J-S07044-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

NICHOLAS ANTHONY WILSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1589 EDA 2022

Appeal from the Judgment of Sentence Entered January 18, 2022

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0004629-2020

BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED AUGUST 28, 2023

Appellant, Nicholas Anthony Wilson, appeals from the judgment of 

sentence imposed by the Bucks County Court of Common Pleas, following his 

jury trial convictions for burglary, criminal trespass, criminal attempt to 

commit a theft by unlawful taking of movable property, and criminal attempt 

to receive stolen property.

1

 We affirm. 

The trial court set forth the relevant facts and procedural history in this 

matter as follows:

On March 18, 2020, Warminster Township Police 

Department responded to a report of a burglary in progress. 

(N.T. Trial, 8/9/21, at 59). Victim reported that she had left 

her house to go grocery shopping for about thirty (30) 

minutes. (Id. at 18). Victim had left her seventeen (17) 

year old son home. (Id. at 16, 18). When she returned 

home from grocery shopping her front door was open. (Id.

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1 18 Pa.C.S.A. §§ 3502(a)(1)(ii), 3503(a)(1)(i), and 901(a) respectively.
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at 21). She entered her home and found Appellant, a man 

who she did not know and had never seen before, inside her 

house. (Id. at 21-22). Appellant was holding a yoga mat, 

hoverboard, and a pair of UGGs in a box, which belonged to 

the Victim and her family. (Id. at 22). Victim told Appellant 

to leave her home and she followed him out. (Id. at 26). 

She then called 911. (Id. at 27). Appellant proceeded to 

leave the residence before police officers arrived. (Id. at 

86-87). Victim’s son was in the home throughout the entire 

ordeal. (Id. at 62).

* * *

Prior to Appellant’s jury trial, Appellant was offered a 

negotiated guilty plea by the Commonwealth. Before the 

start of the jury trial, this [c]ourt ensured Appellant was 

aware that if he was found guilty by a jury, he would be 

subject to a mandatory minimum sentence. Appellant, after 

knowingly and intelligently acknowledging the mandatory 

minimum, refused the negotiated guilty plea and proceeded 

to trial.

On August 9, 2021, Appellant’s jury trial began. On August 

10, 2021, the jury found him guilty as to burglary of 

overnight accommodations with a person present, criminal 

trespass by entering a structure, criminal attempt to commit 

a theft by unlawful taking of movable property, and criminal 

attempt to receive stolen property. Sentencing was 

deferred at the request of Appellant.

On August 11, 2021, the Commonwealth filed notice of 

mandatory minimum sentence, which stated:

1. In the event of conviction of the crime of burglary 

(F1), 18 Pa.C.S. § 3502(a)(1)(ii) as charged in the 

above-captioned criminal case, the court is required 

by law to sentence [Appellant], who has been 

previously convicted of a crime of violence 

(aggravated assault, (F1), 18 Pa.C.S. § 2702(a)(1)), 

in accordance with Section 9714 of Title 42 of the 

Pennsylvania Consolidated Statutes, (Sentences for 

second and subsequent offenses), which requires the 

imposition of a minimum sentence of at least ten (10)

years’ incarceration. 42 Pa.C.S. § 9714(a)(1).
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Sentencing was originally scheduled for November 22, 

2021, this was continued at the request of Appellant. On 

January 18, 2022, Appellant requested another continuance 

of sentencing. [The trial] court denied that request and 

sentencing proceeded on that day. Appellant was then 

sentenced to a period of ten to twenty years’ imprisonment 

at a state correctional institution on the charge of burglary, 

all other charges merged with the burglary charge. 

Appella[nt] was given credit for time-served between March 

18, 2020 (his initial date of incarceration) through July 9, 

2020 (the date he received bail), as well as credit for timeserved between May 20, 2021 (his date of re-incarceration

after violating the terms of his bail) through January 18,

2022 (the date of this sentencing). 

On January 26, 2022, Appellant filed a motion to modify 

and/or reconsider sentence and a motion to bar application 

of mandatory minimum sentencing statute. [The trial] court

held a hearing for reconsideration of sentence on May 20, 

2022. On that day, [the trial] court denied Appellant’s 

motions. Subsequently, Appellant filed notice of this appeal 

on June 17, 2022. On June 21, 2022, [the trial] court filed 

an order for a concise statement. Appellant filed his concise 

statement of errors complained [of] on appeal on November 

1, 2022. 

(Trial Court Opinion, filed 11/21/22, at 1-3) (record citation formatting 

provided; footnotes and unnecessary capitalization omitted). 

Appellant raises the following four issues on appeal:

A. Was the verdict of guilty of burglary supported by 

sufficient evidence?

B. Did the trial court err in precluding Appellant from 

presenting evidence regarding a large monetary judgment 

he received on the day of the incident?

C. Did the trial court err in admitting the testimony of 

Detective Bunda regarding DNA evidence?

D. Did the trial court err in imposing a mandatory minimum 
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sentence in violation of the United States and Pennsylvania 

Constitutions’ prohibitions against cruel and unusual 

punishment? 

(Appellant’s Brief at 8) (unnecessary capitalization omitted).

In his first issue, Appellant contends that the evidence presented by the 

Commonwealth at trial was insufficient to establish his guilt of burglary. 

Appellant asserts that the Commonwealth failed to prove the requisite mens 

rea, namely, that he entered the house with the intent to commit a crime 

therein. Appellant insists that his actions at the time of the incident do not 

support an inference that he had the intent to commit a crime inside the home. 

Specifically, Appellant maintains that he entered the home because the door 

was unlocked and there was a “for sale” sign on the property. Appellant 

emphasizes that he did not attempt to conceal his identity, and he left the 

premises when Victim asked him to do so. Appellant concludes the evidence 

was insufficient to support his burglary conviction, and this Court must grant 

relief. We disagree. 

In reviewing a challenge to the sufficiency of the evidence, our wellsettled standard of review is as follows: 

As a general matter, our standard of review of sufficiency

claims requires that we evaluate the record in the light most 

favorable to the verdict winner giving the prosecution the 

benefit of all reasonable inferences to be drawn from the 

evidence. Evidence will be deemed sufficient to support the 

verdict when it establishes each material element of the

crime charged and the commission thereof by the accused, 

beyond a reasonable doubt. Nevertheless, the 

Commonwealth need not establish guilt to a mathematical 

certainty. Any doubt about the defendant’s guilt is to be 
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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. 

The Commonwealth may sustain its burden by means of 

wholly circumstantial evidence. Accordingly, [t]he fact that 

the evidence establishing a defendant’s participation in a 

crime is circumstantial does not preclude a conviction where

the evidence coupled with the reasonable inferences drawn 

therefrom overcomes the presumption of innocence. 

Significantly, we may not substitute our judgment for that 

of the fact finder; thus, so long as the evidence adduced, 

accepted in the light most favorable to the Commonwealth, 

demonstrates the respective elements of a defendant’s 

crimes beyond a reasonable doubt, the appellant’s 

convictions will be upheld. 

Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa.Super. 2019) 

(quoting Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa.Super. 

2013)).

The version of Section 3502 of the Crimes Code that was in effect at the 

time of Appellant’s offenses defined burglary, in relevant part, as follows:

§ 3502. Burglary

(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 time of the 

offense any person is present and the person commits, 

attempts or threatens to commit a bodily injury crime 

therein;

18 Pa.C.S.A. § 3502(a)(1)(i) (effective Jan. 3, 2017 to Sept. 8, 2022). 

The Commonwealth is not required to specify what crime a defendant is 
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intending to commit and it need not prove the underlying crime in order to 

sustain a conviction. Commonwealth v. Brown, 886 A.2d 256, 260 

(Pa.Super. 2005), appeal denied, 588 Pa. 743, 902 A.2d 969 (2006). Rather, 

“[t]he intent to commit a crime after entry may be inferred from the 

circumstances surrounding the incident.” Commonwealth v. Lambert, 795 

A.2d 1010, 1022 (Pa.Super. 2002), appeal denied, 569 Pa. 701, 805 A.2d 521 

(2002) (citation omitted). “While this intent may be inferred from actions as 

well as words, the actions must bear a reasonable relation to the commission 

of a crime. Once one has entered a private residence by criminal means, we 

can infer that the person intended a criminal purpose based upon the totality 

of the circumstances.” Id. (citations omitted).

Instantly, Appellant entered the house of a stranger and gathered 

several items—a yoga mat, a hoverboard, and a pair of UGG boots—all without 

permission. Viewed in the light most favorable to the Commonwealth as 

verdict winner, it was reasonable for the jury to infer that under the totality 

of the circumstances, Appellant intended to commit a crime in the home. See 

Sebolka, supra; Lambert, supra. Accordingly, Appellant’s first issue is 

meritless.

In his second issue, Appellant argues that the trial court erred when it 

precluded him from offering evidence of a monetary judgment which he had 

learned he was entitled to earlier on the day of the events at issue. Appellant

claims that this evidence was relevant to whether he would have entered the 
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home with an intent to commit a theft. Appellant insists he had a right to 

present this relevant evidence in his defense. Appellant concludes the court’s 

evidentiary ruling was erroneous, and this Court must grant relief. We 

disagree. 

When reviewing the admission or exclusion of evidence, our standard of 

review is well established and very narrow:

Admission of evidence is a matter within the sound 

discretion of the trial court, and will not be reversed absent 

a showing that the trial court clearly abused its discretion. 

We can affirm the court’s decision if there is any basis to 

support it, even if we rely on different grounds to affirm.

Not merely an error in judgment, an abuse of discretion 

occurs when the law is overridden or misapplied, or the 

judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice, bias, or ill-will, as shown by 

the evidence on record.

Commonwealth v. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009), 

cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal 

citations and quotation marks omitted). Our scope of review in cases where 

the trial court explains the basis for its evidentiary ruling is limited to an 

examination of the stated reason. Commonwealth v. Stephens, 74 A.3d 

1034, 1037 (Pa.Super. 2013). “We must also be mindful that a discretionary 

ruling cannot be overturned simply because a reviewing court disagrees with 

the trial court’s conclusion.” Commonwealth v. O’Brien, 836 A.2d 966, 968 

(Pa.Super. 2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004).

Pennsylvania Rule of Evidence 401 defines relevant 

evidence as “evidence having any tendency to make the 

existence of any fact that is of consequence to the 
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determination of the action more probable or less probable 

than it would be without the evidence.” Pa.R.E. 401. 

Building upon this definition, Rule 402 provides, in full, as 

follows: “All relevant evidence is admissible, except as 

otherwise provided by law. Evidence that is not relevant is 

not admissible.” Pa.R.E. 402. Thus, while the general rule 

of the admissibility of relevant evidence is subject to various 

exceptions, the rule that irrelevant evidence is not 

admissible is categorical. Accordingly, “[t]he threshold 

inquiry with admission of evidence is whether the evidence 

is relevant.” Commonwealth v. Collins, 585 Pa. 45, 888 

A.2d 564, 577 (2005); Commonwealth v. Treiber, 582 

Pa. 646, 874 A.2d 26, 32 (2005); Commonwealth v. 

Robinson, 554 Pa. 293, 721 A.2d 344, 350 (1998).

Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008).

Instantly, the trial court stated that it excluded Appellant’s proposed

testimony that he was getting a $10,000.00 judgment “because it is irrelevant 

to the case at hand.” (Trial Court Opinion at 10). The court continued that 

“[t]he fact that Appellant had a piece of paper stating that at some point in 

the future he may receive $10,000 does not tend to make it more or less 

probable that he committed a burglary on the date in question.” (Id.) We 

see no abuse of discretion in the court’s evidentiary ruling.

2

 See Cook, 

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2

In support of this issue, Appellant relies on Commonwealth v. Yale, ___

Pa. ___, 249 A.3d 1001 (2021). In Yale, the Pennsylvania Supreme Court 

considered whether a defendant was entitled to introduce evidence of third 

person guilt to show that the defendant was not the perpetrator of the crime 

charged. Our Supreme Court held that the heightened standard for 

admissibility of “bad acts” evidence under Rule 404(b) did not apply to 

evidence introduced against a third party, rather than the defendant. The 

Court concluded that determining the admissibility of third person guilt 

evidence requires nothing more than the traditional inquiries prompted by 

Rules 401, 402 and 403. Yale, supra at ____, 249 A.3d at 1022.

(Footnote Continued Next Page)
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supra. See also Montalvo, supra. Thus, Appellant’s second issue merits 

no relief.

In his third issue, Appellant claims that the trial court erred when it 

permitted the Commonwealth to introduce testimony from Officer Bunda that 

DNA testing of swabs collected at the residence would have cost hundreds or 

thousands of dollars. Appellant insists that evidence concerning the cost of 

DNA testing was irrelevant and inadmissible. He further argues that admitting 

the testimony suggested that the Commonwealth would be relieved of its 

burden of proof if recovering evidence costs too much money. Appellant 

concludes that admission of this testimony was improper, and this Court must 

grant relief. We disagree.

It is well settled that “trial judges retain wide latitude as to the scope of 

cross-examination and will not be reversed absent an abuse of that 

discretion.” Commonwealth v. Murphy, 182 A.3d 1002, 1005 (Pa.Super. 

2018) (citation omitted). As this Court has explained:

One who induces a trial court to let down the bars to a field 

of inquiry that is not competent or relevant to the issues 

cannot complain if his adversary is also allowed to avail 

himself of that opening. The phrase ‘opening the door’... by 

cross examination involves a waiver. If defendant delves 

into what would be objectionable testimony on the part of 

____________________________________________

Here, Appellant is not seeking to admit evidence of third person guilt, and the 

trial court did not exclude the evidence based on Rule 404(b). Rather, the 

court found that the proposed testimony concerning the $10,000.00 judgment 

was irrelevant. Therefore, the court’s ruling did not violate our Supreme 

Court’s holding in Yale, supra and that decision is distinguishable. 
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the Commonwealth, then the Commonwealth can probe 

further into the objectionable area.

Commonwealth v. Lewis, 885 A.2d 51, 54-55 (Pa.Super. 2005) (quoting 

Commonwealth v. Stakley, 365 A.2d 1298, 1299-1300 (Pa.Super. 1976)).

Here, the trial court analyzed this issue as follows:

Defense [c]ounsel broached the topic of DNA testing during 

cross examination of the first testifying officer. (N.T. Trial

at 72). Defense counsel then extensively questioned the 

second testifying officer regarding DNA testing. (Id. at 95-

97). It was not until the redirect of the second testifying 

officer that the Commonwealth introduced testimony 

regarding DNA testing, which was directly in response to 

statements elicited by the [d]efense on cross examination. 

(Id. at 98).

* * *

Once again it should be noted that... Appellant opened the 

door to any testimony regarding DNA testing. Additionally, 

Appellant explicitly stated he would be requesting an 

adverse inference because DNA analysis did not occur. (Id.

at 76). Thus, to rebut this defense, testimony regarding 

DNA testimony was highly relevant and properly admitted.

(Trial Court Opinion at 8) (record citation formatting provided). On this 

record, we see no abuse of discretion in the trial court’s ruling permitting the 

Commonwealth to introduce testimony concerning the DNA testing. See 

Murphy, supra; Lewis, supra. Appellant’s third issue merits no relief.

In his final issue, Appellant claims that his mandatory minimum 

sentence violated the United States and Pennsylvania Constitution’s 

prohibition against cruel and unusual sentences. He initially claims that based 

on the particular facts and circumstances of this offense, the instant conviction 
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for burglary should not be considered a crime of violence for purposes of the 

recidivist statute. In addition, Appellant argues that the sentence in this 

matter was grossly disproportionate to the crime, where he left when asked 

to do so and he had no contact with the individual who was in the home at the 

time. Appellant concludes that his sentence of 10 to 20 years’ imprisonment 

(which was double the guideline range had the mandatory minimum sentence 

not applied) constitutes cruel and unusual punishment and must be vacated. 

We disagree.

Appellant’s challenge to the application of a mandatory minimum 

sentencing provision constitutes a challenge to the legality of sentence. 

Commonwealth v. Foster, 960 A.2d 160, 168 (Pa.Super. 2008), aff’d, 609 

Pa. 502, 17 A.3d 332 (2011). Our scope and standard of review in such cases 

is well settled: “If no statutory authorization exists for a particular sentence, 

that sentence is illegal and subject to correction. An illegal sentence must be 

vacated.” Commonwealth v. Leverette, 911 A.2d 998, 1001 (Pa.Super.

2006) (citations omitted). “In evaluating a trial court’s application of a 

statute, our standard of review is plenary and is limited to determining 

whether the trial court committed an error of law.” Id. Furthermore, to the 

extent that Appellant is challenging the constitutionally of the statute imposing 

a mandatory minimum sentence, “because the constitutionality of a statute is 

a question of law, our standard of review is de novo and our scope is plenary.” 

Commonwealth v. Baker, 621 Pa. 401, 406 n.3, 78 A.3d 1044, 1047 n.3 
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(2013).

The Pennsylvania Sentencing Code provides as follows:

§ 9714. Sentences for second and subsequent 

offenses

(a) Mandatory sentence.—

(1) Any person who is convicted in any court of this 

Commonwealth of a crime of violence shall, if at the time of 

the commission of the current offense the person had 

previously been convicted of a crime of violence, be 

sentenced to a minimum sentence of at least ten years of 

total confinement, notwithstanding any other provision of 

this title or other statute to the contrary.

42 Pa.C.S.A. § 9714(a)(1). “Burglary is a crime of violence as a matter of 

law.” Commonwealth v. Spotz, 616 Pa. 164, 232, 47 A.3d 63, 104 (2012). 

See also Commonwealth v. Chester, 627 Pa. 429, 443, 101 A.3d 56, 64 

(2014) (stating: “[I]t is well established within our case law that ‘[b]urglary 

is a crime of violence as a matter of law,’ signifying that first-degree burglary 

necessarily constitutes violent behavior in all contexts”) (quoting Spotz, 

supra at 232, 47 A.3d at 104).

Here, Appellant was convicted of burglary, which is a crime of violence 

as a matter of law. See Spotz, supra. The Commonwealth notified both the 

trial court and Appellant that it intended to seek the mandatory minimum 

sentence. Appellant does not dispute that at the time of the commission of 
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the crimes at issue he had previously been convicted of a crime of violence.3 

Therefore, the mandatory minimum sentencing provisions of Section 

9714(a)(1) apply; and, based on the statute, the trial court was required to 

sentence him to a minimum sentence of at least ten years of total 

confinement. See 42 Pa.C.S.A. § 9714(a)(1). 

Next, we consider whether the statutory minimum sentence itself 

constitutes cruel and unusual punishment under either the Eighth Amendment 

of the United States Constitution or Article 1, § 13 of the Pennsylvania 

Constitution.

4

 “The Eighth Amendment does not require strict proportionality 

between crime and sentence. Rather, it forbids only extreme sentences which 

are grossly disproportionate to the crime.” Baker, supra at 406, 78 A.3d at

1047 (citation omitted). In reviewing whether a sentence is grossly 

disproportionate, we consider: “(i) the gravity of the offense and the 

harshness of the penalty; (ii) the sentences imposed on other criminals in the 

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3 Appellant has an extensive criminal history, commencing with his 

adjudication of delinquency of aggravated assault while a juvenile. As an 

adult, he was convicted of simple assault in December 2000; forgery in March 

2001; driving under the influence in April 2003; receiving stolen property in 

September 2004; aggravated assault, defiant trespass and attempted retail 

theft in March 2005, and retail theft in June 2020. (N.T. Trial, 8/10/21, at 

174). 

4 “The Pennsylvania prohibition against cruel and unusual punishment is 

coextensive with the Eighth and Fourteenth Amendment of the United States 

Constitution. Therefore, the Pennsylvania Constitution affords no broader 

protection against excessive sentences than that provided by the Eighth 

Amendment to the United States Constitution.” Commonwealth v. 

Yasipour, 957 A.2d 734, 743 (Pa.Super. 2008) (citations omitted). 
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same jurisdiction; and (iii) the sentences imposed for commission of the same 

crime in other jurisdictions.” Baker, supra (quoting Commonwealth v. 

Spells, 612 A.2d 458, 462 (Pa.Super. 1992) (en banc)). Notably, this Court 

is not obligated to reach the second or third prongs of the test unless “a 

threshold comparison of the crime committed and the sentence imposed leads 

to an inference of gross disproportionality.” Id. (citation omitted).

A presumption exists that the General Assembly does not 

intend to violate the Constitution of the United States or of 

this Commonwealth when promulgating legislation. Duly 

enacted legislation is presumed valid, and unless it clearly, 

palpably and plainly violates the Constitution, it will not be 

declared unconstitutional. Accordingly, the party 

challenging the constitutionality of a statute bears a heavy 

burden of persuasion. Moreover, this Court has articulated 

the principle that the Pennsylvania prohibition against cruel 

punishments, like its federal counterpart against cruel and 

unusual punishments, is not a static concept. The concept 

must draw its meaning from the evolving standards of 

decency that mark the progress of a maturing society. The 

most accurate indicators of those evolving standards of 

decency are the enactments of the elected representatives 

of the people in the legislature.

Id. at 411–12, 78 A.3d at 1050 (citations, internal quotation marks and 

brackets omitted). “In weighing the offense’s gravity, both [an individual’s]

current felony and his long history of felony recidivism must be placed on the 

scales. Any other approach would not accord proper deference to the policy 

judgments that find expression in the legislature’s choice of sanctions.” 

Ewing v. California, 538 U.S. 11, 12, 123 S. Ct. 1179, 1181, 155 L.Ed.2d 

108 (2003).

Here, in considering whether Appellant’s sentence of 10 to 20 years’ 
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imprisonment was grossly disproportionate to his burglary conviction, we 

must consider both the facts of the instant matter, Appellant’s conviction of a 

felony crime of violence, as well as his history of felony recidivism. See 

Ewing, supra. Appellant was sentenced to a mandatory minimum ten years 

of imprisonment after committing a burglary of a stranger’s home. This crime 

of violence was preceded by his lengthy criminal history with a prior crime of 

violence—a felony conviction for aggravated assault from 2005. Ultimately, 

considering both crimes of violence, and Appellant’s criminal history generally, 

we conclude that the mandatory minimum sentence imposed in this matter 

was not grossly disproportionate to the crime. Rather, the sentence was 

amply supported by Appellant’s criminal record. The instant sentence fell 

squarely within the legislature’s choice of sanctions and is “justified by the 

[legislature’s] public-safety interest in incapacitating and deterring recidivist 

felons.” Ewing, supra at 12, 123 S.Ct. at 1181, 155 L.Ed.2d 108. As

Appellant has not established that the mandatory minimum sentence he 

received was grossly disproportionate to the crimes which he committed, it is 

unnecessary to consider the second and third prongs of the comparative 

analysis for cruel and unusual sentences. See Baker, supra. Thus, 

Appellant’s final issue merits no relief. Accordingly, we affirm.

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/28/2023