Com. v. Graham, A. (memorandum)

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J-S01043-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. AKEEM GRAHAM Appellant No. 3109 EDA 2014 Appeal from the Judgment of Sentence June 6, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002343-2014 BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 13, 2016 Appellant, Akeem Graham, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his bench trial conviction for criminal trespass.1 We affirm. The relevant facts and procedural history of this case are as follows. On January 28, 2014, Philadelphia Police Officers Schmidt and Latorre responded to a report of a burglary in progress at 5648 Pentridge Street. Upon arrival, Officer Schmidt heard voices and the sound of metal hitting concrete coming from the basement of the vacant home. He announced himself as a police officer as he entered the basement, at which time he saw Appellant and another male flee from the property. Officer Schmidt reported ____________________________________________ 1 18 Pa.C.S.A. § 3503 (a)(1)(ii). J-S01043-16 over the police radio that two men were running away from the building and stated one suspect was wearing a gray hoodie. The officer recovered a crowbar, bolt cutters, and several cut copper pipes from the basement. Meanwhile, Officer Latorre observed Appellant running from the building and apprehended him after a short pursuit. Appellant wore a blue sweatshirt and blue jeans. After Officer Latorre apprehended Appellant, Officer Schmidt identified Appellant as one of the men he had seen in the basement. The real estate manager of the property testified he conducted a weekly inspection of the home to ensure it remained locked and secure. When he visited the property the day before Appellant’s arrest, both doors to the home were locked. Following the incident, the manager visited the property and observed that someone had forced open the back door and that copper piping in the basement was disconnected. On March 10, 2014, the Commonwealth filed a criminal information charging Appellant with multiple offenses, including criminal trespass. Following a bench trial on May 29, 2014, the court convicted Appellant of criminal trespass and acquitted him of all other charges. sentenced Appellant to two years’ probation, on June 6, 2014. The court Appellant timely filed a post-sentence motion on June 13, 2014. On October 14, 2014, the motion was denied by operation of law. Appellant filed a notice of appeal on November 4, 2014. The court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) -2- J-S01043-16 on November 6, 2014, and Appellant timely complied. Appellant raises the following issue for our review: WAS NOT THE VERDICT AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE NUMBER AND DEGREE OF INCONSISTENCIES IN THE OFFICERS’ TESTIMONY CAST SUCH SERIOUS DOUBT UPON THE VALIDITY OF THE DEFENDANT’S CONVICTION THAT HIS CONVICTION SHOCKS THE CONSCIENCE? (Appellant’s Brief at 3). Appellant argues Officer Schmidt’s communications over his police radio failed to show he was actually in the basement at the same time as the two suspects. Appellant contends Officer Schmidt’s radio transmission giving a description of one of the suspects contradicted his later testimony that he saw Appellant fleeing the property. Appellant maintains Officer Schmidt’s only description over the radio was of a man wearing a gray hoodie, and Appellant was wearing a blue sweatshirt and blue jeans when Officer Latorre arrested him. Appellant also claims Officer Latorre gave inconsistent testimony about his location during the incident and could not have seen two men fleeing the property from that position. Appellant avers Officer Latorre lost eye contact with the suspect he was chasing and mistakenly arrested Appellant instead. Appellant asserts his arrest occurred as he was returning to his home, located on the same block where Officer Latorre stopped him. Appellant concludes the officers’ testimony at trial was so riddled with inconsistencies as to be against the weight of the evidence. We disagree. -3- J-S01043-16 The following principles apply to our review of a weight of the evidence claim: The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the…verdict if it is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d 666, 672-73 (1999). Moreover, where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim. Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 (2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) (most internal citations omitted). “A weight of the evidence claim concedes that the evidence is sufficient to sustain the verdict, but seeks a new trial on the ground that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one’s sense of justice.” Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067 (2013), cert. denied, 134 S.Ct. 1792, 188 L.Ed.2d 761 (2014). After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Daniel D. McCaffery, we conclude Appellant’s issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question -4- J-S01043-16 presented. (See Trial Court Opinion, filed April 15, 2015, at 6-7) (finding: officers responded immediately to radio call of burglary in progress; officers saw two men inside residence flee when they became aware of police presence; pursuing officer maintained sight of Appellant from time Appellant fled building until officer apprehended him; undisputed evidence showed break-in occurred on premises, and Appellant did not have permission to be inside building; minor inconsistencies between officers’ testimony at trial and content of radio broadcasts were de minimis, where court found credible officers’ testimony that Appellant was individual who fled property; conviction on charge of criminal trespass was not so contrary to weight of evidence as to shock conscience of court, and record supports court’s finding of Appellant’s guilt). Based on the foregoing, we see no abuse of discretion in the trial court’s assessment of Appellant’s weight of the evidence claim. See Lyons, supra; Champney, supra. Accordingly, we affirm on the basis of the trial court’s opinion. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/13/2016 -5- Circulated 12/22/2015 03:28 PM

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