J-S96028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

THOMAS BEAL

Appellant No. 899 WDA 2016

Appeal from the Judgment of Sentence May 31, 2016

In the Court of Common Pleas of Fayette County

Criminal Division at No(s): CP-26-CR-0002208-2015

BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.: FILED APRIL 10, 2017

Thomas Beal appeals from the judgment of sentence of forty-six to 

240 months incarceration imposed following his convictions for burglary, 

criminal trespass, and criminal mischief. We affirm. 

We adopt the trial court’s cogent recitation of the facts set forth in its 

Pa.R.A.P. 1925(a) opinion.

Doris Pastorius has been a baker at Pechin Superfoods Market 

(hereinafter “Pechin’s”) for twenty-seven years. On November 

3, 2015, Pastorius, along with two other bakers, Steve Borek 

and Andy Pletcher, were scheduled to start their work shift at 

two o’clock a.m. On that morning, Pastorius and Pletcher 

arrived at Pechin’s around 1:50 a.m. They entered Pechin’s 

through the front door and went to the bakery department.

Approximately forty-five minutes into her shift, Pastorius noticed 

a rope ladder hanging down from the ceiling through a HVAC 

unit. After observing this oddity, Pastorius alerted Borek and 

Stanley Angel, a security guard employed by Pechin’s. Angel 

walked into the market and immediately saw the rope ladder 
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hanging from the ceiling. Angel testified that after he came into 

the market, he went over to the rope ladder and started to hear 

movement above. At that time, a person started to climb down 

the ladder. Pastorius testified that when she looked up, she saw 

two feet. Angel testified that a man with boots, jeans, and a 

grey hooded sweatshirt kicked out the grate from the HVAC unit 

and started to climb down the ladder. The individual then 

suddenly climbed back up the ladder. Immediately following 

that, Pastorius called Don D’Amico, the owner of Pechin’s and 

Angel called the police.

The police arrived on scene a few minutes after the call. 

Troopers Ryan Butka and Shane Reaghard of the Pennsylvania 

State Police approached the back of the building. They climbed 

up on the roof and began their search. They first found an open 

air conditioning unit with a rope ladder hanging down into the 

building. Continuing on with their search, the troopers got to 

the opposite end of the building. Trooper Butka found Appellant 

under an air conditioning unit in an “army crawl” position.

Trooper Butka identified himself as the police, pointed his 

weapon and informed Appellant to come out from underneath 

the unit. When Trooper Butka asked Appellant what he was 

doing up on the roof, Appellant replied he was there sleeping. 

Appellant was then placed in handcuffs and the troopers, along 

with the local fire department, assisted Appellant off of the roof.

Trial Court Opinion, 8/15/16, at 3-4 (citations to transcript omitted). 

We add the following pertinent facts. Mr. D’Amico took two 

photographs while police arrested Appellant, two of which the 

Commonwealth introduced. They depicted authorities assisting Appellant off 

the roof. Appellant’s clothing is plainly visible in the photographs, which 

depict him wearing jeans, gloves, a gray hooded sweatshirt, and brown 

boots. Second, Pechin’s is one of several properties in the Laurel Mall 

complex, with all businesses sharing a common roof. Third, Appellant was 
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located at the far end of the building, approximately 100 to 150 yards from 

the burglar’s point of entry. 

Appellant filed timely post-sentence motions for relief and a notice of 

appeal. The trial court and Appellant complied with the procedural 

requirements of Pa.R.A.P. 1925, and the matter is now ready for our review. 

Appellant presents the following issues. 

I. Whether the evidence was sufficient to support the 

defendant’s conviction of criminal trespass and burglary?

II. Whether the jury verdict was against the weight of the 

evidence?

III. Did the trial court err in admitting the photographs of the 

defendant after he was taken into custody on the roof of 

the Laurel Mall? 

Appellant’s brief at 7. 

Appellant’s first claim concerns the sufficiency of the evidence. 

Whether the evidence was sufficient to support the conviction presents a 

matter of law; our standard of review is de novo and our scope of review is 

plenary. Commonwealth v. Walls, 144 A.3d 926, 931 (Pa.Super. 2016) 

(citation omitted). In conducting our inquiry, we 

examine whether the evidence admitted at trial, and all 

reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, support the 

jury's finding of all the elements of the offense beyond a 

reasonable doubt. The Commonwealth may sustain its burden by 

means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). 
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 The trial court deemed this issue waived and, in the alternative, 

meritless. With respect to waiver, Appellant’s concise statement of matters 

complained of on appeal simply stated that the convictions for criminal 

trespass and burglary were insufficient. Concise Statement, 7/5/16, at 

unnumbered 1. As we stated in Commonwealth v. Garland, 63 A.3d 339, 

344 (Pa.Super. 2013), to preserve a challenge to the sufficiency of the 

evidence on appeal the concise statement “must state with specificity the 

element or elements upon which the appellant alleges that the evidence was 

insufficient.” Id. at 344. Appellant's boilerplate statement failed to do so. 

Therefore, we could find the issue waived.

However, since the claim presents a question of law that the court 

readily apprehended, we shall address it. See Commonwealth v. Laboy, 

936 A.2d 1058 (Pa. 2007) (less strict waiver approach where case was not 

complex and trial court addressed claim). Instantly, Appellant does not 

argue that the Commonwealth failed to establish any particular element of 

the crimes; instead, he posits that the Commonwealth did not prove 

identity. His argument implicates the well-established rule that, while the 

Commonwealth may sustain its burden with wholly circumstantial evidence, 

mere presence at a crime scene alone cannot justify a conviction. In 

support, Appellant points to the absence of any tools, instruments, or 

fingerprints, and highlights that the roof in question encompassed several 

separate businesses. 
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Numerous cases have addressed the sufficiency of evidence when a 

burglar enters a building through a roof or other means not readily 

accessible to the public. Cases where there is strong circumstantial evidence 

of guilt pose little difficulty. See Commonwealth v. Viall, 420 A.2d 710 

(Pa.Super. 1980) (after hearing footsteps on roof of burglarized building, 

officer observed appellant climbing down from roof). 

Less direct evidence of concealment or flight has also been deemed 

relevant in establishing more than mere presence. In Commonwealth v. 

Jones, 444 A.2d 729 (Pa.Super. 1982), police responded to a laundromat 

for a reported burglary in progress. When Officer Thomas Christy arrived, a 

number of police officers were already on scene. Officer Christy climbed to 

the roof of a nearby building and observed several individuals running, 

including Jones, who refused an order to stop. Shortly thereafter, Jones was 

found in an alleyway with no incriminating items on his person. Id. at 731. 

We held that the evidence was sufficient to convict:

The evidence in the instant case, although circumstantial, was 

sufficient to sustain the convictions. Shortly after midnight, 

appellant was seen running across the roof of a building adjacent 

to a laundromat to which access had been gained through the 

roof. He was taken into custody by police while attempting to 

conceal himself in the doorway opening onto a neighboring alley. 

Inside the premises an attempt had been made to remove 

money from coin-operated laundry machines. These 

circumstances had greater probative value than mere presence 

at the scene of a crime. They were sufficient to enable a jury to 

infer that entry had been effected to commit the crime of theft 

and that appellant was a participant. Moreover, an attempt to 
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flee or conceal oneself from the police is an additional 

circumstance from which guilt can be inferred. 

Id. at 731–32. Hence, while Jones was not directly observed running from 

the burglarized building in response to the police investigation, the 

circumstantial evidence sufficed to affirm the convictions. 

At the other end of the spectrum is Commonwealth v. Weaver, 455 

A.2d 1199 (Pa.Super. 1982). Therein, an officer responded to a reported 

burglary at a jewelry store and observed two males inside. Id. at 1200-01. 

Since all entrances were secured, officers checked the roof and discovered a 

hole. The two perpetrators, both white juveniles, were quickly apprehended 

and both possessed merchandise from the store. Weaver, a twenty-sevenyear-old black male, was found by police on the roof of another 

establishment two buildings away from the jewelry store. This building was 

easily accessible from the jewelry store as the buildings were separated by 

two-foot high partitions. Weaver was located approximately fifty feet from 

the hole in the roof, in a fetal position, with no merchandise or incriminating 

tools. Id. at 1201. He was convicted of, inter alia, burglary and conspiracy. 

We discharged all convictions on sufficiency grounds. 

While the discovery by police of a man just two buildings away 

from the site of a breaking and entering at 12:20 a.m. may 

conjure up the highest degree of suspicion as to his involvement 

in the criminal incident, without more, this Court is precluded 

from connecting appellant with the burglary of the nearby 

jewelry store unless the connection or association of appellant 

with those apprehended is established beyond a reasonable 

doubt insofar as the crime is concerned.
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Id. at 1201. The majority opinion in Weaver did not discuss Jones, but did 

note that Weaver made no attempt to flee. 

Returning to the present circumstances, the facts are superficially 

similar to Weaver as both cases involve men who were located a short 

distance from the means of access on the common roof of a building. Like 

the appellant in Weaver, no one observed Appellant concealing himself or 

fleeing the scene, nor did anyone see the burglar’s face. However, we find 

that sufficient additional facts link Appellant to the burglary. Most 

significantly, Appellant’s clothing matched the description of the man Mr. 

Angel observed descending the steps. Mr. Angel testified that upon seeing 

legs, he “used some words I shouldn’t have, but I said come on down . . . I 

saw boots, I saw jeans, I saw gray hoodie, and then all of a sudden, going 

back up the ladder.” N.T., 5/2-3/16, at 62-63. Appellant suggested on 

cross-examination that Mr. Angel’s description was tainted by his later 

observation of Appellant being escorted from the roof. Id. at 69. Mr. Angel 

disagreed. Id. While Appellant maintains that this testimony is not 

believable as a matter of weight, see infra, the jury was free to credit or 

discredit the testimony. 

Moreover, Weaver is further distinguishable in that the case stressed 

a lack of Weaver’s connection to the crime as a matter of accomplice 

liability. The Commonwealth had failed to establish a “connection or 

association . . . with those apprehended[.]” Id. at 1201 (emphasis 
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added). Herein, all eyewitnesses to this crime described one suspect and no 

one else was in the immediate vicinity. While Appellant informed the 

arresting officer that he had been sleeping on the roof, the jury was entitled 

to credit or discredit this explanation. See Commonwealth v. Scott, 146 

A.3d 775 (Pa.Super. 2016) (appellant claimed mere presence near a 

burglarized building; offered alternative explanation for presence of his DNA 

on discarded cigarette). Appellant’s explanation that he was on the roof to 

sleep was rejected by the jury. Drawing all reasonable inferences in favor of 

the Commonwealth, as we must, these additional facts establish that 

Appellant’s conviction was not based on mere presence. 

Appellant’s second claim attacks the weight of the evidence. This 

issue was raised in a post-sentence motion and preserved for review. 

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012). Our 

standard of review is well-settled. We review the exercise of the trial court's 

discretion in ruling on the weight claim, not the underlying question of 

whether the verdict is against the weight of the evidence. Commonwealth 

v. Leatherby, 116 A.3d 73, 82 (Pa.Super. 2015) (citing Commonwealth v. 

Brown, 23 A.3d 544, 558 (Pa.Super. 2011)). “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.” Id. at 82. 
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To overcome this heavy burden, Appellant highlights that Mr. Angel’s 

testimony contradicted Ms. Pastorius’s testimony. Specifically, Appellant 

notes that she saw only the burglar’s feet, while Mr. Angel stated he 

observed the burglar’s entire body except for his head. In addressing this 

claim, the trial court acknowledged that the testimony was inconsistent1 but 

found that the verdict did not shock its sense of justice. We have no license 

to override that determination. “Of equal importance is the precept that, 

‘The finder of fact . . . exclusively weighs the evidence, assesses the 

credibility of witnesses, and may choose to believe all, part, or none of the 

evidence.’” Commonwealth v. Konias, 136 A.3d 1014, 1023 (Pa.Super. 

2016) (quoting Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011)). 

Appellant’s third issue faults the trial court for permitting the 

admission of two photographs taken by Mr. D’Amico. We employ an abuse 

of discretion standard in reviewing the admission of photographs. 

Commonwealth v. Haney, 131 A.3d 24, 37 (Pa. 2015). A trial court 

applies a two-part test to determine if the photograph is inflammatory, and, 

if so, whether the photograph has essential evidentiary value. See 

Commonwealth v. Funk, 29 A.3d 28, 33 (Pa.Super. 2011) (en banc). The 

usual context for this analysis is photographs of crime scenes, autopsies, or 

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1

 We note that Ms. Pastorius testified that once she saw two feet she “got 

scared and . . . moved away because Stan [Angel] and Steve [Borek] were 

standing there.” N.T., 5/2-3/16, at 18-19. 
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other representations of the aftermath of violent crimes. “This Court has 

interpreted inflammatory to mean the photo is so gruesome it would tend to 

cloud the jury's objective assessment of the guilt or innocence of the 

defendant.” Id. (citation omitted). 

We are not presented with an inflammatory photograph in that sense. 

Instead, Appellant maintains that the photograph is prejudicial, which 

implicates the familiar principle that “any evidence, including demonstrative 

. . . involves a weighing of the probative value versus prejudicial effect. We 

have held that the trial court must decide first if the evidence is relevant 

and, if so, whether its probative value outweighs its prejudicial effect.” 

Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006).

Applying this test, Appellant does not claim that the photos were 

irrelevant. Rather, he maintains that their introduction prejudiced him 

insofar as they necessarily conveyed guilt. “Appellant’s hands are behind his 

back, likely handcuffed, and the trooper is holding Appellant’s upper right 

arm. Permitting the jury to see these images removed Appellant’s garb of 

innocence.” Appellant’s brief at 15-16. 

It is well-settled “that a fair trial, without prejudice, requires 

defendants to appear free from shackles or other physical restraints.” 

Commonwealth v. Pezzeca, 749 A.2d 968, 970 (Pa.Super. 2000). See 

Deck v. Missouri, 544 U.S. 622, 630 (2005) (identifying reasons for 

presumptively barring physical restraints at trial). Appellant assumes that 
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these principles apply equally to depictions of a defendant outside the 

courtroom.2 Assuming arguendo that Appellant is correct, we find that the 

photographs do not clearly show any form of restraint. Having 

independently reviewed the photographs, we agree with the trial court that 

the first photograph, which shows the trooper walking Appellant to the fire 

truck ladder, merely suggests that Appellant’s hands are restrained since his 

hands are behind his back. Additionally, the second photograph, which 

shows Appellant’s left arm grasping the fire truck’s ladder, clearly shows his 

left arm and wrist unencumbered by any restraint. Appellant was not shown 

in handcuffs and we therefore agree with the trial court that the prejudicial 

effect of these photographs is non-existent. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2017

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2

 There is reason to doubt this proposition. See Holbrook v. Flynn, 475 

U.S. 560, 567 (1986) (“[J]urors are quite aware that the defendant 

appearing before them did not arrive there by choice or happenstance[.]”).