J-S26031-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAMION MICHAEL SWEENEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 96 MDA 2022

Appeal from the Judgment of Sentence Entered March 27, 2020

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0001181-2019

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 29, 2022

Appellant, Damion Michael Sweeney, appeals nunc pro tunc from the 

judgment of sentence entered in the Court of Common Pleas of Luzerne 

County following his conviction at a bench trial on the charges of burglary, 

criminal mischief, and possession of a controlled substance.1 After a careful 

review, we affirm. 

The trial court has aptly set forth the relevant facts and procedural 

history, in part, as follows: 

[O]n January 30, 2019, Trooper Samuel Edwards of the 

Pennsylvania State Police filed a four (4) count criminal complaint 

against [A]ppellant charging him with burglary, criminal trespass, 

criminal mischief, and possession of a controlled substance. The 

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 3502(a)(2), 18 Pa.C.S.A. § 3304(a)(5), and 35 P.S. § 780-

113(a)(16), respectively. 
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criminal complaint and affidavit of probable cause alleged that 

[A]ppellant broke into a residence in Lake Township, Luzerne 

County, while not being licensed or privileged to do so, and caused 

property damage therein. Thereafter, [A]ppellant made a 

counseled waiver of his right to a preliminary hearing[,] and the 

Commonwealth withdrew all of the charges save for one count of 

criminal trespass. On April 30, 2019, the District Attorney of 

Luzerne County filed a one count criminal information against 

[A]ppellant [charging] him with criminal trespass. 

[A]ppellant appeared before the court for trial on December 

11, 2019. After both a written and on the record colloquy, he 

waived his right to a trial by jury. The Commonwealth then moved 

to amend the information to include the three counts withdrawn 

at the time of [A]ppellant’s preliminary hearing. Appellant’s trial 

counsel represented that he had no basis to object to the 

amendment, and accordingly, [the trial court] granted the 

Commonwealth’s request to reinstate the charges.

At trial, the Commonwealth presented testimony from 

[Donna Garriott, Daryl Garriott, David Allen, and Trooper Truman 

Brandt. The defense presented the testimony of Appellant]. 

[Specifically, Donna Garriott] testified that she had known 

[A]ppellant “for about a year, maybe a little longer,” and...she met 

him through Mr. David Allen, [who was] her...son and owner of the 

Lake Township residence. (N.T., 12/11/19, at 18-19.) This 

residence had previously belonged to [Mrs. Garriott’s] father. (Id.

at 17.) Thus, it was apparent that she was familiar with this 

residence and its condition at the relevant time. 

On October [19], 2016, she and her husband went to the 

residence to collect Mr. Allen’s mail. Upon arriving, she watched 

[A]ppellant exit the [L]ake [T]ownship residence [via the front 

door]. (Id. at 18.) She then engaged him in conversation. (Id.) 

She testified that [A]ppellant “wasn’t his normal self[,]” and that 

when she asked him what he was doing there, he responded with 

a remark about people spying on him from inside the walls. (Id.

at 19-20.) The Commonwealth admitted exhibits one (1) through 

twenty (20), [which were] a series of photos...depict[ing] damage 

to the interior of the residence. (Id. at 22-23.) Mrs. Garriott went 

on to testify that the photographs, marked as [C]ommonwealth 

exhibits 1 through 20, depicted recent damage to the residence. 

[She testified she and her husband asked Appellant to leave, and 

Appellant complied. She then informed her son of the incident, as 

well as contacted the police. (Id. at 25.)]
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[Mrs. Garriott’s] husband, [Daryl] Garriott, was also present 

when [Mrs. Garriott] encountered [A]ppellant at the Lake 

Township residence. He also testified that he was previously 

acquainted with [A]ppellant[,] and he recognized him. He testified 

[A]ppellant was acting erratically, as though he was “under the 

influence of something.” (Id. at 31-32.) [A]ppellant took Mr. 

Garriott inside [of the residence] to show him where the voices 

inside the wall were coming from. (Id.) At that time, Mr. Garriott 

observed the damage inside the residence[, which to his 

knowledge did not exist prior to October 19, 2016. (Id. at 32.)] 

[Mr. Garriott testified that, at this point, he and his wife asked 

Appellant to leave since he “wasn’t supposed to be there. The 

place was torn up, and [Appellant] was so erratic[.]” (Id.)] 

Mr. David Allen, [who had owned] the Lake Township 

residence [for eight or nine years], testified that he was 

acquainted with [A]ppellant, and on a prior occasion, he allowed 

[A]ppellant to stay on his couch. (Id. at 35.) Mr. Allen did not, 

however, permit [A]ppellant to be at his residence in October of 

2016. (Id. at 36). [He testified Appellant did not have a key to 

the residence, and in October of 2016, Mr. Allen was the only 

person who resided at the Lake Township residence. (Id.). Mr. 

Allen noted that he had been staying with his parents for a few 

days, and his mother called him on October 19, 2016, to report 

the damage to his home, as well as the fact Appellant was at the 

home. (Id.)] 

Reviewing each of the Commonwealth’s exhibits numbered 

1 through 20, the witness testified that the damage pictured in 

Commonwealth exhibits C-1, C-2, C-6, C-8, C-9, C-11, C-12, C14, and C-18 was not present prior to [A]ppellant’s unlawful 

tenancy. (Id. at 37-41.) The photos depicted...extensive damage 

to the interior of the residence. Mr. Allen indicated that the 

drywall was pulled off the walls and ceiling throughout “90% of 

the whole house.” (Id. at 42.) A claim for the damages was 

submitted to Allstate Insurance Company, [which] paid over 

$53,000 to resolve the claim. (Id.) [Mr. Allen testified that when 

he walked through the Lake Township residence, in addition to the 

damage to the residence, he discovered drugs in his bathroom, 

which did not belong to him. (Id. at 43.) He gave the drugs to 

the police. (Id. at 44.)] 

[Pennsylvania State Police Trooper Truman Brandt testified 

he responded to Mrs. Garriott’s 911 call on October 19, 2016. He 

confirmed the Lake Township residence had extensive damage 

inside of it. (Id. at 54-55.) He discovered that pieces of plywood 
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in the basement had been moved to gain ingress. (Id. at 56-58.) 

After Mrs. Garriott advised him that Appellant had been inside of 

the residence, Trooper Brandt questioned Appellant, who informed 

him that the Lake Township home was his residence. (Id. at 55-

56.) Regarding the drugs, the parties stipulated the drugs 

“weighed 0.32 grams and contained N-Ethylpentylone, a 

substituted cathinone Schedule I controlled substance.” (Id. at 

61.)] 

[A]ppellant testified he was at the residence with the 

permission of Mr. Allen, and he did not cause any damage. (Id.

at 64-68.) [Specifically, Appellant claimed he was living at the 

residence with the permission of Mr. Allen, but he had been away 

camping for a few days. (Id. at 63-64.) When he returned, he 

found the damage to the residence. (Id. at 64.) He indicated he 

had no belongings at the residence, except for clothes and food, 

and he did not receive mail at the residence. (Id. at 65.) On 

redirect examination, Mr. Allen denied Appellant had his 

permission to be in the residence during October of 2016 or that 

he had provided Appellant with a key. (Id. at 68-69.)]

At the conclusion of the presentation of argument and 

evidence, [the trial court] rendered a verdict which acquitted 

[A]ppellant of criminal trespass and convicted him of burglary, 

criminal mischief, and possession of a controlled substance. On 

March 27, 2020, [the trial court] sentenced [Appellant]...to an 

aggregate term of incarceration of ten (10) to twenty-three (23) 

months followed by eighteen (18) months of consecutive 

probation. On April 6, 2020, [A]ppellant’s counsel filed a [timely] 

post-sentence motion challenging the weight of the evidence for 

each of [A]ppellant’s convictions. Appellant’s counseled postsentence motion argued that the [C]ommonwealth the [sic] failed 

to prove that [A]ppellant caused damage inside the property or 

committed a crime inside the residence. 

[The trial court] denied [A]ppellant’s post-sentence motion 

in its entirety by order dated June 17, 2020. On July 2, 2020, 

[A]ppellant’s counsel filed a notice of appeal;...[however,] on 

October 16, 2020, the [] Superior Court dismissed the appeal for 

counsel’s failure to file a docketing statement pursuant to 

Pa.R.A.P. 3517. 

On September 3, 2021, [A]ppellant’s counsel filed a motion 

to reinstate his appeal rights nunc pro tunc. [The court] 

considered this motion as having been [timely] filed pursuant to 

the post-conviction relief act, 42 Pa.C.S.A. § 9541 et seq., and by 
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Order dated December 1, 2021, [the court] granted [A]ppellant’s 

motion to reinstate his direct appeal rights. On December 22, 

2021, [A]ppellant filed a counseled notice of appeal[,] and on that 

same date, [the trial court] entered an Order directing that he file 

a concise statement pursuant to Pa.R.A.P. 1925(b) within 21 days 

of that Order. On January 10, 2022, [A]ppellant filed his 

counseled concise statement[, and on March 4, 2022, the trial 

court filed a responsive Pa.R.A.P. 1925(a) opinion.]

Trial Court Opinion, filed 3/4/22, at 1-4 (some citations omitted).

On appeal, Appellant sets forth the following issues in his “Statement of 

the Questions Involved” (verbatim):

1. Was the Commonwealth’s evidence insufficient to sustain guilty 

verdicts beyond a reasonable doubt against the Appellant?

2. Were the verdicts against the weight of the evidence?

Appellant’s Brief at 7 (suggested answers and unnecessary capitalization 

omitted). 

Appellant first contends the evidence was insufficient to sustain his 

convictions for burglary and possession of a controlled substance.2

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2 We note the Commonwealth argues Appellant’s sufficiency issues are waived 

under Pa.R.A.P. 1925(b). Specifically, the Commonwealth contends Appellant 

did not set forth his sufficiency challenges with specificity as required by 

Pa.R.A.P. 1925(b)(4)(ii). See Commonwealth’s Brief at 12. However, before 

this Court may find waiver under Rule 1925(b), we must determine whether 

the trial court’s Rule 1925(b) order strictly complies with the requirements of 

Pa.R.A.P. 1925(b)(3), which pertains to the required contents of an order. See 

Rahn v. Consol. Rail Corp., 254 A.3d 738, 745-46 (Pa.Super. 2021) (“[I]n

determining whether an appellant has waived his issues on appeal based on 

non-compliance with Pa.R.A.P. 1925, it is the trial court’s order that triggers 

an appellant’s obligation ... therefore, we look first to the language of that 

order.”) (quotation omitted)). In the case sub judice, while the trial court’s 

(Footnote Continued Next Page)
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Specifically, Appellant contends the evidence was insufficient to sustain his 

conviction for burglary since the Commonwealth failed to prove Appellant 

intended to commit a crime when he entered the Lake Township residence on 

October 19, 2016. Appellant further contends the evidence was insufficient 

to sustain his conviction for possession of a controlled substance since the 

Commonwealth failed to prove the element of possession.3

This Court’s standard of review when considering a challenge to the 

sufficiency of the evidence requires us to look at the evidence in a light most 

favorable to the verdict winner and determine whether the evidence 

presented, actual and/or circumstantial, was sufficient to enable a fact-finder 

to find every element of the crime charged, beyond a reasonable doubt. See 

Commonwealth v. O'Brien, 939 A.2d 912 (Pa.Super. 2007).

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 the 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 

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order is generally compliant with Rule 1925(b)(3), the order does not set forth 

“the place the appellant can serve the Statement in person and the address 

to which the appellant can mail the Statement.” Pa.R.A.P. 1925(b)(3)(iii). 

Because the trial court’s order is inconsistent with the requirements of the 

Rule, we decline to conclude Appellant has failed to comply with it. See Rahn, 

254 A.3d at 746.

3 While Appellant has developed a weight of the evidence argument for his 

criminal mischief conviction, which we discuss infra, he has not developed a

sufficiency of the evidence argument specifically related to his conviction for 

criminal mischief. 
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as a matter of law no probability of fact may be drawn from the 

combined circumstances.

Id. at 913–914 (quotation omitted). The finder of fact is free to believe all, 

some, or none of the evidence presented and is free to determine the 

credibility of the witnesses. Commonwealth v. Dailey, 828 A.2d 356 

(Pa.Super. 2003).

Here, Appellant was convicted of burglary under 18 Pa.C.S.A. § 

3502(a)(2), which provides the following:

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

if, with the intent to commit a crime therein, the person:

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(2) 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 no person is 

present[.]

18 Pa.C.S.A. § 3502(a)(2) (emphasis in original).

The intent to commit a crime must be contemporaneous with entering 

the dwelling, and we determine intent by the totality of the surrounding 

circumstances. See Commonwealth v. Magnum, 654 A.2d 1146, 1147 

(Pa.Super. 1995). However, the Commonwealth has no burden to identify the 

specific crime to be committed.4 Commonwealth v. Alston, 539 Pa. 202, 

651 A.2d 1092, 1094 (1994). 

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4 “When the Commonwealth does specify, in the information or indictment, 

the crime defendant intended to commit, the Commonwealth must prove the 

(Footnote Continued Next Page)
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While this intent may be inferred from actions as well as words, 

the actions must bear a reasonable relation to the commission of 

a crime. Once one has entered a private residence by criminal 

means, we can infer that the person intended a criminal purpose 

based upon the totality of the circumstances.

Commonwealth v. Lambert, 795 A.2d 1010, 1022 (Pa.Super. 2002) (en 

banc) (citations omitted).

Here, as indicated supra, Appellant contends the evidence was 

insufficient to sustain his conviction for burglary since the Commonwealth 

failed to prove Appellant intended to commit a crime when he entered the 

Lake Township residence on October 19, 2016. Appellant suggests the 

evidence reveals, at most, that he formed the intent to commit a crime at 

some point after he entered the dwelling, but he did not have the intent to 

commit a crime contemporaneous with his entering of the dwelling. See 

Appellant’s Brief at 20-21. 

Viewing the evidence in the light most favorable to the Commonwealth, 

as verdict winner, we find no merit to Appellant’s argument. See O’Brien, 

supra. Specifically, the evidence reveals Appellant entered the residence 

through the basement by moving pieces of plywood. The trial court, as the 

finder of fact, found credible the testimony establishing that Appellant did not 

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requisite intent for that particular crime in order to prove a burglary or 

attempted burglary.” Commonwealth v. Brown, 886 A.2d 256, 260 

(Pa.Super. 2005). In the case sub judice, a review of the record reveals 

neither the police criminal complaint nor the information specified which 

particular crime Appellant intended to commit during the burglary. 
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have a key to the residence or permission to be inside of the residence. See 

Trial Court Opinion, filed 3/4/22, at 3. 

Further, at the time Appellant entered the residence, he possessed a 

controlled substance. The trial court was free to infer that Appellant entered 

the residence with the intent to consume the controlled substance therein, 

which in turn led to Appellant’s erratic behavior, paranoia, and destruction of 

the residence’s interior. Thus, based on the totality of the circumstances, we 

conclude the evidence was sufficient to establish the necessary intent for 

burglary. See Lambert, supra.

Moreover, Appellant challenges the sufficiency of the evidence for his 

conviction for possession of a controlled substance under 35 P.S. § 780-

113(a)(16), which provides the following:

(a) The following acts and the causing thereof within the 

Commonwealth are hereby prohibited:

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(16) Knowingly or intentionally possessing a controlled substance 

or counterfeit substance by a person not registered under this act, 

or a practitioner not registered or licensed by the appropriate 

State board, unless the substance was obtained directly from, or 

pursuant to, a valid prescription order or order of a practitioner, 

or except as otherwise authorized by this act.

35 P.S. § 780-113(a)(16). 

Here, as indicated supra, Appellant contends the evidence was 

insufficient to establish that he possessed the controlled substance at issue. 

To establish the element of possession, this Court has held that “[p]ossession 

can be found by proving actual possession, constructive possession, or joint
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constructive possession.” Commonwealth v. Parrish, 191 A.3d 31, 36 

(Pa.Super. 2018) (citation omitted).

We have previously determined:

Where a defendant is not in actual possession of the 

prohibited items, the Commonwealth must establish that the 

defendant had constructive possession to support the conviction. 

Constructive possession is a legal fiction, a pragmatic construct to 

deal with the realities of criminal law enforcement. We have 

defined constructive possession as conscious dominion, meaning

that the defendant has the power to control the contraband and 

the intent to exercise that control. To aid application, we have held 

that constructive possession may be established by the totality of 

the circumstances.

It is well established that, as with any other element of a 

crime, constructive possession may be proven by circumstantial 

evidence. In other words, the Commonwealth must establish 

facts from which the trier of fact can reasonably infer that the 

defendant exercised dominion and control over the contraband at 

issue.

Parrish, 191 A.3d at 36–37 (internal citations and quotations omitted).

To find constructive possession, the power and intent to control the 

contraband does not need to be exclusive to the appellant. Our Supreme 

Court has recognized that “constructive possession may be found in one or 

more actors where the item in issue is in an area of joint control and equal 

access.” Commonwealth v. Johnson, 611 Pa. 381, 26 A.3d 1078, 1094 

(2011) (internal citation omitted).

Here, viewing the evidence in the light most favorable to the 

Commonwealth, as the verdict winner, we agree with the trial court that the 

evidence sufficiently establishes Appellant’s constructive possession of the 
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controlled substance. Specifically, the evidence reveals Appellant entered the 

residence via the basement without permission and at a time when the owner, 

Mr. Allen, was not staying at the premises. Mr. Allen testified that, after he 

learned Appellant was at his residence without his permission, he returned to 

the residence and discovered the controlled substance in his bathroom. The 

trial court, as the finder of fact, believed Mr. Allen’s testimony that the 

controlled substance did not belong to him, and no one else lived in the 

residence. Trooper Brandt testified Mr. Allen turned the controlled substance 

over to the police. 

Accordingly, based on the totality of the circumstances, we conclude the 

evidence reveals Appellant brought the controlled substance into Mr. Allen’s 

residence, and thus, the Commonwealth established sufficient facts from 

which the trial court could reasonably infer Appellant exercised dominion and 

control over the controlled substance. See Parrish, supra. Therefore, the 

evidence was sufficient to demonstrate Appellant’s constructive possession of 

the controlled substance to sustain his conviction under 35 P.S. § 780-

113(a)(16). 

Appellant next contends the trial court’s verdicts are against the weight 

of the evidence. Specifically, he contends there is no reliable evidence that he 

entered the Lake Township residence with a contemporaneous intent to 

commit a crime therein. Further, Appellant contends there is no credible 
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evidence that he brought the controlled substance into the residence or caused 

the damage to the interior of the residence. 

In support of his weight claim, Appellant notes there is no evidence that 

he had any ill-will towards the homeowner, Mr. Allen, or that he was covered 

in dust or debris when Mr. and Mrs. Garriott discovered him at the residence 

on October 19, 2016. Thus, he contends the trial court’s verdicts are against 

the weight of the evidence.5

When considering challenges to the weight of the evidence, we apply 

the following precepts. “The weight of the evidence is exclusively for the 

finder of fact, who is free to believe all, none[,] or some of the evidence and 

to determine the credibility of the witnesses.” Commonwealth v. Talbert, 

129 A.3d 536, 545 (Pa.Super. 2015) (quotation marks and quotation 

omitted). Resolving contradictory testimony and questions of credibility are 

matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910, 

917 (Pa.Super. 2000). It is well-settled that we cannot substitute our 

judgment for that of the trier of fact. Talbert, supra.

Moreover, appellate review of a weight claim is a review of the trial 

court’s exercise of discretion in denying the weight challenge raised in the 

post-sentence motion; this Court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id. 

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5 Appellant adequately preserved his weight claim in the trial court. See 

Pa.R.Crim.P. 607.
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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.

Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to 

prevail on a challenge to the weight of the evidence, the evidence must be so 

tenuous, vague and uncertain that the verdict shocks the conscience of the 

court.” Id. (quotation marks and quotation omitted). 

Here, in rejecting Appellant’s weight of the evidence claim, the trial court 

relevantly indicated the following:

Appellant’s counseled post-sentence motion argued that his 

convictions for burglary, criminal mischief, and possession of a 

controlled substance were against the weight of the evidence 

because the evidence failed to prove that he committed the crime 

inside the house[,]...he was not covered in the same debris, which 

was evident throughout the interior of the residence, and there 

was no evidence that he caused the damage.

Witnesses who knew and recognized [A]ppellant observed 

him at the property at the time that they first observed the 

damage to the residence. Indeed, [A]ppellant showed one of the 

witnesses the damage inside the residence. The owner of the 

property testified that [A]ppellant was not permitted at the 

residence. Credible testimony and photographs, which were 

offered as Commonwealth’s exhibits one (1) through twenty (20), 

depicted significant the [sic] damage to the inside of the 

residence. A small quantity of controlled substance was found 

inside the residence[,] and [A]ppellant appeared as though he was 

under the influence of drugs. All the evidence presented in this 

case, both direct and circumstantial, points to [A]ppellant’s guilt 

for each of his convictions. [The trial court] made credibility 

determinations in favor of the Commonwealth[,]...and [the trial 

court] rejected [A]ppellant’s arguments that the interior damage 
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was the result of a remodeling projecting. For each of the 

foregoing reasons, [A]ppellant’s claims that his [verdicts] were 

against the weight of the evidence are without merit. 

Trial Court Opinion, filed 3/4/22, at 6-7 (citations to record omitted).

We conclude the trial court did not abuse its discretion in denying 

Appellant’s challenge to the weight of the evidence. Talbert, supra. We note 

the trial court was free to determine the weight to be given to each witnesses’ 

testimony, as well as reject Appellant’s theory that he did not enter the 

residence with the intent to commit a crime therein and/or someone other 

than Appellant left the controlled substance in the residence and caused the 

damage to the residence. To the extent Appellant requests that we re-weigh 

the evidence and assess the credibility of the witnesses presented at trial, we 

decline to do so as it is a task that is beyond our scope of review. See 

Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013) (stating 

that “[a]n appellate court cannot substitute its judgment for that of the finder 

of fact”). Accordingly, we find no merit to Appellant’s weight of the evidence 

claim.

For all of the foregoing reasons, we affirm.

Affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/29/2022