J-S43033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ELWOOD C. BRASWELL
Appellant No. 86 WDA 2017
Appeal from the Judgment of Sentence September 13, 2013
In the Court of Common Pleas of Forest County
Criminal Division at No(s): CP-27-CR-0000037-2013
BEFORE: STABILE, SOLANO, and FITZGERALD* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 08, 2017
Appellant, Elwood C. Braswell, appeals nunc pro tunc from the
judgment of sentence entered in the Forest County Court of Common Pleas
following his jury trial convictions of criminal homicide,1 aggravated assault,2
and abuse of a corpse.3 Appellant claims the jury’s verdict of guilty but
mentally ill was against the weight of the evidence that he was insane. We
are constrained to find this claim waived and affirm.
The relevant facts and procedural history of this case are as follows.
Appellant’s charges stem from the murder of his cellmate while Appellant
was incarcerated at SCI Forest. At trial, Appellant raised an insanity
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2501(a).
2
18 Pa.C.S. § 2702(a)(1).
3
18 Pa.C.S. § 5510.
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defense; however, on August 27, 2013, the jury found Appellant guilty but
mentally ill of the aforementioned offenses. The trial court sentenced
Appellant on September 13, 2013, to life without parole for homicide, a
consecutive ten to twenty years’ imprisonment for aggravated assault, and a
consecutive one to two years’ imprisonment for abuse of a corpse. Appellant
did not file post-sentence motions or a direct appeal.
On April 30, 2014, Appellant filed a pro se Post Conviction Relief Act4
(“PCRA”) petition in which he alleged ineffective assistance of trial counsel.
Appellant then filed a pro se supplemental PCRA petition in which he alleged
trial counsel was ineffective for failing to file a direct appeal, and that the
jury’s rejection of Appellant’s insanity defense went against the weight of the
evidence. In his petition, Appellant also requested reinstatement of his
direct appeal rights nunc pro tunc. The PCRA court appointed counsel who
filed an amended petition on November 13, 2014, which requested that
Appellant be permitted to file post-sentence motions and a direct appeal
nunc pro tunc.5 In response, the Commonwealth filed an answer and a
motion to dismiss. Counsel subsequently filed a “no merit” letter and a
request to withdraw, which the PCRA court denied. Following a hearing, the
4
42 Pa.C.S §§ 9541-9546.
5
In the amended petition, counsel abandoned any claims regarding the
weight of the evidence and Appellant’s insanity defense.
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PCRA court reinstated Appellant’s direct appeal rights on December 16,
2016, but did not reinstate the right to file post-sentence motions.
Thereafter, on December 22, 2016, Appellant timely filed a notice of
appeal. The PCRA court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
timely complied.6 On February 28, 2017, the PCRA court issued a Pa.R.A.P.
1925(a) opinion.
Appellant raises the following issue for our review:
Whether [the] trial court abused its discretion in finding
that the jury’s rejection of the insanity defense was against
the weight of the evidence.
Appellant’s Brief at 8.
Appellant argues the jury’s verdict of guilty but mentally ill was
unreasonable because it indicated a disregard of the evidence regarding
Appellant’s insanity and went against the weight of the evidence. Appellant
6
Appellant’s Rule 1925(b) statement reads:
Trial counsel rendered ineffective assistance of counsel in
not bringing a challenge before the trial court of the jury’s
rejection of a verdict of not guilty by reason of insanity
based on a claim that the verdict reached was against the
weight of the evidence offered to prove the defense of
insanity by [Appellant]. [Appellant] offered sufficient
evidence to prove by a preponderance of the evidence that
he was insane at the time he acted in violation of the
criminal statutes charged. The verdict reached is against
the weight of the evidence.
Appellant’s Statement of Errors Complained of on Appeal, 1/9/17, at 1-2.
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maintains he was proven insane by a preponderance of the evidence
because witness testimony showed Appellant was not conscious of his
wrongdoing at the time he committed the offenses. Appellant concludes this
Court should set aside his verdict and grant him a new trial. No relief is due.
As a threshold matter, Rule 607 of the Pennsylvania Rules of Criminal
Procedure states:
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:
(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.
Pa.R.Crim.P. 607(A). A weight of the evidence claim is not preserved if
Appellant raises the claim for the first time in his Rule 1925(b) statement,
and we may not address the merits of the claim even if the trial court
addresses the issue in its Rule 1925(a) opinion. Commonwealth v.
Sherwood, 982 A.2d 483, 494 (Pa. 2009); Commonwealth v. Thompson,
93 A.3d 478, 490 (Pa. Super. 2014).
Our Supreme Court has held that where the trial court reinstates direct
appeal rights nunc pro tunc for counsel’s failure to file a requested appeal,
the petitioner is not automatically entitled to reinstatement of post-sentence
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motion rights nunc pro tunc. Commonwealth v. Liston, 977 A.2d 1089,
1093-94 (Pa. 2009). The Liston Court noted:
If a defendant successfully pleads and proves that he was
deprived of the right to file and litigate said motions as a
result of the ineffective assistance of counsel, a PCRA court
is free to grant such relief. Presumably, since post-
sentence motions are optional, see Pa.R.Crim.P. 720(B),
rarely will counsel be deemed to have been ineffective for
failing to file them except, for example, when the claim
involves the discretionary aspects of sentence or a
challenge to a verdict on weight of the evidence grounds,
claims which must be raised in the trial court to be
preserved for purposes of appellate review.
Id. at 1094 n.9 (some citations omitted). In Commonwealth v. Fransen,
986 A.2d 154 (Pa. Super. 2009), this Court followed Liston and held that a
petitioner, who was granted reinstatement of his direct appeal rights, failed
to show he was entitled to an order reinstating his right to file post-sentence
motions nunc pro tunc. Id. at 158. In that case, we noted that the
petitioner did not request such relief from the PCRA court, and the PCRA
court did not hold an evidentiary hearing on that issue. Id.
Instantly, there is no indication that Appellant raised a weight of the
evidence claim before or after sentencing. See Pa.R.Crim.P. 607(A).
Moreover, although Appellant’s pro se supplemental PCRA petition initially
claimed that the jury’s verdict went against the weight of the evidence,
counsel’s amended petition abandoned any such claim. Thereafter, the
PCRA court reinstated only Appellant’s direct appeal rights and not his right
to file post-sentence motions nunc pro tunc. Appellant did not challenge this
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decision. See Fransen, 986 A.2d at 158. Thus, Appellant did not file a
post-sentence motion nunc pro tunc preserving a weight of the evidence
issue. Instead, Appellant first suggested his weight of the evidence issue in
his Rule 1925(b) statement alleging ineffective assistance of trial counsel.7
Even though the PCRA court elected to consider Appellant’s issue in the
context of trial counsel’s alleged ineffectiveness, we are precluded from
addressing the weight of the evidence for the first time on appeal. See
Sherwood, 982 A.2d at 494. Therefore, Appellant’s sole issue raised on
appeal nunc pro tunc is waived, and we are constrained to affirm the
judgment of sentence.8 See id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2017
7
It is well settled that this Court will not address a claim of ineffective
assistance of counsel on direct appeal. See Liston, 977 A.2d at 1094.
8
We note that Appellant may file a “first” PCRA petition within one year of
the date his conviction becomes final. See Commonwealth v.
Karanicolas, 836 A.2d 940, 944 (Pa. Super. 2003) (“When a petitioner is
granted a direct appeal nunc pro tunc in his first PCRA petition, a subsequent
PCRA petition is considered a first PCRA petition for timeliness purposes.”
(citation omitted)).
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