J-S15011-15

2015 PA Super 66

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KEVIN ADOLFO JACQUEZ

Appellant No. 1231 MDA 2014

Appeal from the Judgment of Sentence June 19, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0003170-2013

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

OPINION BY LAZARUS, J.: FILED APRIL 06, 2015

Kevin Adolfo Jacquez appeals from the judgment of sentence imposed 

by the Court of Common Pleas of Berks County following his conviction for 

conspiracy to commit burglary,1theft by unlawful taking (M3),2conspiracy to 

commit theft by unlawful taking,3and receiving stolen property.4 After 

careful review, we affirm.

The trial court summarized the facts of this case as follows:

____________________________________________

1 18 Pa.C.S. §§ 903(a)(1), 3502(a)(2).

2 18 Pa.C.S. § 3921(a).

3 18 Pa.C.S. §§ 903(a)(1), 3921(a).

4 18 Pa.C.S. § 3925(a).
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On the morning of April 4, 2013, Antonio Fernandez arrived at 

the store he owns and manages, La Esquina Famosa at 1300 

North 10th Street in the City of Reading, and discovered its 

contents strewn across the floor. Fernandez had closed the 

store around 10:30 p.m. the previous night, and the door was 

still locked the next morning. He noticed that one of the ceiling 

panels had been moved, and that the items on a shelf 

underneath the panel were positioned, “as if somebody had 

stepped on there.” Fernandez investigated the ceiling panel and 

noticed a large hole leading to the upstairs apartment. 

Fernandez also recognized that numerous items were missing, 

including a bank envelope, cigars, cigar wrappers, cigarettes, a 

water jug filled with change, and other store merchandise.

Fernandez called the police, and at approximately 7:50 a.m., 

Officer James Yeasted arrived and spoke with Fernandez. 

Yeasted saw [Jacquez] standing outside the store; [Jacquez], 

holding two black garbage bags, was next to a nearby door 

landing to stairs to an apartment. Yeasted learned that 

[Jacquez] lived in an apartment above the store with his 

girlfriend, who was the only individual who had keys. [Jacquez] 

stated that they had been moving out of the apartment the night 

before, and that he had returned that morning to move 

additional items.

[Jacquez] granted them permission to look around inside. In the 

corner of the main room, Yeasted observed an empty water jug 

identical to the one missing from the store. Inside the kitchen 

stove, there was a black backpack containing Fernandez’s 

laptop, loose change, and some other items. Inside a closet, the 

carpet was lifted up and a tile underneath was broken. Beneath 

the tile, the loose floorboards could be removed, and you could 

see down into the store below. The resulting hole was 

approximately two feet by one-and-a-half feet.

Fernandez also came up to the apartment, and he identified 

multiple items that were sold in his store. Fernandez recognized 

[Jacquez] because he came into the store almost daily, where he 

would buy cigars and random food items. [Jacquez’s] girlfriend 

would come into the store to purchase cigarettes. Outside on 

the sidewalk, Fernandez found a bag containing cigar wrappers 

and store-related paperwork that had been taken. The bag also 

contained construction materials, evidently from the hole put in 

the floor between the store and apartment.
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Criminal Investigator Joseph Snell joined the investigation of the 

apartment later that morning. He testified as to a strange 

conversation with [Jacquez] regarding some of the purported 

evidence:

Q: Did you speak to him while the search was being 

conducted, before or after?

A: While the search was being conducted I asked 

him, I said are those your bags? Did you guys use these 

bags to pack? Because he told me they were moving out 

the night before. And the girlfriend of his also stated that 

they left around like 11:30 was the last run and the place 

was locked up.

I pointed out the bags, is this any of the items that you 

guys were using to pack. No. The water jug. I asked 

[Jacquez] is that your water jug? He’s like no. I was here 

early. I got here in the morning. I had to move it, too, 

because I wanted to see if the store was open, he told me.

Q: He moved the water jug to see if the store was 

open?

A: Yes.

. . .

Q: How about the items in the kitchen . . .?

A: Okay. I questioned [Jacquez] about this. I asked 

him if those were his, if he noticed those items. He said 

they weren’t his items. I asked him if he touched any of 

the items. He stated that he took a drink out of the Sprite.

Q: The green item on the right-hand side?

A: Yes, but he had no explanation why those items 

were in there.

[Jacquez] was also unable to explain bags recovered within 

the apartment that contained other items stolen from the store.

Jacquez indicated that Philip Nieves had been one of several 

people to help them move out of the apartment the previous 

evening. Subsequent forensic testing revealed fingerprints 

belonging to both [Jacquez] and Nieves on several items that 

had been stolen from the store. 
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Trial Court Opinion, 9/29/14, at 2-4.

On June 19, 2014, after a two-day trial, a jury convicted Jacquez of 

the above-referenced offenses. The same day, the court sentenced Jacquez 

to 18 to 120 months’ incarceration for conspiracy to commit burglary, 

followed by 6 to 12 months’ incarceration for theft by unlawful taking (M3).5

Jacquez filed a post-sentence motion on June 25, 2014, which the trial 

court denied the following day. This timely appeal followed, in which 

Jacquez raises the following issues for our review:

1. Whether the trial court erred in sentencing Jacquez on both 

conspiracy to commit burglary and theft by unlawful taking 

when a person convicted of burglary and theft by unlawful 

taking could not be so sentenced pursuant to 18 Pa.C.S. § 

3502(d), rendering the sentence imposed illegal.

2. Whether the evidence presented at trial was sufficient to 

establish the charges of conspiracy to commit burglary and 

theft by unlawful taking as mere access to the point of entry 

and/or knowledge of the crime is insufficient to establish the 

charges?

Brief of Appellant, at 6.

Jacquez asserts that his sentence is illegal and unconstitutional. 

Accordingly, our scope of review is plenary, and our standard of review is de 

novo. See Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. Super. 

2009) (challenge to legality of sentence); and Commonwealth v. Bullock, 

913 A.2d 207, 212 (Pa. 2006) (challenge to constitutionality of statute).

____________________________________________

5 The court was in possession of a pre-sentence investigation report at the 

time of sentencing.
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Jacquez’s argument focuses on section 3502 of the Crimes Code, 

which provides, in relevant part:

§ 3502 Burglary

*****

(d) Multiple convictions. – A person may not be sentenced 

both for burglary and for the offense which it was his intent to 

commit after the burglarious entry or for an attempt to commit 

that offense, unless the additional offense constitutes a felony of 

the first or second degree.

18 Pa.C.S. § 3502(d).

As section 3502(d) makes clear, a person who commits burglary and 

theft by unlawful taking (M3) after the burglarious entry, may not be 

sentenced for both offenses. However, in the instant matter, Jacquez was 

found guilty of conspiracy to commit burglary and theft by unlawful taking 

(M3). Because the trial court determined that a conviction for conspiracy to 

commit burglary did not implicate the prohibition against multiple 

convictions under section 3502(d), it imposed separate sentences for each 

offense.

Jacquez asserts that the failure to include a conspirator to burglary in 

the sentencing exemption of section 3052(d) constitutes a violation of equal 

protection under the 14th Amendment to the United States Constitution.6 

____________________________________________

6 Because Jacquez has failed to engage in an analysis of the four factors 

required by Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), we 

are precluded from considering whether the statute violates the equal 

protection clause of the Pennsylvania Constitution. 
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“The essence of the constitutional principle of equal protection under 

the law is that like persons in like circumstances will be treated similarly. 

However, it does not require that all persons under all circumstances enjoy 

identical protection under the law.” Commonwealth v. Shawver, 18 A.3d 

1190, 1194 (Pa. Super. 2011) (citation omitted).

Jacquez cites School Districts of Deer Lakes and Allegheny v. 

Kane, 345 A.2d 658 (Pa. 1975), for the proposition that a party attacking 

the constitutional validity of a statute shoulders a heavy burden of proof, as 

legislative enactments are presumed constitutionally valid. Citing 

Eisenstadt v. Baird, 405 U.S. 438 (1972), he also recognizes that he must 

show that no rational basis existed to exempt conspirators from section 

3502(d).

Despite this recognition, Jacquez fails to explain why it is irrational to 

treat conspirators and burglars differently for purposes of sentencing. 

Rather, he simply concludes, “no rational basis exists to exclude the 

conspirator to burglary from the sentencing exemption of [section] 3502(d).” 

Appellant’s Brief, at 16.

“The crime of conspiracy . . . is separate and distinct from the 

underlying substantive crime.” Commonwealth v. Ritter, 615 A.2d 442, 

444 (Pa. Super. 1992). Furthermore, the crime of conspiracy does not 

merge with the substantive offense that is the subject of the conspiracy. 

Commonwealth v. Miller, 364 A.2d 886, 888 (Pa. 1976). In light of these 

well-settled principles, of which the General Assembly was surely aware, its 
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decision not to extend to conspirators the same lenity that it extended to 

burglars, and those who attempt to commit burglary, through section 

3502(d) appears to reflect legislative intent. Even if this were not the case, 

“a court cannot supply an apparent omission in a statute even though it 

appears that the omission resulted from the [L]egislature’s mere 

inadvertence or failure to foresee or contemplate a case in question.” 

Palmosina v. Laidlaw Transit Co., Inc., 664 A.2d 1038, 1039 (Pa. Super. 

1995) (citation omitted).

“A legislative enactment is presumed to be constitutional and will not 

be declared unconstitutional unless it clearly, palpably and plainly violates 

the Constitution.” Commonwealth v. Mockaitis, 834 A.2d 488, 497 (Pa. 

2003). Because Jacquez has not met the burden of establishing that 

imposing different sentences on defendants who commit conspiracy to 

commit burglary and those who commit burglary offends the Constitution, 

he is not entitled to relief on this claim.

Jacquez next argues that there was insufficient evidence to support his 

convictions for conspiracy to commit burglary and theft by unlawful taking.

Where an appellant challenges the sufficiency of the evidence, this 

Court “must determine whether the evidence and all reasonable inferences 

deducible therefrom, when viewed in the light most favorable to the verdictwinner . . . are sufficient to establish all elements of the crime charged 

beyond a reasonable doubt.” Commonwealth v. Rakowski, 987 A.2d 

1215, 1217 (Pa. Super. 2010) (quoting Commonwealth v. Parker, 957 
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A.2d 311, 317 (Pa. Super. 2008) (citations omitted)). Further, “the 

Commonwealth may sustain its burden of proving every element of the 

crime beyond a reasonable doubt by means of wholly circumstantial 

evidence.” Commonwealth v. Abed, 989 A.2d 23, 26 (Pa. Super. 2010) 

(citations omitted). “Finally, the trier 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.” Id. at 26-27.

“A person is guilty of conspiracy with another person . . . to commit a 

crime if with the intent of promoting or facilitating its commission, he agrees 

with such other person . . . that they . . . will engage in conduct which 

constitutes such crime.” 18 Pa.C.S. § 903(a)(1). Here, the Commonwealth 

charged Jacquez with conspiring to commit burglary, defined in relevant part 

as entering, with intent to commit a crime, “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 no person is 

present.” 18 Pa.C.S. § 3502(a)(2).7

The evidence established that Fernandez arrived at his store on the 

morning of April 4, 2013, and discovered merchandise strewn on the floor. 

He noticed that a ceiling tile had been moved and, upon further inspection, 

discovered a hole in the ceiling opening directly into Jacquez’s apartment. 

____________________________________________

7

In his brief, Jacquez does not discuss theft by unlawful taking or conspiracy 

to commit theft by unlawful taking. 
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Fernandez called police, who saw Jacquez coming down from the upstairs 

apartment carrying two black trash bags. Jacquez told officers that he had 

moved out of the apartment the day before and came back to retrieve the 

rest of his belongings. He stated that several people helped him move, 

including Nieves. 

Jacquez allowed police into the apartment where they found several 

items from the ground-level store including a water cooler jug that had 

previously been half-filled with coins and a laptop computer. 

At some point, Fernandez saw Jacquez discard a black trash bag into 

the dumpster. When police retrieved the bag, they found a bank deposit 

bag from the store, bills addressed to the store, cigar wrappers and 

construction tools. Further investigation revealed Jacquez’s fingerprints and 

Nieves’ palm print on the items.

“Circumstantial evidence may provide proof of [a] conspiracy. The 

conduct of the parties and the circumstances surrounding such conduct may 

create a web of evidence linking the accused to the alleged conspiracy 

beyond a reasonable doubt.” Commonwealth v. Bricker, 882 A.2d 1008, 

1017 (Pa. Super. 2005). The evidence cited above was sufficient, if 

believed, to establish that Jacquez conspired to commit a burglary at La 

Esquina Famosa.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/6/2015