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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSE ARGUELLES, : No. 1930 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, May 22, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0001107-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 05, 2016
Jose Arguelles appeals from the May 22, 2015 judgment of sentence
entered in the Court of Common Pleas of Philadelphia County following his
conviction of conspiracy to commit criminal trespass, criminal trespass, and
attempted theft.1 We affirm.
The trial court provided the following factual history:
On January 13, 2014, at around noon,
Eric Hanratty was at his residence [] in Philadelphia.
He heard a knock on the front door while he was on
the second floor of his home. Mr. Hanratty looked
out a front window and saw two men he did not
recognize at his door. One of these two men was
later identified as [a]ppellant.
When nobody answered the door, [a]ppellant
walked across the street while the second man
1
18 Pa.C.S.A. §§ 903(c), 3503(a)(1), 901(a), respectively. Appellant was
charged with, and acquitted of, attempted burglary, 18 Pa.C.S.A. § 901(a).
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(identified at trial as “Rivera”) jumped over a fence
and walked around the side of the house. When he
saw Rivera moving towards the back of the house,
Mr. Hanratty called 9-1-1.
From upstairs, Mr. Hanratty could hear noise
and saw Rivera attempting to pry open a first-floor
window with a shovel. While Rivera was attempting
to open the window, [a]ppellant was observed
walking around the block and “spotting.”
Mr. Hanratty observed [a]ppellant circling the block
and looking around.
Mr. Hanratty went downstairs and called out
that he had called the police. Upon hearing
Mr. Hanratty, Rivera abandoned the shovel and
hopped back over the fence. When Rivera left,
[a]ppellant went with him and they walked away
from the house together.
When police arrived about a minute later,
Mr. Hanratty met Officer Macy, got into the marked
police vehicle, and described the two men.
Officer Macy then broadcast the description through
his radio, and another officer responded that he saw
two individuals matching the description.
Officer Macy and Mr. Hanratty met with the other
officer, and Mr. Hanratty identified the two males in
custody as the individuals who had been at his
house.
There was a stipulation at trial that
Officer Macy, if called to testify, would state that he
responded to the 9-1-1 call at [Mr. Hanratty’s
residence]. He would also testify that he recovered
a shovel from the yard. Mr. Hanratty testified that
the window frame and weather sealing were
damaged from where Rivera had attempted to pry
the window open. He also testified that neither
individual had permission to be on his property or to
enter his home.
Trial court opinion, 10/15/15 at 2-3 (citations omitted).
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Following a bench trial, the trial court convicted appellant of conspiracy
to commit criminal trespass, criminal trespass, and attempted theft on
May 22, 2015. That same day, the trial court sentenced appellant to
11½ months to 23 months’ imprisonment to be followed by two years’
probation. Appellant received credit for time served and was paroled
immediately. On June 22, 2015, appellant filed a timely notice of appeal.2
The trial court ordered appellant to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b) on June 25, 2015,
and appellant complied on August 5, 2015.3 On October 15, 2015, the trial
court issued an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issue on appeal:
Whether the Weight of the Evidence consisting of
[a]ppellant’s conduct supports the Court’s Verdict
convicting [appellant] of Conspiracy and Attempted
Burglary[?]
Appellant’s brief at 7.4
2
June 21, 2015, was a Sunday. Therefore, appellant’s filing deadline was
extended to the next business day, which was June 22, 2015. See
1 Pa.C.S.A. § 1908.
3
Appellant’s Rule 1925 statement was not timely, however, we are
permitted to decide this case on its merits because the trial court was able
to prepare an opinion addressing the issues appellant raised on appeal.
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009)
(en banc).
4
We note, curiously, that appellant has asked this court to review the
weight of the evidence of the attempted burglary charge--of which appellant
was acquitted.
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Before we may review appellant’s claim on its merits, we are first
compelled to determine whether appellant has met his procedural obligations
in bringing a weight of the evidence claim.
Pennsylvania Rule of Criminal Procedure 607 states,
in relevant part, that “[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” in a
written or oral motion before the court prior to
sentencing, or in a post-sentence motion.
Pa.R.Crim.P. 607(a)(1)-(3). Moreover, the comment
to the rule clearly establishes that “[t]he 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.” Pa.R.Crim.P. 607,
comment. Failure to challenge the weight of the
evidence presented at trial in an oral or written
motion prior to sentencing or in a post-sentence
motion will result in waiver of the claim.
Commonwealth v. Bond, 604 Pa. 1, 985 A.2d 810,
820 (2009).
Commonwealth v. Bryant, 57 A.3d 191, 196 (Pa.Super. 2012).
A careful review of the record indicates that appellant failed to raise a
motion for a new trial with the trial court on the grounds that the verdict was
against the weight of the evidence. Accordingly, pursuant to
Pa.R.Crim.P. 607, we find that appellant’s sole issue on appeal has been
waived.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2016
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