Com. v. Perez, J. (memorandum)

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J-S32009-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellee v. JUAN PEREZ Appellant : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1422 EDA 2016 Appeal from the Judgment of Sentence April 1, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013059-2014 BEFORE: GANTMAN, P.J., STABILE, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 23, 2017 Appellant, Juan Perez, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his bench trial convictions of robbery, theft by unlawful taking or disposition—movable property, receiving stolen property, and simple assault.1 We affirm. The relevant facts and procedural history of this case are as follows. While on patrol on October 1, 2014, Officer Walsh and Officer Vandermay heard a female screaming for help. The officers approached the scene, where they observed Appellant push Victim into a parked vehicle, punch Victim six to eight times, and pull a black purse from Victim’s hands. Victim ____________________________________________ 1 18 Pa.C.S.A. respectively. §§ 3701(a)(1)(iv), 3921(a), 3925(a), ___________________________ *Former Justice specially assigned to the Superior Court and 2701(a), J-S32009-17 was shaking uncontrollably, screaming hysterically that Appellant had robbed her, and bleeding when police arrived. The officers arrested Appellant and recovered a black purse from his person. The black purse contained a house key, $1,900.00 in cash, and a welfare access card in Victim’s name. On November 26, 2014, the Commonwealth charged Appellant with robbery, theft by unlawful taking—movable property, receiving stolen property, simple assault, and recklessly endangering another person (“REAP”). Appellant proceeded to a bench trial on October 23, 2015. The Commonwealth presented the testimony of Officer Walsh and Officer Vandermay, who recounted the details of the October 1, 2014 incident, including Victim’s statement that Appellant had robbed her. Appellant objected to the testimony about Victim’s statement; however, the court overruled the objection. During cross-examination, Appellant questioned Officer Walsh about the likelihood of finding both $1,900.00 in cash and a welfare access card in the same purse. The Commonwealth raised a relevance objection to this line of questioning, which the court sustained. The court ultimately convicted Appellant of robbery, theft by unlawful taking or disposition—movable property, receiving stolen property, and simple assault. The court deferred sentencing pending the preparation of a pre- sentence investigation (“PSI”) report. On April 1, 2016, the court sentenced Appellant to an aggregate term -2- J-S32009-17 of one (1) to two (2) years’ imprisonment, followed by two (2) years’ probation. Appellant timely filed a post-sentence motion on April 2, 2016, which the court denied on April 25, 2016. Appellant timely filed a notice of appeal on May 6, 2016. On June 6, 2016, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied on June 10, 2016. Appellant raises the following issues for our review: DID THE TRIAL COURT ERR IN ADMITTING [VICTIM’S] PURPORTED EXCITED UTTERANCE STATEMENTS? DID THE TRIAL COURT ERR IN LIMITING CROSSEXAMINATION IN RELATION TO THE $1,900 WHICH [VICTIM] POSSESSED ALONG WITH A WELFARE CARD? ARE APPELLANT’S CONVICTIONS AGAINST THE WEIGHT OF THE EVIDENCE? (Appellant’s Brief at 4).2 After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Abbe F. Fletman, we conclude Appellant’s first and second issues on appeal merit no relief. The trial court opinion comprehensively discusses and properly disposes of those questions. (See Trial Court Opinion, filed November 7, 2016, at 8-10) (finding: (1) Officer Walsh testified Victim was in extreme physical and emotional distress when police arrived on scene; Officer Walsh ____________________________________________ 2 We have reordered Appellant’s issues for disposition purposes. -3- J-S32009-17 also stated Victim told police about robbery while she was still experiencing stress of incident; Officer Vandermay corroborated Officer Walsh’s testimony, and court found testimony of both police officers credible; thus, court properly admitted Victim’s statement as excited utterance; (2) questioning about presence of large quantity of cash and welfare access card in same purse had no bearing on any fact of consequence in Appellant’s case; any testimony about general likelihood of finding those items in one purse would not have made it more likely that Victim lied to police or less likely that Appellant robbed Victim; further, court did not prevent Appellant from using presence of $1,900.00 and welfare access card to attack Victim’s credibility; because any potential testimony elicited through this line of questioning lacked probative value, court properly limited cross-examination about contents of Victim’s purse). Moreover, to the extent Appellant now claims the court violated his Confrontation Clause rights when it admitted Victim’s excited utterance and limited Appellant’s cross-examination, Appellant failed to specify these claims in his Rule 1925(b) statement. See Commonwealth v. Johnson, 51 A.3d 237 (Pa.Super. 2012), appeal denied, 619 Pa. 701, 63 A.3d 1245 (2013) (explaining failure to specify issues raised on appeal in Rule 1925(b) statement constitutes waiver for purposes of review). Thus, Appellant’s Confrontation Clause claims are waived, and we affirm Appellant’s first and second issues on the basis of the trial court opinion. -4- J-S32009-17 In his third issue, Appellant argues the evidence admitted at trial undermines the credibility of the police testimony about Appellant’s robbery and assault of Victim. Appellant specifically asserts the physical evidence does not support the police testimony that Appellant punched Victim in the face six to eight times. Appellant maintains this inconsistency undermined the veracity of all of Appellant’s convictions. Appellant also avers the Commonwealth’s failure to present Victim as a witness made it impossible for the court to assess the elements of the crimes for which Appellant was convicted. Appellant concludes his convictions shock the conscience due to their basis in conjecture, and this Court should vacate his judgment of sentence and remand for a new trial. We disagree. “[W]hen challenging the sufficiency of the evidence on appeal, [an appellant’s Rule 1925(b)] statement must specify the element or elements upon which the evidence was insufficient in order to preserve the issue for appeal.” Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009), appeal denied, 607 Pa. 690, 3 A.3d 670 (2010). “Such specificity is of particular importance in cases where [an appellant] was convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt.” Id. Our standard of review for a challenge to the weight of the evidence is as follows: The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence -5- J-S32009-17 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 lower court’s verdict if it is so contrary to the evidence as to shock one’s sense of justice. 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) (internal citations omitted). Instantly, Appellant purports to raise a challenge to the sufficiency of the evidence along with his weight of the evidence claim. Significantly, Appellant failed to raise this sufficiency claim with any specificity in his Rule 1925(b) statement. Appellant’s Rule 1925(b) statement claimed the court could not assess the elements of his various convictions due to the fact that Victim did not testify at trial; however, Appellant’s Rule 1925(b) statement failed to identify which convictions he sought to challenge and which elements of those convictions the Commonwealth failed to prove beyond a reasonable doubt. Thus, Appellant’s challenge to the sufficiency of the evidence is waived for purposes of our review. See Gibbs, supra. Moreover, with respect to Appellant’s third issue on appeal, the court reasoned: For the following reasons, the verdict neither reveals a palpable abuse of discretion nor shocks one’s sense of -6- J-S32009-17 justice as credible testimony established [Appellant’s] guilt beyond a reasonable doubt. a. The [Theft by Unlawful Taking or Disposition] and [Receiving Stolen Property] Convictions * * * Two police officers witnessed [Appellant] remove a black purse from the possession of [Victim] while she was in visible distress. [Victim] told the officers that [Appellant] had taken belongings from her without her permission and the officers recovered her belongings from [Appellant] at a location that [Victim] pointed out. [Victim’s] statements are admissible…as excited utterances under an exception to the prohibition against hearsay. Beyond [Victim’s] statements, Officer Walsh testified that the black purse found in [Appellant’s] possession contained an “Access” card bearing [Victim’s] name. From that fact alone, the [c]ourt may reasonably infer possession. The [c]ourt found this evidence admissible, credible and sufficient to prove that [Appellant] had committed [theft by unlawful taking or disposition] and [receiving stolen property] beyond a reasonable doubt. As this verdict does not shock the conscience, it is not against the weight of the evidence. b. The Simple Assault Conviction * * * Two officers testified sufficiently and credibly that they witnessed [Appellant] push [Victim] and strike her with a closed fist on her face and body at least six to eight times. Both officers testified that [Victim] sustained injuries to her wrist and ankle and that she was bleeding from her wrist. Exhibit C-2 confirms that [Victim’s] wrist was indeed cut and bleeding. Both officers described [Victim] as “struggling” to get away from [Appellant] while calling for help. This [c]ourt finds that testimony and photographic evidence make out impairment of physical condition as well as substantial pain, and therefore the evidence weighs in favor of [Appellant’s] guilty verdict for simple assault. -7- J-S32009-17 [Appellant] argues that, since the police officers did not see the beginning of the encounter between him and [Victim], the Commonwealth cannot prove that [Victim] did not initiate or escalate the violence. This assertion lacks merit. If [Appellant] wished to claim that he was acting in self-defense because [Victim] started or escalated their confrontation, he would have had to have alleged self-defense, which he did not do at any point in the trial. Further, the Commonwealth presented evidence at trial that [Appellant] had pushed [Victim] against a car, punched her repeatedly and that she had struggled to get away and called for help. That testimony tends to disprove an assertion of self-defense, even if one had been made. In sum, the evidence more than supports a simple assault conviction. The verdict does not shock one’s sense of judgment nor constitute a palpable abuse of discretion. c. The Robbery Conviction * * * As previously discussed, the evidence establishing [Appellant] guilty of [theft by unlawful taking or disposition] beyond a reasonable doubt is sufficient. Therefore, the theft portion of the robbery offense is properly met. Similarly, the evidence establishing [Appellant] guilty of simple assault beyond a reasonable doubt is sufficient, therefore, the “bodily injury” element of robbery in the second degree is also met. [Appellant’s] argument that [Victim’s] testimony is necessary to establish the “bodily injury or fear of bodily injury” element of the offense is unavailing. The Commonwealth need not establish fear of bodily injury if actual bodily injury is proven beyond a reasonable doubt. This [c]ourt holds that the evidence supporting a finding of bodily injury is credible and thus, the verdict against [Appellant] for robbery in the second degree is not against the weight of the evidence. (See Trial Court Opinion, filed November 7, 2016, at 5-7). -8- The record J-S32009-17 supports the court’s decision. Thus, we have no reason to disturb it. Accordingly, we affirm the judgment of sentence. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/23/2017 -9- Circulated 06/02/2017 03:20 PM

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