Commonwealth v. Zirkle

• Citation: 2014 PA Super 279,107 A.3d 127
• Decision Date: 18 December 2014
• Docket Number: Nos. 233 WDA 2014,s. 233 WDA 2014
• Court: Superior Court of Pennsylvania
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Steven Andrew ZIRKLE, Appellant. Commonwealth of Pennsylvania, Appellee v. Steven Andrew Zirkle, Appellant.

107 A.3d 127

2014 PA Super 279

COMMONWEALTH of Pennsylvania, Appellee

v.Steven Andrew ZIRKLE, Appellant.

Commonwealth of Pennsylvania, Appellee

v.Steven Andrew Zirkle, Appellant.

Nos. 233 WDA 2014

Superior Court of Pennsylvania.

Submitted Sept. 8, 2014.

Filed Dec. 18, 2014.

Reargument Denied Feb. 17, 2015.

Noah A. Erde, Meadville, for appellant.

Francis J. Schultz, Assistant District Attorney, Meadville, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.^*

Opinion

OPINION BY WECHT, J.:

Steven Andrew Zirkle appeals the December 3, 2013 judgment of sentence. We affirm.

The trial testimony supports the following recitation of the material facts of the case. After church, on the morning of December 21, 2008, Christy Hamilton drove other church members to their homes. Notes of Testimony (“N.T.”), 11/16/2009, at 95. On her way to one of their homes, Ms. Hamilton passed her own home and saw an unfamiliar truck in her driveway. Id. at 95–96. When Ms. Hamilton returned home, the truck was still in her driveway. Id. at 98–99. Upon entering her house, Ms. Hamilton saw things had been disturbed. For example, the drawers of her dining room hutch were open and items were hanging out of the drawers. Id. at 118. Other rooms also had been ransacked. Ms. Hamilton went to the hallway and saw Zirkle rush out of her bedroom. Id. at 119–20. Zirkle pushed Ms. Hamilton aside and told her not to follow him or he would shoot her. Id. at 120. Zirkle then got into the parked truck and drove away. Ms. Hamilton called the police. Id. at 122. After Zirkle left, Ms. Hamilton discovered that some money, including rolled coins and silver certificates, was missing. Id. at 126. This incident was the basis for the charges filed against Zirkle at CP–20–CR–0000147–2009 (hereinafter “Case 147”).

On December 21, 2008, Douglas Robertson and his wife, Terry, also went to church, leaving their home around 10 a.m. N.T., 11/17/2009, at 95. At approximately 11 a.m., they received a call from their daughter-in-law, alerting them that someone had broken into their home. Id. at 97. When they returned, the house was in disarray and the front door jamb was broken. Id. at 98–99. However, nothing was missing from the house.Id. at 100.

On the same morning, Loretta Chase's husband and daughter left for work. Id. at 141. Ms. Chase went to work on her family's farm around 8 a.m. Id. at 142. She called her son, Matt, to come to the farm to help her. Matt arrived around 10:15 a.m. Id. at 142–43. Upon his return to their home around 11:15 a.m., Matt called Ms. Chase to tell her that someone had been in their home. Id. at 144–45. The house had been ransacked and Ms. Chase noticed footprints on the deck outside the home. Id. at 146. The incidents at the Williams' and the Chases' houses formed the basis for the charges filed against Zirkle at CP–20–CR–0000143–2009 (hereinafter “Case 143”).

Pennsylvania State Trooper Christine Lench responded to Ms. Hamilton's call to the police. Id. at 170. Trooper Lench observed footprints in the snow leading to the front door of the Hamilton residence. Id. at 174. While interviewing Ms. Hamilton, Trooper Lench received a call about another break-in nearby. Id. at 179.

Trooper Lench then reported to the Robertson home. Id. at 189. Trooper Lench again found footprints in the snow on the front sidewalk and the back porch. Id. at 191, 194. While investigating the Robertson home, Trooper Lench learned of the Chase investigation and informed those troopers to look for footprints. N.T., 11/18/2009, at 9. Trooper Lench then went to the Chase home and found more footprints in the snow. Id. Trooper Lench took photographs of the footprints at all three locations. Trooper Lench opined that the footprints at all three houses matched each other. Id. at 11.

Corporal Kurt Sitler, then a trooper, was assigned to the investigation. N.T., 11/19/2009, at 18. An anonymous caller provided information about Zirkle being involved in the crimes, by telling police that the person who committed the crimes lived with a woman named Denise. Id. at 20. Through inquiries to the Meadville City Police and the state parole office, the police learned that Zirkle was the person described by the caller. Id. at 21–22. The police received a second anonymous phone call telling them where they could find Zirkle's truck. Id. at 28–29. The police found the truck and took Zirkle into custody. Id. at 30. Zirkle had silver certificates in his pocket. Id. at 31. Ms. Hamilton identified Zirkle in a photographic array. N.T., 11/16/2009, at 123–23. Ms. Hamilton identified the silver certificates as the ones that were taken from her home. N.T., 11/19/2009, at 33. Ms. Hamilton also identified Zirkle's truck as the one that had been in her driveway. Id. at 34. The police recovered rolls of coins from Zirkle's truck. Id. at 35.

Trooper Richard Pottorf, a member of the Forensic Unit, photographed the scenes, including the shoe impressions. N.T., 11/18/2009, at 90, 101. Trooper Pottorf collected fingerprints, but they did not match anyone in the database. Id. at 99–100; N.T., 11/18/2009 Vol. II, at 10–11. Trooper Pottorf determined that the tread pattern on Zirkle's boots was consistent with the footprints left at the three homes. Id. at 23–24. Trooper Pottorf took Zirkle's boots and gloves into evidence. He also fingerprinted some rolled coins that were found in Zirkle's truck, but did not find any usable prints. Id. at 33–35. Trooper Pottorf found glove impressions on the Robertson doorknob and determined that Zirkle's gloves matched those impressions. Id. at 43. Trooper Anthony Delucio, an expert in impression evidence, determined that Zirkle's boots could have made the impressions at the three houses, which was the best that he could say given the conditions of the prints.Id. at 104.

The trial court summarized the procedural history of this case:

[Zirkle] was charged at [Case 143] with two counts of burglary, two counts of criminal trespass, and one count of criminal mischief, 18 Pa.C.S. §§ 3502(a), 3503(a)(1)(ii), 3304(a)(1), respectively, and at [Case 147] with one count each of burglary, criminal trespass, terroristic threats, theft by unlawful taking, and receiving stolen property, id. §§ 3502(a), 3503(a)(1)(ii), 2706, 3921(a), 3925(a), respectively. The two cases were consolidated for trial, at which Zirkle was self-represented [with stand-by counsel], and he was convicted on all ten counts. On January 27, 2010, he received an aggregate sentence of ten to twenty years of imprisonment at each case, to be served consecutively, with credit for 403 days of presentence incarceration.

Zirkle filed post-sentence motions for acquittal, for a new trial, and for sentence modification, which were all denied, and judgment of sentence was affirmed on appeal to the Superior Court. A timely filed petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq., resulted in the reinstatement of Zirkle's right to appeal to the Pennsylvania Supreme Court for discretionary review, but [allocatur] was denied on December 27, 2012.

Zirkle filed his second pro se PCRA petition on or about June 24, 2013, which [the PCRA court] treated as his initial petition and appointed counsel to represent him. In his counseled Amended Post–Conviction Relief Act Petition, Zirkle claimed, inter alia, the ineffective assistance of counsel in failing to argue on appeal that his three criminal trespass convictions were erroneously graded as second rather than third-degree felonies, because entry was made through unlocked doors without the use of force. [The PCRA court] agreed ¹ and vacated his sentence, deferring ruling on all other issues raised in the Petition. Zirkle was resentenced on December 3, 2013 [and received an aggregate sentence of 205 months (seventeen years and one month) to 480 months' imprisonment, reducing his minimum sentence by almost three years], and has timely filed post-sentence motions for judgment of acquittal and for reconsideration of his sentence.

Trial Court Memorandum & Order, 1/7/2014, at 1–2 (emphasis in original).

On January 7, 2014, the trial court denied Zirkle's post-sentence motions. On February 6, 2014, Zirkle filed a notice of appeal. On February 12, 2014, the trial court ordered Zirkle to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 4, 2014, Zirkle complied. On March 12, 2014, the trial court filed its opinion pursuant to Pa.R.A.P. 1925(a), in which it incorporated its January 7, 2014 memorandum and order.

Zirkle raises the following issues for our review:

1. Whether the Trial Court failed to follow the general principles within the sentencing guidelines when it sentenced [Zirkle]?

2. Whether the Trial Court abused its discretion when sentencing [Zirkle]? Specifically, [Zirkle] believes that the Trial Court's sentence was disproportionate to the crimes for which he was convicted. All told, for burglarizing three (3) homes, [Zirkle] was sentenced to 205 months (seventeen years and one month) to 480 months (forty years) of incarceration.

3. Whether the Trial Court erred in denying [Zirkle's] Motion for Reconsideration of Sentence?

Zirkle's Brief at 3.

Although phrased differently, all of Zirkle's issues involve a challenge to the discretionary aspects of his sentence. Our standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa.Super.2007) (citation omitted).

The right to appellate review of

...