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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
THOMAS MCCREERY
Appellant No. 769 EDA 2015
Appeal from the Judgment of Sentence July 22, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009261-2013
BEFORE: OTT, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY RANSOM, J.: FILED APRIL 18, 2017
Appellant, Thomas McCreery, appeals from the judgment of sentence
of three to six years of incarceration, imposed July 22, 2014, following a
bench trial resulting in his conviction for aggravated assault, simple assault,
and recklessly endangering another person.1 We affirm.
We adopt the following statement of facts from the trial court’s
opinion, which in turn is supported by the record. See Trial Court Opinion
(TCO), 9/14/15, at 5-8. Appellant and Lauren Felsing were involved in a
romantic relationship and shared an apartment with Appellant’s brother. In
April 2013, Ms. Felsing and Appellant became involved in a domestic dispute
over drugs. When Ms. Felsing turned to leave the room, Appellant attacked
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1
18 Pa.C.S. §§ 2702(a)(1), 2071(a), and 2705, respectively.
*
Former Justice specially assigned to the Superior Court.
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her, hitting Ms. Felsing in the back of the head with a baseball bat. Ms.
Felsing lost consciousness and woke up to find Appellant choking her.
Following the assault, Ms. Felsing attempted but was unable to call for help.
She then lost consciousness again.
The next morning, Ms. Felsing walked to a nearby convenience store
where she called 911 and collapsed on the sidewalk. Ms. Felsing was
hospitalized for two nights and diagnosed with a subdural hematoma, broken
eye socket, black eyes, bruised throat, fractured arm, and other bruises on
her body. As a result of the assault, Ms. Felsing suffered memory loss, loss
of feeling on the left side of her face, continued pain, and remained under
care of a neurologist as a result of her injuries.
While Ms. Felsing was hospitalized, Appellant called the police and
claimed that he had been assaulted. The responding police officer noted
that Appellant matched the description for a male wanted for domestic
assault in that region. The officer also noticed that Appellant had visible cuts
on his knuckles, as though he had punched something. Appellant had a
wound on his leg, but presented no other injuries. The officer detained
Appellant and transported him to the hospital. The bat was recovered from
Appellant’s apartment, still coated in blood.
A week after the incident, Appellant wrote Ms. Felsing a letter,
apologizing for what he had done to her and stating he could not believe he
had “put [his] hands” on her. In the letter, Appellant admitted that his leg
wound was the result of his dog biting him during his assault of Ms. Felsing.
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In May 2014, the case proceeded to a bench trial. At trial, Appellant
and his brother claimed that Appellant had acted in self-defense and Ms.
Felsing had attacked Appellant with a knife. Further, Ms. Felsing admitted
on cross examination that she did not remember the exact moment she had
been hit. Following trial, Appellant was convicted of the aforementioned
charges. On July 22, 2014, Appellant received an aggregate sentence of
three to six years of incarceration followed by ten years of probation.
Appellant timely filed a post sentence motion seeking reconsideration of the
verdict and his sentence. After a hearing, the court denied his motion.
Appellant timely appealed and filed a court-ordered statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court issued a responsive opinion.
On appeal, Appellant raises the following issues and sub-issues for our
review:
A. Whether the evidence was insufficient to sustain a verdict of
guilt?
1. The evidence proving all charges was insufficient.
2. Whether the trial court erred in denying the
motion for acquittal on the charges where it was
mere speculation that the Appellant hit the
complainant with a bat or otherwise injured her head
and the evidence was insufficient as a matter of law
where there was no evidence that the Appellant did
anything specific to the complainant.
3. Defendant[’]s claim of self-defense is supported
on the record and was not independently addressed
in the court’s opinion.
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B. Whether the verdict was against the weight of the evidence
where the testimony was non-existent and contradictory and
insufficient to prove aggravated assault or any other charge?
C. Whether the sentence imposed was improper or excessively
punitive or purely based on emotion?
D. Whether it was error to deny Appellant his right to counsel of
choice at sentencing?
E. Whether the complainant was not credible?
Appellant’s Brief at 6 (unnecessary capitalization and responsive questions
omitted).
First, Appellant claims that the evidence was insufficient to sustain a
verdict of guilt on all charges. See Appellant’s Brief at 13-23. He argues
that the evidence was “mere speculation” because there was no evidence
that the Appellant did “anything specific” to the complainant, as Ms. Felsing
did not remember being hit in the head. Id. at 14. Finally, he argues his
claim of self-defense was supported by the record. Id. at 21.
Appellant was convicted of aggravated assault, simple assault, and
recklessly endangering another person. The trial court found that he had
failed to preserve his sufficiency claims on appeal, as his Pa.R.A.P. 1925(b)
statement did not specify the element or elements upon which the evidence
was insufficient. See TCO at 3-4 (citing in support Commonwealth v.
Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)).
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Issues not included in a Pa.R.A.P. 1925(b) statement are waived for
purposes of appeal. See Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.
1998). Further,
[w]hen a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review. When an
appellant fails adequately to identify in a concise manner the
issues sought to be pursued on appeal, the trial court is impeded
in its preparation of a legal analysis which is pertinent to those
issues. In other words, a Concise Statement which is too vague
to allow the court to identify the issues raised on appeal is the
functional equivalent of no Concise Statement at all.
Commonwealth v. Dowling, 778 A.2d 683, 686–87 (Pa. Super. 2001)
(internal citations and quotations omitted). This specificity is of particular
importance in cases where the defendant was convicted of multiple crimes
containing multiple elements, as the Pa.R.A.P. 1925(b) statement must allow
the trial court the opportunity to meaningfully address an appellant’s claims.
See Williams, 959 A.2d at 1257. A review of the record supports the
contention that Appellant’s Pa.R.A.P. 1925(b) statement was deficient due to
vagueness, and accordingly, Appellant has waived his sufficiency claims on
appeal. See Appellant’s Pa.R.A.P. 1925(b) Statement, 1-3.
The trial court did address Appellant’s arguments regarding his
justification defense and the motion for judgment of acquittal. See TCO at
10-11. However, “when an appellant fails to identify in a vague Pa.R.A.P.
1925(b) statement the specific issue he/she wants to raise on appeal, the
issue is waived, even if the trial court guesses correctly and addresses the
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issue in its Pa.R.A.P. 1925(a) opinion.” Commonwealth v. Lemon, 804
A.2d 34, 38 (Pa. Super. 2002). Accordingly, these arguments are waived.
Second, Appellant claims the verdict was against the weight of the
evidence. See Appellant’s Brief at 24-25. Appellant argues that the
testimony was non-existent, contradictory, and insufficient to prove
aggravated assault and suggests that we review “the underlying question of
whether the verdict was against the weight of the evidence as a question of
law based upon fact.” Id. at 24. Appellant also challenges the credibility of
the complainant. Id. at 31.2
The law regarding weight of the evidence claims is well-settled.
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court's discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the jury is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and a new trial
based on a weight of the evidence claim is only warranted where
the jury's verdict is so contrary to the evidence that it shocks
one’s sense of justice. In determining whether this standard has
been met, appellate review is limited to whether the trial judge’s
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations
and internal quotation marks omitted).
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2
Although Appellant lists this as a separate issue, a challenge to the
credibility of a witness is a challenge to the weight of the evidence. See
Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014).
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Upon review of his arguments, however, Appellant fails to provide a
significant analysis of his claims or to offer citations to law for propositions
beyond the general standards of review. See Appellant’s Brief at 24-25. We
note that much of Appellant’s sufficiency argument is actually a weight
argument and lists, at length, the evidence he considers contradictory or
unreliable. See Appellant’s Brief at 14-17. In his weight argument,
however, he states only a bald conclusion that the evidence was
contradictory, non-existent, and unreliable; that the complainant’s testimony
was not credible; and that the trial court’s ruling was an abuse of discretion.
See Appellant’s Brief at 24-25. Further, Appellant argues that because he
“proved” self-defense beyond a reasonable doubt, any finding of guilt was
against the weight of the evidence. Id.
Although we might comb the record further, absent reasoned analysis
from Appellant, we decline to do so. See Commonwealth v. Hakala, 900
A.2d 404, 407 (Pa. Super. 2006). “It is not this Court's function or duty to
become an advocate for the appellants.” Id. Accordingly, we deem
Appellant’s weight claims waived.3
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3
Even if they were not waived, Appellant’s claims are meritless. To the
extent that he challenges the credibility of Ms. Felsing’s testimony, the trial
court made a specific finding that her testimony was credible and persuasive
and the testimony of Appellant and his brother was not credible, not
objective, and “ludicrous.” See TCO at 11-12. We decline to reassess the
trial court’s credibility findings on appeal. Houser, 18 A.3d at 1135-1136.
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Third, Appellant challenges the discretionary aspects of his sentence
and claims the sentence was improper, excessively punitive, and purely
based on emotion. See Appellant’s Brief at 25-29.
Appellant challenges the discretionary aspects of his sentence, a
challenge which does not entitle him to review as of right. Commonwealth
v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). Prior to addressing a
discretionary challenge, this Court engages in a four-part analysis: 1)
whether the appeal is timely; 2) whether Appellant preserved his issue; 3)
whether Appellant’s brief contains a concise statement of the reasons relied
upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f); and 4) whether
that statement raises a substantial question that the sentence is
inappropriate under the sentencing code. See Commonwealth v. Austin,
66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).
Here, Appellant does not address whether his challenge to the
discretionary aspects raised a substantial question and cites to no case law
in his Pa.R.A.P. 2119(f) statement to establish whether he has raised a
substantial question. See Appellant’s Brief at 25-26. Accordingly, he has
not preserved his claim on appeal. See Allen, 24 A.3d at 1064.
Finally, Appellant argues that it was error to deny Appellant the right
to counsel of choice at sentencing. See Appellant’s Brief at 29-31.
The trial court explained,
On the date of his sentencing hearing, July 22, 2014, [Appellant]
was represented by counsel of record, James Donovan, Esquire.
At no time during the hearing, despite being given several
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opportunities to do so, did [Appellant] [or] counsel advise the
[c]ourt that new counsel had been retained to represent
[Appellant] at sentencing . . .
Furthermore, at the close of the hearing, Mr. Donovan, on
advising [Appellant] of his appellate rights, stated for the record
that he had been advised “that Ms. Major has been retained by
you or by your family to represent your interest post-trial.”
[Appellant] responded by stating, “Yes, I did.”
See TCO at 18. The court noted there was no evidence of record that Ms.
Major entered her appearance prior to August 1, 2014. Id.
Appellant does not cite to any authority to support his position nor
does he meaningfully develop his argument, except to state baldly that he
was denied his counsel of choice. Accordingly, we find that Appellant has
waived this argument. See Pa.R.A.P. 2119(a)-(c); see also
Commonwealth v. Knox, 50 A.3d 732, 748 (Pa. Super. 2012) (“[T]he
argument portion of an appellate brief must be developed with a pertinent
discussion of the point which includes citations to the relevant authority.”)
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2017
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Com. v. McCreery, T.
Combined Opinion