J-A15011- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. SCOTT BOWEN Appellant No. 1127 EDA 2013

Appeal from the Judgment of Sentence February 22 , 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR -0013590-2011
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J. MEMORANDUM BY PANELLA, J.: FILED AUGUST 05, 2014 Appellant, Scott Bowen, appeals from the judgment of sentence entered February 22, 2013, by the Honorable Diana A nhalt, Court of Common Pleas of Philadelphia County. We affirm. For a detailed recitation of the facts of this case a nd the conflicting testimony adduced at trial, we direct the reader to th e trial court’s 1925(a) memorandum opinion. See Trial Court Opinion, 10/30/13 at 2-4. Briefly, on September 3, 2011, Bowen and the victim, Aaron Ra smussen, engaged in an altercation at Ladder 15, a bar and restaurant loca ted in Philadelphia. Although both Bowen and the victim offered different accounts as to who started the argument, it is undisputed that at some po int after the parties were escorted outside, a confrontation again ensued, at which point BowenJ-A15011- 14

- 2 -

stabbed the victim in the upper left abdomen. The vi ctim was transported to the hospital for surgery. Bowen was subsequently arrested and charged with Aggrav ated Assault, 1 Possession of an Instrument of Crime, 2 Simple Assault, 3 and Recklessly Endangering another Person. 4 Following a non-jury trial on January 7, 2013, the trial court convicted Bowen of Ag gravated Assault and Possession of an Instrument of Crime. On February 22, 2 013, Bowen was sentenced to four years’ probation. Bowen filed post -sentence motions on March 1, 2013, which the trial court denied. This ti mely appeal followed. On appeal, Bowen raises the following issues for our re view:

1. Was the trial court’s verdict ag ainst the weight of the evidence insomuch as no reasonable factfinder could find t hat the Commonwealth proved Mr. Bowen guilty beyond a reasonable doubt? 2. Was the trial court’s verdict against the weight of the evidence insomuch as no reasonable factfinder could find t hat the Commonwealth proved Mr. Bowen was not acting in selfdefense beyond a reasonable doubt? 3. Was the evidence insufficient as a matter of law to susta in the verdict? Appellant’s Brief at 6.

____________________________________________
1 18 Pa.C.S. § 2702(a). 2 18 Pa.C.S. § 907(a). 3 18 Pa.C.S. § 2701(a). 4 18 Pa.C.S. § 2705.J-A15011- 14

- 3 -

Preliminarily, we note that Bowen has waived his chal lenge to the sufficiency of the evidence to support the verdict. In order to preserve a challenge to the sufficiency of the evidence on appeal, an appellant’s Rule 1925(b) statement must state with specificity the eleme nt or elements of the crime for which the appellant alleges the evidence was insufficient. See Commonwealth v. Garland , 63 A.3d 339, 344 (Pa. Super. 2013); Commonwealth v. Gibbs , 981 A.2d 274, 281 (Pa. Super. 2009). “Such specificity is of particular importance in cases where, as here, the appellant was convicted of multiple crimes each of which contains num erous elements that the Commonwealth must prove beyond a reasonable doubt.” Gibbs , 981 A.2d at 281. In Garland , the appellant’s 1925(b) statement stated only that “[t]he evidence was legally insufficient to suppor t the conviction,” and a panel of this court found that the sufficiency challeng e was waived on appeal. Id . at 344. Instantly, Bowen’s Rule 1925(b) stat ement states in pertinent part, “[t]he evidence was insufficient as a matter of law to sust ain the verdict.” 1925(b) Statement of matters Complained of on Appeal , 7/23/1 at 2. Bowen’s Rule 1925(b) statement not only fails to ident ify which elements he is challenging, but also which conviction he is challengin g. That Bowen additionally fails to specify in his appellate brief th e elements he is challenging further inhibits our review of this claim. Accordingly, we are constrained to find Bowen’s challenge to the sufficiency of the evidence waived on that basis. See Garland , supra .J-A15011- 14

- 4 -

We proceed to examine Bowen’s argument that the verdi ct was against the weight of the evidence. A challenge to t he weight of the evidence “concedes that the evidence is sufficient to sustain the ver dict, but seeks a new trial on the ground that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice.” Commonwealth v. Orie , 88 A.3d 983, 1015 (Pa. Super. 2014) (citation omitted). Our standard when reviewing a we ight of the evidence claim is well settled.
A motion for a new trial based on a claim that the ve rdict is against the weight of the evidence is addressed to the discretio n of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on t he same facts would have arrived at a different conclusion. Rat her, “the role of the trial judge is to determine that ‘notwit hstand ing all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all t he facts is to deny justice.’ ” It has often been stated that “a new t rial should be awarded when the jury's verdict is so contrary to t he evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given a nother opportunity to prevail.” An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standa rd of review applied by the trial court: Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question o f whether the verdict is against the weight of the evid ence. Because the trial judge has had the opportunity to hea r and see the evidence presented, an appellate court will give the gravest consideration to the findings and reaso ns advanced by the trial judge when reviewing a trial co urt's determination that the verdict is against the weight o f the evidence. One of the least assailable reasons for grant ing or denying a new trial is the lower court's conviction t hatJ-A15011- 14

- 5 - the verdict was or was not against the weight of the evidence and that a new trial should be granted in th e interest of justice. This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new tria l based on a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court's discretion, we h ave explained: The term “discretion” imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge

. Discretion must be exercised on the foundation of reason , as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, bu t where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that t he action is a result of partiality, prejudice, bias or ill -will. Id . at 1015-1016 (citation and emphasis omitted). Bowen primarily argues that the trial court erred in rejecting his selfdefense claim. “The use of force upon or toward another person is justi fiable when the actor believes that such force is immediately n ecessary for the purpose of protecting himself against the use of unlaw ful force by the other person.” 18 P A .C ONS .S TAT .A NN
. § 505(a). “ Although the defendant has no burden to prove self- defense, ... before the defense is properly in issue, ‘there must be some evidence, from whatever source, to j ustify such a finding.’” Commonwealth v. Mouzon , 53 A.3d 738, 740 (Pa. 2012) (citation omitted). Once a justification defense is properly raised, “the Commonwealth bears the burden to disprove such a defense beyond aJ-A15011- 14

- 6 -

reasonable doubt.” See Commonwealth v. Torres , 766 A.2d 342, 345 (Pa. 2001). The Commonwealth sustains its burden if “it e stablishes at least one of the following: 1) the accused did not reasonably belie ve that he was in danger of death or serious bodily injury; or 2) the a ccused provoked or continued the use of force; or 3) the accused had a duty to retreat and the
retreat w as possible with complete safety.” Commonwealth v. McClendon , 874 A.2d 1223, 1230 (Pa. Super. 2005) (citation o mitted). “It remains the province of the [finder of fact] to determ ine whether the accused's belief was reasonable, whether he was free of p rovocation, and whether he had no duty to retreat.” Id

. With our standard of review in mind, we have examine d the certified record, the briefs of the parties, Judge Anhalt’s memo randum opinion, and the applicable law, and we find that the trial court ably and methodically addressed the issues Bowen presented on appeal. We agree with the trial court that Bowen’s challenge to the weight of the evid ence to support his convictions and request for a new trial is without meri t. Accordingly, we affirm on the bas is of the Judge Anhalt’s well -written memorandum opinion. See Trial Court Opinion, 10/30/13 at 5- 7. Judgment of sentence affirmed.J-A15011- 14

- 7 -

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/5/2014Circulated 07/23/2014 03:14 PMCirculated 07/23/2014 03:14 PMCirculated 07/23/2014 03:14 PMCirculated 07/23/2014 03:14 PMCirculated 07/23/2014 03:14 PMCirculated 07/23/2014 03:14 PMCirculated 07/23/2014 03:14 PMCirculated 07/23/2014 03:14 PM