J-S10038-15

_________________________

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANDREW DODD

Appellant No. 1991 EDA 2014

Appeal from the Judgment of Sentence May 29, 2014

In the Court of Common Pleas of Pike County

Criminal Division at No(s): CP-52-CR-0000134-2014

CP-52-CR-0000136-2014

BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED MARCH 04, 2015

Appellant, Andrew Dodd, appeals from the judgment of sentence 

entered in the Pike County Court of Common Pleas, following his negotiated 

guilty plea to two counts of first-degree felony burglary and one count of 

first-degree felony conspiracy to commit burglary.1 We affirm. 

The relevant facts and procedural history of this case are as follows. 

The Commonwealth charged Appellant with burglary, conspiracy to commit 

burglary, criminal trespass, theft by unlawful taking or disposition, theft by 

deception, receiving stolen property, and criminal mischief, in connection 

with Appellant’s unauthorized entrance into two residences on February 2, 

____________________________________________

1 18 Pa.C.S.A. §§ 3502(a)(2) and 903 (§ 3502 related), respectively. 
J-S10038-15

- 2 -

2014. On May 29, 2014, Appellant entered a negotiated guilty plea to two 

counts of burglary of a home―no one present, and one count of conspiracy 

to commit burglary of a home―no one present.2 That same day, with the 

benefit of a presentence investigation (“PSI”) report, the court sentenced 

Appellant to consecutive terms of two (2) to four (4) years’ imprisonment for 

each burglary conviction, and a concurrent term of one (1) to two (2) years’ 

imprisonment for the conspiracy conviction, for an aggregate sentence of 

four (4) to eight (8) years’ imprisonment. 

On June 9, 2014, Appellant timely filed a post-sentence motion, which 

the court denied on June 10, 2014. Appellant timely filed a notice of appeal 

on July 9, 2014. The next day, the court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Appellant timely complied on July 30, 2014. 

Appellant raises one issue for our review: 

DID THE [TRIAL] COURT ABUSE ITS DISCRETION AND 

COMMIT AN ERROR OF LAW WHEN IT DENIED 

[APPELLANT’S] REQUEST FOR ACCEPTANCE INTO THE 

RECIDIVISM RISK REDUCTION INCENTIVE (“RRRI”) 

PROGRAM? 

(Appellant’s Brief at 4). 

Appellant argues he was entitled to acceptance into the RRRI program 

because he was not convicted of any enumerated disqualifying offenses and 

____________________________________________

2 Admission into the Recidivism Risk Reduction Incentive (“RRRI”) program 

was not a term of Appellant’s negotiated plea. 
J-S10038-15

- 3 -

he did not demonstrate a history of present or past violent behavior. 

Appellant contends his convictions do not constitute crimes showing “present 

violent behavior,” because the convictions were classified as burglary of a 

home—no one present and are merely offenses against the “property rights” 

of the owner. Appellant insists burglary of a home, where no one is present, 

cannot constitute a crime of violence because there is no threat of violence 

or harm to any person. Appellant concludes the court improperly deemed 

him ineligible for the RRRI program, and this Court must vacate and remand 

for resentencing. We disagree. 

The RRRI statute provides, in pertinent part, as follows: 

§ 4505. Sentencing 

(a)Generally.―At the time of sentencing, the court 

shall make a determination whether the defendant is an 

eligible offender. 

* * *

(c) Recidivism risk reduction incentive minimum 

sentence.―If the court determines that the defendant is 

an eligible offender or the prosecuting attorney has waived 

the eligibility requirements under subsection (b), the court 

shall enter a sentencing order that does all of the 

following: 

(1) Imposes the minimum and maximum 

sentences as required under 42 Pa.C.S. § 9752 

(relating to sentencing proceeding generally). 

(2) Imposes the recidivism risk reduction 

incentive minimum sentence. The recidivism risk 

reduction incentive minimum shall be equal to threefourths of the minimum sentence imposed when the 

minimum sentence is three years or less. The 
J-S10038-15

- 4 -

recidivism risk reduction incentive minimum shall be 

equal to five-sixths of the minimum sentence if the 

minimum sentence is greater than three years. ... 

* * *

61 Pa.C.S.A. § 4505. The RRRI statute defines an eligible offender as an 

offender who, inter alia, “[d]oes not demonstrate a history of present or past 

violent behavior.” 61 Pa.C.S.A. § 4503.3 The statute does not define what 

constitutes a “history of present or past violent behavior.” See id. 

Nevertheless, “an unprivileged entry into a building or structure where 

people are likely to be found is a clear threat to their safety and every 

burglar knows when he attempts to commit his crime that he is inviting 

dangerous resistance.” Commonwealth v. Pruitt, 597 Pa. 307, 321, 951 

A.2d 307, 331 (2008), cert. denied, 556 U.S. 1131, 129 S.Ct. 1614, 173 

L.Ed.2d 1001 (2009) (internal citations and quotation marks omitted). 

Recently, our Supreme Court expressly held that first-degree burglary 

constitutes “violent behavior” for purposes of the RRRI statute. 

Commonwealth v. Chester, ___ Pa. ___, 101 A.3d 56 (2014). In 

reaching its decision, the Court explained:

[A]lthough burglary involves the unlawful entry of another 

person’s property, and although burglary is characterized 

as a property crime for purposes of the Pennsylvania 

Uniform Crime Report, it is well established within our case 

____________________________________________

3 The statute also enumerates disqualifying offenses, including offenses 

involving deadly weapons, personal injury crimes as defined in the Crime 

Victims Act, certain sexual offenses, and specific drug offenses. See id. 
J-S10038-15

- 5 -

law that burglary is a crime of violence as a matter of law, 

signifying that first-degree burglary necessarily constitutes 

violent behavior in all contexts, including under Section 

4503(1) [of the RRRI statute]. Indeed, ...burglary has 

been treated as a crime of violence dating back to the 

common law of England, which defined burglary as a 

forcible invasion into the home with the intent to commit a 

felony therein, and punished burglars with death because 

of the great public policy involved in shielding the citizenry 

from being attacked in their homes and in preserving 

domestic tranquility. Based upon those same motivations, 

and wishing to protect people from the threat of violence 

in other situations, our legislature expanded the common 

law scope of burglary when it drafted the Crimes Code, 

including within its definition various types of buildings and 

structures in addition to the home, and extending the 

definition to encompass both daytime and nighttime 

intrusions. 

We continue to view burglary as a crime of violence today 

based upon the well settled notion that non-privileged 

entry...poses a threat of violence to persons. ... 

Moreover, the Crimes Code treats first-degree burglary 

distinctly from second-degree burglary, as first-degree 

burglary contemplates the potential for 

confrontation, whereas second-degree burglary does not. 

At the time [a]ppellant was charged, the burglary statute 

distinguished first-degree burglary from second-degree 

burglary based upon whether the building or structure 

entered was adapted for overnight accommodation and 

whether an individual was present at the time of entry. 

Only if neither of these conditions [was] true—i.e., that 

there was no risk of confrontation—was the entry a 

second-degree burglary. Thus, in light of Pennsylvania’s 

long-standing view of burglary as a violent crime, as well 

as the fact that first-degree burglary is treated distinctly, 

and more severely, under Pennsylvania law, we have no 

hesitancy in concluding a conviction for first-degree 

burglary constitutes “violent behavior” under Section 

4503(1). 

Furthermore, while [a]ppellant contends his first-degree 

burglary conviction was not “violent behavior” because he 
J-S10038-15

- 6 -

did not employ violence during the burglary, it is an 

offender’s non-privileged entry, which invites 

dangerous resistance and, thus, the possibility of the 

use of deadly force against either the offender or the 

victim, that renders burglary a violent crime, not the 

behavior that is actually exhibited during the 

burglary. Thus, the fact that [a]ppellant did not actually 

engage in any violent acts while committing first-degree 

burglary does not render that crime “non-violent.” 

Similarly, we decline to accept the invitation...to depart 

from our well established case law—finding burglaries to 

be violent by their very nature—to instead engage in a 

case-by-case evaluation into whether a particular burglary 

conviction constitutes “violent behavior” under Section 

4503(1). Thus, ...a conviction for first-degree burglary, a 

crime of violence, constitutes violent behavior for purposes 

of Section 4503(1).

Id. at ___, 101 A.3d at 64-65 (internal citations, quotation marks, and 

footnotes omitted) (emphasis added). 

The relevant version of the burglary statute at the time of Appellant’s 

offenses provided: 

§ 3502. Burglary 

(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;

(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; 

(3) enters a building or occupied structure, or 

separately secured or occupied portion thereof that is 
J-S10038-15

- 7 -

not adapted for overnight accommodations in which at 

the time of the offense any person is present; or

(4) enters a building or occupied structure, or 

separately secured or occupied portion thereof that is 

not adapted for overnight accommodations in which at 

the time of the offense no person is present; 

* * *

(c) Grading.―

(1) Except as provided in paragraph (2), burglary 

is a felony of the first degree. 

(2) An offense under subsection (a)(4) is a felony 

of the second degree. 

* * *

18 Pa.C.S.A. § 3502(a), (c).4 

Instantly, the trial court explained: 

Appellant alleges this [c]ourt erred in determining 

Appellant is not eligible for a RRRI sentence based upon 

his F1 Burglary conviction[s]. However, this [c]ourt 

respectfully disagrees. This [c]ourt considered numerous 

factors in sentencing Appellant and determined that 

Appellant was not eligible for a RRRI sentence. One of the 

factors this [c]ourt considered was Appellant’s PreSentence Investigation (“PSI”) [report]. The PSI revealed 

____________________________________________

4 The legislature amended the burglary statute on December 23, 2013 

(effective February 21, 2014). Consistent with the version in effect at the 

time of Appellant’s offenses, the current burglary statute classifies all 

burglaries as first-degree felonies, with the exception of those burglaries 

where the defendant enters a building or occupied structure not adapted for 

overnight accommodations, and no person is present, which are seconddegree felonies (unless the actor’s intent is to commit theft of a controlled 

substance, in which case, the burglary is a first-degree felony). See 18 

Pa.C.S.A. § 3502(a)(4), (c) (as amended). 
J-S10038-15

- 8 -

that Appellant has a serious criminal history which included 

three previous Burglary offenses and one of the Burglary 

offenses was a F1 Burglary. Additionally, the Burglary 

offenses Appellant pled guilty to in this matter were also 

graded as F1 Burglaries. Although such crimes are not 

considered personal injury crimes, convictions of multiple 

F1 Burglaries demonstrate that Appellant has a history of 

violent behavior as well as presently continues to exhibit 

that behavior. Therefore, because of Appellant’s history of 

present and past violent behavior he was not eligible for a 

RRRI sentence and we continue to stand by our decision. 

Finally, Appellant alleges this [c]ourt’s holding that 

Appellant is ineligible for the RRRI sentence is contrary to 

the holding in Commonwealth v. Gonzalez, 10 A.3d 

1260 (Pa.Super. 2010)[, appeal denied, 610 Pa. 616, 21 

A.3d 1190 (2011)]. This [c]ourt respectfully disagrees. 

The Superior Court’s holding was specifically related to a 

F2 Burglary which by definition does not involve the risk of 

violence, or injury to another person. [Id. at 1262.] 

Here, Appellant pled guilty to two Counts of F1 Burglary. 

Although no one was present there still existed a risk of 

injury or violence to another person had someone been 

home. Therefore, this [c]ourt’s holding was not contrary 

to Gonzalez and we continue to stand by our decision. 

(Trial Court Opinion, filed August 26, 2014, at 3-4).5 We accept the court’s 

analysis.6 See Chester, supra; Pruitt, supra. 

Our Supreme Court’s decision in Chester controls. Appellant’s 

unprivileged entry into a home, where people are likely to be found, 

____________________________________________

5

The trial court did not have the benefit of our Supreme Court’s decision in 

Chester when it issued its Rule 1925(a) opinion. 

6 The certified record does not contain Appellant’s PSI report, so we are 

unable to verify the details of his criminal history. Nevertheless, the record 

confirms that Appellant has a prior record. Additionally, Appellant does not 

contest on appeal the trial court’s statements regarding his PSI report.
J-S10038-15

- 9 -

constituted a threat to the safety of others. See Chester, supra; Pruitt, 

supra. Appellant attempts to distinguish Chester by emphasizing that the 

defendant in Chester committed a burglary of a home where someone was 

present; importantly, the Supreme Court’s analysis focused on the 

defendant’s intrusion into a home, which by its nature, contemplates the 

potential for confrontation, regardless of whether someone is present. 

See id. Likewise, the burglary statute classifies an intrusion into a home as 

a first-degree felony, regardless of whether a person is present.7 See 18 

Pa.C.S.A. § 3502(a)(1), (a)(2), (c). Because the circumstances of 

Appellant’s case evidenced prohibited violent behavior for RRRI purposes, 

the court properly deemed Appellant ineligible for RRRI sentencing. See 61 

Pa.C.S.A. §§ 4503, 4505. Accordingly, we affirm. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/4/2015

____________________________________________

7 Appellant’s other attempts to distinguish his case from Chester are equally 

unavailing.