Com. v. Newsome, B.

J-S34041-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRAKEER NEWSOME, :
:
Appellant : No. 159 WDA 2018
Appeal from the Judgment of Sentence January 11, 2018
in the Court of Common Pleas of Fayette County Criminal Division
at No(s): CP-26-CR-0000801-2017
BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 24, 2018
Brakeer Newsome (Appellant) appeals from his judgment of sentence
imposed following his conviction for aggravated harassment by prisoner. We
affirm.
The trial court summarized the factual and procedural history as follows.
Appellant, a “maximum security inmate” at the State
Correctional Institution of Fayette County [(SCI Fayette)], was
cited for misconduct resulting from hi[s] repeatedly obstructing
the view of his holding cell in violation of SCI Fayette’s inmate
safety protocols and procedures. Appellant was housed in SCI
Fayette’s (L5) restricted housing unit.
On December 19, 2016, at approximately 19[:]40 hours,
Lieutenant Chad Parker and his fellow correction[s] officers
responded and promptly removed Appellant and his personal
effects from his holding cell. Lieutenant Parker testified that
Appellant was strip searched per Department of Corrections’ policy
and was subsequently removed from his cell without problem or
showing signs of aggression. However, once Appellant entered
the prison’s common area, he chose not to move. [Lieutenant
*Retired Senior Judge assigned to the Superior Court.
J-S34041-18
Parker] also testified that he directed his officers to activate a
handheld camera to record Appellant’s behavior.
Lieutenant Parker further testified,
For some reason the camera wouldn’t work. I took a
step out to show the officer or to try to fix the problem
with the camera and as I did that I left myself
vulnerable and the inmate turned and spit in my face.
My eyes, my mouth. And then the officers, they took
him down to the floor to gain control a couple times
and we got him into a restraint chair to move him and
he was placed in our intake area to be held for another
officer to come and take charge of the situation.
[Lieutenant Parker] later testified that Appellant, after being
restrained, said “like that you little bitch.” Lieutenant Parker then
reported the incident and subsequently was treated for blood
borne diseases with antiviral medication.
[Following a jury trial,] Appellant was found guilty of
aggravated harassment by prisoner on January 4, 2018. He was
later sentenced on January 11, 2018, to undergo a term of
imprisonment no less than [27] months [to] no more than [6]
years.
Trial Court Opinion, 2/20/2018, at 2-3 (record citations and unnecessary
articles omitted).
Appellant did not file a post-sentence motion. He timely filed a notice
of appeal, and Appellant and the trial court complied with Pa.R.A.P. 1925. On
appeal, Appellant presents one issue: “[w]as the evidence insufficient to find
[] Appellant guilty beyond a reasonable doubt of the criminal charges?”1
Appellant’s Brief at 7 (unnecessary capitalization omitted).
1
Appellant used identical phrasing in his concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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Our standard of review in challenges to sufficiency of the evidence is to
determine
whether, viewing all the evidence admitted at trial in the light
most favorable to the [Commonwealth as the] verdict winner,
there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying [the
above] test, we may not weigh the evidence and substitute our
judgment for the fact-finder. In addition, we note that the facts
and circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015) (citation
omitted).
Appellant was convicted of the following crime:
§ 2703.1 Aggravated harassment by prisoner
A person who is confined in or committed to any local or county
detention facility, jail or prison or any State penal or correctional
institution or other State penal or correctional facility located in
this Commonwealth commits a felony of the third degree if he,
while so confined or committed …, intentionally or knowingly
causes or attempts to cause another to come into contact with
blood, seminal fluid, saliva, urine or feces by throwing, tossing,
spitting or expelling such fluid or material.
18 Pa.C.S. § 2703.1.
Appellant contends that the Commonwealth failed to prove the elements
of the crime beyond a reasonable doubt, although he never specifies which
specific elements the Commonwealth failed to prove. Appellant’s Brief at 10-
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15. Appellant concedes that witnesses for the Commonwealth testified that
Appellant spit on a corrections officer at SCI Fayette, but nevertheless states
in a conclusory fashion that the Commonwealth failed to present sufficient
evidence to convict Appellant of aggravated harassment by prisoner. Id. at
15. Appellant further argues that the “verdicts were against the evidence
since the testimony concerning the crimes charged was inconsistent and was
contradicted by testimonial evidence.” Id. at 13.
After review of the record and Appellant’s brief, we conclude that
Appellant is not entitled to relief. First, Appellant failed to preserve his
sufficiency challenge by filing a vague Pa.R.A.P. 1925(b) concise statement.
Appellant’s concise statement raised only a generic challenge and did not
specify precisely which elements of the crime he contends the Commonwealth
failed to prove. This Court has repeatedly required an appellant to specify in
the Rule 1925(b) statement the particular element or elements upon which
the evidence was insufficient. See, e.g., Commonwealth v. Roche, 153
A.3d 1063, 1072 (Pa. Super. 2017). But c.f. Commonwealth v. Laboy, 936
A.2d 1058, 1060 (Pa. 2007) (finding no waiver in a “relatively straightforward”
case if the trial court is able to identify the issues).
Even if Appellant did not waive his sufficiency challenge based upon the
deficient Rule 1925(b) statement, he certainly has waived his challenge by his
deficient appellate brief. Appellant fails to comply with multiple rules of
appellate procedure. Appellant’s statement of the case fails to set forth any
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facts or record citations. Compare Appellant’s Brief at 8 with Pa.R.A.P.
2117(a)(4). Moreover, Appellant’s argument is woefully undeveloped.
Compare Appellant’s Brief at 10-15 with Pa.R.A.P. 2119(a). Appellant
repetitively sets forth the general standard for sufficiency challenges, but like
his Rule 1925(b) concise statement, never specifies what he contends the
Commonwealth failed to prove.2 Nor does he analyze how the standard
applies to his case. Instead, he just repeats general case law and makes
conclusory statements. Thus, he has failed to develop the issue in any
meaningful fashion capable of review, and his challenge to the sufficiency of
the evidence is waived. Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.
Super. 2009) (finding that Gibbs waived his sufficiency claim by failing to
specify which elements he was challenging in his concise statement and brief
and by failing to cite to legal authority other than the general standard of
review); Commonwealth v. Patterson, 180 A.3d 1217, 1229 (Pa. Super.
2018) (finding waiver because appellant’s brief failed to develop an issue in
any meaningful fashion capable of appellate review).
Even if Appellant did not waive the sufficiency claim for the reasons
discussed above, he would still not be entitled to relief. Three corrections
2
In fact, in addition to failing to analyze the statute, Appellant never cites to
the statute under which he was convicted. Instead, Appellant cites to two
other criminal statutes that have nothing to do with his case. Appellant’s Brief
at 9 (citing to 18 Pa.C.S. § 3126(a)(4), which criminalizes indecent assault);
id. at 10 (citing to 18 Pa.C.S. § 5123(a.2), which criminalizes possession of
controlled substance contraband by an inmate).
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officers, including Lieutenant Parker, testified that they saw Appellant, while
he was confined at SCI Fayette, expel his saliva towards Lieutenant Parker.
N.T., 1/4/2018, at 12, 16, 28, 33. Specifically, Lieutenant Parker testified
that Appellant spit in his eye and mouth while Appellant was protesting his
removal from his cell for a disciplinary infraction. Id. at 12, 16. Corrections
Officer Robert Boscarino corroborated Lieutenant Parker’s testimony. Id. at
33. Corrections Officer Todd Tharpe also saw Appellant spit on Lieutenant
Parker after Appellant stopped cooperating with the corrections officers during
his removal from his cell, although he did not see specifically where the spit
landed. Id. at 28. Thus, it is clear that the Commonwealth proved all
elements of aggravated harassment by prisoner beyond a reasonable doubt.
See 18 Pa.C.S. § 2703.1.
Finally, we note that Appellant makes vague overtures towards
attacking the weight of the evidence in his brief. See Appellant’s Brief at 13,
15. However, Appellant has waived any challenge to the weight of the
evidence. First, he failed to preserve such a challenge before the trial court.
See Pa.R.Crim.P. 607; Commonwealth v. Lewis, 45 A.3d 405, 410 (Pa.
Super. 2012) (en banc). Second, neither his Rule 1925(b) concise statement
nor the statement of the issue he presents on appeal encompasses such a
challenge. Since challenges to weight and sufficiency are distinct legal claims,
he has waived the weight challenge by failing to include it. See
Commonwealth v. Kinney, 157 A.3d 968, 971–72 (Pa. Super. 2017). Third,
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similar to his sufficiency challenge, Appellant fails to develop meaningfully his
challenge to the weight of the evidence in his brief. Patterson, 180 A.3d at
1229.
Furthermore, even if Appellant had preserved a challenge to the weight
of the evidence, such a challenge would fail. “The weight of the evidence is
exclusively for the finder of fact, which is free to believe all, part, or none of
the evidence, and to assess the credibility of the witnesses.... An appellate
court cannot substitute its judgment for that of the jury on issues of
credibility.” Kinney, 157 A.3d at 80-81, n.3. Appellant vaguely argues that
there is some unspecified conflict in the testimony of the witnesses. Not only
are we unable to discern any conflict in the testimony of the three corrections
officers, the jury obviously credited their testimony. Because we may not
disturb the jury’s credibility determinations in this manner, this claim, if
preserved, would have failed. Id.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 7/24/2018
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