September 30, 2018, and that the cell phone found by police in the area that night belonged to him. Id. at 311-12, 319.
The jury convicted Appellant of the aforementioned charges, including burglary of the garage. However, the jury found him not guilty of burglary of the Seiberts’ house. 2
On December 19, 2019, the trial court sentenced Appellant to: three to ten years of confinement for burglary; 18 months to five years of confinement for receiving stolen property; three to twelve months of confinement for loitering and prowling at night time; and 18 months to five years of confinement for criminal trespass. He received no punishment for theft by unlawful taking or disposition. His sentences for burglary, receiving stolen property, and criminal trespass are to be served consecutively to each other; his sentence for loitering and prowling at night time is to be served concurrently. Consequently, his aggregate judgment of sentence is six to twenty years of confinement.
On December 30, 2019, Appellant filed timely post-sentence motions, including a motion for new trial on the basis that the verdicts were against the weight of the evidence and a motion to modify sentence. The latter motion stated, in its entirety:
Post Sentence Motions, 12/30/2019, at 2-3 (not paginated) ¶¶ 9-11 (emphasis in original). After the trial court denied these motions on January 3, 2020, Appellant filed this timely direct appeal on January 15, 2020. 3
On July 9, 2020, Appellant filed his brief with this Court. On July 29, 2020, Appellant filed an application for remand to file a supplemental post-sentence motion or, in the alternative, to file a supplemental appellate brief. See Pa.R.A.P. 2113(c) (). 4 On August 3, 2020, this Court denied the application for remand but granted the application to file a supplemental brief. On August 6, 2020, Appellant filed his supplemental brief.
In his main brief to this Court, Appellant presents the following issues for our review:
Appellant's Brief at 15-16 ().
Appellant's supplemental appellate brief does not include a statement of questions involved pursuant to Pa.R.A.P. 2116 but raises "[a] claim that the sentencing court misapplied the sentencing guidelines[.]" Appellant's Supplemental Brief at 2.
Appellant first contends that the verdicts were against the weight of the evidence, Appellant's Brief at 33, "because the evidence supported the conclusion that other individuals, never pursued by law enforcement, were likelier to have committed the alleged crimes." Id. at 34. He accuses Leatherbury as a potential perpetrator. Id. (citing N.T. Trial at 204).
When reviewing a challenge to the weight of the evidence, we review the trial court's exercise of discretion. A reversal of a verdict is not necessary unless it is so contrary to the evidence as to shock one's sense of justice. The weight of the evidence is exclusively for the finder of fact, who is free to believe all, none or some of the evidence and to determine the credibility of the witnesses. The fact-finder also has the responsibility of resolving contradictory testimony and questions of credibility. We give great deference to the trial court's decision regarding a weight of the evidence claim because it had the opportunity to hear and see the evidence presented.
To continue reading
Request your trial