J-S19038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EMMA COMER :
:
Appellant : No. 1520 MDA 2016
Appeal from the Judgment of Sentence August 9, 2016
In the Court of Common Pleas of Perry County
Criminal Division at No(s): CP-50-CR-0000161-2016
BEFORE: GANTMAN, P.J., BENDER, P.J.E. and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 23, 2017
Appellant Emma Comer appeals from the judgment of sentence
entered in the Court of Common Pleas of Perry County on August 9, 2016,
following a jury trial at which time she was sentenced to an aggregate term
of one (1) month to twenty-three (23) months’ incarceration two be followed
by a two-year term of probation. Upon our review, we affirm.
On December 16, 2011, Appellant’s eight-year-old son was injured
when a driver insured by Donegal Insurance Group (hereinafter “Donegal”)
struck him as he crossed a street on his bicycle in Palmyra, Pennsylvania.
Appellant initiated a claim for her son’s injuries with Donegal. On October
14, 2013, Appellant submitted another claim to Donegal on her own behalf
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*
Former Justice specially assigned to the Superior Court.
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for lost wages in an amount of $160,700.00. In doing so, Appellant
indicated she had missed work because of her son’s injuries and was
subsequently fired from her job as a truck driver with CDC Transportation,
LLC (hereinafter “CDC”) on February 10, 2012. As part of the claim process,
Appellant submitted to Donegal what purported to be a letter from her
former employer setting forth her reasons for her lost wages and the
amount thereof and signed by Cleyton Decarvalho and Steven Watts under
the typed name “CDC Transportation, LLC.”
Ms. Ryann White, a claims adjuster for Donegal, testified that she
found the letter to be “weird,” because the date thereon, December 13,
2012, predated the date upon which Appellant handed the correspondence
to Donegal’s field representative in October of 2013. N.T., 6/27/16, at 36,
39. Ms. White further related that the correspondence was rife with
anomalies. For instance, the document lacked the customary letter head,
and the ZIP code thereon had only four digits. Id. at 39-40. Also, the letter
contained numerous spelling and grammatical errors, and it concluded with
two signatures purporting to be from Messrs. DeCarvalho and Watts,
although no typed name appeared beneath them. N.T., 6/27/16, at 39-40.
Steven Watts testified he is employed in the transportation business
and owns a company, Watts Logistics. Id. at 54. While he had no business
affiliation with Cleyton Decarvalho, Mr. Watts thought Mr. Decarvalho was a
partner in a company called Bad Boy Trucking. Id. at 55. Mr. Watts further
explained that he had no business connection to CDC. Id. at 56. Mr. Watts
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admitted to having an intimate relationship with Appellant who at one time
had worked for him; however, he stressed that while Appellant had asked
him to write a letter in support of her wage loss claim to Donegal, he did not
author the correspondence, nor did he sign or authorize anyone else to sign
his name or use his cell phone number thereon. Id. at 58-59, 63-66, 68-69.
Mr. Decarvalho testified that he had owned CDC and indicated
Appellant at one time worked for him as his only driver. N.T., 6/27/16, at
80-83. Mr. Decarvalho stated he and Appellant had no written employment
contract, and he paid her two hundred ($200.00) dollars per day on a
weekly basis. Appellant was paid as an independent contractor, and the
amount of $160,700.00 in no way reflected payment for time Appellant had
missed from work due to her son’s injuries. Id. at 84-86, 99. Mr.
Decarvalho did not prepare the purported letter from CDC or place his
signature thereon, nor did he direct someone else to do so. Id. at 98-100.
Following a jury trial on June 27, 2016, Appellant was found guilty of a
single count each of Insurance fraud, 18 Pa.C.S.A. § 4117(a)(2), and
criminal attempt to commit Theft by deception, 18 Pa.C.S.A. 901; 18
Pa.C.S.A. 3922(a)(1). Appellant did not file a post-sentence motion
following her convictions, and she was sentenced on August 9, 2016. On
September 6, 2016, Appellant filed a timely notice of appeal with this Court,
and in its order entered on September 12, 2016, the trial court directed her
to file a concise statement of the matters complained of on appeal within
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twenty-five (25) days. Appellant complied, and her “Statement of Matters
Complained of” filed on October 4, 2016, reads as follows:
1. Appellant was found guilty by a Jury of one count of
Attempt to Commit Theft By Deception, a Felony of the
Third Degree and one Count of Insurance Fraud on June
27, 2016.
2. Appellant was sentenced as to one count Attempt to
Commit Theft by Deception, a Felony of the Third
Degree, to costs and two years[’] probation; as to one
count of Insurance Fraud, sentence was costs,
restitution and incarceration of a minimum one month,
maximum twenty three months in Perry County Prison.
3. Appellant avers the Jury’s verdict was not substantiated
by the weight of the evidence for the following reasons:
a. Appellant avers that the weight of the evidence did
not support that she knowingly submitted paperwork
that was fraudulently drafted;
b. Appellant avers that no evidence was submitted to
prove beyond a reasonable doubt that she created
the document that was submitted to the insurance
company;
c. Appellant argues that the evidence was not
sufficiently weighted to support a verdict of guilty as
to an intent to defraud the insurance company;
d. Appellant argues that she had a legitimate claim
submitted to the insurance company;
e. Appellant avers that the weight of the evidence, or
lack thereof, did not surmount the beyond a
reasonable doubt burden and thus, the Jury was
incorrect in it’s [sic] decision.
4. Appellant is requesting that the verdict be set aside
and a new Jury Trial be granted.
See Statement of Matters Complained of, filed October 4, 2016, at ¶¶
1-4. The trial court filed its Final Memorandum on October 25, 2016.
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In her brief, Appellant presents a single question for this Court’s
review:
Whether or not the evidence introduced at trial was
sufficient to prove beyond a reasonable doubt Appellant had
attempted to commit a theft by deception and insurance fraud?
Brief for Appellant at 7 (unnecessary capitalization omitted). The
Commonwealth asserts that Appellant has waived this issue, as she did not
raise a challenge to the sufficiency of the evidence in her Pa.R.A.P.1925(b)
statement. Brief of Appellee at 7.
Pursuant to Pa.R.A.P. 1925, any issues not raised in a Pa.R.A.P.
1925(b) statement are waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived”); Commonwealth v.
Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (“in order to preserve
their claims for appellate review, appellants must comply whenever the trial
court orders them to file a Statement of Matters Complained of on Appeal
pursuant to Pa.R.A.P. 1925”) (quoting Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998)). It is well-established that “[a] challenge to the weight
of the evidence is distinct from a challenge to the sufficiency of the evidence
in that the former concedes that the Commonwealth has produced sufficient
evidence of each element of the crime, ‘but questions which evidence is to
be believed.’” Commonwealth v. Richard, 150 A.3d 504, 516 (Pa.Super.
2016) (citation omitted). Moreover, when raising a sufficiency of the
evidence claim an appellant must specify in her concise statement of matters
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complained of on appeal the element or elements upon which the evidence
was insufficient in order to preserve the issue for appeal. See
Commonwealth v. Williams, 959 A.2d 1252, 1257–1258 (Pa.Super. 2008)
(finding waiver of sufficiency of evidence claim where the appellant failed to
specify in Rule 1925(b) Statement the elements of particular crime not
proven by the Commonwealth). “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. Garland, 63 A.3d 339,
344 (Pa.Super. 2013).
Herein, Appellant failed to assert a challenge to the sufficiency of the
evidence in her Rule 1925(b) statement, although this is the sole issue she
develops in her appellate brief. Her vague allegations in subparagraphs (b)
and (c) of her “Statement of Matters Complained of” that “no evidence was
submitted to prove beyond a reasonable doubt that she created the
document that was submitted to the insurance company” and that “the
evidence presented was not sufficiently weighted to support a verdict of
guilty as to an intent to defraud the insurance company,” when read in the
context of the paragraph as a whole, support a challenge only the weight-
not the sufficiency- of the evidence. Indeed, the trial court interpreted this
claim in its entirety as strictly as a challenge to the weight of the evidence,
and addressed the issue as a weight claim in its Rule 1925(a) opinion. See
Final Memorandum, filed 10/25/16 at 2, 4 (unnumbered). As such, we
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agree with the Commonwealth that a finding of waiver regarding the issue of
the sufficiency of the evidence is warranted. See Commonwealth v.
Johnson, 51 A.3d 237, 246–247 (Pa.Super. 2012) (en banc) (finding waiver
of issues not specifically raised in Rule 1925(b) statement). See also
Commonwealth v. Garang, 9 A.3d 237, 246 (Pa.Super. 2010) (“[W]hen
challenging the sufficiency of the evidence on appeal, the Appellant's 1925
statement must specify the element or elements upon which the evidence
was insufficient in order to preserve the issue for appeal.”) (quotations and
citation omitted).
Therefore, Appellant's failure to raise in her 1925(b) statement the
issue she now presents on appeal precludes our review.1
Judgment of sentence affirmed.
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1
To the extent Appellant briefly references the challenge to the weight of
the evidence she had raised in her Rule 1925(b) statement in the “Summary
of Argument” portion of her appellate brief when she “contends that the
weight of the evidence produced was insufficient to show that she was the
manufacturer of the document,” Brief for Appellant at 9, we find this claim
waived for her failure to preserve it in the trial court. A weight of the
evidence claim must be preserved either in a post-sentence motion, by a
written motion before sentencing, or orally prior to sentencing.
Commonwealth v. Ford, 141 A.3d 547, 556 (Pa.Super. 2016);
Pa.R.Crim.P. 607. The failure to preserve properly a weight of the evidence
claim will result in waiver, even if the trial court addresses the issue in its
opinion. Commonwealth v. Thompson, 93 A.3d 478, 490-491 (Pa.Super.
2014). Herein Appellant neither made an oral or written motion before
sentencing nor did she file a post sentence motion. As such, we do not
reach Appellant’s purported challenge to the weight of the evidence to
sustain her convictions.
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PJ Gantman joins the memorandum.
PJE Bender concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2017
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