Com. v. Rivera, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMIE J. RIVERA :
:
Appellant : No. 749 WDA 2021
Appeal from the Judgment of Sentence Entered June 23, 2021
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0002070-2019
BEFORE: LAZARUS, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: APRIL 01, 2022
Jamie J. Rivera appeals from the judgment of sentence imposed
following his conviction for summary harassment.1 We affirm.
The relevant factual and procedural history of this case is as follows. On
July 25, 2019, Rivera was staying with his girlfriend, Jessica Fair, who had two
children: G.F., an approximately 14-month-old child; and six-year-old E.F.
That evening, Ms. Fair fell asleep with E.F. in one room, and permitted Rivera
to take G.F. to his room down the hall because she was “fussing.” N.T.,
6/22/21, at 33. At that time, G.F. had “a few marks on her forehead,” as well
as some scratches and other marks on her face. Id. at 34. Ms. Fair testified
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. § 2709(a)(1).
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that she believed these marks came from G.F. falling at an aunt’s house, being
scratched by the family cat, or causing them herself.2 Id. Later that night,
Ms. Fair entered Rivera’s room and climbed into bed next to him and G.F. As
she did so, Rivera told her his tool bag had fallen on G.F. The next morning,
Rivera left for work. Ms. Fair later woke up, and when she began to remove
G.F.’s nightgown, she found additional marks on G.F. Id. Ms. Fair took G.F.
to a MedExpress, where medical personnel referred her to Children’s Hospital
of Pittsburgh. Id. at 36.
Dr. Jennifer Wolford, a physician at Children’s Hospital, examined G.F.
and found, among other things, bruising on both sides of her body under each
arm, as well as several coalesced bruises on her right thigh. Id. at 112, 114.
Dr. Wolford concluded that G.F. was the victim of child abuse based on the
number and pattern of the bruises. Id. at 119-20. A Childline report was
issued concerning G.F, and police initiated an investigation. Id. at 137-38.
The Commonwealth ultimately charged Rivera with several felony and
misdemeanor offenses, namely, aggravated assault, endangering the welfare
of a child (“EWOC”), simple assault, recklessly endangering another person
(“REAP”), and summary harassment.3
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2 None of these marks were at issue at Rivera’s trial.
3 See 18 Pa.C.S.A. §§ 2702(a)(8), 4304(a)(1), 2701(a)(1), 2705, and
2709(a)(1).
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Rivera proceeded to a simultaneous jury and bench trial, whereby the
jury would consider aggravated and simple assault, EWOC, and REAP, and the
trial court would consider the summary harassment charge. The jury
acquitted Rivera on all charges it considered. Immediately thereafter, the trial
court found Rivera guilty of summary harassment and imposed sentence. See
N.T., 6/23/21, at 48-50. At that time, Rivera challenged the trial court’s
verdict as being at odds with the jury’s verdict. Id. Rivera timely appealed
his judgment of sentence, and both he and the trial court complied with
Pa.R.A.P. 1925.
Rivera raises the following issue for our review: “Whether the trial court
abused its discretion, or erred as a matter of law, when it found [Rivera] guilty
of [h]arassment immediately following a full acquittal of interrelated
misdemeanor and felony offenses following a jury trial?” Rivera’s Brief at 8.
Rivera claims that the trial court’s verdict of guilt is erroneous because
it is inconsistent with the jury’s verdict of acquittal on the other charges. As
a challenge based on inconsistent verdicts “raises a pure question of law, our
review is de novo.” Commonwealth v. Rose, 960 A.2d 149, 155 (Pa. Super.
2008) (internal citation omitted); see also Commonwealth v. Barger, 956
A.2d 458, 461 (Pa. Super. 2008) (en banc).
Although inconsistent verdicts may run contrary to logic, Pennsylvania
courts have allowed and upheld them. See Commonwealth v. Jordan, 256
A.3d 1094, 1107 (Pa. 2021). This long-standing principle applies in the
context of a simultaneous jury and bench trial. Id. In a simultaneous jury
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and bench trial, the trial court, as an independent fact-finder, is not bound by
the jury’s verdict, even where the jury acquits on the charges before it. Id.;
see also Commonwealth v. Yachymiak, 505 A.2d 1024, 1026-27 (Pa.
Super. 1986) (holding that an acquittal “cannot be interpreted as a specific
finding in relation to some of the evidence,” and inconsistent verdicts in a
simultaneous jury and bench trial are not grounds for a new trial or reversal).
If we “[w]ere [] to adopt [the] contrary position, the jury could usurp the trial
court’s proper role as the trier of fact in the bench portion of such
proceedings.” Jordan, 256 A.3d at 1107 (internal citation omitted).
Rivera argues that the trial court “committed an error of law and abused
its discretion when it found [him] guilty of harassment immediately following
a full acquittal by a jury of interrelated misdemeanor and felony offenses.”
Rivera’s Brief at 13. He alleges that, given the jury’s finding of not guilty for
all of the charges it considered, this Court should view “the evidence in a light
most favorable to him,” and conclude that the trial court could not have found
sufficient evidence for physical contact or intent to harass, annoy or alarm
G.F. Id. at 18-19.
The trial court considered Rivera’s inconsistent verdict claim and
determined that it lacked merit. The trial court explained that it rendered an
independent finding that the Commonwealth’s evidence established Rivera’s
guilt on the summary harassment charge beyond a reasonable doubt. See
Trial Court Opinion, 8/17/21, at 2.
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We discern no error by the trial court in determining that it could render
a verdict of guilt independently of the jury’s verdict of acquittal. As explained
above, inconsistent verdicts are permissible in simultaneous jury and bench
trials. See Jordan, 256 A.3d at 1107; see also Yachymiak, 505 A.2d at
1027. In such proceedings, the trial judge is not bound by the jury’s verdict
of acquittal and is not required to view the evidence in the light most favorable
to the defendant. Instead, as in the instant matter, the trial judge acts as an
independent trier of fact. Accordingly, Rivera’s issue merits no relief.4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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4 Rivera also purports to raise a challenge to the sufficiency of the evidence
supporting his summary harassment conviction. See, Rivera’s Brief at 13, 16.
However, in his concise statement, Rivera only challenged the inconsistency
of the verdicts, and did not specifically raise a sufficiency challenge. See
Commonwealth v. Moore, 103 A.3d 1240, 1242 n.3 (Pa. 2014) (recognizing
“that a court’s review of the evidentiary sufficiency of a particular conviction
is separate from its review of inconsistent verdicts”); see also
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that any
issues not raised in Rule 1925(b) statement are waived). Moreover, Rivera’s
concise statement did not identify the specific element(s) of summary
harassment that he claims went unproven at trial. See Commonwealth v.
Bonnett, 239 A.3d 1096, 1106 (Pa. Super. 2020) (deeming a sufficiency
challenge waived where the concise statement failed to specify the element
or elements upon which the evidence was allegedly insufficient to support
convictions), appeal denied, 250 A.3d 468 (Pa. 2021). Therefore, Rivera failed
to preserve a sufficiency challenge for our review.
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Date: 04/01/2022
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