Com. v. Cook, I.

J-S52023-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
IKIESHA F. COOK :
:
Appellant : No. 2320 EDA 2018
Appeal from the Judgment of Sentence Entered July 23, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0011847-2013.
BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 27, 2019
Ikiesha F. Cook appeals from the judgment of sentence imposed after
the trial court found her guilty of endangering the welfare of a child and
recklessly endangering another person.1 Upon review, we affirm.
The facts are fully set forth in the trial court’s opinion. Briefly, we note
that Cook’s convictions arose from her failure to adequately feed her foster
child, S.M. S.M. is a 10 year old girl, who suffered from various physical and
mental disorders. She had been in Cook’s care for several years. While living
with Cook, S.M. failed to thrive. She suffered from extreme physical
underdevelopment and abnormally low weight. Eventually, because of her
weight, S.M. was referred to Children’s Hospital of Philadelphia and admitted
for severe malnutrition. At the time, she weighed only 48 ½ pounds. During
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1 18 Pa.C.S.A. § 4304 and 18 Pa.C.S.A. § 2705.
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her hospital stay, S.M. ate regularly without issue and quickly gained over 2
pounds during her brief stay. Following her hospitalization, S.M. was placed
with another foster parent. There, she continued to thrive, gaining 18 pounds
in only 2 months. Thereafter, Cook was arrested and charged.
Following a bench trial, the court found Cook guilty of endangering the
welfare of a child and recklessly endangering another person. The trial court
sentenced Cook to 11 ½ to 23 months of imprisonment followed by 2 years of
probation on these charges.
Cook filed a post-sentence motion. However, only two days later and
before the trial court could rule on her motion, Cook filed a notice of appeal.2
Cook and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
On appeal, Cook raises a single issue:
Was the verdict of the trial court rendered wholly against the
weight of the evidence?
Cook’s Brief at 2.
Initially, we note that an appellant must preserve a claim that the verdict
is against the weight of the evidence with the trial court by a motion for a new
trial. Pennsylvania Rule of Criminal Procedure 607(A) provides an appellant
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2 Upon receipt of Cook’s appeal, this Court issued a rule to show cause why
the appeal should not be dismissed as interlocutory. At Cook’s request, we
accepted the appeal as filed after the entry of an appealable order. See
Pa.R.A.P. 905(a)(5).
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three ways in which to preserve the issue: 1) orally, on the record, at any
time before sentencing; 2) by written motion at any time before sentencing;
or 3) in a post-sentence motion. Pa.R.Crim.P. 607(A)(1)-(3).
A claim challenging the weight of the evidence generally cannot be
raised for the first time in a Rule 1925(b) statement. Commonwealth v.
Sherwood, 982 A.2d 483, 494 (Pa. 2009). If an appellant challenges the
verdict on the weight of the evidence in a Rule 1925(b) statement without
having followed Rule 607, and the trial court addresses that issue in its Rule
1925(a) opinion, this court cannot address the merits of the weight claim. Id.“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.” Commonwealth v. Weir, 201 A.3d 163, 167 (Pa. Super.
2018), appeal granted, 215 A.3d 966 (2019); see also Comment to
Pa.R.Crim.P. 607.
Our review of the record reveals that Cook did not present her weight
claim to the trial court as required under Pennsylvania Rule of Criminal
Procedure 607. She did not raise it any time prior to sentencing, either orally
or by written motion. See Pa.R.Crim.P. 607(A)(1)-(2). Additionally, although
Cook filed a post-sentence motion, Cook did not raise it therein; she only
challenged her sentence. See Pa.R.Crim.P. 607(A)(3). Instead, Cook
impermissibly raised her weight claim for the first time in her Pa.R.A.P.
1925(b) statement. See Sherwood, 982 A.2d at 494. Moreover, even
though the trial court addressed her weight claim in its Pa.R.A.P. 1925(a)
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opinion, in the absence of a motion to the trial court, Cook did not preserve
her weight claim. See Comment to Pa.R.Crim.P. 607(a); Weir, 201 A.3d at
167. In short, Cook waived her weight claim, and, we cannot address the
merits of her appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/2019
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