Com. v. Perez, J.

Opinion

J-S32009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : v. : : JUAN PEREZ : : Appellant : 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. §§ 3701(a)(1)(iv), 3921(a), 3925(a), and 2701(a), respectively.

___________________________

*Former Justice specially assigned to the Superior Court 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 CROSS- EXAMINATION 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). The record

-8- 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