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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHRISTOPHER ROBERT WEIR :
:
Appellant : No. 1799 WDA 2016
Appeal from the Judgment of Sentence October 17, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0005483-2016
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 18, 2018
Christopher Robert Weir appeals from the judgment of sentence
imposed following his convictions of criminal mischief and harassment. We
affirm.
The trial court summarized the relevant facts as follows:
On April 13, 2016, Jacob Korimko was working as a
mechanic at a garage he operated. While he was working on a
vehicle, [Appellant] entered the garage and began shouting at
Mr. Korimko, claiming that Mr. Korimko owed him money. Mr.
Korimko vehemently denied that he owed [Appellant] any
money. [Appellant] became agitated and took a very aggressive
stance toward Mr. Korimko. [Appellant] continued shouting at
Mr. Korimko in a threatening manner and Mr. Korimko feared
that [Appellant] was about to physically assault him. Mr.
Korimko stepped back away from [Appellant] and [Appellant]
then swung his fist and contacted the front headlight/cowl area
of Mr. Korimko’s 2012 Kawasaki 600 motorcycle. As a result,
the entire headlight assembly was damaged. The cowl was
caved in. The headlight was broken and the two side frames
were destroyed. The main support for the headlight was also
broken along with the entire gauge cluster. Mr. Korimko paid
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$1,400 to have the parts replaced. He testified that he had
received an additional estimate of $1,000 to have the parts
painted to match the motorcycle’s color. However, he could not
afford to pay the additional $1,000 so he did not have the work
done prior to the trial.
Trial Court Opinion, 6/22/17, at 2.1
After a non-jury trial, Appellant was found guilty of criminal mischief
and the summary offense of harassment. The trial court sentenced him to
serve one to two years probation for criminal mischief, and a ninety-day
term of probation for harassment. The trial court also ordered Appellant to
pay Mr. Korimko $2,000 in restitution. Appellant filed a timely post-
sentence motion claiming, inter alia, that (1) the verdict of criminal mischief
was against the weight of the evidence because Appellant testified that he
did not touch the motorcycle; and (2) the $2,000 award of restitution
exceeded the $1,496 amount of loss claimed by Mr. Korimko at trial. The
trial court denied the post-sentence motion on October 27, 2016. Appellant
filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.
Appellant raises the following issues for our review:
I. Were the guilty verdicts of criminal mischief and
harassment rendered against the weight of the evidence?
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1 The trial court and the Commonwealth refer to the victim as “Korimko,”
whereas Appellant refers to him as “Korinko.” The record reveals that
“Korimko” is the proper spelling. See N.T., 10/17/16, at 8.
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II. Alternatively, was the sentencing order imposing
restitution in the amount of $2,000 speculative and
unsupported by the record?
Appellant’s brief at 5.
In his first issue, Appellant challenges the weight of the evidence
supporting his convictions. A challenge to the weight of the evidence must
be preserved either in a post-sentence motion, a written motion before
sentencing, or orally prior to sentencing. See Pa.R.Crim.P. 607(A)(1)-(3);
see also id., cmt. (providing 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.”). An appellant’s failure to avail himself of
any of the prescribed methods for presenting a weight of the evidence issue
to the trial court constitutes waiver of that claim, even if the trial court
responds to the claim in its Rule 1925(a) opinion. Commonwealth v.
Burkett, 830 A.2d 1034, 1037 n.3 (Pa.Super. 2003). A claim challenging
the weight of the evidence cannot be raised for the first time in a Pa.R.A.P.
1925(b) statement. Burkett, supra at 1037.
On appeal, Appellant argues that the guilty verdicts for both criminal
mischief and harassment were against the weight of the evidence because
Mr. Korimko’s testimony was “wholly inconsistent and unreliable,” and “so
manifestly contradictory as to shock one’s sense of justice.” Appellant’s
brief at 13; see also id. at 13-18 (highlighting the inconsistencies in Mr.
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Korimko’s testimony regarding the damages to his motorcycle, cost of
repairs, model year and the nature of the dispute between them).
Our review of the record indicates that Appellant’s challenge to the
weight of the evidence, as presented in his post-sentence motion, was
limited to his claim that the criminal mischief verdict was against the weight
of the evidence because Appellant testified at trial that he did not touch the
motorcycle.2 Appellant failed to raise the weight claim he now presents prior
to sentencing or in a post-sentence motion. Rather, Appellant raised his
present weight claim for the first time in his Rule 1925(b) statement.
Accordingly, we find that Appellant has waived his present challenge to the
weight of the evidence. See Pa.R.Crim.P. 607; Burkett, supra.3
In his second issue, Appellant claims that the $2,000 restitution award
is “speculative and not supported by the record.” Appellant’s brief at 18.
The Commonwealth asserts that Appellant’s restitution claim implicates the
discretionary aspects of his sentence, and is waived based on his failure to
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2 As Appellant has not raised this weight claim on appeal, we deem it
abandoned.
3 Even if Appellant had preserved his challenge to the weight of the
evidence, we would have concluded that it lacks merit for the reason that
the trial court, sitting as the fact-finder, rejected Appellant’s version of the
facts, found the Commonwealth’s evidence to be “credible, competent and
reliable,” and expressly stated that “the verdict does not shock “any
rationale sense of justice.” Trial Court Opinion 6/22/17, at 4.
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comply with Pa.R.A.P. 2119(f).4 In response, Appellant argues that his
restitution claim presents a non-waivable challenge to the legality of his
sentence.
In In the Interest of Dublinski, 695 A.2d 827 (Pa.Super. 1997), this
Court noted an apparent conflict in our decisions as to whether an appeal of
an order of restitution implicates the legality or the discretionary aspects of
a particular sentence in a criminal proceeding. See id. at 828-29 (noting
that several opinions had held that a claim that a restitution award is
speculative implicated the discretionary aspects of sentencing, whereas
other opinions had held that a claim that the restitution award is not
supported by the record implicates the legality of the sentence.). In In the
Interest of M.W., 725 A.2d 729, 731 n.4 (Pa. 1999), our Supreme Court
addressed the confusion and clarified that “[w]here such a challenge is
directed to the trial court’s authority to impose restitution, it concerns the
legality of the sentence; however, where the challenge is premised upon a
claim that the restitution order is excessive, it involves a discretionary
aspect of sentencing.”
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4 Pursuant to Pa.R.A.P. 2119(f), “[a]n appellant who challenges the
discretionary aspects of a sentence in a criminal matter shall set forth in his
brief a concise statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence.”).
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Although Appellant has framed his issue as implicating, in part, the
legality of the restitution order imposed by the trial court, a review of his
brief reveals that he does not challenge the trial court’s authority to impose
restitution. See In the Interest of M.W., supra. Rather, the essence of
his argument is that the amount of restitution imposed is excessive. See
Appellant’s brief at 19-20 (conceding that Mr. Korimko testified that the cost
to repair the damaged motorcycle parts totaled $1,492, and that it would
cost another $1,000 to repaint the motorcycle, but claims that because Mr.
Korimko elected not to repaint the motorcycle prior to trial, the $2,000
restitution award exceeds the amount of Mr. Korimko’s loss); see also id.
(complaining that the Commonwealth failed to present photographs of the
motorcycle or receipts for replacement parts to corroborate Mr. Korimko’s
testimony, but presenting no legal authority for the proposition that this type
of evidence is required to support an award of restitution). Thus, Appellant’s
restitution claim implicates the discretionary aspects of the restitution order.
See In the Interest of M.W., supra.
When an appellant challenges the discretionary aspects of his
sentence, we must consider his brief on this issue as a petition for
permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267
(Pa.Super. 1997). Prior to reaching the merits of a discretionary sentencing
issue, this Court must determine:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
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preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, [see] 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation
omitted).
In the instant case, Appellant filed a timely post-sentence motion in
which he claimed that the $2,000 award of restitution exceeded the $1,492
amount of loss claimed by Mr. Korimko at trial. See Post-Trial Motion,
10/26/16, at unnumbered 3 (noting that Mr. Korimko chose not to have his
bike repainted prior to trial). Although Appellant filed a timely notice of
appeal, he failed to include in his brief a separate Rule 2119(f) statement,
and the Commonwealth has objected. We are precluded from reaching the
merits of the claim when the Commonwealth lodges an objection to the
omission of the statement. Commonwealth v. Roser, 914 A.2d 447, 457
(Pa.Super. 2006); see also Commonwealth v. Farmer, 758 A.2d 173,
182 (Pa.Super. 2000) (observing that we may not reach the merits of
discretionary aspects of sentencing claims where the Commonwealth has
objected to the omission of a Pa.R.A.P. 2119(f) statement and finding the
issue to be waived). Accordingly, Appellant’s challenge to the discretionary
aspects of the restitution award is waived.
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Judgment of sentence affirmed.
Judge Kunselman joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2018
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