Com. v. Kirksey, S.

J-A29045-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAMSIDEEN ALI KIRKSEY :
:
Appellant : No. 2996 EDA 2016

Appeal from the Judgment of Sentence August 18, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010398-2015

BEFORE: OTT, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 10, 2018

Appellant Shamsideen Ali Kirksey Appeals from the Judgment of

Sentence entered in the Court of Common Pleas of Philadelphia County on

August 18, 2016, following his convictions of Aggravated Assault, Simple

Assault, Recklessly Endangering Another Person, Robbery with Threat of

Immediate Serious Injury, Theft by Unlawful Taking or Disposition, Receiving

Stolen Property, and Robbery, Serious Bodily Harm.1 We affirm.

The trial court aptly set forth the relevant facts and procedural history

herein as follows:

FINDINGS OF FACT

On September 8, 2015, at approximately 12:00 [a.m.], Ms.
Antoinette Hester ("Ms. Hester") was walking from Spruce Street
towards Market Street when a group of approximately five or six
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118 Pa.C.S.A. §§ 2702(a); 2701(a); 2705; 3701(a)(3); 3921(a); 3925(a);
and 3701(A)(2), respectively.
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* Former Justice specially assigned to the Superior Court.
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men began to "cat-call" her. N.T. 5/3/16 at 9. Ms. Hester crossed
the street to avoid the men, but one of them followed her and
continued to attempt to engage with her. Id. Feeling threatened,
Ms. Hester turned down Locust Street to get away from him. Id.
at 10. As Ms. Hester turned on Locust Street, the man grabbed
her pocketbook, pulling her onto the ground. Id. He then began
to kick Ms. Hester and took her cell phone. Id. The man also took
ten dollars from her pocket. Id. at 13. Soon after, the group of
men that the man had initially been standing with approached and
began to ask the man why he had taken Ms. Hester's phone. Id.
at 11. The man threw Ms. Hester's phone back at her but kept the
ten dollars. Id. at 14. He then proceeded to walk down Locust
Street towards 54th Street while Ms. Hester called 9-1-1 and
walked towards 55th Street. Id. at 30.
In the early hours of September 8th 2015, Officer Graber
responded to a report of a robbery in progress on the 5400 block
of Locust Street. Id. at 40. When Officer Graber arrived at the
corner of 55th and Locust Streets, he met the victim Ms. Hester.
Id. Officer Graber observed that Ms. Hester's face was covered in
blood, her lip was deformed, and she had a cut on her face. Id. at
41. Ms. Hester told Officer Graber the direction that her attacker
had headed. Officer Graber placed Ms. Hester in the back of his
cruiser and drove eastbound on the 540 block of Locust Street.
Id. He then turned right onto 54th Street, heading southbound.
He and Ms. Hester spotted [Appellant] headed eastbound on
Irving Street.1 Id. As Officer Graber and Ms. Hester neared
[Appellant], she exclaimed "That's the person that beat me up."
Id. Officer Graber then stopped [Appellant], noticing that he had
blood on his forearms and on his hands and that he matched the
description that Ms. Hester had given. Id. at 42. When stopped by
Officer Graber, [Appellant] complied and appeared uninjured. Id.
at 45. Ms. Hester recognized [Appellant] from the back of the
police cruiser based on the clothes he was wearing. Id. At 17.
Further, Ms. Hester recognized [Appellant’s] voice as he spoke
with officer Graber. Id. Ms. Hester also identified [Appellant] in
court as the man who had attacked her. Id. At 12.

PROCEDURAL HISTORY

On September 8, 2015 [Appellant] was arrested and
charged with Aggravated Assault (18 Pa.C.S.A. § 18 2702 §§A),
Simple Assault (18 Pa.C.S.A. § 2701 §§A), Recklessly
Endangering another Person (18 Pa.C.S.A. § 2705), Robbery with
Threat of Immediate Serious Injury (18 Pa.C.S.A. § 3701 §§ Al

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II), Theft by Unlawful Taking of Movable Property (18 Pa_C.S.A.
§ 3921 §§A), Receiving Stolen Property (18 Pa.C.S.A. § 3925 §§A)
and Robbery with the Infliction of Serious Bodily Harm (18
Pa.C.S.A. § 3701 §§A11). On November 4, 2015, the charge of
Robbery with the threat of immediate Serious Injury was replaced
with a charge of Robbery with Infliction of Serious Bodily Injury.
On May 3, 2016, [Appellant] requested and was granted a waiver
of a jury trial, which occurred before the Honorable Sean F.
Kennedy. Id. at 7. The trial was bifurcated and continued on May
10, 2016. N.T. 5/10/16 at 4. Based on the testimony given at trial,
[Appellant] was found guilty of all charges, and a pre–sentencing
interview was ordered as well as a mental health review. Id. at
29. Sentencing occurred on August 16, 2016. [Appellant] was
sentenced to three and a half to seven years[’] incarceration plus
five years reporting probation for aggravated assault; three and a
half to seven years[’] incarceration plus five years reporting
probation for robbery; and, two years reporting probation for
recklessly endangering another person. Id. at 24. All three
sentences were to run concurrently, resulting in an aggregate
sentence three and a half to seven years[’] incarceration plus five
years reporting probation. Id.

____
1At trial, two witness[es] testified on [Appellant’s] behalf. Ms.

Erica Blackwell, [Appellant’s] neighbor, testified that she saw
[Appellant] and another man named Stan get into a fight between
11:30 and midnight on September 8, 2015. N.T. 5/10/15 at 8. Ms.
Blackwell testified that she saw blood on the shirts of both
[Appellant] and Stan, and that after the fight [Appellant] walked
toward Irving Street but did not see where [Appellant] went after
that. Id. Ms. Juanita Jones, the second witness for [Appellant] and
[Appellant’s] significant other, testified that she gave [Appellant]
and the man named Stan clean shirts to replace their bloody ones
after the fight. Id. at 15.

Trial Court Opinion, filed 6/29/17, at 1-3.

Appellant failed to file a post-sentence motion, but he did file a timely

notice of appeal on September 15, 2016. In its Order entered on September

29, 2016, pursuant to Pa.R.A.P. 1925, the trial court ordered Appellant to file

a concise statement of errors complained of on appeal within twenty-one days.

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Appellant filed his untimely Concise Statement of Matters Complained of on

Appeal on November 9, 2016, wherein he raised the following issue:

The trial [c]ourt erred when it found [Appellant] guilty on
Aggravated Assault and Robbery when in fact the evidence
presented by a non-partisan witness established [Appellant] had
been involved in a fight with another male several blocks away
several minutes before the complainant was assaulted and not
possibly the assailant.

See Concise Statement at ¶1.2

In the Statement of Questions Involved portion of his appellate brief,

Appellant presents a single challenge to the weight of the evidence to sustain

each of his convictions:

1. Whether the weight of the evidence is against Appellant’s
convictions for Aggravated Assault )(18 Pa.C.S. § 2702(a)),
Simple Assault (18 Pa.C.S. § 2701(a)), Recklessly Endangering
Another Person (18 Pa.C.S. § 2705), Robbery with Threat of
Immediate Serious Injury (18 Pa.C.S. § 3701(a)(1)(ii)), Theft by
Unlawful Taking of Movable Property (18 Pa.C.S. § 3921(a)), and
Receiving Stolen Property (18 Pa.C.S. § 3925(a)).

Brief for Appellant at 6.

Initially, we address the untimely filing of Appellant’s concise statement

of matters complained of on appeal. The Pennsylvania Rules of Appellate

Procedure prescribe: “If an appellant in a criminal case was ordered to file a

Statement and failed to do so, such that the appellate court is convinced that

____________________________________________

2 Appellant also reserved therein “the right to re-allege ineffective assistance
of trial counsel at a Post Conviction Relief Act hearing in the future in the event
the Appellate Court does not entertain his collateral ineffective assistance of
counsel claim in this appeal. See Commonwealth v. Grant, 813 A.2d 726 (PA.
2002).” See Concise Statement at ¶ 2.

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counsel has been per se ineffective, the appellate court shall remand for the

filing of a Statement nunc pro tunc and for the preparation and filing of an

opinion by the judge.” Pa.R.A.P. 1925(c)(3). In Commonwealth v. Burton,

973 A.2d 428 (Pa.Super. 2009), this Court held that when counsel files a Rule

1925(b) statement beyond the court-ordered deadline, the proper remedy is

the remand procedure provided in Rule 1925(c)(3). Id. at 431. We reasoned:

The complete failure to file the 1925 concise statement is
per se ineffectiveness because it is without reasonable basis
designed to effectuate the client's interest and waives all issues
on appeal. Likewise, the untimely filing is per se ineffectiveness
because it is without reasonable basis designed to effectuate the
client's interest and waives all issues on appeal.
Thus[,] untimely filing of the 1925 concise statement is the
equivalent of a complete failure to file. Both are per se
ineffectiveness of counsel from which appellants are entitled to
the same prompt relief.
The view that Rule 1925(c)(3) does not apply to untimely
1925 concise statements would produce paradoxical results. The
attorney who abandons his client by failing to file a 1925 concise
statement would do less of a disservice to the client than the
attorney who files a 1925 concise statement beyond the deadline
for filing.

Id. at 432–33.

Based on Pa.R.A.P. 1925(c)(3) and Burton, where a trial court finds

issues waived on appeal for failure to file a timely Rule 1925(b) statement,

the proper remedy would be for this Court to remand the certified record to

the trial court with directions to accept Appellant's Rule 1925(b) statement

nunc pro tunc and to file a Rule 1925(a) Opinion addressing the issues

presented in Appellant's statement. Herein, the trial court did not comment

on the untimely filing of Appellant’s Rule 1925(b) statement and, in fact, it

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addressed the issue raised therein. In doing so, it found the claim waived for

Appellant’s failure to raise it previously before the trial court and, in the

alternative, determined the issue lacked merit. See Trial Court Opinion, filed

6/29/17, at 4-7. Therefore, the trial court essentially accepted Appellant’s

concise statement nunc pro tunc, and a remand is not necessary.

In his appellate brief, Appellant presents a challenge to the weight of

the evidence with regard to each crime of which he had been convicted.

However, in his concise statement of errors complained of on appeal,

Appellant does not specifically assert a weight of the evidence challenge and

references only his Aggravated Assault and Robbery convictions. “Issues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.” Pa.R.A.P. 302(a). This requirement bars an appellant from raising “a

new and different theory of relief” for the first time on appeal.

Commonwealth v. York, 465 A.2d 1028, 1032 (Pa.Super. 1983). Similarly,

our Supreme Court has made it clear that “[a]ny issues not raised in a [Rule]

1925(b) statement will be deemed waived.” Commonwealth v. Castillo, 888

A.2d 775, 780 (Pa. 2005) (citation and quotation omitted); see also Pa.R.A.P.

1925(b)(4)(vii). Thus, Appellant has waived any challenge to his Simple

Assault, Recklessly Endangering Another Person, Theft by Unlawful Taking and

Receiving Stolen Property convictions for his failure to include such claims in

his Rule 1925(b) statement.

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In his concise statement, Appellant posits his Aggravated Assault and

Robbery charges were belied by a “non-partisan witness.” In presenting this

argument, Appellant seeks to assert a weight of the evidence challenge. See,

e.g., Commonwealth v. Gibbs, 981 A.2d 274, 281-282 (Pa.Super. 2008)

(an argument that the fact-finder should have credited one witness’s

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). We agree with the trial court that Appellant has waived this

claim.

As stated previously, an appellant waives an issue not properly

preserved in the lower court. Pa.R.A.P. 302(a). A review of the certified record

reveals that Appellant did not raise a challenge to the weight of the evidence

before the trial court at any time prior to sentencing or in a post sentence

motion. Pa.R.Crim.P. 607(A) provides:

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.

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Pa.R.Crim.P. 607(A). The comment to Rule 607 provides 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. Appellate review of a

weight of the evidence claim is limited to a review of the judge’s exercise of

discretion.” Id (citations omitted). Thus, Appellant’s challenge to the weight

of the evidence to sustain his Robbery and Aggravated Assault convictions is

waived.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/10/18

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