Com. v. Perez, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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