J. S22030/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
GERALD RAY GRAHAM, JR. :
:
Appellant : No. 909 MDA 2015
Appeal from the Judgment of Sentence February 4, 2015
In the Court of Common Pleas of York County
Criminal Division No(s): CP-67-CR-0000501-2014
BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED APRIL 28, 2016
Appellant, Gerald Graham, Jr., appeals from the February 4, 2015
Judgment of Sentence entered in the Court of Common Pleas of York County
after his conviction by a jury of reckless endangerment and numerous
assault offenses. After careful review, we conclude that Appellant waived his
challenge to the sufficiency of the evidence, and that the trial court properly
denied Appellant’s weight of the evidence claim. Accordingly, we affirm.
The relevant facts and procedural history of this case are as follows.
On November 16, 2013, Appellant, Jeffrey Bender (“Bender”), Gregory
Potter (“Potter”), and Lee Naill (“Naill”) spent an evening drinking at a bar
together before all returning to Bender’s Apartment. Once there, Appellant
*
Retired Senior Judge assigned to the Superior Court.
J.S22030/16
and Potter got into a verbal dispute and Appellant attacked Potter. N.T.,
Jury Trial, at 69-70. Appellant wrestled Potter to the ground and drew his
arm back as if to punch him, before Bender was able to pull Appellant off
Potter. Id. at 80-81.
Potter left the scene and Bender left shortly thereafter to try to locate
Potter. Id. at 72-73. When Bender returned home five minutes later, he
found Naill laying on the front steps with “holes around his neck area, teeth
missing, [and] blood coming out of his eyes, his nose, [and] his mouth.” Id.
at 73-74. Tara Murphy-Ortiz (“Ortiz”) had been driving by when she spotted
Appellant repeatedly “bashing [Naill’s] head into the steps” to the point it
appeared Naill’s face was gone. Id. at 137-39. Ortiz slammed on her
brakes, and Appellant looked up, stopped the beating, and fled the scene. 1
When Ortiz approached Naill to render aid, Naill was covered in blood,
gasping for air, and unable to move. Id. at 139-40. Ortiz was rendering aid
to Naill when Bender returned. Naill suffered severe injuries as a result of
the beating, including permanent memory loss.
Appellant turned himself in to police the morning after the assault, and
gave a recorded statement to Detective David Kahley (“Detective Kahley”).
Despite telling the Detective that he had suffered injuries, Appellant did not
1
After fleeing the scene, Appellant hid himself under a pile of leaves, then
changed his clothes and buried his bags. N.T., Jury Trial, at 229, 250.
-2-
J.S22030/16
immediately seek medical attention.2 Detective Kahley took photographs of
minor cuts and abrasions on Appellant’s face. Id. at 240-42, 253-54.
Appellant was arrested and charged with one count of Recklessly
Endangering Another Person, one count of Simple Assault for the attack on
Potter, one count of Simple Assault for the attack on Naill, one count of
Aggravated Assault, one count of Criminal Attempt to Commit Criminal
Homicide, and one count of Simple Assault by Mutual Affray.3
At Appellant’s jury trial, the Commonwealth presented the testimony
of seven witnesses, including Bender, Potter, Naill, Ortiz, and Detective
Kahley. Bender, Potter, and Naill testified to the events leading up to the
attack on Naill. Ortiz testified to the events that occurred during and after
the attack. Due to the extensive injuries caused by Appellant, Naill could
not remember anything that occurred in the period between the fight over
Appellant’s bags involving Potter and his waking up in the hospital. Id. at
118-19. Naill could not remember anything about the fight between himself
and Appellant. Id. at 132. The Commonwealth submitted photographs of
2
At trial, the parties stipulated that four months after the accident Appellant
began complaining of injuries and symptoms and was later diagnosed with
post-concussion syndrome and Bell’s Palsy. Appellant self-reported that
these injuries and symptoms began the date of the incident. N.T., Jury Trial,
at 264.
3
18 Pa.C.S. § 2705; 18 Pa.C.S. § 2701(a)(1); 18 Pa.C.S. § 2702(a)(1); 18
Pa.C.S. § 901(a); and 18 Pa.C.S. § 2701(a)(2) respectively.
-3-
J.S22030/16
the victim taken immediately following the assault, as well as photographs
showing scratches and abrasions on Appellant’s neck and face.
Appellant testified that he had acted in self-defense. He testified that
someone had struck his head from behind with a bat before Naill grabbed
him and starting hitting him. Id. at 223-26. He stated that he had had to
fight Naill off. Id. Appellant asserted that he suffered numerous injuries,
including the loss of a “big chunk” of hair. Id. at 227. On cross
examination, Appellant admitted that the pictures taken only hours after the
incident do not show any missing chunks of hair. Id. at 253.
The jury convicted Appellant of Recklessly Endangering Another
Person, two counts of Simple Assault for the attacks on Potter and Naill, and
one count of Aggravated Assault. The jury acquitted Appellant on the
charges of Criminal Attempt to Commit Criminal Homicide and Simple
Assault by Mutual Affray. On February 4, 2015, the Honorable Thomas H.
Kelley, VI imposed an aggregate sentence of six to twelve years of
incarceration.
Appellant thereafter filed a timely appeal to this Court. In his Rule
1925(b) Statement, Appellant raised the following issues:
a. There was insufficient evidence to support the verdict.
b. The verdict was against the weight of the evidence.
1925(b) Statement at 1 (reordered).
-4-
J.S22030/16
The trial court filed a Rule 1925(a) Opinion, summarily finding that the
verdict was not against the weight of the evidence and that there was
sufficient evidence to convict Appellant. The Opinion’s analysis does not
discuss the elements of the offenses of which the jury convicted Appellant,
and fails to mention or discuss Appellant’s self-defense claim.
In his Brief, Appellant raises the following issues in the Statement of
Questions Involved:
a. Whether the [t]rial [c]ourt improperly found there was
sufficient evidence to support the conviction?
b. Whether the verdict was against the weight of the evidence?
Appellant’s Brief at 5.
Appellant argues that the evidence was insufficient to support the
verdict. We do not reach the merits of Appellant’s claim because Appellant
failed to comply with Pa.R.A.P. 1925(b) to preserve this issue for review.
Our Supreme Court has held that “[a]ny issues not raised in a [Rule]
1925(b) statement will be deemed waived.” Commonwealth v. Castillo,
888 A.2d 775, 780 (Pa. 2005) (quoting Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998)). An appellant’s Rule 1925(b) Statement “shall
concisely identify each ruling or error that the appellant intends to challenge
with sufficient detail to identify all pertinent issues for the judge.” Pa.R.A.P.
1925(b)(4)(ii). A Rule 1925(b) statement “which is too vague to allow the
court to identify the issues raised on appeal is the functional equivalent of no
-5-
J.S22030/16
[Rule 1925(b)] Statement at all,” and will result in waiver. Lineberger v.
Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006).
When an appellant challenges the sufficiency of the evidence, this
Court has made clear our requirement that “an appellant’s Rule 1925(b)
[S]tatement must state with specificity the element or elements upon which
the appellant alleges that the evidence was insufficient.” Commonwealth
v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013) (citation omitted). “Such
specificity is of particular importance in cases where, as here, [A]ppellant
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), appeal
denied, 3 A.3d 670 (Pa. 2010) (citation omitted).
Moreover, a self-defense claim magnifies the importance of providing a
detailed 1925(b) statement. A claim of self-defense does not narrow the
field of potential sufficiency challenges. Rather, it requires more evidence
from the Commonwealth in order to rebut the claim, thus increasing the
evidence from which Appellant might assert a sufficiency challenge. See
Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014) (stating the
Commonwealth may rebut a properly raised claim of self-defense by
proving, beyond a reasonable doubt, that either “1) the accused did not
reasonably believe that he was in danger of death or serious bodily injury; or
2) the accused provoked or continued the use of force; or 3) the accused
-6-
J.S22030/16
had a duty to retreat and the retreat was possible with complete safety”
(citations omitted)).
By filing an overly broad Rule 1925(b) Statement, Appellant failed to
alert the trial court to which elements of which offenses he intended to
challenge, and whether he intended to challenge the Commonwealth’s initial
burden of proving the offenses charged or the evidence submitted to rebut
Appellant’s claim of self-defense. In doing so, Appellant deprived this Court
of a substantive Rule 1925(a) Opinion that would facilitate meaningful
appellate review of these issues. Because he failed to provide a proper Rule
1925(b) statement, Appellant waived his challenge to the sufficiency of the
evidence. See Garland, supra; Lineberger, supra.
We next address Appellant’s assertion that the jury’s verdict was
against the weight of the evidence. In support, Appellant avers that the
Commonwealth failed to refute his claim of self-defense.4 Appellant’s Brief
at 11-12.
To begin, we note that the weight of the evidence “is exclusively for
the finder of fact who is free to believe all, part, or none of the evidence and
4
Appellant was charged with one count of Simple Assault each for the
attacks on Naill and Potter. Although Appellant’s overbroad Rule 1925(b)
Statement and Statement of Questions Involved could be read to challenge
the weight of the evidence for the assault against Potter, the argument
section of Appellant’s brief only addresses the attack on Naill. Therefore, we
find the argument as it pertains to Potter is waived. See, e.g., Harkins v.
Calumet Realty Co., 614 A.2d 699, 703 (Pa. Super. 1992) (finding
arguments raised in a Brief’s Statement of Questions Involved but not
developed in the Brief’s argument section are waived).
-7-
J.S22030/16
to determine the credibility of the witnesses.” Commonwealth v.
Champney, 832 A.2d 403, 408 (Pa. 2003) (quotation and citations
omitted). A trial court reviewing a challenge to the weight given the
evidence may grant relief only if “the jury’s verdict is so contrary to the
evidence as to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to prevail.”
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).
This Court may not consider the underlying question of whether the
verdict is against the weight of the evidence. Commonwealth v. Morales,
91 A.3d 80, 91 (Pa. 2014). As our Supreme Court has made clear, reversal
is only appropriate “where the facts and inferences disclose a palpable
abuse of discretion[.]” Id. (citations omitted) (emphasis in original).
In this case, the jury was free to find the Commonwealth’s witnesses
credible, including Ortiz, who testified that she saw Appellant pummeling
Naill’s lifeless body. Similarly, the jury was free to discredit Appellant’s
claim of self-defense, particularly in light of the inconsistencies between his
statement to Detective Kahley and his testimony at trial;5 the fact that no
bat was recovered at the scene; and the fact that the photographs taken of
Appellant do not show the injuries he claims to have sustained. As an
5
In his recorded statement, Appellant made no mention of being attacked
with a baseball bat, and Appellant denied striking or kicking Naill. N.T., Jury
Trial, at 240-42.
-8-
J.S22030/16
appellate court, we will not reweigh the evidence and substitute our
judgment for that of the fact-finder.
Therefore, having carefully reviewed the record and the arguments
presented by Appellant, we conclude the trial court did not palpably abuse
its discretion in deciding that the jury’s verdict was not against the weight of
the evidence.
Having concluded that Appellant’s claims on appeal are either waived
or devoid of merit, we affirm the trial court’s February 4, 2015 Judgment of
Sentence.
Judgment of Sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2016
-9-