Commonwealth v. Whitaker

• Docket Number: 1231 EDA 2021,1232 EDA 2021,1233 EDA 2021,1234 EDA 2021,J-S10011-23
• Decision Date: 06 June 2023
• Parties: COMMONWEALTH OF PENNSYLVANIA v. LORENZO WHITAKER Appellant COMMONWEALTH OF PENNSYLVANIA v. LORENZO WHITAKER Appellant COMMONWEALTH OF PENNSYLVANIA v. LORENZO WHITAKER Appellant COMMONWEALTH OF PENNSYLVANIA v. LORENZO WHITAKER Appellant
• Court: Pennsylvania Superior Court

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COMMONWEALTH OF PENNSYLVANIA v. LORENZO WHITAKER Appellant COMMONWEALTH OF PENNSYLVANIA v. LORENZO WHITAKER Appellant COMMONWEALTH OF PENNSYLVANIA v. LORENZO WHITAKER Appellant COMMONWEALTH OF PENNSYLVANIA v. LORENZO WHITAKER Appellant

Nos. 1231 EDA 2021, 1232 EDA 2021, 1233 EDA 2021, 1234 EDA 2021

No. J-S10011-23

Superior Court of Pennsylvania

June 6, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered July 31, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006995-2014 CP-51-CR-0006996-2014, CP-51-CR-0006998-2014 CP-51-CR-0007000-2014

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.

MEMORANDUM

PANELLA, P.J.

Lorenzo Whitaker appeals, nunc pro tunc, from the judgment of sentence imposed following his convictions for four counts each of burglary, criminal trespass, criminal mischief, and possession of instruments of crime; three counts of criminal attempt; and two counts each of theft by unlawful taking and receiving stolen property.^[1] Whitaker now challenges the trial court's finding that similarities among the offenses displayed a common scheme. He also challenges the sufficiency and weight of the evidence supporting his convictions, as well as the discretionary aspects of his sentence. We affirm.

The trial court adeptly summarized the relevant factual history as follows:

[Whitaker] perpetrated a series of commercial burglaries in 2013. Both direct and circumstantial evidence identified [Whitaker] as the perpetrator. On July 3, 2013, owners of the Stop and Shop [on] Dickinson Street were alerted to a burglary at their store. The owners discovered holes cut in the ceiling and roof and $12,000 missing from the ATM.

On December 8, 2013, a similar burglary occurred at Point Save Supermarket [on] Point Breeze Ave. The perpetrator had gained access to the store through the ceiling and had broken into the ATM. Video surveillance showed a masked person wearing a headlamp and gray-striped shirt descend into the store on a rope through a hole in the ceiling. Video further showed the perpetrator taking money and cigarettes before leaving through the roof. The crime scene was processed and the broken off tip of a screwdriver was found in the store's ATM.

On December 12, 2013, … [Whitaker] was stopped in a U-Haul truck in front of 3801 Kensington Ave. [Whitaker] was unable to produce a rental agreement for the U-Haul. Police searched the U-Haul [the following day] and recovered a gray-striped shirt, headlamp, screwdriver with broken tip, two black knit hats, white dust masks, a pickax, and a disposable camera. On the camera were photographs of large amounts of United States currency [sprawled] across the floor at someone's feet. Also in the U-Haul was a Home Depot receipt for a camera, rope, a crowbar, electrical tape, a utility knife and a screwdriver. Much of what was found in the U-Haul matched items seen on video surveillance footage of the Point Save Supermarket burglary.

On December 19, 2013, an employee came to open the Point Breakfast [on] Point Breeze Avenue when he noticed lights moving around on the ATM and a person inside. Police responded, but the perpetrator was gone. Police did recover a rope and noted a hole in the ceiling as well as pry marks on the ATM.

On December 25, 2013, [Whitaker] was caught hiding behind the deli counter at the Stop and Shop [on] Dickinson - the same location as the burglary on July 3, 2013. There was a hole in the ceiling and damage to the ATM. Recovered amongst a bag of tools was a screwdriver with a broken tip - an exact match to the broken tip found at [the Point Save Supermarket].

Trial Court Opinion, 4/13/22, at 2-3 (unnumbered).

Whitaker was convicted of the above-mentioned offenses, across four trial court dockets, after a bench trial. Following completion of a presentence investigation report ("PSI") and a mental health evaluation, the trial court sentenced Whitaker to an aggregate term of 6 to 12 years in prison, followed by 5 years of probation.

This Court affirmed Whitaker's judgment of sentence. See Commonwealth v. Whitaker, 175 A.3d 1073, 2720 EDA 2015 (Pa. Super. filed Aug. 15, 2017) (unpublished memorandum).^[2] Significantly, this Court concluded that Whitaker's appellate claims were waived based on his failure to develop them, and because Whitaker failed to preserve his challenge to the weight of the evidence before the trial court or in a post-sentence motion. See id.

Whitaker promptly filed a pro se PCRA petition on December 18, 2017. Citing our memorandum decision, Whitaker argued his appellate counsel rendered ineffective assistance on direct appeal. Appointed PCRA counsel subsequently filed an amended PCRA petition explicitly requesting reinstatement of Whitaker's direct appeal rights, nunc pro tunc, based on trial counsel's ineffectiveness. The Commonwealth submitted a response indicating it did not oppose reinstatement of Whitaker's direct appeal rights. The PCRA court restored Whitaker's direct appeal rights on January 7, 2021.^[3]

Whitaker subsequently filed a post-sentence motion challenging the sufficiency and weight of the evidence supporting his convictions, as well as the discretionary aspects of his sentence. The post-sentence motion was denied by operation of law. This timely appeal followed.^[4]

In his first issue, Whitaker asserts the trial court erred by determining the method of gaining entry into the businesses and ATMs constituted a signature crime under Pa.R.E. 404(b). See Appellant's Brief at 21-23. Rule 404(b) generally precludes evidence of other crimes or acts "to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Pa.R.E. 404(b)(1). However, other crimes evidence may be admissible to establish, among other exceptions, a common scheme or plan. See Pa.R.E. 404(b)(2); see also Commonwealth v. Semenza, 127 A.3d 1, 7 (Pa. Super. 2015). Whitaker points to the Commonwealth's decision to nolle prosse charges at an additional docket in light of medical records establishing that Whitaker was hospitalized at the time of that burglary. See id. at 22.

Whitaker's first claim is a challenge to the admissibility of evidence. First, we note that the focus of Rule 404(b) is on prior bad acts. See generally Commonwealth v. Weakley, 972 A.2d 1182, 1189 (Pa. Super. 2009) (explaining that "[e]vidence of distinct crimes is not admissible against a defendant being prosecuted for another crime solely to show his bad character and his propensity for committing criminal acts…." (citation omitted)). However, Whitaker does not reference the introduction of prior bad acts at trial, and there is no indication that Whitaker made an objection under Rule 404(b) at trial. See Pa.R.A.P. 302(a) ("Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.").^[5] Accordingly, Whitaker's first claim is waived.

In his second issue, Whitaker claims there was insufficient evidence to support his convictions of burglary "and related offenses." Appellant's Brief at 23. Whitaker generally argues there was no evidence that he was not privileged or licensed to enter the premises; there was no DNA evidence linking him to the crime; and the trial court relied on its ruling that the burglaries were signature crimes. See id. at 23-24.

Whitaker's argument is not sufficiently developed for review. Whitaker simply lists each docket number, indicates he wishes to challenge the burglary conviction at each docket, and succinctly identifies evidence which he believes was lacking. Whitaker has failed to set forth the elements of burglary or to identify the elements the Commonwealth failed to establish.^[6] Whitaker also fails to cite any legal authority beyond a statement of our standard of review for sufficiency claims. Therefore, this claim is waived. See Pa.R.A.P. 2119(a); see also Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (concluding that appellant waived challenge to the sufficiency of the evidence where he failed to set forth the elements of the crimes he was convicted of, identify which elements were not met, or cite to legal authority).

In his third issue, Whitaker contends the verdict was against the weight of the evidence. See Appellant's Brief at 24. As he did in his sufficiency claim, Whitaker merely lists the relevant docket numbers and the burglary offenses and complains of the lack of DNA evidence or testimony that he was not licensed or privileged to enter the premises. See id. at 25-26. Whitaker fails to develop this argument with citation to and discussion of relevant legal authority. See Pa.R.A.P. 2119(a); Gibbs, 981 A.2d at 281. Whitaker also primarily relies on his sufficiency argument. See Commonwealth v. Sexton, 222 A.3d 405, 416 (Pa. Super. 2019) ("[I]n relying upon his argument in support of his sufficiency challenge, [a]ppellant conflates weight and sufficiency claims and has essentially failed to develop a challenge to the weight of the evidence."). For these reasons, this issue is also waived.

In his fourth and final issue, Whitaker argues the trial court abused its discretion by imposing consecutive sentences without justification. See Appellant's Brief at 26-27. There is no automatic right to appeal the discretionary aspects of a sentence. See Commonwealth v. Mrozik, 213 A.3d 273, 275 (Pa. Super. 2019). Instead, an appellant must invoke this Court's jurisdiction. See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation omitted).

We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly

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