Com. v. Carter, J.

Opinion

J-S58040-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAMES EDWARD CARTER, JR.

Appellant No. 604 WDA 2014

Appeal from the Judgment of Sentence March 14, 2014 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0001556-2013

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 15, 2014

Appellant, James Edward Carter, Jr., appeals from the judgment of

sentence entered in the Beaver County Court of Common Pleas, following his

jury trial conviction for default in required appearance.1 We affirm.

In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

Appellant raises two issues for our review:

WHETHER THE WEIGHT OF THE EVIDENCE WAS NOT SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT IS GUILTY OF THE CRIME ALLEGED?

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1 18 Pa.C.S.A. § 5124(a).

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*Retired Senior Judge assigned to the Superior Court. J-S58040-14

WHETHER THE EVIDENCE WAS NOT SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT IS GUILTY OF THE CRIME ALLEGED? 2

As a preliminary matter, generally, a challenge to the weight of the

evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607.

The Rule provides:

Rule 607. Challenges to the Weight of the Evidence

(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:

(1) orally, on the record, at any time before sentencing;

(2) by written motion at any time before sentencing; or

(3) in a post-sentence motion.

Pa.R.Crim.P. 607(A)(1)-

purpose of this rule is to make it clear that a challenge to the weight of the

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal

denied, 581 Pa. 672, 863 A.2d 1143 (2004). A claim challenging the weight

of the evidence generally cannot be raised for the first time in a Rule

1925(b) statement. Commonwealth v. Burkett, 830 A.2d 1034

the Statement of Questions Presented at page 7.

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(Pa.Supe

prescribed methods for presenting a weight of the evidence issue to the trial

court constitutes waiver of that claim, even if the trial court responds to the

claim in its Rule 1925(a) opinion. Id.

Instantly, Appellant failed to challenge the weight of the evidence

before the trial court in a motion for a new trial. See Pa.R.Crim.P. 607.

Rather, Appellant raised his weight claim for the first time in his Rule

1925(b) statement. See Burkett, supra. Thus, his first issue on appeal is

waived. See Pa.R.Crim.P. 607; Gillard, supra; Burkett, supra.3

after a thorough review of the record, the briefs of the parties, the applicable

law, and the well-reasoned opinion of the Honorable Kim Tesla, we conclude

comprehensively discusses and properly disposes of that question. (See

explanations at trial, regarding why he failed to report to serve his sentence,

ven if Appellant had properly preserved his weight claim for appellate review, we would see no See Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403 (2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) (explaining weight of evidence is exclusively for finder of fact who is free to believe all, part, or none of evidence and to determine credibility of witnesses; this Court cannot substitute its judgment for that of fact-finder and may reverse verdict only if

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Trial Court Opinion, filed May 12, 2014, at 3-5) (finding: pursuant to March

5, 2013 sentencing order, court directed Appellant to report to serve

required appearance was to serve sentence for felony conviction; despite

efforts to locate Appellant after he failed to report, police did not discover

Appellant until August 4, 2013; Commonwealth demonstrated that Appellant

went into hiding to avoid apprehension and punishment; Appellant

consciously disregarded substantial and unjustifiable risk of obstructing

criminal justice system by failing to report, constituting reckless behavior;

Appellant proffered no lawful excuse for failing to report; Commonwealth

presented sufficient evidence to sustain verdict). Accordi

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/15/2014

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