Com. v. McKelvin, D.
Com. v. McKelvin, D. No. 1335 WDA 2016
| Pa. Super. Ct. | May 26, 2017Background
- On June 15, 2014, someone forcibly entered First Niagara Bank in Jeannette during early morning hours; surveillance snapshots showed the entrant and an opened teller drawer, though no cash was missing.
- Security alarm activation and motion sensors alerted the bank’s security company; bank staff observed broken doors, blood inside, and a blood trail leading away from the bank.
- Police found a burgundy GMC Yukon linked to Appellant near the scene; Appellant later met officers and exhibited scraped, bleeding knuckles and blood-spotted clothing.
- Investigators recovered 9mm shell casings at the bank and matching TulAmmo casings at Appellant’s home; shoe impressions at the scene matched Air Nike shoes recovered from Appellant with glass fragments embedded in the soles.
- A buccal DNA sample from Appellant matched blood recovered at the bank; Appellant was charged with burglary, criminal trespass, and unlawful firearm possession; jury convicted him of burglary and criminal trespass but acquitted on the firearm charge.
- Appellant was sentenced to 1.5 to 10 years’ imprisonment; he appealed, arguing insufficient evidence of intent and that his sentence was excessive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to support burglary conviction (intent element) | Commonwealth: totality of circumstances (forced entry + entry, opened teller drawer, blood/DNA, footwear, casings) permits inference of intent to commit a crime | McKelvin: mental-health issues cast doubt on intent; forced entry alone insufficient to prove intent | Court: Evidence sufficient — forced entry plus additional circumstances (entry, opened drawer, physical and forensic links) support inference of intent |
| Discretionary aspects of sentencing | Commonwealth: sentencing authorized; no procedural defect raised | McKelvin: sentence excessive; claims discretionary-reviewable error | Court: Issue waived—Appellant failed to include the Pa.R.A.P. 2119(f) statement required to preserve discretionary-sentencing claims |
Key Cases Cited
- Commonwealth v. Wilamowski, 633 A.2d 141 (Pa. 1993) (forced entry alone does not automatically establish intent; courts must examine totality of circumstances)
- Commonwealth v. Harden, 103 A.3d 107 (Pa. Super. 2014) (standards for sufficiency review and viewing evidence in light most favorable to verdict winner)
- Commonwealth v. Chambers, 599 A.2d 630 (Pa. 1991) (credibility and weight of evidence are for the factfinder)
- Commonwealth v. Hughes, 908 A.2d 924 (Pa. Super. 2006) (evidence need not exclude every hypothesis of innocence; fact-finder resolves doubts)
- Commonwealth v. Tirado, 870 A.2d 362 (Pa. Super. 2005) (Rule 2119(f) requirement for appellate consideration of discretionary-sentencing claims)
- Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) (articulating need to state how sentence violates sentencing scheme or fundamental norms)