Com. v. Graham, A. ( 2016 )

J-S01043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AKEEM GRAHAM
Appellant No. 3109 EDA 2014
Appeal from the Judgment of Sentence June 6, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002343-2014
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 13, 2016
Appellant, Akeem Graham, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
bench trial conviction for criminal trespass.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On January 28, 2014, Philadelphia Police Officers Schmidt and Latorre
responded to a report of a burglary in progress at 5648 Pentridge Street.
Upon arrival, Officer Schmidt heard voices and the sound of metal hitting
concrete coming from the basement of the vacant home. He announced
himself as a police officer as he entered the basement, at which time he saw
Appellant and another male flee from the property. Officer Schmidt reported
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1
18 Pa.C.S.A. § 3503 (a)(1)(ii).
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over the police radio that two men were running away from the building and
stated one suspect was wearing a gray hoodie. The officer recovered a
crowbar, bolt cutters, and several cut copper pipes from the basement.
Meanwhile, Officer Latorre observed Appellant running from the building and
apprehended him after a short pursuit. Appellant wore a blue sweatshirt
and blue jeans. After Officer Latorre apprehended Appellant, Officer Schmidt
identified Appellant as one of the men he had seen in the basement.
The real estate manager of the property testified he conducted a
weekly inspection of the home to ensure it remained locked and secure.
When he visited the property the day before Appellant’s arrest, both doors to
the home were locked. Following the incident, the manager visited the
property and observed that someone had forced open the back door and
that copper piping in the basement was disconnected.
On March 10, 2014, the Commonwealth filed a criminal information
charging Appellant with multiple offenses, including criminal trespass.
Following a bench trial on May 29, 2014, the court convicted Appellant of
criminal trespass and acquitted him of all other charges. The court
sentenced Appellant to two years’ probation, on June 6, 2014. Appellant
timely filed a post-sentence motion on June 13, 2014. On October 14, 2014,
the motion was denied by operation of law. Appellant filed a notice of
appeal on November 4, 2014. The court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
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on November 6, 2014, and Appellant timely complied.
Appellant raises the following issue for our review:
WAS NOT THE VERDICT AGAINST THE WEIGHT OF THE
EVIDENCE WHERE THE NUMBER AND DEGREE OF
INCONSISTENCIES IN THE OFFICERS’ TESTIMONY CAST
SUCH SERIOUS DOUBT UPON THE VALIDITY OF THE
DEFENDANT’S CONVICTION THAT HIS CONVICTION
SHOCKS THE CONSCIENCE?
(Appellant’s Brief at 3).
Appellant argues Officer Schmidt’s communications over his police
radio failed to show he was actually in the basement at the same time as the
two suspects. Appellant contends Officer Schmidt’s radio transmission
giving a description of one of the suspects contradicted his later testimony
that he saw Appellant fleeing the property. Appellant maintains Officer
Schmidt’s only description over the radio was of a man wearing a gray
hoodie, and Appellant was wearing a blue sweatshirt and blue jeans when
Officer Latorre arrested him. Appellant also claims Officer Latorre gave
inconsistent testimony about his location during the incident and could not
have seen two men fleeing the property from that position. Appellant avers
Officer Latorre lost eye contact with the suspect he was chasing and
mistakenly arrested Appellant instead. Appellant asserts his arrest occurred
as he was returning to his home, located on the same block where Officer
Latorre stopped him. Appellant concludes the officers’ testimony at trial was
so riddled with inconsistencies as to be against the weight of the evidence.
We disagree.
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The following principles apply to our review of a weight of the evidence
claim:
The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
of the evidence 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…verdict if it is so contrary to
the evidence as to shock one’s sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672-73 (1999). 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)
(most internal citations omitted). “A weight of the evidence claim concedes
that the evidence is sufficient to sustain the verdict, but seeks a new trial on
the ground that the evidence was so one-sided or so weighted in favor of
acquittal that a guilty verdict shocks one’s sense of justice.”
Commonwealth v. Lyons, 622 Pa. 91, 116, 79 A.3d 1053, 1067 (2013),
cert. denied, 134 S.Ct. 1792, 188 L.Ed.2d 761 (2014).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Daniel D.
McCaffery, we conclude Appellant’s issue merits no relief. The trial court
opinion comprehensively discusses and properly disposes of the question
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presented. (See Trial Court Opinion, filed April 15, 2015, at 6-7) (finding:
officers responded immediately to radio call of burglary in progress; officers
saw two men inside residence flee when they became aware of police
presence; pursuing officer maintained sight of Appellant from time Appellant
fled building until officer apprehended him; undisputed evidence showed
break-in occurred on premises, and Appellant did not have permission to be
inside building; minor inconsistencies between officers’ testimony at trial and
content of radio broadcasts were de minimis, where court found credible
officers’ testimony that Appellant was individual who fled property;
conviction on charge of criminal trespass was not so contrary to weight of
evidence as to shock conscience of court, and record supports court’s finding
of Appellant’s guilt). Based on the foregoing, we see no abuse of discretion
in the trial court’s assessment of Appellant’s weight of the evidence claim.
See Lyons, supra; Champney, supra. Accordingly, we affirm on the basis
of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2016
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Circulated 12/22/2015 03:28 PM