J-S47023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellee

v.

JOSEPH WEST

Appellant No. 2498 EDA 2015

Appeal from the Judgment of Sentence July 13, 2015

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0006619-2013

BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.: FILED DECEMBER 01, 2017

Joseph West appeals from the July 13, 2015 judgment of sentence 

entered in the Montgomery County Court of Common Pleas following his 

convictions for criminal attempt to commit burglary, conspiracy to commit 

burglary, and conspiracy to commit criminal trespass.1 We affirm.

The opinion of the Honorable Thomas P. Rogers summarized the 

relevant factual and procedural history of this matter as follows:

On Tuesday, March 19, 2013, Dr. Roger Tsai and his wife 

were relaxing downstairs in their two-story home on 

Gwynedd Lea Drive in the North Wales section of 

Montgomery Township, Montgomery County, between 1:00 

and 1:30 p.m. when they heard the doorbell ring and a 

knock at their front door. (Notes of Testimony (“N.T.”) Trial, 

4/8/15, at 29-31; Commonwealth Exhibit C-1 Photograph of 

Tsai two-story home). Believing that it was probably a 

____________________________________________

1 18 Pa.C.S. §§ 901(a), 903(a)(1), and 903(a)(1), respectively.
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delivery from a carrier who would leave a package outside, 

they ignored the doorbell. (Id. at 31). Dr. Tsai was not 

expecting anyone at his home at that time. (Id. at 32). 

When the doorbell ringing and knocking persisted, and 

thinking it was unusual, Dr. Tsai went upstairs to look 

outside a window over the front entrance to see who was at 

their door. (Id.). Once there, Dr. Tsai saw two (2) African–

American males that he did not recognize and had not seen 

before wearing dark sweatshirts at his front door entrance. 

(Id. at 32-33).

Following a minute or two of knocking and ringing of the 

doorbell without getting a response, Dr. Tsai observed the 

two men walk away from his front door and over to a van 

parked across the street. (Id. at 33-34). Dr. Tsai watched 

as the two men got into the van. Because of what had just 

occurred, Dr. Tsai retrieved his camera with a zoom lens and 

photographed the vehicle with its license plate (JFE 9210) 

before it drove away. (Id. at 34-35; Commonwealth Exhibit 

C-2 Photograph of vehicle).

After the van pulled away, it drove around the block, 

passed by the Tsai home and parked a few houses down on 

the street. (Id.). Dr. Tsai watched as three (3) men got 

out of the van, crossed the street and walked toward his 

house. (Id. at 35). Dr. Tsai took photographs of one of the 

men as he approached the Tsai home. (Id. at 35-36; 

Commonwealth Exhibit C-2). As the men got closer to his 

home, Dr. Tsai dialed 911. (Id. at 36). While Dr. Tsai was 

on the phone with the police, he lost sight of the men as 

they got very close to the front of his house. At this point 

he heard a loud banging noise coming from the front of his 

house. (Id. at 36-37). He looked down to the first floor 

living room and noticed an open window. (Id. at 37; N.T. 

Sentencing Hearing, 7/13/15, at 18). Since it was the 

middle of March and cold outside, he knew that neither he 

nor his wife had opened that window. (N.T. Trial 4/8/15 at 

37-38). Dr. Tsai started yelling so that the men could hear 

him. (Id. at 37). Looking out the second floor window 

again, he saw the three men walking away from his house

and he took another photograph. (Id. at 37-38; 

Commonwealth Exhibit C-2 Photograph of three men 

walking away from the Tsai home).
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Montgomery Township Police Department responded to 

the call at 1:47 p.m. and investigated the open window on 

the front of the Tsai home. (N.T. Trial 4/8/15, at 40; 

Affidavit of Probable Cause sworn on 8/6/13). Dr. Tsai 

noticed pry marks on the window that had just been 

installed as new a few months before, indicating an 

attempted forced entry. (Id. at 38, 39). In addition, Dr. 

Tsai noticed that the window lock had been broken. (Id. at 

39-40).

Montgomery Township Police Department broadcasted a 

description of the suspects and their vehicle to area police 

departments. (N.T. Sentencing at 18-19). At approximately 

2:00 p.m. on March 19, 2013, a gold Dodge Caravan with 

license plate number JFE 9210 was reported stolen to the 

Philadelphia Police Department. (N.T. Sentencing at 19;

Affidavit of Probable Cause). Cheltenham Township Police 

Department located the same gold Dodge Caravan shortly 

after 2:00 p.m. that day in an Aldi parking lot. (N.T. Trial 

4/8/15, at 46). After securing a search warrant, a search of 

the Caravan by Montgomery Township Police Department 

netted several items, including two (2) crowbars, a

screwdriver, two (2) sweatshirts, one (1) black leather Nike 

glove and two (2) black knit gloves. (Id. at 47-51; N.T. 

Habeas Corpus Hearing 1/8/14, Commonwealth Exhibit C-5 

Receipt/Inventory). DNA testing from these items resulted 

in no interpretable results. (N.T. Trial 4/8/15, at 46).

Fingerprint testing resulted in a match for only one person, 

not [West]. (Id.).

After showing the photographs taken by Dr. Tsai on 

March 19, 2013, to other law enforcement officers, police 

were eventually able to identify [West] as one of the men in 

those photographs. (Id.; N.T. Sentencing at 19). 

Montgomery Township Police Department filed a criminal 

complaint with an affidavit of probable cause and arrested

[West] on August 15, 2013. [West] filed a petition for writ 

of habeas corpus and, after a hearing on January 8, 2014, 

the court found that the Commonwealth had met its burden 

of establishing a prima facie case. (N.T. Habeas Corpus

Hearing 1/8/14 at 37). [West] proceeded to trial. On April 

6, 2015, the Commonwealth filed a motion in limine to 

introduce [West]’s police booking photographs at trial to 

help prove that [West] was the person shown in Dr. Tsai’s 

photographs approaching the Tsai home on March 19, 2013. 
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(Commonwealth’s Motion in Limine filed April 6, 2015). On 

the morning of the first day of trial, counsel reached an 

agreement that resulted in the Commonwealth taking 

photographs of [West] that day in the courtroom outside the 

presence of the jury instead of using the police booking 

photographs. (N.T. Trial 4/8/15, at 3-4).

The Commonwealth presented the testimony of Dr. Tsai 

regarding the events of March 19, 2013, at his home and 

what Dr. Tsai personally heard, observed and 

photographed. (Id. at 29-39; Commonwealth Exhibits C-1, 

2). [West] had the opportunity to test that evidence on

cross examination. (Id. at 39-44). The Commonwealth then 

presented the testimony of Montgomery Township Police 

Officer Daniel Rose. Officer Rose testified about his 

execution of a search warrant on the gold Dodge Caravan 

and the items he recovered therein. (Id. at 47-52). [West]

again tested the Commonwealth’s evidence on cross 

examination. (Id. at 52-55). At the close of testimony, the 

Commonwealth introduced photographs by agreement that 

fairly and accurately showed what [West] looked like in the 

courtroom on that day. (N.T. Trial 4/8/15, at 57-58; 

Commonwealth Exhibit C-7).

In his opening statement and at the close of trial, 

Defense Counsel pointed to the lack of DNA, fingerprint and 

cell phone evidence as well as Dr. Tsai’s failure on the 

witness stand to identify [West] as the person in the 

photograph that Dr. Tsai took, in support of Counsel’s 

argument that the Commonwealth had not proven its case 

beyond a reasonable doubt. (N.T. Trial Opening Statements 

and Closing Arguments 4/8/15 and 4/9/15 at 8-9, 10-15). 

Counsel conceded that there were similarities between the 

individual in the photograph taken on March 19, 2013, and

[West], but argued that the photographs were insufficient 

evidence without anything else to put him at the Tsai home 

or in the stolen van. (Id. at 14-15).

For his closing argument, Assistant District Attorney 

Benjamin McKenna presented a detailed, comparative 

analysis of the photographs taken of [West] in the 

courtroom with the photographs taken by Dr. Tsai on March 

19, 2013. (Id. at 22-25). He explained that even if Dr. Tsai

had identified [West] from the witness stand, the jury 

members would still have to weigh the evidence and come 
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to their own conclusion regarding the photograph taken on 

March 19, 2013. (Id. at 20-21). Using blow-ups of two of 

the photographs in evidence, ADA McKenna specifically 

pointed to the marked similarities between the two, 

including: the hairline, chinstrap beard, hair (including 

sparse spots, waves and curls), nose, lips, chin, ear, 

mustache, forehead, mark on the forehead and eyebrow. 

(Id. at 22-25; N.T. Trial 4/9/15 at 38-39).

As noted above, the jury found [West] guilty on one 

count of criminal attempt and two counts of criminal 

conspiracy. The court granted the Commonwealth’s motion 

to nol[le] pros count 4 criminal mischief and count 5 

possession of an instrument of crime. On June 5, 2015,

[West] mailed a pro se Petition for Judgement [sic] of 

Acquital [sic], which the Clerk of Courts docketed on June 

9, 2015. This court denied the petition on June 23, 2015. 

The undersigned imposed [West]’s sentence on Monday, 

July 13, 2015. (N.T. Sentencing Hearing 7/13/15, at 23-

24). [West] did not file any post-sentence motions. Instead,

[West] sent a pro se Petition for Post-Conviction Collateral 

Relief dated July 14, 2015, which the Clerk of Courts 

docketed on July 22, 2015. On July 15, 2015, [West] mailed 

a pro se notice of appeal, which the Clerk of Courts docketed 

on August 17, 2015.

The undersigned appointed the Montgomery County 

Public Defender’s Office to represent [West] and directed 

[West] to file a Concise Statement of the Matters 

Complained of on Appeal, pursuant to Pa.R.A.P. 1925(b) 

(“Statement”) by order dated August 20, 2015. The court 

granted [West]’s two requests (September 18, 2015 and

December 1, 2015) for extensions to file his Statement. On 

September 4, 2015, this court also granted [West]’s request 

to withdraw his pro se PCRA petition without prejudice 

pending his direct appeal. [West] subsequently filed his 

Statement on December 31, 2015.

Opinion, 12/29/16, at 2-8 (“1925(a) Op.”).

West raises the following issues on appeal:

I. Was the evidence insufficient to prove [West]’s guilt 

beyond a reasonable doubt, where the evidence was 

insufficient to identify [West] as the perpetrator of the 

charged offenses?
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II. Was the evidence insufficient to establish each element 

of the crimes of attempt burglary and conspiracy to commit 

burglary beyond a reasonable doubt where, at most, the 

evidence and reasonable inferences only established the 

crime of criminal trespass?

West’s Br. at 4 (answers below omitted).

Our standard of review for a claim challenging sufficiency of the 

evidence is well-settled:

We must determine whether the evidence admitted at 

trial, and all reasonable inferences drawn therefrom, when 

viewed in a light most favorable to the Commonwealth as 

verdict winner, support the conviction beyond a reasonable 

doubt. Where there is sufficient evidence to enable the trier 

of fact to find every element of the crime has been 

established beyond a reasonable doubt, the sufficiency of 

the evidence claim must fail.

The evidence established at trial need not preclude every 

possibility of innocence and the fact-finder is free to believe 

all, part, or none of the evidence presented. It is not within 

the province of this Court to re-weigh the evidence and 

substitute our judgment for that of the fact-finder. The 

Commonwealth’s burden may be met by wholly 

circumstantial evidence and any doubt about the 

defendant’s guilt is to be resolved by the fact[-]finder unless 

the evidence is so weak and inconclusive that, as a matter 

of law, no probability of fact can be drawn from the 

combined circumstances.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016) 

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super. 2012)).

West first claims that the evidence was insufficient to identify him as the 

perpetrator of the crimes committed. “[E]vidence of identification need not 

be positive and certain to sustain a conviction.” Commonwealth v. Orr, 38 

A.3d 868, 874 (Pa.Super. 2011) (quoting Commonwealth v. Jones, 954 
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A.2d 1194, 1197 (Pa.Super. 2008)). “[A]ny indefiniteness and uncertainty in 

. . . identification testimony goes to its weight.” Id. (quoting Commonwealth 

v. Minnis, 458 A.2d 231, 233 (Pa.Super. 1983)). Accordingly, “[t]he weight 

to be given to identification testimony is for the trier of fact.” 

Commonwealth v. Whitman, 380 A.2d 1284, 1289 (Pa.Super. 1977).

At trial, the Commonwealth admitted photographs taken by Dr. Tsai on 

the day of the incident into evidence. N.T., 4/8/16, at 34. Dr. Tsai described 

one photograph as “a picture of the one of the man [sic] that approached my 

house” and another photograph as “the same person, a little bit close up, 

different shot.” Id. at 35-36. The Commonwealth also admitted, without 

objection, another photograph that the parties stipulated “fairly and 

accurately shows what [West] looks like today in court.” Id. at 57. Viewing 

the evidence in the light most favorable to the Commonwealth as the verdict 

winner, we conclude that there was sufficient evidence to support the 

identification of West as the perpetrator of the crimes. Any indefiniteness and 

uncertainty regarding the photographic evidence admitted goes to its weight, 

which is a question for the jury as fact-finder.2

West next challenges the sufficiency of the evidence supporting his 

convictions for attempted burglary and conspiracy to commit burglary. 

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2 West does not challenge the weight of the evidence on appeal.
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Specifically, West contends that there was no evidence that any of the 

intruders intended to commit a crime inside the home.

“At both common law and statutory law, the crime of burglary or 

attempted burglary encompasses the element of intent to commit a felony or 

any qualified crime within the burglarized premises.” Commonwealth v. 

Wilamowski, 633 A.2d 141, 142 (Pa. 1993). “[I]ntent . . . can be inferred 

from the circumstantial evidence surrounding the incident.” Id. We have 

discussed the elements of criminal conspiracy as follows:

A conviction for criminal conspiracy, 18 Pa.C.S.[] § 903, 

is sustained where the Commonwealth establishes that the 

defendant entered an agreement to commit or aid in an 

unlawful act with another person or persons with a shared 

criminal intent and an overt act was done in furtherance of 

the conspiracy. 

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002).

The trial court found that:

Instantly, the Commonwealth presented evidence that 

two men Dr. Tsai did not know and did not invite to his home 

came to his front door on March 19, 2013, rang the doorbell 

and knocked several times before walking away, having 

received no response. One logical inference is that those 

two men were casing the home. The two men got into a 

Dodge Caravan, which then drove around the block and 

parked further away on the street from the Tsai home before 

three men got out. Those three men then approached the 

Tsai home. Dr. Tsai took close-up photographs of one of 

those three men. While Dr. Tsai was upstairs and lost visual 

contact of the men because they were close to his house, 

he heard a banging noise on the front of his house. When 

he looked down into the first floor living area, Dr. Tsai saw 

the curtains on one window blowing into the house and 

realized that the window had been opened. Since it was 

mid-March and cold outside, he knew that neither he nor his 
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wife had opened that window. After Dr. Tsai yelled loudly, 

the three men then walked away from the Tsai home and 

got back into the Dodge Caravan. Dr. Tsai testified that the 

window and frame were new and had just been installed in 

their home a few months earlier and now had pry marks on 

it and a broken lock. Shortly thereafter, police officers found 

two crowbars, a screwdriver, two black sweatshirts and 

gloves inside of that same Dodge Caravan, which had been 

reported stolen after the attempted burglary. Police officers 

later identified [West] as the person they recognized in Dr. 

Tsai’s photograph.

One logical inference is that after receiving no response 

to their initial knocking and ringing of the doorbell to see if 

anyone was home, the three men moved the van farther 

away from the Tsai home before attempting to enter it so 

that no one would later connect the vehicle with the Tsai 

home. Another logical inference is that at least one of these 

three men used a crowbar to break the lock and pry open 

the downstairs window of the Tsai home with the intent to 

gain entry for an illegal purpose. Once they realized that 

someone was actually inside the house, the three men left. 

It is not necessarily surprising that they walked away, rather 

than ran, so as to avoid drawing attention to themselves 

and raising suspicion by anyone else in the neighborhood 

that may have been home at the time. The Commonwealth 

established sufficient evidence at trial to sustain a conviction 

for attempted burglary, criminal conspiracy to commit 

burglary and criminal conspiracy to commit trespass.[3]

1925(a) Op. at 14-15. Viewing the evidence in the light most favorable to the 

Commonwealth as the verdict winner, we agree with the trial court’s 

conclusion that there was sufficient evidence to support West’s convictions for 

attempted burglary and conspiracy to commit burglary, including that West 

intended to commit a crime within the burglarized premises. 

____________________________________________

3 West does not challenge his conviction for conspiracy to commit 

trespass on appeal.
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/1/2017