Com. v. Rivera, A.

J. S62038/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ALEX EDDIE RIVERA, : No. 838 WDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered January 8, 2019,
in the Court of Common Pleas of Cambria County
Criminal Division at No. CP-11-CR-0000407-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 10, 2020
Alex Eddie Rivera appeals from the January 8, 2019 judgment of
sentence entered by the Court of Common Pleas of Cambria County following
his conviction of two counts each of theft by unlawful taking — movable
property, receiving stolen property, and recklessly endangering another
person (“REAP”) and one count each of robbery and terroristic threats.1 After
careful review, we affirm.
The record reflects the following factual history: On January 23, 2018,
appellant knocked on a screen door leading into a residence rented by
Tyler Carrier and Keith Seabolt. Mr. Seabolt admitted appellant into the
residence. Several minutes after he entered the residence, appellant
1 18 Pa.C.S.A. §§ 3921(a), 3925(a), 2705, 3701(a)(1), and 2706(a)(1),
respectively.
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appeared to make a gesture that could be seen through the screen door. After
appellant made the gesture, two men wearing ski masks—both of which were
carrying weapons—entered the residence. The record further reflects that
appellant and one of his co-conspirators took cell phones, marijuana, money,
and a handgun belonging to Mr. Seabolt.
The trial court set forth the following procedural history:
On November 27, 2018, a two-day jury trial took place
before [the trial court] where [appellant] represented
himself pro se and was convicted of [the
aforementioned offenses] that occurred on
January 23, 2018. . . . [Appellant] was sentenced by
[the trial court] on January 8, 2019 to a mandatory
term of incarceration of 10-20 years in the state
system for robbery [], pursuant to 42 Pa.C.S.A.
[§] 9714(a). [Appellant] timely filed post-sentence
motions on January 17, 2019.
Trial court opinion, 5/7/19 at 1-2 (extraneous capitalization omitted).
The trial court denied appellant’s post-sentence motions on May 7,
2019. Appellant filed a timely notice of appeal. Pursuant to
Pa.R.A.P. 1925(b), the trial court ordered appellant to file a concise statement
of errors complained of on appeal and appellant timely complied. In lieu of a
Pa.R.A.P. 1925(a) opinion, the trial court relies upon the opinion
accompanying its May 7, 2019 order denying appellant’s post-sentence
motions.
Appellant raises the following issues for our review:
1. [A]ppellant submits that his conviction for the
following counts[:] (Count 1) robbery (F1);
[(]Count 2) receiving stolen property (F2);
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(Count 3) theft by unlawful taking – movable
property (F2); (Count 4) theft by unlawful
taking – movable property (M1); (Count 6)
terroristic threats (M1); (Count 7) terroristic
threats (M1); (Count 8) receiving stolen
property (M1); (Count 10) recklessly
endangering another person (M2); and
(Count 11) [REAP] (M2), was [sic] against the
weight and sufficiency of the evidence as
presented by the Commonwealth at trial.
2. [A]ppellant respectfully submits that the trial
court erred in denying his pre-trial motion
in limine in regards to the alleged firearm
belonging to one of the alleged victims.
3. [A]ppellant respectfully submits that the trial
court erred in denying his post-sentence motion
in regards to after-discovered evidence which
contradicted information provided to him in
pre-trial discovery by the Commonwealth.
Appellant’s brief at 5 (extraneous capitalization omitted).
In his first issue, appellant blends challenges of the sufficiency and
weight of the evidence. Our supreme court has explained the difference
between the two distinct grounds for appealing a conviction:
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, Tibbs v.
Florida, 457 U.S. 31 [] (1982); Commonwealth v.
Vogel, [] 461 A.2d 604 ([Pa.] 1983), whereas a claim
challenging the weight of the evidence if granted
would permit a second trial. Id.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
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material element of the crime charged and the
commission thereof by the accused, beyond a
reasonable doubt. Commonwealth v. Karkaria, []
625 A.2d 1167 ([Pa.] 1993). 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. Commonwealth v.
Santana, [] 333 A.2d 876 ([Pa.] 1975). 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.
Commonwealth v. Chambers, [] 599 A.2d 630([Pa.] 1991).
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.
Commonwealth v. Whiteman, [] 485 A.2d 459([Pa.Super.] 1984). Thus, the trial court is under no
obligation to view the evidence in the light most
favorable to the verdict winner. Tibbs, 457 U.S. at
38 n.11 []. An allegation that the verdict is against
the weight of the evidence is addressed to the
discretion of the trial court. Commonwealth v.
Brown, [] 648 A.2d 1177 ([Pa.] 1994). 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.
Thompson, supra. A trial judge 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.” Id.
Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000) (footnote
omitted).
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In his argument on this issue, appellant challenges witness credibility.
(See appellant’s brief at 16-18.) It is well settled that challenges relating to
witness credibility are weight of the evidence challenges, rather than
sufficiency challenges. See e.g. Commonwealth v. Barker, 70 A.3d 849,
855 (Pa.Super. 2013) (en banc), appeal denied, 87 A.3d 814 (Pa. 2014);
abrogated on other grounds, Nardone v. Com., Dept. of Transp.,
Bureau of Driver Licensing, 130 A.3d 738 (Pa. 2015). Put another way,
because appellant’s sufficiency of the evidence claim solely attacks witness
credibility, his sufficiency of the evidence claim is actually a weight of the
evidence claim, and we shall proceed to review this issue as such.
Specifically, appellant, “emphasize[s] that there were numerous
inconsistencies set forth by the Commonwealth’s witnesses which would
require the trial court to set aside appellant’s conviction as his conviction []
does indeed shock one’s conscience regarding fairness and justice.”
(Appellant’s brief at 18 (extraneous capitalization omitted, emphasis in
original).)
Here, appellant extends an invitation for us to reassess the jury’s
credibility determinations in his favor. This is an invitation that we must
decline. Because we cannot substitute the jury’s judgment on witness
credibility with our own, we conclude that the trial court did not abuse its
discretion when it denied appellant’s weight of the evidence challenge.
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In his second issue, appellant argues that the trial court erred when it
denied his motion in limine in regards to a firearm belonging to Mr. Seabolt,
that appellant is alleged to have stolen. (Appellant’s brief at 19.) Specifically,
appellant contends that,
the testimony and evidence presented by the
Commonwealth at the November 20, 2018 argument
on his pre-trial motion in limine was contradicted
during his trial on the first day as it turned out that
the gun box the Commonwealth originally presented
as being the gun box containing the gun belonging to
the alleged victim, was actually the gun box registered
for a different gun belonging to the alleged victim’s
[grand]father.
Id. (extraneous capitalization omitted).
When reviewing the denial of a motion in limine, we
apply an evidentiary abuse of discretion standard of
review. See Commonwealth v. Zugay, 745 A.2d
639 (Pa.[Super.] 2000) (explaining that because a
motion in limine is a procedure for obtaining a ruling
on the admissibility of evidence prior to trial, which is
similar to ruling on a motion to suppress evidence, our
standard of review for a motion in limine is the same
of that of a motion to suppress). The admission of
evidence is committed to the sound discretion of the
trial court and our review is for an abuse of discretion.
Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa.Super. 2018), appeal
denied, 197 A.3d 1180 (Pa. 2018), quoting Commonwealth v. Stokes, 78
A.3d 644, 654 (Pa.Super. 2013), appeal denied, 89 A.3d 661 (Pa. 2014)
(some citations omitted). This court has further stated that in order to
constitute reversible error, “an evidentiary ruling must not only be erroneous,
but also harmful or prejudicial to the complaining party.” Commonwealth
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v. Schley, 136 A.3d 511, 515 (Pa.Super. 2016), quoting Commonwealth v.
Lopez, 57 A.3d 74, 81 (Pa.Super. 2012) (citation omitted).
Here, we find that appellant has not proven that the trial court’s denial
of his motion in limine was harmful and prejudicial. To the contrary, as noted
by the Commonwealth, the admission of the gun box served to highlight that
Mr. Seabolt did not initially provide accurate information to the police. (See
Commonwealth’s brief at 8.) Indeed, Mr. Seabolt testified at trial that he
mistakenly provided a gun box to the police that did not match the serial
number of the gun allegedly stolen. (Notes of testimony, 11/26/18 at
112-113.) Accordingly, we find that appellant was not prejudiced by the trial
court’s denial of his motion in limine, therefore, appellant’s second issue is
without merit.
In his final issue, appellant contends that the trial court erred when it
refused to grant him a new trial “as after-discovered evidence contradicted
information provided to him in pre-trial discovery by the Commonwealth.”
(Appellant’s brief at 27.)
Our supreme court has held the following pertaining to after-discovered
evidence:
After-discovered evidence is the basis for a new trial
when it: 1) has been discovered after the trial and
could not have been obtained at or prior to the
conclusion of trial by the exercise of reasonable
diligence; 2) is not merely corroborative or
cumulative; 3) will not be used solely for impeaching
the credibility of a witness; and 4) is of such nature
and character that a new verdict will likely result if a
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new trial is granted. Commonwealth v. Boyle, []
625 A.2d 616, 622 ([Pa.] 1993); Commonwealth v.
Smith, [] 540 A.2d 246, 263 ([Pa.] 1988).
Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011),
cert. denied sub nom. Chamberlain v. Pennsylvania, 566 U.S. 986(2012).
Here, appellant avers that following trial, he learned of two crimen falsi
convictions that Mr. Seabolt had in Virginia.2 (Appellant’s brief at 27.)
Appellant further avers that in pre-trial discovery, the Commonwealth
maintained that Mr. Seabolt did not have a criminal record based on a search
of Pennsylvania criminal history files. (Id.)
Pursuant to the Pennsylvania Rules of Evidence, evidence of
crimen falsi convictions must be admitted for the purpose of attacking
the credibility of a witness. Pa.R.E. 609(a); see also Commonwealth v.
Foreman, 55 A.3d 532, 538 (Pa.Super. 2012) (Wecht, J., concurring) (stating
that crimen falsi evidence “can be admitted only for impeachment
purposes”).
In his brief, appellant contends that in addition to impeaching
Mr. Seabolt with evidence of his crimen falsi convictions, appellant intended
to use this evidence “in conjunction with [his] defense as it pertained to the
existence (or not) of the alleged firearm which was stolen.” (Appellant’s brief
2 Appellant maintains that Mr. Seabolt pleaded guilty to identity theft and
“credit card” in 2010 and 2011, respectively. (Appellant’s brief at 27.)
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at 29 (brackets added; parentheses in original).) We find that appellant has
not established that he intended to use this evidence for any purpose other
than impeaching Mr. Seabolt’s credibility. Accordingly, this evidence cannot
be the basis for a new trial, and appellant’s third issue is without merit.
Chamberlain, 30 A.3d at 414.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2020
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