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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MICHAEL A. RIVERA, : No. 2497 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, August 7, 2015,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0000031-2015
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 23, 2016
Michael Rivera appeals from the judgment of sentence entered by the
Court of Common Pleas of Chester County on August 7, 2015, after he was
found guilty, in a waiver trial, of resisting arrest.1 We affirm.
The trial court set forth the following factual history:
On December 23, 2014, approximately 10 to
15 members of the Chester County Regional
Emergency Response Team were assigned the task
of serving a search warrant for appellant’s person,
residence and vehicle. All team members were
wearing a level 3 tactical vest, which had a large
patch on the chest and back that said “POLICE.”
There were also patches on the sleeves that said
“POLICE.”
The team arrived at appellant’s residence,
which was an end-unit townhouse, at around
2:00 p.m. Officer Matthew Jones and
1
18 Pa.C.S.A. § 5104.
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Officer Anderson, who were assigned to rear
containment, went to the back of the house. As they
approached, they saw appellant standing in the
doorway. Officer Jones announced “Police – let me
see your hands.” When appellant saw them, he
turned back into the house and slammed the door
shut. Officer Anderson forced the door open and
they went inside. Once inside, they saw appellant in
the living room. It looked like he was trying to head
for the front door. Officer Anderson grabbed
appellant’s left wrist and Officer Jones grabbed his
right wrist. They brought appellant to the ground
and a struggle ensued. He was rolling from side to
side and flailing his legs. They tried to handcuff him
with plastic zip ties[,] but he kept pulling his arms
into his chest, making it hard to get his hands behind
his back. Officer Rongaus replaced Officer Anderson
and took control of appellant’s left wrist.
Officers were yelling “search warrant,” “put
your hands behind your back,” “stop resisting.” He
was not obeying their commands and was actively
resisting their efforts to restrain him the entire time.
Officer Jones was kicked and kneed several times.
He did not know, however, whether appellant was
intentionally trying to kick him or if he was just
kicked as a result of appellant’s flailing. As a result
of being struck by appellant, he was sore and had
several scrapes and bruises. He did not need
medical assistance for his injuries.
Officer Jones and Officer Rongaus were not
able to get control of appellant and they needed the
assistance of other officers. While Officer Jones and
Officer Rongaus were trying to restrain appellant’s
wrists, other officers were trying to contain his legs.
They were still unable to zip tie him.
Chief Matthew Williams attempted to
drive-stun appellant with his taser three times in
order to get appellant under control. The first time,
appellant stopped moving for a second but then
started flailing again. The second time, appellant’s
clothes stopped the taser from being effective. After
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the third time, the officers were able to get him
under control and he was secured with zip ties.
During this ordeal, appellant was praying. He
said things like “Lord, please,” and “I didn’t do it.”
Appellant’s uncle, Juan Rivera, testified on
appellant’s behalf. He stated that he arrived at
appellant’s residence around 12:15 p.m. to visit with
his nephews. At around 1:30 p.m., appellant wanted
to smoke a cigarette so they went outside.
Mr. Rivera was standing by appellant’s vehicle and
appellant was standing in the doorway. Less than
three minutes later, a person in camouflage
approached, saying, “get down, get down, get down
now.” Mr. Rivera put his hands on the car and he
was restrained. As the officers approached, they
told him they had a warrant. He could not see what
was happening in the house, but he could hear a
commotion. He also heard appellant saying, “help
me, help me,” and something of a religious nature.
Appellant, who testified during the trial, tried
to claim that he did not know it was the police who
were approaching his house. He stated that he and
his uncle went outside so that he could smoke a
cigarette and that he then went back inside because
he was done. He also testified that he complied with
the officers’ commands and that he did not resist,
although he admitted that he was “flopping around a
little bit.” He did not explain why he went inside the
house and locked the door, leaving his uncle outside
alone.
Trial court opinion, 10/8/15 at 2-4.
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Following his conviction, the trial court sentenced appellant to time
served to 23 months of incarceration, but released him on immediate parole.
This timely appeal followed.2
Appellant raises the following issues for our review:
I. THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT A CONVICTION OF RESISTING
ARREST (18 PA. C.S.A. [§] 5104)[.]
II. THE GUILTY VERDICT AS TO RESISTING
ARREST (18 PA. C.S.A. [§] 5104) WAS
AGAINST THE GREAT WEIGHT OF EVIDENCE.
Appellant’s brief, 6/22/16 at 3.3
2
We note that on August 11, 2015, appellant timely filed his notice of
appeal. On August 14, 2015, the trial court appointed counsel and also
ordered appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Through appointed counsel, appellant
complied on August 25, 2015. On September 4, 2015, appellant requested
that appointed counsel be withdrawn. The record reflects that the trial court
never ruled on appellant’s September 4, 2015 request that counsel be
withdrawn. The record next reflects that on September 22, 2015, appointed
counsel filed a motion for enlargement of time to file an amended Pa.R.A.P.
1925(b) statement. Also on September 22, 2015, the trial court entered an
order granting appellant’s motion for enlargement of time, but also ordered
that the amended Rule 1925(b) statement be filed on the same day that it
entered the order. Obviously, this was an error. Thereafter, on October 7,
2015, appellant, through appointed counsel, filed an amended Rule 1925(b)
statement. Neither the Commonwealth nor the trial court raised a timeliness
issue with respect to appellant’s filing of the amended Rule 1925(b)
statement.
3
We note that on May 24, 2016, this court ordered appellant’s counsel to file
either a formal petition to withdraw and a proper Anders brief (see Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009)) or an advocate’s brief within 30 days, as his initial
brief combined both. Counsel complied by filing an advocate’s brief on
June 22, 2016.
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At the outset, the Commonwealth contends that appellant waived his
sufficiency claim because his Pa.R.A.P. 1925(b) statement failed to specify
which elements of resisting arrest the Commonwealth failed to sufficiently
prove. It is well settled that when challenging the sufficiency of the
evidence on appeal, that in order to preserve that issue for appeal, an
appellant’s Rule 1925(b) statement must specify the element or elements
upon which the evidence was insufficient. Commonwealth v. Gibbs, 981
A.2d 274, 281 (Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010)
(citation and internal quotation marks omitted).
Here, in his Rule 1925(b) statement, appellant frames his sufficiency
challenge as follows: “[a]ppellant is entitled to a new trial because
reviewing the evidence is [sic] the light most favorable to the
Commonwealth there is insufficient evidence to prove that the
Commonwealth established every element of each criminal offense beyond a
reasonable doubt.” (Concise statement of matters complained of on appeal,
8/25/15 at 2, ¶ 2; amended concise statement of matters complained of on
appeal, 10/7/15 at 2, ¶ 2.)
Although the Commonwealth is correct that appellant’s sufficiency
claim as set forth in his Rule 1925(b) statement fails to identify which
element or elements of resisting arrest the Commonwealth allegedly failed to
prove and waiver of the sufficiency claim necessarily results, in this section
of his brief, appellant sets forth certain testimony of Officer Matthew Jones
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and requests that we reassess it and arrive at a different conclusion than the
trial court. Appellant’s argument on his first issue, therefore, challenges the
weight of the evidence, not its sufficiency. See Gibbs, 981 A.2d at 281-282
(holding that an argument that the fact-finder should have credited one
witness’ testimony over that of another witness goes to the weight of the
evidence, not the sufficiency of the evidence); Commonwealth v. Wilson,
825 A.2d 710, 713-714 (Pa.Super. 2003) (a review of the sufficiency of the
evidence does not include a credibility assessment; such a claim goes to the
weight of the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227
(Pa.Super. 1997) (the fact-finder makes credibility determinations, and
challenges to those determinations go to the weight of the evidence, not the
sufficiency of the evidence). Therefore, even if appellant did not waive his
sufficiency claim for the reason the Commonwealth raised, it would
nevertheless be dismissed.
In his second issue, however, appellant does contend that the verdict
was against the weight of the evidence.4
. . . The essence of appellate review for a weight
claim appears to lie in ensuring that the trial court’s
decision has record support. Where the record
adequately supports the trial court, the trial court
has acted within the limits of its discretion.
....
4
The record reflects that although appellant did not file a post-sentence
motion, appellant preserved this claim for appellate review by challenging
the weight of the evidence immediately following the verdict. (Notes of
testimony, 8/7/15 at 291.)
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A motion for a new trial based on a claim that
the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. A new
trial should not be granted because of a mere conflict
in the testimony or because the judge on the same
facts would have arrived at a different conclusion.
Rather, the role of the trial judge is to determine
that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny
justice.
....
An appellate court’s standard of review when
presented with a weight of the evidence claim is
distinct from the standard of review applied by the
trial court. Appellate review of a weight claim is a
review of the exercise of discretion, not of the
underlying question of whether the verdict is against
the weight of the evidence.
Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations
and quotation marks omitted). “In order for a defendant to prevail on a
challenge to the weight of the evidence, ‘the evidence must be so tenuous,
vague and uncertain that the verdict shocks the conscience of the court.’”
Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2015).
Here, appellant complains that:
Simply put, the trial judge disregarded the
testimony of the appellant who claimed that he was
thrown to the ground by the officers and tased which
was corroborated by the testimony provided by
[C]ommonwealth witnesses. This testimony, if
believed, suggest [sic] that the officers were
aggressively securing the residence for a search
warrant. Moreover, this testimony would establish
that appellant did not create the situation requiring
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the use of force by officers and/or that appellant was
only engaged in a scuffle with the other officers.
....
[D]espite clear corroboration from Juan Rivera[,
appellant’s uncle], the only other civilian eyewitness,
the trial judge failed to properly weigh appellant’s
testimony that he was unaware that the individuals
who entered the house were police officers.
Appellant’s brief, 6/22/16 at 21-22.
We decline appellant’s invitation to reassess the credibility of the
witnesses and to reweigh the evidence. The trial court, as fact-finder, had
the duty to determine the credibility of the testimony and evidence
presented at trial. Talbert, 129 A.3d at 546 (citation omitted). Appellate
courts cannot and do not substitute their judgment for that of the
fact-finder. See id. Here, the trial court found the Commonwealth’s
witnesses credible, and it did not believe appellant’s version of events. (Trial
court opinion, 10/8/15 at 5.) After carefully reviewing the record, we
conclude that the trial court’s verdict was not so contrary to the evidence
that it shocks the conscience of this court. Rather, our review of the record
supports our conclusion that the trial court properly exercised its discretion
in denying appellant’s weight of the evidence claim.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2016
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