Opinion
J-S41043-18 No. 2872 EDA 2017
08-14-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. RUBEN JUNIOR PAGAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 30, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001803-2016 BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Ruben Junior Pagan, appeals from the judgment of sentence entered in the Chester County Court of Common Pleas, following his jury trial convictions for eight counts of robbery, three counts each of recklessly endangering another person and terroristic threats, one count each of theft by unlawful taking, receiving stolen property, possessing instruments of crime, and conspiracy, and his bench trial conviction for persons not to possess firearms. We affirm.
18 Pa.C.S.A. §§ 3701(a)(1)(ii), (iv), (v); 2705; 2706(a)(1); 3921(a); 3925(a); 907(a); 903(a)(1); 6105(a)(1), respectively.
In its supplemental opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant filed a generic post-sentence motion on August 30, 2017, and a premature notice of appeal on September 1, 2017, before the court ruled on the post-sentence motion. The court dismissed Appellant's post-sentence motion on September 25, 2017, at Appellant's request. Thus, Appellant's appeal relates forward to September 25, 2017, and there are no jurisdictional impediments to our review. See Commonwealth v. Borrero , 692 A.2d 158 (Pa.Super. 1997) (explaining general rule that if defendant files timely post-sentence motion, judgment of sentence does not become final for purposes of appeal until trial court disposes of motion or motion is denied by operation of law). See also Commonwealth v. Ratushny , 17 A.3d 1269, 1271 n. 4 (Pa.Super. 2011) (explaining if court denies appellant's post-sentence motion following filing of premature notice of appeal, Superior Court will treat appellant's premature notice of appeal as having been filed after entry of order disposing of post-sentence motion).
Appellant raises the following issue for our review:
WHETHER THE VERDICT REACHED BY THE JURY WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE.(Appellant's Brief at 4).
Preliminarily, a challenge to the weight of the evidence generally must be preserved in a post-sentence motion, per Pa.R.Crim.P. 607 that provides:
Rule 607. Challenges to the Weight of the Evidence
(A) A claim that the verdict was against the weight of the evidence shall be raised with the trial judge in a motion for a new trial:
Pa.R.Crim.P. 607(A)(1)-(3). "As noted in the comment to Rule 607, the purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived." Commonwealth v. Gillard , 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal denied, 581 Pa. 672, 863 A.2d 1143 (2004). A claim challenging the weight of the evidence generally cannot be raised for the first time in a Rule 1925(b) statement. Commonwealth v. Burkett , 830 A.2d 1034 (Pa.Super. 2003). An appellant's failure to avail himself of any of the methods for presenting a weight of the evidence issue to the trial court constitutes waiver of that claim, even if the trial court responds to the claim in its Rule 1925(a) opinion. Id.(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Instantly, the court sentenced Appellant on August 30, 2017, to an aggregate term of ten (10) to twenty (20) years' imprisonment. Appellant filed a post-sentence motion that day, requesting the notes of testimony and asking for permission to file a supplemental or amended post-sentence motion once he reviewed the transcripts and could ascertain which issues he wanted to pursue in a post-sentence motion. Appellant generically requested relief in the form of an acquittal, a new trial, or other appropriate relief. Nevertheless, Appellant did not expressly challenge the weight of the evidence in this post-sentence motion or file a supplemental or amended post-sentence motion challenging the weight of the evidence. On September 25, 2017, the court dismissed Appellant's post-sentence motion, at Appellant's request. Appellant then raised his weight claim for the first time in his Rule 1925(b) statement. Appellant's failure to challenge the weight of the evidence before the trial court in a motion for a new trial constitutes waiver of his issue on appeal. See Pa.R.Crim.P. 607; Gillard , supra ; Burkett , supra.
Moreover, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Phyllis R. Streitel, we conclude that even if Appellant had properly preserved his weight claim, the issue would merit no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Supplemental Trial Court Opinion, filed January 29, 2018, at 31-33) (finding: Appellant's sole argument is that verdict was against weight of evidence because Appellant had alibi; jury rejected testimony of Appellant's girlfriend/ex-fiancée that she saw Appellant working on his vehicle in her parking lot at time of robbery; Ms. Mitchem's testimony contradicted all other evidence, including testimony of three Victims/eye witnesses, Appellant's co-defendant, surveillance video, and Find My iPhone map that placed stolen cell phone at residence associated with Appellant; verdict was not against weight of evidence). Accordingly, if Appellant had not waived his issue, we would affirm based on the trial court's opinion.
Appellant also presents new claims on appeal to support his contention that the verdict was against the weight of the evidence. Appellant did not preserve these claims per Rule 607 or in his Pa.R.A.P. 1925(b) concise statement, so they are waived on these grounds. See Commonwealth v. Castillo , 585 Pa. 395, 888 A.2d 775 (2005) (holding generally that issues not raised in concise statement are waived on appeal).
Judgment of sentence affirmed.
Judge Olson joins this memorandum.
President Judge Emeritus Stevens concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/14/18
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