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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
SAMUEL JAMES, : No. 3789 EDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, May 31, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0012389-2015
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 30, 2018
Samuel James appeals from the May 31, 2016 judgment of sentence
entered in the Court of Common Pleas of Philadelphia County following his
conviction in a waiver trial of robbery and simple assault.1 Appellant
received an aggregate sentence of 24 to 48 months of incarceration. We
affirm.
At the outset, we note that the record reflects that at some point after
imposition of sentence but before appellant filed a PCRA2 petition that
resulted in his direct appeal rights being restored nunc pro tunc, the trial
judge in this matter, the Honorable Paul Panepinto, was reassigned. The
1 18 Pa.C.S.A. §§ 3701(a)(1)(iv) and 2701(a), respectively.
2 Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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record further reflects that appellant’s PCRA petition was assigned to the
Honorable Giovanni Campbell who reinstated appellant’s direct appeal rights
nunc pro tunc. Judge Campbell authored the opinion pursuant to
Pa.R.A.P. 1925(a) in this direct appeal. In this memorandum, we refer to
Judge Campbell as the “trial court.”
The trial court set forth the following factual history:
On November 17, 2015, at about 6:00 PM,
Jamie Ford was leaving work, heading to the train
station. She was at 17th and JFK Boulevard, about to
head down the stairs to the train when she was
approached by a woman who asked if she had a
lighter. 20-30 seconds later, the same woman,
along with [a]ppellant, approached Ms. Ford, getting
close to her. Ms. Ford felt uncomfortable and
proceeded to turn away.[Footnote 2]
[Footnote 2] Appellant is physically male
but presents as a female. Hence the
interchangeable use of male and female
pronouns throughout the course of the
trial and sentencing transcripts.
As Ms. Ford turned to walk away, [a]ppellant
grabbed Ms. Ford’s handbag, which she was holding
with the strap wrapped around her arm. Appellant
attempted to pull the bag away from Ms. Ford, and a
20-30 second struggle for the bag ensued. As
Ms. Ford broke free, [a]ppellant grabbed her hair
and pulled out some of it.
Ms. Ford ran into a nearby building and notified the
security guards, who called 911 for her. Philadelphia
Police Officer Mike Blatchford responded to the
location. When the officer encountered Ms. Ford,
she was crying, shaking and holding her head.
Ms. Ford identified [a]ppellant to the police officer.
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Photographs of Ms. Ford’s bag showed visible
damage to the bag, caused by the struggle as
[a]ppellant attempted to take the bag.
Trial court opinion, 2/14/18 at 2-3 (citations to record omitted).
Following appellant’s conviction and imposition of sentence,
[o]n June 20, 2016, counsel for [a]ppellant filed an
untimely post sentence motion for reconsideration of
sentence and a motion for leave to file said motion,
nunc pro tunc. The motion for leave to file nunc
pro tunc was denied on July 6, 2016, and the
motion for reconsideration was denied on the merits.
On August 10, 2016, [a]ppellant filed a pro se
petition under the [PCRA] seeking reinstatement of
his appellate rights and leave to file for
reconsideration of sentence.
On March 9, 2017, the PCRA petition was assigned to
this Court, because Judge Panepinto was no longer
assigned to the First Judicial District’s Trial Division.
An amended PCRA petition was filed by appointed
counsel on July 24, 2017.
On October 11, 2017, an evidentiary hearing was
held on the PCRA Petition.
On October 12, 2017, the Court granted the PCRA
petition only to the extent that [a]ppellant was given
leave to file an appeal nunc pro tunc, his request to
file a motion for reconsideration was denied.
A timely notice of appeal was filed on November 3,
2017.
Pursuant to Pa.R.A.P. 1925(b)(2) and (3), the Court
entered an order on November 27, 2017, directing
the filing of a Statement of Errors Complained of on
Appeal, not later than twenty-one (21) days after
entry of the order.
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On December 7, 2017, [a]ppellant filed a Statement
of Errors Complained of on Appeal.
Id. at 1-2 (footnote 1 omitted).
Appellant raises the following issues for our review:
I. Whether the verdict was insufficient as a
matter of law, due to the inconsistency and
insufficiency of testimony, and whether the
elements of the crimes were sufficiently proven
in the Commonwealth’s case-in-chief[?]
II. Whether the verdict was against the weight of
the evidence adduced at trial[?]
III. Whether the PCRA court erred in not granting
relief on the PCRA petition alleging [trial
counsel] was ineffective for failing to file
motions challenging the harsh and reasonable
sentence[?]
Appellant’s brief at 9.
Appellant first challenges the sufficiency of the evidence to sustain his
convictions. 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).
In his Rule 1925(b) statement, appellant frames his sufficiency
challenge as follows: “The verdict was contrary to law for the reasons stated
by trial counsel at the trial.” (Appellant’s “statement of matters complained
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of on appeal,” 12/7/17 at 1, ¶ 1.) Because appellant failed to specify the
element or elements of the conviction or convictions upon which he now
claims the evidence was insufficient, appellant waives this issue on appeal.
See Gibbs, 981 A.2d at 281.
Nevertheless, we note that a reading of appellant’s argument on this
issue reveals that appellant challenges the credibility of the Commonwealth’s
witnesses while attempting to bolster his own testimony. (Appellant’s brief
at 18-19.) In so doing, appellant challenges the weight of the evidence, not
its sufficiency. See, e.g., 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).
In his second issue on appeal, appellant raises a weight of the
evidence claim. In order to raise a weight claim on appeal, however,
Pennsylvania Rule of Criminal Procedure 607 requires an appellant to raise
the claim 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).
“The purpose of this rule is to make it clear that a challenge to the weight of
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the evidence must be raised with the trial judge or it will be waived.”
Pa.R.Crim.P. 607, comment.
Our review of the certified record before us reveals that appellant
failed to raise his weight claim with the trial judge in a motion for a new trial
orally, on the record, prior to sentencing; by written motion prior to
sentencing; or in a post-sentence motion. Accordingly, appellant waives his
weight claim on appeal.
Appellant finally claims that trial counsel was ineffective for failing to
file motions challenging appellant’s sentence as harsh and unreasonable.
Appellant’s claim of ineffectiveness of trial counsel, however, must be
deferred to collateral review pursuant to the dictates of our supreme court in
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), wherein our high
court held that a claim of ineffective assistance of counsel cannot be
entertained on direct appeal. Only in specific limited circumstances may a
defendant raise ineffectiveness claims in post-sentence motions and on
direct appeal. See, e.g., Commonwealth v. Holmes, 79 A.3d 562,
563-564 (Pa. 2013) (trial judge has discretion to entertain ineffectiveness
claims on post-verdict motions and direct appeal where: (1) claim of
ineffectiveness is apparent from record and meritorious to the extent that
immediate consideration best serves interests of justice; or (2) where good
cause is shown and defendant knowingly and expressly waives his
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entitlement to seek subsequent PCRA review from his conviction and
sentence). These exceptions do not apply here.
We finally note that appellant filed his notice of appeal of the judgment
of sentence entered on May 31, 2016, in accordance with the PCRA court’s
October 12, 2017 order that reinstated his direct appeal rights nunc pro
tunc, but that denied his request for reinstatement of his right to file
post-sentence motions nunc pro tunc. What is procedurally difficult in this
case is that in the same order that granted appellant the right to appeal his
judgment of sentence nunc pro tunc, Judge Campbell, in a footnote to the
order, resolved the ineffective assistance of counsel claim as it related to
trial counsel’s untimely filing of a post-trial motion. This the court should
not have done.
In Commonwealth v. Pate, 421 Pa. Super. 122,
617 A.2d 754 (Pa.Super. 1992) we determined that
“once a PCRA court determines that a petitioner’s
right to direct appeal has been violated, the PCRA
court is precluded from reaching the merits of other
issues raised in the petition.” Pate, 617 A.2d at
757, citing Commonwealth v. Hoyman, 385 Pa.
Super. 439, 561 A.2d 756 (Pa.Super. 1989).
“Rather, once the PCRA court finds that the
petitioner’s appellate rights have been abridged, it
should grant leave to file a direct appeal and end its
inquiry there.” Id.(citation omitted).
Commonwealth v. Harris, 114 A.3d 1, 3-4 (Pa.Super. 2015)
When appellant’s direct appeal is concluded, the clock starts anew for
petitioning for PCRA relief. If appellant wished to pursue the PCRA court’s
improper denial of his ineffectiveness claim in the context of PCRA
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proceedings, he should have filed a second appeal from Judge Campbell’s
denial of relief. The failure to do so precludes us from reviewing appellant’s
ineffectiveness claim on direct appeal.
Judgment of sentence affirmed.
Lazarus, J. joins this memorandum.
McLaughlin, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/18
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