J-A29031-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KHIRI KASHIER SPAIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 122 MDA 2020

Appeal from the Judgment of Sentence Entered December 19, 2019

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

No(s): CP-06-CR-0001786-2019

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED DECEMBER 24, 2020

Appellant, Khiri Kashier Spain, appeals from the aggregate judgment of 

sentence of six to twenty years of confinement, which was imposed after his 

jury trial convictions for: burglary – 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; theft by unlawful taking or disposition – movable property; receiving 

stolen property; loitering and prowling at night time; and criminal trespass –

enters, gains entry by subterfuge or surreptitiously remains in any building or 

occupied structure.

1

 We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3502(a)(4), 3921(a), 3925(a), 5506, and 3503(a)(1)(i), 

respectively.
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The facts underlying this appeal are as follows. On September 30, 2018, 

at about 2:30 A.M., Officer Matthew Nguyen of the West Reading Police 

Department was on bicycle patrol when he observed a man peering into 

multiple vehicles. N.T. Trial at 160, 162-63. After calling the suspicious 

behavior in to his supervisor, Officer Nguyen observed the man cutting 

through backyards headed towards Wyomissing, Berks County. Id. at 166-

67. When another officer attempted to make contact with the man, he fled 

through the backyards towards Wyomissing. Id. at 167.

Police later recovered a cellular telephone laying in the one in of yards. 

Id. at 180. A search warrant was obtained for the cell phone, id. at 188, and 

police discovered photographs of Appellant and a Facebook account in his 

name on the phone. Id. at 190-91.

At 7:00 A.M. that same day, Kristine Seibert awoke in her home in 

Wyomissing, blocks away from where Officer Nguyen had seen Appellant, and 

discovered that all her kitchen cabinets were open and ransacked. Id. at 100-

02, 132, 162-64, 169. A jar of change was missing from the kitchen, as was 

an iPad and a Bluetooth speaker. Id. at 107-09. Ms. Seibert called for her 

husband, who had gone to sleep after her and had been awake until around 

1:00 A.M. Id. at 102, 127. When he came downstairs, he noticed that the 

doors to their yard were ajar, even though they had been closed when he 

went to bed; the yard leads to their detached garage. Id. at 102, 106-07. 

When they entered the garage, they saw that Ms. Seibert’s bicycle was 

missing; it had been strapped to their car, since they had been out cycling the 
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day before. Id. at 114-15. Police later collected DNA evidence from the 

straps, and, at trial, an expert forensic scientist testified that “the probability 

of randomly selecting an unrelated individual exhibiting this combination of 

DNA types is approximately 1 in 370 sextillion from the Caucasian 

population[,] 1 in 7.8 sextillion from the African American population[,] and 1 

in 89 sextillion from the Hispanic population.” Id. at 281. The expert further 

testified that DNA transfer was improbable, as this sample was not a mixture

of DNA from multiple people. Id. at 289, 291. The Seiberts also found that 

Mr. Seibert’s backpack was missing and that a fire-proof box in their basement

had been rummaged through, although nothing was gone from the box. Id.

at 102, 106, 111, 132. Neither of the Seiberts knew Appellant and did not 

give him permission to be in their garage or home. Id. at 124, 133-34.

Detective Kevin Quinter of the Borough of Wyomissing Police 

Department received a notice that the Seiberts’ stolen iPad was sold at a kiosk 

at the Walmart in Wyomissing. Id. at 202. The seller was identified as 

Raymeesha Leatherbury. Id. at 203-04. Camera footage from the kiosk 

revealed that Appellant was in the store with Leatherbury at the time of the 

sale. Id. at 204. Leatherbury later testified that Appellant had given her the 

iPad, but she “didn’t know where it came from.” Id. at 233. She stated that 

he had asked her to sell it, because he did not have the requisite identification 

to hawk it at the Walmart kiosk. Id. at 234, 245. She agreed, because she 

was homeless at the time and needed money for a hotel room. Id. at 231, 

233-34. Leatherbury had initially been reluctant to talk to police since she 
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was “ashamed” and “scared” and “didn’t want to be labeled as a snitch[.]” Id.

at 232, 238, 248. She informed the jury that she was never charged with 

receiving stolen property or any crime related to the burglary at issue and was 

never asked for a DNA sample by police during their investigation. Id. at 246-

47.

Appellant testified in his own defense at trial, during which he admitted 

to being in the neighborhood where the crime occurred at approximately 

2:00 A.M. on September 30, 2018, and that the cell phone found by police in 

the area that night belonged to him. Id. at 311-12, 319.

The jury convicted Appellant of the aforementioned charges, including 

burglary of the garage. However, the jury found him not guilty of burglary of 

the Seiberts’ house.2

On December 19, 2019, the trial court sentenced Appellant to: three to 

ten years of confinement for burglary; 18 months to five years of confinement 

for receiving stolen property; three to twelve months of confinement for 

loitering and prowling at night time; and 18 months to five years of 

confinement for criminal trespass. He received no punishment for theft by 

unlawful taking or disposition. His sentences for burglary, receiving stolen 

property, and criminal trespass are to be served consecutively to each other; 

____________________________________________

2 Id. § 3502(a)(1)(ii) (“A person commits the offense of burglary if, with the 

intent to commit a crime therein, the person . . . 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”).
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his sentence for loitering and prowling at night time is to be served 

concurrently. Consequently, his aggregate judgment of sentence is six to 

twenty years of confinement.

On December 30, 2019, Appellant filed timely post-sentence motions, 

including a motion for new trial on the basis that the verdicts were against the 

weight of the evidence and a motion to modify sentence. The latter motion 

stated, in its entirety:

9. Defendant avers that the total aggregate sentence imposed 

is excessive.

10. Defendant avers that this [c]ourt abused its discretion by 

sentencing Defendant to consecutive sentences at the top of the 

standard range on three counts. The sentence is a greater period 

of confinement than that which was consistent with the protection 

of the public, the gravity of the offense as it relates to the impact 

on the life of the victim and on the community, and the 

rehabilitative needs of Defendant.

11. In reconsidering the sentence imposed, Defendant asks that 

the [c]ourt consider the mitigating factors:

a. Defendant’s largely untreated history of mental health 

and drug addiction beginning as a child and adolescent;

b. Defendant’s ability to obtain meaningful employment 

when not incarcerated;

c. Defendant’s attempt to better himself by pursuing higher 

education with hopeful future business plans;

d. Defendant’s relationship with his 1 year old child now and 

in the future; and

e. Defendant’s overall life circumstances which have shaped 

his past criminal infractions.

WHEREFORE, Defendant respectfully requests that the 

Honorable Court grant this motion and modify the sentence 

imposed.
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Post Sentence Motions, 12/30/2019, at 2-3 (not paginated) ¶¶ 9-11

(emphasis in original). After the trial court denied these motions on 

January 3, 2020, Appellant filed this timely direct appeal on January 15, 

2020.3

On July 9, 2020, Appellant filed his brief with this Court. On July 29, 

2020, Appellant filed an application for remand to file a supplemental postsentence motion or, in the alternative, to file a supplemental appellate brief. 

See Pa.R.A.P. 2113(c) (“No further briefs may be filed except with leave of 

court.”).4 On August 3, 2020, this Court denied the application for remand 

but granted the application to file a supplemental brief. On August 6, 2020, 

Appellant filed his supplemental brief.

In his main brief to this Court, Appellant presents the following issues 

for our review:

Whether the guilty verdicts were supported by the weight of the 

evidence?

Whether the evidence was sufficient to support the verdict of 

Burglary?

Whether the evidence was sufficient to support the verdict of 

Criminal Trespass?

____________________________________________

3 Appellant contemporaneously filed his statement of errors complained of on 

appeal. The trial court entered its opinion on June 10, 2020.

4 The Commonwealth had not yet filed its brief and would not do so until 

September 2, 2020. Thus, Appellant’s brief was not a reply brief. See 

Pa.R.A.P. 2113(a) (“the appellant may file a brief in reply to matters raised by 

appellee’s brief . . . and not previously addressed in appellant’s brief”).
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Whether the evidence was sufficient to support the verdict of Theft 

by Unlawful Taking?

Whether the evidence was sufficient to support the verdict of 

Receiving Stolen Property?

Whether the evidence was sufficient to support the verdict of 

Loitering and Prowling at Night Time?

Whether the trial court abused its discretion by sentencing 

[Appellant] to consecutive sentences at the top of the standard 

range on three counts.

Appellant’s Brief at 15-16 (suggested answers and trial court’s answers 

omitted).

Appellant’s supplemental appellate brief does not include a statement of 

questions involved pursuant to Pa.R.A.P. 2116 but raises “[a] claim that the 

sentencing court misapplied the sentencing guidelines[.]” Appellant’s 

Supplemental Brief at 2.

Weight of the Evidence

Appellant first contends that the verdicts were against the weight of the 

evidence, Appellant’s Brief at 33, “because the evidence supported the 

conclusion that other individuals, never pursued by law enforcement, were 

likelier to have committed the alleged crimes.” Id. at 34. He accuses 

Leatherbury as a potential perpetrator. Id. (citing N.T. Trial at 204).

When reviewing a challenge to the weight of the evidence, we 

review the trial court’s exercise of discretion. A reversal of a 

verdict is not necessary unless it is so contrary to the evidence as 

to shock one’s sense of justice. 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. The fact-finder also has the responsibility of resolving 

contradictory testimony and questions of credibility. We give 

great deference to the trial court’s decision regarding a weight of 
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the evidence claim because it had the opportunity to hear and see 

the evidence presented.

Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super. 2019) (internal 

citations and quotation marks omitted).

Appellant challenges Leatherbury’s credibility and notes inconsistencies 

in her statements to police and trial testimony. Appellant’s Brief at 34-35

(citing N.T. Trial at 204, 233-34, 245-47). However, Leatherbury explained 

that her statements had been inconsistent, because she was ashamed and 

afraid of being labelled a “snitch.” N.T. Trial at 232, 238, 248. In any event, 

such concerns are the prerogative of the jury, as fact-finder, to resolve. 

Roane, 204 A.3d at 1001. The jurors were also made aware that Leatherbury 

had not been charged with any crimes related to the burglary and that police 

had never taken her DNA to test during this investigation, and they considered 

these facts accordingly. N.T. Trial at 246-47. Thus, Appellant’s challenge to 

the weight of the evidence fails.

Sufficiency of the Evidence

Next, Appellant challenges the sufficiency of the evidence to support all 

his convictions.

This Court’s standard for reviewing sufficiency of the evidence 

claims is as follows:

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.
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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)).

Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017) (internal 

brackets omitted).

Burglary

Appellant begins by challenging the sufficiency of the evidence to 

support his conviction for burglary. Appellant’s Brief at 37. He was convicted 

of burglary pursuant to 18 Pa.C.S. § 3502(a)(4):

A person commits the offense of burglary if, with the intent to 

commit a crime therein, the person . . . 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.

Id. (emphasis added).

Appellant argues that “[t]here was no evidence that [he] entered the 

Seibert[s’] garage with the intent to commit a crime therein. The specific 

intent requirement of burglary cannot be inferred solely from the actus reus

of entering.” Appellant’s Brief at 38. He largely relies on Commonwealth v. 

Crowson, 405 A.2d 1295 (Pa. Super. 1979), maintaining that “that the fact 
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that the defendant committed a crime within the structure was insufficient to 

prove his intent to commit a crime at the time of the entry.” Appellant’s Brief 

at 38 (citing Crowson, 405 A.2d at 1297).

However, the facts in the current action are distinguishable from those 

of Crowson. In Crowson, 405 A.2d at 1296-97, this Court found the record 

to be bereft of facts establishing intent: 

[T]here is no evidence that appellant entered the Harris residence 

surreptitiously or by force. In fact, there is no evidence at all 

regarding the manner of entry by appellant. We know nothing 

about the circumstances regarding appellant’s entry. . . . Because 

there is no evidence from which it may be inferred that appellant 

entered the Harris residence with the intent to commit a crime 

therein, the evidence is insufficient to sustain the burglary 

conviction.

By contrast, in the current appeal, there was evidence from which it may 

be inferred that Appellant entered the Seiberts’ home with the intent to 

commit a crime therein. See id. First, Appellant’s entry occurred between 

1:00 A.M. and 7:00 A.M., when the Seiberts were asleep. N.T. Trial at 101, 

127. Additionally, the Seiberts did not know Appellant nor did they allow him 

into their home or garage. Id. at 124, 133-34. Also, Appellant’s entry was 

so quiet that he did not wake either of the sleeping residents, and he 

proceeded to rummage through cabinets and a fire-proof box. Id. at 101-02, 

111, 127, 132. Finally, he had been seen exhibiting suspicious behavior 

nearby that night – i.e., looking into multiple vehicles – until he was 

interrupted by police and fled in the direction of the Seiberts’ residence Id. 

at 160, 162-63, 166-67.
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All of this evidence and all reasonable inferences drawn therefrom, when 

viewed in a light most favorable to the Commonwealth as verdict winner, 

Izurieta, 171 A.3d at 806, support the conclusion that Appellant had intended 

to commit a crime that night and had no reason to be in the Seiberts’ house 

in the middle of the night other than to commit a crime. See N.T. Trial at 

101-02, 111, 124, 127, 132-34, 160, 162-63, 166-67. Consequently, the 

Commonwealth established that he entered the building with the intent to 

commit a crime therein and thus presented sufficient evidence to support 

Appellant’s burglary conviction. 18 Pa.C.S. § 3502(a)(4).5

Criminal Trespass

Next, Appellant challenges the sufficiency of the evidence to establish 

his conviction for criminal trespass, urging this Court to find that “the 

Commonwealth failed to prove Appellant entered the Seibert[s’] home[.]” 

Appellant’s Brief at 42-43.

Appellant was convicted of criminal trespass pursuant to 18 Pa.C.S. 

§ 3503(a)(1)(i): “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[.]”

____________________________________________

5 To the extent that Appellant also challenges the sufficiency of the evidence 

to establish that he entered the building, Appellant’s Brief at 39, proof of entry 

is discussed in more detail herein pursuant to his challenge to the sufficiency 

of the evidence to establish criminal trespass.
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In the current case, there was sufficient evidence to enable the trier of 

fact to find the element of entry was established beyond a reasonable doubt. 

Id.; Izurieta, 171 A.3d at 806. The discovery of Appellant’s phone and his 

own admission establish that he was in the area of the Seiberts’ residence in 

the early morning hours of September 30, 2018. N.T. Trial at 180, 190-91, 

311-12, 319. His DNA was found on the bike straps that attached 

Ms. Seibert’s bicycle to the Seiberts’ automobile. Id. at 114-15, 281, 289, 

291. Other than Appellant being in the garage and touching those straps to 

remove the bicycle, there is no legitimate reason why Appellant’s DNA would 

be on those straps, and the forensic expert stated that DNA transfer was highly 

unlikely. Id. at 281, 289, 290. In addition, although the jury did not convict 

Appellant of burglary of the Seiberts’ residence, this verdict is irrelevant to the 

jury’s determination that Appellant had entered the Seiberts’ garage. For 

these reasons, the sufficiency of the evidence claim must fail. Izurieta, 171 

A.3d at 806.

Theft by Unlawful Taking or Disposition

Appellant likewise challenges the sufficiency of the evidence to establish 

his conviction for theft by unlawful taking or disposition, Appellant’s Brief at 

43, maintaining that “[t]he Commonwealth failed to present sufficient 

evidence that [he] took any property from the Seiberts.” Id. at 45.

Appellant was convicted of theft by unlawful taking or disposition 

pursuant to 18 Pa.C.S. § 3921(a): “A person is guilty of theft if he unlawfully 
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takes, or exercises unlawful control over, movable property of another 

with intent to deprive him thereof.” Id. (emphasis added).

Preliminarily, we note that the Commonwealth does not need to 

establish that Appellant directly took the property, only that he “exercises 

unlawful control over” it. Compare Appellant’s Brief at 45 with 18 Pa.C.S. 

§ 3921(a).

Appellant was observed on camera at Walmart with Leatherbury while 

she was in possession of the iPad; Leatherbury testified that the iPad was not 

hers but that Appellant had merely handed her the iPad to sell, as he lacked 

the required identification to make the transaction. N.T. Trial at 204, 233-34, 

245. Ergo, Appellant exercised unlawful control over the iPad.

Furthermore, the cases cited by Appellant in his brief are inapposite. 

Appellant references three cases:

In Commw[ealth] v. Keller, 378 A.2d 347, 349 (Pa. Super 1977) 

Appellant and two others were standing near a coin box and a 

laundry machine. When the complainant arrived, Appellant and 

the others jumped into a car and left the scene. Id. The 

complainant then saw that the coin box was damaged, and the 

coin box was missing from one of the cleaners. Id. However, the 

court has repeatedly stated that mere presence of an individual at 

the scene of a crime is not a sufficient circumstance upon which 

guilt may be predicated. Id. The Superior Court reversed the 

conviction because no evidence was introduced to show that the 

appellant had tampered with the coin boxes or taken anything 

from them. Id. at 349-350.

In Commw[ealth] v. Roach, 393 A.2d 1253 (Pa. Super. 1977), 

the Superior Court vacated a conviction when there was

circumstantial evidence that left open a significant possibility that

a gun-rack had been stolen not by defendant but by an unknown

person who broke into an apartment. Id. at 1256. The court
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stated that the evidence was therefore insufficient to support

conviction of theft by unlawful taking. Id.

In Interest of J.B., 189 A.3d 390, 421 (Pa. 2018) the Supreme 

Court stated that there was a reasonable inference that defendant 

was not the person . . . who fired the lethal shotgun blast which 

killed the victim and it could have been in fact another unknown 

person.

Appellant’s Brief at 43-44.

We note that the appellant in In re J.B., 189 A.3d 390 (Pa. 2018), was 

not charged with theft by unlawful taking or disposition, so that case is of 

limited value. Assuming that we can use it as guidance, we note that --

the trial evidence [in J.B.] equally supported two reasonable but 

diametrically opposed ultimate inferences: one that the 

defendant committed the murder, and the second that he did not 

commit the murder. . . . [I]n those atypical situations, our 

[Supreme] Court has consistently held that we are not bound by 

the factual findings and credibility determinations rendered by the 

finder of fact, and we are compelled in such circumstances to 

reverse a legally erroneous conviction.

Id. at 409. Nonetheless, we discern no support in the case at bar for

competing reasonable but diametrically opposed ultimate inferences, nor does

Appellant articulate what these diametrically opposed ultimate inferences

could be.

As for the remaining two cases, Appellant similarly fails to explain how 

they are analogous to his situation; simply because circumstantial evidence 

was found to be insufficient in these cases does not automatically mean that 

circumstantial evidence is always insufficient. See Commonwealth v. Quel, 

27 A.3d 1033 (Pa. Super. 2011) (circumstantial evidence was sufficient to 

support conviction for theft by unlawful taking or disposition of movable 
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property); see also Izurieta, 171 A.3d at 806 (“Commonwealth’s burden 

may be met by wholly circumstantial evidence”).

As discussed above, the evidence established more than Appellant’s 

mere presence at the scene of the crime. See Commonwealth v. Hanes, 

522 A.2d 622, 624 (Pa. Super. 1987) (finding Commonwealth v. Keller, 378 

A.2d 347 (Pa. Super 1977), which had been cited by the appellant, to be 

inapposite, where “[t]he evidence (viewed in the light most favorable to the 

Commonwealth as the verdict winner), and the reasonable inferences 

deducible therefrom, established more than appellant’s mere presence at the 

scene of the crime”). Instead, Appellant’s “exercise[ of] unlawful control over” 

the iPad, 18 Pa.C.S. § 3921(a), was established through Leatherbury’s direct 

testimony that Appellant gave her the iPad to sell, N.T. Trial at 233, not merely 

through circumstantial evidence and inferences – and the jury, as fact-finder, 

was free to believe all, part, or none of the evidence presented. Izurieta, 

171 A.3d at 806.

For these reasons, Appellant’s challenge to the sufficiency of the 

evidence to establish his conviction for theft by unlawful taking or disposition 

is meritless. See Appellant’s Brief at 43-46.

Receiving Stolen Property

Appellant’s next argument is, in its entirety:

Commonwealth must establish, beyond a reasonable doubt, that 

Appellant received or retained the moveable property of another 

knowing that it had been stolen or believing that it had probably 

been stolen. 18 Pa.C.S. § 3925(a).
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The Commonwealth failed to present sufficient evidence that 

Appellant ever received or retained any of the Seiberts’ property, 

as discussed fully above.

Appellant’s Brief at 47.

Appellant provides no citations to case law or to any other supporting 

authority for this issue; his claim is thus waived. See Kelly v. The Carman 

Corporation, 229 A.3d 634, 656 (Pa. Super. 2020) (citing Pa.R.A.P. 2119(a) 

(argument shall include citation of authorities); see also, e.g., 

Commonwealth v. Spotz, 18 A.3d 244, 281 n.21 (Pa. 2011) (without a 

“developed, reasoned, supported, or even intelligible argument[, t]he matter 

is waived for lack of development”); In re Estate of Whitley, 50 A.3d 203, 

209 (Pa. Super. 2012) (“The argument portion of an appellate brief must 

include a pertinent discussion of the particular point raised along with 

discussion and citation of pertinent authorities[; t]his Court will not consider 

the merits of an argument which fails to cite relevant case or statutory 

authority” (internal citations and quotation marks omitted)); Lackner v.

Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (explaining appellant’s 

arguments must adhere to rules of appellate procedure, and arguments which 

are not appropriately developed are waived on appeal; arguments not 

appropriately developed include those where party has failed to cite any 

authority in support of contention).6

____________________________________________

6 To the extent that this issue is preserved, it would fail for the same reasons 

that Appellant’s other sufficiency claims, discussed above, have failed.
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Loitering and Prowling at Night Time

Appellant’s final sufficiency claim challenges the evidence to establish 

his conviction for loitering and prowling at night time. Appellant’s Brief at 47. 

He asserts that “[t]he Commonwealth failed to present sufficient evidence that

[he] loitered or prowled around the Seibert[s’] home” – “[i]n fact, the officers 

testified that Appellant ran away from them in the area of [the] Seibert[s’] 

home.” Id. at 48. He continues that the Commonwealth also failed to 

establish that he “had any intent to do a wrongful act.” Id.

Appellant was convicted of loitering and prowling at night time 

(hereinafter, “Loitering”) pursuant to 18 Pa.C.S. § 5506: “Whoever at night 

time maliciously loiters or maliciously prowls around a dwelling house or any 

other place used wholly or in part for living or dwelling purposes, belonging to 

or occupied by another, is guilty of a misdemeanor of the third degree.” This 

Court also has defined several terms in Section 5506 as follows:

“Malicious”, as used in the instant statute, means an intent to do 

a wrongful act or having as its purpose injury to the privacy, 

person, or property of another. . . . To “loiter” is “to stand around 

or move slowly about; to spend time idly; to saunter; to delay; to 

linger; to lag behind”. To “prowl” is “to rove or wander over in a 

stealthy manner; to pace or roam furtively”.

Commonwealth v. Belz, 441 A.2d 410, 411 (Pa. Super. 1982) (quoting 

Commonwealth v. DeWan, 124 A.2d 139 (Pa. Super. 1956)).

In Commonwealth v. Giddings, 686 A.2d 6 (Pa. Super. 1996), 

overruled on other grounds by Commonwealth v. Clark, 746 A.2d 1128 (Pa. 

Super. 2000) (en banc), this Court concluded that evidence was sufficient to 
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support a conviction for Loitering, despite Appellant’s claim that he openly 

jumped from the victim’s porch as police arrived. Accordingly, Appellant’s 

assertion that he “ran away from [officers] in the area of” the victims’ home 

does not negate the possibility that he could have been loitering and prowling 

prior to being confronted by police. Compare Appellant’s Brief at 48 and N.T. 

Trial at 167 with Giddings, 686 A.2d 6.

Moreover, in Commonwealth v. Melnyczenko, 619 A.2d 719, 720, 

722 (Pa. Super. 1992), the requisite “maliciousness” to establish Loitering was 

proven by the testimony of a trooper who had witnessed that the appellant, 

Peter Melnyczenko, had “walked” “very cautiously” “through the back yards of 

four or five houses for approximately six or seven minutes.” This evidence of 

Melnyczenko “wandering through the yards in a stealthy manner . . . 

support[ed] the conclusion that appellant was reconnoitering the area with 

the intent to commit a burglary.” Id. at 722. In the current action, a police 

officer witnessed Appellant looking into many vehicles then moving through 

the backyards of multiple houses. N.T. Trial at 160, 162-63, 166-67. The 

officer’s testimony about Appellant’s suspicious behavior of peering into many 

vehicles is analogous to the trooper’s testimony about Melnyczenko’s “very 

cautious[]” behavior. Compare id. at 160, 162-63 with Melnyczenko, 619 

A.2d at 722. More importantly, the officer’s testimony about Appellant moving 

through the backyards of numerous houses parallels the trooper’s testimony 

that Melnyczenko walked through the backyards of numerous houses for 

several minutes. Compare N.T. Trial at 166-67 with Melnyczenko, 610 
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A.2d at 722. As the evidence in Melnyczenko, 610 A.2d at 722, was sufficient 

to establish the element of maliciousness for Loitering, similar evidence in the 

current appeal is also sufficient to establish the element of maliciousness, 

thereby contradicting Appellant’s allegation that the Commonwealth failed to 

establish that he “had any intent to do a wrongful act.” Appellant’s Brief at 

48.

We also compare the current case to Commonwealth v. Williams, 574 

A.2d 1161, 1165 (Pa. Super. 1990), in which this Court again considered 

whether the evidence presented in the matter was sufficient to establish 

Loitering. 

[The a]ppellant argue[d] that he did not loiter “around” the 

apartment building; he emphasize[d] that his activities took place 

in the parking lot outside the apartment building and were 

directed at cars in the parking lot rather than at specific rental 

units. However, in Commonwealth v. Duncan, 456 Pa. 495, 

321 A.2d 917 (1974), the Pennsylvania Supreme Court broadly 

defined the word “around” as used in section 5506 as meaning “in 

the vicinity or neighborhood.” Id. at 499, 321 A.2d at 919.[

7]

The Court further noted that the purpose of section 5506 was to 

“alleviate the danger to human life and quiet enjoyment of one’s 

dwelling which is presented by the nighttime loitering or prowling 

of malicious-minded individuals.” Id. at 499, 321 A.2d at 919. 

[The a]ppellant clearly violated both the letter and the spirit of the 

statute by entering and lurking inside a car owned by a resident 

of the apartment house that was parked about thirty-five feet 

away from the apartment house in a lot designed for use by the 

tenants.

____________________________________________

7 Hence, the Commonwealth did not even need to establish that Appellant was 

immediately outside the Seiberts’ home in order for him to be convicted of 

Loitering; he merely could have been in the environs.
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Id. In the instant action, Appellant comparably “violated both the letter and 

the spirit” of the Loitering statute, id., by peering into strangers’ vehicles, 

wandering through neighborhood backyards, and lurking in the Seiberts’ 

garage and yard. N.T. Trial at 102, 106-07, 114-15, 160, 162-63, 166-67, 

180, 281, 289, 291.

Thus, pursuant to Giddings, 686 A.2d 6, Melnyczenko, 619 A.2d at 

720, 722, and Williams, 574 A.2d at 1165, the Commonwealth presented 

sufficient evidence to establish that Appellant committed Loitering. 

Accordingly, Appellant’s final sufficient challenge is also meritless.

Sentencing

The last issue in Appellant’s initial appellate brief is a challenge to the 

discretionary aspects of his sentence. Appellant’s Brief at 49.

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to an appeal as of right. Prior to reaching the 

merits of a discretionary sentencing issue[, w]e conduct a fourpart analysis to determine: (1) whether appellant has filed a 

timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether 

the issue was properly preserved at sentencing or in a motion to 

reconsider and modify sentence, see Pa.R.Crim.P. 720; 

(3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); 

and (4) whether there is a substantial question that the sentence 

appealed from is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018) 

(quotation marks and some citations omitted), reargument denied (July 7, 

2018).
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In the current case, Appellant filed a timely notice of appeal and

preserved his issue in a post-sentence motion, and his brief contains a 

statement pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”). 

Appellant’s Brief at 31-33. The final requirement, whether the question raised 

by Appellant is a substantial question meriting our discretionary review, “must 

be evaluated on a case-by-case basis. A substantial question exists only when 

the appellant advances a colorable argument that the sentencing judge’s 

actions were either: (1) inconsistent with a specific provision of the 

Sentencing Code; or (2) contrary to the fundamental norms which underlie 

the sentencing process.” Manivannan, 186 A.3d at 489 (quotation marks 

and some citations omitted).

According to the Rule 2119(f) Statement, “[t]he sentencing court 

imposed a sentence on Appellant that was in the top of the standard range 

and run consecutively” and “did not adequately consider Appellant’s mental

health, dire financial situation, current family situation or future plans.” 

Appellant’s Brief at 32-33.

We stated in Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 

2013):

To make it clear, a defendant may raise a substantial question 

where he receives consecutive sentences within the guideline 

ranges if the case involves circumstances where the application of 

the guidelines would be clearly unreasonable, resulting in an 

excessive sentence; however, a bald claim of excessiveness due 

to the consecutive nature of a sentence will not raise a substantial 

question.
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Id. at 1270 (emphasis in original). Appellant does not contend that the 

imposition of consecutive sentences within the guideline range is clearly 

unreasonable. See Appellant’s Brief at 32. Accordingly, his argument that 

the trial court abused its discretion due to the consecutive nature of his 

sentence does not raise a substantial question. Dodge, 77 A.3d at 1270.

Additionally, this Court has held that a claim of inadequate consideration 

of mental health issues does not raise a substantial question. 

Commonwealth v. Haynes, 125 A.3d 800, 807 (Pa. Super. 2015) (citing 

Commonwealth v. Cannon, 954 A.2d 1222, 1229 (Pa. Super. 2008)). 

Appellant does not allege that the trial court was unaware of his mental health 

issues. Consequently, this claim likewise fails to present a substantial 

question for our review.

Appellant’s argument that the trial court failed to consider his other 

individual family and financial needs similarly fails to raise a substantial 

question. See Commonwealth v. Ladamus, 896 A.2d 592, 596 (Pa. Super. 

2006) (appellant’s argument that the trial court did not consider his status as 

the primary caregiver for his mother did not raise a substantial question); 

Commonwealth v. Kraft, 737 A.2d 755, 757 (Pa. Super. 1999) (appellant’s 

argument that “the sentencing court did not adequately consider her personal 

life situation as a grandmother who has to provide care for a small child” did 

not raise a substantial question such as to permit appellate review of the 

discretionary aspects of her sentence).
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Moreover, although the Rule 2119(f) Statement does not specify what 

Appellant’s “future plans” may be, Appellant’s Brief at 33, we believe that such 

an assertion would also be considered a “personal life situation[.]” Kraft, 737 

A.2d at 757.8 The trial court’s alleged failure to consider these future plans 

consequently would not raise a substantial question such as to permit our 

review of the discretionary aspects of Appellant’s sentence. Id.

Thus, Appellant’s initial brief has failed to “advance[] a colorable 

argument” that a substantial question exists and hence failed to preserve any 

of the challenges to the discretionary aspects of his sentence raised therein. 

Manivannan, 186 A.3d at 489.

The new challenge raised in Appellant’s supplemental brief is that the 

trial court miscalculated his prior record score (“PRS”). Appellant’s 

Supplemental Brief at 3-4. The Commonwealth does not oppose vacating 

Appellant’s judgment of sentence, due to this incorrect PRS, and remanding 

for resentencing. Commonwealth’s Brief at 20. However, we cannot reach 

this claim.

Preliminarily, we note that Appellant did not include a statement of 

questions involved pursuant to Pa.R.A.P. 2116 in his supplemental brief. We 

could find his novel claim raised therein waived for this reason alone. 

____________________________________________

8 “[W]e cannot look beyond the statement of questions presented and the 

prefatory 2119(f) statement to determine whether a substantial question 

exists.” Commonwealth v. Diehl, 140 A.3d 34, 45 (Pa. Super. 2016). Thus, 

we cannot look at Appellant’s post-sentence motion or the argument sections 

of his initial appellate brief to provide us with more details about his future 

plans.
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Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the 

statement of questions involved or is fairly suggested thereby.”).

More importantly, a challenge to the calculation of a PRS is a challenge 

to the discretionary aspects of sentencing, not the legality of the sentence. 

See Commonwealth v. Medley, 725 A.2d 1225, 1228 (Pa. Super. 1999) 

(“[a]ppellant’s claim that the lower court erred when calculating his prior

record score presents a substantial question that the lower court abused its 

discretion at the time of sentencing”); see also Commonwealth v. Cook, 

941 A.2d 7, 11 (Pa. Super. 2007) (“A claim that the sentencing court 

misapplied the Sentencing Guidelines presents a substantial question.”); cf. 

Commonwealth v. Archer, 722 A.2d 203, 211 (Pa. Super. 1998) (allegation 

that trial court miscalculated offense gravity score presents a “legal question,” 

not appealable as of right, but appealable because it raises a substantial 

question regarding the discretionary aspects of sentence). Thus, Appellant 

would have had to have raised the claim before the trial court in order to 

preserve it, which he did not do. Manivannan, 186 A.3d at 489 (in order to 

reach the merits of a discretionary issue, this Court must first determine, inter 

alia, “whether the issue was properly preserved at sentencing or in a motion 

to reconsider and modify sentence, see Pa.R.Crim.P. 720”); see Pa.R.A.P. 

302(a) (“Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.”); Post Sentence Motions, 12/30/2019, at 2-3 
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¶¶ 9-11.

9

 Accordingly, Appellant’s sentencing claim based upon a challenge 

to his PRS was waived, and we cannot reach it in this appeal.

* * *

Based on the foregoing, Appellant is not entitled to relief. We therefore 

affirm his judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/24/2020

____________________________________________

9

In addition, as a challenge to a PRS is a challenge to the discretionary aspects 

of sentencing and not to the legality of the sentence, we cannot raise the issue 

sua sponte, either. See Commonwealth v. Randal, 837 A.2d 1211, 1214 

(Pa. Super. 2003) (en banc) (“challenges to an illegal sentence can never be 

waived and may be reviewed sua sponte by this Court” (some formatting)).