Opinion
J-S95008-16 No. 2218 EDA 2015
03-21-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. DARIUS HARGROVE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 1, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0009618-2014 BEFORE: STABILE, MOULTON, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.:
Appellant, Darius Hargrove, appeals from the July 1, 2015 judgment of sentence entered in the Court of Common Pleas of Philadelphia County ("trial court") following his convictions of aggravated assault, possessing instruments of crime ("PIC"), and recklessly endangering another person ("REAP"). Appellant is challenging the sufficiency of the evidence and raising a self-defense claim. Upon review, we affirm.
Appellant was convicted of two different types of aggravated assault; however, they merged at sentencing.
18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4), 907, and 2705 respectively. --------
Following an incident on June 25, 2014, wherein Appellant attacked ninety-year-old Robert Mack ("Mack") at his residence, Appellant was charged with aggravated assault, PIC, REAP, and simple assault. Following a jury trial from February 12-17, 2015, Appellant was convicted on all charges, save for simple assault, which was withdrawn. The trial court sentenced Appellant on June 26, 2015, to an aggregate of 3-10 years' state incarceration followed by 17 years of county reporting probation. On July 1, 2015, the trial court vacated the sentence for REAP, and Appellant's period of probation was reduced to 15 years. Appellant did not file any additional post-sentence motions.
Appellant filed a timely notice of appeal on July 22, 2015. The trial court directed compliance with Pa.R.A.P. 1925(b) on September 15, 2015. The trial court permitted Appellant's trial counsel to withdraw on October 1, 2015, and on October 13, 2015, granted Appellant leave to file his concise statement by November 5, 2015. After two additional extensions, Appellant filed his concise statement on December 12, 2015. The trial court issued a 1925(a) opinion on July 6, 2016.
Appellant raises two questions on appeal, which we quote verbatim.
I. Should the verdict be reversed and should [Appellant] be discharged because [Appellant] acted in self-defense, the Complainant was the aggressor, and the Commonwealth failed to disprove self-defense beyond a reasonable doubt.Appellant's Brief at 4.
II. Should the verdict be reversed and [Appellant] discharged because the Commonwealth failed to prove the offenses by sufficient evidence.
Both of Appellant's arguments are challenges to the sufficiency of the evidence. Our standard of review for sufficiency claims is well established.
As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. [T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence. Any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.Commonwealth v. Mauz , 122 A.3d 1039, 1040-41 (Pa. Super. 2015) (quoting Commonwealth v. Rahman , 75 A.3d 497, 500-501 (Pa. Super. 2013)). However, in order to address a challenge to the sufficiency of the evidence, it must be preserved for appeal. See Commonwealth v. Tyack , 128 A.3d 254, 260 (Pa. Super. 2015).
If [a]ppellant wants to preserve a claim that the evidence was insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient. This Court can then analyze the elements or elements on appeal. [Where a] 1925(b) statement [] does not specify the allegedly unproven elements[,] . . . the sufficiency issue is waived [on appeal].Id. (quoting Commonwealth v. Williams , 959 A.2d 1252, 1257 (Pa. Super. 2008) (quoting Commonwealth v. Flores , 921 A.2d 517, 522-523 (Pa. Super. 2007))).
In the matter sub judice, Appellant's 1925(b) statement failed to specify the element or elements upon which the evidence was insufficient. Therefore, Appellant's claims are waived. Moreover Appellant's questions presented fail to identify the elements or elements upon which the evidence was insufficient. See Appellant's Brief at 4. Accordingly, we conclude Appellant's claims were not adequately preserved for appellate review and are waived. See Tyack , 128 A.3d at 260. Even if Appellant's claims were not waived, the trial court's July 6, 2016 opinion adequately addresses the merits of Appellant's claims. See Trial Court Opinion, 7/6/2016, at 7-17.
Furthermore, insofar as Appellant's self-defense argument is a challenge to the weight of the evidence, the claim cannot be raised for the first time on appeal. See Commonwealth v. Lofton , 57 A.3d 1270, 1273 (Pa. Super. 2012); Pa.R.Crim.P. 607. "A weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. Failure to properly preserve the claim will result in waiver, even if the trial court address the issue in its opinion." Lofton , 57 A.3d at 1273 (citations omitted). Appellant failed to challenge the weight of the evidence prior to this instant appeal; therefore, Appellant's challenge to the weight of the evidence is waived.
In conclusion, we find that Appellant's claims are waived, and lack merit. Therefore we affirm the judgment of sentence. We direct that a copy of the trial court's July 6, 2016 opinion be attached to any future filings in this case.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/21/2017
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