J-S67039-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEE ANTHONY TORRES :
:
Appellant : No. 728 MDA 2019
Appeal from the Judgment of Sentence Entered April 9, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003002-2017
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 27, 2020
Appellant, Lee Anthony Torres, appeals from the judgment of sentence
entered in the Court of Common Pleas of Berks County following his conviction
by a jury on two counts of possession of a firearm prohibited, 18 Pa.C.S.A. §
6105(a)(1). After a careful review, we affirm.
The relevant facts and procedural history have been set forth by the trial
court, in part, as follows:
On April 26, 2017, Criminal Investigator [Matthew] Niebel
(“C.I. Niebel”) of the Reading Police Department applied for a
search warrant and received authorization to search the residence
located at 1140 Green Street, Reading, Berks County,
Pennsylvania (“Residence”). On May 2, 2017, C.I. Niebel obtained
a second search warrant for the Residence.
As part of his investigation into the Residence, C.I. Niebel
interacted with a confidential source (“C.S.”) who was familiar
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* Former Justice specially assigned to the Superior Court.
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with the Residence. C.I. Niebel testified that he had known C.S.
since October of 2016. C.S. had been used by the Reading Police
Department for four years as of the search warrant application
date. C.S. had provided information to law enforcement that had
led to an arrest, conviction and incarceration of an individual for
possession with intent to deliver a controlled substance.
C.S. began providing C.I. Niebel with information about the
Residence in March of 2017. C.S. was able to identify [Appellant]
through a JNET photograph printed out by C.I. Niebel. C.S.
provided C.I. Niebel with the Residence’s address and knew
[Appellant] was on state parole. C.I. Niebel independently verified
[Appellant’s] address. C.I. Niebel learned through JNET that the
Residence’s address was on [Appellant’s] Pennsylvania driver’s
license. He also discovered that the Residence’s address was
listed as [Appellant’s] address with state parole and there was an
active warrant for a parole violation at that address. The Reading
Police Department record system had contact with [Appellant] in
July of 2016 where [Appellant] provided law enforcement with the
Residence’s address as his address.
In March of 2017, C.S. made a controlled purchase of heroin
from the Residence. A second controlled purchase of heroin was
made from the Residence between April 26, 2017, and April 28,
2017. C.S. provided information to C.I. Niebel that [Appellant]
was in possession of at least one firearm, but this was not included
in the affidavit of probable cause.
The first search warrant was executed on April 28, 2017.
Upon entry, police officers encountered [Appellant’s] girlfriend,
Mayra Torres (“Ms. Torres”). Ms. Torres was detained, and the
officers searched the Residence. In the dining room, officers
located a table containing multiple items of mail addressed to
[Appellant] and male clothing. A loaded Smith & Wesson .44
Magnum revolver and .44 Magnum ammunition were located
inside of a second-floor bedroom. The ammunition was found
inside of a nightstand along with [Appellant’s] social security card
and his parole paperwork. The Smith & Wesson revolver was
located inside of a blue plastic tub near the nightstand and
contained men’s clothing. Ms. Torres stated that the firearm
belonged to [Appellant]. Ms. Torres had previously seen the
Smith & Wesson during a time when [Appellant] had friends over
to the Residence. Ms. Torres contacted [Appellant] and informed
him that the police officers located the Smith & Wesson revolver.
Nothing was located in the Residence related to the selling or
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distribution of narcotics. The Smith & Wesson revolver was
previously reported as stolen.
[Appellant] was not present at the Residence when the
search warrant was executed but [he] was located at 845 Weiser
Street. [Appellant] was taken into custody and was in possession
of a black smartphone….C.I. Niebel looked at [Appellant’s]
smartphone. C.I. Niebel discovered the following text
conversation took place on [Appellant’s] smartphone:
3/27/17: [Appellant] had a text conversation
with an individual identified as “Stink” regarding the
acquisition of a .22 caliber firearm and ammunition.
[Appellant] arranged for the .22 caliber firearm to be
dropped off at the Residence with Ms. Torres. “Stink”
sent a text message at the end of the conversation
stating that [Ms. Torres] received the .22 caliber
firearm.
4/15/17: [Appellant] sent a text message to Ms.
Torres stating “There’s another bigger gun under the
cushions.”
4/28/17: [Appellant] received a text message
from 484-721-**** stating “Mayra said they only got
the big gun where is the 22.” [Appellant] responded
with “don’t worry about the fu**ing gun.”
5/1/17: [Ms. Torres] received a Facebook
message from “Bussa Buss Down” asking “so what is
he booked 4.” [Ms. Torres] responded with “I guess
the drug sale.” [Appellant] then sent a message to
“Bussa Buss Down” stating “they found a gun in my
crib.” “Bussa Buss Down” responded with “Damn.
Black oR [sic] Silver gun?” A response was sent
stating “Silver old one.”
The messages in [Appellant’s] smartphone indicated that
there was a second firearm present at the Residence. However,
[Appellant’s] smartphone was remotely locked from an outside
location before any evidence was able to be extracted. On May 2,
2017, C.I. Niebel obtained a second search warrant for the
Residence and located ammunition for a .22 caliber firearm in the
same nightstand as the .44 caliber ammunition. A partially loaded
.22 caliber semiautomatic handgun was located in a box in the
rear yard. Ms. Torres stated that the firearm belonged to
[Appellant].
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Trial Court Opinion, filed 6/26/19, at 3-6 (footnotes and citations to record
omitted).
Appellant was charged with various offenses, and the trial court
appointed counsel to represent Appellant. Appellant filed numerous pro se
motions, including a motion to suppress the evidence seized by the police from
the Residence.1 Further, on November 15, 2018, Appellant filed a motion to
proceed pro se, and following a colloquy, the trial court granted Appellant’s
request. However, the trial court appointed John A. Fielding, III, as standby
counsel.
Following a hearing, by order and opinion entered on January 9, 2019,
the trial court denied Appellant’s suppression motion.2 Thereafter, Appellant
proceeded to a jury trial with standby counsel. At trial, the Commonwealth
offered the testimony of C.I. Niebel and Ms. Torres. Specifically, C.I. Niebel
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1 In his motion to suppress, Appellant presented the following claims: (1) the
police searched the Residence without a valid search warrant, probable cause,
or voluntary consent; and (2) the police violated the “knock and announce
rule” when they entered the premises. See Motion to Suppress, filed 8/21/17.
In his supplemental motion to suppress, Appellant presented three claims: (1)
the search warrants for the Residence were overly broad in that they merely
listed general items to be seized; (2) the first search warrant was not
supported by probable cause; and (3) the affiant made deliberate
misrepresentations in the affidavit of probable cause with regard to alleged
drug activities/investigations occurring at the Residence. See Supplemental
Motion to Suppress, filed 6/28/18.
2In the January 9, 2019, order, the trial court disposed of twenty-four pro se
motions/requests, which had been filed by Appellant.
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testified that, when he and his fellow officers executed the first search warrant
on April 28, 2017, Ms. Torres was the only person inside of the Residence.
N.T., 3/18/19, at 44. C.I. Niebel testified the police discovered multiple pieces
of mail addressed to Appellant, as well as men’s clothing, on the dining room
table. Id. at 46. One of the pieces of mail was from the state parole office.
Id. at 47.
C.I. Niebel further testified the police found in the bedroom a .44
Magnum revolver and ammunition for the revolver, as well as Appellant’s
social security card and parole paperwork. Id. at 48. Specifically, the
ammunition, card, and paperwork were found in a nightstand drawer while
the revolver was found in a blue plastic tub that was on the ground near the
nightstand. Id. at 48-49. The blue plastic tub also contained men’s clothing.
Id. at 49.
C.I. Niebel testified the initial search warrant included the search of
Appellant’s person, and when Appellant was arrested on Weiser Street after
the initial search warrant had been executed at the Residence, the police
searched him. Id. at 52. This search of Appellant’s person revealed a black
smartphone. Id. at 53. C.I. Niebel confirmed that, after reviewing the
smartphone’s text messages, which indicated a second firearm was in the
Residence, the police secured a second search warrant, which they executed
at the Residence on May 2, 2017. Id. The police discovered ammunition for
a .22 caliber handgun in the bedroom’s nightstand, as well as a partially
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loaded .22 caliber handgun in a box of Christmas lights, which was sitting on
top of a trashcan in the rear yard. Id. at 57-59. Ms. Torres stated that the
gun belonged to Appellant. Id.
Ms. Torres testified she lived at the Residence for approximately four
years with Appellant, who was her paramour. Id. at 136-38. During the
month of April 2017, Appellant was staying at the Residence mostly on
weekends because he was in a halfway house. Id. at 139.
Ms. Torres testified she and Appellant shared a bedroom; however,
Appellant slept on the side of the bed by the nightstand from which the police
seized the .44 Magnum revolver and ammunition for the revolver, as well as
Appellant’s social security card, Appellant’s parole paperwork, and
ammunition for the .22 caliber handgun. Id. at 140-41. She also testified
Appellant used the nightstand. Id. Ms. Torres indicated some of the clothes
in the blue bin belonged to her while other pieces of clothes belonged to
Appellant. Id. at 141.
Ms. Torres testified that in March of 2017 she was walking her dog when
one of Appellant’s friends called and said he was going to drop something off
for Appellant. Id. at 144. When Ms. Torres returned to the Residence, there
was a book bag on the porch, and she carried it into the Residence. Id. On
a subsequent day, Ms. Torres came home from work, and Appellant had a
group of friends at the Residence. Id. at 145. She observed a handgun sitting
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on the arm of the sofa. Id. Ms. Torres told Appellant she wanted him to “get
rid of” the gun because she is afraid of guns. Id.
With regard to the police executing a search warrant at the Residence
on April 28, 2017, Ms. Torres testified she was sleeping when the police
entered the Residence. Id. at 148. She confirmed the police recovered a
handgun from the bedroom; however, she denied knowing that the handgun
was there prior to the police seizing it. Id. at 149.
Ms. Torres testified that, after the police left the residence on April 28,
2017, she called Appellant and told him the police had found a handgun. Id.
at 150. She admitted she and Appellant argued, and she became “very angry”
when Appellant asked her to retrieve one of his telephones from another
woman’s house. Id. at 150-51. She refused to do so. Id. at 151.
Ms. Torres testified that as she was cleaning the Residence after the
police left she found a box of Christmas lights in the closet. Id. at 152. The
box felt heavy, and when she looked inside she found another handgun. Id.
Ms. Torres testified she “panicked,” carried the box containing the handgun
out to the backyard, and left the box with the rest of the trash. Id. at 153.
She confirmed that approximately one week later the police returned and
seized the handgun from the box. Id. at 153-54.
Ms. Torres testified she did not want her own gun because she was afraid
of them. Id. at 154. She admitted that prior to the instant incidents she
would have been able to legally buy a gun if she wanted one, but she had no
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desire to do so. Id. She noted Appellant once suggested she should buy a
gun to keep in the house for protection, but she told him she did not want
one. Id. at 155.
Ms. Torres admitted that after the police executed the first search
warrant she told one of Appellant’s friends via Facebook Messenger that the
police had found a gun and arrested Appellant. Id. at 155-56. The friend
asked “if it was a silver or black one.” Id. at 156. She told him it was “a
silver one.” Id.
Ms. Torres testified that, after Appellant was arrested, he called her from
prison and asked her to say the firearms belonged to her. Id. She also
testified she pled guilty to tampering with physical evidence in connection with
the instant matter and, consequently, she lost her job. Id. at 138, 156. She
denied ever seeing Appellant manufacturing illegal drugs in the Residence.
Id.
At the conclusion of all testimony, the jury convicted Appellant of the
offenses indicated supra. On April 9, 2019, Appellant was sentenced to an
aggregate of ten years to twenty years in prison. On April 15, 2019, Appellant
contemporaneously filed a timely, pro se post-sentence motion, and a notice
of appeal to this Court.
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On April 18, 2019, the trial court denied Appellant’s post-sentence
motion, in part.3 Further, on April 18, 2019, the trial court directed Appellant
to file a statement pursuant to Pa.R.A.P. 1925(b), and on April 29, 2019,
Appellant filed a pro se forty-seven page statement pursuant to Pa.R.A.P.
1925(b).4 On May 2, 2019, Appellant filed a second notice of appeal.
Thereafter, the trial court filed an order disposing of the remaining portions of
Appellant’s post-sentence motion, and Appellant filed a third notice of appeal
on June 6, 2019. The trial court did not order Appellant to file an additional
Rule 1925(b) statement; however, on June 26, 2019, the trial court filed a
Pa.R.A.P. 1925(a) opinion.5
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3 The trial court noted in its opinion that “due to a typographical error” the
trial court inadvertently ruled on only one claim raised in the post-sentence
motion and failed to rule on the remaining issues.
4 We note that Appellant’s forty-seven page Rule 1925(b) statement is not
“concise.” This Court has found waiver of all issues on appeal where an
appellant filed a redundant, non-concise, and incoherent statement. See
Jiricko v. Geico Ins. Co., 947 A.2d 206, 210 (Pa.Super. 2008). In any event,
due to the procedural irregularities in this case, we decline to find waiver on
this basis.
5 Appellant’s initial appeal was docketed in this Court at 609 MDA 2019, and
his second notice of appeal was docketed at 728 MDA 2019. Concluding the
appeals were duplicative, we dismissed the first appeal. Moreover, Appellant’s
third notice of appeal was docketed at 919 MDA 2019; however, we dismissed
the third appeal sua sponte due to an overdue docketing statement. The
instant appeal (728 MDA 2019) was filed at a time when a portion of
Appellant’s post-sentence motion had yet to be ruled on. Thus, the instant
appeal was prematurely filed. See Commonwealth v. Chamberlain, 658
A.2d 395 (Pa.Super. 1995) (holding where timely post-sentence motions are
filed the order denying the post-sentence motions acts to finalize the
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On appeal, Appellant sets forth the following issues in his “Statement of
the Questions Involved”:
1) Did the trial court err when it failed to determine that the
Appellant made a preliminary showing of Affiant’s deliberate
misstatements at the suppression hearing?
2) Did the Commonwealth fail in satisfying it’s [sic] burden of
proof, production and persuasion that evidence was not
illegally obtained from the residence, at the suppression
hearing?
3) Did the trial court err in failing to suppress evidence illegally
obtained as a result of a defective search warrant?
4) Did the trial court err when it permitted the Commonwealth to
introduce hearsay evidence as proof of the matters asserted?
5) Did the Commonwealth misrepresent the facts of the case to
prejudice the jury against the Appellant?
6) Was the weight of the evidence in favor of the Appellant and
against his guilt?
7) Was Mayra Torres’ testimony biased in her own self-interest,
contradictory and coerced, thus non-admissible?
8) Was the verdict rendered on speculation, conjecture, and false
evidence?
Appellant’s Brief at 7 (suggested answers omitted).
Appellant’s first, second, and third issues are intertwined and challenge
the propriety of the search warrants. Appellant avers the affiant, C.I. Niebel,
made numerous deliberate misstatements in the affidavit of probable cause
____________________________________________
judgment of sentence). However, since the trial court subsequently entered a
final order denying Appellant’s post-sentence motion in its entirety, we will
treat the premature notice of appeal “as having been filed after entry of [an]
order denying post-sentence motions.” See Commonwealth v. Ratushny,
17 A.3d 1269, 1271 n.4 (Pa.Super. 2011).
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for the first search warrant. Specifically, he avers C.I. Niebel made
misstatements regarding “the occurance [sic] and existence of the drug
investigation.” Appellant’s Brief at 26. Appellant also contends the first search
warrant, which was executed by the police on April 28, 2017, was overly broad
and lacking in particularity since the warrant did not state what specific cell
phone the police were permitted to seize. Finally, he asserts the police’s
reading of the text messages, as well as examining his Facebook account as
displayed on his phone, went beyond the scope of the first search warrant.
Id. at 24. Thus, Appellant contends the suppression court erred in denying his
motion to suppress.
Our standard of review of the denial of a motion to suppress evidence
is as follows:
[An appellate court’s] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only the
evidence of the Commonwealth and so much of the evidence for
the defense as remains uncontradicted when read in the context
of the record as a whole. Where the suppression court’s factual
findings are supported by the record, [the appellate court is]
bound by [those] findings and may reverse only if the court’s legal
conclusions are erroneous. Where...the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court’s legal conclusions are not
binding on [the] appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts. Thus,
the conclusions of law of the [trial court are] subject to plenary
review.
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Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa.Super. 2012)
(quotation omitted).
Moreover, “[a]ppellate courts are limited to reviewing only the evidence
presented at the suppression hearing when examining a ruling on a pre-trial
motion to suppress.” Commonwealth v. Stilo, 138 A.3d 33, 35-36
(Pa.Super. 2016) (citation omitted). Also, “[i]t is within the suppression
court’s sole province as factfinder to pass on the credibility of witnesses and
the weight to be given their testimony.” Commonwealth v. Gallagher, 896
A.2d 583, 585 (Pa.Super. 2006) (quotation marks and quotation omitted).
Regarding Appellant’s claim that C.I. Niebel made deliberate
misstatements in the affidavit of probable cause for the first search warrant,
this Court has held that “[a] search warrant is defective if the issuing authority
has not been supplied with the necessary information…[to establish that] a
fair probability exists that contraband or evidence of a crime will be found in
a particular place.” Commonwealth v. Huntington, 924 A.2d 1252, 1255
(Pa.Super. 2007) (citations omitted). Further, “[t]he Commonwealth shall
have the burden of going forward with the evidence and of establishing that
the challenged evidence was not obtained in violation of the defendant’s
rights.” Pa.R.Crim.P. 581(H). The standard of proof is preponderance of the
evidence. Id., cmt. “[A] defendant at a suppression hearing has the right to
test the veracity of the facts recited in the affidavit in support of probable
cause.” Commonwealth v. James, 620 Pa. 465, 69 A.3d 180, 187 (2013)
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(citation omitted). When testing the veracity of the facts recited in the
affidavit, a defendant must make “a substantial preliminary showing [that]
the affiant knowingly and intentionally, or with reckless disregard for the truth,
included a false statement in the affidavit.” Id. at 188 (citation omitted).
In the case sub judice, in rejecting Appellant’s claim that C.I. Niebel
made deliberate misstatements indicating drug activity was occurring and/or
being investigated as to the Residence, the suppression court stated the
following:
[The suppression] court provided [Appellant] with the
opportunity to cross-examine C.I. Niebel regarding the alleged
misrepresentations. However, [Appellant] is not entitled to relief.
[Appellant] claimed that C.I. Niebel made misrepresentations
regarding drug activity at the Residence. The testimony
presented by C.I. Niebel [at the suppression hearing] established
that two controlled purchases of heroin took place between C.S.
and [Appellant] at the Residence. Furthermore, C.I. Niebel
testified to the existence of C.S., the information provided by C.S.
and described the investigation into drug sales by [Appellant] at
the Residence. There is no evidence that C.I. Niebel made any
misrepresentations of fact in Search Warrant #1. [Appellant’s]
claim must fail.
Suppression Court Opinion, filed 1/9/19, at 10.
We agree with the suppression court’s sound reasoning and find no
abuse of discretion.6 See Hoppert, supra.
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6 We note the suppression court has set forth in detail the averments, which
C.I. Niebel made in the affidavit of probable cause with regard to the first
search warrant. See Suppression Court Opinion, filed 1/9/19, at 2-7. Further,
the certified record contains the search warrant and accompanying affidavit
of probable cause.
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Appellant next claims the first search warrant was overly broad and
lacking in particularity since the warrant did not state what specific cell phone
the police were permitted to seize, and, therefore, the suppression court
should have suppressed the smartphone, which the police seized from
Appellant’s person. We conclude Appellant is not entitled to relief.
Here, as the suppression court found, the police seized the smartphone
from Appellant when he was arrested on April 28, 2017, on Weiser Street after
the police had already seized the revolver at his Residence. Suppression Court
Opinion, filed 1/9/19, at 7. Accordingly, we conclude C.I. Niebel properly
seized the smartphone from Appellant’s person incident to his arrest. See
Commonwealth v. Simonson, 148 A.3d 792 (Pa.Super. 2016) (explaining
probable cause to arrest and “search incident to arrest” exception).7
Finally, Appellant asserts C.I. Niebel’s reading of the text messages, as
well as examining his Facebook account as displayed on his smartphone, went
beyond the scope of the first search warrant.
In addressing this claim in its Rule 1925(a) opinion, the trial court
concluded Appellant waived this specific claim by failing to raise it in the court
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7 In any event, to the extent Appellant avers generally that the first search
warrant was “overly broad,” we agree with the suppression court that the
issue lacks merit. See Suppression Court Opinion, filed 1/9/19, at 10-13
(concluding search warrant did not authorize a sweeping search based on
generalized suspicions and included an appendix of specific items for which
the police were searching).
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below. We conclude Appellant did not raise the claim in either his original or
supplemental motion to suppress. Accordingly, we agree with the trial court
that Appellant waived this claim.8 See Commonwealth v. Little, 903 A.2d
1269, 1272-73 (Pa.Super. 2006) (“appellate review of an order denying
suppression is limited to examination of the precise basis under which
suppression initially was sought; no new theories of relief may be considered
on appeal”).
In his fourth issue, Appellant contends the trial court erred in admitting
at trial several pieces of mail, which the police seized from the Residence, as
proof that he actually resided at the Residence. Specifically, Appellant
contends the sender’s placement of his name and address on the mail
constituted inadmissible hearsay.
Assuming, arguendo, the trial court erred in admitting the mail as proof
of residence, we conclude the error was harmless. At trial, Ms. Torres testified
that Appellant was her paramour, and they resided together at the Residence.
N.T., 3/18/19, at 137-38. She specifically testified that, during April of 2017,
Appellant was in a halfway house, but he continued to live and spend his
weekends at the Residence. Accordingly, the mail was merely cumulative of
Ms. Torres’ testimony regarding the location of Appellant’s residence, and
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8 In any event, we agree with the trial court that the issue lacks merit. See
Trial Court Opinion, filed 6/26/19, at 8 (concluding Appellant’s cell phone and
electronic messages were included in the list of items included in the search
warrant).
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thus, any error in its admittance was harmless error. See Commonwealth
v. Watson, 945 A.2d 174, 177 (Pa.Super. 2008) (holding harmless error
exists where “the erroneously admitted evidence was merely cumulative of
other untainted evidence which was substantially similar to the erroneously
admitted evidence.”) (citation omitted)).
In his fifth issue, Appellant contends the Commonwealth misrepresented
the facts to the jury. Specifically, he contends the prosecutor committed
misconduct during closing argument by referring to the text messages from
Appellant’s smartphone as statements of fact since the text messages were
not introduced or admitted into evidence. See Appellant’s Brief at 45.
In reviewing claims of improper prosecutorial comments, our standard
of review “is whether the trial court abused its discretion.” Commonwealth
v. Hall, 549 Pa. 269, 701 A.2d 190, 198 (1997).
[W]ith specific reference to a claim of prosecutorial
misconduct in a closing statement, it is well settled that any
challenged prosecutorial comment must not be viewed in
isolation, but rather must be considered in the context in which it
was offered. Our review of a prosecutor’s comment and an
allegation of prosecutorial misconduct requires us to evaluate
whether a defendant received a fair trial, not a perfect trial. Thus,
it is well settled that statements made by the prosecutor to the
jury during closing argument will not form the basis for granting
a new trial unless the unavoidable effect of such comments would
be to prejudice the jury, forming in their minds fixed bias and
hostility toward the defendant so they could not weigh the
evidence objectively and render a true verdict. The appellate
courts have recognized that not every unwise remark by an
attorney amounts to misconduct or warrants the grant of a new
trial. Additionally, like the defense, the prosecution is accorded
reasonable latitude, may employ oratorical flair in arguing its
version of the case to the jury, and may advance arguments
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supported by the evidence or use inferences that can reasonably
be derived therefrom. Moreover, the prosecutor is permitted to
fairly respond to points made in the defense’s closing, and
therefore, a proper examination of a prosecutor’s comments in
closing requires review of the arguments advanced by the defense
in summation.
Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa.Super. 2016) (quotation
marks, quotation, and citations omitted).
Here, in addressing Appellant’s claim, the trial court relevantly indicated
the following:
In the case at bar, [Appellant] raised an objection to the
Commonwealth’s reference to the text messages retrieved from
his smartphone during the Commonwealth’s closing argument.
[Appellant] argued that the Commonwealth improperly referred to
the text messages as proof of a fact even though the messages
were not in evidence other than through the testimony of C.I.
Niebel. [Appellant] claimed that the Commonwealth said the
messages were recovered and implied that the text messages
were admitted into the record. Upon review of the trial transcript,
[Appellant] is simply incorrect. Prior to [Appellant’s] objection,
the Commonwealth made the following statement regarding the
text messages:
But there’s some other circumstantial evidence that
proves that he had the intent and the ability to control
that firearm. Investigator Niebel testified to the text
messages that were found on the defendant’s phone
when he was arrested that morning. A text message
at 8:37 saying, Mayra, said they found the revolver.
Where is the .22? It’s an unknown person who sends
the text message to [Appellant]. But the person says,
where is the .22? That person knew that [Appellant]
would know where the .22 is. They know he knew
about the firearms. And he says, don’t worry about
the fu**ing gun. Not only did he know where the
firearm is, but he expressed his ability to control it by
telling someone else, don’t worry about it.
The Commonwealth did not make any statement to the jury
that the text messages were recovered and admitted into the
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record. In an abundance of caution, the [trial] court instructed
the Commonwealth to make it clear that C.I. Niebel viewed the
text messages on the cell phone. The Commonwealth continued
with their closing argument and complied with the [trial] court’s
instruction. Furthermore, the Commonwealth was permitted to
reference the text messages that were testified to by C.I. Niebel.
“[I]t is entirely proper for the prosecutor to summarize the
evidence presented, to offer reasonable deductions and inferences
from the evidence, and to argue that the evidence establishes the
defendant’s guilt.” Commonwealth v. Thomas, [618 Pa. 70,]
54 A.3d 332, 338 (2012) (citation omitted). [Appellant] is not
entitled to relief.
Trial Court Opinion, filed 6/26/19, at 17-18 (citations to record omitted).
We conclude the trial court did not abuse its discretion, and therefore,
we find no merit to Appellant’s claim. See Hall, supra.
Appellant’s sixth, seventh, and eighth issues are intertwined and present
a challenge to the weight of the evidence. Specifically, Appellant contends
Ms. Torres’ testimony indicating that he owned the firearms was incredible,
thus rendering the jury’s verdicts against the weight of the evidence.9 He
contends Ms. Torres shifted the blame to him so that she would receive
leniency from the prosecution.
When considering challenges to the weight of the evidence, we apply
the following precepts. “The weight of the evidence is exclusively for the
finder of fact, who is free to believe all, none[,] or some of the evidence and
to determine the credibility of the witnesses.” Commonwealth v. Talbert,
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9Appellant adequately preserved his weight claim in his post-sentence motion.
See Pa.R.Crim.P. 607(a).
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129 A.3d 536, 545 (Pa.Super. 2015) (quotation marks and quotation
omitted). Resolving contradictory testimony and questions of credibility are
matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910,
917 (Pa.Super. 2000). It is well-settled that we cannot substitute our
judgment for that of the trier of fact. Talbert, supra.
Moreover, appellate review of a weight claim is a review of the trial
court’s exercise of discretion in denying the weight challenge raised in the
post-sentence motion; this Court does not review the underlying question of
whether the verdict is against the weight of the evidence. See id.
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the verdict
is against the weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.
Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to
prevail on a challenge to the weight of the evidence, the evidence must be so
tenuous, vague and uncertain that the verdict shocks the conscience of the
court.” Id. (quotation marks and quotation omitted).
Here, in rejecting Appellant’s weight of the evidence claim, the trial court
relevantly indicated:
In the case at bar, [Appellant] claims the verdict was against
the weight of the evidence as there should have been no weight
given to the testimony of Ms. Torres. During Ms. Torres’
testimony, she disclosed that criminal charges were brought
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against her based on this same investigation into [Appellant] and
that she had entered a guilty plea to the misdemeanor offense of
tampering with physical evidence. Ms. Torres also testified that
she was convicted for retail theft sometime prior to 2017.
However, despite this information, the verdict was not contrary to
the evidence as the jury was presented with a case upon which to
convict [Appellant]. The jury evaluated the evidence, determined
the credibility of witnesses, including Ms. Torres, and, when
assessing the weight of the evidence, believed the evidence
presented by the prosecution and rendered a guilty verdict.
Therefore, the verdict was consistent with the evidence presented
and did not shock [one’s] sense of justice.
Trial Court Opinion, filed 6/26/19, at 16.
We conclude the trial court did not abuse its discretion in denying
Appellant’s challenge to the weight of the evidence. Talbert, supra. We note
the jury was free to determine the weight and inferences to be drawn from
Ms. Torres testimony and what impact, if any, her own criminal charges and
history had on her veracity. To the extent Appellant requests that we re-
weigh the evidence and assess the credibility of the witnesses presented at
trial, we decline to do so as it is a task that is beyond our scope of review.
See Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013)
(stating that “[a]n appellate court cannot substitute its judgment for that of
the finder of fact”).
For all of the aforementioned reasons, we affirm Appellant’s judgment
of sentence.10
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10On December 2, 2019, Appellant filed in this Court an “Application for Relief”
requesting that we not consider the Commonwealth’s brief. We grant
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Appellant’s “Application for Relief” is granted; Judgment of Sentence is
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/27/2020
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Appellant’s motion. While the cover of the Commonwealth’s brief correctly
identifies Appellant’s case, the content thereof does not pertain to Appellant’s
case. Accordingly, we decline to consider the Commonwealth’s brief in this
matter.
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Com. v. Torres, L.
Combined Opinion