J-S15002-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JESSE PAUL KINDER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 693 WDA 2019

Appeal from the Judgment Entered January 24, 2019

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

No(s): CP-20-CR-0000314-2018

COMMONWEALTH OF PENNSYLVANIA

v.

JESSE PAUL KINDER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 694 WDA 2019

Appeal from the Judgment of Sentence Entered March 29, 2019

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

No(s): CP-20-CR-0000314-2018

COMMONWEALTH OF PENNSYLVANIA

v.

JESSE PAUL KINDER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 695 WDA 2019

Appeal from the Judgment of Sentence Entered March 29, 2019

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

No(s): CP-20-CR-0000306-2018

COMMONWEALTH OF PENNSYLVANIA :

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA
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v.

JESSE PAUL KINDER 

Appellant

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: No. 696 WDA 2019

Appeal from the Judgment Entered January 24, 2019

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

No(s): CP-20-CR-0000306-2018

BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 2, 2020

In these consolidated cases, Jesse Paul Kinder (Appellant) appeals from 

the aggregate judgment of sentence of 10 to 20 years’ incarceration, imposed 

after he was convicted in two separate cases, following a consolidated nonjury trial, of offenses stemming from his burglarizing two businesses in 

Crawford County, Pennsylvania. Appellant challenges the sufficiency of the 

evidence to sustain his convictions, as well as the sentence imposed by the 

court. After careful review, we quash Appellant’s appeals in cases 693 WDA 

2019 and 696 WDA 2019; we affirm his judgment of sentence in case 695 

WDA 2019 (hereinafter “the Hite case”); and we vacate his judgment of 

sentence in case 694 WDA 2019 (hereinafter “the Bucket of Suds case”) and 

remand for resentencing.

Hite Case Facts & Procedural History

____________________________________________

* Former Justice specially assigned to the Superior Court.
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In the Hite case (695 WDA 2019 and 696 WDA 2019), the trial court 

summarized the facts, as follows:

The Hite Company is an electric distributor located on ... 

Baldwin Street Park Road.[1] Bruce Ridgeway, its manager, on 

entering a side man [sic] door of the premises on the morning of 

March 12, 2018, discovered that the safe, located in the office at 

the back of the store, had been pried open and its contents 

scattered on the floor. A window in the back door also [had] been 

smashed, and “a whole bunch of Milwaukee tools that were 

hanging on the wall behind the counter ... were all gone.” N.T.

[Trial], 1/24/19 (1:15), at 10. A security camera located behind 

the service counter recorded the presence, at around 2 a.m. that 

morning, of an individual dressed in dark clothing with some sort 

of lighter face mask and a head lamp, wearing patterned gloves 

and carrying a crowbar. A camera located outside above the 

store’s loading dock also recorded the movements of an individual 

at this time, and the apparent loading of a vehicle that pulled up 

and later drove off.

Mitchell Parker of the Meadville City Police Department, 

responding to Bruce Ridgeway’s 911 call, found there was also 

damage to the coinage portion of a beverage vending machine 

located inside the store. Lying on the floor was an inventory tag 

for a Klein backpack that was also missing. Officer Parker noticed 

that yellow paint had been transferred onto the safe when it was 

pried open, and onto an office filing cabinet that had also been 

damaged.

____________________________________________

1 The court stated that its factual summary is 

based upon the credible testimony of the Commonwealth’s 

five witnesses and the twenty-eight photographs, inventory, 

cost estimates, and DVD (surveillance videos) admitted 

without objection (except for Commonwealth’s Exhibit 24..., 

the objection to which was overruled). [Appellant], who was 

unrepresented but assisted by standby counsel, did not offer 

any testimony or other evidence. A summary of this 

[c]ourt’s factual findings was also placed on the record. N.T.

[Trial], 1/24/19 (3:25 p.m., after recess), [at] 30-39.

Trial Court Opinion (TCO I), 6/11/19, at 2 n.7.
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Within a week thereafter, [Appellant] was arrested at the 

Bucket of Suds car wash in Saegertown for burglary. Evidence 

collected there included two pry bars, a new Milwaukee tool 

grinder, battery packs for the grinder, a Klein camouflagedcolored backpack, and a head lamp. The backpack was of the type 

stolen from the Hite Company, and the grinder bore the same 

model number as the missing one. Yellow paint found on the Hite 

Company safe tested consistent visually, microscopically, and 

instrumentally with the yellow paint on the smaller crowbar. The 

clothing [Appellant] was wearing included black gray-patterned 

gloves, black sweatpants, lighter blue cut-off[s] of some sort, and 

[a] black hooded sweatshirt with a white and green football logo 

on the left breast. The logo patch appears to match the one visible 

on the chest of the Hite Company intruder, whose physique 

matches that of [Appellant].

TCO I at 2-4 (footnotes omitted).

At the close of Appellant’s non-jury trial on January 24, 2019, the court 

convicted him in the Hite case of burglary, criminal trespass, theft by unlawful

taking, and criminal mischief. On March 29, 2019, the court sentenced him 

to an aggregate term of 36 to 72 months’ incarceration. Appellant did not file 

a post-sentence motion. 

On April 29, 2019, Appellant filed two, pro se notices of appeal in this 

case.2 In the appeal docketed by this Court at 695 WDA 2019, Appellant 

appealed from his March 29, 2019 judgment of sentence. In the appeal 

docketed at 696 WDA 2019, Appellant appealed from the court’s verdict 

entered on January 24, 2019. As Appellant’s appeal properly stems from his 

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2 On June 4, 2019, the trial court issued an order stating that, following a

hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), it 

was granting Appellant’s request to proceed pro se on appeal. However, the 

attorney who acted as Appellant’s stand-by counsel at trial thereafter filed a 

brief on Appellant’s behalf.
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judgment of sentence, rather than the court’s verdict, we hereby quash 

Appellant’s duplicative appeal at 696 WDA 2019. Commonwealth v. 

Neitzel, 678 A.2d 369, 370 n.1 (Pa. Super. 1996) (concluding that Neitzel 

erred by characterizing his appeal as stemming from an order where “a direct 

appeal following the entry of the verdict and imposition of sentence is an 

appeal from the judgment of sentence”) (citation omitted).

Bucket of Suds Case Facts & Procedural History

In the cases docketed at 693 WDA 2019 and 694 WDA 2019, the trial 

court summarized the facts, as follows:

Kevin Byers, in the early morning hours of March 19, 2018, 

could not sleep, and so was sitting in his upstairs living room.[3]

He heard banging, and looking out his window, saw “two people 

trying to bang through the door” to the Bucket of Suds, a manual 

car wash located adjacent to his residence in Saegertown. N.T.

[Trial] ... at 7.... He called the Pennsylvania State Police (PSP), the 

borough manager, and Philip A. Koon, owner of the Bucket of 

Suds, to report this. Seeing one of the two people run down the 

back alley, he dressed and went to investigate, and found the door 

to the car wash office had been kicked in. He was about to enter 

when he heard grinding noises, and realized that someone was 

inside. Trooper Cody Northcott of the PSP, who arrived at about 

____________________________________________

3 The trial court stated that its factual summary is

based upon the credible testimony of the Commonwealth’s four 

witnesses, three photographs (admitted without objection), and 

[a] CD of recorded telephone calls (admitted over [Appellant’s]

objection). [Appellant], who was unrepresented but assisted by 

standby counsel, did not offer any testimony or other evidence. A 

summary of this [c]ourt’s factual findings was also placed on the 

record. N.T [Trial at] 94-99.

Trial Court Opinion (TCO II), 6/11/19, at 2 n.8.
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2 a.m. with Trooper Zachary Kosko, talked with Mr. Byers, 

observed the damaged door, and also heard grinding noises. He 

and Trooper Kosko entered the office by pushing the door in, 

finding [Appellant] with a Milwaukee grinder tool within arms’

reach. [Appellant] was immediately arrested. Also found inside 

the office (which was in disarray) were battery packs for the 

grinder, two pry bars, and a Klein backpack, none of which 

belonged to Mr. Koon. Inside the backpack were some lottery 

tickets and coins totaling $203.16, which had previously been on 

Mr. Koon’s desk. Dust had fallen from a coin machine, which bore 

grinding marks.

A woman identified as [Maegan] Duda, who had been 

observed driving past the car wash and subjected to a traffic stop, 

returned and asked whether she should be on the lookout for 

anyone. [Appellant] later, at the correctional facility, placed two 

recorded calls to Duda’s telephone number in which he expressed

regret that he had not left sooner (“I should have just took what 

I had and left. It was like $300.”), and surprise at being caught at 

2 a.m. (“like the entire neighborhood was out”). Id. at 57...; [id.

at] 70.... The woman he spoke with stated that she had been 

“pulled over in Saegertown that night because they [we]re looking 

for a second person.” Id. at 63....

[4]

TCO II at 2-3 (footnotes omitted).

Following a non-jury trial, the court convicted Appellant in the Bucket of 

Suds case of burglary, criminal trespass, theft by unlawful taking, and 

receiving stolen property. On March 29, 2019, the court sentenced him to an 

aggregate term of 84 to 168 months’ incarceration, to run consecutive to his 

sentence in the Hite case. Appellant did not file a post-sentence motion. 

On April 29, 2019, Appellant filed two, pro se notices of appeal in this 

case. In the appeal docketed by this Court at 694 WDA 2019, Appellant 

appealed from his March 29, 2019 judgment of sentence. In the appeal 

____________________________________________

4 Duda ultimately pled guilty to conspiring with Appellant to commit the 

burglary of the Bucket of Suds car wash. See TCO II at 2.
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docketed at 693 WDA 2019, Appellant appealed from the court’s verdict 

entered on January 24, 2019. As Appellant’s appeal properly stems from his 

judgment of sentence, rather than the court’s verdict, we hereby quash 

Appellant’s duplicative appeal at 693 WDA 2019. See Neitzel, supra.

Consolidated Issues

In both cases, the trial court ordered Appellant to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. However, prior 

to the entry of that order, Appellant had already filed pro se concise 

statements in each case on April 22, 2019, which are labeled as “pro se 

correspondence” on the dockets. After the court’s Rule 1925(b) order, 

Appellant timely served the court with his pro se Rule 1925(b) statements on 

May 16, 2019, and he also sent copies of the statements to the Court 

Administrator. See TCO I at 1 n.2; TCO II at 1 n.2. While Appellant did not 

re-file his concise statements, we do not consider his claims waived, as his 

Rule 1925(b) statements were filed in each case on April 22, 2019. On June 

4, 2019, the court issued its Rule 1925(a) opinions.

We now review the following four issues that Appellant states on appeal:

I. Whether the grading for [Appellant’s] conviction for criminal 

mischief, [a] felony [of the] third degree, [in the Bucket of Suds 

case], should be corrected to reflect grading as a misdemeanor of 

the second degree?

II. Whether the trial court erred in imposing separate sentences 

for [Appellant’s] burglary and criminal trespass convictions [in] 

both [the Hite case] and [the Bucket of Suds case], based on the 

doctrine of merger?
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III. Whether the trial court improperly based its guilty verdicts [in 

the Hite case] on [Appellant’s] possession of certain items after 

previously determining that [Appellant] did not possess these 

items during disposition of a pre-trial suppression motion?

IV. Whether the evidence [in the Hite case] was insufficient to 

sustain [Appellant’s] convictions?

Appellant’s Brief at 6 (unnecessary capitalization omitted).

In Appellant’s first issue, he challenges the legality of his sentence for 

criminal mischief in the Bucket of Suds case, contending that the grading of 

that offense was incorrect. See Commonwealth v. Aiken, 139 A.3d 244, 

245 (Pa. Super. 2016) (“[T]he proper grading of an offense pertains to the 

legality of the sentence.”). We agree. Under 18 Pa.C.S. § 3304(b), criminal 

mischief is graded as a misdemeanor of the second degree if the pecuniary 

loss caused is more than $1,000, but less than $5,000. The trial court and 

the Commonwealth both concede that under this provision, Appellant’s 

criminal mischief conviction should have been graded as a misdemeanor of 

the second degree, as the amount of damage he caused was $3,280.29. See 

TCO II at 12; Commonwealth’s Brief at 14-15. Therefore, we vacate 

Appellant’s judgment of sentence in the Bucket of Suds case (694 WDA 2019) 

and remand for resentencing. See Commonwealth v. Thur, 906 A.2d 552, 

569-70 (Pa. Super. 2006) (stating that if our disposition upsets the overall 

sentencing scheme of the trial court, we must remand so that the court can 

restructure its sentencing plan).
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In Appellant’s second issue, he argues that his sentences for burglary 

and criminal trespass in both the Hite case and the Bucket of Suds case are 

illegal because those convictions should have merged for sentencing purposes. 

In support, he relies on our Supreme Court’s plurality decision in 

Commonwealth v. Jones, 912 A.2d 815 (Pa. 2006), where the Court 

concluded that burglary and criminal trespass could merge for sentencing 

purposes when a defendant is convicted under a single set of facts that satisfy 

both offenses. However, Appellant disregards that 

[j]ust three years [after Jones], our Supreme Court revisited its 

approach to merger. See Commonwealth v. Baldwin, 604 Pa. 

34, 985 A.2d 830 (2009). In a majority decision, Baldwin ... held 

the plain language of [42 Pa.C.S. §] 9765 reveals a legislative 

intent “to preclude the courts of this Commonwealth from merging 

sentences for two offenses that are based on a single criminal act 

unless all of the statutory elements of one of the offenses are 

included in the statutory elements of the other.” Id. at 45, 985 

A.2d at 837. Baldwin rejected the “practical, hybrid approach” 

advocated in the lead Jones plurality opinion. Id. at 42, 912 

A.2d at 835. Instead, Baldwin held that when each offense 

contains an element the other does not, merger is inappropriate. 

Id. at 45, 985 A.2d at 837.

Commonwealth v. Quintua, 56 A.3d 399, 401 (Pa. Super. 2012). 

In Quintua, we recognized that, “notwithstanding the plurality’s 

conclusion in Jones regarding merger of criminal trespass and burglary, the 

current state of merger law in Pennsylvania makes clear there is no merger if 

each offense requires proof of an element the other does not.” Id. (citations 

omitted). The Quintua panel then explained:

Examining the elements of criminal trespass, a conviction for that 

offense requires a person: (1) to break or enter into with 
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subterfuge any building or occupied structure; (2) knowing he is 

not licensed or privileged to do so. See 18 Pa.C.S.[] § 

3503(a)(1). On the other hand, to commit burglary, a person 

must: (1) enter a building or occupied structure; (2) with intent 

to commit a crime therein. See 18 Pa.C.S.[] § 3502(a). The plain 

language of the respective statutes demonstrates why they do not 

merge. Criminal trespass contains an element of knowledge—a 

person committing that offense must know he is not privileged to 

enter the premises. Burglary has no such knowledge requirement. 

Burglary does, however, require intent to commit a crime within 

the premises, an element that criminal trespass lacks. As each 

offense requires proof of an element the other does not, the 

sentences should not merge. See Jones, supra at 376, 912 A.2d 

at 827 (Newman, J., dissenting) (stating: “[N]ot every burglary is 

a criminal trespass, and vice versa.”).

Id. at 402.

Based on our discussion and holding in Quintua, it is clear that 

Appellant’s argument premised on Jones is meritless. His sentences for 

burglary and criminal trespass do not merge. 

Appellant’s next two claims challenge the sufficiency of the evidence to 

sustain his convictions in the Hite case. To begin, we note our standard of 

review:

In reviewing a sufficiency of the evidence claim, we must 

determine whether the evidence admitted at trial, as well as all

reasonable inferences drawn therefrom, when viewed in the light 

most favorable to the verdict winner, are sufficient to support all 

elements of the offense. Commonwealth v. Moreno, 14 A.3d 

133 (Pa. Super. 2011). Additionally, we may not reweigh the 

evidence or substitute our own judgment for that of the fact 

finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 

2009). The evidence may be entirely circumstantial as long as it 

links the accused to the crime beyond a reasonable doubt. 

Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
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In his third issue, Appellant contends that the trial court impermissibly 

based its identification of him as the perpetrator of the Hite Company breakin based on his possession of certain items — namely, the “Milwaukee grinder, 

battery packs, a Klein back pack, and two crow bars” — that were found in 

the Bucket of Suds office with Appellant when he was arrested one week later. 

Appellant’s Brief at 20. He argues that the court’s finding that he possessed 

these items contradicted its prior ruling on his pre-trial motion to suppress, in 

which the court stated that,

[t]here was no seizure of any of [Appellant’s] property[,] other 

than I gather his clothing after he was arrested and 

incarcerated[,] and that seizure was a consequence of a warrant. 

So I’m not here to even address that. The physical items were 

not — they did not belong to [Appellant], so there is not a seizure 

issue.

Id. at 21 (quoting N.T. Suppression Hearing, 12/3/18, at 35). Appellant 

insists that if the court found he did not own the at-issue items, it follows that 

he also did not possess them. Id. Therefore, he claims that, under the legal 

concept of “judicial estoppel,” the court “was bound to disassociate these 

items with [Appellant’s] possession.” Id. 

Appellant’s argument is meritless. The trial court never ruled that 

Appellant did not possess the at-issue items during the suppression hearing; 

instead, it simply stated that the items did not belong to him. See TCO I at 

4 (citing N.T. Suppression Hearing at 35). The Commonwealth observes, and

we agree, that “possession and ownership can be mutually exclusive. One 

need not own an item to possess it.” Commonwealth’s Brief at 19. Therefore, 
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even if the trial court ruled that Appellant did not own the items for 

suppression purposes, it was not bound to conclude that he did not possess 

those items in determining his guilt. Appellant’s third issue is meritless.

Finally, Appellant claims that the evidence was insufficient to prove that 

he was the person who robbed the Hite Company. He stresses that the 

Commonwealth had only circumstantial proof of his identity, namely 

“surveillance video showing the perpetrator’s generic clothing and alleged 

possession [of] several generic tools of the same brand as were missing from 

the [Hite Company,] and a paint sample taken from one of the tools matching 

a paint transfer found on the safe.” Appellant’s Brief at 22. Appellant insists 

that this evidence was inadequate to prove that he was the perpetrator in the 

Hite case.

We are unconvinced. As the Commonwealth explains, it

elicited testimony from Bruce Ridgeway, the employee of the Hite 

Company, about the incident at his store on or about March 11-

12, 2018. He testified as to the damage he observed when he 

arrived at the store. He noted a number of items that had been 

stolen, including Milwaukee tools and a camouflage Klein 

backpack. He testified that there was a broken window, damage 

to a Coke machine and damage to a safe. In addition to that direct 

evidence, the Commonwealth introduced photographs of the 

damaged areas and a surveillance video that caught the 

perpetrator inside and outside the building.

The surveillance video showed the perpetrator wearing dark 

clothing, specifically gloves, dark pants, a hoodie with a light 

colored logo on the left chest area and a mask. At trial, the 

Commonwealth introduce[d] evidence that Appellant, when 

arrested at the Bucket of Suds car wash, was wearing similar 

clothing and was actually booked into the jail with that clothing.
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The Commonwealth also introduced items recovered at the 

Bucket of Suds break in, specifically a Milwaukee grinder, batteries 

and a pry bar with yellow paint. The Milwaukee grinder and 

batteries were shown to be the same make and model as those 

stolen from the Hite Company. The[] yellow paint from the pry 

bar was found to be visually, microscopically, and instrumentally 

consistent with the yellow paint found on the Hite Company break 

in.

Commonwealth’s Brief at 21-22. 

We agree with the Commonwealth that this evidence, albeit 

circumstantial, was sufficient to prove, beyond a reasonable doubt, that 

Appellant was the perpetrator of the burglar at The Hite Company. See Koch, 

39 A.2d at 1001 (stating that “[t]he evidence may be entirely circumstantial 

as long as it links the accused to the crime beyond a reasonable doubt”)

(citation omitted); see also Commonwealth v. Feliciano, 67 A.3d 19, 23 

(Pa. Super. 2013) (“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.” ) (citation omitted). Accordingly, Appellant’s challenge to the 

sufficiency of the evidence to sustain his convictions in the Hite case is 

meritless.

Appeals at 693 WDA 2019 and 696 WDA 2019 quashed. Judgment of 

sentence in 694 WDA 2019 vacated and case remanded for resentencing. 

Judgment of sentence in 695 WDA 2019 affirmed. Superior Court 
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Prothonotary is directed to return the certified record to the trial court. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/2/2020