Opinion
J-S01037-16 No. 2851 EDA 2014
12-29-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. DANIEL NIEVES Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 29, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000697-2013 BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Daniel Nieves, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his bench trial convictions for aggravated assault, simple assault, and recklessly endangering another person ("REAP"). We affirm.
18 Pa.C.S.A. §§ 2702(a); 2701(a); 2705, respectively.
In its opinion, the trial court fully sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. We add only that Appellant timely filed post-sentence motions on September 8, 2014, which the court denied on September 12, 2014. Appellant timely filed a notice of appeal on September 23, 2014. On September 29, 2014, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on October 20, 2014.
On the first page of its opinion, the trial court inadvertently states that the events which gave rise to Appellant's convictions occurred on December 8, 2012. The correct date is December 29, 2012.
Appellant raises three issues for our review:
DID THE TRIAL COURT ERR WHEN IT HELD THAT APPELLANT'S OWN STATEMENTS REGARDING HIS INVOLUNTARY INTOXICATION WERE INSUFFICIENT IN AND OF THEMSELVES TO SUSTAIN, BY A PREPONDERANCE OF THE EVIDENCE, THE DEFENSE OF INVOLUNTARY INTOXICATION IN A NON-DUI CASE UNDER THE LAW OF THE COMMONWEALTH OF PENNSYLVANIA?(Appellant's Brief at 4).
DID THE TRIAL COURT ERR WHEN IT HELD THAT APPELLANT WAS REQUIRED TO PRESENT MEDICAL RECORDS, MEDICAL TESTS, EVIDENCE OF HIS CONDITION IN POLICE CUSTODY, OR EXPERT TESTIMONY TO PROVE, BY A PREPONDERANCE OF THE EVIDENCE, THE DEFENSE OF INVOLUNTARY INTOXICATION IN A NON-DUI CASE UNDER THE LAW OF THE COMMONWEALTH OF PENNSYLVANIA?
DID THE TRIAL COURT ERR IN FINDING APPELLANT GUILTY OF AGGRAVATED ASSAULT, SIMPLE ASSAULT, AND RECKLESSLY ENDANGERING ANOTHER PERSON WHERE APPELLANT'S INVOLUNTARY INTOXICATION NEGATED THE MENS REA NECESSARY TO SUSTAIN A VERDICT OF GUILT FOR EACH OF THE CHARGES?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Charles A. Ehrlich, we conclude Appellant's issues merit no relief. The trial court's opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed March 23, 2015, at 3-8) (finding: (issues 1-2) Pennsylvania courts have not formally recognized defense of involuntary intoxication in non-DUI cases; moreover, even if court accepted involuntary intoxication as viable defense in this case, Appellant's claim is still meritless because Appellant did not meet burden to prove defense of involuntary intoxication by preponderance of evidence; Appellant offered only his own testimony to support claimed defense; Appellant presented no expert testimony or medical records to corroborate his purported intoxication; Appellant testified very little regarding effects of cigarette on him, other than relating that he "blacked out"; Appellant's testimony, by itself, did not satisfy proposed defense of involuntary intoxication by preponderance of evidence; (issue 3) Victim testified that Appellant entered her store, grabbed her by her arms, and punched her multiple times; Victim suffered bruising and lacerations to her face and needed medical treatment following Appellant's assault; Victim received stitches in her lip and eyebrow and sustained long-term damage to her sense of smell and taste following Appellant's attack; Victim had seen Appellant multiple times before this incident and readily identified Appellant as her assailant; Commonwealth presented sufficient evidence to convict Appellant of aggravated assault, simple assault, and REAP; by contrast, Appellant failed to prove claimed defense of involuntary intoxication). Accordingly, we affirm on the basis of the trial court's opinion.
Specifically, at the conclusion of trial, the court stated:
[Appellant] said that he was playing pool next door, was drinking, came outside, had a cigarette. After the cigarette he doesn't really remember anything. There is no evidence presented regarding [Appellant] saying anything to the police afterwards regarding anything that happened, nor was there any evidence presented regarding any medical tests done on [Appellant] or [Appellant's] condition when the police had him or subsequently when he was being processed for arrest.(N.T. Trial, 6/13/14, at 4-5; R.R. at 30a-31a).
And based on the testimony that I heard, [Appellant's] own statement alone under the case law I read and under [this] jurisdiction is insufficient to prove [the defense] of involuntary intoxication. And therefore, based on that, I am going to find [Appellant] guilty of the charges.
To the extent Appellant challenges the weight of the evidence in any of his issues on appeal, he waived that claim because he did not preserve it properly in his post-sentence motions. See Pa.R.Crim.P. 607 (stating claim that verdict was against weight of evidence shall be raised with trial judge in motion for new trial orally at any time before sentencing, by written motion before sentencing, or in post-sentence motion); Commonwealth v. Washington , 825 A.2d 1264 (Pa.Super. 2003) (holding failure to raise challenge to weight of evidence in accordance with Rule 607 constitutes waiver of claim on appeal). Appellant mentioned "weight of the evidence" generically in his post-sentence motions but the crux of his complaint and his request for acquittal are consistent only with a challenge to the sufficiency of the evidence. See Commonwealth v. Widmer , 560 Pa. 308, 744 A.2d 745 (2000) (explaining differences between challenge to weight of evidence and sufficiency of evidence; distinction between those complaints is critical).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/29/2015
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