J-S11011-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CORY JACKSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1611 EDA 2022

Appeal from the Judgment of Sentence Entered May 6, 2022

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

No(s): CP-51-CR-0008863-2019

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED JUNE 07, 2023

Appellant, Cory Jackson, appeals from the judgment of sentence 

entered on May 6, 2022, as made final by the denial of Appellant’s 

post-sentence motion on May 20, 2022. We affirm.

The trial court ably summarized the underlying facts of this case:

At trial, the Commonwealth presented the testimony of [D.W. 

(hereinafter “the Complainant”), E.P., and K.B.]. Viewed in 

the light most favorable to the Commonwealth as the verdict 

winner, the evidence established the following.

During the summer of 2019, [Appellant] lived a block away 

from the house of [the Complainant]. Prior to August of that 

year, [the Complainant] barely knew [Appellant’s] first name 

and considered him to be a mere acquaintance from the 

neighborhood. However, [the Complainant] eventually came 

to have interactions with [Appellant] that left her feeling 

increasingly uncomfortable. 

During one evening in August [] 2019 at approximately 10:00 

p.m., [Appellant] came up onto the front porch of [the 

Complainant’s] house and rang the doorbell. After [the 
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Complainant] answered the door, [Appellant] told her he 

needed a place to sleep and asked if he could come in and 

sleep on her couch. Shocked and confused, [the 

Complainant], who was home alone at the time, responded 

that [Appellant] could not come inside. She told him that he 

should go home and then shut the door. Later that month, 

[Appellant] came up onto [the Complainant’s] porch again 

and told her that he saw someone on her porch and had 

scared them away. [The Complainant] felt uncomfortable 

with [Appellant] on her porch, where he could look directly 

through windows into the home's living room. On other 

occasions while riding his bicycle, [Appellant] again relayed 

to [the Complainant] that he saw someone on her porch. 

During these encounters, [the Complainant] told [Appellant]

at least twice that he was not allowed to be on her porch. 

By October of 2019, [the Complainant’s] roommate, [E.P], 

had returned to their home after having been away for the 

summer. On October 2, 2019, at about 10:00 or 10:30 p.m., 

[E.P.] rode her bicycle home and noticed [Appellant] walking 

slowly down the block. As [E.P.] walked up to the home's 

front door, [Appellant] came up to the doorstep and started 

a conversation with [E.P.], which lasted for about 10 minutes. 

Eventually, [E.P.] stated that she was sweaty from the gym 

and needed to go inside. [Appellant] then began making 

comments about “air drying when you take a shower” and 

about being nude. [E.P.] told [Appellant] she was feeling a 

little uncomfortable and was going to go inside. After 

entering the home, [E.P.] sent a text message to [the 

Complainant] regarding her interaction with [Appellant]. 

Later that same night, at approximately 2:00 a.m., [the 

Complainant] was in her second-floor bedroom with the light 

on when she heard what sounded like something being 

thrown at her window. Startled, she went downstairs and 

looked out her kitchen window into an outside area directly 

below her bedroom window. There, she saw [Appellant]

throwing rocks at her window. Already upset from [E.P.’s]

earlier text message about [Appellant’s] comments to [E.P.], 

[the Complainant] began yelling at [Appellant]. She yelled 

that [Appellant] should not be throwing rocks at their window 

or be on their porch, and that he needed to go away and 

leave them alone. [Appellant] backed away and began 

walking down the street. 
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[The Complainant] then checked to make sure all the house's 

doors and windows were locked. After realizing that she had 

left her cellphone in her car, she went upstairs to wake up 

[E.P.] so that she could use [E.P.’s] cellphone. When [the 

Complainant] went back downstairs, she noticed her cat 

looking out onto the porch through the front window. [The 

Complainant] looked through the same window and saw 

[Appellant] outside. She went to the front door, looked

through its peephole, and saw [Appellant] walk up the steps 

to the door. [The Complainant] then observed the door 

handle jiggling for a few seconds as [Appellant] tried to open 

the front door. After his unsuccessful attempt to open the 

door, [Appellant] walked back down the steps and across the 

street into a well-lit area. [The Complainant] saw his head 

poking out from behind a car across the street, and then 

[Appellant] came out from behind the car while masturbating 

with his penis in his hand. He continued to masturbate as he 

walked back towards [the Complainant’s] home and then 

stood at the side of her house. He pulled his pants down to 

his ankles and masturbated for five more minutes while 

looking at the house. [The Complainant] called 911. 

Multiple police cars eventually arrived in response to [the 

Complainant’s] 911 call, but [Appellant] had already [run

away] by that point. The police circled the block a few times 

before leaving. After the police left, [the Complainant] began 

hearing more rocks being thrown at her bedroom window. 

She then went back downstairs and saw [Appellant] throwing 

rocks again. She called the police a second time, but before 

another police car arrived, [Appellant] had left again. While 

police officers were still at the house, [Appellant] walked back 

up the street. One of the officers then pursued and arrested 

him. 

At trial, the Commonwealth also presented evidence of prior 

bad acts pursuant to Pennsylvania Rule of Evidence 404(b) 

through the testimony of [K.B.]. The evidence established 

the following. 

In June [] 2018, after being dropped off near her home at 

night, [K.B.] saw [Appellant] walking down the street. 

[Appellant] began yelling things at her. When [K.B.]

continued walking towards her home, [Appellant] turned and 
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began following her. [K.B.] then ran to her house, opened 

the door, and got inside. As soon as [K.B.] shut the door, 

[Appellant] was on the other side of the door, turning the 

door handle and trying to get inside. He then went over to 

the living room window and began banging on it and looking 

into the house. A few moments later, [K.B.’s] roommate and 

her roommate's boyfriend arrived at the home. [Appellant]

moved away from the house as they approached. [K.B.] then 

opened the door to let them in. While [K.B.] was standing in 

the doorway, [Appellant] ran up, slapped [K.B.’s] buttocks, 

and then grabbed her buttocks before running away. On June 

25, 2019, [Appellant] pled guilty to charges of indecent 

assault and harassment for the incident involving [K.B.].

[fn.1]

[fn.1] At trial, the parties also stipulated that [Appellant] 

has a prior conviction for stalking from 2014, which was 

also introduced by the Commonwealth pursuant to 

Pennsylvania Rule of Evidence 404(b).

Trial Court Opinion, 9/2/22, at 2-5 (citations omitted).

Following a bench trial, the trial court found Appellant guilty of 

attempted burglary and indecent exposure and, on May 6, 2022, the trial court 

sentenced Appellant to serve 42 to 84 months in prison, followed by five years 

of probation, for his attempted burglary conviction and to serve a concurrent 

term of nine to 18 months in prison for his indecent exposure conviction. After 

the trial court denied Appellant’s post-sentence motion, Appellant filed a 

timely notice of appeal. Appellant raises two claims on this appeal:

1. Does the trial record contain sufficient evidence for the 

conviction of attempted burglary?

2. Was the sentence of 42-84 [months’] incarceration plus 

five years of probation an abuse of the sentencing court’s 

discretion?

Appellant’s Brief at 4 (some capitalization omitted).
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Appellant first claims that the evidence was insufficient to support his 

attempted burglary conviction. We review Appellant’s sufficiency of the 

evidence challenge under the following standard:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial 

in the light most favorable to the verdict winner, there is 

sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In applying 

the above test, we may not weigh the evidence and substitute 

our judgment for [that of] the fact-finder. In addition, we 

note that the facts and 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 as a matter of law no probability of fact 

may be drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proving every 

element of the crime beyond a reasonable doubt by means 

of wholly circumstantial evidence. Moreover, in applying the 

above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to believe 

all, part or none of the evidence.

Commonwealth v. Callen, 198 A.3d 1149, 1167 (Pa. Super. 2018) (citations 

and quotation marks omitted).

As is relevant to the case at bar, the offense of burglary is defined in 

the following manner:

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

burglary if, with the intent to commit a crime therein, the 

person:

(1)(i) enters a building or occupied structure, or 

separately secured or occupied portion thereof, that is 

adapted for overnight accommodations in which at the 
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time of the offense any person is present and the person 

commits, attempts or threatens to commit a bodily injury 

crime therein;

. . .

(e) Definitions.--As used in this section, the following words 

and phrases shall have the meanings given to them in this 

subsection:

“Bodily injury crime.” As follows:

(1) An act, attempt or threat to commit an act which 

would constitute a misdemeanor or felony under the 

following:

. . .

Chapter 31 (relating to sexual offenses).

. . .

18 Pa.C.S.A. § 3502 (effective from January 3, 2017 to September 8, 2022). 

“A person commits an attempt when, with intent to commit a specific crime, 

he does any act which constitutes a substantial step toward the commission 

of that crime.” 18 Pa.C.S.A. § 901(a).

On appeal, Appellant claims that the evidence was insufficient to support 

his attempted burglary conviction because, “[f]rom the evidence in the 

record[,] it cannot be established beyond a reasonable doubt that [Appellant] 

intended to enter the home.” Appellant’s Brief at 6. Instead, Appellant 

argues, the evidence merely established that Appellant was “trying to get the 

attention of [the Complainant] to get her to come to the window or the door.” 

Id. at 6-7. Appellant’s claim fails.
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Viewing the evidence in the light most favorable to the Commonwealth, 

the evidence was clearly sufficient to prove that Appellant intended to enter 

the Complainant’s home. Certainly, the evidence established that, at 

approximately 2:00 a.m. on October 2, 2019, Appellant was throwing rocks 

at the Complainant’s bedroom window. The Complainant testified that, in 

response, she angrily “yelled at [Appellant] and said this needs to stop, you 

shouldn’t be throwing rocks at our window, you shouldn’t be on our porch. 

You need to go away. Leave us alone, hop off.” N.T. Trial, 3/4/22, at 34. 

The Complainant testified that Appellant then “backed away into the street.” 

Id. at 35. However, as the Complainant testified, after she woke her 

roommate, she saw Appellant “walk up the steps [of their house and] . . .

tr[ied] to open the door.” Id. Specifically, the Complainant testified, 

Appellant “walk[ed] up the steps onto [the Complainant’s porch and] jiggle[d

the] door handle [for] . . . two seconds” in an attempt “to open the door.” Id.

at 51.

Within Appellant’s brief to this Court, Appellant claims that his actions 

constituted a mere attempt “to get the attention of [the Complainant]” – and 

not an attempt to enter the home. Appellant’s Brief at 6-7. Appellant's 

argument is contingent upon this Court viewing the evidence in a light most 

favorable to him. This we will not do. Rather, as explained above, our 

standard of review requires that we view the evidence “in the light most 

favorable to the Commonwealth, as the verdict winner, and [] draw all 

reasonable inferences in favor of the Commonwealth.” Commonwealth v. 
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Brown, 52 A.3d 1139, 1164 (Pa. 2012) (quotation marks and citations 

omitted).

Viewed in the proper light, the evidence does not support Appellant's 

self-serving version of the events. Instead, and consistent with the express 

testimony of the Complainant, the evidence establishes that, when Appellant 

“jiggle[d the Complainant’s] door handle [for] . . . two seconds,” Appellant 

was “try[ing] to open the door” to the Complainant’s home. Indeed, had the 

Complainant’s door been unlocked, Appellant would have gained entry to the 

Complainant’s house. Appellant’s first claim on appeal thus fails.

Next, Appellant claims that the trial court abused its discretion at 

sentencing. “[S]entencing is a matter vested in the sound discretion of the 

sentencing judge, whose judgment will not be disturbed absent an abuse of 

discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 

2001). Pursuant to statute, Appellant does not have an automatic right to 

appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). 

Instead, Appellant must petition this Court for permission to appeal the 

discretionary aspects of his sentence. Id.

As this Court explained:

[t]o reach the merits of a discretionary sentencing issue, we 

conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 

903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, 

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 
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appropriate under the Sentencing Code, [42 Pa.C.S.A.] 

§ 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

On appeal, Appellant claims that the trial court abused its discretion 

when it imposed his sentence for attempted burglary, as the term of 42 to 84 

months in prison was “at the very top of the aggravated range [and] does not 

take any mitigating facts into account.” Appellant’s Brief at 8. Appellant has 

waived his discretionary aspects of sentencing claim because he failed to 

include a Pennsylvania Rule of Appellate Procedure 2119(f) statement in his 

brief and the Commonwealth objected to the omission. Commonwealth's Brief 

at 11–12; Commonwealth v. Faulk, 928 A.2d 1061, 1071–1072 (Pa. Super. 

2007) (“[t]o be reviewed on the merits, a challenge to the discretionary 

aspects of sentence must raise a substantial question that the sentence 

imposed is not appropriate. A substantial question is raised when the 

appellant advances a colorable argument that the sentence was either 

inconsistent with a specific provision of the Sentencing Code or contrary to 

the fundamental norms which underlie the sentencing process. This Court 

determines whether an appellant has raised a substantial question by 

examination of the appellant's concise statement of the reasons relied upon 

for allowance of appeal, which must be included in the appellant's brief, 

pursuant to Pennsylvania Rule of Appellate Procedure 2119(f). If a Rule 

2119(f) statement is not included in the appellant's brief and the appellee 

objects to the omission, then this Court is precluded from reviewing the merits 

of the appellant's claim”) (citations and quotation marks omitted).
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Further, even if Appellant had not waived his discretionary aspects of 

sentencing claim, the claim would fail on the merits. Generally, to raise a 

substantial question, an appellant must “advance a colorable argument that 

the trial judge's actions were: (1) inconsistent with a specific provision of the 

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

the sentencing process.” Commonwealth v. McKiel, 629 A.2d 1012, 1013 

(Pa. Super. 1993); Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. 

Super. 2000) (en banc). Appellant contends that his sentence is excessive 

because the trial court failed to consider certain mitigating factors at 

sentencing, including: “Appellant was high on PCP when he committed this 

crime;” Appellant took responsibility for his crimes; Appellant completed a 

four-month drug program while he awaited trial in this case; while in prison 

awaiting trial, Appellant “witnessed multiple stabbings and heard a man being 

raped in his cell;” and, due to COVID, “Appellant had already served over two 

years in state prison for previous convictions while he was waiting for the 

present matter to be tried.” Appellant’s Brief at 8.

This Court has held that “an excessive sentence claim – in conjunction 

with an assertion that the court failed to consider mitigating factors – raises a 

substantial question.” Commonwealth v. Swope, 123 A.3d 333, 339 (Pa. 

Super. 2015) (citations omitted), citing Commonwealth v. Raven, 97 A.3d 

1244, 1253 (Pa. Super. 2014); see also Commonwealth v. Caldwell, 117 

A.3d 763, 770 (Pa. Super. 2015) (en banc) (same). Nevertheless, Appellant's 

claim fails because, during the sentencing hearing, the trial court 
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demonstrated it was well aware of – and thoroughly considered – the 

mitigating factors in Appellant’s case. As the trial court explained during 

sentencing:

In determining what I believe to be an appropriate sentence, 

I've considered all of the evidence presented during the 

history of this case, including the evidence adduced during 

the trial of this case, over which I presided. I've considered 

the information in the presentence investigation report, the 

investigation of prior record score, and the mental health 

evaluation, all of which I've carefully reviewed. I've also 

considered the information presented today during the 

sentencing hearing, including the statements made by 

counsel, as well as [Appellant’s] allocution, and I've 

considered the Pennsylvania Sentencing Guidelines, which 

I've already calculated and put on the record there was an 

agreement on.

I'll just note again, the guidelines for the attempted burglary 

are a recommendation of a minimum of 18 to 30 months, 

plus or minus 12 months, and indecent exposure, restorative 

sanctions 6 months, plus or minus 3 months.

I've also considered the statutory factors that I'm required to 

consider by law. I've considered the need for protection of 

the public. And in looking at [Appellant’s] conduct in this 

case, as well as [Appellant’s] history, I do think that there is 

a substantial need to protect the public in this case, because 

[Appellant] has engaged not in just one criminal incident, but 

in a pattern of conduct over a period of years. Despite 

repeated arrests, convictions and sentences, he has 

continued to engage in this conduct. And I agree with the 

Commonwealth's view that [Appellant] has not demonstrated 

a full acceptance of responsibility for his conduct, rather, 

blaming, in this case, a feeling of being disinhibited by his 

use of PCP.

While I don't doubt that his drug abuse has only exacerbated 

his decision-making and conduct in various instances in his 

life, the fact is that this is not an isolated type of behavior.

This has happened again and again.
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In this particular case over which I presided at trial, the facts 

demonstrated that [Appellant] went very late at night, 

around [2:00] a.m., to the victim's house, throwing rocks at 

the window. She yelled at him to leave, and even though she 

told [Appellant] multiple times in the past that he was not 

allowed on her porch, he came back onto her porch and tried 

to open the door. When unsuccessful, he eventually started 

masturbating under a light outside -- in public, outside of the 

victim's house and continued to do so for five minutes. He 

ran away when police arrived, and then came back and threw 

rocks at the bedroom window again, and then was finally 

arrested after the victim called the police again.

It's concerning to me that this, again, appears to be a pattern 

of conduct. In fact, the testimony at trial from witness [K.B.]

demonstrated that in June of 2018, [Appellant] tried to open 

the doorknob to her house and banged on her window and 

also grabbed her -- what she described as grabbed her butt 

and then ran away.

I also find it concerning that on June [24,] 2019, [Appellant] 

pled guilty in five separate cases, all of which involved crimes 

of indecent assault. Sentencing was scheduled for December 

of that year, and while awaiting sentencing, he committed 

the offenses in this case on October [2,] 2019, and then was 

sentenced on December [30,] 2019.

So, despite having been arrested and pleading guilty for all 

the different cases, he then committed the crime in this case, 

and that shows, in my mind, reflects a serious concern that 

[Appellant] presents a higher risk of recidivism than similarlysituated defendants, which is an aggravating factor. I think 

his prior record score understates the seriousness of his 

criminal history. I think he presents a danger to society, and 

I think he has not fully accepted responsibility in a manner 

that would indicate he is less likely to commit this kind of 

activity in the future.

I think a sentence in the aggravated range is appropriate 

here, because of the gravity of the offense, attempted 

burglary, his conduct and his pattern of conduct over these 

years.
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And for all these reasons, I am going to sentence [Appellant] 

to a sentence in the aggravate[d] range on attempted 

burglary.

N.T. Sentencing, 5/6/22, at 20-24.

Therefore, since the trial court did, in fact, consider the mitigating 

factors in Appellant’s case, Appellant’s discretionary aspects of sentencing

claim fails.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/2023