Opinion
J-S37028-15 No. 2408 EDA 2014
08-05-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. LISA TAGGART, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 9, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008165-2011
BEFORE: GANTMAN, P.J., SHOGAN, and LAZARUS, JJ. MEMORANDUM BY SHOGAN, J.:
Appellant, Lisa Taggart, appeals nunc pro tunc from the judgment of sentence entered on May 9, 2012, in the Philadelphia County Court of Common Pleas. We affirm.
The trial court set forth the relevant facts of this matter as follows:
On March 16, 2011, the victim, Jay Truesdale, obtained a Protection from Abuse order against [Appellant] and [Appellant's] daughter and co-defendant, Shakona Harrell. (N.T. 3/7/12 at 32). The order was served on both women on March 16 in front of Mr. Truesdale's house at 1819 North Natrona Street in Philadelphia, where both defendants had been living with Mr. Truesdale since 2008. (Id. at 30, 36, 41). Both defendants refused to give back their house keys, so Mr. Truesdale left to purchase a new lock for his house. (Id. at 41-42). On returning with the lock, Mr. Truesdale heard the defendants, who were standing at a street corner a few houses away from Mr. Truesdale's home, yell, "Kill that — kill that old..." (Id. at 42). When Mr. Truesdale went to the corner to investigate, [Appellant] said, "There go that MF. There he go. Get that one." (Id. at 44). The defendants proceeded to chase
Mr. Truesdale, who fled to a neighbor's house in an attempt to get help. (Id. at 47). Mr. Truesdale was cornered by the defendants6 on the neighbor's porch, at which point [Appellant] said, "Get that motherfucker," and hit the victim on his back with a three (3) foot long car jack. (Id. at 48-49, 52). As the beating continued, [Appellant] said, "Pull that motherfucker...pull that MF down off the step. We going to kill this one. He ain't got enough. We going to kick — we going to kill him." (Id. at 54). Antoinette Miller, the victim's ex-wife, witnessed the attack and called police. (Id. at 100-04). The defendants fled the scene once police arrived. (Id. at 58, 106-07). Mr. Truesdale suffered head and back injuries and went to Hahnemann Hospital. (Id. at 58-59).
Trial Court Opinion, 12/22/14, at 2-3.6 Shakona Harrell's uncle was also involved in the attack.
Following a bench trial on March 7, 2012, the trial court found Appellant guilty of possessing an instrument of crime, terroristic threats, and simple assault. On May 9, 2012, the trial court sentenced Appellant to a term of three years of probation for possessing an instrument of crime, a concurrent term of three years of probation for terroristic threats, and a concurrent term of two years of probation for simple assault. No direct appeal was filed. On June 28, 2012, Appellant filed a timely petition for relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. Counsel was appointed, and an amended PCRA petition was filed on November 11, 2013. In an order filed on August 8, 2014, the PCRA court reinstated Appellant's direct appeal rights nunc pro tunc, and on August 11, 2014, Appellant filed a timely notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant claims that the evidence was insufficient to support the guilty verdicts on the charges of simple assault, terroristic threats, and possessing an instrument of crime. Appellant's Brief at 4. However, after review, we agree with the trial court that Appellant's claims of error are waived. Trial Court Opinion, 12/22/14, at 3.
In Commonwealth v. Williams , 959 A.2d 1252 (Pa. Super. 2008), this Court stated that when an appellant is challenging the sufficiency of the evidence, the appellant's Rule 1925(b) statement must "specify the element or elements upon which the evidence was insufficient" in order to preserve the issue for appeal. Williams , 959 A.2d at 1257. "Such specificity is of particular importance in cases where, as here, the Appellant was convicted of multiple crimes each of which contains numerous elements that the Commonwealth must prove beyond a reasonable doubt." Commonwealth v. Gibbs , 981 A.2d 274, 281 (Pa. Super. 2009). Absent such specificity, a challenge to the sufficiency of the evidence is waived. Id.
In the case at bar, Appellant's Rule 1925(b) statement failed to specifically identify any elements where the evidence was allegedly insufficient. Accordingly, we agree with the trial court that Appellant has waived her challenges to the sufficiency of the evidence, and therefore, we affirm the judgment of sentence.
The entirety of Appellant's challenge to the sufficiency of the evidence in her Rule 1925(b) statement is as follows: "That the evidence was insufficient to prove [Appellant] guilty of the following charges: Simple Assault; Terroristic Threats; and Possessing an Instrument of crime[.]" Pa.R.A.P. 1925(b) Statement, 9/7/14.
Assuming, arguendo, that Appellant's claims had not been waived, we would nevertheless conclude that there was sufficient evidence to sustain each of Appellant's convictions. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. Commonwealth v. Diamond , 83 A.3d 119 (Pa. 2013). It is within the province of the fact-finder to determine the weight to be accorded to each witness's testimony and to believe all, part, or none of the evidence. Commonwealth v. James , 46 A.3d 776 (Pa. Super. 2012). The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Commonwealth v. Vogelsong , 90 A.3d 717, 719 (Pa. Super. 2014). "[I]n applying the above test, the entire record must be evaluated and all evidence actually received must be considered." Commonwealth v. Estepp , 17 A.3d 939, 944 (Pa. Super. 2011). Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. Commonwealth v. Ratsamy , 934 A.2d 1233 (Pa. 2007).
The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . does not require a court toId. at 1235-1236 (emphasis in original) (internal citation omitted).
"ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, it must determine simply whether the evidence believed by the fact-finder was sufficient to support the verdict.
A person is guilty of the crime of simple assault if she attempts to cause or intentionally, knowingly, or recklessly causes bodily injury to another. 18 Pa.C.S. § 2701(a)(1). Additionally, a person commits the crime of terroristic threats if she communicates, either directly or indirectly, a threat to commit any crime of violence with intent to terrorize another. 18 Pa.C.S. § 2706(a)(1). Finally, a person is guilty of possessing an instrument of crime if she possesses an item that is "used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have." 18 Pa.C.S. § 907(a), (d).
Following a bench trial, the trial court found that there was overwhelming evidence of Appellant's guilt. Trial Court Opinion, 12/22/14, at 3. Both the victim, Jay Truesdale, and an eyewitness, Antoinette Miller, testified that Appellant "repeatedly struck Mr. Truesdale with a car jack while threatening to kill him," and "Mr. Truesdale suffered substantial pain as well as significant head and back injuries." Id. (citing N.T., 3/7/12, at 48-49, 52, 54, and 100-104). Thus, had Appellant's challenge to the sufficiency of the evidence been properly preserved, we would have concluded that when viewed in the light most favorable to the Commonwealth as the verdict winner, the evidence was sufficient to prove every element of the offenses beyond a reasonable doubt.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015