J-S08032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JUMAR ANTHONY THOMPSON :
:
Appellant : No. 921 WDA 2016
Appeal from the Judgment of Sentence April 20, 2016
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001068-2015
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 24, 2017
Appellant, Jumar Anthony Thompson, appeals from the judgment of
sentence entered in the Beaver County Court of Common Pleas, following his
jury trial convictions for firearms not to be carried without a license and
knowing or intentional possession with intent to distribute, or possession of
a designer drug, and his bench trial conviction for careless driving. 1 We
affirm.
In its June 16, 2016 Memorandum Opinion and Order, the trial court
fully and correctly set forth the relevant facts and procedural history of this
case. Therefore, we have no reason to restate them.
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1
18 Pa.C.S.A. § 6106(a)(1); 35 P.S. § 780-113(a)(36); 75 Pa.C.S.A. §
3714, respectively.
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Appellant raises two issues for our review:
WHETHER THE WEIGHT OF THE EVIDENCE WAS NOT
SUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT
THAT APPELLANT IS GUILTY OF THE CRIME[S] ALLEGED?
WHETHER THE EVIDENCE WAS NOT SUFFICIENT TO
PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT
IS GUILTY OF THE CRIME[S] ALLEGED?
(Appellant’s Brief at 7).2
As a preliminary matter, generally, a challenge to the weight of the
evidence must be preserved by a motion for a new trial. Pa.R.Crim.P. 607.
The Rule provides:
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)(1)-(3). “As noted in the comment to Rule 607, the
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.”
Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa.Super. 2004), appeal
denied, 581 Pa. 672, 863 A.2d 1143 (2004). An appellant’s failure to avail
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2
Appellant does not challenge his careless driving conviction on appeal.
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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 (Pa.Super. 2003).
Instantly, following trial, Appellant filed a pro se pre-sentence “Motion
To Arrest Judgment” on April 4, 2016. In his lengthy motion, Appellant
discussed the testimony/evidence presented at trial and concluded the
Commonwealth had failed to satisfy the elements necessary to sustain his
convictions. Appellant sought reversal of his convictions and discharge.
Although Appellant’s motion primarily challenged the sufficiency of the
evidence, Appellant also attacked the credibility of the Commonwealth’s
witness, John Corso, and asserted the verdict was against the weight of the
evidence. Because Appellant was represented by counsel, the Clerk of
Courts forwarded the pro se motion to defense counsel. See Pa.R.Crim.P.
576(A)(4) (explaining that in any case where defendant is represented by
counsel and submits pro se filing, Clerk of Courts shall accept document for
filing and forward copy of it to defense counsel and Commonwealth within 10
days); Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993)
(holding there is no constitutional right to hybrid representation at trial or on
appeal).
Appellant appeared for sentencing on April 20, 2016. At the
sentencing hearing, Appellant asked the court about the status of his pro se
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pre-sentence motion. The court informed Appellant it could not decide his
pro se motion because Appellant had submitted the motion while he was
represented by counsel. The court asked counsel if he had reviewed the pro
se motion, and counsel responded affirmatively. Counsel indicated he would
discuss any post-sentence/appellate issues with Appellant following
sentencing. The court then directed Appellant and counsel to meet with
each other following sentencing to discuss any issues Appellant wanted to
pursue in post-sentence motions and/or on appeal. The court subsequently
sentenced Appellant and advised Appellant of his post-sentence and
appellate rights.
On April 26, 2016, Appellant timely filed a counseled post-sentence
motion, alleging:
(a) The Commonwealth did not present sufficient evidence
to prove beyond a reasonable doubt all of the elements of
the offenses for which he was convicted.
(b) [Appellant] argues that the [c]ourt erred in the denial
of his Suppression Motion.
(c) [Appellant] argues that the Commonwealth failed to
establish beyond a reasonable doubt all of the elements of
the offenses for which he was convicted.
(Appellant’s Post-Sentence Motion, filed April 26, 2016, at 1-2). Appellant
sought relief in the form of a new trial. Notwithstanding his request for a
new trial only, and not an arrest of judgment, Appellant’s post-sentence
motion included challenges to the sufficiency of the evidence and the court’s
pre-trial suppression ruling, but not the weight of the evidence. See
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Commonwealth v. Widmer, 560 Pa. 308, 318-320, 744 A.2d 745, 751-
752 (2000) (explaining differences between challenge to weight of evidence
versus sufficiency of evidence; distinction is critical; evidence is sufficient to
support verdict when it establishes each material element of crime charged
and commission of crime by accused beyond reasonable doubt; remedy for
successful challenge to sufficiency of evidence is judgment of acquittal;
challenge to weight of evidence concedes there is sufficient evidence to
sustain verdict; remedy for successful challenge to weight of evidence is new
trial); Commonwealth v. Wilson, 825 A.2d 710 (Pa.Super. 2003)
(explaining sufficiency of evidence review does not include assessment of
credibility, which is more properly characterized as challenge to weight of
evidence). Appellant’s failure to preserve his weight claim properly in his
counseled post-sentence motion constitutes waiver of the weight claim on
appeal.3 See Pa.R.Crim.P. 607; Gillard, supra.
Moreover, even if successfully preserved, Appellant’s weight claim
would merit no relief. When examining a challenge to the weight of the
evidence, our standard of review is as follows:
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3
To the extent Appellant’s attack on Mr. Corso’s testimony in his pro se pre-
sentence motion sought to challenge the weight of the evidence, the record
makes clear the court informed Appellant it could not review the pro se
motion while Appellant was represented by counsel and directed Appellant to
discuss with counsel any issues he wanted to pursue in post-sentence
motions or on appeal. Appellant appears to have abandoned the weight
claim in his post-sentence motions, notwithstanding the form of relief
requested.
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The weight of the evidence is exclusively for the
finder of fact who is free to believe all, part, or none
of the evidence and to determine the credibility of
the witnesses. An appellate court cannot substitute
its judgment for that of the finder of fact. Thus, we
may only reverse the…verdict if it is so contrary to
the evidence as to shock one’s sense of justice.
Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(internal citations omitted). A “trial court’s denial of a motion for a new trial
based on a weight of the evidence claim is the least assailable of its rulings.”
Commonwealth v. Rivera, 603 Pa. 340, 363, 983 A.2d 1211, 1225
(2009), cert. denied, 560 U.S. 909, 130 S.Ct. 3282, 176 L.Ed.2d 1191
(2010).
Here, the trial court explained:
Had Appellant filed a timely challenge to the weight of the
evidence, this [c]ourt would not have granted relief.
* * *
The undersigned presided over the jury trial and observed
all evidence and testimony presented to the jury, as
summarized in the [c]ourt’s Memorandum Opinion dated
June 16, 2016. The jury’s verdict was not contrary to the
weight of the evidence presented and the verdict did not
shock this [c]ourt’s sense of justice.
(Rule 1925(a) Opinion, filed July 15, 2016, at 3). So, even if Appellant had
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properly preserved his challenge to the weight of the evidence, it would
nevertheless fail.
With respect to Appellant’s challenge to the sufficiency of the evidence,
after a thorough review of the record, the briefs of the parties, the applicable
law, and the well-reasoned opinion of the Honorable Richard Mancini, we
conclude Appellant’s second issue merits no relief. The trial court opinion
comprehensively discusses and properly disposes of that question. (See
Memorandum Opinion and Order, filed June 16, 2016, at 6-8) (finding:
evidence showed Appellant rented vehicle from John Corso on morning of
May 10, 2015, at which time vehicle was empty; when Sergeant Walton
stopped Appellant driving that evening, Appellant was sole occupant of
vehicle; Sergeant Walton observed, in plain view, drug paraphernalia and
loose vegetable matter that appeared to be marijuana, which indicated drug
use in vehicle; Sergeant Walton also observed duffel bag on front passenger
floor; search of duffel bag revealed 61 individually sealed packages of
synthetic marijuana and handgun; Appellant was not licensed to carry
handgun; Appellant had over $600.00 cash on his person; Commonwealth
presented sufficient evidence to prove Appellant constructively possessed
handgun and synthetic marijuana, which was enough to sustain Appellant’s
convictions). Regarding Appellant’s challenge to the sufficiency of the
evidence, we affirm on the basis of the trial court’s June 16, 2016 opinion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2017
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