Com. v. Nowlin, R. ( 2021 )

J-S50041-20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT NOWLIN, :
:
Appellant : No. 50 EDA 2020
Appeal from the Judgment of Sentence Entered December 2, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004703-2018
BEFORE: BENDER, P.J.E., SHOGAN, J. and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED: APRIL 12, 2021
Appellant, Robert Nowlin, appeals from the judgment of sentence
entered on December 2, 2019 following his convictions for burglary, criminal
trespass, criminal mischief, and theft by unlawful taking.1 After review, we
affirm.
The trial court provided the following background.
On June 10, 2018, Officer [Jonathan] Harvey responded to a
burglary call at the Praise Power Deliverance church. Upon
arrival, the officer noticed the church alarm activated and a
broken window before encountering Appellant coming [around]
the side of the church. Appellant was wearing a black hoodie, a
black baseball hat, and a mask on his face with a green bag in
his hand. In addition, Appellant had an article of clothing
wrapped around his neck. The officer noticed Appellant’s hand
was cut[,] with blood on both of Appellant’s hands. Appellant’s
story to the officer attempting to explain where Appellant came
1 18 Pa.C.S. §§ 3502(a)(4), 3503(a)(1)(ii), 3304(a)(2), and 3921(a),
respectively.
*Retired Senior Judge assigned to the Superior Court.
J-S50041-20
from did not comport with the officer’s observations and initial
search of the outside streets. The officer searched Appellant’s
green bag and found a jar of peanut butter, gloves, a baseball
cap, one sneaker, and a pocketbook. The officer placed
Appellant into custody and, upon arrival of a church elder with a
key, entered the church to inspect and clear the inside of the
church. The officer walked to the basement and noticed blood
on the wall and on the glass door leading into the basement
room. In addition, the officer noticed the door leading to the
outside of the church appeared to be kicked and pushed
outward. The church elder testified Appellant did not have
permission to enter the church. The church elder further
inspected the pantry in the basement and noticed the entire
pantry was rummaged through, though due to the amount of
items in the basement the church elder could not assess what
had been taken or moved.
Trial Court Opinion, 2/11/20, at 1-2 (internal citations omitted). Based on
the foregoing, Appellant was charged with one count each of burglary,
criminal trespass, criminal mischief, theft by unlawful taking, and receiving
stolen property.
On September 16, 2019, Appellant proceeded to a nonjury trial, where
the Commonwealth presented evidence establishing the aforementioned
facts. Appellant testified in his own defense, explaining that he received the
cut on his hand from an altercation with an unknown person. N.T., 9/16/19,
at 73. After leaving the area of the altercation, Appellant walked down the
street and stopped at the church to urinate, whereupon he encountered
Officer Harvey. Id. at 75, 81. Appellant further explained that he used the
peanut butter, gloves, and mask for painting. Id. at 73–74, 77–78. At the
conclusion of the trial, the trial court found Appellant guilty as indicated
supra and not guilty of receiving stolen property. On December 2, 2019, the
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trial court sentenced Appellant to three to six months of house arrest
followed by two years of probation at each count, to run concurrently to
each other. Appellant did not file a post-sentence motion.
Appellant timely filed a notice of appeal.2 Both Appellant and the trial
court complied with Pa.R.A.P. 1925. On appeal, Appellant raises the
following issue for our review: “Did the court err in their affirmation of the
lower court’s guilty verdict against Appellant?” Appellant’s Brief at 7. It
appears from portions of Appellant’s brief that he interpreted the trial court’s
Rule 1925(a) opinion as a decision from this Court affirming the trial court’s
guilty verdict. See, e.g., Appellant’s Brief at 9. Nonetheless, in the
argument section of his brief, Appellant raises the same two issues he raised
in his concise statement, as follows:
1. [The] trial judge erred by convicting [Appellant] of burglary
which was against the weight and sufficiency of the evidence.
2 On June 16, 2020, this Court dismissed Appellant’s appeal for failure to file
a brief. Appellant was represented by the Defender’s Association of
Philadelphia at his trial and sentencing proceedings, and the Defender’s
Association filed Appellant’s notice of appeal on his behalf. Thereafter,
Douglas Dolfman, Esquire, was appointed to represent Appellant. Attorney
Dolfman entered his appearance in the trial court and filed a concise
statement on Appellant’s behalf. However, Attorney Dolfman did not enter
his appearance in this Court, and the Defender’s Association remained
counsel of record. The Defender’s Association continued to receive notices
from this Court pertaining to this appeal, which it forwarded to Attorney
Dolfman. Upon learning of the dismissal, the Defender’s Association filed a
petition to reinstate the appeal on Appellant’s behalf. We granted the
application and directed the Prothonotary to replace the Defender’s
Association with Attorney Dolfman as attorney of record.
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2. [T]rial counsel was ineffective in representing [Appellant] by
failing to investigate the case and advising [Appellant] of all
his trial options.
Pa.R.A.P. 1925(b) Statement, 2/3/20; Appellant’s Brief at 10–11. While
Appellant has failed to comply with Pa.R.A.P. 2116 and 2119, we decline to
find waiver because his noncompliance has not impeded our review.
We begin with Appellant’s combined weight/sufficiency challenge.
Initially, we observe that these represent distinct challenges.
The distinction between these two challenges is critical. A claim
challenging the sufficiency of the evidence, if granted, would
preclude retrial under the double jeopardy provisions of the Fifth
Amendment to the United States Constitution, and Article I,
Section 10 of the Pennsylvania Constitution, whereas a claim
challenging the weight of the evidence if granted would permit a
second trial.
A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing
a sufficiency claim the court is required to view the evidence in
the light most favorable to the verdict winner giving the
prosecution the benefit of all reasonable inferences to be drawn
from the evidence.
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence … concedes that there
is sufficient evidence to sustain the verdict. Thus, the trial court
is under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. A trial judge
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must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were
a juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice.
Commonwealth v. Rivera, 238 A.3d 482, 495 (Pa. Super. 2020) (quoting
Commonwealth v. Widmer, 744 A.2d 745, 751–752 (Pa. 2000) (footnote,
quotation marks, and some citations omitted)), appeal denied, ___ A.3d
___, 2021 WL 958550 (Pa. filed March 15, 2021).
Before we address the merits of Appellant’s weight and sufficiency
claims, we must determine whether Appellant has preserved them for our
review. “[A] weight of the evidence claim must be preserved either in a
post-sentence motion, by a written motion before sentencing, or orally prior
to sentencing. Failure to properly preserve the claim will result in waiver,
even if the trial court addresses the issue in its opinion.” Commonwealth
v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012) (citations omitted). Here,
Appellant did not file a post-sentence motion or raise a weight challenge
orally prior to sentencing. Accordingly, Appellant’s weight claim is waived.
Turning to Appellant’s sufficiency challenge:
We have repeatedly held that in order to preserve a challenge to
the sufficiency of the evidence on appeal, an appellant’s
Pa.R.A.P. 1925(b) statement must state with specificity the
element or elements upon which the appellant alleges that the
evidence was insufficient. ... Therefore, when an appellant’s
1925(b) statement fails to “specify the element or elements
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upon which the evidence was insufficient,... the sufficiency issue
is waived on appeal.”
Commonwealth v. Ellison, 213 A.3d 312, 320–321 (Pa. Super. 2019)
(citations and quotation marks omitted), (citing Commonwealth v. Stiles,
143 A.3d 968, 982 (Pa. Super. 2016)), appeal denied, 220 A.3d 531 (Pa.
2019). Here, Appellant failed to specify in his concise statement the
element or elements of burglary upon which he contends the evidence was
insufficient. Nonetheless, because Appellant challenges only a single
conviction with straightforward facts, and the trial court readily apprehended
his claims, we decline to find waiver. See Commonwealth v. Laboy, 936
A.2d 1058 (Pa. 2007).
Appellant was found guilty of 18 Pa.C.S. § 3502(a)(4), which provides
as follows. “A person commits the offense of burglary if, with the intent to
commit a crime therein, the person… enters a building or occupied
structure… that is not adapted for overnight accommodations in which at the
time of the offense no person is present.” 18 Pa.C.S. § 3502(a)(4).
In determining there was sufficient evidence to convict Appellant of
burglary, the trial court found Appellant’s testimony incredible. Trial Court
Opinion, 2/11/20, at 4. The court concluded that Appellant’s movements
and dark clothing were circumstantial evidence of Appellant’s attempt to be
inconspicuous; the trial court also relied on the fact that Appellant had:
wrapped clothing around his neck to further protect himself
when entering the church through the broken window. Appellant
brought a bag to place stolen items in and police discovered the
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peanut butter jar inside the bag. The church elder testified the
pantry was rummaged through, and though he [was] unclear
what was taken, it is beyond a reasonable doubt Appellant
intended to steal items from the church.
Id.
On appeal, Appellant avers that no witnesses observed Appellant enter
the church. Appellant’s Brief at 10. He underscores that the church elder
was unable to state if anything had been taken from the pantry, and
Appellant explained why he had blood on his hands when Officer Harvey
encountered him outside of the church. Id. Finally, Appellant contends that
“the mere fact that [he] was wearing a dark hoodie on the night of the
incident is not indicative of his intent to commit a crime.” Id.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, we conclude there was sufficient evidence to establish
that Appellant entered the church with the intent to steal from the pantry.
See Commonwealth v. Baker, 201 A.3d 791, 795 (Pa. Super. 2018)
(citations omitted) (“The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial evidence.
Moreover, as an appellate court, we may not re-weigh the evidence and
substitute our judgment for that of the fact-finder.”). Accordingly, Appellant
is not entitled to relief on this claim.
Finally, we address Appellant’s ineffective-assistance-of-counsel claim.
Generally, claims of ineffective assistance of counsel are not cognizable on
direct appeal and must be deferred to collateral review under the Post
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Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Commonwealth
v. Holmes, 79 A.3d 562, 576 (Pa. 2013). However:
[t]hree exceptions have been recognized to the general rule that
ineffective assistance claims may not be raised in a direct
appeal: (i) in “extraordinary circumstances where a discrete
claim (or claims) of trial counsel ineffectiveness is apparent from
the record and meritorious to the extent that immediate
consideration best serves the interests of justice”; (ii) where the
defendant asserts multiple ineffective assistance claims, shows
good cause for direct review of those claims, and expressly
waives his entitlement to PCRA review before the trial court; and
(iii) “where the defendant is statutorily precluded from obtaining
subsequent PCRA review.” Commonwealth v. Delgros, 183
A.3d 352, 360-61 (Pa. 2018); Holmes, 79 A.3d at 563-64.
Commonwealth v. Rosenthal, 233 A.3d 880, 887 (Pa. Super. 2020)
(internal citation format altered).
Appellant does not assert that any of these exceptions applies to him,
and based upon our review, we conclude that none applies. As to the first
exception, Appellant’s claim that counsel failed to investigate the case and
advise Appellant of all of his trial options is not apparent from the record. As
to the second exception, Appellant has not shown good cause or expressly
waived his entitlement to PCRA review. Finally, as to the third exception,
Appellant was sentenced on December 2, 2019, to three to six months of
house arrest, followed by two years of probation. Assuming Appellant does
not violate the terms of his probation, his sentence will not expire until
June 2, 2022, and he is not statutorily precluded from seeking PCRA review.
Having failed to invoke any of these exceptions, we may not reach
Appellant’s ineffective-assistance-of-counsel claim.
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Judgment of sentence affirmed.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/21
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