Opinion
J-S35023-16 No. 1621 EDA 2015
06-14-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. THOMAS A. BOCCUTO, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered February 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001780-2014 BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and MUSMANNO, J. MEMORANDUM BY BENDER, P.J.E.:
Appellant, Thomas A. Boccuto, appeals from the judgment of sentence of 4½ to 9 years' incarceration, followed by four years' probation, imposed after he was convicted of aggravated assault, simple assault, and recklessly endangering another person (REAP). We affirm.
Appellant was convicted of the above-stated offenses after the victim in this case, Christine Rios, testified that Appellant pushed her to the ground and jumped on her leg, fracturing Ms. Rios' tibia bone. Ms. Rios' injury required surgery to repair, she was hospitalized for four days, and she had to wear a cast on her leg for months.
For a detailed recitation of the facts of this case and the evidence presented at Appellant's trial, see Trial Court Opinion (TCO), 7/20/15, at 2-4.
Following a non-jury trial, the court convicted Appellant of aggravated assault, simple assault, and REAP. On February 9, 2015, Appellant was sentenced to a term of 4½ to 9 years' incarceration for aggravated assault, and a consecutive term of two years' probation for REAP. His simple assault conviction merged with his aggravated assault offense for sentencing purposes.
Appellant filed an untimely post-sentence motion on February 21, 2015. That motion was denied on February 24, 2015. Appellant then filed a timely notice of appeal on March 2, 2015. He also complied with the court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, which the court deemed as timely (after granting Appellant's request for an extension of time to file that statement). The trial court issued an opinion on July 20, 2015. Herein, Appellant raises four issues for our review:
A. Was the court's sentence manifestly excessive?Appellant's Brief at 4 (unnecessary capitalization omitted).
B. Was [Ms.] Rios credible?
C. Did the misstatement of facts by the prosecutor in her closing statement amount to prosecutorial misconduct?
D. Was there sufficient evidence to convict Appellant?
After reviewing the record in this case, we conclude that Appellant has waived his first three claims for our review. Initially, Appellant's second issue is a challenge to the weight of the evidence, as he acknowledges in the argument portion of his brief. See Appellant's Brief at 18 (stating issue "B" as, "Appellant's conviction was contrary to the weight of the evidence") (unnecessary capitalization omitted). This claim, and Appellant's first issue challenging the discretionary aspects of his sentence, are required to be preserved in a timely-filed, post-sentence motion. See Pa.R.Crim.P. 720(A)(1) ("[A] written post-sentence motion shall be filed no later than 10 days after imposition of sentence."); Pa.R.Crim.P. 607(A) (stating that a claim that verdict was against weight of evidence must be raised before trial court orally or in a written motion prior to sentencing, or in a post-sentence motion); Commonwealth v. Bromley , 862 A.2d 598, 603 (Pa. Super. 2004) ("It is well settled that an [a]ppellant's challenge to the discretionary aspects of his sentence is waived if the [a]ppellant has not filed a post-sentence motion challenging the discretionary aspects with the sentencing court.") (citations omitted). Here, Appellant's post-sentence motion was due by Thursday, February 19, 2015, yet he did not file his motion until February 21, 2015. Therefore, his claims challenging the weight of the evidence and discretionary aspects of his sentence are waived for our review.
In any event, even if Appellant's first two issues had been properly preserved, we would find those claims meritless for the reasons set forth in the trial court opinion authored by the Honorable Giovanni O. Campbell of the Court of Common Pleas of Philadelphia County. See TCO at 6-10. After reviewing the certified record, the briefs of the parties, and the applicable law, it is clear that Judge Campbell's opinion thoroughly and accurately disposes of Appellant's first two claims. See id. Thus, we adopt his reasoning as our own regarding those issues.
In Appellant's third issue, he argues that the prosecutor committed misconduct by stating, in her closing argument, that "[t]here's nothing in the medical records from the doctor that [Ms. Rios] was drinking that day." N.T. Trial, 10/31/14, at 87. Appellant argues that there was "an indication in the medical records that [Ms.] Rios admitted to drinking and taking PCP [the] same day of the incident." Appellant's Brief at 23. According to Appellant, the prosecutor intentionally misrepresented this fact to the court, constituting prosecutorial misconduct.
Our review of the trial transcript reveals that Appellant did not, at any point, object to the prosecutor's remark or request a mistrial based on this purported misconduct. Therefore, this issue is waived. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."); see also Commonwealth v. Ali , 10 A.3d 282, 293 (Pa. 2010) ("The failure to raise a contemporaneous objection to a prosecutor's comment at trial waives any claim of error arising from the comment.") (citation omitted).
In Appellant's fourth claim, he contends that the evidence was insufficient to sustain his convictions. The thrust of Appellant's argument is that Ms. Rios' testimony that Appellant pushed her to the ground and stomped on her leg should not have been believed by the court, "given the severe unreliability of her account...." Appellant's Brief at 26. An attack on a witness' credibility goes to the weight of the evidence, not the sufficiency. See Commonwealth v. Gaskins , 692 A.2d 224, 227 (Pa. Super. 1997) (stating "credibility determinations are made by the fact finder and ... challenges thereto go to the weight, and not the sufficiency, of the evidence"). As stated, supra, the opinion by Judge Campbell adequately addresses Appellant's weight-of-the-evidence claim, and thoroughly discusses the basis for the court's credibility determination in favor of Ms. Rios and against Appellant. See TCO at 6-9. Considering that assessment, in conjunction with the court's summary of the evidence presented at trial (which Appellant does not dispute), and Judge Campbell's general analysis of the sufficiency of the evidence to support Appellant's convictions, we conclude that Appellant's sufficiency argument is meritless for the reasons set forth by Judge Campbell. See TCO at 2-4 (setting forth the evidence presented at trial); 5-6 (rejecting Appellant's sufficiency of the evidence challenge); 6-9 (rejecting Appellant's challenge to Ms. Rios' credibility).
We do note, however, that Judge Campbell did not specifically address Appellant's simple assault conviction, instead focusing only on how the evidence proved that Appellant committed aggravated assault and REAP. See id. at 6. This omission is not problematic, as "[n]umerous cases state that simple assault is a lesser included offense of aggravated assault" and REAP. Commonwealth v. Ferrari , 593 A.2d 846, 849 (Pa. Super. 1991); Commonwealth v. Brunson , 938 A.2d 1057, 1061-62 (Pa. Super. 2007) (concluding "simple assault is a lesser included offense of [REAP] since the elements of simple assault are necessarily included in the offense of [REAP]."). Therefore, because Judge Campbell adequately explained why the evidence was sufficient to convict Appellant of aggravated assault and REAP, his analysis is also necessarily adequate to demonstrate that the evidence was sufficient to convict Appellant of simple assault.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/14/2016
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