Com. v. Corrigan, D.

• Court: Superior Court of Pennsylvania
• Decided: May 17, 2018
• Docket: 3771 EDA 2016
• Status: Unpublished

Opinion

J-S83005-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIEL CORRIGAN, : : Appellant : No. 3771 EDA 2016

Appeal from the Judgment of Sentence October 24, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0006687-2015

BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED MAY 17, 2018

Appellant, Daniel Corrigan, appeals from the Judgment of Sentence

entered by the Philadelphia County Court of Common Pleas following his

convictions after a bench trial of, inter alia, two counts each of Theft by

Unlawful Taking, Simple Assault, Terroristic Threats, and related charges,

including various firearms violations. Appellant challenges only the weight of

the evidence. We affirm.

The trial court set forth the underlying facts and we need not repeat

them in detail. See Trial Court Opinion, filed 2/15/17, at 2-3. Briefly,

Appellant, along with two accomplices, robbed two teenagers and threatened

them with a gun, stating “Don’t run or I’ll shoot.” Id. The victims

eventually fled and called police, identifying one of Appellant’s accomplices

by name and Appellant’s vehicle. J-S83005-17

Officers familiar with both Appellant and his accomplice located

Appellant’s vehicle in the same neighborhood and stopped the vehicle. After

Appellant’s accomplice told police where the items taken from the victims

could be found, police recovered the victims’ belongings from the street near

Appellant’s vehicle, along with a .22-caliber firearm loaded with six live

rounds. Appellant did not have a license to possess his firearm, and he was

prohibited from possessing any firearm due to his prior Burglary conviction.

After a bench trial, the trial court convicted Appellant of the above

offenses. On October 24, 2016, the trial court sentenced Appellant to an

aggregate term of 4½ to 10 years’ incarceration, followed by five years’

probation. Appellant did not file a Post-Sentence Motion.

On November 16, 2016, Appellant filed a timely Notice of Appeal.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

In his sole issue on appeal, Appellant challenges the weight of the

evidence. See Appellant’s Brief at 7-12.

As an initial matter, a challenge to the weight of the evidence must be

preserved either in a Post-Sentence Motion, by a written motion before

sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607(A)(1)-(3). “The

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

evidence must be raised with the trial judge or it will be waived.” Comment

to Pa.R.Crim.P. 607. If an appellant never gives the trial court the

opportunity to provide relief, then there is no discretionary act that this

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Court can review. Commonwealth v. Thompson, 93 A.3d 478, 491 (Pa.

Super. 2014).

A claim challenging the weight of the evidence cannot be raised for the

first time in a Rule 1925(b) Statement. Commonwealth v. Burkett, 830

A.2d 1034, 1037 (Pa. Super. 2003). An appellant’s failure to avail himself of

any of the 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. at 1037 n.3.

Our review of the record indicates that Appellant failed to raise the

issue in the trial court prior to sentencing or in a Post-Sentence Motion.

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

1925(b) Statement. See Pa.R.Crim.P. 607; Burkett, supra. Accordingly,

we find that Appellant has waived his challenge to the weight of the

evidence.

Even if Appellant had preserved his challenge to the weight of the

evidence, we conclude he would not be entitled to relief. A trial court will

not grant relief on a weight of the evidence claim unless the verdict is so

contrary to the evidence as to shock one’s sense of justice.

Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007). An

appellate court will not substitute its assessment of credibility for that of the

finder of fact. Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super.

Ct. 2009).

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On appeal, this Court may not consider the underlying question of

whether the verdict is against the weight of the evidence; instead, we are

limited to evaluating only the trial court’s exercise of discretion in denying

that claim. Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014). As

our Supreme Court has made clear, reversal is only appropriate “where the

facts and inferences disclose a palpable abuse of discretion[.]” Id.

(citations omitted, emphasis in original). The trial court's denial of a weight

claim is the least assailable of its rulings. Commonwealth v. Diggs, 949

A.2d 873, 879-80 (Pa. 2008). See Commonwealth v. Morgan, 913 A.2d

906, 909 (Pa. Super. Ct. 2006) (stating that because trial court is in best

position to view the evidence presented, an appellate court will give that

court “the utmost consideration” when reviewing its weight determination).

After a thorough review of the certified record, the briefs of the

parties, the applicable law, and the comprehensive and well-reasoned

Opinion of the trial court, we conclude that there is no merit to Appellant’s

weight of the evidence claim on appeal. The trial court carefully evaluated

the record and the evidence in reviewing Appellant’s weight claim. See Trial

Court Opinion at 3-5. We discern no abuse of discretion in the trial court’s

denial of Appellant’s weight claim. Accordingly, we affirm.

Judgment of Sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/17/18

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