Com. v. Buckner, C. ( 2015 )

J-S36034-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CRAIG DARREL BUCKNER, :
:
Appellant : No. 1964 WDA 2014
Appeal from the Judgment of Sentence Entered November 27, 2013
in the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0002282-2010
BEFORE: PANELLA, JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 20, 2015
Craig Darrel Buckner (Appellant) appeals from a judgment of sentence
of an aggregate term of 162 to 324 months’ incarceration after being
convicted by a jury of rape, unlawful restraint, terroristic threats, possessing
instruments of crime, and simple assault. We affirm.
The trial court summarized the background underlying this matter as
follows.
[The Victim met Appellant during the summer of 2010, when she
was seventeen years old.] Over time, they developed a
relationship, which included sexual activity. On June 19, 2010,
she learned that she was pregnant.… [S]he eventually appeared
at [Appellant’s] residence on June 28, 2010.… At that time, he
called her a “whore”, “a dirty bitch” and accused her of sleeping
with other men.… At some point during this encounter, he stood
in front of the doorway blocking her exit. He told her that she
“f----d up his night so he was going to mess up her night”. He
then threatened to beat and kill her.
* Retired Senior Judge assigned to the Superior Court.
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[A]ppellant closed and locked the door and told the [V]ictim to
get into bed. Afraid, she complied. He pushed her and pulled
her hair and told her to remove her clothes. In fear, she
complied. He then pulled down her shorts and told her to take
off her underwear. She did so. Terrified and naked, she
attempted to make a cellphone call for help. [A]ppellant
grabbed it and threw it across the room. He then grabbed a belt
and hit the [V]ictim multiple times on her legs and rear. He
punched her in the face causing a bloody nose. During this
attack, he repeatedly threatened to kill her and her family. He
told her that he had a gun and a knife and that he would cut a
hole in her stomach. At one point, he dragged her to the attic to
find the knife. He then dragged her back to his bedroom and
attempted to force her to perform oral sex upon him, pulling her
head toward his penis. She resisted. In fear, she complied with
his request to mount him, during which she asked him to stop.
He then got on top of her and penetrated her with his penis. In
spite of her protestations, he did not stop the assault.
Eventually, [A]ppellant fell to sleep and the victim was able to
escape.… She was taken to St. Vincent Health Center for
performance of a rape examination. At trial, she described her
various injuries which were corroborated by the physical
evidence.
***
Forensic (DNA) evidence established that [A]ppellant’s sperm
was found in the fluid sample taken from the [V]ictim’s vagina.
[Appellant] admitted striking the [V]ictim with a belt when he
learned that she was pregnant.… The sex, he said, was
consensual, and denied that he ever threatened her, nor
restrained her from leaving his apartment. The jury rejected his
account.
Trial Court Opinion, 12/29/2014, at 3-6 (citations to transcript
omitted).
The jury found Appellant guilty of the aforementioned offenses on
July 23, 2013. Id. at 2. No direct appeal was taken. On September
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2, 2014, Appellant, pro se, filed a Post Conviction Relief Act (“PCRA”)1
petition, and counsel was appointed. On November 6, 2014, the PCRA
court reinstated Appellant’s appellate rights nunc pro tunc. Counsel
timely filed a notice of appeal on December 2, 2014, and both
Appellant and trial court complied with Pa.R.A.P. 1925(b). On appeal,
Appellant asks us to consider the following questions:
I. Whether the lower court committed legal error and abused its
discretion in denying the motion for judgment of acquittal as to
the criminal charges for rape, unlawful restraint and terroristic
threats given that there was insufficient evidence to support
guilty verdicts as to those respective criminal charges?
II. Whether the lower court committed legal error and abused its
discretion as to the treatment of the photographs of the physical
injuries sustained by the victim admitted into evidence by the
Commonwealth?
Appellant’s Brief at 2 (unnecessary capitalization omitted).
On appeal, Appellant argues that the trial court erred by denying his
motion for judgment of acquittal.2 Appellant’s Brief at 5. However, it is
unclear whether the Appellant is ultimately presenting a challenge to the
weight of the evidence or to the sufficiency of the evidence, as he confuses
1
42 Pa.C.S. §§ 9541-9545.
2
After the Commonwealth rested—when the trial court asked whether there
were any motions for consideration—Appellant’s counsel responded, “Oh
well, motion for judgment of acquittal.” N.T., 7/23/2013, at 62. The court
denied the motion, noting there was “sufficient evidence to go to the jury on
the charges.” Id.
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the requirements of each.3 Notably, he argues there was “minimal
extraneous evidence” to establish any of the crimes, and in the next breath
argues that the “alleged victim’s account was replete with factual
inaccuracies.” Appellant’s Brief at 5.
Either way, the claim is waived. To the extent that Appellant’s first
issue raises a claim that he is entitled to a new trial because the jury’s
verdict is contrary to the weight of the evidence, we conclude that the issue
is waived. In order to preserve a weight of the evidence claim for appellate
review, Appellant was required to present such a claim to the trial court in a
motion for a new trial orally before sentencing, by written motion before
sentencing, or in a post-sentence motion. Pa.R.Crim.P. 607(A). Appellant
did not file a post-sentence motion or a written motion before sentencing.
While he did make an oral pre-sentence motion, he did not request a new
trial in making that motion and, perhaps more importantly, made the motion
prior to the verdict. Thus, when he made that motion, any claim that the
verdict was contrary to the weight of the evidence was premature.
To the extent that Appellant’s first issue pertains to the sufficiency of
the evidence to support his convictions, we note that an appellant making a
sufficiency claim must “specifically discuss the elements of the crime and
3
In a sufficiency of the evidence claim, the defendant contends that the
Commonwealth failed to establish “each material element of the crime
charged and the commission thereof by the accused, beyond a reasonable
doubt.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)
(footnote and citations omitted). Conversely, in a weight of the evidence
claim, the claimant necessarily concedes there is sufficient evidence to
sustain the verdict. Id.
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identify those [elements] which he alleges the Commonwealth failed to
prove.” See Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super.
2014) (citations omitted).
Appellant specifically enumerates three of the five crimes he believes
the Commonwealth failed to prove he committed, namely, rape, unlawful
restraint, and terroristic threats. Appellant’s Brief at 5. However, because
Appellant has not indicated which elements of the crimes he believes the
Commonwealth failed to establish,4 he has waived any challenge to the
sufficiency of the evidence. For these reasons, Appellant is not entitled to
relief on his first issue.
We now turn to Appellant’s second issue, where he asserts that the
trial court erred as to “its treatment of the photographic evidence of the
alleged victim’s injuries.” Appellant’s Brief at 5. To the extent Appellant’s
second issue pertains to the admissibility of the photographs, we note
Appellant did not object to the admission of the photographs at trial. N.T.,
7/22/2013, at 98. In order to preserve a claim for review, the defendant
must make a timely and specific objection to the introduction of the
challenged evidence at trial. Commonwealth v. Gray, 867 A.2d 560, 574
(Pa. Super. 2005) (citations omitted). Thus, Appellant has waived this
issue.
To the extent that Appellant is challenging the trial court’s denial of his
4
Appellant does not tie any of his discussion to specific elements.
Appellant’s Brief at 4-5.
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request for a cautionary instruction to accompany the admission of the
photographs, the issue is moot. Although the trial court stated it would not
give an explicit cautionary instruction with respect to the photographs, it
ultimately did.5 Accordingly, to the extent Appellant is claiming the trial
court erred by denying his request for a special jury instruction, that issue is
moot.
Having concluded that all of Appellant’s arguments are either waived
or moot, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2015
5
N.T., 7/23/2013, at 43 (noting that an inflammatory instruction might be
modified) and 161 (instructing the jury that “[t]he photographs from this
case are not relevant or are not admitted to excite your passions nor to
make you sympathetic”).
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