Com. v. Lima, E. (memorandum)
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J-S08006-21 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. EINSTEIN LIMA Appellant No. 536 MDA 2020 Appeal from the Judgment of Sentence Entered November 14, 2019 In the Court of Common Pleas of Luzerne County Criminal Division at No.: CP-40-CR-0000805-2019 BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.* MEMORANDUM BY STABILE, J.: FILED MAY 20, 2021 Appellant Einstein Lima appeals from the November 14, 2019 judgment of sentence entered in the Court of Common Pleas of Luzerne County (“trial court”), following his jury convictions for criminal attempt to commit false imprisonment, and simple assault and a bench conviction for summary harassment.1 Upon review, we affirm. The facts and procedural history of this case are undisputed. recounted by the trial court: The charges here arose from events that occurred on the afternoon of November 19, 2018. The victim, thirteen-year-old L.Q., was walking on Charles Street in Wilkes-Barre on her way home from school. She testified that, as she was walking, a man in a black SUV with New York license plates drove by and asked her for her name. When the driver stopped to speak to her, she ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 901(a), 2701(a)(3), and 2709(a)(1), respectively. As J-S08006-21 was about one car’s length away from him. She didn’t respond and kept walking. She said he then drove around the block, came back on Charles Street, and parked across the street. She turned around, saw it was “the exact same car” and continued walking. She testified that, as she continued walking, he then acted as if he were going into the house across the street but instead came around behind her and grabbed her under her arms. She said that there was no one else on the street and that she was scared that she would not have the strength to fight back. She said that she thought that something bad was going to end up happening to her and that she thought that she might get killed. After he grabbed her, she said she elbowed him, he let go of her, and she ran directly to her home less than a block away. She described her assailant as a black male with dreads, wearing all dark clothes. She said that he smelled like marijuana and that she also had smelled marijuana coming from the inside of his car during the first contact. In addition, she saw a red hat on the dashboard of the SUV. After arriving at home, she told her stepmother what happened and her father called 911. Officer James Sheridan of the Wilkes-Barre City Police Department was assigned to a patrol zone in south Wilkes-Barre on the day in question. He was dispatched to Charles Street, a one-way street running south with parking on both sides of the street, in order to meet with L.Q. at her home. Upon arriving at the victim’s home, Officer Sheridan testified that the victim was “shaking,” “very nervous, very scared, [and] very upset.” When Officer Sheridan asked her what happened, she described the incident to him. She said she was walking home from school when a large black SUV with New York license plates passed her and the male driver asked her name. The victim kept walking. The SUV circled around the block and passed her again, this time pulling over. The same driver exited the car and it appeared as if he was going to go into another house. Officer Sheridan testified that the victim told him that the man came up behind her instead and grabbed her under the arms in a “bear hug” type grab. He testified that she said she elbowed the man, causing him to fall, and ran home. Officer Sheridan said that she described the man as a black male with long dreadlocks wearing dark clothes and that he smelled like marijuana. The officer also said that the victim told him she was able to smell the marijuana both on the man’s person and coming from the compartment of the vehicle. Officer Sheridan testified that the victim said she could see a red beanie cap on the SUV’s -2- J-S08006-21 dashboard. During Officer Sheridan’s testimony, it was established that the victim weighed 145 pounds and [Appellant] weighed approximately 175 pounds. After speaking with the victim, Officer Sheridan searched the area. As he proceeded south on Charles Street, he saw a black Chevy SUV with a New York license plate and the engine running near the intersection of Charles and Academy streets. Officer Sheridan activated his lights and when a passenger exited the SUV, he identified himself as police and told him to get back in the car. [Appellant], who was the driver of the car, stepped out of the vehicle and was immediately recognizable to Officer Sheridan as fitting the description the victim had given minutes earlier. The officer described [Appellant] as a black male with long dreadlocks, wearing blue jeans, a light sweater, and a red beanie cap. The officer also said that he could smell marijuana both coming from the driver’s compartment as well as from [Appellant] himself. The officer testified that he had encountered marijuana several times through the routine course of his employment as a police officer. After detaining [Appellant], Officer Sheridan drove his patrol car back to the victim’s home and returned with her to the scene, asking her to let him know if she saw a vehicle or anything recognizable. The victim immediately identified [Appellant’s] vehicle. Officer Sheridan testified that [Appellant] was in the middle of the road and the victim identified him as her assailant. She testified that, at the time of her identification, [Appellant] was wearing a different shirt than he had been wearing at the time of the incident. Officer Sheridan testified that there were no police cars or police officers around [Appellant’s] vehicle while the victim identified it. The victim testified that there were police cars and/or police officers near the vehicle. The officer said that he asked if she was sure that she was identifying her assailant and the victim replied, “absolutely.” The victim testified that no one tried to influence her identification of either the vehicle or [Appellant]. Officer Sheridan then returned the victim to her home and asked her to provide a written statement. In her statement, the victim indicated that at the time he grabbed her, the assailant was wearing a black beanie hat and had a gold chain and all black clothes on. She also wrote that when she elbowed her assailant after he grabbed her, he fell. Officer Sheridan also testified that he searched the SUV and found two golf ball sized bags of what he believed to be marijuana in -3- J-S08006-21 plastic bags in the center console. He found a navy blue wintertype coat that appeared to be black on the passenger seat. Officer Sheridan specifically testified that the navy jacket found on the passenger seat was dark enough that a person could have construed it as being black. [Appellant] was arrested after the identification and search of the vehicle. [Appellant] testified on his own behalf. He indicated that he had seen the victim walking on Charles Street on the afternoon in question when he was on the way to visit his cousin. As he was driving and on his phone, [Appellant] said he saw L.Q. walking in the street. He testified that he said to her, “Are you crazy, are you looking for a case?” He explained that in New York City, many times people will walk on the street and tell a driver “if you hit me with your car I will sue.” He denied that he ever got out of his car or even stopped it at any point when he was near her. The defense also presented testimony from Michael Magnotta, a private investigator who questioned the investigatory practices of the police in this case but did not speak with the victim or any of the police officers involved in the case. Trial Court Opinion, 8/3/20, at 2-6 (record citations and footnote omitted). On September 18, 2019, a jury convicted Appellant of criminal attempt to commit false imprisonment, and simple assault. Immediately thereafter, the trial court found Appellant guilty of harassment. On November 14, 2019, the trial court sentenced Appellant to an aggregate term of 24 to 60 months’ imprisonment and directed him to register as sex offender under the Sexual Offenders Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799.10—9799.42. On November 25, 2019, Appellant filed post-sentence motions, which the trial court denied on February 14, 2020. Appellant timely appealed. Both the trial court and Appellant complied with Pa.R.A.P. 1925. On appeal, Appellant presents a single issue for our review. -4- J-S08006-21 I. Whether the Commonwealth presented sufficient evidence, as a matter of law, to support a verdict of guilt in relation to one (1) count of criminal attempt to commit false imprisonment and one (1) count of simple assault by menace, with respect to victim L.Q.? Appellant’s Brief at 6 (unnecessarily capitalizations omitted). At the outset, we agree with the trial court’s observation and Commonwealth’s claim that Appellant abandoned his sufficiency claims relating to his criminal attempt and simple assault convictions, because he failed to preserve them in his Rule 1925(b) statement. Appellant’s Rule 1925(b) statement provides in pertinent part: 4. The trial court erred in not granting a new trial based upon insufficiency of evidence. The verdict rendered in this matter is so contrary to the evidence presented that it shocks the sense of justice and requires the granting of a new trial imperative so that justice may be given another opportunity to prevail. 5. Moreover, the underlying convictions in this matter are against the weight of the evidence in that there was insufficient evidence to prove the Commonwealth’s allegations and theory of the case. There was no sufficient evidence presented to enable the factfinder to find every element of each crime beyond a reasonable doubt. 6. Furthermore, the evidence that was presented was so weak and inconclusive in regard to several elements to the crimes that as a matter of law no probability of fact may be drawn from the circumstances. Rule 1925(b) Statement, 5/19/20, at ¶¶ 4-6. Based on the foregoing, the trial court and the Commonwealth point out that Appellant appears “to conflate the standards regarding challenges to the weight of evidence and sufficiency of evidence, his [Rule 1925(b)] statement did not specifically state -5- J-S08006-21 how, or upon which element(s), the Commonwealth’s evidence was insufficient.” Commonwealth’s Brief at 3. This Court has held: If Appellant wants to preserve a claim that the evidence was insufficient, then [his Pa.R.A.P.] 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient. This Court can then analyze the element or elements on appeal. [Where a Pa.R.A.P.] 1925(b) statement does not specify the allegedly unproven elements[,] . . . the sufficiency issue is waived [on appeal]. Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008) (citation omitted). Moreover, Rule 1925(b)(4) provides in relevant part that “The Statement shall concisely identify each error that the appellant intends to assert with sufficient detail to identify the issue to be raised for the judge[,]” and “Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.” 1925(b)(4)(ii), (vii). Pa.R.A.P. Here, Appellant’s Rule 1925(b) statement failed to identify the elements of criminal attempt, false imprisonment, and simple assault upon which he alleges the evidence was insufficient. Accordingly, his sufficiency challenges with respect to criminal attempt to commit false imprisonment and simple assault are waived. Nonetheless, even if we were to consider Appellant’s sufficiency claims,2 we still would conclude that he is not entitled to relief. Here, the trial court ____________________________________________ A claim challenging the sufficiency of the evidence is a question of law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). 2 -6- J-S08006-21 accurately and thoroughly addressed the merits of Appellant’s sufficiency challenge regarding his convictions for criminal attempt and simple assault. See Trial Court Opinion, 8/3/20, at 8-14. The trial court concluded that, viewed in a light most favorable to the Commonwealth, the evidence establishes that the Commonwealth proved beyond a reasonable doubt that Appellant was guilty of criminal attempt and simple assault. Id. Accordingly, we affirm Appellant’s November 14, 2019 judgment of sentence. We further direct that a copy of the trial court’s August 3, 2020 opinion be attached to any future filings in this case. ____________________________________________ 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 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 finder 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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014). -7- J-S08006-21 Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/20/2021 -8- Circulated 04/29/2021 02:07 PM
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