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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

:

DEVON JORDON, :

:

Appellant : No. 2386 EDA 2013

Appeal from the Judgment of Sentence August 9, 2013

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0002767-2013

BEFORE: BOWES, WECHT, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 08, 2014

Appellant, Devon Jordon, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas following a waiver

trial and his convictions for burglary, criminal trespass, theft by unlawful 

taking, and receiving stolen property.1 Appellant contends the evidence was 

insufficient to find him guilty based solely upon a single palm print found at 

the scene of the crime. We affirm.

The victim in this case, Carol Butter, did not know Appellant and had 

never seen him before. N.T. Trial, 6/12/13, at 13. At the non-jury trial, she 

testified that when she left the house on October 17, 2012, she left her front 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 3502(a), 3503(a)(1)(i), 3921(a), 3925(a).
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door closed but unlocked. Id. at 12. The facts of this case, as summarized 

by the trial court, are as follows:

On October 17, 2012, at approximately 2 p.m., [Butter] 

arrived at her home . . . with her grandchildren. She 

noticed Appellant [ ] standing in between the storm door 

and the front door of her home. Both doors were open. 

Appellant told Butter that he was just knocking on her door 

to ask if he could use her wifi to access the Internet on his 

cell phone. Appellant asked for permission to sit on her 

porch and use the wifi. Butter hurried inside her home 

with her grandchildren and told Appellant he could use the 

wifi on her porch. Appellant sat on Butter’s bench, near 

the railing of the porch, for approximately twenty minutes 

before leaving.

On October 18, 2012, around 2 a.m., the police 

responded to a 9-1-1 call reporting a possible burglary at 

Butter’s home. Police told Butter, who had slept through 

the incident, that her front window and back door were 

open. Police told Butter that the assailant entered 

the home through the front window. Butter told police 

that her flat screen TV, Wii game system and Wii games, 

Comcast box, computer, kitchen knives, music stand, a 

wallet, DVD’s, small DVD player, and radio were missing. 

Police recovered a large duffle bag and a child’s book bag 

from the street. The large bag which [sic] contained the 

stolen items. Detective Robert Schill checked Butter’s 

home for fingerprints. Detective Schill was able to lift a 

total of seven prints. Prints 1-4 came from the front glass 

window and prints 5-7 came from the computer, DVD 

player, and radio. Appellant’s bottom right palm, print 4, 

was present on the front glass window.

On January 16, 2013, Butter was asked to come to 

North East Detectives station to try to identify the man she 

saw on her porch on October 17, 2012. Butter identified 

Appellant out of a photo array.

Trial Ct. Op., 12/11/13, at 1-2 (emphasis added).

At trial, a friend of Butter’s daughter, Alan Serge, testified that he was 
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sleeping at Butter’s home on the evening of October 17, 2012. N.T. at 34. 

He testified, inter alia, as follows:

[Commonwealth]: . . . Did anything cause you to wake up 

during the early morning hours of October 18th of 2012?

A: Yes, the police woke us all up saying that there was a 

break-in.

* * *

They came in the house and they─actually, the house is 

three stories. They came up to the second story, woke up 

[Butter], and then everybody else, woke us all up. They 

said how many floors is this? We said three floors and 

they said there was a break-in so we all had to come 

downstairs.

* * *

Q: Did you see the mode of entry used by the perpetrator?

A: Yes.

Q: Where was it?

A: It was the first window right after the door.

* * *

Q: When you went to sleep, what was the condition of the 

first floor living room windows [sic] that’s right off the 

porch area?

A: The one didn’t lock. So is that what you’re talking 

about?

Q: Yes.

A: The one window, I put a piece of PVC pipe in there to 

try to lock it.

* * *
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Because [Butter] was nervous about someone being on the 

porch during that day so we locked all the windows but 

that one wouldn’t lock in general.

* * *

Q: . . . When you came down in response to the police 

officers telling you there had been a break-in, did you 

notice the windows, anything different about the windows?

* * *

A: The window was just open. The pipe didn’t work.

* * *

Q: . . . As a result of this incident, did you have anything 

taken, any of your personal belongings?

* * *

A: My wallet.

Id. at 34, 35-36, 38-39 (emphasis added).

The Commonwealth and defense counsel stipulated that if Officer 

Rice,2the first responding officer, were called to testify, she would state as 

follows:

[O]n October 18th of 2012 at approximately 2:02 a.m., 

she responded to the [Butter] property . . . . Response 

was for radio call of a burglary.

She was met by a neighbor. The neighbor is identified 

by name, date of birth, address in [her report]. The 

neighbor called the police after noticing the front window 

to the property was open. Police did knock on the doors 

with negative response.

 

2 Our review of the record did not reveal Officer Rice’s first name.
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. . . [S]he would testify that within 30 minutes of being 

there, this large case was presented to her, that from 

being found outside on the street and it contained the 

aforementioned stolen items, the computer, the computer 

tower and . . . the computer keyboard.

And also the [sic] Officer Rice would testify that during 

this same period, a child’s backpack was recovered outside 

and brought in her presence to [ ] Butter and opened and 

that that also had the radio and speakers to the radio 

which were inside the property when everybody went to 

bed on October 17th of 2012 and now outside the property 

on October 18, 2012.

Nothing else was brought or confiscated or recovered 

outside in this officer’s presence . . . .

Id. at 48-49.

Appellant did not testify, and the sole evidence he presented was 

fingerprint testing results which showed that six fingerprints found were not 

a match to his. Id. at 59.

The trial court found Appellant guilty of one count each of burglary and 

criminal trespass, and two counts each of theft by unlawful taking and 

receiving stolen property. On August 9, 2013, the court imposed a sentence 

of eleven and one-half to twenty-three months’ incarceration, plus five 

years’ reporting probation for burglary. It assessed no further penalty for 

the additional charges. This timely appeal followed.3 Appellant filed a court-

 

3 Appellant did not file a post-sentence motion. However, a sufficiency of 

the evidence claim can be raised for the first time on appeal. 

Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011); 

Pa.R.Crim.P. 606(A)(7).
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ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal4and 

the trial court filed a responsive opinion.

Appellant raises the following issue for our review:

Was not the evidence insufficient to find Appellant guilty 

of burglary and related charges beyond a reasonable doubt 

where the evidence of a single palm print at the scene of 

the crime did not prove that he entered the property with 

the intent to commit a theft, that he stole anything, or that 

he was in possession of stolen property?

Appellant’s Brief at 4. He argues5

[t]he sole evidence linking [him] to the scene of the 

burglary was one palm print recovered from the 

outside glass of a window on the complainant’s 

porch, where Appellant had been given permission to be 

present the previous day. The Commonwealth failed to 

present evidence that Appellant’s palm print, or any 

fingerprints attributable to him, were present inside the 

house or on items from the house found outside after the 

burglary.

Id. at 11 (emphasis added). We find no relief is due.

Our standard of review of a sufficiency of the evidence challenge is to

determine if the Commonwealth established beyond 

a reasonable doubt each of the elements of the 

 

4 We note that the trial court granted Appellant’s request for an extension of 

time within which to file his Rule 1925(b) statement.

5 Although Appellant avers the evidence was insufficient to prove “he 

entered the property with the intent to commit a theft, that he stole 

anything, or that he was in possession of stolen property,” Appellant’s Brief 

at 11, he fails to set forth the definitions of his offenses. The argument 

section of an appellate brief must include “discussion and citation of 

authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). Nevertheless, we 

decline to find waiver.
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offense, considering all the evidence admitted at 

trial, and drawing all reasonable inferences 

therefrom in favor of the Commonwealth as the 

verdict-winner. The trier of fact bears the 

responsibility of assessing the credibility of the 

witnesses and weighing the evidence presented. In 

doing so, the trier of fact is free to believe all, part, 

or none of the evidence.

The Commonwealth may sustain its burden by means of 

wholly circumstantial evidence, and we must evaluate the 

entire trial record and consider all evidence received 

against the defendant.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012) (citation 

omitted), appeal denied, 63 A.3d 1243 (Pa. 2013).

Appellant was convicted under the prior burglary statute:6

(a) Offense defined.─A person is guilty of burglary if 

he enters a building or occupied structure, or separately 

secured or occupied portion thereof, with intent to commit 

a crime therein, unless the premises are at the time open 

to the public or the actor is licensed or privileged to enter.

See 18 Pa.C.S. § 3502(a).

Appellant was also convicted under the following subsection of the 

 

6 We note that after Appellant was convicted, Section 3502(a) was amended, 

effective February 21, 2014, and now provides in pertinent part:

(a) Offense defined.─A person commits the offense of 

burglary if, with the intent to commit a crime therein, the 

person:

(1) 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 . . . .

See 18 Pa.C.S. § 3502(a)(1).
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criminal trespass statute: “A person commits an offense if, knowing that he 

is not licensed or privileged to do so, he . . . enters, gains entry by 

subterfuge or surreptitiously remains in any building or occupied structure or 

separately secured or occupied portion thereof[.]” See 18 Pa.C.S. § 

3503(a)(1)(i). Theft by unlawful taking is defined as follows: “A person is 

guilty of theft if he unlawfully takes, or exercises unlawful control over, 

movable property of another with intent to deprive him thereof.” 18 Pa.C.S. 

§ 3921(a). Finally, receiving stolen property is defined as: “A person is 

guilty of theft if he intentionally receives, retains, or disposes of movable 

property of another knowing that it has been stolen, or believing that it has 

probably been stolen, unless the property is received, retained, or disposed 

with intent to restore it to the owner.” 18 Pa.C.S. § 3925(a).

In Commonwealth v. Hunter, 338 A.2d 623 (Pa. Super. 1975), a 

burglary occurred in an electronics plant. Id. at 624. A piece of sheet metal 

had previously been placed on a broken window in the plant. Id. An 

employee discovered that the sheet metal was removed. Id. The detective 

later concluded that the broken window “was the method used to gain entry 

to the building.” Id. The detective “lifted several fingerprints from the 

premises, including one from the sheet metal,” and “determined that only 

one of the prints was identifiable[;]” a fingerprint from the sheet metal 

matched the defendant. Id.

The defendant argued that the evidence was insufficient to convict him 
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of burglary. Id. at 625. He contended that “it [was] just as reasonable to 

conclude the fingerprint was impressed on the visit ‘a couple of weeks’ prior 

to the burglary on his brief visit seeking employment.” Id. This Court 

disagreed and opined:

[T]he [defendant’s] fingerprint was found at the place of 

illegal entry to the burglarized premises, was not in a 

public place where [the defendant] may have had 

legitimate innocent contact, was not in a readily accessible 

place for legitimate innocent contact, was not on an object 

that was readily movable and in common usage and was 

impressed at or about the time of the crime.

Under these circumstances the Commonwealth’s 

case is more than the fingerprint; it is a chain of 

circumstantial evidence that is more than suspicion or 

conjecture. The evidence is sufficient to sustain the 

[defendant’s] conviction.

Id. at 625 (emphases added), cited with approval in Commonwealth v. 

Pettyjohn, 64 A.3d 1072, 1077 (Pa. Super. 2013); Commonwealth v. 

Donohue, 62 A.3d 1033, 1037 (Pa. Super. 2013), appeal denied, 74 A.3d 

125 (Pa. 2013).

In the case sub judice, the trial court opined:

[T]he fact that Appellant’s prints were not found on the 

stolen items does not mean that the evidence is 

insufficient to convict him of burglary. Appellant was 

discovered on Butter’s porch, standing in between her 

storm door and her front door, with the front door open. 

The following morning, Butter’s home was burglarized and 

police discovered that the burglar entered the home during 

the night when its occupants were sleeping. The point of 

entry was through the front glass window located on the 

porch. Appellant’s bottom right palm print was found on 

the front glass window. The fact that Appellant was on 

Butter’s property the day before the burglary and had 
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opened her door without permission is indicative of intent 

to break into the home and commit a crime therein. 

Appellant’s palm print was found on the same window that 

served as the entry point for the burglar. The fact that 

Appellant’s fingerprints were not found on the stolen items 

does not mean that Appellant did not break into Butter’s 

home.

The credibility and weight of the witnesses’ testimony is 

for the finder of fact to determine. Viewed in the light 

most favorable to the Commonwealth as verdict winner, 

the evidence presented at trial was sufficient to support 

the verdict of guilty of burglary in the first degree . . . .

Trial Ct. Op. at 4-5. We agree.

In the case sub judice the Commonwealth has presented more 

evidence than a mere palm print. See Hunter, 338 A.2d at 625. The 

Commonwealth showed that earlier in the day of the burglary, Appellant was 

on Butter’s porch, between the screen door and front door, both of which 

were open. Butter testified that when she left her house that day, the doors 

were closed, albeit unlocked. Appellant sat on her porch for twenty minutes 

before leaving. Meanwhile, Butter’s porch window did not lock. The police 

determined that the assailant entered through the front window, and 

Appellant’s palm print was found on this window. We do not disturb the 

finding of the trial court, who sat as finder of fact, that the Commonwealth 

established “a chain of circumstantial evidence that is more than suspicion or 

conjecture.” See Hunter, 338 A.2d at 625. We discern no abuse of 

discretion by the trial court. See Brown, 48 A.3d at 430.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/8/2014