Com. v. Corrigan, D. ( 2018 )


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  • 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    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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    J-S83005-17
    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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    J-S83005-17
    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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    J-S83005-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/17/18
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