The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDY JEROME NORRIS :
:
Appellant : No. 1439 WDA 2022
Appeal from the Judgment of Sentence Entered October 27, 2022
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0001112-2021
BEFORE: LAZARUS, J., OLSON, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED: October 4, 2023
Appellant, Randy Jerome Norris, appeals from the judgment of sentence
entered on October 27, 2022,1 as made final by the denial of post-sentence
motions on November 21, 2022, following his jury trial convictions for burglary
(overnight accommodations with person present), criminal trespass (breaks
into occupied structure), and indecent exposure.2 We affirm Appellant’s
convictions but vacate and remand for resentencing.
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1 Appellant alleges that this appeal lies from the original sentence entered in
open court on October 25, 2022. As explained in greater detail below,
however, the trial court, on October 27, 2022, entered a subsequent written
order that amended Appellant’s sentence. Where the trial court amends the
judgment of sentence during the period it maintains jurisdiction, the direct
appeal lies from the amended judgment of sentence. See Commonwealth
v. Garzone, 993 A.2d 1245, 1254 n.6 (Pa. Super. 2010). Accordingly, we
have corrected the caption to reflect that the appeal lies from the amended
sentencing order.
2 18 Pa.C.S.A. §§ 3502(a)(1)(ii), 3503(a)(1)(ii), and 3127, respectively.
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We briefly set forth the facts and procedural history of this case as
follows. On August 28, 2021, in Sharon, Pennsylvania, Appellant entered the
home of an adult female through an open window, without permission, while
she slept. The victim awoke to find Appellant in her bedroom exposing his
genitals and masturbating. Following a two-day jury trial concluding on July
13, 2022, the jury found Appellant guilty of the aforementioned crimes.
On October 25, 2022, the trial court sentenced Appellant to 25 to 50
years of incarceration for burglary, including a mandatory sentencing
enhancement as a third time violent offender pursuant to 42 Pa.C.S.A. § 9714.
The trial court imposed concurrent terms of incarceration for the remaining
charges, resulting in an aggregate sentence of 25 to 50 years of incarceration.
On October 27, 2022, the trial court entered an amended sentencing order,
adding 12 months of re-entry supervision consecutive to the original
sentence.3 On November 4, 2022, Appellant filed a post-sentence motion,
which the trial court denied by order entered on November 21, 2021. This
timely appeal resulted.4
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3 Although not at all clear from our review of the record, the trial court
presumably amended its sentencing order to conform with 61 Pa.C.S.A.
§ 6137.2 which provides that any person sentenced to “an aggregate
minimum sentence of total confinement [ ] of four years or more … shall be
sentenced to a period of reentry supervision of 12 months consecutive to and
in addition to any other lawful sentence issued by the court.” 61 Pa.C.S.A.
§ 6137.2(a)-(b).
4 Appellant filed a notice of appeal on December 8, 2022. On December 20,
2022, the trial court ordered Appellant to file a concise statement of errors
(Footnote Continued Next Page)
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On appeal, Appellant presents the following issues for our review:
1. Did the lower court err when it denied [A]ppellant[’]s motion
for [judgment] not withstanding the verdict of the jury being
against the weight and sufficiency of the evidence[?]
2. Did the lower court err in imposing a mandatory sentence
based upon facts not found by the fact finder[?]
3. Did the lower court err in imposing sentences for [b]urglary
and for [c]riminal [t]respass based upon a single entry into a
residence[?]
Appellant’s Brief at 9.
In his first issue presented, Appellant maintains that “[t]he case boiled
down to the allegation and identification of [A]ppellant” by the victim. Id. at
16. Appellant argues that at trial the victim testified that “she immediately
knew who was in her bedroom” but admitted that she told the police
dispatcher, responding officer, and investigating detective that she did not
know Appellant. Id. Appellant alleges that the victim further “testified that
she lied to the detective about her prior involvement with [A]ppellant after
implicating” him. Id. As such, Appellant argues that “[w]here the sole
____________________________________________
complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days. The
order further stated that issues not included in a timely filed Rule 1925(b)
statement shall be deemed waived. Appellant filed an untimely Rule 1925(b)
statement on February 3, 2023. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on February 3, 2023. The trial court first noted that
Appellant failed to timely file a Rule 1925(b) concise statement and, instead,
waited until “one business day before the record, and [the trial court’s Rule
1925(a) o]pinion [were] due” to this Court. Trial Court Opinion, 2/3/2023, at
1. Accordingly, the trial court found “all issues [] waived” but summarily
addressed each issue in its brief, two-page Rule 1925(a) opinion. Id. at 1-2.
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witness to implicate [A]ppellant, under the allegations of this case, admits to
lying to [the police] dispatcher, the initial officer and the detective, any verdict
relying on said witness shocks one[’]s sense of justice.” Id.
Initially we note that the trial court found this issue waived because
Appellant failed to file a timely Rule 1925(b) statement. For the reasons that
follow, we agree. Our Supreme Court has previously stated “[t]he provisions
of [Pa.R.A.P.] 1925(b)(4) establish the basic requirements which all
statements of errors must meet, and further state that issues not raised in
accordance with those requirements ‘are waived.’” Commonwealth v.
Parrish, 224 A.3d 682, 692 (Pa. 2020), citing Pa.R.A.P. 1925(b)(4)(vii).
Moreover, our Supreme Court has “determined that counsel's untimely filing
of such a statement also completely waives such claims for purposes of
appellate review, even though the trial court authored an opinion addressing
the issues presented in the untimely filed statement.” Id. at 693, citing
Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005). Our Supreme Court
found that a bright-line waiver rule was necessary to avoid situations “where
trial courts were forced to anticipate which issues the appellant might raise
and appellate courts had to determine whether they could conduct a
meaningful review despite an appellant's failure to file a Pa.R.A.P. 1925(b)
statement or to include certain issues within a filed statement.” Id. (citation
omitted). Here, there is no dispute that Appellant filed an untimely Rule
1925(b) concise statement and, therefore, waived his sufficiency and weight
claims.
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Assuming arguendo that Appellant had not waived these claims,
however, we find no merit to Appellant’s first issue. We adhere to the
following standards:
Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary. We review the evidence in the light most
favorable to the verdict winner to determine whether there is
sufficient evidence to allow the jury to find every element of a
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Soto, 202 A.3d 80, 93 (Pa. Super. 2018) (citation
omitted).
Furthermore, we have previously determined:
A victim's in-court testimony, identifying the defendant as the
perpetrator of a crime, is by itself sufficient to establish the
identity element of that crime. Thus, [ ] attempts to enhance [a
sufficiency of the evidence] argument by asserting that the
Commonwealth failed to present any corroborating evidence to
support the victim's in-court identification testimony does not
establish that the identity evidence was insufficient. Moreover,
[an] assertion that the victim's testimony was contradicted by [an
appellant's] own [testimony] is irrelevant to [a] sufficiency
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analysis. “Variances in testimony ... go to the credibility of the
witnesses and not the sufficiency of the evidence.”
Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220, 1222 (Pa. 1981).
Commonwealth v. Johnson, 180 A.3d 474, 478 (Pa. Super. 2018) (some
internal citations omitted). Moreover, “the uncorroborated testimony of a
single witness is sufficient to sustain a conviction for a criminal offense, so
long as that testimony can address and, in fact, addresses, every element of
the charged crime.” Id. at 481.
An appellate court's standard of review when presented with a weight
of the evidence claim is distinct from the standard of review applied by the
trial court:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court's conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice. This does not
mean that the exercise of discretion by the trial court in granting
or denying a motion for a new trial based on a challenge to the
weight of the evidence is unfettered.
In describing the limits of a trial court's discretion, we have
explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
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actions. Discretion is abused where the course pursued
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill-will.
Soto, 202 A.3d at 97 (citation omitted).
Here, the trial court determined that there was sufficient evidence to
support Appellant’s convictions and that the verdict did not shock the
conscience of the court so as to warrant relief on his weight of the evidence
claim. See Trial Court Opinion, 2/3/2023, at 2. Upon our review of the record,
we agree. The victim testified that she had a previous interaction with
Appellant at a charity event several months before the crimes at issue. N.T.,
7/13/2022, at 26-27. The victim testified that Appellant messaged her dozens
of times through social media thereafter and she eventually blocked his
communications. Id. at 36. The victim further testified that she immediately
recognized Appellant when the incident occurred and positively identified him
in open court at trial. Id. at 26. The victim also explained that she did not
tell the police that she knew the perpetrator because she “felt bad and didn’t
want to get anyone in trouble.” Id. However, she admitted at trial that she
initially lied to the police. Id. at 52. The jury was free to believe all, part, or
none of the evidence and determine the victim’s credibility. Based upon the
facts of record, we discern no abuse of discretion or error of law by the trial
court in denying Appellant’s weight and sufficiency claims. For all of the
foregoing reasons, Appellant is not entitled to relief on his first issue.
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Unlike his first issue, Appellant’s second and third issues implicate the
legality of his sentence and those issues are not waived. See
Commonwealth v. Warunek, 279 A.3d 52, 54 (Pa. Super. 2022) (citation
omitted) (“A challenge to the legality of the sentence can never be waived and
may be raised by this Court sua sponte.”). More specifically, in his second
issue presented, Appellant claims that the trial court erred by sentencing him
to a mandatory minimum sentence pursuant to 42 Pa.C.S.A. § 9714 for “two
prior convictions for crimes of violence” when those “allegations were not
found by the finder of facts, the jury in the case at bar.” Appellant’s Brief at
17. Appellant concedes that the Section 9714 “statutory scheme” has been
“recognized as valid” but argues that he was “still subject [] to incarceration
beyond the statutory limits for the [convicted] crimes based upon a lower
standard [which] deprive[d the trial] court[] of a proper consideration of
[A]ppellant’s rehabilitative needs pursuant to 42 Pa.C.S.[A.] § 9721(b).” Id.
at 18-19.
“Interpret[ing] Section 9714 of the Sentencing Code, [] presents the
Court with a question of law. As such, our standard of review is de novo, and
our scope of review is plenary.” Commonwealth v. Griffin, 207 A.3d 827,
830 (Pa. 2019) (citation omitted). Section 9714 provides, in pertinent part:
(2) Where the person had at the time of the commission of the
current offense previously been convicted of two or more such
crimes of violence arising from separate criminal transactions, the
person shall be sentenced to a minimum sentence of at least 25
years of total confinement, notwithstanding any other provision of
this title or other statute to the contrary. Proof that the offender
received notice of or otherwise knew or should have known of the
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penalties under this paragraph shall not be required. Upon
conviction for a third or subsequent crime of violence the court
may, if it determines that 25 years of total confinement is
insufficient to protect the public safety, sentence the offender to
life imprisonment without parole.
42 Pa.C.S.A. § 9714(a)(2).
We have previously recognized:
In Alleyne [v. United States, 570 U.S. 99, 133 S.Ct. 2151
(2013), the Supreme Court of the United States established that
“[a]ny fact that, by law, increases the penalty for a crime is an
‘element’ that must be submitted to the jury and found beyond a
reasonable doubt.” Alleyne, 133 S.Ct. at 2155. However, the
Supreme Court has recognized a narrow exception to this rule for
prior convictions. Id. at 2160, n.1 (citing Almendarez–Torres v.
United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350
(1998)). In Commonwealth v. Reid, 117 A.3d 777, 785 (Pa.
Super. 2015), this Court specifically found that Section 9714 is
not rendered unconstitutional under Alleyne as it [allows] for
mandatory minimum sentences based on prior convictions.
Commonwealth v. Bragg, 133 A.3d 328, 332–333 (Pa. Super. 2016), aff'd
sub nom., Commonwealth v. Bragg, 169 A.3d 1024 (Pa. 2017); see also
Commonwealth v. Valentine, 101 A.3d 801, 804 n.2 (Pa. Super. 2014)
(emphasis in original) (“The Alleyne decision ... renders those Pennsylvania
mandatory minimum sentencing statutes that do not pertain to prior
convictions constitutionally infirm insofar as they permit a judge to
automatically increase a defendant's sentence based on a preponderance of
the evidence standard.”). Here, neither Alleyne nor Section 9714 required
the trial court to submit Appellant’s prior convictions to a jury before
sentencing him properly to an enhanced mandatory minimum sentence based
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upon his two prior convictions of crimes of violence.5 Moreover, the text of
Section 9714, which requires a 25-year minimum sentence where two or more
violent crime convictions predate the commission of a third, displaces any
need for the court to inquire into Appellant’s rehabilitative needs under Section
9712(b). See 42 Pa.C.S.A. § 9714(a)(2) (imposing a 25-year minimum
sentence notwithstanding other statutory provisions). Thus, Appellant’s
second claim has no merit.
Next, Appellant argues that the lower court erred “in imposing separate
sentences for [b]urglary and [c]riminal [t]respass based upon a single entry
into [the victim’s] residence.” Appellant’s Brief at 20-21. Appellant concedes
that “[u]nder a strict merger analysis, [burglary and criminal trespass] would
not merge as all the statutory elements of one offense are not included in the
other.” Id. at 20, citing Commonwealth v. Quintua, 56 A.3d 399 (Pa.
Super. 2012). Instead, Appellant maintains:
Here, the argument is not a merger argument, but rather, where
the allegation and testimony at trial are for one entry, that entry
was either made with the intent to commit a crime [or not, as
A]ppellant was not accused of multiple entries. The two offenses
appear to be mutually exclusive. To argue otherwise would result
in every burglar also being guilty of criminal trespass.
Id. at 20.
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5 Appellant does not contest that his prior convictions for rape and rape by
forcible compulsion (in one criminal episode) and two counts of arson (in a
later, unrelated criminal episode) were violent crimes under Section 9714.
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When an appellant challenges the imposition of separate sentences, this
Court has stated:
Whether appellant's convictions merge for sentencing is a
question implicating the legality of appellant's sentence.
Consequently, our standard of review is de novo and the scope of
our review is plenary. See Commonwealth v. Collins, 764 A.2d
1056, 1057 n.1 (Pa. 2001).
Our Sentencing Code, at 42 Pa.C.S.A. § 9765, provides:
§ 9765. Merger of sentences
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence the
defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765.
The statute's mandate is clear. It prohibits merger unless two
distinct [components] are present: 1) the crimes arise from a
single criminal act; and 2) all of the statutory elements of one of
the offenses are included in the statutory elements of the other.
Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).
Commonwealth v. Talley, 236 A.3d 42, 52–53 (Pa. Super. 2020) (original
brackets omitted).
“A person commits the offense of burglary if, with the intent to commit
a crime therein, the person … enters a building or occupied structure, or
separately secured or occupied portion thereof that is adapted for overnight
accommodations in which at the time of the offense any person is present.”
18 Pa.C.S.A. § 3502(a)(1)(ii). Whereas, Section 3503(a)(1)(ii) states that a
person commits criminal trespass “if, knowing that he is not licensed or
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privileged to do so, he breaks into any building or occupied structure or
separately secured or occupied portion thereof.” 18 Pa.C.S.A.
§ 3503(a)(1)(ii). We have previously determined:
Examining the elements of criminal trespass, a conviction for that
offense requires a person: (1) to break or enter into with
subterfuge any building or occupied structure; (2) knowing he is
not licensed or privileged to do so. See 18 Pa.C.S.A. § 3503(a)(1).
On the other hand, to commit burglary, a person must: (1) enter
a building or occupied structure; (2) with intent to commit a crime
therein. See 18 Pa.C.S.A. § 3502(a). The plain language of the
respective statutes demonstrates why they do not merge.
Criminal trespass contains an element of knowledge—a person
committing that offense must know he is not privileged to enter
the premises. Burglary has no such knowledge requirement.
Burglary does, however, require intent to commit a crime within
the premises, an element that criminal trespass lacks. As each
offense requires proof of an element the other does not, the
sentences should not merge. See [Commonwealth v.] Jones,
[] 912 A.2d [815,] 827 (Newman, J., dissenting) (stating: “[N]ot
every burglary is a criminal trespass, and vice versa.”).
Quintua, 56 A.3d at 402. Appellant concedes that the two offenses, burglary
and criminal trespass, have different statutory elements and upon our review
of Quintua, Appellant is not entitled to relief on his third issue presented.
However, upon further review of the record, we sua sponte determine
that the trial court entered an illegal sentence when it amended Appellant’s
sentence outside his presence. Thus, we are constrained to vacate Appellant’s
sentence. As this Court has previously determined:
[W]hether the trial judge had the authority to correct an alleged
sentencing error, poses a pure question of law. Accordingly, our
scope of review is plenary and our standard of review is de novo.
It is well-settled in Pennsylvania that a trial court has the inherent,
common-law authority to correct clear clerical errors in its orders.
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A trial court maintains this authority even after the expiration of
the 30-day time limitation set forth in 42 Pa.C.S.A. § 5505 for the
modification of orders. See 42 Pa.C.S.A. § 5505.
A trial court's inherent authority to correct clerical errors, while
considered a time-honored tradition has been described by our
Supreme Court as a limited judicial power in its scope.
* * *
In addition to the restraints imposed by the double jeopardy
clauses on a trial court's authority to correct clerical errors, an
alleged error must qualify as a clear clerical error (or a patent and
obvious mistake) in order to be amenable to correction. In
discussing a trial court's authority to correct illegal sentences, our
Supreme Court has stated that it is the obviousness of the
illegality, rather than the illegality itself, that triggers the court's
inherent power. The High Court has also cautioned that the
inherent power to correct errors does not extend to
reconsideration of a court's exercise of sentencing discretion. A
court may not vacate a sentencing order merely because it later
considers a sentence too harsh or too lenient. As a matter of
general guidance, our Supreme Court has sanctioned the use of
the inherent authority in cases that involve clear errors in the
imposition of sentences that were incompatible with the record or
black letter law.
This Court[] has addressed the situations where [] the terms of a
defendant’s sentence as stated at the sentencing hearing conflict
(or are deemed incompatible) with the terms of the defendant’s
sentence as stated in [a subsequent written] sentencing order.
In these circumstances, for a trial court to exercise its inherent
authority and enter an order correcting a defendant's written
sentence to conform with the terms of the sentencing hearing, the
trial court's intention to impose a certain sentence must be
obvious on the face of the sentencing transcript. Stated
differently, only when a trial court's intentions are clearly and
unambiguously declared during the sentencing hearing can there
be a clear clerical error on the face of the record, and the
sentencing order subject to later correction.
If, on the other hand, a trial court's stated intentions during the
sentencing hearing are ambiguous, then the terms of the sentence
in the sentencing order control, and the trial court cannot correct
its perceived mistake. This is because the alleged error in the
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sentencing transcript is not a clear clerical error, but rather, is an
ambiguity that must be resolved by reference to the written
sentencing order.
Commonwealth v. Borrin, 12 A.3d 466, 471–473 (Pa. Super. 2011) (en
banc) (internal case citations, quotations, original emphasis, and original
brackets omitted), affirmed, 80 A.3d 1219 (Pa. 2013).
Upon our review of the sentencing hearing, the trial court did not impose
a consecutive term of 12 months of re-entry supervision in open court at the
time of original sentencing. See N.T., 10/25/2022, at 13-16. We noted above
that whenever the trial court imposes an aggregate sentence of incarceration
exceeding four years, reentry supervision is mandated by Section 6137.2. As
such, the subsequent amended order was not entered merely to correct a
clear clerical error. Instead, the trial court added additional terms to
Appellant’s sentence that were not imposed at the original time of sentencing
or the corresponding original written sentencing order. Moreover, there is no
indication on the trial court docket that the trial court held a resentencing
hearing or that Appellant was present in court when the amended sentence
was imposed. See Pa.R.Crim.P. 602 (“The defendant shall be present at every
stage of the trial including the impaneling of the jury and the return of the
verdict, and at the imposition of sentence[.]”). As such, the trial court
entered an illegal sentence. Accordingly, we vacate the amended sentence
and remand for resentencing consistent with this decision. Compare
Commonwealth v. Johnson, 297 A.3d 719 (Pa. Super. 2023) (unpublished
memorandum) (“After the trial court amended its original sentencing order to
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include a consecutive term of mandatory probation, [Johnson] filed a
post-sentence motion in which he argued that the trial court erred because it
did not impose the amended sentence in open court. On March 28, 2022, the
trial court granted Appellant's post-sentence motion, vacated the previous
judgment of sentence, and held a new sentencing hearing.”).
Convictions affirmed. Judgment of sentence vacated. Case remanded
for resentencing consistent with this memorandum. Jurisdiction relinquished.
Date: 10/4/2023
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